author: ROBERTS, J.,

text:
    Jonathan Barry SELF, Appellant v. Elizabeth Ann Orraca Self LEWIS, Appellee.
    No. 2009-CA-01849-COA.
    Court of Appeals of Mississippi.
    May 17, 2011.

      W. Thomas McCraney III, Ridgeland, attorney for appellant.
    Jon-Marc King, Jackson, attorney for appellee.
   ROBERTS, J.,

for the Court:

¶ 1. This is an appeal from the Rankin County Chancery Court. The issue on appeal is whether the chancellor erred in finding a material change in circumstances that adversely affected the children and by changing custody from the father to the mother. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Jonathan Self and Elizabeth Lewis were married on September 18, 1999. Two children were born from the marriage: Brooklyn, whose birthday is July 18, 2001, and Emily, whose birthday is February 18, 2003. The couple separated on July 12, 2006, and on July 18, 2006, Jonathan filed for divorce on the ground of adultery. Elizabeth filed a counterclaim for divorce a few days later.

¶ 3. Jonathan and Elizabeth agreed to withdraw all grounds for divorce and requested a divorce based on irreconcilable differences. The chancellor granted the divorce. Jonathan and Elizabeth executed a “Marital Dissolution Agreement” (“the Agreement”), which provided for the division of their property and the custody of the children. The chancellor accepted the Agreement and made it a part of the judgment of divorce. In the Agreement, Jonathan and Elizabeth agreed to share joint legal custody of the children, and Jonathan was granted full physical custody. Elizabeth was given a very liberal visitation schedule; she was allowed to have the children every other weekend and every other week. The agreement also contained a morals clause. The morals clause prohibited either party from allowing persons who they were sexually/romantically involved with to spend the night in the presence of the children, and it prohibited either party from consuming alcohol or illegal drugs in the presence of the children.

¶ 4. The Agreement worked well for Jonathan and Elizabeth until 2009. That year, Jonathan informed Elizabeth that he wanted to move to Niceville, Florida. On July 17, 2009, Elizabeth filed a motion to modify custody, arguing a material change in circumstances had occurred since the original divorce decree and seeking to hold Jonathan’s contempt of court for his alleged violations of the morals clause. In response, Jonathan filed a motion to modify Elizabeth’s visitation on the ground that it will be impractical for her to continue such visitation when he moves to Florida.

¶ 5. A hearing was held in the Chancery Court of Rankin County on August 12, 2009. At the time, Jonathan was thirty-three years old, having been born November 20, 1975, and Elizabeth was twenty-seven years old, born March 14, 1982. Several witnesses testified, and their testimonies are summarized below.

1.Elizabeth Lewis

¶ 6. Elizabeth testified that, at the time of the divorce, she agreed to give Jonathan custody of their daughters because he had constantly harassed her. Now, Elizabeth stated that she wanted custody of Brooklyn and Emily because Jonathan threatened to lessen her visitation when they moved to Florida.

¶ 7. Elizabeth stated that Jonathan would bring the girls to her because he could not take care of them; thus, she had their daughters more than he did. Elizabeth also testified that: Jonathan did not take their daughters to any doctor appointments; he did not take them to school; and he was not involved in their school and extracurricular activities. She maintained that either she or Jonathan’s mother did these things.

¶ 8. Elizabeth testified that Jonathan’s employment as part owner of a nightclub prohibited him from spending time with their daughters. Conversely, Elizabeth stated that she was a stay-at-home mom and had plenty of time to devote to their daughters. Elizabeth testified that she could provide a more stable home environment for Brooklyn and Emily because: she is married to Tim Lewis, who earns $5,000 per month; they have an eighteen-month old daughter; and they own a four-bedroom trailer. Elizabeth stated that her daughters were healthy and happy until Jonathan informed them that they would be moving to Florida.

¶ 9. In regard to Jonathan’s alleged violations of the morals clause, Elizabeth testified that Jonathan had let at least five different women spend the night at his home when their daughters were present. In addition, Elizabeth stated that Jonathan had taken at least different three women on family trips with his daughters; he had let Kammie Parks, a former girlfriend, move into his home; and he and their daughters had moved in with Jessica Self, his current wife, before they were married.

¶ 10. During cross-examination, Elizabeth denied that she and Tim had relationship problems, and she denied telling Jonathan that she wanted to suspend visitation with Brooklyn because the child was causing problems between her and Tim. She also denied being intoxicated and getting into a fight at Jonathan’s bar.

2. Robert Turner Jr.

¶ 11. Robert Turner Jr. testified that he was a lieutenant with the Hinds County Sheriffs Department, and he worked as a security officer at Jonathan’s nightclub. Turner was present during Elizabeth’s altercation at the nightclub. Turner stated that he was about to arrest Elizabeth’s brother when she grabbed his arm, interfering with the arrest. Turner also testified that Elizabeth was yelling at him. Turner stated that Jonathan came out, calmed everyone down, and smoothed the issue out with him. Thus, he decided not to make the arrest. On cross-examination, Turner stated that he had not seen Jonathan intoxicated at the nightclub.

3. Jonathan Self

¶ 12. Jonathan testified that: he has had full custody of his daughters for two years; the girls were healthy and happy; and he has been very involved in their lives. Jonathan maintained that his home environment was stable because he received a generous income from his many business ventures; he was married to Jessica, who is a teacher; and Jessica and his mother helped out with the girls. Jonathan also testified that he no longer worked at the nightclub, giving him more time to spend with his daughters.

¶ 13. Jonathan testified that his house burned down in January 2009. Thereafter, he and the girls moved in with Jessica in Madison County, Mississippi. Jonathan maintained that Elizabeth was well aware of this move, and she did not voice any objections.

¶ 14. Jonathan stated that he wanted to move to Florida to get a fresh start. He talked extensively about the strong economy in Niceville and about its number-one-rated school system. Jonathan also stated that he planned to volunteer in the civil air patrol to serve his country and to pursue a career in aviation.

¶ 15. Jonathan testified that, regardless of them moving to Florida, Elizabeth’s biweekly visitation with the girls was not going to work because Elizabeth had moved from Rankin County, Mississippi to Copiah County, Mississippi, which is over an hour away. Jonathan also stated that Elizabeth had been involved in a physical altercation with Tim in front of their children, and Brooklyn had called him frantic and scared. Speaking on Elizabeth’s marriage, Jonathan stated that Elizabeth and Tim had been separated on at least two occasions in the last six months. Jonathan also testified that Brooklyn did not have a good relationship with Tim, causing Elizabeth to cease visitation with Brooklyn for up to four weeks.

¶ 16. On cross-examination, Jonathan was questioned about his business practices. Jonathan admitted that he had a car dealership that did not survive the economy. Further questioning revealed that Jonathan had faced criminal charges of six counts of attempt to defraud in connection with the car dealership. Jonathan maintained that the criminal charges stemmed from his issues with the financing company. Jonathan stated that, in an agreement with the district attorney, the charges were expunged. Jonathan was also questioned about a lawsuit filed against him for sexually assaulting a nightclub patron. Jonathan maintained that he did not sexually assault the patron and that the charges were dropped. Elizabeth’s trial counsel also asked Jonathan whether he had served alcohol to minors, and Jonathan denied the claim.

¶ 17. During cross-examination, Jonathan was also questioned about his alleged violations of the morals clause. Jonathan testified that Kammie and Jessica did spend the night at his home. However, Jonathan denied that Kammie had moved into his home, and he denied serving her alcohol. He stated that Kammie did work at his nightclub tending the beer, which is legal in Mississippi. He also testified that he only moved in with Jessica because he had lost his home to a fire. Jonathan stated that he and Jessica were engaged two weeks after he lost his home, and they got married on July 14, 2009.

4. Jessica Self

¶ 18. Jessica, Jonathan’s current wife, testified that she was a school teacher. She had been previously married and divorced, and she had a nine-year-old daughter from that marriage. Jessica testified that she and Jonathan did not begin seriously dating until 2008. She had seen his daughters many times; she loved the girls; and she would do anything for them.

¶ 19. Jessica testified that Jonathan and the girls moved into her home after his house had burned down. She said that she offered her home to them because she had an extra bedroom and plenty of clothes for the girls. Jessica testified that Elizabeth was aware of their living situation and that she never voiced any concern to her. Jessica stated that Jonathan is a good dad; he is very involved with his daughters; and the girls have excellent grades.

¶ 20. On cross-examination, Jessica was asked whether she had spent the night with Jonathan before his house burned down, and she affirmed. Jessica also stated that she had kept the girls a few times when Jonathan went to the nightclub to check on business.

5. Kammie Parks

¶ 21. Kammie, Jonathan’s former girlfriend, testified that she was only eighteen years old when the two started dating. Kammie stated that she had moved into Jonathan’s home and lived with him and the girls for nine months. She testified that he had often left the girls in her care and that they had gone on a trip to Disney World together.

¶ 22. Kammie also stated that Jonathan served her alcohol at the nightclub and at her nineteenth-birthday party at his home. Kammie also relayed that she and Jonathan were intoxicated in the presence of the girls on their trip to Disney World.

¶ 23. Kammie testified that she did not think that Jonathan was a good father because he did not spend enough time with his daughters. She stated that either she or his mother would take care of the girls.

¶ 24. On cross-examination, Kammie stated that Elizabeth did not know that she was living with Jonathan. Kammie maintained that she had not spoken with Elizabeth until she asked her whether she would be willing to testify at the hearing. Kammie testified that her relationship with Jonathan had ended in August 2008; thus, she had no knowledge of what had transpired with him and the girls since that time.

¶25. The chancellor found that, although the Agreement granted Jonathan physical custody of the children, Elizabeth’s liberal visitation presented a de fac-to joint physical custody arrangement. He ruled that Jonathan’s move to Florida was a material change in circumstances that adversely affected the children. He also determined that Jonathan’s repeated violations of the morals clause and his illegal business activities showed instability of lifestyle, which adversely affected the children.

¶ 26. After finding a material change in circumstances, the chancellor conducted an Albright analysis, which we summarize as follows:

1. The age of the children did not favor either party.
2. The health of the children did not favor either party. However, the sex of the children slightly favored Elizabeth.
3. The chancellor considered the continuity of care since the divorce and determined that Elizabeth had spent more time with the children and had been more involved with their activities.
4. The chancellor noted that both parents had excellent parenting skills. However, he found that Jonathan’s indulgence in alcohol and serving alcohol to minors were negatives. The chancellor also noted that Kammie’s story regarding Jonathan leaving Brooklyn on a soiled mattress after she had urinated on herself exhibited poor parenting. Considering the totality of the circumstances, the chancellor found that his factor weighed in favor of Elizabeth.
5. The chancellor found that Jonathan’s employment was more stable than Elizabeth’s non-employment.
6. The physical/mental health factor did not favor either parent over the other.
7. Both parties had strong emotional ties to the children.
8. Considering the morals of the parties post-divorce, the chancellor found that this factor favored Elizabeth.
9. The chancellor found that the home, school, and community record did not favor one party over the other.
10. The chancellor noted that the children’s preference was not a factor because of their youth.
11. The chancellor found that the stability of home factor favored Elizabeth because she had been in a long-term, monogamous relationship, and she would offer religious training to the girls.
12. Considering other factors, the chancellor noted that the girls had a half-sibling and that this favor factored Elizabeth.

Ultimately, the chancellor determined that the best interests of Brooklyn and Emily would be served by giving Elizabeth physical custody of the girls. Jonathan was given visitation and ordered to pay child support.

¶ 27. Thereafter, Jonathan filed a motion to supplement the record to show that his criminal charges had been expunged. He also filed a motion to reconsider. The chancellor denied the motion to reconsider. Aggrieved, Jonathan timely appeals.

ANALYSIS

¶28. Jonathan argues that the chancellor erred by finding that there was a material change in circumstances and by giving Elizabeth custody of the girls. It is important to note that Elizabeth has failed to file a brief before this Court. Typically, a party’s failure to file a brief is considered a confession of the errors alleged by the opposing party. S.S. v. S.H., 44 So.3d 1054, 1056 (¶8) (Miss.Ct.App.2010). But this Court has held that “when matters on appeal touch the welfare of a minor child, then regardless of whether a party filed a brief, this Court will ‘reach the merits of the issues in this appeal, though we proceed unaided by a brief from the appellee.’ ” Id. (quoting N.E. v. L.H., 761 So.2d 956, 962 (¶ 14) (Miss.Ct.App.2000)). Thus, we will review the merits of this action.

¶ 29. On appeal, we will not disturb a chancellor’s decision regarding custody matters unless “the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or erroneous legal standard was applied.” Sudduth v. Mowdy, 991 So.2d 1241, 1243 (¶ 8) (Miss.Ct.App.2008). A modification of custody should only be granted when a material change in circumstances has occurred since the entry of the original custody order. Id. To prove that there has been a material change in circumstances, the non-custodial party must show that: “(1) there has been a substantial change in circumstances affecting the child; (2) the change adversely affects the child’s welfare; and (3) a change in custody is in the best interest of the child.” Id. (quoting Johnson v. Gray, 859 So.2d 1006, 1013 (¶ 33) (Miss.2003)). The best interests of the children are always the polestar consideration in custody matters. See id.

1. De Facto Joint Custody

¶ 30. Jonathan argues that the chancellor erred by determining that he and Eliz-

abeth had a de facto joint custody arrangement. Jonathan and Elizabeth’s Agreement provided that the two would share joint legal custody of the girls, and Jonathan would have full physical custody of the girls.

¶ 31. Elizabeth had visitation, which was scheduled as follows:

Every Other Weekend Visitation. Elizabeth shall have visitation with the minor children every other weekend, commencing at 6:00 p.m. on Friday and continuing through the following Monday at 8:00 a.m., when Elizabeth shall return the children to school, or to the custody of Jonathan....
Every Other Week Visitation. For so long as Elizabeth is employed, Elizabeth shall have visitation with the minor children every other week, commencing at 6:00 p.m. on Monday and continuing through the immediate following Tuesday morning at 8:00 a.m. when Elizabeth shall return the children to school, or to the custody of Jonathan ... and said visitation shall commence that same Tuesday at 6:00 p.m. and shall continue through the immediate following Wednesday morning at 8:00 a.m. when Elizabeth shall return the children to school, or the custody of Jonathan.... [S]aid visitation shall commence that same Wednesday at 6:00 p.m. and shall continue through the immediate following Thursday morning at 8:00 a.m. Jonathan shall have custody of the minor children for all other weekdays not reserved above to Elizabeth for visitation. The intent of the parties is to allow Elizabeth every other weekday visitation with the minor children on the Monday night, Tuesday night, and Wednesday night immediately following her every other weekend visitation.

¶ 32. The chancellor determined that Jonathan and Elizabeth shared de facto joint custody stating, in pertinent part, that:

In reality, although physical custody was awarded to [Jonathan] by the terms of this agreement, there has been very liberal visitation awarded to the mother. In fact, since the divorce, she has had the children on alternating weeks and more, presenting really a situation that presented a de facto legal and physical custodial arrangement between the parties over an extended period of time.

The chancellor went on to compare Jonathan and Elizabeth’s situation to cases where parents shared joint physical custody and, thus, found that Jonathan’s move to Florida constituted a material change in circumstances.

¶ 33. Mississippi Code Annotated section 93 — 5—24(5)(c) (Rev.2004) states that “ ‘joint physical custody’ means that each of the parents shall have significant periods of physical custody. Joint physical custody shall be shared by the parents in such a way so as to assure a child of frequent and continuing contact with both parents.” Jonathan and Elizabeth’s custody agreement did provide for such contact. However, the agreement explicitly stated that Jonathan had physical custody of their daughters.

¶ 34. On appeal, this Court may affirm a chancellor’s decision on alternate grounds if we determine that the right result was reached. Timms v. Pearson, 876 So.2d 1083, 1086 (¶ 12) (Miss.Ct.App.2004). In this ease, we have determined that the right result was reached, but our affirmance is based on the adverse, material change in circumstances due to Jonathan’s relationships following the divorce, which involved criminal activity, and his questionable business practices.

2. Material Change In Circumstances

¶ 35. The chancellor ruled that the totality of the circumstances surrounding Jonathan’s move to Florida, his violations of the morals clause, and his illegal business practices constituted a material change in circumstances, adverse to the girls. Jonathan argues that the chancellor erred by finding that his move to Florida, his violation of the morals clause, and his business practices all add up to constitute a material change in circumstances.

A. Move to Florida

¶ 36. Because he had physical custody of his daughters, Jonathan argues that he had the authority to decide where they would reside, and the chancellor erred by finding a material change in circumstances without making specific findings regarding how the move would have adversely affected his daughters.

¶ 37. The law is well-settled “that [the] relocation of a parent does not necessarily result in a material change in circumstances.” Lackey v. Fuller, 755 So.2d 1083, 1088 (¶ 26) (Miss.2000). However, the chancellor did not base his decision on this alone. The chancellor clearly indicated that he considered the totality of the circumstances, which included Jonathan’s repeated violations of the morals clause and his illegal business practices. These are discussed below.

B. Violations of the Morals Clause

¶ 38. Jonathan argues that his relationships with other women are not sufficient grounds for the chancellor to modify custody. Jonathan is correct that a parent’s relationships or indiscretions, standing alone, are not enough to constitute a material change in circumstances. See Forsythe v. Akers, 768 So.2d 943, 947 (¶ 11) (Miss.Ct.App.2000). “[B]ut if the relationship is coupled with other conduct that indicates'the custodial parent’s behavior is harmful in additional ways, custody can be changed.” Davidson v. Coit, 899 So.2d 904, 909 (¶ 12) (Miss.Ct.App.2005).

¶ 39. It is apparent from the chancellor’s bench opinion that Kammie’s testimony concerned him. The chancellor stated that:

Prior to his current marriage, [Jonathan Self] allowed a minor, Kammie Parks, who was [eighteen] years old, who testified before this court, who had no apparent reason to tell anything but the truth, testified to the extent that he moved her into his home to reside with him and the minor children; he allowed [her] to attend to those children; he provided Miss Parks with alcohol for her consumption on numerous occasions, they carried— that is, Miss Parks and him carried [the children] on the vacation to Florida, and the two of them got intoxicated down there on more than one occasion, and there was testimony of excessive alcohol in Mr. Selfs home on numerous occasions.

Jonathan argues that Kammie’s testimony is not true. However, the chancellor is the judge of the credibility of the witnesses, and he determined that Kammie’s testimony was true. We have no reason to doubt the chancellor’s findings.

¶ 40. Jonathan maintains that the chancellor should not have punished him for his relationship with Kammie because it had ended in August 2008, and he was currently married to Jessica. Jonathan’s relationship and indiscretions with Kam-mie occurred after the original custody order. Providing alcohol to a minor is a crime, and the “[c]ommission of crimes by a custodial parent ... is properly the concern of a chancellor.” Sullivan v. Stringer, 736 So.2d 514, 516 (¶ 14) (Miss.Ct.App.1999) (finding that mother’s cohabitation was a crime and, thus, a proper concern for the chancellor). Accordingly, we find no error in the chancellor’s ruling that Jonathan’s relationship with Kammie constituted a material change in circumstances adverse to his children’s well-being.

C. Business Practices

¶ 41. Jonathan argues that the chancellor improperly punished him for his business activities that transpired well over a year prior to the trial. According to the record, Jonathan was charged with six counts of false pretenses in connection with his failed car dealership. Jonathan testified that he reached an agreement with the district attorney and Dealer Services; he successfully completed a pre trial diversion program, and the charges were expunged from his record. Jonathan testified that he owed Dealer Services $234,000. However at the custody hearing, Jonathan also testified that he was not current on his payments. Based on this evidence, the chancellor determined that Jonathan exhibited “a certain instability of lifestyle.”

¶ 42. As previously held, it is proper for a chancellor to consider a parent’s commission of crimes. Id. Although Jonathan reached an agreement with Dealer Services and the district attorney and avoided jail time, the chancellor, in his judgment, was troubled by the circumstances. We find no reason to question the chancellor’s judgment. Jonathan argues that the chancellor failed to state how the children were adversely affected by his business practices. We disagree. The chancellor explicitly stated that Jonathan’s business practices exhibited “a certain instability of lifestyle,” and we agree that this instability would adversely affect the children.

¶ 43. Accordingly, we find that the chancellor did not err by finding that Jonathan’s business practices following the original custody order constituted a material change in circumstances. This argument is without merit.

3. Albright Analysis

¶ 44. After finding a material change in circumstances, the chancellor underwent an Albright analysis to determine who should have custody of Brooklyn and Emily. Jonathan argues that the chancellor erred in his analysis on the issues of the sex of the children, continuity of care, moral fitness, and stability of the home.

A. Sex of the Children

¶45. Brooklyn and Emily are both girls. At the time of the hearing, Brooklyn was eight years old and Emily was six years old. The chancellor determined that the age and health of the children did not favor either parent, but the sex of the children slightly favored Elizabeth. Jonathan argues that the chancellor ignored the fact that he had successfully taken care of the girls for two-and-a-half years. However, we find no reversible error in the chancellor’s decision on this factor.

B. Continuity of Care

¶46. The chancellor determined that this factor favored Elizabeth because she spent more time with the children, and she was involved with their extracurricular and school activities. Jonathan argues that the chancellor ignored the facts that (1) he had physical custody of the children; (2) since the divorce, the children have resided with him under his care and supervision; and (3) Elizabeth and Tim voluntarily moved from Rankin County to Copiah County, placing distance between themselves and the children.

¶ 47. Although the Agreement provided Jonathan with physical custody of the children, Elizabeth had the children equal amounts of time as Jonathan given her liberal visitation schedule. Practically speaking, the children were spending equal, if not more, time in the physical custody of their mother rather than their father. Also, Elizabeth testified that Jonathan would often bring the children to her during his scheduled custody time, and Jessica and Jonathan’s mother often took care of the children for Jonathan. Jonathan did not refute her statements. Regarding Elizabeth and Tim’s move to Copi-ah County, there was no evidence that the move prevented Elizabeth from exercising her regular visitation.

¶ 48. The chancellor’s decision on this issue was a close call, and we cannot say that the chancellor erred in his determination.

C. Moral Fitness

¶ 49. Because Jonathan provided alcohol to a minor, violated the morals clause, and participated in illegal business practices, the chancellor determined that this factor favored Elizabeth. Jonathan argued that the chancellor ignored the fact that Elizabeth was an adulterer. He also maintains that his relationship with Kam-mie ended well over a year before trial and that the chancellor ignored the fact that the girls were presently living in a loving, nurturing, family environment.

¶ 50. In regard to Elizabeth’s adultery, this occurred before the divorce and original custody order. Thus, it would not have been a proper factor for the chancellor to consider during the modification hearing. Although Jonathan and Kammie were no longer dating, Jonathan’s indiscretions with Kammie occurred after entry of the original custody order. Thus, it was properly considered by the chancellor. This argument is without merit.

D. Stability of the Home

¶ 51. The chancellor determined that this factor favored Elizabeth because she had been a long-term monogamous relationship since the original custody order, and she has offered religious training to the children. Jonathan argues that he and Jessica had also been in a long-term monogamous relationship, and the children had lived with them for nine months. Thus, Jonathan maintains that the chancellor erroneously found that this factor favored Elizabeth.

¶ 52. The record shows that Jonathan and Jessica had married after Elizabeth had filed for a modification of custody and shortly before Jonathan had filed his cross-petition for modification of visitation. The chancellor could have definitely taken this into consideration in making his decision. Regardless, the chancellor based his decision to award custody to Elizabeth on his analysis of all of the Albright factors. Viewing the chancellor’s analysis in its entirety, we find that the chancellor did not abuse his discretion. This argument is without merit.

CONCLUSION

¶ 53. The chancellor did not err by finding that Jonathan’s relationships following the divorce and his business practices constituted a material change in circumstances. We also find that there is substantial evidence in the record supporting the chancellor’s decision to modify custody of the children from Jonathan to Elizabeth.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, ISHEE, CARLTON AND MAXWELL, JJ„ CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.


source: Caselaw Access Project

license: Public Domain

text:
    Charles BILLUE, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-01243-COA.
    Court of Appeals of Mississippi.
    May 24, 2011.

      John D. Watson, Southhaven, attorney for appellant.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
   ROBERTS, J.,

for the Court:

¶ 1. Charles Billue was convicted of grand larceny on April 30, 2009, in the Circuit Court of DeSoto County. Billue was sentenced as a habitual offender to serve ten years in the custody of the Mississippi Department of Corrections. Aggrieved, Billue appeals, arguing that: (1) the trial court erred in failing to move African American members of the venire to the front during voir dire to ensure a sufficient number would be selected to ensure a fair trial, and (2) the jury’s verdict is against the overwhelming weight of the evidence. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Christie Hudgins and Billue were unmarried but living together in Tunica, Mississippi, in 2006. Billue worked relocating trucks and repossessing vehicles. Hudgins often assisted Billue by following him in a different car so she could pick him up after he completed a delivery. Hudgins testified that on December 25, 2006, Billue picked up Hudgins from her workplace at approximately 10:00 p.m. After having dinner, the two went to a Walgreens parking lot where Billue had indicated he was supposed to pick up a truck for delivery to Georgia. Hudgins described the truck as a white eighteen-wheeler with gray writing and the number 1217 written on it.

¶ 3. This description matched a FLD Freightliner truck owned by Charles Baker. Baker testified that he purchased the truck around December 19, or 20, 2006, for $19,000. Baker described the Freightliner as solid white with small pin striping and the number 1217 and Express America in red lettering on the side. Baker testified that on December 25, 2006, he parked the Freightliner in the parking lot behind the Walgreens in Horn Lake, Mississippi. The following morning he found that the truck was missing. The truck was never found.

¶4. Hudgins testified that when she drove to the- Walgreens parking lot with Billue so he could pick up the truck she suspected that something was wrong because picking up a vehicle in a Walgreens parking lot was unusual. Hudgins testified that she refused to help Billue. The couple returned home, and Billue eventually called someone else to take him to pick up the truck. Later, Hudgins talked to Billue via cell phone to help him stay awake as he drove to Georgia. The following evening, Billue rode a Greyhound bus back to Tunica from Georgia. When Hud-gins picked Billue up at the bus station, he had two black bags containing his clothes, CDs, truck radios, and XM satellite radios. Hudgins also testified that later that week law-enforcement officers interviewed her about Billue, and she told them about the truck at Walgreens.

¶ 5. Detective Josh Zacharias of the De-Soto County Sheriff’s Department testified at trial that he investigated the theft of the truck. Det. Zacharias interviewed both Hudgins and Billue, and he testified that Hudgins told him that there were items at the condominium she shared with Billue that she thought Billue had stolen from the truck. Hudgins consented to a search of their condominium. Hudgins rode with Det. Zacharias to the condominium in Tu-nica to conduct the search. Det. Zacharias testified that while searching the property he found a satellite radio that matched the description of Baker’s radio from the stolen Freightliner. Det. Zacharias later obtained a search warrant and seized a CB radio, two power inverter boxes, and fifty-one sets of truck keys from Billue’s pickup truck. The make and model of the CB radio and power inverter boxes matched those from Baker’s stolen Freightliner. Det. Zacharias also testified that Billue told him that he had driven his blue van to Atlanta, Georgia, and that it broke down so he left it and rode a Greyhound bus back. However, Det. Zacharias found the blue van parked at the condominium in Tunica.

¶ 6. Richard Sayles, a friend of Billue’s, testified at trial that he had known Billue and Hudgins for approximately three years. Sayles worked with Billue in repossessing trucks. Sayles testified that they often had master keys to trucks when repossessing them. Sayles corroborated Hudgins’s testimony concerning her role in following Billue and picking him up after Billue had delivered the trucks. According to Sayles, Billue spent most of Christmas day 2006 at Sayles’s house but left before 9:00 p.m. Sayles also corroborated Hudgins’s testimony regarding her working on the day the truck was stolen. Sayles also testified that he thought Hud-gins was untruthful. Shundrica Sayles, wife of Richard Sayles, testified that Hud-gins was untruthful, but she could not testify as to how many times she had contact with Hudgins during the two and one-half years she had known her. Billue chose not to testify.

¶ 7. After a one-day trial, which took place on April 30, 2009, a jury found Billue guilty of grand larceny. The trial court sentenced Billue as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2007) to ten years in the custody of the Mississippi Department of Corrections, and the court ordered him to pay $1,000 in court costs, $19,700 to Baker’s insurance company, and $500 to Baker at the rate of $100 per month beginning sixty days following his release from incarceration.

I. FAILURE TO SHUFFLE THE VENIREMEN

¶ 8. Billue asserts that the trial court erred in refusing to shuffle the members of the venire in order to move African American jurors up in the order of selection. Billue argues that he did not have an opportunity to select African American jurors. Billue contends that as a result, he was denied an impartial trial and due process of law.

¶ 9. Defendants have a right to a trial before a jury selected through nondiscriminatory means, but “the Sixth Amendment has never been held to require that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population.” Simon v. State, 688 So.2d 791, 806 (Miss.1997) (citing Britt v. State, 520 So.2d 1377, 1379 (Miss.1988); Taylor v. Louisiana, 419 U.S. 522, 538, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975)).

¶ 10. Simon outlines the elements that establish a violation of the fair cross-section requirement for an impartial jury: (1) the group alleged to be excluded is a “distinctive” group in the community; (2) the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) this under representation is due to systematic exclusion of the group in the jury-selection process. Simon, 688 So.2d at 806 (citing Lanier v. State, 533 So.2d 473, 477 (Miss.1988)).

¶ 11. Prior to jury selection, defense counsel made a motion for the trial court to move some of the African American members of the venire from the back of the jury panel to the front to ensure a fair and impartial jury with an appropriate racial composition. Billue contends that his due-process rights were undermined by the lack of African Americans available for Billue to select during voir dire. This Court has previously noted that defendants are not entitled to a jury with any particular racial makeup. Shumpert v. State, 983 So.2d 1074, 1078 (¶ 12) (Miss.Ct.App.2008). There is absolutely no indication of any systematic exclusion in the record. The record also reflects that the jury which was ultimately impaneled consisted of eleven Caucasians and one African American. There were two alternates, one Caucasian and one African American. Approximately fourteen percent of the pet-it jury and alternates were African American. The trial court noted that the venire was reflective of the demographic makeup of DeSoto County.

¶ 12. Billue claims that it was determined that the African American alternate would have voted not guilty. Billue contends that this supports the view that the presence of a higher number of African Americans on the venire would have provided him with a fairer trial. There is no basis in the record to support this assertion. Even if there had been, the opinion of an alternate juror is not probative of the claim that the jury was improperly selected or that any distinctive group within the community was subject to systematic exclusion during jury selection.

¶ IB. During jury selection, control and direction of the jury is generally within the discretion of the trial judge. Hunter v. State, 684 So.2d 625, 631 (Miss.1996) (citing Harris v. State, 406 So.2d 823, 823 (Miss.1981)). Billue seems to claim the trial judge had an affirmative duty to “re-shuffle” the jurors when it appears that jurors exhibiting a common trait such as race, gender, or age are not evenly distributed among the jury venire. We know of no such duty and decline Billue’s invitation to establish one today. There exists no indication in the record that the jury venire was listed or seated by the trial court in any particular manner other than at random. In this case, the trial court acknowledged that it did have a concern with where the African American jurors were located within the first twenty-one jurors, but the court did it not find sufficient reason to shuffle the venire. The trial court further noted that it was open to entertaining a Batson challenge if defense counsel opted to raise one. They did not.

¶ 14. After considering Billue’s arguments and reviewing the record, this Court finds no indication that the trial court erred by declining to move African American jurors toward the front of the panel to increase the likelihood that they would be selected for the petit jury. The number of African Americans who were selected for the petit jury or as alternates is indeed reflective of the number of African Americans in the community from which the jurors were drawn. No evidence was presented demonstrating a systematic exclusion of African American jurors during the selection or seating process. This issue is without merit.

II. WEIGHT OF THE EVIDENCE

¶ 15. Billue asserts that the verdict is against the overwhelming weight of the evidence. Billue notes that there was never any confession or eyewitness account of the theft at issue in this case. The only evidence presented against Billue was the testimony of an alleged accomplice, Hudgins; and Billue notes that two defense witnesses testified that Hudgins was not credible.

¶ 16. In determining an issue of whether the weight of the evidence supports a verdict, an appellate court will only disturb a verdict if that verdict is so contrary to the overwhelming weight of the evidence that allowing the verdict to stand would sanction an unconscionable injustice. Ivy v. State, 949 So.2d 748, 753 (¶ 21) (Miss.2007). Issues concerning the weight and credibility of evidence are to be determined by a jury, Harveston v. State, 493 So.2d 365, 370 (Miss.1986), and this Court is not allowed to “pass upon the credibility of witnesses and, where the evidence justifies a verdict, it must be accepted as having been found worthy of belief.” Davis v. State, 568 So.2d 277, 281 (Miss.1990).

¶ 17. Billue argues that the only evidence against him was testimony by Hud-gins. The record indicates otherwise. Uncontradicted evidence was offered at trial that tended to show that Baker owned a Freightliner truck, which was stolen in DeSoto County on Christmas Day 2006. The testimony of both Baker and Det. Zacharias indicated that a CB radio, an inverter power box, and a satellite radio that had been located in Baker’s stolen truck were found in Billue’s residence and vehicle.

¶ 18. Even if this evidence was not present in the record, this Court will not replace the judgment of the jury as to the credibility of witnesses with its own judgment. Webster v. State, 817 So.2d 515, 519 (¶ 16) (Miss.2002) (citing Gathright v. State, 880 So.2d 1276, 1277 (Miss.1980)). As a result, any decision by the jury to assign more credibility to Hudgins’s testimony than to the testimonies from the defense witnesses, who alleged that Hud-gins was untruthful, is not a basis for reversal.

¶ 19. This was a circumstantial-evidence case, and the jury was instructed that in order to return a verdict of guilty, the State must prove BiUue’s guilt beyond a reasonable doubt and to the exclusion of any reasonable hypothesis consistent with innocence. Any conflicts in the evidence introduced at trial are for the jury to resolve. Allowing the verdict to stand does not constitute an unconscionable injustice. Accordingly, we find that the verdict is not against the overwhelming weight of the evidence. This issue is without merit.

¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY OF CONVICTION OF GRAND LARCENY AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS A HABITUAL OFFENDER WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, BARNES, ISHEE, CARLTON AND MAXWELL, JJ., CONCUR. RUSSELL, J., NOT PARTICIPATING.

      . We note that the 2000 Federal Census indicates that approximately 11.39% of the residents of DeSoto County, Mississippi were African Americans. U.S. Census Bureau-Table 5: Counties with a Black Alone Population Greater Than Zero, Ranked by Number: 2000, http://www.census.gov/population.www.cen 200.briefs/phc-tl4/tables/tab05.pdf (last visited April 5, 2011).

      . Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).


author: GRIFFIS, P.J.,

text:
    Matthew Chester TUCKER, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-00305-COA.
    Court of Appeals of Mississippi.
    June 7, 2011.

      Hunter N. Aikens, Leslie S. Lee, Jackson, Allan D. Shackelford, Clarksdale, attorneys for appellant.
    Office of the Attorney General by John R. Henry Jr., attorney for appellee.
    Before GRIFFIS, P.J., MYERS and CARLTON, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Matthew Chester Tucker was convicted in the Coahoma County Circuit Court of attempted kidnapping. On appeal, Tucker argues that the trial judge committed reversible error when he allowed a photograph into evidence. We find no error and affirm.

FACTS

¶2. On September 15, 2008, Higgins Middle School football coach Joseph Furdge held football practice in Clarks-dale, Mississippi. Furdge and two of his players, Cedric LeFlore and Kimeon Butler, testified that they saw a tall white man with a bald head and a moustache grab a young girl by the arm in the parking lot near the football field. Butler testified that the man dragged the girl several feet toward his car. LeFlore testified that the car’s door was open. They described the car as a black four-door Saturn.

¶ 3. According to Furdge, LeFlore, and Butler, the girl screamed. The man then let her go and began to flee in his car. Furdge and several of his players ran after the car, and one of the faster players got close enough to get a look at the car’s license plate. The car had a license plate from Panola County, Mississippi. Furdge called 9-1-1 and described the man and his car.

¶ 4. Officer Jason Sims of the Clarksdale Police Department testified that on December 29, 2008, he heard over the radio that a traffic stop had been performed on a man in a car matching Furdge’s description. That man turned out to be Tucker. Officer Sims went to the scene of the traffic stop and asked Tucker a few questions. When asked why he was in Clarks-dale, Tucker stated that he was “driving around looking for women.” At that time or soon thereafter, photographs were taken of the interior of Tucker’s car. Those photographs were later admitted into evidence. One of the photographs shows that handcuffs were on the floorboard of Tucker’s car.

¶ 5. Officer Sims took Tucker to the police station and photographed him. A photographic lineup was produced and shown to Furdge and Butler, both of whom identified Tucker as the man who had grabbed the girl on September 15, 2008.

¶ 6. After Tucker had waived his rights, he made a statement to the police. He admitted that he was at the middle school’s football field on September 15, and he admitted that he is often sexually aroused at the sight of young girls. Tucker denied that he touched the girl that day, and he stated that he had never touched a child for improper purposes.

¶ 7. Tucker was charged and convicted of attempted kidnapping in -violation of Mississippi Code Annotated sections 97-1-7 and 97-3-53 (Rev.2006). He was sentenced to ten years in the custody of the Mississippi Department of Corrections. He was also ordered to register with the Mississippi Department of Public Safety as a sex offender pursuant to Mississippi Code Annotated section 45-33-25 (Supp. 2010). It is from this judgment that Tucker now appeals.

ANALYSIS

¶8. Tucker’s sole issue for appellate review is that the photograph of the handcuffs on the floorboard of his car was not relevant or, alternatively, that its probative value was substantially outweighed by the danger of unfair prejudice. Said differently, Tucker argues that because the photograph was taken over two months after the incident at the football field had occurred, its content was too remote in time to be relevant.

¶ 9. Mississippi Rule of Evidence 401 provides: “ ‘Relevant Evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Rule 402 provides: “All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of the State of Mississippi, or by these rules. Evidence which is not relevant is not admissible.”

¶ 10. “The determination of whether [evidence] is too remote [in time] to be admissible is addressed to the sound discretion of the trial judge. Higgins v. State, 502 So.2d 332, 335 (Miss.1987). The decision of the trial court will not be reversed in the absence of clear proof of an abuse of discretion. Stewart v. State, 226 So.2d 911, 912 (Miss.1969).” Johnson v. State, 655 So.2d 37, 42 (Miss.1995).

¶ 11. In Winding v. State, 908 So.2d 163, 168-171 (¶¶ 24-29) (Miss.Ct.App.2005), this Court affirmed the trial judge’s decision to allow handcuffs into evidence that were found in the defendant’s car days after the alleged kidnapping had occurred. The mentally-handicapped victim testified that the defendant had posed as a police officer. Id. at 169 (¶ 25) This Court found that the handcuffs corroborated the victim’s testimony and went to show mo-dus operandi. Id. at 170 (¶ 27). Therefore, this Court held that the handcuffs were relevant. Id.

¶ 12. Here, we find that it was within the trial judge’s discretion to determine that the photograph of handcuffs in Tucker’s car was relevant, even though it was taken more than two months after the alleged attempted kidnapping had occurred.

¶ 13. The evidence established that on September 15, 2008, and on December 29, 2008, Tucker traveled from his home in Panola County to Clarksdale, Coahoma County. When Officer Sims asked Tucker why he was in Clarksdale on December 29, Tucker told Officer Sims that he was “driving around looking for women.” Later, in Tucker’s statement to the police, he stated: “I have rode [sic] around Clarks-dale about four or five times looking for women to meet, and have saw [sic] children that aroused me about three of those times.”

¶ 14. The presence of handcuffs in Tucker’s car on December 29 was offered to establish that, on his trips to Clarksdale to “look for women,” Tucker was not looking for consensual relationships. The trial judge decided that the presence of handcuffs in Tucker’s car on December 29 made it more probable that Tucker had grabbed the girl with the intent to kidnap her on September 15; therefore, the photograph was relevant. We find that the trial judge’s decision that the photograph’s content was not too remote in time to be relevant was not an abuse of discretion.

¶ 15. Next, we turn to Tucker’s argument that the photograph presented a danger of unfair prejudice that substantially outweighed its probative value. Mississippi Rule of Evidence 403 provides: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Trial judges have broad discretion to conduct the balancing test under Rule 403. Keys v. State, 963 So.2d 1193, 1200 (¶ 24) (Miss.Ct.App.2007). Our review is limited to the question of whether the trial judge abused his discretion. Id.

¶ 16. In Winding, the defendant also challenged the admission of the handcuffs on Rule 403 grounds. Winding, 908 So.2d at 170 (¶ 28). This Court held that, notwithstanding the fact that the issue was procedurally barred, it was also without merit. Id. at 170-71 (¶¶ 28-29). The Court concluded that the handcuffs had sufficient probative value; the danger of unfair prejudice did not substantially outweigh that probative value. Id.

¶ 17. Likewise, this Court concludes that the photograph at issue in this case had sufficient probative value. The trial judge did not abuse his discretion when he decided the danger of unfair prejudice did not substantially outweigh that probative value. Therefore, we find no merit to this issue.

¶ 18. THE JUDGMENT OF THE COAHOMA COUNTY CIRCUIT COURT OF CONVICTION OF ATTEMPTED KIDNAPPING AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND ORDER TO REGISTER AS A SEX OFFENDER IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COAHO-MA COUNTY.

LEE, C.J., IRVING, P.J., MYERS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. RUSSELL, J., NOT PARTICIPATING.


author: LYONS, Justice.

text:
    OLSHAN FOUNDATION REPAIR COMPANY OF MOBILE, LP v. Florence B. SCHULTZ and Arnold E. Schultz.
    1090800.
    Supreme Court of Alabama.
    Oct. 15, 2010.

      Peter S. Fruin and James L. Mitchell of Maynard, Cooper & Gale, P.C., Birmingham, for appellant.
    E. Tatum Turner of Turner, Onderdonk, Kimbrough, Howell, Huggins & Bradley, PA, Chatom, for appellees.
   LYONS, Justice.

Olshan Foundation Repair Company of Mobile, LP (“Olshan”), appeals from the Washington Circuit Court’s denial of its motion to compel arbitration of certain claims asserted against it by Florence B. Schultz and Arnold E. Schultz. We reverse and remand.

Factual Background and Procedural History

The Schultzes own a house in Washington County. Olshan performed repair work on the foundation of the house in August 2006, March 2007, and again in January 2008. In July 2008, the Schultzes sued Olshan, alleging breach of contract, breach of warranty, negligence, and wantonness. Specifically, the Schultzes alleged that Olshan performed the foundation repair work negligently, wantonly, and in an unworkmanlike manner and that their house was damaged as a result. The Schultzes also alleged that the value of their house had decreased as a result of Olshan’s repairs and that they had suffered mental anguish and emotional distress.

Olshan moved to stay the proceedings and to compel arbitration of the Schultzes’ claims against it. The parties engaged in limited discovery on the question of arbitration and presented the following facts to the trial court. Mr. Schultz first hired Olshan to perform repair work on the foundation of the Schultzes’ house in August 2006. Olshan maintains, and the Schultzes admit, that the work in 2006 was done pursuant to a contract signed by Mr. Schultz. That contract, however, cannot be found. It is undisputed that Mrs. Schultz did not sign the 2006 contract. Olshan presented an affidavit of its general manager, who stated that “the contracts Olshan used in connection with its residential foundation repair work in Alabama in 2006 contained an arbitration provision that was identical (or substantially similar) to” the following provision:

“Notwithstanding, any provision in this agreement to the contrary, any dispute, controversy, or lawsuit between any of the parties to this agreement about any matter arising out of this agreement, shall be resolved by mandatory and binding arbitration administered by the American Arbitration Association (‘AAA’) pursuant to the arbitration laws in your state and in accordance with this arbitration agreement and the commercial rules of the AAA to the extent that any inconsistency exists between this arbitration and such statutes by any court having jurisdiction and in accordance with the practice of such court.”

In their response to Olshan’s motion to compel arbitration, the Schultzes, through counsel, stated: “Mr. Schultz does not deny that [the 2006] agreement contained an arbitration provision.” In an affidavit, Mr. Schultz stated that the condition of his house worsened after Olshan completed the foundation-repair work in 2006.

In March 2007, Mr. Schultz again hired Olshan to perform repair work on the foundation of his house. The record does not establish that the foundation-repair work done by Olshan on the Schultzes’ house in 2007 was related to the work it did in 2006. Mr. Schultz stated in his affidavit that Olshan presented him with a contract for the 2007 work but that he does not recall signing it. Olshan presented to the trial court a contract dated March 2, 2007, signed by Mr. Schultz. The 2007 contract provided that Olshan was to install nine “CableLock Plus Pilings,” which would have a lifetime warranty. The 2007 contract also stated, in relevant part:

“10. The owner may order extra work to be done, not contemplated by this Agreement, in which event a separate Agreement for such work shall be entered into between [Mr. Schultz] and [Olshan]. No oral representation made by anyone can change or modify this agreement.
“11. Notwithstanding, any provision in this agreement to the contrary, any dispute, controversy, or lawsuit between any of the parties to this agreement about any matter arising out of this agreement, shall be resolved by mandatory and binding arbitration administered by the American Arbitration Association (‘AAA’) pursuant to the arbitration laws in your state and in accordance with this arbitration agreement and the commercial rules of the AAA to the extent that any inconsistency exists between this arbitration and such statutes by any court having jurisdiction and in accordance with the practice of such court.”

Mr. Schultz has not denied that the 2007 contract presented by Olshan bears his signature. Mrs. Schultz did not sign the 2007 contract. Steve Scates, who was Ol-shan’s general manager at the time Olshan performed foundation-repair work for the Schultzes, testified at his deposition that Olshan actually installed 12 pilings in 2007. Scates stated: “When we lift up the house, cracks open. So what happened, they had nine pilings scheduled. They did the work. They had to add more piers to make the customer happy.” Scates further explained: “What the contract calls for is an area defined by these nine piers that we are going to repair.... We’re responsible for the area that we say we’ll fix. And even though we assume going in that it will take nine piers, it may take twenty piers.” Mr. Schultz stated that the condition of his house worsened after Ol-shan completed the work in 2007 and that he did not pay Olshan for the work it performed under the 2007 contract.

In January 2008, in an effort, according to Scates, “to provide customer service and to collect,” Olshan performed additional work on the foundation of the Schultzes’ house. In an undated letter from Scates to Mr. Schultz, Scates described the January 2008 work, stating:

“I wanted to send in writing the specific options I see we have available for your home. As you are aware, this is a finance project and the financing will have to be re-committed if we delay much longer.
“As you remember we returned to your home on January 2, 2008 and performed additional work to insure your CableLoek Piers were correctly installed. It was at this time that we installed 2 additional piers at no cost to you in an attempt to meet your expectation’s [sic] regarding the repair.
“The interior crawlspace was adjusted and due to the nature of that work may require additional adjustment depending on the moisture content and expansive nature of your soil.
“We planned to return with our mason to repair the cracks in your brick facade and have not received a favorable time frame from you regarding this work. We would certainly like to complete our work and satisfy our agreement so your warranty will be instigated and we can get paid.”

It is undisputed that Olshan and the Schultzes did not enter into an additional written agreement for the work Olshan did in 2008. Mr. Schultz stated that the condition of his house again worsened after Olshan’s January 2008 work and that he did not pay Olshan for that work.

The record shows that the materials Ol-shan used in repairing the Schultzes’ foundation in 2006, in 2007, and in 2008 were manufactured in Texas and were shipped to Olshan’s facility in Alabama before being sent to the Schultzes’ house for installation. To pay for the 2007 work, the Schultzes had arranged for financing from Capital One Home Improvement Finance (“Capital One”). The Schultzes were to make payments to Capital One in Georgia and were instructed to contact Capital One’s offices in Utah with any questions regarding their loan.

The Schultzes sued Olshan on July 28, 2008, and, as noted above, Olshan moved to compel arbitration of the Schultzes’ claims. Shortly after Olshan filed its motion, the Schultzes amended their complaint so that Mrs. Schultz stated claims only of negligence and wantonness and no longer joined her husband in his claims of breach of contract and breach of warranty. Presented with the facts stated above, the trial court entered an order on January 22, 2010, stating:

“[T]he Motion to Compel Arbitration as to the plaintiff, Florence B. Schultz, is without merit and is due to be denied. The Court further finds that the Motion to Compel Arbitration as to the plaintiff, Arnold E. Schultz, is granted as to all work performed under the contract dated March 2, 2007, but is denied as to any work performed in 2006 and 2008.”

Olshan appealed.

Standard of Review

“ ‘This Court reviews de novo the denial of a motion to compel arbitration. Parkway Dodge, Inc. v. Yarbrough, 779 So.2d 1205 (Ala.2000). A motion to compel arbitration is analogous to a motion for a summary judgment. TranSouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala.1999). The party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that the contract evidences a transaction affecting interstate commerce. Id. “[A]fter a motion to compel arbitration has been made and supported, the burden is on the non-movant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.” Jim Burke Automotive, Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (Ala.1995) (opinion on application for rehearing).’ ”

Elizabeth Homes, L.L.C. v. Gantt, 882 So.2d 313, 315 (Ala.2003) (quoting Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala.2000)).

Analysis

On appeal, Olshan argues that the trial court erred in denying its motion to compel arbitration as to Mr. Schultz’s claim’s related to Olshan’s 2006 and 2008 foundation-repair work and as to Mrs. Schultz’s negligence and wantonness claims. The trial court’s decision to grant Olshan’s motion as to Mr. Schultz’s claims related to the foundation-repair work Olshan performed in 2007 is not at issue in this appeal.

I. Mr. Schultz’s Claims Related to Work Performed in 2006

Olshan argues that the trial court erred in denying its motion to compel arbitration with respect to Mr. Schultz’s claims arising from the foundation-repair work Olshan performed in 2006 because, it contends, it presented sufficient evidence showing the existence of a contract between it and Mr. Schultz with respect to Olshan’s 2006 repair work, showing that the contract contained a binding arbitration agreement, and showing that the contract evidenced a transaction involving interstate commerce. We agree.

This Court has stated: “[I]n Alabama, predispute arbitration provisions are enforceable so long as the party moving to compel arbitration proves ‘the existence of a contract calling for arbitration and ... that that contract evidences a transaction involving interstate commerce.’” Hereford v. D.R. Horton, Inc., 13 So.3d 375, 379 (Ala.2009) (quoting Title Max of Birmingham, Inc. v. Edwards, 973 So.2d 1050, 1052 (Ala.2007)). It is undisputed that Mr. Schultz signed a contract with Olshan relative to the 2006 repair work and that, in performing that work, Olshan used goods manufactured in Texas. Ol-shan’s employees searched for the 2006 contract but could not locate it. Olshan’s general manager stated that the contract contained an arbitration provision identical or substantially similar to the one in its 2007 contract, the language of which required arbitration of any dispute, controversy, or lawsuit between Olshan and Mr. Schultz arising out of the contract.

Mr. Schultz argues on appeal that this statement is insufficient to establish the terms of the 2006 contract. However, through counsel, Mr. Schultz admitted to the trial court that the 2006 contract contained an arbitration provision. Additionally, Mr. Schultz has not presented any evidence contradicting Olshan’s assertions regarding the contents of the arbitration provision. Mr. Schultz has thus waived this argument. See, e.g., Prattville Mem’l Chapel v. Parker, 10 So.3d 546, 561 (Ala.2008).

Mr. Schultz also argues on appeal that Olshan’s evidence regarding the 2006 contract violates the parol-evidence rule and the best-evidence rule, and he cites Wiggins v. Stapleton Baptist Church, 282 Ala. 255, 210 So.2d 814 (1968) (discussing the circumstances under which parol evidence regarding the contents of a deed is to be admitted), and Rule 1002 and Rule 1004, Ala. R. Evid. (requiring, generally, that original writings must be presented to prove the content of the writings). However, Mr. Schultz did not object to the admission of Olshan’s evidence before the trial court. This Court has stated: “[P]arties ‘may try their case on evidence that would otherwise be inadmissible upon proper objection and ... where evidence violative of the parol evidence rule is admitted without objection, it may be considered and allowed such force and effect as its weight entitles it in construing the agreement of the parties.’ ” Prattville Mem’l Chapel, 10 So.3d at 561 (quoting Alfa Mut. Ins. Co. v. Northington, 561 So.2d 1041, 1044 (Ala.1990)). Because Mr. Schultz did not object to the trial court’s admission of Olshan’s parol evidence regarding the contents of the 2006 agreement, he has waived his arguments regarding that evidence. See Prattville Mem’l Chapel, 10 So.3d at 561 (“Because Memorial Chapel failed to object during trial to the admission of parol evidence regarding the terms of Parker’s agreement with PMG, it now has no basis on which to argue that the evidence should have been excluded. Like Alfa in [Alfa Mutual Insurance Co. v.] Northington, [561 So.2d 1041 (Ala.1990),] Memorial Chapel has waived its arguments regarding parol evidence.”).

The evidence Olshan presented to the trial court is sufficient to establish the existence of a contract between Olshan and Mr. Schultz for the foundation-repair work it performed in 2006 that included an arbitration provision and to establish that that contract evidenced a transaction involving interstate commerce. The parties do not dispute that Mr. Schultz’s claims against Olshan relating to the foundation-repair work Olshan performed in 2006 arise out of the 2006 contract. Accordingly, the burden shifted to Mr. Schultz to present evidence showing that the arbitration provision in the 2006 contract is invalid or that it does not apply to his claims. See Gantt, 882 So.2d at 315. Mr. Schultz has not done so. The trial court, therefore, erred in denying Olshan’s motion to compel arbitration of Mr. Schultz’s claims arising from Olshan’s foundation-repair work performed under the 2006 contract.

II. Mr. Schultz’s Claims Related to Work Performed in 2008

Olshan next argues that the trial court erred in denying its motion as to Mr. Schultz’s claims arising out of the work it did on the Sehultzes’ house in 2008. Specifically, Olshan argues that its work on the Sehultzes’ house in 2008 was done as follow-up or warranty work under the 2007 contract and, therefore, was subject to the arbitration provision in that contract. Ol-shan relies primarily on this Court’s decision in Elizabeth Homes, L.L.C. v. Cato, 968 So.2d 1 (Ala.2007).

In Cato, homeowners who asserted multiple claims against the company that had constructed their house argued that their claims were outside the scope of the arbitration provision in the purchase agreement they had entered into with the company. Specifically, the homeowners asserted that the arbitration provision was not broad enough to encompass their claims that Cato had negligently and wantonly damaged their home when company employees inspected “electrical issues” after construction was completed. The homeowners also asserted that the arbitration provision was not broad enough to encompass their claim that Elizabeth Homes had breached an independent contract by failing to complete certain repairs they had requested. In considering the homeowners’ arguments, this Court stated the following rules of construction:

“In interpreting an arbitration provision, ‘any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbi-trability.’ Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) (emphasis added; footnote omitted). ‘Thus, a motion to compel arbitration should not be denied “unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960).’ Ex parte Col- quitt, 808 So.2d 1018, 1024 (Ala.2001) (emphasis added).”

Cato, 968 So.2d at 7.

Regarding the homeowners’ claims of negligence and wantonness related to work performed by Elizabeth Homes after construction was completed, Elizabeth Homes argued that the damage complained of was done “during the course of repairs made pursuant to a warranty provision found in the purchase agreement” and, therefore, that the homeowners’ claims arose out of the purchase agreement 968 So.2d at 10. This Court agreed, stating:

“[I]t was the [homeowners’] burden to show that the arbitration provision does not apply to these claims. There is no evidence indicating that Elizabeth Homes’ agent, in checking ‘electrical issues,’ was performing work outside the purchase agreement or pursuant to some other contract or agreement. For all that appears from the record, this work was performed pursuant to, and under the terms of, the purchase agreement. We thus conclude that the [homeowners] have not proven that these claims fall outside the scope of the arbitration provision.”

968 So.2d at 10-11.

Regarding the homeowners’ claims related to incomplete repair work, this Court determined that the homeowners claimed “that as they were preparing to move into the house, they presented Elizabeth Homes with a list of problems, defects, or incomplete work in the house,” 968 So.2d at 11, that a contract arose as a result, and that it was breached when Elizabeth Homes failed to complete the repairs. Regarding those claims, this Court stated:

“[The homeowners] have again failed to present any evidence showing that the arbitration provision in the purchase agreement does not apply. There is no evidence indicating that the parties entered into an implied contract outside the purchase agreement or that a separate contract was created based on the ‘punch list.’ Furthermore, these claims all appear to revolve around alleged deficiencies in the construction of the house. Because the duty to construct the house, and the specifications describing that duty, were all imposed by the purchase agreement, we cannot conclude with ‘positive assurance’ that the [homeowners’] claims do not fall under the terms of the purchase agreement or within the scope of its arbitration provision.”

968 So.2d at 11.

Olshan argues, as did Elizabeth Homes, that the work it did on the Schultzes’ house in 2008 was done as “follow-up” to work done under the 2007 contract and pursuant to a warranty under that contract. The 2007 contract provided for a “lifetime warranty” on Olshan’s work. Ol-shan and the Schultzes did not enter into any written agreement for the work Ol-shan performed in 2008. Scates testified that the work Olshan did in 2008 was done “to provide customer service and to collect.” In his letter to Mr. Schultz, the only evidence in the record describing the work Olshan performed in 2008, Scates states that the work was done “to insure that [the] CableLock Piers were correctly installed” and “in an attempt to meet [Mr. Schultz’s] expectation’s [sic] regarding the repair.” Scates subsequently states: “We would certainly like to complete our work and satisfy our agreement so your warranty will be instigated and we can get paid.” (Emphasis added.)

This evidence shows that the work Olshan performed in 2008 was done either pursuant to a warranty granted by the 2007 contract or in an effort to complete the work contemplated by the 2007 contract. Olshan has, therefore, presented evidence supporting its argument that the 2008 foundation-repair work was performed pursuant to the 2007 contract and, as a result, is subject to the arbitration provision in that contract. The burden, therefore, then shifted to Mr. Schultz “ ‘ “to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.’”” See Gantt, 882 So.2d at 315 (quoting Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala.2000), quoting in turn Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (Ala.1995) (opinion on rehearing)).

Mr. Schultz argues that the 2007 contract was not broad enough to include the foundation-repair work Olshan performed in 2008. Specifically, Mr. Schultz contends that the 2007 contract provided that only nine pilings would be installed and, therefore, that only claims related to those nine pilings are subject to the arbitration provision. Mr. Schultz also cites paragraph 10 of the 2007 contract, which states: “The owner may order extra work to be done, not contemplated by this Agreement, in which event a separate Agreement for such work shall be entered into between [Mr. Schultz] and [Olshan], No oral representation made by anyone can change or modify this agreement.” Based on this language, Mr. Schultz argues that, if Ol-shan had wanted him to enter into a written contract with respect to the work it performed in 2008, it could have asked for one.

To support his argument, Mr. Schultz contrasts the language of the 2007 contract with much broader language considered by this Court in Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Kirton, 719 So.2d 201 (Ala.1998). The arbitration provision at issue in that case stated that it applied to “ ‘all controversies which may arise between us, including but not limited to those involving any transaction or the construction, performance, or breach of this or any other agreement between us, whether entered into prior [to], on, or subsequent to the date hereof, shall be determined by arbitration.’ ” 719 So.2d at 202 (emphasis omitted). This Court stated:

“The ... agreement contains a broadly worded arbitration clause that is clear on its face — it covers ‘any’ and ‘all’ controversies that may arise between [the parties] — and, like unambiguous statutes, it leaves no room for interpretation ....
“... [W]e conclude that the language of the arbitration provision in the ... agreement entered into between [the parties] is sufficiently broad to include any and all controversies between them, regardless of the kind of controversy or the date on which the controversy occurred.”

719 So.2d at 203-04. Mr. Schultz argues that because the 2007 contract did not include similarly worded language, it cannot be read as applicable to what Mr. Schultz characterizes as “subsequent transactions.”

We agree that the language in the 2007 contract between Olshan and Mr. Schultz is not so broad as the language presented to this Court in Merrill Lynch. It does not necessarily follow, however, that the 2007 contract is not broad enough to encompass the work done by Olshan on the Schultzes’ house in 2008. The burden is on Mr. Schultz to show that the arbitration provision in the 2007 contract does not apply. However, like the homeowners in Elizabeth Homes, Mr. Schultz has not presented any evidence indicating that the work Olshan performed in 2008 was outside the scope of the 2007 contract or was performed pursuant to some other contract or agreement. Olshan has presented Scates’s testimony that, under the 2007 contract, Olshan was responsible for the area represented by the nine pilings identified in the contract, whether the actual repairs ultimately required the installation of nine pilings or more or fewer. The only evidence before us regarding the work performed in 2008 shows that it was performed “to insure that [the pilings] were correctly installed” and “to complete [Ol-shan’s] work and satisfy” the 2007 contract. For all that appears in the record, therefore, Olshan’s work in 2008 was performed pursuant to, and under the terms of, the 2007 contract. See Cato, 968 So.2d at 10-11. Accordingly, Mr. Schultz has not proven that his claims are outside the scope of the arbitration provision in the 2007 contract, and we cannot say with “‘positive assurance’ that [Mr. Schultz’s] claims do not fall under the terms of the [2007 contract] or within the scope of its arbitration provision.” 968 So.2d at 11. The trial court, therefore, erred in denying Olshan’s motion to compel arbitration of Mr. Schultz’s claims relating to Olshan’s 2008 repair work.

III. Mrs. Schultz’s Negligence and Wantonness Claims

Olshan contends that the trial court erred in denying its motion to compel arbitration of Mrs. Schultz’s negligence and wantonness claims. Olshan raises several arguments to support its contention, including arguments that Mrs. Schultz was an intended third-party beneficiary under both the 2006 contract and the 2007 contract and that Mrs. Schultz is estopped from asserting that she is not bound by the arbitration provision because her claims depend upon the 2006 and 2007 contracts.

It is undisputed that Mrs. Schultz did not sign either the 2006 contract or the 2007 contract with Olshan. In Custom Performance, Inc. v. Dawson, 57 So.3d 90, 97-99 (Ala.2010), this Court recently explained the circumstances under which a nonsignatory to an arbitration agreement may be forced to arbitrate his or her claims:

“ ‘Generally, “a nonsignatory to an arbitration agreement cannot be forced to arbitrate [his] claims.” ’ Edward D. Jones & Co. v. Ventura, 907 So.2d 1035, 1042 (Ala.2005) (quoting Cook’s Pest Control, Inc. v. Boykin, 807 So.2d 524, 526 (Ala.2001)). However, there are exceptions to this general rule.
“A. Third-Party-Benefxciary Status
“A nonsignatory can be bound to an arbitration agreement if ‘the contracting parties intended, upon execution of the contract, to bestow a direct, as opposed to incidental benefit upon the third party.’ Dunning v. New England Life Ins. Co., 890 So.2d 92, 97 (Ala.2003). See also Edwards v. Costner, 979 So.2d 757, 763 (Ala.2007). ‘[I]n order for a person to be a third-party beneficiary of a contract, the contracting parties must have intended to bestow benefits on third parties.’ Locke v. Ozark City Bd. of Educ., 910 So.2d 1247, 1251 (Ala.2005)....
“B. Equitable Estoppel
“ ‘A plaintiff cannot simultaneously claim the benefits of a contract and repudiate its burdens and conditions.’ Southern Energy Homes, Inc. v. Ard, 772 So.2d 1131, 1134 (Ala.2000). Thus, this Court has developed a second exception to the general rule that a nonsig-natory cannot be forced to arbitrate. Regardless of whether a nonsignatory is in fact a third-party beneficiary, the nonsignatory is treated as a third-party beneficiary — and is equitably estopped from avoiding arbitration — when he or she asserts legal claims to enforce rights or obtain benefits that depend on the existence of the contract that contains the arbitration agreement. See, e.g., Capitol Chevrolet & Imports, Inc. v. Grantham, 784 So.2d 285, 289 (Ala.2000) (‘[T]o maintain her claims, [the nonsig-natory plaintiff] must be treated as a third-party beneficiary_ [A] third-party beneficiary is afforded all the rights and benefits, and has imposed upon him or her the burdens, of a contract, including those benefits and burdens associated with arbitration. Ex parte Stamey, 776 So.2d 85 (Ala.2000). Therefore, [the nonsignatory] cannot base her claims on the contract executed between her husband and Capitol Chevrolet, and at the same time seek to avoid the arbitration agreement_’)_
“However, as this Court explained in Cook’s Pest Control Inc. v. Boykin, 807 So.2d 524, 526-27 (Ala.2001), to the extent that the nonsignatory’s claims do not rely on the existence of the contract containing the arbitration provision, the nonsignatory is not estopped from avoiding arbitration:
‘Under the facts of this present case, it appears [the nonsignatory] relies on theories of recovery that do not depend upon the existence of the contract [containing an arbitration provision]. To the extent that she can prove the prima facie elements of her case against [the defendant signatory] without reference to the contract between [the signatories], she is not bound by the arbitration agreement.’
“(Emphasis added.)....
“C. ‘Intertwining Claims’ Theory
“... Under this doctrine, a nonsigna-tory to an arbitration agreement may compel a signatory to arbitrate claims “where arbitrable and nonarbitrable claims are so closely related that the party to a controversy subject to arbitration is equitably estopped to deny the arbitrability of the related claim.’ Conseco Fin. Corp. v. Sharman, 828 So.2d 890, 893 (Ala.2001) (citing Cook’s Pest Control, Inc. v. Boykin, 807 So.2d 524 (Ala.2001)); see also Ex parte Tony’s Towing, Inc., 825 So.2d 96, 97 (Ala.2002) (explaining the reasons for limiting the doctrine of intertwining claims to use by the nonsignatory in compelling arbitration of a signatory’s claims). The doctrine of intertwining claims ‘is not applicable, however, when a signatory attempts to compel a non-signatory third party to arbitrate claims it may have against a signatory.’ Edwards v. Costner, 979 So.2d at 764 (citing Ex parte Tony’s Towing, supra) (emphasis added).”

Olshan contends that Mrs. Schultz is a third-party beneficiary under both the 2006 contract and the 2007 contract. However, even if Mrs. Schultz is a third-party beneficiary under the first exception stated above, she has disavowed any status as a third-party beneficiary under the 2006 and 2007 contracts. Olshan’s argument on this point, therefore, is inapposite. The third exception stated above, the intertwining-claims theory, does not apply because Olshan, the signatory, is attempting to compel Mrs. Schultz, the nonsignatory, to arbitrate her claims against it. As to the second exception, equitable estoppel, Ol-shan argues that Mrs. Schultz’s right to recover on her tort claims depends upon the 2006 and 2007 contracts and those claims are therefore subject to the arbitration provision in the contracts.

The Schultzes’ amended complaint states Mrs. Schultz’s allegations of negligence and wantonness as follows:

“8. On or about August 4, 2006, March 2, 2007, and January 2, 2008, the defendant negligently and/or wantonly performed work on the foundation under the plaintiffs’ residence causing damage to the exterior brick facade and surrounding areas on the exterior of the residence as well as damage to the interior walls, floors, windows, doors and other areas inside the residence.
“9. As a proximate result of the defendant’s negligence and/or wantonness the plaintiffs were caused to suffer the following damages and injuries: (a) decreased value of the plaintiffs’ residence; (b) cost of repairs to the plaintiffs’ residence; (c) mental anguish and emotional distress; and (d) inconvenience.
“10. The plaintiffs claim punitive damages from the defendant as a result of its wanton conduct.”

We must consider whether these claims depend upon the existence of the 2006 and 2007 contracts.

Olshan relies in part on this Court’s decision in Capitol Chevrolet & Imports, Inc. v. Grantham, 784 So.2d 285 (Ala.2000). In that case, Robert Grantham purchased a vehicle from Capitol Chevrolet & Imports, Inc. (“Capitol”); he signed an arbitration agreement with Capitol at the time of the purchase. Shortly thereafter, Mr. Grantham returned the vehicle to Capitol for repairs to, among other things, the door locks on the vehicle. Subsequently, Mrs. Grantham “was injured when someone entered the [vehicle] and robbed her. The Granthams allege[d] that the assailant was able to enter the vehicle because the power locks were malfunctioning.” 784 So.2d at 286.

The Granthams sued Capitol and the manufacturer of the vehicle (hereinafter referred to collectively as “Capitol”), alleging breach of contract, breach of warranty, and negligence related to Capitol’s inspection and repair of the vehicle. Capitol moved to compel arbitration. The trial court denied Capitol’s motion as to Mrs. Grantham and as to Mr. Grantham’s negligence claim and granted the motion as to Mr. Grantham’s remaining claims. Capitol appealed.

On appeal, this Court determined that the arbitration agreement was broad enough to encompass Mr. Grantham’s negligence claim. This Court then considered whether Mrs. Grantham’s claims were subject to the arbitration agreement, stating:

“The undisputed evidence demonstrates that Marcia Grantham was a nonsignatory to the sales contracts executed by Robert Grantham and Capitol Chevrolet. She also denies that she is a third-party beneficiary under her husband’s contract with Capitol Chevrolet. Thus, in her effort to avoid arbitration, Marcia Grantham has effectively conceded that she has no right to recover under the sales contract. In order to maintain her claims, Marcia Grantham must be treated as a third-party beneficiary. It is well established that a third-party beneficiary is afforded all the rights and benefits, and has imposed upon him or her the burdens, of a contract, including those benefits and burdens associated with arbitration. Ex parte Stamey, 776 So.2d 85 (Ala.2000). Therefore, Marcia Grantham cannot base her claims on the contract executed between her husband and Capitol Chevrolet, and at the same time seek to avoid the arbitration agreement. See Infiniti of Mobile, Inc. v. Office, 727 So.2d 42 (Ala.1999); Delta Constr. Corp. v. Gooden, 714 So.2d 975 (Ala.1998); and Ex parte Dyess, 709 So.2d 447 (Ala.1997).”

784 So.2d at 289 (emphasis added). This Court, therefore, determined that Mrs. Grantham’s claims, including her negligence claim, depended upon her husband’s contract with Capitol. As a result, she could not avoid the arbitration agreement.

Mrs. Schultz relies on this Court’s decision in Cook’s Pest Control, Inc. v. Boykin, 807 So.2d 524 (Ala.2001). In that case, Earnestme Allen was bitten more than 300 times by fire ants while she was a patient at Knollwood Park Hospital (“Knollwood”). Knollwood had a contract with Cook’s Pest Control, Inc. (“Cook’s”), whereby Cook’s provided pest-control services to Knoll-wood. That contract contained an arbitration agreement. Through her attorney-in-fact, Allen sued Knollwood and Cook’s, alleging negligence, wantonness, and breach of contract as a third-party beneficiary of the contract between Knollwood and Cook’s. Cook’s moved to compel arbitration. Allen subsequently amended her complaint to abandon the breach-of-contract claim. The trial court denied the motion to compel arbitration. Cook’s appealed.

On appeal, this Court distinguished Grantham, stating:

“Cook’s also relies on our recent opinion in Capitol Chevrolet & Imports, Inc. v. Grantham, 784 So.2d 285 (Ala.2000), for the proposition that a third party’s claims can be so dependent upon a contract that a mere disavowal of third-party-beneficiary status cannot defeat a properly supported motion to compel arbitration. Under the facts of Grant-ham, that was the correct conclusion. However, under the facts of this present case, it appears Allen relies on theories of recovery that do not depend upon the existence of the contract. To the extent that she can prove the prima facie elements of her case against Cook’s without reference to the contract between Cook’s and Knollwood, she is not bound by the arbitration agreement.”

807 So.2d at 526-27 (emphasis added). This Court, therefore, determined that the trial court correctly denied Cook’s motion to compel arbitration to the extent that Allen’s claims did not depend upon the contract between Knollwood and Cook’s.

Based on this Court’s statements that the case was decided “under the facts of this present case” and “[t]o the extent that [Allen could] prove the prima facie elements of her case,” this Court’s decision in Cook’s is limited to the circumstances presented therein. The theories of recovery on which Allen relied are not sufficiently developed in Cook’s so as to permit us to conclude that Allen’s claims are sufficiently similar to Mrs. Schultz’s claims to justify our reliance on Cook’s in this case.

We must consider the facts presented to us in this case to determine whether the tort claims asserted by Mrs. Schultz depend upon the existence of the 2006 and 2007 contracts containing the arbitration provision. See, e.g., Dawson, 57 So.3d at 98 (quoting this Court’s statements in Cook’s and stating: “Accordingly, to determine whether [the plaintiff] is equitably estopped from avoiding the contractual burden of arbitration, we must first consider whether, under the circumstances of this case, any of the legal claims asserted by [the plaintiff] are dependent on the existence of the contract that contains the arbitration agreement.”). Mrs. Schultz alleges that Olshan negligently and wantonly performed work on the foundation of her house in August 2006, March 2007, and January 2008, thus damaging her house. It is undisputed that Olshan’s work on which Mrs. Schultz bases her claims was done pursuant to the 2006 and 2007 contracts. To support her claims, Mrs. Schultz must prove that Olshan owed her a duty. Mrs. Schultz has not alleged, and we do not see how she may prove, the existence of such a duty without reference to the 2006 and 2007 contracts. As in Grantham, therefore, Mrs. Schultz’s claims depend upon the existence of the contracts containing the arbitration provision. Mrs. Schultz cannot simultaneously “base her claims on the contract[s] executed between her husband and [Olshan] and at the same time seek to avoid the arbitration agreement.” Grantham, 784 So.2d at 289.

Mrs. Schultz’s claims, therefore, are subject to the arbitration provision of the 2006 and 2007 contracts. The trial court erred in denying Olshan’s motion to compel arbitration of Mrs. Schultz’s claims.

Conclusion

Insofar as the trial court denied Ol-shan’s motion to compel arbitration, its order is reversed, and the cause is remanded to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

COBB, C.J., and STUART, BOLIN, and MURDOCK, JJ., concur.

      . Because the plaintiff in Dawson had not asserted a breach-of-warranty claim, because "in the abstract” the plaintiff's claims were not "necessarily dependant on the existence of a contract,” and because the defendant had not properly supported its arguments, this Court in Dawson concluded that the plaintiff was not estopped from avoiding arbitration. 57 So.3d at 99.