author: SOUTHWICK, J.,

text:
    Evelyn TOLBERT, Administratrix of the Estate of Elizabeth Moffett, Appellant, v. SOUTHGATE TIMBER COMPANY, Appellee.
    No. 2005-CA-02293-COA.
    Court of Appeals of Mississippi.
    Nov. 21, 2006.

      Robert A. Davis, Hattiesburg, attorney for appellant.
    Matthew Anderson Taylor, attorney for appellee.
    Before MYERS, P.J., SOUTHWICK and GRIFFIS, JJ.
   SOUTHWICK, J.,

for the Court.

¶ 1. The estate of a long-deceased owner of land brought suit against timber cutters whose rights to the timber were granted by only two of a large number of heirs who owned the property. The chancellor dismissed, finding that the estate was not a proper party and that adding the true parties in interest would be futile since they would have no cause of action against the timber cutters. We disagree. Therefore we reverse, order the substitution of the heirs, and remand.

FACTS

¶ 2. Elizabeth Moffett died intestate in 1917. Apparently no estate was opened at that long-ago time. However, estate proceedings were finally commenced in 1965 for the purpose of defending against an eminent domain suit concerning approximately 120 acres of land Moffett had owned in Jones County, Mississippi. The estate was closed in 1971.

¶ 8. Moffett had ten children. One died without issue. The 120 acres that she owned at her 1917 death is now owned by the heirs and devisees of the nine children. Among those heirs are Elouise Gaines and Nathaniel Crump, who own a combined 5/72 interest in the property. On July 19, 1999, Gaines and Crump executed warranty timber deeds on the 120 acres to Mark Isle and Jesse Edwards. Southgate Timber Company then contracted with Isle and Edwards for the timber.

¶ 4. After the timber was cut, the Mof-fett estate was reopened solely to authorize suit against the timber deed grantees and their assign, Southgate. On July 18, 2000, Evelyn Tolbert, as newly-named ad-ministratrix of the Moffett estate, filed suit against Southgate, Isle, and Edwards. Southgate later filed a cross-claim against Isle and Edwards, and a third-party complaint against the cotenants Gaines and Crump. Isle and Edwards were not served with process and have never appeared. A month later, two individuals claiming to own an interest in the property filed to intervene.

¶ 5. In May 2004, Southgate filed a motion to dismiss for failure to state a claim upon which relief may be granted and for lack of subject matter jurisdiction, or in the alternative for summary judgment. The estate sought to amend the complaint to add some of the Moffett heirs as plaintiffs. The chancellor denied the motion to amend and granted the defense motion to dismiss. The estate’s appeal has been deflected to this Court.

DISCUSSION

1. Standing

¶ 6. The administratrix of the Mof-fett estate brought suit to recover the fair market value of the trees that the defendants cut from the property, claiming that the owners other than those from whom timber deeds had been obtained must be compensated. The chancellor found that the estate was not a proper plaintiff in this litigation, since title to an intestate’s real property descends to that person’s heirs and does not pass through the estate. That proposition is a venerable one:

These lands, which belonged to Charles McCarroll in his life time, descended to his heirs upon his death. The title became vested in them, and can only be divested by the decree of the probate court, upon proceedings instituted and conducted according to the statutes of the state. The administrator, as such, had no interest in the lands, and can only take possession in the mode and for the purposes enumerated by the law. One case is given by the statute in which he may sell the real estate, and that is when the personal property is insufficient to discharge the debts of the deceased. Another is, perhaps, when it can be shown that it was for the interest of the heirs to convert it into money. But in any proceeding, in one case or the other, the heirs must have notice.

Campbell v. Brown, 7 Miss. 230, 235 (1842). Several decades after Campbell, the high court stated that the “common law is that the land descends directly and immediately upon the death of the ancestor to the heir.” Moore v. Ware, 51 Miss. 206, 210-11 (1875). The administrator of an estate “has no interest in the real estate, or right or power over it,” except under long-existing statutory right for real property to be pulled into the estate when personal property is insufficient to satisfy debts. Id.; see Miss.Code Ann. § 91-7-195 (Rev.2004). In the year after the just-cited Moore decision, the court again discussed the statute that permits an estate to claim real property:

The meaning which has been uniformly given to the statute is, that, while the land descends directly to the heir, it goes incumbered with the “charge;” and though the administrator has no title or interest in it, yet, when the contingency arises of the insolvency of the personal estate, he may assert his dormant right to the real estate, and appropriate it as assets.

Partee v. Kortrecht, 54 Miss. 66, 69 (1876). That charge did not exist here.

¶ 7. Other statutes make specific provision for an administrator’s litigation authority. An estate administrator may bring suit regarding claims that arise during administration, such as to protect assets of the estate. Miss.Code Ann. § 91-7-231 (Rev.2004). The real property having passed directly to Moffett’s heirs in 1917, it would never have been an asset of the estate. An estate may also bring suit on claims that survived the death of the testate. Miss.Code Ann. § 91-7-233 (Rev. 2004). The claim for timber damages arose long after Moffett’s death. Indeed, the claim arose over eight decades after Moffett’s death, and is now being pursued in the next century.

¶ 8. Standing to bring suit exists in Mississippi if a party can “assert a color-able interest in the subject matter of the litigation or experience an adverse effect from the conduct of the defendant.” Harrison County v. City of Gulfport, 557 So.2d 780, 782 (Miss.1990). The requirement for standing “focuses judicial review on a plaintiffs legal interest and a defendant’s legal duty.” City of Picayune v. Southern Reg’l Corp., 916 So.2d 510, 526 (Miss.2005).

¶ 9. Tolbert filed suit as the administra-trix of Moffett’s reopened estate. The estate had no colorable claim to the long-deceased Moffett’s real property, nor any authority to bring suit regarding it. Whatever convenience arises from having an entity such as an estate represent a large number of heirs does not override the requirement that the actual parties in interest be the plaintiffs.

¶ 10. Reasonable time is to be given after an objection to substitute the proper entity or individuals who are the actual parties in interest. M.R.C.P. 17(a). The chancellor noted that an amendment to add new plaintiffs might correct the problem of using the estate as the representative plaintiff. The chancellor found that questions would also need to be resolved regarding whether the amendment would relate back in time so as to overcome a statute of limitations hurdle. M.R.C.P. 15; Miss.Code Ann. § 95-5-29 (Rev.2004) (beginning March 29, 1999, two-year statute of limitations applicable to Section 95-5-10 claims). However, the chancellor concluded that even if some of the actual owners of the real property became named plaintiffs, they had no cause of action against the named defendants. There was no claim to be made and the defendants were thus entitled to judgment, the court held, because the suit was controlled by Mississippi Code Section 95-5-10. Since whether the cited statute actually does control the litigation is the fulcrum on which the result of this appeal turns, we closely examine both the statute and the claims made in the complaint.

2. Cause of action under Section 95-5-10

¶ 11. The chancellor found that this litigation was governed by the following statute:

(1) If any person shall cut down, deaden, destroy or take away any tree without the consent of the owner of such tree, such person shall pay to the owner of such tree a sum equal to double the fair market value of the tree cut down, deadened, destroyed or taken away, together with the reasonable cost of reforestation, which cost shall not exceed Two Hundred Fifty Dollars ($250.00) per acre. The liability for the damages established in this subsection shall be absolute and unconditional and the fact that a person cut down, deadened, destroyed or took away any tree in good faith or by honest mistake shall not be an exception or defense to liability. To establish a right of the owner prima facie to recover under the provisions of this subsection, the owner shall only be required to show that such timber belonged to such owner, and that such timber was cut down, deadened, destroyed or taken away by the defendant, his agents or employees, without the consent of such owner. The remedy provided for in this section shall be the exclusive remedy for the cutting down, deadening, destroying or taking away of trees and shall be in lieu of any other compensatory, punitive or exemplary damages for the cutting down, deadening, destroying or taking away of trees but shall not limit actions or awards for other damages caused by a person.

Miss.Code Ann. § 95-5-10 (Rev.2004). Section (2) of the statute provides for a heightened penalty in certain circumstances, but the operative language for our review is in the quoted subsection.

¶ 12. Long ago the Supreme Court concluded that because the statute was highly penal, it must be construed narrowly. If the owner of an interest in the land authorized the cutting of timber, the remaining owners have no claim under the statute. The right to the penalty is a joint right; what bars one owner to the penalty bars all owners. Bollinger-Franklin Lumber Co. v. Tullos, 124 Miss. 855, 859-60, 87 So. 486, 486 (1921). Since two owners authorized the cutting of timber from the Moffett land, other owners may not use the penalty statute for their claims.

¶ 13. However, the rule has also been that an action for waste may be available when the statute does not offer a remedy. In one precedent, a mother deeded land to her four children, reserving a life estate. Threatt v. Rushing, 361 So.2d 329, 330 (Miss.1978). One child deeded her interest back to her mother. Id. The mother then authorized the cutting of trees on the property; three children sued her and the timber cutters. At the time of suit, the cutting had commenced but was not completed. Id. The Supreme Court upheld an injunction and money damages against the mother and the timber company she employed. Id. at 333. The court discussed the doctrine of waste that applied to these actions. Id. at 332. In order to avoid liability for waste resulting from reducing the value of the land, a cotenant must have the consent of all cotenants to sever timber. Id. The final holding in the case, without analysis, was that it was proper also to hold the timber cutters liable to account for the timber already sold. Id. at 330, 333. The penalty statute was not even mentioned, perhaps because of precedents such as Bollinger-Franklin Lumber, but the Supreme Court found that the nonconsenting cotenants had the remedy of a suit for damages under the doctrine of waste.

¶ 14. In a 2000 opinion, this Court relied on Threatt to state that even though cotenants could not sue under Section 95-5-10 for the penalty, “this is not to say that the other tenants are without remedy against [the cotenant] and [the timber company] under the common law doctrine of waste for their share of the value of the timber cut.” Fly Timber Co. v. Waldo, 758 So.2d 1067, 1072 (citing Threatt, 361 So.2d at 333). Between the dates of Threatt and Fly, several changes were made to the timber penalty statutory approach, including adding this sentence:

The remedy provided for in this section shall be the exclusive remedy for the cutting down, deadening, destroying or taking away of trees and shall be in lieu of any other compensatory, punitive or exemplary damages for the cutting down, deadening, destroying or taking away of trees but shall not limit actions or awards for other damages caused by a person.

1989 Miss. Laws ch. 558, § 1, codified in Miss.Code Ann. § 95-5-10(1) (effective July 1, 1989). In Fly, we applied Threatt without analysis of the intervening and amending language that the statutory penalty was the exclusive remedy for claims involving the cutting down of trees.

¶ 15. We re-examine the Fly holding in the context of the facts of the present appeal. In our case, two cotenants authorized the taking of every other cotenants’ property. The actual cutting was accomplished by third parties. No single coten-ant has the right to cut the timber. In the past, failure of cotenants to abide by that limitation would subject them to claims for waste from other cotenants. A partition action or “some other form of litigation” was the proper remedy if cotenants could not agree on whether to have their timber cut. Threatt, 361 So.2d at 332.

¶ 16. These rights among cotenants— partition action before the cutting or a claim for waste if the cutting occurred without all owners’ permission — have historically coexisted with the penalty statute in the field of remedies for improper cutting of timber. The judicial interpretations that made the penalty inapplicable if some individuals with possessory interests granted permission to cut, also permitted actions for waste. The question in this appeal is the effect of the 1989 provision that the penalty was the exclusive remedy with one exception, and no other “compensatory, punitive or exemplary damages” are collectible.

¶ 17. The only statutory exception to the exclusive remedy is that the penalty for cutting and taking away timber “shall not limit actions or awards for other damages caused by a person.” Id. This Court has discussed the meaning of “other damages”:

The court went on to speculate that “other damages to which this statute refers would be to property or persons incurred during the cutting of trees, unrelated to the destruction or damage of the trees.” McCain [v. Memphis Hardwood Flooring Co., 725 So.2d 788,] 794(1121) [ (Miss.1998) ]. The Encyclopedia of Mississippi Law gives more insight as to what is meant by damages unrelated to this destruction of trees, and list examples such as “damage to roads, fences, other improvements, or to the soil.” [Ogletree, “Resources: Timber, Water & Wildlife,” in 7] Jeffrey Jackson & Mary Miller, [Ency. of Miss. Law] § 63:13[n.1],

Smith v. Parkerson Lumber, Inc., 888 So.2d 1197, 1203 (Miss.Ct.App.2004).

¶ 18. Southgate in effect argues that in 1989, the statute displaced every form of suit formerly coexisting with the statutory penalty. Despite the statute’s allegedly broadened scope, Southgate would continue to give effect to precedents that made the statute unavailable to any group of cotenants who seeks damages against another group. Such an interpretation immediately creates situations in which no remedy exists for some takings of private property.

¶ 19. To understand the present statute better, we examine the acts of its creation. The 1989 enactment collapsed into one statute what previously had been divided into five, distinguished in the past by the type of trees cut. Miss.Code Ann §§ 95-5-1 through 95-5-9 (Rev.2004), Ed. Note. Formerly, the good faith of the timber cutter was an affirmative defense. E.g., Miss.Code Ann. §§ 95-5-1 & 95-5-3 (1972). In 1989, good faith was withdrawn as a defense, and the penalty was made the exclusive remedy. Miss.Code Ann. § 95-5-10(1). A heightened penalty was provided for cutting in reckless disregard of owners’ rights. Miss.Code Ann. § 95-5-10(2).

¶ 20. The statutory penalty for cutting of trees has existed in some form at least since 1822. Miss.Code Ch. 12, art. 6, § 7 (1848). Recovery of the penalty or actual damages had long been allowed. Mhoon v. Greenfield, 52 Miss. 434, 438-39 (1876). Until an amendment in 1924, the penalty was the only remedy mentioned in the statutes. E.g., Miss.Code § 3246 (1917). The 1924 amendment created a right to collect both the penalty and damages for the actual value, but only for cypress and certain other specified trees. 1924 Miss. Laws ch. 167, codified Miss.Code § 3411 (1930); Miss.Code § 1075 (1942); Miss. Code Ann. § 95-5-3 (1972). That 1924 change may have been a result of a 1921 opinion, which had held that actual damages and the penalty could not both be collected. Bollinger-Franklin Lumber, 124 Miss, at 860, 87 So. at 486. Regardless of whether the exclusive remedy phrase means more, it at least means that a plaintiff no longer has a right to choose between actual damages and the penalty, and also has no right as to some trees to recover both.

¶ 21. To interpret the 1989 enactment, we are mindful of the canon of construction that when the legislature leaves statutory language unchanged, it presumably ratifies settled judicial interpretations of that language. In re Kelly’s Estate, 193 So.2d 575, 577-78 (Miss.1967). As early as 1900 and never wavering thereafter, the Supreme Court found the penalty to be unavailable if any cotenant consented to the timber cutting. Haley v. Taylor, 77 Miss. 867, 871, 28 So. 752, 753 (1900); Bollinger-Franklin Lumber, 124 Miss. at 860, 87 So. at 486. We presume the 1989 legislature knew of the interpretation and if it wished to overturn the nearly ninety-year-long judicial view about consent by a cotenant, changes to the consent provision would have been made. Instead, the statutory approach has since the 1900 decision provided for the penalty simply if “the owner” did not consent. E.g., Miss.Code Ann. § 4412 (1892); Miss.Code Ann. § 99-5-10(1) (Rev.2004). Also judicially established was that waste occurs if all coten-ants did not agree to the cutting. Threatt, 361 So.2d at 332. It is unreasonable to interpret the 1989 statute as reversing Threatt’s conclusions about title and authority of cotenants regarding timber. Cotenants were not authorized now to race each other in the cutting of their jointly owned timber, with the winner retaining the prize of the proceeds. The change was written in terms of remedies, not rights. The statute did not alter title to timber, which would be a statutory redistribution of private property, nor did it address one cotenant’s legal obhgation to gain the permission of all before cutting timber.

¶ 22. Another source of information about the breadth of statutory change is the description of the purposes that appear in an enactment’s caption. Aikerson v. State, 274 So.2d 124, 127-28 (Miss.1973), overruled on other grounds in Conley v. State, 790 So.2d 773, 796 (Miss.2001). The act’s caption states that the new statute provides for a penalty in twice the amount of the value of the trees together with costs of replanting, increases the penalty when the cutting is willful, repeals the prior five statutes, and serves related purposes. 1989 Miss. Laws ch. 558, caption. There is no indication of a much bolder purpose such as to repeal the causes of action for waste or to limit remedies that were traditionally available to those who did not have a right to the statutory penalty. The caption does not mention exclusivity. It reveals a plan to simplify and consolidate the penalty provisions, not to abolish remedies used by those generically beyond the aid of the statute. If a revolution was being organized on this field of law, its heralding trumpet was surprisingly muted.

¶23. Also creating parameters for our analysis is the rule that to deny a class of injured persons any right to make a claim clashes with the provision that “every person for an injury done him in his lands, goods, person, or reputation, shall have remedy by due course of law....” Miss. Const, art. 3, § 24. The constitutionality of a statute is presumed, and it should be interpreted in a manner to avoid constitutional defect if that is possible without doing violence to the language. Estate of Smiley, 530 So.2d 18, 22-23 (Miss.1988). When there are two constructions that could be put on a statute, one permitting the statute to be found consistent with constitutional requirements and the other not, then the constitutional interpretation is to be chosen. This has been described as a “duty to adopt a construction of the statutes which would purge the legislative purpose of any constitutional invalidity.... ” Cole v. Nat’l Life Ins. Co., 549 So.2d 1301, 1305 (Miss.1989) (quoting Sheffield v. Reece, 201 Miss. 133, 28 So.2d 745, 749 (1947)).

¶ 24. We examine prior precedents of the state’s appellate courts to determine what interpretation has already been given to the exclusive remedy provision. The traditional non-statutory remedy against third-party timber cutters without authority from any owner was a suit for trespass and conversion. Greenlee v. Mitchell, 607 So.2d 97, 111 (Miss.1992); Gilmore-Puckett Lumber Co. v. Bank of Tupelo, 177 Miss. 152, 161, 170 So. 682, 683 (1936). The cited 1992 precedent referred to the 1989 enactment of Section 95-5-10, noted that the exclusive remedy provision applied only to causes of action arising after its passage, and found a trespass and conversion action still available in that suit. Greenlee, 607 So.2d at 111-12.

¶ 25. In the only Supreme Court opinion to analyze the exclusive remedy phrase, the landowners argued from pre-1989 precedents that they could sue for actual damages and for the statutory penalty. McCain v. Memphis Hardwood Flooring Co., 725 So.2d 788, 789 (Miss.1998), overruled on other grounds by Stockstill v. Gammill, 943 So.2d 35, 46—49, 2004-CA-02193-SCT (¶¶ 23-28) (Miss. Oct. 26, 2006). As we have already discussed, the statutory right to sue for both the penalty and damages was repealed by Section 95-5-10. McCain, 725 So.2d at 791. The McCain timber cutter had encroached on the plaintiffs’ property while cutting on adjacent land; the cutting on the plaintiffs’ land was a trespass. Id. at 789. The Supreme Court stated that the 1989 enactment had removed the right to sue for actual value of certain kinds of trees in addition to the penalty, and that the only claim that these landowners had for the trespass and conversion of trees on their land was the statutory penalty. Id. at 791-92. A quite recent decision adjusted McCain’s analysis of applicable statutes of limitations but did not delve into exclusivity. Stockstill, 943 So.2d at 46-49, 2004-CA-02193-SCT (¶¶ 23-28).

¶ 26. We discovered eight Supreme Court opinions since 1989 that cite this statute, but other than the ones discussed above, the cases do not reach this remedy point. E.g., Memphis Hardwood Flooring Co. v. Daniel, 771 So.2d 924, 930 (Miss. 2000) (consent for cutting obtained from the proper owner was procured by fraud; nothing useful to today’s issues was discussed).

¶ 27. This Court has several times found the penalty statute to be inapplicable. We allowed suit by a remainderman against the life tenant for waste since the statutory penalty was never available to such a claimant. Twin States Land & Timber Co. v. Chapman, 750 So.2d 567, 572 (Miss.Ct.App.1999). When a cotenant had timber cut because of permission granted by another cotenant, a suit for common law waste could be brought against the timber cutter “in lieu of the inapplicable statutory damages contained in § 95-5-10.” Fly, 758 So.2d at 1072. We even, somewhat expansively, allowed individuals who had only a contingent interest when the landowner consented to having the timber cut, to claim waste after exercising their option to purchase the land. McCorkle v. Loumiss Timber Co., 760 So.2d 845, 852-53 (Miss.Ct.App.2000).

¶ 28. Less relevant, we stated in another suit that it would have been futile for a landowner to add a common law trespass count to her complaint against a person for cutting her timber, since Section 95-5-10 was the exclusive remedy. Jones v. Lovett, 755 So.2d 1243, 1247-48 (Miss.Ct.App. 2000); but see Stockstill, 943 So.2d at 47, 2004-CA-02193-SCT (¶23 n. 7). It appears that no permission for the cutting had been granted. The penalty statute was thus the proper, sole, and squandered remedy.

¶29. As noted, several of our opinions allowed suits for waste to proceed when the claimants were among those who would never be entitled to the statutory penalty. The chancellor in this case believed that we erred when labeling a suit by owners against a third party without an ownership interest a claim for waste. We agree with the chancellor that at common law, when an owner of timber sued a complete stranger for the taking of timber, that was an action for trespass and conversion. Masonite Corp. v. Williamson, 404 So.2d 565, 567-68 (Miss.1981). However, when some but not all with ownership interests authorized agents to conduct the cutting, those claims are for waste whether against the contracting owners or against their agents as joint tortfeasors. Learned v. Ogden, 80 Miss. 769, 779-80, 32 So. 278, 279 (1902). Waste is a “substantial injury-done to the inheritance, by one having a limited estate, during the continuance of his estate.” Moss Point Lumber Co. v. Bd. of Supervisors of Harrison County, 89 Miss. 448, 526, 42 So. 290, 300 (1906). A claim for waste against those involved in the cutting of commonly-owned timber does not depend on who wielded the ax. It depends on whether an owner approved the wielding.

¶ 30. We acknowledge that a plausible grammatical argument exists that no other remedy survived making the statute the “exclusive remedy for the cutting down” of trees. The statute imposes liability for cutting “by the defendant, [or by] his agents or employees, without the consent of such owner....” Miss.Code Ann. § 95-5-10(1). That phrasing might bring within its literal reach an owner’s claims not only against the timber cutters but also against any cotenant who assigned the right to cut. If consent by any owner still prevents an award of the penalty and the penalty now is the only remedy, then a cotenant would be prevented from recovering from anyone. Only if the taking of the timber was not a legal wrong at all would this denial be acceptable. Ensminger v. Ensminger, 222 Miss. 799, 806, 77 So.2d 308, 310 (1955) (court’s holding regarding interspousal immunity overruled in Bums v. Bums, 518 So.2d 1205, 1207 (Miss. 1988)). On the other hand, “the breach of a legal duty owed by one person to another when damages have resulted therefrom gives the right to a cause of action.” Stokes v. Newell, 174 Miss. 629, 641, 165 So. 542, 545 (1936).

¶ 31. Authorizing one cotenant to take other cotenants’ property without providing any recourse would run afoul of the constitution’s provision that “every person for an injury done him in his lands ... shall have remedy by due course of law....” Miss. Const, art. 3, § 24. The state cannot provide both that the statute is now the sole remedy and that cotenants cannot use the statute. This is not a sophisticated allusion, but such logic could be labeled a “Catch-22.” In a 1961 book by that title written by Joseph Heller, nonexistent choices are the only ones offered. If the statute provides an actual remedy to someone wronged by timber cutting, it may be made exclusive even when forfeited because of delay. McCain, 725 So.2d at 793. However, if there is no adequate remedy at law, equity will step in. Emmons v. Emmons, 217 Miss. 594, 600, 64 So.2d 753, 755 (1953) (“equity will not suffer a wrong without a remedy.”) From the earliest precedents that denied the penalty to some cotenants when other co-tenants consented, actual damages have been available. Haley, 77 Miss. at 871-72, 28 So. at 753 (actual damages awarded); Bollinger-Franklin Lumber, 124 Miss. at 859, 87 So. at 486 (actual damages not proved). Equity first stepped in over a century ago on facts such as these. The 1989 statute, constitutionally interpreted, did not presume to evict it.

¶ 32. In summary, the penalty as interpreted since 1900 does not apply to claims that fit the definition of waste. Claims for waste that were not subject to the statutory penalty included those made by interest owners against third parties who were authorized by other interest owners to cut timber. Until 1989, the statutory penalty had been an alternative remedy solely for claims that under the common law were for trespass and conversion. After 1989, the statute is not one alternative but is the exclusive claim that may validly be made for damage arising from trespass and conversion, in which no owner consented to the cutting. In other words, within its area of coverage, the statute in 1989 eliminated all alternative or supplemental remedies. New areas of applicability were not added, however. This is a logical, reasonable, and natural interpretation in the context of the former statutory language. It is also a constitutional interpretation.

¶ 33. The previously recognized extra-statutory right still exists for nonconsent-ing cotenants to bring suit not only against their contracting fellow owners but also against the timber cutter. Owners whose timber is cut because of the trespass or other completely nonpermissive act of a wrongdoer are limited to the procedures and remedies of Section 95-5-10. These conclusions mean that the 1989 statute did not order a dramatic revolution in the rights of timber owners but only provided for a modest revision in the exercise of some of the rights.

S. Amendment of complaint

¶ 34. We now examine the chancellor’s refusal to allow amendments to the complaint. The estate brought suit against Southgate and two individuals who were never served. Sought was $122,000 for the market value of the timber that was cut. The complaint does not refer to the statutory penalty. The estate’s response to the motion to dismiss was that it was not seeking statutory damages but, as co-owner of the timber, simply wanted to share in the timber-cutting proceeds. The estate alleged that dismissal based on the unavailability of the statutory penalty would violate the constitutional provision we have already discussed regarding having a remedy for every wrong.

¶ 35. The chancellor’s first opinion was on February 3, 2005. She found that though no cause of action was named in the complaint, the plaintiffs request for relief was “controlled” by Section 95-5-10. As the chancellor put it, “no matter how the suit is filed or pled, all owners of the real property in question are barred from seeking damages against any other third party because of the action of’ the two contracting cotenants. The estate was found to have no claim and allowing an amendment to join the actual heirs would be futile in light of the unavailability of the exclusive remedy.

¶ 36. A second opinion issued on November 2, 2005. The estate in a motion for reconsideration had again argued that no claim under the statute was being made. Perhaps in light of the references in the chancellor’s first opinion to Fly, the estate now labeled its claim as one under the common law doctrine of waste. In Fly, this Court had stated that noncon-senting cotenants could claim waste against the third-party timber cutter. Fly, 758 So.2d at 1072. The chancellor concluded that the claim against a party without an ownership interest should be labeled a trespass action, not waste. In her view, a claim for waste could only be made against the two cotenants who contracted for the cutting, not against South-gate. The chancellor used a legal dictionary to conclude that an action for waste requires that all parties have an ownership interest, while a trespass is against someone without an interest. Blaok’s Law Dict. (6th ed.1991), at 1502-03 (trespass) & 1589-90 (waste). Dismissal was “based on the distinction between ‘trespass’ and ‘waste.’ ” The chancellor concluded that due to the pleadings, the estate “can only proceed under the tort of trespass.” The estate had asked instead to amend to bring a claim for waste, and that amendment was denied.

¶ 37. The chancellor then turned to whether the complaint could be amended to join the heirs of the long-deceased Elizabeth Moffett since they were the owners of the land. In the chancellor’s view, allowing an amendment here that would then relate back for statute of limitations issues would go beyond the purpose of the rules. M.R.C.P. 15(c). The present owners of the land — Moffett’s numerous heirs — had always clearly been the real parties in interest. The relation back rules “were not intended to protect parties who should have been named Plaintiffs at the initial filing of the law suit when they were known.” Moreover, two of the present owners were the cotenants who started this problem when they executed timber deeds; they could not properly be made plaintiffs even though they were Moffett heirs. The chancellor found that the Mof-fett estate should never have been reopened, and the estate should have known these heirs were the appropriate plaintiffs all along.

¶ 38. The chancellor refused to amend because of her holding that new plaintiffs could bring a suit for waste only against the two cotenants who signed the timber deeds. Reforming the suit as one by the nonconsenting heirs, newly named as plaintiffs, against the two consenting heirs, newly named as defendants, for waste would create an entirely new suit. As we have discussed, though, when a cotenant contracts with a third party to commit injury to the common property as opposed to committing the injury herself, the wrong by the third party may still be labeled “waste.” We now turn to whether this complaint would need to be amended to make a claim for waste.

¶ 39. The complaint avoided putting a specific label on the cause of action, but it clearly eschewed the statutory penalty by seeking the actual value of the trees and not double the value under the statute. After setting out the events that led to the cutting and asserting a right in the estate to bring suit, the complaint alleged that Southgate and the two individuals who got the timber deeds did “enter the land of the Moffett Estate, without permission of all the heirs and proceeded to cut, remove and sell timber” when the defendants knew that they had not received permission from all owners. The complaint set out the amount of damages based on the fair market value of the trees, and sought to impose liability on the defendants for that value and for attorneys’ fees, jointly and severally. That language is proper notice of a claim for waste, or in the chancellor’s view, for trespass and conversion. If the consenting cotenants are considered indispensable parties in a claim for waste against their assigns, they may be joined. M.R.C.P. 19. In the motion to reconsider the chancellor’s first opinion, the estate argued that it should be allowed to proceed with an action for waste against Southgate. In finally choosing a label for its claim, the estate chose well. Yet it would not matter if the proper category were trespass and conversion. Substance controls, not labels. Since we are remanding, we set aside the chancellor’s decision not to permit an amendment to join the two contracting cotenants in an action for waste. That can be reconsidered on remand.

¶ 40. The final issue is whether it was proper to refuse to substitute the non-consenting heirs for the estate as plaintiffs. This is the applicable court rule for substitution of plaintiffs:

(a) Real Party in Interest. Every action shall be prosecuted in the name of the real party in interest.... No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.

M.R.C.P. 17. Substitution was denied because the chancellor found that adding the new plaintiffs would be futile. We disagree as to futility, as a claim for waste may properly be made. The original complaint was sufficient notice to permit evidence to be presented of waste. Thus we are squarely faced with whether the chancellor should have allowed the individual owners to be joined.

¶ 41. In one recent precedent, the Supreme Court allowed substitution of an estate as the proper party in interest, even after a previous appeal had affirmed a partial summary judgment and then remanded to consider a remaining claim. Methodist Hosp. of Hattiesburg v. Richardson, 909 So.2d 1066, 1067-68 (Miss.2005). The suit was for a wrongful death brought by the heirs. The court determined that the claim for pain and suffering must be brought by the estate. Id. On the remand, the defendant moved to dismiss based on the absence of the estate. The chancellor allowed a reasonable time for an estate to be opened, then joined the estate as a plaintiff. Id. at 1068-69. In the second appeal, the defendant argued that the estate was a “stranger to the litigation” and should not have been allowed to join or intervene. The Supreme Court rejected that argument, finding that allowing the estate’s joinder was proper. Id. at 1072-73.

¶ 42. In conclusion, the defendant’s argument that the statutory penalty is invariably the only remedy for wrongful cutting of timber has now been resolved and rejected. The plaintiffs assertion that waste is the proper cause of action in this case is also resolved and accepted. The complaint has always simply stated that damages were sought for cutting timber without the permission of all the owners. The proper claim is exactly the one with which the defendant has been contending since the date the complaint was filed. The only reason to dismiss, then, would be because the estate is the named plaintiff. Rule 17(a) states that no suit is to be dismissed for the absence of the real party in interest. Affirming this dismissal would be ignoring the plain language of the rule.

¶ 43. We reverse and remand for proceedings consistent with this opinion.

¶ 44. THE JUDGMENT OF THE JONES COUNTY CHANCERY COURT IS REVERSED AND THE CAUSE IS REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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


source: Caselaw Access Project

author: IRVING, J.,

license: Public Domain

text:
    W.D. ANDERSON a/k/a W.D. Anderson, Jr., Appellant, v. STATE of Mississippi, Appellee.
    No. 2005-CP-01136-COA.
    Court of Appeals of Mississippi.
    Nov. 21, 2006.

      W.D. Anderson (Pro Se), attorney for appellant.
    Office of the Attorney General by W. Daniel Hinchcliff, attorney for appellee.
    Before MYERS, P.J., IRVING and ROBERTS, JJ.
   IRVING, J.,

for the Court.

¶ 1. W.D. Anderson appeals a judgment of the Holmes County Circuit Court summarily denying his motion for post-conviction relief. He asserts that (1) he received ineffective assistance of counsel, and (2) the trial court abused its discretion in refusing to appoint new counsel to represent him, and in refusing to hold an evidentiary hearing on his motion for post-conviction relief.

¶2. We find no merit to these allegations of error and affirm the judgment of the trial court.

FACTS

¶ 3. On August 11, 2001, Anderson entered the home of Hattie Coleman Smith in Holmes County, Mississippi and physically attacked her with an unknown object. Jean Hill, who was Smith’s day-sitter, was also attacked. Smith was killed, but Hill survived. Before leaving the home, Anderson took several items of personal property belonging to Smith.

¶ 4. Anderson was indicted by a Holmes County grand jury, as a habitual offender, for capital murder, aggravated assault, robbery, and possession of a firearm by a convicted felon. Pursuant to a plea agreement, Anderson pleaded guilty to robbery and aggravated assault. The charges of capital murder and possession of a firearm by a convicted felon were passed to the files. Consistent with the terms of the plea agreement, the court sentenced Anderson as a habitual offender to two concurrent life sentences.

¶ 5. Approximately nineteen months after entering his guilty pleas, Anderson filed a “Motion to Vacate Judgment and Sentence,” which the court treated as a motion for post-conviction relief. Affidavits from Anderson’s wife, mother, a brother, and a son were attached to or filed with the motion.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Ineffective Assistance of Counsel

¶ 6. Anderson argues that his trial counsel were ineffective because they failed to investigate the facts. He contends that if his attorneys had conducted an investigation they would have discovered that another individual, Kevin Thomas, may have been the one who committed the crimes. Anderson makes this accusation because, according to him, Kevin turned in some of the items which were allegedly taken during the course of the “robbery/homicide.” Anderson also contends that his attorneys knew that there was not any physical evidence that connected him to the crimes but refused to defend him. In Anderson’s words, “[t]hese two attorneys were bent on having [me] plead guilty ... because this was a high profile case by the very nature of the crimes and the prominence of the alleged victims within the community.” Anderson also charges that his attorneys threatened and coerced him into pleading guilty and instructed him to lie to the court regarding the existence of any threats or promises to induce him to plead guilty. Finally, Anderson contends that his trial counsel failed him by not objecting to the habitual evidence offered by the State during the plea qualification hearing, thereby allowing him to plead guilty as a habitual offender without the State first proving that he is one and the same person indicated in the habitual evidence offered by the State.

¶ 7. The record belies the contentions made by Anderson regarding his trial counsel. After the trial court advised Anderson of the rights that he would forfeit or waive by pleading guilty, the record reflects the following exchange:

Q. You understand that you’re entering pleas to the charge of aggravated assault, and the charge of robbery?
A. Yes, ma’am.
Q. And you’re entering these pleas as a habitual offender?
A. Yes, ma’am.
Q. Do you understand the nature of these charges against you?
A. Yes, ma’am.
Q. Have you and your attorneys discussed the facts and circumstances surrounding these charges?
A. We have.
Q. Have you and your attorneys discussed all possible defenses you would have in a trial on these charges?
A. Yes.
Q. Are you satisfied with the advice and counsel of your attorneys?
A. Yes.
Q. Has anyone forced you, coerced you, or intimidated you in any way to get you to enter these pleas? A. No, ma’am.

¶ 8. At another point in the record during the plea qualification hearing, we find the following:

THE COURT: Okay, [what does the] State’s case show.
MR. POWELL: Your Honor, at trial the State would show, as to Count II, on August 11, 2001 in Holmes County, Mississippi, at the residence of Smith Coleman Smith, that Mr. Anderson came up to Mrs. Smith’s residence on that day, and there were — Ms. Smith was at home, together with Jean Hill, who was staying there, sitting with her during the day. That he drove up to the home, entered the door there under the garage and had an object of some type in his hand. When he entered the house, he began hitting both Ms. Hill and Ms. Smith, and by violence to their persons and putting them in fear of immediate injury to their person, he was able to take from the presence of Ms. Smith, from her person and her home, some of her personal property, including a TV and VCR, two guns and a necMace which had been given to her as a gift by her daughter; that that event, taking of that property against the will of Ms. Smith by force or violence, placing her in fear, constitutes the crime of robbery. In Count III, the same facts would apply to Count III, the injury to Ms. Hill, he used with — the object that he struck her with caused serious bodily injuries during the course of that robbery, and constitutes an aggravated assault.
BY THE COURT:
Q. Okay. Mr. Anderson, you’ve just heard the statements made by the State as to what their case would show in the trial of Cause No. 10994, Count II and Count III of the indictment. Do you agree with what the State has just said as to what happened?
A. Yes, ma’am.
THE COURT: Mr. Anderson, this court finds that your pleas are freely and voluntarily given, there is a factual basis to support the charges against you, and this court will accept your guilty pleas. State have a recommendation?
MR. POWELL: State does. For the record, Your Honor, for the habitual offender statute is Hinds County Cause No. 5-603, which was an armed robbery conviction on October 12, 1992, And Holmes County Charge No. 9541, which was a robbery conviction. And in each of those he meets the statutory requirements, in that he was sentenced to terms of more than one year in the penal institutions of the State of Mississippi, and that he actually served more than one year on each of those charges.

¶ 9. In Anderson’s “Petition to Enter Plea of Guilty,” he swore that he previously had been convicted of armed robbery in Hinds County, Mississippi on September 25, 1981, and of robbery in Holmes County, Mississippi on October 12, 1992. Notably, during the guilty plea hearing, Anderson did not contest the district attorney’s statement regarding Anderson’s pri- or felony convictions and time served.

¶ 10. “Trial judges are entitled to place great weight upon a defendant’s initial plea under oath.” Templeton v. State, 725 So.2d 764, 767(1110) (Miss.1998). “Where the record and [Anderson’s] prior sworn testimony on their very face belie his claim, an evidentiary hearing is not required.” Id. at 767(¶ 11). The trial judge correctly refused to set aside Anderson’s pleas and sentences based on Anderson’s bald allegations that his counsel failed to effectively represent him. Although Anderson presented four affidavits with his motion, we agree with the trial court that none of the affidavits offered any substantive facts in support of Anderson’s contention that his pleas were not voluntary because of the ineffectiveness of his counsel.

¶ 11. In order to succeed on a claim of ineffective assistance of counsel, Anderson is required to show that his attorneys’ performance was deficient and that the deficiency prejudiced his defense. Id. at 767(¶ 8) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). To meet this criteria, Anderson must show that his attorneys “made errors so serious” that they denied him the quality of legal representation guaranteed him by the Sixth Amendment of the United States Constitution, resulting in the deprivation of a fair trial, “a trial whose result [was] reliable.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052.

¶ 12. We note that, based on the indictment, Anderson could have received the death penalty had he gone to trial and been convicted of capital murder as alleged in Count I. It is difficult to see how Anderson can reasonably argue that his attorneys did not serve him well when they negotiated a plea that prevented him from facing the death penalty. While Anderson and the affiants in the affidavits complain mightily that counsel did not ably represent Anderson, they fail to point to anything counsel could have done other than proceed to trial on a theory that Kevin Thomas may have committed the crimes because he turned in some of the items taken in the robbery. While the record does not inform us of Kevin’s explanation of how he came into possession of the stolen items, the record is clear that Anderson had an opportunity to disagree with the State’s proffered factual basis and did not. In fact, he affirmed that the State’s version of what transpired was correct. That version did not include Kevin Thomas as an actor in the commission of either the robbery or the aggravated assault. We find no merit to this issue, as Anderson has wholly failed to meet the criteria set out in Strickland.

2. Abuse of Discretion

¶ 13. Anderson also argues in this appeal that the trial judge abused her discretion in refusing to appoint new counsel to represent him and in refusing to hold an evidentiary hearing on his motion to vacate judgment and sentence. Based on the record, including Anderson’s sworn testimony at the plea hearing and his sworn petition to enter a guilty plea, an evidentiary hearing was not required. Templeton, 725 So.2d at 767(¶ 11).

¶ 14. The court appointed two able attorneys to represent Anderson. Indigent defendants are not entitled to appointed counsel of their choice. Taylor v. State, 744 So.2d 306, 316(¶ 34) (Miss.Ct. App.1999). We find no merit to this issue.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF HOLMES COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HOLMES COUNTY.

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


author: KING, C.J.,

text:
    Sean Terrell WHEELER, Appellant, v. STATE of Mississippi, Appellee.
    No. 2005-KA-02260-COA.
    Court of Appeals of Mississippi.
    Nov. 21, 2006.

      David L. Walker, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    BEFORE KING, C.J., CHANDLER AND ROBERTS, JJ.
   KING, C.J.,

for the Court.

¶ 1. Sean Terrell Wheeler was convicted by a Panola County Circuit Court jury of aggravated assault and sentenced to serve a term of fifteen years in prison. Wheeler raises the following issue on appeal.

Whether the trial court erred in overruling Appellant’s hearsay objection.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On March 5, 2005, several Lester Street Apartment residents were outside visiting and talking with neighbors. Shemekia Birks was sitting in her car talking to her brother, Kenya Birks, who was standing near the driver’s side door. Wheeler, who emerged from behind one of the apartment buildings with a gun in his hand, approached Kenya, saying, “What’s up now m — f—. I told you I was going to get you.” Kenya attempted to flee by foot, but one of the several bullets Wheeler fired struck him in the back. Kenya was rushed to the hospital where he spent the next twenty-five days in recovery. At the time of trial, he was still under medical care, awaiting another surgery.

¶ 4. Wheeler was indicted for aggravated assault on April 14, 2005. His trial commenced on November 11, 2005. The State called ten witnesses, seven of whom were eyewitnesses to the shooting. Wheeler testified, claiming that he had not shot Kenya. The jury deliberated for twenty minutes before returning a verdict of guilt.

ANALYSIS

Whether the trial court erred in overruling Appellant’s hearsay objection.

¶ 5. The standard of review for issues of admissibility of evidence is abuse of discretion. Ellis v. State, 934 So.2d 1000, 1004(¶ 17) (Miss.2006). This Court will not order a reversal based on a ruling which allowed or excluded evidence unless a substantial right of the defendant was affected by the ruling. Smith v. State, 925 So.2d 825, 835(¶ 26) (Miss.2006) (citing M.R.E. 103(a)).

¶ 6. Mashunda Hankins, a Lester Street Apartment resident, was asked on the witness stand to describe how she came to witness the shooting. She testified that on the afternoon of March 5, 2005, she was outside talking to her friend, Teresa Collins, as the two were sitting in Collins’ car. Hankins noticed Wheeler in a neighbor’s apartment walking to the door several times peering out toward Kenya’s apartment. Hankins testified that she wondered aloud what Wheeler was doing at the apartment complex because he and Kenya had argued a few days prior. She and Collins continued their conversation, until Collins exclaimed that Wheeler had a gun. At that point, Collins jumped out of the car and ran inside Hankins’ apartment for shelter, but Hankins jumped out and ducked near the car. Hankins went on to testify that she witnessed Wheeler approach Kenya, curse him, and shoot several times.

¶ 7. Defense counsel made a timely hearsay objection when Hankins testified that Collins said Wheeler had a gun. The court overruled the objection. Wheeler now argues, as he did in his motion for a new trial, that the trial court erred in allowing the hearsay statement, thereby depriving him of a fair trial as guaranteed by Article 3, Section 26 of the Mississippi Constitution of 1890.

¶ 8. Mississippi Rules of Evidence Rule 803 provides that certain out-of-court statements will not be excluded as hearsay regardless of whether the declarant is available to testify. The present sense impression exception provides that an out-of-court statement “describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter” will not be excluded by the hearsay rule. M.R.E. 803(1). The excited utterance exception provides that an out-of-court statement “relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition” will also not be excluded by the hearsay rule. M.R.E. 803(2).

¶ 9. Immediately after Collins told Han-kins that Wheeler had a gun, she jumped out of the car and ran for shelter. Clearly, Collins statement was both an excited utterance and a present sense impression. Accordingly, they were properly admitted by the trial court. Furthermore, Wheeler was given the opportunity to cross-examine Collins, who testified directly after Hankins and gave the same account. This issue is without merit.

¶ 10. THE JUDGMENT OF THE PA-NOLA COUNTY CIRCUIT COURT OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND FIVE YEARS OF POST-RELEASE SUPERVISION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PANO-LA COUNTY.

LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.


text:
    Havis B. BYRD, Appellant v. MISSISSIPPI POWER COMPANY, A Mississippi Corporation, Appellee.
    No. 2005-CA-00323-COA.
    Court of Appeals of Mississippi.
    Nov. 21, 2006.

      Edward Gibson, Charles Gibson, III, Jackson, attorneys for appellant.
    Roderick Mark Alexander, Ben Harry Stone, Jonathan Paul Dyal, Gulfport, attorneys for appellee.
    Before KING, C.J., SOUTHWICK and IRVING, JJ.
   KING, C.J.,

for the Court.

¶ 1. Havis B. Byrd, a landowner with property in Forrest County, Mississippi, appeals the trial court’s decision to grant partial summary judgment to Defendants Mississippi Power Co. and Southern Co. The trial court granted summary judgment on the issue of damages for Byrd’s trespass claim and entered final judgment on the partial summary judgment.

PROCEDURAL HISTORY AND FACTS

¶ 2. Byrd, along with various other landowners in Forrest County, Mississippi, filed a complaint against Mississippi Power Co. (MPC) and Southern Co. (SoCo) on December 23, 2002. The amended complaint, which added third-party lessee, Interstate Fibernet, Inc. (IFN), as a defendant pursuant to an order from the trial court, alleged that MPC improperly installed fiber-optic cable on Plaintiffs’ property and improperly permitted third parties to lease the excess space on those cables. Plaintiffs contended that the easements given to MPC did not permit these actions because the easements limited the use of the easement to installation of lines “necessary and convenient to” and “in connection with” the supply of electricity to MPC customers.

¶ 3. Plaintiffs alleged that MPC failed to give notice of the installation of the fiber-optic cable, fraudulently advised Plaintiffs that the work done was routine maintenance on the existing lines rather than installation of the fiber-optic cable, and failed to inform Plaintiffs that the excess cable capacity was being leased to third parties. Plaintiffs contended that MPC was profiting from these third-party leases and that the value of Plaintiffs’ properties were diminished as a result of MPC’s actions. Plaintiffs’ amended complaint alleges counts of trespass, nuisance, conversion, unjust enrichment, fraudulent concealment, fraud/fraudulent misrepresentation, and rescission (equitable reformation).

¶ 4. MPC filed a motion for partial summary judgment on the issue of trespass damages. In the motion, MPC asserted that McDonald v. Mississippi Power Co., 732 So.2d 893 (Miss.1999), had addressed some of the issues raised by Plaintiffs. Specifically, MPC argued that McDonald held that third-party use of a fiber-optic cable does not create an additional servitude on the property, as the existence of the line (which belonged to MPC), and not IFN’s third-party use of the line, created the imposition on the land. Accordingly, MPC argued, Plaintiffs could not be entitled to damages for trespass because there was no additional servitude arising from IFN’s use of the line and, therefore, no trespass, even if IFN’s usage exceeded the scope of MPC’s easements.

¶ 5. Plaintiffs opposed the motion for partial summary judgment and argued as follows: MPC’s easements permitted the company to install equipment “necessary and convenient to and in connection with” MPC’s business — supplying electricity to its customers. Plaintiffs contended that MPC’s sole purpose in installing the fiber-optic cable was to profit from the sale of the space to third parties. Plaintiffs also argued that any trespass gives rise to at least nominal damages and, if the trespass is willful and wanton, punitive damages. Finally, Plaintiffs argued that the finding of no additional servitude in McDonald was irrelevant to the issue of trespass damages.

¶ 6. The trial court granted MPC’s motion for partial summary judgment, adopting MPC’s proposed findings of fact and conclusions of law in toto. The trial court then entered a Rule 54(b) final judgment. The Rule 54(b) final judgment is the subject of Byrd’s appeal.

¶ 7. Meanwhile, the remainder of the case continues to progress in the trial court. Both Byrd and MPC noted in their briefs that MPC has filed a second motion for summary judgment and that, while this appeal has been pending, an entire record has been developed on the issue of whether the third party’s use of the fiber-optic cable falls -within the definition of the terra “in connection with” the supplying of electricity to MPC customers.

ANALYSIS

¶ 8. Because the trial court entered a Rule 54(b) final judgment on MPC’s motion for partial summary judgment, Byrd filed her appeal pursuant to Mississippi Rule of Appellate Procedure 4, which sets forth the procedure for filing an appeal following an entry of judgment. Ordinarily, however, Mississippi courts (at the trial and appellate levels) treat a partial summary judgment as an interlocutory order and not as a final judgment. See Hobgood v. Koch Pipeline Southeast, Inc., 769 So.2d 838, 841(¶ 10) (Miss.Ct.App.2000) (holding that “[ajbsent permission requested and granted for an interlocutory appeal, an appellant may only seek review of a final judgment. LutheR T. MunfoRd, Mississippi Appellate Peactice (1997) § 6.1. A partial summary judgment is of course not an adjudication of all the claims. M.R.C.P. 54(b).”). See also Millsaps v. Stout, 860 So.2d 852 (Miss.Ct.App.2003) (dismissing appeal when a partial summary judgment without a Rule 54(b) final judgment was not appealed properly as an interlocutory appeal). The comment to Mississippi Rule of Civil Procedure 54(b) also states that a final judgment is not required “when the court disposes of one or more claims or terminates the action as to one or more parties” and encourages trial courts to refrain from entering a final judgment except in limited circumstances. M.R.C.P. 54(b) cmt. Accordingly, the trial court improperly entered a Rule 54(b) final judgment on the partial summary judgment.

¶ 9. In Cox v. Howard, Weil, Labouisse, Friedrichs, Inc., 512 So.2d 897, 898 (Miss.1987), the Mississippi Supreme Court vacated an appeal from a partial summary judgment which dismissed one count of a three-count counterclaim. Applying an abuse of discretion standard, the Court held as follows:

It is incumbent on trial attorneys and trial judges to recognize that Rule 54(b) judgments must be reserved for rare and special occasions. This case is not one of them. When there is a judgment dismissing one count of a complaint or counterclaim, a Rule 5j(b) finality should never even be considered by the trial court unless the remainder of the case is going to be inordinately delayed, and it would be especially inequitable to require a party to wait until the entire case is tried before permitting him to appeal.

Cox, 512 So.2d at 900 (emphasis added). The Court further noted that Rule 54(b) judgments were intended to ease the burdens associated with complex litigation and to allow parties whose liability in such cases has been adjudicated to reach a final resolution without undue delay. See id. See also White v. Mills, 735 So.2d 428 (Miss.1999) (holding that Rule 54(b), by its express language, did not permit a trial court to enter a Rule 54(b) judgment resolving the issue of liability but leaving open the issue of damages in a single action automobile accident case between two parties).

¶ 10. In this case, the trial court entered partial summary judgment on the issue of damages in one count of a seven-count complaint. While this case does involve multiple defendants, the claims asserted do not rise to the level of complex litigation. Rather, Byrd’s multiple causes of action arise from a single set of facts and raise a limited number of issues. Additionally, the parties state in their briefs that the case is proceeding in the court below — the parties have developed the record, and a second motion for summary judgment is pending. To permit this appeal as an appeal of right from a final judgment, where that final judgment is limited to the issue of Byrd’s right to damages on one claim of a multi-claim complaint, without even a determination in the trial court of the defendants’ liability on that claim, would contradict the prior holdings of the Mississippi Supreme Court and, as a practical matter, would result in piecemeal litigation.

¶ 11. The procedural posture of the case suggests that this appeal is more akin to an interlocutory appeal than an appeal from a final judgment. While the Court may, in some circumstances, recognize an appeal as a proper case for an interlocutory appeal despite procedural defects in perfecting that appeal, this case is not appropriate for interlocutory appeal. See Hobgood, 769 So.2d at 841 (¶ 12) (citations omitted) (holding that “[tjhis Court at least twice has concluded that we may suspend the rules for interlocutory appeals even when no petition for such an appeal has been filed” and noting that the Mississippi Supreme Court had done so on just one occasion).

¶ 12. Under Mississippi Rule of Appellate Procedure 5(a), interlocutory appeals are appropriate where

a substantial basis exists for a difference of opinion on a question of law as to which appellate resolution may:
(1)Materially advance the termination of the litigation and avoid exceptional expense to the parties; or
(2) Protect a party from substantial and irreparable injury; or
(3) Resolve an issue of general importance in the administration of justice.

M.R.A.P. 5(a). Interlocutory appeals must be filed within twenty-one (21) days of the entry of the order being appealed. See id.

¶ 13. None of the required conditions for interlocutory appeal are met in this case. The first issue posed is whether the trial court erred in its findings of fact when it determined that the third-party usage of fiber-optic cable on Byrd’s property did not constitute an additional servitude. Interlocutory appeals, pursuant to the rule, must involve questions of law only. Moreover, both parties noted that, as the case has progressed in the trial court, the parties have fully developed the record with regard to the issue of whether IFN’s third-party usage is “in connection with” the supplying of electricity to MPC’s customers, as the easements require.

¶ 14. This Court holds that the trial court improvidently granted the Rule 54(b) final judgment; therefore, this case cannot properly be brought before the Court under Mississippi Rule of Appellate Procedure 4. Additionally, this Court finds that the entry of partial summary judgment is not appropriate for consideration as an interlocutory appeal under Mississippi Rule of Appellate Procedure 5 and will not exercise its discretion to hear the appeal as such.

¶ 15. Accordingly, this appeal is improperly before the Court. The Court holds that the appeal shall be dismissed. As a matter of procedure, the trial court’s order granting partial summary judgment on the issue of trespass damages shall stand, but the Rule 54(b) judgment shall be vacated until the entire case is resolved and the trial court can enter final judgment on all claims.

¶ 16. THE APPEAL IS DISMISSED. THE CASE IS REMANDED TO THE TRIAL COURT FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.

      . Havis Byrd, along with several other plaintiffs, filed suit with the trial court. She is the only plaintiff, however, who opted to appeal the trial court’s grant of partial summary judgment. Although the trial court granted partial summary judgment to both Mississippi Power Co. and Southern Co., Byrd has opted to appeal that judgment only as to Mississippi Power Co.

      . In this case, Plaintiffs did not receive the copy of the Rule 54(b) judgment at the time it was entered in September 2004. Upon discovery of the ruling some months later, Plaintiffs petitioned the trial court to re-open the time for appeal. The trial judge entered an order on January 26, 2005, granting Plaintiffs fourteen (14) days from that date to perfect their appeal under Mississippi Rule of Appellate Procedure 4(h). Byrd was the only plaintiff to file Notice of Appeal, which she filed on the thirteenth day, February 9, 2005. Accordingly, if this case was appropriate for interlocutory appeal, the Court could waive the procedural requirements and hear the case because Mississippi Rule of Appellate Procedure 5(a) requires an interlocutory appeal to be filed within twenty-one (21) days.


author: LEE, P.J.,

text:
    Ray Charles LENOIR, Appellant, v. STATE of Mississippi, Appellee.
    No. 2006-CP-00171-COA.
    Court of Appeals of Mississippi.
    Nov. 21, 2006.
    Ray Charles Lenoir (pro se), attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. On June 25, 1999, Lenoir pled guilty in the Monroe County Circuit Court to uttering a forgery and possession of cocaine. On the forgery charge, Lenoir was sentenced to serve fifteen years in the custody of the Mississippi Department of Corrections with credit for time already served. The balance of this sentence was suspended and followed by five years of post-release supervision. On the possession charge, Lenoir was sentenced to fifteen years with credit for time served. The balance of this sentence was also suspended upon successful completion of the post-release supervision imposed in the forgery charge. The sentence imposed in the forgery charge was to run consecutively to the sentence imposed in the possession charge and also consecutively to two federal sentences previously imposed.

¶ 2. While on federal post-release supervision, Lenoir violated the terms of his suspended state sentences. On September 26, 2003, the trial court revoked Lenoir’s suspended sentences and post-release supervision on both charges. On November 4, 2004, Lenoir filed a motion to vacate and set aside his sentence. Shortly thereafter Lenoir filed motions for an evidentiary hearing and for records and transcripts. On December 10, 2004, Lenoir filed a motion for summary judgment. On December 17, 2004, the trial court denied all of Lenoir’s previous motions.

¶ 3. Lenoir then filed a motion requesting the trial court to amend its order and make additional findings. On August 22, 2005, the trial court dismissed this motion, treating Lenoir’s motion to amend as a successive post-conviction petition. Lenoir now appeals to this Court asserting that the trial court erred in denying all of his prior motions for relief.

STANDARD OF REVIEW

¶ 4. When reviewing a trial court’s decision to deny a petition for post-conviction relief this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. McClinton v. State, 799 So.2d 123, 126(114) (Miss.Ct.App.2001). However, where questions of law are raised the applicable standard is de novo. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999).

DISCUSSION

¶ 5. Lenoir asserts that the trial court erred in denying all of his prior motions for relief. However, Lenoir’s main argument is that his suspended sentences, including the terms and conditions, could not begin until after he had completed his federal sentence, including post-release supervision. Lenoir also states that, if an evidentiary hearing had been granted, he would have proffered his federal court sentencing order as well as testimony from his federal probation officers who had already been subpoenaed.

¶ 6. We note that the State concedes that remanding Lenoir’s cause for an evi-dentiary hearing to determine the status of his federal sentences would be beneficial. The State further concedes that transcripts of the revocation hearing would also be beneficial. According to the record before this Court, a supplemental transcript containing the revocation hearing was filed on July 14, 2006. However, this particular transcript gives no insight as to the status of Lenoir’s federal sentence.

¶ 7. We find that an evidentiary hearing should be granted in order to determine the status of Lenoir’s federal sentences and a ruling made on his post-conviction relief motion.

¶ 8. THE JUDGMENT OF THE MONROE COUNTY CIRCUIT COURT IS REVERSED AND REMANDED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MONROE COUNTY.

KING, C.J., MYERS, P.J., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.


author: SEE, Justice.

text:
    William Timothy WATTS v. Libby WATTS.
    1041629.
    Supreme Court of Alabama.
    May 12, 2006.
    J. Wilson Mitchell of Mitchell, Bernauer, Winborn, Austin & Miles, Florence, for appellant.
    Lindsey Mussleman Davis of Holt, Mus-sleman, Holt & Morgan, Florence, for ap-pellee.
   SEE, Justice.

William Timothy Watts appeals the trial court’s summary judgment in favor of Libby Watts. We reverse.

Facts

William Timothy Watts (“Tim”) and Libby Watts were married in 1982. In 1988, Libby’s mother, Amy W. Holt, transferred $150,000 to Tim and Libby. Tim and Libby used the money as a down payment on the purchase of a business, Concrete Equipment Company, Inc. Holt contends that the money was a loan and that the terms of the loan were that Tim and Libby would pay Holt each month the amount of interest she would have received that month on a certificate of deposit for $150,000. Holt testified in her deposition that Libby made sporadic interest payments on the loan until about 2000.

In February 1995, Tim and Libby incorporated CON-E-CO, Inc. Tim testified in his deposition that they incorporated CON-E-CO so that they could dissolve Concrete Equipment Company and “get away from product liability problems.” In 1998, Tim and Libby dissolved Concrete Equipment Company; its assets were distributed to Tim and Libby.

Tim and Libby began having marital problems around 2000. On September 26, 2001, Libby filed for a divorce. On February 19, 2002, Holt, Libby’s mother, sued Tim seeking repayment of the $150,000. On March 12, 2003, Tim filed a third-party complaint against Libby claiming that, in the event he was held responsible for repayment of the $150,000, Libby should also be held legally responsible for its repayment.

Tim and Libby’s divorce became final on April 25, 2003. The judgment of divorce states, in pertinent part:

“CON-E-CO, INC. [Tim] shall own all capital goods, goodwill, assets and accounts receivable of the business known as CON-E-CO, Inc. [Tim] shall be responsible for all accounts payable and liabilities of the business, including tax liabilities, and shall hold [Libby] harmless from same.”

On March 15, 2005, Libby moved for a summary judgment on Tim’s third-party complaint against her in the action Holt brought against Tim. Libby argued that the $150,000 was a liability of CON-E-CO and that the divorce judgment established that the liabilities of CON-E-CO were solely Tim’s responsibility. On June 1, 2005, the trial court entered a summary judgment for Libby and certified that judgment as final pursuant to Rule 54(b), Ala. R. Civ. P. Tim appeals.

Standard of Review

In reviewing the disposition of a motion for a summary judgment, we review the case de novo, applying the same standard as the trial court in determining “whether the evidence before the court made out a genuine issue of material fact,” Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988), and whether the movant was entitled to a judgment as a matter of law. When the summary-judgment mov-ant makes a prima facie showing that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law, then a summary judgment is proper unless the nonmovant rebuts that showing by substantial evidence creating a genuine issue of material fact. See Rule 56(c), Ala. R. Civ. P.; Cain v. Sheraton Perimeter Park S. Hotel, 592 So.2d 218, 219-20 (Ala.1991); § 12-21-12, Ala.Code 1975; and West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).

Analysis

Tim contends that Libby did not present sufficient evidence to support her motion for a summary judgment. We agree.

Libby argues that she was entitled to a summary judgment because, she argues, the $150,000 debt to Holt was a liability of CON-E-CO, and the divorce judgment establishes that the liabilities of CON-E-CO are solely Tim’s responsibility. Libby, as the summary-judgment movant, had the initial burden of showing that there is no genuine issue of material fact as to whether she could be found liable for repayment of the $150,000 her mother, Holt, alleges is owed to her by Tim. Libby presented to the trial court a copy of the divorce judgment assigning the indebtedness of CON-E-CO to Tim. Libby contends in her summary-judgment motion that her mother lent her and Tim $150,000 “for the purchase of a concrete business” and that “the divorce [judgment] clearly awarded the business and the indebtedness to Tim.” She argues that because the $150,000 from her mother was á loan for the purchase of a business and because the divorce judgment awarded Tim the business and its liabilities, she cannot be held liable to pay any portion of that loan. The only evidence she offers in support of her contention is the passage from the divorce judgment awarding the assets and liabilities of CON-E-CO to Tim. In her summary-judgment motion, Libby alleges in a conelusory fashion that “[t]he divorce [judgment] clearly awarded the business and the indebtedness [of CON-E-CO] to Tim Watts” and that, “Libby Watts, by virtue of the Final [Judgment] of Divorce has no obligation for this debt.” These allegations do not establish a prima facie showing that there is no genuine issue of material fact as to whether the $150,000 was a loan to Concrete Equipment Company, Inc., and hence to CON-E-CO, and constitutes a liability of CON-E-CO that was assigned to Tim in the final divorce judgment, and not, instead, a loan to Tim and Libby individually.

In reviewing the trial court’s disposition of a summary-judgment motion, “we must view all the evidence in a light most favorable to the nonmovant and we must entertain all reasonable inferences from the evidence in favor of the nonmovant.” First Fin. Ins. Co. v. Tillery, 626 So.2d 1252, 1254 (Ala.1993). Viewing the evidence presented in the light most favorable to Tim as the nonmovant, we conclude that Libby did not meet her burden of establishing a prima facie case that there is no genuine issue of material fact as to whether the $150,000 Holt lent to Tim and Libby in 1988 was a loan to CON-E-CO and was thus a liability of CON-E-CO that the divorce judgment assigned to Tim.

Conclusion

The trial court’s summary judgment in favor of Libby is reversed, and the cause remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

NABERS, C.J., and HARWOOD, STUART, and BOLIN, JJ., concur.

      . Tim and Libby were officers and shareholders of CON-E-CO, but a corporation is a separate entity, distinct from the individuals who are its stockholders or who manage it as directors or officers. Cohen v. Williams, 294 Ala. 417, 318 So.2d 279 (1975). Therefore, a loan to Tim and Libby individually is not a loan to CON-E-CO.

      . Even if Libby had made a prima facie showing that the $150,000 was a loan to CON-ECO, Tim has rebutted that showing. Tim presented Holt’s deposition testimony that she wrote a check to Tim Watts and said to him, “[w]ell I’ll lend you the $150,000, Tim. If this is the business you want I’ll be glad to lend it to you.” Holt also stated in her deposition testimony that Libby “absolutely ... considered it a loan” and that “[Tim and Libby] were paying me interest on it until they decided to give me the principal on it.” No one argued that the loan was a personal loan to Tim only. The deposition testimony refutes Libby’s contention that the loan was a loan to CON-E-CO, and it creates a genuine issue of material fact as to whether the loan was a ' liability of CON-E-CO that was assigned to Tim in the divorce judgment. See Cain, 592 So.2d at 219-20.


text:
    UBS FINANCIAL SERVICES, INC. v. Joyce Faye JOHNSON.
    1041161.
    Supreme Court of Alabama.
    May 12, 2006.

      A. Inge Selden III and Julie Wilson Portera of Maynard, Cooper & Gale, P.C., Birmingham, for appellant.
    Charles M. Thompson, Birmingham, for appellee.
   SEE, Justice.

UBS Financial Services, Inc. (“UBS”), the defendant below, appeals from the trial court’s denial of its motion to compel Joyce Faye Johnson, the plaintiff below, to arbitrate her claims against UBS.

Facts

On March 7, 2000, Johnny Johnson opened an account with UBS; the stockbroker who helped Johnny open the account was Charles Owens, a stockbroker employed by UBS in Georgia. Johnny and Owens executed a Customer Account Agreement (“the agreement”). Immediately above the signature line on which Johnny’s signature appears is the following language:

“I/We have read, understand, and agree to abide by the terms and conditions of this customer agreement set forth herein and/or attached hereto. This agreement contains a Predispute Arbitration Clause.”

(Bold type in original.) The arbitration clause provides:

“I agree, and by carrying an account for me, [UBS] agrees, that all controversies which may arise between us concerning any transaction or the construction, performance or breach of this or any other agreement between us, whether entered into prior, on or subsequent to the date hereof, shall be determined by arbitration.”

Johnny also checked a box on the agreement next to language reading: “Yes, I want this to be a margin account and have received a copy of the Credit Charge Summary.”

Johnny’s sister, Joyce Faye Johnson, is a resident of Etowah County. In 1994, she retired after 34 years of employment with various Bell telephone companies. Upon her retirement, Joyce received a lump-sum payout of benefits that she was required to roll into an individual retirement account (“IRA”).

Joyce alleges that on December 11, 2000, Owens contacted her by telephone. She contends that Owens represented to her that, by investing funds with him, she could make a sizeable sum of money. Joyce informed Owens that she could not trade with him because all of her investment money was in her IRA. She states in her complaint: “Owens represented that he could conduct said trading of [Joyce’s] IRA holdings through [Johnny’s] account on margin.” Joyce further asserts in her complaint that, “based upon the representations of Owens, on behalf of [UBS], [Joyce] invested large sums of money with [UBS] as Owens suggested, and such was placed by Owens through the account of [Joyce’s] brother with [UBS].” Joyce alleges that Owens represented to her that purchasing securities on margin with funds in her IRA was legal under the applicable regulations imposed upon broker-dealers such as Owens. Joyce contends, however, that Owens was aware at all times that purchasing securities on margin with IRA-account funds was illegal.

Joyce further alleges that on December 13, 2000, Owens again contacted her by telephone. Owens told her that “he had checked with [Johnny] and that it was approved by [Johnny] that [Joyce] invest more IRA holdings in another security known as EMC, and that such would be handled the same way — through [Johnny’s] account.” Joyce alleges that, contrary to his assertions, Owens had not obtained Johnny’s authorization to invest her funds through his account, but that, based on Owens’s representations, she gave Owens additional money to invest on her behalf.

Joyce contends that she learned in October 2002 that her brother had not authorized the transactions Owens was conducting and that trading on margin with IRA-account funds violated both the law and applicable securities industry regulations.

In September 2004, Joyce sued UBS in the Etowah Circuit Court under a respon-deat superior theory for Owens’s acts. Joyce alleged fraud, misrepresentation, deceit, and conversion based on her transactions with Owens. She claimed that, based on Owens’s allegedly false representations, she invested large sums of money in securities on margin through her brother’s account and that those investments were unsuitable and illegal and that they were unauthorized by Johnny. She further alleged that allowing her to trade on margin on her brother’s account was an illegal and unauthorized approach to investing and that Owens, and vicariously UBS, were aware that this practice violated the law and applicable investment regulations. She demanded relief in the amount of $59,354 as compensatory damages for the funds she lost through Owens’s investments and an unspecified amount for mental anguish and as punitive damages.

On October 13, 2004, UBS removed the action to federal court on the basis of diversity jurisdiction. The federal court remanded the case to the Etowah Circuit Court after Joyce amended her complaint to permanently and irrevocably limit her damages to less than $75,000, the statutory minimum for finding diversity jurisdiction. UBS moved the trial court to compel arbitration and for a stay pending arbitration. The trial court denied UBS’s motion. UBS appeals.

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.” ’ ” Blue Cross Blue Shield of Alabama v. Rigas, 923 So.2d 1077, 1083 (Ala.2005) (quoting Ex parte Roberson, 749 So.2d 441, 446 (Ala.1999)). No disputed ore tenus evidence has been presented in this proceeding; therefore, we review de novo the trial court’s denial of UBS’s motion to compel arbitration.

Analysis

UBS, in moving 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.” ’ ” Rigas, 923 So.2d at 1083 (quoting Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala.2000), quoting in turn TranSouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala.1999)); see also Vann v. First Cmty. Credit Corp., 834 So.2d 751, 752-53 (Ala.2002). We hold that UBS did not meet its burden of proving the existence of a contract calling for arbitration; thus, the trial court did not err in denying UBS’s motion to compel arbitration.

Joyce argues that there is no contract between UBS and her that calls for arbitration. She contends that although her brother Johnny is a signatory to the agreement, she is not. Therefore, she argues, to the extent that any contract governing Johnny’s UBS account contains an arbitration clause, that arbitration clause cannot bind her as a nonsignatory. UBS contends that, although Joyce is not a signatory to the agreement, she is nevertheless bound by its arbitration provision because, UBS asserts, she is a third-party beneficiary of the agreement. We disagree.

This Court has explained that in construing the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“the FAA”),

“[b]oth federal and state courts have consistently held that the duty to arbitrate is a contractual obligation and that a party cannot be required to submit to arbitration any dispute that he did not agree to submit. The language of the contract entered into by the parties determines whether a particular dispute should be submitted to arbitration.... ”

Capital Inv. Group, Inc. v. Woodson, 694 So.2d 1268, 1270 (Ala.1997) (citations omitted). Accord Southern Energy Homes, Inc. v. Ard, 772 So.2d 1131, 1133-34 (Ala.2000); Ex parte Stamey, 776 So.2d 85 (Ala.2000), citing First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995); Ex parte Stallings & Sons, Inc., 670 So.2d 861, 862 (Ala.1995); and AT & T Techs., Inc. v. Communications Workers of America, 475 U.S. 643, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986). Because the duty to arbitrate is a contractual duty, “parties cannot be required to arbitrate unless they have agreed to arbitrate.” Ard, 772 So.2d at 1134. The FAA “simply requires courts to enforce privately negotiated agreements to arbitrate, like other contracts, in accordance with their terms.” Volt Info. Scis., Inc. v. Board of Trs. of Leland Stanford Junior Univ., 489 U.S. 468, 478, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989). Thus, in determining whether to compel a party to arbitrate, we must determine as an initial matter whether the parties agreed to arbitrate.

The only arbitration clause in this case is contained in the agreement, a contract entered into by UBS and Johnny. It is undisputed that Joyce was not a signatory to the agreement. Generally, a non-signatory to an arbitration agreement cannot be compelled to arbitrate his or her claims. Cook’s Pest Control, Inc. v. Boykin, 807 So.2d 524, 526 (Ala.2001) (“It is the general rule that a nonsignatory to an arbitration agreement cannot be forced to arbitrate her claims.” (citing Ex parte Stripling, 694 So.2d 1281 (Ala.1997), and Thomson-CSF, S.A. v. American Arbitration Ass’n, 64 F.3d 773 (2d Cir.1995))); see also Ard, 772 So.2d at 1134 (“we recognize that parties cannot be required to arbitrate unless they have agreed to arbitrate”). UBS argues that even though Joyce is not a signatory to the agreement, she is nevertheless bound by its arbitration provision because, it says, she is a third-party beneficiary of the agreement. Joyce denies that she is a third-party beneficiary of the agreement, and she argues that she does not assert any claims against UBS as a third-party beneficiary. We agree that Joyce is not a third-party beneficiary of the agreement; thus, the general rule that nonsignatories to an arbitration provision cannot be compelled to arbitrate their claims applies. See Cook’s Pest Control, 807 So.2d at 526.

This Court has held that a nonsig-natory can be bound by an arbitration provision when the nonsignatory is an intended third-party beneficiary of the contract containing the arbitration provision. See Edward D. Jones & Co. v. Ventura, 907 So.2d 1035 (Ala.2005), and Ex parte Dyess, 709 So.2d 447 (Ala.1997). “[I]n order for a person to be a third-party beneficiary of a contract, the contracting parties must have intended to bestow benefits on third parties.” Locke v. Ozark City Bd. of Educ., 910 So.2d 1247, 1251 (Ala.2005) (citing H.R.H. Metals, Inc. v. Miller, 833 So.2d 18, 24 (Ala.2002)); see also Ex parte Stamey, supra (holding that the intent of the parties as expressed in the contract determines whether a nonsignatory is a third-party beneficiary). UBS does not argue or provide facts that would support an argument that UBS or Johnny intended to bestow a direct benefit upon Joyce when they executed the agreement. There is thus no indication that UBS or Johnny intended to bestow benefits on Joyce as a third-party beneficiary. Absent a showing that UBS and Johnny intended to benefit Joyce when they executed the agreement on opening Johnny’s account, Joyce cannot be considered a third-party beneficiary. See Locke, 910 So.2d at 1251. Therefore, Joyce is not bound by the arbitration provision of the agreement between UBS and Johnny.

UBS argues that Ventura and Dyess support its argument that the trial court erred in denying its motion to compel arbitration because Joyce was a third-party beneficiary of the agreement. However, unlike Joyce, who is not an intended third-party beneficiary, both Ventura and Dyess involve contracting parties that intended to provide third-party benefits to the party seeking to avoid arbitration. Ventura’s mother was granted conservatorship of Ventura’s trust estate and opened investment accounts using funds in Ventura’s trust naming herself as a “custodian.” Ventura, as the owner of the trust, was clearly a third-party beneficiary of the investment agreements executed between his mother, acting as the conservator of his trust estate, and the investment brokerages investing the funds in his trust. 907 So.2d at 1040-42. Similarly, Elton Dyess was test-driving a car for sale at Jack Ingram Motors, a Montgomery automobile dealership, when he was involved in a car accident. We held that the policy between the defendant insurer and Jack Ingram Motors “was written with the intent of directly benefiting people such as Dyess, who was injured while test-driving an automobile belonging to Jack Ingram Motors.” Dyess, 709 So.2d at 450-51. There is, however, no evidence to indicate that when UBS and Johnny executed the agreement, either intended to bestow on Joyce any benefits under the agreement. Therefore, Ventura and Dyess are of no avail to UBS.

Finally, UBS contends that even if Joyce was not an intended third-party beneficiary of the agreement, she became one when she benefited from use of the account. However, the mere fact that one obtains tangential benefits from a contract does not subject one to an arbitration provision in that contract. See Equifirst Corp. v. Ware, 808 So.2d 1, 5 (Ala.2001) (holding that a nonsignatory to the mortgage agreement on a mobile home could not be bound by the arbitration provision in the mortgage agreement simply because she lived in the mobile home).

Conclusion

UBS has not px-oven the existence of a valid contract expressly calling for arbitration of Joyce’s claims against it; neither has it been shown that Joyce was a third-party beneficiary of the agreement between UBS and Johnny. UBS did not meet its burden in moving to compel arbitration; thus, we affirm the trial court’s order denying UBS’s motion to compel arbitration.

AFFIRMED.

NABERS, C.J., and HARWOOD, STUART, and BOLIN, JJ., concur.

      . The agreement actually refers to J.C. Bradford & Co., the predecessor of UBS.

      . At all times he was investing Joyce's money, Owens was an employee of UBS.

      . Because UBS fails to prove the existence of a contract calling for arbitration, we preter-mit discussion of whether the transaction at issue affects interstate commerce. See Rigas, 923 So.2d at 1083.