author: SMITH, Chief Justice,

text:
    MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. Robert Earl FOWLKES.
    No. 2007-JP-00455-SCT.
    Supreme Court of Mississippi.
    Oct. 18, 2007.

      Luther T. Brantley, III, Darlene D. Ballard, attorney for appellant.
    Michael Malski, Amory, attorney for ap-pellee.
   SMITH, Chief Justice,

for the Court.

¶ 1. On September 20, 2006, the Mississippi Commission on Judicial Performance (Commission) filed a Formal Complaint charging the Respondent, Robert Earl Fowlkes, Justice Court Judge for District Two, Monroe County, Mississippi, with violating Canons 1, 2A, 2B, 3B(2), 3B(8) and 3C(1) of the Code of Judicial Conduct, conduct actionable pursuant to the provisions of Article 6, Section 177A of the Mississippi Constitution of 1980, as amended.

¶ 2. After requesting additional time to respond, Judge Fowlkes filed his Answer to the Formal Complaint wherein he denied the allegations. Later, Judge Fowlkes joined the Commission in submitting an Agreed Statement of Facts and Proposed Recommendation, wherein Judge Fowlkes acknowledged judicial misconduct. The Agreed Statement of Facts and Recommendation were accepted and adopted by the Commission and are now before this Court for its approval.

FINDINGS OF FACT

¶ 3. Relying upon the advice given in an ex parte conversation with Judge Fowlkes, on or about December 15, 2004, Gail W. Reeves filed a General Affidavit against Harold Hood in the Justice Court of Monroe County, Mississippi, in State v. Hood, Docket 196, Page 246-47, for trespass and malicious mischief. On or about December 23, 2004, again upon ex parte conversation with Judge Fowlkes, Reeves filed a General Affidavit against her neighbor, William Blevins, for malicious mischief in the Justice Court of Monroe County, Mississippi, in State v. Blevins, Docket 196, Page 313, for malicious mischief. The cases were assigned to Judge Fowlkes.

¶ 4. The charge against Blevins was heard on March 29, 2005, and on April 25, 2005, Judge Fowlkes found Blevins not guilty of malicious mischief. Some time after the hearing, Reeves and Judge Fowlkes engaged in an ex parte conversation at which time they discussed Blevins’s March 29, 2005, hearing, as well as the upcoming hearing involving Hood. Judge Fowlkes also advised Reeves that she could file a civil suit against Hood. On May 26, 2005, Judge Fowlkes heard the charges against Hood and found him guilty of both trespassing and malicious mischief. Hood was ordered to pay restitution in the amount of $2,750 and total fines in the amount of $419. Thereafter, Hood appealed the decision to the Circuit Court of Monroe County, which appeal was to have been heard on November 7, 2005.

¶ 5. After receiving subpoenas to appear in court on November 7, 2005, Reeves contacted Judge Fowlkes concerning the possible dismissal of the Circuit Court proceeding against Hood. During their- ex parte conversation, Judge Fowlkes discussed the request for dismissal and advised her to call Circuit Clerk Judy Butler about getting a special prosecutor to replace Prosecuting Attorney Don Baker. Judge Fowlkes also stated that he would call John Creekmore, the Board Attorney, to see what needed to be done and agreed to later contact Reeves. On November 7, 2005, Hood did not appear at the scheduled hearing.' Consequently, on November 8, 2005, Circuit Judge Sharion Aycock issued Writs of Procedendo in both the trespass and malicious mischief cases.

¶ 6. On January 26, 2006, Judge Aycock signed Agreed Orders of Dismissal on both the trespass and malicious mischief charges. The Circuit Court quashed both Writs of Procedendo and found that Hood did not receive notice of the November 7, 2005, hearings, had “double jeopardy” protection, given that the Monroe County Justice Court had no jurisdiction to hear the offense of malicious mischief as a misdemeanor, and that Hood was not guilty of malicious mischief. Additionally, the Court found that there was reasonable doubt of the commission of trespass, and Hood was found not guilty of that charge as well.

¶ 7. Upon the advice of Judge Fowlkes, Reeves decided to file a civil suit in Monroe County Justice Court against Hood for $2,500 plus $54 in costs. On January 3, 2006, Reeves filed an Affidavit to Open Account against Hood in the Justice Court of Monroe County, Mississippi, in Reeves v. Hood, Docket 69, Page 134. The court date was set for January 26, 2006. On or about January 24, 2006, Hood filed a motion seeking recusal of Judge Fowlkes. Judge Fowlkes entered his recusal on January 25, 2006.

¶ 8. On or about January 31, 2006, Hood filed a Motion to Dismiss based upon what he alleges was an improper Affidavit to Open Account. On February 14, 2006, Judge Andy Hood awarded judgment for Reeves in the amount of $2,500 plus $54 in costs. Hood then appealed to the Monroe County Circuit Court where the matter was set for a non-jury trial on June 26, 2006.

¶ 9. In a prior case, in December 2003, Judge Fowlkes received a private admonishment. In that case, he acknowledged misconduct including improper ex parte communications regarding a pending matter and using his influence as a judge to advance the private interest of others. Not more than one year later, Judge Fowlkes committed virtually the same type of judicial misconduct. Once again, he acknowledges in the Memorandum Brief in Support of Joint Motion for Approval of Recommendations Filed by the Mississippi Commission on Judicial Performance that it is improper to participate in ex parte conversations with parties regarding pending matters and that doing so constitutes misconduct.

¶ 10. After reviewing the pleadings, the Agreed Statement of Facts and Proposed Recommendation, the Commission found that by engaging in the aforementioned conduct, the Respondent violated Canons 1, 2A, 2B, 3B(2), 3B(8) and 3C(1) of the Code of Judicial Conduct. The Commission found that Fowlkes’s conduct was therefore actionable pursuant to the provisions of Article 6, Section 177A of the Mississippi Constitution of 1980, as amended, as said conduct constitutes willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute.

DISCUSSION

¶ 11. “This Court conducts de novo review of judicial misconduct proceedings, giving great deference to the findings, based on clear and convincing evidence, of the recommendations of the Commission.” Miss. Comm’n on Judicial Performance v. Gordon, 955 So.2d 300, 303 (Miss.2007). As this Court has “ ‘the sole power to impose sanctions in judicial misconduct eases,’ we are obligated to render an independent judgment on the charges.” Id. (quoting Miss. Comm’n on Judicial Performance v. Gibson, 883 So.2d 1155, 1157 (Miss.2004)). This Court is not bound by the findings of the Commission. Additional sanctions may be imposed.

¶ 12. Section 177A of the Mississippi Constitution provides that upon recommendation of the Commission, a judge may be removed, suspended, fined, publicly censured, or publicly reprimanded by the Supreme Court. To so sanction a judge, the Court must find one or more enumerated grounds for sanction, including willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute.

¶ 13. Pursuant to this Court’s holding in Mississippi Commission on Judicial Performance v. Gibson, 883 So.2d 1155, 1158 (Miss.2004), this Court must review the following mitigating factors when determining the appropriateness of a recommended sanction:

(1) The length and character of the judge’s -public service.

¶ 14. Respondent has served as Justice Court Judge of Monroe County for seven years.

(2) Whether there is any prior case law on point.

¶ 15. A great deal of judicial precedent exists on these issues. See case law cited infra.

(3) The magnitude of the offense and the harm suffered.

¶ 16. The Respondent’s ex parte communications and giving of legal advice to a litigant is prohibited. The litigants who appear before the Respondent deserve a fair and independent judiciary, which the parties in this case did not receive. Therefore, the parties suffered harm, and the public perception of the judiciary was impugned.

ft) Whether the misconduct is an isolated incident or evidences a pattern of conduct.

¶ 17. In December 2003, Respondent signed an Agreed Statement of Facts and Proposed Recommendation wherein he acknowledged that it is improper to participate in ex parte conversations with parties concerning a pending matter or to use his influence as a judge to advance the private interests of others. For this violation, the Commission recommended a private admonishment. One year later, in December 2004 continuing through 2005, Respondent repeatedly engaged in prohibited ex parte conversations with a litigant and offered advice as to actions the litigant should take to advance her case.

(5) Whether moral turpitude was involved.

¶ 18. The record does not demonstrate that moral turpitude was involved.

(6) The presence or absence of-mitigating or aggravating circumstances.

¶ 19. Aggravating circumstances are present in that Respondent, after being privately admonished, again engaged in ex parte conversations with litigants. However, mitigating circumstances also exist, which include the fact that the Respondent has readily acknowledged his inappropriate conduct and has entered into the Agreed Statement of Facts and Proposed Recommendation with the Commission.

¶ 20. As this Court stated in In re Bailey, 541 So.2d 1036, 1039 (Miss.1989):

There are good reasons why our justice court judges must regard scrupulously the nature of their office. In the first place, most of our citizens have their primary, if not them only, direct contact with the law through the office of the justice court judge. See In re Garner, 466 So.2d 884, 887 (Miss.1985). The perception of justice of most of our citizens is forged out of their experiences with our justice court judges.

Id. at 1039. More recently, in acknowledging our decision in Bailey, we stated that justice court judges are admittedly “on the front line “where the rubber meets the road’ as far as constant contact with our citizens.” Comm’n on Judicial Performance v. Sanford, 941 So.2d 209, 218 (Miss.2006). We went further in Sanford and stated:

Justice courts will ordinarily have a much greater volume of cases than our state trial courts or appellate courts. Our citizenry’s overall perception of the entire judicial system in this state is quite often a result of contact with our justice courts, since the vast majority of our citizens will have little or no contact with our state trial or appellate courts, other than for jury service.

Id. at 218.

CONCLUSION

¶ 21. Judge Fowlkes’s actions constituted willful misconduct prejudicial to the administration of justice which brought the judicial office into disrepute. The facts of this case, the Gibson factors, relevant case law, and our standard of review lead us to the conclusion that the Commission’s recommendation is insufficient, inasmuch as this is not Judge Fowlkes’s maiden voyage to the Commission for the aforementioned conduct. This Court finds that the appropriate sanctions against Judge Fowlkes are a public reprimand, a thirty-day suspension from office without pay, and assessment of the costs of this proceeding in the amount of $100. The reprimand shall be read in open court on the first day of the next term of the Circuit Court of Monroe County, with Judge Fowlkes present. The assessment is to be paid in full within thirty days of the date of the decision of this Court.

¶ 22. JUDGE ROBERT EARL FOWLKES, JUSTICE COURT JUDGE FOR MONROE COUNTY, SHALL BE PUBLICLY REPRIMANDED IN OPEN COURT BY THE PRESIDING JUDGE OF THE MONROE COUNTY CIRCUIT COURT ON THE FIRST DAY OF THE NEXT TERM OF THAT COURT AFTER THIS DECISION BECOMES FINAL; IS SUSPENDED FOR THIRTY (30) DAYS WITHOUT PAY FROM AND AFTER THE DATE OF ISSUANCE OF THE MANDATE IN THIS CASE; AND, IS ASSESSED COSTS IN THE AMOUNT OF $100.00.

WALLER, P.J., CARLSON, DICKINSON, RANDOLPH AND LAMAR, JJ., CONCUR. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ, P.J. AND EASLEY, J., NOT PARTICIPATING.


source: Caselaw Access Project

license: Public Domain

text:
    CITIFINANCIAL MORTGAGE COMPANY, INC. v. Rosie WASHINGTON and Catherlean Craft.
    No. 2005-IA-00311-SCT.
    Supreme Court of Mississippi.
    Oct. 25, 2007.

      Laura L. Gibbes, H. Mitchell Cowan, Jackson, Robert D. Gholson, Laurel, attorneys for appellant.
    Christopher E. Fitzgerald, W. Lewis Garrison, Jr., attorneys for appellees.
   SMITH, Chief Justice,

for the Court.

¶ 1. CitiFinancial appeals to this Court from the Circuit Court of Jasper County’s denial in part of CitiFinancial’s motion for summary judgment. This case concerns a loan Rosie Washington and Catherlean Craft obtained from Ford Consumer Finance, a predecessor in interest to CitiFi-nancial. The issues presented are whether the evidence- demonstrated the existence of each essential element of the causes of action brought, thus creating a genuine issue of material fact, and whether the claims were barred by the statute of limitations.

FACTS AND PROCEDURAL HISTORY

¶ 2. Plaintiffs obtained a loan from Ford Consumer Finance, which was sold to The Associates First Capital which became Associates Home Equity Services, and Associates was bought by CitiGroup and became CitiFinancial. On November 29, 1995, Catherlean Craft and her mother Rosie Washington signed an agreement for a loan of $31,480 from Ford Consumer Finance. Plaintiffs filed a complaint on November 19, 2001, alleging that CitiFi-nancial represented to them that 180 monthly payments of $400.57 would satisfy the debt when, in fact, after 179 such monthly payments, Plaintiffs would still owe $28,878.20. Plaintiffs raised claims of breach of the covenant of good faith and fair dealing, economic duress, negligence, intentional infliction of emotional distress, constructive fraud, rescission and cancellation, and violation of the Mississippi Unfair or Deceptive Acts and Practices Act, Mississippi Code Annotated Section 75-24-3, et seq. (Rev.2000). Defendants answered and raised as defenses, inter alia, that Plaintiffs failed to state a claim and that Plaintiffs’ claims are barred by the statute of limitations and the doctrine of release.

¶ 3. On December 13, 2004, CitiFinancial filed a motion for summary judgment, asserting that Plaintiffs’ claims were barred by the statute of limitations; that Plaintiffs previously signed a settlement agreement releasing CitiFinancial; and that Plaintiffs raised no genuine issue of material fact as to the causes of action brought. Plaintiffs responded, and attached excerpts of the deposition of Rhonda Hare, the mortgage representative who allegedly made misrepresentations; the deposition of Scott Mcllhaney, who at the time of the execution of the loan was an employee of Ford Consumer Finance, which later became CitiFinancial; the deposition of Rosie Washington, one of the plaintiffs and a signatory to the loan agreement; Plaintiffs’ Supplemental Answers to Defendants’ Interrogatories, describing the expected opinions of Gene Marsh, an expert on predatory lending; the deposition of Marsh; and the deposition of Catherlean Craft, the other plaintiff and signatory to the loan agreement.

¶ 4. On February 14, 2005, the trial court granted in part and denied in part CitiFinancial’s Motion for Summary Judgment. The court denied summary judgment on the issues of breach of the covenant of good faith and fair dealing, negligence, intentional infliction of emotional distress, fraud, statute of limitations, and release of claims. Upon this denial, CitiFinancial filed a Petition for Interlocutory Appeal and a Motion for Emergency Stay of Case pending the resolution of this interlocutory appeal, both of which this Court granted.

¶ 5. This Court need only discuss the statute of limitations application to Plaintiffs claim, since that issue is dispositive. We conclude that Plaintiffs are barred according to the statute of limitations, and denial of summary judgment was error by the trial judge. Accordingly, we reverse and render.

DISCUSSION

I. Whether the Trial Court Erred in its Determination that Plaintiffs’ Claims Are Not Barred by thé Statute of Limitations.

¶ 6. The claim for intentional infliction of emotional distress is subject to a one-year statute of limitations under Mississippi Code Annotated Section 15-1-35 (Rev.2003). Southern v. Miss. State Hasp., 853 So.2d 1212, 1214 (Miss.2003). The intentional act which Plaintiffs claim forms the basis of this action involves the alleged misrepresentations or omissions occurring on or before November 29, 1995, and Plaintiffs filed their claim on November 19, 2001. Clearly, the statute of limitations had run as to this claim when Plaintiffs brought suit almost six years after the act giving rise to the claim.

¶ 7. The remainder of the claims are governed by Mississippi Code Annotated Section 15-1-49 (Rev.2003). Rankin v. Am. Gen. Fin., Inc., 912 So.2d 725, (Miss.2005) (breach of a fiduciary duty, breach of implied covenant of good faith and fair dealing, negligent misrepresentation, fraudulent misrepresentation, and negligence are subject to a three-year statute of limitations pursuant to Miss.Code Ann. § 15-1-49). In a contractual claim, a cause of action accrues on the date of actual injury, the date the facts occurred which enable the Plaintiffs to bring a cause of action. Oaks v. Sellers, 953 So.2d 1077, ¶¶ 10-11 (Miss.2007).

¶ 8. The dispute centers around whether a claim arose at the time of the execution of the loan, as CitiFinancial asserts, or at the time Plaintiffs were first counseled on the fact that better terms existed. The statute of limitations for the claims in this case began to run when the plaintiffs had notice of the terms of the contract, which was at the time of the execution of the loan agreement, when the Plaintiff received the terms of the contract. Id. at ¶ 11 (discussing Andrus v. Ellis, 887 So.2d 175 (Miss.2004)). Having signed and received a copy of the loan, which contained all the payment terms, Plaintiffs were on notice of the terms complained of as of November 29, 1995. This Court held in Sellers that having knowledge, regardless of whether that knowledge was actual or constructive, of the terms of the agreement begins the statute of limitations. Sellers, 953 So.2d 1077, at ¶ 18. The plaintiffs filed suit on November 19, 2001, more than three years after they learned of the terms about which they now complain.

¶ 9. Giving Plaintiffs all benefit of the doubt, in November 1995, the terms of the contract upon which they base their claim included a balloon payment of $28,878.20. That contract also stated that those were the only terms provided to them. Therefore, Plaintiffs’ right to sue began on November 29, 1995, and the statute of limitations began to run on that date also. Plaintiffs filed their claim six years later in November 2001, well outside the three-year statute of limitations under Mississippi Code Annotated Section 15-1-49. Accordingly, this Court finds that the trial court erred by denying CitiFinancial’s motion for summary judgment. The statute of limitations bar warrants a grant of summary judgment on all claims raised in this case. See Bennett, 921 So.2d at 1272 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265, 273 (1986)).

CONCLUSION

¶ 10. Plaintiffs were barred from filing suit six years after the events occurred which gave rise to their claims. Accordingly, the trial court erred by denying CitiFinancial’s motion for summary judgment, and this Court reverses that judgment and remands this case to the Circuit Court of Jasper County for entry of an order consistent with this opinion.

ill. REVERSED AND REMANDED.

WALLER, P.J., CARLSON, DICKINSON, RANDOLPH AND LAMAR, JJ., CONCUR. DIAZ, P.J., EASLEY AND GRAVES, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION.

      . Specifically, Plaintiffs obtained the loan through a mortgage on Washington's home and allege that Rhonda Hare of Hare Mortgage, Inc., who Plaintiffs claim served as an agent or employee of CitiFinancial, misrepresented the terms of their loan payment obligation.


author: WALLER, Presiding Justice,

text:
    Bobbie JOHNSON v. ST. DOMINICS-JACKSON MEMORIAL HOSPITAL.
    No. 2006-CA-01696-SCT.
    Supreme Court of Mississippi.
    Oct. 25, 2007.

      Hiawatha Northington, II, attorney for appellant.
    Sharon F. Bridges, John E. Wade, Jr., Jonathan R. Werne, Jackson, attorneys for appellee.
    Before WALLER, P.J., EASLEY and CARLSON, JJ.
   WALLER, Presiding Justice,

for the Court.

¶ 1. Bobbie Johnson filed suit against St. Dominic-Jackson Memorial Hospital (“St. Dominic”) alleging the negligence of its nurse in administering a shot which caused necrosis in an area of her soft tissue and, after treatment, left a scar and caused her pain and suffering. The Circuit Court of the First Judicial District of Hinds County entered judgment in favor of St. Dominic, consistent with the jury’s verdict, from which Johnson now appeals. Having found sufficient evidence to support the verdict of the jury and determined that the trial judge properly did not reconvene the jury after receipt of an ex parte communication from a juror, we affirm.

FACTS

2. While recovering from gallbladder surgery at St. Dominic, Johnson began to experience nausea and vomiting. Her doctor prescribed 25 mg. of phenergan to be given by intramuscular injection. A nurse administered the injection. Sometime thereafter, the tissue around the injection site became inflamed and ultimately necrotic, requiring debridement of the area and skin grafting. The skin grafting and debridement left a visible scar, and, according to Johnson, the entire incident caused pain and suffering.

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED BY DENYING BOBBIE JOHNSON’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT, OR IN THE ALTERNATIVE, FOR A NEW TRIAL.

A. Motion for Judgment Notwithstanding the Verdict.

¶ 3. The standard of review for denial of a motion for judgment notwithstanding the verdict (JNOV) is de novo as to the law applied by the trial court judge as well as the evidence presented during trial. The legal sufficiency of the evidence, and not the weight of the evidence, is tested in a motion for JNOV. White v. Yellow Freight System, Inc., 905 So.2d 506, 510 (Miss.2004) (citing Tharp v. Bunge Corp., 641 So.2d 20, 23 (Miss.1994)). “If there is substantial evidence in support of the verdict we will affirm the denial of the JNOV.” Natchez Elec. Supply Co. v. Johnson, 968 So.2d 358, 362, 2007 WL 2495311 *1, *3 (Miss. Sept.6, 2007). “ ‘Substantial evidence’ is information of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment might have reached different conclusions.” Id. at 362, at *4. All evidence must be viewed by this Court in a light most favorable to support the verdict. Canadian Nat’l/Ill. Central R. Co. v. Hall, 953 So.2d 1084, 1089 (Miss.2007); Natchez Elec. & Supply Co., 968 So.2d at 362, 2007 WL 2495311 at *4.

¶ 4. The basis of Johnson’s claim is that St. Dominic was negligent, through its nurse Kattie Minor, by using the wrong length needle and failing to utilize the “z-track” method in administering the phenergen injection to Johnson, which resulted in a wound, further medical treatment, and ultimately a permanent scar.

¶ 5. Nurse Minor initially stated during her deposition that she used a one-inch needle. At trial, she testified that her deposition testimony was incorrect and she actually used a one-and-one-half-inch needle. St. Dominic provided testimony that a one-and-one-half-inch needle was the standard of care and the only size needle dispensed on that unit.

¶ 6. As to Johnson’s second substantive allegation that no jury could have found that the z-track injection method was unnecessary, Johnson’s expert testified that even if the nurse in question had used the z-track technique advocated by Johnson, the patient could not have been assured a different outcome. Further, Johnson’s expert could point to no literature that set forth a directive that specifically stated that phenergan should be administered using the z-track method. St. Dominic’s expert provided evidence that the drug manufacturer did not specify use of the z-track technique in the administration of its product, phenergan. St. Dominic’s expert testified that the z-track method was not the standard of care for intramuscular phener-gan injections.

¶ 7. This Court cannot reverse the judgment on the ground that insufficient evidence exists to support a jury verdict relative to the length of the needle or the method of administering the injection. We find that sufficient testimony supported the jury’s verdict for St. Dominic.

B. Motion for a New Trial.

¶ 8. The standard of review on a motion for a new trial is abuse of discretion. Steele v. Inn of Vicksburg, Inc., 697 So.2d 373, 376 (Miss.1997). The weight of the evidence, rather than the legal sufficiency, is tested in a motion for a new trial. “When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (Miss.2005) (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)); see Lift-All Co. v. Warner, 943 So.2d 12, 15 (Miss.2006). Our role of reviewing a challenge to the weight of the evidence is that of a thirteenth juror. Bush v. State, 895 So.2d at 844.

¶ 9. The evidence reviewed, however, ought to be weighed in the light most favorable to the verdict. Herring v. State, 691 So.2d 948, 957 (Miss.1997). “[I]f the jury verdict is supported by the substantial weight of the evidence, it should not be set aside.” Lift-All Co. v. Warner, 943 So.2d at 15. “This Court shall reverse a trial judge’s denial of a request for new trial only when such denial amounts to a[sic] abuse of that judge’s discretion.” Steele v. Inn of Vicksburg, Inc., 697 So.2d 373, 376 (Miss.1997) (quoting Shields v. Easterling, 676 So.2d 293, 298 (Miss.1996) (further quoting Bobby Kitchens, Inc. v. Miss. Ins. Guar. Ass’n, 560 So.2d 129, 132 (Miss.1989))).

¶ 10. A jury’s verdict is given great deference by this Court, and “conflicts of evidence presented at trial are to be resolved by the jury.” Lift-All Co. v. Warner, 943 So.2d at 16; Blossman Gas, Inc. v. Shelter Mut. Gen. Ins. Co., 920 So.2d 422, 426 (Miss.2006); Venton v. Beckham, 845 So.2d 676, 687 (Miss.2003) (citing Jackson v. Griffin, 390 So.2d 287, 289 (Miss.1980)). Only if the plaintiff makes a strong case for error by the trial court is this Court free to reverse the trial court’s denial of a motion for a new trial. The verdict must be contrary to the substantial weight of the evidence in order to warrant a reversal of the verdict and a new trial. Blossman Gas, Inc. v. Shelter Mut. Gen. Ins. Co., 920 So.2d at 424. This verdict does not, as in Blossman, shock the conscience or rest on a complete lack of evidence. Id. at 426-27.

¶ 11. The jury was free to accept or reject any or all of the testimony and evidence presented. The jury chose to accept the testimony that supported St. Dominic and rendered a verdict in its favor. This Court finds that the overwhelming weight of the evidence is not contrary to the jury’s verdict for St. Dominic. A reversal of the judgment denying Johnson’s motion for a new trial is not warranted.

¶ 12. St. Dominic has set forth substantive evidence to counter every element of plaintiffs prima facie ease, thus providing a credible basis for the jury to render a verdict in favor of St. Dominic, which is the legal standard of sufficiency and weight that is required of it. This being the case, this issue is without merit. This Court will not disturb the jury verdict in favor of St. Dominic; the jury’s verdict for the defense will stand; and the trial court’s denial of Johnson’s motion for JNOV, or in the alternative, for a new trial, is hereby affirmed.

II. WHETHER THE TRIAL COURT ERRED IN FAILING TO RECONVENE THE JURY TO DETERMINE ITS TRUE VERDICT.

¶ 13. The second claim of error we address is whether the trial court erred in denying Johnson’s request to reconvene the jury to determine its true verdict. Johnson contends that an electronic communication sent by the jury foreman to the circuit court judge after the trial raised proper questions that required the trial court to reconvene the jury. St. Dominic argues that jurors may not be heard to impeach their own verdict. The trial court held the ex parte jury communication to be improper and denied Johnson’s request to reconvene the jury as incompetent and inadmissible.

¶ 14. The circuit court judge received the following email after the trial:

Judge DeLaughter, my name is.... I recently served as foreman for the jury in one of your court cases, “Bobbie Johnson v. St. Dominie-Jackson Memorial Hospital ”, [sic] The experience was great and memorable as it was my first jury duty assignment.
This letter’s purpose is to request your follow-up review to the last Court’s instruction to the jury. I believe that justice was served, but my conscience wants me to make sure that the jury was not swayed on a misinterpretation. In one of the initial instructions, I believe # 10, I believe it read in the below manner for the 1st charge for the jury: (a) To determine that the needle length in question was not the right size OR (b) that the Z-track method should have been used. This clearly is an either — or scenario.
Upon your last court instruction to the jury (in response to the jury’s last question), we the jury translated those guidelines as not an “OR” situation anymore, but as an “AND” situation meaning the following:
Determine (1), then if you believe (1), determine (2) and then if you believe (2), then determine 3. In other words, the path to (3) was (1) And (2) And (3). And anything otherwise, we must return a verdict for the defendant. This final instruction was a tremendous swing vote mechanism; thus, I wanted to be diligent by writing you this letter ... that is probably a bit late.
If you feel that the jury interpreted the instructions properly, then justice was indeed served. If not, then I’m not sure what is the next step; however, I do feel that the first step was to notify you of the “possible” misinterpretation.
Again, I am not sure that there was a misinterpretation, as 12 jurors interpreted the exact same thing; that the path to (3) was (1) And (2) And (3). Only you can decide whether or not there was misinterpretation on anyone’s part. Normally when my conscience shows me something like this, then I at least have to look into it (or in this case, I’m requesting that you do).
Regards,
[Jury foreman]

¶ 15. Inquiries into the validity of verdicts are governed by Rule 606(b) of the Mississippi Rules of Evidence, which provides that a juror may not impeach a verdict by using thought processes or discourses which may have contributed to a verdict.

Upon an inquiry into the validity of a verdict or indictment, a juror• may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therervith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.

Miss. R. Evid. 606(b) (emphasis added).

¶ 16. Rule 606(b) has been interpreted by this Court as prohibiting consideration of any evidence from a juror by affidavit or any other form of communication that would invite the Court to examine the deliberations of a jury. Gladney v. Clarksdale Beverage Co., Inc., 625 So.2d 407, 412 (Miss.1993).

¶ 17. Johnson argues that the verdict announced by the jury after the trial does not represent the true verdict of the jurors. She cites Martin v. State in support of her request to reconvene the jury. Martin v. State, 732 So.2d 847 (Miss.1998). In Martin, we held that a trial court has the authority to determine whether or not a clerical error has occurred when the jury verdict was rendered, as well as the authority to correct any such error. Id. at 854-55. The jurors in Martin believed they were finding the defendant guilty of a misdemeanor charge of marijuana possession, and not guilty of a felony charge of morphine possession. The confusion was a result of a mistake as to what constituted the charges in Count I and what constituted the charges under Count II of the indictment; consequently, the verdict rendered was not what the jury had intended. Id. at 848.

¶ 18. While Martin does stand for the proposition that a very narrow exception may be found when a jury votes and agrees on a verdict that is at variance with the verdict rendered, we strongly cautioned that such an exception is severely limited to those few-and-far-between cases where the facts are closely aligned with Martin. Id. at 854. This Court further limited our holding in Martin by adopting the footnote in Robles that set forth the meaning of clerical error in a jury verdict. Id. (referencing Robles v. Exxon Corp., 862 F.2d 1201 (5th Cir.1989)). The situation addressed by the footnote in Robles and adopted by this Court in Martin is in line with the facts of the case sub judice. Johnson fails to point to any exception that would allow this Court to inquire into this jury verdict.

The category of “clerical” errors ... can be understood to refer only to discrepancies between the verdict delivered in court and the precise verdict physically or verbally agreed to in the jury room, not to discrepancies between the verdict delivered in court and the verdict or general result which the jury testifies it “intended” to reach.

Id. at 1208.

¶ 19. Public policy does not support an attack on jury verdicts on the grounds of a supposed need to determine how the jury deliberated or what the jury was thinking. Robles, 862 F.2d at 1205. We must protect our jurors against harassment after they have rendered a verdict, insure the finality of their verdicts, and strive to avoid manipulation of a verdict by disgruntled ex-jurors. Robles, 862 F.2d at 1206 (citing Peveto v. Sears, Roebuck & Co., 807 F.2d 486, 489 (5th Cir.1987)). The doctrine of res judicata must be honored. As the Senate Judiciary Committee noted, “Jurors will not be able to function effectively if their deliberations are to be scrutinized in post-trial litigation. In the interests of protecting the jury system and the citizens who make it work, rule 606 [of the Federal Rules of Evidence] should not permit any inquiry into the internal deliberations of the jury.” Robles, 862 F.2d at 1205 (citing S.Rep. No. 93-1277, 93d Cong., 2d Sess. 13-14 (1974)). The United States Supreme Court has long held that an individual attack on a jury verdict is unwise. McDonald v. Pless, 238 U.S. 264, 267, 35 S.Ct. 783, 59 L.Ed. 1300 (1914). Mississippi law is wholly consistent with this line of reasoning and will not be disturbed.

¶ 20. Speculation as to how the jury did or did not interpret its instructions is not a question properly before this Court, being precluded by Mississippi Rules of Evidence, common law, and the overarching principles of res judicata. The email a juror sent to the circuit court judge after the trial concluded indicated that the jury may have misinterpreted an instruction. Such a concern does not, as Johnson claims, represent that the jury verdict was not rendered as intended.

¶21. Indeed, the email indicates that the foreman believed it was possible there was a misinterpretation, a speculation that is impermissible under Rule 606(b) of the Mississippi Rules of Evidence. Rule 606(b) bars testimony by jurors to impeach a verdict regarding “any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him.” Miss. R. Evid. 606(b).

¶ 22. Our law is well-settled on this point — jurors may not impeach them own verdicts on the basis of their mental processes or deliberations. Puckett v. State, 879 So.2d 920 (Miss.2004) (quoting Lewis v. State, 725 So.2d 183, 189 (Miss.1998) (citing Fairman v. State, 513 So.2d 910, 915-16 (Miss.1987))).

¶ 23. Johnson’s request to reconvene the jury is improper and without merit on public policy grounds, the overarching doctrine of res judicata, the Mississippi Rules of Evidence, and case law. The trial court’s judgment denying Johnson’s request to reconvene the jury is affirmed, and the jury verdict stands as rendered.

CONCLUSION

¶24. The circuit court was correct in denying Johnson’s motion for judgment notwithstanding the verdict, or in the alternative, for a new trial. The record reflects sufficient evidence to sustain the jury verdict, a verdict that is not against the overwhelming weight of the evidence. Therefore, the circuit court’s judgment denying Johnson’s motion for JNOV, or in the alternative, for a new trial, is affirmed. Further, the circuit court was correct in denying Johnson’s request to reconvene the jury as improper and without merit. Therefore, the circuit court’s denial of Johnson’s request to reconvene the jury is affirmed.

¶ 25. AFFIRMED.

SMITH, C.J., DIAZ, P.J., EASLEY, CARLSON, DICKINSON, RANDOLPH AND LAMAR, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY.

      . The z-track method involves moving the superficial tissue aside with one hand while administering the injection at an angle with the other hand.

      . As we noted in Bush, this Court has “specifically disclaimed any role as the ‘thirteenth juror' in the context of granting a new trial on the issue of damages, Patterson v. Liberty Associates, L.P., 910 So.2d 1014, 1022 (Miss.2004), as well as when we review a motion for judgment notwithstanding the verdict, Allen v. Mac Tools, Inc., 671 So.2d 636, 646 (Miss.1996). However, when the trial court (and subsequently the appellate court) reviews a verdict that is alleged to be against the overwhelming weight of the evidence, this presents a distinctive situation which necessitates the court sitting as a 'thirteenth juror.' ” Bush v. State, 895 So.2d at 844, n. 2.


author: DIAZ, Presiding Justice,

text:
    Johnny L. DuPREE, In His Official Capacity as Mayor of the City of Hattiesburg, Mississippi v. Carter CARROLL, C.E. Bailey and Kim Bradley.
    No. 2006-CA-01875-SCT.
    Supreme Court of Mississippi.
    Oct. 25, 2007.

      Charles E. Lawrence, Jr., attorney for appellant.
    S. Wayne Easterling, Frank D. Montague, Jr., Hattiesburg, attorneys for ap-pellee.
    Before DIAZ, P.J., CARLSON and RANDOLPH, JJ.
   DIAZ, Presiding Justice,

¶ 1. This case asks whether members of a city council have standing to seek a writ of mandamus against the mayor of their city. It also addresses whether a mayor must resubmit directors for approval by the council at the beginning of a new term of office. Finding in the affirmative as to both issues, we affirm the circuit court’s order of mandamus.

Facts and Proceedings Below

¶ 2. The facts are undisputed. The City of Hattiesburg has a “mayor-council form of government” adopted under Mississippi Code Section 21-8-1, et seq. (Rev.2007). The city has five wards and five city council persons who act as the legislative branch of government. Miss. Code Ann. § 21-8-9 (Rev.2007).

¶3. Johnny DuPree is the mayor of Hattiesburg, and at the time this suit was filed, all three adverse parties — Carter Carroll, C.E. Bailey, and Kim Bradley— were councilpersons in the city. In 2001, DuPree became mayor and nominated department directors pursuant to statute. See Miss.Code Ann. § 21-8-23(2) (Rev. 2007). The council approved the directors. Then, DuPree was re-elected and began a second term in 2005.

¶ 4. At that time, the mayor indicated he was not going to resubmit the department directors for approval to the council. The council demanded he do so. DuPree refused, and the three named council members sought a writ of mandamus to compel him to comply with what they perceived the law required. The Circuit Court of Forrest County agreed with the council members, and issued the writ demanding that the mayor resubmit the department heads for approval.

¶ 5. Aggrieved, the mayor appeals. We are presented with only two questions. First, do the councilpersons have the necessary statutory standing to seek a writ of mandamus? If they do, does state statute require a mayor to resubmit a choice of department directors for approval at the beginning of a new term of office, even if those directors are holdovers from the previous term?

¶ 6. We will review these questions of law de novo. See Aldridge v. West, 929 So.2d 298, 300 (Miss.2006).

I. Do the plaintiffs have standing to seek a writ of mandamus?

¶ 7. The named council members sought a writ of mandamus to compel the mayor to resubmit the directors. The writ of mandamus exists to force an elected official to perform a duty of office. State statute authorizes the writ, which can only be issued:

On the complaint of the state, by its Attorney General or a district attorney, in any matter affecting the public interest, or on the complaint of any private person who is interested, the judgment shall be issued by the circuit court, commanding any inferior tribunal, corporation, board, officer, or person to do or not to do an act the performance or omission of which the law specially enjoins as a duty resulting from an office, trust, or station, where there is not a plain, adequate, and speedy remedy in the ordinary course of law. All procedural aspects of this action shall be governed by the Mississippi Rules of Civil Procedure.

Miss.Code Ann. § 11-41-1 (Rev.2002). Our precedent has developed a four-part test to determine who may seek mandamus. To obtain relief, we have previously stated that “it must affirmatively appear that four essential elements are present: (1) the petition must be brought by the officers or persons authorized to bring the suit; (2) there must appear a clear right in petitioner to the relief sought; (3) there must exist a legal duty on the part of the defendant to do the thing which the petitioner seeks to compel; and (4) there must be an absence of another remedy at law.” Aldridge, 929 So.2d at 302 (citation omitted).

¶ 8. Part one of the test addresses whether the person seeking the writ is authorized; per statute, an authorized person may be the Attorney General, a district attorney, or “any private person who is interested.” The council members concede they must proceed under the “any private person who is interested” portion of the statute.

¶ 9. Part two of the test requires that one seeking a writ be “authorized to bring the suit.” A private person may only be authorized to “petition for a writ of mandamus ‘if he can show an interest separate from or in excess of that of the general public.’ ” Aldridge, 929 So.2d at 302 (quoting Jackson County Sch. Bd. v. Osborn, 605 So.2d 731, 734 (Miss.1992); Fondren v. State Tax Comm’n, 350 So.2d 1329, 1332 (Miss.1977)). The crux of our analysis today is whether the council members have a separate interest or one in excess of the general public.

¶ 10. The council members offer that them interest in pursuing the writ is unique from that of the public at large because of the role they play within the separation of powers. The statutory scheme authorizing the mayor-council system expressly gifts that legislative body with strong checks and balances on the executive power of the mayor. While only the mayor may nominate department directors, it is only through the assent of the council that they may become directors. Miss.Code Ann. § 21-8-23(2) (Rev.2007). The council members argue that they are prevented from exercising them legislative power as authorized by the Legislature, which vests in them an interest separate from, and in excess of, the general public. The trial court agreed with this argument, and held that “[a]s members of the City Council, [the plaintiffs] have the right and duty to confirm directors appointed by the Mayor,” determining that this distinction sufficed as an interest separate from or in excess of the general public.

¶ 11. By analogy, the council members offer the ease of Dye v. State ex rel. Hale, 507 So.2d 332, 338 (Miss.1987), where two state senators alleged the lieutenant governor was exercising legislative powers in violation of the Constitution of 1890. We found that the actions of the lieutenant governor “certainly ha[d] an adverse impact upon [the state senators] sufficient to confer upon them standing to sue,” and “[w]e refusefd] to relegate to the Attorney General either the exclusive authority to bring a suit such as this or the discretion whether and how that authority should be exercised.” Id. at 338.

¶ 12. The mayor counters that the state senators in Dye did not file a writ of mandamus, as the council members did in this case. Yet while the Dye petition was not filed as a writ of mandamus, it certainly shared some characteristics with that statutory right. The state senators sought to enjoin the lieutenant governor from ex-erasing authority the senators argued was unconstitutional as a violation of separation of powers; they also sought a declaratory judgment that the Senate Rules, as written, conferred an unconstitutional grant of power. Id. at 335-36. This is certainly similar to seeking a writ of mandamus to “command[ ] any ... officer ... to do or not to do an act the performance or omission of which the law specially enjoins as a duty resulting from an office, trust, or station” under the mandamus statute. Miss.Code Ann. § 11-41-1 (Rev. 2002). Additionally, there is no doubt that the question at hand was whether the mayor had encroached upon the powers expressly granted to the council by the Legislature.

¶ 13. The mayor asserts in response that one cannot be a public official and claim that a duty arising out of one’s elected position confers standing for a writ of mandamus. He argues that “[i]f you have a duty as a result of your elected position and it affects a matter of public interest, then [the mandamus statute] requires that a petition for a ■ writ of mandamus be brought on complaint by the state.” Yet the statute does not set out such a requirement; nor does the mayor cite any case law in support of such an interpretation of the statute.

¶ 14. The third factor, whether there is a duty, is to an extent addressed in the second section of this opinion. However, it is undisputed by the parties that the may- or did have a duty to nominate, and the council a duty to approve or disapprove, directors of municipal departments. It was also undisputed by the parties that there was no other legal remedy available, meeting the fourth prong of the test.

¶ 15. The council members have demonstrated that, by virtue of their position as the legislative check and balance on the executive power of the mayor, they have a separate interest or an interest in excess of the general public. Accordingly, they have also demonstrated they have the standing necessary to seek a writ of mandamus.

II. Does state statute require the mayor to resubmit his directors once he is re-elected?

¶ 16. State law governing the may- or-council system requires that the mayor nominate the directors of the city departments; the nominated directors may only serve if approved by the council. Miss. Code Ann. § 21-8-23(2) (Rev.2007). The statute also provides that “[e]ach director shall serve during the term of office of the mayor appointing him, and until the appointment and qualification of his successor.” Miss.Code Ann. § 21-8-23(2) (Rev. 2007). The parties do not dispute that a mayor cannot unilaterally hire directors without the approval of the council. The question presented today is whether a mayor must resubmit directors who have been previously approved at the beginning of a new term of office.

¶ 17. “Where the statute is plain and unambiguous there is no room for construction.” Bailey v. Al-Mefty, 807 So.2d 1203, 1206 (Miss.2001) (internal quotation and citation omitted). Further, “[t]he primary rule of construction is to ascertain the intent of the legislature from the statute as a whole and from the language used therein,” and we “may look not only to the language used but also to its historical background, its subject matter, and the purposes and objects to be accomplished.” Id. at 1206 (internal quotation and citation omitted).

¶ 18. In his appeal, the mayor urges that “the statute itself is silent” when directors should be presented to the council for approval, “regardless of whether it is during a first term or successive term of office.” While the statute may not be explicit, it is not silent.

¶ 19. The statute clearly vests in the council checks and balances on the executive powers of the mayor. A plain reading of the statute supports the conclusion that “the term of office” is to be read in the singular, meaning that a director, once confirmed, serves only for the term of the mayor nominating him. As the trial court reasoned, the mayor and the council members each serve four-year terms. See Miss.Code Ann. § 21-8-7(2) (Rev.2007). Accordingly, the council members who originally confirmed the nomination of a director may no longer be on the council at the beginning of the new term. As discussed supra, the checks and balances on executive power vested in each council member are unique and separate abilities not shared by members of the general public. An interpretation which allowed those council members who were present when a mayor first took office to have greater powers than those council members present at the beginning of the new term of office would subvert the statutory scheme.

¶ 20. Additionally, it is not uncommon for mayors to serve multiple terms, and in some extreme cases, remain in office for decades. The council, as a legislative body, would be stripped of valuable checks and balances that preserve the separation of powers if a mayor could simply shield his or her decisions with political longevity. A contrary construction of the statute where the simple re-election of a mayor would nullify the checks and balances on executive power expressly created by the Legislature would disregard the clear intention of that body. We shall not disregard the clear intent of the Legislature to create these checks and balances.

¶ 21. This result has previously been reached by the Attorney General in multiple written opinions on the subject, including one involving the parties and facts at hand, and dating back to at least 1994. The opinions state “that department directors are appointed for a term commensurate and coterminous with the term of the appointing mayor” and opine that a re-elected mayor must resubmit holdover directors. Miss. Atty. Gen. Op. Opinion No. 2006-0058, 2006 WL 1900672, *1 (Feb. 24, 2006). While an attorney general’s opinion is not binding on this Court, it is persuasive, and it further underscores our analysis. See State ex rel. Holmes v. Griffin, 667 So.2d 1319, 1326 (Miss.1995).

¶ 22. Accordingly, a mayor shall resubmit directors for approval by the council if the mayor is re-elected, even if the director is a holdover from the previous term.

Conclusion

¶ 23. The council members have standing to seek a writ of mandamus against the mayor by virtue of the fact that their position creates in them a separate interest or an interest in excess of the general public. Additionally, Mississippi Code Section 21-8-23(2) requires that a mayor must resubmit directors for approval by the council at the beginning of the new term of office, even if the director is a holdover from the previous term and has been previously approved by the council.

¶ 24. The judgment of the Forrest County Circuit issuing an order of mandamus to compel the Mayor of Hattiesburg to resubmit directors to the city council is affirmed. The mayor shall forthwith submit department heads for approval by the council.

¶ 25. AFFIRMED.

SMITH, C.J., WALLER, P.J, CARLSON, GRAVES, DICKINSON, RANDOLPH AND LAMAR, JJ., CONCUR. EASLEY, J., CONCURS IN RESULT ONLY.

      . The action was not a formal act of the Hattiesburg City Council.

      . On appeal, the mayor offered the analogy of appointment of department heads to the President's unilateral appointment of cabinet members. See U.S. Const. Art. II, § 2. Unlike that constitutional grant of power to the President, the powers of a mayor and a city council are derived wholly from enactments of the Legislature.