author: SAUNDERS, Judge.

text:
    SUTTON STEEL & SUPPLY, INC., et al. v. BELLSOUTH MOBILITY, INC., et al.
    Nos. CM 07-146, CA 07-512.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 2007.

      Peter Butler, Sr., Peter Butler, Jr., Breazeale, Sachse & Wilson, New Orleans, LA, Bob F. Wright, Domengeaux, Wright, Roy, & Edwards, Lafayette, LA, Jonathan B. Andry, The Andry Law Firm, LLC, New Orleans, LA, Lionel H. Sutton, III, The Sutton Law Firm, New Orleans, LA, for Plaintiffs/Appellees, Sutton Steel & Supply, Inc., Kate Davis (on behalf of class action) Kate Davis.
    Gary Jude Russo, Perret Doise, APLC, Lafayette, LA, Seamus C. Duffy, Drinker, Biddle, & Reath, LLP, Philadelphia, PA, Evan M. Tager, Mayer, Brown, Rowe, & Maw, LLP, Washington, DC, for Defendant/Appellant, BellSouth Mobility, Inc.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and GLENN B. GREMILLION, Judges.
   SAUNDERS, Judge.

JQThis class action case is before us in the posture of a consolidated motion to dismiss an unlodged suspensive appeal and an appeal for review of the trial court’s judgment denying a motion to decertify the class. For the reasons outlined below, we deny the motion to dismiss and affirm the judgment of the trial court.

FACTS:

BellSouth Mobility Inc. (hereinafter “BellSouth”) provided wireless telephone service to customers in Louisiana and other states pursuant to a written form contract containing standard terms and conditions. While the standard form contracts are not identical for each customer, the provisions at issue are substantially similar throughout. In particular, the face of each such contract provides for a certain number of “air time minutes included per month.” In addition, there is a provision on the reverse of each contract which purportedly explains BellSouth’s practice of rounding up the actual time used by a customer during each phone call to the next whole minute for purposes of billing. The member plaintiffs comprising this class action (hereinafter “the plaintiffs”) allege that BellSouth breached its contractual promise to provide the bargained-for amount of “air time minutes” by rounding up, thereby charging the plaintiffs for phone time not actually used. BellSouth contends that the “rounding up” provision simply defines or clarifies what is meant by “air time minutes,” and that its customers consented to this provision by signing the front of the agreement.

Since 1998, the terms and conditions of BellSouth’s standard form contracts have also included a provision compelling the resolution of disputes related to the contract via arbitration. As with the “rounding up” clauses, BellSouth argues that these arbitration clauses became part of its agreement with its customers upon their l2signing the front of the contract. As such, BellSouth contends that the current class action litigation is improper. The plaintiffs counter that such arbitration clauses never became part of the agreement, as they are unenforceably adhesion-ary,

PROCEDURAL HISTORY:

This is the fourth time that this case has come before this court. The first, Sutton Steel & Supply, Inc. v. BellSouth Mobility, Inc., 00-511 (La.App. 3 Cir. 12/13/00), 776 So.2d 589, writ denied, 01-152 (La.3/16/01), 787 So.2d 316 (hereinafter “Sutton I”), came in the form of a writ application consolidated with an appeal of the trial court’s ruling denying a motion to compel arbitration and to stay the proceedings. The second, Sutton Steel & Supply, Inc. v. BellSouth Mobility, Inc., 03-1536 (La.App. 3 Cir. 6/9/04), 875 So.2d 1062, writ denied, 04-1654 (La.11/15/04), 887 So.2d 478 (hereinafter “Sutton II ”), came in the form of a writ application consolidated with an appeal of the trial court’s judgment certifying a class and striking certain exhibits. The third, Sutton Steel & Supply, Inc., 07-106 (La.App. 3 Cir. 3/30/07) (hereinafter “Sutton III”) came in the form of an application for a supervisory writ.

The case at bar commenced in June 1999, at which time the plaintiffs brought this putative class action lawsuit before Judge Gerard Wattigny (hereinafter “Judge Wattigny”) in the 16th Judicial District Court of Iberia Parish, alleging that BellSouth breached its service agreement with its customers via its practice of “rounding up” calls to the next whole minute for billing purposes. Relying on the arbitration clauses contained in such agreements, BellSouth moved to compel arbitration of the plaintiffs’ disputes. The district court denied the motion in March 2000, and BellSouth appealed to this court. In Sutton I, 776 So.2d 589, we affirmed the ^decision of the district court, holding that BellSouth’s arbitration provision was adhesive and thus unenforceable.

BellSouth then moved for summary judgment. The district court denied the motion on February 13, 2003, holding that the rounding provision contained in Bell-South’s standard form contracts was also unenforceably adhesive. The plaintiffs subsequently moved for class certification. The district court granted the motion on August 13, 2003, certifying a class consisting of BellSouth customers from nine states: Louisiana, Alabama, Florida, Georgia, Kentucky, Mississippi, Tennessee, North Carolina, and South Carolina. Bell-South again appealed to this court. In Sutton II, 875 So.2d 1062, we affirmed the certification of the class but remanded the case back to the district court, directing it to address certain inadequacies in its class definition.

On remand from this court, BellSouth moved to decertify the class. The district court denied the motion on December 27, 2006, and instead granted the plaintiffs’ motion to broaden the class definition. Thereafter, BellSouth filed this appeal and filed an application to this court for a supervisory writ. We denied the writ application on March 30, 2007. Sutton III. As to the appeal, the plaintiffs filed a motion to dismiss. We deferred resolution of the motion to dismiss and ordered briefing on the merits.

The Plaintiffs’ Motion to Dismiss:

The plaintiffs assert, via motion to dismiss, that the posture of the case at bar does not afford BellSouth the right to bring the suspensive appeal before us today. Specifically, the plaintiffs argue that the circumstances of the instant case do not bring it within the ambit of La.Code. Civ.P. art. 592(A)(3)(b), the provision by virtue |4of which BellSouth contends its right to appeal lies.

Louisiana Code of Civil Procedure Article 592(A)(3)(b) provides:

If the court finds that the action should be maintained as a class action, it shall certify the action accordingly. If the court finds that the action should not be maintained as a class action, the action may continue between the named parties. In either event, the court shall give in writing its findings of fact and reasons for judgment provided a request is made not later than ten days after notice of the order or judgment. A suspensive or devolutive appeal, as provided in Article 2081 et seq. of the Code of Civil Procedure, may be taken as a matter of right from an order or judgment provided for herein.

Here, the plaintiffs contend that La.Code Civ.P. art. 593(A)(3)(b) does not afford BellSouth the right to appeal the trial court’s judgment dated December 29, 2006, in that the class certification in the case at bar actually took place on August 13, 2003. In effect, the plaintiffs argue that BellSouth is precluded from appealing the trial court’s judgment of December 27, 2006, as that judgment was not an “order or judgment” of certification at all, but merely a modification of the definition pertaining to an already-certified class.

“Appeal is the exercise of the right of a party to have a judgment of a trial court revised, modified, set aside, or reversed by an appellate court.” La.Code Civ.P. art. 2082. Louisiana Code of Civil Procedure Article 2162 governs the dismissal of appeals. That Article provides, in pertinent part: “An appeal can be dismissed at any time by consent of all parties, or for lack of jurisdiction of the appellate court, or because there is no right to appeal, or if, under the rules of the appellate court, the appeal has been abandoned.” Id. (emphasis added). “It is well established law that appeals are favored by Louisiana courts, and unless the grounds urged for a dismissal are free from doubt, an appeal will be sustained.” Brock v. Tidewater Constr. Co., 318 So.2d 100, 102 (La.App. 3 Cir.1975) (citing Emmons v. Agric. Ins. Co., 158 So.2d 594 (La.1963); Vidrine v. Am. Employers Ins. Co., 129 So.2d 284 (La.App. 3 Cir.1961)). In addressing class certification rulings more specifically, this court echoed the general policy favoring appeal in West v. G & H Seed Co., 01-1453 (La.App. 3 Cir. 8/28/02), 832 So.2d 274. There, we stated: “Certification of a class of plaintiffs is an interlocutory ruling, may create irreparable harm to defendants, and thus justifies appellate review. Because any potential error in this judgment ... cannot practically be corrected on appeal after trial on the merits, the defendants are allowed to appeal such certification.” Id. at 281 (citations omitted) (emphasis added). Thus, unless the grounds urged by the plaintiffs clearly demonstrate BellSouth’s lack of the right to appeal under La.Code Civ.P. art. 592(A)(3)(b), we must deny their motion to dismiss the appeal currently before us.

The plaintiffs contend that dismissal of BellSouth’s appeal is justified clearly by the language employed by this court at an earlier juncture in this case. There, we declared:

Notwithstanding, “because of a trial court’s authority to redefine the class before a decision on the merits of the common issues, appellate courts often allow certification despite a finding that the definition is inadequate for one reason or another.” Thus, the trial court may address these inadequacies on remand.

Sutton II, 875 So.2d at 1068 (citing Duhe v. Texaco, Inc., 99-2002, p. 12 (La.App. 3 Cir. 2/7/01), 779 So.2d 1070, 1078, unit denied, 01-637 (La.4/27/01), 791 So.2d 637). Based on this reasoning, we opted to uphold the trial court’s class action certification despite finding the class action definition to be ambiguous and inadequate. The plaintiffs assert that, in keeping with the scenario described in Sutton II, the trial court here did not render an “order or judgment” deciding whether or not “the action should be maintained as a class action” in its decision of December | fi27, 2006, but merely addressed the inadequacies of the class definition in an already-certified class action. As a result, the plaintiffs argue, BellSouth cannot point to La.Code Civ.P. art. 592(A)(3)(b) as the locus of its right to appeal. We disagree.

The plaintiffs contend that La.Code Civ.P. art. 592 limits rigidly the right to appeal the certification of a class to the trial court’s initial decision whether to certify the action as a class action, yet the language of that statute speaks in terms of whether the action should be “maintained” as a class action. Similarly, La.Code Civ.P. art. 592 elsewhere frames class certification as a fluid process:

In the process of class certification, or at any time thereafter before a decision on the merits of the common issues, the court may alter, amend, or recall its initial ruling on certification and may enlarge, restrict, or otherwise redefine the constituency of the class or the issues to be maintained in the class action.

La.Code Civ.P. art. 592(A)(3)(c).

In light of the myriad points in the class certification process at which the trial court may opt to “alter, amend, or recall its initial ruling on certification,” this court finds little justification for restricting a party’s right to appeal class certification to the period immediately following the trial court’s initial ruling thereon. Where, as here, a trial court is called upon to rule whether to “alter, amend, or recall its initial ruling on certification,” whether or not the action “should be maintained as a class action” is precisely the matter placed at issue. As such, without regard to its proximity to the trial court’s initial ruling on class certification, we hold that the denial of BellSouth’s motion to decertify the class in the instant case is an appealable “order or judgment,” as contemplated by La.Code Civ.P. 592(A)(3)(b). To hold otherwise would impede unnecessarily class action defendants’ ability to address potential errors in class certification, as errors concerning class certification cannot practically be corrected |7on appeal after trial on the merits. Moreover, holding differently also would run contrary to Louisiana courts’ longstanding policy favoring appeals.

Notably, neither do the circumstances of the instant case mirror those of the scenario described in Sutton II. Whereas Sutton II discussed situations in which the trial court may allow certification of a class despite its recognition that the class definition is “inadequate for one reason or another,” the challenge presented by the defendants in the case at bar is not directed primarily at the adequacy of the class definition. Rather, the gravamen of the defendants’ argument here challenges the validity of the class certification — i.e., whether the suit at issue may continue in the form of a class action at all — in light of the allegedly controlling jurisprudence of Aguillard v. Auction Management Corp., 04-2804 (La.6/29/05), 908 So.2d 1, a case which emerged subsequent to the trial court’s initial class certification ruling. Thus, in terms of its effect on Sutton’s motion to dismiss this appeal, Sutton II bears little persuasive influence on this court’s determination.

Accordingly, we find the plaintiffs’ motion to dismiss BellSouth’s suspensive appeal to be without merit, and thus we must deny it.

BellSouth’s Assignment of Eeror # 1:

In its first assignment of error, Bell-South asserts that the trial court’s rejection of its motion to decertify the class in the instant case is inconsistent with the supreme court’s holding in Aguillard, 908 So.2d 1. Specifically, BellSouth claims that Aguillard’s resolution of a circuit split in favor of the enforceability of arbitration agreements automatically renders enforceable the arbitration clauses contained in BellSouth’s written form contracts, thus compelling members of the class, upon BellSouth’s arbitration demand, to pursue contractual claims through individualized | sarbitrations rather than allowing class members to cumulate such claims in a class action proceeding. We disagree.

The standard of review for class action certifications was outlined in Oubre v. Louisiana Citizens Fair Plan, 07-66, p. 3 (La.App. 5 Cir. 5/29/07), 961 So.2d 504, 508-09, writ denied, 07-1329 (La.9/28/07), 964 So.2d 363:

The standard of review for class action certifications is bifurcated. The factual findings are reviewed under the manifest error/clearly wrong standard, but the trial court’s judgment on whether or not to certify the class is reviewed by the abuse of discretion standard. Etter v. Hibernia Corporation, 06-646 (La. App. 4 Cir. 2/14/07), 952 So.2d 782; Boudreaux v. State, Dep’t of Transp. and Dev., 96-0187 (LaApp. 1 Cir. 2/14/97), 690 So.2d 114, 119. A trial court has wide discretion in deciding whether or not to certify a class. Daniels v. Witco Corp., [03-1478 (La-App. 5 Cir. 6/1/04), 877 So.2d 1011, 1014, writ denied, 04-2287 (La.11/19/04), 888 So.2d 205]; Eastin v. Entergy, 97-1094 (La-App. 5 Cir. 4/15/98), 710 So.2d 835, 838. Any errors to be made in deciding class action issues should be in favor of and not against maintenance of the class action, because a class certification order is subject to modification if later developments during the course of the trial so require. Johnson v. E.I. Dupont deNemours and Co., Inc., 98-229 (LaApp. 5 Cir. 10/14/98), 721 So.2d 41; McCastle v. Rollins Environmental Services of Louisiana, Inc., 456 So.2d 612, 620 (La.1984).
When reviewing the trial court’s ruling regarding class certification, we do not consider whether plaintiffs’ claims state a cause of action or have substantive merit, or whether plaintiffs will ultimately prevail on the merits. Schexnayder v. Entergy Louisiana, Inc., 04-636 (La.App. 5 Cir. 3/29/05), 899 So.2d 107, 113, writ denied, 05-1255 (La.12/9/05), 916 So.2d 1058. Rather, our task is to examine plaintiffs’ legal claims and to determine only whether a class action is the appropriate procedural device in light of established Louisiana criteria. Id.

Here, BellSouth argues that the trial court abused its discretion in deciding not to decertify the class, because criteria established by Aguillard, 908 So.2d 1, frame a class action as an inappropriate procedural device for carrying out the plaintiffs’ legal claims. In that case, the supreme court examined the validity of an arbitration clause contained within a consumer standard form contract governing partie-ipation | flin a real estate auction, and, in so doing, also addressed for the first time the split between circuits regarding the enforceability of such arbitration agreements under a “contract of adhesion” analysis. The supreme court outlined the substance of the circuit split in terms of policy: “While the Second and Fourth Circuits adopt a liberal policy favoring arbitration agreements, the First and Third Circuits adopt a conservative policy as to the enforceability of such agreements.” Id. at 11. In resolving the split, the supreme court favored the former of these two policies, articulating a general presumption in favor of arbitrability:

Finally, addressing the determination of the enforceability of arbitration agreements under a contract of adhesion analysis, we hold that a presumption of arbitrability does exist.... We, therefore, adopt the United States Supreme Court’s interpretation of the federal arbitration law.
Accordingly, even when the scope of an arbitration clause is fairly debatable or reasonably in doubt, the court should decide the question of construction in favor of arbitration. The weight of this presumption is heavy and arbitration should not be denied unless it can be said with positive assurance that an arbitration clause is not susceptible of an interpretation that could cover the dispute at issue. Therefore, even if some legitimate doubt could be hypothesized, this Court, in conjunction with the Supreme Court, requires resolution of the doubt in favor of arbitration.

Id. at 18. BellSouth thus contends that the presumption of arbitrability enunciated in Aguillard dictates the automatic abrogation of this court’s determination in Sutton I, 776 So.2d 589, that the clauses calling for individual arbitrations were properly excluded from the form contracts at issue here, thus rendering a class action an inappropriate procedural device for pursuing the plaintiffs’ claims.

In response, the plaintiffs cite Easterling v. Royal Manufactured Housing, L.L.C., 07-192 (La.App. 3 Cir. 6/6/07), 963 So.2d 399. There, this court was asked to decide, in light of Aguillard, whether a trial court properly excluded an arbitration agreement from a contract to sell a manufactured home. In holding that the trial court hnhad acted properly, we noted:

We acknowledge the presumption of arbitrability in the state and federal statutes. However, we do not believe that Congress or our state Legislature intended to find all arbitration agreements enforceable simply because they are written agreements, which appears to be [the defendant’s] argument. That is, if there is a written arbitration agreement, no matter what it says, the case must go to an arbitrator. That is not what the law says. Rather, an accurate summary would state that (1) if there is a valid arbitration agreement, then (2) whether the particular complaints are referable to arbitration should be determined by the arbitrator.

Id. at 408; see also Lafleur v. Law Offices of Anthoney G. Buzbee, 06-466, p. 13 (La. App. 1 Cir. 3/23/07), 960 So.2d 105, 113 (“[W]hile we recognize that under federal and state law the weight of the presumption in favor of arbitration is heavy, we find no error in the trial court’s conclusion that the arbitration provision in this ... contract was adhesionary.”). As these cases make clear, notwithstanding the new policy favoring arbitrability announced by Aguillard, the validity of arbitration agreements must still be made on a case-by-case basis. Thus, in order for Bell-South to prevail in its argument that the trial court abused its discretion in failing to decertify the class action, we must find that the trial court was manifestly in error in holding the arbitration clause specifically at issue here to be invalid as unenforce-ably adhesionary.

Aguillard, 908 So.2d 1, again proves instructive in providing a template for determining the enforceability of such arbitration agreements. There, the supreme court described generally the characteristics of an unenforceably adhesionary agreement:

[T]he real issue in a contract of adhesion analysis is not the standard form of the contract, but rather whether a party truly consented to all the printed terms. Thus, the issue is one of consent.
Consent is called into question by the standard form, small print, and most especially the disadvantageous position of the accepting party, |nwhich is further emphasized by the potentially unequal bargaining positions of the parties. An unequal bargaining position is evident when the contract unduly burdens one party in comparison to the burdens imposed upon the drafting party and the advantages allowed to that party. Once consent is called into question, the party seeking to invalidate the contract as adhesionary must then demonstrate the non-drafting party either did not consent to the terms in dispute or his consent was vitiated by error, which in turn, renders the contract or provision unenforceable.

Id. at 10 (citing Saul Litvinoff, Consent Revisited: Offer Acceptance Option Right of First Refusal and Contracts of Adhesion in the Revision of the Louisiana Law of Obligations, 47 La. L.Rev. 699, 758 (1986-1987); La.Civ.Code art.1927; La. Civ.Code art.1949). Later, addressing specifically whether an arbitration clause was unenforeeably adhesionary, Aguillard appeared to distill its analysis into four subheadings: (1) the physical characteristics of the arbitration clause, (2) the distinguishing features of the arbitration clause, (3) the mutuality of the arbitration clause, in terms of the relative burdens and advantages conferred by the clause upon each party, and (4) the relative bargaining strength of the parties. Id. at 16-17.

Applying the reasoning of Aguil-lard to the instant case, then, in order to determine whether the arbitration clause at issue here is unenforeeably adhesionary, we must measure it against the benchmark of Aguillard’s four-factor analysis.

First, when compared to those present in Aguillard, the physical characteristics of the arbitration clause here support the trial court’s finding that the clause is unen-foreeably adhesionary. In Aguillard, although the supreme court noted that the arbitration clause at issue there was typed in “relatively small print,” the court went on to frame the crux of this factor as a question of reasonableness, observing: “Moreover, the print is not unreasonably small.” Id. at 16; see also Lafleur, 960 So.2d at 112 (“While we agree that the print size is small, we do not find that it is | ^unreasonably small.”). By contrast, in its reasons for judgment, the trial court characterizes the font size employed in the instant case as being decidedly unreasonable, going so far as to call it virtually unreadable. Further, in describing previously the physical characteristics of Bell-South’s arbitration clause, this very court intimated a similar lack of regard for the reasonableness of the font size used: “[T]he clause is on BellSouth’s standard form and is in exceedingly small print.” Sutton I, 776 So.2d at 596 (emphasis added). Thus, with respect to the first of Aguillard’s four factors of analysis, the physical characteristics of the arbitration clause contained in BellSouth’s standard form contract support the trial court’s finding that it is unenforeeably adhesion-ary.

Secondly, again as compared to those found in Aguillard, the relative dearth of distinguishing features of the arbitration clause in the instant matter further supports the trial court’s finding that the clause is unenforeeably adhesionary. In finding that the distinguishing features of the arbitration clause in Aguillard weighed in favor of enforceability, the supreme court noted: “In this case, the arbitration provision, although not distinguished, was not concealed in any way, but rather was contained in a single sentence paragraph separated from the preceding and following paragraphs by double spacing.” Aguillard, 908 So.2d at 16. Here, the arbitration clause at issue similarly lacks distinction from the other clauses in the form contract. Quite dissimilarly, however, the arbitration clause here is not set off from the preceding and following paragraphs by double spacing. Moreover, as the plaintiffs note in their brief, the sheer volume of words contained in Bell-South’s form contract additionally exacerbates the difficulty of directing one’s attention to the arbitration clause therein. WTiereas the page on which the arbitration clause appeared inj¿^Aguillard contained roughly 700 words, the page on which the clause appears in the instant matter contains at least 3,960 words. The cumulative effect of these features is to cloak the arbitration clause within a blanket of boilerplate language. As such, while this court is hesitant to conclude that BellSouth actively “concealed” the arbitration clause, neither do we feel justified in declaring the district court’s arrival at such a conclusion to be unreasonable. Thus, the second Aguillard factor lends additional support to the trial court’s finding that the arbitration clause is unenforceably adhesionary.

Third, the lack of mutuality found in this case additionally fortifies the trial court’s finding that the arbitration clause at issue here is unenforceably adhesionary. In finding that the arbitration clause at issue in Aguillard did not lack sufficient mutuality to invalidate the clause as adhesionary, the supreme court reasoned: “[W]e find the arbitration clause severely limits both the defendants’ and the plaintiffs right to litigate. Nowhere in the document do the defendants reserve to themselves the right to litigate any issue arising from the contract....” Id. (emphasis added). Unlike Aguillard, however, the arbitration clause at issue here does not limit the right to litigate for both parties. On the contrary, although the clause purports to limit the plaintiffs’ options solely to arbitration, it grants BellSouth the option to pursue other remedies, including litigation. Further, as the plaintiffs note in their brief, the clause here also prohibits the arbitrator from ordering “consolidation or class arbitration.” BellSouth argues in its brief that the lack of mutuality found in the instant case cannot by itself render an arbitration agreement unenforceable, yet, as Aguil-lard makes clear, 114non-mutuaIity of this sort stands as an important factor in contract of adhesion analysis. While such a limitation standing alone may not be enough to invalidate the clause, its effect is to additionally limit the options available to potential claimants, such as the plaintiffs, without any concomitant burdening of BellSouth’s freedom of action. Thus, the third prong of Aguillard’s four-Jactor test also weighs in favor of the trial court’s conclusion that the clause is unenforceably adhesionary.

Finally, the inequality of relative bargaining positions found between the plaintiffs and BellSouth still further strengthens the trial court’s finding that the arbitration clause in question here was unenforceably adhesionary. In addressing this factor in Aguillard, the supreme court remarked:

[I]t does not appear that there was such a difference in bargaining positions between the parties so as to justify the application of the principle of contract of adhesion to the arbitration clause.... [T]he underlying transaction, a real estate auction, does not indicate that it was such a necessary transaction to establish the plaintiff was compelled to enter it... ,[E]aeh party was strictly limited to arbitration for dispute resolution, and if the plaintiff did not agree with the terms of arbitration or the terms in general, he could have either attempted to negotiate the terms of the contract or refused to participate in the auction.

Id. at 16-17. Here, however, no such freedom to bargain existed for the plaintiffs. As evidenced by the testimony of Bell-South’s corporate representative, it was BellSouth’s company policy that the arbitration clause contained in its standard form contract was not subject to negotiation with individual consumers. Moreover, as demonstrated by BellSouth’s repeated willingness to dispense with arbitration provisions in its dealings with non-consumers, neither is BellSouth’s refusal to negotiate out of such provisions with consumers merely the implementation of an across-the-board policy. BellSouth’s willingness to negotiate the inclusion or exclusion of its arbitration provision appears to be a direct function of the relative 1^bargaining power possessed by the party with which it is bargaining. As such, the relative inequality of bargaining positions between BellSouth and the plaintiffs in the instant case is paradigmatic of that normally present in a contract of adhesion. Thus, the final Aguillard factor lends further support to the trial court’s determination that the arbitration clause at issue here is un-enforceably adhesionary.

Based on our application of Aguillard’s four-factor test to the arbitration clause at issue here, we hold that the trial court was not manifestly in error in holding the arbitration provision of BellSouth’s standard form consumer contract to be unenforce-ably adhesionary. Accordingly, we also find BellSouth’s assertion that, in light of Aguillard, the trial court abused its discretion in rejecting BellSouth’s motion to de-certify the class action to be without merit.

We also note here that BellSouth includes as part of this assignment of error the argument that because many class members subsequently entered into contracts containing fully mutual arbitration agreements with BellSouth’s successor-in-interest, Cingular Wireless, those arbitration agreements remain enforceable even if, as this court now holds, the arbitration agreements contained in BellSouth’s standard consumer form contracts are unen-forceably adhesionary. BellSouth reasons that, at the very least, none of the class members who entered into such agreements with Cingular Wireless may be included in the certified class here, as the later arbitration agreements are worded in such a way as to embrace retroactively prior disputes between those consumers and Cingular Wireless, including Cingu-lar’s predecessors-in-interest.

In support, BellSouth cites Lakeland Anesthesia, Inc. v. United Healthcare of Louisiana, Inc., 03-1662 (La.App. 4 Cir. 3/17/04), 871 So.2d 380, writs denied, 04-96916 (La.6/25/04), 876 So.2d 834 and 04-972 (La.6/25/04) 876 So.2d 834. There, in determining whether an arbitration provision contained in an agreement between medical professionals and a health management organization applied retroactively to disputes arising before the agreement was confected, the fourth circuit stated: “Broadly worded arbitration provisions lacking a temporal restriction can be retroactively applied to disputes having their origins in actions pre-dating the execution of the agreement containing such provisions.” Id. at 392. BellSouth thus urges this court to apply Lakeland to exclude from the action any class members who entered into agreements with Cingular Wireless subsequent to their contracting with BellSouth. We must decline to do so.

BellSouth places great persuasive weight on Lakeland, yet the issue presented by that case is quite removed from that presented by the case at bar. In Lake-land, the primary question was whether the wording of an arbitration provision could be sufficiently broad to apply retroactively. In answering that question in the affirmative, the fourth circuit established the proposition that not all arbitration provisions must operate solely on a prospective basis. Importantly, however, the Lakeland court based their holding, in part, on the continuity of the business relationship between the parties to the arbitration agreement:

Another factor we find relevant in this case is that the relationship between the parties has been a continuous one. Indeed, Dr. Hightower attests in his affidavit that is in the record that he had a previous contractual relationship with United. For this reason, it makes logical sense to read a broad arbitration clause in the later Hightower Agreement, which expressly provides that it covers “any disputes about their business relationship” and also provides that it supercedes all prior agreements between the parties, as encompassing the entirety of the parties’ ongoing relationship.

Id. Rather than involving an arbitration agreement confected after the 1 ^commencement of a still-ongoing business relationship, however, the instant case involves an arbitration agreement entered into by consumers after the conclusion of a prior business relationship with one entity and at the commencement of a second relationship with another entity not even a party to the action. Nevertheless, BellSouth asks this court, almost solely on the basis of Lakeland, to eject class members from a suit with BellSouth as a consequence of their completely unrelated dealings with Cingular Wireless. Without more, we are loathe to stretch the relatively innocuous holding of Lakeland to achieve such a staggering result. Thus, we find BellSouth’s first assignment of error to be wholly lacking in merit.

BellSouth’s Assignment of ERROR # 2:

BellSouth next argues that the trial court’s order declining to decertify the class action additionally violates Aguil-lard’s mandate that a contractual provision cannot be held unenforceably adhesionary unless the party challenging the term proves that he or she did not consent to it. BellSouth contends that as such a burden engenders inherently individualized inquiries, the trial court erred in holding that the class action here is an appropriate procedural device to pursue the plaintiffs’ disputes. We disagree.

BellSouth again misreads the thrust of Aguillard. According to Bell-South, the language employed by the supreme court in its general discussion of contracts of adhesion compels a two-stage analysis before an agreement may be invalidated as adhesionary:

Consent is called into question by the standard form, small print, and most especially the disadvantageous position of the accepting party, which is further emphasized by the potentially unequal bargaining positions of the parties. An unequal bargaining position is evident when the contract unduly burdens one party in comparison to the burdens imposed upon the drafting party and the advantages allowed to that | isparty. Once consent is called into question, the party seeking to invalidate the contract as adhesionary must then demonstrate the non-drafting party either did not consent to the terms in dispute or his consent was vitiated by error, which in turn, renders the contract or provision unenforceable.

Aguillard, 908 So.2d at 10. BellSouth would take this to mean that the application of Aguillard’s four-factor test to the form of the agreement serves as only the first of two steps in a contract of adhesion analysis, yet such a reading is possible only when the passage is taken out of context. As the preceding portion of the supreme court’s discussion makes clear, however, rather than framing questions of form and of consent as separate prongs of an adhesion analysis, the passage upon which BellSouth relies merely highlights consent as the overarching emphasis of such analysis:

[Although a contract of adhesion is a contract executed in a standard form in the vast majority of instances, not every contract in standard form may be regarded as a contract of adhesion. Therefore, we are not willing to declare all standard form contracts adhesionary; rather, we find standard form serves merely as a possible indicator of adhesion.
As recognized by Litvinoff, the real issue in a contract of adhesion analysis is not the standard form of the contract, but rather whether a party truly consented to all the printed terms. Thus, the issue is one of consent.

Id. (citations omitted). When taken within the context of Aguillard’s generalized discussion of the roles of form and consent, then, the passage to which BellSouth points simply reinforces the notion that lack of consent, rather than deficiencies in form, is the determinative element of a contract of adhesion. Outside of this generalized discussion, there is little in Aguil-lard to suggest that separate questions of individualized consent necessarily must be answered before an otherwise adhesionary contract may be invalidated as unenforceable. Indeed, the supreme court declined to engage in any such inquiry in analyzing the arbitration clause at issue in Aguillard, but instead mirrored the approach of the trial court in constraining its |13analysis to the application of its four-factor test to the arbitration clause:

After careful review of the terms of the arbitration clause, we find nothing sufficient to establish the defendants were in such a superior bargaining position as to render the plaintiff a far weaker party or the contract adhesionary, nor do we find anything in the document itself that would call into question the validity of plaintiff s consent to the terms of the agreement as indicated by his signature.

Id. at 17 (emphasis added).

BellSouth suggests that this court should interpret Aguillard as requiring a determination as to consent wholly separate from the analysis of the agreement itself before a contract of adhesion inquiry is complete, yet not even the Aguillard court felt the need to so bisect its discussion of the arbitration provision at issue there. Further, whereas Aguillard dealt with a dispute embodied in a single action, the instant matter involves the cumulation of several disputes in the form of a class action. As such, expanding Aguillard to require individualized determinations as to consent would have potentially serious ramifications. Were this court to apply the expansive reading of Aguillard suggested by BellSouth to the class action context, actors with superior bargaining power would have carte blanche to form otherwise adhesionary arbitration agreements on a wide scale; as long as the financial hardships of litigation outweighed the damages owed for an otherwise meritorious individual contract claim, the impossibility of class action litigation would protect the very behavior that the contract of adhesion doctrine is meant to prevent.

Moreover, as previously discussed, such a result is not warranted by Aguillard. Accordingly, we find BellSouth’s second assignment of error without merit.

BellSouth’s Assignment of ERROR # 3:

In its third assignment of error, BellSouth argues that the district court erred in applying Louisiana law to the claims of out-of-state class members in this multij3tate2o class action, thereby violating the Due Process Clause of the Fourteenth Amendment and the Full Faith and Credit Clause of Article IV, § 1 of the United States Constitution.

In support of such contention, BellSouth cites Allstate Insurance Co. v. Hague, 449 U.S. 302, 101 S.Ct. 633, 66 L.Ed.2d 521 (1981). There, in discussing whether the Minnesota Supreme Court’s choice of Minnesota’s substantive law exceeded federal constitutional limitations, the United States Supreme Court proclaimed: “The lesson ... is that for a State’s substantive law to be selected in a constitutionally permissible manner, that State must have a significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary or fundamentally unfair.” Id. at 312-13, 101 S.Ct. 633. Applying this proposition more specifically to the class action context, BellSouth further cites Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 105 S.Ct. 2965, 86 L.Ed.2d 628 (1985). There, in determining that the Kansas Supreme Court overstepped constitutional bounds in applying Kansas’s substantive law to a class action involving members residing in all 50 states, the Supreme Court reasoned: “Kansas must have a ‘significant contact or significant aggregation of contacts’ to the claims asserted by each member of the plaintiff class, contacts ‘creating state interests,’ in order to ensure that the choice of Kansas law is not arbitrary or unfair.” Id. at 821-22, 105 S.Ct. 2965 (citing Allstate, 449 U.S. at 312-13, 101 S.Ct. 633). In effect, BellSouth argues that the district court erred in finding Louisiana’s contacts with the claims of out-of-state class members to be sufficiently significant to justify the application of Louisiana’s contract law to those claims, thus making such application “sufficiently arbitrary and unfair as to exceed constitutional limits.” Id. at 822, 105 S.Ct. 2965. We disagree.

Although BellSouth is correct in citing Phillips as the controlling authority for 121 choice-of-law questions in the class action context, that case makes clear that questions of “significant contacts creating state interest” come into play only after a threshold finding of conflict: “We must first determine whether Kansas law conflicts in any material way with any other law which could apply. There can be no injury in applying Kansas law if it is not in conflict with that of any other jurisdiction connected to this suit.” Id. at 816, 105 S.Ct. 2965. In Phillips, the Supreme Court pointed to such a conflict only after comparing the law of Kansas to that of several other jurisdictions connected to the class action and finding significant differences in the defendant’s possible liability thereunder: “The conflicts on the applicable interest rates, alone ... certainly amounted to millions of dollars in Lability. We think that the Supreme Court of Kansas erred in deciding on the basis that it did that the application of its laws to all claims would be constitutional.” Id. at 818,105 S.Ct. 2965.

By contrast, the instant matter presents no such “material” variation as to the liability imposed by the laws of the various member states. In fact, this court held as much previously in Sutton II, 875 So.2d 1062. There, in addressing the trial court’s granting of the plaintiffs’ motion to certify the class, we were called upon by BellSouth to determine the propriety of class certification in light of the purported variation among the laws of the states implicated in the class action. In his reasons for granting the certification motion, dated August 13, 2003, Judge Wattigny framed the issue of liability in this case in terms of generally applicable contract law:

[A] multi-state class action may require consideration of how variance in state laws might affect adjudication of the case. The common core issues in this case are contractual duty, breach of contract, and damages methodology. These three common issues with respect to which states’ laws do not differ, pre dominate over other issues in the case. The standard form contracts sought to be enforced in this ease obligate Bell-South Mobility to supply a specific amount of air time for a specific price. Plaintiffs assert BellSouth Mobility failed to do this. | ^Plaintiffs assert that BellSouth Mobility breached its unambiguous duty to supply the specific amount of minutes. Plaintiffs assert that the failure is a breach under any state’s law. The breaches give rise to claims for damages that are measured under accepted principles that apply in each state. Plaintiffs in their brief have set forth the law in all the applicable states and each state provides that the unambiguous terms of contracts determine the parties contractual duties. Therefore, the breached contracts’ terms define BellSouth Mobility’s obligations. Since the pertinent contract terms are common to the class, the commonality of the states’ contractual interpretive principles assures that common issues of law and fact will predominate with respect to BellSouth’s contractual duty. Similarly, in all states the failure to perform the contractually assumed duty is a breach of contract.
... The difference between what should have been billed and what was billed is a mathematical computation. Therefore, variations in state law, if any, will not affect the damages determination. A measure of damages in a breach of contract case is the amount of overpayment. Louisiana Civil Code art. 1994. Generally, damages for breach of contract are intended to place the plaintiff in the same position he would have been in had the defendant not breached the contract. This basic principle of law in Louisiana applies for all states which the Plaintiffs desire this certification of class action to apply in. Plaintiffs have briefed the law of each state in their memorandum, and the Court will not go forward with the applicable law as set forth therein. However, the Court agrees that the law on damages is basically the same in each state sought to be certified in this class action.

(Emphases added.) On appeal, BellSouth urged this court to reverse Judge Wattig-ny, pointing to inconsistencies among the member states’ laws regarding unconscion-ability and arbitrability, as well as raising certain affirmative defenses. In siding with the district court, this court framed the differences argued by BellSouth as tangential to the common issue of contractual liability:

BellSouth avers that variances in state law governing unconscionability create an impediment to class action treatment, and points out that it is Plaintiffs’ burden to prove that each state’s legal standards are not incompatible. However, as the Plaintiffs have not made any allegations of unconscionability, they need not address the legal standards governing it. Furthermore, if the trial court chooses to employ such an analysis in order to analyze the contract, it has the discretion to create subclasses or to amend or restrict its definition of the class at anytime [sic].
Additionally, BellSouth argues that variances in state law governing the enforceability of the arbitration provisions in its contracts ^create an impediment to class certification. This court, in a previous appeal, has already declined to recognize the arbitration provisions in the Plaintiffs [sic] contracts. Even assuming that the arbitration provisions are enforceable in one or more of the remaining eight states, this does not automatically render class action an inferi- or method of adjudicating the Plaintiffs’ claims. The trial court has discretion to create subclasses based on the class members’ resident states. Even assuming that the trial court would have to conduct more than one arbitrability analysis does not render a class action unmanageable per se, nor does it inevitably lead to a determination that common issues do not predominate in the entire action. Thus, we find that BellSouth’s arbitrability argument is not a basis for finding an abuse of discretion in the trial court’s decision to certify the class.
Finally, BellSouth argues that its affirmative defenses of waiver, ratification, and the voluntary payment doctrine depend on individual facts and circumstances, defeating commonality. However, while these affirmative defenses may limit or bar a class member’s ultimate recovery, they will not affect the initial determination of BellSouth’s liability. As such, they apply to the issue of the Plaintiffs damages, not Bell-South’s liability, and do not make class certification inappropriate under La. Code. Civ.P. 591(C).

Id. at 1069-70 (footnotes omitted) (emphasis added).

Thus, applying the wisdom of our holding from a previous posture of this very case, we hold that the district court did not err in applying Louisiana’s contract law to the multi-state class action at issue here. BellSouth contends that Phillips should invalidate the trial court’s application of Louisiana law to out-of-state class members, yet, unlike in Phillips, no material variations regarding the potential liability of the defendant, BellSouth, exist among the laws of the member states in the instant case. Rather, at issue here is a simple question of contractual breach: if BellSouth breached its obligations under the form contracts in question, its liability under Louisiana law will mirror that provided for by the law of any other member state. In his reasons for judgment associated with BellSouth’s motion to decertify the class, dated December 27, 2006, Judge Wattigny echoed such rationale in again discussing the alleged variation among the laws of the member states: “Plaintiffs’ claims are a[sic] breach | ^of contract claim. Whether a contract has been breached is a simple question of contract interpretation. This contract interpretation would not vary from state to state.” Having already held in Sutton II that the application of Louisiana contract law to the facts of the instant case creates no conflict as to liability among the laws of the other jurisdictions connected with this class action, this court finds no reason to reverse itself now.

BellSouth’s Assignment of Error # 4:

In its final assignment of error, BellSouth asserts that the district court’s refusal to enforce the arbitration clause at issue here interferes with the Federal Arbitration Act (hereinafter “FAA”). In particular, BellSouth contends that the discussions of mutuality and prominence employed by Aguillard violate the proscriptions of the FAA, in that the application of such analyses is constrained only to arbitration clauses. In effect, if Aguillard calls for the consideration of mutuality and prominence in evaluating the enforceability of arbitration clauses under Louisiana law, BellSouth argues that the FAA preempts such a rule. We disagree.

The FAA mandates that “[a]n agreement to arbitrate is valid, irrevocable, and enforceable, as a matter of federal law ... ‘save upon such grounds as exist at law or in equity for the revocation of any contract.’ ” Perry v. Thomas, 482 U.S. 488, 492 n. 9, 107 S.Ct. 1652, 96 L.Ed.2d 426 (1987) (quoting 9 U.S.C. § 2) (internal citations omitted). “Thus state law, whether of legislative or judicial origin, is applicable if that law arose to govern issues concerning the validity, revocability, and enforceability of contracts generally.” Id. (second emphasis added). “Even when using doctrines of general applicability, state courts are not permitted to employ those general doctrines in ways that subject arbitration clauses to special scrutiny.” Iberia Credit Bureau, Inc. v. Cingular Wireless LLC, 379 F.3d 159, 167 (5th Cir.2004).

BellSouth argues that the analysis employed by Aguillard in deciding whether the clause at issue there was unenforce-ably adhesionary is preempted by the PAA, in that Aguillard’s consideration of mutuality and prominence as factors of analysis is not applicable to contracts generally, but is limited to arbitration clauses. In examining Aguillard, however, there is nothing to suggest that the supreme court intended the analysis utilized there to be constrained solely to the context of arbitration clauses. On the contrary, the language employed by Aguillard frames the adhesion analysis used as applicable to clauses of all types: “[Wjhether the contract is one of adhesion or one merely contained in a standard form, the enforceability of certain clauses, usually of the small print variety, may be questionable.... ” Aguillard, 908 So.2d at 9 (emphasis added). Indeed, rather than announcing a new test specific to arbitration clauses, the Aguillard court was careful to indicate that it instead was mirroring the policy of the second and fourth circuits in extending the applicability of already-existing adhesion analysis to arbitration provisions: “Although this Court has never applied a contract of adhesion analysis to determine the enforceability and validity of an arbitration agreement, our circuit courts of appeal have extended this analysis to such situations.” Id. at 11. Bell-South makes the mistake of inferring that, because Aguillard dealt specifically with the application of adhesion analysis to an arbitration clause, the proper application of such analysis must necessarily be limited only to arbitration clauses. The language of Aguillard does not bear out such an inference. Thus, there is little merit to BellSouth’s contention that the analysis employed by Aguillard is specific to arbitration clauses.

Moreover, although BellSouth points to Iberia, 379 F.3d 159, as an example l^of the preemption it now urges this court to find, the scenario presented by the instant matter is quite distinguishable from that case. In rejecting the argument that the type size used rendered the arbitration clauses at issue in Iberia unenforceably adhesionary, the Fifth Circuit clarified that state law could not require arbitration clauses to comport to special standards regarding prominence: “But the plaintiffs’ type-size argument does not by itself show that the arbitration clause is invalid.... The FAA prohibits states from passing statutes that require arbitration clauses to be displayed with special prominence ... and courts cannot use unconscionability doctrines to achieve the same result.” Id. at 172 (citing Doctor’s Assoc. v. Casarotto, 517 U.S. 681, 686-88, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996); Perry, 482 U.S. at 492 n. 9, 107 S.Ct. 2520 (1987)) (emphasis added). Although BellSouth would have this court invalidate Aguillard as requiring special prominence of the sort specifically disallowed in Iberia, it is important to note that Aguillard does not require anything in order for a contract clause to survive adhesion analysis. Instead, Aguillard employs four factors — none of which is dis-positive, individually — as guideposts against which to measure enforceability. Under such analysis, circumstances may exist where an arbitration clause displayed with significant prominence may be declared unenforceably adhesionary, just as a provision rendered in even the most mi-nuseule type may nonetheless be found enforceable. The same can be said for the other Aguillard factors: while each is relevant, none is required.

Within this context, BellSouth’s objections to Aguillard’s considerations of prominence and mutuality are misplaced. Whereas the FAA guards against state law involving either special doctrines for arbitration clauses or general doctrines with heightened arbitration-specific standards, neither is present here. Thus, we find this ^assignment of error to be without merit.

CONCLUSION:

For the foregoing reasons, this court denies the plaintiffs’ motion to dismiss and affirms the decision of the district court. All costs are to be paid by BellSouth Mobility, Inc.

MOTION TO DISMISS DENIED. JUDGMENT OF THE TRIAL COURT AFFIRMED.

      . The amount of words actually contained on the page is in dispute. 3,960 words is the lesser of the two amounts asserted; the plaintiffs claim that the contract contains 4,182 words on the page.


source: Caselaw Access Project

author: PAINTER, Judge.

license: Public Domain

text:
    CALCASIEU PARISH SCHOOL BOARD v. LEWING CONSTRUCTION CO., INC. et al.
    No. 05-928.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 2007.
    Joseph A. Delafield, Lake Charles, LA, for Defendant-Appellant: Lewing Construction Co., Inc.
    Michael G. Gaffney, Nolan P. Lambert, New Orleans, LA, for Defendant-Appellant-Appellee: D & T Tile and Terrazzo, Inc.
    Kraig T. Strenge, Lafayette, LA, for Third Party Defendant-Appellant-Appel-lee: Lafayette Insurance Co.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

_JjThis matter is before us on remand from the Louisiana Supreme Court for reconsideration in light of that court’s decision in Supreme Services and Specialty Co., Inc. v. Sonny Greer, Inc., 06-1827 (La.5/22/07), 958 So.2d 634. The only determination made in the original opinion in this matter that is affected by the Supreme Services decision is this court’s finding that the policy of insurance issued by Lafayette Insurance Company (Lafayette) to D & T Tile and Terrazzo, Inc. (D & T) did provide coverage for the failure of the floor installed by D & T at R.W. Vincent Elementary School. Therefore, we will consider this determination in light of the Supreme Services case.

In its appeal to this court, Lafayette assigned as error the trial court’s determination that its policy provided D & T with coverage for the situation at issue. Lafayette argued that its policy excluded coverage for claims rising out of the quality of the insured’s work, cited a policy exclusion for improperly performed work, and an exclusion for “ ‘property damage’ to ‘your product’ arising out of it or any part of it,” and “ ‘property damage’ to ‘your work’ arising out of it.” However, after reviewing the policy, we found that the failure of the floor was covered under the “Products-Completed Operations” coverage. We noted that while the policy referred to that coverage, there was no separate endorsement or rider which specifically described that coverage. However, the declarations sheet of the policy showed that the coverage existed. Further, the policy stated that:

14.a. “Produets-completed operations hazard” includes all “bodily injury” and “property damage” occurring away from premises you flown or rent
(1) Products that are still in your physical possession; or
(2) Work that has not yet been completed or abandoned.
17. ‘Tour product” means:
a. Any goods or products, other than real property, manufactured, sold, handled, distributed or disposed of by:
(1) You;
19. “Your work” means:
a. Work or operations performed by you or on your behalf; and
b. Material, parts or equipment furnished in connection with such work or operations.

In our previous consideration of this case, we found that the policy purported to “both provide coverage for ‘products-completed operations hazard’ and apparently to exclude coverage of the same,’ ” under a “work-product” exclusion for improperly performed work. As a result, we interpreted the policy to provide coverage for the claims made against D & T.

While this court feels that its reasoning in the original opinion herein is correct, we are required to apply the finding of the supreme court in Supreme Services, 958 So.2d 634. In that case, the supreme court found that:

[U]nder the “work product” exclusion, the insured or its subcontractor becomes liable for damages to its work or its product caused by its faulty workmanship. Under the [produets-completed operations hazard] provision, damages, other than the faulty product or work itself, arising out of the faulty workmanship are covered by the policy.

Id. at 645.

|sThe Plaintiff claimed damages against D & T for:

(i) removal of the epoxy terrazzo floor, (ii) reimbursement of sums expended for expert investigation of the cause of the ooze and emission of the oily substance, (in) reimbursement for sums expended for remediation, removal and cleaning of the oily substance, and (iv) reimbursement for sums expended for safeguarding and efforts to prevent damage and injury to students, faculty, staff and visitors to the R.W. Vincent Elementary School.

Because the claims against D & T are for the faulty product/work, we must apply the supreme court’s ruling in Supreme Services and rule that they fall under the work product exclusion.

Therefore, that portion of the trial court judgment finding that the Lafayette policy provided coverage for the claims made against D & T is reversed. Judgment is rendered finding that the Lafayette policy excludes coverage for the claims made against D & T. The assessment of attorney’s fees against Lafayette is overturned. Our assessment of trial costs to Lafayette is also reversed. Costs t the trial level are to be paid equally by D & T and Key Resin. Costs on appeal are to be divided between Key Resin and D & T. Our previous judgment in this case will not be disturbed in any other respect.

REVERSED IN PART; AFFIRMED IN PART.

      . This court previously considered this case in Calcasieu Parish School Board v. Lewing Construction Co., Inc., 05-928, (La.App. 3 Cir 5/31/06), 931 So.2d 492.


author: IRVING, J.,

text:
    Woodroe Wilson SELLARS, as a Wrongful Death Beneficiary of and on Behalf of the Wrongful Death Beneficiaries of Nettie Mae DILL, Deceased, Appellant v. WALGREEN CO., d/b/a Walgreens, and Jane Doe, Appellees.
    No. 2006-CA-02146-COA.
    Court of Appeals of Mississippi.
    Jan. 8, 2008.
    James D. Moore, attorney for appellant.
    Robert K. Upchurch, Tupelo, Janelle M. Lowrey, attorneys for appellees.
    Before MYERS, P.J., IRVING and ISHEE, JJ.
   IRVING, J.,

for the Court.

¶ 1. Woodroe Wilson Sellars, on behalf of himself and all of the wrongful death beneficiaries of Nettie Mae Dill, filed a complaint against Walgreen Co. (Wal-greens), alleging that an unknown Wal-greens pharmacist (Jane Doe) negligently caused the death of Sellars’s mother, Dill, when the pharmacist refused to fill a prescription without payment. Walgreens moved the Lee County Circuit Court for summary judgment, which the court granted. Aggrieved, Sellars appeals and alleges that the court erred in granting summary judgment because there were genuine issues of material fact, that the court erred in granting summary judgment because submitted affidavits set out the applicable standard of care, and that the court erred in dismissing a medical malpractice claim for failure to file a certificate of consultation.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On March 8, 2005, Dill was admitted to the hospital and was released with several prescriptions for various medications. Dill and her family proceeded to a Wal-greens during the early morning hours of March 8 to fill the prescriptions. Dill was covered by Medicaid, but there was apparently a problem with the computer system at the pharmacy that prevented Walgreens from processing Dill’s Medicaid. Wal-greens told Dill’s family that the prescriptions could be filled if they were paid for directly. Since Dill and her family were unable to do so, the prescriptions were not filled. Shortly thereafter, Dill passed away. Sellars alleges that the prescriptions that Walgreens refused to fill could have saved Dill’s life if they had been given to her. Therefore, Sellars filed a complaint against Walgreens and the unknown pharmacist who refused to fill the prescriptions, alleging that Walgreens negligently caused Dill’s death.

¶ 4. During discovery, Sellars filed two affidavits. Although both affiants stated that they were familiar with the standard of care and that Walgreens breached that standard when it refused to fill Dill’s prescriptions, neither stated exactly what standard of care Walgreens owed to Dill. Sellars also did not point to any statute or case law that created a legal duty or standard of care on the part of Walgreens. Accordingly, the court granted summary judgment, finding that “[Sellars] has failed to cite a Mississippi statute, rule or case which establishes a legal duty on the part of a pharmacist to fill a prescription.” It is from that order that Sellars appeals.

ANALYSIS AND DISCUSSION OF THE ISSUES

1.Propriety of Summary Judgment

¶ 5. We apply a de novo standard of review to a lower court’s grant or denial of summary judgment. Jones v. Fluor Daniel Servs. Corp., 959 So.2d 1044, 1046(¶ 9) (Miss.2007). We look at the evidence in the light most favorable to Sellars, the party against whom summary judgment was granted. Id. We will affirm summary judgment only if there are no genuine issues of material fact and Walgreens is entitled to summary judgment as a matter of law. Id.; M.R.C.P. 56(c). Because Sellars is asserting a claim of negligence, to overcome summary judgment he must show a genuine issue regarding each of the four elements of negligence, which are:

1. A duty, or obligation, recognized by law, requiring [Walgreens] to conform to a certain standard of conduct....
2. A breach of the duty, a failure on [Walgreens] part to conform to the standard required.
3. A reasonably close causal connection between the conduct and the resulting injury.
4. Actual loss or damage....

Weathersby Chevrolet Co. v. Redd Pest Control Co., 778 So.2d 130, 133(¶ 8) (Miss.2001) (quoting Carpenter v. Nobile, 620 So.2d 961, 964 (Miss.1993)). The trial court granted summary judgment on behalf of Walgreens because Sellars did not show any genuine issue regarding Wal-greens duty and the applicable standard of care.

¶ 6. Sellars contends that the court erred in so reasoning because the two affidavits that he provided set out “the applicable duty to conform to the applicable standard of care for a reasonably prudent pharmacist under the same circumstances.” However, after reviewing the affidavits, we cannot agree.

¶ 7. One affidavit was filed by Donald McKenna, a registered and licensed pharmacist in the state of Arizona. McKenna stated that he was familiar with the facts of Dill’s case. As to the standard of care, McKenna offered only conclusory statements with no indication of the actual standard of care: “That I am familiar with the standard of care of pharmacists with respect to their duties for filling prescriptions of patients such as Ms. Dill ... the standard of care which Walgreens ... should have followed was to fill Ms. Dill’s prescriptions on the night in question.... ” However, this is not a statement of a standard of care; rather, it is simply another way of saying that Walgreens breached the standard of care. Nothing in McKenna’s affidavit addresses whether Walgreens owed a legal duty to Dill. Therefore, McKenna’s affidavit was not sufficient to overcome summary judgment.

¶ 8. Sellars’s second affidavit was filed by Dr. Michael Kalafer, a physician in California. Dr. Kalafer stated that he was familiar with Dill’s case. Dr. Kalafer did not even mention or attempt to address the applicable standard of care. Instead, Dr. Kalafer opined that Walgreens failure to fill the prescriptions was the proximate cause of Dill’s death. Dr. Kalafer’s affidavit also is insufficient to overcome summary judgment.

¶ 9. Sellars contends that Walgreens “owed a duty to act as a reasonably prudent pharmacist would in the same or similar circumstances.” Sellars then contends that the affidavits he provided “outline the standard for a professional pharmacist.” As we have discussed, the affidavits did not establish that Walgreens owed any duty to Dill, nor did they establish what the applicable standard of care would be if Walgreens did owe a legal duty to Dill. Sellars has provided no legal authority, such as a statute or case, to show that Walgreens owed any legal duty to Dill to fill her prescriptions.

¶ 10. In the absence of any issue of material fact regarding the legal duty or standard of care owed by Walgreens, summary judgment was properly granted. Sellars’s contentions to the contrary are without merit.

2. Certificate of Compliance

¶ 11. In his final contention of error, Sellars claims that the court erred in dismissing his claim “for failure to file a certificate of consultation.” Nothing in the court’s judgment indicates that it granted summary judgment because Sellars had failed to file a certificate of consultation. Rather, summary judgment was granted on the grounds already discussed. As such, this issue is irrelevant and without merit.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF LEE COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J, LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.

      . We address both Sellars’s first and second issues in this discussion, because the two are intertwined, and both address the propriety of summary judgment.

      . Walgreens contends that we should not even consider Sellars’s contentions regarding the affidavits because the affidavits were not the basis of the court’s judgment. However, in the interest of thoroughness, we examine the contents of the affidavits to ensure that nothing in them prohibited the court’s grant of summary judgment.


author: CHANDLER, J.,

text:
    In the Matter of the ESTATE OF William H. PATTON, Jr., Deceased. Stacy Fisher, Appellant v. Myrtis Dean Patton, Executrix, Appellee.
    No. 2006-CA-01637-COA.
    Court of Appeals of Mississippi.
    Jan. 8, 2008.

      Robin L. Roberts, Hattiesburg, attorney for appellant.
    John L. Jeffries, Laurel, attorney for appellee.
    Before KING, C.J., CHANDLER and CARLTON, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. On June 1, 2006, the Chancery Court of Jones County found Stacy Fisher in contempt for violating a November 21, 2005, court order. Following a hearing on sanctions, the court ordered Fisher to pay $3,045.75 in attorney’s fees to Myrtis Patton. Aggrieved, Fisher appeals and asserts the following issues:

I. She was not in contempt because the original order had no deadline.
II. She was held in constructive criminal contempt, not civil contempt.
III. The court found her in constructive criminal contempt without following the proper procedures.
IV. Myrtis Patton should not have received a judgment because she came to court with unclean hands.
V. Any violations of the court order were de minimis.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. William H. Patton, Jr. died on September 7, 2005. At the time of his death, he and his wife, Myrtis Patton, were separated and were in the process of seeking a divorce. Mr. Patton had left a will that named his wife as executrix. The children of the decedent, Stacy Fisher and William W. Patton, filed a motion to remove Mrs. Patton as executrix of their father’s estate.

¶4. In the November 21, 2005, court order disposing of the motion, Fisher and her brother were required to inventory and turn over all assets in their possession that belonged to the estate of their recently deceased father, William H. Patton. They were to return any such items to the deceased’s wife along with three vehicles that were jointly titled in her name and that of the deceased.

¶ 5. When Fisher failed to comply with the court order, Mrs. Patton filed a motion to compel on February 23, 2006. Fisher, however, remained in noncompliance when the Chancery Court of Jones County found her and her brother in contempt on June 1, 2006. Following the contempt finding, Fisher did file an inventory but only listed the three vehicles and a man’s ring.

¶ 6. On August 10, 2006, at a hearing on the issue of sanctions, Mrs. Patton sought an award of $10,000. The court ordered Fisher to pay $3,045.75, which represented the attorney’s fees that Mrs. Patton spent to enforce the original order. At the hearing on sanctions, Fisher also brought with her a bag that contained her father’s possessions that she received at the hospital when he died.

¶ 7. Prior to filing the motion to compel, Mrs. Patton traveled to Fisher’s Texas residence on January 14, 2006, in an attempt to recover the vehicles. Fisher then had a criminal trespass warning issued against Mrs. Patton because she went to Fisher’s home and was making calls to Fisher in the middle of the night. There was also some testimony that the Bankruptcy Court of Arizona had served upon Fisher a motion to compel regarding the vehicles, which was pursuant to Mrs. Patton’s pending bankruptcy proceeding.

ISSUES AND ANALYSIS

I. Whether Fisher was held in constructive criminal contempt without a proper hearing or whether she was properly found to be in civil contempt

¶ 8. We will address Fisher’s first three issues together as they involve a contempt analysis. In these points of error, Fisher argues that the chancellor found her not to be in civil contempt but in constructive criminal contempt. She then argues that because she was found to be in criminal contempt she was entitled to certain procedural safeguards, which the court did not provide. She also argues that she should not have been found in contempt at all because there was no deadline for compliance with the court order.

¶ 9. We will first look at whether the chancellor found Fisher in criminal or civil contempt. The supreme court has stated the following in regard to contempt:

Generally speaking, contempt matters are committed to the substantial discretion of the trial court which, by institutional circumstance and both temporal and visual proximity, is infinitely more competent to decide the matter than the Supreme Court. Cumberland v. Cumberland, 564 So.2d 839, 845 (Miss.1990). When dealing with contempt matters, we must first determine whether the alleged contempt is either civil or criminal in nature. If the contempt is civil, the proper standard utilized for review is the manifest error rule. Id. If the contempt is criminal, then we will proceed ab initio and will determine on the record whether the person in contempt is guilty of contempt beyond a reasonable doubt. Id. If the primary purpose of the contempt order is to enforce the rights of private party litigants or enforce compliance with a court order, then the contempt is civil. Purvis v. Purvis, 657 So.2d 794, 796 (Miss.1994). The contemnor may be jailed or fined for civil contempt; however, the contem-nor must be relieved of the penalty when he performs the required act. Id. at 796-97. Criminal contempt penalties, on the other hand, are designed to punish the contemnor for disobedience of a court order; punishment is for past offenses and does not terminate upon compliance with the court order. Common Cause of Miss. v. Smith, 548 So.2d 412, 415-16 (Miss.1989).

In re Williamson, 838 So.2d 226, 237(¶ 29) (Miss.2002).

¶ 10. In Williamson, the supreme court went on to state the following:

Direct criminal contempt involves words spoken or actions committed in the presence of the court that are calculated to embarrass or prevent the orderly administration of justice. Punishment for direct contempt may be meted out instantly by the judge in whose presence the offensive conduct was committed. ...
Unlike direct contempt, constructive contempt involves actions which are committed outside the presence of the court.... In the case of constructive criminal contempt, we have held that defendants must be provided with procedural due process safeguards, including a specification of charges, notice, and a hearing.

Id. at 237(¶ 31) (quoting Moulds v. Bradley, 791 So.2d 220, 224-25 (¶¶ 7-8) (Miss.2001)).

¶ 11. Following foregoing rules, we do not agree that the finding of contempt against Fisher was constructive criminal contempt. The primary purpose of the contempt order was to enforce the rights of Mrs. Patton to possess the property of her late husband. The contempt order served to enforce compliance with the previous court order compelling Fisher to inventory and turn over the decedent’s property.

¶ 12. Further support of the finding that this was not a criminal contempt order but an attempt to enforce Mrs. Patton’s rights is the fact that the court did not order Fisher to pay a fine to the court. Fisher was only required to pay Mrs. Patton’s attorney’s fees that she expended in pursuing this matter. Because we find that the trial court’s order was for civil contempt, we do not address Fisher’s claim that she was denied the procedural safeguards required for a finding of constructive criminal contempt.

¶ 13. In reviewing a finding of civil contempt, we will not disturb the trial court’s findings unless they were manifestly wrong, clearly erroneous, or if the court applied an erroneous legal standard. Riley v. Wiggins, 908 So.2d 893, 897(¶7) (Miss.Ct.App.2005).

¶ 14. Fisher had failed to comply with the court order to inventory and turn over all property of the estate for more than three months when Mrs. Patton filed her motion for contempt in February 2006. When the chancellor issued the June 2006 order finding Fisher in contempt it had been almost seven months since the original order, and she had yet to comply with it. It was not until a few days after the court found her in contempt that Fisher filed an inventory of the estate property in her possession. Nevertheless, what she filed with the court was not a complete inventory of the assets she possessed. At the August 2006 hearing on the issue of sanctions, she brought with her a number of her father’s items that the hospital staff gave to her following the decedent’s death, which she did not list in the inventory.

¶ 15. Ultimately, the contempt order was an attempt by the court to enforce its earlier order and to enforce Mrs. Patton’s right to receive the property of her deceased husband’s estate. We do not find it was error for the chancellor to enter a contempt order when Fisher failed to comply with the court order to compel for over eight months. We find that the chancellor properly found Fisher to be in civil contempt and ordered her to pay Mrs. Patton’s attorney’s fees. This issue is without merit.

II. Whether Mrs. Patton approached the court with unclean hands

¶ 16. Fisher next claims that the chancellor erred in granting relief to Mrs. Patton because Mrs. Patton approached the court with unclean hands. Fisher argues that Mrs. Patton’s trip to Fisher’s home in Texas, which included a late-night phone call causing Mrs. Patton to be warned for trespassing, should preclude her from enforcing the original court order.

¶ 17. While Mrs. Patton s attempt to recover the property that Fisher had been ordered to turn over was unorthodox and certainly unwelcome by Fisher, we fail to see how her actions should preclude Mrs. Patton from subsequently pursuing her claim in court. Other than cases setting forth the general principles of the unclean hands doctrine, Fisher cites no authority supporting her claim that Mrs. Patton should be prohibited from pursuing her claim.

¶ 18. The supreme court said the following about the doctrine of unclean hands:

Courts apply the maxim requiring “clean hands” only where some unconscionable act of one coming for relief has immediate and necessary relation to the equity that he seeks in respect of the matter in litigation. They do not close their doors because of plaintiffs misconduct, whatever its character, that has no relation to anything involved in the suit, but only for such violations of conscience as in some measure affect the equitable relations between the parties in respect of something brought before the court for adjudication.

Pierce v. Heritage Props., Inc., 688 So.2d 1385, 1391 (Miss.1997) (quoting Keystone Driller Co. v. General Excavator Co., 290 U.S. 240, 245, 54 S.Ct. 146, 78 L.Ed. 293 (1933)). While the complained of actions of Mrs. Patton were directed at the property that was at issue, her actions were not so unconscionable and had no effect whatsoever upon the property. Accordingly, we do not find that this was a case in which the unclean hands doctrine should have been applied. This issue is without merit.

III. Whether violations of the order were de minimis

¶ 19. In her last point of error, Fisher invokes the principle of de minimis non curat lex. She argues that, according to this principle, the interest sacrificed in this case is too great for such a small consideration. According to Fisher, her father’s items that she possessed were de minimis in comparison to the punitive sanctions that the court levied against her.

¶ 20. In making her argument, Fisher overemphasizes the sanctions against her and undervalues the offenses that led to those sanctions. Firstly, the sanctions were not punitive as Fisher alleges but compensatory. Mrs. Patton initially sought $10,000 to cover her attorney’s fees and other expenses she incurred in attempting to secure the estate property. The judge only awarded her $3,043.75 for attorney’s fees. Furthermore, in support of her argument, Fisher only lists her father’s items she received from the hospital and labels them de minimis without mentioning the ring and the three cars that were also in her possession. We do not find any merit to this argument.

¶ 21. THE JUDGMENT OF THE CHANCERY COURT OF THE SECOND JUDICIAL DISTRICT OF JONES COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.

      . The order imposing sanctions found that William W. Patton never had any assets of the estate in his possession, so no sanctions were granted against him.


author: GRIFFIS, J.,

text:
    Ne-Cole Roma AUSTIN, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CA-01120-COA.
    Court of Appeals of Mississippi.
    Jan. 8, 2008.

      Thomas E. Payne, Biloxi, attorney for appellant.
    Office of the Attorney General, by Jose Benjamin Simo, attorney for appellee.
   MODIFIED OPINION ON MOTION FOR REHEARING

GRIFFIS, J.,

for the Court.

¶ 1. Ne-Cole Roma Austin’s motion for rehearing is denied. The Court’s original opinion is withdrawn, and this modified opinion is substituted in lieu thereof.

¶ 2. Ne-Cole Roma Austin appeals the Circuit Court of Harrison County’s dismissal of her motion for post-conviction collateral relief. Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 3. In August of 2003, Austin was charged with felony child abuse of her five month-old-son, who was diagnosed with Shaken Baby Syndrome. She subsequently pled guilty and was sentenced to fifteen years in the custody of the Mississippi Department of Corrections. On November 19, 2004, eight months after her guilty plea and sentence, her new attorney referred Austin to Biloxi clinical psychologist, Julie D. Teater, Psy. D., for an evaluation. The evaluation was to assess Austin’s level of psychological functioning and personality traits. After a two-and-one-half hour interview with Austin, Dr. Teat-er diagnosed Austin with borderline personality disorder and a major depressive disorder. Based upon this interview, the psychologist opined that Austin suffered from “diminished capacity” at the time she injured her infant.

¶ 4. In March of 2005, Austin, acting through different counsel from her trial counsel, filed a motion for post-conviction collateral relief. She asserted that her sentence was disproportionate to other sentences handed down for the same or similar crimes. Attached to her motion was her affidavit in which she said that she pleaded guilty under the assumption that the State’s recommendation of ten years in prison would be her sentence. She stated that even though she pleaded guilty to the felony child abuse charge, she “steadfastly” denied that she had any intent to hurt her infant son but did so because she was sick and emotionally distraught at the time of his injury. She asked that her sentence be reduced due to her illness and incapacity. The psychologist’s evaluation of Austin was attached to her affidavit.

¶ 5. In an order filed on May 10, 2005, the Circuit Court of Harrison County dismissed Austin’s motion. The court noted that the relief which Austin sought through the motion for post-conviction collateral relief was a reconsideration of her sentence which she had previously sought in a motion to reconsider sentence which was heard and denied by the court in an April 5, 2004 order. The court concluded that “[Austin] had the option of appealing the order, her failure to do so does not entitle her to a second look using the post-conviction relief mechanism.” The trial court cited Mississippi Code Annotated Section 99-39-21(1) (Rev.2007) and Carr v. State, 873 So.2d 991, 1002 (¶23) (Miss. 2004) for the proposition that post-conviction collateral relief is limited to those facts and matters which could not or should not have been brought at trial or on direct appeal.

¶ 6. On appeal, Austin claims that her sentence was disproportionate, and asserts that she received ineffective assistance of counsel because her defense counsel failed to have her undergo a psychological evaluation, which she claims would have shown that she suffered from borderline personality disorder and major depressive disorder. She also claims that the trial court erred when it did not consider her mental state as a mitigating factor in sentencing. Thus, Austin argues that because she was suffering from a serious mental illness at the time of the crime she “may” not have had the requisite intent to commit felony child abuse. Further she argues that the trial court did not consider her psychological and mental state as a mitigating factor at the time of her sentencing.

STANDARD OF REVIEW

¶ 7. Our standard of review on a denial of a motion for post-conviction relief is well-established. We will not reverse the trial court unless we find that the court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150 (¶ 3) (Miss.Ct.App.2002) (citing Kirksey v. State, 728 So.2d 565, 567 (Miss.1999)).

ISSUES AND ANALYSIS

I. WHETHER AUSTIN WAS AFFORDED EFFECTIVE ASSISTANCE OF COUNSEL.

¶ 8. It is well settled that issues not raised below may not be raised on appeal. “Questions will not be decided on appeal which were not presented to the trial court and that court given an opportunity to rule on them. In other words, the trial court cannot be put in error, unless it has had an opportunity of committing error.” Stringer v. State, 279 So.2d 156, 158 (Miss.1973); Jones v. State, 915 So.2d 511, 513 (¶ 7) (Miss.Ct.App.2005). Austin concedes that the ineffective counsel claim was not raised with the court below. Therefore, we find that this suggestion of error is procedurally barred.

II. WHETHER THE TRIAL COURT ERRED IN FAILING TO CONSIDER AUSTIN’S MENTAL CONDITION AS A MITIGATING FACTOR IN SENTENCING.

¶ 9. Austin’s second issue claims that the trial court erred when it failed to consider her mental condition as a mitigating factor when sentencing her. In her motion, Austin attached her own affidavit in which she said she did not intend to , injure her young son, but that she was just emotionally overwhelmed. Also, Austin attached the clinical psychologist’s evaluation of Austin which was conducted eight months after she was sentenced. The psychologist opined that Austin suffered from “diminished capacity” at the time she injured her young son because she suffered from mental problems.

¶ 10. The purpose of a post-conviction proceeding is to bring forth facts to the trial court which were not known at the time of the judgment. Carr, 873 So.2d at 997 (¶ 3). The proceeding is limited to those facts and matters which could not or should not have been brought at trial or on direct appeal. Id. Post-conviction collateral relief is available for any prisoner who claims that there is evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice. Miss. Code Ann. § 99-39-5(l)(e) (Rev.2007). The supreme court has held that:

Newly discovered evidence warrants a new trial if the evidence will probably produce a different result or verdict; further, the proponent must show that the evidence “has been discovered since the trial, that it could not have been discovered before the trial by the exercise of due diligence, that it is material to the issue, and that it is not merely cumulative, or impeaching.”

Brewer v. State, 819 So.2d 1169, 1172 (¶ 10) (Miss.2002) (citing Ormond v. State, 599 So.2d 951, 962 (Miss.1992)).

¶ 11. While evidence of Austin’s mental state at the time of the crime is material, Austin’s argument must fail because she has not shown that the evidence was unavailable nor that it could not have been discovered through due diligence before trial. In fact, the trial court ruled that Austin had tried for a sentence reduction in her motion to reconsider sentence which the court denied and which she did not appeal. The judge said that the PCR was just a rehash of the earlier modification motion and an attempt to get “a second look” at the issue.

¶ 12. Austin bears the burden to prove by a preponderance of the evidence that she is entitled to the requested post-conviction relief. Miss.Code Ann. § 99-39-11(1) (Rev.2007). We find no reason why the mitigating evidence could not have been discovered previously and Austin does not argue why it could not have been discovered before. Instead, Austin just argues that it was not. It would be pure speculation on the part of this Court to find that the mental health evaluation of Austin would have affected the sentence imposed by the trial court. She pleaded guilty to felony child abuse under Mississippi Code Annotated Section 97-5-39(2) and was sentenced within the statutory limits. It is well settled that sentencing is within the sole discretion of the trial court, and we will not reverse a sentence where it is within the limits prescribed by statute. Gibson v. State, 731 So.2d 1087, 1097 (¶ 28) (Miss.1998) (citing Hoops v. State, 681 So.2d 521, 537 (Miss.1996)).

¶ 13. We, therefore, find that the motion for post-conviction relief was properly dismissed.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY DISMISSING THE MOTION FOR POST-CONVICTION COLLATERAL RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.

      . We note that the motion to reconsider sentence and the ruling thereon were not made a part of the appellate record. It is the responsibility of the appellant to designate the record pursuant to Rule 10(b) of the Mississippi Rules of Appellate Procedure in a manner sufficient to allow this Court to review the appellant’s issues. Sanghi v. Sanghi, 759 So.2d 1250, 1252 (¶ 8) (Miss.Ct.App.2000) (citing Cossitt v. Alfa Ins. Corp., 726 So.2d 132, 135 (¶ 13) (Miss.1998)). In the absence of anything in the record to the contrary, we must presume that the trial court acted properly. Moawad v. State, 531 So.2d 632, 635 (Miss.1988).


author: MYERS, P.J.,

text:
    Adam Troy PETERS, Appellant v. STATE of Mississippi, Appellee.
    No. 2007-KA-00217-COA.
    Court of Appeals of Mississippi.
    Jan. 8, 2008.

      George T. Holmes, Jackson, attorney for appellant.
    Office of the Attorney General by Desh-un Terrell Martin, attorney for appellee.
    Before MYERS, P.J., GRIFFIS and CARLTON, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Adam Troy Peters was convicted as a habitual offender of armed robbery and was sentenced to serve twenty-five years in the custody of the Mississippi Department of Corrections. Peters appeals his conviction and asks for review of whether the trial court erred in refusing his motion to identify a confidential informant. Peters also asks for review of whether the trial court erred in denying his motion for a new trial. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. On the evening of September 19, 2001, two employees working at a Subway restaurant in Columbia, Mississippi were robbed at gunpoint. A confidential informant’s tip lead police to open an investigation against Adam Troy Peters. An investigating officer testified that, according to the tip, Peters was seen getting in a car with two others, looking nervous and shaking near the scene of the robbery. Additionally, the two victims of the crime made a positive identification of Peters in a physical lineup. At the beginning of trial, Peters requested that the State reveal the identity of their confidential informant. However, the trial judge overruled Peter’s motion finding that the confidential informant was not going to testify at trial, did not witness the actual robbery, and was not a material witness to the robbery. Peters moved for a directed verdict at the close of trial, and the trial judge denied the motion. Peters was subsequently convicted of armed robbery in the Circuit Court of Marion County, Mississippi.

STANDARD OF REVIEW

¶ 3. This Court reviews exclusion of evidence under an abuse of discretion standard. Burton v. State, 875 So.2d 1120(116) (Miss.Ct.App.2004). “Under this standard, this Court will affirm unless there is a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon weighing of relevant factors.” Caracci v. Int’l Paper Co., 699 So.2d 546, 556 (Miss.1997).

¶ 4. Further, this Court will only overturn a circuit court’s denial of a motion to grant new trial if the circuit court abused its discretion in denying the motion. Dilworth v. State, 909 So.2d 731, 737(¶20) (Miss.2005). “A motion for a new trial goes to the weight of the evidence.” Jenkins v. State, 913 So.2d 1044, 1052(¶ 25) (Miss.Ct.App.2005). The evidence will still be viewed in the light most favorable to the trial court’s verdict. Id. at 737(¶ 21). Additionally, “[o]nly in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal.” Montana v. State, 822 So.2d 954, 967-68(¶ 61) (Miss.2002).

DISCUSSION

¶ 5. Peters appeals the denial of his motion to reveal the identify of the confidential informant. Peters argues that the trial court erred in denying his motion because the confidential informant was a material witness. Peters claims as a result of the trial court’s failure to identify the confidential informant, his conviction should be reversed. Peters also appeals the trial court’s denial of the motion for a new trial, asserting that the two victims’ testimony at trial and identification at the physical lineup were unreliable and inconsistent. Further, Peters argues since the victims’ testimony and identification are unreliable, that his confession to the robbery, when viewed alone, does not carry enough weight to support his conviction and a new trial is warranted.

I. WHETHER THE TRIAL COURT ERRED IN DENYING THE MOTION TO REVEAL THE CONFIDENTIAL INFORMANT

¶ 6. Here, Peters argues that the trial court abused its discretion in failing to reveal the identity of the confidential informant. Peters claims his defense was hindered since he was not allowed to confront and cross-examine a person he alleges was an eyewitness to the crime. The State argues that the confidential informant was not a material witness. The determination of whether to reveal the identity of the witness was within the discretion of the trial court, which denied the request. The State argues that since neither side would be calling the confidential informant at trial, the issue is without merit.

¶ 7. The record from the trial court reflects several problems with Peters’s argument. First, one issue in dispute at trial was whether the witness was material. A material witness is one who “must have been a participant in the crime or an eye witness [sic] to the offense.” Breckenridge v. State, 472 So.2d 373, 377 (Miss.1985). According to the record, the trial court determined that the confidential informant was not material, but merely saw Peters in an area near the Subway restaurant at the time of the robbery.

¶ 8. Second, while Peters requested the identity of the confidential informant to be revealed, neither the State nor Peters indicated they intended on calling the confidential informant at trial when questioned by the court. As such, the trial court determined that it was unnecessary to reveal the informant’s identity. “[D]is-closure of the identity of an informer, who is not a material witness to the guilt or innocence of the accused, is within the sound discretion of the trial court.” Corry v. State, 710 So.2d 853, 858(¶ 17) (Miss.1998) (citing Strode v. State, 231 So.2d 779 (Miss.1970)). Further, “confrontation and cross-examination are the very rights which require disclosure of material witnesses in the first place.” Corry, 710 So.2d at 859(¶ 18).

¶ 9. There is no indication in the record that the confidential informant saw any part of the actual crime or was involved in the crime itself. The details supplied by the informant in the case simply placed Peters in the area at the time of the robbery, entering a waiting car, while appearing nervous. This helped spark an investigation by the police. Additionally, according to the record, the confidential informant was not being called to testify by either side. From this Court’s review of the record, we cannot find that the trial court erred in denying the request to reveal the confidential informant and we therefore find this issue is without merit.

II. WHETHER THE TRIAL COURT ERRED IN DENYING THE MOTION FOR NEW TRIAL

¶ 10. Peters argues that his motion for a new trial should have been granted for two reasons. First, Peters challenges the testimony from the two victims of the robbery, Christy Powell and Josh King. Peters argues that their testimony was inconsistent and unreliable. The State asserts that the weight of the evidence supports the verdict and the trial judge did not abuse his discretion in refusing the motion for a new trial. The State posits that the jury had the benefit of hearing the evidence and witnesses at trial and its verdict should stand. The State further argues that the evidence presented at trial, along with reasonable inferences drawn by the jury, was not against the overwhelming weight of the evidence. The State points to the valid confession, the testimony of the two victims identifying Peters as the robber, and the confidential informant’s tip placing him near the scene as further evidence that the jury’s verdict was sound.

¶ 11. We find that there was sufficient weight in the evidence against Peters so as to allow the verdict against him to stand. Although the two victims initially did not identify Peters as the suspect in the first photographic lineup, they later separately and individually identified Peters in a physical lineup. Further, Peters confessed to the robbery in a valid confession, which was admitted into evidence at trial. Additionally, a confidential informant placed Peters in an area near the Subway restaurant at the time of the robbery. In this case, the evidence presented at trial was not “so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Montana, 822 So.2d at 967-68(¶ 61). As such, this Court cannot say the trial judge erred in denying Peters’s motion for a new trial. We accordingly affirm.

If 12. THE JUDGMENT OF THE CIRCUIT COURT OF MARION COUNTY OF CONVICTION OF ARMED ROBBERY AS A HABITUAL OFFENDER AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND TO PAY RESTITUTION OF $500 TO SHAH-RUKH SHEIKH, OWNER OF SUBWAY SANDWICH AND SALADS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MARION COUNTY.

KING, C.J., LEE, P.J., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.