IN THE SUPREME COURT OF MISSISSIPPI NO. 2018-CA-00723-SCT LAGB, LLC AND MAMA KIO’S GRILL, INC.

v. TOTAL MERCHANT SERV ICES, INC., HSBC BANK USA, GLOBAL PAY MENTS, INC. AND GLOBAL PAY

M ENTS DIRECT, INC.

DATE OF JUDGMENT: 04/13/2018 TRIAL JUDGE: HON. W INSTON L. KIDD TRIAL COURT ATTORNEYS: WA LTER H. BOONE CHARLES H. RUSSELL, III LAW RENCE M. COCO, III T. STEWART LEE, JR. COLLEEN SUZANNE W E LCH JOHN T. ROUSE JAMES E. GRAVES, III H. KEITH KEETON COURT FROM W HICH APPEALED: HINDS COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANTS: JAMES L. KELLY H. KEITH KEETON ATTORNEYS FOR APPELLEES: CHARLES H. RUSSELL, III JAMES E. GRAVES, III JOHN T. ROUSE WA LTER H. BOONE NATURE OF THE CASE: CIVIL - CONTRACT DISPOSITION: AFFIRMED IN PART; REVERSED AND REMANDED IN PART - 09/26/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE RANDOLPH, C.J., ISHEE AND GRIFFIS, JJ. RANDOLPH, CHIEF JUSTICE, FOR THE COURT:¶1. LAGB, LLC, a comm ercial landlord, sued its tenant Mam a Kio’s Grill and num erous

com panies that provided credit-card processing s ervices to Mam a Kio ’ s , a lleging that the negligence of

the credit-card processing com panies caused Mam a Kio’s to b reach its lease with L AGB. Mam a Kio’s f i led a cross-claim against the credit-card processing com panies, alleging m isrepresentations and tortious in t e rf erence with i ts business. The credit-card processing companies f

iled m otions com

pelling LAGB and Mam a Kio’s to arbitrate. The trial court granted the m o tions. While the trial court did not err by com pelling Mam a Kio’s to arbitrate its cross-claim s, it did err by com pelling LAGB to arbitrate its claim s. FACTS AND PROCEDURAL HISTORY ¶2. In January 2013, LAGB was f orm ed “f or the sole p urpose of acquiring and owning

t h e 10,000 s quare f

oot building

. . . renovating and im proving the said building f o r t h e
purpose o f housing a Mexican restaurant, and then leasing the im p roved building to Mam a Kio’s G rill, Inc.” Once the b uilding was a c qu i r e d , LAGB and Mam a Kio’s e ntered into a

comm ercial lease. ¶3. Federico Garcia, president of Mam a Kio’s, entered int o a n a g r e e me n t with Total Merchant Services (TMS) f or credit-card f

inancial services f

or the restaurant. Two m onths af ter opening Mam a Kio’s, Garcia noticed t h at the bank deposits through TMS were considerably less than e xpected. TMS later discovered the cause was an im proper code in its sof tware that h a d f

ailed to collect the tips authorized by the c u s t o me r s . The m issing tips totaled approxim ately $14,000. TMS attem pted to rem e dy the e rror by running the credit cards again f

or the uncharged tip am ounts. However, the custom ers were charged not only

2f

or the uncollected tips but a lso f or the e n t i re charged am ounts. More than three thousand

custom ers’ transactions w ere double and/or tri p l e billed, resulting in m ore than $400,000 taken f rom Mam a Kio’s custom e rs’ a c counts. Mam a K io’s worked w ith the credit-card

com panies f or m ore than a m onth to repair and m itigate the d am ages. Mam a K io’s was f orced to close its restaurant f o r lack of custom ers. ¶4. LAGB f

ile d s u i t a g a i n s t M a ma Kio’s f or breach of its lease contract and sought dam ages f

or rent, insurance, t axes, and capital im provem ents. LAGB a lso f i led suit against the credit-card processi n g c o m panies, pleading in the alternative three theories of wrongdoing: n egligence, tortious interf erence with a contract, and tortious interf erence with a prospective business advantage. In its answer to the com plaint, Mam a Kio’s f

iled crossclaim s against the credit-card processing com panies, alleging causes of a ction f or breach of
f iduciary relationship, intentional and/or gross negligent m isreprese n t a t i o n, and tortious interf erence with a prospective business advantage. ¶5. The credit-card processing com panies f iled m otions to com

pel arbitration o f

LAGB’s claim s a gainst them and Mam a Kio’s cross-claim s. T he com panies a lso f

iled m otions to stay , alleging that all c laim s arose f rom contrac tual breaches o f the agreem ent b etween the

com panies and Mam a Kio’s and that the agreem ent contained an arbitration clause. The

com panies alternatively m oved to dism iss the com plaint, because LAGB lacked standing to bring an action against the com panies and the com

panies owed no legal duty to LAGB. ¶6. LAGB argued that it n ever c ontracted with the com panies, that i t was not a third-party benef iciary of t h e c o ntract, and that it could not be bound by an arbitration clause in a

3contract between two other parties. Mam a Ki o ’ s a r g u e d that its claim s did not arise out of

the M erchant Agreem ent signed by a representative o f Mam a K io’s and that Mam a Kio’s was
not aware of and had never s igned any other a greem ent that contained an arbitration clause. ¶7. The trial court granted the com panies’ m oti o n s t o c o mpel arbitration. LAGB and
Mam a Kio’s separately m o ved to alter or am end the j udgm ent and f i led a m otion f

o r the trial

court to enter s pecif

ic f indings of f

act and conclusions of law. Af ter a hearing was c onducted

on the m o tions, the trial court denied their m otions. Subsequently , Mam a Kio’s and LAGB appealed.
ISSUES ¶8. For brevity

and clarity , the issues have been reordered and restated as f ollows:
I. Is there a valid arbitration agreem ent?
II. Does the dispute f all within the scope of

the agreem ent?
III. Whether any legal constraints external t o the agreem ent would prevent arbitration.
IV. Is LAGB boun d b y t he arbitration clause contained i n the contract entered into by Mam a Kio’s and the credit-card processing com panies?
STANDARD OF REVIEW ¶9. The standard of

review f or arbitration disputes is well settled. This Court r eviews the g r a n t of a m otion t o com pel arbitration de novo. Tupelo Auto Sales, Ltd. v. Scott , 844 So. 2d 1167, 1169 (Miss. 2003) (citing East Ford, Inc. v. Taylor , 826 So. 2d 709, 713 (Miss. 2002)). U nder Mississippi’s two-pro n g test to determ ine arbitrability , this Court asks: (1) whether the p arties h ave agreed to arbitrate the dispute, and (2) whether legal constraints external to the agreem e nt prevent arbitration. Sm i th ex rel. Sm i

th v. Captain D’s, LLC , 963 So. 2d 1116, 1119-20 (Miss. 2007) (quoting

4Rogers–Dabbs C hevrolet–Hum m er v. Blakeney , 950 So. 2d 170, 173 (Miss. 2007)).
Doe v. Hallm ark P

artners, LP , 227 So. 3d 1052, 1055 ( Miss. 2017). Under the f irst prong, this Court asks: “(1) Is there a valid arbitration agreem ent? And, if so, (2) does the dispute
f a l l w ithin the s cope of the agreem ent? ” Id. (quoting Sm i th , 9 63 S o. 2d at 1 1 2 0 )

. “ T o determ ine whether there is a valid arbitration agree me n t , w e apply the law of contracts.”
Adam s Cm ty. Care Ctr., LLC v. R eed , 37 So. 3d 1155, 1158 (Miss. 2010) ( citing Grenada Living Ctr., LLC v. Colem an , 961 So. 2d 33, 36-37 (Miss. 2007). The elem e n ts of a contract

a r e “(1) two or m ore contracting parties, (2) consideration, (3) an agreem ent t h a t i s suf f i ciently def

inite, (4) p arties w ith legal capacity to m ake a contract, (5) m utual assent, and (6) n o legal prohibition precluding c o n t r a ct f orm ation.” Id. ( internal q uotation m arks

om itted) (quoting Colem an , 961 So. 2d at 37). Applicable contract d ef enses provided under the second prong include f raud, duress, and unconscionability

. E. Ford, Inc. v. Taylor , 826
So. 2d 7 0 9, 713 (Miss. 2002) (citing Doctor’s A ssocs., I nc. v. Casarotto , 5 17 U .S. 681, 686, 116 S. Ct. 1652, 134 L. Ed. 2d 902 (1996)).
ANALYSIS
I. Is there a valid arbitration agreem ent? ¶10. Mam a Kio’s and TMS entered into a “Merchant Credit Card Processing Application and Agreem ent” ( Merchant Application). T he f ollowing l anguage was contained in the Merchant Application in the f irst of three paragraphs directly above the signature line: By signing b e l o w y o u are agreeing to the provisions stated within this m erchant application, and h a v e acknowledged receipt and have read the Merchant Credit C ard Processing Agreem ent (the “ Merchant Agreem ent”).

5These provisions m ust be read bef

ore signing. By signing below y ou agree to the term s and conditions contained i n the m erchant ap p l i c a tion and the Merchant Agreem ent. The last sentence of that paragraph r eads, “A c o m plete c opy of y our Merchant Agreem ent can be obtained at the f

ollowing URL: http://www.m erchantsupport.inf o / disclosure/TMS.htm l.” The f ont size of the URL was slightly sm aller than the preceding text. ¶11. The second paragraph reads as f ollows:
IN ORDER TO DI S P U T E ANY CHARGE OR FUNDING, MERCHANT MUST NOTIFY SERVICERS IN W RITING W ITHIN THIRTY DAYS OF THE DATE OF T H IS STATEMENT W HERE S U C H CHARGE OR FUNDING APPEARS OR SHOULD HAVE APPEARED. THE LIABILITY OF SERVICES IS LIMITED UNDER THE MERCHANT AGREEMENT. T H E M E R C H A N T A G R E E M E N T C O N T A I N S M A N D A T O R Y PROCEDURES FOR RESOLVING DISPUTES. ARBITRATION I S REQUIRED IN ALL BUT CERTAIN LIMITED CIRCUMSTANCES, AND P U R S U ING CLAIMS ON A CLASS-W IDE BASIS IS PROHIBITED. P l e a s e review the Merchant Agreem e nt f or f urther details. ¶12. The Merchant A greem ent, which w as pro v i d e d t hrough accessing a website, was a thirteen-page docum ent. Alm o s t the entirety of page nine o f the Merchant Agreem ent was devoted to arbitration. 1.50 Dispute Resolution. Servicers and Merchant each acknowledge and a gree that any c o n t r o versy , disagreem ent, dispute or claim arising out of or relating to this Agreem ent, or any breach thereof (each , a “ D ispute”), s hall b e settled b y f o llowing the procedures set f

orth below:

. . . . ( c ) IN THE ABSENCE OF RESOLVING THE DISPUTE UNDER T H I S SECTION 1.50 AND INSTEAD OF SUING IN COURT, SERVICERS AND

6MERCHANTS EACH AGREE TO SETTLE AND RESOLVE FULLY AND

F IN A L L Y ALL DISPUTES EXCLU S I V E L Y B Y A R B I T R A T I O N , E X C E P T IN THE FOLLOW ING LIMITED CIRCUMSTANCES: (I) S ERVICERS OR M E R C H ANTS M A Y C O M M E N C E A N IN D I V I D U A L A C T I O N IN S M A L L CLAIMS COURT W HERE THE AMOUNT OF THE DISPUTE DOES NOT EXCEED THE JURISDICTIONAL LIMIT O F S UCH COURT; AND ( II) MERCHANT MAY FILE A D ISPUTE W ITH ANY FEDERAL, STATE OR L O C A L GOVERNMENTAL AGENCY THAT CAN, IF THE LAW SO AUTHORIZES, SEEK RELIEF AGAINST SERVICERS OR BEHALF OF MERCHANT. T HE AGREEMENT TO HAVE DISPUTES RESOLVED BY ARBITRATION IS MADE W ITH THE UNDERSTANDING THAT E ACH PARTY IS IR R EVOCABLY, KNOW INGLY, AND INTELLIGENTLY WA IVING AND RELEASI N G I T S RIGHT TO L ITIGATE DISPUTES THROUGH A COURT AN D TO HAVE A JUDGE O R JURY DECIDE DISPUTES. W i thout lim itation, Servicers and Merchant agree that Disputes, as def ined above, shall include the f ollowing m atters: (a) any D ispute b y any party against any agent, em ploy e e , successor, or assign of the other party or parties, including to the f ull extent perm itted by applicable law, third parties who are not signatories to this Agreem e nt, w hether related to this Agreem ent or otherwise; ( b) any past, present, or f uture Dispute; a n d ( c ) any Dispute as to t h e s c ope, validity , or applicability of this S ection 1.50, and/or the arbitrability of a n y Dispute; and (d) any D ispute a gainst Servicers, or any solicitation, or advertising, even if it arises af ter the Agreem e n t has term inated. The Merchant Agreem e nt also included a choice-of -law provision. 1.30 Choice of Law, Jurisdiction, Venue. The parties agree that all perf orm ances and transactions under this Agreem ent will be deem ed t o have occurred in Colorado, and that Merchant’s entry into and perf orm ance of this Agreem ent will b e deem ed t o b e the transaction of business within the State o f Colorado. The Agreem ent will be governed by Colorado law, without regard to its conf licts-of -law principles, and a

pplicable f ederal law. Subject to Section 1.50 below: (i) the parties hereby k nowingly , intelligently , and voluntar i l y c onsent to the exclusive jurisdiction and venue f o r a n y a c t ion relating to the subject m atter of this Agreem ent in either the courts o f t h e State of Colorado sitting in Eagle C ounty , Colorado, or the United States District Court f o r t h e D istrict of Colorado, s itting in Denver Colorado . . . .

7¶13. In W o odruff v. Tham e

s , this Court addressed c ontracts ref erencing and incorporating other docum ents.
F o r an incorporation by ref erence to b e ef

f ective, it m

ust be clear that t h e parties to the agreem en t had knowledge of and assented to the incorporated term s. A r ef

erence to another docum ent m ust be clear and unequivocal, and the term s of the incorporated d ocum ent m ust be k nown or e asily available to the parti e s . A d ocum ent is considered incorporated by ref e rence where the incorporating docum ent sp e c i f i cally provides that i t i s subject to the incorporated o n e . H o w e ver, a m ere ref erence to another d ocum ent is not suf f icie n t t o i n corporate that other docum ent into a contract; the writing to which ref erence i s m a de m

ust be described i n such term s that i ts i dentity m ay be ascertained bey ond reasonable doubt. Woodruff v. T

ham es , 143 So. 3d 546, 554-55 (Miss. 2014) (quoting 17A C .J.S. Contracts § 402 (2011)). The Merchant Application specif ied that the relationship between the parties would be g o v e r n e d by the s eparate Merchant Agreem ent and that Mam a Kio’s would be bound by the term s of the M erchant Agreem ent. B y signing the M erchant Application, Mam a Kio’s director and president, F ederico Garcia, af f irm ed that he had reviewed and agreed to the f u ll term s of the Merchant Agreem ent. See Term inix Int’l, Inc. v. Rice , 904 So. 2d 1051,
1056 (Miss. 2004) (“[ T ]he law p r e s u m es that Dr. Rice read the agreem ent h e signed with
Term inix. Had he done so, he would have seen the arbitration clause in the contract.”). ¶14. The M erchant Application m a d e c l e a r t h a t the Merchant Agreem ent m ust be read because it contained f

urther term s of the parties’ agreem ent and laid out wholly ascertainable and def inite term s requiring arbitration o f disputes. T he Merchant Agreem e nt, ref erenced by and i ncorporated in the Merchant Application, is valid and enf orceable against Mam a Kio’s.
II. Does the dispute fall w ithin the scope of the agreem ent?

8¶15. Mam a Kio’s three cross-claim s alleged against the c redit-card processing com panies were (1) breach of

f iduciary duty , (2) intentional and/or gross n egligent m i srepresentation, and (3) t ortious interf

erence w ith p rospective business advantage. These claim s arose out of the credit-card processing com panies’ alleged breach of the Merchant Agreem ent. Section
1.50 of the Merchant Agreem ent reads that “any controversy , disagreem ent, dispute or claim arising o ut o f or relating to this Agreem ent, or any b reach thereof ( each, a ‘Dispute’), shall be settled by

[ dispute resolution and then arbitration].” ¶16. Mam a Kio’s cross-claim s w ere the precise ty pes of disputes anticipated and provided by the Merchant Agreem ent.
III. Whether an y legal constraints ex ternal t o the agreem ent w ould prevent arbitration. ¶17. M a ma K i o ’ s a r g u e s t h a t t h e M e r c h a n t A g r e em ent is both procedurally an d substantively unconscionable, thus preventing arbitration. The party opposing arbitration bears the burden of proving that a contrac t d ef ense applies in the particular c ase. Norwest Fin. Miss., Inc. v. McDonald, 905 So. 2d 1 187, 1 193 (Miss. 2 005) (citing Green Tree Fin. Corp.–Ala. v. Randolph , 531 U.S. 79, 92, 121 S. Ct. 513, 522, 148 L. Ed. 2d 373 (2000)). The d octrine of unconscionability applie s o n l y to the m ost egregious of contractual situations. Sm ith v. E

xpress Check Advance of M iss., LLC , 153 S o. 3d 601, 607 (Miss. 2014). An unconscio n ab l e c o n tract is “one such as no m an in his senses and not under a delusion would m a k e o n t he o ne hand, and as no honest and f air m an w ould accept on the other

. . . .” Id. (internal q u o t a t i on m arks om itted) (quoting T erre Haute C

ooperage v. Branscom e , 203 Miss. 493, 35 So. 2d 537, 541 ( 1948)). An unconscionab l e contract

9“af

f r onts the sense of decency .” I d. (internal quotation ma r k s om itted) ( quoting Covenant
Health & Rehab., LP v. Estate o f Moulds , 14 So. 3d 695, 6 99 (Miss. 2009)). Procedural unconscionability is e stablished by showing “a lack of k n o w l e dge, lack of voluntariness, inconspicuous print, the use of com plex legalistic language, disparit y i n sophistication or bargaining power of the parties and/or a lack of opportunity to study the contract and inquire about the contract term s.” T aylor , 826 So. 2d at 7 14 (intern a l q u o t a t i on m arks om itted) (quoting Pridgen v. Green Tree Fin. Servicing Corp. , 88 F. Supp. 2d 655, 657 (S.D. Miss. 2000)). “The term s of a substantively unconscionable contract are so unreasonably f avorable

to one party that the contract im poses oppressive term s on the weaker party .” S m ith , 153 So. 3d at 607-08 (citing M

o u lds , 14 So. 3d at 699). ¶18. The arbitration agreem ent entered into by Mam a Kio’s and the credit-card processing

com panies i s n o t unconscionable. Considering the m erits of Mam a Kio’s claim s of procedural unconscionability , Mam a Kio’s could have done business with num erous other credit-card processing com panies. Mam a Kio’s w as not coerced to do busine s s w ith these

com panies. Af

ter Mam a Kio’s was presented with the Merchant Application, G a rcia, on behalf of Mam a Kio’s, could h ave ref used to sign it, o r he could have c ontracted with other credit-card processing com panies. The arbitration agreem e nt in the Merchant Application is in all capital letters directly above the signature line. The page d evoted t o t h e a rb i tration
agreem ent in the Merchant Agreem ent a lso contained language in all capital letters regarding resolving disputes through arb i t r a t ion and waiving a right to a jury trial. In M ississippi, a
person is charged with knowing the contents of any docum ent that he executes. J.R. Watkins

1 0Co. v. R unnels , 2 5 2 Miss. 87, 172 So. 2d 567, 571 (1965) ( “A person c annot avoid a written

contract which h e has entered i nto on the ground that h e did not read it or have it read to him

. . . .” (internal quotation m arks om itted) (quoting 13 C.J. 370)). ¶19. Mam a Kio’s also c laim s that the arbitration clause was substantively unconscionable becau s e it was oppressive and onesided. H owever, the arbitration agreem ent pertains to claim s of either party and does not benef it the credit-card processing com panies only

. It is equally binding upon the credit-card processing com p anies and Mam a Kio’s. The credit-card processing com

panies will not be shielded f rom any negl i g e n c e t h a t they m ay have

comm itted. All claim s, i ncludi ng Mam a Kio’s c laim that the credit-card p rocessing

com panies were grossly n e gligent, will be heard and resolved during arbitration. This issue is without m erit. ¶20. W e f

ind that the trial c ourt did not err by com pelling Mam a Kio’s to arbitrate its crossclaim s against the credit-card processing com p anies. A v a l i d arbitration agreem e nt exists, and the disputes alleged b y M am a Kio’s a ll f a ll within that arbitration a greem ent. No legal constraints are present that would prevent going f o rward with arbitration. W e f ind that the trial court did not err by com pelling Mam a Kio’s to arbitrate its cross-claim s . IV. Is LAGB bound by the arbitration clause contained in the contract entered into by M am a Kio’s an d t h e credit-card p rocessing com panies? ¶21. L A G B a r g u e s t h a t i t never contracted with any of the cred i t

- c a r d p r o c e s s i n g

com panies and c annot be bound by any c ontract between M am a Kio’s and those com panies.
LAGB contends that no c o n s i d e r ation passed between LAGB and any of the credit-card

1 1processing com p anies, that LAGB had no discussion with those c om panies a bout arbitration, and that no arbitration a greem e nt e ver was signed. Thus, LAGB argues, it and the com panies

never reached a suf

f iciently def

inite agreem ent t o arbitrate. F inally , LAGB asserts that there

was no m utual assent on its part to arbitrate any claim s. ¶22. The credit-card processing com panies respond, arguing that the trial court correctly held that LAGB’s claim s f ell within the scope of the arbitration agreem ent. Because LAGB’s theory i s based on the com panies’ b reaching the agreem ent with Mam a Kio’s, the com panies argue that LAGB’s claim s arise out of and relate to that agreem ent. ¶23. A party w ill not be required to s ub mi t t o a rb i tration “any dispute which he has not agreed so to subm it.” Adam s v . Greenpoint Credit, LLC , 943 S o. 2d 703, 708 (Miss. 2006) (internal quotation m arks o m itted) (quoting Pre-Paid L egal Servs. v. Battle , 873 So. 2d 79, 83 (Miss. 2004)). Since arbitration provisions are “contractual in n ature, the general rule is that ‘a party c annot be required to subm it to arbitration any dispute which he h as not agreed so to subm it.’” Qualcom m [ , Inc. v. A m . W ireless License Grp. ], 980 S o. 2 d [ 261,] 269 [ ( M iss. 2007)] (quoting Adam s v. Greenpoint Credit, LLC , 943 So. 2d 703, 708 (Miss. 2006)). See a lso Bridas S .A.P.I.C. v

. Gov’t of Turkm enistan , 345 F. 3d 347, 354 n.3 (5th Cir. 2003) (quoting Westm oreland v

. Sadoux , 299 F.3d 462, 465 (5th C i r . 2 002)) ( arbitration agreem ents apply to n onsignatories only “ in rare circumstances .”). However, “a non-signatory party m ay be bound to an arbitration agreem ent if s o dictated by the ordinary p r i n ciples of contract and agency .” Miss. Care Ctr. of Greenville, LLC v. Hinyub , 975 So. 2d 2 1 1 , 2 1 6 ( Miss. 2008) (quoting Washington Mut. F

in. G roup, LLC v. Bailey , 364 F .3d 260, 266 ( 5th Cir. 2004)). For exam

ple, “a signatory m ay enf orce an arb i t r a t i on agreem ent against a non-signatory if the n on-signatory is a third-party benef iciary

. . . .” Qualcom m , 980 So. 2d at 269 (citing Adam s , 943 So. 2d at 708).

1 2Scruggs v. Wyatt , 60 So. 3d 758, 7 67 ( Miss. 2 011) (em phasis added). A third-party benef iciary exists (1) When the term s of the contract are expressly broad enough to include the third party either b y nam e as one of a s pecif ied class, and (2) the said third party was evidently within the i ntent of the term s so used, the said third p arty will be within its b e n e f

i t s , i f (3) the prom isee had, in f a ct, a substantial and articulate interest in the welf are of the s a id third party in r espect to the subject of the contract.
Y azoo & M .V .R. C o. v. Sideboard, 161 Miss. 4, 133 S o. 669, 671 (1931) (em phasis added).
“In other words, the right o f the third party benef iciary to m aintain an action on the contract

m ust s pring f

rom the term s o f the contrac t i t s e l f

. ” A d am s , 943 So. 2d at 709 (em phasis

o mi tted) (quoting Burns v. Washington Savings , 2 51 Miss. 789, 171 So. 2 d 322, 3 2 5 (1965)). “Only in the rarest of circum stances, and with caution, s hould we shackle a citizen

to an agreem ent of o thers that strips the c itizen o f his or her constitutional right to a trial by jury .” Olshan Found. Repair Co. of Jackson, LLC v . M o o r e , 251 So. 3d 725, 728 (Miss. 2018) (citing Miss. Const. art. 3, § 31; Pinnacle Trust Co., L .L.C. v. McTaggart , 152 So. 3d 1123, 1127 (Miss. 2014)). W e m ust determ ine if this cas e p r e s e nts o ne of those “rare circum stances” in which non s ignatories should be bound by an arbitration agreem ent. W e f ind that this is not such a circum stance. ¶24. L A GB h as not m ade a contract claim against any of the c r e d i t

- c a r d p r o c e s s i n g

com panies. LAGB a l l e g e s t o rt claim s of negligence, tortious interf erence w ith a c ontract, and tortious interf

erence with a prospective business advantage. I f LAGB can sustain i ts claim s without any ref

erence to the contracts or agreem ents between or am o ng Mam a Kio’s and the credit-card processing com panies, its causes of action are not subject to arbitration. LAGB

1 3is not bound to the term s of Mam a Kio’s contracts, i ncluding the arbitration provisions. The

trial court’s order com

p elling arbitration a s to LAGB is r eversed, and this case is rem anded
f or LAGB to p ursue claim s i t m ay have against Mam a Kio’s and the credit-card p rocessing

com panies consistent with this opinion.
CONCLUSION ¶25. The trial c ourt’s order com pelling arbitration as to Mam a K io’s cross-claim s against the c redit-card processing com panies is a f

f irm ed. However, the trial court erred by

com pelling LAGB t o arbitrate its claim s against Mam a Kio’s and the credit-card p rocessing

com panies. That portion of

the order is reversed, and LAGB’s claim s against Mam a Kio’s and the credit-card p rocessing com panies are rem anded f

or proceedings consistent with this opinion. ¶26. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
KITCHENS A N D KING, P.JJ., COLEMAN, MAXWELL, BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR.

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