author: WALLER, Presiding Justice,

text:
    AMSOUTH BANK v. Charles QUIMBY.
    No. 2006-CA-00826-SCT.
    Supreme Court of Mississippi.
    Sept. 6, 2007.

      E. Barney Robinson, III, attorney for appellant.
    Stanley A. Sorey, Eugene C. Tullos, attorneys for appellee.
    Before WALLER, P.J., EASLEY and GRAVES, JJ.
   WALLER, Presiding Justice,

for the Court.

¶ 1. Charles Quimby filed a complaint in the Circuit Court of Smith County against AmSouth Bank and American Heritage Life Insurance Company alleging that their failure to pay benefits under a credit disability insurance policy constituted a tortious breach of contract and caused him emotional distress. Both defendants filed answers, and AmSouth filed a motion to compel arbitration. The circuit court denied the motion to compel arbitration, and from its amended order, AmSouth now appeals. Under the rule announced in Tupelo Auto Sales, Ltd. v. Scott, 844 So.2d 1167 (Miss.2003), this court has jurisdiction over this appeal.

FACTS

¶ 2. In 1985, Charles Quimby opened a line of credit with Deposit Guaranty National Bank. Deposit Guaranty is a predecessor to AmSouth Bank, having merged with AmSouth on December 31, 1999. There is no signature card for the line of credit account in the record nor is there an original contract in the record covering this account. In his complaint, Quimby alleges that at the time he opened the line of credit, he requested credit disability insurance. On February 9, 2000, AmSouth mailed a Customer Agreement to each Mississippi resident with an open account. The agreement covered “the use of any type of depository account you have with us, both personal and nonpersonal, except for time deposits, certificates of deposit, and IRAs.” It contained new terms for these accounts, notably including an arbitration clause.

¶ 3. According to his complaint, Quimby became disabled on June 15, 2000. He demanded benefits from American Heritage, which denied he is covered under any credit disability policy. Having been denied what he thought was due, Quimby filed suit in 2005 to recover the benefits plus compensatory damages for emotional distress and punitive damages for tortious breach of contract. AmSouth answered, raising arbitration as a defense, and subsequently filed a motion to compel arbitration.

¶ 4. After a hearing on the motion, the circuit court sent a letter to counsel explaining it would deny the motion and the basis of its ruling:

From the pleadings, briefs, exhibits, and authorities filed in connection with the above encaptioned matter, the following is clear:
1. The “Amendment to Customer Agreement” was effective March 17, 2000;
2. The plaintiff (according to his complaint) became disabled in June of 2000; and
3. The arbitration clause became effective March 1, 2004.
It is my opinion that since the plaintiffs cause of action accrued almost four (4) years prior to the effective date of the arbitration agreement, the bank’s motion to compel arbitration and stay proceedings should be denied. It is also my opinion that this case is controlled by B.C. Rogers Poultry, et al v. Wedgeworth, 911 So.2d 483, 2005 WL 2234777 (Miss.).
I do not believe that the bank can rely on the March 17, 2000 “Amendment of Customer Agreement” because while said document does say the bank can change the customer agreement at any time, it does not say that future changes would relate back to March 17, 2000. Again, I think this is squarely in line with the ruling in the Rogers v. Wedgeworth case, despite Judge Lee’s 2001 opinion in Beneficial National Bank, et al v. Payton, 214 F.Supp.2d 679.

After AmSouth filed a supplemental motion to compel arbitration, the circuit court wrote another letter to counsel which provided in relevant part:

I read and considered Mr. Robinson’s October 19 letter and supplemental motion, together with the “intervening evidence,” the “Second Affidavit of Kimberly Burkhalter.” I compared this affidavit with Ms. Burkhalter’s first one paragraph-by-paragraph and found the changes of little or no import. I found nothing to change the dates I felt controlling in my October 18 letter. Further, other than reading Rogers v. Wedgeworth different from me, the supplemented amended motion to compel arbitration simply appears to rehash matters I have already decided.

In its Amended Order Denying Motion to Compel Arbitration, the court incorporated these letters as the rationale for its ruling. The amended order itself includes no other grounds for denying the motion to compel arbitration. AmSouth appealed.

STANDARD OF REVIEW

¶ 5. An order denying a motion to compel arbitration raises a question of law and is subject to de novo review. Smith v. Captain D’s, LLC, 963 So.2d 1116, 2006-CA-00024-SCT, ¶9 (June 14, 2007); East Ford, Inc. v. Taylor, 826 So.2d 709, 713 (Miss.2002). At this stage, this court’s review is limited to a two-pronged inquiry: “The first prong has two considerations: (1) whether there is a valid arbitration agreement and (2) whether the parties’ dispute is within the scope of the arbitration agreement.... Under the second prong, the United States Supreme Court has stated the question is ‘whether legal constraints external to the parties’ agreement foreclosed arbitration of those claims.’ ” East Ford, Inc., 826 So.2d at 713 (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985)). Under the second prong, applicable contract defenses available under state contract law such as fraud, duress, and uncon-scionability may be asserted to invalidate the arbitration agreement without offending the Federal Arbitration Act. Id. (citing Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 686, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996)). We find that Quimby’s claims do not fall within the scope of a valid arbitration clause in AmSouth’s Customer Agreements, and hold that the circuit court’s judgment is correct and is hereby affirmed.

DISCUSSION

¶ 6. The circuit court’s judgment denying the motion to compel arbitration rests primarily upon this court’s opinion in B.C. Rogers Poultry, Inc. v. Wedgeworth, 911 So.2d 488 (Miss.2005). AmSouth devotes half of its brief to arguing that the circuit court misapplied its holding, reaching an incorrect result and requiring reversal. Quimby responds that the arbitration agreement came into effect after his claims arose, and the agreement does not cover the claims in his complaint which concern his credit disability insurance policy. He also counters by raising contract defenses available under state law which operate to invalidate the arbitration clauses. The Wedgeworth opinion and the circuit court’s application are discussed below.

¶ 7. In the Wedgeworth case, a poultry grower, Wedgeworth, contracted with a poultry processor, B.C. Rogers, to house and care for B.C. Rogers’s live inventory. Wedgeworth, 911 So.2d at 485. The written contract between the parties contained an arbitration clause whose scope included “all disputes arising under this agreement.” Id. No other contract between the parties contained such a clause, and this clause did not state that it was applicable to disputes which existed before the contract’s execution. Id. at 487. When Wedgeworth sued B.C. Rogers for coercion and interference with contracts, events which occurred prior to the execution of the contract between them, B.C. Rogers moved to compel arbitration. The circuit court denied the motion to compel arbitration. On appeal, this court found that the scope of the arbitration agreement did not include the disputes in Wedge-worth’s complaint nor did the arbitration clause’s terms apply retroactively. Id. at 489. The circuit court’s judgment was affirmed.

I. Whether the trial court erred by incorrectly applying B.C. Rogers Poultry, Inc. v. Wedgeworth, 911 So.2d 483 (Miss.2005), and finding the arbitration provisions in Am-South’s March 1, 2004, Account Agreement not broad enough in temporal scope to cover a preexisting claim.

¶ 8. AmSouth argues that three distinctions between the present case and Wedge-worth make the circuit court’s reliance upon that case misplaced: (1) The arbitration provisions in this case are broader than those in Wedgeworth; (2) the March 17, 2000, and October 4, 2004, Customer Agreements contained an applicable arbitration clause that covered disputes prior to Quimby’s alleged disability and lawsuit, unlike Wedgeworth’s limited coverage; and (3) Wedgeworth’s contract did not contain a First Options clause referring questions of arbitrability explicitly to the arbitrator.

¶ 9. First, AmSouth argues that the terms of its arbitration agreement in its Customer Agreements are broader than the terms in Wedgeworth. Three revised Customer Agreements are in the record. They will be referenced by their effective dates: March 17, 2000; March 1, 2004; and October 4, 2004. Their scope and terms are examined below.

¶ 10. The March 17, 2000, revision of AmSouth’s Customer Agreement covered “the use of any type of depository account you have with us, both personal and non-personal, except for time deposits, certificates of deposit, and IRAs.” It defined depository account as “any type of account to which funds may be deposited.” The arbitration clause read in pertinent part as follows:

Any controversy, claim, or dispute between us (or between you and any of our employees, agents, representatives, parent or affiliated companies, or any of their employees) shall be settled by arbitration as set forth below. Such arbitration shall include, without limitations, any dispute or controversy regarding or pertaining in any way to any of the following (a) this agreement; (b) the Account; (c) any charge or cost incurred under this Agreement or the Account; (d) the collection of any amounts due under this Agreement or the Account; (e) any contract or alleged tort related to or arising out of your business or relationship with us; and (f) any statements or representations made to you.... Any disagreement as to whether a particular dispute or claim is subject to arbitration under this paragraph shall be decided by arbitration in accordance with the provisions of this paragraph.... WITH RESPECT TO DISPUTES SUBMITTED TO ARBITRATION, YOU AND WE EACH WAIVE ALL RIGHT TO A TRIAL BY JURY.

Also part of the March 2000 Customer Agreement was language permitting unilateral revision of the agreement. Acceptance of the revised terms was made “[b]y continuing to maintain your account.”

¶ 11. The March 1, 2004, Customer Agreement covered “[Time Deposits or Certificates of Deposit, and Individual Retirement Accounts] ...; and any other type of depository account, both personal and nonpersonal.... As used herein, the term ‘account’ shall mean and include any Time Deposit, Certificate, IRA or Deposit Account you have with us from time to time. The provisions in this Section 1 shall apply to all accounts you may have with us from time to time. The arbitration clause was contained in Section 6. The pertinent March 1, 2004, revision read as follows:

Except as expressly provided below, any controversy, claim, dispute or disagreement (any “Claim”) arising out of, or in connection with or relating to (1) the interpretation, execution, administration or modification of the Agreement; (2) any account; (3) any charge or cost incurred pursuant to the Agreement; (4) the collection of any amounts due under the Agreement or any account; (5) any alleged tort arising out of or relating in any way to the Agreement or any account; (6) any breach of any provision of the Agreement; (7) any statements or representations made to you with respect to the Agreement or any account; or (8) any of the foregoing arising out of, in connection with, or relating to any agreement which relates to the Agreement or any account; will be settled by binding arbitration with the Federal Arbitration Act.

The agreement also stated that by continuing to maintain the account, the customer agreed to the revised terms.

¶ 12. The October 4, 2004, Customer Agreement covers:

the use of the following accounts you may have with us: any AmSouth Time Deposit ... or AmSouth Certificate of Deposit ...; any AmSouth Individual Retirement Account ...; and any other type of depository account, both personal and nonpersonal.... As used herein, the term “account” shall mean and include any Time Deposit, Certificate, IRA or Deposit Account you have with us from time to time. The provisions in this Section 1 shall apply to all accounts you may have with us from time to time. The dispute resolution provisions in section 6 of this Agreement also apply to any account, contract, loan, transaction, business, contact, interaction or relationship you may have with us. Further, as used in, or in relation to, or in interpreting any provision of this Agreement, the term “account” shall also include any account or other business relationship of any nature whatsoever you may hold from time to time with any of us.

The arbitration clause was contained in Section 6, and its terms were largely unchanged from the March 2004 agreement. Preceding the arbitration clause was the following language: “The following applies to all of the above referenced account types and agreements, as well as to any dispute you may have with us.” Another revision to the October 4, 2004, Customer Agreement made arbitration an elective, as opposed to a mandatory, event. Once again, continued maintenance of an account constituted acceptance of the revised terms.

¶ 13. The arbitration clauses in all of the revisions to the AmSouth Customer Agreement appear to be more broad than those in Wedgeworbh. The October 4, 2004, revision, in particular, covered “any account or other business relationship of any nature whatsoever you may hold from time to time with any of us,” and the arbitration clause within that agreement applied to “any dispute you may have with us.” AmSouth also argues that Quimby’s use of his other accounts with AmSouth may have been sufficient to bind the disputes concerning his line of credit account over to arbitration under the terms of the October 2004 revisions to the Customer Agreement. His checking accounts were clearly depository accounts covered by the revised agreements. He agreed in his signature card on at least one of these accounts to abide by the “rules and regulations and all amendments” to his account agreements. By the express terms of the Customer Agreements his “continuing to maintain” any of those accounts constituted acceptance of the terms of the revised agreements, and the October 2004 Customer Agreement bound over to arbitration “any dispute you may have with us.”

¶ 14. We find, however, the line of credit account was not governed by the March 2000 and March 2004 Customer Agreements, and this court’s holding in Wedgeworth requires specific, retroactive language within an arbitration agreement before we will find a preexisting controversy within its scope. Under this interpretation, the October 2004 revised Customer Agreement does not apply retroactively to cover the claims in Quimby’s complaint. Therefore, analyzing this matter under East Ford> we conclude the circuit court had the authority to determine whether Quimby’s claims were within the scope of the AmSouth Customer Agreements, and that it correctly decided that they were not. East Ford, Inc., 826 So.2d at 713.

¶ 15. From the sparse record before the court, it appears the term “line of credit” is undefined by 'either party or by any revised AmSouth Customer Agreement. During the hearing on the motion to compel arbitration, counsel for AmSouth referred to this account as a “loan.” Neither party indicates the nature of this line of credit. Black’s Law Dictionary defines “line of credit” simply as:

A margin or fixed limit of credit granted by one to another, to the full extent of which the latter may avail himself in his dealings with the former, but which he must not exceed; usually intended to cover a series of transactions, in which case, when the customer’s line of credit is nearly or quite exhausted, he is expected to reduce his indebtedness by payments before drawing upon it further. •

Black’s Law Dictionary 1078 (Rev. 4th ed.1968) (citing Pittinger v. Southwestern Paper Co. of Fort Worth, 151 S.W.2d 922, 925 (Tex.Civ.App.1941)). There is no indication in the record whether this account is a secured line of credit, such as a home-equity line of credit, -or an unsecured line of credit, such as a consumer credit card. No signature card appears in the record for this account. It is assumed throughout the record that Quimby is the debtor and AmSouth and its predecessors are the creditors. The parties appear to agree that Quimby’s claims are tied to opening the line of credit with Deposit Guaranty.

¶ 16. The Mississippi Uniform Commercial Code (UCC)-Negotiable Instruments generally defines an “account” as “any deposit or credit account with a bank, including a demand, time, savings, passbook, share draft, or like account, other than an account evidence by a certificate of deposit.” Miss.Code Ann. § 75-4-104(3) (Rev.2002). A “deposit account” is defined under the UCC-Secured Transactions as “a demand, time, savings, passbook, or similar account maintained with a bank. The te'rm does not include investment property or accounts evidenced by an instrument.” Miss.Code Ann. § 75-9-102(29) (Rev.2002). This Court has held “funds deposited to a general account belong to the bank, with the bank becoming the debtor to the owner of the account for the amount of the deposit.” First Investors Corp. v. Rayner, 738 So.2d 228, 235 (Miss.1999) (quoting Deposit Guar. Nat’l Bank v. B.N. Simrall & Son, Inc., 524 So.2d 295, 299 (Miss.1987)). Under Mississippi law, Quimby’s line of credit may qualify as an “account,” but not as a deposit account. The AmSouth Customer Agreements further narrow the definition of “account” to the point that they exclude the line of credit account.

¶ 17. The March 2000 Customer Agreement defined “account or depository account” as “any type of account to which funds may be deposited.” Section 4-104 of the UCC differentiates between deposit and credit accounts, but includes both in its general definition of account. Miss. Code Ann. § 75-4-104(3). However, the definition in AmSouth’s March 2000 Customer Agreement was narrower and applied only to “depository accounts,” among other non-credit and unrelated accounts. The March 2004 Customer Agreement covered only “[Time Deposits or Certificates of Deposit, and Individual Retirement Accounts] ...; and any other type of depository account, both personal and non-personal .... As used herein, the term ‘account’ shall mean and include any Time Deposit, Certificate, IRA or Deposit Account you have with us from time to time.” This Customer Agreement likewise limited its application to accounts into which funds were placed or kept, rather than where debts were to be repaid.

¶ 18. The cover of the March 2000 Customer Agreement read “Customer Agreement for Depository Accounts,” “Time Deposit/Certificate of Deposit Agreement,” and “Individual Retirement Accounts Investment Agreements.” The cover of the March 2004 Customer Agreement read “Important information about your Checking, Money Market, Savings, Time Deposit and IRA accounts; your Electronic Banking services; and more.”

¶ 19. From the exhibits in the record before the court, we find that Quim-by’s line of credit account, or loan, does not fall within the meaning of the various depository accounts listed and defined in the March 2000 and March 2004 Customer Agreements. Even if there is ambiguity within the Customer Agreements such that an argument could be made for its inclusion, this Court construes ambiguity within a contract against the drafter. Banks v. Banks, 648 So.2d 1116, 1121 (Miss.1994). We therefore conclude that the March 2000 and March 2004 revised Customer Agreements, by their terms, did not cover Quimby’s line of credit account.

¶ 20. The March 2004 and October 2004 Customer Agreements did not cover Quimby’s claims for another reason: There was no explicit, retroactive application language in any of the arbitration clauses. AmSouth relied on the use of the word “any” in its Customer Agreements to indicate retroactive application. For example, the October 2004 arbitration clause stated a party may elect that “any controversy ... relating to ... any account ...” be resolved by arbitration. The March 2004 Customer Agreement likewise covered “any account” or “the collection of any amounts due under the Agreement or any account.”

¶ 21. This court’s opinion in Wedgeworth indicated the Court’s intent that explicit language of retroactive application appear in arbitration clauses before they will be enforced on preexisting claims. It also left the Court room to insist upon this language in arbitration agreements. The court stated in Wedgeworth, “[h]ere, the arbitration provision contained neither language that was broad enough to cover events which predated the contract’s execution, nor language which would broaden its application by containing terms such as ‘applies to all transactions occurring before or after execution’ or ‘all transactions between us’ or ‘all business with us.’ Where such clause exists, a legal basis to apply the arbitration clause retroactively may exist.” Id. at 489 (emphasis added). By indicating a preference for specific, retroactive application language in arbitration agreements, and using the permissive “may” to indicate that it was not bound to find retroactive application even if an arbitration agreement’s language was broader than that in Wedgeworth, the court left itself room to find AmSouth’s clauses insufficient to apply retroactively. Even without this leeway within this Court’s precedent, there is evidence in the record that AmSouth did not intend its Customer Agreements to apply retroactively.

¶ 22. In support of its motion to compel arbitration, AmSouth offered the affidavit of Kimberly Burkhalter, an AmSouth employee, which states that the dates of the Customer Agreements were the dates their terms became “effective”; e.g., the March 17, 2000, Customer Agreement became effective on that date, and so on. Even if implied acceptance by continued use of the account was sufficient to bind Quimby to the arbitration terms in the March 2004 and October 2004 Customer Agreements, the effective dates of the Customer Agreements occurred after the accrual of his claims against AmSouth and American Heritage.

¶ 23. Despite the federal policy favoring arbitration, our courts are required to submit to arbitration only what the parties agreed to submit to arbitration. Adams v. Greenpoint Credit, LLC, 948 So.2d 703, 708 (Miss.2006) (citing AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 648, 106 S.Ct. 1415, 1418, 89 L.Ed.2d 648 (1986)). The testimony within the Burkhalter affidavit provides sufficient indication that AmSouth intended the revised terms in these agreements to apply prospectively from their effective dates. We therefore conclude, on the record before the court, that the parties intended the revisions to the Customer Agreements to apply prospectively to claims which occurred after their stated effective dates.

¶ 24. Therefore, we find another reason in the record that the March 2004 and October 2004 Customer Agreements did not cover the claims made in Quimby’s complaint. This court’s precedent does not require it to give retroactive application to the language found within the March 2004 and October 2004 Customer Agreements. Our precedent requires this court to enforce arbitration agreements only to the extent the parties agreed to submit their claims to arbitration. There being sufficient evidence in the record of an intent to apply prospectively the terms in AmSouth’s customer agreements, we find the circuit court’s judgment to have merit.

¶ 25. The record indicates that Quim-by’s pursuit of his claims began after his disability, but before the effective dates of the 2004 Customer Agreements. A letter from American Heritage to Quimby’s counsel, dated November 19, 2002, indicated that Quimby’s failure to submit a proper notice of disability claim would result in the denial of benefits for lack of coverage. This letter is proof within the record that Quimby’s claims pre-dated the effective dates of the 2004 Customer Agreements. The record also demonstrates that retroactive application language does not appear in the arbitration clauses in the AmSouth Customer Agreements.

¶26. Therefore, we conclude that the March 2000 and March 2004 AmSouth Customer Agreements did not cover the line of credit account. Furthermore, the March 2004 and October 2004 effective dates for the AmSouth Customer Agreement post-date the accrual of Quimby’s cause of action against AmSouth. The Court’s precedent in Wedgeworth indicates that such clauses are not to be given retroactive force unless the clause contains specific language stating so, and the parties so intended. The language in the 2004 Customer Agreements did not do so, relying on the use of the term “any” to imply a retroactive application. Since it appears that the parties intended the provisions in the revised Customer Agreements to apply prospectively, not retroactively, the circuit court’s judgment applying Wedgeworth to the facts was not in error and is affirmed. The first reason AmSouth offers to require enforcement of the arbitration clause found within its Customer Agreements, that the scope of the agreement is broader than that in Wedgeworth, is insufficient to require reversal of the circuit court’s judgment.

¶ 27. Second, AmSouth argues that its revised Customer Agreement contains an arbitration clause that became effective March 17, 2000, and covers this dispute because its effective date preceded Quim-by’s disability claim. The March 2000 revision indeed contained an arbitration clause. Its effective date preceded Quim-by’s disability claim and the accrual of his right of action against American Heritage and AmSouth for benefits and damages for emotional distress and tortious breach of contract. However, as noted above, the March 2000 Customer Agreement applied to specific types of accounts which did not include line of credit accounts. By its own terms, the March 2000 Customer Agreement did not apply to line of credit accounts. Therefore, this reason is insufficient to find the trial court in error.

¶ 28. Third, AmSouth argues that the circuit court should not have applied Wedgeworth because the explicit terms of the revised Customer Agreements submitted all questions concerning the scope of the arbitration agreement to the arbitrator. In First Options of Chicago v. Kap-lan, the United States Supreme Court examined the narrow question of who should have the primary power to decide whether the parties to a contract agreed to arbitrate their claim. First Options of Chicago v. Kaplan, 514 U.S. 938, 942, 115 S.Ct. 1920, 131 L.Ed.2d 985, 992 (1995). It determined that “Courts should not assume that the parties agreed to arbitrate arbi-trability unless there is clear and unmistakable evidence that they did so.” Id. at 944, 115 S.Ct. 1920 (citations and quotations removed).

¶29. After reviewing the opinion in Wedgeworth, it appears that no agreement existed to submit questions concerning the scope of the arbitration clause to the arbitrator within the Wedgeworth agreement. Such an agreement undoubtedly existed in all of the revised Customer Agreements in the record. Since the March 2000 Customer Agreement, by its own terms, did not cover Quimby’s line of credit account, no revised Customer Agreement predating Quimby’s disability claim required the question of arbitrability to be submitted to an arbitrator. Since we hold above that the arbitration clauses in AmSouth’s Customer Agreements must have specific retroactive application language to govern prior disputes, and that it was the parties’ intent for the revisions to the Customer Agreements to apply prospectively, it is immaterial whether subsequent Customer Agreements submitted the question of the scope of the arbitration clause to an arbitrator. Because the March 2004 and October 2004 Customer Agreements post-dated Quimby’s claims, the clauses submitting the question of arbitrability to the arbitrator did not cover his claims. This ground is likewise insufficient to find the circuit court in error.

¶ 30. In summary, the circuit court used the Wedgeworth opinion to find that Quimby’s claims were not covered by a valid arbitration clause. After the analysis above, we agree with and affirm its judgment. AmSouth’s arguments to the contrary fail to pass analysis under East Ford. The following issues were argued before the trial court. While they did not form the basis of the court’s ruling, both parties address the issues and so they are addressed briefly here.

II. Whether the trial court erred by not following First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995), and proceeding to decide the issue of temporal scope of the arbitration provisions, when those provisions expressly reserve that issue for the arbitrator.

¶ 31. This issue is examined more fully above. AmSouth argues that the trial court erred in deciding the scope of the arbitration agreement within the Customer Agreement because the agreement specifically referred such questions to the arbitrator. Quimby responds that state law principles of consideration, definite terms, mutual assent, and unconscionability apply to invalidate the arbitration clause in the Customer Agreement such that the Court was not bound to enforce its terms.

¶ 32. While each of the three Customer Agreements did contain a readily-identifiable agreement to submit the question of the scope of the arbitration agreement to the arbitrator, the analysis above demonstrates that none of the revised AmSouth Customer Agreements covered Quimby’s claims such that he was bound to arbitration. Therefore, the presence of this clause in the Customer Agreements does not require the court to enforce arbitration, and this issue is without merit.

III. Whether the trial court erred by failing to find the Parties bound to arbitrate a preexisting claim under the broad “any dispute” temporal scope provisions of AmSouth’s October 4, 2004 amended Account Agreement.

¶ 33. This issue also is discussed above. The arbitration clauses in the March and October 2004 Customer Agreements were insufficient under Mississippi law to receive retroactive application, because they did not contain specific terms stating so and the intent of the parties was for prospective application of the revisions to the Customer Agreements. While the March 17, 2000, Customer Agreement contained an arbitration clause, its terms did not cover line of credit accounts. Therefore, the use of the term “an/’ within the October 2004 Customer Agreement was insufficient to bind Quimby’s claims over to arbitration. This issue is without merit, and the circuit court’s judgment is affirmed.

IV. Whether section I of Union Planters Bank, National Association v. Rogers, 912 So.2d 116 (Miss.2005), which failed to find an arbitration contract by performance, should be overruled due to its conflict with Perry v. Thomas, 482 U.S. 483, 107 S.Ct. 2520, 96 L.Ed.2d 426 (1987) and Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996), which prohibit applying stricter scrutiny to the formation of an arbitration contract than any other contract?

V. Whether Section I of Union Planters Bank should be overruled due to its conflict with Perry and Casarotto, which mandate application of the Mississippi Uniform Commercial Code to the arbitration provisions at issue in a nondiscriminatory manner, thus allowing the adoption of the entirety of an account agreement (including its arbitration provisions) through maintenance or use of the account, by implication, ratification, estoppel and course of performance?

VI. Whether Section I of Union Planters Bank should be overruled due to its conflict with Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967), which prohibits invalidating arbitration provisions based upon a defense equally applicable to the account agreement as a whole-such as the method of adoption of the account agreement?

¶ 34. AmSouth uses the next three issues to argue that this court should overrule Union Planters Bank, National Association v. Rogers, 912 So.2d 116 (Miss.2005). This court will not address Rogers for two reasons. First, the issue was not argued before the trial court and it was given no opportunity to rule on this issue. The court did not cite Rogers in its opinion and it serves as no basis for the court’s ruling. This Court has stated, “[w]e accept without hesitation the ordinarily sound principle that this Court sits to review actions of trial courts and that we should undertake consideration of no matter which has not first been presented to and decided by the trial court.” Educ. Placement Serv. v. Wilson, 487 So.2d 1316, 1320 (Miss.1986). We find no reason to depart from this practice now.

¶ 35. Second, Rogers, is distinguishable. The mail-outs in Rogers, while bearing a striking resemblance to the Customer Agreements examined here, contained conflicting provisions which the court concluded required existing bank customers to execute a signature card and use their accounts before becoming bound by the arbitration agreement. Union Planters Bank, Nat’l Ass’n v. Rogers, 912 So.2d 116, 120 (Miss.2005). The AmSouth Customer Agreements do not appear to conflict in this way.

¶ 36. Further, Rogers concerned a checking account, or depository account, and the record contained the original signature, card on the account, which bound Rogers to its terms. Quimby’s account is a line of credit, and no signature card for this account nor any original contract stating the initial terms of the account appears in the record. Neither does the record contain any copy of any credit life or credit disability insurance policy applicable to Quimby. We find these reasons sufficient to forego an examination of Rogers in this case.

¶ 37. Ordinarily, in a claim against a credit disability policy case, we would expect to find within the record the credit disability policy or the loan agreement. In this case, we have neither before us, nor do we know whether either contains an agreement to arbitrate within its terms. The record does not even indicate whether Quimby owed any money at the time of his disability such that he may be entitled to benefits under a credit disability policy. Given these deficiencies in the record, we find no basis in the record for reversal.

CONCLUSION

¶ 38. The circuit court did not err when it relied upon the Wedgeworth case to deny arbitration. The terms of the arbitration clauses in the revised customer agreements were more broad than Wedgeworth, but contained no specific language of retroactive application to bind Quimby to its terms. Since Quimby’s line of credit account is not covered by an arbitration clause which became effective before the accrual of his action and claim for damages, Wedgeworth supports the court’s decision to deny arbitration and retain jurisdiction of this matter. Therefore, we affirm the judgment of the circuit court and remand this matter for further proceedings.

¶ 39. AFFIRMED.

SMITH, C.J., EASLEY, CARLSON, DICKINSON, RANDOLPH AND LAMAR, JJ., CONCUR. DIAZ, P.J., AND GRAVES, J., CONCUR IN RESULT ONLY.

      . American Heritage filed a motion for summary judgment prior to the hearing on the motion to compel arbitration and so remains a defendant below. It has not joined in this appeal.

      . Quimby had previously opened two separate checking accounts in 1981 and 1982 with First National Bank of Laurel, and a savings account in 1984 with Deposit Guaranty. First National Bank of Laurel also merged with AmSouth prior to December 1999.

      . Also, one amendment to the March 1, 2004, Agreement is applicable to "depository accounts” whose arbitration terms are identical to the March 2004 Customer Agreement.

      . For instance, the March 2000 Customer Agreement provides: “Any disagreement as to whether a particular dispute or claim is subject to arbitration under this paragraph shall be decided by arbitration in accordance with the provisions in this paragraph.”


source: Caselaw Access Project

author: CARLSON, Justice,

license: Public Domain

text:
    ONE SOUTH, INC. v. George F. HOLLOWELL, Jr., June H. Weathers and Williams S. Weathers.
    No. 2006-CA-01048-SCT.
    Supreme Court of Mississippi.
    Sept. 6, 2007.

      Harold H. Mitchell, Jr., Greenville, attorney for appellant.
    Jeffrey A. Levingston, Cleveland, attorney for appellees.
    Before DIAZ, P.J., CARLSON and RANDOLPH, JJ.
   CARLSON, Justice,

for the Court.

¶ 1. One South, Inc., instituted an action against the guarantors on a lease agreement for the lease of certain nonresidential real property. After the lessee, Hollowell Mercantile Company, Inc., missed two rental payments and filed for bankruptcy, One South regained possession of the property, but sought to have the lease agreement accelerated, with the guarantors to pay out the remaining portion of the lease agreement plus reasonable attorney fees. Under the assumption that One South had terminated the lease agreement by retaking possession of the property, the guarantors filed for partial summary judgment, asserting that since Hollowell Mercantile’s obligations ceased under the lease agreement, the guarantors’ obligations likewise ceased. After the trial court granted the guarantors’ motion for partial summary judgment and, in essence, denied One South’s motion for summary judgment, One South appealed to us. While we affirm the trial court’s grant of the guarantors’ motion for partial summary judgment, we find error in the trial court’s denial, in toto, of One South’s motion for summary judgment. Therefore, we affirm in part and reverse in part, remanding this case to the Washington County Circuit Court for an evidentiary hearing on the issue of the amount of reasonable attorney’s fees to be awarded to One South.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. On October 15, 2001, Hollowell Mercantile, Inc., entered into a five-year lease for certain nonresidential real property with One South, Inc., the drafter of the lease. Under the terms of the lease, it was to expire on September 15, 2006. As President of Hollowell Mercantile, William S. Weathers signed the lease on behalf of Hollowell Mercantile. On the same day, the Appellees, George F. Hollowell, Jr., June H. Weathers, and William S. Weathers (“guarantors”), as shareholders of Hol-lowell Mercantile, signed a separate guaranty agreement stating that they “jointly and severally, personally” guaranteed the obligations of Hollowell Mercantile under the lease agreement.

¶ 3. Thereafter, Hollowell Mercantile made monthly rental payments of $4,000 through February 2004. In March 2004, Hollowell Mercantile failed to make its monthly rental payment. On May 1, 2004, Hollowell Mercantile filed for bankruptcy under Chapter 11 in the United States Bankruptcy Court for the Northern District of Mississippi. During the bankruptcy proceedings, One South was awarded $8,000 in administrative expenses for the period of May 1, 2004, through June 80, 2004. Because Hollowell Mercantile failed to assume or reject the lease agreement during the sixty days following the bankruptcy court’s Order for Relief, the lease was deemed rejected pursuant to 11 U.S.C. § 365(d)(4). On August 28, 2004, One South filed a Motion to Lift Stay and Abandon Property, and on September 23, 2004, the bankruptcy judge entered an order lifting the automatic stay and allowing One South to regain possession of the property.

¶4. On February 1, 2005, One South filed suit against the guarantors in the Circuit Court of Washington County, seeking payment for two and one-half years of rental payments still remaining under the terms of the lease agreement as well as reasonable attorney’s fees. On February 8, 2006, One South filed a motion for summary judgment. Thereafter, on March 30, 2006, Hollowell Mercantile filed a motion for partial summary judgment, claiming that One South terminated the lease according to the provisions set out in Section 13.01 of the lease when it took possession of the property. Thus, the guarantors assert if they are liable at all, they are liable to One South only for the rental payments until September of 2004, minus the $8,000 already obtained by One South in the bankruptcy proceedings, for a total of $20,000.

¶ 5. On April 19, 2006, the Washington County Circuit Court entered an order granting the guarantors’ motion for partial summary judgment and finding that the lease has terminated on September 23, 2004. As such, the circuit court declared that the guarantors had no further obligations to One South after September 23, 2004. Additionally, the circuit court disallowed the payment of reasonable attorney’s fees by the guarantors because there was no express provision in the guaranty agreement requiring the payment of reasonable attorney’s fees. Based on the circuit court’s order, One South filed a Motion to Alter or Amend, or in the Alternative, For Relief From Judgment, which the trial court denied on June 3, 2006. Thereafter, on June 12, 2006, One South filed its Notice of Appeal to this Court assigning four assignments of error: (1) Whether the trial court erred in finding the lease had terminated; (2) whether the trial court erred in not finding that Hollowell Mercantile continued to be in default of the lease; (3) whether the trial court erred in failing to hold the guarantors liable for the obligations of Hollowell Mercantile under the lease; and (4) whether the trial court erred in the amount of damages it awarded One South. We have combined and restated the issues for clarity in discussion.

DISCUSSION

¶ 6. One South contends that the trial court improperly granted partial summary judgment in favor of the guarantors. In reviewing a trial court’s grant or denial of summary judgment, our well-established standard of review is de novo. Hubbard v. Wansley, 954 So.2d 951, 956 (Miss.2007). That being said, summary judgment is appropriate where “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Miss. R. Civ. P. 56(c). Additionally, “[t]he evidence must be viewed in the light most favorable to the party against whom the motion has been made.” Green v. Allendale Planting Co., 954 So.2d 1032, 1037 (Miss.2007) (quoting Price v. Purdue Pharma Co., 920 So.2d 479, 483 (Miss.2006)). “The moving party has the burden of demonstrating that [no] genuine issue of material fact[s] exists, and the non-moving party must be given the benefit of the doubt concerning the existence of a material fact.” Id. (quoting Howard v. City of Biloxi, 943 So.2d 751, 754 (Miss.Ct.App.2006)). Partial summary judgment is also permissible under our rules, utilizing the same criteria for a grant or denial of a summary judgment and the same standard of review on appeal. See Brown v. Credit Center, Inc., 444 So.2d 358, 363 (Miss.1983); Miss. R. Civ. P. 56(d).

I. WHETHER THE TRIAL COURT ERRED IN FINDING THAT THE LEASE HAD TERMINATED.

¶ 7. One South contends that the trial court should not have granted the guarantors’ motion for partial summary judgment, but instead should have granted its own motion for summary judgment. One South argues on appeal that the lease agreement between One South and Hollo-well Mercantile did not terminate, as the trial court determined, on September 23, 2004, and thus, was in full force and effect until September 15, 2006, when the lease agreement actually expired by its terms. The guarantors argue, contrary to One South’s assertions, that the trial court properly granted their motion for partial summary judgment. The guarantors assert that the trial court was correct in declaring the lease terminated when One South regained possession of the property.

¶ 8. To support its assertions, One South cites to Eastover Bank for Savings v. Sowashee Venture (In re Austin Development Co.), 19 F.3d 1077 (5th Cir.1994), for the proposition that a lease “deemed rejected” in bankruptcy court does not equate to a termination. While Austin offers guidance in interpreting 11 U.S.C. § 365(d)(4) of the bankruptcy code (the section applicable to this case), and concludes that “a debtor’s inaction in timely deciding to assume or reject a lease of nonresidential real property under § 365(d)(4), which leads to a deemed rejection, does not effect a termination of that lease,” the Fifth Circuit went further and stated that, once a lease is deemed rejected, the debtor’s bankruptcy estate has no remaining interest in the outcome of the litigation concerning the lease, and that such issues should be decided in state court by interpreting the contract provisions. Austin, 19 F.3d at 1083-84. Thus, we must look to the contract to determine if an actual termination occurred.

¶ 9. Since the determination of whether One South’s repossession of the property terminated the lease agreement between One South and Hollowell Mercantile is a matter of contract construction, we lay out the pertinent provision of the lease agreement below:

12.00 Bankruptcy-Insolvency. Tenant agrees that in the event (i) all or substantially all of Tenant’s assets are placed in the hands of a receiver or trustee and such receivership or trusteeship continues for a period of sixty (60) days; or (ii) Tenant makes an assignment for the benefit of creditors or is finally adjudicated bankrupt; or (in) Tenant institutes any proceedings under the Bankruptcy Act as the same now exists or may hereafter be amended, or under any other act relating to the subject of bankruptcy, including but not limited to any proceeding wherein Tenant seeks to be adjudicated bankrupt or to be discharged of its debts or to affect a plan of liquidation, composition, extension, or reorganization; or (iv) any involuntary proceeding is filed against Tenant under any such bankruptcy laws and such proceeding not be removed within ninety (90) days thereafter; then in any of such events, this Lease and any interest of Tenant in and to the Premises shall not become an asset in any of such proceedings, and in addition to any and all rights or remedies of Landlord hereunder or by law provided, the same shall be deemed an event of default under this Lease, and at the option of Landlord, Landlord may declare the term hereof ended and re-enter the Premises and take possession thereof and remove all persons therefrom, and Tenant shall have no further claim thereon or hereunder.
13.00 Defaults by Tenant. Should Tenant at any time be in default with respect to any rental payments or other charges payable by Tenant and should such default continue for a period of ten (10) days after written notice from Landlord to Tenant, or should Tenant be in default in the prompt and full performance of any other of its promises, covenants, or agreements herein contained and should such default or breach of performance continue for more than a reasonable time (in no event to exceed sixty (60) days) after written notice thereof from Landlord to Tenant, specifying the particulars of such default or breach of performance, then the occurrence of any one or more of the foregoing events shall be an event of default under this Lease, and in addition to any or all other rights or remedies of Landlord herein and by law provided, Landlord may, at Landlord’s option and without further notice or demand of any kind to Tenant or any other person, take any one or more of the following actions:
a. Declare the term hereof ended and re-enter the Premises and take possession thereof and remove all persons therefrom, in which event Tenant shall have no further claim thereon or hereunder; or
b. Perform or cause to be performed, on behalf and at the expense of Tenant, any or all of the undertakings or obligations as to which Tenant is in default, in which event Tenant shall pay to Landlord, upon demand, any costs or expenses incurred in performance of such undertakings or obligations, together with interest thereon; and the action of Landlord in performing such undertakings and obligations, or causing the same to be performed, shall not be deemed a curing of Tenant’s default and Landlord shall thereafter be entitled to exercise any or all of Landlord’s rights or remedies provided herein, or at law or in equity, as if such default remained uncured.
13.01 Termination Upon Default. Should Landlord elect to terminate this Lease pursuant to the provisions of Section 13.00 above, Landlord shall recover from Tenant as damages the amount of any unpaid rental or other payments due from Tenant which had been earned or accrued at the time or [sic] such termination.

¶ 10. We are reminded that “[t]he primary purpose of all contract construction principles and methods is to determine and record the intent of the contracting parties.” Facilities, Inc. v. Rogers-Usry Chevrolet, Inc., 908 So.2d 107, 110 (Miss.2005) (quoting Royer Homes of Miss., Inc. v. Chandeleur Homes, Inc., 857 So.2d 748, 752 (Miss.2003)). In order to determine and record the intent of the contracting parties, we focus upon the objective language of the contract. Id. at 110-111. Additionally, concerning the construction of contracts, this Court has consistently stated:

This Court has set out a three-tiered approach to contract interpretation. Pursue Energy Corp. v. Perkins, 558 So.2d 349, 351-53 (Miss.1990). Legal purpose or intent should first be sought in an objective reading of the words employed in the contract to the exclusion of parol or extrinsic evidence. [Cooper v. Crabb, 587 So.2d 236, 241 (Miss.1991).... ] First, the “four corners” test is applied, wherein the reviewing court looks to the language that the parties used in expressing their agreement. Pursue Energy Corp., 558 So.2d at 352 (citing Pfisterer v. Noble, 320 So.2d 383, 384 (Miss.1975)). We must look to the “four corners” of the contract whenever possible to determine how to interpret it. McKee v. McKee, 568 So.2d 262, 266 (Miss.1990). When construing a contract, we will read the contract as a whole, so as to give effect to all of its clauses. Brown v. Hartford Ins. Co., 606 So.2d 122, 126 (Miss.1992). Our concern is not nearly so much with what the parties may have intended, but with what they said, since the words employed are by far the best resource for ascertaining the intent and assigning meaning with fairness and accuracy. Simmons v. Bank of Miss., 593 So.2d 40, 42-43 (Miss.1992). Thus, the courts are not at liberty to infer intent contrary to that emanating from the text at issue. Id. (citing Cooper, 587 So.2d at 241). On the other hand, if the contract is unclear or ambiguous, the court should attempt to “harmonize the provisions in accord with the parties’ apparent intent.” Pursue Energy Corp., 558 So.2d at 352. Only if the contract is unclear or ambiguous can a court go beyond the text to determine the parties’ true intent. Id. “The mere fact that the parties disagree about the meaning of a contract does not make the contract ambiguous as a matter of law.” Turner, 799 So.2d at 32; Cherry v. Anthony, 501 So.2d 416, 419 (Miss.1987).
Secondly, if the court is unable to translate a clear understanding of the parties’ intent, the court should apply the discretionary “canons” of contract construction. Pursue Energy Corp., 558 So.2d at 352. Where the language of an otherwise enforceable contract is subject to more than one fair reading, the reading applied will be the one most favorable to the non-drafting party. Leach v. Tingle, 586 So.2d 799, 801-02 (Miss.1991) (citing Stampley v. Gilbert, 332 So.2d 61, 63 (Miss.1976)). Finally, if the contract continues to evade clarity as to the parties’ intent, the court should consider extrinsic or parol evidence. [Pursue Energy Corp., 558 So.2d at 358]. It is only when the review of a contract reaches this point that prior negotiation, agreements and conversations might be considered in determining the parties’ intentions in the construction of the contract.
Royer, 857 So.2d at 752-53 (emphasis added).

Facilities, Inc., 908 So.2d at 111.

¶ 11. Thus, looking at the “four corners” of the lease agreement, the language of the agreement is clear and unambiguous. Hollowell Mercantile defaulted on the lease agreement beginning in March 2004, by failing to make the requisite $4,000 monthly payment. Furthermore, by filing a Chapter 11 bankruptcy on May 1, 2004, Hollowell Mercantile placed the lease agreement in default. According to the plain language of the contract, upon default by the tenant, section 13.00 gave the landlord two options: (1) the landlord could terminate the lease agreement by declaring the term ended, and re-enter and take possession of the premises; or (2) the landlord could cause the tenant to perform its obligations and undertakings. By its actions, the landlord, One South, clearly elected to terminate the lease agreement by re-entering and taking possession of the premises.

¶ 12. Staying within the “four corners” of the unambiguous lease agreement, we note that section 13.01, entitled “Termination Upon Default,” states, “Landlord shall recover from Tenant as damages the amount of any unpaid rental or other payments due from Tenant which had been earned or accrued at the time o[f] such termination.” The lease agreement terminated on September 23, 2004, when the lease agreement was rejected and abandoned by the Bankruptcy Court because of the Motion to Lift Stay and Abandon Property filed by One South. Thus, based on the clear language of section 13.01, damages were limited to “unpaid rental or other payments due from Tenant which had been earned or accrued at the time o[f] such termination.”

¶ 13. Hollowell Mercantile was in default from March 2004 through September 2004, approximately seven months. Therefore, the remaining rent due to One South under the provisions of the lease was $4,000 a month for seven months, less the $8,000 administrative expense ordered by the Bankruptcy Court, which was paid on confirmation, for a total of $20,000. Because the damages are capped at $20,000, and Hollowell Mercantile remained in possession during the entire time that assessment of damages was applicable, the issue of mitigation by One South is moot.

¶ 14. However, One South argues that, although it repossessed the premises, it did not intend to terminate the lease. To support its contention, One South offers an affidavit, deposition, and live testimony of Gerald Abraham, One South’s president. However, as discussed, supra, “[w]e are not at liberty to infer intent contrary to the words employed because the words employed are the best resource for ascertaining the intent and assigning meaning with fairness and accuracy.” Facilities, Inc., 908 So.2d at 114; see Simmons, 593 So.2d at 42-43 (citing Cooper, 587 So.2d at 241). “Only when an appellate court is unable to determine the parties’ intent should extrinsic or parol evidence be reviewed.” Facilities, Inc., 908 So.2d at 116 (citing Pursue Energy Corp., 558 So.2d at 353). Since the lease agreement is not ambiguous or subject to more than one reasonable interpretation, we do not consider the affidavit, deposition, or Gerald Abraham’s live testimony concerning One South’s intent on termination.

¶ 15. We find that the trial court did not err in granting partial summary judgment in favor of the guarantors because, as a matter of law, according to the terms of the lease, One South terminated the lease and relieved Hollowell Mercantile from further liability when One South had the automatic stay lifted and regained possession of the property. As a result of Hollowell Mercantile being released from further liability, the guarantors’ liability also ceased. The amount of damages owed to One South after termination is controlled and limited by the lease agreement. Therefore, the trial court also was correct in limiting damages.

¶ 16. For the reasons discussed, this issue is without merit.

II. WHETHER THE TRIAL COURT ERRED IN FAILING TO HOLD THE GUARANTORS LIABLE FOR REASONABLE ATTORNEY’S FEES.

¶ 17. In the trial court’s order granting partial summary judgment in favor of the guarantors, the trial court stated, “[a]s the guaranty agreement contains no provisions for the collection of attorneys fee[s] from the guarantors this is hereby denied.” Thus, One South contends the trial court erred by not reading the guaranty agreement together with the lease agreement and finding the guarantors liable for reasonable attorney’s fees, in addition to the past-due rental payments. On the other hand, the guarantors assert that, without the guaranty agreement specifically obligating the guarantors to pay attorney’s fees, the guarantors are not liable for attorney’s fees.

¶ 18. To support its contention in support of an award of attorney’s fees, One South points to the guaranty agreement signed by the guarantors on October 15, 2001. The agreement reads as follows:

FOR GOOD AND VALUABLE CONSIDERATION, the undersigned shareholders of HOLLOWELL MERCANTILE COMPANY, INC. do hereby, jointly and severally, personally guarantee the obligations under the above and foregoing Lease Agreement.

The personal guaranty appears on the same page, directly below the signatures of the signatories to the lease agreement. The signatures of the individual guarantors appear directly below the personal guaranty, and likewise on the same page as the signatures of the signatories to the lease agreement. Like the lease agreement, the guaranty agreement is a contract, and a contract must be interpreted according to the four corners of the document unless it is ambiguous. Additionally, “under general principles of contract law, separate agreements executed contemporaneously by the same parties, for the same purposes, and as part of the same transaction, are to be construed together.” Doleac v. Real Estate Professionals, LLC, 911 So.2d 496, 506 (Miss.2005) (quoting Neal v. Hardee’s Food Systems, Inc., 918 F.2d 34, 37 (5th Cir.1990) (“although the parties used multiple agreements to delineate their relationship, each agreement was dependant upon the entire transaction .... The individual agreements were integral and interrelated parts of the one deal.”)). By construing the contracts together, the intent of the parties and the meaning of the two documents must be determined from the entire transaction. That being said, the only logical inference is that the intent of the parties and the meaning of the two documents should not be construed from isolated portions of the contracts. Therefore, the trial court erred in its finding that, since the guaranty agreement did not contain specific language addressing the payment of attorney’s fees, an assessment of attorney’s fees against the guarantors was inappropriate.

¶ 19. According to the guaranty agreement, the guarantors are liable to the extent that Hollowell Mercantile would be liable. Thus, we look at the lease agreement to determine if Hollowell Mercantile would be hable for attorney’s fees. As to attorney’s fees, the lease agreement states:

4.00 Rental Payments .... In addition, if any such rental or other payment is not received by Landlord by the due date, Tenant agrees that it shall reimburse Landlord for all costs and expenses incurred by Landlord in collection of same (including, but not limited to Landlord’s reasonable attorneys’ fees and expenses).

Additionally, section 18.01 states:

This Lease (including any Rider attached hereto) contains the entire agreement between the parties hereto, and the same may not be altered, varied, or modified in any way except in a writing making specific reference to this Lease and signed by the parties hereto. The terms and provisions of any Rider attached hereto and executed by the parties are incorporated herein and constitutes part of this Lease.

¶ 20. Since the lease agreement and the guaranty agreement were executed at the same time and by the same parties as part of the same transaction, the two documents are to be construed as one instrument. Under the instrument, the guarantors are liable for One South’s reasonable attorney’s fees and expenses for collecting the $20,000 past-due rental payments. Therefore, we find this issue to have merit, and we are thus compelled to remand this issue to the trial court to conduct an evi-dentiary hearing on the amount of reasonable attorney’s fees and expenses to be assessed against the guarantors and in favor of One South.

CONCLUSION

¶21. The trial court properly granted partial summary judgment in favor of the guarantors on One South’s allegations that the guarantors were liable for rental payments for the entire lease term. The lease agreement, by its terms, terminated when One South declared Hollowell Mercantile in default and repossessed the premises. As guarantors, George F. Hollowell, Jr., June H. Weathers, and William S. Weathers were liable only to the extent that Hollowell Mercantile could be found liable. Thus, once One South terminated the lease agreement with Hollowell Mercantile and regained possession of the property, no further rental payments accrued under the terms of the lease agreement. Therefore, we affirm the trial court’s grant of partial summary judgment in favor of the guarantors. However, as to One South’s motion for summary judgment, we reverse the trial court’s denial of reasonable attorney’s fees and expenses and remand this issue to the Circuit Court of Washington County for an evidentiary hearing to determine reasonable attorney’s fees and expenses the guarantors owe One South for collecting the $20,000 in past-due rental payments.

¶ 22. THE WASHINGTON COUNTY CIRCUIT COURT’S GRANT OF PARTIAL SUMMARY JUDGMENT IN FAVOR OF THE GUARANTORS, GEORGE F. HOLLOWELL, JR., JUNE H. WEATHERS, AND WILLIAM S. WEATHERS, AND AGAINST ONE SOUTH, INC., IS AFFIRMED; THE WASHINGTON COUNTY CIRCUIT COURT’S DENIAL OF ONE SOUTH, INC.’S MOTION FOR SUMMARY JUDGMENT IS AFFIRMED IN PART AND REVERSED IN PART AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

SMITH, C.J., WALLER AND DIAZ, P.JJ., EASLEY, GRAVES, DICKINSON, RANDOLPH AND LAMAR, JJ., CONCUR.

      . 11 U.S.C. § 365(d)(4) reads:
      If the trustee does not assume or reject an unexpired lease of nonresidential real property under which the debtor is the lessee within 60 days after the date of the order for relief, or within such additional time as the court, for cause, within such 60-day period, fixes, then such lease is deemed rejected, and the trustee shall immediately surrender such nonresidential real property to the lessor.

      . On April 19, 2006, the trial court entered an order entitled "Order Granting Defendants’ Motion for Partial Summary Judgment.” Although the trial judge acknowledged in this order that there had been a hearing on the “Plaintiff’s and Defendants' Motions for Summary Judgment,” the trial court, in this order, ruled only on the Defendants' motion for partial summary judgment. This omission would later cause One South to assert that the trial court had "remained silent as to One South's Motion for Summary Judgment, a silence that can only be interpreted within the context of the language of the final Order from the trial court to mean that One South’s motion was denied.” We agree with One South's interpretation of the trial court’s failure to rule on One South's motion for summary judgment.


author: DICKINSON, Justice,

text:
    Raphael GOODWIN, Jr., Administrator of the Estate of Barbara Gray Goodwin; Raphael Goodwin, Jr., Individually; Emma Delores Goodwin, A Minor, by and through Her Mother and Next Friend Valerie Hughes; and the Estate of Raphael Goodwin, Sr. v. CULPEPPER ENTERPRISES, INC., and APAC Mississippi, Inc. William Ivy v. Culpepper Enterprises, Inc., and APAC Mississippi, Inc.
    Nos. 2006-IA-00863-SCT, 2006-IA-00975-SCT.
    Supreme Court of Mississippi.
    Sept. 6, 2007.
    Henry Palmer, Will Parker, attorneys for appellants in No. 2006-IA-00863-SCT.
    Henry Palmer, attorney for appellants in No. 2006-IA-00975-SCT.
    Marcus Alfred Treadway, III, James D. Holland, Jay Max Kilpatrick, Erin S. Rodgers, Robert L. Wells, Jackson, attorneys for appellees.
    Before SMITH, C.J., DICKINSON and LAMAR, JJ.
   DICKINSON, Justice,

for the Court.

¶ 1. Plaintiffs, Barbara Gray Goodwin, Raphael Goodwin, Jr., and Emma Delores Goodwin (collectively, the “Goodwins”) appeal the circuit court’s order transferring venue of their claims from Lauderdale County to Covington County on the basis of forum non conveniens. Finding that, at the time this suit was filed, neither the common law nor the Mississippi Rules of Civil Procedure allowed an intrastate change of venue based on the doctrine of forum non conveniens, we reverse and remand.

BACKGROUND FACTS AND PROCEEDINGS

¶ 2. On June 20, 2002, Joseph McCrary was involved in a motor vehicle accident in Lauderdale County. Raphael Goodwin, Sr. (Mr. Goodwin) and Guy Thrasher died as a result of the collision, and suits were filed behalf of each. Additionally, several other claims for physical injuries and property damages resulted in eight separate suits. Two suits were brought in the Circuit Court of Lauderdale County, two in the County Court of Lauderdale County, and four in the Circuit Court of Covington County.

¶ 3. The Goodwins filed their complaint in the Circuit Court of Lauderdale County. On May 6, 2006, after conferring with the Circuit Judge of Covington County and the County Court Judge of Lauderdale County, the Lauderdale Circuit Court, on its own motion, transferred venue of all the Goodwin claims to the Covington County Circuit Court, with the exception of a claim against Mississippi Department of Transportation (MDOT).

¶ 4. In his order, Circuit Judge Robert Walter Bailey of Lauderdale County stated that the Circuit Court Judge of Coving-ton County “can entertain the trial much earlier than the Circuit Court of Lauder-dale County.” Judge Bailey also said, “in the interest of judicial economy, to prevent inconsistent verdicts and for the convenience of the parties, this court is of the opinion that the cases against the non-State defendant should all be tried in the Covington County Circuit before one jury and one judge.” Accordingly, the Lauder-dale County Circuit Judge entered an order transferring venue of all the Godwin claims to the Circuit Court .of Covington County. Aggrieved by the Court’s order to transfer venue, the Goodwins timely filed a Petition for Interlocutory Appeal, which was granted.

DISCUSSION

¶ 5. Change of venue is left to the discretion of the trial judge, whose ruling will not be disturbed on appeal unless it is a clear abuse of discretion. Earwood v. Reeves, 798 So.2d 508, 512 (Miss.2001) (quoting Miss. State Highway Comm’n v. Rogers, 240 Miss. 529, 128 So.2d 353, 358 (Miss.1961)).

I.

¶ 6. The Goodwins argue: (1) that the trial judge abused his discretion by transferring venue from Lauderdale County to Covington County, and (2) that it will be difficult for one jury to comprehend and analyze the facts of each lawsuit if all eight lawsuits are consolidated. Because we find the trial judge abused his discretion in transferring venue to Covington County, we find that first issue dispositive.

II.

¶ 7. Neither side disputes that both Covington County and Lauderdale County qualify as proper venues for the suits at issue. Section 11-11-3 of the Mississippi Code states that civil actions “shall be commenced ... in the county where a substantial alleged act or omission occurred or where a substantial event that caused the injury occurred.” Miss.Code Ann. § 11-11-3 (Rev. 2004). However, the Goodwins chose to file their suit in Laud-erdale County. When this suit was filed on June 27, 2002, Mississippi had no rule allowing intrastate transfer of venue based on forum non conveniens. The applicable rule on the issue was announced in Clark v. Luvel Dairy Products, Inc., 731 So.2d 1098, 1107 (Miss.1998), wherein this Court held that the doctrine oí forum non conve-niens is “inapplicable when the trial court is faced with a choice of venue between two Mississippi counties.”

¶ 8. In 2004, this Court promulgated Mississippi Rule of Civil Procedure 82(e), which allows intrastate transfer of eases for forum non-conveniens. This amendment to Rule 82, however, was not retroactive, and applied only to cases filed after February 20, 2004. Miss. R. Civ. P. 82(e). Since the instant ease was filed on June 27, 2002, prior to the effective date of Rule 82(e), the doctrine of forum non conve-niens was not available and, therefore, the trial court abused its discretion by transferring venue to Covington County.

¶ 9. Therefore, we must reverse the order to transfer venue, and we remand this case to the Circuit Court for the Tenth Judicial District of Lauderdale County, Mississippi, to conduct proceedings consistent with this Court’s opinion.

¶10. REVERSED AND REMANDED.

SMITH, C.J., WALLER AND DIAZ, P.JJ., CARLSON, GRAVES, RANDOLPH AND LAMAR, JJ., CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.


author: MYERS, P.J.,

text:
    Earnest SMITH, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-01700-COA.
    Court of Appeals of Mississippi.
    Feb. 6, 2007.
    Rehearing Denied May 29, 2007.
    Earnest Smith, appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.

      Before MYERS, P.J., CHANDLER and ROBERTS, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Earnest Smith takes his appeal from the order of the Circuit Court of Sunflower County denying his motion for post-conviction collateral relief on the merits. Smith argues intervening court decisions allow him to bypass the applicable statute of limitations which would otherwise time bar his collateral attack. We And that Smith did not prove that intervening decisions existed so as to provide an exception to the procedural time bar of Mississippi Code Annotated section 99-39-5(2) (Supp.2006) and affirm the lower court’s dismissal of his post-conviction relief motion.

FACTS AND PROCEDURAL HISTORY

¶ 2. In 1995, Smith entered guilty pleas to several different drug and weapon charges, including possession of cocaine with intent to sell or distribute, possession of marijuana with intent to sell or distribute, and three counts of possession of firearms by a convicted felon. Smith was sentenced on these counts as a habitual offender, pursuant to Mississippi Code Annotated section 99-19-81, based on four prior felony convictions. Subsequent to his entry of the guilty plea, Smith was sentenced to serve concurrent, respective terms of thirty years, twelve years, three years, three years and three years on the above referenced charges, without the benefit of probation or parole, in the custody of the Mississippi Department of Corrections. More than nine years later, in 2004, Smith filed a motion for post-conviction relief asserting that the habitual offender statute under which he was sentenced is unconstitutional because it does not require a jury trial to determine whether an offender meets the eligibility requirements for enhanced punishment.

ANALYSIS

¶ 3. Pursuant to Mississippi Code Annotated section 99-39-5(2), the applicable statute of limitations for a prisoner to bring a motion for post-conviction collateral relief runs three years after the entry of the guilty plea or judgment of conviction. However, the three-year statute of limitations does not bar post-conviction relief where the prisoner can demonstrate there has been an intervening decision of the United State Supreme Court or the Mississippi Supreme Court which would have actually adversely affected the outcome of his conviction or sentence. Miss.Code Ann. § 99-39-5(2).

¶ 4. Smith filed this action alleging deprivation of his constitutional due process rights guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution, claiming he was sentenced unconstitutionally under our habitual offender statute, Mississippi Code Annotated section 99-19-81 (Rev.2000), which does not provide for a jury trial to determine the issue of whether an offender is eligible for the enhanced punishment. He attacks his sentence outside of the applicable statute of limitations, asserting that the exception of intervening court decisions applies so as to allow his claim to avoid the time bar. Smith argues that the United States Supreme Court decisions of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), stand for the proposition that his constitutional rights were violated because he was entitled to a jury trial to determine whether he was eligible for enhanced punishment under the state’s habitual offender statute.

¶ 5. We find Smith’s argument unavailing, as his assertions are based on a misperception of the law. The United States Supreme Court, the Mississippi Supreme Court, as well as this Court, have made clear that an offender has no entitlement to a jury trial on the issue of whether or not he qualifies for enhanced punishment under the habitual offender statute. Apprendi, 530 U.S. at 476, 120 S.Ct. 2348 (noting that “ ‘under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.’ ”) (quoting Jones v. United States, 526 U.S. 227, 243, n. 6, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999)); Blakely, 542 U.S. at 301, 124 S.Ct. 2531 (holding that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury”); Adams v. State, 410 So.2d 1332, 1334 (Miss.1982) (holding that no entitlement exists to a jury trial on the issue of whether an offender is qualified to be a habitual offender); Wildee v. State, 930 So.2d 478, 481(¶ 2) (Miss.Ct.App.2006) (recognizing that prior convictions are an exception to the requirement of jury determination of enhancing sentencing factors). Smith misinterprets the holdings of the United States Supreme Court decisions of Apprendi and Blakely, asserting that his sentence is unconstitutional because the issue of his habitual offender status was not adjudicated by a jury.

¶ 6. Our review of a lower court’s denial of a motion for post-conviction relief is limited to reversal only when the decision is clearly erroneous. Kirksey v. State, 728 So.2d 565, 567(¶8) (Miss.1999). Smith failed to prove that an intervening decision of the United States Supreme Court or the Mississippi Supreme Court excepts the procedural time bar of his claim pursuant to Mississippi Code Annotated section 99-39-5(2). Therefore, the decision of the lower court to dismiss Smith’s motion for post-conviction relief is affirmed.

¶ 7. THE JUDGMENT OF THE CIRCUIT COURT OF SUNFLOWER COUNTY DENYING THE PETITION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SUNFLOWER COUNTY.

KING, C.J., LEE, P.J., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. CARLTON, J., NOT PARTICIPATING.