author: IRVING, J.,

text:
    Hance Chatavius WEST, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-01353-COA.
    Court of Appeals of Mississippi.
    Nov. 20, 2007.

      Benjamin Allen Súber, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before LEE, P.J., IRVING and ROBERTS, JJ.
   IRVING, J.,

for the Court.

¶ 1. Following a jury trial, Hance Chata-vius West was convicted of aggravated assault and felony failure to stop and was sentenced by the Washington County Circuit Court to twenty years for the assault and five years for the failure to stop, with the sentences to run consecutively to one another, for a total of twenty-five years in the custody of the Mississippi Department of Corrections. Aggrieved, West appeals and asserts that the trial court erred in not granting him a continuance due to a discovery violation by the State and in allowing evidence of a prior bad act.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On January 8, 2006, Algea Clay drove her brother, Laurence Clay, to a store in Greenville, Mississippi, so that he could get some beer before going to a football party. When Algea and Laurence arrived at the store, West and some other men were standing outside. Laurence had been dating West’s sister, Odelia West, on and off for eight years and had recently had a falling out with her. Therefore, there was some prior negative history between West and Laurence when Laurence arrived at the store. In fact, evidence was introduced at trial that West had assaulted Laurence with a beer bottle in December 2005 after an argument between Laurence and Odelia.

¶ 4. There was conflicting testimony as to whether Laurence made it into the store to purchase the beer, or whether he was interrupted before doing so. In either case, both Laurence and Algea testified that, after seeing Laurence and possibly bumping into him, West went to his car and retrieved a handgun. When Laurence saw West with the gun, he began heading to Algea’s car and was near her car when he requested that West not shoot because Laurence’s young nephew was in the car. Sometime after Laurence asked West not to shoot at the car, West fired two shots at Laurence, who fled on foot. Laurence testified that he ran across a field next to a nearby church and that West chased after him the entire way, firing shots as they ran. Laurence estimated that West fired eight or nine shots in total, the second to last of which hit Laurence in the back as he fled.

¶ 5. As Laurence was fleeing from West, Agea started her car and drove in an attempt to help Laurence. Laurence testified that he encountered Agea not long after he was shot as he continued to run away from West, who apparently had stopped pursuing Laurence. At more or less the same time as he met up with his sister, Laurence also encountered Washington County Sheriff Milton Gaston, who was on his way home from church. Laurence and Agea told Sheriff Gaston what had happened, and the sheriff told Agea to take Laurence to the hospital.

¶ 6. Shortly after Laurence and Agea encountered Sheriff Gaston, Greenville police officers spotted an individual, West, who matched the descriptions given by Laurence and Agea. By the time the officers located West, he had gotten in his vehicle and was no longer on foot. However, when the officers attempted to pull West over, he fled from the officers. There was evidence that West was driving at speeds in excess of eighty to ninety miles per hour as he fled from police. Eventually, West exited his vehicle and attempted to run away from the officers on foot. West was eventually apprehended and taken into custody.

¶ 7. Both Laurence and Algea testified at trial, as did law enforcement who had either been involved in the apprehension of West or in taking statements from Laurence and Algea. West did not testify or offer any other witnesses on his behalf. The jury found West guilty of both aggravated assault and of felony failure to stop.

¶ 8. Additional facts, as necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Discovery Violation

¶ 9. West contends that the court erred in refusing to grant him a continuance after the State provided copies of Laurence’s medical records for the first time on the morning of trial. Although West frames his argument in terms of a discovery violation, he is also clearly contending that the court erred in failing to grant him a continuance as a result of the violation. For the sake of thoroughness, we address each contention separately.

Discovery Violation

¶ 10. As West correctly notes, Rule 9.04(1) of the Uniform Rules of Circuit and County Court provides the procedure that courts should use when confronted with a discovery violation by the State. According to the rule:

If during the course of trial, the prosecution attempts to introduce evidence which has not been timely disclosed to the defense as required by these rules, and the defense objects to the introduction for that reason, the court shall act as follows:
1. Grant the defense a reasonable opportunity to ... examine the newly produced documents, photographs or other evidence; and
2. If, after such opportunity, the defense claims unfair surprise or undue prejudice and seeks a continuance or mistrial, the court shall, in the interest of justice and absent unusual circumstances, exclude the evidence or grant a continuance for a period of time reasonably necessary for the defense to meet the non-disclosed evidence or grant a mistrial.

(emphasis added). Despite West’s contentions, the trial court followed this procedure. When the defense objected to the State’s use of Laurence’s medical records, the court granted West and his attorneys a twenty-five minute continuance to review the materials. Our review of the record indicates that West did not thereafter claim unfair surprise or undue prejudice as a result of the late disclosure. In the absence of such an assertion, the court was under no obligation to sua sponte exclude the evidence. Any assertion of error on the court’s part for failing to follow the procedure in Rule 9.04 is clearly without merit.

Failure to Grant a Continuance

¶ 11. We note at the outset that, as the State points out, West’s posttrial motions did not include any mention of the court’s failure to grant a continuance, but addressed only the alleged discovery violation which we have already discussed. The State urges us to find that West’s first issue is procedurally barred on this ground. However, West clearly complained of the short period of time that the court gave him to look at the medical documents in the context of the State’s discovery violation. Therefore, we find that West’s posttrial claim of a discovery violation is sufficient for us to address any error in failing to grant West a longer continuance to review the documents.

¶ 12. West did not request an additional continuance beyond the twenty-five minutes initially granted by the court. Furthermore, a much greater period of time than twenty-five minutes passed between the initial objection and Laurence’s testimony. Therefore, West and his attorneys had much longer than twenty-five minutes to review the records before having any use for them. West and his attorneys have also had a significant amount of time since the trial to review the records, but the only prejudice claimed by West on appeal is that he would have been able to hire an expert to review evidence in the records that indicated that Laurence had marijuana in his system when he was tested at the hospital. However, this part of the medical records was apparently clear enough to West’s attorney, who cross-examined Laurence regarding the presence of marijuana in his system on the day in question. Apparently, the time given by the court was sufficient for West’s attorney to extract this information from the medical records, and West does not state what additional information an expert would have been able to glean from the records.

¶ 13. We find that the time given to West was reasonable and he has been unable to show any prejudice resulting from the trial court’s failure to sua sponte grant him additional time to review the records. We find no error on the court’s part for failing to sua sponte grant West an additional continuance.

2. Admission of Prior Bad Act

¶ 14. West contends that the court erred in admitting evidence of the prior incident where he allegedly threw a beer bottle at Laurence. We review the admission of the evidence to see if the trial court abused its discretion in admitting Laurence’s testimony about the prior incident. Carter v. State, 953 So.2d 224, 229(¶ 11) (Miss.2007).

¶ 15. Rule 404(b) of the Mississippi Rules of Evidence states: “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” The court allowed testimony about the prior incident on the basis that it showed motive. West contends that this ruling was in error, arguing that “[Laurence] being knocked out would not lead one to act out against him. [Laurence] would have a motive to act against West, if the incident in the lounge was true, not the other way around.” West further contends: “This evidence was admitted strictly to show prejudice against West and to show that he acted in conformity therewith on a particular occasion, not to show motive.”

¶ 16. If the only information about the prior incident that had been relayed to the jury was that West hit Laurence with a beer bottle, West’s argument above would be far more compelling. However, this was not the only information that was relayed. The entire incident can be roughly summarized: (1) Laurence had been dating West’s sister on and off for eight years; (2) at some point before the December bottle incident, Laurence accused West’s sister of giving him a sexually-transmitted disease (STD); (3) West’s sister confronted Laurence at the club in December; (4) at some point, West’s sister went to get West so that he could confront Laurence as well; (5) Laurence testified that West then came over to Laurence and attempted to engage him in an argument; and (6) Laurence then attempted to leave, at which time he was hit by a beer bottle and was temporarily knocked out. Clearly this incident goes to show West’s motive in assaulting Laurence: namely, that Laurence had accused West’s sister of having an STD and of transmitting that STD to Laurence. Laurence testified: “Well, they both came to confront me. They was both talking crazy or whatever.... He told me don’t disrespect his sister.” (emphasis added). The incident helped establish that West had a prior animus against Laurence. We cannot find that the court abused its discretion in admitting testimony about the prior incident.

¶ 17. West also contends that the evidence was inadmissible under Rule 403 of the Mississippi Rules of Evidence, which reads: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” West contends that the court erred in not conducting a Rule 403 balancing test after West objected to the admission of the incident.

¶ 18. Although the Mississippi Supreme Court has stated that a balancing test should be conducted once there has been an objection to the evidence, the court has also clarified that failure to do so does not necessitate reversal of a case:

When reviewing evidentiary determinations, this Court necessarily accords broad discretion to our trial courts. In Jenkins v. State, 507 So.2d 89 (Miss. 1987), we explored the reasoning behind our deference and stated that, as a matter of institutional necessity, we must accord certain leeway to the circuit court. Id. at 93. Moreover, the weighing and balancing task required by Rule 403 is not one susceptible of mechanical performance as it asks only that a judge rely on his/her own sound judgment.
Id. As such, the law gives the trial court discretion. Id.
In asserting that his due process rights were violated when the trial court judge failed to perform an on-the-record Rule 403 balancing test, Jones has misapprehended the nature of our rules of evidence and the discretion afforded to trial judges when applying these rules. Accordingly, while we clearly interpret the rules of evidence as requiring that all otherwise admissible evidence be “filtered” through the balancing test set forth in Rule ⅛03, we do not interpret this requirement to be a regimented procedure that must be explicitly performed on pain of reversal. Though this Court certainly expects trial judges to have considered Rule 403 in making their evi-dentiary rulings, we certainly do not predicate the soundness of these determinations on the express use of magic words. From a practical standpoint, even though this issue in today’s case was initially addressed at a motion hearing, quite often the trial judge is required to make Rule 403 rulings from the bench with a witness on the stand, a jury in the box, and a lawyer on the floor making an objection. It follows that our review depends on the evidence and not the judge, and while a judge’s on-the-record analysis is recommended as it serves to fortify the judge’s position for purposes of review, the lack of such analysis is harmless unless we deem the evidence to be patently prejudicial. The judge’s failure to perform an on-the-record Rule 403 analysis in no way affected Jones’s rights. Moreover, the evidence of the September 6 incident was properly admitted as its probative value was not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Miss. R. Evid. 403.

Jones v. State, 920 So.2d 465, 475-76 (¶¶ 33-34) (Miss.2006) (emphasis added).

¶ 19. Although the court here failed to conduct an on-the-record balancing test, the failure to conduct the test did not affect West’s rights. Like the Jones court, we conclude that the incident here “was properly admitted as its probative value was not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” The probative value of the evidence was extremely significant, as it gave meaning to what would have otherwise been a random act of violence. In addition, the court here sua sponte issued a limiting instruction that told the jury not to consider the evidence as evidence of West’s character, but only to consider the evidence as it related to West’s motive.

¶ 20. West also complains that Laurence testified that he did not personally see West throw the bottle, but was told later that it was West who had thrown the bottle at him. We find that the details and specifics of the incident were well within Laurence’s personal knowledge. That he could only confirm that West had thrown the bottle after the incident because the bottle temporarily rendered him unconscious is of no help to West. Furthermore, given the overwhelming weight of the evidence against West, any error in admitting Laurence’s testimony about the prior incident is harmless. Tate v. State, 912 So.2d 919, 926(¶ 18) (Miss.2005).

¶ 21. This issue is also without merit.

¶ 22. THE JUDGMENT OF THE WASHINGTON COUNTY CIRCUIT COURT OF CONVICTION OF AGGRAVATED ASSAULT IN COUNT I AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND CONVICTION OF FELONY FAILURE TO STOP IN COUNT II AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, SAID SENTENCE TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT I, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WASHINGTON COUNTY.

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

      . Miss.Code Ann. § 97-9-72 (Rev.2006).


source: Caselaw Access Project

license: Public Domain

text:
    Larry M. MOORE, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-02159-COA.
    Court of Appeals of Mississippi.
    Nov. 20, 2007.

      Glenn S. Swartzfager, Jackson, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before LEE, P.J., IRVING and ROBERTS, JJ.
   IRVING, J.,

for the Court.

¶ 1. Following a jury trial, Larry Moore was found guilty of the sale of cocaine, a controlled substance, and was sentenced by the Winston County Circuit Court to a term of twelve years in the custody of the Mississippi Department of Corrections, with four years suspended and five years of post-release supervision, for a total of eight years to serve. Aggrieved, Moore appeals and alleges that the court erred in refusing one of his instructions and in denying his motion for a new trial.

¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 3. On March 10, 2005, David Wiley was working as an undercover drug purchaser for the Mississippi Bureau of Narcotics when he purchased forty dollars worth of cocaine on Winston Street in Louisville, Mississippi. A. videotape with audio was made of the buy, and Moore was eventually identified by a Louisville police officer as the individual on the tape. At .trial, the footage was played for the jury, and Wiley testified that Moore was the individual from whom he had purchased the cocaine. Moore and his mother testified on his behalf, essentially stating that Moore was not the individual in the video footage. Thereafter, the jury found Moore guilty.

¶ 4. Additional facts, as necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Denial of Jury Instruction

¶ 5. Moore claims that the court erred in denying his proposed jury instruction D-l, which would have informed the jury that it could not consider Moore’s indictment as evidence of his guilt. The court denied the instruction, reasoning that it was covered by one of the court’s instructions. A review of the court’s instructions, however, reveals that the court’s instructions never told the jury that it could not consider the indictment as evidence. “A defendant is entitled to have jury instructions given which present his theory of the case; however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Chandler v. State, 946 So.2d 355, 360(¶ 21) (Miss.2006) (quoting Ladnier v. State, 878 So.2d 926, 931(¶ 20) (Miss. 2004)).

¶ 6. There is no doubt that the court should have granted an instruction that informed the jury that it could not consider the indictment as evidence of Moore’s guilt. However, we find that this error was harmless in light of the court’s instructions to the jury during voir dire:

Okay. The grand jury determines whether they think a crime has been committed and if so, is there enough evidence for there to be a trial against some individual. But the indictment is absolutely no evidence of guilt whatsoever. You must not consider it as evidence of guilt. Everybody understand that?
Okay. Is there anybody here that feels just because Mr. Moore has been indicted that he must be guilty of something? Will you all tell me then that you will presume that he is innocent until such time as the State proves his guilt beyond a reasonable doubt?
Okay. In this case the indictment is alleged — the indictment alleges that....

(emphasis added). The jury was clearly told during voir dire that it could not consider the indictment as evidence of Moore’s guilt. Therefore, the court’s failure to grant Moore’s proposed instruction is harmless error.

¶ 7. As support, Moore cites Rainer v. State, 438 So.2d 290 (Miss.1983). In Rainer, the Mississippi Supreme Court reversed and remanded a defendant’s conviction after it determined that the court had erred in not allowing an instruction that would have informed the jury that an indictment is not evidence. However, there is no indication in Rainer that the court informed the jury of that fact during voir dire. This clearly distinguishes the present case from Rainer. The court here informed the jury, albeit during voir dire, that it could not consider the indictment as evidence of Moore’s guilt. Rainer is of no help to Moore.

¶ 8. The court’s failure to grant Moore’s proposed instruction was merely harmless error, which does not necessitate a reversal of Moore’s conviction.

2. Weight of the Evidence

¶ 9. Moore contends that his conviction is against the overwhelming weight of the evidence presented at trial. His contention has been preserved by his motion for a new trial, which the court denied. Moore is entitled to relief only if the court abused its discretion in denying him a new trial. We will reverse and remand for a new trial only if allowing his conviction to stand would “sanction an unconscionable injustice.” Taggart v. State, 957 So.2d 981, 987(1111) (Miss.2007) (quoting Ginn v. State, 860 So.2d 675, 685(¶31) (Miss.2003)).

¶ 10. Moore first attacks Wiley’s credibility, arguing that Wiley’s identification of Moore was questionable. Wiley testified that he did not recognize Moore when he bought the drugs from Moore, and that he knew him only as “Little Moore.” Wiley went on to testify, however, that about two weeks after the transaction, he recalled that he had gone to school with Moore. For whatever reason, Wiley did not contact the police with this information. Instead, a Louisville police officer identified Moore after being shown the video footage sevei-al months after the buy.

¶ 11. Wiley provided no explanation as to why he chose not to go to the police after he recalled Moore’s identity. Regardless, this oddity was probed by Moore’s attorney during cross-examination. Issues regarding the credibility of a witness’s testimony are properly resolved by the jury:

Jurors are permitted, and indeed have the duty to resolve the conflicts in the testimony they hear. Gandy v. State, 373 So.2d 1042, 1045 (Miss.1979). Any conflicts in the testimony of witnesses is the province of the jury. Groseclose v. State, 440 So.2d 297, 300 (Miss.1983). Who the jury believes and what conclusions it reaches are solely for its determination. As the reviewing court, we cannot and need not determine with exactitude which witness(es) or what testimony the jury believed or disbelieved in arriving at its verdict. It is enough that the conflicting evidence presented a factual dispute for jury resolution. Id. at 300.

Stephens v. State, 911 So.2d 424, 436(¶ 38) (Miss.2005). The jury was entitled to believe or disbelieve Wiley as it saw fit.

¶ 12. Moore also points to the quality of the video footage and his assertion that he does not wear “doo rags” and does not own any jewelry like the jewelry shown in the video. Moore further points to the testimony of his mother, who testified that it was not her son that was shown in the video. Moore questions: “Who would know better to recognize an individual than one’s own mother?”

¶ 13. Both Moore and Moore’s mother had a significant motivation to claim that it was not Moore in the video footage. The jury heard the testimony of Moore and his mother, as well as the testimony of law enforcement and Wiley, who actually bought the drugs from Moore. During the trial, Moore was asked to stand next to a still frame of the seller in the videotape so that the jury could compare his appearance to the appearance of the seller in the footage.

¶ 14. At some point, the seller in the video makes a reference to himself as being someone’s “uncle.” Evidence was introduced that Moore was the uncle of another individual who frequented the same location and who also was involved with drugs. All of this evidence was presented to the jury, who resolved any conflicts and determined that Moore was in fact the person shown in the video footage of the buy. Allowing Moore’s conviction to stand does not sanction an unconscionable injustice, and the court did not err in refusing to grant Moore a new trial.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF WINSTON COUNTY OF CONVICTION OF SALE OF COCAINE AND SENTENCE OF TWELVE YEARS, WITH FOUR YEARS SUSPENDED AND FIVE YEARS OF POST-RELEASE SUPERVISION, FOR A TOTAL OF EIGHT YEARS TO SERVE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WINSTON COUNTY.

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

      . During direct examination, Wiley testified:
      Q. But you have seen Mr. Moore on Winston Street before.
      A. Yes, sir.
      Q. And, and you had been introduced to him at that time.
      A. As Little Moore.
      Q. Little Moore.
      A. The guy before that I was over there for was his uncle, introduced him as his uncle.
      Q. Who was that?
      A. Reggie. Reggie Moore.
      Q. Reggie Moore introduced Larry Moore to you as Little Moore, that that was his uncle.
      A: Yes.


author: SMITH, Justice.

text:
    MEDICAL SERVICES, LLC v. GMW & Company, Inc.; Medical Services, LLC v. Michael Waldheim and Warren Watkins.
    1041753 and 1041762.
    Supreme Court of Alabama.
    Dec. 15, 2006.

      L. Graves Stiff III, Elise M. Frohsin, and W. Drake Blackmon of Starnes & Atchison, LLP, Birmingham, for appellant.
    Edward P. Meyerson, Susan S. Wagner, and Donald J. Nettles of Baker, Donelson, Bearman, Caldwell & Berkowitz, Birmingham, for appellees.
   SMITH, Justice.

Medical Services, LLC, appeals from an order of the trial court compelling it to arbitrate its claims against two architects, Michael Waldheim and Warren Watkins, and GMW & Company, Inc. (“GMW”), in these actions involving the renovation of a building. In case no. 1041753, we affirm; in case no. 1041762, we affirm in part, reverse in part, and remand.

Facts and Procedural History

These cases arise out of a contract to renovate a building. In 2003, Medical Services hired Waldheim to evaluate a possible site for use as an ophthalmological-serviees facility. Medical Services alleges that, based on Waldheim’s representations, Medical Services entered into a construction contract with GMW, a construction firm apparently owned by Waldheim, to renovate a building selected by Waldheim for use as the ophthalmological-services facility. During the construction project, Watkins was employed by GMW in some capacity that is unclear.

The contract consists of a “Standard Form of Agreement Between Owner and Contractor,” which incorporates by reference a document entitled “General Conditions of the Contract for Construction” (“the general-conditions document”). The Standard Form of Agreement names GMW as the “contractor,” Medical Services as the “owner” of the subject property, and Waldheim as the project “architect.” The general-conditions document contained an arbitration provision, which stated in pertinent part: “Any Claim[] arising out of or related to the Contract ... shall ... be subject to arbitration. ...” The general-conditions document also contained the following limitation on arbitration:

“4.6.4 Limitation on Consolidation or Joinder. No arbitration arising out of or relating to the Contract shall include, by consolidation or joinder or in any other manner, the Architect, the Architect’s employees or consultants, except by written consent containing specific reference to the Agreement and signed by the Architect, Owner, Contractor and any other person or entity sought to be joined.... ”

During the renovation of the building, a number of disputes arose between GMW and Medical Services concerning GMW’s work and the actions of Waldheim and Watkins relating to the renovation. Effective September 24, 2004, Medical Services terminated the contract with GMW and retained another contractor to finish the project.

On September 28, 2004, GMW sued Medical Services and its secretary/treasurer, Ralph Levene; its president, Elmar Lawaczeck; SouthTrust Bank, which held a mortgage on the property; and several fictitiously named defendants. The trial court assigned this action case no. CV-04-5779.

GMW alleged in its complaint that it complied with all of its duties under the contract that were not excused or made impossible by Medical Services and that it performed additional work valued at $250,000, for which it had not been paid. GMW further alleged that Levene and La-waczeck induced GMW to do additional work without paying for that work. GMW thus sought damages for breach of contract; work and labor performed; intentional interference with business relations; fraudulent inducement, misrepresentation, and suppression; unjust enrichment; and damages under the Prompt Payment Act of Ala.Code 1975, § 8-29-1 et seq. Furthermore, GMW sought the imposition and enforcement of a lien it had filed on the building being renovated. The complaint also stated that GMW intended to compel arbitration pursuant to the arbitration provision in the general-conditions document.

On November 5, 2004, Medical Services filed an answer and a counterclaim against GMW. The counterclaim alleged that GMW breached the contract by failing to properly renovate the building through numerous deficiencies and failures in both planning and construction. Medical Services thus sought damages for negligence, wantonness, and breach of contract.

On October 15, 2004, before filing its answer and counterclaim in case no. CV-04-5779, Medical Services filed a separate action against Waldheim and Watkins. Medical Services alleged that the two negligently and wantonly performed architectural services, breached warranties to Medical Services, violated the standard of care required of architects, failed to represent the interests of Medical Services, and failed to properly administer the construction contract between Medical Services and GMW. Medical Services thus sought damages against Waldheim and Watkins for negligence and wantonness in the renovation project, fraud and suppression regarding representations concerning both the condition of the building and the feasibility and cost of the renovation, falsely representing the completion percentage of the project to induce premature installment payments, and misrepresenting the condition of the building’s roof. Finally, Medical Services sought damages against Waldheim and Watkins for breach of various warranties. The trial court assigned this action case no. CV-04-6204.

GMW ultimately moved the trial court to consolidate the two cases and to compel arbitration of all the claims. Apparently, GMW also initiated arbitration proceedings at this time.

On August 5, 2005, the trial court held a hearing on the motion. In an order signed by the trial court and filed in open court on August 8, 2005, the trial court consolidated the two cases and ordered all the parties to submit their claims to arbitration. The trial court then stayed any arbitration proceedings between GMW and Medical Services pending appellate review. Medical Services filed a notice of appeal in both cases.

Standard of Review

“ ‘[T]he standard of review of a trial court’s ruling on a motion to compel arbitration at the instance of either party is a de novo determination of whether the trial judge erred on a factual or legal issue to the substantial prejudice of the party seeking review.’ Ex parte Roberson, 749 So.2d 441, 446 (Ala.1999). Furthermore:
“ ‘A motion to compel arbitration is analogous to a motion for summary judgment. TranSouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala.1999). The party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that that contract evidences a transaction affecting interstate commerce. Id. “After a motion to compel arbitration has been made and supported, the burden is on the non-movant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.” ’
“Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala.2000) (quoting Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (Ala.1995) (emphasis omitted)).”

Vann v. First Cmty. Credit Corp., 834 So.2d 751, 752-53 (Ala.2002).

Discussion

In the trial court, GMW produced a contract calling for arbitration and produced evidence demonstrating that the transaction that is the basis of the contract affected interstate commerce. Thus, the burden shifted to Medical Services to present evidence showing that the arbitration provision in the contract does not apply to the dispute in question. Vann, supra. The sole issue raised by Medical Services on appeal is whether paragraph 4.6.4 of the general-conditions document, “Limitation on Consolidation or Joinder,” prohibits the arbitration of any claims against the party defined in the Standard Form of Agreement as the architect — Waldheim— and the architect’s employee — allegedly Watkins.

Medical Services contends that because the arbitration provision in this case specifically excludes the parties from including the “architect” and the architect’s employees in any arbitration proceeding, the trial court erred in ordering Medical Services to arbitrate its claims against Waldheim and Watkins. Waldheim and Watkins argue, on the other hand, that they are employees and agents of GMW, and that nonsignatory agents may rely on arbitration agreements signed by their principal, so long as the plaintiffs claims are based on the agent’s actions within the line and scope of his agency. See, e.g., Stevens v. Phillips, 852 So.2d 123, 128-31 (Ala. 2002); McDougle v. Silvernell, 738 So.2d 806 (Ala.1999); Georgia Power Co. v. Partin, 727 So.2d 2, 6 (Ala.1998); and Ex parte Gray, 686 So.2d 250 (Ala.1996). They also maintain that Medical Services is equitably estopped from arguing that the arbitration provision does not apply.

First, we note that the Standard Form of Agreement specifically names Waldheim as the “architect.” The definition of “architect” found in section 4.1.1 of the general-conditions document includes the architect’s “authorized representative,” and paragraph 4.6.4 of the general-conditions document prohibits the arbitration of claims against both the architect and the “Architect’s employees or consultants.” Medical Services argues that Watkins provided architectural services; however, there is no evidence in the record indicating that Watkins was Waldheim’s “authorized representative” or his employee or consultant. See Providian Nat’l Bank v. Conner, 898 So.2d 714, 719 (Ala.2004) (holding that statements in motions and briefs are not evidence to be considered in ruling on a motion to compel arbitration). Therefore, Medical Services did not meet its burden in establishing that the arbitration provision does not apply to Watkins.

“ ‘Agreements to arbitrate are essentially creatures of contract,’ and ordinary contract rules govern the interpretation of arbitration provisions.” Orkin Exterminating Co. v. Larkin, 857 So.2d 97, 103 (Ala.2003) (quoting Blount Int’l, Ltd. v. James River-Pennington, Inc., 618 So.2d 1344, 1346 (Ala.1993)). “When interpreting a contract, a court should give the terms of the contract their clear and plain meaning and should presume that the parties intended to do what the terms of the agreement clearly state.” Brewbaker Motors, Inc. v. Belser, 776 So.2d 110, 112 (Ala.2000). Additionally, this Court will interpret the terms of a contract to give “effect to all terms used.” Sullivan, Long & Hagerty v. Southern Elec. Generating Co., 667 So.2d 722, 725 (Ala.1995). See also Board of Water & Sewer Comm’rs of Mobile v. Bill Harbert Constr. Co., 870 So.2d 699, 710 (Ala.2003) (“The law is settled that this Court is bound to construe contracts so as to give meaning to all provisions whenever possible.”).

The duty to arbitrate is a contractual obligation, and “a party cannot be required to arbitrate any dispute that he or she has not agreed to submit to arbitration.” Partin, 727 So.2d at 5. Moreover, the parties to a contract containing an arbitration agreement generally have the power in drafting the contract to place limits on an arbitrator’s authority or even, in some cases, to wholly exclude certain claims from arbitration. H.L. Fuller Constr. Co. v. Industrial Dev. Bd. of Vin cent, 590 So.2d 218, 222 (Ala.1991) (“parties to a contract containing an arbitration agreement certainly have the power to limit the arbitrator’s authority to consider certain claims”); McKee v. Hendrix, 816 So.2d 30, 34 (Ala.Civ.App.2001) (“Parties may, through clear and express exclusions in the contract containing the arbitration provision, exclude from arbitration certain claims or disputes between the parties.”).

This Court has previously enforced a virtually identical limitation on joining an architect in the arbitration of a dispute under a similar contract. See Ex parte Stallings & Sons, Inc., 670 So.2d 861 (Ala. 1995). In Stallings & Sons, a contractor, Stallings, was involved in the construction of an addition to a hospital. SS & A, an architectural firm, was hired to design the project and to assist in overseeing its construction. Stallings later sued SS & A, alleging that SS & A had been derelict in fulfilling its duties, causing Stallings to suffer economic losses.

SS & A moved to compel arbitration based on an arbitration provision in Stall-ings’s contract with the owner of the hospital. Although SS & A was not a party to the contract between Stallings and the hospital, SS & A argued that Stallings was equitably estopped from refusing to arbitrate because the basis of Stallings’s claim was that SS & A had breached the duties and responsibilities assigned to it through the contract.

This Court refused to hold that Stallings was equitably estopped from refusing to arbitrate because, in part, the contract contained the following restriction on arbitration: “ ‘No arbitration arising out of or relating to the Contract Documents shall include, by consolidation or joinder or in any other manner, the Architect ..., except by written consent ....’” 670 So.2d at 863. This Court upheld the plain terms of the contract and reversed the trial court’s order compelling the architect to arbitrate:

“This Court will not adopt the doctrine of equitable estoppel in actions against architects when the contract between the owner and the contractor contains the language [preventing the joinder of the architect in arbitration], and there is no written consent containing a specific reference to an agreement signed by the architect, owner, and contractor.”

670 So.2d at 863.

The contract in the instant case is clear: the architect — Waldheim—may not be a party in any arbitration arising out of or relating to the contract except by the written consent of the architect, the owner, the contractor, and any other person or entity sought to be joined in the arbitration proceeding. No such consent appears in the record. Giving effect to the plain terms of the contract, the arbitration provision in this case, as did the provision in Stallings & Sons, forbids the joinder of Waldheim in arbitration.

GMW, however, argues that Medical Services’ complaint essentially alleges claims for damages resulting from Waldheim’s duties as an employee of GMW, and not his duties as the “architect.” Waldheim likewise contends that the claims against him are in his capacity as an employee of GMW, and not as the “architect,” and are thus not subject to the restriction that the architect may not be taken to arbitration. Medical Services, on the other hand, argues that the complaint clearly seeks damages for actions Waldheim performed in his capacity as the architect.

Several allegations in the complaint assert claims against Waldheim in his capacity as the architect or allege that he failed to perform the duties of the architect as described in the contract. For example, paragraph 4.2.1 of the general-conditions document provides that the architect will administer the contract and act as the owner’s representative. The complaint alleges that Waldheim failed to administer the contract properly, impartially, and in good faith, and that he failed to represent the interests of Medical Services. Additionally, paragraph 4.2.5 of the general-conditions document provides that the architect will evaluate GMW’s applications for payment and certify any amounts due. The complaint alleges that Waldheim failed in this duty by preparing defective payment applications and submitting them to Medical Services. Finally, paragraph 4.4 of the general-conditions document provides that the architect is to resolve disputes between the contractor and the owner. The complaint alleges that numerous disputes arose between GMW and Medical Services and that Waldheim “failed to perform [his] duties as [a] design professional ] to address and resolve the disputed issues” and that Waldheim failed to act impartially.

To the extent the complaint seeks damages against Waldheim in his capacity as the “architect,” those claims are specifically excluded from arbitration. However, to the extent the claims alleged against Waldheim are essentially claims against GMW or against him as an employee of GMW, those claims must be submitted to arbitration. See Partin, 727 So.2d at 6 (“a party may not avoid an arbitration agreement merely by suing a nonsignatory employee of a principal”). We believe a determination of which claims should or should not be submitted to arbitration would be better made by the trial court on remand. This decision may result in some of the claims in this case being resolved in trial and some in arbitration; however, this is the result required by the contract the parties have entered into. See Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 19-21, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) (noting in an action involving a construction dispute between a hospital, a contractor, and an architect, that some of the claims could not be resolved in arbitration, which could result in the parties’ being forced to resolve related disputes in different forums: “That misfortune, however, is not the result of any choice between the federal and state courts; it occurs because the relevant federal law requires piecemeal resolution when necessary to give effect to an arbitration agreement.” (footnote omitted)). See also Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 217, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985) (“[T]he [Federal] Arbitration Act requires district courts to compel arbitration of pendent arbitrable claims when one of the parties files a motion to compel, even where the result would be the possibly inefficient maintenance of separate proceedings in different forums.”); Ex parte Scrushy, 940 So.2d 290, 296 (Ala. 2006) (“concepts of judicial economy are secondary to the strong federal policy favoring arbitration”).

Conclusion

The trial court’s order compelling the arbitration of GMW’s claims against Medical Services and Medical Services’ claims against GMW and Watkins is affirmed. We reverse the portion of the trial court’s order compelling arbitration of Medical Services’ claims against Waldheim to the extent those claims allege a cause of action against him in his capacity as the “architect,” and we remand these consolidated cases.

1041753 — AFFIRMED.

1041762 — AFFIRMED IN PART; REVERSED IN PART; REMANDED.

NABERS, C.J., and LYONS, WOODALL, and PARKER, JJ., concur.

      . Waldheim, who is the president of GMW, signed the contract on GMW's behalf.

      . Section 4.3.1 of the general-conditions document defines "claim” as “a demand or assertion by one of the parties seeking, as a matter of right, adjustment or interpretation of Contract terms, payment of money, extension of time or other relief with respect to the terms of the Contract. The term 'Claim' also includes other disputes and matters in question between the Owner and Contractor arising out of or relating to the Contract....”

      . GMW had previously filed a verified claim of lien in the Jefferson County Probate Court.

      . The complaint stated that GMW wished to submit its claims to arbitration; GMW states in its brief that it filed a complaint in order to perfect its statutory lien.

      . The transcript of this hearing, if it was transcribed, was not included in the record.

      . The trial court noted that the issue whether the claims of Medical Services against Waldheim and Watkins are subject to arbitration may have been proper for appellate review.

      . This Court assigned the appeal in GMW's action against Medical Services (CV-04-5779) case no. 1041753. The appeal in Medical Services' action against Waldheim and Watkins (CV-04-6204) was assigned case no. 1041762.

      .Whether the evidence was sufficient to demonstrate that the transaction affected interstate commerce is not an issue in these appeals.

      . We note that services that can be described as "architectural” are not necessarily exclusively the duties of the architect under the contract. Paragraph 8.1.7(3) of the Standard Form of Agreement provides that the "scope of work” to be performed by GMW includes "Professional Architectural ... services as required.” Thus, a determination of whether the complaint alleges a claim against the architect or GMW must be made with specific reference to the description of duties of both found in the contract.


author: PER CURIAM. PITTMAN, Judge,

text:
    Gary Lee OLSON v. STATE of Alabama.
    2060066.
    Court of Civil Appeals of Alabama.
    Feb. 23, 2007.
    Rehearing Denied April 27, 2007.
    Gary Lee Olson, pro se.
    Submitted on appellant’s brief only.
   PER CURIAM.

Gary Lee Olson appeals from a purported judgment of the Baldwin District Court. We dismiss the appeal because no final, appealable judgment is before us and, therefore, we lack jurisdiction.

In March 2000, Olson was arrested and charged with the crime of carrying a concealed weapon. Olson was later acquitted of that charge in the district court. On March 9, 2006, Olson filed in the district court a “motion to compel” the Baldwin County Sheriffs Department (“the Sheriffs Department”) to return to Olson a knife that had been seized from him at the time of his arrest. On March 27, 2006, the following unsigned and uninitialed entry was made on the district court’s case-action summary: “Baldwin County Sheriffs Department ordered to return to defendant all property seized in connection with this case.” On May 15, 2006, Olson, asserting that his knife had not been returned, filed another “motion to compel” the Sheriffs Department to return the knife to him. On May 31, 2006, the following unsigned and uninitialed entry was made on the district court’s case-action summary: “Motion to compel Baldwin County Sheriffs Office to return property is denied for the property has been destroyed.”

On June 28, 2006, Olson filed in the district court a notice of appeal to the Baldwin Circuit Court. However, on July 31, 2006, an unsigned and uninitialed entry was made on the district court’s case-action summary stating that Olson’s appeal was denied as untimely. The circuit court did not docket Olson’s appeal. Olson subsequently filed a notice of appeal to the Court of Criminal Appeals. The Court of Criminal Appeals transferred the appeal to this court on the authority of Jones v. State, 937 So.2d 59 (Ala.2006) (stating that in a case involving a request for the return of seized property, the proceedings should be treated as a civil action for conversion).

On appeal, Olson argues that the district court erred in entering the May 31, 2006, order denying his motion to compel the Sheriffs Department to return his property. However, this court does not have jurisdiction to consider Olson’s appeal because no final, appealable judgment is before us. At the time the entries were made on the case-action summary in the district court, Rule 58(b), Ala. R. Civ. P., provided, in pertinent part, that a “judgment or order, or the minute entry thereof, will be sufficient if it is signed or initialed by the judge....” The supreme court has held that an order or judgment that is not signed or initialed by the trial judge is a nullity. Alfa Life Ins. Corp. v. Jackson, 906 So.2d 143, 152-53 (Ala.2005). Therefore, because they were unsigned and uninitialed, the entries of March 27, 2006; May 31, 2006; and July 31, 2006, on the case-action summary in district court are all nullities. Id. Thus, no final, appeal-able judgment is before us. “A nonfinal judgment will not support an appeal.” Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So.2d 354, 363 (Ala.2004). Therefore, we must dismiss Olson’s appeal.

APPEAL DISMISSED.

THOMPSON, P.J., and BRYAN and MOORE, JJ., concur.

PITTMAN, J., concurs specially, which THOMAS, J., joins.

PITTMAN, Judge,

concurring specially.

I concur in the main opinion, but I write specially to emphasize that in the majority of civil cases decided by the district court, the circuit court is the proper court in which an appeal lies from a final judgment. See §§ 12-12-70 and 12-12-71, Ala.Code 1975. An appellate court, such as the Alabama Supreme Court, the Alabama Court of Criminal Appeals, or this court, may hear an appeal taken directly from the district court only in two limited circumstances: “(1) An adequate record or stipulation of facts is available and the right to a jury trial is waived by all parties entitled thereto; or (2) The parties stipulate that only questions of law are involved and the district court certifies the questions.” Ala. Code 1975, § 12-12-72. Neither condition has been fulfilled in this case; thus, for that additional reason, I agree that Olson’s appeal is due to be dismissed.

THOMAS, J., concurs.

      . Olson attempted to comply with § 12-12-70 et seq., Ala. Code 1975, by appealing to the circuit court before appealing to an appellate court; however, his attempt was thwarted by the district court.

      . Rule 58 was amended effective September 19, 2006. The new rule differs significantly from the prior rule, especially concerning the requirements for the entry of a judgment or order. Because the dates when entries were made on the case-action summary in the district court in this case predate the amendment of September 19, 2006, we quote the prior version of Rule 58. The new Rule 58(b) provides, in part, that ‘‘[a] written order or a judgment will be sufficient if it is signed or initialed by the judge....''

      .The State of Alabama has moved this court to dismiss Olson’s appeal on the ground that his appeal to the circuit court was not timely filed. However, because the district court did not enter a final, appealable judgment, Olson's appeal to the circuit court was premature rather than tardy. Therefore, we deny the State's motion.


author: BRYAN, Judge.

text:
    Eddie CHAMBERS v. COURTESY PONTIAC-GMC TRUCKS, INC.
    2050933.
    Court of Civil Appeals of Alabama.
    April 27, 2007.
    William J. Freeman, Birmingham, for appellant.
    Charles A. Burkhart and Stephen M. Parham of Balch & Bingham, LLP, Birmingham, for appellee.
   BRYAN, Judge.

Eddie Chambers appeals from an arbitrator’s award dismissing, with prejudice, Chambers’s claim for damages against Courtesy Pontiac-GMC Trucks, Inc. (“Courtesy Pontiac”). Because we conclude that Chambers’s appeal is untimely, we dismiss the appeal.

On March 1, 2002, Chambers sued Courtesy Pontiac, alleging that Courtesy Pontiac had sold him a defective automobile. Courtesy Pontiac moved to compel arbitration of Chambers’s claim pursuant to the arbitration provision in the automobile sales contract entered into by the parties. The trial court subsequently entered an order granting the motion to compel arbitration, and Chambers appealed that order to this court. On August 26, 2003, this court issued an order dismissing Chambers’s appeal as being untimely filed.

Chambers’s claim against Courtesy Pontiac proceeded to arbitration. On February 8, 2006, the arbitrator convened an arbitration hearing at which neither Chambers nor his attorney appeared. On February 22, 2006, the arbitrator dismissed Chambers’s claim, with prejudice. On March 6, 2006, Chambers moved the trial court to order further arbitration proceedings. Chambers’s motion asserted that the arbitrator had failed to notify either Chambers or his attorney of the arbitration hearing held on February 8, 2006. On June 1, 2006, Courtesy Pontiac filed a “motion to dismiss.” On June 27, 2006, the trial court granted Courtesy Pontiac’s motion and entered a judgment in its favor. In its judgment, the trial court stated that Chambers’s proper remedy upon receiving notice of the arbitrator’s award appeared to be an appeal to the appropriate appellate court, pursuant to § 6-6-15, Ala.Code 1975.

On August 7, 2006, Chambers filed a notice of appeal to this court. However, this court concluded that it lacked jurisdiction and, consequently, transferred the appeal to the supreme court. The supreme court subsequently transferred the appeal to this court, pursuant to § 12-2-7(6), Ala. Code 1975.

Courtesy Pontiac contends that Chambers’s appeal is not timely. We agree. Section 6-6-15, Ala.Code 1975, a part of the Alabama Arbitration Act, § 6-6-1 et seq., Ala.Code 1975, provides:

“Either party may appeal from an award under this division. Notice of the appeal to the appropriate appellate court shall be filed within 10 days after receipt of notice of the award and shall be filed with the clerk or register of the circuit court where the action is pending or, if no action is pending, then in the office of the clerk or register of the circuit court of the county where the award is made. The notice of appeal, together with a copy of the award, signed by the arbitrators or a majority of them, shall be delivered with the file of papers or with the submission, as the case may be, to the court to which the award is returnable; and the clerk or register shall enter the award as the [judgment] of the court. Thereafter, unless within 10 days the court shall set aside the award for one or more of the causes specified in Section 6 — 6—14[, Ala.Code 1975], the judgment shall become final and an appeal shall lie as in other cases. In the event the award shall be set aside, such action shall be a final [judgment] from which an appeal shall lie as in other cases.”

The arbitrator dismissed Chambers’s claim, with prejudice, on February 22, 2006. Pursuant to § 6-6-15, Chambers had 10 days after receiving notice of the arbitrator’s award dismissing the claim in which to file his appeal. Although the record on appeal does not indicate when Chambers received notice of the arbitrator’s award, he had to have received notice no later than March 6, 2006, the date Chambers filed a motion challenging that award. Chambers did not file his notice of appeal until August 7, 2006, well after the expiration of the 10-day period specified under § 6-6-15 for filing an appeal from an arbitrator’s award. Therefore, pursuant to the plain language of § 6-6-15, Chambers’s appeal is untimely.

We recognize that Rule 4(a)(1), Ala. R.App. P., provides:

“Except as otherwise provided herein, in all cases in which an appeal is permitted by law as of right to the supreme court or to a court of appeals, the notice of appeal required by Rule 3[, Ala. R.App. P.,] shall be filed with the clerk of the trial court within 42 days (6 weeks) of the date of the entry of the judgment or order appealed from.... ”

In Birmingham News Co. v. Horn, 901 So.2d 27, 42 (Ala.2004), our supreme court noted that “Appendix II (‘Statutes and Rules Superseded’) and Appendix III (‘Statutes Modified’) to the Rules of Appellate Procedure do not list § 6-6-15 as among those statutes which have been superseded or modified by those rules.” The Supreme Court in Horn did not conclude that Rule 4(a)(1) extended from 10 days to 42 days the period for filing an appeal from an arbitration award under § 6-6-15. However, even if Rule 4(a)(1) does extend the period for filing such an appeal, we note that Chambers failed to file his appeal within 42 days of his receiving notice of the arbitrator’s award.

Because Chambers did not timely file his appeal pursuant to the filing requirements of § 6-6-15, we dismiss the appeal.

APPEAL DISMISSED.

THOMPSON, P.J., and PITTMAN, THOMAS, and MOORE, JJ., concur.