author:
SMITH, Chief Justice,
      GRAVES, Justice,

text:
    Mary SCAGGS v. GPCH-GP, INC. d/b/a Garden Park Medical Center.
    No. 2005-CA-00917-SCT.
    Supreme Court of Mississippi.
    June 15, 2006.
    Woodrow W. Pringle, III, Gulfport, attorney for appellant.
    William E. Whitfield, III, Gulfport, Kimberly S. Rosetti, attorneys for appellee.
    Before SMITH, C.J., CARLSON and DICKINSON, JJ.
   SMITH, Chief Justice,

for the Court.

¶ 1. Mary Scaggs (Scaggs) filed a medical malpractice action against Garden Park Medical Center (Garden Park) on April 12, 2004, arising out of injuries she sustained during a preoperative procedure on March 14, 2002. Subsequently, Garden Park filed a motion to dismiss the suit on the basis that the applicable statute of limitations had expired. The trial court determined the suit was time barred and granted Garden Park’s motion. Scaggs then perfected the present appeal with this Court.

FACTS

¶ 2. On March 14, 2002, Scaggs was admitted to Garden Park and scheduled to undergo surgery. During the preoperative process Scaggs fell and sustained injuries to her knee, back and neck while attempting to climb onto a table. Scaggs alleges her injuries are attributable to the directions given to her by an employee of Garden Park.

¶ 3. On December 10, 2002, Scaggs sent Garden Park written notice of her intent to pursue a claim. On January 28, 2004, Scaggs, through other counsel, sent Garden Park a second notice of her intention to file suit. Scaggs filed suit on April 12, 2004, against Garden Park in the Circuit Court of Harrison County.

¶ 4. Subsequently, Garden Park filed a motion to dismiss and/or for summary judgment. Garden Park’s motion averred that because suit was filed after March 14, 2004, Scaggs did not comply with the two-year period of limitations under Miss.Code Ann. Section 15-1-36. Hence, Garden Park maintained the suit was time barred. After considering the pertinent provisions of Miss.Code Ann. Section 15-1-36, the trial court determined that Scaggs did not file her claim in a timely fashion and should be dismissed. Thus, the trial court granted Garden Park’s motion.

¶ 5. We conclude that the circuit court erred in granting Garden Park’s motion to dismiss. Therefore, we reverse and remand for further proceedings.

ANALYSIS

I. MOTION TO DISMISS

Standard of Review

¶ 6. When considering a motion to dismiss, this Court’s standard of review is de novo. “When considering a motion to dismiss, the allegations in the complaint must be taken as true and the motion should not be granted unless it appears beyond doubt that the plaintiff will be unable to prove any set of facts in support of his claim.” Lang v. Bay St. Louis/Waveland Sch. Dist., 764 So.2d 1234 (Miss.1999)(citing T.M. v. Noblitt, 650 So.2d 1340, 1342 (Miss.1995)). This Court will not disturb the findings of the trial court unless they are manifestly wrong, clearly erroneous or an erroneous legal standard was applied. Bell v. City of Bay St. Louis, 467 So.2d 657, 661 (Miss.1985).

Section 15-1-36

¶7. Scaggs argues the trial court erred in dismissing her case on the basis that the suit was filed outside the applicable period of limitations in accordance with Miss.Code Ann. Section 15-1-36. Conversely, Garden Park maintains the trial court was correct in determining that under Miss.Code Ann. Section 15-1-36 Scaggs was not within the allowable period to file suit.

¶ 8. The relevant provisions of Miss Code Ann. 15-1-36 are as follows:

(2) For any claim occurring on or after July 1, 1998, and except as otherwise provided in this section, no claim in tort may be brought against a ... hospital ... for injuries or wrongful death arising out of the course of medical, surgical or other professional services unless it is filed within two (2) years from the date the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered, and, except as described in paragraph (a) and (b) of this sub section, in no event more than seven years after the alleged act, omission or neglect occurred.
(15) No action based upon the health care provider’s professional negligence may be begun unless the defendant has been given at least sixty (60) days’ prior written notice of the intention to begin the action. No particular form of notice is required but it shall notify the defendant of the legal basis of the claim and the type of loss sustained, including with specificity the nature of the injuries suffered. If the notice is served within sixty (60) days prior to the expiration of the applicable statute of limitations, the time for commencement of the action shall be extended sixty (60) days from the service of the notice for said health care providers and others....

This case depends on our interpretation of the sixty-day notice provision found in Section 15-1-36(15). As Scaggs argues, this Court recently considered this very' issue in Pope v. Brock, 912 So.2d 935 (Miss.2005). However, in Pope the notice was provided within the final sixty-day period of the expiration of the statute of limitations whereas here, notice was provided prior to the final sixty-day period.

¶ 9. In Pope, after considering Miss. Code Ann. Section 15-1-57 and California precedent, this Court ultimately held the most reasonable interpretation of Miss. Code Ann. Section 15-1-36(15) is that the two-year statute of limitations is tolled for sixty days. The Court also examined Miss.Code Ann. Section 15-1-57 in conjunction with Section 15-1-36. Miss.Code Ann. Section 15-1-57 provides in pertinent part:

When any person shall be prohibited by law ... from commencing or prosecuting any action or remedy, the time during which such person shall be so prohibited ... shall not be computed as any part of the period of time limited by this chapter for the commencement of such action.

This Court in Pope determined Section 15-1-57 “clearly and unambiguously prohibits use of any of the sixty-day notice period in computing the running of the statute of limitations.” Id. at 938. According to Section 15-1-57 because Pope was prohibited by law from filing suit during the mandatory sixty-day period, this sixty-day period could not be computed against him under the applicable statute of limitations. Thus, in Pope, we held that where a plaintiff serves notice of intent to file a claim during the final sixty-day period of the two-year period provided for in Section 15-1-36(2), the two-year statute of limitations effectively becomes a two-year and sixty day statute of limitations.

¶ 10. “The duty of this Court is to interpret the statutes as written. It is not the duty of this Court to add language where we see fit. ‘[0]ur primary objective when construing statutes is to adopt that interpretation which will meet the true meaning of the Legislature.’ ” Stockstill v. State, 854 So.2d 1017, 1022-23 (Miss.2003)(quoting Anderson v. Lambert, 494 So.2d 370, 372 (Miss.1986)).

¶ 11. Pope correctly states “[Section 15-1-57] clearly and unambiguously prohibits use of any of the sixty-day notice period in computing the running of the statute of limitations.” Also, Pope notes there is “no statute which explicitly renders Section 15-1-57 inapposite to this case, although a reasonable argument can be made that it is in conflict with Section 15-1-36(15).” Pope, 912 So.2d at 938. Thus, we conclude the reasonable interpretation of Sections 15-1-36(15) and 15-1-57 requires that the sixty-day notice period may not be used in calculating the statute of limitations, whether notice is given before or during the final sixty-day period of the statute of limitations. Had the legislature used greater specificity in the language when adopting Section 15-1-36(15) perhaps this Court’s holding in Pope, and our holding today, would be different. As this is not the case, this Court finds whenever a plaintiff files the statutorily required sixty days of notice, the time to file an action is effectively extended by sixty days.

¶ 12. In accordance with the Pope rationale, we will now analyze the facts in this case. A short time line of events should provide an informative resource for examining this issue.

1. March 14, 2002 — Scaggs alleges injuries occurred during the preoperative procedure at Garden Park.
2. December 10, 2002 — Garden Park receives notice demonstrating Scaggs’ intent to file a claim.
3. January 28, 2004 — Garden Park receives a second notice of Scaggs’ intent to file a claim.
4. April 14, 2004 — Scaggs files suit against Garden Park.

¶ 13. The alleged injury occurred on March 14, 2002. Thus, Scaggs had until May 13, 2004, had she complied with the provisions of 15-1-36 and 15-1-57. Scaggs provided notice to Garden Park of her intention to file suit on December 10, 2002, by actual written notification to Garden Park of her intention to bring an action. See Miss.Code Ann. § 75-1-201(25) (Rev.2002). Scaggs’ second written notification of her intent to pursue a claim on January 28, 2004, did not serve as notice of a new claim as it was in effect a mere reminder to Garden Park that the possible claim for negligence continued to exist. Therefore, the sixty-day notice period commenced on December 10, 2002 and expired on February 7, 2002.

¶ 14. Moreover, in accordance with Section 15-1-57 the sixty-day notice period should not be calculated in the applicable two-year statute of limitations. Therefore, Scaggs’ time to file suit was extended sixty days past the two-year anniversary of her alleged injuries which occurred March 14, 2004. Scaggs properly filed her suit within the time frame in question on April 14, 2004. The trial court did not have the benefit of this Court’s decision in Pope when it dismissed Scaggs’ claim as time barred; nonetheless we find the trial court erred in its application of Section 15-1-36(15).

CONCLUSION

¶ 15. After due consideration of Sections 15-1-36(15) and 15-1-57, we find the circuit incorrectly granted Garden Park’s motion to dismiss. Therefore, the judgment of the circuit court should be reversed, and the case should be remanded to the circuit court for further proceedings consistent with this opinion.

¶ 16. REVERSED AND REMANDED.

WALLER, P.J., EASLEY, CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. COBB, P.J., AND DIAZ, J., CONCUR IN RESULT ONLY. GRAVES, J„ SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY DIAZ AND CARLSON, JJ.

GRAVES, Justice,

Specially Concurring.

¶ 17. The majority in this case, like the majority in Pope v. Brock, 912 So.2d 935 (Miss.2005), offers a protracted and ambiguous analysis of the issue before this Court, while adding little, if any, clarification as to how Miss.Code Ann. Section 15-1-57 interacts with Miss.Code Ann. Section 15-1-36(15). As I stated in my specially concurring opinion in Pope, Section 15-1-57 mandates that the statute of limitations be tolled during the notice period found in Section 15-1-36(15), regardless of the facts of a particular case. See Pope, 912 So.2d at 940 (Graves, J., specially concurring). Until this Court authors a majority opinion which clearly and succinctly admits as much, the trial judges and attorneys of this state will continually struggle to make sense of these statutes, and this Court will be compelled to continue its confusing and piecemeal approach to the resolution of this important issue.

DIAZ AND CARLSON, JJ., JOIN THIS OPINION.

      . During oral argument before this Court, Garden Park conceded the first letter Scaggs sent to them provided adequate notice a lawsuit would possibly be filed.

      . Sixty days after March 14, 2004 is May 13, 2004.


source: Caselaw Access Project

author: WALLER, Presiding GRAVES, Justice,

license: Public Domain

text:
    ERA FRANCHISE SYSTEMS, INC. v. Vennit B. MATHIS, II.
    No. 2005-IA-00350-SCT.
    Supreme Court of Mississippi.
    June 22, 2006.

      Christopher A. Shapley, Robert L. Gibbs, Jackson, Joseph Anthony Selafani, Steve J. Allen, attorneys for appellant.
    Eddie J. Abdeen, Sam S. Thomas, attorneys for appellee.
   WALLER, Presiding

Justice, for the Court.

¶ 1. Vennit B. Mathis, II, filed a “Complaint for Declaratory and Other Relief’ in the Chancery Court of Covington County against a real estate franchising corporation, ERA Franchise Systems, Inc. (“ERA”), his former business partners, their newly-formed business entities, and his former partners’ new partners in the newly-formed business entities. ERA filed a motion to have the action transferred to circuit court. The chancellor held a hearing and, ruling that he would bifurcate the trial between equitable and legal claims, denied the motion to transfer. ERA then filed a petition for interlocutory appeal which this Court granted. See M.R.A.P. 5.

FACTUAL AND PROCEDURAL HISTORY

¶ 2. Vennit B. Mathis, II, filed suit against ERA Franchise Systems, Inc., Jackie R. “Chip” Hill, Pamela Hill, H. Stuart Irby, Mark Warren, Real Estate Professionals of Central Mississippi, LLC (REP-Central), and Real Estate Professionals of the Pine Belt, LLC (REP-Pine Belt) in the Chancery Court of Covington County. Mathis’s complaint alleged he had acquired a fifty percent equity interest in, and was a member of, Real Estate Professionals, LLC (“REP”), along with defendants Chip and Pamela Hill. Mathis also alleged he signed documents guaranteeing REP’s obligations to ERA under the parties’ Franchise Agreement and that he made periodic working capital loans to REP and/or Chip Hill related to REP’s business operations. Mathis alleged Chip Hill induced him to lend additional funds and pledge personal assets as security for loans to Chip Hill and/or REP, based on Chip’s representation that he would transfer his ownership interest in certain parcels of real estate (titled in Chip’s name) to Mathis, in addition to paying back loaned funds.

¶3. Mathis alleged Chip and Pamela sold their equity interest in REP to Stuart Irby but remained REP employees, and that Chip Hill and/or Irby and/or others wilfully and intentionally diverted REP’s corporate assets to new entities (REP-Central and REP-Pine Belt) in an attempt to convert REP’s assets and intentionally exclude Mathis from REP’s business. He contended such actions were taken with ERA’s knowledge and/or active participation. Mathis also alleged Chip Hill signed various documents which transferred the hard assets and real estate listings of REP to the new entities, and that Chip, along with Pamela Hill, Irby, and Warren, induced REP’s real estate agents to terminate and/or not honor their agent contracts with REP by becoming agents of REP-Central and/or REP-Pine Belt. He claimed these actions left REP with no cash flow or way to generate business, resulting in Mathis’ loss of his equity investment in REP, and the loss of REP’s ability to pay its obligations (e.g., those owed to ERA under the Franchise Agreement).

¶ 4. Mathis also alleged REP-Central and REP-Pine Belt misappropriated REP’s franchise rights and earned commissions that should have accrued to REP, while allowing money owed to ERA under the franchising agreement to accumulate as a debt of REP. He claimed the various defendants’ actions were done knowingly, wilfully, and intentionally to cause REP to default on its Franchise Agreement so that REP-Central, REP-Pine Belt, and their principals could enter new franchising agreements with ERA. He also claimed that the defendants all engaged in a course of conduct to deliberately:

(1) appropriate the assets, rights and corporate opportunities of REP; (2) convert the legal and practical interests of Mathis in REP; (3) cause REP and Mathis so much harm and damage as to attempt to keep Mathis from redressing the wrongs done Mathis; (4) intentionally breach fiduciary and other legal duties owed Mathis; (5) intentionally take away rights and assets of REP; and (6) do other wrongs to Mathis to his substantial harm.

¶ 5. Mathis’s complaint contained fourteen causes of action — first seeking the right to bring derivative claims on behalf of REP and including numerous breach of contract allegations, breach of fiduciary duties, violations of various duties of loyalty and care, tortious interference with contracts and business advantages, conspiracy, and other causes of action. Mathis requested relief in the form of a constructive trust, estoppel, specific performance, and actual and punitive damages.

¶ 6. ERA filed an answer to Mathis’s complaint, adding counterclaims against Mathis and cross-claims against REP, the Hills, and Irby. ERA later filed a motion to transfer the case to circuit court, and the motion was heard before the chancellor on June 24, 2004. The chancellor ultimately ruled against transferring the case to circuit court, ruling instead to bifurcate the action. He decided he would try “all derivative claim issues as raised by the pleadings and any other strictly chancery matters,” “all specific performance claims, if any,” and “all claims for rescission asserted by Mathis.” The chancellor stated that after ruling on those issues, he would consider any remaining issues and transfer any issues he deemed to be legal to circuit court. He also denied ERA’S motion to have the issue of subject matter jurisdiction certified for interlocutory appeal. We granted ERA’s request for interlocutory appeal.

STANDARD OF REVIEW

¶ 7. “The standard of review for a ruling on a motion to transfer from chancery court to circuit court, or from circuit court to chancery court, is de novo.... Jurisdiction is a question of law, and the Court reviewfc] questions of law de novo.” Union Nat’l Life Ins. Co. v. Crosby, 870 So.2d 1175, 1178 (Miss.2004) (citations omitted).

ISSUES

I. Whether the Chancery Court Erred in Failing to Transfer the Case to Circuit Court.

A. Derivative Claims

¶ 8. Mathis asserts that a number of the issues he raises are equitable because they are derivative in nature. He concedes that if REP were bringing a direct action against ERA for breach of contract and was seeking compensatory and punitive damages, rather than specific performance of the contract, REP’s suit would be an action at law. He admits that the same would be true for his claims of breach of fiduciary and other duties and claims of tortious interference. However, he claims that because he is asserting REP’s claims derivatively and seeks to have a court of equity fashion a remedy that prevents the other equity member of REP (Irby) from profiting from his wrongful conduct, jurisdiction is proper in chancery court.

¶ 9. As Mathis notes, we have previously addressed the propriety of a shareholder bringing a derivative action in the context of a closely-held corporation in Derouen v. Murray, 604 So.2d 1086 (Miss.1992). In Derouen, Leroy Derouen, a fifty-percent shareholder in a closely-held corporation (“H & D Seafood”) brought suit against Hudson Murray, the other fifty-percent shareholder who was also the president and director of H & D Seafood, alleging that Murray, through a new business entity, sold and improperly disposed of assets belonging to H & D Seafood. Derouen, 604 So.2d at 1088-90. In the complaint, Derouen sought “an accounting of all assets and monies coming into [Murray’s] hands in favor of H & D Seafood, Inc. and a declaration declaring and paying over to plaintiff a fifty percent interest in all said monies as dividends.” Id. at 1089-90. On appeal, this Court noted that although Derouen did not call his action a shareholder’s derivative action, he charged Murray with a breach of his fiduciary duty of fair dealing to the corporation, a violation of Murray’s duties owed primarily to the corporation and only derivatively owed to Derouen. Id. at 1091. In Derouen, we acknowledged that “our law impresses upon derivative actions certain pre-trial procedural requisites over and above the norm,” under Miss.Code Ann. § 79-4-7.40 (Rev.1989). Id. In a footnote, this Court noted that other jurisdictions have debated “whether an action such as this may be brought as well as a direct action” and decided that Mississippi would take the view that:

[i]n the case of a closely held corporation ..., the [chancery] court in its discretion may treat an action raising derivative claims as a direct action, exempt it from those restrictions and defenses applicable only to derivative actions, and order an individual recovery, if it finds that to do so will not (i) unfairly expose the corporation or the defendants to a multiplicity of actions, (ii) materially prejudice the interests of creditors of the corporation, or (iii) interfere with a fair distribution of the recovery among all interested persons.

Id. at 1091, n. 2 (quoting American Law Institute, Principles of Corporate Governance: Analysis and Recommendations § 7.01 (1994)).

¶ 10. ERA challenges Mathis’s assertion that this is a derivative action. ERA notes that Mathis has made no attempt to comply with prerequisites for bringing a derivative action in Mississippi; he has brought REP’s derivative claims as a direct action; and he seeks an individual recovery on REP’s claims. ERA argues that because Mathis is seeking only an individual recovery in this action, he is clearly not asserting these claims for the benefit of REP, the business entity. ERA further argues that even if Derouen can be read as allowing a shareholder to bring derivative claims in a direct action, it should not be read as allowing a shareholder in a closely-held corporation to bring a direct action, solely for his own benefit, and maintain the suit under the guise of being a shareholder’s derivative suit. We note that in the Derouen case, Derouen was merely seeking to recover from Murray, as a dividend, his fifty-percent interest in proceeds that should have gone to the business rather than Murray himself, Id. at 1089-90, yet Mathis seeks to exclude Irby, the other equity member of REP, from sharing in any recovery.

¶ 11. We agree with Mathis’s assertion that a true stockholder derivative action is a suit in equity which confers jurisdiction on the chancery court. However, unlike the plaintiff in Derouen, who merely sought his fair share of the proceeds owed to the corporation, Mathis is asserting his own personal claims, in addition to the derivative claims of REP, in a direct action that may benefit him alone, to the exclusion of the other equity owner in REP. Based on these facts, we must conclude that, as to the derivative claims through which Mathis seeks compensatory and punitive damages, he is pursuing a direct legal action rather than a true shareholder’s derivative action.

B. Whether the Issues in Mathis’s Complaint Required Transfer of the Case to Circuit Court.

¶ 12. ERA argues, based on a recent line of cases from this Court, that the chancellor was without jurisdiction to hear this matter, was required to transfer this case from chancery to circuit court, and committed reversible error in failing to grant a transfer. See, e.g., Copiah Med. Assocs. v. Mississippi Baptist Health Sys., 898 So.2d 656 (Miss.2005); Crosby, 870 So.2d 1175; Briggs & Stratton Corp. v. Smith, 854 So.2d 1045 (Miss.2003); Burnette v. Hartford Underwriters Ins. Co., 770 So.2d 948 (Miss.2000); Southern Leisure Homes, Inc. v. Hardin, 742 So.2d 1088 (Miss.1999). This argument is based in large part on the fact that in those cases, as here, punitive damages were sought, a strong indicator that the matter is a legal action rather than an equitable one. Crosby, 870 So.2d at 1179 (stating that where a complaint seeks both actual and punitive damages, the “remedy is clearly legal rather than equitable in nature.”). ERA’s position is also based on this Court’s prior recognition that “if some doubt exists as to whether a complaint is legal or equitable in nature, that case is better tried in circuit court” since circuit courts have general, rather than limited, jurisdiction. Burnette, 770 So.2d at 952.

¶ 13. ERA claims that Crosby, a case in which we reversed a chancellor for failing to transfer to circuit court, is “substantially indistinguishable” from the instant case and should be considered as controlling law. In. Crosby, Jacqueline Crosby and more than 350 other plaintiffs filed suit in chancery court against various insurance companies and their agents for selling them insurance policies using allegedly fraudulent, deceptive, or otherwise improper sales practices. Crosby, 870 So.2d at 1178. The plaintiffs raised claims of “fraud, fraudulent inducement, breach of duty of good faith and fair dealing, tortious breach of contract, breach of fiduciary duty, assumpsit, unjust enrichment, negligence, gross negligence, [ ] and conversion” and requested relief in the form of a “constructive trust, accounting, injunctive relief, actual damages and punitive damages.” Id. at 1178-79. In finding that the chancellor erred in refusing to transfer the action to circuit court, we stated that “[t]he record clearly shows that each and every one of Crosby’s claims, even the equitable claims of unjust enrichment and constructive trust, arise from the sale and alleged breach of an insurance contract” and that her claims were tied to the existence of a contractual relationship. Id. at 1182. We also reasoned in Crosby that “it is more appropriate for a circuit court to hear equity claims than it is for a chancery court to hear actions at law since circuit courts have general jurisdiction but chancery courts enjoy only limited jurisdiction,” especially in light of the fact that it is in circuit court that the constitutional right to a jury trial is preserved. Id. (Citations omitted). ERA also contends that Copiah, which was handed down after Crosby, affirmed the reasoning of Crosby in mandating a transfer from chancery to circuit court.

¶ 14. Mathis attempts to prevent the application of our holding in Crosby to the present case by arguing that his complaint is a mixture of equitable and legal issues, but we find that Mathis’s causes of action are primarily issues stemming from contractual obligations he contends were not met by the defendants. Breach of contract issues are best heard in circuit court. See Union National Life Ins. Co. v. Crosby, 870 So.2d 1175, 1180 (Miss.2004) (citing Southern Leisure Homes, Inc. v. Hardin, 742 So.2d 1088, 1089 (Miss.1999)). While we have allowed a chancery court to retain jurisdiction over cases involving questions of both law and equity, our more recent cases have held that equitable claims are more appropriately brought before a circuit court when they are connected to a contractual relationship or other claims tied to questions of law. See Copiah Med. Assocs’n v. Mississippi Baptist Health Systems, 898 So.2d 656 (Miss.2005); Crosby, 870 So.2d at 1175; RE/Max Real Estate Partners v. Lindsley, 840 So.2d 709 (Miss.2003). In addition, ERA would also be denied the opportunity for a jury trial if Mathis’s claims are adjudicated by a chancery court, and plaintiffs should not be allowed to deprive defendants of their constitutional right to a jury trial simply by a choice of forum. See Crosby, 870 So.2d at 1182. The combination of factors pointing to a circuit court as a better choice than a chancery court for the case to be heard convinces us that the chancellor erred by denying the defendants’ motion to transfer the case.

CONCLUSION

¶ 15. Because Mathis’s claims contain questions of law and equity, request punitive damages, and because having the claims adjudicated in chancery court would deprive ERA of the right to a jury trial, we find the chancellor erred in denying the defendants’ motion to transfer the case to circuit court. We reverse the chancery court’s denial of defendant’s motion and remand with instructions to transfer the case to the Covington County Circuit Court.

¶ 16. REVERSED AND REMANDED.

SMITH, C.J., CARLSON AND DICKINSON, JJ., CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. GRAVES, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DIAZ, J. COBB, P.J., AND RANDOLPH, J., NOT PARTICIPATING.

GRAVES, Justice,

Dissenting.

¶ 17. I find that Mathis’ complaint asserts equitable claims which confer original jurisdiction on the chancery court; therefore, I would affirm the chancellor’s denial of ERA’s motion to transfer. For purposes of establishing original equity jurisdiction, Mathis has pleaded claims for an accounting, a constructive trust, and specific performance of a contract to convey real property. Oddly enough, neither ERA nor the majority denies that these claims are equitable in nature or that each is sufficient to confer original jurisdiction on chancery court. The majority takes the position that because some of Mathis’ claims are legal in nature, all of his claims must be adjudicated in circuit court. This position ignores prior decisions of this Court which allow chancery courts to adjudicate pendent legal claims once original equity jurisdiction has been established.

A. Accounting.

¶ 18. Even though the derivative claims Mathis seeks to assert directly should be heard in circuit court, the chancery court may retain jurisdiction of this matter if an issue within its original jurisdiction is raised, even though the other issues are legal in nature. See RE/Max Real Estate Partners v. Lindsley, 840 So.2d 709, 712 (Miss.2003) (recognizing that “where there is in a case one issue of exclusive equity cognizance, such an issue can bring the entire case within subject matter jurisdiction of the chancery court and that court may proceed to adjudicate all legal issues as well.”); Tillotson v. Anders, 551 So.2d 212, 213 (Miss.1989) (“Where there appears from the face of the well-pleaded complaint an independent basis for equity jurisdiction, our chancery courts may hear and adjudge law claims.”). In this case, Mathis has made a claim against the defendants for an accounting, which he claims is necessarily brought in chancery court.

¶ 19. This Court has previously addressed situations where a plaintiff has brought a claim for an accounting to maintain an action in chancery court and has warned that “lower courts should ‘be wary of attempts to camouflage as a complicated accounting what is in essence an action at law for breach of contract.’ ” Briggs & Stratton Corp. v. Smith, 854 So.2d 1045, 1049 (Miss.2003) (quoting Thompson v. First Mississippi Nat’l Bank & Mutual Savings Life Ins. Co., 427 So.2d 973, 976 (Miss.1983)). Mathis acknowledges this Court’s admonition against requesting an accounting just to keep a case in chancery court, but he contends he meets the requirements to assert an equitable claim for an accounting, citing RE/Max.

¶ 20. In RE/Max, Lindsley filed suit in chancery court against a real estate company for its agent’s misappropriation of funds and sought damages for breach of contract, cancellation of the contract, an accounting of funds, and other relief. RE/Max, 840 So.2d at 711. The defendants attempted to have the action transferred to circuit court on the basis that the chancery court was without subject matter jurisdiction; the chancellor denied the motion; and this Court granted defendants’ petition for interlocutory appeal. Id. at 710. On appeal, this Court articulated three factors necessary for determining “whether a court of equity has jurisdiction over matters of account, (1) the need of discovery, (2) complicated character of the accounts, and (3) the existence of a fiduciary or trust relation.” Id. at 712 (citation omitted). In RE/Max, we found that all three elements for an equitable accounting existed in Lindsley’s claim; the chancery court therefore had original jurisdiction of the accounting; and the chancery court could exercise its pendent jurisdiction to hear Lindsley’s remaining legal claims. Id. at 713-14. This Court reasoned that an accounting should be heard in chancery rather than circuit court because “chancery courts have historically had jurisdiction over claims for accounting,” are “more adept at handling this sort of matter,” and an accounting was needed in the instant situation “to determine where the money is and what form it now assumes so that the court may decide the best way for Linds-ley to recover the money, if any, that she is due.” Id. at 713. We also noted that jurisdiction was proper in chancery court “because it is in the best position to award appropriate relief in the form of a constructive trust or an equitable lien, should one of those [ ] be required.” Id. at 714.

¶ 21. Under RE/Max, Mathis is entitled to an equitable accounting if he can show a need for discovery, the complicated character of the accounts, and the existence of a fiduciary or trust relationship. Id. at 712. As to the first requirement, Mathis has averred that the defendants’ actions “have been conducted, in large part, to the exclusion of the knowledge of Mathis, and discovery is needed to uncover the true scope of the scheme and conspiracy perpetrated on” him. Mathis has specifically pleaded the necessity of discovery, the first requirement for an accounting under RE/ Max.

¶ 22. Regarding the second requirement for an accounting, the complicated character of accounts, Mathis has alleged that four individual and three corporate defendants have converted both hard assets and real estate listings that belonged to REP and have used those assets to their advantage and to the exclusion of REP. Mathis seeks full restitution from the various defendants for any commissions they earned and any money they received as a result of breaching their fiduciary duties to him and/or REP. To adequately determine the actual loss to REP and/or Mathis regarding this claim, the chancellor would have to find out which, if any, defendants actually converted any assets/opportunities of REP, where those various assets were diverted, and how much, if any, each defendant has profited from the conversion and/or breach of fiduciary duty. I find that Mathis has shown that an accounting is necessary to sort out how various assets were diverted from REP and to what extent the named defendants have profited from breaching the fiduciary duties they owed to REP. As this Court noted in RE/Max, an “accounting may reveal that some of the funds have been used to purchase assets for the benefit of the defendants or assets over which the defendants now exert ownership” and maintaining the action “in chancery court will better allow [Mathis’] prayer for relief to be modified according to the results of the accounting.” Id. at 714.

¶ 23. The third requirement for an accounting, as articulated in RE/Max, is “the existence of a fiduciary or trust relation.” Id. at 712. Mathis alleged in his complaint that he was an equity member of REP with Chip and Pamela Hill, that Irby later purchased the Hills’ equity interest in REP, and that the Hills remained as employees and/or agents of REP. He then alleged that the fiduciary relationship which arose from being equitable owners of REP was breached by the Hills, Irby, and the other defendants in converting the assets and opportunities of REP to form REP-Central and REP-Pine Belt and in profiting from those actions. It is clear from these allegations that Mathis has sufficiently pleaded the existence of a fiduciary relationship, thus meeting the third requirement for an equitable accounting.

¶ 24. Mathis has sufficiently pleaded his entitlement to an accounting, as his complaint complies with all three of the requirements articulated in RE/Max. Unlike the situation in Union Nat’l Life Ins. Co. v. Crosby, 870 So.2d 1175 (Miss.2004), where all of the plaintiffs’ claims were based on the existence of an insurance contract, or Briggs, where the plaintiff attempted to initiate an accounting against himself to show that he did not misuse inventory or parts and that his contract with the defendants was cancelled in bad faith, Mathis has shown the existence of a fiduciary relationship and that an accounting is necessary to track and recover the assets, and profits arising therefrom, which he alleges were converted by the various defendants. Because the chancery court has original jurisdiction of Mathis’ claim for an accounting, it may also retain pendent jurisdiction over his remaining legal claims.

B. Constructive Trust.

¶ 25. Mathis also pleaded for a constructive trust arising from equitable conversion of property, an equitable remedy that he claims confers jurisdiction on the chancery court. In McNeil v. Hester, 753 So.2d 1057, 1064 (Miss.2000), we stated that “[a] constructive trust is a fiction of equity created for the purpose of preventing unjust enrichment by one who holds legal title to property which, under principles of justice and fairness, rightfully belongs to another.” This Court has defined a constructive trust as:

one that arises by operation of law against one who, by fraud, actual or constructive, by duress or abuse of confidence, by commission of wrong, or by any form of unconscionable conduct, artifice, concealment, or questionable means, or who in any way against equity and good conscience, either has obtained or holds the legal right to property which he ought not, in equity and good conscience, hold and enjoy.

McNeil, 753 So.2d at 1064 (citing Saulsberry v. Saulsberry, 223 Miss. 684, 690, 78 So.2d 758, 760 (1955)). The Saulsberry Court stated that although the mere existence of a confidential or fiduciary relationship alone does not create a constructive trust, “an abuse of confidence rendering the acquisition or retention of property by one person unconscionable against another sufficies [sic] generally to ground equitable relief in the form of the declaration and enforcement of a constructive trust,” and cautioned courts against limiting “the rule or the scope of its application by a narrow definition of fiduciary or confidential relationships protected by it.” Saulsberry, 78 So.2d at 760. In Saulsberry, the plaintiff averred that the defendant made an oral promise to the decedent to execute a note and deed of trust to secure the purchase of land yet had no intention of performing on that promise, that the defendant and decedent had a confidential relationship, that the defendant gained an advantage by the decedent’s reliance on defendant’s representations, and that the defendant was unjustly enriched by his actions. Id. at 761. On appeal, we held that the plaintiffs sufficiently pleaded for a constructive trust in their amended bill of complaint and overruled the chancellor’s demurrer of the bill. Id.

¶ 26. In the instant case, Mathis alleged, inter alia, that Chip Hill represented to him that he (Hill) would transfer his ownership interest in certain real property to Mathis if Mathis would lend him additional funds. Mathis also alleged the existence of a fiduciary relationship between himself and Hill, as they were equity members of REP. Mathis alleged that he detrimentally relied on Hill’s representations by lending him additional funds, and that Hill has been unjustly enriched, since he has failed to repay the loan and transfer the subject property. These allegations are virtually indistinguishable from those in Saulsberry, where we found that the plaintiffs sufficiently pleaded a cause of action for a constructive trust. Additionally, this case is factually distinguishable from Crosby, a case where this Court found the chancery court to be without jurisdiction. In Crosby, the plaintiffs’ claims for a constructive trust arose “from the sale and alleged breach of an insurance contract,” Crosby, 870 So.2d at 1182, while Mathis’ claim is based on the existence of a fiduciary relationship between him, Chip Hill, and other named defendants. Therefore, Mathis has sufficiently pleaded his claim for a constructive trust, an equitable remedy that confers original jurisdiction on the chancery court.

C. Specific Performance.

¶ 27. Mathis alleged that Chip Hill breached an agreement to convey real property to him, and he brought a specific performance claim to require Hill to convey the subject property to him. In Roberts v. Spence, 209 So.2d 623, 626 (Miss.1968), which involved the sale of personal property, this Court stated that “ordinarily a court of equity will not attempt to enforce a contract by specific performance where the parties have an adequate remedy at law to recover damages growing out of’ a party’s failure to carry out a contract’s terms. However, our courts have recognized that specific performance “is a particularly appropriate remedy in matters relating to tracts of real property because of the unique nature of real estate.” In re Estate of Pickett, 879 So.2d 467, 471 (Miss.Ct.App.2004) (citing Berryhill v. Hatt, 428 N.W.2d 647, 657 (Iowa 1988)). Furthermore, this Court reasoned in Copiah Med. Assoc. v. Mississippi Baptist Health Sys., 898 So.2d 656, 660-61 (Miss.2005), that Baptist’s reliance on Osborne v. Bullins, 549 So.2d 1337, 1339-40 (Miss.1989) (recognizing that specific performance is a remedy for breach of land sale contracts), as grounds to specifically enforce a lease agreement was misplaced because Osborne involved a land sales contract rather than a lease-contract.

¶28. Because Mathis has alleged that Hill contracted to convey specific real property to him and has breached that contract, specific performance is an equitable remedy that is available to him, due in large part to the uniqueness of real estate. Thus, it was appropriate for the chancery court to assert original jurisdiction over this claim.

D. Punitive Damages and Jury Trial.

¶ 29. ERA argues that because the majority of Mathis’ claims seek both compensatory and punitive damages, this case is essentially legal in nature and should be heard in circuit court. See Crosby, 870 So.2d at 1179 (noting that where plaintiff sought actual and punitive damages, the “remedy is clearly legal rather than equitable in nature.”) (citation omitted). While Crosby and similar cases do speak of circuit courts as being the proper courts to adjudicate a claim for punitive damages, we have also previously held that “chancery courts have the discretion to award legal and even punitive damages as long as the chancery court’s jurisdiction has attached.” RE/Max, 840 So.2d at 712 (citing Southern Leisure Homes, Inc. v. Hardin, 742 So.2d 1088, 1090 (Miss.1999)). See also Tideway Oil Programs, Inc. v. Serio, 431 So.2d 454, 459 (Miss.1983) (holding that chancery courts “have the discretionary power to assess punitive damages according to the same substantive standards as apply to our circuit courts.”). Because chancery court jurisdiction attached to Mathis’ claims for an accounting, constructive trust, and specific performance, it follows that the chancery court has authority to award both compensatory and punitive damages in the instant case.

¶ 30. ERA also argues that jurisdiction is only appropriate in circuit court because chancery court does not adequately preserve its right to a jury trial. In Crosby, this Court found that the defendant’s right to a jury trial, under Miss. Const. Art. 3, § 31, “would be infringed upon if this case were heard in chancery court.” Id. at 1181. This finding was based on the fact that “[i]n ‘[cjhancery court, with some few statutory exceptions, the right to jury is purely within the discretion of the chancellor, and if one is empaneled, its findings are totally advisory.’ ” Id. at 1181-82 (quoting Louisville & Nashville R.R. v. Hasty, 360 So.2d 925, 927 (Miss.1978)). The Crosby Court further reasoned that the public policy of allowing a plaintiff “to choose his or her forum does not outweigh [a defendant’s] constitutional right to a jury trial.” Id. at 1182.

¶ 31. Although the right to a jury trial in this state is substantial, as recognized by Crosby, Hardin, and other cases, this right is not absolute. See RE/Max, 840 So.2d at 713 (“Though it is true, as defendants assert, that the right to a jury trial shall remain inviolate, this right is not absolute.”). The plaintiff in RE/Max asserted a claim for an accounting, which is properly heard in chancery court, in addition to a damages claim for breach of contract. Id. at 711. Because chancery court jurisdiction attached to the accounting claim, jurisdiction remained proper in that court, even though the defendant would not be entitled to a jury. Id. at 713-14. See Poole v. Gwin, Lewis & Punches, LLP, 792 So.2d 987, 990 (Miss.2001) (recognizing that “there is no right to trial by jury in chancery court.”). This Court also stated in RE/Max that a defendant’s right to a jury trial is balanced against a plaintiffs choice of forum and that “[t]his right is limited only by rules of procedure and fair play,” ultimately finding that the plaintiff could properly bring suit in chancery court and that the defendants were not prejudiced by such action. RE/Max, 840 So.2d at 713.

¶ 32. Copiah, Crosby, Briggs, and other recent cases make it clear when a claim is legal in nature and the plaintiff seeks compensatory and punitive damages, jurisdiction is appropriate in circuit court; however, Re/Max holds that when a plaintiff asserts a claim that is based in equity, such as an accounting or constructive trust, not only may the chancellor retain jurisdiction over the equitable claims, but he may also adjudicate the pendent legal claims. In the instant case, Mathis sufficiently pleaded facts which, if proven, would entitle him to relief in the form of an accounting, constructive trust, and/or specific performance.

¶ 33. Because the equitable claims pleaded by Mathis clearly conferred original jurisdiction upon the chancery court, the chancellor also had the authority to retain pendent jurisdiction over the legal claims, including the punitive damages claim, despite that Mathis will not get the benefit of a jury trial. I find that the chancellor did not commit reversible error in denying ERA’S motion to transfer, so I must respectfully dissent.

DIAZ, J., JOINS THIS OPINION.

      . ERA is the only defendant who has appealed the chancellor's decision.

      . Though jurisdiction was never challenged in Derouen, we note that the action was brought in chancery court.

      . The prerequisites for bringing a derivative action under the Mississippi Limited Liability Company Act are found in Miss.Code Ann. §§ 79-29-1101 to-1104.

      . In Copiah, Copiah Medical Associates ("CMA”) filed a breach of contract claim against Mississippi Baptist Health Systems ("Baptist”) in circuit court. Copiah, 898 So.2d at 658. Baptist later filed a complaint against CMA in chancery court, seeking specific performance of a lease agreement repudiated by CMA. Id. at 658-59. CMA then moved to amend its complaint in circuit court to add a declaratory action that the lease was void. Id. at 659. After both parties filed several motions in both courts, CMA filed an amended motion to transfer the action filed by Baptist in chancery court and requested that the chancellor either dismiss or stay such action pending the outcome of the circuit court action, which the chancellor denied. Id. On interlocutory appeal, this Court determined that because the contract breached was a lease agreement rather than a land sales contract, the breach of contract claim was proper in circuit court. Id. at 661. The Copiah Court also ruled that the claims raised by Baptist in its chancery court complaint "should have been submitted as a compulsory counterclaim in the circuit court action,” the circuit court had priority jurisdiction over the complaint filed in chancery court, and transferred the case to circuit court. Id. at 663-64.

      . The RE/Max Court reiterated that chancery courts have historically had jurisdiction over suits for an accounting and were the proper courts for such actions yet acknowledged that the Mississippi Constitution grants chancery and circuits courts concurrent jurisdiction over "suits involving inquiry into matters of mutual accounts." Id. at 711 (citing Miss. Const, art. 6, § 161).

      . "A claim invokes the court’s pendent jurisdiction if it ’arise[s] out of the same transaction or occurrence as the principal claim or, as others put it, out of a common nucleus of operative fact.’ ” Id. at 714 (citations omitted).

      . This Court stated in RE/Max:

      Presumably with the knowledge that concurrent jurisdiction between chancery and circuit court existed for this matter, Linds-ley chose to bring her suit for redress in the chancery court. This was her choice and, if proper and fair, must be respected here. See generally New Orleans & N. E.R. Co. v. Gable, 252 Miss. 605, 611, 172 So.2d 421, 423 (1965) (We said in the recent case of Johnson v. Bagby, Miss., [252 Miss. 125,] 171 So.2d 327, decided February 1, 1965, that '[a]s yet, litigants have the right not only to choose their forum but frequently the right to choose their adversaries.’). We find that it was indeed proper for Lindsley to bring this suit in chancery court and not unduly prejudicial to require the defendants to defend this suit therein.
      840 So.2d at 713.


author: WALLER, Presiding Justice,

text:
    Cassandra YOUNGER v. STATE of Mississippi.
    No. 2005-KA-00041-SCT.
    Supreme Court of Mississippi.
    June 22, 2006.

      Cynthia A. Stewart, attorney for appellant.
    Office of the Attorney General by W. Daniel Hinchcliff, attorney for appellee.
    Before SMITH, C.J., WALLER, P.J., and DICKINSON, J.
   WALLER, Presiding Justice,

for the Court.

¶ 1. Cassandra Younger was convicted of murder by a Hinds County Circuit Court jury and sentenced to life in prison. Younger asserts on appeal that she should have been given a new trial because of evidence showing the jury might have been exposed to outside influence. We affirm.

FACTS

¶ 2. Younger was convicted of shooting and killing Tasha Colbert. The State produced evidence and eyewitness testimony pointing to Younger as the killer. Younger’s defense was her belief that Colbert had a gun on her person and meant to do Younger harm. A jury found Younger guilty of murder, and the circuit court immediately sentenced her to a term of life imprisonment for the crime. Younger now appeals the denial of her post-trial motions and also finds fault with the circuit court’s failure to declare a mistrial sua sponte.

ISSUES

1. Whether Younger’s Right to a Fair Trial Was Compromised.

¶ 3. Younger argues that the possibility that jurors had and used cell phones destroyed the integrity of her trial and warrants a new trial in light of the merest chance that jurors engaged in prohibited communications. Younger suggests that the circuit court erred by failing to properly instruct the jury concerning the use of cellular phones and by failing to investigate juror misconduct and exposure to improper influences.

A Whether the Circuit Court Properly Admonished and Instructed the Jury.

¶ 4. Younger suggests the circuit court erred by failing to instruct the jury not to use or possess cell phones while they were acting as jurors in Younger’s case. The judge’s preliminary instructions prohibited any communication with anyone concerning the case during the trial’s duration by stating “... you are prohibited from having any contact or conversation with the attorneys, parties, witnesses, spectators or anyone else concerning this case.” Younger did not object to the judge’s admonitions to the jury at the time he gave them and has failed to point to any case law finding preliminary instructions that do not contain specific prohibitions concerning cell phones to be inadequate. The failure to offer a contemporaneous objection to an instruction waives the issue on appeal. See Smith v. State, 729 So.2d 1191, 1210 (Miss.1998).

B. Whether the Circuit Court Improperly Failed to Investigate Potential Juror Misconduct.

¶ 5. Younger’s counsel, Cynthia Stewart, claims she witnessed the jury’s foreman in possession of a cellular phone during the jury’s return to the courtroom to announce their verdict and after the verdict was read immediately informed the judge of the juror’s possession of a cell phone. Neither of these assertions are supported by the record. It is the responsibility of Younger to present to us “a record sufficient to show the occurrence of the error” she asserts in order to show that the issue was properly presented to the circuit court and timely preserved for appeal. King v. State, 857 So.2d 702, 714 (Miss.2003) (quoting Acker v. State, 797 So.2d 966, 972 (Miss.2001)); See also Pulphus v. State, 782 So.2d 1220, 1224 (Miss.2001) (“Issues cannot be decided based on assertions from the briefs alone. The issues must be supported and proved by the record.”)

2. Whether the Circuit Court Erred by Denying Younger’s Post-trial Motions.

¶ 6. Younger also argues the circuit court erred when it refused to grant her post-trial motions for a new trial and judgment notwithstanding the verdict based on the possible misconduct of jurors. The standard of review for a post-trial motion is abuse of discretion. Horton v. State, 919 So.2d 44, 49 (Miss.2005) (quoting Howell v. State, 860 So.2d 704, 764 (Miss.2003)). During a hearing on her post-trial motions for a new trial and judgment notwithstanding the verdict, Younger called upon a private detective to testify as to the possible possession of cell phones by jurors during Younger’s trial. The circuit judge refused to allow the private detective, to testify and denied Younger’s motions. The circuit judge’s reasons for refusing to allow the detective to testify are of no consequence because Younger attempted to bring an issue on a post-trial motion that she failed to raise at the trial court level. Such attempts are barred. See Barnett v. State, 725 So.2d 797, 801-02 (Miss.1998) (In a murder case, we stated that waiting to raise issues in a post-trial motion that should have been raised at trial bars consideration of those issues.) While Younger argues she did indeed bring the possible juror misconduct to the circuit judge’s attention, it was Younger’s responsibility to preserve the record for appeal. See Pulphus, 782 So.2d at 1224. Because the record does not reflect Younger’s attempts to raise the issue of juror misconduct at the circuit court level, we do not find that the circuit judge abused his discretion by denying Younger’s post-trial motions that were based on her allegations concerning the jury. Id.

3. Whether the Circuit Court Erred in Failing to Declare a Mistrial.

¶ 7. Younger contends the circuit court judge should have declared a mistrial as soon as she raised concerns at the close of the trial. We have stated that mistrials should only be declared sua sponte under our “manifest necessity” rule. See Spann v. State, 557 So.2d 530, 532 (Miss.1990). The record does not support Younger’s argument that the cell phone issue was raised during trial, and Younger’s failure to preserve the record bars her claim from consideration. See King, 857 So.2d at 714.

CONCLUSION

¶ 8. Because Younger has failed to bring to the attention of this Court any reversible errors, we affirm the trial court’s judgment.

¶ 9. CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.

SMITH, C.J., DIAZ, EASLEY, CARLSON, GRAVES, DICKINSON AND RANDOLPH, JJ., CONCUR. COBB, P.J., NOT PARTICIPATING.


author: DICKINSON, Justice,

text:
    J & J TIMBER COMPANY, A Mississippi Corporation v. Rembert J. BROOME, Son and Next Friend of James C. Broome, Deceased, and Rembert J. Broome, Father and Next Friend of Sarah M. Broome, a Minor, Deceased.
    No. 2004-IA-01914-SCT.
    Supreme Court of Mississippi.
    May 4, 2006.

      William W. McKinley, Jr., Jackson, Dor-rance Aultman, Hattiesburg, attorneys for appellant.
    T. Jackson Lyons, Jackson, attorney for appellee.
    Before SMITH, C.J., CARLSON and DICKINSON, JJ.
   DICKINSON, Justice,

for the Court.

¶ 1. This wrongful death suit arises out of an accident between a log truck and a bus. As part of a settlement, the plaintiffs released the driver of the log truck from all liability and agreed to indemnify him against third-party claims. The question presented is whether the plaintiffs’ settlement with the driver of the log truck precludes recovery against his employer under a vicarious liability theory. While the Appellant raises two additional issues, the disposition of this initial question renders the remaining two moot.

BACKGROUND FACTS AND PROCEEDINGS

¶ 2. Jim Smith Trucking (“Smith”), a business engaged in hauling logs from timber vendors’ yards to timber mills, hired Brent Galatas (“Galatas”) to drive its hauling truck. Approximately three to four months before the accident at issue, Smith contracted with J & J Timber Company (“J & J Timber”) to haul its logs. J & J Timber specified the species, type, length, cut, and amount of timber to be hauled to particular mills by Smith’s driver, Galatas.

¶ 3. On November 27, 1999, Galatas delivered two loads of J & J Timber’s logs to its specified timber yard. After hauling and unloading the second load, Galatas was driving back to Smith’s house in the unloaded truck when he collided with a bus occupied by a family of gospel singers on their way to perform a concert. The collision disintegrated the front of the bus, and two people, James C. Broome (“James”) and Sarah M. Broome (“Sarah”), were killed.

¶ 4. Prior to instituting litigation, the wrongful death beneficiaries of James and Sarah, including the Appellee Rembert J. Broome (“Broome”), reached a settlement with Galatas and Smith. The settlement included two documents entitled, “RECEIPT, RELEASE AND INDEMNITY AGREEMENT,” representing the respective interests of James’ and Sarah’s beneficiaries. Both agreements contained similar language, quoted in relevant part below:

The term “RELEASED PARTIES” as used in this RECEIPT, RELEASE AND INDEMNITY AGREEMENT, shall include the following: James “Jim” Smith, Brent Galatas, and American Reliable Insurance Company....
[The wrongful death beneficiaries] ... do hereby RELEASE, ACQUIT AND FOREVER DISCHARGE, all of the said RELEASED PARTIES, collectively and individually, from any and all actions and/or causes of action ... [resulting] from injuries and/or damages we received ... [in the incident]....
[The wrongful death beneficiaries] ... do understand that this Agreement effects a RELEASE AND DISCHARGE of all our claims ... arising out of, or in any way related to the accident....
Notwithstanding anything else contained herein to the contrary, it is agreed, understood, and stipulated that [the wrongful death beneficiaries] ... are specifically and expressly reserving, and not releasing, any and all claims we may have of any kind and type whatsoever relating to the incident against J & J Timber....
[The wrongful death beneficiaries] do warrant that we are the only parties entitled to claim and recover damages or otherwise make any recovery whatsoever resulting from or arising out of [the incident] and we agree to defend, indemnify, and hold harmless the Re-leasees from any and all claims and damages, including third-party claims for damages resulting from or in any way arising out of the injuries, damages, and/or death of [the deceased persons] which may be made by any other person(s), party(s), entity(s), or concern(s), whatsoever....

(Emphasis added).

¶ 5. On November 27, 2001, Broome filed a wrongful death action against J & J Timber, charging it with vicarious liability for the negligence of its employee, Galatas. At the conclusion of testimony, the issue submitted to the jury was whether J & J Timber could be held vicariously liable for Galatas’ negligence in causing the crash. To reach that issue, the jury was first required to determine whether Galatas was J & J Timber’s employee.

¶ 6. The jury returned a unanimous verdict in favor of J & J Timber. However, the trial court granted Broome a new trial, stating it had misinstructed the jury and improperly restricted Broome by forcing him to abandon what the trial court concluded was a viable dual employment theory of liability. On October 22, 2004, we granted interlocutory appeal and stayed further proceedings.

¶ 7. Of the three issues presented by J & J Timber, we shall address only the first, which we find dispositive of the case. The issue presented is whether, as a matter of law, the release of a tortfeasor also serves as a release of the tortfeasor’s employer from claims of vicarious liability, despite an attempt by the releasor to preserve the right to pursue such claims.

DISCUSSION

¶ 8. When reviewing issues of law, this Court engages in de novo review. Sealy v. Goddard, 910 So.2d 502, 506 (Miss.2005) (citing Ellis v. Anderson Tully Co., 727 So.2d 716, 718 (Miss.1998)); Ostrander v. State, 803 So.2d 1172, 1174 (Miss.2002) (citing Dep’t of Human Servs. v. Gaddis, 730 So.2d 1116, 1117 (Miss.1998)).

¶ 9. J & J Timber argues that Broome’s release of Galatas and agreement to indemnify him against all third-party claims effectively preclude Broome from pursuing an action against J & J Timber based on vicariously liability. J & J Timber further contends that when an injured party releases the only negligent actor from liability, a derivative claim of liability against the employer is extinguished.

¶ 10. J & J Timber asserts that, should Broome succeed in pursuing a claim of vicarious liability, a “circle of indemnity” will result. J & J Timber points out that it has a common law right of indemnification against Galatas, who was the only actively negligent party. Thus, Broome would seek reimbursement from Galatas of any judgement against it. Galatas in turn would seek reimbursement from Broome pursuant to the indemnification agreement. Thus, in effect, Broome would be ultimately responsible for the payment of any judgment, rendering moot Broome’s suit against J & J Timber. J & J Timber argues that such “circuity of action” can only be avoided by holding that the release of an employee bars all vicarious liability claims against the employer.

¶ 11. Broome argues that Mississippi law permits a third party injured by an employee to elect to sue the employee, the employer, or both. Accordingly, Broome says, the employee and employer are jointly liable for any damages to the injured party. Broome contends that under Mississippi Code Annotated Section 85-5-1, a wrongful death beneficiary’s settlement with one party does not operate to release any other party at fault. Additionally, Broome points out that he released Gala-tas only in his individual capacity because the agreement expressly reserved the right to pursue a claim against J & J Timber as Galatas’ employer. Broome contends the only way to harmonize the provisions of the release is to interpret them in a way that allows him to bring an action against J & J Timber. Notably, Broome never argues that we should uphold our previous determination of this issue from W.J. Runyon & Son, Inc. v. Davis, 605 So.2d 38 (Miss.1992) (hereinafter Runyon), overruled on other grounds by Richardson v. APAC-Mississippi Inc., 631 So.2d 143 (Miss.1994).

Runyon and Richardson

¶ 12. Although Runyon holds that the release of an agent has no effect on the principal’s vicarious liability, 605 So.2d at 43, J & J Timber points to a statement in dicta in Richardson indicating that the release of an employee bars claims of vicarious liability against the employer, 631 So.2d at 151 fn. 7. J & J Timber advocates the further overruling of Runyon and adoption of Richardson’s dicta position on this issue.

¶ 13. In Runyon, the plaintiff, Davis, was injured when he collided with an asphalt truck obscured by the thick cloud of dust it created. 605 So.2d at 40-41. One issue before the Court was whether Davis could sue the truck driver’s putative employer, Runyon, even after Davis settled with the driver and released him. Id. at 43. Runyon argued that the settlement effected a full recovery by Davis, and allowing Davis to pursue a claim against it would lead to unjust enrichment. Id. The Court noted that Davis had reserved his rights against the company in the release agreement, and we focused on the favorable public policy of encouraging settlements, stating “[t]here are all sorts of rational reasons why our law should allow a plaintiff to settle with less than all of multiple defendants and proceed against the remaining defendant or defendants.” Id. Finally, we found that because no language in the release claimed that the settlement with the driver fully compensated him, Davis could proceed against Runyon. Id.

¶ 14. This Court also held that Runyon could be found independently negligent, not merely vicariously liable, for its actions leading to the crash. Id. at 42. While we held that the release of the driver did not preclude an action against Runyon, we blurred the distinction between maintaining an action against the employer on the basis of negligence directly attributable to the employer and negligence based solely on vicarious liability. This is the key inquiry in this case and the distinction discussed in dicta in Richardson.

¶ 15. Finally, the Runyon Court held that the employee/independent contractor analysis boils down to a single question: “whether the project owner maintains a significant de jure right or de facto power of control over the performance of aspects of the work from which the injury has arisen or to which it is reasonably incident.” Id. at 46. Disposing of the traditional factor-based analysis, we held, as a matter of law, the driver was Runyon’s employee, thus making Runyon vicariously liable for the driver’s negligence. Id. at 47.

¶ 16. In Richardson, this Court took express exception to the last holding in Runyon. Because Runyon incorrectly analyzed the employment relationships involved, we overruled the case as to its independent contractor analysis. Richardson, 631 So.2d at 152. However, we did not expressly overrule Runyon as to its declaration, notably unsupported by any Mississippi authorities, that the release of an agent does not affect claims of vicarious liability against the principal. In dicta, though, we indicated that this holding in Runyon was suspect:

While an employer and his employee are jointly and severally liable for injuries caused by the employee in the course of his employment, may be sued jointly or severally, and we have held that where both are sued, the jury may be instructed it can return a verdict against them both or either of them, they are not joint tortfeasors. Joint tortfeasor claims arise where the separate wrongful conduct of two or more individuals combine to cause an injury, and each because of his conduct bears some responsibility for the injury. There is a good reason to permit plaintiff to settle as to one of the joint tort-feasors, reserving the right to proceed against the other wrongdoer. Where the principal is sought to be held liable for acts of his agent, as here, however, only one, the employee, has committed any wrong. Settlement with one and then proceeding against the other in this kind of case bears far greater scrutiny than settling with a joint tortfeasor and proceeding against the other. We are not required to address this question in the case, however.

Id. at 151 fn. 7 (emphasis added; citation omitted).

¶ 17. Prior to the Runyon decision, we held in Granquist v. Crystal Springs Lumber Co., 190 Miss. 572, 1 So.2d 216, 218 (1941), that where a plaintiff recovered a judgment against the sole tortfeasor, a subsequent suit against his employer was barred because the wrong was legally satisfied. The Court stated:

It further follows as a logical legal consequence of what has been said that when the third person, with the full knowledge alleged in the quoted plea, has by suit or action had a recovery against the agent or employee for the wrong committed by the agent or employee as the sole actor in the commission of the wrong, the liability of the principal or master which was solely a derivative of, or a dependency from, and identical with the tort of the agent or servant, becomes merged into the judgment recovered against the agent or servant if that judgment be collectible, for that the wrong has then been legally satisfied and no subsequent or separate action against the principal or master will be allowed.

Id. (Emphasis added). Of course, in Granquist, the plaintiff first sued the negligent employee, received a judgment, and then pursued an action against the employer based on vicarious liability. Id. at 218. In the instant case, Broome settled with the negligent employee and received compensation before filing suit, and then pursued an action against J & J Timber based on vicarious liability. Nonetheless, Gran-quist’s principles are applicable to the case at bar.

¶ 18. We reached a similar result in Lowery v. Statewide Healthcare Service, Inc., 585 So.2d 778, 779 (Miss.1991). In Lowery, this Court held that a statute of limitations bar against a nurse in a medical malpractice case also barred suit against the nurse’s employer where the employer’s “liability was predicated solely upon the doctrine of respondeat superior.” Id. We noted the general rule “that a suit barred by a statute of limitation against an agent will likewise bar the same claim against the principal whose liability is based solely upon the principal and agent relationship, and not some act or conduct of the principal separate and apart from the act or conduct of the agent.” Id. at 780.

¶ 19. An action against an employer based on the doctrine of respondeat superior is a derivative claim arising solely out of the negligent conduct of its employee within the scope of his or her employment. Loss of consortium is similarly derivative, and Mississippi law dictates that if the underlying personal injury claim is disposed of, the loss of consortium claim cannot be maintained on its own. McCoy v. Colonial Baking Co., Inc., 572 So.2d 850, 852 (Miss.1990). While Broome did not have his claims against Galatas thrown out, he voluntarily settled them and released Galatas from the threat of any further action. The principles precluding a loss of consortium claim when the underlying action is gone apply equally to this case with respect to an employer’s vicarious liability. Once Broome discharged Galatas, the purely derivative vicarious liability claim against J & J Timber became barred.

¶20. Having settled with Galatas and released him from liability, and absent allegations of independent negligence on the part of J & J Timber, Broome may not maintain an action against the company. The Iowa Supreme Court has adeptly stated the reasoning behind this principle:

The “percentage of negligence” attributable to the conduct of the servant constitutes the entire “single share” of liability attributable jointly to the master and servant.... Because this percentage of negligence represents the “single share” of liability covered by the common liability of the master and servant, the master is necessarily released from vicarious liability for the released servant’s misconduct.

Biddle v. Sartori Mem’l Hosp., 518 N.W.2d 795, 798 (Iowa 1994) (citing Horejsi v. Anderson, 353 N.W.2d 316, 318 (N.D.1984)). The court stated that, “because vicarious liability derives solely from the principal’s legal relation to the wrongdoer, settlement with the tortfeasor removes the basis for any additional recovery from the principal upon the same acts of negligence.” Biddle, 518 N.W.2d at 798 (citing Copeland v. Humana of Ky., Inc., 769 S.W.2d 67, 70 (Ky.Ct.App.1989)).

¶ 21. Where a party’s suit against an employer is based on respondeat superior, the vicarious liability claim itself is extinguished when the solely negligent employee is released. There can be no assessment of damages against the employer when no action can be brought against the only negligent party' — -the employee. To the extent that Runyon holds that a vicarious liability claim can be maintained against the employer after the employee is released, without an allegation of independent negligence by the employer, that case is overruled.

The “Circle of Indemnity”

¶22. We now address J & J Timber’s “circle of indemnity” argument. Should Broome succeed in his suit against J & J Timber, the company claims it would assert its common law right of indemnity against Galatas. This common law right of indemnity would allow J & J Timber to recover all the damages it must pay to Broome as a result of the actions of Gala-tas, the only actively negligent party. See Granquist, 1 So.2d at 218.

¶ 23. In turn, Galatas could rely on his contractual indemnity rights arising from the releases signed by Broome. The releases state, in relevant part:

[The wrongful death beneficiaries] agree to defend, indemnify, and hold harmless the Releasees [Galatas] from any and all claims and damages, including third-party claims for damages resulting from or in any way arising out of the injuries, damages, and/or death of [the deceased persons] which may be made by any other person(s), party(s), entity(s), or concern(s), whatsoever.

¶ 24. Following the. circle of indemnity to its eventual conclusion, a hypothetical judgement of $1,000 would be collected by Broome from J & J Timber, who in turn would seek reimbursement of the $1,000 from Galatas, who would in turn seek reimbursement from Broome. In the final analysis, all three parties would be right back where they started. Stated differently, the “circle of indemnity” renders Broome’s claims moot because he would, in affect, pay his own judgement. See Dennis v. Southeastern Kansas Gas Co., Inc., 227 Kan. 872, 610 P.2d 627, 633 (1980).

¶ 25. Contrary to this Court’s assertion in Runyon, 605 So.2d at 43, eliminating the circuity of action that arises from an injured party’s vicarious liability claim against an employer when the negligent employee has been released actually encourages settlement and promotes finality in actions. As the Supreme Court of South Dakota noted, “[t]he rationales of preventing circuity of action and encouragement of settlement complement one another. The complementary aspects of both rationales serve another important goal: finality. Public policy favors finality, thus avoiding circuity of action that is merely derivative and secondary.” Estate of Williams v. Vandeberg, 620 N.W.2d 187, 190 (S.D.2000). See also Theophelis v. Lansing Gen. Hosp., 430 Mich. 473, 424 N.W.2d 478, 480 (1988).

¶26. A.majority of states have adopted the position that the release of a tortfeasor thereby releases the tortfeasor’s principal for all claims of vicarious liability, despite any reservation of rights. See, e.g., Alvarez v. New Haven Register, Inc., 249 Conn. 709, 735 A.2d 306, 315 (1999); Gilbert v. Sycamore Mun. Hosp., 156 Ill.2d 511, 190 Ill.Dec. 758, 622 N.E.2d 788, 797 (1993); 480; Biddle, 518 N.W.2d at 799; Atkinson v. Wichita Clinic, P.A., 243 Kan. 705, 763 P.2d 1085, 1091-92 (1988); Copeland, 769 S.W.2d at 70; Kelly v. Avon Tape, Inc., 417 Mass. 587, 631 N.E.2d 1013, 1015 (1994); Theophelis, 424 N.W.2d at 480; Reedon of Faribault, Inc. v. Fidelity & Guar. Ins. Underwriters, Inc., 418 N.W.2d 488, 491 (Minn.1988); Pioneer Animal Clinic v. Garry, 231 Neb. 349, 436 N.W.2d 184, 188 (1989); Horejsi, 353 N.W.2d at 318; Mamalis v. Atlas Van Lines, Inc., 522 Pa. 214, 560 A.2d 1380, 1383 (1989); Vandeberg, 620 N.W.2d at 191. We adopt the position advocated by these courts that the injured party’s release of an employee extinguishes all claims of vicarious liability against the employer, despite any reservation of rights.

Mississippi Code Annotated Section 85-5-1

¶ 27. Broome contends that the right of an injured person to settle with and release one tortfeasor while reserving his right to proceed against others who may be legally responsible has been upheld in a long line of cases. While this may be a correct argument, it is inapposite here. Galatas and J & J Timber may be jointly liable, but they are not joint tortfea-sors. See Granquist, 1 So.2d at 218. “Joint tortfeasor claims arise where the separate wrongful conduct of two or more individuals combine to cause an injury, and each because of his conduct bears some responsibility for the injury.” Richardson, 631 So.2d at 151 fn. 7 (citing Granquist, 1 So.2d at 218)(emphasis added). Here, Ga-latas is the sole tortfeasor. There is no apportionment of fault required in this case because the only person who committed any wrong was Galatas.

¶ 28. Broome points to Mississippi Code Annotated Section 85-5-1 as support for his position. The portion of the provision relied on by Broome states:

In all cases of joint or joint and several indebtedness, the creditor may settle or compromise with and release any one or more of such debtors; and the settlement or release shall not affect the right or remedy of the creditor against the other debtors for the amount remaining due and unpaid, and shall not operate to release any of the others of the said debtors.

Miss.Code Ann. § 85-5-1 (1972). However, the statute addresses, and the cases cited by Broome involve, claimants settling with one joint tortfeasor and then pursuing a remedy against another joint tortfeasor who caused the wrong, not one tortfeasor and a vicariously liable employer as in this case. See Country Club of Jackson v. Saucier, 498 So.2d 337 (Miss.1986) (release of driver did not release country club as country club and driver were independently liable tortfeasors — driver negligently operated car, country club served alcohol to visibly intoxicated host); Smith v. Falke, 474 So.2d 1044 (Miss.1985) (release of one folloydng driver did not release second following driver in rear-ender action — both drivers were independently ha-ble for contributing to the accident); Medley v. Webb, 288 So.2d 846 (Miss.1974) (plaintiff may sue two or more drivers who contributed to the accident, but plaintiff may only collect damages once); Lee v. Wiley Buntin Adjuster, Inc., 204 So.2d 479 (Miss.1967) (release of insurer did not release adjuster as insurer and adjuster were independently liable tortfeasors — insurer failed to pay claim, adjuster made misrepresentations). As such, Section 85-5-1 is inapposite.

Reservation of Rights Against the Employer

¶ 29. Broome also claims that the release executed in favor of Galatas only released Galatas in his individual capacity and not as the employee of J & J Timber. In accordance with our holding above, the release of a negligent employee, in any capacity, bars all claims of vicarious liability against the employer, despite a reservation of rights. Broome suggests that the public policy of encouraging settlements would be damaged if he could not sue J & J Timber after settling with and releasing Galatas. Broome cites a discussion of settlements and Section 85-5-1 from McBride v. Chevron U.S.A., 673 So.2d 372, 379-80 (Miss.1996), a case that has been statutorily overruled by Mississippi Code Annotated Section 85-5-7. In a case involving joint tortfeasors, this Court stated, “a defendant whose negligence has been found to have proximately caused injury to another person should not be allowed to escape liability for his negligence by the fortuity that a co-defendant has settled prior to trial.” McBride, 673 So.2d at 380. However, this case involves neither joint tortfeasors nor the need for apportionment of fault. As such, the cases and statutes cited by Broome are irrelevant.

CONCLUSION

¶ 30. We hold today that the release of a tortfeasor operates to bar claims predicated on vicarious liability against the tort-feasor’s employer. To the extent Runyon holds otherwise, it is overruled. Our holding has no impact on the release of one tortfeasor when joint tortfeasors are involved, and it does not affect claims against an employer who was independently negligent, rather than solely derivatively negligent. Accordingly, we dismiss Broome’s vicarious liability claim against J & J Timber.

¶ 31. REVERSED AND RENDERED.

SMITH, C.J., WALLER AND COBB, P.JJ. AND CARLSON, J., CONCUR. EASLEY AND GRAVES, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION. DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.

      . The second issue certified for interlocutory appeal is whether the trial court erred in denying J & J Timber’s peremptory instruction. The third issue certified for interlocutory appeal is whether the trial court erred in granting Broome’s motion for a new trial.

      . Because we conclude there can be no vicarious liability in this case, we need not reach the question of Galatas’ employment status. Our analysis proceeds on the assumption ar-guendo that Galatas was J & J Timber’s employee, even though J & J Timber has not conceded that point. Broome makes no claim that the company was independently negligent.

      . The Runyon Court cited Granquist only once, and that was for the proposition that the employer, Runyon, had a right of indemnity of and from its employee, the driver. Runyon, 605 So.2d at 48. The Runyon Court never considered Granquist at any point during its discussion of how the release of the sole tortfeasor should affect claims of vicarious liability against the employer.


text:
    MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. Cecil COLE.
    No. 2005-JP-02122-SCT.
    Supreme Court of Mississippi.
    June 8, 2006.
   ORDER

¶ 1. Before this Court is the Amended Agreed Statement of Facts and Proposed Recommendation filed October 11, 2005, by the Commission, counsel for Tate County Justice Court Judge Cecil Cole, and Judge Cole himself. The Agreement proposed sanctions of a public reprimand and assessed costs in the sum of $100.00.

FACTS

¶ 2. On September 5, 2004, Judge Cole’s grandson, Justin G. Shaw, was arrested and charged with DUI (1st), careless driving, leaving the scene, and possession of beer. At the time, Shaw was on probation for accessory after the fact in connection with a murder. On October 10, 2004, Judge Cole, in his official capacity as Justice Court Judge of Tate County, entered an order reinstating Shaw’s driver’s license pending the Court’s disposition of the charges against him. On October 26, 2004, Judge Cole and Tate County Justice Court Judge Albert Embry, recused themselves from presiding over the charges against Shaw citing Canon 3E(l)(a) of the Code of Judicial Conduct and Rule 1.10 of the Uniform Rules of Procedure for Justice Court.

¶ 3. Shaw later pled nolo contendere to all charges against him in Tate County Justice Court before Justice Court Judge James Appleton of Panola county, who was appointed to hear the case. Shaw’s probation was then revoked on the accessory charge by Judge Appleton. Judge Cole approached the Tate County Sheriff in an attempt to have Shaw serve his sentence in the Tate County Adult Detention Facility instead of a state facility. His efforts were unsuccessful.

STANDARD OF REVIEW

¶ 4. While we conduct a de novo review of judicial misconduct proceedings, we give deference to the recommendations of the Mississippi Commission on Judicial Performance and their findings when based on clear and convincing evidence. Miss. Comm’n on Judicial Performance v. Hartzog, 904 So.2d 981, 984 (Miss.2004) (citing Miss. Comm’n Judicial Performance v. Gunn, 614 So.2d 387, 389 (Miss.1993)). Because we have the sole power to impose sanctions for judicial misconduct as the trier of fact, we must render an independent judgment. Id.

ANALYSIS

¶ 5. We now consider the appropriate factors for imposition of sanctions in judicial misconduct proceedings. Id. at 985 (Miss.2004) (citing Miss. Comm’n on Judicial Performance v. Gibson, 883 So.2d 1155, 1158 (Miss.2004)).

1. The Length and Character of Judge Cole’s Public Service.

¶ 6. Judge Cole has been in his current position since 2000 and has not been the subject of disciplinary actions before. See Miss. Comm’n on Judicial Performance v. Williams, 880 So.2d 343, 347 (Miss.2004) (finding length and character of service may be considered as a mitigating factor when determining appropriate judicial sanction).

2. Prior Case Law on Point.

¶ 7. We find sanctions like the ones suggested by the Commission to be appropriate in cases with factually similar circumstances. In Mississippi Commission on Judicial Performance v. Brown, 761 So.2d 182 (Miss.2000), we held a public reprimand and a fine of $500 plus court costs were appropriate sanctions for a Winston County Justice Court judge’s ex parte contacts with an arresting officer, an officer supervisor, and another judge concerning the DUI case of the justice court judge’s son. We also held, in Mississippi Commission on Judicial Performance v. Boykin, 763 So.2d 872 (Miss.2000), that a public reprimand and a monetary fine were suitable sanctions for the ticket-fixing of traffic tickets and holding ex parte communications with defendants by a justice court judge.

3.The Magnitude of the Offense and the Harm Suffered.

¶ 8. Judge Cole’s actions in ordering that his grandson’s driver’s license be reinstated pending the disposition of his grandson’s charges concerning careless driving, leaving the scene of an accident, possession of beer, and a DUI gave the perception that he was lending the prestige of his office to advance the private interests of another — in this case a member of Judge Cole’s family. Judge Cole inappropriately contacted the Tate County Sheriff regarding the housing of his grandson in the county jail rather than a state facility. Additionally, Judge Cole should not have involved himself in any facet of the pending matters and should have recused himself from any matters involving a relative. See Brown, 761 So.2d 182 (finding that attempts by judge to contact officials involved in his son’s DUI case was inexcusable use of official capacity for personal reasons).

4. Whether the Misconduct is an Isolated Incident or Evidences a Pattern of Conduct.

¶ 9. This is an isolated event, and Judge Cole has not evidenced any pattern of troubling conduct.

5. Whether “Moral Turpitude” was Involved.

¶ 10. While there is no specific evidence of any moral turpitude in Judge Cole’s actions, we recognize the seriousness of any judicial officer abusing their position for personal reasons.

6. The Presence or Absence of Mitigat- . ing or Aggravating Circumstances.

¶ 11. Concerning any mitigating factors, Judge Cole asserts, without corroboration, that his contact with the Tate County Sheriff was an attempt to prevent his grandson from being housed in the same state facility as the individual convicted of murder in the same matter for which his grandson was convicted of accessory after the fact. Judge Cole contends his grandson’s testimony led, in part, to the conviction of the murderer. Judge Cole’s justifications, however, do not excuse his misconduct.

¶ 12. By reinstating Shaw’s license and making attempts to have Shaw placed in a Tate county detention facility rather than a state facility, Judge Cole violated Canons 1, 2A, 2B, 3B(2), 4(A)1, 4(A)2, and 4(A)3 of the Code of Judicial Conduct of Mississippi. Additionally, by engaging in conduct constituting willful misconduct in office and conduct prejudicial to the administration of justice by bringing the judicial office into disrepute, Judge Cole’s behavior was actionable under § 177A of the Mississippi Constitution of 1890. Judge Cole’s conduct is troubling. However, in light of Judge Cole’s actions in cooperating with the Commission and after considering past precedent, we accept the Commission’s recommendation.

¶ 13. IT IS THEREFORE ORDERED that, effective upon entry of this order, Cecil Cole, Justice Court Judge of Tate County, shall be publicly reprimanded for his actions in violation of the Canons of the Code of Judicial Conduct of Mississippi and the Mississippi Constitution of 1890. The clerk is directed to send a copy of this order to the senior Circuit Court Judge presiding in Tate County with instructions to read this order in open court with Judge Cole present on the first Monday of the beginning of the next term of court after receipt of this order.

¶ 14. IT IS FURTHER ORDERED that, Judge Cecil Cole also be assessed costs in the sum of $100.00.

¶ 15. SO ORDERED.

/s/William L. Waller, Jr. WILLIAM L. WALLER, JR., PRESIDING JUSTICE

COBB, P.J., DISSENTS. DIAZ, J., NOT PARTICIPATING.