author: CARLSON, Justice, RANDOLPH, Justice, GRAVES, Justice, DICKINSON, Justice,

text:
    MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. Former Judge U.U.
    No. 2002-JP-01912-SCT.
    Supreme Court of Mississippi.
    June 24, 2004.

      Luther T. Brantley, III, attorney for appellant.
    Trent Walker, Edward Blackmon, Jr., Canton, attorneys for appellee.
   CARLSON, Justice,

for the Court.

¶ 1. The Mississippi Commission on Judicial Performance (Commission) filed a Formal Complaint charging former Chancery Court Judge U.U. with judicial misconduct constituting willful misconduct in office, willful and persistent failure to perform judicial duties, and conduct prejudicial to the administration of justice which brings the judicial office into disrepute, thus causing such alleged conduct to be actionable pursuant to the provisions of Article 6, Section 177A of the Mississippi Constitution. The judge responded and a hearing on the complaint was held before a three-member Committee. Subsequently, the Committee issued Findings of Fact and Conclusions of Law recommending that this Court publicly reprimand the judge, impose a fine in the amount of $500.00, and tax costs of the proceedings in the amount of $953.95. Specifically, the Committee found that the judge violated Canons 1, 2(A), and 3 of the Mississippi Code of Judicial Conduct, thus causing such conduct to be actionable under Article 6, § 177A of the Mississippi Constitution. In due course, the Commission voted to adopt the findings of the Committee. The Commission filed with this Court the Commission record and its findings and recommendations. Miss. Const, art. 6, § 177A; Miss. Comm’n on Jud. Perf. R. 10; M.R.A.P. 16(d).

FACTS

¶ 2. Within approximately a one-year period, the Commission received seven citizens’ complaints concerning delays by the judge in rendering opinions and orders in six different cases. The first complaint was received in February of 2000. Two more complaints were received in May, one in June, and two in August. The Commission also received one complaint in February, 2001. The complaints involved several types of cases and constituted the basis of the complaints against the judge.

¶ 3. The case listed in Count One of the Complaint was an irreconcilable differences divorce case. The judge conducted a hearing on August 29, 2000, after which the divorce was granted, but the judge took the contested issues of child support, property rights, alimony, and financial issues under advisement. The citizen’s complaint was received on February 27, 2001, and a final order was entered on November 20, 2001. The length of time between the hearing and final order was approximately fifteen months.

¶ 4. The case listed in Count Two of the complaint concerned the administration of a decedent’s estate. After conducting a hearing on a petition to close the estate on November 10, 1999, the judge did not enter a final judgment in this case until October 6, 2000; almost eleven months later. The citizen’s complaint was received by the Commission on May 30, 2000.

¶ 5. The case listed in Count Three of the Complaint involved an action to set aside a deed. Trial was held on December 13, 1999, the judge took the case under advisement, and a final order was not entered until December 21, 2000. Over twelve months passed between trial and final judgment, and the Commission received the citizen’s complaint on August 14, 2000.

¶ 6. The case listed in Count Four of the Complaint was an estate matter. After removing the executor of the estate on November 16, 1999, the judge conducted a hearing on a petition to appoint a new executor, one week later, on November 23, 1999. After that, a citizen’s complaint was received by the Commission on June 21, 2000. A final order appointing a new executor was entered on August 11, 2000. The length of time from the removal of the executor until the appointment of a new executor was approximately nine months.

¶ 7. The case listed in Count Five was a suit to confirm tax title. Both parties filed motions for summary judgment and presented arguments, which the judge heard on April 5, 1999, at which time the judge took these motions under advisement for a subsequent ruling. A citizen’s complaint was received by the Commission on February 17, 2000. An order denying both motions for summary judgment was entered by the judge on March 31, 2000, approximately twelve months after the motions were taken under advisement. The parties were apparently unaware of the fact that the order had been entered because the complaint was refiled with the Commission on August 4, 2000, after the order had been entered.

¶ 8. The case listed in Count Six and was an uncontested petition for adoption of a child by the maternal grandparents. A hearing was held on this matter on January 10, 2000, and a citizen’s complaint was received by the Commission on May 22, 2000. A final Judgment of Adoption was entered on June 27, 2000. At the Committee hearing, the judge testified that the final adoption order prepared and submitted by the petitioners’ counsel had numerous defects which had to be corrected by the lawyer before entering it as the order of the court. The judge further testified that the attorney failed to submit an appropriate amended order until the day the citizen’s complaint was received, at which time the judge contacted the attorney about the case. The judge corrected the order the attorney supplied that day and entered it as the final judgment. Approximately five and one-half months elapsed between the hearing and entry of judgment.

DISCUSSION

¶ 9. We review judicial disciplinary matters under a de novo standard, though the findings of fact and recommendations of the Commission are carefully reviewed. In a judicial disciplinary proceeding, this Court must conduct an independent inquiry and make its own final determination of the appropriate sanction, although the Court accords careful consideration to the findings of fact and recommendations of the Commission on Judicial Performance or its committee. Miss. Comm’n on Jud. Perform, v. Hartzog, 822 So.2d 941, 943 (Miss.2002) (citing In re Anderson, 412 So.2d 743, 746 (Miss.1982)). See also Miss. Comm’n on Jud. Perform, v. Spencer, 725 So.2d 171, 174 ¶ 6 (Miss.1998). This Court has the power to impose sanctions when based upon clear and convincing evidence. Miss. Comm’n on Jud. Perform, v. Wells, 794 So.2d 1030, 1032 ¶ 5 (Miss.2001).

I. WHETHER THE JUDGE BREACHED THE DUTIES AS A CHANCERY JUDGE AS IMPOSED BY MISS. CONST. ART. 6, § 177A AND THE MISSISSIPPI CODE OF JUDICIAL CONDUCT.

¶ 10. After hearing the evidence, the Commission found that the judge’s conduct was actionable under Miss. Const, art. 6, § 177A, and was in violation of Canons 1, 2(A), and 3(A)(4) & (5) of the Mississippi Code of Judicial Conduct by the repeated failures in entering orders and opinions in a timely fashion. While the judge’s conduct was alleged to be actionable under subsections (b), (c), and (e) of art. 6, § 177A of the Mississippi Constitution, neither the Committee nor the Commission made any findings with respect to subsection (c): willful and persistent failure to perform duties of office. The Commission did find, however, that the judge’s conduct was actionable under subsections (b) and (e). Whether the judge’s conduct violated the cited canons thus bringing such conduct under the constitutional provisions is the focus of our discussion set out below.

A. ARTICLE 6, § 177A, MISSISSIPPI CONSTITUTION

¶ 11. Article 6, Section 177A of the Mississippi Constitution provides:

On recommendation of the commission on judicial performance, the supreme court may remove from office, suspend, fine or publicly censure or reprimand any justice or judge of this state for: ... (b) willful misconduct in office; (c) willful and persistent failure to perform his duties; ... or (e) conduct prejudicial to the administration of justice which brings the judicial office into disrepute. ...

Miss. Const, art. 6, § 177A. This Court has defined the phrase “willful misconduct in office” as follows:

Willful misconduct in office is the improper or wrongful use of power of his office by a judge acting intentionally or with gross unconcern for his conduct and generally in bad faith. It involves more than an error of judgment or a mere lack of diligence. Necessarily, the term would encompass conduct involving moral turpitude, dishonesty, or corruption, and also any knowing misuse of the office, whatever the motive. However, these elements are not necessary to a finding of bad faith. A specific intent to use the powers of the judicial office to accomplish a purpose which the judge knew or should have known was beyond the legitimate exercise of his authority constitutes bad faith ...

Miss. Comm’n on Jud. Perform,, v. Franklin, 704 So.2d 89, 92 ¶ 9 (Miss.1997) (quoting In re Quick, 553 So.2d 522, 524-25 (Miss.1989)). See also Miss. Comm’n on Jud. Perform. v. Gunn, 614 So.2d 387, 390 (Miss.1993); In re Anderson, 412 So.2d at 745. This Court has found that systematic patterns of misconduct can amount to willful misconduct in office. See, e.g., Miss. Comm’n on Jud. Perform, v. Willard, 788 So.2d 736, 742 ¶ 14 (Miss.2001) (ex parte communications); Spencer, 725 So.2d at 177-78 (offensive comments). This Court has found that “willful misconduct in office” also amounts to “conduct prejudicial to the administration of justice which brings the judicial office into disrepute,” but we have expanded the definition of the latter to include cases where a judge has behaved with “negligence or ignorance not amounting to bad faith.” Gunn, 614 So.2d at 390 (citing In re (Lloyd) Anderson, 412 So.2d 743, 745 (Miss.1982); and In re (William) Anderson, 451 So.2d 232, 234 (Miss.1984)).

¶ 12. The Commission argues that the judge’s pattern of not entering orders in a timely fashion and failure to exercise administrative control over the docket brought the integrity of the judiciary in question. The judge argues that this section of our Constitution does not proscribe activities by a judge, but rather establishes the Commission and sets its boundaries. The judge argues that there is no evidence of specific intent in the record to prove willful misconduct. Finally, the judge contends that the definition of “conduct prejudicial to the administration of justice” is too vague to enforce and the facts developed at the hearing, specifically the size of the judge’s caseload and backlog of cases inherited when the judge assumed office are typical of judges around this state and do not warrant public reprimand. In mitigation, the judge cites regularly scheduled time for administrative duties as a corrective measure the judge implemented the following year to address the problem.

¶ 13. We find that the facts do not support a conclusion that the judge has engaged in willful misconduct. In two cases, the judge entered an order finally adjudicating the delinquent cases within ten days of receiving a letter of notice of a citizen’s complaint from the Commission. There is also evidence in the record that the judge undertook to remedy the administrative situation once it became clear that it was a recurring problem. Attached to the judge’s reply to the Complaint was an affidavit of a court reporter concerning the referenced case in Count One, which affidavit stated that the judge had requested the transcript in December of 2000, but the court reporter was unable to provide the transcript until July 16, 2001. Finally, in two other cases, the record reveals that the judge awaited an appropriate order from counsel before entering judgment, contributing to the length of the delays.

¶ 14. Aside from the number of complaints and the length of the delays, the Commission has not demonstrated that the judge’s behavior was done willfully or with gross unconcern and generally in bad faith, a prerequisite for finding a violation of this constitutional clause. The Commission’s failure to find the judge’s conduct to be actionable under subsection (c) of Art. 6, § 177A [willful and persistent failure to perform the judge’s duties], is either an inconsistent stance with respect to willfulness, or an oversight. In either case, we find the record does not support a finding of willfulness. The standard for willful misconduct has not been met. Therefore, we disagree with the Commission and find the Commission has failed to prove that the judge’s conduct was actionable under subsection (b) of Article 6, § 177A, of the Mississippi Constitution.

¶ 15. On the other hand, there is sufficient evidence to find that the judge’s conduct was actionable under subsection (e) of Article 6, § 177A: engaging in conduct prejudicial to the administration of justice which brings the judicial office into disrepute. It is clear from the record that the judge did not maintain adequate control of the docket so that the judge could enter orders in a timely fashion. As a trial judge, the chancellor in the case sub judi-ce, by virtue of office, had the sole responsibility and authority to enter the orders. The judge’s negligence created the delays in entering orders and resulted in considerable amounts of time elapsing before judgment was entered in the cases discussed above. Such delays are covered under the scope of subsection (e) and the effect of the delays brought the judicial office into disrepute. The number of complaints and the short length of time in which they were filed further magnify the serious nature of the judge’s misconduct. With respect to the judge’s claim that our Constitution does no more than create the Commission and establish its boundaries, not proscribe any behavior, this Court has held otherwise, finding § 177A gives it the power to impose sanctions. Cf. Miss. Comm’n on Jud. Perf. v. Carr, 786 So.2d 1055, 1058 ¶ 6 (Miss.2001) (“Section 177A of the Mississippi Constitution of 1890 authorizes this Court to sanction judges for ‘willful misconduct’ in office or conduct which is prejudicial to the administration of justice which brings the judicial office into disrepute.”). Therefore, we conclude that the judge’s conduct was actionable under subsection (e) of Article 6, § 177A of the Mississippi Constitution. B. CANON 1, CODE OF JUDICIAL CONDUCT

¶ 16. Canon 1 of the Code of Judicial Conduct reads:

An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should himself observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.

Miss.Code of Jud. Cond. Canon 1. The Commission argues that the judge’s pattern of delay in entering judgments and orders does not promote the public perception of an honorable judiciary. The judge argues that the behavior was not contrary to three of the principles in the rule— independence, honor, and integrity — therefore the judiciary has not been shamed nor has the judge acted with acquiescent callousness toward the judge’s judicial duties.

¶ 17. We disagree with the Commission’s conclusion that the judge has violated Canon 1. While this canon is often used as an expression of the overall thrust of the code, its language emphasizes failures which rise to the level of impugning the independence and honor of the judiciary. When we consider the facts and circumstances peculiar to this particular case as revealed in the record before us, we conclude that the judge’s actions do not involve questions of independence, nor can these actions be characterized as being dishonorable in the sense that the judge was charged with, or found to have committed, a dishonest act. Of course here, there is no inference of a dishonest act committed by the judge. We thus find no Canon 1 violation.

C. CANON 2(A), CODE OF JUDICIAL CONDUCT

¶ 18. Canon 2(A) of the Code of Judicial Conduct states:

A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

Miss.Code of Jud. Cond. Canon 2(A). The commentary to this Canon provides:

Public confidence in the judiciary is eroded by irresponsibility or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. He must expect to be the subject of constant public scrutiny. He must therefore accept restrictions on his conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly....

The Commission argues that the judge’s delays and the evidence of the complaints demonstrate how the judge has not promoted public confidence in the judiciary. The judge argues that impartiality and integrity were not questioned, thus the Commission’s finding that the judge violated Canon 2(A) was groundless.

¶ 19. Again, we disagree with the Commission. The command of Canon 2(A) is patterned closely to that of Canon 1, especially where it calls upon judges to conduct themselves in a manner which promotes and maintains the public’s trust in the judiciary. This is an extension of the call from Canon 1 that a judge maintain and observe a high standard of conduct for the benefit of the judiciary. Stated succinctly, the provisions of Canon 2A address conduct which promotes or fails to promote the integrity and impartiality of the judiciary. While the judge in the case sub judice clearly exhibited a lack of diligence and timeliness in the disposition of the subject cases, the facts as revealed in the record before us do not involve moral turpitude or bias so as to constitute a violation of this specific canon. Therefore, we conclude that the judge has not violated Canon 2(A) of the Code of Judicial Conduct.

D. CANON 3(A)(4) & (5), CODE OF JUDICIAL CONDUCT

¶ 20. Canon 3 of the Code of Judicial Conduct states in pertinent part:

The judicial duties of a judge take precedence over all his other activities. His judicial duties include all the duties of his office prescribed by law. In performance of these duties, the following standards apply:
(A) ...
(4) A judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law, and, except as authorized by law, neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding. A judge, however, may obtain the advice of a disinterested expert on the law applicable to a proceeding before him if he gives notice to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond.
(5) A judge should dispose promptly of the business of the court.

Miss.Code of Jud. Cond. Canon 3(A)(4) & (5). The Commission argues the pattern of delays in this case violated this Canon and both subsections because the right to be heard necessarily involves a right to a prompt, timely disposition of matters and because the delays prove the judge did not dispose promptly of the business of the court. The judge basically concedes that the court’s business was not disposed of in a timely fashion, but the judge argues that Canon 3(A)(4) was not violated because it proscribes ex parte communications.

¶ 21. We are constrained to find no violation of Canon 3(A)(4), but we do find that Canon 3(A)(5) has been violated. Seven citizens’ complaints were received over the approximate span of one year, each concerning lengthy delays between a hearing on a motion and entry of judgment on that motion. However, the commentary to Canon 3(A)(4), when considered with the plain text of that subsection, indicates the conduct forbidden in Canon 3(A)(4) does not cover the misconduct in this case.

¶ 22. In the end, we find in today’s case that the judge violated the clear and concise language of Canon 3(A)(5) [“A judge should dispose promptly of the business of the court”]. Again we read the commentary of the old Code in pari materia with the canon itself. The commentary states in toto:

Prompt disposition of the court’s business requires a judge to devote adequate time to his duties, to be punctual in attending court and expeditious in determining matters under submission, and to insist that court officials, litigants and their lawyers cooperate with him to that end.

Here, the judge was mandated and obligated via this canon to expeditiously dispose of pending cases and to insist that all officials, including lawyers, cooperate to achieve this goal.

¶ 23. However, in so finding, we feel compelled to make these observations. We are concerned about the fact that the record before us reveals absolutely no effort by the parties and/or their attorneys to utilize the available provisions- of M.R.A.P. 15, which rule provides a vehicle by way of mandamus to require a decision from the trial court in situations where, inter alia, a trial judge has taken a civil case under advisement. While the procedural provisions of M.R.A.P. 15 were amended effective, October 17, 2002, after the occurrence of the events discussed in today’s case, even the provisions of M.R.A.P. 15 which were applicable and in existence at the time clearly provided an avenue for relief in the six cases which are the subject of the case sub judice. In fact, in two of the six cases, the complaints against the judge were filed prior to the expiration 'of the six-month period following the judge’s taking the cases under advisement.'. In the remaining four eases, the complaints against the judge were filed 20 days, one month, two months, and four months after the expiration of the six-month period following the judge’s taking the cases under advisement. While again, the facts and circumstances of today’s case, when considered in conjunction with the applicable law, warrant a finding of violations of Canon 3(A)(5) of our Code of Judicial Conduct, and thus actionable pursuant to art. 6, § 177A of our state constitution, we are not about to embark upon a course of approving the utilization of judicial performance complaints against our trial judges in lieu of readily available remedies via mandamus for overdue trial court decisions. Without question, the decision in today’s case is “fact-driven.”

¶ 24. We readily acknowledge the legitimate concerns which Justice Graves very ably conveys in his excellently written dissenting opinion. In fact, we find little disagreement with his dissent, other than the appropriate disposition of today’s case. However, we note our observations made in a recent case:

While there may be concern that the very nature of appellate review results in this Court viewing [the judge’s] actions in the cool light of after-the-fact reflection by way perhaps of second-guessing her judicial actions taken in what she perceived to be an emergency situation, we note that a sitting chancellor presided over the Committee hearing. Additionally when the Commission convened to consider [the judge’s] case, the Commission meeting was presided over by a sitting circuit judge, and there were also present two sitting county court judges, a sitting chancellor and one other sitting circuit judge. A chancellor made the motion to adopt the Committee’s findings of fact, but not to accept the Committee’s recommendation for a public reprimand, but instead to recommend to this Court, inter alia, a 30-day suspension. The chancellor’s motion was unanimously passed by the Commission. While this Court is the ultimate arbiter of Commission complaints against our judges, we afford deference to the Commission’s findings of fact and recommendations when such findings, as here, are supported by clear and convincing evidence; and we also note that in today’s case, our learned trial judge-members on both the Committee and the Commission found [the judge’s] actions to be in violation of our judicial canons and sanctionable. (footnote omitted).

Miss. Comm’n on Jud. Perf. v. Perdue, 853 So.2d 85, 97-98 (Miss.2003).

¶ 25. As in Perdue, we likewise note that in the case sub judice, when the Commission convened to consider the judge’s ease, the Commission meeting was presided over by a circuit judge, and in addition to the lawyer members and lay members of the Commission, there were also present two chancellors, two county court judges, a circuit judge, and a justice court judge, some of whom were serving as alternates. The Commission, on a 6-1 vote, decided to recommend to this Court that the subject judge be publicly reprimanded. While again acknowledging Justice Graves’s concerns as set out in his dissent, the record before us today reveals that when confronted with the compelling evidence of the judge’s conduct in the case sub judice, most, if not all, of the trial judges on the Commission who voted in this case, voted to publicly reprimand the subject judge. Thus, while we are not bound by the Commission’s findings and recommendations, when the Commission’s findings are based on clear and convincing evidence, we afford great deference to the Commission’s findings and recommendations. Miss. Comm’n on Judicial Performance v. Lewis, 801 So.2d 704, 707 (Miss.2001); Miss. Comm’n on Judicial Performance v. Bishop, 761 So.2d 195, 198 (Miss.2000).

¶ 26. Justice Graves correctly states that the appropriate method of addressing late decisions from our trial judges is via mandamus. We simply reiterate here that the decision today is fact-driven, and we remind the trial bar that except in very rare cases, a judicial performance complaint is a highly inappropriate method of addressing perceived inaction on the part of our trial judges.

II. WHETHER A PUBLIC REPRIMAND, $500.00 FINE, AND PAYMENT OF THE COSTS OF THE PROCEEDING IS AN APPROPRIATE SANCTION.

¶ 27. The Commission argues that the judge’s misconduct in these cases was extremely serious. It states that a single instance of delay might have warranted a private reprimand, but the pattern established here warrants a public reprimand. The judge only takes issue with the imposition of a public reprimand. The judge argues that the misconduct does not warrant this sanction, but the judge is silent as to the fíne and imposition of costs.

¶ 28. This Court has established guidelines for determining when a public reprimand is warranted. In Mississippi Commission on Judicial Performance v. Walker, 565 So.2d 1117, 1125 (Miss.1990), this Court articulated those guidelines:

(1) The length and character of the judge’s public service;
(2) Positive contributions made by the judge to the courts and the community;
(3) The lack of judicial precedent on the incident in issue;
(4) Commitment to fairness and innovative procedural form on the part of the judge;
(5) The magnitude of the offense;
(6) The number of persons affected; and
(7) Whether “moral turpitude” was involved.

(citing In re Baker, 535 So.2d 47, 54 (Miss.1988)). The Commission also refers this Court to two opinions from sister jurisdictions concerning sanctions for judicial misconduct, portions of which are worth echoing here:

The purpose of sanctions in cases of judicial discipline is to preserve the integrity and independence of the judiciary and to restore and reaffirm public confidence in the administration of justice. The discipline we impose must be designed to announce publicly our recognition that there has been misconduct; it must be sufficient to deter respondent from again engaging in such conduct; and it must discourage others from engaging in similar conduct in the future. Thus, we discipline a judge not for purposes of vengeance or retribution, but to instruct the public and all judges, ourselves included, of the importance of the function performed by judges in a free society. We discipline a judge to reassure the public that judicial misconduct is neither permitted nor condoned. We discipline a judge to reassure the citizens of .Nebraska that the judiciary of their state is dedicated to the principle that ours is a government of laws and not of men. See, Disciplinary Proceeding Against Buchanan, 100 Wash.2d 396, 669 P.2d 1248 (1983); Matter of Ross, 428 A.2d 858 (Me.1981).

In re Kneifl, 217 Neb. 472, 351 N.W.2d 693, 700 (Neb.1984). “In determining an appropriate discipline in cases of judicial misconduct, our primary concern is to provide sanctions sufficient to restore and maintain the dignity and honor of the judicial office and to protect the public against future excesses. Each case must be judged in light of its own particular circumstances.” In re Hamed, 357 N.W.2d 300, 302-03 (Iowa 1984). The Commission also analogizes judicial discipline to attorney discipline and notes their similarities. See, e.g., Miss. Bar v. Hall, 612 So.2d 1075, 1077-78 (Miss.1992). The similarities are useful in determining an appropriate sanction, but this Court is not bound by the precedents in attorney discipline matters when confronted with judicial discipline.

¶ 29. The Commission submits that there is no specific case law in Mississippi concerning discipline for failing to enter orders in a timely fashion, nor does the Commission point to any other jurisdiction for support of a public reprimand. We can find no similar case in our jurisprudence; therefore, we turn to other jurisdictions for guidance.

¶ 30. ' The Louisiana Supreme Court publicly censured a trial court judge for failing to enter judgments in two cases and for failing to report them taken under advisement as required by statute. In re Tuck, 683 So.2d 1214 (La.1996). Twenty-one months passed between trial and entry of judgment in one case, almost six years passed between trial and entry of judgment in the other. Id. at 1216. The Court utilized a commendable list of six factors to consider when determining whether a trial court judge should be sanctioned for delays in entering judgment. Id. at 1218. Concerning a judge’s reliance upon lawyers for submitting appropriate orders for consideration, the Louisiana Supreme Court stated:

Moreover, because lawyers frequently are the dilatory ones and tend, in explaining to their clients, to blame judges for the delay, it is important for judges in most cases to abide by the time standards guidelines, especially in the trial court where the court’s primary function is finding facts and applying the applicable law, and not one of making weighty pronouncements of law binding throughout the circuit.

Id. The determining factor for imposing the public censure was the failures to report the cases as taken under advisement. Id. at 1219.

¶ 31. On the other hand, the Court of Appeals of New York chose not to impose a public censure or charge with the costs of the appeal a trial court judge whose delays in rendering decisions ranged from seven months to nine years in eight cases pending before him. In re Greenfield, 76 N.Y.2d 293, 558 N.Y.S.2d 881, 557 N.E.2d 1177 (1990). The Court said, “a Judge’s failure to promptly dispose of pending matters generally does not warrant ‘judicial discipline but rather administrative correction’ (quoting In re Alvino, 100 N.J. 92, 494 A.2d 1014, 1016).” In re Greenfield, 558 N.Y.S.2d 881, 557 N.E.2d at 1179. The New York court further stated:

We have concluded that generally these matters can and should be resolved in the administrative setting and that the more severe sanctions available to the Commission should only be deemed appropriate and necessary when the Judge has defied administrative directives or has attempted to subvert the system by, for instance, falsifying, concealing or persistently refusing to file records indicating delays.

Id. at 1179-80. We find these eases represent the spectrum of options available to us in this case and look to them, and others like them, for direction as to any punishment we may impose. See also Russell G. Donaldson, Removal or Discipline of State Judge for Neglect of, or Failure to Perform, Judicial Duties, 87 A.L.R.4th 727, § 8 (2004).

¶ 32. Here the judge served one term as a chancery court judge. The record does not reflect further public service although the judge’s brief addresses this issue. The record likewise does not contain any information concerning positive contributions the judge has made to the community, but the judge again addresses this issue in the brief. The Commission acknowledges that this misconduct does not involve moral turpitude. The evidence of misconduct in the record does not demonstrate a lack of fairness, but it does reveal poor procedural form on behalf of the court. The magnitude of the offense is hard to measure, and the record contains little more than the complaint as evidence in regards to this, but the parties in the cases discussed above were obviously affected as well as other persons incidentally affected by the delays. The fact that several delays prompting complaints occurred within a short amount of time amplifies the magnitude of the misconduct because it demonstrates a recurring pattern of neglect.

¶ 38. The judge’s reliance upon other attorneys to submit adequate orders for entry does not excuse the judge’s misconduct. These facts we treat as mitigating evidence of the judge’s culpability, but we also again note that Canon 3(A)(5) clearly imposed upon the judge the obligation to expeditiously decide pending cases and to insist that lawyers timely submit proposed orders for entry.

¶ 34. The judge argues that public reprimands are not appropriate for judges who have only committed one type of offence. Cf. In re Baker, 535 So.2d at 53 (“A survey of recent Mississippi judicial disciplinary cases (see Appendix) reveals that the sanction of public reprimand is imposed for more than one offense. Only one case, In re William Anderson, involved a public reprimand for only one type of offense. Even in this case, Judge Anderson failed on three occasions to issue writs of garnishment after receiving filing fees to do so. We find no case in which one isolated instance of impropriety warranted public censure.”) (citing In re Anderson, 447 So.2d at 1275) (emphasis in original). Of the cases the Commission cites to support a public reprimand for judges who have failed to perform their duties, both involve multiple offences of different types. See Spencer, 725 So.2d 171 (offensive comments, ex parte communications, failures to sign cases and act on affidavits); In re Quick, 553 So.2d 522 (did not report dispositions of 28 D.U.I. cases or 552 traffic tickets). We have previously concluded that this misconduct was not done willfully. The judge is no longer on the bench. Finally, the remedial steps taken by the judge after the time period covering this misconduct appear to have solved the problem.

¶ 35. However, the harm done to the public perception of the judiciary is tangible and not easily counteracted when justice is delayed. While the judge is no longer on the bench, it is important for the parties to litigation in our courts and those incidentally affected to know that delays between hearings and entry of orders should be avoided so as to restore and maintain confidence in the judiciary.

¶ 36. The record in this case shows that the judge failed to maintain control of the docket and schedule adequate time for writing and issuing opinions and orders. Sanction of this misconduct is appropriate in this case. However, we conclude that the misconduct was not done willfully as evidenced by (1) the quick remedial steps taken by the judge before and after receiving the notices of complaints in two cases, (2) the reliance upon attorneys in two other cases to furnish orders, (3) the delay caused by the production of the transcript in one case, and (4) the remedial steps taken the following year to schedule adequate time for writing and issuing orders. Finding this misconduct, not to be willful, we find that the appropriate sanction is a private reprimand with the costs of this appeal taxed to the judge.

CONCLUSION

¶ 37. Having duly considered the above facts and authorities, we conclude that the judge’s conduct was actionable under Art. 6, § 177A(e) of our Constitution, and viola-tive of Canon 3(A)(5) of our former Code of Judicial Conduct due to the failure as a sitting chancellor to issue opinions and orders in a timely fashion in six cases over the time span of one year. The appropriate sanction for this misconduct is a private reprimand and taxing the judge with the costs of this appeal.

¶ 38. FORMER JUDGE U.U. SHALL BE PRIVATELY REPRIMANDED AND ASSESSED COSTS OF $953.95.

SMITH, C.J., WALLER AND COBB, P JJ., EASLEY AND RANDOLPH, JJ., CONCUR. RANDOLPH, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY SMITH, C.J., COBB, P.J., EASLEY AND CARLSON, JJ. GRAVES, J., DISSENTS WITH SEPARATE WRITTEN OPINION. DICKINSON, J., DISSENTS WITH SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.

RANDOLPH, Justice,

Specially Concurring.

¶ 39. I concur in the majority opinion but write separately to add these comments. Article 6, Section 177A of our state constitution provides in part:

On recommendation of the commission on judicial performance, the supreme court may remove from office, suspend, fine or publicly censure or reprimand any justice or judge of this state for: (a) actual conviction of a felony in a court other than a court of the State of Mississippi; (b) willful misconduct in office; (c) willful and 'persistent failure to perform his duties; (d) habitual intemperance in the use of alcohol or other drugs; or (e) conduct prejudicial to the administration of justice which brings the judicial office into disrepute; and may retire involuntarily any justice or judge for physical or mental disability seriously interfering with the performance of his duties, which disability is or is likely to become of a permanent character.

Miss. Const. Art. 6 § 177A (1890) (emphasis added)

¶ 40. In applying the law, courts typically consider the underlying purpose and policy motivating the enactment of such law. That said, this Court previously stated:

The purpose of sanctions in cases of judicial discipline is to preserve the integrity and independence of the judiciary and to restore and reaffirm public confidence in the administration of justice. The discipline we impose must be designed to announce publicly our recognition that there has been misconduct; it must be sufficient to deter respondent from again engaging in such conduct; and it must discourage others from engaging in similar conduct in the future. Thus, we discipline a judge not for purposes of vengeance or retribution, but to instruct the public and all judges, ourselves included, of the importance of the function performed by judges in a free society. We discipline a judge to reassure the public that judicial misconduct is neither permitted nor condoned. We discipline a judge to reassure the citizens of [Mississippi] that the judiciary of their state is dedicated to the principle that ours is a government of laws and not of men.

Mississippi Comm’n on Judicial Performance v. Guest, 717 So.2d 325, 329 (Miss. 1998) (citations omitted) & (emphasis added).

¶ 41. To my mind, there is no doubt that the authority of the Commission on Judicial Performance includes the ability to investigate and make recommendations regarding any allegation of wrongful conduct committed by a judge while in office. The jurisdiction provided under § 177A is not so strictly limited to divest the Commission’s authority, and that of this Court, at the moment an accused judge ceases to be in office. The fact that a judge has departed office does not render the conduct any less wrongful, less worthy of discipline, or less worthy of public recognition that there has been misconduct.

SMITH, C.J., COBB, P.J., EASLEY AND CARLSON, JJ., JOIN THIS OPINION.

GRAVES, Justice,

Dissenting.

¶ 42. I am compelled to write separately in order to address a deviation from our Rules of Appellate Procedure which results in placing an even greater burden on our trial courts than the pressures they already face. The judge in this case faced a backlog of 41 cases, which the Commission for Judicial Performance characterized as “certainly” a “busy” caseload. Despite this concession, the Commission “did not find credible [the judge’s] allegation that [there was] no time to write opinions,” and suggested writing “on nights and weekends.” All of those cases, save one, were inherited from the previous judge’s docket.

¶ 43. Sometimes those nights and weekends are indeed lost to the demands of the bench. Yet the retort of the Commission to work on the weekends ignores that the problem of the backlog was left unsolved. The cases progressed no further when the judge was brought before the Commission. We are penalizing the judge instead of aiding in the execution of fair and timely adjudication. That is not the proper route for clearing a backlog of cases and fails to remedy the situation.

¶ 44. We have already created a remedy for this problem: the writ of mandamus. At the time these proceedings were commenced in 2002, our Rule of Appellate Procedure 15(a) described a very detailed procedure that parties should follow “[i]f a trial judge in a civil case fails to render a decision on a motion or request for relief which would be dispositive of all the claims or the rights and liabilities of all the parties, within six (6) months after taking such a motion or request under advisement ...” In the words of the modern comment to the rule, this procedure is critical because it “recognizes the importance of prompt disposition of matters submitted to the courts for decision and ... accord[s] with M.R.C.P. 1 in its dictate that the rules be construed to secure just, speedy and inexpensive determination of actions, and with Section 3A(5) of the Code of Judicial Conduct which requires that judges promptly dispose of the business of the courts.” M.R.A.P. 15. cmt.

¶ 45. In the instant case, the Commission recommended disciplinary action because of complaints generated by six cases. Neither the lawyers nor the litigants in any of those cases sought relief by way of a writ of mandamus. Certainly, anyone with enough savvy to learn about and employ the resources of the Commission was aware of the provisions of M.R.A.P. 15.

¶ 46. We have so carefully delineated and refined the mandamus process for two reasons: first, to accord to the parties an opportunity to secure a just, speedy, and inexpensive disposition of their cases. Less importantly, but still critical, M.R.A.P. 15 provides the judge with an administrative alert that a ruling is past due and provides them with an opportunity to cure that problem. For “[t]he trial judge, not later than thirty (80) days prior to the expiration of the six (6) months from the date the case was taken under advisement, for just cause shown, may apply in writing to the Supreme Court for additional time beyond said six (6) months in which to enter a decision.” M.R.A.P. 15(b).

¶ 47. This assists the entire justice system, because “[t]he writ of mandamus is an aid to the appellate process, because it directs an inferior tribunal to take some action so its judicial decision can be reviewed on appeal.” In re Chisolm, 837 So.2d 183, 189 (Miss.2003); see also S.C.R. v. F.W.K., 748 So.2d 693, 702 (Miss.1999) (“The purpose of Rule 15 is ‘to assure that a trial court will promptly render judgment in a case and thus terminate the litigation or trigger the appellate process’ ”) (quoting Crocker v. Commercial Nat’l Bank & Trust Co., 455 So.2d 1309, 1311 (Miss.1984)). “The proper function of mandamus is to supply a remedy for inaction ...” Chisolm, 837 So.2d at 189 (emphasis added). The ultimate “function of the rule is reduction of delay, increase of judicial efficiency and economy and procedural safeguards for litigants.” Crocker, 455 So.2d at 1311.

¶ 48. The majority’s decision today ignores this important rule and disregards a process which has been part of Mississippi legal practice for over one hundred and seventy years. The first reference to compelling a judge through mandamus occurs in Ex Parte Robson, 1 Miss. 412 (1831). While we declined to compel the judge in that case to issue a bill of exceptions, there was “no doubt of the power of this court to grant the writ, in a case like the present.” Id.

¶ 49. That venerable power of this Court should have been exercised in the instant case. If the attorneys in the cases which triggered this action had filed for a writ of mandamus, then litigation could have moved forward. Instead, complaints were filed against the judge. Hence, instead of handling the court’s crowded docket, the judge was forced to deal with responding to a premature complaint. The filing of a complaint with the Commission should be a last resort if the gravamen of the complaint is the judge’s failure to timely rule on a pending matter.

¶ 50. It is also important to remember the dangers of penalizing our trial judges for a backlog they may not even have created. Instead of issuing reprimands to judges who have been untimely in rendering orders or writing opinions, we should determine if it is appropriate to offer some form of assistance to relieve the burden.

¶ 51. This case involves a critical weakness in any judicial system: the ability to efficiently and fairly administer justice. We should not coddle the trial courts, but we should be mindful of the great burdens that are placed on them by increasingly complex litigation and spiraling dockets. The majority’s opinion does not ease those burdens, but instead creates a danger that any failure to render a timely order or opinion might trigger a complaint and investigation before the Commission. If the sole concern of those who filed complaints against the judge herein was the receipt of a timely ruling, they should have filed for a writ of mandamus. The appropriate relief was to seek a ruling by the court and the appropriate vehicle to seek that ruling is through the petition for mandamus. Sanctions are not proper. This process was not followed, and because it was not followed in the case at hand, I respectfully dissent.

DICKINSON, Justice,

Dissenting.

¶ 52. While I agree that the judge’s conduct in the case sub judice would warrant reprimand if the judge were still in office, my strict constructionist view of the punitive, constitutional provision involved requires me to respectfully dissent.

¶ 53. The majority issues a private reprimand under authority of Art. 6, § 177A, of the Mississippi Constitution. That provision provides in relevant part: “[o]n recommendation of the commission on judicial performance, the supreme court may remove from office, suspend, fine, or publicly censure or reprimand any justice or judge of this state ...” The Constitution refers only to “any justice or judge,” and not to any “former justice or judge.” Thus, in order to discipline a “former” judge, one must read into § 177A something which is not there.

¶ 54. This Court has, in past opinions, simply assumed that § 177A applied to former judges. See, e.g., Mississippi Comm’n on Judicial Performance v. Teel, 863 So.2d 973 (Miss.2004). This is so, I believe, because no Mississippi case could be found where any party presented the precise issue to the Court. Other jurisdictions, however, have addressed the issue. In Rosasco v. Commission on Judicial Performance, 82 Cal.App.4th 315, 98 Cal.Rptr.2d 111 (2000), the Court of Appeal in California discussed a provision of the California constitution which provided for discipline of “judges” by the California Commission on Judicial Performance. Because the provision could not be applied to “former judges,” the citizens of California amended the constitution by removing the term, “judges,” and inserting the term, “judges and former judges.” Prior to the amendment, the California courts interpreted the provision as applying only to sitting judges. So should we.

¶ 55. I am certain that, had the majority drafted the Mississippi Constitution, the provision would have clearly provided for discipline of judges and former judges. The failure to include “former judges” was, doubtless, a mistake. However, it is not within this Court’s authority to correct the mistakes, or perceived mistakes, of the drafters.

¶ 56. Stated another way, I have serious doubts about whether the Constitution grants this Court the power to discipline former occupants of the bench. Therefore, I cannot join the majority’s opinion. However, I do agree with Justice Carlson and the majority that the judge in this case violated the duties of her office and, were she still an occupant of that office, I would concur with Justice Carlson’s well-reasoned conclusion as to punishment.

¶ 57. I also note that, while a motion for writ of mandamus under M.R.A.P. 15 may have been a better avenue for relief in this case, the fact that the complainants did not attempt to access that remedy can not, in my opinion, prevent them from filing a complaint with the Commission. It seems to me the right to do so is constitutional.

¶ 58. For the reasons stated, and with great respect for the majority’s wisdom and experience with such matters, I dissent.

      . The complaint also sought sanctions for an alleged ex parte communication which the judge supposedly made in this case. The Commission ultimately concluded this allegation was not adequately supported by the record.

      . The misconduct in this case occurred before the April 4, 2002, adoption of the new Code of Judicial Conduct. The judge’s conduct will be evaluated under the old Code using the old Code Canon numbers and text of the Canon and commentary. We also remind the reader that the old Code did not contain gender-neutral language, whereas the current Code does.

      . This was a 3-2-4 (plurality) decision of the Court.

      . The record before us does not reveal who the lone dissenter was in the case before the Commission.

      . The judge chose not to stand for reelection and has left office.

      . That section of the rule was amended, and currently reads "[w]hen a trial judge in a civil case takes under advisement a motion or request for relief which would be dispositive of any substantive issues and has held such motion or request under advisement for sixty (60) days ..." The rule has thus expanded in two ways to serve even more situations than the old rule. First, mandamus may now be requested in situations that are not dispositive of "all” the claims of the parties; secondly, mandamus may be requested after sixty days instead of six months.

      . The first reference to the general concept of mandamus is in dicta in Runnels v. State, 1 Miss. 146, 147 (1823).


source: Caselaw Access Project

author: IRVING, J., for the Court.

license: Public Domain

text:
    JACKSON PUBLIC SCHOOL DISTRICT and Wilbur Hardy, Appellants, v. Tasha SMITH, as Next Friend and Natural Guardian of Jaquan Cox, A Minor, Appellee.
    No. 2003-CA-00095-COA.
    Court of Appeals of Mississippi.
    June 22, 2004.

      Jennifer L. Garvin, Fred L. Banks, John P. Sneed, James W. Shelson, Jackson, attorneys for appellants.
    Larry Stamps Yumeka Chanee’ Rushing, attorneys for appellee.
    Before KING, C.J., THOMAS, IRVING and MYERS, JJ.
   IRVING, J., for the Court.

¶ 1. The Jackson Public School District (JPS) appeals from an adverse judgment of the Circuit Court of Hinds County in a negligence action where the judge awarded $850,000 in damages to Tasha Smith for the benefit of Smith’s minor son, JaQuan Cox, who was struck by a JPS school bus. In this appeal, JPS asserts the following issues for our consideration: (1) whether the trial court erred in not allocating any fault to Tasha Smith for her negligence in causing the damages sustained by JaQuan, and (2) whether the trial court’s non-economic damages award of $816,840.72 is grossly excessive.

¶ 2. We find that the damage award of $850,000 is excessive. Therefore, we remit the $850,000 award to $400,000.

FACTS

¶ 3. On January 21, 2000, JaQuan was struck by a JPS school bus as he was attempting to cross Nantucket Street in the City of Jackson to access a pathway leading to Raines Elementary School where he was a second grade student. At the time of this incident, JaQuan was eight years old.

¶ 4. The accident occurred just after Ja-Quan’s mother, Tasha Smith, let him out of her van on the right hand side of Nantucket Street just short of the stop sign at the street’s intersection with Flag Chapel Road. No crosswalk or crossing guard was present at this location. JaQuan exited the van, went around the rear of the van, and proceeded to cross Nantucket Street to get to the pathway leading to his school.

¶ 5. At about the same time that JaQuan was exiting his mother’s van, Wilbur Hardy, an employee of JPS, was driving a JPS school bus south on Flag Chapel approaching the intersection of Flag Chapel and Nantucket. When the oncoming traffic cleared on Flag Chapel, Hardy made a left turn onto Nantucket. As he made the turn, the school bus struck JaQuan. After the bus was brought to a stop, it was determined that JaQuan was under the bus’s fender with his hand pinned under one of the bus’s front wheels. Hardy immediately entered the bus and put it in reverse to back off JaQuan’s hand.

¶ 6. JaQuan sustained scrapes on his chin, nose, lip, forehead, and back. He also had chipped teeth and sustained a more serious injury to his right hand, such as several deep lacerations, several damaged nail beds, and the loss of the tendon of his ring finger. JaQuan also missed three months of school.

¶ 7. Smith sued JPS and Hardy. JPS’s liability was premised both on the doctrine of respondeat superior, since Hardy was JPS’s employee, and on a theory of negligent hiring, training, and retaining of Hardy. Additionally, Smith alleged that JPS failed to develop, implement and/or enforce a reasonable and prudent safety program.

¶ 8. Smith’s case against JPS proceeded to a bench trial, and at the conclusion of the trial, the circuit judge found that Hardy was negligent and that his negligence was the sole proximate cause of JaQuan’s injuries. Consequently, the judge awarded JaQuan damages in the amount of $850,000, which included $33,159.28 in medical bills, pain and suffering, permanent disfigurement, and loss of enjoyment of life. JPS sought a new trial and a remittitur, but its motions were denied.

ANALYSIS AND DISCUSSION OF THE ISSUES

Standard of Review

¶ 9. This action was brought under the Mississippi Torts Claims Act which permits negligence actions against JPS, but requires a bench trial with the circuit judge sitting as finder of fact. In Ezell v. Williams, 724 So.2d 396 (Miss.1998), our supreme court enunciated the following standard of review for such cases:

Our familiar standard of review requires that when a trial judge sits without a jury, this Court will not disturb his factual determinations where there is substantial evidence in the record to support those findings. Put another way, this Court ought and generally will affirm a trial court sitting without a jury on a question of fact unless, based upon substantial evidence, the court must be manifestly wrong. This Court must examine the entire record and accept that evidence which supports or reasonably tends to support the findings of fact made below, together with all reasonable inferences which may be drawn therefrom and which favor the lower court’s findings of fact.

Id. at 397 (¶ 4) (citations omitted).

¶ 10. Concerning this standard of review, JPS argues that an important exception to this deferential standard, exists and applies to the case sub judice. Citing McCarty v. State, 554 So.2d 909 (Miss.1989) as its authority, JPS asserts that if the trial judge fails to make specific findings and makes only general findings, or makes no findings at all, the scope of review is considerably broader. JPS explains that the circuit judge made only general findings concerning allocation of negligence. It therefore concludes that the circuit judge is not entitled to the deference ordinarily accorded to his findings of fact because he made only “general findings” regarding Smith’s negligence.

¶ 11. We are unpersuaded by JPS’s arguments that McCarty is applicable here. McCarty involved the failure of a judge to make specific findings of fact when determining the admissibility of evidence. Here, we are concerned not with the factual basis for the admissibility of evidence, but with general factual determinations made by the trial judge concerning fault.

¶ 12. Because we find no merit in JPS’s arguments, we find that the substantial evidence rule applies; therefore, the trial court’s findings of fact should be given deference equal to that accorded other judges sitting without a jury.

1. Allocation of Fault to Tasha Smith

¶ 13. JPS argues that the circuit judge erred when he failed to allocate any fault to Smith for the injuries sustained by JaQuan. JPS argues that fault should have been assigned to Smith because the evidence demonstrates that she was negligent. JPS explains that Smith and her children were running late on the morning of the accident. It proposes that this circumstance contributed to Smith’s negligent actions. Next, JPS specifically points out that Smith was negligent when she (1) dropped JaQuan off on the wrong side of the street, leaving him to “jaywalk” across the street alone and (2) allowed JaQuan to go behind her van to cross Nantucket. Finally, JPS asserts that the accident would not have occurred, or the probability of its occurring would have be reduced significantly if Smith had exercised ordinary care. According to JPS, Smith’s actions, or lack thereof, virtually ensured that JaQuan would become a “darting child” from behind her van.

¶ 14. As a part of its submission that the trial judge erred in not assigning any fault to Smith, JPS posits that the circuit judge ignored the clear mandate of Mississippi Code Annotated § 85-5-7(7) (1972) which, in JPS’s view, specifies that the judge shall make such a finding.

¶ 15. Section 85-5-7(7) states, “In actions involving joint tort-feasors, the trier of fact shall determine the percentage of fault for each party alleged to be at fault.” We find that JPS misapplies the statute to justify its argument. Section 85-5-7(7) clearly pertains to the allocation of fault between joint tort-feasors. A party does not become a joint tort-feasor simply because the other party makes such an allegation. .Here, the circuit judge found that Smith was not contributorily liable for the injury to her son. Therefore, she could not be a joint tort-feasor.

¶ 16. We do not find that the circuit judge was in manifest error when he found that Smith was not also negligent. While we may have found different had we been the trier of fact, we, as reviewing judges, are not at liberty to substitute our judgment in the place of the trial judge’s unless we can say with conviction that the trial judge’s findings lacked substantial eviden-tiary support or that the findings were arbitrary and capricious.

¶ 17. While it was perhaps unwise for Smith to let her son out of the van at a non-designated crossing walk, the spot where she dropped him off was nevertheless within the school zone. Moreover, the evidence demonstrates that the accident was caused by Hardy’s failure to maintain a proper lookout. It is undisputed that Hardy did not see JaQuan prior to the accident. He testified that he arrived at the Raines Elementary school zone at approximately 7:80 a.m., that he had passed a school zone sign near the Nantucket/Flag Chapel intersection while traveling his normal route to pick up his students, and that he knew that students would be walking to Raines Elementary in this particular area. Further, the evidence demonstrates that Hardy was concentrating on beating the traffic on Flag Chapel Road while making his turn onto Nantucket and that he was clearly not watching for children that he knew or should have known might be in the area. Jasper Gray, a passenger on the bus at the time of the accident, testified that he clearly saw JaQuan exit the van, walk to the back of the van, and prepare to cross the street.

2. Non-Economic Damages

¶ 18. Next, JPS argues that the trial judge’s award of $816,840.72 in non-economic damages is grossly excessive and shocks the conscience. Smith counters that substantial evidence supports the circuit judge’s award of damages.

¶ 19. In determining whether the circuit judge’s award of damages was excessive, our standard of review is whether substantial evidence supports the award. Odom v. Roberts, 606 So.2d 114, 118 (Miss.1992). To be excessive, damages “must be so excessive as to strike mankind, at first blush, as being, beyond all measure, unreasonable, and outrageous, and ... to have been actuated by passion, partiality, prejudice, or corruption. In short, the damages must be flagrantly outrageous and extravagant.” U.S. Fidelity & Guar. Co. v. Estate of Francis ex rel. Francis, 825 So.2d 38, 47(¶ 24) (Miss.2002).

¶ 20. The amount of physical injury, mental and physical pain, present and future, temporary and permanent disability, medical expenses, loss of wages and wage-earning capacity, sex, age and health of the injured plaintiff, are all variables to be considered by the fact-finder in determining the amount of damages to be awarded. Woods v. Nichols, 416 So.2d 659, 671 (Miss.1982). Each suit for personal injury must be decided by the facts shown in that particular case. Id.

¶ 21. The trial judge determined that there was overwhelming evidence that Ja-Quan suffered significant scarring and permanent disfigurement to his hand, fingernails, wrist, and forearm. He consequently ordered that damages be awarded to Tasha and JaQuan in the amount of $850,000, including $33,159.28 in medical expenses. The trial judge, however, did not make any findings concerning any potential permanent impairment or functional limitations resulting from JaQuan’s injuries.

¶ 22. The evidence demonstrates that JaQuan suffered injuries to his right hand, that he underwent three operations and a couple of wound cleanings and dressing changes between January 21, 2000 through November 22, 2000, to remedy his injuries, and that he underwent significant pain during these processes.

¶23. However, the depositions of Dr. Shelia Lindley and Dr. William Lineaweaver, both of whom treated JaQuan for the injuries he sustained from this accident, demonstrate that JaQuan, while incurring a permanent scar along his wrist, has no permanent impairment or functional limitation as a result of his injuries. Dr. Lindley stated that she did not believe that JaQuan would be limited in what he could do with his right hand. Moreover, Dr. William Lineaweaver, a plastic surgeon, gave a more detailed prognosis for Ja-Quan. In addressing permanent damage, past and future pain, and potential permanent functional impairment, he gave the following testimony:

Counsel for Smith: Let me ask you this: The scarring that you observed, I guess, in December of 2001, do you have an opinion whether or not it will be permanent, based on a reasonable degree of medical probability?
Dr. Lineaweaver: It will never go away. It will be permanent. Over time it should get softer and more pliable and less aggravating for him.
Q: Until that happens, do you have an opinion whether or not it will create any difficulties as far as his functional ability regarding that hand is concerned?
A: My impression seeing his activity in clinic and talking about his activity with his mother was that, although he apparently does have local symptoms that he will describe as either itching or uncomfortable, that there did not seem to be any limitation of activity.
Q: The difficulty or discomfort that he described, do you have an opinion how long that will last, based on a reasonable degree of medical probability?
A: Potentially lifelong.
Q: Lifelong. And would that be including itching and scaling?
A: I would say, based on his reporting at the last clinic visit, local itching, perhaps local irritation if he were doing a significant manual activity that would rub against the area. But the chances of these complications being — of being persistent are probably small over his lifetime, and the chances of them being significant are probably very small.
* * *. *
Q: Based upon a reasonable degree of medical probability, do you have an opinion as to whether or not JaQuan Cox experienced any pain as a result of the injury that you treated him for?
A: Oh, I think that there’s no question that he experienced pain.
Q: Do you have an opinion, based on a reasonable degree of medical probability, whether or not he will suffer any pain in the future as a result of the injury that you treated him for?
A: I think the pain will be dramatically minimized by having removed that piece of injured nerve and by reorienting the scar. He may have local areas of discomfort, but I don’t think that he’ll have any pain that significantly interferes with his activities.

¶ 24. After examining the facts and the circumstances unique to this case, and the personal characteristics unique to JaQuan, we concede that the trial court had ample material in the record to justify a reasonable award of damages. However, we find that on the unique facts of this case, that the award of $850,00 in damages is so high as to be unreasonable at first blush and is contrary to the overwhelming weight of the credible evidence. Therefore, we remit the award to $400,000. If Tasha Smith accepts the remittitur within ten days after the judgment of this Court becomes final, then the award as reduced will be affirmed. Otherwise, a new trial shall be held on damages only.

¶ 25. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT, AS TO DAMAGES, IS REMITTED TO $400,000 AND AFFIRMED AS REMITTED IF THE REMITTITUR IS ACCEPTED BY TASHA SMITH WITHIN TEN DAYS AFTER THE JUDGMENT OF THIS COURT BECOMES FINAL. IF THE REMITTITUR IS REJECTED, THE JUDGMENT OF THE CIRCUIT COURT IS REVERSED AND REMANDED FOR A NEW TRIAL ON DAMAGES ONLY. COSTS OF THIS APPEAL ARE ASSESSED ONE HALF TO THE APPELLANT AND ONE HALF TO THE APPELLEE.

KING, C.J., BRIDGES AND SOUTHWICK, P.JJ., THOMAS, LEE, MYERS AND CHANDLER, JJ., CONCUR. GRIFFIS, J., NOT PARTICIPATING.

      . Nantucket Street is a two-lane neighborhood street which runs east to west. The street had no dividing line. Nantucket ended at an intersection with Flag Chapel Road where a stop sign was erected. Flag Chapel runs north and south. No stop sign or signal light was present on Flag Chapel at this intersection. Raines Elementary School is located on Flag Chapel, approximately one block south of the intersection of Flag Chapel and Nantucket. The NantuckepFlag Chapel intersection is considered a school zone. Warning signs were posted near the intersection to caution drivers that small children may have been present.


author: GRIFFIS, J.,

text:
    Jermaine RICHARDSON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2003-KA-00513-COA.
    Court of Appeals of Mississippi.
    June 22, 2004.

      William C. Bristow, Tupelo, attorney for appellant.
    Office of the Attorney General by Charles W. Maris, attorney for appellee.
    Before SOUTHWICK, P.J., IRVING and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Jermaine Richardson was found guilty of the crime of drive-by shooting, in violation of Mississippi Code Annotated Section 97-3-109 (Rev.2000). Richardson was sentenced to serve a term of fifteen years, with eight years suspended and five years of post-release supervision. We find no error and affirm.

FACTS

¶2. On July 14, 2001, Richardson was driving home when he saw Jason Barnes walking along the side of the street. Richardson noticed that Barnes appeared upset, and stopped to offer him a ride. Barnes was upset because his sister, Tameka Barnes, had been in a fight with her boyfriend, Cecil Demont Friar. Barnes wanted to speak with Friar, so he asked Richardson to drive him to Friar’s apartment. Richardson agreed. On the way, they picked up Kelvin Pierce.

¶ 3. Upon arriving at Friar’s apartment, Barnes got out of the car and knocked on Friar’s door. Friar answered the door with a screwdriver in his hand. Friar and Barnes began to argue, and a physical altercation ensued. The altercation continued in the parking lot, where Pierce also became involved. Whether or not Richardson participated in the fight is disputed.

¶ 4. Richardson claims that he eventually broke up the fight and left with Barnes and Pierce. Soon thereafter, Barnes realized that his wallet was no longer in his pocket, and he asked Richardson to return to Friar’s apartment complex so he could look for it. On the way, Richardson, Barnes and Pierce met with Jason McGaha and told him about the fight. McGaha claims that Richardson then asked McGa-ha for his gun. McGaha claims that he did not give the gun to Richardson or bring it with him. McGaha testified that he is not sure how his gun got in the car. McGaha did, however, get into the car with the other men.

¶ 5. The four men then drove to Friar’s apartment complex. They claim that when Friar saw them in the parking lot he came out of his apartment with a butcher knife and threatened to kill them. Richardson testified that Friar approached the car and was warned to stop. Richardson claims that when Friar continued toward the car, he fired a shot into the air in order to scare Friar away.

¶ 6. Friar testified that when the men returned to his apartment complex, Barnes began yelling for Friar to come outside and fight. Friar admits that he went outside with a butcher knife, but denies ever stepping from outside his doorway or threatening to kill anyone. Friar also claimed that Richardson pointed the gun toward his apartment rather than into the air. A bullet matching the gun Richardson fired was found lodged in Friar’s car, which had been parked in front of his apartment.

ANALYSIS

I. Whether the trial court emd in denying Richardson’s motion for a directed verdict.

¶ 7. Richardson asserts that the trial court erred in denying his motion for a directed verdict. However, this issue is not properly before this Court on appeal.

¶ 8. After Richardson’s motion was denied, he proceeded with his case by testifying and producing a witness to testify on his behalf. In Holland v. State, 656 So.2d 1192, 1197 (Miss.1995), the court held that when a defendant moves for directed verdict after the State rests and that motion is overruled, if the defendant proceeds with his case, he waives the appeal of the denial of his motion for directed verdict. By proceeding with his case, Richardson waived the appeal of this issue, and it is not properly before this Court.

II. Whether the trial court erred in denying Richardson’s motion for judgment notwithstanding the verdict.

¶ 9. Richardson next contends that the trial court erred in denying his motion for judgment notwithstanding the verdict. The standard of review for denial of a motion for directed verdict or for judgment notwithstanding the verdict is the same. Alford v. State, 656 So.2d 1186, 1189 (Miss.1995). Once the jury has returned a guilty verdict, neither the trial court nor this Court is at liberty to direct that the defendant be found not guilty unless, viewed in the light most favorable to the verdict, no reasonable, hypothetical juror could find beyond a reasonable doubt that the defendant was guilty. Conners v. State, 822 So.2d 290, 293(¶ 6) (Miss.2001). This Court must consider as true all evidence consistent with the defendant’s guilt, and the State must be given the benefit of all favorable inferences. McClain v. State, 625 So.2d 774, 778 (Miss.1993). It is not for this Court to pass on the credibility of witnesses, and where the evidence justifies the verdict, it must be accepted as having been found worthy of belief. Grooms v. State, 357 So.2d 292, 295 (Miss.1978).

¶ 10. Under this standard of review, we look at the evidence presented at trial that favors the guilty verdict. Mississippi Code Annotated Section 97-3-109 (Rev.2000) defines the crime of drive-by shooting as follows:

A person is guilty of a drive-by shooting if he attempts, other than for lawful self-defense, to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life by discharging a firearm while in or on a vehicle.

¶ 11. Richardson testified that he fired the gun into the air in order to scare Friar. Richardson testified that he was leaning on the car when the shot was fired. However, there was also testimony by Friar that Richardson was inside the car when the shot was fired. Friar testified that he had not stepped outside of his doorway and that Richardson was pointing the gun in his direction, rather than into the air, when the shot was fired. The fact that a bullet matching the gun fired by Richardson was found lodged in Friar’s car, which had been parked in front of his apartment door, bolsters Friar’s testimony.

¶ 12. In accepting this evidence in accordance with the appropriate standard of review, we find that it was reasonable for the jury to find Richardson guilty of the crime of drive-by shooting, in violation of Mississippi Code Annotated Section 97-3-109. Therefore, we find that the trial judge did not err in denying Richardson’s motion for judgment notwithstanding the verdict.

III. Whether the trial court erred in overruling Richardson’s objection to the State’s use of a peremptory challenge on juror number five, Anthony Young.

¶ 13. Richardson argues that the trial court erred in overruling his objection to the State’s use of a peremptory challenge on juror, Anthony Young. Richardson contends that the State did not give a sufficient race-neutral reason for the challenge as required by Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

¶ 14. Under Batson, a defendant makes a prima facie showing of purposeful discrimination by establishing that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. Id. at 1721. The above facts, along with any other relevant circumstances, raise an inference that the prosecutor used peremptory challenges to exclude venire persons on account of their race. Id. Once a defendant makes such a showing, the burden shifts to the prosecution to come forward with a race-neutral explanation for challenging prospective jurors. Id.

¶ 15. Richardson’s counsel objected when the prosecution exercised a peremptory challenge on Anthony Young. Like Richardson, Young is a black male. Counsel argued that the State used the peremptory challenge on account of Young’s race. However, when the trial judge asked the prosecution to provide a race-neutral explanation, the prosecution responded that the State used a peremptory challenge on Young because he worked with the mother of two of the key witnesses, Jason and Tameka Barnes.

¶ 16. The trial judge found the State’s explanation to be sufficiently race-neutral, and Richardson did not proffer any evidence to rebut that explanation. “In the absence of an actual proffer of evidence by the defendant to rebut the State’s neutral explanations, the supreme court may not reverse on a Batson challenge.” Sudduth v. State, 562 So.2d 67, 71 (Miss.1990). Richardson did not make such a proffer, and therefore, based on Sudduth, this Court will not reverse the trial court’s decision to overrule Richardson’s objection.

¶ 17. Accordingly, we find no error and affirm.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF PRENTISS COUNTY OF CONVICTION OF DRIVE-BY SHOOTING AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH EIGHT YEARS SUSPENDED AND FIVE YEARS OF POST-RELEASE SUPERVISION, FINE OF $1,000 AND $406.81 IN RESTITUTION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., BRIDGES AND SOUTHWICK, P.JJ., THOMAS, LEE, IRVING, MYERS AND CHANDLER, JJ., CONCUR.


author: SOUTHWICK, P.J.,

text:
    Arbie Jo BUCKLEY a/k/a Arbie Jo Buckley House, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-02123-COA.
    Court of Appeals of Mississippi.
    June 22, 2004.
    B. Leon Johnson, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before SOUTHWICK, P.J., IRVING and GRIFFIS, JJ.
   SOUTHWICK, P.J.,

for the Court.

¶ 1. A circuit court jury found Arbie Jo Buckley guilty of capital murder. We find her argument that the indictment was fatally flawed to be valid. We reverse and order the indictment dismissed. We further order Buckley to remain in custody pending the action of the next grand jury.

¶ 2. There was evidence from George House that his wife, the defendant Arbie Jo Buckley, poured kerosene onto him as he lay on a sofa. The kerosene soaked into his clothes and also onto the sofa and floor of the trailer home in which he lay. She then threw a match onto him. He awoke to find himself on fire. His injuries were mortal ones, but before he died he gave an explanation of what happened. George House died and the trailer in which he was located was destroyed.

¶ 3. Buckley's testimony was that House had been angry and intoxicated, which caused her and their children to leave the trailer home. She then went to the sheriffs department for help. Upon returning to the trailer, she found it on fire. She said that she awoke her husband. Seeing the fire, House grabbed a nearby jug of kerosene, perhaps thinking it was watér. Buckley took the jug from him, but the kerosene spilled onto House. She tried but was unable to put out the fire.

¶ 4. Buckley was indicted, tried and convicted for capital murder with the underlying felony of arson. She received a life sentence after a jury trial and appeals.

DISCUSSION

1. Indictment

¶ 5. Buckley asserts that her indictment was fatally flawed' since it did not specify the degree of arson with which she was charged. She further argues that the facts set forth in the indictment do not fall within the scope of arson. The indictment charged Buckley in this way:

That, Arbie Jo Buckley, ... did wilfully, unlawfully and feloniously kill George House without authority of law. Arbie Jo Buckley was engaged in the commission of arson. Arbie Jo Buckley put a flammable liquid on George House and set him afire with or without any design to effect the death of George House, in direct violation of Section 97 — 3—19(2)(e).

¶ 6. The statute that is cited in the indictment is the one for capital murder. It requires that a person have been killed while the perpetrator was in the act of committing one of several felonies other than a homicide. It is not necessary that the accused have intended that the victim be killed; it is necessary that there exist an intent to commit the felony during which the death occurred:

(2) The killing of a human being without the authority of law by any means or in any manner shall be capital murder in the following cases:
(e) When done with or without any design to effect death, by any person engaged in the commission of the crime of rape, burglary, kidnapping, arson, robbery, sexual battery, unnatural intercourse with any child under the age of twelve (12), or nonconsensual unnatural intercourse with mankind, or in any attempt to commit such felonies.

Miss.Code Ann. § 97-3-19(2)(e) (Rev. 2000).

¶ 7. According to the indictment, the arson that Buckley was committing and during the course of which George House was killed, was the setting of the victim himself on fire. The issue that this raises is whether intentionally putting a flammable liquid on a person and then causing it to ignite on the person constitutes the crime of arson. Is that instead initially the crime of aggravated assault using fire as the deadly weapon, and then a murder either by deliberate design or with a depraved heart if the person dies? See Miss. Code Ann. § 97-3-19(l)(a) & (b) (Rev. 2000). We note for clarity that we are not here concerned with what crime the evidence might have supported, but only whether the indictment actually charged the crime for which Buckley was convicted.

¶ 8. To answer this, we examine the statutory elements of arson. There are several arson crimes. The indictment did not list which one allegedly was being committed by Buckley when she set her husband on fire. Some clearly are inapplicable, such as the setting of woods or other lands on fire. Miss.Code Ann. § 97-17-13 (Rev.2000). We find the following to be the only ones worth analyzing on the charges against Buckley. Arson in the first degree has these elements:

(1) Any person who willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels or procures the burning of any dwelling house, whether occupied, unoccupied or vacant, or any kitchen, shop, barn, stable or other outhouse that is parcel thereof, or 'belonging to of adjoining thereto, or any state-supported school building in this state whether the property of himself or of another, shall be guilty of arson in the first degree, and upon conviction thereof, be sentenced to the penitentiary for not less than five (5) nor more than twenty (20) years and shall pay restitution for any damage caused.

Miss.Code Ann. § 97-17-1 (Rev.2000).

¶ 9. Arson in the third degree is defined in this manner:

Any person who wilfully and maliciously sets fire to or burns or causes to be burned, or who aids, counsels or procures the burning of any personal property of whatsoever class or character; (such property being of the value of twenty-five dollars and the property of another person), shall be guilty of arson in the third degree and upon conviction thereof, be sentenced to the penitentiary for not less than one nor more than three years.

Miss.Code Ann. § 97-17-7 (Rev.2000).

¶ 10. Obviously, neither statute supports the charging of arson for someone who deliberately and directly sets a person on fire. A person is not a building nor personal property. The different forms of the crime of arson are all in a section of the Code for “Crimes Against Property.” Miss.Code Ann. Title 97, Ch. 17 (Rev. 2000). Arson has been called both a crime against property and one against persons, as the primary protection being provided by criminalizing the burning of structures was to protect those occupying the building. Wayne R. LaFave, Substantive CRIMINAL Law, § 21.3 (2003). Still, regardless of the interests being protected, the crime traditionally required the burning of a structure, starting with dwellings at common law and then expanding to other kinds of buildings. Id. Here a structure did burn, namely the house trailer, but the indictment did not charge Buckley with killing her husband while burning down the trailer.

¶ 11. The legislature has the authority to redefine crimes from those in the common law. Walters v. Blackledge, 220 Miss. 485, 518, 71 So.2d 433, 446 (1954) (legislature may alter common law so long as does not affect vested rights); Miss. Code Ann. § 99-7-1 (Rev.2000) (recognizes that legislature may address common law crimes by statute). We must find that there is a statute which by reasonable interpretation permits the crime of arson to be charged based on the facts of setting a person on fire. We have found none. The two we quoted are the closest, but they are not anywhere near close enough.

¶ 12. This issue is not incidental or merely technical. For a variety of reasons, killing a person absent some special circumstances is almost never capital murder. No matter how depraved the act might be, the legislature has attempted to apply the federal constitutional rules on the proper utilization of the death penalty by defining capital crimes in very limited ways. To be capital murder, the homicide must have some special elements.

¶ 13. One statutory section permits the death penalty for the murder of law enforcement officers. Miss.Code Ann. § 97-3-19(2)(a) (Rev.2000). Murder by someone already serving a life sentence, murder using an explosive device, and murder for hire, are all capital crimes. Miss.Code Ann. § 97 — 3—19(2)(b)—(d). The capital murder that this indictment charged was the form that requires that the death occur while a different, underlying felony was being committed. Miss.Code Ann. § 97-3-19(2)(e). Felony murder as a capital crime requires by definition two felonies to be involved, the homicide being the intentional or unintentional product of the other felony. The elements set out in the indictment against Buckley only charged one felony — that Buckley killed House by setting him on fire. That act is not a capital offense. It is a gruesome and terrible act, and likely was a capital crime before the statutory changes that have been made in response in light of the United States Supreme Court’s analysis that prohibited broadly available capital sentences. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Under current law, the indictment needed to set out a valid charge of two felonies, one the arson and the other a homicide that occurred during the commission of the arson.

¶ 14. The crime charged here was murder, the instrument used directly against the victim to cause death being fire. In order for Buckley to be charged with capital murder, she must be charged with arson by setting the house trailer or sofa on fire and that she killed her husband as a result. Though that would have been consistent with the statutes on capital murder, it may not have been supported by the evidence on this record. The State’s evidence was that House declared as he was dying from his wounds that Buckley had poured the kerosene on him and set him on fire, which then set the trailer ablaze. The indictment as written in this case did not charge capital murder.

¶ 15. Since the indictment does not charge the crime for which Buckley was convicted, we reverse the conviction. The failure of an indictment to charge the essential elements of a crime is a substantive defect which requires setting aside the conviction. Grantham v. State, 284 So.2d 523, 525 (Miss.1973). This judgment of conviction is set aside because a conviction for capital murder cannot be upheld based on an indictment that did not charge capital murder. In such eventualities, the Supreme Court has remanded the defendant to the custody of the relevant sheriff to await action of the next grand jury. Copeland v. State, 423 So.2d 1333, 1337 (Miss.1982). We do that here.

¶ 16. There is no issue of double jeopardy. We are not finding that Buckley should have been acquitted. We instead are finding that the indictment did not charge the crime for which she was convicted. The error here was not an absence of sufficient evidence, for which no retrial could be conducted, but the absence of a proper charging instrument.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF PANOLA COUNTY IS REVERSED AND RENDERED. ARB IE JO BUCKLEY IS REMANDED TO THE CUSTODY OF THE SHERIFF OF PANOLA COUNTY TO AWAIT THE ACTION OF THE NEXT GRAND JURY. ALL COSTS ARE TAXED TO PANOLA COUNTY.

KING, C.J., BRIDGES, P.J., THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ, CONCUR.


text:
    WASHINGTON COUNTY, Mississippi, Appellant, v. Earnestine Ross GRAVES, Appellee.
    No. 2003-CA-00163-COA.
    Court of Appeals of Mississippi.
    June 22, 2004.
    Willie Griffin, Greenville, attorney for appellant.
    Willard L. Mcllwain, Greenville, attorney for appellee.
    Before SOUTHWICK, P.J., IRVING and GRIFFIS, JJ.
   SOUTHWICK, P.J.,

for the Court.

¶ 1. Washington County was ordered to fill a ditch and service a culvert on property owned by Earnestine Graves. We agree with the County that the evidence was insufficient to sustain the order. The judgment is reversed and we render a judgment in favor of the County.

FACTS

¶ 2. This property once was owned by Isaiah and Cleo Franklin, now deceased. Earnestine Graves has had knowledge of the land since she was five years old in 1946. The former co-owner Cleo Franklin was her aunt. The property was conveyed to Graves in 1963. Graves does not remember a ditch on the property during her childhood. There is now a ditch in the middle of the property which Graves claims floods and causes the property to have no significant value.

¶ 3. Graves admits that from 1963 to 1997 she had no knowledge of the condition of the property. When she had the land cleared in 1997, she discovered the ditch and culvert. She does not know who is responsible for their creation. Graves claims that Isaiah Franklin stated that he did not have any knowledge of who was responsible for the ditch and culvert. Mr. Franklin discovered them when he returned to the property after being away for awhile.

¶ 4. Graves filed suit against the County in May 2000. She sought injunctive relief against the nuisance. She claimed that the County had dug the ditch and directed culverts towards it. Resulting flooding of her property caused problems with mosquitoes, rats, snakes, and debris. Washington County denied responsibility for the ditch and alleged that the Mississippi State Highway Department, now the Department of Transportation, may have installed the culvert since it initially owned the road adjacent to the property.

¶ 5. On August 3, 2000, the court issued an order which stated that the County had wrongfully installed a culvert and dug a ditch on the property. The court ordered the County to close the culvert flowing onto the property, and fill in and cover the ditch. Later, the trial court reconsidered and conducted a trial in October 2001.

¶ 6. At trial, Graves produced a witness who remembered seeing someone operating heavy equipment on the property, in the vicinity of the ditch, some time in the 1970s. The witness provided no specifics. No one else testified as to any knowledge about the creation of the ditch.

¶ 7. Washington County called three witnesses — a county engineer, a county supervisor, and a road manager. Collectively, their testimony was that the County had nothing to do with creating or maintaining the ditch. The ditch was lined on both sides with trees that were at least twenty five to thirty years old and the culvert underneath the trees was galvanized. Such culverts had not been installed during their sixteen to twenty two years with the County.

¶ 8. Washington County was ordered to fill the ditch and service both the culvert and possibly the bayou in the rear of the property. The County appeals.

DISCUSSION

¶ 9. A chancellor’s fact findings will be sustained on appeal unless they are clearly erroneous or are the result of application of the wrong legal standard. McNeil v. Hester, 753 So.2d 1057, 1063 (Miss.2000). Washington County claims that the chancellor erred in failing to make findings of fact and conclusions of law when the judgment was entered more than fourteen months after trial. It is further claimed that because the chancellor issued the final judgment on the last day of her term in office in 2002, a post-judgment request for findings of fact was impossible.

¶ 10. A civil rule requires fact-findings in certain situations. “In all actions tried upon the facts without a jury the court may, and shall upon the request of any party to the suit or when required by these rules, find the facts specifically and state separately its conclusions of law thereon and judgment shall be entered accordingly.” M.R.C.P. 52(a).

¶ 11. The Supreme Court determined that absent a party’s request, the rule should be construed to mean that a judge “generally should” make findings in complex cases, and a failure to provide such findings will generally be regarded as an abuse of discretion. Tricon Metals & Services, Inc. v. Topp, 516 So.2d 236, 239 (Miss.1987). While there is no rule to require a chancellor to make findings of fact and conclusions of law when no request is made, whether findings should be made primarily depends on the complexities of the case. See M.R.C.P. 52 cmt.

¶ 12. We do not find any particular complexity to this case. There was no request, though the chancellor’s resolving this case on her last day in office would have made a post-judgment request useless. A request could have been made during the fourteen months that transpired after trial and before the chancellor reached her decision.

¶ 13. The problem in this case is not the absence of findings but the absence of evidence. Nothing in the record provides any factual support for the County’s responsibility for creating this ditch, or after having been created by unknown persons, for the County’s assuming some responsibility for it. This was land that for extended periods of time was ignored by those who participated in this case. At some stage the ditch was created. Who created it remains unknown. The County denied responsibility and Graves presented no evidence supporting the County’s involvement.

¶ 14. Since no evidence was introduced that would make Washington County responsible for the problems that Graves asserts exist, we reverse and enter judgment for the County.

¶ 15. THE JUDGMENT OF THE CHANCERY COURT OF WASHINGTON COUNTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

KING, C.J., BRIDGES, P.J., THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.