second prong test in Mississippi

2014The second prong of the test for whether arbitration should be enforced is to determine “whether legal constraints external to the parties’ agreement foreclosed arbitration of those claims.” Blakeney, 950 So.2d at 173 (citing Taylor, 826 So.2d at 713 ).

2011The second prong of the inquiry is “whether legal constraints external to the parties’ agreement foreclosed arbitration of those claims.” Id. at 713 (¶ 10) (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626 , 105 S.Ct. 3346 , 87 L.Ed.2d 444 , (1985)). ¶ 10.

2008In analyzing the second prong of the test, for prejudice to the defendant, a reviewing court must determine whether there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Mohr v. State, 584 So.2d 426, 430 (Miss.1991); Strickland, 466 U.S. 668, 694 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). ¶ 16.

2003In analyzing the second prong of the test, for prejudice to the defendant, a reviewing court must determine whether there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Mohr v. State, 584 So. 2d 426, 430 (Miss. 1991); Strickland, 466 U.S. 668, 694 (1984). ¶16.

2011To clarify the Spicer test, Brown provided, “to meet the second prong of the test, we hold that it must be clear beyond a reasonable doubt that, absent the prosecutor’s inappropriate comments, the jury would have found the defendant guilty.” Brown, 986 So.2d at 276 (emphasis original). ¶ 18.

2010“Once the two threshold questions are satisfied, ... for a finding of reversible error, the court must determine (1) whether the remarks were improper, and (2) if so, whether the remarks prejudi-cially affected the accused’s rights.” Id. at (¶ 15) (citation and internal quotations omitted). “[T]o meet the second prong of the test, ... it must be clear beyond a reasonable doubt that, absent the prosecutor’s inappropriate comments, the jury would have found the defendant guilty.” See id. at (¶ 16) (stating that “this amounts to a harmless-error analysis, and [it] is the analysis to be used for t

2001Jones, 678 So.2d at 710 . ¶ 10.

1999Jones v. State, 678 So.2d 707, 710 (Miss. 1996) (citations omitted). ¶ 124.

2009Wright, 797 So.2d at 1001 (¶ 31). ¶ 27.

2007Wright, 797 So.2d at 1001 (¶ 31). ¶ 23.

2009J.C.N.F., 996 So.2d at 769 (¶ 20) (citing Holifield, 443 So.2d at 877 ).

2009J.C.N.F., 996 So.2d at 769 (¶ 20) (citing Holifield, 443 So.2d at 877 ).

2007Dotts v. Pat Harrison Waterway Dist, 933 So.2d 322, 327 (¶ 15) (Miss.Ct.App.2006) (citing Elder v. United States, 312 F.3d 1172, 1176 (10th Cir.2002)).

2007Dotts, 933 So.2d at 327 (¶ 15) (citing Berkovitz v. United States, 486 U.S. 531, 536 , 108 S.Ct. 1954 , 100 L.Ed.2d 531 (1988) and Elder v. United States, 312 F.3d 1172, 1176 (10th Cir.2002)).

2007As for the second prong of the test, the existence of legal constraints external to the parties' agreement, foreclosing arbitration of the claim, even if the claim was found to be within the arbitration provision in question, "[t]he FAA mandates that arbitration agreements shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." Rice, 904 So.2d at 1055 (internal quotes omitted).

2005As for the second prong of the test, the existence of legal constraints external to the parties’ agreement, foreclosing arbitration of the claim, even if the claim was found to be within the arbitration provision in question, “[t]he FAA mandates that arbitration agreements shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” Rice, 904 So. 2d at 1055 (internal quotes omitted).

2002This Court in Rogers v. Pleasant, 729 So.2d 192, 194 (Miss.1998), found that Littie Pleasant satisfied the second prong of the test because she was described as strong willed, she knew the extent and worth of her assets, she controlled her money and participated in investment decisions.

2000This Court in Rogers v. Pleasant, 729 So.2d 192, 194 (Miss. 1999), found that Littie Pleasant satisfied the second prong of the test because she was described as strong willed, she knew the extent and worth of her assets, she controlled her money and participated in investment decisions.

2001In short, I think that this situation flunks the first rather than the second prong of the test reiterated in Banks v. State, 725 So.2d 711, 715 (Miss.1997).

2000In short, I think that this situation flunks the first rather than the second prong of the test reiterated in Banks v. State, 725 So. 2d 711, 715 (Miss. 1997).

1987In Alexander v. State, 503 So.2d 235 (Miss. 1987), this Court stated: In order to meet the second prong of the test — prejudice to the defense — the defendant must show "that there is a reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different." Lambert v. State, 462 So.2d 308, 316-17 (Miss. 1984).

1987In order to meet the second prong of the test — prejudice to the defense — the defendant must show "that there is a reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different." Lambert v. State, 462 So.2d 308, 316-17 (Miss. 1984).

2008In analyzing the second prong of the test, for prejudice to the defendant, a reviewing court must determine whether there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Mohr v. State, 584 So.2d 426, 430 (Miss.1991); Strickland, 466 U.S. 668, 694 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). ¶ 16.

2008In analyzing the second prong of the test, for prejudice to the defendant, a reviewing court must determine whether there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Mohr v. State, 584 So.2d 426, 430 (Miss.1991); Strickland, 466 U.S. 668, 694 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). ¶ 16.

2014The second prong of the test for whether arbitration should be enforced is to determine “whether legal constraints external to the parties’ agreement foreclosed arbitration of those claims.” Blakeney, 950 So.2d at 173 (citing Taylor, 826 So.2d at 713 ).

2011The second prong of the test for whether arbitration should be enforced is to determine “whether legal constraints external to the parties’ agreement foreclosed arbitration of those claims.” Blakeney, 950 So. 2d at 173 (citing Taylor, 826 So. 2d at 713 ).

2007Dotts v. Pat Harrison Waterway Dist, 933 So.2d 322, 327 (¶ 15) (Miss.Ct.App.2006) (citing Elder v. United States, 312 F.3d 1172, 1176 (10th Cir.2002)).

2007Dotts, 933 So.2d at 327 (¶ 15) (citing Berkovitz v. United States, 486 U.S. 531, 536 , 108 S.Ct. 1954 , 100 L.Ed.2d 531 (1988) and Elder v. United States, 312 F.3d 1172, 1176 (10th Cir.2002)).

2004However, Titan quotes the requirement for "selective enforcement" while omitting the remainder of the second prong of the test: "`[t]he decision to prosecute this defendant was based upon impermissible grounds such as race, religion or the exercise of constitutional rights. '" (emphasis added) ( citing Rybachek v. United States , No. 91-35160, 1993 WL 385454 , at 4 , 8 F.3d 29 (9th Cir. Sept.29, 1993) (an unpublished opinion)). ¶ 25.

2003However, Titan quotes the requirement for “selective enforcement” while omitting the remainder of the second prong of the test: “‘[t]he decision to prosecute this defendant was based upon impermissible grounds such as race, religion or the exercise of constitutional rights.’” (emphasis added) ( iting Rybachek c v. United States, No. 91-35160, 1993 WL 385454, at 4 (9th Cir. Sept. 29, 1993) (an 11 unpublished opinion)). ¶25.

2022“Any change in custody must be predicated on the conduct of the custodial parent that poses a danger to the mental or emotional health of the child.” Id. (quoting Williams v. Willis, 49 So. 3d 122, 124 (¶7) (Miss.

2022Harris, 873 So. 2d at 985 (¶40).

2021The second prong asks “whether legal constraints external to the parties’ agreement foreclosed arbitration . . . .” Rogers-Dabbs Chevrolet-Hummer Inc. v. Blakeney, 950 So. 2d 170, 173 (¶12) (Miss. 2007). “[S]tate contract defenses may invalidate the agreement to arbitrate as they would any other contractual provision.” Smith, 153 So. 3d at 606 (¶11).

2016“The second prong of the test is in accordance with [Rule] 602 requiring that a witness who testifies about a certain matter have personal knowledge of that matter.” Id.; see also Walls v. State, 928 So. 2d 922, 926 (¶10) (Miss.

2016“The second prong of the test is in accordance with [Rule] 602 requiring that a witness who testifies about a certain matter have personal knowledge of that matter.” Id.; see also Walls v. State, 928 So.2d 922, 926 (¶ 10) (Miss.Ct.App.2006). ¶92.

2014In this regard, the instant case is analogous to Fang v. United States, 140 F.3d 1238, 1241-42 (9th Cir. 1998), where the Ninth Circuit Court of Appeals held that the discretionary-function exception of the FTCA did not apply to a claim based on the negligent provision of medical treatment by employees of the National Park Service.

2014In this regard, the instant case is analogous to Fang v. United States, 140 F.3d 1238, 1241-42 (9th Cir.1998), where the Ninth Circuit Court of Appeals held that the discretionary-function exception of the FTCA did not apply to a claim based on the negligent provision of medical treatment by employees of the National Park Service.

2011Based on this language, a two-pronged inquiry is conducted by this Court. “ ‘The first prong has two considerations: (1) whether there is a valid arbitration agreement and (2) whether the parties’ dispute is within the scope of the arbitration agreement.’ The second prong of the inquiry is ‘whether legal constraints external to the parties’ agreement foreclosed arbitration of those claims.’ ” Braswell, 57 So.3d at 641 (¶ 9) (quoting East Ford, Inc. v. Taylor, 826 So.2d 709, 713 (¶¶ 9-10) (Miss.2002)).