author: CARLSON, Justice,

text:
    MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. Rickey W. THOMPSON.
    No. 2007-JP-01484-SCT.
    Supreme Court of Mississippi.
    Jan. 17, 2008.

      Darlene D. Ballard, Ayanna Batiste, attorneys for appellant.
    William C. Murphree, Tupelo, attorney for appellee.
   CARLSON, Justice,

for the Court.

¶ 1. The Mississippi Commission on Judicial Performance (Commission) filed a Formal Complaint charging Lee County Fourth District Justice Court Judge Rickey W. Thompson with willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute, thus causing such alleged conduct to be actionable pursuant to the provisions of Article 6, Section 177A of the Mississippi Constitution of 1890. In due course, the Commission and Judge Thompson submitted to us a joint motion for approval of a recommendation that Judge Thompson be publicly reprimanded and assessed with costs. Having conducted our mandated review of the Commission’s recommendation consistent with Article 6, Section 177A, Mississippi Commission on Judicial Performance Rule 10, Mississippi Rules of Appellate Procedure 16(d), and upon consideration of our judicial canons and our case law, we adopt the joint recommendation that Judge Thompson be publicly reprimanded and assessed with costs in the amount of $100.

FACTS AND PROCEEDINGS BEFORE THE COMMISSION

¶ 2. After the Commission’s filing of the formal complaint against Judge Thompson and the filing of Judge Thompson’s answer to the formal complaint, the Commission entered its scheduling order; however, in due course, without the necessity of a hearing, the Commission’s counsel and Judge Thompson, along with his counsel, filed with the Commission an Agreed Statement of Facts and Proposed Recommendation, which was accepted by the full Commission.

¶ 3. A reading of the Agreed Statement of Facts and Proposed Recommendation reveals certain agreed facts as follows: On May 22, 2006, a physical altercation occurred between two siblings, Deborah Ann Moody and Sally Thompson Gill, while they were attending their grandmother’s funeral at Union Baptist Church in Shannon. That evening, Moody appeared at the Lee County Sheriffs Department to file charges against Gill. An officer at the Sheriffs Department took a statement from Moody and then informed her that she should go to the Justice Court Building the next day to file the necessary papers to have a warrant issued for her sister’s arrest. On May 23, 2006, Moody went to the Justice Court Clerk’s office, as previously directed, and while there she happened to see Judge Thompson, who informed her that she should take her grievance to another judge, whereupon Moody appeared before Lee County Justice Court Judge John H. Sheffield. We now quote from this agreed statement of facts:

While Moody and Judge Sheffield were in the process of discussing the issuance of a warrant, [Judge Thompson] entered Judge Sheffield’s office. [Judge Thompson] expressed a desire to talk to Judge Sheffield about the situation before he signed the warrant. Judge Sheffield expressed that he would be issuing the warrant. [Judge Thompson] became angry and left Judge Sheffield’s office. Thereafter, Judge Sheffield authorized the warrant and explained to Moody that it would be issued on a Recognizance Appearance Bond and advised Moody to take the warrant to the Justice Court Clerk’s office.
As Moody entered the hallway she saw [Judge Thompson] standing, outside of his office. [Judge Thompson] then asked Ms. Shea Willis, Lee County Justice Court Deputy Clerk, not to send the warrant. Ms. Willis agreed. Moody then asked Ms. Willis if the warrant would be sent to the Lee County Sheriff Department, and Ms. Willis responded no.
Moody then walked back to Judge Sheffield’s office to tell him what happened. Judge Sheffield gave Moody the telephone number for the Mississippi Commission on Judicial Performance. After-wards, Moody went back to the Justice Court Clerk’s office. A different deputy clerk advised Moody that she would send the warrant in that day. Moody obtained a copy of the warrant and departed.

¶ 4. A constable received the warrant and telephoned Gill concerning the outstanding arrest warrant. Gill then voluntarily surrendered herself at the Lee County Justice Court Office, whereupon she was processed and released on her own recognizance. In due course, a justice court date was assigned for Gill based on the charges brought by Moody. In the Agreed Statement of Facts and Proposed Recommendation, Judge Thompson acknowledged that he improperly allowed “his family, social or other relationships to influence his judicial conduct and that he, as well as his staff, must be courteous, cooperative with other judges, and observe standards of fidelity and diligence when performing [his] official duties.” Judge Thompson also acknowledged that failure to follow these judicial tenets constitutes misconduct. Additionally, Judge Thompson acknowledged that his judicial misconduct caused him to be in violation of Canons 1, 2B and 3B(2) of the Mississippi Code of Judicial Conduct. Thus Judge Thompson’s conduct is actionable pursuant to the provisions of Article 6, Section 177A of the Mississippi Constitution inasmuch as Judge Thompson’s conduct unquestionably constitutes willful misconduct in office and conduct prejudicial to the administration of justice, bringing the judicial office into disrepute.

¶ 5. The Commission entered its Findings of Fact and Recommendation, adopting the Agreed Statement of Facts and Proposed Recommendation. The Minutes Excerpt filed by the Commission reveals that on motion duly made and seconded, the Commission unanimously recommended to this Court that Judge Thompson be publicly reprimanded and assessed with costs in the amount of $100.00.

DISCUSSION

¶ 6. Consistent with our practice in judicial misconduct cases, we first consider the judge’s conduct, and if found to be actionable, we then consider the appropriate sanction.

I. WHETHER JUDGE THOMPSON’S CONDUCT CONSTITUTED WILLFUL MISCONDUCT PREJUDICIAL TO THE ADMINISTRATION OF JUSTICE WHICH BRINGS THE JUDICIAL OFFICE INTO DISREPUTE.

¶ 7. Our cases are legion on the point that this Court conducts a de novo review of judicial misconduct proceedings, while affording deference to the Cominission’s recommendations when the Commission’s findings are based on clear and convincing evidence. Comm’n on Judicial Performance v. Cole, 932 So.2d 9, 10 (Miss.2006) (citing Miss. Comm’n on Judicial Performance v. Hartzog, 904 So.2d 981, 984 (Miss.2004)). See also Miss. Comm’n on Judicial Performance v. Gibson, 883 So.2d 1155, 1156 (Miss.2004). “While we do give great deference to the Commission’s findings, we are also charged to render an independent judgment.” Id. (citing Miss. Comm’n on Judicial Performance v. Peyton, 645 So.2d 954, 956 (Miss.1994)). In essence, this Court serves as the “the trier of fact” since we “have the sole power to impose' sanctions in judicial misconduct cases.” Id. at 1156— 57 (citing Peyton, 645 So.2d at 956).

¶ 8. With our appropriate standard of review and mandated duty in mind, we return to today’s case. The Commission charges Judge Thompson with violating Canons 1, 2B and 3B(2) of our Code of Judicial Conduct. ■ We set out here the judicial canons which Judge Thompson admits he violated:

CANON 1
A Judge Shall Uphold the Integrity and Independence of the Judiciary[.]
An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved. The provisions of this Code should be construed and applied to further that objective.
CANON 2
A Judge Should Avoid Impropriety and the Appearance of Impropriety in All His Activities[.]
B. Judges shall not allow their family, social, or other relationships to influence the judges’ judicial conduct or judgment. Judges shall not lend the prestige of their offices to advance the private interests of the judges or others; nor shall judges convey or permit others to convey the impression that they are in a special position to influence the judges. Judges shall not testify voluntarily as character witnesses.
CANON 3
A Judge Should Perform the Duties of His Office Impartially and Diligently[.]
B. Adjudicative Responsibilities.
(2) A judge shall be faithful to the law and maintain professional competence in it. A judge shall not be swayed by partisan interests, public clamor, or fear of criticism.

¶ 9. We note that while Judge Thompson readily admits the violation of these judicial canons, the facts of this case likewise support a finding by us that Judge Thompson violated these canons, and is thus guilty of willful misconduct while in office.

¶ 10. This Court has for many years been consistent in its definition of willful judicial misconduct. We recently stated once again:

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

Miss. Comm’n on Judicial Performance v. Cowart, 936 So.2d 343, 346-47 (Miss.2006) (citing Miss. Comm’n on Judicial Performance v. Whitten, 687 So.2d 744, 747 (Miss.1997)). See also In re Quick, 553 So.2d 522, 524 (Miss.1989). In Cowart, we further stated:

While the conduct of [the judge], in our opinion, amounted to willful misconduct in office and conduct prejudicial to the administration of justice, bringing the judicial office into disrepute, we recognize as quoted in In re Anderson, supra, [] that a judge may also, through negligence or ignorance not amounting to bad faith, behave in a manner prejudicial to the administration of justice so as to bring the judicial office into disrepute. The result is the same regardless of whether bad faith or negligence and ignorance are involved and warrants sanctions.

936 So.2d at 347 (quoting In Re Anderson, 451 So.2d 232, 234 (Miss.1984)).

¶ 11. In today’s case, Judge Thompson, in the presence of the affiant, Moody, unquestionably interjected himself into a case (from which he had already in essence “recused” himself) by informing Judge Sheffield that he (Judge Thompson) wanted to talk to Judge Sheffield before he (Judge Sheffield) signed the arrest warrant on Moody’s sister, Gill. When Judge Sheffield refused, Judge Thompson angrily left Judge Sheffield’s office. After Judge Sheffield executed the arrest warrant for Gill, Moody left Judge Sheffield’s office to “walk” the warrant down to the Justice Court Clerk’s office to be processed, whereupon Judge Thompson told one of the justice court deputy clerks not to issue the warrant, and she complied with Judge Thompson’s request. A different justice court deputy clerk later issued the duly executed arrest warrant, and Gill was arrested and released on her own recognizance. From these admitted facts, we find that Judge Thompson indeed violated Canons 1, 2B and 3B(2) of the Code of Judicial Conduct, and that these actions constitute willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute; therefore, Judge Thompson’s judicial misconduct is actionable pursuant to the provisions of Article 6, Section 177A of the Mississippi Constitution. We- thus move to the second issue.

II. WHETHER PUBLIC REPRIMAND AND ASSESSMENT OF COSTS ARE APPROPRIATE SANCTIONS.

¶ 12. According to Article 6, Section 177A, upon a finding similar to the one we have made today (willful judicial misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute), this Court “may remove from office, suspend, fine or publicly censure or reprimand” the guilty judge. In today’s case, there is before us for consideration, inter alia, the Memorandum Brief in Support of Joint Motion for Approval of Recbmmendations Filed by the Mississippi Commission on Judicial Performance, filed by both counsel for the Commission and counsel for Judge Thompson. As duly noted by the Commission and Judge Thompson, this Court considers several factors in determining the appropriate sanction in any case involving judicial misconduct. In Mississippi Commission on Judicial Performance v. Gibson, 883 So.2d 1155, 1158 (Miss.2004), we modified the Baker factors. In re Baker, 535 So.2d 47, 53-54 (Miss.1988).

¶ 13. The six Gibson factors we now consider to impose sanctions in judicial misconduct cases are: “(1) The length and character of the judge’s public service; (2) Whether there is any prior case law on point; (3) The magnitude of the offense and the harm suffered; (4) Whether the misconduct is an isolated incident or evidences a pattern of conduct; (5) Whether moral turpitude was involved; and (6) The presence or absence of mitigating or aggravating circumstances.” Gibson, 883 So.2d at 1158. In a footnote, we stated that “[m]oral turpitude includes, but is not limited to, actions which involve interference with the administration of justice, misrepresentation, fraud, deceit, bribery, extortion, or other such actions which bring the judiciary into disrepute.” Id. n. 2.

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

¶ 14. Judge Thompson was first elected as a justice court judge in Lee County in 2003, and in August, 2007, he was reelected to another four-year term.

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

¶'15. There is considerable judicial precedent relevant to the issues presented, as cited both supra and infra.

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

¶ 16. Although the record is unclear, Judge Thompson obviously knew Deborah Ann Moody, and upon seeing Moody at the Justice Court Clerk’s office, Judge Thompson,'for whatever reason, immediately decided not to get-involved in the case, choosing instead to request that Moody take her case to another judge. Notwithstanding this decision not to be involved in the case, Judge Thompson, in Moody’s presence, insisted that Judge Sheffield talk with him before signing the arrest warrant on Sally Thompson Gill. When Judge Sheffield refused, Judge Thompson became angry, left Judge Sheffield’s office and instructed a justice court deputy clerk not to issue the arrest warrant. We do not know how many persons may have witnessed Judge Thompson’s conduct in Judge Sheffield’s office or later in the hallway of the Justice Court Building, nor do we know how many persons may have since learned of Judge Thompson’s conduct, but we can safely state, as asserted by the Commission, and admitted by Judge Thompson, that Judge Thompson’s conduct created “the appearance that he may be partial to certain interests. The litigants that appear in Justice Court or that come to Justice Court for assistance deserve a fair and independent judiciary and in this case, the litigant did not receive that and, therefore, suffered harm. The public’s perception of the judiciary as a whole was impugned.”

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

¶ 17. Judge Thompson has one prior disciplinary action against him. As asserted by the Commission, and admitted by him, Judge Thompson signed an Agreed Statement of Facts and Proposed Recommendation in September 2005, and received a private admonishment for participating in ex parte communications with parties concerning a pending matter. The 2005 ease and today’s case are unrelated.

(5) Whether moral turpitude was involved.

¶ 18. This Court has found the existence of moral turpitude in recent cases. Miss. Comm’n on Judicial Performance v. Gordon, 955 So.2d 300, 305-306 (Miss.2007) (fourteen instances of “ticket-fixing”); Comm’n on Judicial Performance v. Sanford, 941 So.2d 209, 216-18 (Miss.2006) (at request of judge, sheriff informed arresting officer in DUI case not to appear at a court hearing so that judge could dismiss case for failure to prosecute, and the case was dismissed); Miss. Comm’n on Judicial Performance v. Britton, 936 So.2d 898, 906 (Miss.2006) (six complaints ranging from ex parte communications with parties to setting aside judgment entered by another judge); Comm’n on Judicial Performance v. Cowart, 936 So.2d 343, 350 (Miss.2006) (three instances involving ex parte communications, resulting in judge remanding trafile tickets to files).

¶ 19. Contrary to the egregious actions of the judges in Gordon, Sanford, Britton and Cowart, we agree with the Commission in today’s case that Judge Thompson’s actions, while highly improper, do not rise to the level of moral turpitude. While Judge Thompson’s actions in urging Judge Sheffield to talk with him about the arrest warrant were clearly inappropriate, we have in the record only the statement of fact that Judge Thompson “expressed a desire to talk with Judge Sheffield about the situation before he signed the warrant.” (Emphasis added). Judge Thompson evidently did not attempt to persuade Judge Sheffield not to sign the arrest warrant. In any event, Judge Sheffield, notwithstanding Judge Thompson’s actions, forthwith signed the arrest warrant on Gill and gave the executed warrant to Moody to deliver to the justice court clerk’s office for processing. Likewise, although there was an obvious momentary delay in issuing the arrest warrant due to Judge Thompson’s instructing a justice court deputy clerk not to issue the warrant, another justice court deputy clerk issued the warrant soon thereafter, and Gill subsequently was taken into custody on the same day that the arrest warrant was executed by Judge Sheffield. We thus conclude that the totality of Judge Thompson’s actions does not reveal the existence of moral turpitude.

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

¶ 20. There is no doubt as to the existence of aggravating circumstances in that Judge Thompson previously has been disciplined via private admonishment for engaging in ex parte communications with parties concerning a pending matter. Likewise, Judge Thompson’s conduct, as asserted by the Commission, and admitted by Judge Thompson, reflects “adversely on the propriety and impartiality of the judiciary.” The citizens of Lee County unquestionably have a right to expect and demand that their elected justice court judges will refrain from such judicial misconduct. On the other hand, this Court also unhesitatingly acknowledges that Judge Thompson stepped up and accepted responsibility for his conduct and is willing to be held accountable for his actions. Such action on the part of Judge Thompson is commendable and is considered by this Court to be mitigating in nature. We may thus consider this expression of contrition, along with the totality of the record and the application of the Gibson factors consistent with our case law, in determining the appropriate sanction to impose upon Judge Thompson.

¶ 21. The Commission and Judge Thompson suggest to us that the recommendation of a public reprimand is consistent with similar cases such as Commission on Judicial Performance v. Cole, 932 So.2d 9 (Miss.2006); and Mississippi Commission on Judicial Performance v. Brown, 761 So.2d 182 (Miss.2000). We agree. In Cole, the judge reinstated his grandson’s driver’s license, which had been revoked pending disposition of various traffic charges, including a DUI charge. The judge’s grandson later entered a nolo contendere plea to all traffic charges before a justice court judge specially appointed to hear the case. Since the judge’s grandson was on probation for a felony offense, the previously imposed probation was revoked, and Judge Cole approached the sheriff in an effort to have his grandson serve his sentence in the county jail, as opposed to a state facility. In deciding that the judge should be publicly reprimanded, we stated:

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.

Cole, 932 So.2d at 11.

¶22. In sum, having considered the record before us and having applied the Gibson factors consistent with our case law, we agree that the joint recommendation by the Commission and Judge Thompson should be adopted in toto.

CONCLUSION

¶ 23. Judge Thompson’s actions constituted willful misconduct in office and conduct prejudicial to the administration of justice which brought the judicial office into disrepute. We thus order Judge Thompson to be publicly reprimanded and assessed costs in the amount of $100. This reprimand shall be read in open court on the first day of the next term of the Circuit Court of Lee County in which a jury venire is present, with Judge Thompson present and standing before the presiding judge, who shall read the reprimand in open court.

¶ 24. LEE COUNTY JUSTICE COURT JUDGE RICKEY W. THOMPSON SHALL BE PUBLICLY REPRIMANDED IN OPEN COURT BY THE PRESIDING JUDGE OF THE LEE COUNTY CIRCUIT COURT ON THE FIRST DAY OF THE NEXT TERM OF THAT COURT IN WHICH A JURY VE-NIRE IS PRESENT AFTER THIS DECISION BECOMES FINAL; AND IS ASSESSED COSTS IN THE AMOUNT OF $100.00.

SMITH, C.J., WALLER, P.J., EASLEY, GRAVES, DICKINSON, RANDOLPH AND LAMAR, JJ„ CONCUR. DIAZ, P.J., NOT PARTICIPATING.

      . This case is different from the 1984 case, and is cited as In Re Lloyd W. Anderson, 412 So.2d 743, 745 (Miss.1982).

      . Though of no moment in today's case, the record is curiously silent as to whether Judge Thompson, Moody and Gill are related by blood or marriage, notwithstanding the citation to Canon 2B as being one of the judicial canons violated by Judge Thompson. Canon 2B states in pertinent part: "Judges shall not allow their family, social, or other relationships to influence the judges' judicial conduct or judgment.”


source: Caselaw Access Project

author: LAMAR, Justice,

license: Public Domain

text:
    In re Application of Earl Stephen DEAN: Earl Stephen Dean. v. Mississippi Board of Bar Admissions.
    No. 2006-SA-01610-SCT.
    Supreme Court of Mississippi.
    Jan. 17, 2008.

      Earl Stephen Dean, appellant, pro se.
    Mary Jo Woods, Harold Edward Pizzet-ta, III, Jackson, attorneys for appellee.
   LAMAR, Justice,

for the Court.

111. The Mississippi Board of Bar Admissions issued an adverse determination as to the character and fitness of applicant Earl Stephen Dean. Dean appealed the Board decision to the Chancery Court of Hinds County, which affirmed the Board’s decision. Dean appeals the chancery court judgment, asserting that the Board’s decision was not based on sufficient evidence and that it violated his constitutional rights of free speech and due process.

FACTS AND PROCEDURAL HISTORY

¶2. Appellant Earl Stephen Dean received his law degree from Thomas Cooley Law School in Lansing, Michigan, in January 2001. Dean filed for admission to the Mississippi Board of Bar Admissions (“Board”) on March 21, 2002. The Committee on Character and Fitness (“Committee”) held a hearing to consider Dean’s application on August 23, 2002. The Committee submitted to the Board its recommendation to deny Dean’s application. After reviewing the application, on November 14, 2002, the Board remanded Dean’s application to the Committee for production of findings of fact and conclusions of law. The Committee submitted a substituted opinion, which again recommended denial, and accordingly, the Board denied Dean’s application on January 30, 2003.

¶ 3. Dean petitioned the Board to review its decision pursuant to the Rules Governing Admission to the Bar, Rule 8, section 9. In April 2003, the Board held a hearing where Dean presented his arguments as to why the Board should reverse its previous decision. The hearing was made public at Dean’s request, and a number of Dean’s supporters attended. Before the Board issued a decision, in August 2003, Dean filed a petition for. writ of mandamus with this Court. The Board entered an Order on October 2, 2003, staying further action on Dean’s application pending the issuance of this Court’s decision. This Court entered an Order on November 26, 2003, dismissing Dean’s petition as untimely since he failed to exhaust the remedies available from the Board.

¶ 4. Due to the complexity of the case, the Board again remanded the case to the Committee. The Committee conducted a second hearing on August 25, 2005. The Committee found that Dean exhibited conduct evidencing: (1) dishonesty; (2) irresponsibility in business and professional matters; (3) engagement in the unauthorized practice of law; (4) violation of the reasonable rules of conduct governing many of his activities; (5) failure to exercise substantial self-control; and (6) mental and emotional instability. On those grounds the Board again denied Dean’s application on September 22, 2005.

¶ 5. Dean filed a petition on October 3, 2005, to the Board to reconsider its second denial pursuant to Rule' 8, section 9, but withdrew his petition on October 19, 2005. On October 24, 2005, Dean appealed the Board’s decision to the Hinds County Chancery Court, which affirmed the Board’s denial of Dean’s application on August 23, 2006. On September 18, 2006, Dean appealed the chancery court decision to this Court.

• DISCUSSION

¶ 6. This Court, possessing exclusive power to admit persons to practice as attorneys in the courts of this State, adopted the Rules Governing Admission to the Mississippi Bar (“Bar Rules”) on' November 26, 1979. Miss. Bd. of Bar Admissions v. Applicant F, 582 So.2d 377, 378-379 (Miss.1991) (citing Miss.Code Ann. § 73-3-2 (1989, Recompiled)). Bar Rules, Rule 8, section 10, provides that, on appeal of an adverse Board decision to the chancery court, “[t]he Board’s decision may be reversed by the Chancery Court only if the applicant proves by a preponderance of the evidence in the record before the Board that denial of his application was arbitrary, capricious, or malicious.” This is the familiar standard used in judicial review of other administrative licensing decisions in this state. Applicant F, 582 So.2d at 379 (citing Melody Manor Convalescent Ctr. v. Miss. State Dep’t of Health, 546 So.2d 972, 974 (Miss.1989); Mainstream Savings & Loan Ass’n v. Washington Fed. Savings and Loan Ass’n, 325 So.2d 902, 903 (Miss.1976)). This Court applies the same stan dard mandated to the chancery court; however, it reviews the Board decision de novo. Applicant F, 582 So.2d at 379. Further, this Court affords great deference to an agency’s interpretation of statutes and rules which govern its operation. Hayes v. Pub. Employees’ Ret. Sys., 960 So.2d 471, 473 (Miss.2007) (citing Elec. Data Sys. Corp. v. Miss. Div. of Medicaid, 853 So.2d 1192, 1202 (Miss.2003)). Therefore, this Court will reverse the Board’s decision only upon finding that it was “arbitrary, capricious or malicious” in that it was unsupported by substantial evidence or violated a constitutional right of the party. See Hayes 960 So.2d at 473-74; Applicant F, 582 So.2d at 379.

¶ 7. The Bar Rules prescribe the procedure for admission to the Mississippi Bar, including the guidelines for satisfying the character and fitness portion of the admission requirements. Rule 8, section 6, provides the standards for disqualification of an applicant. It reads:

The Committee shall recommend that the applicant not be admitted to practice law in Mississippi if, in the judgment of the Committee, the applicant has exhibited conduct substantially evidencing an inclination:
A. To be dishonest;
B. To take unfair advantage of others;
C. To be disloyal to those to whom loyalty is legally owed;
D. To be irresponsible in business or professional matters;
E. To support or advocate the overthrow of the government of the United States by force;
F. To unlawfully engage in the practice of law while not being so licensed;
G. To violate reasonable rules of conduct governing activity in which applicant has engaged;
H. To fail to exercise substantial self-control, including excessive and continuing violation of traffic rules, the improper use of drugs, and the excessive use of alcohol;
I. To be mentally or emotionally unstable to the extent that applicant is not suited for the practice of law.

Rule 8, § 6. “The burden is on the applicant to establish to the reasonable satisfaction of a'majority of the Committee that he possesses such character and qualifications as to justify his’ admission to the Bar and qualify him to perform the duties of an attorney and counselor at law.” Rule 8, § 7.

¶ 8. The Committee determined Dean had exhibited disqualifying conduct from Rule 8, section 6, including: dishonesty (section 6(A)); irresponsibility in business or professional matters (section 6(D)); unauthorized practice of law (section 6(F)); violation of reasonable rules of conduct (section 6(G)); failure to exercise self-control (section 6(H)); and mental and emotional instability (section 6(1)). Dean raised five issues refuting the Board’s finding.

I. Whether Applicant Was Dishonest with the Board.

¶ 9. Dean asserts that the Board’s finding that he was dishonest was not supported by the record. The Board responds that this issue is procedurally barred, alleging that Dean failed to raise the issue in the trial court. This Court finds that Dean did raise this issue in the trial court. He began the first issue in his trial court brief refuting the various examples upon which the Board relied to affirm the Committee’s finding of dishonesty. Also, in Dean’s reply brief to the trial court, he titled a sub-issue “Applicant Has Not Exhibited a Trait for Dishonesty” and proceeded again to discuss the basis for the Board’s finding that he was dishonest. Thus, this Court will consider Dean’s arguments concerning the sufficiency of evidence for the finding that he was dishonest.

¶ 10. The Committee notes four incidents which support its finding of dishonesty. Three of the four are false answers to questions on the Bar application.

¶ 11. Question number 18 on the Mississippi Bar application asked “[h]ave you ever been suspended, placed on disciplinary probation, expelled or requested to resign from high school, college, university or law school, or otherwise subjected to discipline by any such school or other institution or requested or advised by any such school or institution to discontinue your studies therein for disciplinary reasons?” The Board alleges that Dean failed to disclose he had been placed on probation by Thomas Cooley Law School for failing to disclose a prior criminal conviction. Dean conceded at the Committee hearing that he was placed on disciplinary probation for a DUI. Dean contends that his voluntary disclosure of the DUI to the Thomas Cooley Law School before they discovered the conviction demonstrates a lack of intentional deceit. This contention is misplaced. The Board’s finding did not concern Dean’s dishonesty with Thomas Cooley Law School, but rather Dean’s dishonesty in his failure to properly disclose this information on his Mississippi Bar application.

¶ 12. Also, in response to question number 10, which instructs the applicant to “[s]tate the name .... for every law school which you have attended,” Dean responded by listing only Thomas Cooley Law School. However, Dean later conceded that he also attended William Howard Taft University Law School. Dean now contends that the omission of the correspondence course he took at William Howard Taft is irrelevant to his character since the correspondence course was not associated with any misconduct. Dean’s argument is irrelevant. Regardless of whether the correspondence course in and of itself is associated with any misconduct, the failure to disclose attendance at another school supports the finding that Dean was dishonest for omitting requested information on the Mississippi Bar application.

¶ 13. The third instance of dishonesty in the Bar application involved question number 28, which asked “[h]ave you ever been discharged, asked to resign, or resigned from any employment for reasons other than career advancement or full-time schooling?” Dean answered in the negative. The Board found that Dean was terminated from each of the three insurance companies — Illinois Mutual, Midland National Life Insurance, and Massachusetts Mutual Life Insurance — which he listed as employers. Dean disputes his status as an employee, claiming that he was an independent contractor; thus, the question was inapplicable to him. To the contrary, Dean listed the three insurance companies as employers on his application and stated that he had never been terminated by any of the three. Each of the three insurance companies submitted documentation stating that in fact he was terminated from employment.

¶ 14. Further, the Board found that Dean was dishonest regarding his actions in Dean v. Byerley, No. 05-1155, 2005 WL 1993435, 2005 U.S.App. LEXIS 17830 (6th Cir. Aug. 17, 2005). The Board found that Dean gave false testimony and made inconsistent statements during the court proceedings as well as before the Committee. In Byerley, Dean picketed at the home of Thomas Byerley, a Michigan Bar official. Id., 2005 WL 1993435 at *1, 2005 U.S.App. LEXIS 17830 at *3. Dean alleged that Byerley threatened him for picketing at Byerley’s home. Id. Dean sued for damages, claiming that as a result of Byer-ley’s threats, he was afraid to continue exercising his constitutional rights under the First Amendment. Id., 2005 WL 1993435 at *1, 2005 U.S.App. LEXIS 17830 at *11. However, Byerley entered evidence that on the same day after leaving his house, Dean continued to picket a second house, the residence of John Nussbau-mer, a dean at Thomas Cooley Law School. See Id., 2005 WL 1993435 at *5, 2005 U.S.App. LEXIS 17830 at *14.

¶ 15. The Board states that while Dean denied at trial having picketed the second house, he conceded his actions to the Sixth Circuit. With regard to Dean picketing the second house, the Sixth Circuit stated “Dean accurately notes [on appeal] that the house he picketed did not belong to a state actor and that he was therefore at no risk of having his free-speech rights chilled.” Id., 2005 WL 1993435 t *5, 2005 U.SApp. LEXIS 17830 at *14-15.

¶ 16. Similarly, Dean made inconsistent statements to the Committee. The Board contends Dean effectively admitted in a letter to the Committee to picketing Nuss-baumer’s residence on the day in question, March 27, 2001. Nussbaumer stated in a letter, written on March 27, 2001, “I personally observed Mr. Dean and his two hired hands picketing my house this morning.” Dean’s letter to the Committee stated in pertinent part:

.... Dean Nussbaumer’s letter dated 3/27/01 referring to my non targeted picketing of his homes stated among other things that I was very courteous (Exhibit H). (sic) He correctly stated that I paid two people to accompany me. My reason for doing so was that I wanted witnesses on my behalf present at all times.

When Dean was asked in the August 25, 2005, Committee hearing whether the statement in the letter was an admission that Dean picketed Nussbaumer’s house on March 27, 2001, Dean responded “[i]t would have been if I had the date correct.” Dean acknowledged that he had paid two people to accompany him in picketing Nussbaumer’s house but failed to comment on Nussbaumer’s alleged inaccuracy of the picketing date, an issue which was significant during the trial and the appeal. Despite his previous concession by letter, Dean denied during the Committee hearing on August 25, 2005, that he picketed Nussbaumer’s home on March 27, 2001.

¶ 17. Dean failed to offer evidence in either the Board hearing or the trial court hearing to negate the Board’s finding that he was dishonest. There was sufficient evidence by which the Committee could have found Dean to exhibit conduct substantially evidencing an inclination to be dishonest. Consequently, with regard to the finding of dishonesty, Dean has failed to show the Board’s denial of his application was arbitrary, capricious, or malicious.

II. Whether the Board Violated Applicant’s Right to Free Speech.

¶ 18. Dean contends that the chancery court affirmed the Board, which “put [his] First Amendment practices and personal views on trial.” Dean asserts the Board violated his First Amendment right to free speech by holding against him his petition for redress of grievances. Dean alleges the Board retaliated against him due to his having filed various lawsuits, including two against the Mississippi Board of Bar Admissions.

¶ 19. The Committee explained during the hearing that its concern was the validity of the suits and Dean’s conduct related to dealings with the legal system. The Committee based its determination of misconduct on the following findings: (1) Dean offered false testimony to the Committee regarding the events underlying the Dean v. Byerley case; (2) five days prior to the committee hearing, Dean made threats to David Storlie, a witness scheduled to testify at the Committee hearing who was General Counsel of Illinois Mutual, a former employer of Dean’s; and (3) Dean admitted to engaging in the unauthorized practice of law in numerous lawsuits.

¶ 20. The Committee further found Dean’s pattern of litigation indicated that Dean has a habit of filing meritless and retaliatory suits. On Dean’s appeal of the jury verdict rejecting his claims, the Sixth Circuit found Dean’s arguments to be “improbable” with “no meaningful authority.” Dean v. Byerley, No. 05-1155, 2005 WL 1993435, at *3, 2005 U.S.App. LEXIS 17830 at *7 (6th Cir.Aug.17, 2005) (“Not only is it improbable that a district court’s reliance on model jury instructions would amount to plain error but Dean also has offered no meaningful authority to show that the use of these model instructions was in fact mistaken”). Dean sued two employees of the Missouri Conservation Commission after the Commission obtained a preliminary injunction prohibiting Dean from improving a road leading to his partially constructed home. The trial court granted summary judgment for the Commission. The Eighth Circuit Court of Appeals rejected as “frivolous” Dean’s argument that his Fourth Amendment rights had been violated. Dean v. Duckworth, 99 Fed.Appx. 760, 761 ,(8th Cir. April 26, 2004)]

¶21. Further examples of retaliatory suits occurred. At the conclusion of a criminal trial, the trial court ordered that Dean and his wife be paid restitution. Dean, along with his wife, brought an emotional distress claim against the presiding circuit court judge and the prosecutor, alleging the judge and prosecutor refused to release the restitution. Dean v. Carle, No. 4:96CV00292FRB, slip op. at 1 (E.D.Mo. Apr. 22, 1996). The attorney and judge were dismissed on the basis of immunity. Id. at 2-3. The trial court’s Order noted:

In addition to the legal shortcomings of this case, the Plaintiffs would have difficulty showing damages at trial since Mr. Parker has already tendered an offer to pay the restitution but the Plaintiffs have rejected that money. The Plaintiffs may wish to rethink their decision.

Id. at 4. Also, after the Missouri Attorney General obtained a consent injunction against Dean and a charity he directed on the basis of deceptive practices, Dean sued two assistant attorneys general for the State of Missouri for damages and injunc-tive relief. Dean v. Thurman, No. 87-0089C(6), slip op. at l(E.D.Mo. Apr. 30, 1987). Defendants moved for summary judgement on the ground of immunity. Id. The federal trial court dismissed the case because the claim for damages was barred by prosecutorial immunity and the court did not find circumstances warranting its intervention in an ongoing state civil enforcement action. Id. at 2. Subsequently, Dean withdrew the complaint he had'filed in state court.

¶ 22. The Board cites In the Matter of Admission to the Bar, 444 Mass. 393, 828 N.E.2d 484, 494 (2005) (conduct in previous litigation is properly considered to determine whether the applicant has a “sense of reality” in dealing with the legal system) and In re Appeal of Lane, 249 Neb. 499, 544 N.W.2d 367, 376 (1996) (an applicant’s threatening and irrational actions are relevant and may disclose a “pattern and way of life” regarding the applicant’s normal .reaction to opposition and disappointment) in support of the contention that consideration of such statements and actions when dealing with the legal system is proper, as they may be indicators of how the applicant will conduct himself as an attorney.

¶ 23. The’ Committee stated in its recommendation that its concern was not “Dean’s tendencies to picket or otherwise exercise any of his constitutional rights.” The chairman of the Committee stated in the hearing that the Committee would not dispute Dean’s right to file civil lawsuits. “It’s the validity of the lawsuits that causes concern, not the right to file lawsuits.” Dean has failed to show that by considering his litigation history, the Board’s denial of his application was arbitrary, capricious, or malicious or that his First Amendment right to free speech was violated.

III. Whether the Board Violated Dean’s Right to Due Process.

¶ 24. Dean contends that the Board violated his right to due process in that it failed to afford him an opportunity to be confronted with, and to cross-examine witnesses who supplied information adverse to him, since the Board never produced the witnesses whose statements it intended to use against him at the hearing. Dean cites Willner v. Committee on Character & Fitness, 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224 (1963), in which the United States Supreme Court held that the admissions procedures failed to afford due process when no hearing was provided and the applicant was denied an opportunity to review the report of the character committee resulting in denial of his application. The Supreme Court considered “what procedural due process requires if the license [to practice law] is to be withheld.” Winner, 373 U.S. at 103, 83 S.Ct. 1175. The Court held that “petitioner was denied procedural due process when he was denied admission to the Bar by the Appellate Division without a hearing on the charges filed against him before either the Committee or the Appellate Division.” Id. at 106, 83 S.Ct. 1175. The requisite hearing should have included notice of what the government intended to present at the hearing and the opportunity for the charged person to be heard and to refute the government’s arguments at the hearing. Id. at 105, 83 S.Ct. 1175.

¶25. The Board responds that Dean was provided written notice prior to the hearing and an opportunity to answer and refute accusations at the hearing. The Board faxed Dean a letter on August 19, 2005, notifying Dean that both David Stor-lie from Illinois Mutual and Sara Whitman from the Missouri Legal Ethics Counsel were potential witnesses for the August 25, 2005, hearing and listing the documents that might be introduced. Thus, the Board notes that Dean had an opportunity to address the evidence but failed to call any witnesses on his behalf.

¶26. This case is distinguishable from Willner. This Court finds the Board adequately informed Dean of the evidence of adverse character to be considered and sufficiently provided Dean with an opportunity to respond during the hearing.

¶27. Dean further contends the burden was on the Board to produce the evidence to support the Board’s finding. However, Mississippi Code Annotated Section 73 — 3—2(2)(b) (Rev.2004) provides:

The applicant shall bear the burden of establishing his or her qualifications for admission to the satisfaction of the Board....

Rule 8, § 10; Watkins v. Miss. Bd. of Bar Admissions, 659 So.2d 561, 568 (Miss.1995). Without question, the burden is on Dean to demonstrate his fitness and not on the Board to show his lack thereof. Therefore, this argument is without merit.

¶ 28. Dean also contends that the Board relied heavily on hearsay in reaching its findings, and such reliance is in violation of Rule 8, section 5(d), which declares hearsay evidence “shall not be sufficient standing alone to support a finding unless it would be admissible over objection in civil actions.” Dean fails to state which testimony he believes was hearsay. Moreover, as the trial court pointed out, Dean failed to make a specific objection to the hearsay he named either in the hearing before the committee or in chancery court. This Court consistently has stated that failure to object to hearsay constitutes a waiver of the issue on appeal. Moore v. Parker, 962 So.2d 558, 566 (Miss.2007) (citing Rubenstein v. State, 941 So.2d 735, 764 (Miss.2006)). We find that Dean’s objection to such evidence is waived.

¶ 29. Dean failed to show by a preponderance of the evidence that denial of his application by the Board was arbitrary, capricious, or malicious or in violation of his due process rights.

IV. Whether the Board Relied Solely on Conduct Too Remote In Time

¶ 30. Dean also asserts that the Board violated Rule 8, section 6, which states:

The following conduct will not in and of itself be considered as indicating a lack of moral or ethical qualification:
4. Misconduct remote in time unless felonious in nature or recently repeated in similar acts.

¶ 31. Dean argues the Board violated this rule by relying on allegations that Dean engaged in the unauthorized practice of law in 1987, twenty years ago. The Board acknowledges the rule and explains that it did not violate the rule. While the Board considered an act which occurred more than twenty years ago, it also considered additional conduct in making its determination. As mentioned, the Board based its denial on six reasons: (1) dishonesty; (2) irresponsibility in business or professional matters; (3) unauthorized practice of law; (4) violation of reasonable rules of conduct; (5) failure to exercise self-control; and (6) mental and emotional instability to the extent that the applicant is not suited for the practice of law. The unauthorized practice of law is only one of the six reasons. Therefore, the Board’s inclusion of remote conduct among numerous other instances of disqualifying conduct in support of its decision does not violate Rule 8, section 6.

V. Whether the Board Properly Determined Dean Was Mentally and Emotionally Unstable.

¶ 32. Rule 8, section 6 allows disqualification for the determination that the applicant is “mentally or emotionally unstable to the extent that applicant is not suited for the practice of law.” Dean asserts that the Board made a medical determination without having a medical license. However, the Bar Rules declare that “[i]t shall be the duty of the Board to administer these Rules and to determine the fitness and qualifications of persons seeking admission to practice law in the State of Mississippi.” Bar Rules,' Rule 2, § 2. Since there is no requirement that the Board include a member with a medical degree, the Rules presuppose the Board is capable of evaluating an applicant’s mental and emotional state, not for the purposes of medical diagnosis, but for the purpose of determining whether he or she is mentally and emotionally fit to practice law.

¶ 33. The Board based its finding that Dean was emotionally and mentally unstable on the facts that: (1) Dean wrote a number of threatening letters, including those to his former employer Illinois Mutual and to the dean of Thomas Cooley Law School; (2) law school administration strongly urged that Dean undergo psychiatric examination; and (3) Dean paid members of the public to attend this committee hearing on August 25, 2005.

¶ 34. This Court finds that Dean’s repeated actions were sufficient for the Board, acting within its enumerated duties, to find that Dean “exhibited conduct substantially evidencing an inclination” that he was “emotionally and mentally unstable to the extent that [he] was not suited for the practice of law.” . Dean failed to show that the Board’s denial with respect to the finding of his mental and emotional state was arbitrary, capricious or malicious.

CONCLUSION

¶ 35. The Board’s denial of Dean’s application was supported by substantial evidence. Further, Dean has shown no rule-based or constitutional violations committed during the Board’s considerations. Therefore, this Court affirms the judgment of the Chancery Court of Hinds County which denied Dean’s application for admission to the Mississippi Bar.

¶ 36. AFFIRMED.

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

      . Of the Board’s six findings, Dean specifically addresses only two, dishonesty and mental emotional instability.

      . Following a conversation with Michigan Bar officials which left Dean concerned about the success of his application to the Michigan Bar, Dean filed a pro se 42 U.S.C.S. section 1983 complaint against Thomas K. Byerley, counsel for the Michigan Bar who oversees the Bar's Character and Fitness Department, alleging: (1) violation of his First and Fourteenth Amendment rights by threatening arrest or retaliation; (2) assault; and (3) libel. The jury rejected Dean’s claims. Dean appealed. The Sixth Circuit affirmed the trial court.

      . Dean sued under 42 U.S.C.S. § 1983, claiming that Missouri state officials violated his Fourth Amendment rights by trespassing onto his property and photographing his partially constructed home without a warrant.


author: GRAVES, Justice,

text:
    Gilberto Hilario CHIM v. STATE of Mississippi.
    No. 2006-KA-01839-SCT.
    Supreme Court of Mississippi.
    Jan. 17, 2008.

      Edmund J. Phillips, Jr., attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
   GRAVES, Justice,

for the Court.

¶ 1. Chim appeals his conviction of statutory rape and sexual battery, contending that the trial court erred in denying his motion to suppress his confession in violation of his Fifth and Sixth Amendment right to counsel. Chim maintains that he did not knowingly and intelligently waive his Miranda rights, and that his statement was not made voluntarily. We affirm the trial court’s denial of Chim’s motion to suppress his confession.

FACTS AND PROCEDURAL HISTORY

¶ 2. On October 12, 2006, Chim, a native of Guatemala, was sentenced to life imprisonment for statutory rape of a five-year-old girl and twenty years imprisonment for sexual battery, with ten years to run consecutively to his life sentence and ten years suspended, with Chim to be placed on post-release supervision. Chim’s conviction was preceded by an arrest that entailed a waiver of his Miranda rights and a subsequent confession. He appeals, arguing that the Circuit Court of Scott County erred when it failed to suppress his confession.

¶ 3. Specifically, Chim asserts that he did not adequately understand the English language and therefore did not understand the Miranda warnings articulated to him in English by the three arresting officers: Chief Mike Lee, Officer Will Jones, and Officer Robert Roneolli. Hence, he contends that, although he signed the waiver indicating that he waived his Miranda rights, he did not knowingly and intelligently waive them. Further, he contends that because his waiver was not knowingly and intelligently made, that his confession was not voluntary. Hence, Chim avers that his subsequent confession should have been suppressed as evidence.

¶ 4. To corroborate this contention, Chim offered the following evidence during the suppression hearing: (1) his testimony that he requested but was refused an interpreter; (2) his testimony that he signed the waiver because the officers told him that “he had to sign”; (3) his testimony that he did not understand the meaning of the right to counsel; and (4) his estranged wife’s testimony that she sometimes used her sister-in-law’s son to serve as an interpreter for herself and her husband during the course of their marriage.

¶ 5. The State contends that the trial court was correct in denying Chim’s motion to suppress his confession. Specifically, the State argues that there was “credible, substantial corroborated evidence in support of the trial court’s ruling,” which included the following: (1) the testimony of Officer Lee that Chim spoke and understood the English language; (2) the testimony of Officer Roncolli that Chim “seemed to understood [sic] us well. He could speak English”; (3) the testimony of Chief Mike Lee that Chim understood his Miranda rights; (4) the officers’ testimony that Chim did not request an interpreter and never indicated that he could not understand English; and (5) Chim’s estranged wife’s testimony that she and Chim communicated in English during their marriage.

¶ 6. We find that the trial judge applied the correct legal standard, and his finding was supported by substantial evidence when he found that Chim’s waiver of his Miranda warnings was valid. Furthermore, the trial judge’s decision to deny Chim’s motion to suppress was not manifestly in error, nor was it contrary to the overwhelming weight of the evidence. Accordingly, we affirm the trial court’s denial of Chim’s motion to suppress his confession.

DISCUSSION

Whether the Trial Court Erred in Denying Chim’s Motion to Suppress his Confession.

A. Whether Chim Validly Waived his Miranda Rights.

¶ 7. In Miranda, the United States Supreme Court held that the Fifth and Fourteenth Amendments’ prohibitions against compelled self-incrimination require that, prior to custodial interrogation, the accused must be advised of his right to remain silent and his right to counsel. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Once advised of his Miranda rights, an accused may validly waive these rights and respond to interrogation. North Carolina v. Butler, 441 U.S. 369, 374-75, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979). However, the waiver must be voluntary, knowing, and intelligent. Miranda, 384 U.S. at 444, 86 S.Ct. 1602.

¶8. For a waiver of one’s Miranda rights to be considered valid, the state must prove beyond a reasonable doubt that “ ‘the waiver [was] made voluntarily, knowingly and intelligently.’ ” Coverson v. State of Mississippi 617 So.2d 642, 647 (Miss.1993) (citations omitted). A waiver is considered voluntary if it is the result of a “free and deliberate choice rather than intimidation, coercion or deception.” Id. “‘[A] waiver is knowing and intelligent if it is made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it.’” Id. (citations omitted).

¶ 9. “The trial judge sits as the trier of fact and must determine whether the incriminating statement was freely and voluntarily given. The judge should determine whether the criminal defendant was advised of his rights, including the right against self-incrimination as set forth in Miranda .... ” Baldwin v. State, 757 So.2d 227, 234 (Miss.2000). Furthermore, “the judge should ascertain, under the totality of the circumstances and beyond a reasonable doubt, that the defendant’s statement was freely and voluntarily given, and was not the result of forcé, threat, or intimidation.” Id. (citing Smith v. State, 737 So.2d 377, 382 (Miss.Ct.App.1999)).

¶ 10. In the instant case the trial judge conducted a suppression hearing outside the presence of the jury, as required by law, and concluded that the State met its burden and proved the validity of Chim’s waiver beyond a reasonable doubt. Frost v. State, 483 So.2d 1345, 1350 (Miss.1986); Manix v. State, 895 So.2d 167, 180 (Miss.2005). In ruling, the trial judge reasoned:

Well, this court has heard the testimony of the three officers who were present at the time of the taking of the statement, who each, and all three, testified that the conversation between the officers and this defendant was [sic] statements that — I understood he was able to carry on that conversation without the need of an interpreter, and he appeared to understand the questions in the language that was being used, that he understood — appeared to understand English, and he was able to correspond back to them speaking in English, and no threats of violence!,] promises, hopes, or rewards, or intimidation was [sic] upon the defendant, that he appeared to understand his rights that was [sic] given to him, and that he voluntarily waived those rights. It appears from the testimony of those three witnesses, and even the testimony of this defendant at this time, that he understood the questions that was [sic] asked of him, and that he responded in intelligible English. I find that there was [sic] no threats of violence or intimidation, promises of reward or otherwise, which would cause him to waive his rights and make a statement-I do note that his signature to the waiver and to the statement of facts is quite legible. He signed his name, Gilbert H, initial, Chim, in legible writing. So your objection to the statement for the reason that he did not sufficiently understand English well enough to understand the Miranda Rights, and that the statement that he gave was not — he did not sufficiently understand English enough to give that type of statement, so your objection is overruled.

¶ 11. “Whether this conclusion is correct is a mixed issue of law and fact.” Holland v. State, 587 So.2d 848, 860 (Miss.1991) (citations omitted). “[I]f the judge based his finding upon appropriate principles of law; (2) and the finding is supported by the facts (i.e., by substantial evidence); (3) then this Court may not reverse.” Id.

¶ 12. Chim argues that he did not make a knowing and intelligent waiver because he did not understand the words read to him from the waiver-of-rights form. When asked by his attorney if “[he] spoke English well,” Chim responded that he “understandfs] the majority of the words, other words I don’t understand.” Chim further testified that he did not understand all of the words on the waiver-of-rights form, and that he “didn’t quite get” what an attorney was. Chim also contends that he requested an interpreter, but the officers refused to provide one because they understood what he was saying. He further asserts “the testimony of Kimberly Chim [, his estranged wife,] provided reasonable doubt that [he] could actually understand [his] rights and knowingly and intelligently waive them.” The following is an excerpt from the testimony of Kimberly Chim:

Q. If there is something difficult, like a difficult word or a big word, is he— does he always understand that?
A. Unh-unh. He asks me how you say this word and he’s trying to pronounce everything.
Q. Do you ever — do you ever get friends of his that speak English and Spanish to interpret for him? Have you ever done that?
A. My nephew, his — my sister-in-law’s boy.

For the foregoing reasons, Chim contends that he did not validly waive his Miranda rights, and therefore the trial judge erred in finding otherwise.

¶ 13. We disagree. The trial judge’s finding that Chim validly waived his Miranda rights was based upon appropriate principles of law and supported by substantial evidence. Holland, 587 So.2d at 860. In Le v. State, 913 So.2d 913 (Miss.2005), this Court addressed a similar contention. Le argued, in part, that the trial court erred in suppressing his confession, because he had limited skill with the English language and therefore had not knowingly and intelligently waived his constitutional rights. Id. at 931. In denying Le’s motion, the trial court reasoned:

.... The Court would find that the evidence presented, shows beyond a reasonable doubt that the statement made by the defendant was freely and intelligently and voluntary made without any improper inducement. There were no— The Court does not find that there were any promises of salvation or redemption. Basically the officer was getting to the point, or asking him about did he know — did he understand right from wrong, and he indicated that he did. The evidence further shows that the defendant reads, speaks and understands English well. He was born in the United States, although from a Vietnamese family. He still went to English-speaking schools to the tenth grade, and in his testimony today spoke English fluently, and indicated that he understood English well and read English well, and as I said before, went to the tenth grade. So there was no — the Court finds there was no improper inducement made, and that his statement was a voluntary statement; that he understood his rights, and that he made a voluntary waiver of his constitutional rights; that the proper [Miranda] Warnings were given to him. He initialed each and every one of those and signed his name, which he signed the name that he uses, Tony. So I’m going to deny the motion.

Le, 913 So.2d at 931-932. This Court found the issue to be without merit, stating “the trial court did not apply an incorrect legal standard, did not commit manifest error, and his decision was not contrary to the overwhelming weight of the evidence.” Le, 913 So.2d at 933.

¶ 14. Other jurisdictions also have considered this specific issue at length. In Campaneria v. Reid, 891 F.2d 1014 (2nd Cir.1989), the court rejected the defendant’s argument that his limited understanding of the English language prevented him from knowingly and intelligently waiving his Miranda rights. The defendant’s native language was Spanish, and he was advised of his Miranda rights only in English. Id. at 1020. In its analysis, the court noted that, on each occasion that the defendant was advised of his Miranda rights, he indicated that he understood them. Id. The court found that the defendant’s argument lacked merit and found that the defendant’s understanding of the English language was sufficient to knowingly and intelligently waive his rights, even though the defendant spoke in broken English with an accent and occasionally lapsed into Spanish while speaking. Campaneria, 891 F.2d at 1014.

¶ 15. In United States v. Bernard S., 795 F.2d 749 (9th Cir.1986), the defendant was an Apache Indian who argued that the waiver of his Miranda rights was invalid because he was advised of his rights in English and had only a limited understanding of the English language. In holding that the trial court was correct in its determination that the defendant knowingly, intelligently, and voluntarily waived his rights, the court stated:

It is clear from the record that appellant does have some difficulty with English. He testified that he neither reads nor writes English, he 'occasionally spoke Apache with his mother and Lt. Stevens ■ during the questioning to clarify some items, and he was assisted in his testimony at trial by an interpreter. . On the other hand, he admitted that he studied English through the seventh grade and that he answered Agent Bedford’s questions in English.
Most importantly, after Bedford explained each of his rights to him in English, appellant stated that he understood his rights. Bedford testified that “I asked him if he understood [his rights], if he understood all of the wording, and he stated that he did. He didn’t have any questions. I also made sure that his mother understood what his rights were. And I explained to both of them and asked them if they .understood. And they stated that they did.” At no time did appellant indicate that he did not understand his rights.

Id. at 752, 86 S.Ct. 1602.

¶ 16. Similarly, in United States v. Marrero, 152 F.3d 1030 (8th Cir.1998), the Spanish-speaking defendant argued that the waiver of his Miranda rights was invalid because of his difficulty with the English language, in which his warnings were administered. In affirming the ' trial court’s determination that his waiver was knowing, intelligent, and voluntary, the court stated:

The evidence presented at the suppression hearing showed that, at all relevant times, defendant spoke in English (including when he was banging on the door yelling “let me in” and “open the door”) and that he never asked for an interpreter or indicated difficulty with the English language. Moreover, several law enforcement officers, including Officers Crader and Meyer, Detective Knapp, an immigration officer, and a probation officer, testified about defendant’s proficiency in English based upon their observations and conversations with him. Accordingly, we hold that the district court did not clearly err in finding that defendant could understand English and that he effectively waived his Miranda rights, and we further hold, upon de novo review, that the totality of the circumstances supports the conclusion that defendant’s statements were voluntary.

Id. at 1034.

¶ 17. In the instant case, we find that the trial court’s finding was based upon appropriate principles of law and supported by substantial evidence. Holland, 587 So.2d at 860. Chim, originally from Guatemala, moved to the United States in 1998. He has completed nine years of formal education, which included two years of English classes. The State presented the testimony of all three officers who were present at the time that Chim confessed, all of whom were subject to cross examination by defense counsel. See Agee v. State, 185 So.2d 671, 673 (Miss.1966). All conversations between Chim and the arresting officers were in English. The arresting officers testified that Chim never asked the police officers to explain any English words to him. Furthermore, all the officers testified that Chim understood and spoke the English language without an interpreter.

¶ 18. Chim was given a chance to read the Miranda waiver form before signing it, and he gave-his statement, in English. The officers also testified that Chim was not threatened or intimidated, nor was he offered any promises, hopes, or rewards. Moreover, they testified that Chim appeared to understand his rights, and that he voluntarily waived his rights. Additionally, the prosecution offered the testimony of Kimberly Chim, Chim’s estranged wife, who testified that during their marriage, she was not fluent in Spanish; hence, she and Chim communicated in English.

¶ 19. Therefore, this assignment of error is without merit.

B. Whether the Trial Court Erred in Denying Chim’s Motion to Suppress his Confession.

¶ 20. “Where a trial judge finds at a preliminary hearing that a confession is admissible, ‘the defendant/appellant has a heavy burden in attempting to reverse that decision on appeal.’ ” Le, 913 So.2d at 932 (quoting Evans v. State, 725 So.2d 613, 634 (Miss.1997) (citations omitted)). “ ‘Such findings are treated as findings of fact made by a trial judge sitting without a jury as in any other context.’ ” Hunt v. State, 687 So.2d 1154, 1160 (Miss.1996) (citation omitted). In reviewing the trial court’s denial of Chim’s motion to suppress his confession, this Court “will only reverse the trial court’s determination of this issue when such determination is manifestly wrong .... or contrary to the overwhelming weight of the evidence.” Glasper v. State, 914 So.2d 708, 716 (Miss.2005) (citing Manix, 895 So.2d at 180-81 (other citations omitted)). Moreover, “[w]here the evidence is contradictory, this Court ‘generally must affirm.’ ” Hunt, 687 So.2d at 1160 (citing Lesley v. State, 606 So.2d 1084, 1091 (Miss.1992) (citations omitted)).

¶ 21. For reasons stated herein, we find that the trial court’s denial of Chim’s motion to suppress his confession was not manifestly wrong or contrary to the overwhelming weight of the evidence. Therefore, this assignment of error is without merit.

CONCLUSION

¶ 22. Because we find that the trial court applied the correct legal standard and that its findings were supported by substantial evidence in its determination that Chim knowingly, intelligently, and voluntarily waived his Miranda rights, we conclude that its denial of Chim’s motion to suppress was not manifestly in error or against the overwhelming weight of the evidence. Therefore, we affirm the trial court’s denial of Chim’s motion to suppress his confession.

¶ 23. COUNT I: CONVICTION OF STATUTORY RAPE AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF SEXUAL BATTERY AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. THIS SENTENCE SHALL RUN CONSECUTIVE TO THE LIFE SENTENCE IMPOSED IN COUNT I. UPON SERVING TEN (10) YEARS OF SAID TWENTY (20) YEAR SENTENCE FOR SEXUAL BATTERY, TEN (10) YEARS OF SAID SENTENCE ARE SUSPENDED WITH CHIM PLACED ON POST CONVICTION RELEASE SUPERVISION FOR A PERIOD OF TEN (10) YEARS.

SMITH, C.J., WALLER AND DIAZ, P.JJ., EASLEY, CARLSON, DICKINSON, RANDOLPH AND LAMAR, JJ., CONCUR.

      . Chim was convicted in violation of Mississippi Code Annotated Sections 97-3-65(l)(b) and 97 — 3—95(l)(d) (Rev.2006).


author: RANDOLPH, Justice,

text:
    Steve WINDHAM, James E. Smith and Chad L. Garvin v. LATCO OF MISSISSIPPI, INC. and Fabral, Inc.
    No. 2005-CT-02086-SCT.
    Supreme Court of Mississippi.
    Jan. 17, 2008.

      P. Shawn Harris, Forest, attorney for appellants.
    Timothy D. Moore, James W. Shelson, John P. Sneed, Justin L. Matheny, Jackson, attorneys for appellees.
   ON WRIT OF CERTIORARI

RANDOLPH, Justice,

for the Court.

¶ 1. On writ of certiorari, this Court will consider whether an act of concealed fraud, if proven, bars the limitation applicable to actions arising from deficiencies in construction or improvements to real property found in Mississippi Code Annotated Section 15-1-41 (Rev.2003), commonly referred to as a statute of repose.

FACTS

¶ 2. Neither party contests the following factual summary of the Mississippi Court of Appeals:

Choctaw Maid Farms, Inc., a poultry processor, undertook an expansion project in 1995 that necessitated its farmers construct housing for the additional chickens Choctaw would require given the resultant increase in post-expansion production. The houses were designed and manufactured by Fabral, Inc., and Lateo of Mississippi, Inc. acted as the general contractor during the construction of each of the plaintiffs’ poultry houses....
[Chicken farmers James] Smith and [Chad] Garvin each contracted with Lat-eo to build the poultry houses utilizing a new roofing system called grand beam design, which was developed and manufactured by Fabral. In August 1995 four houses were completed for Smith. Garvin’s four houses were completed the following year in the summer of 1996. [Chicken farmer Steve] Windham’s houses were completed in 1996 as well, but he did not purchase them until 1998. Following completion of the houses, Windham’s houses were occupied in January 1996, Smith’s in July or August 1995 and Garvin’s during the summer of 1996. Subsequently, Windham discovered that his newly designed roofs were leaking in January 1999, Smith during the summer of 1997, and Garvin in December 1999.
Following repeated unsuccessful attempts to correct the problem causing the leaks,[] Windham, Garvin, and Smith retained counsel in early 2003. At least two engineering firms were then hired to determine the cause of the leaks and other damage the chicken houses were experiencing. After receiving reports from the engineering firms detailing their findings, Windham, Gar-vin, and Smith filed suit on May 17, 2004, in the Circuit Court of Scott County. After several rounds of depositions and other discovery, Fabral filed a motion for summary judgment on April 4, 2005. Soon after, on May 20, 2005, Lat-eo filed its motion for summary judgment. After Windham, Garvin, and Smith filed their response, a motions hearing was held on June 1, 2005, in the Circuit Court of Scott County. After due consideration of the issues, the lower court entered its judgment granting the appellees’ motions for summary judgment on October 4, 2005. The court found that both Fabral and Lateo were subject to Mississippi Code Annotated Section 15-1-41 and that the plaintiffs’ claims were filed outside of the six-year time frame of the statute of repose. Finally, in dismissing the plaintiffs’ claims, the trial court found that because a claim of fraudulent concealment does not toll the statute of repose,[] their claims were barred. From this judgment, the plaintiffs appealed].[]

Windham v. Latco of Mississippi, Inc., 972 So.2d 652, 654, 2007 WL 331310, 2007 Miss.App. LEXIS 49 at *1-4 (Miss.Ct.App. February 6, 2007). The Court of Appeals unanimously affirmed the granting of summary judgment, concluding that:

[i]t is clear from section 15-1-67 that a successful claim of fraudulent concealment does set the date of accrual of the underlying cause of action to the time that it was, or should have been, discovered. Furthermore, the applicable statute of limitations for the underlying cause of action may be tolled to the date complying with section 15-1-67. It is equally clear that the six year limitation of section 15-1-41 is not affected by the date of accrual, and, by extension, not tolled by section 15-1-67. Therefore, as we stated in Baldwin [v. Holliman, 913 So.2d 400, 409 (Miss.Ct.App.2005)], a successful claim of fraudulent concealment does not toll the statute of repose. As it is undisputed that the plaintiffs’ claims were filed more than six years after the chicken houses were occupied, such claims are barred.

Windham, 972 So.2d at 656, 2007 Miss.App. LEXIS at *10-11 (emphasis added).

ISSUE

¶ 3. This Court will consider:
(1) Whether an act of fraudulent concealment, if proven, will bar application of the statute of repose found at Mississippi Code Annotated Section 15-1-41 (Rev.2003).

ANALYSIS

¶4. “This Court applies a de novo standard of review to the trial court’s grant of summary judgment.” Moss v. Batesville Casket Co., 935 So.2d 393, 398 (Miss.2006) (citing Stuckey v. Provident Bank, 912 So.2d 859, 864 (Miss.2005)). A motion for summary judgment “shall” be granted by a court “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Miss. R. Civ. P. 56(c). Furthermore, the “application of a statute of limitation is a question of law to which a de novo standard also applies.” Sarris v. Smith, 782 So.2d 721, 723 (Miss.2001) (citing ABC Mfg. Corp. v. Doyle, 749 So.2d 43, 45 (Miss.1999)).

¶ 5. Mississippi Code Annotated Section 15-1^1 states, in pertinent part, that:

[n]o action may be brought to recover damages for injury to property, real or personal, or for any injury to the person, arising out of any deficiency in the design, planning, supervision or observation of construction, or construction of an improvement to real property ... against any person, firm or corporation performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property more than six (6) years after the written acceptance or actual occupancy or use, whichever occurs first, of such improvement by the owner thereof.

Miss.Code Ann. § 15-1-41 (Rev.2003) (emphasis added). This Court previously has referred to this as a “statute of repose.” See Ferrell v. River City Roofing, Inc., 912 So.2d 448, 452 (Miss.2005); McIntyre v. Farrel Cory., 680 So.2d 858, 858 (Miss.1996); Rector v. Miss. State Highway Comm’n, 628 So.2d 975, 977 (Miss.1993); Moore v. Jesco, Inc., 581 So.2d 815, 816 (Miss.1988); Anderson v. Wagner, 402 So.2d 820, 821 (Miss.1981). This Court has stated that “[a] statute of limitation is distinguishable from a statute of repose in the sense that the latter ‘cuts off the right of action after a specified period of time measured from the delivery of a product or the completion of work. [Statutes of repose] do so regardless of the time of the accrual of the cause of action or of notice of the invasion of a legal right.’ ” Evans v. Boyle Flying Service, Inc., 680 So.2d 821, 827 n. 4 (Miss.1996) (quoting Universal Engineering Cory. v. Perez, 451 So.2d 463, 465 (Fla.1984)). In Mississippi, however, this may be a distinction without a difference, as the successful plea of either a statute of limitation or a statute of repose commands the same conclusion. Specifically, Mississippi Code Annotated Section 15-1-3 states, in pertinent part, that “[t]he completion of the period of limitation prescribed to bar any action, shall defeat and extinguish the right as well as the remedy.” Miss.Code Ann. § 15-1-3 (Rev.2003) (emphasis added).

¶ 6. This Court first notes that victims of fraud have common-law remedies available, depending upon the context. One remedy, “older than the country itself,” is that of estoppel, which is rooted in “the maxim that no man may take advantage of his own wrong.” Glus v. Brooklyn E. Dist. Terminal, 359 U.S. 231, 232-34, 79 S.Ct. 760, 762-63, 3 L.Ed.2d 770, 772-73 (1959). The United States Supreme Court previously has provided that:

courts of law in modern times have introduced the doctrine of equitable estop-pels, or, as it is sometimes called, estop-pels in yais. The principle is that where one party has by his representations or his conduct induced the other party to a transaction to give him an advantage which it would be against equity and good conscience for him to assert, he would not in a court of justice be permitted to avail himself of that advantage .... [T]he general doctrine is well understood and is applied by courts of law as well as equity where the technical advantage thus obtained is set up and relied on to defeat the ends of justice or establish a dishonest claim.

Ins. Co. v. Wilkinson, 80 U.S. (13 Wall.) 222, 233, 20 L.Ed. 617, 622-23 (1872). See also Ins. Co. v. Mowry, 96 U.S. 544, 547-48, 24 L.Ed'. 674, 676 (1878) (“[t]he doctrine of estoppel is applied with respect to representations of a party, to prevent their operating as a fraud upon one who has been led to rely upon them.”). In other words, the principle giving rise to the remedy of equitable estoppel is that a wrongdoer is not entitled to enjoy the fruits of his fraud. This Court has stated that:

[e] quit able estoppel is “defined generally as the principle by which a party is precluded from denying any material fact, induced by his words or conduct upon which a person relied, whereby the person changed his position in such a way that injury would be suffered if such denial or contrary assertion would be suffered if such denial or contrary assertion was allowed.”

Dubard v. Biloxi H.M.A., Inc., 778 So.2d 113, 114 (Miss.2000) (quoting Koval v. Ko val, 576 So.2d 134, 137 (Miss.1991)). To establish equitable estoppel, which “should only be used in exceptional circumstances and must be based on public policy, fair dealing, good faith, and reasonableness[,]” Powell v. Campbell, 912 So.2d 978, 982 (Miss.2005) (citing PMZ Oil Co. v. Lucroy, 449 So.2d 201, 206 (Miss.1984)), there must be “(1) belief and reliance on some representation; (2) a change of position as a result thereof; and (3) detriment or prejudice caused by the change of position.” B.C. Rogers Poultry, Inc. v. Wedgeworth, 911 So.2d 483, 492’ (Miss.2005) (citing Cothem v. Vickers, Inc., 759-So.2d 1241, 1249 (Miss.2000)).

¶ 7. The Georgia Court of Appeals addressed the applicability of equitable es-toppel to a statute of repose in Esener v. Kinsey, 240 Ga.App. 21, 522 S.E.2d 522 (1999), finding that:

if the evidence of defendant’s fraud or other conduct on which the plaintiff reasonably relied in forbearing the bringing of a lawsuit is found by the jury to exist, then the defendant, under the doctrine of equitable estoppel, is estopped from raising the defense of the statute of ultimate repose. The statute of repose is not tolled by fraud, but fraud, instead, gives rise to the doctrine of equitable estoppel, which prevents the defendant from asserting the defense of the statute of repose, because his or her own wrongful conduct gave rise to the defense and prevented the plaintiff from exercising reasonable diligence to learn the nature and cause of the injury attributable to the defendant and from bringing suit.
Since fraud does not toll the statute of repose but may give rise to equitable estoppel of the defendant to raise the defense of the statute of repose, the plaintiff must have acted diligently for equitable estoppel to be available, after the fraud was first discovered or should have been discovered. This is generally a jury issue.

Id. at 23, 522 S.E.2d 522 (citations omitted) (emphasis added). While there is state-to-state division “over whether a plaintiff can invoke the doctrine of equitable estoppel to defeat a statute of repose defense[,]” Tidemann v. Schijf, Hardin & Waite, et al., 2005 U.S. Dist. LEXIS 5607 at *15-16 (N.D.Ill. February 14, 2005) (citations omitted), the application of the equitable estoppel remedy has been affirmed in multiple jurisdictions. See Sanders v. Gray, Inc., 645 S.E.2d 229, 2007 WL 1599125, * 4, -2007 N.C.App. LEXIS 1125 at *8 (N.C.Ct.App. June 5, 2007); Stark v. Mercantile Bank, N.A., 29 Kan.App.2d 717, 724, 33 P.3d 609 (2000); Tidemann, 2005 U.S. Dist. LEXIS 5607 at *16-17. The logic supporting the availability of common-law equitable estoppel as a remedy to bar application of a statute of repose is compelling. Equity mandates that wrongdoers should be estopped from enjoying the fruits of their fraud.

¶ 8. The Court of Appeals’ opinion addressing the interplay, or lack thereof, between Mississippi Code Annotated Sections 15-1-41 and 15-1-67 requires a separate analysis. Mississippi Code Annotated Section 15-1-67 provides that:

[iff a person liable to any personal action shall fraudulently conceal the cause of action from the knowledge of the person entitled thereto, the cause of action shall be deemed to have first accrued at, and not before, the time at which such fraud shall be, or with reasonable diligence might have been, first known or discovered.

Miss.Code Ann. § 15-1-67 (Rev.2003) (emphasis added). In opining that fraudulent concealment cannot toll Mississippi Code Annotated Section 15-1-41, the lower court cited Reich v. Jesco, Inc., 526 So.2d 550 (Miss.1988) and Baldwin. In Baldwin, the Court of Appeals opined that “Section 15-1-41, a statute of repose, begins to run at occupancy. Fraudulent concealment does not toll a statute of repose. See Reich, 526 So.2d at 552.” Baldwin, 913 So.2d at 409. A close examination of the Reich opinion reveals that it sets forth no such proposition. Regarding Mississippi Code Annotated Section 15-1-41, Reich stated that “[t]he statute[]incorporates a policy judgment that at the end of ten years[] following actual occupancy contractors such as Jesco are entitled to close their books on the chicken house project.” Reich, 526 So.2d at 552. However, the Court of Appeals’ opinion failed to address that this Court then considered Reich’s fraudulent-concealment claim and concluded that he “has failed to establish the existence of a genuine issue of material fact on the issue of fraudulent concealment.” Id. at 553. Likewise, in Ferrell, this Court was again presented with the opportunity to declare that fraudulent concealment could not bar application of Mississippi Code Annotated Section 15-1 — 41. See Ferrell, 912 So.2d at 456. Once again, rather than so finding, this Court concluded that “there are no facts to support Ferrell’s argument regarding fraud.” Id, One year later, the Court of Appeals recognized the issue was unresolved in a post-Baldwin decision, stating:

[i]n one case, the issue that fraudulent concealment would toll the running of this statute of repose was not resolved because no authority was cited. [Ferrell, 912 So.2d at 456]. The court nonetheless examined whether there was any evidence of such concealment and found none. Id. at 456-57. Still not having any clear authority, we also move on to whether there is any evidence that Bradley concealed something relevant to the claims against him.

Estes v. Bradley, 954 So.2d 455, 463 (Miss.Ct.App.2006). This Court finds that the consideration of the fraudulent concealment arguments in Reich and Ferrell were not mere “exercise[s] benefitting academia concerning the merits of a fraudulent concealment claim[,]” Windham, 972 So.2d at 655, 2007 MissApp. LEXIS at *7-8, or eases of simply “describing the plaintiffs arguments without applying them to this statute[,]” Estes, 954 So.2d at 465, but rather, substantiated a fraudulent-concealment exception to the statute of repose found in Mississippi Code Annotated Section 15-1-41. To the extent that the Court of Appeals previously has held otherwise in Windham, Estes, and Baldwin, those decisions are expressly overruled.

¶ 9. In so finding, this Court notes that “ ‘fraudulent concealment of a cause of action tolls its statute of limitations.’ Robinson v. Cobb, 763 So.2d 883, 887 (Miss.2000) (quoting Myers v. Guardian Life Ins. Co. of America, Inc., 5 F.Supp.2d 423, 431 (N.D.Miss.1998)) (emphasis added). This Court went on to say that ‘[t]he fraudulent concealment doctrine “applies to any cause of action.” ’ Id.” Channel v. Loyacono, 954 So.2d 415, 423 (Miss.2007). The language of Mississippi Code Annotated Section 15-1-3 extends to both statutes of limitations and statutes of repose in Title 15, Chapter 1. As fraud can never be sanctioned, we conclude that the Legislature intended that the fraudulent-concealment exception of Mississippi Code Annotated Section 15-1-67 applies to the statute of repose in Mississippi Code Annotated Section 15-1-41. If fraudulent concealment is proven, equity mandates that the tortfeasor be barred from benefit-ting from the statute of repose in Mississippi Code Annotated Section 15-1 — 41.

¶ 10. In reaching this conclusion, this Court agrees with the circuit court’s assessment in its “Unsigned, Unpublished Advisory Opinion” of being “ha[r]d pressed to believe that absolutely under no circumstances could a party be entitled to relief if fraud be shown. In that broad legal spectrum that would seem to be abhorrent to public policy.” Wrongdoing ought not be shielded if fraudulent concealment can be proven. See Jones v. Rogers, 85 Miss. 802, 836-37, 38 So. 742, 747-48 (1904) (overruled on other grounds by Kennedy v. Sanders, 90 Miss. 524, 539-40, 43 So. 913, 915 (1907)) (an action is barred, concealed frauds excepted, in ten years after the right of action accrued, whether the defendant has or has not been in the adverse possession of the land). Just as statutes of limitation are tolled by fraudulent concealment, see Channel, 954 So.2d at 423, this Court finds that application of a statute of repose in Mississippi Code Annotated Section 15-1-41 is barred by fraudulent concealment. This holding is consistent with the legislative exception and still allows architects, contractors, and engineers who do not fraudulently conceal the cause of action “to close their books” at the conclusion of the repose period. Reich, 526 So.2d at 552.

¶ 11. In shaping the parameters of a fraudulent-concealment exception to Mississippi statutes of repose, this Court finds the reasoning of the New Mexico Supreme Court helpful. In Tomlinson v. George, 138 N.M. 34, 116 P.3d 105 (2005), the New Mexico Supreme Court considered:

whether the fraudulent concealment doctrine equitably tolls[] the statute of repose, NMSA 1978, § 41-5-13 (1976), [] so as to permit Tomlinson to file a malpractice action more than three years after the alleged act of malpractice in light of the fact that she was aware of the act four months into the three-year period and thus had approximately two years and eight months within which to file her claim.

Id. at 106. While noting that “the plain language of Section 41-5-13 requires a claim to be filed within three years of the occurrence of the negligent act and that Section 41-5-13 operates as a statute of repose[,]” the Court found a fraudulent concealment exception existed. See id. at 108, 110. In elaborating upon the dimensions of that exception, the Court announced that:

[i]f a plaintiff demonstrates th[e] requirements, then the equitable principle of fraudulent concealment tolls Section 41-5-13. We conclude that [Kern ex rel. Kern v. Saint Joseph Hospital, Inc., 102 N.M. 452, 697 P.2d 135 (1985)] provides authority for a day-to-day tolling of the statute of repose: “If tolled by fraudulent concealment, the statute commences to run again when the patient discovers, or through the exercise of reasonable diligence should have discovered, the malpractice.” Kern, 102 N.M. at 456, 697 P.2d at 139.
We also reaffirm, however, that the statute of repose is not tolled if the patient knew, or through the exercise of reasonable diligence should have known, of his or her claim unthin the statutory period. We cannot exercise the equitable principle of fraudulent concealment and deny the defendant’s reliance upon Section kl-k-lS where the plaintiff knew of the cause of action within the statutory period. In such circumstances, the defendant’s actions did not prevent the plaintiff from pursuing the claim....
We believe this expresses the balance required in equity between not alloioing a defendant to benefit from fraudulent concealment that prevents a plaintiff from filing a claim while continuing to require the plaintiff to exercise ordinary diligence in pursuit of his or her cause of action. The tolling of the statute based on equitable estoppel is meant to provide the plaintiff with a fair opportunity to pursue his or her cause of action set against the context of “the specific decision by the legislature to insulate qualified health care providers from the much greater liability exposure that would flow from a discovery-based accrual date” the “most notable benefit of qualification.” [Cummings v. X-Ray Associates of New Mexico, 1996 NMSC 35, 121 N.M. 821, 918 P.2d 1321 (1996)].

Tomlinson, 116 P.3d at 114-15 (emphasis added). Similarly, this Court finds that application of Mississippi Code Annotated Section 15 — 1—41 is not barred if the fraudulent concealment was known, or with due diligence could have been discovered, within the six-year repose period. See Channel, 954 So.2d at 423. This holding balances the denial of repose protection to architects, contractors, and engineers who engage in fraudulent concealment, while requiring plaintiffs to exercise due diligence in pursuing their causes of action. See Tomlinson, 116 P.3d at 114-15.

¶ 12. The circuit court conceded that it “has not discussed to any degree ... the question of whether the Plaintiffs could prove the element[s] of fraudulent concealment even if such a defense would lie against a statute of repose.” As the circuit court’s determination was restricted by the legal conclusion that fraudulent concealment would not toll or bar application of Mississippi Code Annotated Section 15-1-41, this Court finds that conclusion erroneous as a matter of law. Under either an equitable-estoppel theory or the fraudulent-concealment exception of Mississippi Code Annotated Section 15-1-67, this Court concludes that application of Mississippi Code Annotated Section 15-1-41 may be barred. Therefore, we reverse and remand this case to the Circuit Court of Scott County to determine whether genuine issues of material fact related to fraudulent concealment exist. See Miss. R. Civ. P. 56(c).

CONCLUSION

¶ 13. Accordingly, the decisions of the Court of Appeals and the Circuit Court of Scott County are reversed and this case is remanded to the Circuit Court of Scott County for action consistent with this opinion.

¶ 14. REVERSED AND REMANDED.

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

      . This Court notes that negligent repair was not raised as an issue.

      . The circuit court found that "a claim of fraudulent concealment, even if proven, cannot toll a statute of repose, specifically § 15-1-41.... ” (Emphasis added).

      . At present, Fabral is the only remaining defendant.

      . This statute applies to both statutes of limitation and statutes of repose contained in Title 15, Chapter 1.

      .The “Judgment Sustaining Motions for Summary Judgment” of the circuit court does not specifically mention either Reich or Baldwin. However, the "Unsigned, Unpublished Advisory Opinion” of the circuit court, "incorporated herein” to that judgment provides that the answer to the tolling question "lies within a correct interpretation of two cases, to wit: [Reich and Baldwin ].”

      . Referred to in Reich as a "statute of limitation.” Reich, 526 So.2d at 552.

      . Since amended to six years. See Miss.Code Ann. § 15-1-41 (Rev.2003).

      . This Court notes that a high standard exists for proving fraudulent concealment. Specifically, under the two-part test:
      the party purporting that there has been fraudulent concealment must show that "(1) some affirmative act or conduct was done and prevented discovery of a claim, and (2) ... due diligence was performed on their part to discover it.” [Stephens v. Equitable Life Assurance Soc'y of U.S., 850 So.2d 78, 84 (Miss.2003)]. The affirmative act must in fact be designed to prevent the discovery of the claim. Robinson, 763 So.2d at 887 (quoting [Reich, 526 So.2d at 552]).

        Channel, 954 So.2d at 423.

      . However, the circuit court further noted that “there may be a difference between garden variety fraud and fraudulent concealment.”

      . Any argument that this holding will “upset the economic balance struck by the legislative body[,]” First United Methodist Church of Hyattsville v. United States Gypsum Co., 882 F.2d 862, 866 (4th Cir.1989), is fallacious. The economic balance is not disturbed if the only way to defeat the prescriptive period is by a legislatively-approved attack. See Miss. Code Ann. § 15-1-67.

      . This Court notes that the statute of repose is actually not tolled, but rather is barred from application, in cases of fraudulent concealment. See Esener, 240 Ga.App. at 23, 522 S.E.2d 522.

      . Section 41-5-13 provided, in pertinent part, that “no claim for malpractice arising out of an act of malpractice ... may be brought against a health care provider unless filed within three years after the date that the act of malpractice occurred.” NMSA 1978, § 41-5-13.

      . Ultimately, the Court concluded that "Tomlinson's cause of action is barred by Section 41-5-13 because she knew of her cause of action and had over two years and eight months during the statutory period in which to file her claim.” Id. at 115.