author: RANDOLPH, Justice,

text:
    Eddie ADAMS and Beth Brown v. GREENPOINT CREDIT, LLC and Security Bank of Amory.
    No. 2004-CT-02415-SCT.
    Supreme Court of Mississippi.
    Dec. 7, 2006.
    W. Howard Gunn, Aberdeen, attorney for appellants.
    Michael Stephen Maclnnis, Madison, C. Michael Malski, Tupelo, Jon Jerdone Mims, Jeffrey Dale Rawlings, Madison, attorneys for appellees.
   ON WRIT OF CERTIORARI

RANDOLPH, Justice,

for the Court.

¶ 1. This Court granted the petition for writ of certiorari filed by GreenPoint Credit, LLC (“GreenPoint”) to address the issue of whether Beth Brown, like her father, Eddie B. Adams, should be compelled to submit to arbitration. The Mississippi Court of Appeals ruled that Adams was compelled to submit to arbitration, but that Brown’s claims were not subject to arbitration.

FACTS

¶ 2. On August 5, 1998, Eddie B. Adams and his wife, Linda G. Adams, purchased a used mobile home. On the same date, they entered into a “Retail Installment Contract, Security Agreement, Waiver of Trial by Jury and Agreement to Arbitration or Reference or Trial by Judge Alone (Contract)” with creditor BankAmerica Housing Services. The applicable provisions are:

a. Dispute Resolution. Any controversy or claim between or among you or me 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 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 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.
b. Arbitration. Since this Contract touches and concerns interstate commerce, an arbitration under this Contract shall be conducted in accordance with the United States Arbitration Act (Title 9, United States Code), notwithstanding any choice of law provision in this Contract. The Commercial Rules of the American Arbitration Association (“AAA”) also shall apply. The arbitrators) shall follow the law and shall give effect to statutes of limitation in determining any claim. Any controversy concerning whether an issue is arbitrable shall be determined by the arbitrator(s). The award of the arbitrator(s) shall be in writing and include a statement of reasons for the award. The award shall be final. Judgment upon the award may be entered in any court having jurisdiction, and no challenge to entry of judgment upon the award shall be entertained except as provided by Section 10 of the United States Arbitration Act or upon a finding of manifest injustice.

(Emphasis added).

¶ 3. On January 31, 2001, GreenPoint drafted $232.69 from the joint checking account of Eddie Adams and Beth Brown, at Security Bank of Amory (“Security Bank”). The check was “Signed: Linda G. Adams” by “Authorized Representative Greenpoint Credit.” On February 15, 2001, Adams and Brown discovered that GreenPoint had presented the draft to Security Bank. Adams’s affidavit states that he then:

went to the Bank and told a bank officer or employee that the draft was unauthorized, that my wife was dead and not on this account and, hence, could not [have] authorized a draft on it. We again notified the Bank of the unauthorized draft and complained about the checks being returned for insufficient funds on our account when we received notification of the checks being returned for insufficient funds on or about March 15, 2001.

(Emphasis added). Adams and Brown subsequently sued GreenPoint and Security Bank in the Circuit Court of Monroe County alleging that:

[a]s a proximate result of the concurrent and combined aforesaid acts of Defendants, Plaintiffs’ account was unlawfully subjected to the aforesaid draft issued by GreenPoint ... As a further proximate result of the aforesaid illegal and wrongful draft upon Plaintiffs’ aforesaid account, checks which were lawfully written by Plaintiffs on said account were returned for non-sufficient funds, and as a result of same an arrest warrant was issued for Plaintiffs, subjecting Plaintiffs to humiliation, embarrassment, defamation, mental stress, and other damages.

Adams and Brown asserted claims of fraud, negligence, intentional and/or negligent infliction of mental and emotional distress, breach of contract, and defamation.

¶ 4. GreenPoint filed a motion to dismiss and to compel arbitration arguing that “[pjursuant to the terms of the Agreement and applicable law, the claims brought in this action are subject to binding arbitration and Plaintiffs may not proceed with this action.” In response, Adams and Brown argued that the arbitration clause was unconscionable, inapplicable to their claims, and otherwise unenforceable.

¶ 5. Subsequently, GreenPoint filed a motion to stay discovery arguing that:

[a]ny action taken by GreenPoint inconsistent with enforcement of the arbitration clause, including participating in discovery, may adversely affect Green-Point’s rights to enforce the arbitration clause. See Cox v. Howard, Weil, Labouisse, Friedrichs, Inc., 619 So.2d 908 (Miss.1993), and Miss.Code Ann. Section 11-15-103. Discovery in this action should be stayed until GreenPoint’s arbitration motion has been decided.

Adams and Brown responded by filing a motion to compel “GreenPoint Credit to respond to the discovery as tendered to it.”

¶ 6. The circuit court heard GreenPoint’s motion to dismiss and to compel arbitration. In its subsequent order, the court granted the motion to dismiss and to compel arbitration as to the claims asserted against GreenPoint, finding that “[pjursu-ant to the terms of the Agreement and applicable law, Eddie Adams and Beth Brown are bound to submit their claims to arbitration ... as required by the Agreement.” Thereafter, Adams and Brown filed their notice of appeal.

¶ 7. On appeal, the Mississippi Court of Appeals was presented with two issues: (1) whether Adams’s claims were subject to arbitration and (2) whether Brown’s claims were subject to arbitration under the terms of the contract previously executed by her parents. See Adams v. GreenPoint Credit, LLC, 943 So.2d 710, 713-14, 2006 WL 163514, 2006 Miss.App. LEXIS 64, at *6-8 (Miss.Ct.App.2006). The Court of Appeals affirmed in part and reversed and remanded in part, finding that Adams was properly compelled to submit to arbitration, while Brown was not. See id. at 714-15, 2006 Miss. App. LEXIS 64, at *11-12. As to Adams, the Court of Appeals found that:

the arbitration agreement states that ‘any controversy or claim between or among you and me 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’ is subject to arbitration.

Id. at 713-14, 2006 Miss. App. LEXIS *7-8. As “[t]he torts alleged by Adams arise from the allegedly unauthorized draft of a payment due under a contract that called for arbitration!,]” id. at 714, 2006 Miss App. LEXIS *8, the Court of Appeals concluded that the circuit court was correct in finding that Adams’s claims were subject to arbitration. Regarding Brown, however, the Court of Appeals relied upon Smith Barney, Inc. v. Henry, 775 So.2d 722, 727 (Miss.2001), for the proposition that “arbitration agreements are enforceable to non-signatories to the contract when the non-signatory party is a third-party beneficiary.” Adams, 943 So.2d at 714, 2006 Miss.App. LEXIS 64, at *9 (emphasis added). The Court of Appeals found that:

Greenpoint has failed to show that Brown is a third-party beneficiary to the contract Adams signed to finance his mobile home. The rights of a third-party beneficiary must ‘spring’ from the terms of the contract. Burns v. Washington Savings, 251 Miss. 789, 796, 171 So.2d 322, 325 (1965). No right against the contract promisor or promisee is acquired by a mere incidental beneficiary. Hartford Accident & Indemnity Co. v. Hewes, 190 Miss. 225, 199 So. 93, 95, 199 So. 772 (1940). There is no proof in the record that Brown owned the mobile home jointly with Adams, lived in the mobile home, or benefitted from the financing agreement in any way.
Brown did not sign an agreement to arbitrate and did not directly benefit from the financing agreement Adams and his wife signed. Therefore, Brown’s claims are not subject to arbitration.

Adams, 943 So.2d at 714, 2006 Miss.App. LEXIS 64, at *9. The Court of Appeals then determined that “allowing Brown to litigate her claims while Adams’ claims are subject to arbitration would impair Green-point’s right to arbitrate.” Id. at 714-15, 2006 Miss. App. LEXIS at *11. As such, the Court stayed Brown’s claims “until the arbitration proceedings with respect to Adams’ claims are completed.” Id.

¶ 8. After the Court of Appeals denied GreenPoint’s motion for rehearing, Green-Point filed a petition for writ of certiorari with this Court. In its petition, Green-Point argued that:

no discovery was conducted to inquire into Brown’s status as a third party beneficiary. Indeed, no such discovery could be conducted by GreenPoint without ironically jeopardizing its right to seek arbitration. Nevertheless, Green-Point contends no such discovery is necessary because Brown directly seeks benefits from the contract through her claims for damages which arise directly from a payment dispute under the contract.

This Court granted GreenPoint’s petition for writ of certiorari.

ISSUES

¶ 9. This Court agrees with the conclusion of both the circuit court and the Court of Appeals that Adams’s claims are subject to arbitration pursuant to the terms of the contract he signed. The arbitration agreement stated:

[aJny controversy or claim between or among you or me 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 judge as provided below.

See Doleac v. Real Estate Professionals, LLC, 911 So.2d 496, 504 (Miss.2005) (applying arbitration clause to tort claims arising under agreements).

¶ 10. Therefore, we are left with the issue:

I. Was the trial court correct in ordering Brown to arbitration or was the Court of Appeals correct in finding that Brown, as a non-signatory to the contract, had a right to have her claims adjudicated in a court of law?

STANDARD OF REVIEW

¶ 11. “The grant or denial of a motion to compel arbitration is reviewed de novo.” East Ford, Inc. v. Taylor, 826 So.2d 709, 718 (Miss.2002) (citing Webb v. Investacorp, Inc., 89 F.3d 252, 256 (5th Cir.1996)) (emphasis added).

ANALYSIS

I. Was the trial court correct in ordering Brown to arbitration or was the Court of Appeals correct in finding that Brown, as a non-signatory to the contract, had a right to have her claims adjudicated in a court of law?

¶ 12. GreenPoint acknowledges that Beth Brown did not sign the contract. However, it argues that:

[t]he Agreement specifically provides that related claimants or claims arising from the same transaction are subject to arbitration. Beth Brown is alleged to be the daughter of Eddie Adams and their claims are identical and arise from the same transaction. Therefore, the claims of Beth Brown are also subject to arbitration.

In spite of the fact that GreenPoint complains it cannot conduct needed discovery without “jeopardizing its right to seek arbitration!;,]” it contrastingly asserts that:

no such discovery is necessary because Brown directly seeks to benefit from the contract by joining in the claims of Adams for damages allegedly caused by a payment dispute under the contract. But for the contract with Greenpoint, Brown would have no dispute with Greenpoint over a payment and whether or not said payment was authorized to be deducted from a checking account co-owned by [Adams and Brown].

(Emphasis added). Furthermore, Green-Point unpersuasively argues that Brown implicitly benefitted under the contract by joining the claims of Adams, and that Brown should be required to prove a negative, i.e. “[she] has presented no evidence that she has not benefitted from the Contract.”

¶ 13. Brown responds that she “was not a party to the contract, a beneficiary of the contract, and had no dealings whatsoever with Greenpoint.” In short, “[s]he was a total stranger to the contract and its arbitration clause.” As such, she asserts that “[n]othing in the Federal Arbitration Act authorizes a court to compel parties not covered by the agreement to arbitrate their claims.” See EEOC v. Waffle House, Inc., 534 U.S. 279, 122 S.Ct. 754, 151 L.Ed.2d 755 (2002); Fleetwood Enterprises, Inc. v. Gaskamp, 303 F.3d 570 (5th Cir.2002). Adams and Brown insist that they never authorized GreenPoint “to draft such account.... Linda Adams, wife of Eddie Adams, was dead at the time Green-point alleged such authorization was made and, hence, could not have authorized same.” Brown asserts that her “constitutional right to a trial by jury ... cannot be taken away from her under the circumstances of this case.” See Miss. Const, art. 3, Section 31.

¶ 14. This Court has “readily acknowledged that there is a strong federal policy favoring arbitration.” Pre-Paid Legal Services v. Battle, 873 So.2d 79, 84 (Miss.2004) (citations omitted). See also Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 62, 115 S.Ct. 1212, 131 L.Ed.2d 76 (1995) (quoting Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 476, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989)) (“when a court interprets such provisions in an agreement covered by the FAA, ‘due regard must be given to the federal policy favoring arbitration, and ambiguities as to the scope of the arbitration clause itself resolved in favor of arbitration.’ ”). Despite that policy, however, “a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” Pre-Paid Legal, 873 So.2d at 83 (quoting AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 648, 106 S.Ct. 1415, 1418, 89 L.Ed.2d 648 (1986)). See also Waffle House, 534 U.S. at 279, 122 S.Ct. 754 (“[n]o one asserts that the EEOC is a party to the contract, or that it agreed to arbitrate its claims. It goes without saying that a contract cannot bind a non-party. Accordingly, the proarbitration policy goals of the FAA do not require the agency to relinquish its statutory authority if it has not agreed to do so.”) (emphasis added); EquiFirst Corp. v. Jackson, 920 So.2d 458, 461 (Miss.2006). GreenPoint concedes that Brown did not sign the contract. Moreover, the arbitration provision covers “you or me or our assignees.... ” Clearly, Eddie and Linda Adams constitute the “you;” the “me” is GreenPoint; and no claim is being made that Brown is an assignee. The plain language of the provision does not extend to Brown.

¶ 15. However, arbitration agreements can be enforced against non-signatories if such non-signatory is a third-party beneficiary. See Smith Barney, Inc. v. Henry, 775 So.2d 722, 727 (Miss.2001). In Burns, this Court stated:

[t]he principle that one not a party or privy to a contract but who is the beneficiary thereof is entitled to maintain an action for its breach is not so far extended to give a third person who is only indirectly and incidentally benefitted by the contract the right to sue upon it. A mere incidental, collateral, or consequential benefit which may accrue to a third person by reason of the performance of the contract, or the mere fact that he has been injured by the breach thereof, is not sufficient to enable him to maintain an action on the contract. Where the contract is primarily for the benefit of the parties thereto, the mere fact that a third person would be incidentally benefitted does not give him a right to sue for its breach. 17 Am. Jur.2d Contracts § 307, at 732-33 (1964). Rest, of the Law Contracts § 133 (1932); Annot. 81 ALR 1287 (1932).
In order for the third person beneficiary to have a cause of action, the contracts between the original parties must have been entered for his benefit, or at least such benefit must be the direct result of the performance within the contempla tion of the parties as shoim by its terms. There must have been a legal obligation or duty on the part of the promisee to such third person beneficiary. The obligation must have been a legal duty which connects the beneficiary with the contract. In other words, the right of the third party beneficiary to maintain an action on the contract must spring from the terms of the contract itself. 17A C.J.S. Contracts 519(4) (1963).

Burns, 251 Miss, at 796, 171 So.2d at 325. This Court has cited the United States Supreme Court for the proposition that, “ ‘we do not override the clear intent of the parties, or reach a result inconsistent with the plain text of the contract, simply because the policy favoring arbitration is implicated.’ ” See B.C. Rogers Poultry Inc. v. Wedgeworth, 911 So.2d 483, 487 (Miss.2005) (quoting Waffle House, 534 U.S. at 294, 122 S.Ct. 754). Nothing in the plain language of the arbitration provision indicates a clear intent of the parties to make Brown a third-party beneficiary. She did not sign the contract, was in no way alluded to in the contract, and, based on the record before us, received no benefits from the contract. As a non-signatory, non-third-party beneficiary, Brown is effectively a stranger to the contract. Furthermore, her suit is not “to maintain an action for its breach[;]” Burns, 251 Miss. at 796, 171 So.2d at 325, there is no evidence that the contract was “entered for [her] benefit[;]” id., there is no evidence that any benefit flowed to her as a “direct result of the performance within the contemplation of the parties as shown by its terms[;]” id., or that her suit “spring[s] from the terms of the contract itself.” Id. As Brown is not a third-party beneficiary to whom the benefits of the contract attach, she is not bound by the arbitration provision.

¶ 16. Neither does the record support binding Brown to the arbitration provision under the doctrine of equitable es-toppel, which is an extraordinary remedy to be used with caution. See B.C. Rogers, 911 So.2d at 491. In B.C. Rogers, this Court stated that “equitable estoppel exists where there is a(l) belief or reliance on some representation; (2) a change of position as a result thereof; and (3) detriment or prejudice caused by the change of position.” Id. at 492. That test is not satisfied, as GreenPoint has not asserted facts to support its application. The record does not reflect that GreenPoint relied upon and detrimentally changed its position as a result of representations made by Brown.

¶ 17. Brown’s parents entered into a contract to purchase a used mobile home financed by GreenPoint. Sometime thereafter, Brown and Adams opened a joint checking account at Security Bank. Green-Point allegedly presented an unauthorized draft on that account, causing checks written by Adams and Brown to bounce. In short, GreenPoint is asserting that the mere existence of a joint checking account with her signatory father should compel a non-signatory, non-third-party beneficiary to the arbitration provision. Clearly, this is not a situation where the “extraordinary remedy,” id. at 491, of equitable estoppel should be considered, much less, invoked.

CONCLUSION

¶ 18. Based upon the aforementioned analysis, we conclude that the Court of Appeals correctly found Adams subject to arbitration under the contract he signed with GreenPoint, while Brown is not constrained by same. However, we also conclude that the Court of Appeals erred in granting a stay in the circuit court proceedings of Brown against GreenPoint and Security Bank. The circuit court, in finding both Adams and Brown compelled to arbitrate, properly stayed proceedings and “retained jurisdiction to confirm the arbitration decision, if any.” However, this Court, like the Court of Appeals, finds that Brown’s action against GreenPoint does not emanate from the subject contract. As such, Brown is not precluded from pursuing her action against GreenPoint and Security Bank until Adams’s arbitration is completed. See Matter of Talbott Big Foot, Inc., 887 F.2d 611, 614 (5th Cir.1989) (“the mandatory stay provision of the Act does not apply to those who are not contractually bound by the arbitration agreement....”). Simultaneously, however, we acknowledge that our courts experience crowded dockets and our trial judges diligently pursue the resolution of the cases on their dockets. Therefore, on remand it lies within the circuit judge’s discretion “to stay the claims between the nonarbitrating parties pending outcome of the arbitration simply as a means of controlling its docket.” In re Hornbeck, 981 F.2d 752, 755 (5th Cir.1993). In exercising that discretion, the circuit judge should seek “to secure the just, speedy, and inexpensive determination of every action.” Miss. R. Civ. P. 1. Therefore, the judgment of the Court of Appeals is affirmed in part and vacated in part, and the circuit court judgment is affirmed as to Adams, reversed as to Brown, and remanded with instructions as to the stay.

¶ 19. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART AND VACATED IN PART, AND THE JUDGMENT OF THE CIRCUIT COURT IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.

SMITH, C.J., WALLER AND COBB, P JJ., EASLEY, CARLSON AND DICKINSON, JJ., CONCUR. DIAZ AND GRAVES, JJ, CONCUR IN PART AND DISSENT IN PART WITHOUT SEPARATE WRITTEN OPINION.

      . The contract was assigned to GreenPoint.

      . Linda G. Adams was deceased at the time the draft was presented.

      . Security Bank is not a party to this appeal.


source: Caselaw Access Project

author: CHANDLER, J.,

license: Public Domain

text:
    Eddie ADAMS and Beth Brown, Appellants v. GREENPOINT CREDIT, LLC and Security Bank of Amory, Appellees.
    No. 2004-CA-02415-COA.
    Court of Appeals of Mississippi.
    Jan. 24, 2006.
    Rehearing Denied May 16, 2006.

      W. Howard Gunn, Aberdeen, attorney for appellants.
    C. Michael Malski, Amory, Jeffrey Dale Rawlings, Madison, attorneys for appel-lees.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. Eddie Adams and his wife signed a contract with Greenpoint Credit, LLC and Security Bank of Amory to finance their mobile home. The contract contained an arbitration clause. Adams later opened a joint checking account with his daughter, Beth Brown, at Greenpoint. Greenpoint issued a draft on this checking account to make a payment on the mobile home. Adams and Brown sued Greenpoint in the Monroe County Circuit Court, claiming that the draft was unauthorized. The circuit court compelled the parties to submit to arbitration. Adams and Brown appeal, raising the following issues:

I. WHETHER THE COURT ERRED IN RULING THAT THE APPELLANTS’ CLAIMS WERE SUBJECT TO ARBITRATION
II. WHETHER BROWN’S CLAIMS ARE SUBJECT TO ARBITRATION UNDER THE TERMS OF THE CONTRACT

¶ 2. We affirm in part and reverse and remand in part.

FACTS

¶ 3. On August 8, 1998, Eddie Adams and his wife, Linda, entered into a contract to purchase a mobile home financed by Greenpoint Credit and Security Bank of Amory. Some time prior to February 15, 2001, Adams opened a checking account at Greenpoint that he held jointly with his daughter, Beth Brown. On February 15, 2001, Greenpoint issued a draft on the joint checking account that was used to make a payment on the mobile home. As a result, the checks written on the joint account after February 15 were returned for insufficient funds, and Adams and Brown were threatened with arrest.

¶ 4. Adams and Brown sued Greenpoint, alleging that Greenpoint wrongfully drafted the payment on the mobile home. They asserted claims of fraud, negligence, intentional and/or negligent infliction of mental and emotional distress, and defamation. Greenpoint filed a motion to dismiss and compel arbitration, pursuant to the terms of the mobile home contract. The circuit court heard oral arguments, ordered both Adams and Brown to submit to arbitration, and stayed the proceedings of the circuit court.

ANALYSIS

¶ 5. Appellate courts review contracts involving the grant or denial of arbitration under a de novo standard. East Ford, Inc., v. Taylor, 826 So.2d 709, 713(¶ 9) (Miss.2002) (citing Webb v. Investacorp, Inc., 89 F.3d 252, 256 (5th Cir. 1996)). “The Arbitration Act, resting on Congress’s authority under the Commerce Clause, creates a body of federal substantive law that is applicable in both state and federal courts.” Smith Barney, Inc. v. Henry, 775 So.2d 722, 724(¶8) (Miss.2001).

¶ 6. The United States Arbitration Act establishes a policy favoring arbitration, requiring that courts “rigorously enforce agreements to arbitrate.” Taylor, 826 So.2d at 713(¶ 11) (citations omitted). Agreements to arbitrate are to be “liberally construed so as to encourage the settlements of disputes and the prevention of litigation, and every reasonable presumption will be indulged in favor of the validity of arbitration proceedings.” IP Timberlands Operating Co. v. Denmiss Corp., 726 So.2d 96, 106(¶ 41) (Miss.1998). “[Ufcless it can be said with positive assurance that an arbitration clause is not susceptible of an interpretation which would cover the dispute at issue, then a stay pending arbitration should be granted.” Wick v. Atlantic Marine, Inc., 605 F.2d 166, 168 (5th Cir.1979).

¶ 7. The contract Adams and his wife signed to finance the mobile home reads, in relevant part:

ARBITRATION OF DISPUTES AND WAIVER OF JURY TRIAL
a. Dispute Resolution. Any controversy or claim between or among you and me 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 REFERENCE, OR BY TRIAL BY A JUDGE
b. Arbitration. Since this Contract touches and concerns interstate commerce, an arbitration, under this Contract, shall be conducted in accordance with the United States Arbitration Act (Title 9, United States Code), notwithstanding any choice of law provision in this Contract. The Commercial Rules of the American Arbitration Act (“AAA”) shall also apply. The arbitrator(s) shall follow the law and shall give effect to statutes of limitation in determining any claim. Any controversy concerning whether an issue is arbitrable shall be determined by the arbitrator(s). The award of the arbitrator(s) shall be in writing and include a statement of reasons for the award. The award shall be final. Judgment upon the award may be entered in any court having jurisdiction, and no challenge to entry of judgment upon the award shall be entertained except as provided by Section 10 of the United States Arbitration Act or upon a finding of manifest injustice.

I. WHETHER ADAMS’ CLAIMS ARE SUBJECT TO ARBITRATION

¶ 8. Courts apply a two-pronged inquiry when asked to compel arbitration. The first step is to determine whether there is a valid arbitration agreement. The second step is to determine whether the parties’ dispute is within the scope of the arbitration agreement. East Ford, 826 So.2d at 713(¶ 9). “Under the second prong, applicable contract defenses available under state contract law such as fraud, duress, and unconscionability may be asserted to invalidate the arbitration agreement without offending the Federal Arbitration Act.” Id. at 713(¶ 10).

¶ 9. The first prong of the inquiry asks if a valid contract exists. Adams does not dispute the validity of the arbitration agreement. Instead, he argues that the agreement does not apply to the facts of the present case because he did not intend for the contract to cover tort claims. However, courts have found that “[pjarties to arbitration agreements cannot avoid them by casting their claims in tort, rather than contract.” Palmer v. Conseco Finance Servicing Corp., 198 F.Supp.2d 822, 825 (N.D.Miss.2002) (citing Grigson v. Creative Artists Agency, LLC., 210 F.3d 524, 526 (5th Cir.2000)).

¶ 10. With respect to Adams’ claims, the second prong of the inquiry is satisfied. Adams’ claims are based on an allegedly unlawful draft by Greenpoint that was used to make a payment on his mobile home. But for Adams’ contract with Greenpoint, the dispute over the allegedly unlawful draft of a payment due under the contract would not have arisen. This action arises from Adams’ contract with Greenpoint because the claims relate to a dispute involving a payment due under the contract.

¶ 11. In the present case, the arbitration agreement states that “[a]ny controversy or claim between or among you and me 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” is subject to arbitration. In Valentine Sugars, Inc. v. Donau Corp., 981 F.2d 210, 213 n. 2 (5th Cir.1993), the parties signed an agreement that called for arbitration of “any dispute relating to or arising out of’ the agreement. The Fifth Circuit stated, “When parties include such a broad arbitration clause, they intend the clause to reach all aspects of the relationship.” Id. The torts alleged by Adams arise from the allegedly unauthorized draft of a payment due under a contract that called for arbitration.

II. WHETHER BROWN’S CLAIMS ARE SUBJECT TO ARBITRATION UNDER THE TERMS OF THE CONTRACT

(A) Whether Brown’s claims are subject to arbitration

¶ 12. The federal policy favoring arbitration does not apply to the determination of whether there is a valid agreement to arbitrate between the parties. Fleetwood Enterprises, Inc. v. Gaskamp, 280 F.3d 1069, 1073 (5th Cir.2002). Courts decide whether the parties have agreed to arbitrate, and ordinary state-law principles determining the formation of contracts apply. Will-Drill Resources, Inc. v. Samson Resources Co., 352 F.3d 211, 214 (5th Cir.2003). “It goes without saying that a contract cannot bind a nonparty.” E.E.O.C. v. Waffle House, Inc., 534 U.S. 279, 294, 122 S.Ct. 754, 151 L.Ed.2d 755 (2002).

¶ 13. Greenpoint correctly points out arbitration agreements are enforceable to non-signatories to the contract when the non-signatory party is a third-party beneficiary. Smith Barney, Inc. v. Henry 775 So.2d 722, 727(¶ 19) (Miss. 2001). However, Greenpoint has failed to show that Brown is a third-party beneficiary to the contract Adams signed to finance his mobile home. The rights of a third-party beneficiary must “spring” from the terms of the contract. Burns v. Washington Savings, 251 Miss. 789, 796, 171 So.2d 322, 325 (1965). No right against the contract promisor or promisee is acquired by a mere incidental beneficiary. Hartford Accident & Indemnity Co. v. Hewes, 190 Miss. 225, 199 So. 93, 95 (1940). There is no proof in the record that Brown owned the mobile home jointly with Adams, lived in the mobile home, or benefitted from the financing agreement in any way.

¶ 14. Brown did not sign an agreement to arbitrate and did not directly benefit from the financing agreement Adams and his wife signed. Therefore, Brown’s claims are not subject to arbitration.

(B) WTiether Brown’s claims are subject to stay pending the outcome of Adams’ arbitration

¶ 15. In Harvey v. Joyce, 199 F.3d 790, 795-96 (5th Cir.2000), a non-signatory to an agreement to arbitrate sued to seek enforcement of the arbitration clause. The Fifth Circuit held that the non-signatory party was entitled to a stay pending the outcome of the arbitration. The court stated:

Because CTC’s [the non-signatory party] potential liability derives from Joyce’s [the defendant who signed an arbitration agreement] conduct, the claims asserted against CTC are based on the same operative facts and are inherently inseparable from the claims against Joyce.... Furthermore, a suit against CTC could have a critical impact in the Joyce arbitration. If CTC were forced to try the case, the arbitration proceedings would be both redundant and meaningless; in effect, thwarting the federal policy in favor of arbitration.

Id. (citations omitted).

¶ 16. Adams and Brown have both set forth claims against Greenpoint alleging fraud, negligence, intentional and negligent infliction of emotional distress and defamation. These claims arise out of the same set of operative facts. Therefore, allowing Brown to litigate her claims while Adams’ claims are subject to arbitration would impair Greenpoint’s right to arbitrate. “The forum selection concerns of a non-party are not remotely commensurate to the impediment to the federal policy favoring arbitration created by redundant arbitration or potential impairment of the signatories’ rights to arbitrate.” Adams v. Georgia Gulf Corp., 237 F.3d 538, 541 (5th Cir.2001). Brown’s claims are stayed until the arbitration proceedings with respect to Adams’ claims are completed.

CONCLUSION

¶ 17. Adams is compelled to submit to arbitration. Adams signed an agreement to arbitrate all disputes pertaining to the financing of his mobile home. The dispute in the present case arises over an allegedly unauthorized payment that was due under the terms of his mobile home contract. The mobile home financing contract provides that tort-related claims arising from the contract shall be adjudicated through arbitration. However, Brown’s claims are not subject to arbitration, and they are held in abeyance until Adams’ arbitration proceedings are completed.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF MONROE COUNTY IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANTS AND THE APPELLEES.

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES AND ISHEE, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY. SOUTHWICK AND ROBERTS, JJ., NOT PARTICIPATING.


author: LEE, P.J.,

text:
    David Charles PONDER, Appellant v. Leonila L. PONDER (Creekmoore), Appellee.
    No. 2005-CA-00354-COA.
    Court of Appeals of Mississippi.
    April 25, 2006.
    Rehearing Denied Dec. 5, 2006.

      George M. Mitchell, Eupora, attorney for appellant.
    Leonila L. Ponder, Creekmoore, Appel-lee, pro se.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   LEE, P.J.,

for the Court.

¶ 1. David Charles Ponder and Leonila Ponder Creekmore united in marriage on February 16, 1994, in Maui, Hawaii, and divorced on March 9, 2001. The parties had one son, Charles, who was born in July 1994. The parties entered into a property settlement, child custody and child support agreement which the chancellor approved. The agreement stipulated that Leonila would have primary physical custody, subject to David’s right to reasonable visitation, and the parties agreed to joint legal custody.

¶ 2. On February 8, 2002, David filed a motion seeking a modification of custody, relief from the prior child support arrangement, and payment of child support. Leo-nila filed a counterclaim for contempt and a modification of visitation. Due to allegations of abuse, the court appointed attorney Kiley Kirk as guardian ad litem, who filed a written report and testified at trial. After a trial on the matter, the court found that David had failed to show a material change in circumstance to warrant a change in custody.

¶ 3. It is from this ruling that David now appeals, arguing the following points of error: (1) the chancellor abused his discretion in not finding a material change in circumstance which adversely affected Charles; (2) the chancellor should have applied the Albright factors after finding a material change in circumstance; and (3) the chancellor erred in not following the recommendation of the guardian ad litem.

¶ 4. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 5. Our standard of review for child custody cases is as well-settled as it is limited. The chancellor must be manifestly wrong, clearly erroneous, or have applied the wrong legal standard for this Court to reverse. Williams v. Williams, 656 So.2d 325, 330 (Miss.1995).

I. DID THE CHANCELLOR ERR IN NOT FINDING A MATERIAL CHANGE IN CIRCUMSTANCE?

¶ 6. We first note Leonila’s failure to file a brief in support of her position. “Failure of an appellee to file a brief is tantamount to confession of error and will be accepted as such unless the reviewing court can say with confidence, after considering the record and brief of appealing party, that there was no error.” Dethlefs v. Beau Maison Development Corp., 458 So.2d 714, 717 (Miss.1984) (emphasis added). An appellee’s failure to respond does not automatically entitle the appellant to prevail. N.E. v. L.H., 761 So.2d 956, 962(¶ 14) (Miss.Ct.App.2000).

¶ 7. In a proceeding to modify custody, the party seeking a modification must prove (1) a material change in circumstances which adversely affects the welfare of the child and (2) the child’s best interests requires a change in custody. Robison v. Lanford, 841 So.2d 1119, 1124(¶ 16) (Miss.2003) (citing Brocato v. Brocato, 731 So.2d 1138, 1141(¶9) (Miss.1999)). The change in circumstances “is one in the overall living conditions in which the child is found. The ‘totality of the circumstances’ must be considered.” Tucker v. Tucker, 453 So.2d 1294, 1297 (Miss.1984) (citing Kavanaugh v. Carraway, 435 So.2d 697, 700 (Miss.1983)).

¶ 8. The chancellor found that “there is just simply little evidence of any material change in circumstance of the custodial parent that would adversely affect the child.” Prior to the divorce, Leonila worked as a waitress at Silver Star Casino, where she continues to work. Leonila works from 8 o’clock in the evening until 4 o’clock in the morning. Leonila and Charles have lived with David Creekmore since July 2002, and in January 2004, Leo-nila and Creekmore married. Leonila and Creekmore are expecting a child, and Leo-nila indicated that she married Creekmore to prevent David from using the relationship against her. Leonila’s home includes two apartments which she rents to tenants.

¶ 9. David accused Leonila of abusing Charles and took him to the emergency room for treatment. As a result of these accusations, the Winston County Department of Human Services investigated and referred the matter to the Neshoba County Department of Human Services. The record does not indicate any further action by the Department. Charles has attended counseling sessions because he has had difficulty adjusting to the divorce and its aftermath. At trial Charles’s counselor testified that he, too, had witnessed signs of abuse, and that when questioned about his bruises Charles indicated that Leonila had “lost it again.” The counselor further testified that prior to Leonila’s marriage to Creekmore, Charles had difficulty understanding his place in the family. During a session, Charles told the therapist that he woke one morning and wanted breakfast, so he went to his mother’s bedroom to ask for her help. There he found Leonila in bed with Creekmore, and Leonila told Charles to “go fix some cereal for hisself [sic].” The therapist testified that Charles has apparently adjusted to the marriage, as it provided a modicum of stability.

¶ 10. Leonila allows David liberal visitation with Charles, at Charles’s request, to the extent that Charles spent a total of one hundred seventy-nine days with David during 2004. When Charles stays with David, David drives Charles the seventy-five miles into town to school. Charles is a bright boy and makes outstanding grades in school.

¶ 11. Prior to trial David hired Marvin Reynolds, a private investigator, who observed Leonila and Charles for ten days. During those ten days Reynolds observed a number of men and women entering and exiting Leonila’s house in the early hours of the morning, as well as at night. Although Reynolds observed these individuals, there was no indication that these visitors belonged to David or Leonila as opposed to Leonila’s tenants.

¶ 12. Kiley Kirk, Charles’s guardian ad litem, made a written report, indicating that neither parent was above reproach. Kirk withheld his recommendation until after hearing the testimony at trial. Kirk’s final recommendation was that, while neither parent was perfect, a custody modification would be appropriate.

¶ 13. In the summer of 2003, Leonila allowed Charles to stay with David. As the summer came to an end, David refused to tender him, and Leonila acquired a court order mandating Charles’s return. The court also ordered David to post a bond in the amount of $3,000, as a preventative measure against similar behavior. David returned Charles and posted the bond as required.

¶ 14. This Court must respect the factual findings of a chancellor when those findings are supported by credible evidence and are not manifestly wrong. Rogers v. Morin, 791 So.2d 815, 826(¶ 39) (Miss.2001). “The chancellor, by his presence in the courtroom, is best equipped to listen to witnesses, observe their demean- or, and determine the credibility of the witnesses and what weight ought to be ascribed to the evidence given by those witnesses.” Id. (quoting Carter v. Carter, 735 So.2d 1109, 1114 (Miss.Ct.App.1999)). Having heard the testimony of the witnesses, including the representative from the Department of Human Services, Charles’s counselor, the private investigator, both parents and the guardian ad li-tem, the chancellor found that there was insufficient evidence regarding a material change in circumstance. Given our differential standard of review, we find no error, and, accordingly, affirm.

II. DID THE CHANCELLOR ERR IN FAILING TO APPLY THE ALBRIGHT FACTORS?

¶ 15. David argues that the chancellor should have weighed the factors presented in Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). David argues that the chancellor’s failure to find a material change in circumstance resulted in the chancellor’s failure to undertake an Al-bright analysis as to whose custody would meet Charles’s best interests. We have found no error in the chancellor’s finding that no material change in circumstance had occurred; therefore, the chancellor did not err in failing to evaluate each parent under Albright. This issue is without merit.

III. DID THE CHANCELLOR ERR IN NOT FOLLOWING THE RECOMMENDATION OF THE GUARDIAN AD LITEM?

¶ 16. In custody cases where allegations of abuse are at issue, the appointment of a guardian ad litem is not discretionary. Robison, 841 So.2d at 1126 (¶ 23). As there were allegations of abuse raised by the parties, the appointment of a guardian ad litem was appropriate. See Miss.Code Ann. § 93-5-23 (Rev.2004). Our supreme court has held that there is no requirement that a chancellor follow the recommendations of a guardian ad litem; however, if the appointment of a guardian ad litem is mandatory and the chancellor chooses to disregard his recommendation, the chancellor should include a summary of the guardian ad litem’s qualifications and recommendations as well as his reasons for disregarding the recommendation in his findings of fact. S.N.C. v. J.R.D., Jr., 755 So.2d 1077, 1082 (¶¶ 17-18) (Miss. 2000).

¶ 17. Although the chancellor did not include a summary of the guardian ad litem’s qualifications in his opinion, we do not agree that this, alone, is grounds for reversing the chancellor’s decision. From his opinion and the judgment it is clear that the chancellor considered Kirk’s testimony and his recommendation, yet still found that the evidence was insufficient to find a material change in circumstance. We find no abuse of discretion, and, under our deferential standard of review, we affirm.

¶ 18. THE JUDGMENT OF THE CHANCERY COURT OF WINSTON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., MYERS, P.J., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, 33., CONCUR.


author: BARNES, J.,

text:
    Eddie JACKSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-KA-01508-COA.
    Court of Appeals of Mississippi.
    June 27, 2006.
    Rehearing Denied Dec. 5, 2006.

      Richard B. Lewis, Clarksdale, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
   BARNES, J.,

for the Court.

¶ 1. Eddie Jackson was convicted in the Circuit Court of Bolivar County of the May 20, 2002 murder of Vicky Pruitt and aggravated assault of Charles West. Following his conviction, Jackson was sentenced to a term of life imprisonment for the murder, and to a term of ten years for the aggravated assault, with the sentences to run concurrently. On appeal, Jackson argues that the State’s evidence was insufficient to establish his guilt beyond a reasonable doubt and to the exclusion of all reasonable hypotheses consistent with innocence, and, further, that he received ineffective assistance from his appointed counsel. We reject these contentions and affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. At 10:03 on the night of May 20, 2002, the Cleveland, Mississippi, police department received a call regarding a double shooting near a residence located at 824 South Parkway. Officers arrived to find Vicky Pruitt slumped in the front passenger seat of a Chevrolet Suburban parked partially on the sidewalk, and Charles West, the owner of the residence, lying in the driveway. The injuries proved fatal to Pruitt, but West survived. At 10:14 on the same evening, the Bolivar County Sheriffs Department received a call that the appellant, Eddie Jackson, was shooting at an apartment complex located at 900 White Street, which was located between 60 and 150 yards from the site of the Pruitt/West shootings. Deputies soon arrived at the scene, where they took Jackson into custody.

¶ 3. During the course of the ensuing police investigation, Davion Walker, a resident of the 900 White Street apartment complex, informed police that he had taken two guns from Jackson prior to the deputies’ arrival, and that he had hidden the guns when he heard sirens. After the deputies left, Walker retrieved the guns and took them to Jackson’s brother, Tracy. The next day, Tracy delivered to his other brother, Michael, a box containing the two guns. Soon thereafter, Michael dumped the box into Jones Bayou, located just south of Boyle, Mississippi. Michael later led the police to that location, and after two days of searching in the water and mud, officers retrieved one gun, a silver Bryeo Jennings automatic (.380) with a black handle, which was established by expert testimony to be the gun which fired the bullets taken from Pruitt’s body at autopsy. The second gun was never located. Expert testimony established that West was shot with a different gun from that which killed Pruitt.

¶ 4. Jackson was ultimately tried and convicted of the murder of Pruitt and of the aggravated assault of West. On appeal, Jackson contends that the evidence was insufficient to establish his guilt beyond a reasonable doubt and to the exclusion of all reasonable hypotheses consistent with innocence. His primary claims are that the time line of events on the night of May 20 excludes him as the shooter of Pruitt and West, and that the murder weapon was never proved to be in his possession at the time of the shooting. He further contends that a reasonable hypothesis consistent with his innocence would be that Bartholomew Burns had motive and opportunity to commit the crimes. In order to analyze these contentions, we have reviewed the record in detail.

¶ 5. Burns testified that on the night of May 20, he drove from Mound Bayou to Cleveland to rent a motel room, which he did on occasion when he intended to stay out later than his parents left their house unlocked. Pruitt, a family friend, asked if she could ride with him, and Burns assented. As he drove into the parking lot of the Best Western motel, Burns noticed a man wearing a light-colored shirt stretching near a blue Oldsmobile Cutlass. Burns testified that when he entered the motel to register, he saw “probably ... that person” walking in the direction of his Suburban. Burns testified that the registration process took approximately ten or eleven minutes, and that when he went back outside, he discovered that his Suburban was gone. Thinking that Pruitt might have gone to get something to eat, pick up her friends, or that she might be playing a prank, Burns telephoned his friend, Wautese Bell, to come get him. The two drove back toward Mound Bayou, checking at all of the fast food restaurants to see if Burns’s vehicle was present. They also attempted several calls to Burns’s cell phone, which he had left inside the Suburban. Officer Charles “Buster” Bingham, a criminal investigator with the police department, who had found the phone during the course of his initial investigation, answered one of these calls. He instructed Bell and Burns to come to the scene of the shooting immediately, and they complied. Bell and Burns were subsequently taken to the police department for questioning and gunshot residue tests. Bell corroborated Burns’s testimony regarding the events which occurred from the time he received Burns’s telephone call. Bell approximated the receipt of that call somewhere between ten minutes until 10:00 p.m. and shortly after 10:00 p.m.

¶ 6. A gunshot residue test performed on Burns showed that one particle of gunshot residue was present on the back of his right hand; however, no gunshot residue was found on Bell’s hands. David Whitehead, a forensic scientist with the Mississippi Crime Laboratory, testified that one particle is “not a lot of residue,” and that he would expect a person who has fired an automatic weapon and revolver several times to have residue on the back and palm of the hand from which the weapons were fired. Further, Whitehead testified that it is possible for gunshot residue to be transferred to another person by an officer who has handled shell casings. The record in this case established that Officer Bing-ham had photographed the crime scene, including the casings, and had extracted one projectile from the lattice work at West’s house prior to his interview with Burns.

¶ 7. Police also performed a gunshot residue test on Jackson some two days after his arrest; the test showed Jackson’s hands to be free of gunshot residue. Whitehead testified that once a mere four hours have passed between the discharge of a weapon and the administering of a gunshot residue test, there will probably not be any gunshot residue detected. Furthermore, Whitehead stated that he would “absolutely not” expect gunshot residue to be present on the hands of someone who was not tested until two days after the discharge of a weapon.

¶ 8. As to the time line of events on the ' night of May 20, Officer Bingham testified that during the course of investigating Burns’s account of the evening, Bingham went to the Best Western motel and learned that Burns had registered at the motel at 10:00 p.m. The 911 call reporting the shooting of Pruitt and West was made at 10:03 p.m., and was placed by one of West’s neighbors contemporaneously with the shooting. At 10:14 p.m., the Bolivar County Sheriffs Department received the call complaining of Jackson shooting at the 900 White Street apartment complex, which was located some 60-150 yards from the site of the Pruitt/West shootings.

¶ 9. Jackson arrived in Cleveland by bus at approximately 7:00 to 7:25 on the evening of May 20, having come from Detroit. He was met at the station by his brother, Tracy, and friends Durance Gee and Carl Hollingsworth. Hollingsworth gave Jackson a half pint of Remy Martin-brand cognac, which Jackson had asked him to purchase. The men proceeded to the Best Western motel in order for Jackson to rent a room; the motel records reflect that Jackson registered at 7:31 p.m. During the course of Jackson’s unpacking, the three other men observed Jackson with gun(s) and/or ammunition. Tracy testified to having seen two boxes of ammunition and two guns: a rusty-colored revolver and a chrome pistol; Gee testified to having seen one box of ammunition and one gun, a silver automatic; and Hollingsworth testified to having seen two boxes of ammunition. Both Tracy and Gee admitted that the gun offered into evidence as the murder weapon “look[ed] like” the gun they saw in Jackson’s room on the night of May 20. The men then left the motel to pick up a blue Cutlass for Jackson to drive, and proceeded to a liquor store where Jackson purchased an additional half pint of cognac. The men then visited the home of Tracy’s girlfriend for approximately twenty to twenty-five minutes. Gee and Holl-ingsworth departed together at approximately 7:50 to 8:15 p.m., leaving the blue Cutlass for Jackson’s use. Jackson left at approximately the same time, while Tracy remained at his girlfriend’s home.

¶ 10. At some point during the evening, Jackson went to visit his own girlfriend, Gechabarski Scott, at her mother’s house. Scott was unaware until Jackson arrived that he had come to Mississippi. He was “drunk” and accused Scott of lying to him. After he “shoved” and “pushed” Scott, she and her mother told him to leave. Scott described Jackson as “upset” when he left, and testified that she heard the car door slam and the tires squeal as “he burned away in the car.” Scott testified that Jackson left before the ten o’clock news came on. “[A]bout ten minutes after [Jackson] ... left,” Scott received a phone call from a friend, Linda Ramiz, who lived at 900 White Street, advising that Jackson “had been over there and burst some windows out.” Ramiz stated that “it sounded like a gun.... ”

¶ 11. Walker testified that Jackson arrived at his apartment at 900 White Street “anywhere from about 9:00 to 10:00, somewhere up in there.” Walker came from the back room to find Jackson standing in the living room waving a gun. Walker “reacted” and “charged him,” taking from Jackson the rusty-colored revolver. Jackson next pulled out another gun, a chrome automatic, which Walker also took away after some “tussling.” Walker testified that Jackson “acted like he had been drinking or something.” Walker heard sirens and, not knowing what had happened, took the guns to the Shady Grove Park across the street and hid them. When Walker returned to the apartment, a deputy had Jackson in handcuffs. As soon as the deputies left, Walker retrieved the guns and took them to Jackson’s brother, Tracy.

¶ 12. Tracy testified that while he was watching a basketball game on television, Hollingsworth’s girlfriend called to report that Jackson was at the White Street apartments “acting a fool.” He did not remember what time he took the call, but stated that the ten o’clock news had not yet come on television. Tracy arrived at the apartment complex “[a]bout five or ten minutes later” to find a couple of police cars and several people standing around. Walker took Tracy back to his girlfriend’s house and later delivered to Tracy the two guns which Walker said he had taken from Jackson. Although it was dark, Walker testified, he thought the two guns “looked similar” to those he had seen in Jackson’s possession earlier while in the motel room. Tracy put the guns in a box in the closet, and gave them to his other brother, Michael, the following evening. As mentioned above, Michael then dumped the box into Jones Bayou.

¶ 13. During the course of the investigation, Jackson informed Officer Bingham that Scott had purchased one of the guns at the “A to Z Pawn Shop.” The officer reviewed the gun log book at the shop and discovered that a .380 had been sold to Scott. He obtained the serial number of that gun and matched it to the gun recovered from Jones Bayou. Scott testified that the gun belonged to Jackson and that she had pawned it and picked it back up at his request. Furthermore, Scott testified that she had last seen the gun in Jackson’s possession. On September 20, 2002, Scott executed a notarized statement claiming that the gun had been stolen from her apartment in February 2002. However, on the witness stand, Scott testified that the notarized statement was false, and that she had signed it, at Jackson’s request, “to help him out” because she “didn’t want anything to happen to him.”

STANDARD OF REVIEW

¶ 14. Requests for directed verdict and peremptory instruction challenge the sufficiency of the evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993). Their standard of review is identical. Hawthorne v. State, 835 So.2d 14, 21(¶ 31) (Miss.2003). The key question in this analysis is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush v. State, 895 So.2d 836, 843(¶16) (Miss. 2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Furthermore, where a case is based purely on circumstantial evidence, we must also determine:

whether a rational fact finder might reasonably conclude that the evidence excludes every reasonable hypothesis inconsistent with guilt of the crime charged. Put another way, “[i]f the evidence viewed in the light most favorable to the prosecution gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence of the crime charged, then a reasonable jury must necessarily entertain a reasonable doubt.”

Shields v. State, 702 So.2d 380, 382 (Miss.1997) (citations omitted) (quoting Clark v. Procunier, 755 F.2d 394, 396 (5th Cir.1985)).

ISSUES AND ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN DENYING JACKSON’S MOTION FOR DIRECTED VERDICT AND IN REFUSING HIS REQUEST FOR A PEREMPTORY INSTRUCTION.

¶ 15. As stated above, on appeal, Jackson contends that the evidence was insufficient to establish his guilt beyond a reasonable doubt and to the exclusion of all reasonable hypotheses consistent with innocence. Primarily, he claims that the time line of events on the night of May 20 excludes him as the shooter of Pruitt and West; he also claims that the murder weapon was not proved to be in his possession at the time of the shooting.

¶ 16. As support, Jackson primarily cites Walker’s testimony that Jackson arrived at his apartment before 10:00 p.m. and did not leave until after Walker heard sirens. This, Jackson argues, proves that he was at Walker’s residence “before and during” the shooting of Pruitt and West, which was reported at 10:03 p.m. However, Walker’s testimony is not nearly as precise as Jackson would have this Court believe. While Walker testified that Jackson arrived “anywhere from about 9:00 to 10:00, somewhere up in there,” he also admitted that he “wasn’t just looking at no clock.” Jackson further cites the testimony of Walker’s girlfriend, Shwanda Turner, that Jackson was at the apartment before the ten o’clock news. When asked whether the news had come on, Turner’s actual response was, “I don’t know. I don’t think so. I don’t remember.” Additionally, Turner could not recall whether she and Walker had been watching “regular TV or cable.” Walker, in fact, had testified that the couple had been watching a movie on their VCR. We do not find that the record supports any correlation between Jackson’s arrival at Walker’s apartment and the timing of the ten o’clock news.

¶ 17. The only testimony even suggesting that Jackson arrived at the 900 White Street complex prior to the 10:03 p.m. shooting of Pruitt and West is Walker’s estimation of the time of Jackson’s arrival. Walker admittedly was not looking at the clock. We find that a jury could reasonably conclude that, in light of the other evidence, Walker’s estimate had to be incorrect, and that Jackson did not arrive until after 10:03 p.m. A later time is more in keeping with Walker’s remaining testimony that after he had taken the two guns from Jackson, he heard sirens, hid the guns across the street, and returned to find Jackson in the custody of deputies. The call to the sheriffs department was not made until 10:14 p.m.

¶ 18. More importantly, Walker’s testimony establishes that two guns — a rusty-colored revolver and a chrome automatic— were in Jackson’s possession at the time he entered the apartment, and that they remained in Jackson’s possession until after 10:14 p.m. By this time, the shootings of Pruitt and West had already occurred. The jury might reasonably conclude, beyond a reasonable doubt and to the exclusion of every reasonable hypothesis to the contrary, that the chrome automatic taken from Jackson by Walker was the murder weapon. The jury was presented with evidence that the serial number of the automatic matched the serial number of a weapon retrieved by Scott from A to Z Pawn Shop; Scott’s testimony that the automatic belonged to Jackson and that she had seen it in his possession in Detroit; and testimony from both Tracy Jackson and Durance Gee that they saw a chrome or silver automatic which looked like the murder weapon in Jackson’s motel room mere hours before the shooting.

¶ 19. Jackson’s hypotheses that the automatic was not in his possession during the murder are conflicting and unreasonable. He claims the State proved that his brother Tracy had possession of the automatic at the time of the murder. The evidence is uncontradicted, however, that Tracy did not gain possession of the automatic until some time after the deputies had taken Jackson into custody, which occurred after 10:14 p.m. Again, by this time, the murder had already taken place. Further, Jackson claims that “there is no doubt that the only people that positively had that murder weapon in their possession w[ere] Michael Jackson and Tracy Jackson.” There is, however, no evidence that Michael or Tracy had any gun other than those taken from their brother by Walker and transferred to them after the shootings. Jackson’s hypothesis that Michael must have stolen the gun from Scott in February is not supported by any evidence in the record and is palpably unreasonable. We find nothing in the record to support any reasonable hypothesis that any person, other than Jackson, was in possession of the murder weapon at 10:03 p.m.

¶ 20. Second, Jackson contends that a reasonable hypothesis consistent with his innocence would be that Bartholomew Burns had motive and opportunity to commit the crimes. No one testified to the exact distance between the Best Western motel and 824 South Parkway, the site of the Pruitt/West shootings; accordingly, we are unable to determine whether it would have been physically possible for Burns to have completed registration at 10:00 p.m. and shot Pruitt and West by 10:03 p.m. However, Jackson has not hypothesized any motive Burns might have had for the shootings or any way the murder weapon might have fallen into Burns’s possession and later end up in Jones Bayou.

¶21. Third, Jackson claims that he should be acquitted of the aggravated assault on Charles West as West was unable to identify his assailant, no gun was ever found which matched the bullet recovered from West’s shoulder, and “the only gun linked to [Jackson], the Jennings .38 did not fire the projectile recovered from Mr. West.” While a second gun was proved to have been used in the shooting of West, there is no evidence that a second person fired those shots. Tracy Jackson testified that the defendant had two guns, a chrome automatic and a rusty-colored revolver, in the motel room prior to the shootings, and Walker testified that he took guns of a similar description from Jackson and hid them when he heard sirens. The evidence of other witnesses would time those sirens as having occurred shortly after 10:14 p.m. Both Tracy Jackson and Carl Hollings-worth testified to seeing two boxes of ammunition in Jackson’s room prior to the shooting. The police retrieved two boxes of ammunition from the motel room after the shooting, one box of .380 ammunition and one box of .38 plus “B” bullets. Under these circumstances, a jury could reasonably find, beyond a reasonable doubt and to the exclusion of all reasonable hypotheses consistent with innocence, that Jackson was guilty of both shootings.

¶ 22. Fourth, Jackson points to the fact that no fingerprints were recovered from the crime scene, and that no blood spatters or gunshot residue were found on his person. Jackson contends that the lack of physical proof connecting him to the crime proves that he did not commit the murders in question. However, expert testimony adduced at trial established that such evidence would not necessarily be produced by the crime in question.

¶23. Kenneth Gill, admitted by the court as an expert in the field of fingerprint examination and analysis, testified that it was true that he found no fingerprints “of value” on either the shell casings recovered from the crime scene, or the silver Bryco Jennings automatic (.380) recovered from Jones Bayou. However, Gill testified on cross-examination by the State that he would not expect to find latent prints on either spent casings or a gun that had been submerged in water. As to the former, Gill testified that the “enormous heat and friction” caused by a gunshot removes any print that might have been present on the cartridge prior to the shot. As to the latter, Gill testified that when a gun is submerged in water, the water, mud, and dirt work to remove any print residue that might have been present on the gun prior to being placed in the water.

¶ 24. In addition, Dr. Stephen Hayne— admitted by the trial court as an expert in the fields of anatomical, clinical, and forensic pathology — testified that, while it was possible that the killer would have been splattered by blood during such a shooting, such a result would not necessarily occur. Further, as mentioned supra, the lack of gunshot residue present on Jackson’s hands is not necessarily indicative of his innocence, as he was not tested for residue until two days after the shooting, at which point any residue would have disappeared. Taken together, the above expert testimony strongly contradicts Jackson’s assertion that the lack of physical evidence produced by the State necessarily proves his innocence.

¶ 25. Lastly, Jackson points to the fact that the motel record indicated that someone entered his room with a room key at 10:31 p.m., at which time he was already in custody of the Bolivar County Sheriffs Department. Jackson has not indicated how this fact could possibly exonerate him of the crimes. The record reflects that two keys were issued to Jackson, but there was no testimony as to whom Jackson gave the second key. The only evidence which was retrieved from the motel room were two boxes of ammunition, which two witnesses had seen in the room earlier in the evening; accordingly, we do not see that any evidence used against Jackson could have been the subject of tampering.

¶26. Taking all of the evidence into consideration, we find that a rational juror could easily find that the State proved the elements of the crime of murder beyond a reasonable doubt, and to the exclusion of all reasonable hypotheses consistent with innocence. This issue is without merit.

II. WHETHER JACKSON WAS AFFORDED EFFECTIVE ASSISTANCE OF COUNSEL.

¶ 27. Jackson sought to represent himself at trial, and his request was granted by the trial court. However, in order to aid Jackson in his efforts, the trial court appointed Attorney Boyd Atkinson to act as Jackson’s legal adviser. It is apparent from the record that there was a great deal of dissension between Jackson and Atkinson, and in several instances, Jackson and Atkinson argued with each other while in the presence of the jury. The disagreements apparently stemmed from the conflict between Jackson’s desire to relegate Atkinson to the role of passive observer, and Atkinson’s desire to assist Jackson so that he did not “self-destruct” and “make a mockery and butcher up the case.” Interestingly, on appeal, Jackson has reversed course. While Jackson, at the trial level, asserted his status as lead counsel and sought to minimize Atkinson’s role, Jackson now claims that Atkinson did not do enough to assist him at trial. We marvel at this paradox.

¶ 28. Jackson contends that Atkinson’s performance was so deficient as to deny him the right to a fair trial. Specifically, Jackson claims that he was prejudiced by trial counsel’s failure to (a) file motions for laboratory testing of certain alleged exculpatory evidence; (b) request an alibi instruction; and (c) interview witnesses or otherwise investigate in order to determine the whereabouts of the blue Cutlass at the time of the shooting. Furthermore, Jackson claims that trial counsel’s failure to heed his directives resulted in a number of disputes that took place before the jury, thus prejudicing his defense. Our review of the record shows that Jackson’s contentions are without merit; however, as we find below that Jackson is barred from asserting a claim of ineffective assistance of counsel, we find no need to evaluate the substance of his claims.

¶ 29. Faced with similar circumstances as those currently before this Court, we recognized in Scarbough v. State that, “It has been established by the Mississippi Supreme Court that as stand-by counsel, a defense attorney is ‘without authority, discretion or control and the charge that he rendered constitutionally ineffective assistance is without merit.’ ” Scarbough v. State, 893 So.2d 265, 273(¶27) (Miss.Ct.App.2004) (quoting Estelle v. State, 558 So.2d 843, 847 (Miss.1990)). Furthermore, we noted that “Estelle held that where a defendant declines appointed counsel and proceeds to represent himself with appointed counsel only standing by to provide assistance if called upon that the defendant will not be heard to complain on appeal of ineffective assistance of counsel.” Id. It is clear that Scarbough and Estelle are directly applicable to the present controversy. As Jackson voluntarily assumed the role of trial counsel, he may not claim that his adviser failed to provide him with adequate representation. Simply put, Jackson may not now benefit on appeal from his own ineptitude at trial. This issue is without merit.

CONCLUSION

¶ 30. It is clear from our thorough examination of the record that Jackson’s claims are wholly without merit. We therefore affirm the judgment of the Circuit Court of Bolivar County.

¶ 31. THE JUDGMENT OF THE BOLIVAR COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I MURDER AND SENTENCE OF LIFE; AND COUNT II AGGRAVATED ASSAULT AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH SENTENCE IN COUNT II TO RUN CONCURRENTLY TO SENTENCE IN COUNT I AND CONSECUTIVELY TO ANY AND ALL SENTENCES PREVIOUSLY IMPOSED, PAY $1,400 IN RESTITUTION IN COUNT I AND $9,000 IN RESTITUTION IN COUNT II, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO BOLIVAR COUNTY.

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

      . The motel computer listed the time for Burns’s registration as 22:07. Officer Bing-ham, however, correlated the motel clock with police dispatcher’s clock and discovered that the motel clock was seven minutes faster. The time used in the text reflects this correlation.

      . Officer Bingham testified that the call to the sheriff's department was received at 10:17 p.m. However, Deputy Walter Grant testified, referring to his report, that the call was received at 10:14 p.m. The text reflects Deputy Grant's testimony which provides the more compressed time line for the events in question.

      .One investigator with the Cleveland police department, Melvin Sparks, testified that the distance was "no more than 60 to 70 yards.” Another investigator, George Serio, stated the distance to be 150 yards, which could be jogged in about one minute or walked in "a few minutes.”

      . Officer Bingham testified that when Jackson was questioned, he admitted that he had come to Mississippi to “beat up” a subject that was at 900 White Street because this subject had not allowed him to speak with his girlfriend when he called.

      . In response to questioning by defense counsel "trying to get the time as close as you can,” Walker stated, "That's been a long time ago, man.” He had previously admitted, "I wasn't just looking at no clock, man.”

      . The records of A to Z Pawn Shop showed that the gun was pawned by Scott on June 25, 2001 and picked up by her on August 3, 2001.

      . Jackson also contends that the trial court erred in denying his motion for JNOV or, in the alternative, new trial. The record does not reflect, however, that any post-trial motions were ever filed. As will be addressed in our discussion of Jackson’s claims of ineffective assistance of counsel, Jackson insisted upon serving as his own counsel in this case.

      . Jackson claims that his alibi is “further solidified" by the testimony of Scott, who stated that Jackson left her mother’s house just before 10:00 p.m.; she remembered the time, she testified, because the news "was coming on” when Jackson left. Jackson argues that since the house was "a good distance away from the crime scene,” he could not have committed the crimes at 10:03 p.m. We have been unable to locate any testimony in the record regarding the distance from the house of Scott's mother to the Best Western motel or the crime scene. In any event, we do not regard Scott’s testimony regarding timing of the events as so persuasive to create a reasonable hypothesis of Jackson's innocence.

      . Further illuminating as to the issue of fingerprint evidence was Scott’s testimony that Jackson had once taught her to load cartridges into a gun using her shirt, thus eliminating the possibility of leaving latent prints on the cartridges.


text:
    James Steven STEWART and Renee Stewart, Appellants v. LOFTON TIMBER COMPANY, LLC and Georgia Pacific Corporation, Appellees.
    No. 2005-CA-01396-COA.
    Court of Appeals of Mississippi.
    Nov. 7, 2006.

      Jennifer P. Burkes, Gulfport, attorney for appellants.
    Cecil Maison Heidelberg, Ridgeland, attorney for appellees.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. On February 12, 2004, Cleansy Barksdale ran a stop sign at the intersection of Highway 19 and Highway 35 in Attala County and the loaded logging truck he was driving collided with James Steven Stewart’s pick-up truck. Stewart suffered serious injuries. The logging truck then rolled over onto another car stopped at the intersection killing two of the four individuals inside.

¶ 2. The logging truck driven by Barks-dale was owned by Albert Nickerson, d/b/a Nickerson Trucking. Barksdale had been hired to take a load of wood from Lofton Timber Company’s storage facility to a mill owned by Georgia Pacific in Monticello, Mississippi. Late in the day Barksdale decided to return to Nickerson’s house, where Nickerson kept his trucks, to park for the evening. The accident occurred while Barksdale was en route to Nicker-son’s house.

¶ 3. Georgia Pacific was using Lofton Timber’s site as a warehouse for timber and pulpwood. Lofton referred to the facility as a “bank” for the wood. When Georgia Pacific got ready for the wood, a request would be made with Lofton for the wood to be delivered to various mills in the state where it was needed. Lofton did not own its own trucks but contracted drivers or companies such as Nickerson to haul the wood. A written “hauling contract” and a “loading, unloading, storing, and watering contract” detailing the duties of the parties was entered into by Georgia Pacific and Lofton. There was no contract or dealings between Georgia Pacific and Nicker-son. Details of the employment relationship will be addressed further as relevant.

¶ 4. Stewart and his wife, Renee, filed a complaint on June 28, 2004, in Attala County Circuit Court against Cleansy Barksdale; Albert Nickerson, individually and d/b/a Nickerson Trucking; Lofton Timber Company, LLC; Georgia Pacific Corp.; Charles Donald, individually and d/b/a Charles Donald Pulpwood, Inc.; and John Doe Defendants A-D. The complaint alleged gross negligence against Barksdale and vicarious liability and/or liability under the doctrine of respondeat superior against the remaining defendants. Defendants Charles Donald and Charles Donald Pulpwood, Inc., were later dismissed without prejudice.

¶ 5. Lofton Timber and Georgia Pacific moved for summary judgment asserting that no basis existed to find vicarious liability since Nickerson was acting as an independent contractor. The Stewarts then filed a motion for partial summary judgment asserting that Nickerson Trucking was acting as an employee of Lofton Timber. The circuit court granted summary judgment for Lofton and Georgia Pacific holding Nickerson Trucking solely responsible for the accident. The Stew-arts then filed a motion for reconsideration and to alter or amend the judgment which was denied by the circuit court.

¶ 6. The Stewarts bring two issues on appeal: (1) the trial court erred in granting summary judgment in favor of Lofton Timber, and (2) the trial court erred in granting summary judgment in favor of Georgia Pacific.

STANDARD OF REVIEW

¶ 7. This Court applies a de novo standard of review to a grant of summary judgment by the lower court. Hudson v. Courtesy Motors, Inc., 794 So.2d 999, 1002(¶ 7) (Miss.2001). Summary judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c).

¶ 8. “The evidence must be viewed in the light most favorable to the party against whom the motion has been made.” Russell v. Orr, 700 So.2d 619, 622(¶ 8) (Miss. 1997). The moving party bears the burden of demonstrating that no genuine issue of material fact exists. Lewallen v. Slawson, 822 So.2d 286, 237(¶6) (Miss.2002). “The presence of fact issues in the record does not per se entitle a party to avoid summary judgment. The court must be convinced that the factual issue is a material one, one that matters in an outcome determinative sense.” Hudson, 794 So.2d at 1002(117) (citing Shaw v. Burchfield, 481 So.2d 247, 252 (Miss.1985)).

DISCUSSION

I. DID THE TRIAL COURT ERR IN GRANTING SUMMARY JUDGMENT TO LOFTON TIMBER?

¶ 9. The Stewarts argue that summary judgment for Lofton Timber was inappropriate because a factual question exists as to whether Nickerson was an employee of Lofton rather than an independent contractor, or, in the alternative, that Nicker-son’s relationship with Lofton was a joint venture. The Stewarts further argue that they will be denied an adequate remedy at law if Nickerson is the only defendant.

1. Did a genuine issue of material fact exist as to whether Nickerson was an independent contractor for Lof-ton Timber?

¶ 10. The determination of whether a person is an independent contractor or an employee depends upon the power of control which the employer is entitled to exercise over the person in question. Richardson v. APAC-Mississippi Inc., 631 So.2d 143, 147 (Miss.1994). “An independent contractor is a person who contracts with another to do something for him but who is not controlled by the other nor subject to the other’s right to control with respect to his physical conduct in the performance of the undertaking.” Id. at 148 n. 3.

¶ 11. The factors to be considered to determine if a person is an independent contractor or employee are (1) whether the principal master has the power to terminate the contract at will; (2) whether he has the power to fix the price in payment for the work, or vitally controls the manner and time of payment; (3) whether he furnishes the means and appliances for the work; (4) whether he has control of the premises; (5) whether he furnishes the materials upon which the work is done and receives the output thereof, the contractor dealing with no other person in respect to the output; (6) whether he has the right to prescribe and furnish the details of the kind and character of work to be done; (7) whether he has the right to supervise and inspect the work during the course of the employment; (8) whether he has the right to direct the details of the manner in which the work is to be done; (9) whether he has the right to employ and discharge the su-bemployees and to fix their compensation; and (10) whether he is obliged to pay the wages of said employees. Id. at 148-49.

¶ 12. Nickerson was under no contractual obligation to haul for Lofton. If drivers came to the wood yard and did not like the price Lofton was paying to haul lumber then they were free to leave. Nickerson used his own trucks to haul the lumber. Lofton had control over the wood yard where the timber was stored but had no control over Nickerson’s trucks. The equipment used to load the trucks was supplied by Lofton. The trucks that hauled the wood, the ultimate job in question, were owned by Nickerson. Lofton did not inspect Nickerson’s trucks or do background checks on the drivers. Nick-erson’s employees mapped their own routes. When the load arrived at the Georgia Pacific mill the driver dealt with the mill employees concerning the unloading of the wood. Nickerson decided how many loads to haul and how much timber to load on each truck; Lofton only made sure the loads were not over the legal weight limit. Nickerson’s drivers were responsible for making sure the wood was properly bound on the truck.

¶ 13. Lofton did not hire or fire Nicker-son’s employees or set their salaries. No evidence in the record suggests that Lof-ton was obligated to pay the wages of Nickerson’s employees. Lofton provided Nickerson with a 1099 form. Lofton did not provide Nickerson or his employees workers’ compensation insurance. Lofton issued checks on Fridays but did not require that work tickets be turned in at any certain time.

¶ 14. The Stewarts argue, for example, that an employer-employee relationship existed because Nickerson, when acting on its own, always overloaded his trucks, but Lofton would not allow trucks to be overloaded. Not allowing a truck to be illegally overloaded is not a demonstration of control so great as to make Nickerson an employee rather than an independent contractor. The control exercised by Lofton was not enough to make Nickerson an employee rather than an independent contractor. As the Stewarts argue, the right of control, rather than the actual control exercised, should be the determining factor. Lofton exercised control over its own facility but not over Nickerson’s trucks. The ultimate job of hauling the wood from Lofton’s facility to Georgia Pacific was not under Lofton’s right of control.

¶ 15. Lofton’s main concern was that the timber reached the Georgia Pacific mill. Lofton would advise Nickerson as to which Georgia Pacific mill to haul lumber, but otherwise was not concerned with the details of the transport. An employer is one who exercises control over the details of employment. No control was evidenced in this case sufficient to find an employer/employee relationship. Therefore, the trial court’s grant of summary judgment finding that Nickerson was an independent contractor is affirmed.

2. Were Nickerson and Lofton joint venturers?

¶ 16. The Stewarts’ argument that Nickerson and Lofton were joint ven-turers is unfounded. A joint venture is broadly defined as “an association of persons to carry out a single business enterprise for profit, for which purpose they combine their property, money, efforts, skill and knowledge.” Pittman v. Weber Energy Corp., 790 So.2d 823, 826(¶ 10) (Miss.2001) (citing Hults v. Tillman, 480 So.2d 1134, 1143 (Miss.1985)). The enterprise must be for the parties’ mutual benefit with an understanding that they are to share in profits or losses and each have a voice in its management. Id. The relationship depends upon the parties’ actual intention, and such relationship arises only when they intend to associate themselves as such. Id. at 827(¶ 10).

¶ 17. The Stewarts argue that a joint venture existed because Nickerson provided the truck and labor and shared the money paid by Georgia Pacific. No evidence was presented that this was an enterprise entered into to share profits and losses nor was there any evidence that either company had any voice in the management of the other. The two operated as completely separate businesses. Nick-erson was just one of the independent trucking companies Lofton contracted with to haul wood off its lot.

S. Will the Stewarts be denied an adequate remedy at law if Lofton is not a party defendant?

¶ 18. When a contract is made between two parties that as between themselves creates an independent contractor relationship and involves employment generally performed under a simple master/servant or employer/employee relationship, it will be upheld as between the parties. Richardson, 681 So.2d at 150. When, however, third parties are adversely affected, this Court will carefully scrutinize the contract to see if public policy should permit the transformation of an ordinary employer/employee relationship into that of an independent contractor. Id. “A necessary condition precedent for the application of this factor, however, is that the party challenging the claimed relationship will be adversely affected, and denied an adequate legal remedy. In the absence of this, the right of parties to contract as they please is a constitutionally-protected right.” Id.

¶ 19. The Stewarts argue that they will be denied an adequate remedy if they can only recover from Nickerson, and, therefore, Lofton should be a party defendant in the interests of public policy. Nickerson carried insurance with a policy limit of $100,000. The Stewarts argue that this in no way can satisfy a judgment in this case since Mr. Stewart’s medical bills alone exceed $100,000.

¶20. While unfortunate for the Stew-arts, this argument fails for two reasons. First, no written contract existed characterizing the employment relationship. Second, the Fifth Circuit in McKee v. Brimmer, 39 F.3d 94, 98 (5th Cir.1994), explained that the public policy factor from Richardson only becomes “an issue when the relationship between the alleged employer and the alleged employee would ‘ordinarily’ be characterized as that of an employer/employee, but they have a contract which defines their relationship as that of independent contractors.” Since this relationship is not one that would ordinarily be characterized as employer/employee, and there is no evidence of an attempt to control Nickerson through a written contract or otherwise, the Stew-arts’ public policy argument fails.

II. DID THE TRIAL COURT ERR IN GRANTING SUMMARY JUDGMENT TO GEORGIA PACIFIC?

¶ 21. The Stewarts argue that summary judgment for Georgia Pacific was inappropriate because a factual question exists as to whether Lofton Timber was an employee of Georgia Pacific rather than an independent contractor or, in the alternative, that Lofton’s relationship with Georgia Pacific was a joint venture. The Stewarts further argue that they will be denied an adequate remedy at law if Nickerson is the only defendant.

¶22. Having found that Nickerson is not an employee of Lofton, there is no need to determine if a jury question exists as to whether Lofton was an employee of Georgia Pacific. If Lofton is not vicariously liable for the acts of Nickerson, then Georgia Pacific cannot be held vicariously liable for the acts of Nickerson acting through Lofton.

¶ 23. After a thorough de novo review of this matter, we affirm the circuit court’s grant of summary judgment.

¶ 24. THE JUDGMENT OF THE AT-TALA COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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