                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2017-CA-00138-SCT

OLSHAN FOUNDATION REPAIR COMPANY OF
JACKSON, LLC d/b/a OLSHAN FOUNDATION
SOLUTIONS AND WAYNE BROWN

v.

GLORIA MOORE, PHILLIP R. MOORE AND
KATELYN A. MOORE


DATE OF JUDGMENT:                         01/17/2017
TRIAL JUDGE:                              HON. JON MARK WEATHERS
TRIAL COURT ATTORNEYS:                    ROBIN L. ROBERTS
                                          KATHLEEN INGRAM CARRINGTON
                                          RICHARD M. DYE
COURT FROM WHICH APPEALED:                PERRY COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:                 RICHARD M. DYE
                                          KATHLEEN INGRAM CARRINGTON
ATTORNEYS FOR APPELLEES:                  ROBIN L. ROBERTS
                                          CHRISTOPHER D. NOBLES
                                          HEATHER E. MURRAY
NATURE OF THE CASE:                       CIVIL - CONTRACT
DISPOSITION:                              AFFIRMED - 06/28/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       KITCHENS, PRESIDING JUSTICE, FOR THE COURT:

¶1.    Phillip Moore, Gloria Moore, and Katelyn Moore sued Olshan Foundation Repair of

Jackson, LLC (Olshan), and Wayne Brown in Perry County Circuit Court. Olshan and Brown

sought to compel arbitration pursuant to an arbitration provision within a contract between

Phillip Moore and Olshan for the repair of the foundation of the Moores’ home. The circuit
court ordered Phillip and Gloria Moore to arbitrate their claims. But because the circuit court

declined to order Katelyn Moore to the arbitral forum, Olshan and Brown now appeal. We

affirm the judgment of the Perry County Circuit Court denying the motion to compel

arbitration filed by Olshan and Brown as to Katelyn Moore’s claims.

                         FACTS AND PROCEDURAL HISTORY

¶2.    On June 10, 2013, Phillip Moore contracted1 with Olshan for repairs to the foundation

of the home he shared with his wife, Gloria Moore, and his adult daughter, Katelyn Moore.

Phillip, Gloria, and Katelyn Moore sued Olshan and Brown in the Circuit Court of Perry

County on April 29, 2016, requesting contract damages solely for Phillip Moore and Gloria

Moore, including damages related to loss of value and expenses to repair their home.2


       1
           The following arbitration provision appeared on the back page of the contract:

       ARBITRATION: Contractor and Owner agree that any dispute or lawsuit
       arising out of this Agreement and Warranties shall be resolved by mandatory
       and binding arbitration pursuant to the arbitration laws in this state and in
       accordance with this agreement and the rules of the American Arbitration
       Association (AAA). Parties may arbitrate with an agreed upon arbitrator. If
       unable to agree, binding arbitration shall be administered by AAA. All costs
       shall be divided equally among the parties.
       2
           The Moores requested the following relief:

             WHEREFORE, premises considered, as a result of the foregoing,
       damage was caused to the plaintiffs by the actions of Olshan. In particular,
       Gloria and Phillip Moore have suffered the following damages:

                1.     Total and complete loss of the value of their home in the
                       approximate amount of $200,000.00;
                2.     Loss of use of their home during the time that the repairs
                       were being undertaken;
                3.     Loss of enjoyment of their home during the time that the
                       damages were unrepaired;

                                               2
Katelyn Moore alleged intentional or negligent infliction of emotional distress. The only

remedy she sought is found in the unnumbered prayer for relief, separate and apart from the

contract damages sought by Phillip Moore and Gloria Moore.

¶3.    After Olshan and Brown moved to compel arbitration, the circuit court held a hearing.

It then entered an order granting the motion with respect to Phillip and Gloria Moore’s claims

while denying the motion as it pertains to Katelyn Moore’s claims. Regarding Katelyn

Moore’s claims, the circuit court reasoned that the terms of the contract were not broad

enough to include Katelyn as a third-party beneficiary of the agreement and that the

arbitration agreement could not be enforced against Katelyn on the grounds of estoppel “as

her claims are not based solely on the terms of the contract.” The circuit court explained:

       Katelyn asserts claims for intentional or negligent infliction of emotional
       distress and negligence which could be pursued regardless of whether or not


              4.     Expenses having the house repaired;
              5.     Expenses having the house examined to determine what
                     actions could be taken to salvage the value of the home;
              6.     Medical bills for Phillip Moore to deal with his
                     ulcerative colitis issues;
              7.     Attorneys fees in attempting to have the house repaired;
              8.     Other consequential damages such as interest on their
                     loan.

              The Moores demand payment (1) for the full value of their home
       ($200,000.00), (2) for loss of use of their home in the amount of the rental
       value for (3) years ($36,000.00), (3) medical bills and emotional stress
       damages ($250,000.00) for Phillip Moore and $100,000.00 for Katelyn
       Moore, (4) actual and punitive damages for fraud in the amount of
       $100,000.00, (5) all attorneys fees, expenses, pre-judgment interest, and (6)
       punitive damages as may be allowed by law for the willful and wanton
       conduct of Olshan.

(Emphasis added.)

                                              3
       there was a contract. Moreover, due to ambiguity in the Complaint, it is not
       clear to the [c]ourt if Katelyn is seeking to assert claims for breach of contract
       and breach of warranty. Those claims more properly belong to Phillip and
       Gloria.

The trial court further held that Katelyn Moore was neither a third-party beneficiary nor a

direct beneficiary of the Olshan contract, because:

       the terms of the contract were not expressly broad enough to include Katelyn
       as a third-party by name or as one of a specified class, as Katelyn was not an
       owner of the property. Furthermore, Katelyn was not a direct beneficiary of the
       contract. The fact that Katelyn resides in the home makes her an incidental, not
       direct beneficiary of the construction work performed by Olshan. See Rein v.
       Benchmark Construction Company, 865 So. 2d 1134 (Miss. 2004); Simmons
       Housing Inc. v. Shelton ex rel. Shelton, 36 So. 2d 1283 (Miss. 2010).

¶4.    Olshan and Brown appeal only the circuit court’s denial of their motion to compel

Katelyn Moore to arbitrate her claims.

                                         ANALYSIS

¶5.    A grant or denial of a motion to compel arbitration is reviewed de novo. Harrison

Cty. Commercial Lot, LLC v. H. Gordon Myrick, Inc., 107 So. 3d 943, 949 (Miss. 2013)

(citing Cmty. Bank of Miss. v. Stuckey, 52 So. 3d 1179, 1181 (Miss. 2010)).

¶6.    The circuit court held that the arbitration provision in the foundation-repair contract

between Phillip Moore and Olshan was valid and enforceable and that Gloria Moore was a

third-party beneficiary. Phillip and Gloria Moore declined to cross-appeal the circuit court’s

decision that the arbitration agreement was valid and enforceable respecting their claims.

Accordingly, the validity of the arbitration provision, itself, is not before the Court. The only

question is whether Katelyn Moore, a nonsignatory, is bound to arbitrate her claims against

Olshan.


                                               4
¶7.    Olshan contends that a federal policy favoring arbitration exists and the Federal

Arbitration Act (FAA) requires “that ‘we rigorously enforce agreements to arbitrate.’” East

Ford, Inc. v. Taylor, 826 So. 2d 709, 713 (Miss. 2002) (quoting Shearson/Am. Express, Inc.

v. McMahon, 482 U.S. 220, 226, 107 S. Ct. 2332, 2337, 96 L. Ed. 2d 185 (1987)). But

Phillip Moore contracted specifically with Olshan for Mississippi law to govern any disputes

or lawsuits arising out of their agreement. So the FAA does not apply to this case. And

Mississippi courts will “not override the clear intent of the parties, or reach a result

inconsistent with the plain text of the contract, simply because the policy favoring arbitration

is implicated.” B.C. Rogers Poultry Inc. v. Wedgeworth, 911 So. 2d 483, 487 (Miss. 2005)

(quoting EEOC v. Waffle House, Inc., 534 U.S. 279, 294, 122 S. Ct. 754, 764, 151 L. Ed.

2d 755 (2002)).

¶8.    Only in the rarest of circumstances, and with caution, should we shackle a citizen to

an agreement of others that strips the citizen of his or her constitutional right to a trial by

jury. Miss. Const. Art. 3, § 31; see Pinnacle Trust Co., L.L.C. v. McTaggart, 152 So. 3d

1123, 1127 (quoting Scruggs v. Wyatt, 60 So. 3d 758, 767 (Miss. 2011) (quoting Bridas

S.A.P.I.C. v. Gov’t of Turkmenistan, 345 F. 3d 347, 354 n.3 (5th Cir. 2003))) (“arbitration

agreements apply to nonsignatories only ‘in rare circumstances.’”). This Court has held that

“[a] nonsignatory may be bound to an arbitration agreement under ordinary principles of

contract and agency.” Simmons Housing, Inc. v. Shelton ex rel. Shelton, 36 So. 3d 1283,

1286 (Miss. 2010) (internal citations omitted). “[A] signatory may enforce an arbitration




                                               5
agreement against a non-signatory if the non-signatory is a third-party beneficiary or if the

doctrine of equitable estoppel applies.” Id. (internal quotations omitted).

¶9.    Simmons was introduced to these proceedings by Olshan in its motion to compel

arbitration, albeit for a different proposition.3 Roy and Kimberly Shelton and their two minor

children brought suit against Simmons Housing, Inc., et al., for claims concerning a defective

mobile home. Simmons, 36 So. 3d at 1285. The circuit court compelled the parents’ claims

to arbitration based on two agreements they had signed in purchasing the mobile home, but

refused to compel the children’s claims to arbitration. Id. at 1285-86. This Court held that

the nonsignatory children could not be bound to arbitration because they were neither third-

party beneficiaries, nor were they bound to the contract by virtue of direct-benefit estoppel.

Id. at 1286-88.

¶10.   First, the Simmons Court analyzed whether the Sheltons’ children were third-party

beneficiaries and held that a person 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. at 1286 (citing Burns v.

Washington Savings, 251 Miss. 789, 796, 171 So. 2d 322, 325 (1965)).4 Simmons held that


       3
        Instead of distinguishing Simmons—a factually analogous case—Olshan cites a
Texas intermediate appellate court opinion that applies the FAA. In re Ford Motor Co., 220
S.W.3d 22 (Tex. App. 2006).
       4
       The Simmons Court’s third-party-beneficiary analysis was based on Yazoo &
M.V.R. Co. v. Sideboard, 161 Miss. 4, 133 So. 669 (1931). In Sideboard, a railroad labor

                                              6
“a mere incidental or consequential benefit is insufficient.” Id. at 1287 (quoting Adams v.

Greenpoint Credit, LLC, 943 So. 2d at 703, 708 (Miss. 2006) (daughter was not bound by

arbitration clause found in the contract signed by her father)). Accordingly, this Court held

that the Sheltons’ children were not third-party beneficiaries to the agreements signed by

their parents, because the children “were not referenced or alluded to in the contract.

Additionally, their living in the mobile home did not make them direct beneficiaries.”



union composed exclusively of white men entered into a union compensation agreement,
which provided that the rights contained in the agreement would apply for both white and
African-American employees alike. Id. at 670. On February 27, 1925, the railroad, having
conceived at that time the idea that, because Sideboard was not, and could not be, a member
of the union, he could not enforce any rights under the union contract. Id. Sideboard was
notified that on and after March 16, 1925, he would no longer be paid wages for the job he
was performing, but rather would be paid lesser wages for a different job. Id. Sideboard
continued working, and checks were sent to him regularly at the new, lower rate, stipulating
that he was paid in full for services rendered. Id. Sideboard accepted and cashed the checks
from March 16, 1925, to March 1, 1927, during all of which time Sideboard was appealing
for recognition of his right to equal pay, by letter and by personal interviews from officer to
officer of the railroad company, by successive steps finally to the president of the entire
railroad system based in Chicago, Illinois. The appeals were met with consistent and
persistent refusal, and finally, when he saw that there was no possibility of any change of
attitude on the part of the railroad, Sideboard declined to accept or cash any further pay
checks on and after March 1, 1927, and went without accepting or cashing the paychecks
for an additional year, until the railroad discharged Sideboard from service. Id. Sideboard
prevailed in a jury trial in Warren County. This Court affirmed the trial court’s judgment that
Sideboard was a third-party beneficiary to the union contract and entitled to enforce rights
under the contract, reasoning that:

       (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 was 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. at 671.

                                                7
Simmons, 36 So. 3d at 1287. Here, as in Simmons, Katelyn Moore was not mentioned in the

contract. She merely lived in the home. Simmons held that living under the same roof was

insufficient to confer third-party-beneficiary or direct-beneficiary status.

¶11.   Here, the trial judge eminently was correct in finding that Katelyn Moore was neither

a third-party beneficiary nor a direct beneficiary because:

       the terms of the contract were not expressly broad enough to include Katelyn
       as a third-party by name or as one of a specified class, as Katelyn was not an
       owner of the property. Furthermore, Katelyn was not a direct beneficiary of the
       contract. The fact that Katelyn resides in the home makes her an incidental, not
       direct beneficiary of the construction work performed by Olshan. See Rein v.
       Benchmark Construction Company, 865 So. 2d 1134 (Miss. 2004); Simmons
       Housing Inc. v. Shelton ex rel. Shelton, 36 So. 2d 1283 (Miss. 2010).

¶12.   The Simmons Court next analyzed whether equitable estoppel would bind the

Sheltons’ children to arbitration. Simmons, 36 So. 3d at 1287. Equitable estoppel “is an

extraordinary remedy to be used with caution.” Adams, 943 So. 2d at 709. “In the arbitration

context, equitable estoppel prevents a party from embracing the benefits of a contract while

simultaneously trying to avoid its burdens.” Simmons, 36 So. 3d at 1287.

¶13.   Olshan unconvincingly argues that equitable estoppel applies because Katelyn

Moore’s claim of personal injury arises from the contract, so she should be bound to

arbitrate. Katelyn Moore argues that she is not subject to equitable estoppel because she had

no knowledge of the contract, and, therefore, she could not have benefitted knowingly from

the contract. She continues that her claim for negligent and intentional infliction of emotional

distress is not dependent on the contract. We agree. In Hattiesburg Health & Rehab Center,

LLC v. Brown, 176 So. 3d 17, 18 (Miss. 2015), a nursing home resident’s wife, who had



                                               8
signed an admission agreement that contained an arbitration provision, filed a wrongful death

lawsuit against the nursing home after her husband’s death. The circuit court denied the

nursing home’s motion to compel arbitration, and this Court affirmed. Id. at 18, 25. On

appeal, the nursing home argued that the decedent had been estopped from repudiating “the

terms of the admission agreement because he received services from [the nursing home] and

benefitted from the terms of the agreement.” Id. at 23-24. This Court held that the husband’s

estate “is not attempting to ‘enforce the terms’ of the admission agreement, nor is it

‘asserting claims that must be determined by reference to it.’” Id. at 24. The wife had

“alleged claims of negligence, medical malpractice, . . . deviations from the standard of care,

respondeat superior, res ipsa loquitur, negligent supervision and retention and wrongful

death.” Id. at 19. With regard to the wife’s claims, this Court observed: “[s]imply put, Leo’s

estate’s claims sound in tort and [the wife] could pursue those claims without an admission

agreement at all.” Id. Here, too, Katelyn’s claims sound in tort. Katelyn neither sought

enforcement of the contract nor did she assert a prayer for relief in her complaint compelling

performance of the contract.5

¶14.   The trial court correctly found that Katelyn Moore’s claim for intentional or negligent

infliction of emotional distress and negligence “could be pursued regardless of whether or

not there was a contract.”



       5
          “A pleading which sets forth a claim for relief, whether an original claim,
counterclaim, cross-claim, or third-party claim, 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. Relief in the alternative or of several different
types may be demanded.” Miss. R. Civ. P. 8 (emphasis added).

                                               9
¶15.   Olshan next argues that direct-benefit estoppel mandates enforcement of an arbitration

provision against a nonsignatory. “Direct-benefit estoppel involves non-signatories who,

during the life of the contract, have embraced the contract despite their non-signatory status,

but then, during litigation, attempt to repudiate the arbitration clause in the contract.”

Pinnacle Trust Co., 152 So. 3d at 1124 (quoting Noble Drilling Servs., Inc. v. Certex USA,

Inc., 620 F. 3d 469, 473 (5th Cir. 2010)). In order for direct-benefit estoppel to apply, a

nonsignatory must “‘embrace’ a contract containing an arbitration clause” in one of two

ways. Scruggs, 60 So. 3d at 760. First, a nonsignatory can embrace a contract “by knowingly

seeking and obtaining ‘direct benefits’ from that contract.” Id. Katelyn Moore did not. Or,

a nonsignatory can embrace a contract “by seeking to enforce the terms of that contract or

asserting claims that must be determined by reference to that contract.” Id. Katelyn Moore

did not. In Pinnacle Trust Co., nonsignatory trustees were not bound to an arbitration

agreement under direct-benefit estoppel because they were neither beneficiaries, direct or

residual, nor were they aware of the agreement that would bind them to arbitrate their claims.

Pinnacle Trust Co., 152 So. 3d at 1129. Neither was Katelyn Moore.

¶16.   Katelyn Moore is not a direct beneficiary because she never sought to obtain any

direct benefit from the foundation-repair contract. She is, as the trial court ruled, merely an

incidental beneficiary. Simmons, 36 So. 3d at 1287. Katelyn Moore is not asserting a claim

that requires reference to the contract, and no evidence has been offered to support the

argument that Katelyn knowingly sought any direct benefit from the contract or that she




                                              10
embraced its terms. Moreover, no evidence has been offered that Katelyn Moore knew of the

contract’s existence, much less that it contained an arbitration provision.

¶17.   In any event, Katelyn Moore “cannot be required to arbitrate any disputes [to] which

[she] did not agree . . . .” Harrison Cty. Commercial Lot, LLC, 107 So. 3d at 949 (citing

Scruggs, 60 So. 3d at 767). In reviewing the contract, there is no evidence of the following:

(1) that the contract between Olshan and Phillip Moore was intended for Katelyn Moore’s

benefit; (2) that Olshan and Phillip Moore at least contemplated such benefit to Katelyn

Moore as a direct result of performance; (3) that Olshan owed a contractual obligation or

duty to Katelyn Moore, or vice versa; (4) that the terms of the contract were expressly broad

enough to include Katelyn Moore either by name or by specified class; (4) that Katelyn

Moore evidently was within the intent of the terms of the contract, and that Katelyn Moore

would be within its benefits; (5) that Olshan had a substantial and articulate interest in the

welfare of Katelyn Moore in respect to the subject of the contract; (6) that the contract

references or alludes to Katelyn Moore; (7) that Katelyn Moore signed the contract; or (8)

that Katelyn Moore consistently has maintained that other provisions of the same contract

should be enforced to benefit her. Simmons, 36 So. 3d at 1286-88.

¶18.   Importantly, in Simmons, the children alleged contract-related claims. Simmons, 36

So. 3d at 1288. The children did not seek to amend their complaint or to withdraw it to strike

the contract-related claims. Id. Nevertheless, this Court remanded the case to proceed on the

tort claims but declared the contract-related claims to have been relinquished. Id. at 1289.




                                             11
Here, Katelyn Moore did not assert a claim based on the contract because she does not

request relief for damages under the contract.

¶19.   Finally, Olshan cites Terminix International, Inc. v. Rice, 904 So. 2d 1051 (Miss.

2004). In Rice,“a husband and wife sued Terminix for negligence, misrepresentation, fraud,

breach of contract, and fraudulent inducement.” Simmons, 36 So. 3d at 1288 (citing Rice,

904 So. 2d at 1058). This Court had held that “the wife was bound to the arbitration

agreement under the ordinary principles of equitable estoppel.” Id. (citing Rice, 904 So. 2d

at 1058). Olshan argues that Katelyn Moore’s claims, “whether sounding in negligence or

contract, all directly stem from Olshan’s alleged failure to properly perform the foundation

repair work covered by the Agreement.” But in Simmons, this Court observed that the Rice

Court, which had referenced the wife’s claims in passing, “gave very little discussion as to

why equitable estoppel applied to the facts of that case,” and, according to a footnote,

“afforded great weight to the fact that the wife’s suit relied exclusively on the contract.” Id.

(citing Rice, 904 So. 2d at 1057-58 n.3).

¶20.   As in Simmons and Brown, Katelyn Moore is neither a third-party beneficiary to the

foundation-repair contract nor is she bound by direct-benefit estoppel. Accordingly, we hold

that Katelyn Moore’s claims, including negligence and intentional/negligent infliction of

emotional distress, are wholly independent of the terms of the contract to which she was not

a party. We hold further that Olshan should not be allowed to enforce an arbitration clause

respecting Katelyn Moore’s claims, which are unrelated to the contract.




                                              12
                                       CONCLUSION

¶21.   On de novo review, we find that the circuit court did not err in declining to compel

Katelyn Moore’s claims to arbitration. Accordingly, we affirm the judgment of the Perry

County Circuit Court.

¶22.   AFFIRMED.

     WALLER, C.J., RANDOLPH, P.J., KING, COLEMAN AND BEAM, JJ.,
CONCUR. CHAMBERLIN, J., DISSENTS WITH SEPARATE WRITTEN OPINION
JOINED BY MAXWELL AND ISHEE, JJ.

       CHAMBERLIN, JUSTICE, DISSENTING:

¶23.   We should not expand the right to arbitration but rather apply already-established law.

However, as all of the claims alleged against Olshan and Brown arose from the contract and

Katelyn availed herself of that contract, acts already contemplated under existing law, I

respectfully dissent. I would reverse the circuit court’s denial of arbitration and remand the

case to be compelled to arbitration in its entirety.

¶24.   As the majority recognizes, a party is bound by the principles of direct-benefit

estoppel where the party “seek[s] to enforce the terms of that contract or assert[s] claims that

must be determined by reference to that contract.” Scruggs v. Wyatt, 60 So. 3d 758, 760

(Miss. 2011); see also Noble Drilling Servs., Inc. v. Certex USA, Inc., 620 F.3d 469, 473

(5th Cir. 2010).

¶25.   Despite the majority’s insistence otherwise, Katelyn (herself or, in the alternative,

through her mother as her next friend and natural guardian) has asserted claims that must be

determined by reference to the contract. Under the complaint, Katelyn brought all five



                                              13
counts against Olshan and Brown. While the majority is quick to note the clear intent of the

parties concerning the application of Mississippi law, it wholly ignores the Moores’

admission on appeal that Katelyn brought all five counts in the complaint. On appeal, the

Moores (including Katelyn) bluntly declare:

       Katelyn, along with her parents Phillip and Gloria Moore, sued Olshan and
       Wayne Brown, as the employee and GM of Olshan, in Perry County Circuit
       Court for breach of contract, breach of warranty, negligence, fraud, and
       Intentional/Negligent Infliction of Emotional Distress (INIED) claims
       stemming from Olshan’s failure to competently repair their foundation.

This admission is nothing new, though, as the Moores (including Katelyn), in their response

to the motion to compel, argued that “[b]ecause the Moores’ claims all arise out of the same

occurrence, the claims should be resolved together, either through arbitration or trial.”

(Emphasis added.)

¶26.   Instead of deferring to the language of the complaint and the Moores’ claims, the

majority is forced to draw the distinction that Katelyn has brought only count five against

Olshan and Brown. This distinction is unsupported by the complaint and the entire record

both in the circuit court and on appeal. The majority’s attempt to justify its interpretation of

the complaint by recognizing that Katelyn’s damages were alleged separately is unavailing

in light of the language of the complaint paired with the Moores’ own understanding of the

claims brought. Even if the circuit court was correct to interpret the complaint’s use of the

term “the Moores” as excluding Katelyn, Katelyn’s continued insistence on appeal that she

brought the claims alongside her parents renders this interpretation on appeal untenable.




                                              14
¶27.   Had Katelyn brought only count five, though, her claim still should be arbitrated. As

to count five, the complaint’s specific reference to Katelyn does not allege a cause of action

against Olshan or Brown without the surrounding context of the breach-of-contract claims.

As to Katelyn, count five states “Katelyn Moore has autism and other mental complications

which cause emotional distress due to limited coping skills with physical manifestations of

migraine headaches.” Alone, these allegations do not allege any cause of action against

Olshan and Brown. Instead, the allegations claim that Katelyn’s autism and other mental

complications caused her emotional distress. These are, at best, damages. Only when the

allegations are read in conjunction with the first phrase of Phillip’s claim does Katelyn’s

claim become actionable. The first phrase of Phillip’s claim in count five provides: “Due to

the actions of Olshan, as previously described in the statement of facts, and its negligence

and breach of contract. . . .”

¶28.   The majority’s reliance on Simmons and Brown is misplaced: in both those cases the

Court declined to apply equitable estoppel, as the parties at issue were not bringing contact

claims. Simmons Housing, Inc. v. Shelton ex rel. Shelton, 36 So. 3d at 1283, 1288 (Miss.

2010); Hattiesburg Health & Rehab Center, LLC v. Brown, 176 So. 3d 17, 24 (Miss. 2015).

In Simmons, the Court recognized that the children “insist that they do not—and

cannot—seek recovery for breach of contract.” Simmons, 36 So. 3d at 1288. Likewise, in

Brown, the Court found that the estate’s claims sounded in tort without reference to the

contract. Brown, 176 So. 3d at 24. Instead, here, the Moores insisted at the circuit court and




                                             15
now continue to insist on appeal that Katelyn brought the five counts in the complaint against

Olshan and Brown.

¶29.   Katelyn’s claims against Olshan and Brown arose from the contract at issue in this

case. Katelyn brought suit against Olshan and Brown under that contract, alleging claims

that must, by the Moore’s own admissions, be resolved by reference to that contract. As

such, I would apply established law and compel Katelyn’s claims to arbitration.

       MAXWELL AND ISHEE, JJ., JOIN THIS OPINION.




                                             16
