text:
    Ronald HUSBAND, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-KA-00290-COA.
    Court of Appeals of Mississippi.
    June 16, 2009.
    Rehearing Denied Nov. 24, 2009.

      Justin Taylor Cook, Ray Charles Carter, Ridgeland, attorneys for appellant.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
    Before KING, C.J., BARNES and ISHEE, JJ.
   KING, C.J.,

for the Court.

¶ 1. Ronald Husband was convicted of two counts of capital murder of two police officers and sentenced to serve two terms of life, without eligibility for parole, in the custody of the Mississippi Department of Corrections (MDOC).

¶ 2. Husband appeals his conviction and sentence, raising the following three issues: (1) whether the trial court erred in denying his motion for a new trial; (2) whether the trial court erred in failing to include a lesser-ineluded-offense jury instruction for manslaughter; and (3) whether the jury instructions that were given misstated the law and confused the jury.

¶ 3. Finding no error, we affirm.

FACTS

¶4. On November 27, 2005, two Wiggins, Mississippi police officers were dispatched in response to a disturbance at the home of Francis Arnold (Francis). Francis testified at trial that prior to the disturbance, she was at Forrest General Hospital with her ailing spouse and Husband, the couple’s close friend. Francis returned home that evening to gather a change of clothes. Shortly thereafter, Husband arrived at her home. Francis testified that Husband’s presence was not surprising because he visited the family often. However, on this occasion, Husband began choking and hitting Francis while accusing her of lying about coming home. She began bleeding and begged Husband to let her clean her face, which he did. On her way to the bathroom, Francis discretely dialed 911. Husband noticed the phone, grabbed it away from her, and threw it, causing the phone to hang up. After the “hang-up” telephone call, the 911 operator called the number back. The call was picked up, and the operator heard sounds of a male and a female arguing, which led the dispatcher to believe that a disturbance was taking place at the home. While on the line, the operator recognized Francis’s voice, but she did not recognize the male voice that she heard. Remaining on the line, the 911 operator dispatched two Wiggins police officers, Odell Fite and Brandon Breland, to Francis’s residence. When Officers Fite and Breland arrived at the residence and saw Francis’s bloody condition, they asked Husband to leave with them. Husband refused and a struggle followed in the front yard. Hearing the continuing struggle, the 911 operator dispatched more help for Officers Breland and Fite.

¶ 5. Francis testified that during the struggle in the front yard, one of the officers warned that he was going to use mace on Husband. Upon hearing this, Francis moved to the front porch. From the front porch, Francis looked back and saw Husband straddling one of the officers as he was lying on the ground. She then ran into the house. According to Francis’s testimony, Husband was pointing an object at the officer. As Francis entered the house through the doorway, she heard the officer say, “okay, okay,” and then heard two gunshots. Fearing for her safety, Francis ran through the mobile home and exited out of the rear bathroom window. After reaching the shrubbery in the backyard area, Francis heard two more gunshots. She ran from the home and received assistance from a neighbor who drove her back to the scene. Other officers from the Stone County Sheriffs Department, the Mississippi Bureau of Investigation, and several other agencies had arrived at the home to find Officers Fite and Breland fatally wounded in the front yard. These officers also noticed that Officer Fite’s official weapon was missing.

¶ 6. Francis returned home shortly after the officers were found, but she was instructed to leave. Francis then went to the Wiggins Police Station and gave both a written and an oral statement regarding the event, identifying Husband as the man who had assaulted both her and the police officers. The authorities went to Husband’s home, arrested him, and placed him in custody at the Stone County Sheriffs Department.

¶ 7. Three days later, a dive team recovered Officer Fite’s weapon from a shallow ditch of water located along the road between Francis’s and Husband’s houses. Autopsies performed on the bodies revealed that both officers died from bullet wounds. The bullet wounds were found to be consistent with the type of bullet used in Officer Fite’s recovered gun.

¶ 8. A Stone County grand jury indicted Husband as a habitual offender for two counts of capital murder of a peace officer in violation of Mississippi Code Annotated section 97-3-19(2)(a) (Rev.2006). Husband filed a motion requesting a change of venue. The trial court granted the change of venue, and the trial was transferred to Lauderdale County. Husband was convicted of two counts of capital murder and sentenced to serve two terms of life, without eligibility for parole, in the custody of the MDOC. After the verdict was read, but before sentencing, one juror expressed doubt as to Husband’s guilt and was dismissed from the sentencing phase deliberations. The juror was replaced with an alternate juror who, in a letter to the court sent after Husband was sentenced, also expressed doubt about Husband’s guilt. After being denied post-trial relief, Husband perfected his appeal. On appeal, Husband seeks a reversal of his convictions and sentences and a new trial. Alternatively, Husband requests that this Court vacate his convictions and sentences and discharge him from custody.

STANDARD OF REVIEW

¶ ? 9. We review the denial of a post-trial motion seeking a new trial under an abuse of discretion standard. Dilworth v. State, 909 So.2d 781, 736(¶ 17) (Miss.2005).

DISCUSSION

I. WEIGHT OF THE EVIDENCE

¶ 10. Husband argues that the trial court erred by denying his motion for a new trial because the verdict was against the overwhelming weight of the evidence. The standard of review for determining whether a jury verdict is against the overwhelming weight of the evidence is well settled. We will not grant a new trial “unless convinced that the verdict is so contrary to the overwhelming weight of the evidence that, to allow it to stand, would be to sanction an unconscionable injustice.” McLendon v. State, 945 So.2d 372, 385(¶40) (Miss.2006) (citing Groseclose v. State, 440 So.2d 297, 300 (Miss.1983)).

¶ 11. First, Husband argues that the jury’s verdict was against the overwhelming weight of the evidence because two of the thirteen jurors (twelve original jurors and one alternate) expressed concern regarding the jury’s guilty verdict. After the guilty verdict was read, but before the sentencing deliberations, one juror sent a note to the judge stating that she did not “feel that Ronald Husband [was] guilty” and asked the judge to “please take [her] off the case.” During an in camera interview with the juror, the judge determined that she could not proceed as a juror in the penalty phase of the proceedings because she was “emotionally sick” and, thus, unable to render a fair and impartial verdict in the next phase of the trial. The judge excused the juror and replaced her with an alternate juror. The replacement juror also expressed concern about the guilty verdict in a letter sent to the court after Husband was sentenced.

¶ 12. “Inquiries into the validity of verdicts are governed by Rule 606(b) of the Mississippi Rules of Evidence, which provides that a juror may not impeach a verdict by using thought processes or discourses which may have contributed to a verdict.” Johnson v. St. Dominics-Jack- son Mem’l Hosp., 967 So.2d 20, 25(¶ 15) (Miss.2007). Specifically, Mississippi Rule of Evidence 606(b) states:

[A] juror may not testify as to any matter or statement occurring during the course of the jury’s deliberation or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith....

¶ 13. Rule 606(b) has been interpreted by the supreme court as prohibiting consideration of any evidence from a juror by affidavit or any other form of communication that would invite the court to examine the deliberations of a jury. See Gladney v. Clarksdale Beverage Co., 625 So.2d 407, 412 (Miss.1993) (stating that the circuit court did not err in striking juror affidavits as the prerequisite showing under Rule 606(b) for juror testimony was not met). Accordingly, the court refused to disturb the jury’s guilty verdict in Johnson, where the appellant alleged that a post-trial e-mail sent to the judge by a juror undermined the verdict announced at trial. Johnson, 967 So.2d at 25(¶ 17). In that case, the supreme court, relying on Rule 606(b), refused to disturb the jury’s verdict, finding that “jurors may not impeach their own verdicts on the basis of their mental processes or deliberations.” Id. at 26 (¶¶ 22-24) (citations omitted).

¶ 14. We note that Rule 606(b) creates an exception to the court’s inability to inquire into the validity of a verdict by stating “that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.” However, Husband does not claim that extraneous information or outside influences prejudiced the jury’s verdict. Instead, he argues that two jurors expressed second thoughts about the verdict after the trial was concluded. Thus, “ [i]n the absence of a threshold showing of external influences, an inquiry into a juror verdict is not required.” Gladney, 625 So.2d at 419. This assertion of error is without merit.

¶ 15. Next, Husband argues that the physical and forensic evidence presented at trial was insufficient to support the guilty verdict. Husband states that his tire expert testified that the tire prints found at the scene were inconsistent with impressions made of Husband’s actual tires. Husband also states that the glass fragments found on his clothing and in his vehicle did not match the glass fragments found at the murder scene. Conversely, the State argues that, while impressions made from Husband’s vehicle’s tires could not specifically be matched to the tire prints found at the murder scene, Husband was still capable of being at the scene on the night of the murders.

¶ 16. Husband’s tire expert testified on cross-examination that Husband’s vehicle simply may not have left any prints at Francis’s home at all, depending on the conditions of the ground. Also, the glass identification expert testified that, while he did not think that the pieces of glass found at the scene were consistent with those found on Husband’s sweatshirt and in his car, the unknown glass fragments used for identification were quite small, making them hard to match.

¶ 17. Other evidence presented at trial contradicts Husband’s assertion that the physical and forensic evidence was insufficient to support the jury’s guilty verdict. When reviewing evidence presented at trial, the jury must “put the evidence together like pieces of a jigsaw puzzle, and in the end, view the evidence as a whole.” Jones v. State, 918 So.2d 1220, 1226(¶ 15) (Miss.2005).

¶ 18. During Husband’s trial, the jury heard testimony from Francis that she was involved in a struggle with Husband moments before the officers arrived on the scene. Evidence found at the crime scene corroborates that there was a struggle at the home. Prior to that struggle, the two were seen together in surveillance photographs from the hospital where Francis’s husband was an admitted patient. In these photographs, Husband is seen wearing a ball cap, sunglasses, a gold chain, and a grey sweatshirt. Three of these items were found strewn about the crime scene. Although a conclusive match could not be made, DNA samples from this evidence did not exclude Husband as having had contact with, or possibly owning, the items. Further, blood evidence taken from an unwashed grey sweatshirt that was found in the washing machine at Husband’s home on the night of the crime was consistent with Francis’s DNA.

¶ 19. Francis testified that she saw Husband straddling a police officer in the front yard of her home and pointing an object toward the officer. Francis also testified that she heard one of the officers say, “Okay, okay,” while Husband straddled him and pointed the object at the officer. Although Francis could not confirm that the object was a gun, she did testify that she heard gunshots as she fled from the scene.

¶ 20. During the investigation, the police-issue gun belonging to Officer Fite was determined to be missing. Several days later, the gun was found in a ditch between the crime scene and Husband’s home. A ballistics expert testified that the bullets that fatally wounded both officers were consistent with the type of bullets used in Officer Fite’s gun.

¶ 21. Based on the aforementioned evidence, a reasonable juror could have found Husband guilty of capital murder of the police officers. We find that there was sufficient evidence to support the guilty verdict. Thus, the trial court did not err by denying Husband’s motion for a new trial. This issue is without merit.

II. LESSER-INCLUDED-OFFENSE INSTRUCTION

¶ 22. In his second assignment of error, Husband alleges that the trial court should have given a lesser-included-offense instruction on manslaughter. The standard of review for challenges to jury instructions is as follows:

Jury instructions are to be read together and taken as a whole with no one instruction taken out of context. 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.

Humphrey v. State, 759 So.2d 368, 380(¶ 33) (Miss.2000) citing Heidel v. State, 587 So.2d 835, 842 (Miss.1991) (superceded by statute).

¶ 23. At trial, Husband proposed a jury instruction on manslaughter as a lesser-included offense. Manslaughter is defined as “[t]he killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense .... ” Miss.Code Ann. § 97-3-35 (Rev.2006). The supreme court has defined “heat of passion” as:

A state of violent and uncontrollable rage engendered by a blow or certain other provocation given, which will reduce a homicide from the grade of murder to that of manslaughter. Passion or anger suddenly aroused at the time by some immediate and reasonable provocation, by words or acts of one at the time. The term includes an emotional state of mind characterized by anger, rage, hatred, furious resentment or terror.

Agnew v. State, 783 So.2d 699, 703(¶ 14) (Miss.2001) (quoting Graham, v. State, 582 So.2d 1014, 1017-18 (Miss.1991)). In deciding whether to grant a lesser-included-offense instruction, the trial court must consider, taking the evidence in the light most favorable to the accused, and considering all reasonable favorable inferences which may be made in favor of the accused, whether a reasonable jury could find the accused guilty of the lesser-included offense. McCain v. State, 971 So.2d 608, 614(19) (Miss.Ct.App.2007). Thus, to determine whether a manslaughter instruction should have been given, we must determine if a reasonable jury could have found that Husband acted in the heat of passion. Id.

¶ 24. Husband asserts that the evidence supports his contention that the police officers’ murders occurred in the heat of passion, and because of this, he was entitled to a lesser-included-offense instruction that would allow the jury to convict him of the non-capital offense of manslaughter. Husband’s argument is based solely on the 911 call that recorded his argument with Francis. He asserts that the 911 phone call indicated an emotional struggle, which the jurors could reasonably consider as evidence of heat of passion. Conversely, the State argues that the 911 call made by Francis was not enough to rise to the level of heat of passion as defined in Agnew.

¶ 25. Husband argues that the supreme court in Lanier v. State, 450 So.2d 69, 81 (Miss.1984), required reversal based on the trial court’s refusal to grant a manslaughter instruction after the defendant’s statement created some confusion. However, Lanier is distinguishable from this case. In Lanier, the supreme court found that:

[T]he contradiction arising from the assumed inferences and Lanier’s statement introduced into evidence creates, at best, a conflict between inferences and testimony which could only be resolved by a jury under the guidance of proper instructions. Without the inferences the testimony is uncontradicted that [the officer] fired first and because of this he was entitled to the manslaughter instruction.

Id. at 80.

¶ 26. However, a contradiction in evidence does not exist in Husband’s case. Here, the evidence shows that the officers attempted to take Husband in a non-aggressive manner. When that failed, the officers tried to physically restrain him. During the tussle with the officers, Husband gained control over Officer Fite’s gun, which is the gun that killed both officers. There was no evidence presented to the contrary.

¶ 27. While the 911 call reflects an argument between Francis and Husband, it is not dispositive that the ensuing argument between Husband and the officers was the result of heat of passion. This evidence fails to establish any nexus between the struggle with Francis and any occurrence or event which might have provoked him into killing the officers in the heat of passion.

¶ 28. Thus, taking the evidence in the light most favorable to Husband, we cannot find an evidentiary foundation for a manslaughter instruction. Thus, we find that the trial court did not err by refusing the manslaughter instruction. This issue is without merit.

III. IMPROPER JURY INSTRUCTIONS

¶29. In his third assignment of error, Husband alleges that the given jury instructions misstated the law and confused the jury. As previously mentioned, “[w]hile a party is entitled to have jury instructions submitted that represent his or her theory of the case, an instruction that ‘incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence’ need not be submitted to the jury.” Nunnally v. R.J. Reynolds Tobacco Co., 869 So.2d 373, 380(¶ 16) (Miss.2004) (quoting Entergy Miss., Inc. v. Bolden, 854 So.2d 1051, 1054(¶ 6) (Miss.2003)).

¶30. Husband alleges that the trial court erred in allowing jury instructions S-2A and S-3A because they incorrectly stated the law by including the phrase “with deliberate design to effect the death of Brandon Breland/Odell Fite” and confused the jury.

¶ 31. As applied in Husband’s case, capital murder is defined as “[m]urder which is perpetrated by killing a peace officer or fireman while such officer or fireman is acting in his official capacity or by reason of an act performed in his official capacity, and with knowledge that the victim was a peace officer or fireman.” Miss.Code Ann. § 97-3-19(2)(a). The State acknowledges that deliberate design is not explicitly written into the capital murder statute. However, the State maintains that the deliberate-design language is built into the general murder statute and, thus, merely raised the State’s burden of proof and was essentially harmless error.

¶ 32. By definition, capital murder incorporates the word “murder” which, pursuant to Mississippi Code Annotated section 97-3-19(l)(a) (Rev.2006), states the additional requirement of “deliberate design to effect the death of the person killed, or of any human being.” The supreme court has explained the connection between the capital murder and murder statutes by stating that “[t]he word ‘murder’ within [the capital murder] statute takes its meaning from Miss.Code Ann. § 97-3-19(l)(a) (Supp.1988),” the general murder statute. Mease v. State, 539 So.2d 1324,1325 n. 1 (Miss.1989).

¶33. In a similar case, the defendant argued that the language “and of his malice aforethought” in the jury instructions for capital murder was not required by the capital murder statute; therefore, the instruction was improper. Swanier v. State, 473 So.2d 180, 188 (Miss.1985). The State acknowledged that the language was surplus and was over and beyond the statute’s requirements. Id. However, because the additional language only added to the prosecution’s burden of proof, the trial court found that it was harmless error. Id. The supreme court affirmed the trial court by stating that there was no evidence of any prejudice whatsoever to the defendant caused by the surplus language. Id.

¶ 34. Like Swanier, the State’s burden of proof was merely bolstered by the deliberate-design language included in the instruction. Thus, any error in the language’s inclusion was harmless. Therefore, we find no merit to this assignment of error.

¶ 35. Based on the foregoing reasons, we affirm the judgment of the trial court.

¶ 36. THE JUDGMENT OF THE CIRCUIT COURT OF STONE COUNTY OF CONVICTION OF TWO COUNTS OF CAPITAL MURDER AND SENTENCE OF LIFE FOR EACH COUNT, WITHOUT ELIGIBILITY FOR PAROLE, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO STONE COUNTY.

LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.

      . Jury Instructions S-2A and S-3A read, in pertinent part, as follows:
      The Court instructs the jury that the defendant, Ronald Husband, has been charged in Count I/II of the indictment with the crime of Capital Murder. If you find from the evidence in this case beyond a reasonable doubt that: (1) On or about November 27, 2005, in Stone County, Mississippi, (2) the defendant, Ronald Husband, did wilfully, unlawfully, feloniously and without authority of law kill and murder Brandon Bre-land/Odell Fite, a human being, (3) with deliberate design to effect the death of Brandon Breland/Odell Fite....


source: Caselaw Access Project

author: IRVING, J.,

license: Public Domain

text:
    Mark Andrew WEST, Sr., Appellant, v. April Saylors WEST, Appellee.
    No. 2008-CA-00190-COA.
    Court of Appeals of Mississippi.
    June 16, 2009.
    Rehearing Denied Oct. 6, 2009.
    Certiorari Denied Dec. 17, 2009.
    H.R. Garner, attorney for appellant.

      George S. Luter, Kimberly S. Jones, attorneys for appellee.
    Before LEE, P.J., IRVING AND BARNES, JJ.
   IRVING, J.,

for the Court.

¶ 1. April and Mark West Sr. were granted a divorce on the ground of irreconcilable differences by the Chancery Court of DeSoto County. Mark subsequently filed a petition for modification of child support and a motion to set aside a portion of the judgment of divorce. The chancellor denied both pleadings.

¶ 2. Aggrieved, Mark appeals and alleges: (1) that the chancellor erred in failing to set aside the provision of the judgment of divorce regarding the child support escalation clause and (2) that the chancellor erred in failing to make a written finding on the record as to the applicability of the statutory child support guidelines. Finding no reversible error, we affirm.

FACTS

¶ 3. April and Mark were married on December 12, 1998. One child, Mark Andrew West Jr., was born to the marriage on July 25, 2000. On September 28, 2005, the parties executed a property settlement agreement in which they agreed to several issues, including child custody, child support, and the distribution of the marital estate. On October 5, 2005, the DeSoto County Chancery Court granted April and Mark a divorce on the ground of irreconcilable differences and incorporated the property settlement agreement into the judgment of divorce.

¶4. On March 19, 2007, Mark filed a petition for modification of child support. In the petition, he asked the chancellor to decrease the amount of child support and to make a finding on the record as to whether the application of the child support guidelines would be unjust or inappropriate. He argued that the chancellor who heard the divorce proceedings failed to make a written finding as to whether the child support guidelines were reasonable. On May 2, 2007, Mark filed a motion to set aside the portion of the judgment of divorce which provides for the automatic increase in child support.

¶ 5. On December 3, 2007, the chancellor issued his ruling on the petition for modification and on the motion seeking to set aside the child support escalation clause contained in the judgment of divorce. The chancellor determined that Mark’s petition and motion were time-barred since he did not file either a Rule 59 or Rule 60 motion, pursuant to the Mississippi Rules of Civil Procedure, seeking a modification of the judgment of divorce. The chancellor further determined that Mark had not shown that a material change in circumstances had occurred since the entry of the judgment of divorce. The record reflects the chancellor’s reasoning for these determinations as follows:

THE COURT: I’ve researched this over and over again because I really believe that Mr. West made a deal when he was granted his divorce that was probably not in his best interests. It was absolutely — he is paying above what the guidelines would require [sic] to pay. And he waited too long to ask the Court to change that.
He could have filed a petition or something under Rule 59 or Rule 60 of the Mississippi Rules of Civil Procedure; howeverf,] he had to do that timely and obviously he didn’t seek legal representation until those time periods had long passed.
So because those things were not done and this Court is not faced with a Rule 59 motion or a Rule 60 motion to set aside the divorce decree or to modify it or change it or set aside the provisions of it at this point, the Court has got to apply the regular standard that the Court would apply to any modification proceeding.
There needs to be some demonstration to this Court of a substantial and material change in circumstances in order for the Court to modify this child support....

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

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 7. “[An appellate court] will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Cox v. F-S Prestress, Inc., 797 So.2d 839, 843(¶ 14) (Miss.2001) (citing Griffin v. Armana, 687 So.2d 1188, 1192 (Miss.1996)).

¶ 8. Mark argues that the chancellor, in the modification proceedings, committed error when she failed to set aside the portion of the judgment of divorce that relates to the child support escalation clause. The provision of the judgment of divorce containing the escalation clause provides:

The Parties agree that there will be a substantial change in the needs of the minor child every five (5) years and thus the Non-Custodial parent shall be responsible for providing to the Custodial parent, every five years a copy of his/her current year’s tax returns or W-2 form immediately upon filing his/her tax returns. Should the Non-Custodial parent have an increase in pay of $10,000 or more, child support shall automatically be raised to an amount equal to fourteen percent (14%) of his/her new adjusted gross income and an Order directing the same shall be entered.

¶ 9. Mark argues that the Mississippi Supreme Court, in a long line of cases, has determined that in order for an escalation clause to be enforceable, it must be tied (1) to the inflation rate, (2) to the non-custodial parent’s income, (3) to the child’s expenses, and (4) to the custodial parent’s separate income. Mark also argues that the escalation clause at issue does not meet this criteria, and since it does not, the chancellor erred in finding that under the authority of Rogers v. Rogers, 919 So.2d 184, 189(¶ 19) (Miss.Ct.App.2005), parties may agree on their own volition to do more than the law requires of them.

¶ 10. We agree with Mark that an escalation clause must be tied to certain prerequisites. In Bruce v. Bruce, 687 So.2d 1199, 1202 (Miss.1996) (citing Bedford v. Dempsey, 437 So.2d 410, 419 (Miss.1983)), our supreme court said as much. We also agree that the escalation clause in this case does not contain all of the criteria set forth by our supreme court for it to be enforceable. However, our agreement with Mark ends here.

¶ 11. As stated, the chancellor left the door open on Mark’s ability to later challenge the validity of the escalation clause. The record reflects the following:

BY THE COURT: I just feel like it would be premature at this point to rule on the escalation clause and so I am going to decline to rule on the validity of the escalation clause and in effect then I am going to deny your motion to set aside the portion of the judgment of divorce that deals with the escalation clause so if you wish to appeal that portion and get that before the Supreme Court you will have a denial from me.

¶ 12. While there may be merit to Mark’s argument concerning the invalidity of the escalation clause, that decision must await another day. We agree with the chancellor that this issue is premature at this time. To date, the escalation clause has not been enforced. The child support provision calls for an automatic escalation in child support if Mark’s income increases by $10,000. Mark has not shown that that has occurred, nor has April sought any increase in child support payment. Therefore, we find this assertion of error without merit.

¶ 13. Next, Mark argues that the chancellor erred in determining that a written finding on the record as to the applicability of the statutory child support guidelines was not needed. Mark is essentially attacking the failure of the chancellor, who granted the divorce and approved the support provision, to make specific findings before approving the parties’ provision for child support.

¶ 14. Rule 59(e) of the Mississippi Rules of Civil Procedure provides that “a motion to alter or amend the judgment shall be filed not later than ten days after entry of the judgment.” (Emphasis added). If Mark thought that the chancellor had erred in approving their agreed provision for child support without first making a finding as to the reasonableness of the statutory guidelines, it was incumbent upon him at that time to bring the issue to the chancellor’s attention via the proper avenue. He did not. The first time he made an issue of this matter was more than a year after the judgment of divorce was granted. Accordingly, he is procedurally barred from challenging the chancellor’s failure to make specific findings of fact on the reasonableness of the statutory child support guidelines. Moreover, we also agree with the chancellor that there was no need for the original chancellor to make any finding concerning the reasonableness of the guidelines since Mark and April agreed to the amount of child support. Divorcing parties are free to agree that the noncustodial party will pay an amount for child support that exceeds the amount set forth in the statutory guidelines. This issue is without merit.

¶ 15. We affirm the chancellor’s to deny the petition for modification of child support and the motion to set aside the escalation clause in the judgment of divorce.

¶ 16. THE JUDGMENT OF THE DE-SOTO COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.

      . Mark was not represented by an attorney during the divorce proceedings. The property settlement agreement was prepared by April's attorney. In the agreement, Mark agreed to pay, in lieu of child support, the monthly mortgage payment on the marital domicile until the home was sold. Thereafter, he would pay child support in the amount of $1,150 per month. He also agreed to an automatic increase in child support payment if his income increased by $10,000. The increase would be an amount equal to fourteen percent of his new adjusted gross income.

      . The chancellor who heard the modification petition was not the same chancellor who presided over the divorce proceedings.

      .Mississippi Code Annotated section 43-19-101(4) (Rev.2004) states:
      In cases in which the adjusted gross income as defined in this section is more than Fifty Thousand Dollars ($50,000.00) or less than Five Thousand Dollars ($5,000.00), the court shall make a written finding in the record as to whether or not the application of the guidelines established in this section is reasonable.
      Mark argued that since his adjusted gross income was over $50,000 and the chancellor who heard the divorce proceedings did not make a written finding on the record, he should be able to have his child support obligation modified in accordance with the provisions of the statute.

      . Although the chancellor stated that Mark’s motion challenging the escalation clause was time-barred, the chancellor went on to say that addressing the validity of the clause was premature. Presumably, this was because the trigger in the clause had not been engaged. This leads us to conclude that the chancellor left the door open for Mark to later challenge the validity of the clause.

      . In Bruce, 687 So.2d at 1202, the supreme court suggests that an escalation clause, even if a part of a property settlement agreement, has to be related to (1) the inflation rate, (2) the non-custodial parent's increase or decrease in income, (3) the child’s expenses, and (4) the custodial parent's separate income. See also Gillespie v. Gillespie, 594 So.2d 620, 623 (Miss.1992); Wing v. Wing, 549 So.2d 944, 947 (Miss.1989); Tedford, 437 So.2d at 419.


author: ROBERTS, J.,

text:
    Jay F. SWINDLE, Sr. and Community Bank, Ellisville, Mississippi, Appellants, v. William T. HARVEY and Ellen Tanner Harvey, Appellees.
    No. 2008-CA-00560-COA.
    Court of Appeals of Mississippi.
    June 23, 2009.
    Rehearing Denied Oct. 6, 2009.
    Certiorari Denied Dec. 17, 2009.

      Terry L. Caves, Laurel, attorney for appellants.
    David Shoemake, attorney for appellees.
    Before MYERS, P.J., IRVING and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

¶ 1. Jay F. Swindle, Sr., and Community Bank, Ellisville, Mississippi (“the Bank”) appeal the order of the Circuit Court of Covington County that denied their motion to compel arbitration finding that the matter was not within the scope of the arbitration agreement. After a thorough review of the record and applicable case law, we find that the circuit court erred in denying the Bank’s motion to compel arbitration. Therefore, we reverse and remand the case with directions to submit all disputes to binding arbitration.

FACTS AND PROCEDURAL HISTORY

¶ 2. Ellen and Tony Harvey (“the Har-veys”) owned a total of 39.52 acres. On 36.52 acres, there were two poultry houses, and the Harveys’ home sat on the remaining three acres. The properties adjoined. In 2001, the Harveys borrowed $355,000 from Community Bank to finance their poultry operations. In 2003, Tyson, the producer for the Harveys, required the Harveys to retrofit and upgrade their poultry houses. Therefore, in June 2003, the Harveys borrowed an additional $120,000 in order to make Tyson’s required changes. The Harveys intended for the $120,000 loan to be guaranteed by the United States Small Business Administration. On July 18, 2003, the Harveys met with Dennis Upchurch, the senior vice-president, and Carolyn Bryant, the loan assistant for Community Bank, to execute the $120,000 loan agreement. Although, the 2003 and 2001 loan documents had the same property description, the house and three acres were inadvertently omitted in the property description on the deed of trust for both loans. The omission from the 2003 loan was the catalyst for the present litigation.

¶ 3. Unfortunately, the Harveys were unable to remain in the poultry business, and ultimately, they filed for bankruptcy in September 2005. Subsequent to the execution and filing of the bankruptcy order, Community Bank began foreclosure proceedings on the house and poultry farm. On November 28, 2005, the Harveys signed an agreed order abandoning their home and poultry farm. The Bank foreclosed its deed of trust and received a substitute trustee’s deed on April 7, 2006.

¶ 4. Following the foreclosure on May 2, 2006, the Bank received a letter from the Harveys’ attorney informing the Bank that it did not have a lien on the house and three acres. The Bank laments that after receiving the letter, it examined the documents, and for the first time, it realized that the house and three acres were not listed in the description stated on the deed of trust. However, the bank avers that it and the Harveys intended for all of the Harveys’ property to be pledged as security for the 2003 loan, including the house and three acres.

¶ 5. Although the deed of trust for the loan did not contain a reference to or description of the house and three acres, other related documents did. Undisputed by the Harveys, the Bank asserts that the following loan-related documents represent that the Harveys intended for the house and three acres to be pledged as security for the loan:

1. Promissory Note dated July 18, 2003;
2. Farm Bureau Insurance Company notices;
3. Letters from Community Bank to the Harveys informing them that their insurance had expired on the house, and the Bank was adding insurance to the loan;
4. Agreement to provide insurance;
5. Financial Statement;
6. Statement of Personal History; and
7. Commercial Security Agreement.

¶6. The Bank submits that the loan-related documents for the 2003 loan included an arbitration agreement which provided that any disputes between the parties were to go to arbitration. Furthermore, the Bank declares that Upchurch and Bryant presented all of the loan documents to the Harveys, and that Upchurch and Bryant specifically explained the arbitration disclosure and the arbitration agreement. The Harveys admit that they did not read the loan documents, either at the bank or later at home.

¶ 7. The Harveys filed suit against the Bank on April 5, 2007, requesting damages and claiming that they never intended to pledge their house and three acres as security for the loan. In reliance upon the Harveys’ loan agreement, the Bank made a motion to compel arbitration, but the circuit court denied its motion finding that the dispute was not within the scope of the arbitration clause. Even though the arbitration clause required an arbitrator to decide if an issue was arbitrable, the circuit court ruled that arbitration was not the appropriate forum to determine if the issues in the case were subject to arbitration. The circuit court further determined that the arbitration clause was either unconscionable or “at least had the color of unconseionability and appealed] unfair.” The circuit court also found that because the Harveys were under financial stress at the time they made the loan, “it tend[ed] to show a lack of voluntariness” on their part, and that “by reason of said lack of voluntariness, the arbitration clause was procedurally unconscionable.” Aggrieved by the circuit court’s ruling, the Bank filed a timely appeal to this Court.

¶ 8. On appeal, the Bank argues that there is a valid arbitration agreement, and the parties agreed to arbitrate any dispute related to the 2003 loan agreement. We list verbatim the issues raised by the Bank:

I. The trial court erred in finding that the arbitration agreement is not a binding contract.
II. The trial court committed reversible error by finding that arbitration is not the appropriate forum to determine the issue of arbitrability.
III. The trial court committed reversible error in finding that the arbitration agreement was procedurally and substantively unconscionable.
IV. The trial court committed reversible error in finding that the Har-veys were under economic duress when they signed the loan documents.
V. The trial court committed reversible error in finding that the claims alleged in the complaint are outside the scope of the arbitration agreement.

Issues I, II, and V relate to the scope and validity of the arbitration agreement, so they will be addressed collectively. Issues III and IV will be addressed together, as they address the Harveys’ assertion that they were under duress at the time the loan was executed, thereby making the arbitration agreement procedurally unconscionable.

STANDARD OF REVIEW

¶ 9. “The grant or denial of a motion to compel arbitration is reviewed 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)). “The Federal Arbitration Act states in part that ‘an agreement in writing to submit to arbitration an existing controversy arising out of [a contract evidencing a transaction involving commerce] shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.’ ” 9 U.S.C. § 2 (2006). See Grenada Living Ctr. v. Coleman, 961 So.2d 33, 36 (¶ 8) (Miss.2007). “Courts have long recognized the existence of ‘a liberal federal policy favoring arbitration agreements.’ ” McKenzie Check Advance of Miss., LLC v. Hardy, 866 So.2d 446, 450 (¶ 7) (Miss.2004) (citation omitted). “In determining the validity of a motion to compel arbitration under the Federal Arbitration Act, courts generally conduct a two-pronged inquiry. The first prong has 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, the United States Supreme Court has stated the question is ^whether legal constraints external to the parties’ agreement foreclosed arbitration of those claims.’ ” Id. at (¶ 10) (citation omitted). Also, “[u]nder the second prong, applicable contract defenses available under state contract law such as fraud, duress, and unconseionability may be asserted to invalidate the arbitration agreement without offending the Federal Arbitration Act.” Id. (citation omitted).

I. WHETHER THE TRIAL COURT ERRED IN FINDING THAT THE ARBITRATION AGREEMENT WAS NOT BINDING, AND WHETHER ARBITRATION IS THE PROPER FORUM TO DETERMINE THE SCOPE OF THE ARBITRATION CLAUSE.

¶ 10. The Harveys and Community Bank are certainly not the first parties to litigate because of mistakes relating to a deed of trust. In prior cases where property was mistakenly added or omitted in a deed of trust, the supreme court has stated that “it is not what description the parties intended to write but what property the parties intended to have embraced in the description they used [that controls].” Webb v. Brown, 404 So.2d 1029, 1032 (Miss.1981) (citation omitted). In Whitefoot v. Bancorpsouth Bank, 856 So.2d 639, 643(¶14) (Miss.Ct.App.2003), the bank omitted a borrower’s house from the deed of trust, and the borrowers claimed that the bank had, therefore, waived its right to have a security interest in the house. However, this Court in Whi-tefoot determined that, notwithstanding the erroneous description, the parties’ intentions to include the house was clear beyond a reasonable doubt. Id. at (¶ 15). A review of the record substantiates that the instant case is analogous to the White-foot case, and the parties’ intentions to include the house and three acres is clear beyond a reasonable doubt.

¶ 11. In its brief to this Court, the Bank asks several rhetorical questions relating to the Harveys’ intentions concerning the loans they made with the Bank and the written bankruptcy documents. They are:

Why did the Harveys list the Bank as loss-payee on their homeowners insurance policy? Why did they abandon their homestead at the bankruptcy hearing when they represented to the Trustee under oath that they claimed no interest in the home? Why didn’t they object when the Bank force-placed insurance on their home because they failed to continue to maintain hazard insurance on their home? Why did the Harveys vacate the home if they believed they still owned it and the Bank did not have a lien on the home? Why didn’t they enjoin the foreclosure sale if they believed the Bank did not have a lien on the home?

The Harveys argue that the Bank is simply attempting to draw attention away from the fact that it did not have a valid security interest on the deed of trust entitling it to foreclosure and possession of the house and three acres, and they counter with their own questions. They ask: ‘Why did the Bank force-place insurance on the property which was not part of the deed of trust?” and “Why did the Bank go to such lengths to convince the Harveys that they had conveyed the three (3) acres via the Deed of Trust?”

¶ 12. An obvious explanation to all the questions presented is that both parties intended for the Harveys’ loan to be secured by an interest in both the house and three acres as well as the additional 36.52 acres and poultry farm. It goes against all reason to think that the Harveys would list the Bank as the loss-payee on their policy or that the Bank would force-place hazard insurance on the property, if the parties did not intend for the bank to have a security interest in the insured property. The Harveys’ failure to dispute the force-placement of hazard insurance bolsters the Bank’s assertion that both parties believed it held a security interest in the house and three acres. Even more compelling is the fact that the Harveys willingly abandoned their home after signing an agreed relinquishment of security. The Harveys contend that the omission of the property description in the deed of trust creates an ambiguity that should be construed against the Bank, since the Bank drafted the documents. We now address that contention.

A. Was the error in the deed of trust an ambiguity or mutual mistake, and how should the documents be construed?

¶ 13. Arguing that the omission created an ambiguous contract, the Har-veys contend that the Bank should be responsible because it was in the better position to understand or read the legal “metes and bounds” description in the deed of trust. However, the omission is better described as a mutual mistake between the parties, rather than an ambiguity. “Prudent business men make many mistakes, and these mistakes are found under many forms and under a variety of circumstances.” Brimm v. McGee, 119 Miss. 52, 58, 80 So. 379, 381 (1919) (citation omitted). However, a mistake is not necessarily the controlling factor. The supreme court has ruled that when mistakes in property descriptions occur, reformation of the document should be allowed to reflect the parties’ intentions. See id. at 59, 80 So. at 381. Additionally, when evaluating the intention of the parties, the individual documents entered into contemporaneously should be considered integral and interrelated parts of a single global transaction, and as such, all should be construed together. Sullivan v. Mounger, 882 So.2d 129, 135(¶ 32) (Miss.2004).

¶ 14. In Doleac v. Real Estate Professionals, LLC, 911 So.2d 496, 504(¶26) (Miss.2005), the supreme court held that “under general principles of contract law, separate agreements executed contemporaneously by the same parties, for the same purposes, and as part of the same transaction, are to be construed together.” The Harveys have presented no evidence that the disputed deed of trust was not interrelated to the promissory note, the commercial security agreement, or any of the insurance documents, nor have they shown that the deed of trust was not contemporaneously executed by them and the Bank for the purpose of executing the loan. Accordingly, under the principles set forth by the supreme court in Doleac and Sullivan, the documents are to be construed as one instrument. Therefore, the arbitration agreement, contained in the loan-related documents, should be considered incorporated into the deed of trust. The Harveys rely on Union Planters Bank v. Rogers, 912 So.2d 116, 120(¶ 10) (Miss.2005) for support of their argument, that an ambiguous contract should be construed against the drafter, but Rogers is factually distinct from the instant case.

¶ 15. In Rogers, the plaintiff sued the bank for conversion after it paid forged checks drawn on her account. Id. at 118(¶ 5). One of the issues before the Rogers court was whether the lower court erred when it denied the bank’s motion to compel arbitration. Id. The supreme court held that the lower court had not erred because the bank’s arbitration agreement was ambiguous. Id. at 120 (¶¶ 10-11).

¶ 16. In Rogers, the plaintiff had four accounts with various banks prior to the merger of those banks with Union Planters. Id. at 117(¶2). After the merger, Union Planters sent out mail-outs which informed customers that by signing a signature card and continuing to use the accounts, the customers agreed to the terms of an arbitration agreement. Id. at 118(¶ 6). However, the plaintiff in Rogers never signed “a new signature card after Union Planters bought out the various banks.” Id. at 120(¶ 11). And, the four signature cards, which the plaintiff signed prior to the merger, did not contain an arbitration agreement. Id. at 120(¶ 9). The supreme court stated that “[i]ntent should first be sought in an objective reading of the words employed in the contract.” Id. at (¶ 10). The Rogers court found that the general provisions of the Union Planter’s mail-outs conflicted with the specific provisions of the arbitration clause, thereby causing ambiguity. Id. “[T]he general provisions of the mail-outs ... require[d][the] ‘use’ of the account only, whereas, the specific provisions of the arbitration clause require[d][the] ‘use’ of the account and the execution of a signature card.” Id. The court held that since the plaintiff had “not exeeute[d] a new signature card after Union Planters bought out the various banks, the arbitration clause [did] not apply to her.” Id. at (¶11).

¶ 17. This case does not involve a subsequent merger with new terms imposed upon the Harveys; rather, it deals with a contractual agreement entered into by them and the Bank at a set point in time. An objective reading of the plain language of the arbitration agreement included in the Harveys’ contract verifies that both the Harveys and the Bank contracted to have any disputes resolved by arbitration. The pertinent language of the arbitration agreement states, “any controversy concerning whether an issue is arbitrable shall be determined by the arbitrator....” The fact that the Bank failed to correctly describe its collateral on one of the loan-related documents does not defeat the Harveys’ acquiescence to the arbitration agreement. As stated, case law provides that all of the documents related to the Harveys’ loan agreement should be construed together, and the execution of the promissory note and insurance-related document coincides with the execution of the deed of trust.

B. Is arbitration the proper forum to determine the scope of the arbitration agreement?

¶ 18. Next, we address whether arbitration is the proper forum to interpret the contract’s arbitration agreement that is incorporated into the deed of trust. As stated, the deed of trust contained no arbitration agreement. Therefore, since the house and three acres were omitted from the deed of trust, the Harveys argue that the matter is outside the scope of the arbitration agreement included in the other loan documents. The circuit court agreed with the Harveys and found that the acts alleged in the Harveys’ complaint fell outside the arbitration agreement and fit squarely within the principles of Rogers-Dabbs Chevrolet-Hummer, Inc. v. Blakeney, 950 So.2d 170 (Miss.2007). Also, in the instant case, the circuit court stated “that arbitration was and is not the appropriate forum to determine if the issues in [this] case are arbitrable.” However, a careful reading of Blakeney shows that the facts of that case are distinguishable from the instant case.

¶ 19. In Blakeney, the plaintiff asserted that after purchasing a Hummer automobile from Rogers-Dabbs, he never received title to his vehicle and that one or more of Rogers-Dabb’s employees had misappropriated his name and personal information to forge vehicle titles and bills of sale in order to sell stolen vehicles. Id. at 172 (¶¶ 4-5). The Blakeney court recognized that the plaintiff had agreed to arbitrate disputes arising out of the contract for the purchase of his vehicle, but the court opined that “no reasonable person would agree to submit to arbitration any claims concerning a [vehicle] to which he would never receive a title; [or] a scheme of using his name to forge vehicle titles and bills of sale to sell stolen vehicles.... ” Id. at 177(¶ 17).

¶ 20. The instant case is different as nothing in the record indicates that a fraudulent scheme was contrived by the Bank so it could finagle the Harveys’ property away from them. Although this Court is sympathetic to the Harveys’ financial plight, there is no indication that the Bank had anything to do with the circumstances which resulted in their financial demise. Relying on a fairly recent supreme court decision, we will discern whether the Harveys and the Bank agreed to have an arbitrator interpret the arbitration agreement.

¶ 21. The supreme court in Greater Canton Ford Mercury, Inc. v. Abies, 948 So.2d 417 (Miss.2007) addressed whether the proper interpreter of an arbitration agreement is an arbitrator. The Abies court opined:

The presumption in favor of arbitration does not apply to the question of [whom] should decide arbitrability, because the purpose of [the Federal Arbitration Act] was to make arbitration agreements as enforceable as other contracts, not more so[.] Whether a party is bound by an arbitration agreement is generally considered an issue for the courts, not the arbitrator, “[u]nless the parties clearly and unmistakably provide otherwise.” In other words, when the parties have explicitly agreed that the question of arbitrability is to be decided by an arbitrator rather than the court, that agreement must be interpreted by an arbitrator.

Id. at 422(¶ 12) (internal citations omitted) (emphasis added). The argument presented by the plaintiffs in Abies was similar to the argument in the instant appeal.

¶22. In Abies, the plaintiffs did not dispute the validity of the arbitration agreement, but they disagreed about the scope of the arbitration agreement. Id. at 421(¶ 11). The supreme court in Abies determined that “the question becomes whether the agreement clearly and unmistakably states that interpretation of the agreement will be arbitrated.” Id. at 422(¶ 14). Accordingly, we must ask if the Harveys signed an agreement that “clearly and unmistakably” mandated that arbitration would interpret the scope of arbitration. We find that they did.

¶ 23. The arbitration agreement that the Harveys signed clearly states: “Any claims shall, at the request of the customer, [or] bank, ... whether made before or after institution of legal proceedings, be determined by binding arbitration.... The arbitrator shall give effect to applicable law, [and] [a]ny controversy concerning whether an issue is arbitrable shall be determined by the arbitrator.” The agreement signed by the Harveys is comparable to the one signed by the plaintiffs in Ables. In Abies, the relevant language in the arbitration agreement stated: “Either you or [the] Creditor ... may choose at any time ... to have any [c]laim related to this contract decided by arbitration. Such claims include ... claims regarding the interpretation, scope or validity of this clause or arbitrability of any issue....” Ables, 948 So.2d at 422(¶ 14).

¶ 24. The Abies court recognized the following concerning arbitration agreements:

The United States Supreme Court has mandated that general contract principles will apply. Consequently, the general practice of allowing courts to determine the issue of arbitrability is superceded by the contractual terms of an arbitration provision which provide that arbitrability will be decided by an arbitrator. The terns of the arbitration provision must be honored in a dispute over arbitrability. Therefore, arbitration of the issue of arbitrability is the mandatory result if those are the terms to which the parties have validly agreed. That premise is entirely consistent with the view of this Court. It is well established that parties may agree on the scope of arbitration in any way they desire. Contracts are solemn obligations, and the court must give them effect as written.

Id. at 422(¶ 18) (internal citation omitted) (emphasis added). The Harveys willingly entered into a contract that provided for any dispute resolution related to the contract to be handled through arbitration— even the interpretation of the agreement or the scope of arbitrability. Furthermore, the Harveys’ failure to read the contract does not relieve them from the contractual obligation to arbitrate, which they willingly entered into.

¶ 25. As stated by the supreme court:

Under Mississippi law ... parties to a contract have an inherent duty to read the terms of a contract prior to signing; that is, 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.

Bailey v. Estate of Kemp, 955 So.2d 777, 783(¶ 22) (Miss.2007) (citation omitted). It bears repeating that the “cardinal rule of construction of a contract is to ascertain the mutual intentions of the parties.” Davis v. Endevco, Inc., 928 So.2d 930, 933 (Miss.Ct.App.2006) (¶ 12) (citation omitted). We now highlight the actions that illustrate the Harveys’ obvious intention to include the house and three acres as security for the loan.

¶26. When procuring the loan, the Harveys agreed to maintain hazard insurance on their home and poultry houses. Even though notified by the Bank, the Harveys did not complain when the Bank force-placed hazard insurance on the property after the Harveys allowed the insurance to lapse. The Harveys do not dispute that the arbitration agreement and arbitration disclosure statement were presented to them at the time they signed the loan documents. Following their financial demise, the Harveys represented to the Bank, their attorney, the bankruptcy trustee, and the bankruptcy judge that the Bank had a security interest in their home and poultry farm. Finally, the Harveys voluntarily relinquished and abandoned their home and poultry farm to the Bank after the property went into foreclosure. Indeed, the record strongly indicates that the Harveys and the Bank intended that the entire 39.52 acres, home, and poultry houses were to be pledged as security and that the omission of the home and three acres created a mutual mistake rather than an ambiguity. Accordingly, the deed of trust should be considered together with the other loan documents and, therefore, governed by the arbitration agreement.

II. WHETHER THE HARVEYS WERE UNDER FINANCIAL DURESS AT THE TIME THEY ENTERED INTO THE CONTRACT AND WHETHER FINANCIAL DURESS PRODUCES PROCEDURAL UNCON-SCIONABILITY.

A. Financial Duress

¶ 27. The Harveys assert that they were in a “do-or-die” situation when they borrowed the money to retrofit the poultry houses. Although, the circuit court acknowledged that the Bank was not the proximate cause of the Harveys’ belief that they must “sign the[ ] documents or lose the farm,” it rationalized that because the Harveys were already in such debt to the Bank, transferring their business to another lender was not a viable option. The circuit court found that these factors tended to show a lack of voluntariness on the Harveys’ part, and because of said lack of voluntariness, the arbitration clause was procedurally unconscionable. We disagree.

¶ 28. The supreme court has addressed the invalidation of contracts based upon financial duress and has stated:

[T]o invalidate a contract on grounds of economic duress, the [complaining party] must establish: (1) that the [dominant party] threatened to do something which [it] had no legal right to do; and (2) that the wrongful threat overrode [his or her] volition ... and caused [him or her] to enter an agreement against [his or her] free will.

Bailey, 955 So.2d at 783(¶23) (citation omitted). The Harveys do not allege that the Bank threatened to deny the loan if they refused to agree to the arbitration agreement, but even if it had, that would not be sufficient to find that the Bank placed the Harveys under duress. The Fifth Circuit Court of Appeals has held that a failure to make a loan does not equal duress, nor does the threat to break a contract, in and of itself, constitute duress. See McCallum Highlands, Ltd. v. Washington Capital Dus, Inc., 66 F.3d 89, 92 (5th Cir.1995) (citation omitted). In the same vein, the supreme court has held that “[i]n the absence of a contractual obligation ... threatening] not to co-sign [a loan] ... [is] not ‘wrong[ ].’ ” Kelso v. McGowan, 604 So.2d 726, 732 (Miss.1992). In other words, “[i]t is never duress to threaten to do that which a party has a legal right to do.” Id. The Bank contends, and it is not disputed by the Harveys, that Ms. Harvey testified that she and her husband could have gone to another bank to obtain financing for the upgrades to their chicken houses. Whether they could or not, the record is devoid of facts which would support a finding that the Bank placed the Harveys under financial duress. It appears from the briefs of the parties that any duress the Harveys were under resulted from the changes required by Tyson or other circumstances, not the Bank’s actions. We are sympathetic to the fact that the Harveys may have been placed between a rock and a hard place, but the Bank did not act outside its legal boundaries. The Harveys have failed to prove the first element set forth in Bailey: that the Bank “threatened to do something which [it] had no legal right to do.” Bailey, 955 So.2d at 783(¶ 23). Therefore, we find it unnecessary to address the second element set forth in Bailey, which is whether the Bank’s actions overrode the Harveys’ free will or volition and caused them to enter into an agreement against their will. Id. Accordingly, we disagree with the circuit court’s determination that the Bank presented the Harveys with a “heads-I-win-tails-you-lose” situation, nor do we agree that the Harveys were compelled to sign a procedurally unconscionable arbitration agreement.

B. Procedural Unconscionability

¶ 29. “Procedural unconscion-ability 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) (citation omitted). “Procedural unconscionability looks beyond the substantive terms which specifically define a contract and focuses on the circumstances surrounding a contract’s formation.” Cmty. Care Ctr. of Vicksburg, LLC v. Mason, 966 So.2d 220, 229(¶ 24) (Miss.Ct.App.2007) (citation omitted). The Harveys have a twelfth grade education, and they are competent to read and write. They have made no claims that they did not understand the contract; they simply did not read it. The Bank did not do or threaten to do that which it was not legally allowed to do. If any outside force placed the Harveys under financial duress, it does not appear from the record that the Bank was the entity to do so, nor does it appear that the Harveys lacked an opportunity to study the contract or inquire about the terms. Accordingly, we find that the arbitration agreement is not unconscionable.

C. Lack of Consideration Given by the Bank

¶ 30. The Harveys assert that the arbitration agreement fails because the Bank did not give consideration for their waiver of their constitutional right to present any disputes to a court of competent jurisdiction. Albeit a creative argument, it fails. The Harveys correctly stated the elements of a valid contract, and they 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.” Rotenberry v. Hooker, 864 So.2d 266, 270(¶ 13) (Miss.2003) (citation omitted). The Har-veys have presented no support for their position that the arbitration agreement, which was included in the contract, was a contract in and of itself that required additional consideration in order to be valid. Rather from the briefs presented to this Court, it appears that it is a run-of-the-mill arbitration agreement that is included in numerous contracts of recent years. Furthermore, undisputed by the Harveys, the Bank asserts that the Harveys failed to raise this issue in the circuit court, and the Bank correctly states that “an issue not raised before the lower court is deemed waived and is procedurally barred.” Gale v. Thomas, 759 So.2d 1150, 1159(¶40) (Miss.1999) (citation omitted). We find the Harveys’ lack-of-consideration argument is without merit.

CONCLUSION

¶ 31. Based upon the foregoing reasons, we find that the Harveys entered into a valid arbitration agreement, and the arbitration agreement provided that even the interpretation of the contract was to be arbitrated. There is no evidence in the record that there are any legal constraints external to the Harveys’ agreement that would foreclose arbitration of the Harveys’ claim. We further find that the Harveys expressly and voluntarily agreed to waive their right to bring this matter before a court of competent jurisdiction.

¶ 32. THE JUDGMENT OF THE CIRCUIT COURT OF COVINGTON COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEES.

KING, C.J., LEE AND MYERS, P.JJ, IRVING, GRIFFIS, BARNES, ISHEE, CARLTON AND MAXWELL, JJ., CONCUR.

      . The "Federal Arbitration Act dictates that 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.' " Blakeney, 950 So.2d at 173(¶ 12) (citations omitted). "[T]he Act establishes] a strong federal policy favoring arbitration.” Id.


author: CARLTON, J.,

text:
    Johnnie SWANS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-CP-01453-COA.
    Court of Appeals of Mississippi.
    June 23, 2009.
    Rehearing Denied Oct. 20, 2009.
    Certiorari Denied Dec. 17, 2009.
    Johnnie Swans, pro se.
    Office of Attorney General by W. Glenn Watts, attorney for appellee.
    Before LEE, P.J., GRIFFIS and CARLTON, JJ.
   CARLTON, J.,

for the Court.

¶ 1. On July 24, 2008, the circuit court dismissed Johnnie Swans’s motion for post-conviction relief as time-barred. Swans appeals. Finding no error, we affirm the circuit court’s dismissal.

FACTS AND PROCEDURAL HISTORY

¶ 2. On November 23, 2004, Swans pled guilty to murder committed with deliberate design pursuant to Mississippi Code Annotated section 97 — 3—19(l)(a) (Rev. 2006). Also, on November 23, 2004, the circuit court entered Swans’s guilty plea and sentenced him to life imprisonment in the custody of the Mississippi Department of Corrections pursuant to Mississippi Code Annotated section 97-3-21 (Rev. 2006). On March 13, 2008, Swans signed his motion for post-conviction relief, and the circuit court filed Swans’s motion on March 17, 2008. In his motion for post-conviction relief, Swans alleged that: (1) he did not voluntarily plead guilty to murder, and (2) he merited a parole-eligibility date. The circuit court dismissed Swans’s motion as procedurally time-barred pursuant to the three-year statute of limitations provided in Mississippi Code Annotated section 99-39-5(2) (Rev.2007). Swans appeals the circuit court’s dismissal of his motion for post-conviction relief.

STANDARD OF REVIEW

¶ 3. We will not disturb a trial court’s dismissal of a motion for post-conviction relief unless the trial court made clearly erroneous findings. Williams v. Stale, 872 So.2d 711, 712(¶ 2) (Miss.Ct.App.2004). We review questions of law de novo. Id. WHETHER SWANS’S MOTION FOR POST-CONVICTION RELIEF IS TIME-BARRED.

¶ 4. In the case of a guilty plea, a motion for post-conviction relief must be filed within three years after the circuit court enters the judgment of conviction. Miss. Code Ann. § 99-39-5(2). “Excepted from [the] three-year statute of limitations are those cases in which the [petitioner] can demonstrate” the following:

[T]hat there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence. Likewise excepted are those cases in which the prisoner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked. Likewise excepted are filings for post-conviction relief in capital cases which shall be made within one (1) year after conviction.

Id.

¶ 5. From the record before us, we find that no statutory exception under section 99-39-5(2) applies to Swans’s case. Therefore, we affirm the circuit court’s dismissal of Swans’s motion for post-conviction relief pursuant to the three-year statute of limitations provided in section 99-39-5(2).

¶ 6. THE JUDGMENT OF THE YA-ZOO COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO YAZOO COUNTY.

KING, C.J, LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ„ CONCUR.

      . The Mississippi Legislature amended section 99-39-5(2) on March 16, 2009. See 2009 Miss. S.B. 2709. However, the 2009 amendments to section 99-39-5(2) do not apply in this case.


author: LEE, P.J., GRIFFIS, J.,

text:
    Tequelia T. THOMAS a/k/a Taquelia Travert Thomas, Appellant, v. Anthony JONES and Philadelphia Indemnity Insurance Company, Appellees.
    No. 2008-CA-00315-COA.
    Court of Appeals of Mississippi.
    Aug. 4, 2009.
    Rehearing Denied Dec. 15, 2009.

      Sorie S. Tarawally, Jackson, attorney for appellant.
    Anthony Jones, pro se, John Curtis Hall II and Shunda L. Pounders, Jackson, attorneys for appellees.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. Tequelia Thomas began working for Five County Child Development Program, Inc. (Five County), in June 2003 as an operator/driver, providing transportation services for clients to and from work and for their children to and from childcare. On September 7, 2003, Thomas was getting into her work vehicle when she was attacked by her former boyfriend, Anthony Jones. According to Thomas, Jones put a gun to her head, grabbed the keys, and forced her into the vehicle. As Jones drove away, a struggle ensued, and Thomas jumped out of the passenger-side door of the moving vehicle. Thomas ran to a car that was traveling on the same road and tried to enter the vehicle. When she was unable to get into the vehicle, she ran across the street, and Jones intentionally ran over her with the vehicle. Jones was charged with carjacking and attempted kidnapping and was sentenced to fifty-three years’ imprisonment.

¶ 2. Thomas suffered multiple injuries from the incident and incurred medical costs of over $200,000. Thomas sought to recover from Philadelphia Indemnity Insurance Company (PIIC), the automobile liability insurer for Five County, under the uninsured motorist coverage policy for the company vehicle. PIIC denied her claim. On September 6, 2006, Thomas filed a complaint in the Circuit Court of Warren County against Jones and PIIC. The complaint alleged a claim of negligence against Jones and claims of breach of contract, unfair claims-handling practices, and bad faith against PIIC.

¶ 3. The parties filed discovery motions and discussed conducting a Rule 30(b)(6) deposition. See M.R.C.P. 30(b)(6). On September 7, 2007, Thomas’s counsel filed a document entitled “Re-notice of Rule 30(b)(6) Deposition” with the circuit court, but the identity of the deponent and date of the deposition were left blank for PIIC to decide who would be deposed and where the deposition would be taken. On October 16, 2007, PIIC filed a motion for summary judgment, asserting that Thomas could not recover under the uninsured motorist policy because she was not an insured under the policy. Thomas did not respond. On November 6, 2007, PIIC filed a notice of hearing, setting the hearing on the motion for November 15, 2007. Thomas’s attorney stated that he received notice of the hearing on November 12, 2007, as he was leaving for an emergency trip to West Africa. Thomas’s counsel faxed a note to counsel for PIIC informing them that he would be out of town and asking that the hearing be rescheduled. He did not give a date for his return.

¶ 4. On November 16, 2007, PIIC’s counsel presented the circuit court with an “Agreed Order of Dismissal,” asking the circuit court to grant summary judgment in PIIC’s favor and to dismiss the action against PIIC with prejudice. The circuit court judge wrote Thomas’s counsel a letter notifying him that he would allow him until December 4, 2007, to respond to PIIC’s motion before the order of dismissal would become final. Thomas’s counsel, however, did not return to the United States until December 5, 2007. On December 6, 2007, Thomas’s counsel faxed a letter to the circuit court requesting an additional fifteen days to file a response. The court administrator mailed Thomas’s counsel a letter on December 7, 2007, stating that his letter requesting additional time did not constitute a proper pleading and that if he wished to be heard, the proper motion must be filed. The court administrator attempted to fax the letter but got a disconnected message from Thomas’s counsel’s fax machine, so the letter was mailed.

¶5. On December 7, having heard no response from Thomas’s counsel, the circuit court entered the order finding that summary judgment was proper and granted the motion to dismiss the action against PIIC with prejudice. Before granting the motion, the judge scratched out the word “Agreed” on the document filed by PIIC entitled “Agreed Order of Dismissal.” On December 10, 2007, unaware of the dismissal, Thomas’s counsel filed a motion to compel discovery and a motion to deny or stay the motion for summary judgment. On December 17, having become aware of the dismissal, Thomas’s counsel filed a motion to set aside the dismissal. Correspondence between Thomas’s counsel and PIIC’s counsel and the re-notice of the Rule 30(b)(6) deposition were attached to Thomas’s motion to set aside the dismissal. Thomas’s motion was denied.

¶ 6. Thomas now appeals the order dismissing PIIC as a party, asserting the following issues: (1) the circuit court erred in granting summary judgment; (2) the entry of summary judgment was unduly harsh; and (3) the entry of summary judgment wrongfully foreclosed an inquiry into the assessment of punitive damages against Jones. As these issues all address the issue of whether summary judgment was properly granted, they will be discussed as one issue.

STANDARD OF REVIEW

¶ 7. In reviewing a lower court’s grant of summary judgment, this Court employs a de novo standard of review. Anglado v. Leaf River Forest Prods., Inc., 716 So.2d 543, 547(¶ 13) (Miss.1998).

DISCUSSION

¶ 8. Thomas seeks to recover benefits under the uninsured motorist policy with PIIC and argues that summary judgment was inappropriate as material issues of fact existed with regard to her claims. PIIC argues that no genuine issue of material fact exists as to Thomas’s claims since: “(1) [Thomas] was not an ‘insured’ under the policy; (2) the accident did not arise out of the ‘use’ of the vehicle; and (3) [Thomas] is specifically excluded from coverage under the policy because she did not have a reasonable belief that she had permission to use the vehicle.”

¶ 9. We note that the order, which was drafted by counsel for PIIC and approved by the circuit court, grants summary judgment, but it is entitled “Order of Dismissal.” In the order, the circuit court dismissed the action against PIIC with prejudice. However, we find that the proper issue for our review is the motion for summary judgment. Mississippi Rule of Civil Procedure 12(b) states that:

If, on a motion to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given [a] reasonable opportunity to present all material made pertinent to such a motion by Rule 56; however, if on such a motion matters outside the pleadings are not presented, and if the motion is granted, leave to amend shall be granted in accordance with Rule 15(a).

(Emphasis added). Therefore, since the motion required the circuit court to consider matters outside the pleadings, we will only address whether the entry of summary judgment was appropriate.

¶ 10. Mississippi Rule of Civil Procedure 56(c) states that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” This Court will consider all of the evidence before the lower court in the light most favorable to the non-moving party. Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So.2d 790, 794 (Miss.1995). Summary judgment is appropriate against “a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Watson v. Johnson, 848 So.2d 873, 879(¶ 23) (Miss.Ct.App.2002) (quoting Galloway v. Travelers Ins. Co., 515 So.2d 678, 683 (Miss.1987)). “[A]n opponent to a motion for summary judgment ‘must rebut by producing significant probative evidence showing that there are indeed genuine issues for trial.’ ” Price v. Purdue Pharma Co., 920 So.2d 479, 485(¶16) (Miss.2006) (quoting McMichael v. Nu-Way Steel and Supply, Inc., 563 So.2d 1371, 1375 (Miss.1990)). However, “even in the absence of a response the court may enter judgment only ‘if appropriate,’ i.e., if no genuine issue of material fact exists.” Id. (quoting Foster v. Noel, 715 So.2d 174, 180(¶36) (Miss.1998)).

¶ 11. “[Bjefore a person is entitled to recover uninsured motorist coverage, they must first prove that they are an insured under the insurance policy or the uninsured motorist statute.” Steinwinder v. Aetna Cas. and Sur. Co., 742 So.2d 1150, 1152(¶ 10) (Miss.1999). The Uninsured Motorist Act, codified in Mississippi Code Annotated sections 83-11-101 through 83-11-111 (Rev.1999 & Supp.2008), defines “insured” as follows:

The term “insured” shall mean the named insured ... and any person who uses, with the consent, expressed or implied, of the named insured, the motor vehicle to which the policy applies, and a guest in such motor vehicle to which the policy applies, or the personal representative of any of the above....

Miss.Code Ann. § 83-ll-103(b) (Rev. 1999). The insurance policy defines insured as “[ajnyone else ‘occupying’ a covered ‘auto’ ” or “[a]ny person who uses a covered ‘auto’ with the Named Insured’s expressed or implied consent.” The insurance policy further states that “[ajnyone using a vehicle without a reasonable belief that the person is entitled to do so” is not an insured.

¶ 12. PIIC stated in its motion for summary judgment that when Thomas was attacked, she was getting into the company vehicle to run a personal errand, which was not permitted under company policy. Thus, PIIC argues that Thomas was using the vehicle without consent and, therefore, was not an “insured” under the statute. PIIC also asserts that because Thomas’s injuries were sustained while she was outside of the covered vehicle, she was not covered by its policy. Thomas, however, asserts that she was an insured because she was a permissive user of the vehicle at all times, not just during work duties. Thomas testified at her deposition that she was given consent by Five County to use the vehicle for personal reasons as long as she paid for the gas necessary for her personal use. Thomas testified that she keeps the vehicle in her possession twenty-four hours a day, seven days a week. She further testified that the vehicle stays at her house when it is not in use.

¶ 13. Thomas testified at her deposition that on the day of the incident, she dropped a client off at Ameristar Casino at 3:00 p.m. After dropping off the client, Thomas went to her mother’s house, which was approximately one-fourth of a mile from the Ameristar Casino, to wait until the client got off work. The client was scheduled to get off work at 10:00 p.m., but she called Thomas early to say that she would be getting off work at 6:00 p.m. Thomas stated that she was getting in her car to go pick up the client when she was attacked by Jones. Thomas stated that she was also planning to pick up her sister after getting the client because Thomas’s sister served as her back-up driver. Thomas’s sister had just started working for the company, and Thomas wanted her to see where the client lived.

¶ 14. The supreme court has held that: A motion for summary judgment should be overruled unless the trial court finds, beyond any reasonable doubt, that the plaintiff would be unable to prove any facts to support his claim. McFadden v. State, 580 So.2d 1210 (Miss.1991). If facts are in dispute, it is not the province of the trial court to grant summary judgment thereby supplanting a full trial with its ruling.

Pollard v. Sherwin-Williams Co., 955 So.2d 764, 769(¶ 13) (Miss.2007) (quoting Daniels v. GNB, Inc., 629 So.2d 595, 599 (Miss.1993)).

¶ 15. It is apparent from the record that a factual dispute exists as to whether Thomas was an insured at the time of the injury. The question of whether Thomas was a permissive user or an occupant of the vehicle at the time of the attack was clearly not resolved at the time the summary judgment was granted. Since disputed issues exist in this case, we find that the grant of summary judgment was not appropriate.

¶ 16. Therefore, the entry of summary judgment is reversed, and the case is remanded for further proceedings consistent with this opinion, as we find that the motion for summary judgment was erroneously granted.

¶ 17. THE JUDGMENT OF THE WARREN COUNTY CIRCUIT COURT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEES.

KING, C.J., IRVING, BARNES, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.

GRIFFIS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY MYERS, P.J., AND ISHEE, J.

GRIFFIS, J.,

DISSENTING:

¶ 18. I respectfully dissent. I would affirm the trial court’s order that granted Philadelphia Indemnity Insurance Company’s (“PIIC”) motion for summary judgment. The trial court was justified in granting summary judgment on the basis of the appellant’s counsel’s failure to attend the hearing and meet the burden of production.

¶ 19. In 2003, Tequelia Thomas got a job with Five County Child Development Program, Inc. (“Five County”). She was hired to drive clients of Five County to and from their jobs and the clients’ children to their daycare program. In September 2003, Anthony Jones, Thomas’s ex-boyfriend, assaulted her while she was outside of her mother’s house. She had driven the company vehicle there while she was waiting for an appointment with a client. In the course of the assault, Jones gained control of the vehicle and ran Thomas over. He is currently serving fifty-three years in prison for carjacking and attempted kidnapping.

¶ 20. Thomas brought suit against PIIC, the underwriter of Five County’s insurance policy on the vehicle, alleging breach of contract, unfair claims-handling practices, and bad faith in refusing to pay her claim under the uninsured-motorist clause of the insurance contract. Thomas also named Jones as a defendant under a negligence theory. PIIC raised as its defense that Thomas was not covered under the policy because she was not a permissive user at the time of the assault; she was not an occupant of the vehicle; and the vehicle was not in use for the purposes of the policy but was instead the instrumentality of a crime. The issue was whether Thomas was covered under the policy.

¶ 21. When PIIC filed its motion for summary judgment, Thomas’s counsel was en route to Sierra Leone on what he characterized, in his brief, as an emergency trip. Thomas’s counsel claimed that he spoke with someone — possibly a secretary — in PIIC’s counsel’s office by telephone from the airport in Baltimore, Maryland and informed PIIC that he would not be available for the hearing. However, PIIC claims that its only notice was a handwritten fax from Thomas’s counsel received seven days after the notice of hearing on the motion was filed. The fax claimed that PIIC should have known of Thomas’s counsel’s unavailability from the Magnolia Bar Association’s list serv online program, which serves as an online bulletin board for the Magnolia Bar’s membership.

¶ 22. The trial court, sua sponte, extended Thomas’s time to respond to the motion until December 4, 2007. Thomas’s counsel re-entered the country on December 5, 2007, apparently unaware that the trial court had issued a deadline to respond and had drafted an order of dismissal based on the uncontested motion for summary judgment. Thomas then perfected this appeal.

¶ 28. On appeal, Thomas argues that the trial court made three points of error in granting PIIC’s motion for summary judgment, asserting that: (1) the entry of summary judgment was not appropriate given the fact that the parties were still in pretrial discovery; (2) the entry of summary judgment was an unduly harsh sanction against Thomas and her counsel; and (3) the entry of summary judgment foreclosed the possibility of assessing punitive damages against PIIC. The central claims behind these arguments are that Thomas’s counsel’s failure to contest the motion for summary judgment was excusable neglect, and there is a genuine issue of material fact over which the parties are in dispute.

¶ 24. Upon a motion for summary judgment, the trial judge may assess whether the non-movant is capable of meeting its burden of production of evidence that will support a reasonable inference that will persuade a finder of fact. The official comment to Mississippi Rule of Civil Procedure 56 states in part:

a summary judgment motion is based on the pleadings and any affidavits, depositions, and other forms of evidence relative to the merits of the challenged claim or defense that are available at the time the motion is made. The movant under Rule 56 is asserting that on the basis of the record as it then exists, there is no genuine issue as to any material fact and that he is entitled to a judgment on the merits as a matter of law.

¶ 25. While the non-movant is free not to respond to a motion, it does so at its own peril, especially if the motion is not manifestly frivolous. O’Cain v. Harvey Freeman and Sons, Inc. of Miss., 603 So.2d 824, 829 (Miss.1991). Once the mov-ant has met its burden of producing supporting depositions, answers to interrogatories, admissions on file, and affidavits that make out the prima facie case that it is entitled to judgment as a matter of law, then the non-movant must respond if it is to defeat the motion and, thus, assumes its own burden of production. Webster v. City of D’Iberville City Council, 6 So.3d 448, 450(¶ 7) (Miss.Ct.App.2009). In meeting its burden of production, the non-mov-ant may not simply rest upon “mere allegations or denials” raised in the pleadings. Id. In addition, the evidence presented must be probative and must be more than a “mere scintilla” of evidence. Murphree v. Federal Ins. Co., 707 So.2d 523 (Miss.1997). In determining whether an issue of material fact is genuine, the Court, in effect, is deciding whether the evidence is such that “a reasonable jury could return a verdict for the non-moving party.” Id. at 529 (quoting Bache v. American Tel. & Tel., 840 F.2d 283, 287 (5th Cir.1988)).

¶26. The majority opinion discusses this case on the basis of the de novo standard of review for motions of summary judgment. It notes that a summary judgment may not be appropriate even in the absence of a response by the non-movant if there remains a genuine issue of material fact. The majority concludes that there are several factual issues that remain in dispute: whether Thomas was a permissive user of the vehicle and whether, as the policy requires, she had the reasonable belief that she was an “insured” at the time of the attack. There are also what are probably best described as mixed questions of law and fact, which do not depend on a dispute regarding the actual events but depend on how they apply to Five County’s policy, including the theory that, for the purposes of the insurance policy, Jones was an uninsured motorist and that Thomas is entitled to recover from PIIC. PIIC also disputes whether Thomas could be considered to be an occupant of the vehicle, given that she was ultimately struck by the vehicle. Regardless, the ultimate issue is whether Thomas was a permissive user and, therefore, whether her injuries were covered under the insurance policy.

¶ 27. The majority does not address whether the motion for summary judgment was granted on the basis of Thomas’s counsel’s failure to attend or to give timely notice to the court or the movant of his unavailability. Thomas’s counsel claims that his leaving the country on “emergency business” in West Africa was a clear case of excusable neglect that would justify a reversal of the order granting summary judgment. Thomas claims that the grant of summary was essentially a needless punitive act, given the fact that the trial court dismissed the action with prejudice.

¶28. The rule in Mississippi is that a trial judge may properly grant a motion for summary judgment if the non-movant has untimely filed its supporting affidavits. Richardson v. APAC-Miss., Inc., 631 So.2d 143 (Miss.1994). There, the plaintiff filed her supporting affidavits on the date of the hearing, which was in contravention of the provision in Rule 56(c) that requires all affidavits must be submitted no later than the date of the hearing. Id. at 147. The supreme court, noting that the plaintiff had failed to make a showing that her untimeliness was due to excusable neglect, ruled that the trial judge had properly struck the affidavits and that the entry of summary judgment was proper. Id.

¶ 29. In this case, the only fact that is in dispute, other than the interpretation of the terms of the policy, is whether Thomas had the reasonable belief that she was a permissive user of the company vehicle in question. None of the parties in this dispute disagree as to the events that led to her injury. The only evidence that Thomas has presented so far that supports her contention that she had the reasonable belief that she was a permissive user is her own deposition testimony. PIIC has contradicted this testimony by citing its own policy and Five County’s policy and procedure manual, which it uses to support its argument that Five County’s employees are expressly forbidden from using company vehicles for their own purposes.

¶ 30. In addition, Thomas’s counsel has not made an affirmative showing that his failure to contest the motion for summary judgment was due to excusable neglect. While he has included proof that he was not in the country, he has not shown the necessity of that journey or whether he was largely out of communication with his office until after the passage of the court-ordered deadline to respond to the motion for summary judgment. All that Thomas’s counsel proffers in the way of proof is his representation that the trip was because of a business emergency. Excusable neglect is within the province of the trial court and must be granted for cause shown. In re Will of Smith, 910 So.2d 562, 568(1123) (Miss.2005). Normally, it is granted in circumstances where counsel has shown that the neglect is due to either conflicts in schedule or some pressing personal crisis that has substantially interfered with the ability to represent a client. Thomas’s counsel has not successfully advanced any argument to demonstrate excusable neglect; therefore, I find that he has not presented any legitimate reason for failing to meet his burden of production.

¶ 31. As I conclude that the trial judge was correct to grant summary judgment in favor of PIIC, I would affirm.

MYERS, P.J., AND ISHEE, J., JOIN THIS OPINION.