author: SMITH, Chief Justice, for the Court. EASLEY,

text:
    Jordan Kyle SMITH, A Minor, by and Through his Natural Mother and Next Friend, Stephanie SMITH v. GILMORE MEMORIAL HOSPITAL, INC. and Gilmore Health Systems, Inc.
    No. 2005-CT-00166-SCT.
    Supreme Court of Mississippi.
    March 22, 2007.

      Roy 0. Parker, Sr., attorney for appellant.
    John G. Wheeler, Margaret Sams Gratz, attorneys for appellee.
   ON WRIT OF CERTIORARI

SMITH, Chief Justice, for the Court.

¶ 1. This case comes to this Court on writ of certiorari from a judgment of the Court of Appeals which reversed and remanded the circuit court’s grant of summary judgment. Jordan Smith, a minor, by and through his mother Stephanie Smith (Smith), sued Gilmore Memorial Hospital, Inc., Gilmore Health Systems (GMH), G. Edward Bryant, Jr. (Dr. Bryant) and others for alleged injuries received when Dr. Bryant mistakenly performed a surgical operation on Jordan Smith’s unimpaired left eyelid rather than on his impaired right eyelid.

¶2. GMH moved for summary judgment, arguing entitlement to judgment as a matter of law based on Smith’s failure to designate a medical expert witness as required in Mississippi to prove a claim of medical negligence. Smith responded to GMH’s motion by advancing he was exempt from producing an expert witness under the “layman’s exception.” The circuit court declined to apply the layman’s exception and granted GMH’s motion for summary judgment. Smith appealed. The Court of Appeals reversed the decision of the circuit court and remanded the case. Smith v. Gilmore Mem’l Hosp., Inc., 952 So.2d 245, 2006 WL 1390554, 2006 Miss.App. LEXIS 402 (Miss.Ct.App.2006). GMH appealed and this Court granted certiorari.

¶ 3. Finding that the circuit court’s grant of summary judgment was proper, we reverse the judgment of the Court of Appeals and affirm the circuit court’s grant of summary judgment in favor of GMH.

FACTS

¶ 4. On March 28, 2001, then two-year-old Jordan Smith (Jordan) was admitted to Gilmore Memorial Hospital to undergo elective outpatient surgery to repair a pto-sis of his right eyelid. Dr. Bryant, who was not an employee of GMH, was to perform the corrective surgery on the right eye and conduct an examination under anesthesia to the left eye. Prior to beginning the surgery, Dr. Bryant confirmed with the operating room staff that the surgery was to be conducted on the right eye. Nonetheless, Dr. Bryant inadvertently began operating on the left eye.

¶ 5. After making only a small incision, Dr. Bryant realized his mistake. He instructed Shirley Phillips (Nurse Phillips), the circulating nurse for the operating room, to contact Jordan’s mother, Stephanie Smith (Smith), to confirm that the surgery was to be performed on the right eye. Smith alleges that during the conversation with Nurse Phillips that Smith asked if everything was all right and that Nurse Phillips assured her that “everything was fine.”

¶ 6. After Nurse Phillips’s discussion with Smith, Dr. Bryant completed the operation on Jordan’s right eyelid. Following the procedure, Dr. Bryant discussed his mistake with Smith. The mistake resulted in Jordan’s left eye being swollen for approximately two weeks. Jordan suffered no long-term damage to his left eye and now has good vision in both eyes.

¶ 7. In his complaint against GMH, the Smiths alleged that by not telling Mrs. Smith about Dr. Bryant’s mistake prior to continuing the operation on Jordan’s right eye, that GMH and Nurse Phillips failed to meet the required standard of care. The circuit court rejected Smith’s argument, holding:

In the absence of guidance from a qualified health expert ... a lay jury would not be able to determine the standard of care for a surgical nurse in the applicable circumstance where the attending surgeon unilaterally and independently exercised his judgment not to tell a minor patient’s parent about a surgical mishap and specifically asked the surgical nurse to contact the parent for the purpose of confirming which eyelid was to be surgically repaired.

The Court of Appeals reversed and remanded the grant of summary judgment, concluding that the layman’s exception applied and that whether Nurse Phillips failed to meet the standard of care was a question of fact that should be decided by a jury. We granted certiorari.

ISSUE

I. Does the Layman’s Exception Apply Where the Jury Would Be Required to Determine the Standard of Care of a Medical Professional?

STANDARD OF REVIEW

¶ 8. “We employ the de novo standard in reviewing a trial court’s grant of summary judgment.” Brown v. J.J. Ferguson Sand & Gravel Co., 858 So.2d 129, 130 (Miss.2003) (citing O’Neal Steel, Inc. v. Millette, 797 So.2d 869, 872 (Miss.2001)). The moving party shall be granted judgment “if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Miss. R. Civ. P. 56(c).

¶ 9. “Summary judgments, in whole or in part, should be granted with great caution.” Brown, 444 So.2d at 363. However, “[sjummary judgment is mandated where the respondent has failed ‘to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.’ ” Wilbourn v. Stennett, Wilkinson & Ward, 687 So.2d 1205, 1214 (Miss.1996) (citing Galloway v. Travelers Ins. Co., 515 So.2d 678, 683 (Miss.1987)) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).

DISCUSSION

¶ 10. In asserting his negligence claim, Smith argued that GMH breached its required standard of care when Nurse Phillips failed to inform Smith’s mother of Dr. Bryant’s mistake prior to his beginning operation on the correct eyelid. However, Smith failed to designate an expert witness to testify to the appropriate standard of care. “ ‘In a medical malpractice action, negligence cannot be established without medical testimony that the defendants failed to use ordinary skill and care.’ ” Travis v. Stewart, 680 So.2d 214, 218 (Miss.1996) (quoting Phillips v. Hull, 516 So.2d 488, 491 (Miss.1987)). Indeed, in the absence of a recognized exception, “expert testimony is generally required to survive summary judgment.” Sheffield v. Goodwin, 740 So.2d 854, 856 (Miss.1999) (citing Coleman, 706 So.2d at 698-99; Travis, 680 So.2d at 218; Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So.2d 790, 795 (Miss.1995)). As such, the circuit court properly determined that Smith, without providing a medical expert witness, would not be able to prove his prima facie case of medical negligence in this complicated case, therefore the trial court appropriately granted summary judgment.

¶ 11. Notably, this Court has long recognized an exception to the general rule requiring a medical expert in “instances where a layman can observe and understand the negligence as a matter of common sense and practical experience.” Coleman, 706 So.2d at 698 (quotingErby v. North Miss. Med. Ctr., 654 So.2d 495, 500 (Miss.1995)). See also Hammond v. Grissom, 470 So.2d 1049, 1052 (Miss.1985); Trapp v. Cayson, 471 So.2d 375, 380 (Miss.1985); Dazet v. Bass, 254 So.2d 183, 187 (Miss.1971). This exception has been termed the “layman’s exception.” The layman’s exception is commonly applied in situations where physicians or hospital staff have left foreign objects inside the patient, Coleman, 706 So.2d at 696, or given the patient the wrong medication, Dailey v. Methodist Med. Ctr., 790 So.2d 903 (Miss.2001). However, an application of the layman’s exception not only to situations where there is blatant negligence but also to situations involving judgment calls made by professionals would be overly broad.

¶ 12. “Medical malpractice cases generally require expert witnesses to assist the trier of fact to understand the evidence.” Palmer v. Biloxi Reg’l Med. Ctr., Inc., 564 So.2d 1346, 1357 (Miss.1990) (citing Kilpatrick v. Miss. Baptist Med. Ctr., 461 So.2d 765, 768 (Miss.1984)) (citations omitted). In the instant case, at first glance it might appear to a layman, even without the assistance of a medical expert, that the physician was negligent. Dr. Bryant has admitted to the plaintiff that he made a mistake. This, however, is not the situation with which this Court is confronted. Here, we must decide whether a nurse failed to meet the required standard of care by choosing not to go beyond her supervising physician’s authority and inform a patient’s mother of the doctor’s initial mistake. To ask a jury to determine whether this was beyond the .standard of care without being told what constituted the proper standard of care by an expert would be inappropriate.

¶ 13. In Sheffield v. Goodwin, 740 So.2d 854 (Miss.1999), this Court declined to apply the layman’s exception to allow a dental patient to testify that her doctor acted negligently because he “did nothing.” Sheffield, 740 So.2d at 857. We stated “[djiagnosing symptoms and prescribing antibiotics is beyond the ‘common knowledge of laymen.’ ” Id. at 858. Diagnosing symptoms and prescribing antibiotics are activities that involve a medical professional’s judgment — judgment that would require a medical expert to determine whether it failed to meet the required standard of care.

¶ 14. Similarly, a nurse’s decision not to go beyond her supervisor’s authority to inform a patient’s mother of an initial mistake is a judgment call. “Lay testimony is sufficient to establish only those things that are purely factual in nature or thought to be in the common knowledge of laymen.” Sheffield, 740 So.2d at 857 (quoting Coleman, 706 So.2d at 698). Since Nurse Phillips’ actions involved a judgment call, and not something “purely factual in nature,” expert testimony is required.

¶ 15. We note that Judge Irving of the Mississippi Court of Appeals correctly wrote in his dissent the importance of the relationship between patients, nurses and physicians. Smith, 952 So.2d at 250-51, 2006 Miss.App. LEXIS at *14 (Irving, J., dissenting). “The premature release of medical information, whether to the patient or another, can sometimes have' severe negative consequences for the patient. In my judgment, a layperson is ill equipped to know the exact point in time, during a medical procedure, when information regarding a medical mishap should be shared with the patient.” Id. We agree with the Court of Appeals’s dissent.

¶ 16. Here, the Court of Appeals erred by concluding that this case is one in which a jury could understand the standard of care without the assistance of an expert witness. A lay jury would not be able to determine the proper standard of care that should have been exercised by Nurse Phillips. Without knowing the proper standard of care, the jury would be unable to determine whether Nurse Phillips breached that standard of care by not going beyond her direct supervisor’s orders and notifying Smith of Dr. Bryant’s mistake.

CONCLUSION

¶ 17. We reverse the Court of Appeals and reinstate the trial court judgment for the reasons cited above.

¶ 18. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THE JUDGMENT OF THE MONROE COUNTY CIRCUIT COURT IS REINSTATED AND AFFIRMED.

WALLER, P.J., CARLSON, GRAVES, DICKINSON AND RANDOLPH, JJ., CONCUR. EASLEY, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DIAZ, J. COBB, P.J., NOT PARTICIPATING.

EASLEY,

Justice, Dissenting:

¶ 19. Stephanie Smith (Smith) took her two-year old son to Gilmore Memorial Hospital (GMH) to have corrective surgery performed on his right eyelid. Smith’s son suffered from a condition known as ptosis where the eyelid droops over the eye, which can affect the eye’s visual development. There was nothing wrong with Smith’s son’s left eyelid that required surgery.

¶20. Dr. Edward Bryant performed the surgery. When Dr. Bryant started to operate on the left eyelid, he confirmed with the operating staff that he was to operate on the right eyelid. Despite that, Dr. Bryant began operating on the left eyelid, making an incision. When Dr. Bryant realized that he cut on the left eyelid, he instructed Nurse Shirley Phillips, the circulating nurse, to check with the minor child’s mother to see which eyelid he was supposed to operate on.

¶ 21. Nurse Phillips contacted Smith. Smith alleged, in the facts submitted for summary judgment and used for purposes of this appeal, that Nurse Phillips then told her that “everything was fine.” Nurse Phillips did not tell Smith that the doctor had already cut on the wrong eye. Smith was not informed of the mistake until her son was in recovery.

¶ 22. Smith sued GMH alleging that Nurse Phillips had failed to meet the standard of care by not informing her of her son’s condition and falsely telling her that everything was fine. Dr. Bryant settled the medical malpractice claim against him. On appeal, the majority holds that Smith was required to have a qualified medical expert in order to avoid summary judgment.

¶ 23. I agree that in the vast majority of cases of medical malpractice a qualified medical expert is required to assist the trier of fact in understanding the evidence and survive a motion for summary judgment. See Sheffield v. Goodwin, 740 So.2d 854, 856 (Miss.1999); Travis v. Stewart, 680 So.2d 214, 218 (Miss.1996); Palmer v. Biloxi Reg’l Med. Ctr., Inc., 564 So.2d 1346, 1357 (Miss.1990). “Absent error so obvious that a layman could easily determine fault, expert testimony is generally required to survive summary judgment and establish the negligence of a physician.” Sheffield, 740 So.2d at 856.

¶ 24. However, this Court has specifically recognized a “layman’s exception.” Coleman v. Rice, 706 So.2d 696, 698-99 (Miss.1997) (no expert was required where a foreign object was left in the body by a physician or hospital staff); see also Dailey v. Methodist Med. Ctr., 790 So.2d 903, 912 (Miss.Ct.App.2001) (citing Coleman, 706 So.2d at 698-99) (no expert was required where patient was given the wrong medication). In Coleman, 706 So.2d at 698-99, this Court held: •

A layman can understand, without expert testimony, that the unauthorized or unexplained leaving of an object inside a patient during surgery is negligence. Therefore, the Court of Appeals was correct in reversing summary judgment granted in favor of Drs. Rice and Red-dix. Dorothy Coleman was not required to support her claim, based on res ipsa loquitur, with expert testimony.
Drs. Rice and Reddix both relied in their answers and in their motion for summary judgment on the assertion that nurses were responsible for keeping the sponge count during Coleman’s surgery, and further that this is common practice. This defense is negated by our decision in Saucier [v. Ross, 112 Miss. 306, 73 So. 49 (1916) ], 112 Miss, at 314, 73 So. at 50, where this Court stated:
It is no answer to plaintiffs suit that the rubber tube may have been left in her wound by an attendant nurse or another physician in the hospital. She testified that Dr. Ross was her physician and operated on her and attended her while in the hospital, and that the other physicians were acting under his directions in the treatment of her, and that he discharged her from the hospital at the time she left.
Though decided in 1916, Saucier has never been overruled and remains the law in this jurisdiction. It comports with case law from other jurisdictions which hold that while responsibility for sponge counts may be delegated to support staff, liability cannot be. A surgeon leaving a sponge inside a patient is not negligent per se, but a presumption of negligence is raised, which the surgeon may attempt to rebut or explain. Ravi v. Coates, 662 So.2d 218 (Ala.1995); Tice v. Hall, 310 N.C. 589, 313 S.E.2d 565 (N.C.1984).

The situation in this case is analogous to the cases discussed above involving the layman’s exception.

¶25. The majority states: “To ask a jury to determine whether this was beyond the standard of care without being told what the proper standard of care by an expert would be inappropriate.” Majority opinion, ¶ 12. With all due respect, I disagree. Here, the minor child fortunately suffered no long-term damage from the operation, and should Smith prevail at trial, I would expect that the damages in this case would be nominal.

¶ 26. However, I disagree that the facts of this case require an expert. In this case, Smith’s allegations are merely that the nurse failed to inform Smith of her minor son’s condition when asked and the nurse should not have told her that her son was fine when the nurse was aware that the doctor had cut the wrong eye. These facts are for a jury to decide and an expert is not necessary for a jury to understand the issue. The purpose of requiring an expert in medical malpractice cases is to assist the trier of fact in understanding the evidence when medical questions as to proper treatment and the standard of care are raised.

¶27. Without question, most medical practice cases do involve complex medical questions and standards of care that are foreign to most jurors. But what reasonable juror cannot understand or rule on evidence presented that a nurse failed to truthfully inform a minor child’s mother as to the status of her child in surgery? What parent would not have been concerned when his or her two-year-old child was in surgery and then was asked which eye was to receive the operation? What parent would not want to have been informed of what was really going on when he or she inquired? Would a parent stop the further operation on the correct eye had he or she been informed of the negligence already inflicted?

¶ 28. These allegations are not beyond the jury’s abilities and understanding. No complex medical knowledge is required. This boils down to the trust that patients and their families put in their medical providers. That trust is undermined when false information is provided. The facts of this case are similar to situations where the wrong medication was given to a patient, and an expert was not required to support that allegation. See Dailey, 790 So.2d at 912.

In Dailey, the Court of Appeals held:
Our general rule is that medical negligence may be established only by expert medical testimony, with the exception for instances where a layman can observe and understand the negligence as a matter of common sense and practical experience.

Id. (Emphasis added).

¶ 29. In this case, the doctor operated on the wrong body part. Instead of informing the minor child’s family during the surgery of the mistake, the family was told by Nurse Phillips that everything was fine before the correct surgical procedure was performed on the correct body part. What is complicated about that? Surely, the jurors are capable of applying their common sense and practical experience in understanding these allegations.

¶ 30. While my decision is solely based on the facts of this individual case, which is distinguishable from the normal procedure of retaining an expert in a medical practice ease, I find that this case falls under the layman’s exception. The record reflects that the “error [is] so obvious that a layman could easily determine fault.” Sheffield, 740 So.2d at 856. Based on this Court’s established and continued recognition of the layman’s exception, I must respectfully dissent. Accordingly, I would affirm the judgment of the Court of Appeals which reversed the judgment of the circuit court and remanded the case to the circuit court.

DIAZ, J., JOINS THIS OPINION.

      . Dr. Bryant and the other defendants have previously settled with Smith and their cases have been dismissed.

      . Ptosis is a condition where the eyelid droops over the eye. Ptosis, if left uncorrected, can result in damage to the eye’s visual development.

      .The parties have differing accounts of the details of the conversation between Smith and Nurse Phillips. Since this is a case of summary judgment, inferences will be resolved in the light most favorable to the non-moving party, Smith. See Brown v. Credit Center, Inc., 444 So.2d 358, 362 (Miss.1983) ("When doubt exists whether there is a fact issue, the non-moving party gets its benefit.”).


source: Caselaw Access Project

license: Public Domain

text:
    JACKSON STATE UNIVERSITY; Board of Trustees of State Institutions of Higher Learning; Richard A. Crofts, Interim Commissioner v. UPSILON EPSILON CHAPTER OF OMEGA PSI PHI FRATERNITY, INC., Kenneth Hair, Basileus, and Individually, and Anthony Hales, Individually.
    No. 2005-IA-02020-SCT.
    Supreme Court of Mississippi.
    March 22, 2007.

      Ricky Lee Boggan, Alan M. Purdie, Grenada, attorneys for appellants.
    Thomas W. Powell, attorney for appel-lees.
    Before WALLER, P.J., DIAZ and CARLSON, JJ.
   WALLER, Presiding Justice, for the Court.

¶ 1. This appeal arises from an altercation in the Jackson State University student union wherein two students, Kenneth Hair and Anthony Hales, “tackled” a third student, Ryan Mack, who was wielding a firearm. During the scuffle, the firearm was discharged, wounding a fourth student, Benjamin Hart. Hair and Hales were issued disorderly conduct citations and appeared before the JSU Student Life Disciplinary Committee. After a hearing, they were found guilty of disorderly conduct and were suspended from attending JSU. The fraternity to which Hair, Hales and Hart belonged, Omega Psi Phi, was also cited for disorderly conduct under that part of the JSU student manual which provides that, if a member of a fraternity “draws attention to the organization rather than to themselves as individuals,” the fraternity may be found guilty of disorderly conduct. Omega Psi Phi was found guilty of disorderly conduct because Hair, Hales and Hart, upset that Mack had spit on the Omega Psi Phi monument, followed Mack to the student union and instigated the altercation that resulted in the discharge of the weapon. Omega Psi Phi was suspended from participating in any fraternity activities on the JSU campus until the spring semester of 2009.

¶ 2. Hair, Hales and Omega Psi Phi appealed to the appeals committee, which affirmed. They then filed in the Circuit Court of the First Judicial District of Hinds County a “Complaint and Motion for a Temporary Restraining Order, for a Preliminary and Permanent Injunction, and for Other Relief.” They asked the court to prohibit “Jackson State University and the Board of Trustees of State Institutions of Higher Learning from enforcing the decision of the Student Disciplinary Committee.”

¶ 3. After a hearing, the circuit court granted injunctive relief based on the ap-pellees’ allegations of denial of due process. Specifically, the appellees alleged that they were not allowed to cross examine the campus police officer who was present during the altercation and who preferred the charges against them. We granted permission to Jackson State University, the Board of Trustees of State Institutions of Higher Learning, and Richard A. Crofts, Interim Commissioner, to file this interlocutory appeal.

DISCUSSION

¶ 4. The case of Smith v. The University of Mississippi, 797 So.2d 956 (Miss.2001) is dispositive. Smith, who had been employed at the University (“Ole Miss”), as an engineer, was terminated. Id. at 957. According to the process outlined in Ole Miss’s Handbook for Faculty and Staff, Smith appealed, first to an administration official, then to the Personnel Action Review Board (“PARB”) for a full administrative hearing. Id. After the termination was affirmed, Smith filed suit in circuit court, alleging that no just cause existed for the termination and that the appeal process was constitutionally insufficient. Id. Ole Miss moved to dismiss the complaint on the basis that the circuit court had no jurisdiction inasmuch as Smith failed to file the appeal according to Miss. Code Ann. §§ 11-51-93 and -95 (Rev. 2002), i.e., by filing a petition for writ of certiorari in the circuit court and posting a bond. In response, Smith alleged that section 11-51-95 did not apply to him because his procedural due process rights were violated. Id. at 960. We disagreed with Smith’s argument. Pointing out that Smith sought a reversal of the PARB’s ruling, that is, he sought reinstatement of his employment, we held that, even though Smith raised due process claims, the circuit court did not have jurisdiction because Smith did not exhaust his administrative remedies. Id. at 961-62. It followed the ruling in Miss. State Pers. Bd. v. Armstrong, 454 So.2d 912, 914-15 (Miss.1984), where we held that “the required superse-deas bond is jurisdictional, and the appeal is not perfected until the bond is approved by the circuit judge and filed.” Smith, 797 So.2d at 962. We continued:

Again, in Bertucci v. Mississippi Dep’t of Corrs., 597 So.2d 643 (Miss.1992), this Court required strict compliance with the appeal provisions for a writ of certio-rari by stating that “we decline to ignore statutory requisites and accept that a brief is in substantial compliance with § 11-51-93. We are not willing to accept anything less than full compliance with all essentials within the time allowed. ...” As the University correctly points out, Smith failed to submit a petition supported by an affidavit and post a bond, with security, within six months of the decision of the PARB per the requirements of § 11-51-95. Smith’s failure to perfect his appeal under § 11 — 51— 95 deprived the circuit court of jurisdiction to review the University’s decision to terminate Smith[;] therefore the court’s dismissal of Smith’s claims was proper.

Id. (citations omitted).

¶ 5. Therefore, because Omega Psi Phi, Hair and Hayes failed to strictly comply with section 11-51-95 by failing to file a petition for writ of certiorari and to post a bond with security, the circuit court did not have jurisdiction to hear the appellees’ motion for a temporary restraining order, for a preliminary and permanent injunction, and for other relief.

CONCLUSION

¶ 6. We dissolve the temporary restraining order and preliminary injunction issued by the Circuit Court of the First Judicial District of Hinds County and render judgment in favor of Jackson State University, Board of Trustees of State Institutions of Higher Learning, and Richard A. Crofts, Interim Commissioner.

¶ 7. REVERSED AND RENDERED.

SMITH, C.J., COBB, P.J., DIAZ, EASLEY, CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. GRAVES, J., NOT PARTICIPATING.

      . Section 11-51-95 provides in pertinent part, as follows: "Like proceedings as provided in Section 11-51-93 may be had to review the judgments of all tribunals inferior to the circuit court, whether an appeal be provided by law from the judgment sought to be reviewed or not.” We have held that hearing panels at state universities are "tribunals inferior” pursuant to § 11-51-95. Smith v.Univ. of Miss., 797 So.2d 956, 959 (Miss.2001).


author: IRVING, J., for the Court.

text:
    Phelan Terrell GUICE, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-01931-COA.
    Court of Appeals of Mississippi.
    Jan. 24, 2006.
    Rehearing Denied May 2, 2006.
    See also, Miss., 952 So.2d 131.

      Joshua Aaron Turner, Merrida Coxwell, attorneys for appellant. ⅜
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before LEE, P.J., IRVING and CHANDLER, JJ.
   IRVING, J., for the Court.

¶ 1. Phelan Guice was convicted of aggravated assault with a weapon by a Hinds County Circuit Court jury, and the court sentenced him to serve twenty years in the custody of the Mississippi Department of Corrections. Guice appeals and asserts the following errors: (1) violation of his constitutional and statutory rights to a speedy trial, (2) ineffective assistance of counsel, (3) denial of his fundamental right to submit an alternate theory of his case to the jury, and (4) denial of his Sixth and Fourteenth Amendments right to cross-examination.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On the evening of September 2, 2001, a person came to the Bolles’s residence. Anita Bolles answered the door, and the man at the door asked to speak with her brother, Clarence “Brian” Bolles, Jr. After hearing the doorbell ring, Brian proceeded to go answer the door, not knowing that his sister had already answered it. When Brian reached the door, the visitor pulled out a gun and began shooting. Brian suffered a gunshot wound to the abdomen, while Anita escaped unharmed.

¶ 4. Anita Bolles was able to pick out her brother’s assailant from a police photographic line-up. She identified Guice as the person who came to their house on the evening of September 2, 2001, and shot her brother.

¶ 5. At trial, Guice testified that he did not shoot Brian. He also testified that he was at his grandmother’s house in Yazoo City on the evening of the incident. Guice further testified that there were no witnesses who could substantiate his claim that he was out of town when the incident occurred.

¶ 6. Additional facts, as necessary, will be related during the discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

(1) Constitutional and Statutory Rights to a Speedy Trial

¶ 7. Guice asserts that he was denied his constitutional and statutory rights to a speedy trial.

(a) Constitutional Right

¶ 8. “The constitutional right to a speedy trial attaches at the time of formal indictment, information, or arrest.” Birkley v. State, 750 So.2d 1245, 1249(¶ 11) (Miss.1999) (quoting Smith v. State, 550 So.2d 406, 408 (Miss.1989)). The Mississippi Supreme Court utilizes the balancing test set forth in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) to determine whether a defendant has been constitutionally denied a speedy trial. “The factors to be considered are: (1) length of delay, (2) reason for the delay, (3) whether the defendant has asserted his right to a speedy trial, and (4) whether the defendant was prejudiced by the delay.” Birkley, 750 So.2d at 1249(¶ 11) (quoting Barker, 407 U.S. at 530, 92 S.Ct. 2182).

(1) Length of Delay

¶ 9. The analysis of the Barker factors begins with the first factor, length of delay, which operates as a triggering mechanism. Id. at (¶ 13) (citing Simmons v. State, 678 So.2d 683, 686 (Miss.1996)). The time elapsing from the date of Guice’s arrest, September 14, 2001, to the beginning day of his trial, May 3, 2004, was over thirty-one months. “Any delay of eight months or longer is presumptively prejudicial.” Id. at (¶ 14) (quoting Simmons, 678 So.2d at 686). “If the delay complained about is not presumptively prejudicial, the analysis goes no further.” Jaco v. State, 574 So.2d 625, 630 (Miss.1990). In this case, the time lapse of over thirty-one months is presumptively prejudicial, thereby necessitating a further analysis of the remaining Barker factors.

(2) Reason for the Delay

¶ 10. “Once we find the delay is presumptively prejudicial, the burden shifts to the prosecution to produce evidence justifying the delay and to persuade the trier of fact of the legitimacy of the reasons.” Birkley, 750 So.2d at 1250(¶ 15) (quoting State v. Ferguson, 576 So.2d 1252, 1254 (Miss.1991)). “However, presumptive prejudice alone is insufficient to allow the defendant to prevail on speedy trial grounds.” Id. (quoting Hurns v. State, 616 So.2d 313, 317 (Miss.1993)). In Barker, the United States Supreme Court stated:

Closely related to the length of delay is the reason the government assigns to justify the delay_ A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.

Barker, 407 U.S. at 531, 92 S.Ct. 2182.

¶ 11. The record reveals no reasons for the delay. Guice does not offer any reasons for the delay, nor does he contend that the State engaged in a deliberate attempt to delay the trial in order to hamper his defense. The State never gave any reason for the delay. The State simply contends that, from a review of the record, it appears that much of the delay can be contributed to Guice trying to obtain counsel, failing to obtain counsel, and trying to dismiss counsel. However, the State’s claim is unsubstantiated because nothing in the record remotely suggests that Guice was the- reason for any of the delay. “Where the accused has not caused the delay, and where the prosecution has failed to show good cause therefor [sic], this factor weighs in favor of the accused.” Ferguson, 576 So.2d at 1254 (citing Handley v. State, 574 So.2d 671, 676 (Miss.1990)). Therefore, we find that this factor weighs in favor of Guice and against the State.

(3)Defendant’s Assertion of Right to a Speedy Trial

¶ 12. The next factor we consider is the defendant’s assertion of his right to a speedy trial. “Although it is the State’s duty to insure that the defendant receives a speedy trial, a defendant has some responsibility to assert this right. Failure to assert this right will make it difficult for a defendant to prove that he was denied a speedy trial.” Taylor v. State, 672 So.2d 1246, 1261 (Miss.1996). A defendant “has no duty to bring himself to trial...: Still he gains more points under this prong of the Barker test where he has demanded a speedy trial.” Brengettcy v. State, 794 So.2d 987, 994(¶ 17) (Miss.2001) (quoting Jaco, 574 So.2d at 632).

¶ 13. There is no evidence in the record that Guice demanded a speedy trial from the circuit court. The only filing in the record that hints to Guice’s assertion of a right to a speedy trial is his motion to dismiss charges for failure to provide a fast and speedy trial, which was filed February 5, 2004. However, a demand for dismissal for violation of the right to a speedy trial is not the equivalent of a demand for a speedy trial. See Perry v. State, 637 So.2d 871, 875 (Miss.1994). Moreover, even if this Court were to assume that his motion sufficed as an assertion of his right to a speedy trial, Guice’s own words would contradict this assumption. In talking with the trial court, Guice said, “Your honor, the thing about the speedy trial, I was not asking for a speedy trial. I was asking for my charges to be dismissed on the grounds of a violation of a speedy trial.” Since Guice never asserted his right to a speedy trial, we find that this factor weighs against him.

(p) Prejudice to the Defendant

¶ 14. “The final factor is prejudice against the defendant. When the length of delay is presumptively prejudicial, the burden of persuasion is on the State to show that the delay did not prejudice the defendant.” Ferguson, 576 So.2d at 1254. “Nevertheless, if the defendant fails to show actual prejudice to his defense, this prong of the Barker balancing test cannot weigh heavily in his favor.” Polk v. State, 612 So.2d 381, 387 (Miss.1992)(overruled on other grounds). “Prejudice to the defendant may manifest itself in two ways. First, the delay may actually impair the accused’s ability to defend himself. Second, the defendant may suffer because of the restraints to his liberty, whether it be the loss of his physical freedom, loss of job, loss of friends or family, damage to his reputation, or anxiety.” Stevens v. State, 808 So.2d 908, 917(¶24) (Miss.2002) (citing Duplantis v. State, 708 So.2d 1327, 1336(¶ 22).(Miss.l998)).

¶ 15. Guice argues that he was in continuous confinement from his arrest until trial. However, Guice does not set forth any specific prejudice or problems that resulted from his incarceration. “A defendant’s assertion of prejudice attributable solely to incarceration, with no other harm, typically is not sufficient to warrant reversal.” Williamson v. State, 512 So.2d 868, 877 (Miss.1987) (overruled on other grounds); see also Russell v. Lynaugh, 892 F.2d 1205, 1215 (5th Cir.1989) (the accused could not claim that a longer period of incarceration compounded his anxiety, since he was already serving a sentence for another crime). Furthermore, Guice does not assert that his defense suffered any prejudice because of his lengthy incarceration. He generally states that an accused’s defense may be impaired by a lengthy delay; however, he does not cite any way in which his defense was so prejudiced. He does not contend that witnesses were unavailable because of the delay or that evidence had been lost or destroyed or that his defense against the charges was affected in any way by the delay. In short, there is no evidence of actual prejudice to Guice. His only claim of prejudice stems from his incarceration and the stress and anxiety resulting from the prospect of facing justice. Therefore, we find that this factor weighs in the State’s favor.

¶ 16. In conclusion, based upon the analysis of the four Barker factors, we find that there was no violation of Guice’s constitutional right to a speedy trial.

(b) Statutory Right

¶ 17. Mississippi’s speedy trial statute provides, “Unless good cause be shown, and a continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned.” Miss.Code Ann. § 99-17-1.

Under this provision, where the accused is not tried within 270 days of his arraignment, the defendant is entitled to dismissal. However, continuances for “good cause” toll the running of the 270-day period, unless the record is silent regarding the reason for the delay, and then the clock ticks against the State because the State bears the risk of non-persuasion on the good cause issue. A written order stating that a motion for continuance is well taken and. should be granted is the equivalence of a judicial determination that good cause exists. Continuances attributable to the defendant stop the running of the clock and are deducted from the total number of days before trial in determining whether the 270-day rule applies.

Reynolds v. State, 784 So.2d 929, 933(¶ 12) (Miss.2001) (citations omitted).

¶ 18. A total of 550 days elapsed from the time Guice was arraigned on October 30, 2002, to the start of his trial on May 3, 2004. Therefore, from a temporal standpoint, the State failed by 280 days to comply with its statutory obligation to bring Guice to trial. As stated earlier "in this opinion, the record reveals nothing which might explain the reason for the delay, nor is there any evidence of continuances requested by or granted to either party. Consequently, we have a clear violation of the statute requiring that a defendant be brought to trial within 270 days of arraignment.

¶ 19. On February 5, 2004, Guice filed a motion to dismiss charges for failure to provide a fast and speedy trial. As the date indicates, the motion was filed well after the expiration of the 270 days of the arraignment. In addition, Guice has not demonstrated any prejudice from the delay occurring between his arraignment and trial. Therefore, even though a clear violation of section 99-17-1 occurred, we hold, based on the authority of Walton v. State, 678 So.2d 645, 650 (Miss.1996), that Guice waived his right to complain about the denial of his statutory right to a speedy trial because he did not assert his right to a speedy trial until well after the deadline had passed. Our holding is further supported by the fact that Guice has shown no prejudice.

(2) Ineffective Assistance of Counsel

¶20. In his next assignment of error, Guice argues that his trial counsel rendered ineffective assistance. He specifically contends that his counsel was ineffective in failing to assert his constitutional and statutory rights to a speedy trial and in failing to properly investigate one of the State’s witnesses prior to trial.

¶ 21. The standard of review for ineffective assistance of counsel comes from Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland promulgated a two-prong test which was adopted by the Mississippi Supreme Court in Rankin v. State, 636 So.2d 652, 656 (Miss.1994). The Strickland test requires that Guice show: (1) that his counsel’s performance was deficient and (2) that the deficient performance prejudiced his defense. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Accordingly, Guice must show that “but for his attorney’s errors, there is a reasonable probability that he would have received a different result in the trial court.” Rankin, 636 So.2d at 656 (citing Nicolaou v. State, 612 So.2d 1080,1086 (Miss.1992)).

(a) Failure to Assert Constitutional and Statutory Rights to a Speedy Trial

¶ 22. It is logical to conclude that Guice’s trial counsel erred when she failed to assert his constitutional and statutory rights to a speedy trial. However, the question is: if Guice’s counsel would have asserted his constitutional and statutory rights to a speedy trial, is there a reasonable probability that the outcome of the case would have been different? Obviously, the answer depends on whether, if Guice’s counsel would have asserted his speedy trial rights, the trial court would have dismissed the charges.

¶23. In addressing Guice’s ineffective assistance of counsel claim for failure to assert his constitutional right to a speedy trial claim, we once again examine the outcome of our Barker analysis. Guice’s trial was delayed for a presumptively prejudicial amount of time, and he failed to assert his right to a speedy trial. Guice’s failure to assert this right weighs against him. There was nothing contained in the record to indicate the reason for the delay; this factor weighs against the State. Possibly the most significant factor was that Guice failed to demonstrate how his incarceration and the delay caused him any' actual prejudice beyond what is ordinary while awaiting trial. The prejudice prong of the analysis weighs against Guice and in favor of the State. As previously mentioned, Guice waived his right to complain about the denial of his statutory right to a speedy trial because he did not assert this right until well after the statutory deadline had passed. Furthermore, Guice failed to show any actual prejudice resulting from the failure to assert his statutory right to a speedy trial. It is our conclusion that the relevant factors and the facts surrounding the case indicate that Guice’s right to a speedy trial was not violated. Therefore, assertion of his constitutional and statutory rights to a speedy trial would not have resulted in a different outcome to the case. This issue is without merit.

(b) Failure to Investigate the State’s Witness

¶ 24. We now address Guice’s other claim that his trial counsel was ineffective for failing to properly investigate the State’s expert witness, Byron Mcln-tire. Mclntire worked in firearms identification for the Mississippi Crime Laboratory, and he was the person who performed tests on the projectiles that were removed from Brian’s abdomen. The sole purpose for Mclntire’s testimony was to inform the jury that tests revealed that the projectiles were consistent with those fired from a nine millimeter handgun. This piece of information was important to the State’s case because Guice was charged with assaulting Brian with a weapon, more specifically a nine millimeter handgun.

¶ 25. We note that Guice’s counsel vigorously objected and argued at length, that the conclusions within Mclntire’s report should not be communicated to the jury because the defense only received a copy of the report the day before the trial began. Nevertheless, the court overruled the objection and allowed Mclntire to testify about, the information contained in his report. As previously noted, Guice argues that his trial counsel was ineffective for not “engaging” or “investigating” Mclntire until the day of the trial. It is true that Guice’s counsel knew in advance that Mclntire would be called as a witness for the State, but we fail to see what more she could have done to aid Guice’s defense.

¶ 26. The record reveals the fact that the State sent the projectiles to Mclntire on April 28, 2004. Mclntire performed tests on the projectiles and submitted a report on his findings to the prosecution on May 3, 2004. The defense received a faxed copy of the report on May 3, 2004, a day before the start of Guice’s trial. Given the circumstances, Guice’s trial counsel properly responded by making the following argument to the court: “Your Honor, the report was not requested until April 28th. The DA’s office has had the case for sometime. It ties us up and bogs us down with this particular expert opinion and we ask the court to prohibit them from being able to offer that expert opinion.” This argument was made to no avail. Furthermore, given the fact that Guice’s defense was that he did not shoot Brian because he was out of town when the incident occurred, we fail to see how a failure to “properly investigate” Mclntire hampered his defense in any way. Such actions by trial counsel will seldom, if ever, constitute ineffective assistance of counsel because “counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.” Strickland, 466 U.S. at 691, 104 S.Ct. 2052.

(3) Alternate Theory of the Case and Cross-Examination

¶ 27. In his final points of error, Guice argues that the trial court erred when it denied him the opportunity to submit an alternate theory of his case to the jury and denied him the opportunity to cross-examine one of the State’s witnesses. Since both of Guice’s arguments are predicated on the fact that the court erred in not allowing him to ask Anita Bolles about her involvement with Mario Jones or Mario’s possible involvement in the shooting, we combine these issues and address them together.

¶28. We note from the outset that Guice was not actually denied the right to cross-examine Anita. Guice’s counsel got Anita to admit that she did not really get a good look at the person who was at the door. Anita also admitted that she picked out a person from the police photographic line-up that “resembled” the person who came to their house asking for Brian. Anita further admitted during the trial that she could not say with absolute certainty that Guice was the person who came to their residence and shot Brian. Through effective cross-examination, Guice’s counsel was able to attack the credibility of Anita’s testimony. Therefore, in actuality, Guice was not denied the right to cross-examine Anita, he was only denied the right to pursue a line of questioning that the court ruled was not relevant to the issues at hand.

¶ 29. We clearly recognize that Mississippi law dictates that a defendant is entitled to have an alternate theory of his case submitted to the jury. In Love v. State, 441 So.2d 1353,1356 (Miss.1983), the Mississippi Supreme Court held that:

[Ljitigants in all cases, including defendants in criminal prosecutions, are entitled to assert alternative theories, even inconsistent alternative theories. A criminal defendant is entitled to present his defense to the finder of fact, and it is fundamentally unfair to deny the jury the opportunity to consider the defendant’s defense where there is testimony to support the theory.

Therefore, based upon established Mississippi case law, Guice should have been allowed to present an alternate theory of his case that Mario could have been the person who actually shot Brian — to the jury. As support for his alternate theory, Guice should have been allowed to question Anita about her involvement with Mario or Mario’s possible involvement in the shooting. However, had Guice actually desired to present an alternate theory of his case to the jury, our resolution of his appeal may have been different. Guice, in his own words to the court, contradicts the arguments and assertions of his appellate counsels. In speaking with the court about conflicts of interest that he was having with his trial counsel, Guice said:

And, as I said, the conflict of interest goes to another thing, not just by the motion being filed for the violation of my rights to a speedy trial.... [WJhat she was explaining to me, your honor, was that my cousin Mario — to make him look as an enemy in this case. Now, if we were to bring up Mario in this case, it would be to my betterment for him to explain why would the court suggest that I had something to do with the crime that was committed.

Consequently, we find that we cannot reverse and remand a case with instructions for the trial court to permit Guice to submit an alternate theory of his case to the jury when he never wanted one submitted in the first instance. This issue is without merit.

¶ 30. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY OF CONVICTION OF AGGRAVATED ASSAULT WITH A WEAPON AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ„ CONCUR. SOUTHWICK AND ROBERTS, JJ., NOT PARTICIPATING.

      . Once again, Anita was Brian’s sister. She was the one who answered the door when the shooter came to the Bolles's residence asking for Brian. Mario was a former boyfriend with whom Anita had a child. Apparently Mario and Brian previously had some type of altercation at the daycare center where Anita’s child attended. The record reveals that Anita gave a statement to the police in which she stated that Mario had driven by her house on the day of the incident, waiving a gun at her brother and that he had called her house shortly before the shooting and made threats.


author: KING, C.J., for the Court. GRIFFIS, J.,

text:
    Michelle FRADELLA and GBS Properties, LLC, d/b/a Prudential Gardner Realtors (“Prudential Gardner”), Appellants, v. James E. SEABERRY and Wife, Rosella M. Seaberry, Appellees.
    No. 2005-CA-00404-COA.
    Court of Appeals of Mississippi.
    April 11, 2006.
    Rehearing Denied Aug. 1, 2006.

      Richard Eugene Cassady, Frank D. Montague, Hattiesburg, W. Edward Hat-ten, Gulfport, attorneys for appellants.
    Richard C. Fitzpatrick, attorney for ap-pellees.
   KING, C.J., for the Court.

¶ 1. Michelle Fradella (Fradella) and GBS Properties, LLC d/b/a Prudential Gardener Realtors (Prudential Gardner) appeal the decision of the Pearl River County Chancery Court denying their motion to compel arbitration. Finding no error, we affirm and remand to the trial court.

STATEMENT OF FACTS

¶ 2. On February 29, 2004, James and Rosella Seaberry (Seaberrys), acting through Fradella, an agent with Prudential Gardner Realtors, submitted a written offer to purchase a house and 18 acres of land at 31 Global Lane in Picayune, Mississippi, from Sammy and Joy Germany (Germanys). Because the Germanys were also represented by Fradella, the Seaber-rys signed a dual agency acceptance form that day. On March 2, 2004, the Germa-nys submitted a written counteroffer to sell to the Seaberrys 16.68 acres and the house. The Seaberrys executed a written acceptance of the counteroffer on March 3, 2004. On April 19, 2004, the Seaberrys executed a contract for the sale and purchase of real estate (Seaberry-Germany contract) of the Global Lane property. The legal description of the property set forth in the Seaberry-Germany contract was “As Per Title”. Each of these documents was a realty form prepared by Fra-della.

¶ 3. The Seaberrys closed on the Picayune property on April 26, 2004. After the closing, the Seaberrys discovered several alleged discrepancies between what they bargained for and what they received. Aggrieved by these alleged discrepancies, the Seaberrys initiated suit on September 28, 2004, in the Pearl River County Chancery Court against the sellers, Fradella, Prudential Gardner, and several other parties involved in their purchase. Aggrieved by the chancellor’s denial of their motion to compel, Fradella and Prudential Gardner raise two issues on appeal:

1. WHETHER THE LOWER COURT ERRED IN DENYING THE MOTION TO COMPEL ARBITRATION, WHEN IT FOUND THAT PARAGRAPH 11 AND PARAGRAPH 26 OF THE CONTRACT CREATED AN AMBIGUITY, THEREBY RENDERING THE MANDATORY ARBITRATION CLAUSE OF THE CONTRACT INEFFECTIVE; AND

2. WHETHER THE LOWER COURT ERRED WHEN IT FOUND THAT NEITHER FRADELLA NOR PRUDENTIAL GARDNER ARE SIGNATORIES TO THE CONTRACT, THEREFORE PREVENTING THEM FROM OBTAINING THE BENEFIT OF THE MANDATORY ARBITRATION CLAUSE OF THE CONTRACT SIGNED BY THE SEABERRYS.

Finding no error, the chancellor’s denial of the motion to compel arbitration is affirmed.

STANDARD OF REVIEW

¶ 4. A lower court’s grant or denial of a motion to compel arbitration is reviewed de novo. Pre-Paid Legal Services, Inc. v. Battle, 873 So.2d 79, 82(¶ 8) (Miss.2004).

DISCUSSION

¶ 5. This case presents us with a unique factual scenario. Fradella and Prudential Gardner, who were not parties to the Seaberry-Germany contract, seek to enforce an arbitration clause contained within paragraph 26 of the Contract. Paragraph 26 reads:

MANDATORY ARBITRATION: Both buyer and seller (hereinafter “parties”) acknowledge, understand and agree that (1) may controversy, claim, action or inaction arising out of, or relating to, that “purchase” set out herein, as against the listing company or selling company and/or their agents or representatives (hereinafter “company”) involved in this transaction shall be resolved by arbitration administered by the American Arbitration Association in accordance with its arbitration rules, and (2) judgment on the award rendered by the arbitrator(s) may. be entered in any court of competent jurisdiction, and (3)the arbitration proceeding shall be conducted within the county in which the dispute arose or such other location as agreed upon by the parties, and (4) if fault is found, the award of damages will conform to the terms and conditions of the “purchase” and (5) this transaction involves interstate commerce such that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (1947 as amended) shall govern the interpretation and enforcement of this agreement along with all claims between or among the parties and the company(ies) involved in this transaction.

The Federal Arbitration Act (FAA), 9 U.S.C. § 2 (2000), provides that:

A written provision in any ... contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract ... or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity.

¶ 6. There is a liberal federal policy favoring arbitration agreements, based on section 2 of the FAA. Terminix International Inc. v. Rice, 904 So.2d 1051, 1054(¶ 7) (Miss.2004). Therefore, we will always respect the right of an individual or an entity to agree in advance of a dispute to arbitration or other alternative dispute resolution. Id. However, arbitration is contractual by nature and a party cannot be required to submit to arbitration any dispute to which he or she has not agreed so to submit. Thomson-CSF, S.A. v. American Arbitration Association, 64 F.3d 773, 776 (2nd Cir.1995). “Thus while there is a strong and liberal federal policy favoring arbitration agreements, such agreements must not be so broadly construed as to encompass claims and parties that were not intended by the original contract.” Id.

¶ 7. In considering motions to compel arbitration, this Court must first determine whether the parties’ dispute is within the scope of a valid arbitration agreement. Terminix Intern., Inc., 904 So.2d at 1055(¶ 8). The next step, then, is to consider whether legal constraints external to the parties’ agreement foreclosed arbitration of those claims. Id. (citing Sullivan v. Mounger, 882 So.2d 129, 132(¶ 14) (Miss.2004)). In order to determine whether legal constraints exist which would preclude arbitration, courts should generally apply ordinary state-law contract principles. East Ford, Inc. v. Taylor, 826 So.2d 709, 713-14(¶ 12) (Miss.2002).

¶ 8. Although Fradella and Prudential Gardner treat paragraph 26 as a provision of the Seaberry-Germany contract, we find it to be a separate contract all together. The essence of the Seaberry-Germany contract was for the sale of land from the Germanys to the Seaberrys. Paragraph 26, however, mandates arbitration between either the Germanys or the Seaberrys against Fradella or Prudential Gardner, non-parties to the Seaberry-Germany contract. This paragraph was non-essential to the heart of the Seaberry-Germany contract, and was solely for the benefit of the non-party dual agent. It must thus be analyzed as a separate contract, triggering an elementary contract formation analysis.

¶ 9. In applying state-law contract principles, Mississippi requires that parties to a contract first come to an agreement, or “meeting of the minds,” on the essential elements of the contract in order for it to be enforceable. Hunt v. Davis, 208 Miss. 710, 45 So.2d 350, 352 (1950). More importantly, an enforceable contract must contain an offer, acceptance, and consideration. Gatlin v. Methodist Medical Center, Inc., 772 So.2d 1023, 1029(¶ 20) (Miss.2000).

¶ 10. The totality of the arbitration contract which is the basis of this action is:

MANDATORY ARBITRATION: Both buyer and seller (hereinafter “parties”) acknowledge, understand and agree that (1) may controversy, claim, action or inaction arising out of, or 'relating to, that “purchase” set out herein, as against the listing company or selling company and/or their agents or representatives (hereinafter “company”) involved in this transaction shall be resolved by arbitration administered by the American Arbitration Association in accordance with its arbitration rules, and (2) judgment on the award rendered by the arbitrator(s) may be entered in any court of competent jurisdiction, and (3) the arbitration proceeding shall be conducted within the county in which the dispute arose or such other location as agreed upon by the parties, and (4) if fault is found, the award of damages will conform to the terms and conditions of the “purchase” and (5) this transaction involves interstate commerce such that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (1947 as amended) shall govern the interpretation and enforcement of this agreement along with all claims between or among the parties and the company(ies) involved in this transaction.

¶ 11. The insertion of paragraph 26 into the Seaberry-Germany contract represented an offer by Fradella and Prudential Gardner to enter into individual arbitration agreements with the Seaberrys and the Germanys. Both the Seaberrys and the Germanys indicated their willingness to enter into individual arbitration agreements with Fradella and Prudential Gardner by initialing the arbitration contract. In addition to a willingness to enter into a contract, there must also be some mutual benefit, or consideration, for the contract. “Consideration may be said to be what is actually given or suffered and accepted for a promise ... the price bargained and paid for a promise ... something given in exchange for the promise. Covington Cadillac Co. v. South Aire, Inc., 242 Miss. 716, 136 So.2d 866, 870 (1962) (citing 12 Am.Jur., Contracts, § 75, p. 568). Sufficient consideration may consist either in some right, interest, profit, or benefit accruing to one party, or some forbearance, detriment, loss, or responsibility given, suffered, or undertaken by the other. Id.

¶ 12. In the case sub judice, no consideration was given by Fradella and Prudential Gardner to the Seaberrys or Germanys for the arbitration agreements. This separate arbitration contract was contained within the Seaberry-Germany contract, to which neither Fradella nor Prudential Gardner were parties. The consideration given from the Seaberrys to the Germa-nys, and from the Germanys to the Sea-berrys, does not transfer to the separate arbitration agreement. Both Fradella and Prudential Gardner stand to benefit from the arbitration agreement, while neither offer anything in exchange to the Seaber-rys or Germanys that may be classified as consideration. In order for the arbitration agreement to be enforceable, Fradella and Prudential Gardner must have some forbearance, detriment, loss or responsibility given or undertaken. Since there was none, this arbitration contract is void on its face.

¶ 13. The dissent evidently misses the mark in attempting to create consideration for the arbitration agreement. The dissent attempts wrongly to identify several matters which it calls consideration for the arbitration agreement.

¶ 14. The Germanys employed Prudential and Fradella to list and sell their real estate. As compensation for the activities associated with that listing and sale, Prudential and Fradella were to receive a commission. If the buyer of this real estate was found by another real estate agency and agent, then that commission would have to be split with the outside agency. If however, Prudential and Fra-della were able to represent both the buyer and the seller, then they would be entitled to retain the entire commission.

¶ 15. Fradella and Prudential were also employed to assist the Seaberrys in finding a home. For those efforts, Fradella and Prudential were to receive a percentage of the sales commission. As further compensation for those activities, by getting the Seaberrys to agree to a dual agency, Fradella became entitled to that portion of the commission which the listing broker and agent would receive, as well as that portion of the sales commission which the selling broker and agent were entitled to receive.

¶ 16. All of the things which the dissent stretches to call consideration were activities required under the earlier agreement. The arbitration agreement was a new contractual matter which was later injected by Fradella and Prudential. For this new contractual matter, neither Fradella nor Prudential was to provide the Seaberrys any additional services. This is by definition a failure of consideration.

¶ 17. Therefore, the judgment of the chancery court is affirmed, and this case is remanded to the trial court for further proceedings.

¶ 18. THE JUDGMENT OF THE PEARL RIVER COUNTY CHANCERY COURT DENYING THE MOTION TO COMPEL ARBITRATION IS AFFIRMED AND THIS CASE IS REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

MYERS, P.J., AND ROBERTS, J., CONCUR. IRVING, J., CONCURS IN RESULT. BARNES, J., CONCURS IN PART AND IN RESULT. GRIFFIS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY LEE, P.J., SOUTHWICK, CHANDLER AND ISHEE, JJ.

GRIFFIS, J.,

dissenting:

¶ 19. I respectfully dissent.

¶ 20. The majority begins its discussion by saying that Fradella and Prudential Gardner were not parties to the contract. However, a detailed review of the contract indicates that Fradella and Prudential Gardner had several duties, obligations and responsibilities pursuant to the contract. Indeed, the contract plainly recognized their efforts and provided that Prudential Gardner and Fradella would be paid a commission. It also provided that Prudential Gardner would receive and hold the earnest money deposit, acting as trustee, and it specified what would be done with the deposit. The most telling provision of the contract was Paragraph 18, which stated:

DISCLOSURE OF AGENCY RELATIONSHIP: The parties confirm, in connection with the transaction, that Listing Firm and the Selling Firm have represented the party or parties indicated below, and that these relationships were disclosed to the parties in writing at or before the time specific real estate assistance was provided. Notwithstanding the provisions of Paragraph 9 of this Purchase Agreement relating to the payment of commissions, the parties agree that ...:
C. The Listing Firm and its sales persons represent both the Seller and the Purchaser as dual agents by mutual agreement and all parties have signed and understand the Dual Agency Confirmation form attached and made a part of this Purchase Agreement.

The record also contains the dual agency confirmation form that was signed by the Seaberrys.

¶ 21. Despite these provisions, the majority finds a lack of consideration by Fradella and Prudential Gardner and concludes that “this arbitration agreement/contract is void on its face.” The facts in the record simply support the opposite conclusion and do not support the majority’s conclusion. Further, I am concerned that the majority’s conclusion requires that this Court travel a road that neither the chancellor nor the Seaberrys have traveled or have even asked this Court to travel. The majority’s course is treacherous and many hidden perils await.

¶22. The majority’s rendition of the facts clearly indicate that Fradella and Prudential Gardner were employed by the Seaberrys to assist them in their effort to purchase real property. The Seaberrys’ sworn complaint indicates that the Seaber-rys engaged Fradella’s “services for the purpose of locating a home and acreage to purchase.... ” The complaint details Fra-della’s efforts to present or show available property to the Seaberrys. The complaint includes all of Fradella’s efforts during the contract negotiations.

¶ 23. The record is filled with references to the services that Fradella and Prudential Gardner provided to the Sea-berrys, while acting as their real estate agent and by assisting them in the location and purchase of property. The actions of Fradella and Prudential Gardner were sufficient to serve as valuable consideration for the promises, duties and obligations that were set forth in the contract. If we accept the majority’s conclusion, we will invalidate almost every real estate contract in this state. We could go further and conclude that the real estate agents are not entitled to their commissions because their efforts in the sale or purchase of real estate are not valuable consideration. The majority’s conclusion that there was no consideration given for the arbitration agreement is inconsistent with the record before this Court.

¶ 24. We often decline to review issues that are presented for the first time on appeal. See, e.g., Parker v. Miss. Game & Fish Comm’n, 555 So.2d 725, 730 (Miss.1989) (well stated principle that issues not presented at trial cannot be raised on appeal); Crenshaw v. State, 520 So.2d 131, 134-35 (Miss.1988) (“trial judge cannot be put in error on a matter which was not presented to him for decision”); Eagle Pac. Ins. Co. v. Quintanilla, 923 So.2d 266 at (¶ 12) (Miss.Ct.App.2006) (decline to review on appeal because argument not presented to trial court); Jones v. State, 915 So.2d 511, 513(¶ 7) (Miss.Ct.App.2005) (“Questions will not be decided on appeal which were not presented to the trial court and that court given an opportunity to rule on them. In other words, the trial court cannot be put in error, unless it has had an opportunity of committing error.”). Here, however, the majority does not seek to find reversible error in a matter not presented to the trial court; instead, the majority looks to matters that were neither argued to the trial court nor this Court to find some basis to affirm the trial court’s ruling.

¶ 25. In response to the motion to compel arbitration, the Seaberrys made four arguments:

1. There is no valid enforceable arbitration agreement.
2. Even if agreed to, the arbitration clause, is unenforceable because it is unconscionable.
3. Even if the arbitration clause is valid, Fradella and Prudential cannot take advantage of it because they are not signatories to the document containing the arbitration clause.
4. Even if the arbitration clause is valid and part of a binding contract and Fradella and Prudential can assert it, this litigation is specifically authorized by the provisions of Paragraph 11 concerning breach by the seller.

¶ 26. The first issue presented appears to offer some basis for the majority’s holding. The holding fails, however, when the Seaberrys’ argument is reviewed. Before the trial court and this Court, the Seaber-rys argued that the agreement was not enforceable because it had to be signed by all parties, and it was not. They also claimed that the agreement contained a specific deadline before which the agreement had to be accepted. Because the agreement was not signed by the deadline, they contend it was not enforceable. Failure or lack of consideration is nowhere in the Seaberrys’ response to the motion to compel arbitration or in the chancellor’s ruling. Likewise, the issues raised by the Seaberrys in their briefs to this Court do not mention or argue failure or lack of consideration. There is simply no mention of it anywhere, except by the majority.

¶ 27. The chancellor denied the motion to compel arbitration and held:

The decision and language of the Mississippi Supreme Court in the case of Parkerson v. Smith, 817 So.2d 529(¶ 19) (Miss.2002), though deciding from a factual situation substantially different from that here, nevertheless speaks directly and emphatically to a point which is precisely the same as exists here, i.e., who are the parties signatory to the document containing the arbitration clause. With clarity and without equivocation our Supreme Court stated that one who is not a signatory to the document containing an arbitration clause cannot take advantage of the arbitration clause to compel arbitration.
Here Fradella and Prudential, who indisputably are not a [sic] signatories to the CONTRACT FOR THE SALE AND PURCHASE OF REAL ESTATE, cannot take advantage of the cited arbitration clause contained therein.
Further, in light of the provisions in that CONTRACT set forth in paragraph 11, “Breach of Contract”, providing for resort to litigation in a court of competent jurisdiction, it most certainly is not clearly shown that Seaberry[s] intended to be foreclosed of their right to have any dispute settled by a trial by jury. At the very least, that CONTRACT is fatally flawed for patent ambiguity insofar as effectiveness of the arbitration clause is concerned.

¶ 28. I begin with the question of ambiguity. I do not find the ambiguity to which the chancellor refers in. his ruling. Paragraphs 11 and 26 are not in conflict. Paragraph 11 indicates that “[s]pecifie performance is the essence of the contract.” It then proceeds to discuss the appropriate remedies for a breach of the contract by the buyer or the seller. In other words, if the buyer is in breach, the seller may accept liquidated damages, sue for damages or sue for specific performance. If the seller is in breach, the buyer may accept the return of his earnest money deposit, sue for damages or sue for specific performance.

¶ 29. Paragraph 26 has nothing to do with a breach of the contract by the buyer or the seller. Instead, it provides that the buyer and seller agree to arbitrate any claim that they may have against the realtor, either the agent (Fradella) or the listing company (Prudential Gardner). I find no ambiguity between these paragraphs. Immediately following paragraph 26, RS (Rosella Seaberry) signed her initials. The very next line contains the initials of RS (Rosella Seaberry) and JS (James Seaberry). I believe it to be manifest error to find that there was an ambiguity in the contract or to say that the Seaberrys did not agree to be bound by paragraph 26, “Mandatory Arbitration,” for any claims they brought against Fra-della or Prudential Gardner.

¶ 30. The chancellor began his conclusions of law stating that neither Fradella nor Prudential Gardner executed the document. The chancellor cited Parkerson for the proposition that “[w]ith clarity and without equivocation our Supreme Court stated that one who is not a signatory to the document containing an arbitration clause cannot take advantage of the arbitration clause to compel arbitration.” Any review of Parkerson begins with the understanding that it was a plurality decision by the Supreme Court, with four separate opinions.

¶ 31. In Parkerson, Ms. Parkerson bought a mobile home. She signed a document entitled “Retail Installment Contract, Security Agreement, Waiver of Trial by Jury and Agreement to Arbitration or Reference or Trial by Judge Alone.” Ms. Smith signed it for the seller, Town & Country Mobile Homes, Inc. The arbitration clause read in part:

Dispute Resolution. Any controversy or claim between or among you [Ms. Par-kerson] and me [Ms. Smith and Town & Country] or our assignees arising out of or relating to this Contract or any agreements or instruments relating to or delivered in connection with this Contract, including any claim based on or arising from an alleged tort, shall, if requested by either you or me, be determined by arbitration, reference, or trial by a judge as provided below. A controversy involving only a single claimant, or claimants who are related or asserting claims arising from a single transaction, shall be determined by arbitration as described below. Any other controversy shall be determined by judicial reference of the controversy to a referee appointed by the court or, if the court where the controversy is venued lacks the power to appoint a referee, by trial by a judge without a jury, as described below. YOU AND I AGREE AND UNDERSTAND THAT WE ARE GIVING UP THE RIGHT TO A TRIAL BY JURY, AND THERE SHALL BE NO JURY WHETHER THE CONTROVERSY OR CLAIM IS DECIDED BY ARBITRATION, BY JUDICIAL REFERENCE, OR BY TRIAL BY A JUDGE.

Parkerson, 817 So.2d at 531 (¶ 3).

¶ 32. Ms. Parkerson brought a claim against the manufacturer of the mobile home, Champion Home Builders Co., Inc. Id. at (¶ 1). Champion sought the benefit of the arbitration clause. Justice McRae wrote:

Champion was not a party to the contract containing the arbitration provision, and therefore may not invoke the arbitration clause to which it was never a party. To hold otherwise would allow a manufacturer which is not a signatory to an agreement to assert rights found in that agreement. The Wilson [v. Waverlee Homes, 127 F.3d 40 (11th Cir.1997) ] court declined to make such a broad interpretation, as do we.

Parkerson, 817 So.2d at 535(¶ 19). Indeed, Champion was not mentioned in the arbitration clause.

¶ 33. Such is not the case here. Paragraph 26, “Mandatory Arbitration,” specifically provides for arbitration as the means of resolution of any claims that either the buyers or the sellers have against Fradella or Prudential Gardner. These factors clearly distinguishable from Parkerson. In my opinion, Parkerson provides no guidance to the outcome of this case and it was manifest error for the chancellor to rely on Parkerson for its ruling.

¶ 34. In Smith Barney, Inc. v. Henry, 775 So.2d 722, 723(¶2) (Miss.2001), La-Fare Hilliard had two securities accounts with Smith Barney, Inc. The account agreements provided that all claims would be subject to arbitration and that the terms were binding on her heirs and successors. Id. at 723(¶ 3). After Hilliard’s death, Ms. Henry, Hilliard’s heir, brought a legal action over whether the Smith Barney accounts were improperly converted, and the suit included claims for conversion, breach of fiduciary duty, and conspiracy. Id. at 723-24 (¶¶ 4-6). Smith Barney sought to compel arbitration, which the circuit court denied. Id. at 724(¶ 6).

¶ 35. The question on appeal was whether the claimant, as a non-signatory of the agreement, was bound by the arbitration provision. Id. at 724(¶ 7). The supreme court held:

Henry argues that she is a non-signatory, unintended, third-party beneficiary of the agreements and therefore not bound by the arbitration clauses. The agreements plainly state that they are binding on Hilliard’s “heirs, successors and administrators.... ”
Other states have interpreted nearly identical agreements in favor of arbitration. In Collins v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 561 So.2d 952, 956 (La.Ct.App.1990), the Louisiana Court of Appeals held that the heirs and successors of a deceased customer of a brokerage firm were bound by the arbitration agreement signed by the customer and the firm. The court stated:
We find no merit in plaintiffs [sic] argument that they are not bound by the arbitration clause because the Customer Agreement was not signed by them, but by their brother.... By its own terms, the agreement applies to the successors and assigns of the customer. Moreover, we have held that a written agreement to arbitrate does not necessarily have to be signed by both parties.
Collins, 561 So.2d at 955. Also, in Herbert v. Superior Court, 169 Cal.App.3d 718, 215 Cal.Rptr. 477 (Cal.Ct.App.1985), the California appellate court held that a widow and her children were bound by an arbitration agreement signed by the children’s father which purported to bind his “heirs.” Likewise, in this case, Henry is an heir of Hilliard.
In the case at hand, we are dealing with an arbitration clause in which Henry is a successor under the terms of Hilliard’s will, and as such, she is specifically covered by the agreement. According to the terms of the agreement, Henry is not required to be a signatory in order to be bound by the arbitration clause. As a successor of Hilliard, Henry is covered by the arbitration clause of the client agreements.

Smith Barney, Inc., 775 So.2d at 727 (¶¶ 18-20).

¶ 36. Recently, the Mississippi Supreme Court announced a similar decision in Terminix Int'l, Inc. v. Rice, 904 So.2d 1051, 1057-58 (¶¶ 27-29) (Miss.2004). The court held:

Cynthia did not sign the agreement with Terminix. Thus, the Rices claim, she is not bound by the arbitration agreement.™3 The United States Court of Appeals for the Fifth Circuit recently addressed this issue in Washington Mutual Finance Group, LLC v. Bailey, 364 F.3d 260 (5th Cir.2004). In Bailey, a plaintiff (Mrs. Phinizee) insisted she could not be compelled to arbitrate her claim because her husband signed the agreement, but she had not. Id. at 266. The court rejected this argument and held:
FN3. It is doubtful that the Rices actually hope to succeed with this argument, since Cynthia would have no standing or right to sue Terminix at all. Terminix would owe her no contractual duty and thus could not be liable to her for contractual damages.
It does not follow ... that under the [Federal Arbitration] Act an obligation to arbitrate attaches only to one who has personally signed the written arbitration provision. (We have made) clear that a nonsignatory party may be bound to an arbitration agreement if so dictated by the ordinary principles of contract and - agency.
Id. (quoting Thomson-CSF, S.A. v. Am. Arbitration Ass’n, 64 F.3d 773, 776 (2d Cir.1995 1995) (citations & quotations omitted)).
The Bailey court held that Mrs. Phiniz-ee was bound to the arbitration agreement under ordinary principles of contract law, including equitable estoppel. The court stated: In the arbitration context, the doctrine [of estoppel] recognizes that a party may be estopped from asserting that the lack of his signature on a written contract precludes enforcement of the contract’s arbitration clause when he has consistently maintained that other provisions of the same contract should be enforced to benefit him. To allow [a plaintiff] to claim the benefit of the contract and simultaneously avoid its burdens would both disregard equity and contravene the purposes underlying enactment of the Arbitration Act.
Id. at 268 (quoting Int’l Paper Co. v. Schwabedissen Maschinen & Anlagen GMBH, 206 F.3d 411, 418 (4th Cir.2000) (citations & quotations omitted)).
We adopt the same principles announced by the court in Bailey, and hold that Mrs. Rice is bound by the arbitration clause in the contract signed by Dr. Rice.

Rice, 904 So.2d at 1057-58 (¶¶ 27-31).

¶ 37. The most convincing analysis comes from the Thomson — CSF, S.A. opinion, where the federal circuit court held:

I. Traditional Bases For Binding Nonsignatories
This Court has recognized a number of theories under which nonsignatories may be bound to the arbitration agreements of others. Those theories arise out of common law principles of contract and agency law. Accordingly, we have recognized five theories for binding non-signatories to arbitration agreements: 1) incorporation by reference; 2) assumption; 3) agency; 4) veil-piercing/alter ego; and 5) estoppel. The district court properly rejected each of these traditional theories as sufficient justification for binding Thomson to the arbitration agreement of its subsidiary.

Thomson-CSF, S.A., 64 F.3d at 776. Here, incorporation by reference, agency and estoppel support Fradella’s and Prudential Gardner’s motion to compel arbitration.

¶ 38. In conclusion, I find that the parties agreed to the language of the contract. There is no doubt that the Seaber-rys agreed to this arbitration provision. They initialed right below it. There is simply no basis for this Court to find that there was a lack of consideration. I am of the opinion that the legal precedents that are applicable to this case require that we reverse and render the decision of the Chancery Court.

¶ 39. Accordingly, I respectfully dissent.

LEE, P.J., SOUTHWICK, CHANDLER AND ISHEE, JJ., JOIN THIS SEPARATE WRITTEN OPINION.

      . The contract is a standard Mississippi Association of Realtors contract for the sale of land supplied to the parties by their agent, Fradella.