                     IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2010-IA-00883-SCT

LEMON DROP PROPERTIES, LLC

v.

PASS MARIANNE, LLC AND ALFONSO REALTY,
INC. (d/b/a COLDWELL BANKER ALFONSO
REALTY, INC.)

DATE OF JUDGMENT:                           05/10/2010
TRIAL JUDGE:                                HON. ROGER T. CLARK
COURT FROM WHICH APPEALED:                  HARRISON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                    STEPHEN WALKER BURROW
                                            JAMES H. COLMER, JR.
                                            ANN M. HALPHEN
ATTORNEYS FOR APPELLEES:                    GAIL D. NICHOLSON
                                            CHESTER D. NICHOLSON
NATURE OF THE CASE:                         CIVIL - CONTRACT
DISPOSITION:                                AFFIRMED IN PART; REVERSED AND
                                            REMANDED IN PART - 10/20/2011
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

         EN BANC.

         RANDOLPH, JUSTICE, FOR THE COURT:

¶1.      This interlocutory appeal proceeds from an order of the Circuit Court of Harrison

County, Mississippi, First Judicial District, which granted the “Motions to Compel

Arbitration” of Pass Marianne, LLC (“Pass”) and Alfonso Realty, Inc. (“Alfonso”). On

appeal, this Court considers (1) whether Pass waived its right to arbitration, and (2) whether

a principal’s waiver of its contractual right to arbitrate operates to waive that right for its

agent.
                      FACTS AND PROCEDURAL HISTORY

¶2.   In 2005, Pass entered into a contract with Carl E. Woodward, LLC (“Woodward”) for

the construction of a new condominium development, Pass Marianne Condominiums, in Pass

Christian, Mississippi. On February 8, 2005, Pass and Lemon Drop Properties, LLC

(“Lemon Drop”) entered into a “Preconstruction Sales and Purchase Agreement”

(“Agreement”) for Unit No. 209 within the Pass Marianne Condominiums. Regarding

Alfonso, the Agreement provided that:

      [e]ach party hereby agrees to indemnify and hold the other harmless from and
      against any liability for any claims of any broker claiming by, through or under
      it. SELLER has not listed this property with any real estate firm, however on
      certain transactions, [Alfonso] has represented the SELLER. SELLER’S agent
      with respect to those specific transactions is [Alfonso], which represent the
      SELLER and IS NOT a Buyer’s agent and Buyer acknowledges that he is a
      “customer” of Realtor. The real estate agency disclosure form may be
      attached hereto as if a real estate broker was a part of this transaction.
      PURCHASER ALSO ACKNOWLEDGES THAT THE PRINCIPALS OF
      [PASS] ARE LICENSED REAL ESTATE BROKERS AND ARE, IN ALL
      CASES, REPRESENTING THEMSELVES AND [PASS]. WHEN EITHER
      ALFONSO AND/OR KETCHINGS PRESENTED THE PROJECT TO A
      POTENTIAL PURCHASER AND OBTAINED THE RESERVATION
      AGREEMENT OR THIS CONTRACT OR ANY OTHER AGREEMENT,
      THE AFOREMENTIONED ALFONSO AND KETCHINGS WERE ACTING
      IN THEIR CAPACITY AS THE SELLER AND NOT AS A LICENSED REAL
      ESTATE BROKER.

(Emphasis added.) The Agreement also contained the following provision:

      ARBITRATION. It is agreed that the subject matter of this Agreement
      substantially involves interstate commerce. Any disagreement or question
      between the parties which shall arise out of this Agreement, its breach or
      otherwise related to the development shall be submitted to arbitration under the
      Rules of the American Arbitration Association or as the parties may later agree
      in writing. The arbitration decision shall be binding on both parties. The
      parties renounce all right to take legal action except to enforce any arbitration
      award, which award shall be a condition precedent to any right of legal action
      that either party may have against the other.


                                             2
¶3.    Because of Hurricane Katrina, construction of the Pass Marianne Condominiums was

not completed until 2007. On October 3, 2007, Pass executed a warranty deed conveying

Unit No. 209 to Lemon Drop, and Woodward furnished a “Warranty of Completion of

Construction” to Lemon Drop.

¶4.    On October 28, 2008, Lemon Drop filed a Complaint in the circuit court against Pass

and Woodward, which sought, inter alia, rescission of the Agreement due to alleged defects

in design and construction. The Complaint failed to attach a copy of the Agreement. See

Miss. R. Civ. P. 10(d) (“[w]hen any claim or defense is founded on an account or other

written instrument, a copy thereof should be attached to or filed with the pleading unless

sufficient justification for its omission is stated in the pleading.”).

¶5.    On December 22, 2008, Pass filed its Answer, along with a cross-claim against

Woodward for fraud, defamation, and breach of contract. The pleading requested a jury trial

and did not invoke an arbitration plea against Lemon Drop. On March 6, 2009, Pass joined

in an agreed “Order Setting Trial Date.” Subsequently, Pass propounded and responded to

written discovery requests with both Lemon Drop and Woodward.

¶6.    On June 5, 2009, Lemon Drop filed a “Motion to Amend Complaint,” seeking to add

Alfonso as a defendant.1 In response to Lemon Drop’s “Motion to Amend Complaint,” Pass

pleaded the following:

       [w]hile it is still the preference of [Pass] to proceed in Court consistent with
       the Cross-Claim of [Pass] against [Woodward], in the event that either the
       pending Motion to Compel Arbitration filed by [Woodward] or the Motion to
       Bifurcate or Sever Cross-Claim filed by [Lemon Drop] is granted then, and



       1
           Lemon Drop attached the Agreement to this pleading.

                                                3
       only then, [Pass] would assert their contractual right to arbitration of any
       claims of [Lemon Drop] as to [Pass].

(Emphasis added.) Thereafter, the circuit court granted Woodward’s “Motion to Compel

Arbitration” as to Pass’s cross-claim against Woodward.

¶7.    On August 27, 2009, after the circuit court granted the “Motion to Amend

Complaint,” Lemon Drop filed its “First Amended Complaint,” which named Pass,

Woodward, and Alfonso as defendants. Multiple claims were asserted against Alfonso which

related to, and arose out of, the transaction.2

¶8.    On September 11, 2009, Pass filed its “Answer; Affirmative Defenses; and Motion

to Compel Arbitration” in response to the “First Amended Complaint.” On September 30,

2009, approximately one month after the “First Amended Complaint” was filed, Alfonso

filed its “Answer, Affirmative Defenses and Motion to Compel Arbitration.” Alfonso

asserted that, because it had acted as Pass’s agent, any claim against Alfonso would be

subject to the Agreement’s arbitration provision.




       2
        For instance, Lemon Drop maintained a claim against Alfonso for failure to furnish
“the statutorily required Seller’s Disclosure Statement.” See Miss. Code Ann. §§ 89-1-501
to -525 (Rev. 1999). According to Lemon Drop, had that disclosure statement been
provided:

       the defects in the Project now alleged by [Pass] to exist within the Project and
       the Property would have been disclosed before the October 3, 2007 closing.
       Had [Lemon Drop] know[n] in advance of these defects or other construction
       “problems” as alleged by [Pass] in its August 2007 complaint against
       Woodward, it would not have closed on the purchase of Unit 209.

Moreover, Lemon Drop asserted that Alfonso “knew about the alleged defects and poor
workmanship in the construction of the Project and Property on and before October 3,
2007[,]” but failed to “fully and completely disclose” all such defects.

                                                  4
¶9.    Following a hearing, the parties were ordered to participate in good-faith mediation.

After mediation proved unsuccessful, the circuit court entered an order which granted the

“Motions to Compel Arbitration” filed by Pass and Alfonso, concluding that as “[t]here has

been no ‘unreasonable delay’ coupled with ‘active participation’ or any factors which have

combined to waive its enforcement[,]” the arbitration provision “is valid and binding upon

the parties.”

¶10.   Thereafter, Lemon Drop filed a petition for permission to file an interlocutory appeal,

which was granted.3

                                           ISSUES

¶11.   This Court will consider:

       (1) Whether Pass waived its right to arbitration.
       (2) Whether Alfonso, acting as Pass’s agent, has a right to compel arbitration.

                                         ANALYSIS

       I.       Whether Pass waived its right to arbitration.

¶12.   This Court has held that the right to compel arbitration can be waived where a party

“actively participates in a lawsuit or takes other action inconsistent with the right to

arbitration[,]” which “substantially invokes the judicial process to the detriment or prejudice

of the other party.” MS Credit Ctr., Inc. v. Horton, 926 So. 2d 167, 179 (Miss. 2006)

(citations omitted).




       3
        This Court has stated that there is “but one procedure for this Court's review of a trial
court's grant or denial of a motion to compel arbitration, and that one procedure shall be via
a direct appeal pursuant to the provisions of Mississippi Rules of Appellate Procedure 3 &
4.” Sawyers v. Herrin-Gear Chevrolet Co., Inc., 26 So. 3d 1026, 1032 (Miss. 2010).

                                               5
¶13.   In the case sub judice, Pass answered the original Complaint, but failed to assert

arbitration as an affirmative defense, and instead demanded a jury trial. Thereafter, Pass

joined in an agreed “Order Setting Trial Date” and engaged in discovery. Although the

Complaint should have attached a copy of the Agreement, the absence thereof did not excuse

Pass’s failure to demand arbitration, since Pass acknowledged that its “closing attorney had

all contracts of units which had closed in storage.” See Miss. R. Civ. P. 10(d). Two-

hundred-and-fifty-two (252) days after the Complaint was filed, Pass attempted to invoke a

contingent affirmative defense of mandatory arbitration, dependent upon further rulings of

a court, which is inconsistent with claiming an absolute right to arbitrate. See supra ¶ 6.

Thus, Pass’s participation in, and invocation of, the judicial process vis-a-vis arbitration was

inconsistent with timely invocation of the arbitration process. This Court has held that:

       when a party, with full knowledge of the existence of an arbitration clause in
       the contract which is the subject matter of the litigation, makes a conscious
       decision to proceed with responding to the lawsuit, demanding a jury trial, and
       invoking discovery only to thereafter invoke the arbitration clause, that party
       does so at its own peril . . . .

In re Tyco Int’l (US) Inc., 917 So. 2d 773, 780 (Miss. 2005). Accordingly, under the facts

presented, Pass waived its right to compel arbitration.

       II.    Whether Alfonso, acting as Pass’s agent, has a right to compel
              arbitration.

¶14.   Lemon Drop first argues that Alfonso has no right to compel arbitration as a

nonsignatory. But under the Agreement, Alfonso is Pass’s express agent. See supra ¶ 2

(Alfonso “represent[s] the SELLER and IS NOT a Buyer’s agent . . . .”). “An express agent

is one who is ‘in fact authorized by the principal to act on their behalf.’” McFarland v.



                                               6
Entergy Miss., Inc., 919 So. 2d 894, 902 (Miss. 2005) (citation omitted). Consistent with

Mississippi law and the law of other states, Alfonso, as Pass’s agent, had the right to compel

arbitration based on the Agreement between Pass and Lemon Drop.4 See Garcia v. Huerta,

340 S.W.3d 864, 869 (Tex. App. 2011) (“[t]he scope of an arbitration agreement may be

extended to claims against agents of the principal when all the agents’ allegedly wrongful

acts relate to their behavior as agents of the principal signatory company, and those acts were

within the scope of the claims covered by the arbitration provisions for which the principal

would be liable.”) (citation omitted); Kiskadee Commc’ns (Bermuda), Ltd. v. Father, 2011

WL 1044241, at *5 (N.D. Cal. March 22, 2011) (“agents of a signatory can compel the other

signatory to arbitrate so long as (1) the wrongful acts of the agents for which they are sued

relate to their behavior as agents or in their capacities as agents . . . and (2) the claims against

the agents arise out of or relate to the contract containing the arbitration clause . . . .”)

(citations omitted); Sawyers, 26 So. 3d at 1038 (quoting B.C. Rogers Poultry, Inc. v.

Wedgeworth, 911 So. 2d 483, 491-92 (Miss. 2005)) (“[a] non-signatory should have standing

to compel arbitration where the non-signatory has a close legal relationship, such as, alter

ego, parent/subsidiary, or agency relationship, with a signatory to the agreement.”); Amisil

Holdings Ltd. v. Clarium Capital-Mgmt., 622 F. Supp. 2d 825, 832 (N.D. Cal. 2007);

Arnold v. Arnold Corp., 920 F.2d 1269, 1282 (6th Cir. 1990).




       4
         The separate opinion agrees with this proposition. (Sep. Op. at ¶ 21) (“I agree that
Alfonso does have the right, as an express agent of Pass, to compel Lemon Drop into
arbitration based on the agreement between Pass and Lemon Drop.”).

                                                 7
¶15.   Lemon Drop alternatively argues that, even if Alfonso had the right to compel

arbitration, Pass waived that right. But this Court previously has rejected the proposition

“that one defendant may waive [a] defense on behalf of all defendants.” Am. Family Life

Assurance of Columbus v. Ellison, 4 So. 3d 1049, 1052 (Miss. 2009). In Ellison, the

plaintiff filed a complaint against AFLAC and two of its agents, in their individual and

corporate capacities, for breach of the duty of good faith and fair dealing. See id. at 1050.

In its answer, AFLAC “asserted improper venue as one of its affirmative defenses.” Id. The

two agents filed a separate answer, but “failed to raise the defense of improper venue and,

thus, waived it.” Id. at 1050-51. Yet this Court recognized that the defense of improper

venue was a personal defense that did not belong to one defendant exclusively, such that the

agents’ waiver did not waive the defense for AFLAC. See id. at 1051-52.

¶16.   The same logic is controlling in this case. Pass’s waiver is not imputed to Alfonso.

We previously have stated that arbitration pertains to forum. See Covenant Health & Rehab.

of Picayune, LP v. Estate of Moulds, 14 So. 3d 695, 697 (Miss. 2009). Moreover,

arbitration is in the nature of an affirmative defense. See Miss. R. Civ. P. 8(c). As arbitration

is a forum-related defense (i.e., an appropriate venue), emanating from arbitration law and

provided for contractually in this case, a demand to arbitrate must be timely raised. The

“Motion to Compel Arbitration” filed by Alfonso is akin to the Rule 12(b)(3) motion to

transfer venue at issue in Ellison.5 See Ellison, 4 So. 3d at 1050 (“the question presented is


       5
        In critiquing this Court’s analysis as “overly simplistic[,]” the separate opinion
contends that “[a]rbitration is a matter of contractual agreement, while venue is not.” (Sep.
Op. at ¶ 27). Titan Indemnity Company v. Hood, 895 So. 2d 138 (Miss. 2004), dispels that
notion. There, this Court held a forum-selection clause that provided for “exclusive personal

                                               8
whether the trial court abused its discretion when it denied the defendant’s motion to transfer

venue.”). Stated succinctly, both a motion to compel arbitration and a motion to transfer

venue challenge the forum where the dispute should be resolved. Furthermore, a motion to

compel arbitration is no less personal than a motion to transfer venue. The decision to

exercise the right to arbitrate, vel non, is often made for strategic reasons consistent with the

client’s best interests (e.g., familiarity with local courts; lack of discovery, without

permission, in arbitration; the reputation of client and counsel in the community; cost

considerations; preference for a jury trial as opposed to a decision rendered by arbitrator(s);

etc.). Such strategy considerations undeniably are personal and may differ as between the

principal and agent. In Ellison, AFLAC was not bound by its agent’s decisions, strategic or

otherwise,6 resulting in the agents’ waiver of the venue defense. See id. at 1049, 1052.

Therefore, Pass’s waiver is not imputed to Alfonso.7



jurisdiction and venue . . . in Bexar County, Texas” to be “binding and enforceable.” Id. at
146, 151 (emphasis added). See also Long Beach Auto Auction, Inc. v. United Sec.
Alliance, Inc., 936 So. 2d 351, 355 (Miss. 2006) (“[f]orum selection clauses are
‘presumptively valid and enforceable’ . . . .”) (citation omitted).
       6
        By analogy, had the statute of limitations been at issue and not raised by the
principal, we would not impute that waiver to the subsequently sued agent, denying him the
opportunity to bring forth such a defense as to the claim(s) against him.
       7
         The separate opinion’s reliance upon Aladdin Construction Company v. John
Hancock Life Insurance Company, 914 So. 2d 169, 175 (Miss. 2010), for maintaining that
Pass’s waiver of its right to invoke arbitration precludes Alfonso from “assert[ing] a separate
right to arbitration for actions taken solely as the agent of Pass” because Alfonso “stepp[ed]
into the shoes of Pass[,]” is misplaced, as Aladdin is plainly distinguishable. (Sep. Op. at
¶ 26). Aladdin Construction did not involve the contractual right to arbitrate or any waiver
thereof. See Aladdin Construction, 914 So. 2d at 169. Rather, Aladdin Construction dealt
only with the application of general agency-law principles in the context of a construction
contract. See id.

                                               9
¶17.   Although this is a matter of first impression for this Court, recent decisions in other

states support the same conclusion. The only courts faced with this identical question have

enforced arbitration agreements pleaded by nonsignatory agents for alleged wrongful acts

related to their behavior as agents, holding that the principal’s waiver of its right to arbitrate

did not operate as a waiver of the agent’s right to arbitrate under the same agreement. See

Garcia, 340 S.W.3d at 869-70; Kiskadee Commc’ns, 2011 WL 1044241, at *6. In Garcia,

the plaintiffs “asserted that [the principal’s] express waiver . . . must be imputed to Garcia

because he acted as [a nonsignatory] agent of [the principal], and his right to arbitration was

therefore derivative of [the principal].” Garcia, 340 S.W.3d at 869-70. But the Texas

appellate court rejected that assertion, determining that “[t]he [plaintiffs] cite no authority for

this proposition, and we cannot agree that one party’s waiver of the right to arbitration can

be imputed to another.” Id. at 870 (emphasis added). See also Kiskadee Commc’ns, 2011

WL 1044241, at *6 (“[p]laintiff reasons that [defendant-agents] should be bound by [the

principal’s] alleged waiver of the arbitration clause because ‘[j]ust as acts of an agent within

the scope of the agent’s powers bind his principal as a matter of law, acts of the principal are

equally binding on the agent.’ Plaintiff, however, does not cite any legal authority for this

proposition. On the contrary, ‘[a] principal cannot bind its agent.’ Accordingly, [the

principal’s] alleged waiver of the arbitration clause could not bind the [defendant-agents].”)

(citation omitted) (emphasis added).          Like the plaintiffs in Garcia and Kiskadee




                                                10
Communications, Lemon Drop has failed to cite any legal authority to support the contention

that Pass’s waiver should bind Alfonso.8

¶18.   Given the presumption against the waiver of arbitration, and Alfonso’s prompt

“Motion to Compel Arbitration” after Lemon Drop filed its “First Amended Complaint,”

there can be no dispute that Alfonso timely and properly asserted its arbitration rights. See

Horton, 926 So. 2d at 179-80.

                                       CONCLUSION

¶19.   While Pass waived its right to compel arbitration, that waiver is not imputed to its

agent, Alfonso. As there is no evidence of waiver by Alfonso, it should be entitled to

proceed in arbitration. Therefore, as to Alfonso, the order of the Circuit Court of Harrison

County granting arbitration is affirmed. But regarding Pass, the order of the Circuit Court

of Harrison County granting arbitration is reversed and remanded for further proceedings

consistent with this opinion.

¶20.   AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

     WALLER, C.J., CARLSON AND DICKINSON, P.JJ., LAMAR, CHANDLER
AND PIERCE, JJ., CONCUR. KING, J., CONCURS IN PART AND DISSENTS IN
PART WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, J.

       KING, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:

¶21.   I concur with the Majority’s result that Pass waived its contractual right to compel

arbitration. However, I dissent from the Majority’s holding that Pass’s waiver of arbitration

does not operate as a waiver of its agent’s right to arbitrate. I agree that Alfonso does have




       8
           Nor does the separate opinion.

                                             11
the right, as an express agent of Pass, to compel Lemon Drop into arbitration based on the

agreement between Pass and Lemon Drop. Sawyers v. Herrin-Gear Chevrolet Co., Inc., 26

So. 3d 1026, 1037 (¶32) (Miss. 2010) (citations omitted). Even so, in recognition of the

application of agency principles, I respectfully dissent to the Majority’s conclusion that

Pass’s waiver of arbitration is not imputed to Alfonso.

¶22.   The Majority has held that American Family Life Assurance of Columbus v. Ellison,

4 So. 3d 1049, 1052 (¶¶11-13) (Miss. 2009), is applicable to the instant case, and a particular

defendant cannot waive a defense on behalf of all defendants. I do not find Ellison

applicable. In Ellison, Ellison filed a complaint against AFLAC and two agents, in their

individual and corporate capacities, for a breach of duty of good faith and fair dealing. Id.

at 1050 (¶2). AFLAC filed its answer and asserted improper venue as one of its affirmative

defenses. The two agents filed a separate answer, but “failed to raise the defense of improper

venue and, thus, waived it.” Id. at 1051 (¶11).

¶23.   The instant case is distinguishable from Ellison. The complaint does not specify that

Alfonso is being sued in its individual capacity, and if the claims were against Alfonso in its

individual capacity, the arbitration agreement would not apply. “A third party who is a non-

signatory to a contract should not be able to enforce an arbitration agreement . . . where there

is no alter ego, parent/subsidiary, agency, or other form of close legal relationship alleged

. . . .” Sawyers, 26 So. 3d at 1039 (¶32) (citation omitted).

¶24.   In Ellison, this Court recognized that the defense of improper venue was a personal

defense that did not belong to one defendant exclusively. Id. at 1051 (¶11). Thus, this Court

held that the agents’ waiver of venue did not waive the defense for AFLAC. Id. The

                                              12
Majority applies the holding from Ellison and states that “a motion to compel arbitration is

no less personal than a motion to transfer venue.” (Maj. Op. at ¶16). In seeking to support

its position with Ellison, the Majority fails to realize that, under the facts of Ellison, any

other holding would be completely contrary to agency law. While it is true that an agent may

bind his principal, that does not apply where the principal has clearly, and in advance,

adopted a contrary position. Northlake Dev. L.L.C. v. BankPlus, 60 So. 3d 792, 796 (¶13)

(Miss. 2011).

¶25.       The right to arbitrate is purely contractual. Qualcomm Inc. v. American Wireless

License Group, LLC, 980 So. 2d 261 (Miss. 2007). Pass’s contractual right to arbitration

was extended to Alfonso, only as an agent of Pass. Accordingly, Alfonso’s right to

arbitration is not a personal defense and should be governed according to the principles of

agency.

¶26.   “[A]n agent is one who stands in the shoes of his principal; he is his principal's alter

ego . . .” Aladdin Constr. Co., Inc. v. John Hancock Life Ins. Co., 914 So. 2d 169, 175

(¶10) (Miss. 2005) (citation omitted). Pass waived its right to invoke arbitration. Thus,

Alfonso, stepping into the shoes of Pass, had no right to assert a separate right to arbitration

for actions taken solely as the agent of Pass, where Pass had chosen to waive that right.

¶27.   The Majority seems to suggest that a motion to compel arbitration and a motion to

transfer venue are so similar that they must be treated the same. That view is overly

simplistic. Arbitration is a matter of contractual agreement, while venue is not.9 Venue


       9
        In an effort to camouflage its overly simplistic analysis, the Majority takes out of
context my view of venue. (Maj. Op. at n.5). If the Majority wishes to quote, it should do

                                              13
refers solely to the forum in which the dispute is to be resolved. Blackledge v. Scott, 530 So.

2d 1363, 1365 (Miss. 1988). By way of example; the question of whether a dispute is one

which is properly tried in the Circuit Court of Panola County rather than the Circuit Court

of Harrison County is determined by statute. See Miss. Code Ann.§ 11-1-3 (Rev. 2004).

However, no matter where the proper venue lies, the process is the same. That process

includes the application of the Rules of Civil Procedure, the application of the Rules of

Evidence, the right to have matters of fact determined by a jury which is representative of

the community, the right to have questions of law resolved by a judge, and, perhaps most

important, the right to appeal any adverse decision. Arbitration not only changes the forum

in which the dispute is to be resolved, it also changes these and other rights.

¶28.   For the aforementioned reasons, I dissent to the Majority’s conclusion that Pass’s

waiver of arbitration is not imputed to Alfonso.10 I would hold that Pass waived the right for

both itself and its agent, Alfonso.



an appropriate quote which places the statement in context. Such a quote would be:

       Arbitration is a matter of contractual agreement, while venue is not. Venue
       refers solely to the forum in which the dispute is to be resolved. Blackledge
       v. Scott, 530 So. 2d 1363, 1365 (Miss. 1988). By way of example; the
       question of whether a dispute is one which is properly tried in the Circuit
       Court of Panola County rather than the Circuit Court of Harrison County is
       determined by statute. See Miss. Code Ann.§ 11-1-3 (Rev. 2004).

       While venue may be subject of a contractual agreement, contrary to the suggestion
of the Majority, venue is generally not a matter of contract.
       10
         The Majority notes this issue to be a matter of first impression in this State, and then
states the lack of authority to support the separate opinion. (Maj. Op. at n.8). Any reader
can note that the only authorities which the Majority cites are nonbinding decisions from
other jurisdictions. These decisions are doubtlessly just as wrong.

                                               14
KITCHENS, J., JOINS THIS OPINION.




                           15
