author: CHANDLER, Justice, COLEMAN, Justice,

text:
    CAPLIN ENTERPRISES, INC. and Check Cashers & More, Inc. d/b/a Zippy Check Advance v. Denise ARRINGTON, Johnny Arrington, Margie Blacldedge, Brenda Bonner, Juanita Davis, Kenneth Davis, Ker’Rita Evans, Larry Evans, Goldie Goodwin, Pansafae Gordon, Ray Charles Gray, Mamie Henry, Carolyn Hinton, Curtis Hinton, Tammy Howard, Kathy Jones, Viola Nash, Lanny Skinner, Kathleen Sterling and James Watts. Caplin Enterprises, Inc. and Check Cashers & More, Inc. d/b/a Zippy Check Advance v. Jerald Ainsworth, Mary Battle, Wilma Carstarfhnur, Kimberly Gaines, Fred Jones, Shonda Love, Archie Moore, Tomecca Pickett, Tammy Pitts, Doris Turner, Boronica Williamson and Shirley Wilson.
    Nos. 2011-CT-01332-SCT, 2011-CT-01932-SCT.
    Supreme Court of Mississippi.
    May 8, 2014.

      George C. Nicols, Madison, attorney for appellants.
    Christopher Michael Falgout, Earl P. Jordan, Jr., attorneys for appellees.
   ON WRIT OF CERTIORARI.

CHANDLER, Justice,

for the Court:

¶ 1. In these consolidated cases, thirty-two plaintiffs who signed delayed-deposit check agreements with Zippy Check Advance agreed that Zippy Check could pursue judicial remedies against them to collect the debt, while any and all of their claims would be relegated to arbitration. The circuit courts found the arbitration agreements to be unconscionable and denied Zippy Check’s motions to compel arbitration. The Court of Appeals affirmed as to one version of the agreement and reversed as to the other. We find that both versions of the arbitration agreement were so one-sided that they were substantively unconscionable and unenforceable. Therefore, we affirm in part and reverse in part the judgment of the Court of Appeals and affirm the judgments of the Circuit Court of Clarke County and the Circuit Court of Newton County.

FACTS

¶ 2. In 2010, the plaintiffs initiated two lawsuits against Zippy Check, a check-cashing business, alleging fraudulent misrepresentation and predatory lending, inter alia. One suit was filed in the Circuit Court of Clarke County; the other was filed in the Circuit Court of Newton County. Each plaintiff had signed one of two versions of a delayed-deposit agreement with Zippy Check; each agreement contained different arbitration provisions. Zippy Check filed a motion to compel arbitration in each case.

¶ 3. Eight of the plaintiffs signed the older version of the delayed-deposit agreement. The front of this contract provided the amount financed, finance charge, annual percentage rate (described as “the cost of your fee as a yearly rate”), and the total owed. The reverse side of the contract consisted of several unnumbered paragraphs in fine print, including the following language:

Should you default under this Agreement, the Company may, at its option, exercise any one of the following remedies:
2. If payment is not made after a written demand, the Company may go to court and get a judgment against you for the then unpaid amount of your obligation to the Company. In the event judgment is entered in the Company’s favor, the Company may seek to collect this judgment through all judicial means necessary including attaching your nonexempt property, or garnishing your wages;
4. If this matter is placed with an attorney for collection of any and all monies due and owing the Company, all reasonable and necessary costs and expenses of collection, specifically including, but not limited to reasonable attorney fees and other damages as set forth by the court, shall be paid by you.
Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association (“AAA”) and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
The Company shall not be liable to you for any indirect, special or consequential damages arising out of or related to this contract, even if the Company has been advised of the possibility of such damages. In no event shall the Company’s liability, if any, exceed [t]he price paid by you for the services rendered hereunder. Where disclaimer, exclusion or limitation of liability for consequential or incidental damages is limited by law, our liability is limited to the greatest extent permitted by law.

Thus, the contract provided that Zippy Check could pursue “all” judicial remedies to collect on the debt, including attaching property and garnishing wages, as well as collecting “attorney fees and other damages as set forth by the court,” but the plaintiffs had to bring all of their claims to arbitration. Additionally, the contract limited Zippy Check’s liability to the “price paid by [the plaintiffs] for the services rendered.”

¶ 4. Twenty-four of the plaintiffs signed the “new” version of the contract. That contract provided:

ARBITRATION PROVISION: Any and all disputes or agreements between the parties arising out of this Agreement or any prior agreement between them (except the Lender’s rights to enforce the Borrower[’s] payment obligations in the event of default by judicial or other process) shall be resolved, upon the election of you or us, by binding arbitration and in accordance with rules of the American Arbitration Association as presently published and existing. The parties agree to be bound by the decision of the arbitrator(s). The arbitration proceeding shall be a condition precedent to any court proceeding. Notwithstanding the applicability of any other law to any other provision of this Agreement, the Federal Arbitration Act, 9 U.S.C. Section 10 shall control the construction, interpretation, and application of the paragraph. Any issue as to whether the Agreement is subject to arbitration shall be determined by the arbitrator.

Like the old version of the contract, the new version allowed Zippy Check to pursue judicial remedies, while relegating any and all of the plaintiffs’ claims to arbitration.

¶ 5. Finding both arbitration provisions unconscionable, the Clarke County Circuit Court denied Zippy Check’s motion to compel arbitration. The Newton County Circuit Court adopted those findings and also denied arbitration. Zippy Check appealed the denial of arbitration in both cases, and the cases were consolidated on appeal. The Court of Appeals reversed as to the twenty-four plaintiffs who had signed the newer agreement. Caplin Enters., Inc. v. Arrington, 2011-CA-01332-COA, 145 So.3d 675, 684-86, 2013 WL 1878879, **8-9 (¶¶ 41-42) (Miss.Ct.App. May 7, 2013). However, the Court of Appeals affirmed the circuit courts’ denial of arbitration as to the eight plaintiffs who had signed the older agreement, finding that the arbitration provision in the older agreement was procedurally unconscionable. Id. at 683-84, 686-87, 2013 WL 1878879, at **7, 10 (¶¶ 29, 42). The Court of Appeals also found that both versions of the agreement amounted to contracts of adhesion. Id. at 682-83, 683-84, 2013 WL 1878879, at **6, 7 (¶¶ 27, 32). We granted Zippy Check’s petition for writ of certiora-ri.

DISCUSSION

¶ 6. We begin by addressing a procedural matter attendant to Zippy Check’s petition for certiorari. Zippy Check sought certiorari review of the decision of the Court of Appeals on the older version of the contract. Nonetheless, having granted certiorari, this Court may review the Court of Appeals decision on the new version of the contract as well. Mississippi Rule of Appellate Procedure 17 states that, by granting a petition for writ of certiorari, this Court may “review any decision of the Court of Appeals.” M.R.A.P. 17(a); see also M.R.A.P. 17(h) (“The Supreme Court’s review on the grant of cer-tiorari shall be conducted on the record and briefs previously filed in the Court of Appeals....”); Guice v. State, 952 So.2d 129, 133 (Miss.2007) (“[W]e have the authority to address all issues raised before the Court of Appeals and addressed by that court....”); Lester v. State, 744 So.2d 757, 758 (Miss.1999) (addressing as plain error a matter not raised in the certiorari petition). We proceed to review the entire decision of the Court of Appeals.

¶ 7. This Court applies de novo review to the grant or denial of a motion to compel arbitration. Sawyers v. Herrin-Gear Chevrolet Co., Inc., 26 So.3d 1026, 1034 (Miss.2010) (citing East Ford, Inc. v. Taylor, 826 So.2d 709, 713 (Miss.2002)). We have adopted the federal policy favoring arbitration, under which “any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.” Sawyers v. Herrin-Gear Chevrolet Co., Inc., 26 So.3d 1026,1034 (Miss.2010) (quoting Moses H. Cone Mem’l Hosp. v. Mercu ry Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)).

¶ 8. We apply a two-pronged test to determine whether arbitration should be enforced under the Federal Arbitration Act. Rogers-Dabbs Chevrolet-Hummer, Inc. v. Blakeney, 950 So.2d 170, 173 (Miss.2007) (citing Taylor, 826 So.2d at 713). Under the first prong, we determine “whether the parties have agreed to arbitrate the dispute.” Blakeney, 950 So.2d at 173 (citing Taylor, 826 So.2d at 713). This prong has two aspects: “(1) whether there is a valid arbitration agreement and (2) whether the parties’ dispute is within the scope of the arbitration agreement.” Blakeney, 950 So.2d at 173 (citing Taylor, 826 So.2d at 713). If we determine that the parties did not agree to arbitrate the dispute at issue, the analysis is at an end. But if we conclude that the parties did agree to arbitrate, we will address the second prong, which is “whether legal constraints external to the parties’ agreement foreclosed arbitration of those claims.” Blakeney, 950 So.2d at 173 (quoting Taylor, 826 So.2d at 713).

I. Whether the parties agreed to arbitrate the dispute.

¶ 9. To determine if the arbitration agreement is valid, we apply contract law to analyze whether a valid contract exists between the parties. Adams Cmty. Care Ctr., LLC v. Reed, 37 So.3d 1155, 1158 (Miss.2010) (citing Grenada Living Ctr., LLC v. Coleman, 961 So.2d 33, 36-37 (Miss.2007)). “The elements of a contract are ‘(1) two or more contracting parties, (2) consideration, (3) an agreement that is sufficiently definite, (4) parties with legal capacity to make a contract, (5) mutual assent, and (6) no legal prohibition precluding contract formation.’ ” Reed, 37 So.3d at 1158 (quoting Coleman, 961 So.2d at 37). The plaintiffs focus on the alleged procedural and substantive unconscionability of the arbitration clauses; they do not argue that the contract itself was invalid. Each agreement involved two or more contracting parties; consideration consisted of a cash amount in exchange for Zippy Check’s cash-advance services; the agreement was sufficiently definite; and there was no legal prohibition precluding the contract. The parties have not presented any evidence that they lacked the legal capacity to contract or that mutual assent was lacking. Therefore, we find that each element of a contract is present.

¶ 10. Second, we must determine whether the disputed issue is within the scope of the arbitration agreement. Blakeney, 950 So.2d at 173 (citing Taylor, 826 So.2d at 713 (¶ 9)). The arbitration clause provided that “[a]ny controversy or claim arising out of or relating to” the contract shall be settled by arbitration. The plaintiffs alleged that Zippy Check engaged in predatory lending; made fraudulent misrepresentations concerning the terms of the transactions and in their collection attempts; breached the covenant of good faith and fair dealing; was negligent in handling the plaintiffs’ accounts; caused the plaintiffs to suffer emotional distress and mental anguish; and was negligent in hiring, training, and supervising employees. The plaintiffs’ claims against Zippy Check arise out of or relate to the Zippy Check delayed-deposit agreement, and the dispute is within the scope of the arbitration agreement. We find that the parties agreed to arbitrate the dispute.

II. Whether legal constraints external to the parties’ agreement foreclosed arbitration.

¶ 11. The second prong of the test for whether arbitration should be enforced is to determine “whether legal constraints external to the parties’ agreement foreclosed arbitration of those claims.” Blakeney, 950 So.2d at 173 (citing Taylor, 826 So.2d at 713). Under the second prong, we consider whether “defenses available under state contract law such as fraud, duress, and unconscionability” may invalidate the arbitration agreement. Taylor, 826 So.2d at 713 (citing Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 686, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996)). The only defense at issue is un-conscionability, which “has been defined as ‘an absence of meaningful choice on the part of one of the parties, together with contract terms [that] are unreasonably favorable to the other party.’ ” Taylor, 826 So.2d at 715 (quoting Entergy Miss., Inc. v. Burdette Gin Co., 726 So.2d 1202, 1207 (Miss.1998)).

¶ 12. Two strains of uncon-scionability are recognized — procedural and substantive. Taylor, 826 So.2d at 714. Procedural unconscionability can be shown by: (1) lack of knowledge; (2) lack of voluntariness; (3) inconspicuous print; (4) the use of complex, legalistic language; (5) disparity in sophistication or bargaining power of the parties; and/or (6) lack of opportunity to study the contract and inquire about the terms. MS Credit Ctr., Inc. v. Horton, 926 So.2d 167, 177 (Miss.2006) (quoting Taylor, 826 So.2d at 714). “Substantive unconscionability may be proven by showing the terms of the arbitration agreement to be oppressive.” Taylor, 826 So.2d at 714 (citing York v. Georgia-Pac. Corp., 585 F.Supp. 1265, 1278 (N.D.Miss.1984)).

¶ 13. Our analysis focuses on the substantive unconscionability of the arbitration agreements. A contract is substantively unconscionable if there is “an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.” Entergy Miss., Inc. v. Burdette Gin Co., 726 So.2d 1202, 1207 (Miss.1998) (quoting Bank of Indiana, Nat’l Ass’n v. Holyfield, 476 F.Supp. 104, 109 (S.D.Miss.1979)). To determine whether a contract is substantively unconscionable, “we look within the four corners of an agreement in order to discover any abuses relating to the specific terms which violate the expectations of, or cause gross disparity between, the contracting parties.” Covenant Health & Rehab, of Picayune, LP v. Estate of Moulds ex rel. Braddock, 14 So.3d 695, 699 (Miss.2009) (quoting Vicksburg Partners, L.P. v. Stephens, 911 So.2d 507, 521 (Miss.2005) (overruled on other grounds)).

¶ 14. “Substantive unconsciona-bility is proven by oppressive contract terms such that ‘there is a one-sided agreement whereby one party is deprived of all the benefits of the agreement or left without a remedy for another party’s nonperformance or breach.’ ” Estate of Moulds, 14 So.3d at 699-700 (quoting Holyfield, 476 F.Supp. at 110). It is not necessary that arbitration agreements contain “mutual promises that give the parties identical rights and obligations, or that the parties must be bound in the exact same manner.” 21 Williston on Contracts § 57:15 (4th ed.2013) (quoting Iwen v. U.S. West Direct, a Div. of U.S. West Mktg. Res. Group, Inc., 293 Mont. 512, 522, 977 P.2d 989, 996 (Mont.1999)). But “disparities in the rights of the contracting parties must not be so one-sided and unreasonably favorable to the drafter ... that the agreement becomes unconscionable and oppressive.” 21 Williston on Contracts § 57:15 (4th ed.2013) (quoting Iwen, 977 P.2d at 996). Under Mississippi Code Section 75-2-302, which has been applied to contracts other than for sale of goods, when a contract is found unconscionable, this Court “may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.” Miss.Code Ann. § 75-2-302 (Rev.2002); Estate of Moulds, 14 So.3d at 700.

¶ 15. The contracts at issue, which Zippy Check drafted unilaterally and presented to its customers on a take-it-or-leave-it basis, were contracts of adhesion. A contract of adhesion has been described as one that is “drafted unilaterally by the dominant party and then presented on a ‘take-it-or-leave-it’ basis to the weaker party who has no real opportunity to bargain about its terms.” Taylor, 826 So.2d at 716 (quoting Holyfield, 476 F.Supp. at 108). These contracts “are usually prepared in printed form, and frequently at least some of their provisions are in extremely small print.” Taylor, 826 So.2d at 716 (quoting Holyfield, 476 F.Supp. at 108). Contracts of adhesion are not automatically unconscionable. Estate of Moulds, 14 So.3d at 701. Nonetheless, we have held that a finding that a contract is adhesive “makes an argument targeting a provision for a substantive un-conscionability review easier to prove.” Id.

¶ 16. This Court found a contract of adhesion to be substantively unconscionable in Pitts v. Watkins, 905 So.2d 553 (Miss.2005). Michael and Stephanie Pitts contracted with Charles Watkins to perform a home inspection on a residence the Pittses were interested in purchasing. Id. at 554. After Watkins performed the inspection, they purchased the home. Id. Soon after, the Pittses noticed problems with the home that should have been identified by the inspector and sued Watkins. Id. at 554-55. The trial court granted Watkins’s motion for summary judgment on the basis of an arbitration clause in the home-inspection contract. Id. at 554. The arbitration clause stated “Any dispute concerning the interpretation of this Agreement or arising from the Inspection and Report (unless based on payment of fee) shall be resolved by ... arbitration.” Id. at 556. The arbitration clause forced the Pittses to arbitrate their claims against Watkins, while permitting Watkins to sue the Pittses in court if they breached the contract by failing to pay the fee. Id. The contract also provided that if the Pittses breached the contract by failing to pay the fee, they would be responsible for administration costs, attorney’s fees, and the cost of litigation. Id. This Court found the arbitration clause, which allowed Watkins to pursue a breach by the Pittses in court while requiring the Pittses to arbitrate any breach by Watkins, to be “clearly one-sided, oppressive, and therefore, substantively unconscionable.” Id.

¶ 17. The Court also found the contract’s limitation-of-liability clause to be substantively unconscionable. Id. This clause limited Watkins’s liability to the amount paid for the inspection, $265. Id. We held that limitation-of-liability clauses are to be given strict scrutiny and will not be enforced “unless the limitation is fairly and honestly negotiated and understood by both parties.” Id. (quoting Royer Homes of Miss., Inc. v. Chandeleur Homes, Inc., 857 So.2d 748, 754 (Miss.2003)). The Court quoted Lucier v. Williams, 366 NJ.Super. 485, 493, 841 A.2d 907, 912 (2004), which found a limitation-of-liability clause in a home-inspection contract to be unconscionable for these reasons:

(1) the contract, prepared by the home inspector, is one of adhesion; (2) the parties, one a consumer and the other a professional expert, have grossly unequal bargaining status, and (3) the substance of the provision eviscerates the contract and its fundamental purpose because the potential damages level is so nominal that it has the practical effect of avoiding almost all responsibility for the professional’s negligence.

Pitts, 905 So.2d at 557. We concluded that the limitation-of-liability clause, which limited Watkins’s liability to $265 while leaving the Pittses with no redress for their claimed damages of $80,000 to $40,000, was substantively unconscionable. Id. at 556. The Court also found that the contract’s attempt to shorten the statute of limitations was unconscionable. Id. at 558. We held that arbitration clause and the limitation-of-liability clause, taken together, deprived the Pittses of a meaningful remedy. Id.

¶ 18. In Estate of Moulds, we applied Pitts to find an arbitration clause in a nursing-home-admission agreement to be substantively unconscionable. Estate of Moulds, 14 So.Bd at 703. The Court deemed the contract to be one of adhesion because it was a preprinted contract presented to the weaker party on a take-it-or-leave-it basis. Id. at 701. The arbitration clause required the patient and responsible party to submit any claims to a grievance procedure but allowed the nursing-home facility to pursue its claims in court. Id. at 702 n. 6. We deemed the clause unconscionable, noting that, in an earlier case, we had found that, under Pitts, this very clause was unconscionable because it was one-sided and oppressive. Id. at 703 (citing Covenant Health Rehab, of Picayune, LP v. Brown, 949 So.2d 732, 739-41 (Miss.2007) (overruled on other grounds)). In the earlier case, we also had relied on Pitts to find that a clause requiring the plaintiff to pay all costs of collection, including attorney’s fees and litigation costs, to be so one-sided and oppressive as to be unconscionable. Brown, 949 So.2d at 739.

¶ 19. Applying this precedent, it is beyond question that the old version of the arbitration clause contained in the adhesive delayed-deposit check agreements was so one-sided as to be oppressive and substantively unconscionable. As in Pitts, the arbitration clause was oppressive because it forced the plaintiffs to arbitrate their claims, while permitting Zippy Check to pursue remedies for the plaintiffs’ breach in court. Additionally, the contract foisted upon the plaintiffs Zippy Check’s cost of hiring an attorney for collection, including “other damages” ordered by the court. A similar clause was found to be unconscionable in Pitts. That contract also attempted to limit Zippy Check’s liability to the finance charge each plaintiff had paid in exchange for the cash. While not all the contracts are in the record, the ones included show finance charges ranging from $65.85 to $72. As in Pitts, Zippy Check’s contractually-limited liability is “so nominal that it has the practical effect of avoiding almost all responsibility” for a breach by Zippy Check, and is unconscionable. The arbitration clause and the limitation-of-liability clause, taken together, effectively deny the plaintiffs an adequate remedy against Zippy Check. The arbitration clause is clearly oppressive and substantively unconscionable. And the arbitration clause in the new version of the contract, which permitted Zippy Check to pursue judicial remedies while relegating the plaintiffs’ claims to arbitration, is also clearly oppressive and substantively unconscionable pursuant to Pitts.

¶20. The plaintiffs obviously were so desperate for immediate funds that they signed agreements for relatively small amounts of cash for a fee that, if characterized as interest, would be usurious. They simultaneously agreed that Zippy Check could institute judicial debt-collection proceedings against them in the event they defaulted on their payment obligations. The signers of the old version of the contract also agreed that they would pay Zippy Check’s attorney’s fees and other damages, and that Zippy Check’s liability would be limited to the finance charge. The preprinted contracts were offered on a take-it-or-leave-it basis and were contracts of adhesion. While an arbitration agreement need not contain identical obligations, under the particular facts of this case, the arbitration agreements were unreasonably favorable to Zippy Check, oppressive, unconscionable, and unenforceable. Therefore, we affirm in part and reverse in part the judgment of the Court of Appeals and affirm the judgments of the circuit courts.

¶ 21. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART. THE JUDGMENTS OF THE CIRCUIT COURT OF CLARKE COUNTY AND THE CIRCUIT COURT OF NEWTON COUNTY ARE AFFIRMED.

WALLER, C.J., RANDOLPH, P.J., LAMAR, KITCHENS, PIERCE AND KING, JJ„ CONCUR. COLEMAN, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J.

COLEMAN, Justice,

dissenting:

¶ 22. Applying the two-pronged inquiry for determining whether arbitration should be enforced, under the Court’s policy favoring arbitration, I would hold that the arbitration provisions in both contracts are valid and enforceable. Therefore, I respectfully dissent.

¶ 23. The Court of Appeals held that the more extensive arbitration provision in the newer contract was sufficient and that arbitration should be enforced as to the twenty-four plaintiffs who signed that contract. Caplin Enters., Inc. v. Arrington, 2011-CA-01832-COA, 145 So.3d 675, 685-87, 2013 WL 1878879, **9-10 (¶¶ 41-42) (Miss.Ct.App. May 7, 2013). Because I agree with the Court of Appeals about the arbitration clause in the newer contract, and because the parties did not seek review of that decision, my discussion is limited to the older version of the contract.

¶ 24. Mississippi follows the federal policy favoring arbitration, and “any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.” Sawyers v. Herrin-Gear Chevrolet Co., Inc., 26 So.3d 1026, 1034 (¶ 20) (Miss.2010) (quoting 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)). As the majority explained, we apply a two-pronged test to determine whether arbitration should be enforced. I agree with the majority that the Zippy Check agreements were valid contracts and the claims are within the scope of the arbitration agreements. Thus, the parties agreed to arbitrate the dispute, and the first prong of the test is satisfied. I disagree with the majority, however, as to the second prong — whether legal constraints external to the parties’ agreement foreclosed arbitration.

¶ 25. As the majority stated, uncon-scionability is the only defense at issue. “Unconscionability has been defined as ‘an absence of meaningful choice on the part of one of the parties, together with contract terms [that] are unreasonably favorable to the other party.’ ” East Ford, Inc. v. Taylor, 826 So.2d 709, 715 (¶ 17) (Miss.2002) (quoting Entergy Miss., Inc. v. Burdette Gin Co., 726 So.2d 1202, 1207 (¶ 11) (Miss.l998)). Two types of unconscionability have been recognized by the eourts-procedural and substantive. Taylor, 826 So.2d at 714 (¶ 13).

A. Procedural Unconscionability

¶ 26. Procedural unconscionability can be shown by: (1) lack of knowledge; (2) lack of voluntariness; (3) inconspicuous print; (4) the use of complex, legalistic language; (5) disparity in sophistication or bargaining power of the parties; and/or (6) lack of opportunity to study the contract and inquire about the terms. MS Credit Ctr., Inc. v. Horton, 926 So.2d 167, 177 (¶ 30) (Miss.2006) (quoting Taylor, 826 So.2d at 714 (¶ 13)). The last three factors are dispensed with easily. The arbitration clause clearly states that any claims arising out of or relating to the agreement are subject to arbitration, and it does not contain complex legalistic language. In addition, no argument has been made regarding disparity in sophistication or bargaining power of the parties or lack of opportunity to read the contract. In fact, the check manager testified that she gives customers an opportunity to review the contract and ask questions.

¶ 27. The only evidence presented by the plaintiffs pertaining to the lack of knowledge factor is the lack of knowledge of the check manager for Zippy Check, not the lack of knowledge of the plaintiffs. Although the check manager’s knowledge is not at issue, she indicated an understanding of the arbitration clause. She said that, if customers asked her what the arbitration provision meant, she would explain that it meant they were waiving their right to a jury trial. Regardless, the check manager did not have a duty to explain all of the contract terms to the plaintiffs. Horton, 926 So.2d at 177 (¶ 32) (“[T]his Court has never held that one party to an arm’s-length contract has an inherent duty to explain its terms to the other.”). It is well established that individuals “have an inherent duty to read the terms of a contract prior to signing[.]” Id. at 177 (¶ 31). “[A] party may neither neglect to become familiar with the terms and conditions and then later complain of lack of knowledge, nor avoid a written contract merely because he or she failed to read it or have someone else read and explain it.” Id. There is no evidence of lack of knowledge here.

¶ 28. Regarding the inconspicious print factor, the Court of Appeals found that the arbitration provision in the older agreement was in a “much smaller font” than the transactional terms. Caplin, 145 So.3d at 682-83, 2013 WL 1878879, ⅜6 (¶ 28). Although the majority does not address it, I will discuss the font size issue because the Court of Appeals’ language regarding the “much smaller font” is the only issue actually raised in Zippy Check’s petition for writ of certiorari. Zippy Check argues that the difference in font sizes does not render the arbitration provision procedurally unconscionable, because it does not rise to the level of the significant difference at issue in East Ford v. Taylor, in which the Court held that an arbitration clause was procedurally unconscionable where it was “less than one-third the size of many other terms in the document.” Taylor, 826 So.2d at 716-17 (¶ 21).

¶ 29. The font for the additional terms on the back of the Zippy Check agreement is indeed smaller than the font used for the transactional terms on the front. .However, the arbitration provision is formatted identically to all of the “additional” terms, and the arbitration clause is not hidden in a smaller font among the other terms. There is no requirement that arbitration provisions be set off or distinguished more than other provisions. In fact, the Federal Arbitration Act prohibits putting additional requirements on arbitration provisions; rather, arbitration provisions must be treated equally with other contractual terms. See Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 687, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996). We have written:

The United States Supreme Court— whose decisions the justices on this Court are bound by oath to follow — has clearly declared that Section 2 of the FAA prohibits courts (including this Court) from singling out arbitration provisions for special treatment. That is to say, it prevents courts from placing more stringent requirements for the enforcement of arbitration provisions than for other provisions in a contract. Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 687,116 S.Ct. 1652,134 L.Ed.2d 902 (1996).

Horton, 926 So.2d at 173-74 (¶ 16). An arbitration clause is sufficient if it is “at least as open and obvious as other contractual provisions.” Id. at 178 (¶ 34). Such is the case here, and the arbitration provision is not so inconspicuous as to be procedurally unconscionable.

¶ 30. The final factor is lack of volun-tariness. The Court has said that “[l]ack of voluntariness is demonstrated in contracts of adhesion,” which often arise “when there is a great imbalance in the parties’ relative bargaining power” or where the contract is “presented to a party on a take it or leave it basis.” Taylor, 826 So.2d at 715-16 (¶¶ 18-19) (quoting Entergy Miss., Inc., 726 So.2d at 1207-1208 (¶¶ 12, 15) (internal citations omitted)). The majority finds that both contracts at issue amounted to contracts of adhesion. (Maj.Op.15.) However, contracts of adhesion are not automatically void. See Taylor, 826 So.2d at 716 (¶ 20) (quoting Hughes Training, Inc. v. Cook, 254 F.3d 588, 593 (5th Cir.2001)).

The fact that an arbitration agreement is included in a contract of adhesion renders the agreement procedurally unconscionable only where the stronger party’s terms are unnegotiable and “the weaker party is prevented by market factors, timing[,] or other pressures from being able to contract with another party on more favorable terms or to refrain from contracting at all.”

Taylor, 826 So.2d at 716 (¶20) (quoting Entergy Miss., Inc., 726 So.2d at 1207(12) (emphasis added)). Accordingly, for an arbitration provision to be rendered procedurally unconscionable as part of a contract of adhesion, two factors must be present: (1) the stronger party’s terms are unnegotiable, and (2) the weaker party is prevented from contracting with another party by market factors, timing, or other pressures.

¶ 31. The terms in Zippy Check’s pre-printed, form agreement are not negotiable. The check manager testified that if customers did not agree to the terms, she would not be able to loan them money. Further, the argument can be made that there is an imbalance in the bargaining power of parties to a delayed-deposit agreement, as the party seeking cash advance services has a need for immediate cash that is not otherwise available. However, the customers have the option of choosing from numerous entities that provide the same service. Therefore, while the terms of the preprinted, form agreement may not be negotiable on an individual basis, customers certainly have the ability to chose another check cashing business whose terms may be more favorable. The plaintiffs presented no evidence that they were “prevented by market factors, timing!,] or other pressures from being able to contract with another party on more favorable terms or to refrain from contracting at all.” Taylor, 826 So.2d at 716 (¶20). Therefore, I do not find the arbitration provision to be procedurally unconscionable as part of a contract of adhesion.

B. Substantive Unconscionability

¶ 32. Because the Court of Appeals agreed with the trial court that the arbitration provision in the older agreement was procedurally unconscionable, it did not address whether that agreement was substantively unconscionable, nor did the parties raise substantive unconscionability in their petition. However, the majority’s analysis is based solely on substantive unconscionability. (Maj.Op.13.) The arbitration provision used is a standard arbitration clause, and the requirement to arbitrate is not in itself unconscionable. However, the plaintiffs claim — and the majority accepts — that the agreement unfairly allowed Zippy Check to pursue judicial remedies for debt collection while limiting the plaintiffs to arbitration for all claims.

¶ 33. The clause providing that Zippy Check could pursue judicial remedies for debt collection was separate from the arbitration clause, which required “[a]ny controversy or claim arising out of or relating to this contract” to be settled by arbitration. Construing the terms together, it is clear that Zippy Check could use judicial remedies only for debt collection, not for all claims against the plaintiffs. Should any claim or controversy arise, other than debt collection, Zippy Check would be limited to arbitration. A similar situation was present in Sawyers v. Herrin-Gear Chevrolet, where a contract for the purchase of a vehicle required arbitration for any claims related to the purchase of the vehicle, “[e]xcept for an action by [djealer to obtain possession and/or replevin of the [vjehicle.” Sawyers, 26 So.3d at 1029 (¶ 5). In that case the Court wrote:

The arbitration agreement does permit Herrin-Gear to bring an action for possession and/or replevin of the vehicle purchased by Sawyers in a court of law rather than resolving the matter by binding arbitration. However, mutuality of obligation is not required for a contract to be enforceable. Murphy v. Amsouth Bank, 269 F.Supp.2d 749, 752 (S.D.Miss.2003). See also McKenzie Check Advance of Miss., LLC v. Hardy, 866 So.2d 446, 453 (Miss.2004) (“[p]ursu-ant to Mississippi law, mutuality of obligation is not required for an arbitration agreement to be enforceable ... ”). Also, as discussed by the trial court, “[i]t is common for such provisions to be contained in an arbitration agreement where there is collateral or a security interest at stake, because an arbitrator would not have authority to grant certain relief that only courts could give.” As such, the provision whereby a limited exception to arbitration is given only to Herrin-Gear to obtain possession of the subject vehicle by replevin in the event of Sawyer’s default under the terms of the sales contract does not render the arbitration agreement substantively unconscionable.

Sawyers, 26 So.3d at 1035 (¶ 22). Likewise, an exception to arbitration for debt collection should not render the agreement substantively unconscionable.

¶ 34. In Covenant Health & Rehabilitation of Picayune, LP v. Estate of Moulds ex rel. Braddock, 14 So.3d 695 (Miss.2009), the Court wrote:

Substantive unconscionability is proven by oppressive contract terms such that “there is a one-sided agreement whereby one party is deprived of all the benefits of the agreement or left without a remedy for another party’s nonperformance or breach....” [Bank of Indiana v. Holyfield, 476 F.Supp. 104, 110 (S.D.Miss.1979) ]. One example of a one-sided agreement is one that allows one party to go to court, but restricts the other to arbitration. See Pridgen v. Green Tree Fin. Servicing Corp., 88 F.Supp.2d 655, 658 (S.D.Miss.2000).

Estate of Moulds, 14 So.3d at 699-700 (¶ 12). The agreement at issue is not so one-sided that the plaintiffs are left without a remedy. They can take their claims to arbitration. Notably, although Moulds cited Pridgen v. Green Tree for the premise that an agreement permitting one party to go to court but restricting the other party to arbitration is a one-sided agreement, the Pridgen Court upheld the arbitration agreement in that case, writing:

... Green Tree argues that such one-sidedness has been held to be an insufficient basis upon which to find the arbitration clause unconscionable, citing Harris v. Green Tree Fin. Corp., 183 F.3d 173 (3rd Cir.1999) and Green Tree Fin. Corp. of Ala. v. Vintson, [753 So.2d 497 (Ala.1999).] In Harris, addressing the very arbitration clause that is involved in the case sub justice, the United States Court of Appeals for the Third Circuit held that, under Pennsylvania law, mutuality of obligation was not required for the arbitration clause to be enforceable, as long as the underlying contract was supported by consideration. Harris, 183 F.3d at 179-81. That is, the fact that judicial remedies were not available to both parties did not make the clause unconscionable or unenforceable. The Third Circuit also noted that this holding comported with the majority opinion of other federal courts that had addressed the issue. Id. at 180 (citing Doctor’s Assocs., Inc. v. Distajo, 66 F.3d 438 (2d Cir.1995); Wilson Elec. Contractors, Inc. v. Minnotte Contracting Corp., 878 F.2d 167 (6th Cir.1989); Dorsey v. H.C.P. Sales, Inc., 46 F.Supp.2d 804 (N.D.Ill.1999); Randolph v. Green Tree Fin. Corp., 991 F.Supp. 1410 (M.D.Ala.1997)).
The United States Court of Appeals for the Fifth Circuit has not directly addressed this issue. However, Mississippi law is in accord with the law of Pennsylvania, upon which the Third Circuit based its decision in Harris, in that mutuality of obligation is not required for a contract to be enforceable. Clinton Serv. Co. v. Thornton, 233 Miss. 1, 100 So.2d 863, 866 (1958). Therefore, the arbitration clause is not unenforceable solely because it is one-sided. Moreover, even though the Court could still consider the one-sidedness as a factor in determining whether the clause was substantively unconscionable, Plaintiffs only assertion that the clause is substantively unconscionable is that it is one-sided. As stated above, however, the majority opinion seems to be that such one-sidedness is not, alone, sufficient to find the clause unconscionable. The Court finds persuasive the reasoning of the Third Circuit in Harris, as well as the cases cited therein. Accordingly, the Court finds that the arbitration clause is not unconscionable, especially in light of the federal policy favoring arbitration. The Court thus finds that the motion of Green Tree to dismiss and compel arbitration should be granted.

Pridgen, 88 F.Supp.2d at 658-59 (footnote omitted). Also worth noting is the fact that the issue is well-settled in Mississippi federal courts. In Murphy v. Amsouth Bank, 269 F.Supp.2d 749 (S.D.Miss.2003), the Southern District Court wrote:

Regarding the mutuality issue, plaintiffs argue because the arbitration agreement mandates arbitration of any claim they might choose to assert, while reserving unto AmSouth the right to utilize the remedies of foreclosure, selfhelp repossession^] and replevin in a court, the agreement lacks mutuality of obligation and is for that reason unconscionable and unenforceable. This court has previously rejected this identical argument. See First Family Financial Services, Inc. v. Fairley, 173 F.Supp.2d 565, 572 (S.D.Miss.2001) (holding that “ ‘mutuality of obligation is not required for a contract to be enforceable,’ and an ‘arbitration clause is not unenforceable solely because it is one-sided.’ ”) (quoting Pridgen v. Green Tree Financial Semcing Corp., 88 F.Supp.2d 655, 659 (S.D.Miss.2000)); see also Raesly v. Grand Housing, Inc., 105 F.Supp.2d 562, 570 (S.D.Miss.2000) (same).

Murphy, 269 F.Supp.2d at 752.

¶ 35. The majority relies on Pitts v. Watkins, 905 So.2d 553 (Miss.2005), in which the Court held that an arbitration clause containing some of the same restrictions as the instant contract was substantively unconscionable. Pitts, 905 So.2d at 555 (¶ 10). The arbitration clause in Pitts restricted the parties to arbitration, with the exception that Watkins could pursue claims for nonpayment of his fee in court. Id. The contract also limited the amount that the Pittses could recover to the amount paid for their home inspection and imposed a one-year statute of limitations. Id. at 556-58 (¶¶ 12, 17). The Court held that “[t]he limitation of liability clause, when paired with the arbitration clause, effectively denies the plaintiff ... an adequate remedy and is further evidence of substantive unconscionability.” Id. at 557 (¶15).

¶ 36. The contract in Pitts was similar to the Zippy Check contract in that both parties were required to take all claims to arbitration, with one exception. In Pitts, Watkins was required to arbitrate all claims with the exception of disputes based on the payment of his fee. Id. at 560 (¶ 28) (Dickinson, J., dissenting). Likewise, here, Zippy Check is required to arbitrate claims arising out of the contract with the exception of debt collection. As discussed above, in Sawyers v. Herrin-Gear Chevrolet, the Court upheld an arbitration agreement where the contract required arbitration for any claims related to the purchase of the vehicle, “[e]xcept for an action by [d]ealer to obtain possession and/or replevin of the [v]ehicle.” Sawyers, 26 So.3d at 1029 (¶ 5). The holding in Sawyers was subsequent to Pitts v. Watkins and is consistent with numerous decisions from Mississippi federal courts. Thus, I would hold, consistent with Sawyers, that the fact that one party retains the option to use judicial remedies for specific purposes — especially a purpose that generally requires judicial enforcement (i.e., collection, replevin, repossession) — should not invalidate an agreement to arbitrate. Pitts v. Watkins was an exception to the general rule and, in my opinion, it should be overruled.

¶ 37. Relying on Pitts v. Watkins, the majority finds that the contract is unconscionable because it limits Zippy Check’s liability and provides that the plaintiffs would have to pay attorney’s fees and the cost of collection. (Maj.Op.19.) That issue was not raised by the plaintiffs. I recognize that “[cjlauses that limit liability are given strict scrutiny by this Court and are not to be enforced unless the limitation is fairly and honestly negotiated and understood by both parties.” Royer Homes of Miss., Inc. v. Chandeleur Homes, Inc., 857 So.2d 748, 754 (¶ 18) (Miss.2003). However, that issue is for the arbitrator. After finding that the dispute is subject to arbitration and that the arbitration agreement itself is not unconscionable, any other claims related to the contract must be submitted to arbitration. See Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 130 S.Ct. 2772, 2778,177 L.Ed.2d 403 (2010) (A “challenge to another provision of the contract, or to the contract as a whole, does not prevent a court from enforcing a specific agreement to arbitrate.”); Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 445-46, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006) (challenges to the contract other than to the arbitration provisions should be considered by the arbitrator); Will-Drill Res., Inc. v. Samson Res. Co., 352 F.3d 211, 218 (5th Cir.2003) (“Only if the arbitration clause is attacked on an independent basis can the court decide the dispute; otherwise, general attacks on the agreement are for the arbitrator.”). Arbitration is limited to choice of forum. Estate of Moulds, 14 So.3d at 697, 703 (¶¶ 3, 25). The limitation of liability provision in the Zippy Check contract is separate from the arbitration clause. Thus, the validity of that provision — and allegations of un-conscionability as to any other provision in the contract — should be submitted to the arbitrator.

¶ 38. The majority also relies on Estate of Moulds to support its position that the arbitration agreement is substantively unconscionable. The Court’s finding of unconscionability in Estate of Moulds was based on reasons not at issue here. The contract in that case had been the subject of several lawsuits that had come before this Court and the Court of Appeals. In each case, the appellate courts found additional provisions of the contract to be unconscionable, each time striking the unconscionable provisions, but enforcing arbitration. In Estate of Moulds, the Court wrote:

[Ejach time this contract has come before this Court, the litigants have urged additional terms to be declared unconscionable and unenforceable. In Stephens, clauses E7 and E8 were invalidated by this Court. [Vicksburg Partners, L.P. v. Stephens, 911 So.2d 507, 523-24 (Miss.2005).] In Brown, in addition to E7 and E8, this Court reformed the contract to invalidate clauses C5, C8, E5, E6, E12, E16, and the last sentence of the arbitration agreement. [Covenant Health Rehab of Picayune, L.P. v. Brown, 949 So.2d 732, 741-42 (Miss.2007).] Covenant Health concedes that all these provisions are unenforceable in this case. In a previous case before the Court of Appeals, Covenant Health conceded the unen-forceability of all these provisions, as well as two additional clauses, D4 and E13. Covenant Health & Rehab, of Picayune, LP v. Estate of Lambert, 984 So.2d 283, 287 (Miss.Ct.App.2006). In another case before the Court of Appeals, the Court of Appeals found several provisions unenforceable, including E14, which was held to be in violation of a statute. [Trinity Mission of Clinton, LLC v. Barber, 988 So.2d 910, 928 (Miss.Ct.App.2007).]

Estate of Moulds, 14 So.3d at 701-02 (¶ 20) (emphasis in original, footnotes omitted). By the time the contract was before the Court in Estate of Moulds, no less than a dozen separate provisions had been struck from the contract. Id. And in Estate of Moulds, the Court found at least three more “questionable provisions.” Id. at 702 (¶ 21). Further, the arbitration forum required by the agreement was no longer available to the parties. Id. at 706-709 (¶¶ 36-45). The Court held that the unavailability of the arbitration forum, “coupled with a multitude of unconscionable provisions” in the contract, rendered the entire contract unconscionable. Id. at 703 (¶ 25). The Court wrote:

Based on the issues considered and the application of basic contract-law principles, we conclude that this contract is unconscionable, as it contains numerous unconscionable provisions. The contract weaves unconscionable nonforum terms into the arbitration provision. Arbitration is limited to choice of forum. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 473 U.S. 614, 628, 105 S.Ct. 3346, 3354, 87 L.Ed.2d 444, 456 (1985); Stephens, 911 So.2d at 525. This conclusion is consistent with our body of law regarding the enforcement of contracts, and conforms to the national body of law addressing similar issues. The course we follow exceeds the excision of numerous unconscionable provisions, and voids the contract. Furthermore, since arbitration is about forum choice, were we to assume arguendo the validity of the contract, the contested agreement to arbitrate still would be unenforceable, as the forum putatively agreed upon is unavailable. The learned trial judge rightly denied arbitration as the forum for this dispute.

Estate of Moulds, 14 So.3d at 697-98 (¶ 3). Unlike the contract at issue in Estate of Moulds, the contract in the case sub judice has not woven “unconscionable nonforum terms into the arbitration provision.” Id. The nonforum terms, unconscionable or not, are not part of the arbitration clause. The arbitration clause is simply one term in the contract; it stands alone, as do the other provisions. The plaintiffs have not asked the courts to invalidate the entire contract, and I decline to do so.

¶ 39. We are called upon to consider only whether the arbitration clause should be enforced. “The party resisting arbitration must shoulder the burden of proving a defense to arbitration.” Norwest Fin. Miss., Inc. v. McDonald,, 905 So.2d 1187, 1193 (¶ 11) (Miss.2005) (citing Green Tree Fin. Corp.-Alabama v. Randolph, 531 U.S. 79, 92, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000)). The plaintiffs have the burden of proving that the arbitration clause is unconscionable. Zippy Check does not bear that burden. Nor do we. I find no evidence that the arbitration provision itself was oppressive or left the plaintiffs without a remedy. Rather, the provision “merely submits the question of liability to a forum other than the courts.” Horton, 926 So.2d at 179 (¶ 38) (citing Taylor, 826 So.2d at 716 (¶20)).

¶ 40. In my opinion, the arbitration provision is neither procedurally nor substantively unconscionable and no legal constraints external to the parties’ agreement foreclose arbitration. Disputes about any other provisions of the contract should be submitted to the arbitrator. Therefore, I would reverse the Court of Appeals’ judgment affirming the trial court’s denial of Zippy Check’s motion to compel arbitration as to the eight plaintiffs who signed the older agreement and remand the cases for the parties to submit to arbitration.

DICKINSON, P.J., JOINS THIS OPINION.

      . We note our holding in Sawyers v. Herrin-Gear Chevrolet Co., Inc., 26 So.3d 1026, 1035 (Miss.2010), that an arbitration clause was not unconscionable although it permitted a car dealership to sue for replevin or possession of the vehicle while relegating the vehicle purchaser's claims to arbitration. The Court held the contract provided "a limited exception to arbitration ... to obtain possession of the subject vehicle by replevin in the event of Sawyers’s default under the terms of the sales contract.” Id. The Court approved this limited exception because "there is collateral or a security interest at stake, because an arbitrator would not have authority to grant certain relief that only courts could give.” Id. Because this case does not involve a security interest, we find that Sawyers’s reasoning is distinguishable.

      . We consider the limitation-of-liability and attorney’s fees-clauses because all clauses affecting dispute resolution are relevant to whether an arbitration agreement is substantively unconscionable. This Court in Pitts embraced this approach. Pitts, 905 So.2d at 557 (stating that "the limitation of liability clause, when paired with the arbitration clause, effectively denies the plaintiff of an adequate remedy and is further evidence of substantive unconscionability”).

      . In 1997, this Court held that delayed-deposit check transactions charging more than eight percent interest per annum were loans that violated the civil usury statute. State v. Roderick, 704 So.2d 49, 53 (Miss.1997). In response, the Legislature enacted the Mississippi Check Cashers Act, providing that the fees charged are “service fees,” not interest. Miss.Code Ann. § 75-67-515(4) (Rev.2009).


source: Caselaw Access Project

author: PIERCE, Justice, KITCHENS, Justice,

license: Public Domain

text:
    Carey Jason WITTEN v. STATE of Mississippi, ex rel., MISSISSIPPI DEPARTMENT OF PUBLIC SAFETY AND CRIMINAL INFORMATION CENTER, SEX OFFENDERS REGISTRY.
    No. 2013-CA-01018-SCT.
    Supreme Court of Mississippi.
    June 26, 2014.
    Paul Anderson Koerber, Jackson, attorney for appellant.
    Office of the Attorney General by John R. Henry, Jr., R. Steven Coleman, attorneys for appellees.
   PIERCE, Justice,

for the Court:

¶ 1. Carey Jason Witten was convicted in Sacramento County, California, of oral copulation and rape of a person “... unconscious of the nature of the act ... ” in violation of California Penal Code Sections 261(a)(4) and 288(a)(f). Upon his conviction, Witten was granted five years’ probation, and he received an order of dismissal after successful completion of his probation, pursuant to California Penal Code Section 1203.4. The dismissal order that was entered in California regarding Wit-ten’s conviction, pursuant to Section 1203.4, states the following:

This Order does not relieve the subject of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office or for licensure by State or local agency, for contracting with the California State Lottery. Dismissal pursuant to this Section does not permit a person to own, possess or have custody or control of any firearm, or prevent conviction under Section 12021 of the Penal code.
On October 2, 1996, Carey Jason Witten was granted 5 years probation upon conviction of violation of Section 288a (f) PC and 261(a)(4) PC [sic].
Good cause appearing and the court being fully advised, it is now ordered that a plea of not guilty be entered herein/the verdict of guilty be set aside and that the accusatory pleading in this cause be, and same is hereby dismissed pursuant to section 1203.4 of the Penal Code.

¶ 2. Witten has since relocated to Mississippi and filed a petition for relief from the duty to register in the Circuit Court of Adams County, Mississippi, pursuant to Mississippi Code Section 45-33-47(4). At the hearing on the matter, Witten argued that his order of dismissal from California satisfied the requirements of Mississippi Code Section 45-33-47(4), such that Wit-ten should be relieved of the duty to register as a sex offender in Mississippi. The assistant district attorney agreed with Wit-ten, stating that his research of California Penal Code Section 1203.4 led him to believe that dismissals pursuant to this section resulted in the expungement of the defendant’s record in California. The State communicated that it also believed that Witten’s dismissal order met the requirements of a dismissal or set aside conviction, as is specified in Mississippi Code Section 45-33-47(4), thus Witten should be relieved of the duty to register. The trial court agreed and subsequently entered an order relieving Witten of the duty to register as a sex offender in Mississippi.

¶ 3. R. Steven Coleman, on behalf of the Mississippi Department of Public Safety, Criminal Information Center, Sex Offenders Registry, filed a Mississippi Rule of Civil Procedure 60(b) motion to set aside and render as void the trial court’s order relieving Witten of the duty to register, based on Mississippi and California statutes that were not presented to the trial court at the hearing and that have bearing on whether or not Witten must register as a sex offender. The motion was heard by the trial court, and the trial court ultimately granted the motion to set aside and render as void the earlier judgment.

¶ 4. Witten now appeals to this Court for a determination on the following issues:

I. Whether the Adams County Circuit Court erred as a matter of law in its utter disregard for the plain wording and meaning of Mississippi Code Section 45-33-23 by ignoring the legislative pronouncement, as applicable to this action, that there is not a “conviction,” in as much as no “determination of judgment of guilt” for a sexual offense against the Appellant, since any prior adjudication by the Superior Court of California, County of Sacramento, has been “set aside” and “dismissed.”
II. Whether the Adams County Circuit Court erred as a matter of law in its utter disregard for the plain wording and meaning of Mississippi Code Section 45-33-47(4) by ignoring the legislative pronouncement, as applicable to this action, that no person “will be required to [register] for any sexual offense conviction” where “the conviction is set aside in any post-conviction proceeding ... [or] the charge is dismissed. ...”

This Court affirms the trial court’s ruling, finding that Witten’s conviction has not been set aside or dismissed in accordance with Mississippi Code Section 45-33-47(4) and that Witten is required to continue registration as a sex offender in the State of Mississippi. Because we find that Wit-ten’s dismissal does not meet the requirements of Section 45-33-47(4), we will discuss the merits of only Issue II.

STANDARD OF REVIEW

¶ 5. The trial court’s ruling regarding a Rule 60(b) motion for relief is reviewed to determine whether the trial court abused its discretion. Stringfellow v. Stringfellow, 451 So.2d 219, 221 (Miss. 1984) (citing Clarke v. Burkle, 570 F.2d 824 (8th Cir.1'978)).

ANALYSIS

II. Whether the Adams County Circuit Court erred as a matter of law in its utter disregard for the plain wording and meaning of Mississippi Code Section 45-33-47(4) by ignoring the legislative pronouncement, as applicable to this action, that no person “will be required to [register] for any sexual offense conviction” where “the conviction is set aside in any post-conviction proceeding [or] the charge is dismissed.... ”

¶ 6. As previously mentioned, at the hearing on the Rule 60(b) motion for relief, Coleman provided the trial court with additional California and Mississippi statutes that the trial court was not made aware of during the initial hearing. Coleman argued that, since Witten must register in the state of California, then he must register in the State of Mississippi. Mississippi Code Section 45-33-23(g) defines what constitutes a “registrable offense” in the State of Mississippi. Miss.Code Ann. § 45-33-23(g) (Supp.2013). Mississippi Code Section 45-33-23(g)(xix) specifically states that any offense that requires registration in the jurisdiction where the conviction occurred qualifies as a registrable offense in Mississippi. Miss.Code Ann. § 45-33-23(g)(xix) (Supp.2013).

¶ 7. California Penal Code Section 290.007 states, “Any person required to register pursuant to any provision of the Act shall register in accordance with the Act, regardless of whether the person’s conviction has been dismissed pursuant to Section 1203.4, unless the person obtains a certificate of rehabilitation and is entitled to relief from registration pursuant to Section 290.5.” Cal. [Duty to register regardless of dismissal under Section 1203.4 of the Penal Code] Code § 290.007 (2007).

¶ 8. This Court may endeavor only to interpret the laws of the State of Mississippi. Stallworth v. Miss. Dep’t of Pub. Safety, 986 So.2d 259, 265 (Miss.2008); see generally Holland v. State, 587 So.2d 848, 874 (Miss.1991) (stating, “Where as here the conviction occurred in a sister state, this Court does not look to how that state characterizes the question of whether the crime was one of violence, rather, the analysis must be done under Mississippi law”). According to Mississippi Code Section 45-33-23(g)(xix), if Witten is required to register in California, where the conviction occurred, then his continued registration in California constitutes a “registrable offense” in Mississippi. Miss.Code Ann. § 45-33-23(g)(xix) (Supp.2013). Witten has failed to provide any evidence or argument to support that he is not required to register in the State of California, and the record lacks any indication that he has received a certificate of rehabilitation in California. Cal. [Duty to register regardless of dismissal under Section 1203.4 of the Penal Code] Code § 290.007 (2007). Based on the record before us, Witten’s conviction is a “registrable offense” in the State of Mississippi. Miss.Code Ann. § 45-33-23(g)(xix) (Supp.2013).

¶ 9. Witten argues that the language of the dismissal, pursuant to California Penal Code Section 1203.4, meets two of the requirements of Mississippi Code Section 45-33-47(4), because his conviction was set aside and dismissed. Miss.Code Ann. § 45-33^47(4) (Rev. 2011). Black’s Law Dictionary defines “set aside” to mean that the judgment was annulled or vacated. Black’s Law Dictionary 955 (6th ed. 1991). Black’s Law Dictionary defines “dismiss” as to send away or terminate, especially prior to trial. Black’s Law Dictionary 955 (6th ed. 1991). The dismissal order that Witten received in California is limited to the extent that California Penal Code Section 1208.4 specifically states the following regarding a dismissal pursuant to that section:

However, in any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed. The order shall state, and the probationer shall be informed, that the order does not relieve him or her of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery Commission.

Cal. [Discharged petitioner] Code § 1203.4 (2014).

¶ 10. In U.S. v. Anderson, the United States District Court for the Southern District of Mississippi concluded that a defendant’s dismissal under California Penal Code Section 1203.4 did not serve to preclude the use of his California conviction in his criminal-history calculation when being sentenced pursuant to the United States Sentencing Guidelines. U.S. v. Anderson, No. 5:06CV10DCB, No. 5:03cr24DCB, 2006 WL 3511441, *2-3 (December 5, 2006). The district court stated:

As previously noted, the California court set aside and dismissed the petitioner’s conviction as a unique function of California law. The conviction was not expunged, nor was there a finding of innocence or an error of law....

Id. We agree with the district court’s statement that the Section 1203.4 dismissal order is a unique function of California law. Id. Witten must disclose his conviction on any questionnaire or application for public office, or to receive licensure, or for contracting with the state’s lottery. Cal. [Discharged petitioner] Code § 1203.4 (2014). California caselaw verifies that Penal Code Section 1203.4 is a unique function of California law, as it reinstates only certain civil rights to the individual and provides relief from further punishment but not from nonpenal restrictions. People v. Vasquez, 25 Cal.4th 1225, 1230, 25 P.3d 1090, 108 Cal.Rptr.2d 610, 613 (2001).

¶ 11. We find that Witten’s dismissal pursuant to Section 1203.4 of California’s penal code does not fulfill the intent of the language specified in Mississippi Code Section 45-33-47(4). Miss.Code Ann. § 45-33-47(4) (Rev. 2011). Further, Witten has failed to provide any evidence to support that he is no longer required to register in California. Therefore, his conviction constitutes a “registrable offense” in the State of Mississippi. Miss.Code Ann. § 45-33-23(g)(xix) (Supp.2013). Mississippi Code Section 45-33-21 states,

Persons found to have committed a sex offense have a reduced expectation of privacy because of the public’s interest in safety and in the effective operation of government. In balancing offenders’ due process and other rights, and the interests of public security, the Legislature finds that releasing such information about criminal sex offenders to the general public will further the primary governmental interest of protecting vulnerable populations and, in some instances the public, from potential harm.

Stallworth, 986 So.2d at 265 (citing Miss. Code Ann. § 45-33-21 (Rev. 2011)). Accordingly, Witten’s continued registration in the State of Mississippi “... fulfills the spirit and intent of the Legislature in creating the Mississippi Sex Offender Registration Laws.” Stallworth, 986 So.2d at 264.

CONCLUSION

¶ 12. The trial court did not abuse its discretion in granting the motion to set aside and render as void the earlier judgment, which relieved Witten of the duty to register, after considering pertinent Mississippi and California statutes that were not presented to the trial court during the initial hearing. Therefore, we find that Witten is required to register as a sex offender in the State of Mississippi, and we affirm the decision of the circuit court of Adams County.

¶ 13. AFFIRMED.

WALLER, C.J., RANDOLPH, P.J., AND LAMAR, J., CONCUR.

COLEMAN, J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., CHANDLER AND KING, JJ.

KITCHENS, Justice,

dissenting:

¶ 14. The plurality’s argument is premised on the assumption that, because Wit-ten might be required to register as a sex offender under California law, he must register in Mississippi. Because I disagree with my learned colleagues that the laws of this state require Witten to register as a sex offender here, I respectfully dissent.

¶ 15. Mississippi Code Section 45-38-47(4) (Rev. 2011) provides that:

The offender will be required to continue registration for any sex offense conviction unless the conviction is set aside in any post-conviction proceeding, the offender receives a pardon, the charge is dismissed or the offender has received a court order pursuant to this section relieving him of the duty to register. Upon submission of the appropriate documentation to the department of one (1) of these occurrences, registration duties will be discontinued.

(Emphasis added.) The order of the Superior Court of California, County of Sacramento, provided that: “[g]ood cause appearing and the Court being fully advised, it is now ordered that a plea of not guilty be entered herein/the verdict of guilty be set aside and that the accusatory pleading in this cause be, and same is hereby dismissed pursuant to Section 1203.4 of the Penal Code.” (Emphasis added.) California Penal Code Section 1203.4(a)(1) (2014) provides that, in cases in which a defendant has fulfilled probationary requirements for the entire probationary period, “the court shall set aside the verdict of guilty; and ... shall thereupon dismiss the accusations or information against the defendant,” who “shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted.... ” (Emphasis added.)

¶ 16. The plurality finds that “Witten’s dismissal pursuant to 1203.4 of California’s penal code does not fulfill the intent of the language specified in Mississippi Code Section 45-33-47(4).” California Penal Code Section 1203.4 does limit the defendant’s release from certain specifically enumerated penalties and disabilities resulting from the offense: “in any subsequent prosecution of the defendant for any other offense, the prior conviction may be may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed.” Cal.Penal Code § 1203.4 (The order does not relieve the defendant “of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery Commission.”) But, as the plurality recognizes, this Court interprets and applies Mississippi law, not the laws of other jurisdictions. Holland v. State, 587 So.2d 848, 874 (Miss.1991) (“Where as here the conviction occurred in a sister state, this Court does not look to how that state characterizes the question of whether the crime was one of violence, rather, the analysis must be done under Mississippi law.”)

¶ 17. It is true, as the plurality relates, that Mississippi defines “registrable offense” as “[a]ny offense resulting in a conviction in another jurisdiction which, if committed in this state, would be deemed to be such a crime without regard to its designation elsewhere....” Miss. Code Ann. § 45-33-23(g)(xix) (Supp.2013). The plurality finds that Witten’s conviction constitutes a registrable offense in Mississippi because “Witten has failed to provide ány evidence to support that he is no longer required to register in California.” But the plurality looks no further than the statutory definition and, in so doing, ignores Mississippi Code Section 45-33-47(4), which mandates relief from the requirement to register as a sex offender for defendants whose convictions fall under at least one of a specific list of enumerated circumstances.

¶ 18. It is not the role of this Court to divine the intent of the legislature where the statute is clear. “The Court must not broaden or restrict a legislative act.” Lawson v. Honeywell Int’l, Inc., 75 So.3d 1024, 1027 (Miss.2011) (citing Barbour v. State ex rel. Hood, 974 So.2d 232, 240 (Miss.2008) (quoting Miss. Dep’t of Transp. v. Allred, 928 So.2d 152, 156 (Miss.2006))). Ultimately, “[t]he Court’s goal is to give effect to the intent of the Legislature.” Lawson, 75 So.3d at 1027 (citing City of Natchez v. Sullivan, 612 So.2d 1087, 1089 (Miss.1992)). But, determination of legislative intent is predicated on an examination of the statute. Lawson, 75 So.3d at 1027 (citing Pinkton v. State, 481 So.2d 306, 309 (Miss.1985)). “If the words of a statute are clear and unambiguous, the Court applies the plain meaning of the statute.... ” Lawson, 75 So.3d at 1027 (citing Clark v. State ex rel. Miss. State Med. Ass’n, 381 So.2d 1046, 1048 (Miss.1980)) (emphasis added).

¶ 19. The plurality highlights the legislative declaration of purpose: “In balancing offenders’ due process and other rights, and the interests of public security, the Legislature finds that releasing such information about criminal sex offenders to the general public will further the primary governmental interest of protecting vulnerable populations and, in some instances the public, from potential harm.” Miss. Code Ann. § 45-33-21 (Rev. 2011). But Section 45-33^47(4) clearly and unambiguously requires the circuit court to relieve four categories of offenders from the registration requirement: (1) offenders whose convictions have been set aside in a post-conviction proceeding, (2) offenders who receive a pardon, (3) offenders whose charge is dismissed, or (4) offenders who have “received a court order pursuant to this section relieving him of the duty to register.” The order from the California court expressly set aside and dismissed the 1996 verdict of guilty entered against Witten.

¶ 20. Whether Witten must register as a sex offender in California is of no moment to this Court’s analysis of controlling Mississippi law. In Mississippi, Section 45-33-47(4) clearly and unambiguously excepts Witten from the sex-offense registry requirement and instructs the circuit court to relieve him of the duty to register. In a similar case, a learned justice of this Court once wrote:

I have no sympathy for Jeffery A. Stall-worth, who “may well be deserving of society’s condemnation.” See May v. State, 460 So.2d 778, 785 (Miss.1984). While I in no way condone Stallworth’s conduct toward the victim, the issue before us is not whether what Stallworth did was offensive, or immoral, or even criminal, but instead, the issue before us is one of application of a clear legislative enactment. We are constitutionally mandated to apply the language of the statute as written, and not legislate from the bench. “[I]f we interpret a statute contrary to the intent or will of the Legislature, that body has the absolute authority to change the statute to suit its will.” Bd. of Supervisors v. Hattiesburg Coca-Cola Bottling Co., 448 So.2d 917, 924 (Miss.1984) (Hawkins, J., concurring in part and dissenting in part).

Stallworth v. Miss. Dep’t of Public Safety, 986 So.2d 259, 270 (Miss.2008) (Carlson, J., dissenting). This case is not about sympathy for sex offenders or the lack thereof. It is about this Court’s fidelity to the laws of our State. As Justice Carlson wisely opined, the issue before us today does not concern whether Witten’s actions were “offensive, or immoral, or even criminal,” but rather “the issue before us is one of application of a clear legislative enactment.” Id. In the situation before us, Mississippi’s applicable law is at variance with California law. In such circumstances, we are bound to apply the controlling Mississippi law. See Holland, 587 So.2d at 874.

¶ 21. The statutes of this State provide explicit relief from the registration requirements for persons whose sex-offense convictions have been set aside or dismissed. I find that Mississippi law controls and cannot be circumvented by this Court. The legislature may, as is its constitutional power, revise the statute to reflect its intent, should the statute’s plain meaning not harmonize with legislative intent. But, as the Section 45-33^47(4) plainly provides, Witten is not required to register in this State, because the California court set aside and dismissed his convictions.

¶ 22. I would reverse the judgment of the Circuit Court of Adams County and remand for re-entry of the circuit court’s previous order relieving Witten of his duty to register as a sex offender in this State. I respectfully dissent.

DICKINSON, P.J., CHANDLER AND KING, JJ., JOIN THIS OPINION.

      . According to California law:
      In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section, the defendant shall, at any time after the termination of the period of probation, if he or she is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted.... However, in any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed. The order shall state, and the probationer shall be informed, that the order does not relieve him or her of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery Commission.
      Cal. [Discharged petitioner] Code § 1203.4 (2014).

      . Under Mississippi law;
      The offender will be required to continue registration for any sex offense conviction unless the conviction is set aside in any post-conviction proceeding, the offender receives a pardon, the charge is dismissed or the offender has received a court order pursuant to this section relieving him of the duty to register. Upon submission of the appropriate documentation to the department of one (1) of these occurrences, registration duties will be discontinued.
      Miss. Code Ann. § 45-33-47(4) (Rev. 2011).

      . Effective from and after Jan. 1, 2014, this provision has been renumbered Miss.Code Ann. § 45-33-23(h)(xx) (Supp.2013).

      . Contrary to the dissent's opinion otherwise, this argument is not grounded on a mere assumption. Mississippi Code Section 45-33-23(g)(xx) clearly requires individuals registered as sex offenders in other states also to register as sex offenders in our state. This Court makes determinations from the record that is provided for its consideration. The contents of the record indicate that Witten is required to register in California. The dissent rewards Witten’s failure to present any documentation evidencing that he is not required to register in California. It is Witten’s burden to demonstrate that he is no longer a registered sex offender in California, and Witten failed to submit any argument or evidence, or otherwise to support that premise.

      . Effective from and after January 1, 2014, this provision has been renumbered Miss. Code Ann. § 45-33-23(h)(xx) (Supp.2013).


author: WALLER, Chief Justice,

text:
    Callop HAMPTON v. Charles BLACKMON and Dexter Booth.
    No. 2013-CA-00315-SCT.
    Supreme Court of Mississippi.
    June 26, 2014.
    As Modified on Denial of Rehearing Aug. 28, 2014.

      William Walker, Jr., Jackson, attorney for appellant.
    Joe N. Tatum, attorney for appellees.
    Before WALLER, C.J., LAMAR and PIERCE, JJ.
   WALLER, Chief Justice,

for the Court:

¶ 1. Charles Blackmon and Dexter Booth sued Malaco, Inc.; N.J. Pockets, Inc.; and Callop Hampton (owner of Hamp’s Place Night Club) on a premises-liability claim. The plaintiffs settled with Malaco. At trial, the jury returned a verdict in favor of Hampton. Hampton filed a post-trial motion, requesting the trial court to impose sanctions against Blackmon, Booth, and their attorney, Joe Tatum, for filing a frivolous lawsuit and to award attorney fees. The motion was denied, and Hampton appealed that judgment to this Court. We affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Hampton designated no transcript, and no testimony of the trial was made a part of the record. This Court is unable to know what facts were established at trial. The following facts are gleaned from depositions, motions, police reports, and other documents found in the record.

¶ 3. Blackmon, Booth, and Jharoski Davenport were leaving Hamp’s Place Night Club and returning to their car when they were shot in the parking lot of Malaco, Inc. Davenport was killed and Blackmon and Booth were injured. Black-mon and Booth filed a premises-liability complaint against Malaco and Hampton. The Malaco parking lot is about 100 yards from Hamp’s Place. Essentially, the plaintiffs averred that the parking lot of Hamp’s Place Night Club was full when they arrived, but a man was motioning people to park in Malaco’s lot and was charging $5 to park there.

¶ 4. After filing an answer, Hampton’s attorney asked Booth’s and Blackmon’s attorney to dismiss Hampton from the lawsuit, because the shooting did not take place on Hampton’s property. After they refused, Hampton filed a motion for summary judgment, arguing the shooting did not take place on Hampton’s property and that Hampton did not own, operate, or regulate the Malaco parking lot.

¶ 5. The trial court denied Hampton’s motion for summary judgment, finding there were genuine issues of material fact. Hampton filed a motion to reconsider, which also was denied. A panel of this Court denied Hampton’s interlocutory appeal. Malaco was later dismissed from the suit, leaving Hampton as the sole defendant. After a trial on the merits, a jury returned a verdict in favor of Hampton. Thereafter, Hampton filed a motion for sanctions under Rule 11 and the Litigation Accountability Act. The plaintiffs also filed a motion for sanctions.

¶ 6. A hearing on the matter was held before the trial court. The transcript of the hearing was made a part of the record. The crux of Hampton’s argument was that Booth’s and Blackmon’s attorney, Joe Tatum, should have known “that a premises security lawsuit cannot be maintained against an individual or entity who does not own, operate, or possess the property where the assault in question took place,” and, further, that Tatum cited no Mississippi cases in support of his argument. Tatum argued that the plaintiffs had offered to dismiss Hampton from the suit a year before trial, which Hampton admitted. However, Hampton argued that more than a year had transpired before the offer to dismiss, and Hampton wanted to clear his name at trial. The trial court denied both motions. Hampton filed the present appeal from this order.

DISCUSSION

I. Whether the trial court erred by denying Hampton’s motion for sanctions.

¶ 7. The decision to award monetary sanctions is left to the discretion of the trial court. See McNeese v. McNeese, 129 So.3d 125, 130-31 (Miss.2013); In re Spencer, 985 So.2d 330, 337 (Miss.2008); Miss.Code Ann. § 11-55-1 (Rev.2012); Miss. R. Civ. P. 11. This Court reviews a judgment denying sanctions for abuse of discretion. In re Spencer, 985 So.2d at 337. “In the absence of a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon weighing of relevant factors, the judgment of the court’s imposition of sanctions will be affirmed.” Id. (citations and quotations omitted).

¶ 8. Rule 11 states that, if the trial court finds a motion or pleading is frivolous or is filed for the purpose of harassment or delay, the court may order such a party ... to pay to the opposing party ... reasonable expenses.... Miss. R. Civ. P. 11. A claim is frivolous when the claimant has no hope of success. See Leaf River Forest Prods, v. Deakle, 661 So.2d 188, 196-97 (Miss.1995) (citation omitted). Thus, sanctions would be inappropriate if the plaintiff had some chance of success. Choctaw, Inc. v. Campbell-Cherry-Harrison-Davis and Dove, 965 So.2d 1041, 1044 (Miss.2007) (quotation omitted).

¶ 9. The crux of Hampton’s argument in his motion for sanctions was that the assault occurred in Malaco’s parking lot, and Hampton did not own, operate, or regulate that parking lot; thus, there was no substantial justification or hope of success for Tatum to maintain a premises-security claim against Hampton.

¶ 10. In response, Tatum argues that other states “have not hesitated to hold a premises owner liable for injuries occurring in an adjacent or nearby parking lot where the premises owner makes use of that lot.” See e.g., Southland Corp. v. Superior Court, 208 Cal.App.3d 656, 250 Cal.Rptr. 57 (Cal.App.1988); Ember v. B.F.D., Inc., 490 N.E.2d 764 (Ind.App.1986). Thus, Tatum argues there was evidence to support his theory that, where a business owner benefits from using a nearby parking lot, he could be held liable for injuries occurring to his patrons there.

¶ 11. Hampton cites generally two Mississippi cases, Gatewood v. Sampson, 812 So.2d 212 (Miss.2002), and Alqasim v. Capitol City Hotel Investors, 989 So.2d 488 (Miss.2008), in support of his argument that “Mississippi law ... holds a premises liability lawsuit cannot be maintained against an individual or entity, who does not own, operate or possesses the premises where the assault takes place.”

¶ 12. In Gatewood, a gas-station patron using a pay phone on the premises was shot by armed robbers leaving the gas station after a heist. Gatewood, 812 So.2d at 216-17. This Court stated the general proposition that business owners owe a duty of reasonable care to protect patrons “from attacks by third parties while they are on [the business’s] premises.” Id. at 219. Further, this Court stated that the duty extends to “the parking lot area around the building.” Id. (citing Lyle v. Mladinich, 584 So.2d 397, 399 (Miss.1991)). In Alqasim, a hotel invitee was shot in the leg during a robbery in the hotel’s parking lot. Alqasim, 989 So.2d at 491. The Court quoted the above passage from Gatewood regarding the duty of care imposed on a business owner. Id. at 491-92.

¶ 13. We find Hampton’s argument is without merit. This Court has found that, “[t]o deem a question of law ‘frivolous, groundless in fact or law or vexatious’ merely because there is not existing Mississippi law on the subject would have a chilling effect on all litigation of first impression.” Anderson v. B.H. Acquisition, Inc., 771 So.2d 914, 922 (Miss.2000) (quoting Scruggs v. Saterfiel, 693 So.2d 924, 927 (Miss.1997)). Although this Court has generally held owners could be held responsible for attacks that occur on their premises, neither Gatewood nor Alqasim expressly held a premises-liability claim could never be maintained against an individual who does not own, operate, or possess the premises where the assault takes place.

¶ 14. Tatum cites cases from other jurisdictions to promote his theory that Hampton could be held liable if the facts at trial indicated he knew about the off premises parking and encouraged patrons to park at Malaco when his parking lot was full. For example, in Holiday Inns, Inc. v. Shelburne, a similar factual situation occurred in which the bar of the Holiday Inn had inadequate parking for its patrons and a patron parked in a nearby lot and was assaulted. However, it was hotly disputed at trial whether Holiday Inn employees had directed patrons to park in the off-premises lot. Holiday Inns, Inc. v. Shelburne, 576 So.2d 322, 328-330 (Fla.Dist.Ct.App.1991), (overruled on other grounds by Angrand v. Key, 657 So.2d 1146, 1149 (Fla.1995)). That court found that Holiday Inn owed a duty of care to patrons who had parked off the premises actually owned “where the invitor has extended its business activities beyond its legal boundaries.... ” Holiday Inns, Inc., 576 So.2d at 330.

¶ 15. If the plaintiffs’ factual arguments are taken as true, this claim would not be categorized as being “without hope of success” and therefore frivolous. However, because there is no trial transcript, this Court has no way of knowing whether the plaintiffs were able to substantiate these allegations at trial. However, the appellant bears the burden of designating “those parts of the record necessary for the appeal.” Miss. R. App. P. 10(b)(1). Therefore, we find the record contains insufficient evidence to analyze Hampton’s argument. See Pratt v. Sessums, 989 So.2d 308 (Miss.2008).

CONCLUSION

¶ 16. Under the applicable standard of review, we hold the trial court did not abuse its discretion in denying Hampton’s motion for sanctions. Therefore, we affirm the judgment of the Hinds County Circuit Court.

¶ 17. AFFIRMED.

DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.