author: PIERCE, Justice,

text:
    Michael STRAIT and Betty Strait v. Jackie McPHAIL and American Heritage Life Insurance Company.
    No. 2012-CT-00075-SCT.
    Supreme Court of Mississippi.
    Aug. 21, 2014.

      Michael T. Jaques, Ridgeland, attorney for appellants.
    Michael Jeffrey Wolf, J. Stephen Kennedy, Jackson, George Clanton Gunn, IV, attorneys for appellees.
   ON WRIT OF CERTIORARI

PIERCE, Justice,

for the Court:

¶ 1. In 1987, Joseph Bagley purchased a cancer and dread-disease policy through his friend and insurance agent, Jackie McPhail. The policy was issued by American Heritage Life Insurance Company. McPhail worked as an independent insurance broker, and she was a registered agent with American Heritage at the time the policy was written. The policy indicates that Bagley purchased coverage concerning cancer and dread disease, a home-recovery rider, and a hospital intensive-care rider. Bagley also had an option to purchase life insurance; however, McPhail testified that Bagley did not purchase life insurance under this policy because he had purchased a separate life-insurance policy.

¶ 2. In 2008, Bagley was diagnosed with cancer. Bagley contacted McPhail to file a claim under the policy and to “change the beneficiary” of the policy from his estate to Michael and Betty Strait. McPhail testified that she had ceased writing policies for American Heritage; however, she still retained the authority to service Bagley’s policy, and she acquired his written consent to receive information regarding his policy from the insurance company. While Bagley was in the hospital, McPhail met with him regarding changing the beneficiary of his cancer policy. McPhail presented an American Heritage change-of-beneficiary form, which Bagley ultimately signed. The signature was witnessed by Bagley’s physician, a nurse, and McPhail. Bagley orally communicated that he wished for the beneficiary to be changed from his estate to the Straits. At the time that Bagley signed the form, the Straits had yet to be listed as beneficiaries on the form. McPhail met with the Straits after the form was signed to confirm their correct legal names to be placed on the change-of-beneficiary form at a later time. McPhail provided that she did not fully complete the form because she was attempting to contact American Heritage to confirm the correct procedure for eomplet-ing the process; however, American Heritage’s office was closed because of Hurricane Fay, and McPhail never succeeded in speaking with American Heritage regarding the matter. Bagley’s physician, who witnessed Bagley signing the form, later communicated to Betty Strait that his attorney advised that the form could not be used because the Straits’ names were not listed on the form prior to Bagley’s signature. Betty Strait relayed this to McPhail, who then attempted to contact American Heritage’s legal department. McPhail called the company on multiple occasions and left voicemail messages, but she never received a return phone call. Soon thereafter, Bagley passed away, and the form was never completed.

¶ 3. The estate was probated in Hinds County Chancery Court. McPhail worked with the estate to file a claim on the cancer and dread-disease policy. The Straits were named beneficiaries in Bagley’s will. The record contains written correspondence by Betty Strait explaining that they were aware that the proceeds of the policy were now passing to Bagley’s estate, through no fault of their own, and that they were not responsible for any final expenses not covered by the policy. From the record, it is clear that the Straits did not contest the passage of the policy proceeds to the estate at the time that the estate was being settled.

¶ 4. In 2009, proceeds totaling $44,973.50 were issued to Bagley’s estate from the American Heritage policy. The executor of Bagley’s will, William Kinstley, petitioned for the approval of the estate’s final accounting, which included the policy proceeds. Kinstley submitted certain expenses to be paid from the estate, with the remainder being disbursed to him as the residual beneficiary. Ultimately, Kinst-ley’s requests were granted in the order closing the estate.

¶ 5. Later that year, the Straits initiated legal action against McPhail and American Heritage in Hinds County Circuit Court, arguing that Bagley intended for them to receive the proceeds from the cancer policy. The Straits alleged breach of contract, tortious breach of contract, negligence and gross negligence, breach of fiduciary duties and the duty of good faith and fair dealing, bad-faith refusal to pay benefits and to promptly and adequately investigate the claim, misrepresentation and/or failure to procure, promissory and/or equitable estoppel, and they sought a claim for declaratory relief. McPhail filed a motion tp dismiss, which was granted by the circuit court. The circuit court found that the issue had been previously litigated and resolved in chancery court, and that no appeal had been taken from the chancery court judgment. Likewise, the circuit court granted American Heritage’s motion for summary judgment, finding that there were no genuine issues of material fact to be resolved.

¶ 6. The Straits appealed to this Court, and the case was assigned to the Court of Appeals. The Court of Appeals reversed the judgment and remanded the case, finding that genuine issues of material fact did exist and that res judicata and collateral estoppel did not bar the Straits’ claims. Strait v. McPhail, 145 So.3d 696, 2013 WL 5976619, No.2012-CA-00075-COA (Miss.Ct.App. November 12, 2013). McPhail and American Heritage filed petitions for writ of certiorari with this Court, which were granted.

¶ 7. McPhail raises the following issues:

I. The Court of Appeals erred when it found that, although the Straits would be prevented from suing the estate to recover the insurance proceeds, they might still pursue a negligence theory, which creates a duty where none existed before;
II. The Court of Appeals’ opinion defines the Straits as third-party beneficiaries, which creates new contractual rights for the Straits that did not exist under the primary contract; and
III. The Court of Appeals’ decision improperly allows for the collateral attack in one court of the judgment of another court.

¶8. American Heritage raises the following issues:

I. The Court of Appeals’ decision im-pos[ing] a new duty on insurers to train independent, state-licensed brokers is a fundamental issue of broad public importance that should be reviewed and reversed by this court; and
II. The Court of Appeals’ opinion regarding vicarious liability is in conflict with this Court’s precedent.

¶ 9. This Court finds that the Court of Appeals opinion was correct in its determination that res judicata and collateral estoppel did not bar the Straits’ claims, because the Straits were not named parties to the estate proceedings. Strait v. McPhail, 145 So.3d 696, 2013 WL 5976619, No.2012-CA-00075-COA (Miss.Ct.App. November 12, 2013). However, this Court finds that the policy did not allow for the beneficiary to be changed, therefore, the Straits fail to raise any claims from which relief may be granted, and no genuine issues of material fact exist. Accordingly, we will address the following issues under the same analysis:

I. Whether the Straits raise any claims from which relief may be granted regarding their entitlement to the policy proceeds, and
II. Whether any genuine issues of material fact exist to be resolved.

STANDARD OF REVIEW

¶ 10. The grant or denial of a motion to dismiss and the grant of summary judgment both require this Court to apply a de novo standard of review. Scaggs v. GPCH-GP, Inc., 931 So.2d 1274, 1275 (Miss.2006); Kilhullen v. Kan. City S. Ry., 8 So.3d 168, 174 (Miss.2009). The grant of summary judgment will be upheld “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). “When considering a motion to dismiss, the allegations in the complaint must be taken as true and the motion should not be granted unless it appears beyond a doubt that the plaintiff will be unable to prove any set of facts in support of his claim.” Scaggs, 931 So.2d at 1275 (quoting Lang v. Bay St. Louis/Waveland Sch. Dist., 764 So.2d 1234 (Miss.1999)).

ANALYSIS

I. Whether the Straits raise claims from which relief may be granted regarding their entitlement to the policy proceeds, and
II. Whether any genuine issues of material fact exist to be resolved.

¶ 11. The Court of Appeals found that the Straits were intended third-party beneficiaries of the policy, therefore, they had standing to pursue legal action and suffered from the actions of the defendants. Strait v. McPhail, 145 So.3d 696, 2013 WL 5976619, No.2012-CA-00075-COA (Miss.Ct.App. November 12, 2013). In her petition for writ of certiorari, McPhail argues that this holding is erroneous because the finding is based on Sun Life Assurance of Canada (U.S.) v. Barnard, which is distinguishable from the case before us. Sun Life Assurance of Canada (U.S.) v. Barnard, 652 So.2d 681 (La.Ct.App.1995). The Court of Appeal of Louisiana found that the insurance agent, Barnard, was negligent when he failed to properly execute the change-of-beneficiary form on a life-insurance policy. Sun Life Assurance of Canada, 652 So.2d at 685. Barnard was held liable to Ms. Cole, the intended beneficiary, for the amount she would have received under the policy, had the change-of-beneficiary form been properly executed. Id.

¶ 12. At first blush, this ease appears to provide precise guidance; however, McPhail points out that the policy in question is a reimbursement policy rather than a life-insurance policy, as seen in Sun Life Assurance of Canada. Id. Bagley’s policy plainly states that it is a “cancer and dread disease policy.” The policy further provides, “[tjhis is a specified disease policy which only provides benefits for loss due to cancer and dread disease.... ” It is undisputed that Bagley’s policy is not a life-insurance policy like the policy in Sun Life Assurance of Canada. Id.

¶ 13. Nonetheless, a deeper analysis of Bagley’s cancer policy must be conducted. A third party could receive payments from this policy in two ways. The policy provides for the following:

Assignment — We are not bound by an assignment of this policy for a claim on this policy unless we have received the assignment in our Home Office prior to the payment of any benefits claimed. We assume no responsibility for the validity of the assignment.
Payment of Claims — All indemnities payable under this policy will be paid to the Insured. Any accrued indemnities unpaid at your death will be paid to your estate. If any indemnity of this policy shall be payable to your estate, or if you are not competent to give valid release, we may pay such indemnity, up to an amount not exceeding $3,000, to any relative by blood or connection by marriage to you who is deemed by us to be equitably entitle[d] thereto. Any payment made by us in good faith pursuant to this provision shall fully discharge us to the extent of such payment.

The policy terms do not contain any provisions regarding naming beneficiaries or the change of beneficiaries. On Bagley’s completed insurance form, he lists “Estate” under “Name of Beneficiary.” However, the section requesting the name of beneficiary is under section C of the form, which is titled “Life Insurance/Life Insurance Riders.” As previously mentioned, the policy form offers the option to purchase life-insurance coverage. The form clearly shows that Bagley did not purchase life insurance in conjunction with his cancer policy. As previously mentioned, McPhail testified that Bagley had a separate life-insurance policy, which was acquired through a company other than American Heritage.

¶ 14. Based on the policy terms quoted above, the policy does not provide the policyholder with an option to name a beneficiary. The terms plainly state that the policy pays the insured, which reimburses the policyholder for any expenses related to diagnosis of cancer or dread disease. An assignment would have allowed Bagley to assign any number of claims to cover the expenses directly owed to the third party, if the assignment was received by the company prior to any benefits payment to Bagley. Lastly, the policy allowed the insurance agency to disburse payments not to exceed $3,000 to any relative, through blood or marriage, who was equitably entitled to reimbursement, if Bagley was incompetent to authorize such release or if Bagley had passed away.

¶ 15. It is evident that, even if McPhail had successfully completed the change-of-beneficiary form, the Straits never could have been named beneficiaries under the policy, because the policy did not entitle Bagley to name a beneficiary. Further, the Straits have never claimed any expenses owed to them because of Bagley’s illness. From the language of the policy, it appears that the only possible way the Straits might have been eligible to receive payment, would have been if Bag-ley had assigned a claim to them for benefits owed regarding any expenses the Straits had assumed on behalf of Bagley. As stated, no such expenditures by the Straits are claimed, nor are they evidenced in the record.

¶ 16. These facts further distinguish this case from Sun Life Assurance of Canada, because the life-insurance policy in that case did provide for a named beneficiary and for a way in which that beneficiary could be changed. Sun Life Assurance of Canada, 652 So.2d 681. Here, the Straits never could have been named a beneficiary to the cancer policy. The cancer policy remained only to reimburse the expenses accrued as a result of being diagnosed with the disease.

¶ 17. Lastly, the record reflects that the Straits were actively involved in the probate of the will, as they were named beneficiaries under Bagley’s will. The Straits negotiated some of the terms of the will, trading a ring for a vehicle. Moreover, it is evident from Betty’s written correspondence that the Straits knew that the remainder of the policy proceeds would be passing to the estate, yet they never attempted to contest this during the probate of the estate.

CONCLUSION

¶ 18. Because the Straits fail to raise any issues upon which relief may be granted, the circuit court’s grant of McPhail’s motion to dismiss was proper. However, the circuit court erred in granting the motion to dismiss based on res judicata and collateral estoppel. Additionally, the circuit court properly granted American Heritage’s motion for summary judgment, as there are no issues left to be resolved in this case. The Straits were never eligible to be third-party beneficiaries under the policy, and they have failed to show any equitable entitlement to reimbursement. For the above reasons, we reverse the judgment of the Court of Appeals. Further, we reinstate and affirm the judgments of the Circuit Court of Hinds County-

¶ 19. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS REINSTATED AND AFFIRMED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, CHANDLER, KING AND COLEMAN, JJ., CONCUR.

      . McPhail testified that after the estate was closed, she eventually shredded the change-of-beneficiary form.

      . Specifically, the Court of Appeals found that genuine issues of material fact existed regarding the following: (1) whether American Heritage is directly liable because of McPhail’s confusion over the proper way to change a beneficiary, (2) whether American Heritage is vicariously liable for McPhail's activities in "servicing” the policy, and (3) whether American Heritage can claim waiver/estoppel by the Straits because of McPhail's knowledge of Bagley’s wishes and her failure to follow through with those wishes.

      . The claim form that was signed by Bagley contained a section for assignment. “N/A” was present on the claim form that Bagley signed prior to his death. McPhail testified that she instructed Bagley that he could assign the claim to a doctor or hospital. McPhail testified that Bagley did not want to assign any claims, therefore, "N/A” was placed under that section. It is clear that assignment would only be for reimbursement related to Bagley’s illness, and the Straits do not claim any entitlement to reimbursement.


source: Caselaw Access Project

license: Public Domain

text:
    Charlotte PERKINS v. MISSISSIPPI DEPARTMENT OF HUMAN SERVICES.
    No. 2013-CA-00736-SCT.
    Supreme Court of Mississippi.
    Aug. 21, 2014.

      Alexander J. Simpson, III, attorney for appellant.
    Office of the Attorney General by Greta D. Mack Harris, Denita N. Smith, attorneys for appellee.
    Before DICKINSON, P.J., PIERCE and COLEMAN, JJ.
   PIERCE, Justice,

for the Court:

¶ 1. Charlotte Perkins appeals the Monroe County Circuit Court’s decision to dismiss, for lack of jurisdiction, her appeal to the circuit court claiming that the Mississippi Department of Human Services (DHS) wrongly deprived her of receiving “food stamps” and that such deprivation was the result of a DHS hearing in which Perkins was deprived of procedural safeguards. As the circuit court found, no statutory authority creates a right of appeal to the circuit court from an administrative decision by DHS regarding food-stamp qualifieation(s) or disqualification(s). Accordingly, the circuit court was correct in dismissing the case for lack of jurisdiction. Mississippi caselaw provides, however, that where there is no statutory scheme for appeal from an agency decision and the injured party does not have a full, plain, complete and adequate remedy at law, the chancery court has jurisdiction for judicial review of the agency decision. Accordingly, we reverse this case and remand it with instructions to the circuit court to transfer the case to the Monroe County Chancery Court.

FACTS

¶ 2. On June 14, 2010, DHS held a hearing to determine if Perkins had committed an Intentional Program Violation (IPV) of the Supplemental Nutritional Assistance Program (SNAP). At the conclusion of the hearing, the hearing officer determined that Perkins should be disqualified from receiving SNAP benefits for a prescribed period of time. Perkins thereafter filed a “Notice of Appeal” in the Monroe County Circuit Court alleging that her due process rights had been violated. Specifically, Perkins contended that DHS’s decision was not supported by clear and convincing evidence as required by federal law and DHS should be enjoined from conducting any further administrative hearings in IPV cases until it demonstrates it is able to conduct such hearings properly, before an impartial hearing officer, with appropriate procedural safeguards in place to protect claimants’ due process rights.

¶ 8. The circuit court issued an order on April 5, 2013, dismissing Perkins’s appeal to the circuit court for lack of jurisdiction. The circuit court found that there is no specific statutory authority giving Perkins the right to appeal DHS’s decision; thus, the court was without jurisdiction to consider the matter on appeal.

¶ 4. Perkins appeals to this Court with the following issue: Whether the circuit court erred by finding that it lacked jurisdiction to hear Perkins’s appeal of her disqualification from the food-stamps program after an administrative finding that she was guilty of an IPV.

DISCUSSION

¶ 5. We agree with the circuit court that there is no statutory mechanism in this state providing for judicial review of a DHS administrative decision regarding its food-stamp program or (SNAP). In Charter Medical Corp. v. Mississippi Health Planning & Development Agency, 362 So.2d 180, 181 (Miss.1978), we stated that, where there is no statutory scheme for appeal from an agency decision and the injured party does not have a full, plain, complete and adequate remedy at law, the chancery court has jurisdiction for judicial review of the agency decision. Charter relied on this Court’s decision in Board of Veterinary Examiners v. Sistrunk, 218 Miss. 342, 347, 67 So.2d 378, 380-81 (1953), where we held the following:

The statutes regulating the practice of veterinary medicine, surgery, and dentistry ... have no statutory provision for judicial review of the actions of the board in exercising its licensing powers. In this respect it is similar to a number of other state agencies. An appeal by certiorari would not be adequate, since it is limited to a review of the legal sufficiency of the application and order refusing the license. An appeal by a petition for mandamus would not be sufficient, because the court could not review whether the board’s action is supported by substantial evidence, but could only direct the board to act in some manner, either by granting or denying the license. Hence a bill in chancery for a mandatory injunction is the only possible method by which ap-pellee could obtain judicial review of the board’s order to ascertain whether it is supported by substantial evidence, or is arbitrary, capricious, and unlawful.

¶ 6. In Prisock v. Perkins, 735 So.2d 440 (Miss.1999), an unsuccessful bidder for a hunting and fishing lease appealed to the circuit court a school board’s decision to award the lease to another bidder. The circuit court dismissed the appeal for lack of jurisdiction. This Court reversed the circuit court’s dismissal, and we remanded the case to the circuit court with instructions that the case be transferred to chancery court pursuant to Article 6, Section 157 of the Mississippi Constitution. The Prisock Court reiterated that where there is no statutory scheme for judicial review of an agency’s or board’s decision, “and the injured party does not have a full, plain, complete and adequate remedy at law,” the chancery court has jurisdiction of an original action for injunction to review the board or agency decision. Id. at 443 (citing Charter, 362 So.2d at 181).

¶ 7. Here, consistent with Prisock, Charter, and -Sistrwnk, because no statutory mechanism exists that provides for judicial review of the DHS’s decision in this instance, and because Perkins lacks a complete and adequate remedy at law otherwise, the chancery court has jurisdiction to judicially review DHS’s decision.

CONCLUSION

¶ 8. Accordingly, we reverse and remand this case to the Monroe County Circuit Court with instructions to transfer the case to the Monroe County Chancery Court pursuant to Section 157 of the Mississippi Constitution.

¶ 9. REVERSED AND REMANDED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, CHANDLER, KING AND COLEMAN, JJ., CONCUR.

      . The record does not disclose for what period of time Perkins was disqualified. In her brief to this Court, Perkins claims she was disqualified for three years. In its brief, the State does not say how long Perkins is disqualified. In Perkins’s appeal to the circuit court, Perkins claimed she was permanently disqualified. In response to Perkins's appeal to the circuit court, the State said Perkins was disqualified for one year. The DHS decision, which Perkins attached as an exhibit to her appeal to the circuit court, reads as follows:
      It is the finding of the duly constituted hearing official that the household member [Perkins] has committed intentional program violation and shall be ineligible to participate in SNAP for 1 year for 1st violation, 2 [years] for 2nd violation, and permanently for 3rd.

      . "All causes that may be brought in the circuit court whereof the chancery court has exclusive jurisdiction shall be transferred to the chancery court.” Miss. Const, art. 6, § 157.


author: MAXWELL, J.,

text:
    CAPLIN ENTERPRISES, INC. and Check Cashers & More, Inc. d/b/a Zippy Check Advance, Appellants v. Denise ARRINGTON, Johnny Arrington, Margie Blackledge, 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, Appellees. Caplin Enterprises, Inc. and Check Cashers & More, Inc. d/b/a Zippy Check Advance, Appellants 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, Appellees.
    Nos. 2011-CA-01332-COA, 2011-CA-01932-COA.
    Court of Appeals of Mississippi.
    May 7, 2013.
    Rehearing Denied Aug. 20, 2013.

      George Cayce Nicols, Madison, attorney for appellants.
    Christopher Michael Falgout, attorney for appellees.
    Before IRVING, P.J., CARLTON and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. In this consolidated appeal, we consider the enforceability of two arbitration provisions entered into by customers of Zippy Check Advance, a delayed-deposit check-cashing business, who are suing Zippy Check for a variety of claims, including fraudulent misrepresentation and breach of the covenant of good faith and fair dealing. Each of the thirty-two plaintiffs’ transactions with Zippy Check were governed by one of two delayed-deposit agreements containing similar information about the lending transaction but differing arbitration provisions. On appeal, Zippy Check insists the circuit judges incorrectly found the arbitration provisions were procedurally and substantively unconscionable, and argues the judges erred by denying its motions to compel arbitration.

¶ 2. After review, we agree that the first agreement — a one page, front and back, delayed-deposit agreement, containing an arbitration provision, which was intermingled with other non-distinguishable provisions and was typed in finer print than the terms on the front page — was procedurally unconscionable. Thus, we affirm the denial of arbitration on the claims of the eight plaintiffs who entered into this agreement and remand their cases for trial.

¶ 3. However, we find the second agreement’s arbitration clause — which was signed by the remaining twenty-four plaintiffs, consisted of the front side of one page, specifically highlighting the arbitration provision in capital letters and bolded text, and provided a more detailed statement about arbitration than the first agreement — was neither procedurally nor substantively unconscionable. We therefore reverse the denial of arbitration on the claims stemming from the second agreement and compel arbitration of these claims.

Facts and Procedural History

¶ 4. Caplin Enterprises, Inc. and Check Cashers & More, Inc. operate Zippy Check, a licensed check-cashing business in Quitman, Mississippi. Zippy Check engages in what is known as delayed-deposit check cashing, which is governed by the Mississippi Check Cashers Act. Miss.Code Ann. §§ 75-67-501-539 (Rev.2009 & Supp. 2012). This practice encompasses accepting personal checks from its customers for up to $500 plus a fee, which may not exceed a certain percentage of the check’s face value. Typically, when a customer writes a check to Zippy Check, Zippy Check gives the customer cash equal to the face value of the check, less the particular fee authorized by statute. Zippy Check then agrees to delay the deposit of the check until an agreed future date, usually the customer’s next payday. See Miss.Code Ann. § 75-67-519(1) (Supp. 2012). The customer contracts to repurchase the check for its face value by this date, or Zippy Check will present the check for deposit to the customer’s bank.

¶ 5. The various check cashing transactions at issue took place in Clarke County and Newton County, Mississippi. In Clark County, Denise Arrington and nineteen other named plaintiffs contracted with Zippy Check for cash-advance services. And Jerald Ainsworth and eleven other named plaintiffs did the same in Newton County. Both sets of plaintiffs signed one of two specific delayed-deposit agreements with Zippy Check.

¶ 6. The first version of the agreement was signed by eight of the thirty-two plaintiffs. It is one page, front and back, with a variety of font sizes, and is the older of the two agreements, last revised on April 12, 2001. The remaining twenty-four plaintiffs signed the second agreement, which appears to have been created on May 31, 2005. The entire second agreement is contained on one side of a single page. And apart from the transactional terms listed at the top of the page and the eight bolded headings, the text of the agreement is essentially uniform in both size and style. Each agreement also contains an arbitration provision. But the wording and style of the provisions differ quite a bit.

¶ 7. The plaintiffs filed separate lawsuits, one in Clarke County Circuit Court, the other in Newton County Circuit Court. They claimed Zippy Check had fraudulently represented the terms of its service charges and fees and exhibited a pattern of “predatory lending,” trapping the plaintiffs in a never ending cycle of debt repayment. While the individual plaintiffs differed in each case, both suits alleged Zippy Check had (1) breached the covenant of good faith and fair dealing; (2) negligently handled the plaintiffs’ accounts; (3) caused the plaintiffs to suffer emotional distress and mental anguish, (4) negligently hired, trained, and supervised its employees; and (5) fraudulently misrepresented the terms of the service charges and fees.

¶ 8. Citing the arbitration provisions in the two delayed-deposit agreements, Zippy Check filed a motion to compel arbitration in each case. But the Clarke County Circuit Court entered a written order denying Zippy Check’s motion to compel, finding the two arbitration provisions procedurally and substantively unconscionable. The Newton County Circuit Court followed suit and also denied arbitration. The Newton County Circuit Court opted not to issue separate written findings, but instead, as Judge Cotten put it, “piggy-back[ed],” the Clarke County Circuit Court’s specific reasoning for denying arbitration. Zippy Check appealed the denial of arbitration in both cases, and we consolidated the two cases on appeal.

Standard of Review

¶ 9. An order granting or denying a motion to compel arbitration is treated as a final judgment for appellate purposes, and an appeal may be taken from it. Tupelo Auto Sales, Ltd. v. Scott, 844 So.2d 1167, 1170 (¶ 10) (Miss.2003). Because the grant or denial of a motion to compel arbitration raises an issue of law, our review is de novo. East Ford, Inc. v. Taylor, 826 So.2d 709, 713 (¶ 9) (Miss.2002) (citing Webb v. Investacorp, Inc., 89 F.3d 252, 256 (5th Cir.1996)). According to the Federal Arbitration Act, “arbitration agreements ‘shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.’ ” Norwest Fin. Miss., Inc. v. McDonald, 905 So.2d 1187, 1192 (¶ 7) (Miss.2005) (quoting 9 U.S.C. § 2 (2006)). “Doubts as to the availability of arbitration must be resolved in favor of arbitration.” IP Timberlands Operating Co. v. Denmiss Corp., 726 So.2d 96, 107 (¶ 46) (Miss.1998) (citations omitted).

Discussion

I. Applicability of the Federal Arbitration Act

¶ 10. Because the plaintiffs challenge the applicability of the Federal Arbitration Act (“FAA”), we must first determine if the FAA applies to the arbitration provisions in the delayed-deposit agreements at issue.

¶ 11. The FAA governs the arbitrability of contracts “evidencing a transaction involving commerce[.]” 9 U.S.C. § 2. And Mississippi “has endorsed the undisputed province of the [FAA],” recognizing that it controls those “agreements formed in interstate commerce wherein a contractual provision provides for alternative dispute resolution.” EquiFirst Corp. v. Jackson, 920 So.2d 458, 462 (¶ 11) (Miss.2006) (citing IP Timberlands, 726 So.2d at 107 (¶ 45)). Concerning the applicability of the FAA to these particular contracts, our threshold determination is whether the delayed-deposit agreements between Zippy Check and the plaintiffs “involv[e] commerce” and thus fall within section 2 of the FAA. 9 U.S.C. § 2; IP Timberlands, 726 So.2d at 107 (¶ 45) (“The sine qua non of the FAA’s applicability to a particular dispute is an agreement to arbitrate the dispute in a contract which evidences a transaction in interstate commerce.” (quoting Peoples Sec. Life Ins. Co. v. Monumental Life Ins. Co., 867 F.2d 809, 813 n. 4 (4th Cir.1989))).

¶ 12. Here, the plaintiffs argue the circuit court incorrectly found the FAA applied to what they deem are wholly intrastate contracts. As they see it, because all parties are Mississippi residents, the delayed-deposit agreements are not contracts “evidencing a transaction involving commerce.” We disagree.

¶ 13. While for the FAA to apply there must be some involvement with commerce, it need not be substantial in each particular transaction. The United States Supreme Court has interpreted the phrase “involving commerce” within section 2 as the “functional equivalent” of “affecting commerce.” Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 56, 123 S.Ct. 2037, 156 L.Ed.2d 46 (2003) (citing Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 273-74, 115 S.Ct. 834,130 L.Ed.2d 753 (1995)). And the requisite nexus for FAA governance of a contract’s arbitrability is met “if in the aggregate the economic activity in question would represent a general practice subject to federal control.” Id. at 56-57, 123 S.Ct. 2037 (citations omitted and internal quotation marks omitted); see also Lewis v. BT Inv. Managers, Inc., 447 U.S. 27, 38-39, 100 S.Ct. 2009, 64 L.Ed.2d 702 (1980) (“[Blanking and related financial activities are of profound local concern.... Nonetheless, it does not follow that these same activities lack importance interstate attributes.”). Thus, for purposes of application of the FAA, when assessing whether the contract involves commerce, only the “general practice need bear on interstate commerce in a substantial way.” Citizens Bank, 539 U.S. at 57, 123 S.Ct. 2037.

¶ 14. Specifically in the context of payday-loan contracts between licensed check cashers and their customers, the Mississippi Supreme Court has previously found a sufficient nexus to interstate commerce, based in part, on the transactions being subject to the Truth-in-Lending Act, 15 U.S.C. §§ 1601-1693 (2006). See Speedee Cash of Miss., Inc. v. Williams, 915 So.2d 1061, 1062-63 (¶ 3) (Miss.2005). Of the two contracts at issue here, the second delayed-deposit agreement cites the FAA and notes that certain disclosures are made in accordance with the Truth-in-Lending Act. Though the first agreement lacks a similar expression, it in fact discloses the same information as the second. Still, regardless of whether the particular federal protective regulations were cited, because Zippy Check — a lender of money to consumers — must operate in accordance with the Truth-in-Lending Act, its lending activities involve commerce. See id. (noting “[i]t is elementary to find that the contract affects interstate commerce inasmuch as Speedee Cash, a lender of money to consumers, must run its business in accordance with federal rules and regulations” (citation omitted)).

¶ 15. When viewed in the aggregate, we find it clear that the general check-cashing services performed by Zippy Check affect interstate commerce. Thus, the circuit judges correctly held that the FAA applied to both arbitration provisions.

II. External Legal Constraints

¶ 16. Having found the FAA applies, we next decide if the motion to compel arbitration was properly denied as substantively and procedurally unconscionable.

¶ 17. Our review begins with a two-pronged inquiry focusing on the specific arbitration agreements and whether legal constraints external to the agreements bar arbitration. Under the first prong, there are two considerations — “(1) whether there is a valid arbitration agreement and (2) whether the parties’ dispute is within the scope of the arbitration agreement.” Taylor, 826 So.2d at 713 (¶ 9). Under the second prong, we decide “whether legal constraints external to the parties’ agreement foreclose[] arbitration of the claims.” Id. at 713 (¶ 10) (citation omitted). To evaluate if such legal constraints exist, “courts generally should apply ordinary state-law principles that govern the formation of contracts.” Id. at 713-14 (¶ 12) (quoting Bank One, N.A. v. Coates, 125 F.Supp.2d 819, 827 (S.D.Miss.2001)).

¶ 18. We agree with the circuit judges that the disputes are within the scope of the arbitration agreements. But while the circuit judges found the provisions substantively and procedural unconscionable under the first prong, we find it more appropriate to address these state-law based external legal constraints, which, if applicable, preclude arbitrability under the second prong. See id. at 713 (¶ 10) (“Under the second prong, applicable contract defenses available under state contract law such as fraud, duress, and unconscionability may be asserted to invalidate the arbitration agreement without offending the[FAA].” (emphasis added)).

Unconscionability

¶ 19. “Unconscionability has been defined as ‘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 (¶ 11) (Miss.1998) (quoting Bank of Ind., Nat’l Ass’n v. Holyfield, 476 F.Supp. 104, 109 (S.D.Miss.1979)). There are two recognized types of unconscionability — “procedural and substantive.” Taylor, 826 So.2d at 714 (¶ 13) (quoting Pridgen v. Green Tree Fin. Servicing Corp., 88 F.Supp.2d 655, 657 (S.D.Miss.2000)). Here, the circuit judges found the two arbitration provisions were both procedurally and substantively unconscionable.

Procedural and Substantive Unconscionability

¶ 20. In reviewing these findings, we point out the differences between procedural and substantive unconscionability. “Procedural unconscionability may be proved by showing ‘a lack of knowledge, lack of voluntariness, inconspicuous print, the use of complex legalistic language, disparity in sophistication or bargaining power of the parties and/or a lack of opportunity to study the contract and inquire about the contract terms.’ ” Taylor, 826 So.2d at 714 (¶ 13) (quoting Pridgen, 88 F.Supp.2d at 657). Procedural uncon-scionability “is most strongly shown in contracts of adhesion presented to a party on a ‘take it or leave it basis.’ ” Id. at 716 (¶ 19) (quoting Entergy Miss., 726 So.2d at 1208 (¶ 15)).

¶ 21. Substantive uneonscionability, on the other hand, “may be found when the terms of the contract are of such an oppressive character as to be unconscionable.” Russell v. Performance Toyota, Inc., 826 So.2d 719, 725 (¶ 25) (Miss.2002). “[SJubstantive unconscionability is present when 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.” Cleveland v. Mann, 942 So.2d 108, 117 (¶ 29) (Miss.2006) (citation omitted).

III. The First Agreement

¶22. The first delayed-deposit agreement was signed by eight of the thirty-two plaintiffs. It is one page, front and back, and is entitled “Agreement.” The front page lists the basic terms of the contract, including the annual percentage rate, finance charge, amount financed, and total amount owed. The front of the page also provides signature lines for the customer and Zippy Check employee to sign, acknowledging their acceptance of the agreement’s terms. The back of the page lists additional terms, including the arbitration provision. These additional terms are in paragraph form, but there are no separate headings, no bolded words, no capitalized words, and no distinguishable provisions. And the print used on the back page is smaller than on the front. The arbitration clause, which is found in the fifth of these nine nondescript, small-print, back-page paragraphs, states:

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 arbitration may be entered in any court having jurisdiction thereof.

¶ 28. The Clarke County circuit judge noted the arbitration clause was intermingled with other non-distinguishable provisions and that it did “not even distinguish the paragraph with the arbitration language[ ] as an ‘Arbitration Provision.’ ” And, “[t]here is nothing in that first contract which would draw the readers’ attention to the arbitration language, nor is the paragraph highlighted from the rest of the text.” (Internal quotation marks omitted). Furthermore, the Clark County circuit judge labeled the agreement one of “adhesion” because Zippy Check had offered it to the plaintiffs on a “take-it-or-leave-it” basis with no real opportunity to bargain about its terms. Based on these considerations, both judges found the first arbitration provision was procedurally unconscionable.

A. Contract of Adhesion

¶ 24. We first consider whether the contract was one of adhesion. A contract of adhesion is an agreement “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. Such 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 (¶ 20) (quoting Holyfield, 476 F.Supp. at 108).

¶ 25. We find the circuit judges were correct that the agreements’ terms (in both the first and second agreement) appear to be non-negotiable. Shawana Sum-rail, Zippy Check’s Clarke County location manager, gave deposition testimony about the “take-it-or-leave-it” nature of the agreements:

Q: Well, let me ask you, had [the plaintiffs] wanted to exclude the arbitration provision or any other provision in [the agreement]; was it, you have to sign it as is or we can’t do business? They had to sign before you [could] give them the money[,] right?
A: Right.
Q: If they didn’t want to sign, would you give them the money?
A: I don’t think I could give them the money.

While Sumrall only testified about the Clarke County store, both contracts are pre-printed forms, and there was no record evidence contradicting her testimony or indicating a different negotiable practice had been utilized at Zippy Check’s Newton County location.

¶ 26. Based on our de novo review, we find the pre-printed delayed-deposit agreements appear to be contracts of adhesion. But we are mindful that “contracts of adhesion[ ] are not automatically void.” Taylor, 826 So.2d at 716 (¶ 20) (quoting Hughes Training, Inc. v. Cook, 254 F.3d 588, 593 (5th Cir.2001)). And the same is true of arbitration agreements. Id. (“[Arbitration agreements are not inherently unconscionable.” (citing Coates, 125 F.Supp.2d at 830)). Rather, an arbitration provision within “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[J or other pressures from being able to contract with another party on more favorable terms or to refrain from contracting at all.’ Id. (emphasis added) (quoting Entergy Miss., 726 So.2d at 1207 (¶ 12)).

¶ 27. Though the terms appear nonnegotiable, there is no record evidence that market factors, timing, or other pressures prevented the plaintiffs, in either county, from contracting with another party on more favorable terms or refraining from contracting at all. Lacking such evidence, we cannot find the plaintiffs were not free to employ the services of another check-cashing business had they found the terms of Zippy Check’s agreements unsatisfactory. So while not dispositive of the invalidity of the agreements, the fact that the agreements appear to be adhesion contracts may be considered in combination with other potential indicators of procedural unconscionability.

B. Use of Inconspicuous Print

¶28. Looking next to details of the first agreement’s text, we immediately notice the arbitration provision appears in much smaller print than many of the agreement’s other terms, including the transactional details on the first page. The use of finer print in an arbitration provision has also been deemed an indicator of procedural unconscionability. See Entergy Miss., Inc. 726 So.2d at 1207 (¶ 12) (citing Holyfield, 476 F.Supp. at 109-10). Indeed, our supreme court has found an arbitration clause containing “inconspicuous print” to be procedurally unconscionable. Taylor, 826 So.2d at 716-17 (¶¶ 21-22). Furthermore, the first agreement’s arbitration provision, which contains no number or heading, is found wedged in the midst of other non-distinguishable, non-labeled provisions on the back page of the agreement, all of which are typed in much smaller font than the terms on the first page.

¶ 29. Based on these combined factors, we agree with both circuit judges that the first arbitration provision is procedurally unconscionable. In light of our holding, we need not consider whether the first agreement is also substantively unconscionable. We remand for trial the claims of the eight plaintiffs who signed this version of the agreement.

IV. The Second Agreement

¶ 30. The circuit judges also found the second delayed-deposit agreement’s arbitration provision both procedurally and substantively unconscionable. As a result, both courts likewise denied arbitration on claims stemming from this variation of the agreements. But upon review, we find the second agreement’s arbitration clause neither procedurally unconscionable, nor oppressive or impermissibly one-sided. Thus, we reverse the denial of Zippy Check’s request for arbitration of the claims stemming from the second delayed-deposit agreement and compel arbitration on these claims.

A. The Text of the Second Arbitration Provision

¶ 31. The second delayed-deposit agreement was the version signed by the majority of the plaintiffs. Like the first agreement, it is a form contract. However, while it is a pre-printed form, the second agreement is a more concise recitation of the parties’ rights and obligations. It consists of only one side of a single page, with the financial charges and payment information listed at the top of the page. These transactional terms are followed by eight bolded headings, all of which are capitalized and set out in larger type than the bulk of the agreement’s other text. The sixth of these bolded headings is labeled “ARBITRATION PROVISION,” and states:

Any and all disputes or disagreements 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. [§ ] 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.

The agreement also includes a separate italicized paragraph, which emphasizes: “By signing this agreement, you acknowledge that you have read, understand,, and agree to all of [the] terms and conditions of the agreement, including the arbitration provision.”

B. Procedural Unconscionability

1. Contract of Adhesion

¶ 32. Similar to their findings on the first agreement, both circuit judges also found the second contract was one of adhesion and procedurally unconscionable. But again, the fact that a contract of adhesion contains an arbitration provision does not itself render the agreement procedurally unconscionable. Without record evidence that “market factors, timing, or other pressures” prevented these plaintiffs from being able to contract with other like businesses “on more favorable terms or to refrain from contracting at all,” we cannot find the contract presumptively void. See Entergy Miss., 726 So.2d at 1207 (¶ 12) (quoting Holyfield, 476 F.Supp. at 109-10). Thus, we must review the courts’ other findings.

2. Singling Out the Arbitration Provision

¶ 33. The circuit judges took issue with the second agreement’s failure to “alert the reader to the importance of the terms of the arbitration language[.]” However, Mississippi law does not render an arbitration provision unenforceable if its “importance” is not singled out, or given special notice in the contract. Indeed, if Mississippi did mandate specific enhanced notice of arbitration clauses, it would directly conflict with the FAA.

¶ 34. The United States Supreme Court has been rather clear that “[s]tates may regulate contracts, including arbitration clauses, under general contract law principles[,] and they may invalidate an arbitration clause ‘upon such grounds as exist at law or in equity for the revocation of any contract.’ ” Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 687, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996) (quoting Dobson, 513 U.S. at 281, 115 S.Ct. 834). But by enacting section 2 of the FAA, “Congress precluded [s]tates from singling out arbitration provisions for suspect status, requiring instead that such provisions be placed ‘upon the same footing as other contracts.’ ” Id. (quoting Scherk v. Alberto-Culver Co., 417 U.S. 506, 511, 94 S.Ct. 2449, 41 L.Ed.2d 270 (1974)).

¶ 35. So requiring enhanced notice of the “importance” of an arbitration clause was neither required of Zippy Cheek nor even permissible under the FAA. See id. at 688 (finding the FAA displaced a Montana law rendering arbitration clauses unenforceable unless notice that the contract is subject to arbitration is typed in underlined capital letters on the first page of contract). Thus, we find Zippy Check’s failure to specifically highlight the “importance” of the arbitration clause does not render the arbitration provision unconscionable.

3. Use of Lender and Borrower in Arbitration Provision

¶ 36. The circuit judges’ findings of the procedural unconscionability of the second agreement were also influenced by the differing terms used in the arbitration clause. As the Clarke County judge noted, “[t]he provision identifies the parties as ‘Lender’ and ‘Borrower’ while all other provisions and terms of the contract refer to ‘Licensee’ and ‘Customer!)]’ ” Though the judge correctly noted that the Mississippi Check Cashers Act refers to check cashers as “Licensees,” not “Lenders,” we do not find Zippy Check’s different labeling of the parties makes the provision unconscionable.

¶ 37. First, and perhaps foremost, the terms “Lender and Borrower” are by no means complex. Second, there is no evidence that any of the plaintiffs were confused by the differing terms. And third, the arbitration clause clearly states that the parties agree to arbitrate any and all disputes arising out of, or in any way related to, their agreement. When considered against the backdrop of the acknowledgment advising each customer that “[b]y signing this agreement you acknowledge that you have read, understand, and agree to ... the arbitration provision ...,” we find nothing to show the use of the slightly different terms rendered the second arbitration provision procedurally unconscionable.

C. Substantive Unconscionability of the Second Arbitration Provision

¶ 38. In addition to their findings of procedural unconscionability, the circuit judges also found the second arbitration provision substantively unconscionable. Their prominent reason for doing so was that the arbitration clause “reserved [Zippy Check] a greater right or privilege to enforce the payment obligation, in the event of default by the Customer, by judicial or other process.” But it is now well-settled Mississippi law that “mutuality of obligation is not required for an arbitration agreement to be enforceable as long as there is consideration.” McKenzie Check Advance of Miss. v. Hardy, 866 So.2d 446, 453 (¶ 23) (Miss.2004); see also Sawyers v. Herrin-Gear Chevrolet Co., 26 So.3d 1026, 1035 (¶ 22) (Miss.2010) (citing Hardy and recognizing mutuality of obligation is not required for arbitration agreement to be enforceable).

¶ 39. To find mutuality of obligation is not required to enforce arbitration clauses, the Hardy court drew from several federal district court decisions, the most instructive of which is perhaps Pridgen, 88 F.Supp.2d 655. In that case, Judge Barbour reviewed what he deemed a “clearly one-sided” arbitration provision, ultimately finding it enforceable because consideration was present. Id. at 658. Pridgen involved a borrower who had defaulted on a loan and later argued the installment contract’s arbitration provision was substantively unconscionable because it reserved the lender’s assignee the right to seek judicial remedies on certain actions, while at the same time preserving the lender’s assignee the right to compel arbitration as to any other claim. Id. Essentially, the lender’s assignee “had an option of whether to sue in court, especially with certain types of claims, or to submit a claim to arbitration.” Id. But the borrower was bound to arbitrate any claim based on the contract. Id.

¶ 40. Though the arbitration provision favored the lender’s assignee, Judge Barbour found that Mississippi law did not render the arbitration clause unenforceable merely because it was one-sided. Our supreme court in Hardy drew from this reasoning, establishing that under Mississippi law, “mutuality of obligation is not required for an arbitration agreement to be enforceable as long as there is consideration.” Hardy, 866 So.2d at 453 (¶ 23).

¶ 41. Here, the second arbitration provision permitted either the borrower or Zippy Check to require arbitration for disputes arising from the second delayed-deposit agreement. The lone exception was Zippy Check’s reservation of the right, upon default, to enforce a customer’s payment obligations through the judicial process. While this exception granted Zippy Check an option not available to the plaintiffs, we find that because consideration was obviously present, mutuality of obligation was not required. Thus, we find the exception permitting Zippy Check to collect from a customer through the judicial process is insufficient to render the second arbitration clause substantively unconscionable.

Conclusion

¶ 42. Because we find the first arbitration provision proeedurally unconscionable, we affirm the circuit courts’ judgments denying Zippy Check’s motions to compel arbitration with respect to the eight plaintiffs who signed the first agreement. But as to the remaining twenty-four plaintiffs, we reverse the judgments of the circuit courts and remand with instructions to stay the proceedings and refer the claims contained in the complaints to arbitration.

¶ 43. THE JUDGMENTS OF THE CLARICE COUNTY CIRCUIT COURT AND THE NEWTON COUNTY CIRCUIT COURT ARE AFFIRMED IN PART AND REVERSED AND REMANDED IN PART. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANTS AND APPELLEES.

LEE, C.J., IRVING AND GRIFFIS, PJJ., BARNES, ISHEE, ROBERTS, FAIR AND JAMES, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      . The Mississippi State Legislature raised this amount from $400 to $500, effective January 1, 2012. See Miss.Code Ann. § 75-67-519 (Supp.2012) and Amendment Notes.

      . See Miss.Code Ann. § 75 — 67—519(2)—(4). For cashing a delayed-deposit check less than $250, the fees are capped at $20 per $100 advanced. Miss.Code Ann. § 75-67-519(4)(a). The cap then increases to $21.95 per $100 advanced for cashing a delayed-deposit check over $250. Miss.Code Ann. § 75-67-519(4)(b). These fees are considered one-time service fees rather than interest. Miss.Code Ann. § 75-67-515(4) (Supp.2012).

      . The Hardy court also discussed First Family Financial Services, Inc. v. Fairley, 173 F.Supp.2d 565 (S.D.Miss.2001) and Murphy v. AmSouth Bank, 269 F.Supp.2d 749 (S.D.Miss.2003).

      . Pridgen, 88 F.Supp.2d at 658-59. Other federal court reviewing similar challenges to arbitration provisions have reached the same conclusion. See Doctor's Assocs., Inc. v. Distajo, 66 F.3d 438, 451-53 (2d Cir.1995) (holding that mutuality of obligation is not required to enforce an arbitration agreement if the underlying contract is supported by consideration); Wilson Elec. Contractors, Inc. v. Minnotte Contracting Corp., 878 F.2d 167, 168-69 (6th Cir.1989) (rejecting claim that an arbitration clause is an independent contract that requires separate consideration to be enforceable).


author: GRIFFIS, P.J.,

text:
    Druscilla THOMAS a/k/a Druscilla Morey, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-01904-COA.
    Court of Appeals of Mississippi.
    May 28, 2013.
    Rehearing Denied Sept. 3, 2013.

      George T. Holmes, Jackson, Hunter Nolan Aikens, Michael Anthony Williams, attorneys for appellant.

      Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Druscilla Thomas was convicted of aggravated assault. She was sentenced to a term of fifteen years, with ten years to serve followed by five years of post-release supervision. On appeal, Thomas argues that the trial court erred when it refused a jury instruction that would have informed the jury that she had no duty to flee Kerwanda Mitchell’s attempted use of deadly force. She also argues that the verdict is against the overwhelming weight of the evidence. We find no error and affirm.

FACTS

¶ 2. Thomas worked as a disc jockey at a night club called the Meeting Place. On July 28, 2010, Thomas’s cousin Bridget Adams (“Beebe”) and Mitchell were also at the club. Beebe offered Mitchell a ride home in Thomas’s car.

¶ 8. According to Mitchell’s version of the events, Thomas walked up to the car and said, “Where is this B[* * * *] think she going?” Mitchell replied, “Hold on, you don’t know me like that. You is a B[* * * *].” Mitchell testified that Thomas sat in the front seat, and the argument continued. Thomas asked Mitchell to get out of the car and Mitchell did.

¶4. Mitchell testified that Thomas got out of the car and hit Mitchell from behind on the side of her face. Mitchell fell to the ground, and Thomas got on top of Mitchell and hit her. Mitchell reached into her bra, pulled out a knife, and stabbed Thomas in her stomach. They both got up, and Mitchell walked away and swung the knife as Thomas continued to fight. Other peo-pie broke up the fight. Mitchell dropped the knife and walked away.

¶ 5. Mitchell testified that she was alerted to turn around. When she turned around, Thomas had a gun in her face. Mitchell said she put her hands in front of her face, and Thomas shot the gun. The bullet hit Mitchell’s left hand. Mitchell ran to a nearby house. Thomas followed and continued to shoot at her.

¶ 6. Once Mitchell arrived at the nearby house, the police were called. Mitchell went to Delta Regional Medical Center. She was then transported to University Medical Center in Jackson. A metal plate was inserted into her hand. She is now unable to close her hand.

¶ 7. According to Thomas, once she finished work and got paid, she walked out to her car to go home. Thomas noticed Mitchell in her back seat and asked where Mitchell was going. Mitchell told her, “You going to take me on Nelson [Street].” Thomas told her she would not take her anywhere because she was ready to go home. Thomas testified Mitchell “went to calling me all types of b* ⅜ ⅞ * *s ... and this here and that.”

¶ 8. Thomas testified that she then got out of her car to call 911. She said Mitchell also got out of the car and “rushed and stabbed me with an ice pick.” She said Mitchell stabbed her on top of the head and in the stomach.

¶ 9. Thomas testified that at this point she feared for her life. So, she grabbed a gun from inside her bra and shot Mitchell. She testified that she only shot her gun once, and her only objective was to protect herself. Thomas said she took her cousin home and then went to the emergency room. She was treated for stab wounds to the head and stomach.

¶ 10. Investigator Jeffrey Grace responded to a call that someone had been shot at 204 South Seventh Street. Grace testified that in the statement he initially took from Mitchell, she said Thomas hit her, knocked her into a barbeque pit, and slammed her to the ground by the throat. Mitchell testified that she did not remember making this statement.

¶ 11. Officer Chris Surf also responded. Officer Surf saw Mitchell on the ground with what appeared to be a gunshot wound to the left hand. He testified that he later went to Delta Regional Medical Center and observed Thomas’s car in the parking lot. He observed blood smeared in the front of the driver area, including on the steering wheel, dashboard, and shift. He then spoke with Mitchell. Mitchell stated that Thomas had shot her.

¶ 12. John Pork testified that he had told the police his name was John Wheatley and that he saw Thomas shoot Mitchell. Pork also testified that he was intoxicated at the time he made those statements. At trial, he testified that he did not see Thomas shoot Mitchell. He admitted that he had dated Thomas but claimed he did not date her at the time of the incident or trial. Later in his testimony, Pork said that he did not remember telling the police he saw Thomas shoot Mitchell, because he had been drinking.

¶ 13. The jury found Thomas guilty.

ANALYSIS

I. The trial court did not err when it refused to give Thomas’s stand-your-ground jury instruction.

¶ 14. This Court applies an abuse-of-discretion standard of review to the refusal of jury instructions. Harris v. State, 85 So.3d 300, 304-05 (¶ 11) (Miss.Ct.App.2012). “‘[T]he instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.’ ” Newell v. State, 49 So.3d 66, 73 (¶ 20) (Miss.2010) (quoting Rubenstein v. State, 941 So.2d 735, 785 (¶224) (Miss.2006)).

¶ 15. Thomas argues that the court erred when it refused to give the following jury instruction:

The Court instructs the jury that in order to claim self-defense, there is no duty to flee on the part of a person faced with life threatening danger, so long as she is in a place where [she] has a right to be, and is neither engaged in an unlawful [sic], nor the provoker of, nor the aggressor in the combat; in such case, she may stand [her] ground and resist force by force, taking care that her resistance be not disproportion^!] to the attack.

¶ 16. The Mississippi Supreme Court addressed whether it is error to refuse a stand-your-ground instruction in Spires v. State, 10 So.3d 477, 483 (¶ 26) (Miss.2009). Spires argued the trial court had erred when it refused to give a stand-your-ground instruction to the jury. Id. The supreme court held that “[e]very accused has a fundamental right to have her theory of the case presented to a jury, even if the evidence is minimal.” Id. at (¶ 27) (quoting Chinn v. State, 958 So.2d 1223,1225 (¶ 13) (Miss.2007)).

¶ 17. The court also determined “[a] defendant is entitled to have jury instructions given which present his theory of the case; however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence. Id. at (¶ 28) (quoting Heidel v. State, 587 So.2d 835, 842 (Miss.1991)). Furthermore, when there is doubt “as to whether an instruction should be included, the doubt should be resolved in favor of the accused.” Maye v. State, 49 So.3d 1124, 1129 (¶ 8) (Miss.2010) (citation omitted).

¶ 18. We first consider whether the proposed instruction correctly stated the law. In Craig v. State, 660 So.2d 1298, 1300 (Miss.1995), the court stated that if a person is (1) in a place where she has a right to be and (2) not the provoker or aggressor, that person can stand her ground as long as her resistance is not disproportionate to the attack. Thomas’s proposed instruction correctly stated the law.

¶ 19. Next, we consider whether the proposed instruction was covered fairly elsewhere in the instructions.

¶ 20. The Mississippi Supreme Court addressed whether it is error to refuse a stand-your-ground instruction in Cook v. State, 467 So.2d 203, 211 (Miss.1985). Cook argued the trial court erred when it refused to submit the jury an instruction that said Cook did not have to flee if he was in a place where he had the right to be and was not the immediate aggressor. Id. at 209. The court noted that the jury had been given a general self-defense instruction. Id. at 210. It also noted that “where one jury instruction adequately covers the defendant’s theory of self-defense, there is no error in refusal of a second or redundant instruction.” Id. (citation omitted). The court found Cook was where he had a right to be and that there was no proof that he was the aggressor. Id. at 211. Thus, he was entitled to an instruction that he could stand his ground and not forfeit his right of self-defense. Id. The general instruction read:

The Court instructs the Jury that in deciding upon the guilt or innocence of CLARENCE EDWARD COOK, you should determine what an ordinary and reasonable man might have reasonably
inferred from all the facts and circumstances by which the evidence shows that GLARENCE EDWARD COOK was at the time surrounded, and, in doing so must not try him in the light of subsequent developments nor must they require of him the same cool judgment that the Jury can now bring to bear upon the occurrence. The Jury must put themselves, as far as possible, in CLARENCE EDWARD COOK’S place, and then judge whether the danger was apparent, or should have been considered apparent by a man of ordinary caution and prudence in like condition.
The Court instructs the Jury that although you may find in this case that CLARENCE EDWARD COOK was armed at the time he was in the Lil Loafer Lounge on the evening in question, if you also believe that CLARENCE EDWARD COOK never had any intent to kill DUDLEY CHANDLER, and that he was then and there faced with a situation where the deceased had a pool cue stick and made threatening gestures in the direction of CLARENCE EDWARD COOK, and that CLARENCE EDWARD COOK then and there reasonably believed that DUDLEY CHANDLER was attempting to hit him or would hit him with the pool cue stick and that CLARENCE EDWARD COOK had reasonable cause to believe and did believe that he was in imminent danger of being killed or receiving serious bodily harm at the hands of DUDLEY CHANDLER and that it was necessary to shoot at him to save his own life, then you will find the defendant CLARENCE EDWARD COOK not guilty.

Id. at 210 n. 5. The supreme court found that this instruction did not embrace the principle at issue. Id. at 211. As such, the trial judge erred when he refused the stand-your-ground instruction. Id.

¶ 21. However in Spires, the Mississippi Supreme Court found that Spires’s argument failed because his stand-your-ground instruction was “covered fairly elsewhere in the instructions.” Spires, 10 So.3d at 484 (¶ 29).

¶ 22. The argument in Spires was the same as Thomas’s argument in this case. Thus, it is necessary to compare the instructions given in Spires with those given in this case to determine if the stand-your-ground instruction was fairly covered.

¶ 23. The following self-defense instructions were given in Spires:

Instruction S-101 stated:
The Court instructs the Jury that to make a killing justifiable on the grounds of self-defense, the danger to the Defendant must be either actual, present and urgent, or the Defendant must have reasonable grounds to apprehend a design on the part of the victim to kill him or to do him some great bodily harm, and in addition to this he must have reasonable grounds to apprehend that there is imminent danger of such design being accomplished. It is for the jury to determine the reasonableness of the ground upon which the Defendant acts. Instruction S-102A stated:
The Court instructs the Jury that a person may not use more force than reasonably appears necessary to save his life or protect himself from great bodily harm. The question of whether he was justified in using the weapon is for determination by the jury.
The law tolerates no justification and accepts no excuse for an assault with a deadly weapon on a plea of self-defense except when the assault by the Defendant on the victim was necessary or apparently so to protect the Defendant’s own life or his person from great bodily injury and there was imminent danger of such design being accomplished. The danger to life or of great personal injury must be or reasonably appear to be imminent and present at the time the Defendant commits the assault with a deadly weapon. The term “apparent” as used in “apparent danger” means such overt, actual demonstration by conduct and acts of a design to take life or do some great personal injury as would make the Capital Murder apparently necessary to self preservation or to escape great bodily harm.
Instruction D-6A stated:
The Court instructs the jury that every killing of a human being is not a crime, and that it is not incumbent upon the Defendant, Joel Scott Spires, to prove conclusively that he acted in self-defense. All that is necessary for the Defendant, Joel Scott Spires, to prove in order to establish self-defense, is that at the time of death of Rodney Wade Saucier, the Defendant, Joel Scott Spires, had reasonable grounds to apprehend danger to his life or great bodily harm on account of the actions of Rodney Wade Saucier and if you, the jury find that the Defendant, Joel Scott Spires, had reasonable grounds to apprehend danger to his life or great bodily harm on account of the actions of Rodney Wade Saucier and that the Defendant, Joel Scott Spires, acted in self-defense, then you, the jury shall find Joel Scott Spires, “Not Guilty.”
Instruction D-9A stated:
The Court instructs the jury that the Defendant, Joel Scott Spires, was entitled to act upon appearances. If the conduct of Rodney Wade Saucier was such as to induce in the mind of a reasonable person a fear that death or great bodily harm was about to be inflicted by Rodney Wade Saucier on Joel Scott Spires, situated as was the Defendant, Joel Scott Spires, under all the circumstances then existing, and viewed from the standpoint of the Defendant, Joel Scott Spires, then it does not matter if there was no such danger. If you the jury believe that the Defendant, Joel Scott Spires, acted in self-defense from the real and honest conviction that he was in danger or [sic] death or great bodily harm, then you, the jury, shall find the Defendant, Joel Scott Spires, “Not Guilty,” even though you, the jury, believe that at the time Joel Scott Spires was mistaken and was not in any great danger.

Id. at 484-85 (¶¶ 31-34).

¶ 24. Although none of the instructions explicitly referred to Spires’s right to stand his ground, the court found that the instructions given “ ‘fairly covered’ Spires’s right to stand and fight if he reasonably believed that he was in danger of death or great bodily harm.” Id. at 485 (¶ 35).

¶ 25. Here, the jury was given the following instructions:

Jury Instruction No. 7
The Court instructs the Jury that if a defendant invokes the right of self-defense in resisting an attacker, then the defendant may not use more force than reasonably necessary under the circumstances then and there existing to repel her attacker.
If you find from the evidence, beyond a reasonable doubt, that the Defendant, Druscilla Thomas, caused serious bodily injury to Kerwanda Mitchell by shooting her and that said shooting was a use of more force than reasonably] necessary under the circumstances of this case, then the defense of self-defense would not apply to this case.
It is for the Jury to determine the appropriateness of [the] defendant’s weapon and use of force.
Jury Instruction No. 8
The Court instructs] the jury that to make an assault justifiable on the grounds of self-defense the danger to Druscilla Thomas, must be either actual, present, or urgent, or Druscilla Thomas must have reasonable grounds to apprehend a design on the part of Kerwanda Mitchell to do her some great bodily harm, and in addition to this, Druscilla Thomas, must have reasonable grounds to apprehend that there is imminent danger of such design being accomplished. It is for the jury to determine the reasonableness upon which the defendant acts. If you the jury unanimously find the defendant acted in self-defense, then it is your sworn duty to return a verdict in favor of the defendant.
Instruction No. 12
The Court instructs the jury that to make a shooting justifiable on the grounds of self-defense, the danger to the defendant must be either, actual, present and urgent, or the defendant must have reasonable grounds to apprehend a design on the part of the victim to do to him some great bodily harm, and in addition to this he must have reasonable grounds to apprehend that there is imminent danger of such design being accomplished. It is for the jury to determine the reasonableness of the ground upon which the defendant acts. The Court further instructs the jury that if you find from the evidence in this case that on or about July 28, 2010, that Druscilla Thomas, did shoot and injure Kerwanda Mitchell; but that such shooting was in necessary self-defense, then it is your sworn duty under the law to find the Defendant, Druscilla Thomas, not guilty of Aggravated Assault.
Instruction No. 13
The Court instructs the jury that you are not to judge the actions of Druscilla Thomas in the cool, calm light of after-developed facts, but instead you are to judge [her] actions in the light of the circumstances confronting Druscilla Thomas at the time, as you believe from the evidence that those circumstances reasonably appeared to her on that occasion; and if you believe that under those circumstances it reasonably appeared to Druscilla Thomas that [she] then and there had reasonable grounds to apprehend some great personal injury from Kerwanda Mitchell, and there reasonably appeared to Druscilla Thomas to be imminent danger of such designs being accomplished; then she was justified in using reasonable means to defend such attack, [and] you must find Druscilla Thomas not guilty of Aggravated Assault.

¶26. In both Cook and Spires, none of the instructions specifically referred to the defendants’ rights to stand their ground. Similarly, here, none of the instructions specifically referred to Thomas’s right to stand her ground. However, following Spires, we conclude that the instructions given fairly covered Thomas’s right. As such, we find that the trial court was not in error to refuse the stand-and-fight instruction, because the instructions given fairly covered Thomas’s right to stand and fight if she reasonably believed that she was in danger of death or great bodily hann.

¶ 27. Finally, we consider whether there was a factual basis for the proposed instruction.

¶ 28. In Banyard v. State, 47 So.3d 676, 681 (¶ 12) (Miss.2010), the supreme court held that “[a] criminal defendant is entitled to have his jury instructed on all offenses of which an evidentiary basis exists in the record, even where the evidence arises only in the defendant’s own testimony.” Thus, this Court may look to Thomas’s testimony for evidentiary support for the stand-your-ground instruction.

¶29. In Spires, the supreme court found that there was no factual basis for the stand-your-ground instruction and found “nothing in Spires’s testimony that would suggest to a reasonable juror that he ever had an opportunity to retreat from the fight.” Spires, 10 So.3d at 485 (¶ 36). Instead, Spires testified that he did not have the opportunity to escape the fight. Id. In Haynes v. State, 451 So.2d 227, 229 (Miss.1984), the court ruled that “[w]hen-ever, from the facts of the case, it appears that the defendant could have avoided the fatal difficulty only by precipitous retreat, but did not leave, if the other requisite factors are present ... then the defendant is entitled to such an instruction.”

¶ 30. Again, this case is similar to Spires. Thomas testified that she “saw [Mitchell] was coming down with the ice pick again, and I just shot her in her hand.” Furthermore, she testified the incident only lasted “probably about 45 seconds.” Although Thomas did not specifically say she did not have the opportunity to flee, her testimony indicates that under her version of events, she could not have retreated and avoided the conflict. Thus, there was no factual basis for the stand-your-ground instruction and nothing in Thomas’s testimony that would suggest to a reasonable juror that she ever had an opportunity to retreat from the fight. As a result, the jury instruction was not supported by the evidence.

¶ 31. Furthermore, under Mitchell’s version of events, the jury instruction was not supported by the evidence. Under Mitchell’s version, Thomas began the altercation when she hit Mitchell. Thomas continued to attack Mitchell, and Mitchell stabbed Thomas in the stomach. Mitchell then abandoned the conflict, dropped her weapon, and walked away when she was alerted to turn around. When she turned around, Thomas’s gun was pointed toward her. Mitchell then put her hands in front of her face defensively and Thomas shot her. Thus, under Mitchell’s version of events, Thomas was the provoker or aggressor and, as such, was not entitled to a stand-your-ground instruction.

¶ 32. Because the stand-your-ground instruction was not supported by the evidence and was covered fairly elsewhere in the instructions, it was not error for the trial court to refuse the instruction.

II. The verdict was not against the overwhelming weight of the evidence.

¶ 33. In reviewing “the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005) (citation omitted). “[T]he evidence should be weighed in the light most favorable to the verdict.” Id. (citation omitted). “This Court does not have the task of re-weighing the facts in each case to, in effect, go behind the jury to detect whether the testimony and evidence they chose to believe was or was not the most credible.” Langston v. State, 791 So.2d 273, 280 (¶14) (Miss.Ct.App.2001).

¶ 34. The jury in this case was presented with two different versions of the facts. “We will not disturb a jury’s finding on conflicting testimony where there is substantial evidence to support the verdict.” Taylor v. State, 744 So.2d 306, 312 (¶ 17) (Miss.Ct.App.1999) (quoting Allman v. State, 571 So.2d 244, 253 (Miss.1990)). It is not the function of this Court “to determine whose testimony to believe.” Id. (quoting Allman, 571 So.2d at 253).

¶ 35. Mitchell and Thomas both testified. They each stated their version of events. Thomas argues that even if the jury believed Mitchell’s version, the evidence still showed that Thomas acted in self-defense.

¶ 36. The Mississippi Supreme Court has said “[t]o make an assault justifiable on grounds of self-defense, danger to the defendant must be either actual, present and urgent, or [the] defendant must have reasonable grounds to apprehend design on the part of the victim to kill, or to do him some great bodily harm, and, in addition, there must be [imminent] danger of such design being accomplished.” Anderson v. State, 571 So.2d 961, 963 (Miss.1990) (citations omitted).

¶ 37. Furthermore, this Court has found that it was reasonable for a jury to conclude a defendant did not fear for his safety when evidence indicated the victim tried to flee. Knox v. State, 912 So.2d 1004, 1009 (¶ 22) (Miss.Ct.App.2005). Under Mitchell’s version of events, she had abandoned the conflict, dropped her weapon, and walked away when she was alerted to turn around. When she turned around, Thomas’s gun was pointed toward her. Mitchell then put her hands in front of her face defensively and Thomas shot her.

¶ 38. The evidence presented would allow the jury to conclude that Mitchell had abandoned the conflict, and like in Knox, there was no present or urgent danger to Thomas. The verdict indicates that the jury believed Mitchell’s version of events. Because there was substantial evidence in the record to support the jury’s conclusion that Thomas did not act in self-defense, the verdict is not against the overwhelming weight of the evidence.

¶ 39. Mississippi Code Annotated section 97-3-7(2)(b) (Rev.2006) says that “[a] person is guilty of aggravated assault if he ... attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm[.]” Thomas admitted that she shot Mitchell in the hand. Taking this evidence in the light most favorable to the verdict, we find no error.

¶ 40. THE JUDGMENT OF THE WASHINGTON COUNTY CIRCUIT COURT OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TEN YEARS TO SERVE FOLLOWED BY FIVE YEARS OF POST-RELEASE SUPERVISION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WASHINGTON COUNTY.

LEE, C.J., IRVING, P.J., ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.