author: GRIFFIS, P.J., CARLTON, J.,

text:
    Bruce COPE, Mary Cope and Ike W. Thrash, Appellants/Cross-Appellees v. THRASHER CONSTRUCTION, INC., Appellee/Cross-appellant.
    No. 2014-CA-01474-COA.
    Court of Appeals of Mississippi.
    June 28, 2016.
    Rehearing Denied May 9, 2017.

      Nicholas Van Wiser, Biloxi, attorney for appellants.
    Samuel C. Kelly, Karen Elizabeth Howell, Jackson, Taylor Brantley McNeel, Biloxi, attorneys for appellee.
   GRIFFIS, P.J.,

for the Court:

¶1.. Bruce Cope, Mary Cope, and. Ike Thrash (Cope and Thrash) appeal a judgment against them requiring that they pay Thrasher Construction $69,290 for goods and services provided in waterproofing Inn by the Sea, a condominium in Pass Christian, Mississippi. Cope and Thrash argue that the facts of this case do not support a recovery under the theory of quantum me-ruit. Thrasher Construction cross-appeals claiming that the county court erred in dismissing its third-party-beneficiary claim against Cope and Thrash.

FACTS

¶ 2. Inn by the’ Sea was destroyed by Hurricane Katrina in 2005. The owners of the individual units engaged Sealnn LLC (Sealnn) to develop a new complex and rebuild. Sealnn consisted of two members, Greg Stewart and Kenny Labelle. The unit owners conveyed their interest in the property to Sealnn in order to begin the project. Sealnn then hired Madison Homes as its general contractor. Greg Stewart is the only known representative of Madison Homes.

¶ 3. In February 2009, Madison Homes contracted with Thrasher Construction in order to waterproof Inn by ■" the Sea. Thrasher Construction was to -be paid $106,600 for this project. Thrasher Construction worked on the Inn by the - Sea project from April to July of 2009. Each month, it sent an invoice to Madison Homes, but none of the invoices were paid. Eventually, upon completion of sixty-five percent of the work on the Inn by the Sea project, Thrasher Construction stopped work due to nonpayment. Thrasher Construction then filed a Notice of Construction Lien against the Inn by the Sea property in September 2009. The amount due at the time that Thrasher. Construction stopped work was $69,290, calculated based on the percentage of the project completed.

¶4. Ike Thrash later purchased La-belle’s fifty pércent interest in Sealnn. He then signed over part of his interest to Bruce Cope and Mary Cope. After realizing that neither Stewart nor Madison Homes was paying' the subcontractors, Cope and Thrash entered into a settlement agreement with Stewart to remove him. Cope and Thrash agreed to take over and complete certain projects. Cope and Thrash agreed to pay the subcontractors on the Inn by the Sea project to the extent that the invoices provided by Stewart were “true, validC,] and correct.” Attached to the agreement was a list of unpaid invoices for each project; Thrasher Construction’s multiple invoices were listed.

¶5. Cope and Thrash then began to contact the subcontractors. . They requested that the subcontractors come to Inn by the Sea during a specific two-day period to verify the work performed. Upon verification, Cope and Thrásh would pay each subcontractor what was owed. ■ Thrash contacted Thrasher Construction approximately four times during this two-day period, but Thrasher Construction did not come to the project to verify its work because of the existing lien, Cope and Thrash paid every other subcontractor on the Inn by the Sea project. In November 2009, Thrasher Construction withdrew its lien.

¶ 6. Thrasher Construction then filed a lawsuit against Madison Homes as well as Cope and Thrash claiming breach of contract. Specifically, Thrasher Construction alleged breach of contract as a third-party beneficiary against Cope and Thrash based on the settlement agreement.

¶ 7. During trial, after Thrasher Construction’s case-in-chief, the county court dismissed the third-party beneficiary breach-of-contract claim after Cope and Thrash moved for a directed verdict. The court allowed Thrasher Construction to proceed on the theory of quantum meruit. The jury returned a verdict in favor of Thrasher Construction in tfye amount of $69,290. Cope and Thrash then filed a motion for a judgment notwithstanding the verdict (JNOV), which was denied by the county court. They appealed tó the circuit court, which affirmed. Cope and Thrash now appeal; Thrasher Construction cross-appeals.

ANALYSIS

I. Whether the court erred in allowing Thrasher Construction to proceed on the theory of quantum meruit.

¶ 8. First, Cope and Thrash contend that the express contract between Madison Homes and Thrasher Construction should have precluded Thrasher Construction from moving forward on the theory of quantum meruit. Second, Cope and Thrash argue that Thrasher failed to meet the burden of proof as to the elements of quantum meruit, and therefore, the court erred in allowing quantum meruit to be before the jury for consideration.

¶ 9. When reviewing the denial of a motion for a JNOY,

we will review all of the evidence in the light most favorable to the party opposed to the motion. If the facts and inferences from this evidence point so overwhelmingly in favor of the movant that reasonable jurors could not have arrived at a contrary verdict, the motion would be properly granted. On the other hand, if there is evidence of such quality and weight that reasonable and fair[-]minded jurors in the exercise of impartial judgment might reach different conclusions, the jury verdict should be allowed to stand, and the motion would be properly denied.

Ferguson v. Snell, 905 So.2d 516, 520 (¶ 16) (Miss.2004).

¶ 10. “Quantum meruit means literally ‘as much as he deserves[.]’ ” Redd v. L & A Contracting Co., 246 Miss. 548, 151 So.2d 205, 207 (1963). “Quantum meruit is a contract remedy which may be premised either on express or implied contract, and a prerequisite to establishing grounds for quantum meruit recovery is the claimant’s reasonable expectation of compensation.” Ace Pipe Cleaning Inc. v. Hemphill Constr. Co., 134 So.3d 799, 805 (¶ 29) (Miss.Ct.App.2014). The essential elements for recovery under quantum me-ruit are:

(1) valuable services were rendered or materials furnished; (2) for the person sought to be charged; (3) which services and materials were accepted by the person sought to be charged, used[,] and enjoyed by him; and (4) under such circumstances as reasonably notified [the] person sought to be charged that [the] plaintiff, in performing such services, ... expected to be paid by [the] person sought to be charged.

In re Estate of Fitzner, 881 So.2d 164, 173-73 (¶ 25) (Miss.2003). Quantum meru-it

applies to situations where there is no legal contract but where the person sought to be charged is in possession of money which in good conscience and justice he should not retain but should deliver to another, the courts imposing a duty to refund the money or the use value of the property to the person to whom in good conscience it ought to belong.

Ace Pipe Cleaning, 134 So.3d at 806 (¶ 29).

¶ 11. To collect under the theory of quantum meruit, “the claimant must show there is no legal contract!.]” Johnston v. Palmer, 963 So.2d 586, 596 (¶ 22) (Miss.Ct.App.2007). It is true that quantum meruit “may be premised either on express or implied contract.” Ace Pipe Cleaning, 134 So.3d at 805 (¶29). But “where there is a contract, and the contract has not failed, the parties may not abandon the contract and resort to quantum meruit.” 3 Jeffrey Jackson & Mary Miller, Encyclopedia of Mississippi Law § 21:73 (2001); Sentinel Indus. Contracting Corp. v. Kimmis Indus. Serv. Corp., 743 So.2d 954, 970 (¶ 48) (Miss.1999).

¶ 12. A contract existed between Madison Homes and Thrasher Construction, and “there cannot be an express- and an implied contract for the same thing[ ] existing at the same time.” Redd, 151 So.2d at 208. “The error in this whole proceeding arises from the assumption!] that [Cope and Thrash] might become liable ... [and] that [Cope and Thrash] should pay the reasonable worth of services ... notwithstanding such services • were rendered under an express agreement with another person.” Id.

¶ 13. We find that the theory of quantum meruit was improperly before the jury, as a legal contract existed between Madison Homes and Thrasher Construction, precluding the use of quantum meruit as a remedy between these parties. Furthermore, Thrasher Construction submitted proof that Cope and Thrash removed Madison Homes from the project and assumed the obligation to pay Thrasher Construction as well as the other unpaid' subcontractors. This evidence supports Thrasher Construction’s contention that its claim for breach of contract as a third-party beneficiary was the proper method for obtaining relief.

II. Whether the court erred in dismissing Thrasher Construction’s third-party-beneficiary claim.

¶ 14. Thrasher Construction argues on cross-appeal that county court erred in granting Cope and Thrash’s motion for a directed verdict, dismissing its claim for breach of contract as a third-party beneficiary.

¶ 15. The standard of review of a trial court’s grant of a directed verdict is de novo. White v. Stewman, 932 So.2d 27, 32 (¶ 10) (Miss.2006). In reviewing a directed verdict,

[t]his Court will consider the evidence in the light most favorable to the appellee non-movant, giving that party the benefit .of all favorable inference[s] that' may be reasonably drawn from the evidence. If the facts so considered point so overwhelmingly in favor of the appellant movant that reasonable jurors could not have arrived at a contrary verdict, we are required to reverse and render. On the other hand if there is substantial, evidence of such quality and weight that reasonable and fair[-]minded jurors in the exercise of impartial judgment might have reached different conclusions, affir-mance is required.

Tupelo Redevelopment Agency v. Gray Corp., 972 So.2d 495, 505-06 (¶ 26) (Miss. 2007).

¶ 16. “Third-party beneficiary status arises from.the terms of the contract.” Simmons Housing Inc. v. Shelton, 36 So.3d 1283, 1286 (¶ 10) (Miss.2010). An entity may be considered a third-party beneficiary if:

(1) the contract between the original parties was entered for that person’s or entity’s benefit; or the original parties at least contemplated such benefit as- a direct result of performance; (2) the promisee owed a legal obligation, or duty to that, person or entity; and (3) the legal obligation or duty connects that person or entity with the contract.

Id. The supreme court has provided the following for- determining third-party, beneficiary status: .

(1) When the terms of the contract , are expressly broad enough to-include the third party either by name as one of a specified class, and (2) the said third party waá evidently within the intent of the terms so used, the said third party will be within its benefits, if (3) the promisee had, in fact, a substantial and articulate interest in the welfare of the said third party in respect to the. subject ■of the contract. ■

Id. Furthermore, “[a] third-party beneficiary also must benefit directly from the contractA mere incidental or consequential' benefit is insufficient.” Id. at 1286-87 (¶ 11). '

¶ 17. The relevant section of the settlement agreement reads as follows:

Cope and Thrash shall be responsible for the payment of all outstanding bills and invoices for work performed and materials supplied on the following projects:
—Inn by the Sea (Seainn, LLC);
—LLDG Avalon, LLC (Four Points Hotel); and
■ — The Township at Ocean Springs, LLC. This shall be accomplished as follows:,
a.Stewart has provide[d] a list of all invoices received to date, and the identity of persons/entities with unbilled work-in-process for the above three projects to Thrash and Cope which is attached hereto ...;
b. Stewart has. provided all required underlying documentation (bills, ■ invoices, etc.) supporting the listing of unpaid receivables;
c. Thrash, along with Stewart, shall be entitled to contact any of the. subcontractors or suppliers for the purposes of determining the fact that such sums are, in fact, due and owing and, represent work performed or materials provided to the specific three projects enumerated above. To the extent that the invoices do y,ot represent -such sums, they shall not be payable by Thrash and Cope. To the extent that they are true, valid , and correct payables as to the three above-named projects, Cope and Thrash shall pay same within 7 days.

(Emphasis added).

, ¶ 18. Thrasher Construction qualifies as a third-party beneficiary. , The settlement agreement between Stewart and Cope and Thrash contemplated that Thrasher Construction would benefit as a direct result of performance — i.e., it would be paid for its work. Stewart, as Madison Homes, owed a duty to Thrasher Construction. And that duty connected Thrasher Construction with the settlement .agreement. The Inn by,the Sea project was specifically listed in the settlement agreement, and Thrasher Construction’s invoices were listed in an attachment to the agreement along with the total payment due to Thrasher Construction.

¶ 19. Cope and Thrash argue that the settlement agreement did not contain an unconditional promise to pay Thrasher Construction. Rather, the settlement agreement required that Thrasher. Construction come verify its work as a condition precedent to being paid. Thrasher Construction, after being contacted approximately four times .during the two-day period when Cope and Thrash were conducting the verifications, did not go to Inn by the Sea to verify its work,- Because Thrasher Construction never complied with this condition, Cope and Thrash argue that a duty to perform never arose from the settlement agreement in relation to Thrasher Construction. Testimony during trial did show that Thrasher Construction later contacted Cope and Thrash in an effort to verify the work performed at Inn by the Sea, but Cope and Thrash refused to receive them and denied payment.

¶ 20. “A condition precedent has been defined as a condition which must be performed before the agreement of the parties shall become a binding contract or a condition which must be fulfilled before the duty to perform an existing contract arises.” Turnbough v. Steere Broadcasting Corp., 681 So.2d 1325, 1327 (Miss. 1996), It is true that “[i]f a fact or event is a condition precedent to a promisor’s duty to render the performance promised, its absence or non-occurrence is a ‘defense’ in an action brought against him for breach of his promise.” Id, But we find no such condition present in the settlement agreement that required Thrasher Construction to respond within two days to a request to verify the work performed at Inn by the Sea, The agreement entitles Thrash to contact the subcontractors to verify that the sums listed by Stewart were correct. If the invoices did not represent the correct amount due, Thrash and Cope would not be responsible to pay them. But “to the extent that they [were], true, valid[,] and correct,” Cope and Thrash were responsible for the payment.

¶21. During trial, Cope and Thrash argued heavily that Thrasher Construction did not actually perform the work, and therefore, they were not responsible for the payment. On appeal, Cope and Thrash argue differently. ' They now argue that they are simply not the responsible party. The settlement agreement reveals otherwise, Cope and Thrash agreed to pay the invoices due on the Inn by the Sea project if those invoices were correct. A jury found that Thrasher Construction had in fact done the work it claimed. Furthermore, the settlement agreement has no condition that requires Thrasher Construction to go to the project for a meeting to verify its work. A reading of the settlement agreement shows that the only way Cope and Thrash would not be responsible for paying Thrasher Construction is if the work was never performed.

¶ 22. As thé Court finds ho such condition upon Thrasher Construction, and Thrasher Construction was a third-party beneficiary of the settlement agreement, thé breach-of-contract claim against Cope and Thrash was erroneously dismissed. The facts point so overwhelmingly in favor of Thrasher Construction that reasonable jurors could not have arrived at a contrary verdict.

¶23. Accordingly, the judgment of the Circuit Court of Harrison County on the claim for quantum meruit is reversed and rendered. Also, on the cross-appeal, the trial court’s judgment that dismissed Thrasher Construction’s claim for breach of contract as a third-party beneficiary is reversed and remanded for further proceedings consistent with this opinion.

¶24. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY IS REVERSED AND RENDERED ON DIRECT APPEAL, AND REVERSED AND REMANDED ON CROSS-APPEAL FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS/CROSS-APPELLEES.

LEE, C.J., IRVING, P.J., BARNES, ISHEE AND GREENLEE, JJ., CONCUR. FAIR, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION.. CARLTON, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY FAIR AND JAMES, JJ.; WILSON AND GREENLEE, JJ., JOIN IN PART.

CARLTON, J.,

concurring in part and dissenting in part:

¶ 25. I respectfully concur in part and dissent in part from the majority’s opinion. I agree with the majority that the record reflects the circuit court erred in dismissing Thrasher Construction’s third-party-beneficiary claim. See Aladdin Constr. Inc. v. John Hancock Life Ins., 914 So.2d 169, 179-80 (1121) (Miss.2005). However, unlike the majority, I would affirm the jury’s verdict awarding Thrasher Construction $69,290 based upon the alternate theory of recovery of quantum meruit. See Ground Control LLC v. Capsco Indus. Inc., 120 So.3d 365, 371 (¶¶ 13-15) (Miss. 2013) (finding that, although the lack of certificates of responsibility rendered the parties’ contract void, this did not preclude the sub-subcontractor from asserting claims of unjust enrichment and quantum meruit, and stating that “[ujnjust enrichment applies to situations where there is no legal contract and the person sought to be charged is in possession of money or property which in good conscience and justice he should not retain but should deliver to another” (citation and internal quotation marks omitted)).

¶ 26. The record reflects that Cope and Thrash, as owners of Sealnn, removed Stewart, the general contractor’s agent. Cope and Thrash’s activities, as well as their settlement agreement with Stewart, reflect that, upon their removal of Stewart, Cope and Thrash then became the agents of the general contractor, Madison Homes. See generally Associated Dealers Supply Inc. v. Miss. Roofing Supply Inc., 589 So.2d 1245, 1247-48 (Miss.1991) (discussing whether, based on the activities of an employee, the co-owner of a building project became the project’s general contractor). The general contractor’s interests in the project and its right to performance of the subcontractors were conveyed to Cope and Thrash, the owners, upon their removal of Stewart as the general contractor’s agent and upon their assumption of the general contractor’s obligations, duties, and rights to performance. See generally Aladdin Constr., 914 So.2d at 175-79 (¶¶ 11-20) (finding genuine issues of material fact as to whether a company engaged by a mall owner, acted as the owner’s agent).

¶27. In accordance with the subcontract, Thrasher Construction submitted invoices for. payment of the work it performed. Instead of paying Thrasher Construction the amount due for its completed performance, the owners (Cope and Thrash), acting as the general contractor’s agents, hired the son of one of the owners (Thrash) to complete the work. See id. (discussing whether an agency relationship existed between a mall owner and the company hired as its construction manager).

¶ 28. After a review of the record and applicable caselaw, I would affirm the jury’s verdict awarding Thrasher Construction $69,290 based upon a quantum meruit theory of recovery. As a result, I concur in part and dissent in part from the majority’s opinion.

FAIR AND JAMES, JJ., JOIN THIS OPINION; WILSON AND GREENLEE, JJ., JOIN THIS OPINION IN PART.

      . See also Williams v. Ellis, 176 So.3d 133, 138 (¶ 12) (Miss.Ct.App.2015) ("Quantum me-ruit recovery is a contract remedy which may he premised either on express or implied contract, and a prerequisite to establishing grounds for quantum meruit recovery is the claimant's reasonable expectation of compensation.” (quoting In re Wilhite, 121 So.3d 301, 305 (¶ 8) (Miss.Ct.App.2013))).

      . See also Aladdin Constr., 914 So.2d at 175-76 (¶ 11) (citing Brogno v. W & J Assocs. Ltd., 698 A.2d 191, 194 (R.I.1997), for the propositions that a construction manager acts as a mere agent for the owner to perform most of the work and that the mere label of construction manager will not determine a party’s legal status); Summerall Elec. Co. v. Church of God at Southaven, 25 So.3d 1090, 1095-96 (¶¶ 19, 26-27) (Miss.Ct.App.2010) (discussing apparent authority and stating that the key to determining -whether someone is an agent or an independent contractor is whether the person acts on the principal’s behalf and is subject to the principal’s control).

      . See generally Associated Dealers Supply, 589 So.2d at 1248 (finding that, to determine a co-owner’s status, the chancellor should have looked at the co-owner's activities isolated from its ownership, and if shown to be the activities of a contractor, then the chancellor should have determined the co-owner’s status to be that of a contractor); Bailey v. Worton, 752 So.2d 470, 472 (¶ 1) (Miss.Ct.App.1999) (finding that the general contractor was the owner’s implied agent because the owner delegated authority for the construction of a house to the general contractor).


source: Caselaw Access Project

author: FAIR, J., CARLTON, J.,

license: Public Domain

text:
    CITY OF MERIDIAN, Mississippi d/b/a East Mississippi Drug Task Force, Appellant v. $104,960.00 U.S. CURRENCY, and a 2003 Ford F-150 Supercab Truck, VIN # 1FTRX17213NB65899 and Maria I. Valle Catalan, Appellees.
    No. 2015-CA-00710-COA.
    Court of Appeals of Mississippi.
    July 19, 2016.
    Rehearing Denied Feb. 21, 2017.

      Andy Davis, Meridian, attorney for appellant.
    J. Stewart Parrish, Meridian, Jessica Leigh Massey, attorneys for appellees.
   FAIR, J.,

for the Court:

¶ 1. The City of Meridian (The City) filed á petition for forfeiture against Maria Catalan after the police department found $104,690 in her truck during a traffic stop. Catalan filed a motion to dismiss, which was granted by the ■ Lauderdale County County Court. The Lauderdale County Circuit Court affirmed the county court’s judgment. The City asserts the following on appeal: (1) the county court erred in granting Catalan’s motion to dismiss; and (2) the county court erred in applying the wrong legal standard. We find that the court applied the correct legal standard and that dismissal under Mississippi Rule of. Civil Procedure 12(b)(6) was proper. Therefore, we affirm.

FACTS

¶ 2. On June 2, 2012, Catalan was pulled over for “tired” driving. A consensual search revealed $104,690 -hidden in one of the truck’s compartments. No contraband or drugs were found in the truck. ' Nor was Catalan charged with any criminal offense or even a traffic citation.

¶ 3. A few weeks later, the City filed a petition for forfeiture requesting the forfeiture of Catalan’s truck and the $104,690. Catalan filed an answer and a request for production. The City then filed a motion to- continue and/or set the case, and the case was set for November 3,2012.

¶ 4. The case dragged on for over a year with discovery and motions. On August 14, 2013, Catalan filed a motion' to dismiss under Rule 12(b)(6). After a hearing, the court granted the motion , and ordered the City to return the confiscated money and truck to Catalan. The City appealed to the circuit court, which affirmed the county court’s decision. The City then appealed to this Court.

DISCUSSION

¶ 5. A motion to dismiss under Rule 12(b)(6) presents a question of law, which this Court reviews de novo. Storey v. Williamson, 101 So.3d 662, 665 (¶ 10) (Miss.Ct.App.2012). On a motion to dismiss, “the allegations in the complaint must be . taken as true, .and the motion should not, .be granted unless it appears beyond doubt that the plaintiff will be unable to prove any set of facts in support of his claim,” Covington Cty. Bank v. Magee, 177 So.3d 826, 828 (¶5) (Miss.2015) (citation and quotation omitted). However, “[cjonclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to defeat a motion to dismiss.” Penn Nat’l Gaming, Inc. v. Ratliff, 954 So.2d 427, 431 (¶6) (Miss. 2007). That is, “[t]he court does not have to accept legal conclusions or allegations as to the , legal effect of events which may be included in a complaint.” Ngo v. Centennial Ins., 893 So.2d 1076, 1081-82 (¶ 14) (Miss.Ct.App.2005).

1. Whether the court erred in granting Catalan’s motion to dismiss.

■ ¶ 6. Mississippi Rule of Civil Procedure 8 states that “a pleading which sets forth a claim for relief ... shall contain (1) a short and plain- statement of the claim showing that the pleader is entitled to relief, and, (2) a. demand for judgment for the relief to which he deems himself entitled.-...” Under Rule 12(b)(6), a party may move to dismiss a pleading for its “[flailure to state a claim upon which relief can be- granted.” Because the City did not meet Rule 8’s requirements, dismissal under Rule 12(b)(6) was proper.

¶ 7. The City filed the petition for forfeiture under Mississippi Code Annotated sections 41-29-153(a)(5) and/or 41-29-153(a)(7) (Rev.2013), stating:.

[The currency and truck] are subject to forfeiture under the provisions of Miss. Code Ann. §§ 41-29-153(a)(5) and/or 41 — 29—153(a)(7)[ 3, said truck and currency having been used, or intended for use or constituting proceeds in violation of. the Mississippi Uniform Controlled Substances Law....

Section 41-29-153(a) provides:

(a) The following are subject to forfeiture:
(5) All money, deadly weapons, books, records, and research products and materials, including formulas, microfilm, tapes and data which are used, or intended for use, in violation of this article or in violation of Article 5 of this chapter;
(7) Everything of value, including real estate, furnished, or intended to be furnished, in exchange for a controlled- substance in violation of this article, all proceeds traceable to such an exchange, and all monies, negotiable instruments, businesses.or business investments, securities, and other things of value used, or intended to be used, to facilitate any violation of this article. All monies, coin and currency found in close proximity to •forfeitable controlled substances, to for-feitable drug manufacturing or distributing paraphernalia, or to forfeitable records of the importation, manufacture or distribution of controlled substances are presumed to be forfeitable under this paragraph; the burden of. proof is upon claimants of the property to.rebut this presumption.

(Quoting Miss.Code Ann. ' §§ 41 — 29— 153(a)(5) & 41-29-153(a)(7))." '

.¶8. “Forfeitures are not favored in this state; therefore, before a forfeiture may be ordered, it must’come within the terms of the statute which imposes the liability of forfeiture.” Cannon v. State, 918 So.2d 734, 744 (¶ 31) (Miss.Ct.App.2005) (reversed. and remanded solely on the issue of sentencing) (quoting Jackson v. State ex rel. Miss. Bureau of Narcotics, 591 So.2d 820, 823 (Miss.1991)). A petition foy forfeiture must comply with Rule 8 of the Mississippi Rules of Civil Procedure. Id. at (¶ 34).' “Although Rule 8 abolishes many technical requirements of pleadings, it does not eliminate the necessity of stating circumstances, occurrences, and events which support the proffered claim.” M.R.C.P. 8 cmt.

■¶ 9. In Cannon, this Court-addressed in part the issue of whether a State’s petition for forfeiture sufficiently stated a claim. Cannon, 918 So.2d at 745 (¶ 34). The State’s original petition described the- real property, motorcycle, and $2,000 cash but did not specifically list the real property. Id., at (¶ 32)., At the State’s request, the petition was amended in the trial court to conform the . State’s pleadings to the proof presented during-trial. Id. at (¶ 34). The proof included a description of the real property and the reasons for forfeiture. Id, This Court ultimately held that, after amendment, the petition met the threshold requirements of Rule 8. Id.

¶ 10. We held in Cannon that the original petition was adequate regarding the motorcycle and currency because it stated “the reasons and particular authority for the forfeiture of those items.” Id. at (¶ 32). The same reasoning applied to the real property in the amended petition. Id. at (¶ 34). Here, the City’s petition named the currency and truck as items for forfeiture but failed to state any reason for their forfeiture. Specifically, the City presented no facts or circumstances to show how the use or intended use of the money and truck violated the Mississippi Uniform Controlled Substances Law. So, applying the same principles from Cannon, the City failed to meet Rule 8’s threshold requirements, and its petition was properly dismissed under Rule 12(b)(6).

2; Whether the court applied the correct legal standard.

¶11. The City claims that the county court made findings of fact arjd conclusions of law outside of the pleadings, erroneously converting Catalan’s motion to dismiss into a motion for summary judgment. And that, as a result, the court should have given the City ten days’ notipe of the motion. See M.R.C.P. 56(c).

¶ 12. “When considering a motion to dismiss, the allegations in the complaint must be taken as true and the motion should not be granted unless it appears beyond reasonable doubt that the plaintiff will be unable to prove any set of facts in support of her claim.” State v. Bayer Corp., 32 So.3d 496, 502 (¶ 21) (Miss.2010) (quoting Howard v. Estate of Harper ex rel. Harper, 947 So.2d 854, 856 (¶ 5) (Miss. 2006)). Our standard of review is de novo, and we have concluded that the City’s petition fails to state a claim upon which relief can be granted. Therefore, whether the county court applied the proper standard is moot at this point.

¶ 13. In any event, in its order on the motion to dismiss, the court stated that it read the pleadings and heard oral argument from both parties. The court’s order also provided a brief history of the case. No exhibits, affidavits, or other forms of evidence were presented to the court. Looking at the order, it is clear that the court relied solely on -the pleadings to find that the City had failed to state a claim upon which relief could be granted. Thus, we find the court applied the correct Rule 12(b)(6) legal standard.

CONCLUSION

¶ 14. Because the City failed to state a claim upon which relief can be granted, and the court applied the correct legal standard in dismissing the City’s petition, we affirm.

¶ 15. THE JUDGMENT OF THE LAUDERDALE COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., ISHEE, JAMES, WILSON AND GREENLEE, JJ. CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY IRVING AND GRIFFIS, P.JJ., IRVING AND GRIFFIS, P.JJ. AND BARNES, J.

CARLTON, J.,

dissenting:

¶ 16. I respectfully dissent, and I submit that the trial court erred by granting Catalan’s motion to dismiss pursuant to Mississippi Rule of Civil Procedure 12(b)(6). This Court will affirm a trial court’s decision to dismiss for failure to state a claim “only if the moving party can show beyond doubt that the plaintiff failed to state a claim upon which relief can be granted.” Ralph Walker, Inc. v. Gallagher, 926 So.2d 890, 893 (¶ 4) (Miss.2006) (quoting M.R.C.P. 12(b)(6)). I would reverse and remand, since the record herein reflects that the City’s petition for forfeiture clearly stated a claim for relief under Mississippi Code Annotated sections 41-29-153(a)(5), 41-29-15S(a)(7), and 41-29-163(b) (Rev.2013).

¶ 17. The petition also satisfies the notice-pleading requirements of Mississippi Rule of Civil Procedure 8. The petition states that it “is for a civil action of the forfeiture of property under the authority of [Mississippi Code Annotated] sections 41-29-101, et. seq.” The petition provides the property, $104,960 in currency and a 2003 Ford F-150 Supercab truck, VIN # 1FTRX17213NB65899, was lawfully seized on June 2, 2012, by the East Mississippi Drug Task Force and that the City “has lawfully retained custody of subject property since seizure.” The petition also provided that both the currency and the truck were subject to forfeiture under section 41-29-153(b). The petition alleged that the “truck and currency [have] been used, or intended for use, or constituted] proceeds in violation of the Mississippi Uniform Controlled Substances Law.” The petition also provided that the track and currency should be forfeited pursuant to Mississippi Code Annotated sections 41-29-179(4) (Rev.2013) and 41-29-181(2) (Rev.2013).

¶ 18. In reviewing Rule 12(b)(6) motions to dismiss, the appellate court is “not required to defer to the trial court’s judgment or ruling.” Gallagher, 926 So.2d at 893 (¶4). “Instead, we sit in the same position the trial court did” and review de novo. Id. A motion to dismiss under Rule 12(b)(6) raises a question of law. “In order for us to affirm a grant ... of a Rule 12(b)(6) motion to dismiss, it must be such that no set of facts would entitle the opposing party to relief.” Id. The trial court cannot consider matters outside of the pleadings when ruling on a Rule 12(b)(6) motion to dismiss. Arnona v. Smith, 749 So.2d 63, 65 (¶7) (Miss.1999). A Rule 12(b)(6) motion to dismiss is converted to a Rule 66 summary-judgment motion when the trial court considers matters outside of the complaint. Id.; see also Cook v. Brown, 909 So.2d 1075, 1077 (¶ 8) (Miss. 2005).

¶ 19, The petition in this case contains the requisite jurisdictional and statutory elements and clearly identifies the property subject to, and the parties interested in, this in rem civil forfeiture action. As a result, I submit that the City’s petition is sufficient to enable interested parties “to commence an investigation of the facts and to frame a responsive pleading.” United States v. Seventy-Nine Thousand Three Hundred Twenty-One Dollars, 522 F.Supp.2d 64, 70 (D.D.C.2007); United States v. All Funds on Deposit in Dime Sav. Bank of Williamsburg Account No. 58-400738-1, 255 F.Supp.2d 56, 66 (E.D.N.Y.2003). The petition herein provides specificity as to the property subject to the seizure action and is sufficient to place persons potentially interested in the property on fair notice of the City's intent and position. The trial court erred in dismissing the City’s petition pursuant to Rule 12(b)(6),- and I would therefore reverse and remand for proceedings consistent with this separate opinion.

IRVING AND GRIFFIS P.JJ., AND BARNES, J., JOIN THIS OPINION.

      . Regarding evidence on the merits, see and compare Cowan v. Mississippi Bureau of Narcotics, 2 So.3d 759, 765 (¶21) (Miss.Ct.App.2009) ("The trier of fact may act on circumstantial 'evidence and inferences as well as direct evidence” in determining whether the preponderance of the evidence showed that the money was drug related.); see also Hickman v. State ex rel. Miss. Dep’t of Pub. Safety, 592 So.2d 44, 46-48 (Miss. 1991) (affirming forfeiture of money seized based on circumstantial evidence indicating drug-courier activities).

      . A civil forfeiture petition in action constitutes an in rem proceeding. State ex rel. Miss. Bureau of Narcotics v. Lincoln Cty., 605 So.2d 802, 804 (Miss. 1992). In the civil in rem forfeiture action, "a criminal conviction is not a prerequisite for civil forfeiture!.] ” Id.


author: FAIR, J.,

text:
    Aundrea ROBINSON, Appellant v. MARTIN FOOD STORES, INC. d/b/a Sunflower Food Stores of Magnolia, Appellee.
    No. 2014-CA-01457-COA.
    Court of Appeals of Mississippi.
    July 19, 2016.
    Rehearing Denied Jan. 17, 2017.

      Jonathan C. Tabor, David Neil McCarty, Leigh-Ann Tabor, attorneys for appellant.
    Patrick M. Tatum, William Lock Morton III, Ridgeland, Steven Cavitt Cookston, Greenwood, attorneys for appellee.
    Before IRVING, P.J., FAIR and WILSON, JJ.
   FAIR, J.,

for the Court:

¶ 1. Aundrea Robinson was shopping in a Sunflower grocery store when -he slipped and fell on a puddle of clear liquid. The circuit court granted summary judgment to Sunflower after finding that Robinson failed to produce evidence the spill had been created by Sunflower or that it had been there long enough to impart constructive knowledge of its existence to the store. On appeal, Robinson contends that he was entitled to an adverse inference agáinst Sunflower based on its spoliation of evidence, losing a video recording of the spill and the fall as well as a contemporaneous incident report. But even assuming Robinson was entitled to the inference he seeks, under Mississippi law it is not a substitute for a prima facie case, which Robinson failed to present. We affirm the summary judgment.

STANDARD OF REVIEW

¶2, “We employ a de novo standard of review of a trial court’s grant or denial of summary judgment and examine all the evidentiary matters before it....” Davis v. Hoss, 869 So.2d 397, 401 (¶ 10) (Miss.2004). Summary judgment is proper when “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c).

¶ 3. “The evidence is viewed in the light most favorable to the party opposing the motion.” Davis, 869 So.2d at 401 (¶ 10). Still, “an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response ... must set forth specific facts showing that there is a genuine issue for trial.” M.R.C.P. 56(e). Furthermore:

[W]hen a party, opposing summary judgment on a claim or defense as to which that party will bear the burden of proof at trial, fails to make a showing sufficient to establish an essential element of the claim or defense, then all other facts are immaterial, and the moving party is entitled to judgment as a matter of law.

Galloway v. Travelers Ins., 515 So.2d 678, 684 (Miss.1987).

DISCUSSION

¶ 4. For the purposes of summary judgment, the facts are largely uncontested. There is no dispute that Robinson was a business invitee and that he slipped and fell on a puddle of clear liquid while shopping in the store. See Grammar v. Dollar, 911 So.2d 619, 624 (¶ 12) (Miss.Ct.App.2005) (defining business invitee as “someone who enters onto another’s premises at the invitation of the owner ... ”).

¶ 5. But the owner of a business is not required to insure against all injuries, even for an invitee; instead, he “owes a duty to an invitee to exercise reasonable or ordinary care to keep the premises in a reasonably safe condition or to warn of dangerous conditions not readily apparent, which the owner or occupant knows of, or should know of, in the exercise of reasonable care.” Robinson v. Ratliff, 757 So.2d 1098, 1101-02 (¶ 12) (Miss.Ct.App.2000). The owner has no duty to warn of a defect or danger that is as well known to the invitee as to the owner, of dangers that are known to the invitee, or of dangers that are obvious or should be obvious to the invitee in the exercise of ordinary care. Grammar, 911 So.2d at 624 (¶ 12). Therefore, the plaintiff must prove either (1) that the property owner’s negligence injured him, (2) that the property owner had knowledge of the dangerous condition and failed to warn him, or (3) that the condition existed for a sufficient amount of time that the owner should have had knowledge or notice of the condition (constructive knowledge). Anderson v. B.H. Acquisition Inc., 771 So.2d 914, 918 (¶ 8) (Miss.2000) (citation omitted).

¶ 6. Here, several witnesses testified about the puddle. Robinson himself admitted that the liquid was clear, did not have tracks or debris in it, and did not appear to have been there for very long. A store employee, Chris Jackson, testified that he had passed the area of the spill five or ten minutes before and that it was not there at that time. Jackson added that he had watched a surveillance video of the area and that the puddle — which was in front of a beer cooler-had appeared a few minutes before Robinson fell, after the “beer man,” who was not an employee of the store, stocked the cooler. Both Jackson and Robinson testified to seeing the beer man at the store around the time Robinson fell. For his part, the beer man, Clint Nettles, denied that he could have left the puddle.

¶ 7. Prior to the hearing on Sunflower’s motion for summary judgment, the word “spoliation” did not appear in the record. The issue was not raised in Robinson’s response to Sunflower’s motion or in any other pleading. The issue was first mentioned, almost as an afterthought, at the hearing. Specifically, just before concluding her argument at the hearing, Robinson’s counsel stated that there was “also a serious spoliation issue” with regard to Sunflower’s failure to produce a video or accident report. However, no further argument was made, and no relevant authority was ever cited. To be clear, the word “spoliation” appears once in the entire circuit court record. Because the issue was mentioned so belatedly, the record regarding the video and incident report is undeveloped. There is evidence that a video and incident report existed on August 1, 2011, when Robinson fell, and apparently Sunflower did not have it over eighteen months later, when Robinson served his discovery requests. The record reveals little else.

¶ 8. Yet on appeal, spoliation suddenly has become the only issue. Robinson argues “spoliation • • • forbids summary judgment,” and he asserts that “the trial court disregarded the spoliation of evidence in granting summary judgment.” We conclude that the trial judge did not “disregard” anything; rather, Robinson waived the issue by raising it in such a belated and offhand fashion. As this Court recently reiterated,

“It is a long-established rule in this state that a question not raised in the trial court will not be considered on appeal.” Adams v. Bd. of Sup’rs of Union Cty., 177 Miss. 403, 170 So. 684, 685 (1936). Moreover, it is not sufficient to simply mention or “discuss” an issue at a hearing. The rule is that a “trial judge cannot be put in error on a matter which was never presented to him for decision.” Methodist Hosps. of Memphis v. Guardianship of Marsh, 518 So.2d 1227, 1228 (Miss.1988) (emphasis added).

City of Hattiesburg v. Precision Constr., LLC, 192 So.3d 1089, 1093-94 (¶ 18) (Miss.Ct.App.2016). If spoliation were truly the reason for denying summary judgment-as Robinson now contends on appeal-then he should have made that argument clearly in the circuit court, not just mentioned the issue in passing. We conclude that Robinson is barred from raising the issue' on appeal because it was never properly presented to the circuit judge for decision. Id.

¶9. Procedural bar notwithstanding, summary judgment would have been properly grantéd even if Robinson had received the spoliation inference he requests on appeal. Robinson points to Thomas v. Isle of Capri Casino, 781 So.2d 125, 133 (¶37) (Miss.2001), where the Mississippi Supreme Court stated:

When evidence is lost or destroyed by one party (the “spoliator”), thus hindering the other party’s ability to prove his case, a presumption is raised that the missing evidence would have been unfavorable to the party responsible for its loss. According to Wigmore:
Spoliation and all similar conduct is receivable against him as an indication of his consciousness that his case is a weak or unfounded one; and from-that consciousness may be inferred the fact itself of the cause’s lack of truth and merit. The inference thus does not necessarily apply to any specific fact in the cause, but operates indefinitely though strongly against the whole-mass of alleged facts constituting his cause.
2 J. Wigmore, Evidence § 278, at 133 (J. Chadbourn rev.1979). Because the presumption of unfavorability is not solely confined to the specific issue of what information was contained in the missing evidence, the fact finder is free to draw a general negative inference from the act of spoliation, regardless of what the spoliator’s rebuttal evidence shows.

According to Robinson, this is a “burden shifter” that relieves him of the burden of proving Sunflower’s negligence. It is true that. the 'Thomas court quoted Wigmore approvingly for the proposition that the “fact itself of the [spoliator’s] cause’s lack of truth and merit” may be inferred from spoliation. And, in a summary judgment, the nonmoving- party is entitled to the benefit of every reasonable inference; Partin v. N. Miss. Med. Ctr., Inc., 929 So.2d 924, 929 (¶ 16) (Miss.Ct.App.2005). But the Thomas court was silent on the question of whether the inference, drawn from a presumption, is strong enough to replace a prima facie case, i.e.,; whether inference alone amounts to sufficient evidence to prevent summary judgment.

¶ 10. This Court addressed that question directly in the recent cases of Cofield v. Imperial Palace of Mississippi LLC, 147 So.3d 364, 367 (¶ 11) (Miss.Ct.App.2014), and Bolden v. Murray, 97 So.3d 710, 718 (¶ 31) (Miss.Ct.App.2012), where we concluded: “[F]or purposes of summary judgment, /spoliation] of evidence, standing alone, is not enough to allow a party who has produced no evidence — or utterly inadequate evidence — in support of a given claim to survive summary judgment on that claim.” (quoting Kronisch v. United States, 150 F.3d 112, 128 (2d Cir. 1998)) (emphasis added; internal quotation marks removed).

¶ 11. Robinson argues that these decisions were in disregard of prior Mississippi law,- but that is not the case.- In fact, Mississippi has followed this rule since 1878. In Bott v. Wood, 56 Miss. 136, 140-41 (1878), a will contest where the will had allegedly been destroyed intentionally, it was held:

The principle of the maxim Omnia proe-sumuntur in odium spoliatoris, as applicable to the destruction or suppression óf a written instrument, is that such destruction or suppression raises a presumption that the document would, if produced, militate against the party destroying or suppressing it, and that his conduct is attributable to this circumstance, and, therefore, slight evidence of the contents .of the instrument will usually, in such a case, be sufficient. There is great danger that the maxim may be carried too far. It cannot properly be pushed to the extent of dispensing with the necessity of other evidence, and should be regarded “as merely matter of inference, in weighing the effect of evidence in its own nature applicable to the subject in dispute,”

(Citing 2 Best on Ev,, § 412 et seq.). Bott has never been overruled; instead,, it has been repeatedly reaffirmed. In DeLaughter v. Lawrence County Hospital, 601 So.2d 818, 822 (Miss.1992), the court recited the above quote from Bott with approval. And in the 2002 case of Dowdle Butane Gas Co. v. Moore, 831 So.2d 1124, 1127 (¶ 8) (Miss.2002), the supreme court cited Bott as the seminal Mississippi case on the spoliation inference, without any caveati

¶ 12, Considering the authorities we have discussed, we can find no error in the trial court’s grant of summary judgment to Sunflower.

¶13. THE JUDGMENT OF THE CIRCUIT COURT OF PIKE COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON AND GREENLEE, JJ., CONCUR, WILSON, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION.

      . Martin Food Stores Inc. was the operator of the store, but we will refer to it as "Sunflower”. for convenience.

      . The beer distributor was initially a defendant, but it is no longer a party to this suit.


author: GREENLEE, J„ WILSON, J.,

text:
    Edward SPRINGER, Appellant v. AUSBERN CONSTRUCTION CO., INC., Appellee.
    No. 2014-CA-01190-COA.
    Court of Appeals of Mississippi.
    Aug. 2, 2016.
    Rehearing Denied March 21, 2017.

      Rex F. Sanderson, Houston, Barrett Jerome Clisby, Oxford, attorneys for appellant.
    Mark D. Herbert, Sabrina Bosarge Ruf-fin, Bradford Coleman Ray, Jackson, attorneys for appellee.
    Before IRVING, P.J., BARNES and GREENLEE, JJ.
   GREENLEE, J„

for the Court:

¶ 1. A Lafayette County jury awarded Ausbern Construction Company Inc. a judgment of $182,500 against county engineer Edward Springer for tortious interference with a road-construction contract. Springer appeals. We find that Springer acted within the scope of his responsibility to the County and without bad faith. Because his actions were not “without right or justifiable cause,” the element of tor-tious interference that constitutes malice was not satisfied. We also find that the claim against Springer implicates the Mississippi Tort Claims Act, and that Springer’s motion to dismiss due to lack of pre-suit notice should have been granted. We therefore reverse and render the verdict against Springer.

FACTS AND PROCEEDINGS BELOW

¶2. Ausbern won a contract bid with Chickasaw County for construction of a road. Ausbern’s bid was based on unit specifications prepared by the office of Chickasaw County’s engineer, Springer. Springer’s original plans estimated that 7,689 cubic yards of 304A fill material would be required. This estimate turned out to be an error, and the project actually required 17,700 cubic yards of the unit material.

¶ 3. The project was subject to oversight from the Mississippi Office of State Aid. State Aid projects are subject to the regulations found in the “Mississippi Standard Specifications for State Aid Road and Bridge Construction” (the Green Book). Under the Green Book, the local county engineer is responsible for inspecting the contractor’s work, measuring and keeping track of the actual unit quantities placed by the contractor, preparing monthly estimates of the work actually performed by the contractor, and reporting that quantity and corresponding earned contract amounts to both the State Aid Division and the County.

¶4. Section 105.17 of the Green Book provides a mechanism for a contractor to make a claim for adjustments from the original contract. It specifies that it “is in the public interest that the Board and the State Aid Engineer have early or prior knowledge of an existing or impending claim of any nature by the Contractor,” that “the Contractor shall notify the Engineer in writing of an intention to make such claim for additional compensation before beginning the work on which the Contractor bases the claim or for such extension of time as soon as the facts first become known on which the Contractor bases the claim for adjustment,” that “the Contractor hereby agrees that failure to provide written notice has denied the Board and the State Aid Engineer the prerogative of verifying additional time, materials, equipment, labor and making adjustment in the work which might remove or mitigate the conditions for which a claim, might be made,” and that “the Contractor further agrees that such failure on the Contractor’s part shall be a conclusive waiver of any claim, or part thereof.”

¶ 5. Ausbern did not give notice to the State Aid Office or to the county engineer, Springer, that the project required' almost three times as' much fill material as the contract called for until after the' project was completed in November 2011. Aus-bern sent Springer emails November 23, 2011, December 2, 2011, and December 22, 2011, informing him that the amount of 304A the project required was significantly more than the original estimates and asking how the overage would be addressed. Ausbern then contacted Joel Bridges,, the district engineer with the State Aid Division. Bridges forwarded Ausbern’s letter to Springer.

¶6, In January 2012, Ausbern filed a formal claim for payment for the overage with the State Aid Office under Green Book section 105.17. State Aid Division engineer Joel Bridges approved this claim in February 2012, finding that Springer’s original plans were in error and informing Chickasaw County and Springer that the Ausbern contract should be adjusted to show 17,700 cubic yards of 304A and that Ausbern would be paid at the contract rate of $19.50 per cubic yard. Bridges also informed the Board of Supervisors in person that the claim had been approved. The County delayed payment pending approval from Springer.

¶ 7. In February 2012, Springer sent a letter to Ausbern acknowledging -the error and offering that Ausbern should accept $8.00 a cubic yard for the overage rather than the contract unit price of $19.50. Ausbern declined to negotiate the unit price and in March 2012 sued Chickasaw County for breach of contract. Ausbern later joined Springer to the action, suing him individually for tortious interference with the contract. due. to his delay in addressing the overage and his failure to submit approval of an amended contract to the .County. .Ausbern did not provide pre-suit notice pursuant to the Mississippi Tort Claims Act.

¶ 8.- The court granted a directed verdict to Ausbern against the County on its liability for breach of contract. The court rejected the County’s argument that Aus-bern had waived its right to be paid for the overage by failing to comply exactly with any notice requirements of Green Book section 105.17, stating: “I don’t think that the failure to comply with the notice provisions excuses performance on, the part of the county.” The jury awarded Ausbern a judgment against the Oounty for $387,793.50. That verdict was not appealed,

¶ 9. The trial court -denied Springer’s pretrial and posttrial motions asserting that the tortious-interference claim against him implicated the Mississippi Tort Claims Act and that the suit against him should be dismissed due to lack of pre-suit notice. The jury awarded Ausbern a judgment of $182,500 against Springer for tortious interference, including damages associated with lost bonding capacity due to outstanding accounts receivable.

¶ 10. Springer appeals,

DISCUSSION

. To the extent the chancellor determined that notice was required before pursuing claims of tortious interference with either business relations or contracts, this was error.

¶ 11. ■ We review a trial court’s grant or denial of a motion for a new trial for abuse of discretion. Barviffe v. Estate of Nelson, 153 So.3d 613, 618 (¶ 22) (Miss.2014). Questions of law are reviewed de novo. Id. at (¶ 26).

I. Whether Ausbern proved the elements of tortious interference.

¶ 12. Springer argues that Aus-bern failed to prove the element of tortious interference with a contract that implicates malice. Recovery for tortious interference is permissible where a plaintiff proves (1) the acts were intentional and willful; (2) they were calculated to cause damage to the plaintiff in his lawful business; (3) they were done with the'unlawful purpose of causing damage and loss, without right or justifiable cause on the part of the defendant, which acts constitute malice; and (4) actual damage or loss resulted. Reeves v. Midcontinent Exp. Pipeline, LLC, 119 So.3d 1097, 1102 (¶ 13) (Miss.Ct.App.2013). “In this context, ‘malicious’ is defined as the intentional doing of a harmful act without legal or sound justification or excuse, in other words, the willful violation of a known right.” Collins v. Collins, 625 So.2d 786, 790 (Miss.1993). “An action for interference with the contract ordinarily lies when a party maliciously interferes with a valid and enforceable contract, causing one party not to perform and resulting in injury to the other contracting party.” Nichols v. Tri-State Brick & Tile Co., 608 So.2d 324, 328 (Miss.1992).

¶ 13. An individual has been’ held as privileged to interfere with a contract when the defendant occupies a position of responsibility on behalf of another and interferes within the scope of that responsibility and without - bad faith. Shaw v. Burchfield, 481 So.2d 247, 254-55 (Miss.1985) (defendant insurance agents had responsibilities related to the plaintiffs terminated at-will employment contract); see also Vestal v. Oden, 500 So.2d 954, 955 (Miss.1986) (“[OJne occupying a position of responsibility on behalf of another is privileged, within the scope of that responsibility and absent bad faith, to interfere with his principal’s contractual relationship with a third person.” (citing Restatement (Second) of Torts § 770 comment b, illustration 3 (1979))).

¶ 14. This Court found in Morrison v. Mississippi Enterprise for Technology, 798 So.2d 567, 575 (¶28) (Miss.Ct.App.2001), that this “ ‘privilege’ is merely a specific example of having ‘right or justifiable cause’ to interfere with the [contractual] relationship.” “A person occupying a position of responsibility on behalf of another is ‘privileged,’ which is another word for having a right.” Id. at (¶29), To satisfy this element of tortious interference when an individual is acting within the scope of responsibility on behalf of another, the plaintiff must present evidence of bad faith. Jones v. Mullen, 100 So.3d 490, 498 (¶ 36) (Miss.Ct.App.2012) (affirming the .grant of summary judgment to the defendants where the plaintiffs did not sufficiently allege a genuine dispute as to the element of bad faith). “Bad faith” in this context “raises an issue of motive.” Morrison, 798 So.2d at 575 (¶ 26). And “the conclusion [of bad faith] must be that the actor was malicious or recklessly disregarding the rights of the person injured.” Id.

¶ 15. In short, if the actor was not within the scope of his authority, then the privilege, this specific example of a “right,” does not apply. However, if the actor is within the scope of the actor’s responsibility, then for the “without right” portion of the third prong to be met, the actor must be found to have acted in bad faith, and ■motive is relevant to a determination of bad faith.

¶ 16. This privilege (or “right”) applies to Springer on the facts of this case. Springer occupied a position of responsibility on behalf .of the County and was operating within the' scope of that responsibility in matters related to this contract. Evaluating and mitigating claims for a contract adjustment were part of his responsibilities under the Green Book. Springer acknowledged the overage and Ausbern’s entitlement to additional compensation. Springer’s attempt to evaluate and mitigate the overage after the fact — which would typically be done prior to approval of the additional work under the notice requirements of Green Book section 105.17, but which was not done here because Ausbern, did not give notice of the overage until the project was complete— does not -indicate an ill motive rising to the level of bad faith or intent to harm for the purpose of moving Springer’s actions outside of the scope of his responsibility to the County and therefore outside his right to interfere. The verdict against Springer was therefore improper.

II. Whether the trial court erred in failing to treat the tortious-inter-ference claim against Springer as implicating the notice requirements of the Mississippi Tort Claims Act.

¶ 17. Springer argued pretrial in his motion to dismiss and argues again here on appeal that the tortious-interference claim against him' as a governmental employee implicated the Mississippi Tort Claims Act and that Ausbern- was therefore required to comply with the Act’s pre-suit notice requirements. See Miss.Code Ann. § 11-46-11(1) (Rev.2012); Ivy v. E. Miss. State Hosp., 191 So.3d 120, 122 (¶ 8) (Miss.2016). We agree with Springer’s argument that the notice requirements of the Mississippi Tort Claims Act are applicable to the claim against him.

. ¶ 18. In Whiting v. University of Southern Mississippi, 62 So.3d 907, 915 (¶ 15) (Miss.2011), the Mississippi Supreme Court stated:

While [the plaintiff] attempts to characterize these claims as breach of contract, a fair reading of the facts of ⅛⅛ case and the manner in which [the plaintiff] lays out her argument establish that if there were a claim to be made, it would be for tortious breach of contract and tortious interference with contract. As such, the claims made against the Board or the university are governed by the provisions of the MTCA.

See also Miss. Dep't of Envtl. Quality v. Pac. Chlorine, 100 So.3d 432, 439 (¶8) (Miss.2012). This holding supports that claims of tortious interference with a contract brought against an individual governmental employee implicate the pre-suit notice requirements of the MTCA.

¶ 19, The United States Court of Appeals for the Fifth Circuit has agreed and has treated Whiting as standing for the rule that a plaintiff alleging tortious interference .against a public employee must satisfy the notice requirements of the Mississippi Tort Claims Act, even when the suit is proceeding against only an individual. Johnson v. City of Shelby, Miss., 743 F.3d 59 (5th Cir.2013) (tortious-interference claim against alderman subject to MTCA). Johnson states: “Because we apply .the latest and most authoritative expression of state law applicable to the facts of a case, we follow Whiting here.” Id. at 64. Subsequent federal cases agree. See Idom v. Natchez-Adams School Dist., 115 F.Supp.3d 792, 807 (S.D.Miss.2015) (“Claims for tortious interference are subject to the MTCA and its notice requirements.”). Brown v. City of Saltillo, Miss., 106 F.Supp.3d 784, 792 (N.D.Miss.2015) (“In Whiting, 62 So.3d at 916, the Mississippi Supreme Court ruled that a malicious interference claim is subject to the MTCA and thus that the notice requirement applies to such claims.”).

¶ 20. Pre-suit notice is a “prerequisite to a claimant’s right to file suit[,]” but “does not, however, touch on the merits of the claim.” Arceo v. Tolliver, 19 So.3d 67, 74 (¶38) (Miss.2009). Pre-suit notice serves the important function of allowing the governmental entity to assess whether the employee acted within the scope of employment and to establish a position on whether the alleged conduct gives rise to an immunity exception. See Miss.Code Ann. § 11-46-5(2) (Rev.2012) (employee not acting within scope of employment when acting with malice); id. (providing for governmental defense of employee not acting within scope of employment).

¶21. The supreme court’s position in Whiting is consistent with previous decisions of this Court. In Dunston v. Mississippi Department of Marine Resources, 892 So.2d 837, 842 (¶ 13) (Miss.Ct.App.2005), this Court stated that a claim of tortious interference against a government employee was appropriately initiated under the Mississippi Tort Claims Act. That suit, alleging tortious interference by a governmental employee with a wetlands-development contract, implicated Mississippi Code Annotated section 11-46-9(1)(h) (Rev.2012), which provides immunity:

Arising out of the issuance, denial, suspension or revocation of, or the failure or refusal to issue, deny, suspend or revoke any privilege, ticket, pass, permit, license, certifícate, approval, order or similar authorization where the governmental entity or its employee is authorized by law to determine whether or not such authorization should be issued, denied, suspended or revoked unless such issuance, denial, suspension or revocation, or failure or refusal thereof, is of a malicious or arbitrary and capricious nature[.]

This provision closely resembles Springer’s Green Book responsibilities concerning review, mitigation, and approval of alterations to the original construction contract, making the Mississippi Tort Claims Act the appropriate framework through which to determine whether a specified circumstance exists.

¶ 22. As it did below at the hearing on Springer’s motion to dismiss, Aus-bern relies on the earlier case of Zumwalt v. Jones County Board of Supervisors, 19 So.3d 672, 688 (¶84) (Miss.2009), for the proposition that claims of tortious interference should be brought independently against governmental employees because the tort contains the essential element of malice. “[T]he Mississippi Supreme Court in Whiting did not reference or explicitly overrule Zumwalt. It is therefore unclear whether the Mississippi Supreme Court intended for Whiting to overrule Zumwalt or whether the two cases are somehow distinguishable.” Dearman v. Stone Cty. Sch. Dist., No. 1:13-cv-267-HSO-RHW, 2014 WL 3747600, at *3 (S.D.Miss. July 29, 2014). Absent resolution of any conflict between the two cases by the Mississippi Supreme Court, we agree with the approach of treating Whiting as the applicable rule. The pre-suit notice requirements of Mississippi Code Annotated section 11-46-11(1) therefore apply to the claim against Springer. Tortious claims against Mississippi governmental entities and their employees are cloaked in sovereign immunity, unless a waiver of sovereign immunity applies. Here, the prerequisite of statutory pre-suit notice was not attempted, so that waiver of sovereign immunity was not accomplished.

CONCLUSION

¶ 23. Springer acted within the scope of his responsibility to the County and with-oüt bad faith. 'Because his actions were not “without right or justifiable cause,” the element of tortious interference that constitutes malice was not satisfied. The trial court also erred in finding that the claim against him did not implicate the pre-suit notice requirements of the ■ MTCA. We therefore reverse the judgment against him. -

24: THE JUDGMENT OF THE CHICKASAW COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

IRVING, P.J., BARNES, ISHEE, CARLTON AND JAMES, JJ., CONCUR. LEE, C.J., AND FAIR, J., CONCUR IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. GRIFFIS, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. WILSON, J., CONCURS IN PART AND IN THE RESULT WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J., GRIFFIS, P.J., AND FAIR, J. '

WILSON, J.,

concurring in part and in result:

¶25. 'I agree that Ausbern’s claim for tortious interference with a contract' fails as a matter of law because there is no evidence of “malice,” which is án essential element of the tort. I also agree that, for that reason, we should reverse and render judgment in favor of Springer.

¶ 26. However, I disagree with the majority’s conclusion that Ausbern’s claim for tortious interference with a contract was subject to the pre-suit notice requirements of the Mississippi Tort Claims Act (“MTCA”). In fact, by proceeding against Springer individually without serving notice under the MTCA, Ausbern was simply following the clear holding of the Mississippi Supreme Court’s opinion in Zumwalt v. Jones County Board of Supervisors, 19 So.3d 672 (Miss.2009):

The MTCA does not apply to all claims against governmental entities. The Act provides specific exclusions to its protections and requirements, and each claim must be examined for MTCA application.
With respect to the claim of tortious interference with business relations and/or contracts, the MTCA does not apply. The MTCA provides immunity for the alleged torts of governmental entities. However, the MTCA waives that immunity, and the governmental entity is liable, for injuries caused by the entity or its employees while acting in the course and scope of their employment. •
Certain intentional torts are excluded from the MTCA’s waiver of immunity. Subsection (2) of Mississippi. Code Section 11-46-5 provides that torts constituting fraud, malice, libel, slander, defamation, or any criminal offense other than traffic violations are not within the course and scope of employment. Thus, these- intentional torts are outside the scope of the MTCA’s waiver of immunity, and the MTCA does not apply,
Tortious interference with business relations and contracts requires proof of malice as an essential element. Therefore, the MTCA does not apply to these torts, and any legal action against a ■governmental employee for these intentional■ torts must necessarily proceed against him or her as an individual.

Id. at 688 (¶¶ 81-85) (emphasis added; citations omitted).

¶ 27. Thus, in this case, Ausbern properly sued Springer “as an individual” on a non-MTCA claim for tortious interference with a contract — indeed, per Zumwalt, Ausbern was required to pursue the claim on that basis. And, like the chancellor in Zumwalt, the majority errs by holding that the claim is subject to the MTCA and that notice was required.

¶ 28. Zumwalt’s holding follows directly and logically from the plain language of the MTCA. “For .,. purposes of [the MTCA] an employee shall not be considered as acting within the scope and course of his employment and a governmental entity shall not be liable or considered to have waived immunity for any conduct of its employee if the employee’s conduct constituted ... rrialice....” Miss.Code Ann. § 11-46-5(2) (Rev.2012), Malice is an essential element of a claim for tortious interference with a contract. Therefore, the county was immune from liability for any alleged tortious interference by Springer, and Ausbern properly proceeded against Springer individually rather than serving pre-suit notice on the county. Zumwalt, 19 So.3d at 688 (¶¶ 81-85).

¶ 29., I agree with the majority that the Supreme Court’s subsequent decision in Whiting v. University of Southern Mississippi 62 So.3d 907 (Miss.2011), appears to conflict with Zumwalt insofar as it suggests that a claim for tortious interference with a contract is subject to the MTCA. See id. at 915 (¶ 15). However, the plaintiff in Whiting did not actually assert a claim for tortious interference; rather, she asserted a claim for breach of contract, which failed as a matter of law, and the Court stated “that if there were a,claim to be made, it would be for tortious breach of contract and tortious interference with contract.” Id. That is the opinion’s only mention of a claim for tortious interference with a contract. Moreover, Whiting did not discuss or even mention Zumwalt or the fact that “malice” is an essential element of the tort. Finally, post-Whiting, this Court has continued to cite Zumwalt for the proposition that a “[cjlaim of tor-tious interference with business contracts requires proof of malice and is, therefore, not subject to the MTCA.” Weible v. Univ. of S. Miss., 89 So.3d 51, 64 (¶40) (Miss.Ct.App.2011); see also Kelley LLC v. Corinth Pub. Utils. Comm’n, 200 So.3d 1107, 1114, 2016 WL 225356, at *5 n. 7 (Miss.Ct.App.2016) (stating that the MTCA does not waive sovereign immunity for claims alleging tortious interference with business relations because the tort requires proof of malice). For these reasons, I would not read Whiting’s passing reference to this tort as overruling, sub silentio, %umwalt’s clear and .considered holding that the tort is not subject to the MTCA’s notice requirements.

¶ 30. Part II of the majority opinion holds that the MTCA requires a plaintiff to serve a governmental entity with pre-suit notice of a claim for tortious interference with a contract, even though the MTCA and Zumwalt make clear that the governmental entity retains sovereign immunity on any such claim. I , respectfully disagree with that holding. However, I concur in the majority’s conclusion in Part I that Ausbern’s claim fails as a matter of law because he failed to prove '“malice,” an essential element of the tort. I also concur in the result because Ausbern’s failure of proof on an essential element is disposi-tive regardless of whether the MTCA applies,

LEE, C.J., GRIFFIS, P.J., AND FAIR, J., JOIN THIS OPINION.

      . A representative of Springer was present at the job site during construction.

      . Springer did not reply to those emails.

      . The wife of the owner of'Ausbern was the attorney for the Board of Supervisors. She recused herself from matters dealing with this contract.

      . The court granted Ausbem’s motion to transfer venue. The trial took place before a Lafayette County jury.

      . The jury instruction on the elements of tor-tious interference stated in part "that Edward Springer intentionally and harmfully acted with malice, with no justification or excuse, to interfere with the Board of Supervisors’ performance of the contract.”

      . To support that Springer’s actions were related to his responsibility to the County and not in bad faith, Springer points out that the county engineer receives a percentage of the overall contract payment. Springer was therefore acting against his own pecuniary interest in attempting to negotiate down the unit price of the overage.

      . Johnson was reversed on an unrelated section 1983 ground in Johnson v. City of Shelby, Mississippi, — U.S. -, 135 S.Ct. 346, 190 L.Ed.2d 309 (2014) (applying 42 U.S.C. § 1983 (2012)).

      . Springer asserts that the provisions of Mis-, sissippi Code Annotated section 11 — 46— 9(l)(b), (d), (g), (h), (p), and (y) (Rev.2012) apply to him,

      . In Zumwalt, a governmental entity sued an individual seeking a permanent injunction related to that individual’s claim of ownership of a license to run a nursing home. The individual brought a counterclaim against only governmental entities, not individuals, alleging various torts, including tortious interference.


author: BRYAN, Justice. BOLIN, Justice

text:
    Timothy BEVEL v. MARINE GROUP, LLC, et al.
    1150941
    Supreme Court of Alabama.
    March 3, 2017
    Thomas C. Donald, Birmingham, for appellant.
    Hugh M. Flanagan of Long & Flanagan, LLC, Guntersville, for appellees.
   BRYAN, Justice.

Timothy Bevel appeals from an order granting a motion to compel arbitration. We reverse and remand.

In March 2015, Bevel financed the purchase of a used Bennington brand boat and a Yamaha brand boat motor from Gunters-ville Boat Mart, Inc., and he rented a boat slip on Lake Guntersville to dock the boat. The sale and boat-slip rental are documented by a one-page bill of sale, which contains an arbitration provision. According to Bevel, the boat was seized several months after the transaction for allegedly defaulting on payments on. the boat and boat-slip rental. Bevel disputes that he owed those payments.

Bevel sued Guntersville Boat Mart and related entities Marine Group, LLC, d/b/a Boat Mart, and.JD & L Enterprises, Inc. In his complaint, Bevel asserted several claims, including breach of contract. The defendants filed a motion to. compel arbitration, citing the arbitration provision in the bill of sale. Bevel argued that his' claims were not subject to the arbitration provision in the bill of sale because, he said, he had not actually agreed to that provision. Bevel noted that he had not initialed a box directly below the arbitration provision, although he had signed or initialed- the- document in other places. Following a hearing, the trial court granted the motion to compel arbitration. Bevel appealed to this Court under Rule 4(d), Ala. R. App. P., which authorizes an appeal from an order either granting or denying a motion to compel arbitration.

‘“This Court’s review of an order granting or denying a motion to compel arbitration is de novo. ... ’
“United Wisconsin Life Ins. Co. v. Tankersley, 880 So.2d 385, 389 (Ala. 2003). Furthermore:
“ ‘ “A motion to compel arbitration is analogous to a motion for summary judgment. TranSouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala. 1999). The party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that that contract evidences a transaction affecting interstate commerce. Id. ‘After a motion to compel arbitration has been made and supported, the burden is on the non-movant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.’ ”
“‘Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala. 2000) (quoting Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (Ala. 1995) (emphasis omitted)).’
“Vann v. First Cmty. Credit Corp., 834 So.2d 751, 753 (Ala. 2002).”

Cartwright v. Maitland, 30 So.3d 405, 408-09 (Ala. 2009).

Bevel argues that the trial court erred in granting the motion to compel arbitration because, he says, he did not agree to the arbitration provision in the bill of sale. Thus, he argues, the arbitration provision never became part of the contract between the parties. Bevel’s argument fpcuses- on what he did and did not initial or sign on the one-page bill of sale.

Bevel signed or initialed the bill of sale in two places — he initialed a box indicating that the boat was being sold “as is,” and he signed on a line at the bottom of the document regarding his receipt of the boat and the acknowledgment of the boat’s condition. He did not, however, initial the box under the arbitration provision, and he did not initial the box under the trade-in section (the sale did not involve a trade-in). The arbitration provision is on the bottom half qf the bill of sale. Directly below the arbitration provision, on the left side of the document, is an indented box for the purchaser’s initials. Bevel, however, did not initial that box. Also.below the arbitration provision, on the right side of the document but slightly lower than the left-side box, is an indented box for the purchaser’s initials labeled “BOAT SOLD AS IS”; Bevel did initial that box. Directly below the two boxes is the following text concerning Bevel’s receipt of the boat and the boat’s condition:

“I have received all of the above listed in good condition and accept final delivery. “The purchaser herein acknowledges that this vehicle may have had mechanical and/or body repair. Said vehicle may have suffered damage during production, transit, while in the possession of a prior owner, or in the possession of the seller. The seller makes no representations as to former damage, if any, nor warranties as to repair of same.”

Below that provision is a signature line, which Bevel signed.

Bevel argues that, because he did not initial the box directly below the arbitration provision, he did not agree to that provision. Thus, Bevel argues, the arbitration provision is not part of the contract, and, therefore, - he says, he is not bound by it. “ ‘[Arbitration is a matter of contract, and a party cannot be required to submit to arbitration any disputé which he has not agreed so to submit.’” AT & T Techs., Inc. v. Communications Workers of America, 475 U.S. 643, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) (quoting United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960)). The issue whether the parties agreed to arbitrate their disputes is determined by “ordinary state-law principles that govern the formation of contracts.” Chicago v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995).

Bevel relies primarily on Ex parte Pointer, 714 So.2d 971 (Ala. 1997). Because this Court in Ex parte Pointer relied primarily on Crown Pontiac, Inc. v. McCarrell, 695 So.2d 615 (Ala. 1997), we will discuss Crown Pontiac first. In Crown Pontiac, McCarrell purchased an automobile from a dealership. McCarrell signed the contract in, four places — under the trade-in section, in the disclaimer-of-warranties box, under the merger clause, and at the bottom of the page. However, McCarrell did not sign the box accompanying the arbitration provision in the contract.

The Court in Crown Pontiac concluded ■that the unsigned arbitration provision had not become part of the contract between the parties. Thus, the Court concluded that McCarrell could not be compelled to arbitrate the disputes arising from the purchase. The Court reasoned:

“The purpose of a signature is to show ‘mutuality and assent,’ which are required for a contract to be binding. Lawler Mobile Homes, Inc. v. Tarver, 492 So.2d 297, 304 (Ala. 1986). Conversely, in this case the absence of a signature under the arbitration clause shows a lack of mutuality and assent, where the contract contains a signature line specifically for the arbitration , clause, but where McCarrell did not sign on that line, although he signed on other lines that similarly indicated agreement to specific terms. Crown Pontiac argues that it told McCarrell of the arbitration agreement and that McCarrell did not object to it. However, his lack of objection is not the same as an acceptance of the term, and it does not override the fact that McCarrell did not sign the arbitration clause, but signed every other part of the contract.”

Crown Pontiac, 695 So.2d at 618-19.

Shortly after releasing Crown Pontiac, this Court decided Ex parte Pointer, a case very similar to Crown Pontiac. In Ex parte Pointer, Pointer-purchased an automobile from a dealership. The contract included numerous sections enclosed in boxes, and each 'section contained a space for Pointer’s signature or initials. Pointer signed or initialed each section except the section containing an arbitration provision. Pointer later sued the dealership, asserting, among other claims, breach of contract. When the dealership sought to compel arbitration, Pointer resisted, arguing that the unsigned arbitration clause was not a binding term of the contract. This Court agreed, relying on Crown Pontiac. Because “[tjhere was no mutual agreement to submit to arbitration” Pointer’s claims, he could not be compelled to arbitrate those claims. 714 So.2d at 972. The arbitration provision simply never became part of the contract.

In arguing that Bevel is bound by the arbitration provision, the defendants rely on America’s Home Place, Inc. v. Rampey, 166 So.3d 655 (Ala. 2014). In Rampey, Rampey and a homebuilder entered into a contract calling for the homebuilder to build Rampey a house. After the house was built, Rampey sued the homebuilder, alleging, among several other claims, breach of contract. The contract contained several provisions with a line beside, the provision for Rampey’s initials. Rampey initialed all the applicable provisions — including an arbitration provision. Rampey also initialed a provision indicating - that each of the.other applicable provisions had been explained and that he “ ‘initialed] acceptance of same.’” 166 So.3d at 657 (emphasis omitted). Rampey also signed the bottom of the contract under a-provision stating that the contact would be binding on the parties thereto.

Rampey pinned ■ his hopes of avoiding arbitration on his argument that' he had not signed a signature line under the arbitration-provision; this was a different line from the one he initialed beside the arbitration provision. That signature line under the arbitration provision bore a signature purporting to be Rampey’s, but he claimed the signature was forged. Rampey argued that his failure to sign the signature line below the arbitration' provision indicated that he had not agreed to that provision. This Court disagreed, stating:

“The fact that Rampey’s signature immediately beneath the arbitration provision was (allegedly) forged is of no consequence because his signature was not required immediately beneath the arbitration provision and, furthermore, Rampey assented to be bound by that provision when he admittedly wrote his initials on the line next to the arbitration provision.”

166 So.3d at 659.

In concluding that Rampey’s signature beneath the arbitration provision was not required, the Court quoted from Stiles v. Home Cable Concepts, Inc., 994 F.Supp. 1410 (M.D. Ala. 1998):

“ ‘While written agreement is required for arbitration, however, there is no requirement that every single provision of a contract, -including the arbitration clause, must be signed in order to form part of the agreement. Indeed, it is axiomatic that “parties may become bound by the terms of a contract, even though they do not sign it, where their assent is •otherwise indicated.” 17A Am. Jur. 2d § 185.... The [Federal Arbitration Act] has no separate requirement of a signed arbitration clause. As noted by the Northern District of Alabama, “[i]t is well established that a written agreement to arbitrate need not be 'signed by the parties as a prerequisite to the enforcement of the agreement.” Middlebrooks v. Merrill Lynch, Pierce, Fenner & Smith, Inc., [No. CV 89-HM-5015-NW, April 5, 1989] (N.D. Ala. 1989) [not reported in F. Supp.].’ ”

Rampey, 166 So.3d at 659 (quoting Stiles, 994 F.Supp. at 1416 (emphasis added in Rampey)).

This Court in Rampey then stated:'

“Furthermore, it is well settled that
“ ‘[a] plaintiff cannot seek the benefits of a contract but at the same time avoid the arbitration provision in the contract. Wolff Motor Co. [v. White], 869 So.2d [1129,] 1136 [ (Ala. 2003) ]. Instead,' “she must accept- or reject the entire contract.” Credit Sales, Inc. v. Crimm, 815 So.2d 540, 546 (Ala. 2001). Britta’s claims, including her breach-of-contract claim, rely on the contract to support her claims for damages. Therefore, she is bound by the arbitration provision in the contract. Infiniti of Mobile, Inc. v. Office, 727 So.2d 42, 48 (Ala. 1999); Delta Constr. Corp. v. Gooden, 714 So.2d 975, 981 (Ala. 1998).’
“Bowen v. Security Pest Control, Inc., 879 So.2d 1139, 1143 (Ala. 2003) (emphasis added). See also Southern Energy Homes, Inc. v. Ard, 772 So.2d 1131, 1134-35 (Ala. 2000) (‘A plaintiff cannot simultaneously claim the benefits of a contract and repudiate its burdens and conditions.’ (citing Value Auto Credit, Inc. v. Talley, 727 So.2d 61 (Ala. 1999); Infiniti of Mobile, Inc. v. Office, 727 So.2d 42 (Ala. 1999); Georgia Power Co. v. Partin, 727 So.2d 2 (Ala. 1998); Delta Constr. Corp. v. Gooden, 714 So.2d 975 (Ala. 1998); and Ex parte Dyess, 709 So.2d 447 (Ala. 1997))).

Rampey, 166 So.3d at 660-61 (footnote omitted).

At first glance, there may appear to be tension between Crown Pontiac and Ex parte Pointer, on the one hand, which enforced arbitration provisions, and Rampey, on the other hand, which did not enforce an arbitration provision. However, the cases must be read in the context of their facts, and Rampey is factually distinguishable from the earlier two cases. In both Crown Pontiac and Ex parte Pointer, although the consumer signed the contract in various places, the consumer did not sign the designated place specifically corresponding to the arbitration provision. Thus, the consumers in those cases did not assent to the • arbitration provisions in those contracts, and those provisions did not become part of the contracts. In Ram-pey, Rampey initialed a box by the arbitration provision and thus “assented to be bound by that provision.” 166 So.3d at 659. Rampey showed his consent to the arbitration provision by initialing the box, despite failing to additionally indicate assent by signing the signature line beneath the provision.

In Rampey, as noted, the Court also observed that parties “ ‘may become bound by the terms of a contract, even though they do not sign it, where their assent is otherwise indicated.’” 166 So.3d at 659 (quoting 17A Am. Jur. 2d § 185 (emphasis omitted)). For instance, even if a contract is not signed at all, mutuality and assent may be shown by “accepting] and act[ing] upon” the contract. Lawler Mobile Homes, Inc. v. Tarver, 492 So.2d 297, 304 (Ala. 1986). However, in Rampey, Rampey showed his assent to the various contract terms by both signing or initialing those terms and by accepting and acting on the contract. That is unlike the situation in Crown Pontiac and Ex parte Pointer, where the consumers did not sign a signature line specifically corresponding to the arbitration provision, but did sign lines corresponding to other provisions. In those cases, this Court concluded that, when some other contract provision is signed, the failure to sign the signature line corresponding to an arbitration provision is a compelling indication of failure to assent to that provision. That is the situation here.

The Court in Rampey also observed that a plaintiff cannot seek to enforce the contract but at the same time seek to avoid an arbitration provision in the contract; rather, a plaintiff must accept or reject the entire contract. However, for that principle to be applicable, the arbitration provision must actually, be a part of the contract sought to be enforced. For example, in Ex parte Pointer, the fact that Pointer alleged breach of contract did not thwart his challenge to the enforcement of the arbitration provision; that provision was not part of the contract because of his lack of assent. In Rampey, the arbitration provision was a part of the contract; Rampey assented to be bound by that provision by initialing the line next to the arbitration provision. 166 So.3d at 659. However, in light of Crown Pontiac and Ex parte Pointer, the arbitration provision in this case was not part of the contract because Bevel did not initial the box corresponding to the arbitration provision despite signing and initialing other parts of the contract.' In short,' the above language from Rampey should not be read to conflict with the principle that, “[w]hen one party proposes a standard contract to another party, the parties may, of course, agree to be bound by certain of the clauses in the proposed contract and not to be bound by others.” Ex parte McNaughton, 728 So.2d 592, 595 (Ala. 1998) (citing Crown Pontiac as an exam-, pie). As noted, only those disputes a party has agreed to arbitrate may be submitted to arbitration. AT & T Techs., 475 U.S. at 648.

This case is controlled by Crown Pontiac and Ex parte Pointer. Bevel did not initial the box corresponding to the arbitration provision despite initialing and signing the bill of sale in other places; under Crown Pontiac and Ex parte Pointer, that is a compelling indication that Bevel did not assent to the arbitration provision. The arbitration provision did not become part of the contract between the parties, and, thus, it cannot be enforced against Bevel. Accordingly, we reverse the trial court’s order compelling arbitration, and we remand the case for proceedings consistent with this opinion.

REVERSED AND REMANDED.

Stuart, Parker, Murdock, Shaw, Main, and Wise, JJ., concur.

Bolin, J., concurs in the result.

BOLIN, Justice

(concurring in the result).

I.concur in the result reached by the main opinion reversing the trial court’s judgment granting the motion to compel arbitration filed by Marine Group, LLO, and. remanding the case. However, I do not agree with the breadth of the rationale concerning the controlling precedent stat-. ed in the main opinion. The particular facts of this case limit its precedential value, because the patent ambiguity on the face of the portion of bill of sale attached as an appendix to this writing makes a decision as to exactly what the buyer, Timothy Bevel, was agreeing to less clear than the main opinion suggests. “ A patent ambiguity results when a document, on its face, contains unclear or unintelligible language or language that suggests multiple meanings.’ ” Kelmor, LLC v. Alabama Dynamics, Inc., 20 So.3d 783, 790-91 (Ala. 2009) (quoting Smith v. Ledbetter, 961 So.2d 141, 145 (Ala. Civ. App. 2006)). The wording of the actual arbitration provision is not atypical of such provisions. However, the positioning of the signature areas in relation to the- arbitration provision on the bill of sale.is clearly susceptible to different interpretations. Beneath the arbitration provision are two “boxes” for a purchaser’s initials — unlike any other provision in the bill of sale requiring initials. The box on the left is simply beneath the arbitration provision set out above it. The box on the right, however, which Bevel initialed, is preceded by the words “BOAT SOLD AS IS” — phraseology that generally pertains to warranties or, .as perhaps the case here, to the lack of a warranty — that is "in no way related to the subject of arbitration. The box on the right is slightly lower on the page than the box on the left, and the .phrase preceding the box — “BOAT SOLD AS IS” — is either a different font from the arbitration provision or may have been superimposed upon a form agreement. How to interpret the document is the valid subject of argument as asserted by Marine Group, the seller, but what is not subject to argument is that the peculiarly configured document is ambiguous, and it was drafted by Marine Group. Marine. Group contends that a purchaser initialing the box on the right would be assenting to the immediately preceding arbitration provision when, as here, the boat is “sold as js,” whereas a purchaser- initialing the box on the left would be assenting to the arbitration provision when the boat is not “sold as is.” Stated differently,, the two boxes beneath the arbitration provision could reasonably be construed, to be arbitration alternatives, to be used depending on the new or used condition of the boat being purchased. Marine Group’s interpretation could objectively explain the configuration of the portion of the bill of sale reproduced in the appendix just as easily as the interpretation ensconced in the. main opinion. It is speculative to say, but such an interpretation as contended by Marine Group could have been the unstated rationale by, which the trial court reached the decision to compel arbitration in this matter.

However, although hot argued by the parties, “it is a familiar rule of contract construction that ‘any ambiguity must be construed against the drafter of the contract.’” Ex parte Palm Harbor Homes, Inc., 798 So.2d 656, 661 (Ala. 2001)(quoting Homes of Legend, Inc. v. McCollough, 776 So.2d 741, 746 (Ala. 2000)). Despite this familiar.rule of contract construction, the main opinion, in concluding that Bevel did not assent to the arbitration provision because he did not initial the box on the left “corresponding to the arbitration provision,” 231 So. 3d at 1078-79, finds controlling this Court’s decisions in Ex parte Pointer, 714 So.2d 971 (Ala. 1997), and Crown Pontiac, Inc. v. McCarrell, 695 So.2d 615 (Ala. 1997), I find these cases distinguishable in that they do not present circumstances where, as here, the document containing the arbitration provision is susceptible to multiple meanings. Specifically, in Ex parte Pointer, the printed contract form between the parties included numerous sections, all of which were set off in boxes; each box contained a boldface heading, as well as a location for the purchaser’s signature and/or initials. Pointer signed and/or initialed all the sections except the one entitled “Arbitration Clause.” The trial court compelled arbitration. Pointer argued on appeal that the unsigned arbitration clause was not a binding term of the contract. The defendants, an automobile dealership and a finance company, on the other hand, argued that the signature line in the section entitled “Arbitration Clause” did not apply to the arbitration terns. This Court rejected the defendants’ argument, concluding:

“The different terms of the contract [‘DESCRIPTION OF TRADE A,’ ‘ARBITRATION CLAUSE,’ ‘TOTAL CASH DELIVERY PRICE,’ ‘OPTIONAL EQUIPMENT TO BE INSTALLED OR DELETED,’ ‘VEHICLE CONDITION STATEMENT,’ and ‘CUSTOMER DISCLOSURE STATEMENT’] are divided into boxes, with each box containing a boldface heading. If the signature line that is included in the box entitled ‘Arbitration Clause’ was for some other term or clause of the contract, it would have been set off with a . boldface heading, as was every other term or clause.”

714 So.2d at 972. Implicit in this Court’s holding is the nonexistence of any ambiguity. The circumstances presented in Crown Pontiac are even more distinguishable insofar as the issue there involved a merger clause. Specifically, in Crown Pontiac, the purchaser of an automobile signed a preliminary retail-buyer’s order form, which included an arbitration provision. The purchaser later executed a final version of the contract, signing in four places; however, he did not sign in the box accompanying the arbitration provision. The trial court denied Crown Pontiac’s motion to compel arbitration. Crown Pontiac argued on appeal that the arbitration clause in the final executed contract was enforceable merely because it had been included in the preliminary retail-buyer’s order form. This Court agreed with the purchaser that the preliminary retail-buyer’s order form he signed containing the arbitration provision did not become part of the final executed contract because a merger clause in the final executed contract caused the terms in the preliminary retail-buyer’s order form to be superseded by the terms of final executed contract. This Court noted that “Crown Pontiac should have known that any terms contained in the [preliminary] retail buyer’s order were nullified by the merger clause in the [final executed contract].” 695 So.2d at 619. This Court further noted that Crown Pontiac “was the drafter of this retail buyer’s order form, and it cannot escape from the terms that it drafted simply because it now finds those terms inconvenient.” Id. at 618. In other words,, there were no ambiguities in the documents signed by the purchaser in Crown Pontiac, whereas there are here. Accordingly, because the ambiguous bill of sale in this case was drafted by Marine Group, I believe the Court correctly decided the case, even though I concur only in the result, because the rationale of the main opinion,, in my judgment, should be limited to the particular circumstances of this case.

APPENDIX

      . The defendants contend that'both the box under the arbitration provision on the left side and the box under the arbitration provision on the right side labeled "BOAT SOLD AS IS” relate to the arbitration provision. That is, the defendants contend that one initialing the box on the right shows assent to the arbitration provision when the boat is "sold as is” and one initialing the box on the left shows assent to the arbitration provision when the boat is not "sold as is.” We do not read the bill of sale this way. Rather, we read the'box on the left as applying to the arbitration provision and the box on the right as indicating that the boat is "sold as is.” The sbld-as-is box, which is positioned slightly lower than the box on the left, actually seems to correspond in substance with the final three sentences above Bevel’s signature, suggesting that the box may be misaligned. Further, the bill of sale is a single page that has text to the end of the page; it seems more likely that the sold-as-is box was placed in the open space under the arbitration provision to keep the bill of sale to a single page than it is that each box was intended to cover more than one-issue, ¡⅛, arbitration and the boat being sold as is.