text:
    MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. John L. SANFORD.
    Nb. 2006-JP-00870-SCT.
    Supreme Court of Mississippi.
    Oct. 26, 2006.

      Luther T. Brantley, III, Darlene D. Ballard, attorneys for appellant.
    G. David Garner, Raleigh, attorney for appellee.
   CARLSON, Justice,

for the Court.

¶ 1. The Mississippi Commission on Judicial Performance (Commission) filed a Formal Complaint charging Covington County Southern District Justice Court Judge John L. Sanford 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 Miss. Const, art. 6, § 177A. In the end, the Commission and Judge Sanford submitted to us a joint motion for approval of a recommendation that Judge Sanford be publicly reprimanded and assessed with costs. We now conduct our mandated review of the Commission’s recommendation consistent with Miss. Const., art. 6, § 177A, Miss. Comm’n on Jud. Perf. R. 10, M.R.A.P. 16(d), and our case law.

FACTS AND PROCEEDINGS BEFORE THE COMMISSION

¶ 2. In its formal complaint, the Commission alleged, inter alia, that on April 24, 2005, the Covington County Sheriffs Department charged and arrested a person for Driving Under the Influence, First Offense, and a court date was eventually set for the defendant to appear before Justice Court Judge John L. Sanford on August 3, 2005. The formal complaint further asserted:

A few days after the arrest, Dallas Springer, the arresting officer, was approached by the Covington County Sheriff, Roger Wood Speed, and advised that [Judge Sanford] wanted the charges against [the defendant] dismissed. Stringer was again approached by Sheriff Speed on August 2, 2005, and advised Stringer that [Judge Sanford] wanted him to be late for court the next day so that the charges against [the defendant] could be dismissed. Stringer stayed at the Sheriffs Department on August 3, 2005 until such time as the case was in fact dismissed by [Judge Sanford] and he subsequently attended court on the additional cases pending before [Judge Sanford] that day in which he was the arresting officer.

On this set of facts, the Commission charged Judge Sanford with violations of Canons 1, 2A, 2B, 3B(1), 3B(2), 3B(7), 3B(8) and 3E of the Mississippi Code of Judicial Conduct (Judicial Code). The Commission further asserted that Judge Sanford’s alleged judicial misconduct was actionable pursuant to the provisions of Miss. Const, art. 6, § 177A. The Commission dutifully complied with the provisions of Miss. Comm’n on Jud. Perf. R. 6C concerning proper notice to Judge Sanford, as well as informing Judge Sanford of his right to respond pursuant to Miss. Comm’n on Jud. Perf. R. 6D.

¶ 3. Within days of the filing of the formal complaint, Chancellor Patricia D. Wise, Chair of the Commission, appropriately entered an order appointing a three-person committee, consisting of certain Commission members, to conduct a formal hearing concerning the allegations contained in the formal complaint. See Miss. Comm’n on Jud. Perf. R. 8C, 8D. Thereafter, Judge Sanford, through counsel, filed an answer to the formal complaint wherein he generally denied the material allegations of the formal complaint. Upon Judge Sanford’s filing of his response to the Commission’s formal complaint, Chancellor Wise promptly entered a scheduling order providing for various deadlines for discovery and the filing of motions as well as a hearing date of February 10, 2006, at the Commission offices in Jackson.

¶ 4. However, in lieu of the formal hearing, the Commission and Judge Sanford ultimately reached an agreement which was memorialized by a duly filed Agreed Statement of Facts and Proposed Recommendation on February 27, 2006. We deem it important here to set out this agreement, verbatim, omitting only the formal introductory language:

1. This Agreed Statement of Facts and Proposed Recommendation is to be submitted in lieu of a hearing as provided for in Rule 8 of the Rules of the Commission.
PARTIES
2. The Commission is a body created pursuant to § 177A, Mississippi Constitution of 1890, as amended.
3. The Respondent is now and was at all times hereinafter mentioned, a Justice Court Judge, Southern District, Covington County, Mississippi.
4. The Commission has jurisdiction over the Respondent under the authority granted by § 177A of the Mississippi Constitution of 1890, as amended, applicable statutes, and the Rules of the Commission.
5. On November 1, 2005, the Mississippi Commission on Judicial Performance, hereinafter referred to as the “Commission” filed a Formal Complaint charging Respondent with judicial misconduct constituting wilful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute in violation of § 177A of the Mississippi Constitution of 1890, as Amended.
6. Thereafter, Respondent, through counsel, filed an answer to the Formal Complaint on November 30, 2005, admitting some factual allegations, but denying that his actions constituted judicial misconduct.
AGREED FACTS
7. April 24, 2005, the Covington County Sheriffs Department arrested [the defendant] on the charges of Improper Equipment and Driving Under the Influence, 1st offense. [The defendant’s] court date was set for August 3, 2005.
8. A few days after the arrest, Dallas Stringer, the arresting officer, was approached by the Covington County Sheriff, Roger Wood Speed, and advised that Respondent wanted the charges against [the defendant] dismissed. Stringer was again approached by Sheriff Speed on August 2, 2005, and advised
Stringer that Respondent wanted him to be late for court the next day so that the charges against [the defendant] could be dismissed. Stringer stayed at the Sheriffs Department on August 3, 2005, until such time as the case was in fact dismissed by the Respondent and he subsequently attended court on the additional cases pending before Respondent that day in which he was the arresting officer.
9. By engaging in the above stated conduct, the Respondent violated Canons 1, 2A, 2B, 3B(1), 3B(2), 3B(7), 3B(8), and 3E of the Code of Judicial Conduct of Mississippi.
10. By engaging in the above stated conduct the Respondent has also violated § 177A of the Mississippi Constitution of 1890, as amended, as said conduct constitutes willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute.
PROPOSED RECOMMENDATION
11. Counsel for the Commission and the Respondent hereby propose that, for the conduct as agreed upon and set forth above, that the Respondent be publicly reprimanded, and that he be assessed costs in the sum of $100.00 pursuant to § 177A of the Mississippi Constitution of 1890, as amended.

¶ 5. The minutes of the Commission meeting of March 10, 2006, reveal that the Commission, by a unanimous vote, accepted and adopted the joint agreed statement of facts with the proposed recommendation that Judge Sanford be publicly reprimanded and assessed costs. Thereafter, on May 12, 2006, the Commission entered its Findings of Fact and Recommendation consistent with its action of March 10, 2006. On June 23, 2006, the Commission filed with this Court its joint motion for approval of its recommendations.

DISCUSSION

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

¶ 6. “We conduct de novo review of judicial misconduct proceedings, giving great deference to the findings, based on clear and convincing evidence, of the recommendations of the Mississippi Commission on Judicial Performance.” Miss. Comm’n on Judicial Performance v. Gibson, 883 So.2d 1155, 1156 (Miss.2004) (citing Miss. Comm’n on Judicial Performance v. Gunn, 614 So.2d 387, 389 (Miss.1993)). “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)). “We are the trier of fact and have the sole power to impose sanctions in judicial misconduct cases.” Id. at 1157 (citing Peyton, 645 So.2d at 956).

¶ 7. The Commission found by clear and convincing evidence that Judge Sanford’s conduct violated Canons 1, 2A, 2B, 3B(1), 3B(2), 3B(7), 3B(8), and 3E of the Judicial Code. Furthermore, the Commission found by clear and convincing evidence that Judge Sanford engaged in “willful misconduct” and “conduct prejudicial to the administration of justice which brings the judicial office into disrepute” thus causing such conduct to be actionable pursuant to the provisions of Miss. Const, art. 6, § 177A. We have previously defined the phrase “willful misconduct” as follows:

“Willful misconduct in office is the improper or wrongful use of power of his office by a judge acting intentionally, or with gross unconcern for his conduct and generally in bad faith ... 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.”

Gibson, 883 So.2d at 1157 (citing In re Quick, 553 So.2d 522, 524-25 (Miss.1989)).

¶ 8. Judge Sanford has agreed to the Commission’s recommendation and has joined the Commission’s motion for approval of its recommendations. Judge Sanford has also agreed in writing that he worked through the sheriff to have the arresting officer dismiss the charges against the subject DUI defendant. Through the various documents filed with us, Judge Sanford likewise admits that he violated the cited judicial canons by engaging in such conduct which would be deemed to be willful misconduct in office and conduct prejudicial to the administration of justice, thereby bringing his judicial office into disrepute and causing his conduct to be actionable under the provisions of Miss. Const, art. 6, § 177A. With there being no dispute as to the relevant facts, and with Judge Sanford’s admissions as to his various violations of our judicial canons, with which this Court agrees, we turn now to the appropriate sanctions to impose upon Judge Sanford.

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

¶ 9. We set out here the judicial canons which Judge Sanford 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
A. A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
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.
(1) A judge shall hear and decide all assigned matters within the judge’s jurisdiction except those in which disqualification is required.
(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.
a: :|i ‡ * a:
(7) A judge shall accord to all who are legally interested in a proceeding, or their lawyers, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding except that:
(a) where circumstances require, ex parte communications for scheduling, administrative purposes or emergencies that do not deal with substantive matters or issues on the merits are authorized: provided:
(i) the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication, and
(ii) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication and allows an opportunity to respond.
(b) Judges may obtain the advice of a disinterested expert on the law applicable to a proceeding before them if the judges give notice to the parties of the person consulted and the substance of the advice, and afford the parties reasonable opportunity to respond.
(c) A judge may consult with court personnel whose function is to aid the judge in carrying out the judge’s adjudicative responsibilities or with other judges.
(d) A judge may, with the consent of the parties, confer separately with the parties and their lawyers in an effort to mediate or settle matters pending before the judge.
(e) A judge may initiate or consider any ex parte communications when expressly authorized by law to do so.
(8) A judge shall dispose of all judicial matters promptly, efficiently and fairly. E. Disqualification.
(1) Judges should disqualify themselves in proceedings in which their impartiality might be questioned by a reasonable person knowing all the circumstances or for other grounds provided in the Code of Judicial Conduct or otherwise as provided by law, including but not limited to instances where:
(a) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentia-ry facts concerning the proceeding

In setting out these various Canons of the Mississippi Code of Judicial Conduct, we have omitted those portions deemed irrelevant to today’s discussion, and we have likewise omitted the Commentary portions of the Judicial Code related to these cited canons.

¶ 10. This Court, as the state’s highest court, has previously been given an unambiguous constitutional mandate concerning our solemn responsibility in determining the appropriate sanction to impose upon one our judges upon a finding of actionable judicial misconduct:

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

Miss. Const, art. 6, § 177A. This is a responsibility we do not take lightly, whether we are dealing with complaints of misconduct lodged against justice court judges, municipal judges, state trial judges or appellate judges. We have the utmost respect for our justice court judges who come into contact with more of our citizens than any other class of judges. Thus, we have a right to expect exemplary conduct from our justice court judges. After all, we stated more than seventeen years ago:

There are good reasons why our justice court judges must regard scrupulously the nature of their office. In the first place, most of our citizens have their primary, if not their only, direct contact with the law through the office of the justice court judge. See In re Garner, 466 So.2d 884, 887 (Miss.1985). The perception of justice of most of our citizens is forged out of their experiences with our justice court judges. If these judges do not behave with judicial temperament and perform their duties according to the law and by reference to the process of adjudication, there seems little hope that our citizenry at large may understand and respect the legal process.

In re Bailey, 541 So.2d 1036, 1039 (Miss.1989).

¶ 11. With this having been said, we unhesitatingly acknowledge that we have previously stated that the sanction should “fit the offense” and be consistent “with other like cases.” In re Bailey, 541 So.2d at 1039. However, notwithstanding the Commission’s recommendation in this or any other case, this Court, and this Court alone, is constitutionally charged with making the ultimate decision as to the appropriate sanction to impose upon one who has engaged in actionable judicial misconduct. Gibson, 883 So.2d at 1156-57 (citing Peyton, 645 So.2d at 956; Gunn, 614 So.2d at 389).

¶ 12. In today’s case, the Commission has recommended that Judge Sanford be publicly reprimanded and assessed costs of $100.00. This recommended discipline is no doubt consistent with the sanctions we found appropriate in Miss. Comm’n on Judicial Performance v. Blakeney, 848 So.2d 824 (Miss.2003) (Blakeney I). In Blakeney I, Judge Blakeney initiated and participated in ex parte communication with an officer and encouraged the officer not to appear in court on a case assigned to another judge as a means of securing the dismissal of the charges. Id. at 825. This Court found that Judge Blakeney had engaged in willful misconduct and conduct prejudicial to the administration of justice which brought the judicial office into disrepute. Id. at 825-27. Additionally, this Court found that Judge Blakeney had violated Canons 1, 2A, 2B, 3A(1), and 3A(4) of. the Judicial Code of Conduct. Id. We publicly reprimanded Judge Blakeney and assessed him the costs of the proceedings. Id. at 827-28. We are confronted today with the Commission’s recommendation that we impose upon Judge Sanford basically the same sanctions as we imposed upon the judge in Blakeney I.

¶ 13. This Court takes into account mitigating factors in determining the appropriate sanctions. These factors were set out in In re Baker and modified in Gibson. In re Baker, 535 So.2d 47, 54 (Miss.1988); Miss. Comm’n on Judicial Performance v. Gibson, 883 So.2d 1155, 1158 (Miss.2004). The Baker/Gibson factors (hereinafter referred to as the Gibson factors) 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.

¶ 14. First, Judge Sanford was in his ninth month as a Justice Court Judge when the violations occurred. The record is silent as to the character of his service prior to that date. Second, there is precedent on point. In Blakeney I, Judge Blakeney engaged in similar conduct and received the same sanction recommended for Judge Sanford in the present case. Blakeney I, 848 So.2d at 825. Third, Judge Sanford’s willful misconduct is very serious. The reputations of Judge Sanford, the Sheriff, the arresting officer, and the judicial office itself were tarnished. Further, if the DUI offender, after a fan-public hearing, were proven guilty, Coving-ton County’s citizens could have comfortably maintained confidence in the integrity of its justice system which had appropriately punished a drunk driver. This action in turn would have hopefully specifically deterred that particular motorist from engaging in similar conduct in the future, and generally deterred the motoring public in Covington County from committing similar offenses, thus making the County’s public highways and streets safer for all motorists. Fourth, there is no evidence of a pattern of inappropriate conduct.

¶ 15. Fifth, admittedly contrary to our holding in Blakeney I, where we summarily found that “[tjhere were no allegations that Judge Blakeney’s violations involved moral turpitude,” 848 So.2d at 827, we are convinced, upon reflection, that such action by a judge does indeed involve moral turpitude. After all, we have previously 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.” Gibson, 883 So.2d at 1158. We now find that, contrary to the assertions of the Commission and Judge Sanford that there is no evidence of moral turpitude in this case, today’s facts, which are not only undisputed, but agreed upon by both the Commission and Judge Sanford, clearly and convincingly prove that Judge Sanford’s actions involved moral turpitude. We feel compelled to ask this question: If a judge’s clandestinely approaching the chief law enforcement official of the county to have that officer in turn approach the arresting officer in a DUI case and request (or conceivably demand) on the part of the judge that the arresting officer simply fail to appear for court so that the DUI case can be dismissed for lack of prosecution, are not actions representative of conduct exhibiting at the very least fraud, deceit, extortion and interference with the administration of justice, thus bringing the judicial office and the judiciary in general into disrepute, what judicial misconduct is required before a judge has committed an act of judicial misconduct involving moral turpitude? After all, this case is not about a judge’s conduct because of a judge’s lack of judicial education or training. This case involves some of the basic tenets of daily living in a civil society, such as living by standards of fundamental decency and honesty by not abusing the judicial process, and by revering the law and the judicial system, and upholding the dignity and respect of the judiciary through appropriate conduct and behavior toward others. Judge Sanford’s actions are clearly indicative of judicial misconduct exhibiting moral turpitude.

¶ 16. Sixth, there is mitigating evidence in the fact that Judge Sanford acknowledges the inappropriateness of his conduct and agrees with the findings of the Commission, and there is no evidence of aggravating circumstances.

¶ 17. Again, the Commission has recommended that Judge Sanford be sanctioned by way of a public reprimand and assessment of the costs of this proceeding in the amount of $100.00. Judge Sanford has agreed to this recommendation and has joined in the Commission’s motion to accept the recommended sanctions. However, we now disagree that a public reprimand, alone, is the appropriate sanction for a judge who engages in such egregious conduct which undermines our system of justice.

¶ 18.. We readily acknowledge that in order to guide our judges who are subject to the Mississippi Code of Judicial Conduct, we must maintain consistency in imposing sanctions. In re Bailey, 541 So.2d at 1039. We also readily acknowledge that in the real world of daily law practice, a lawyer is constantly required to advise a client as to the appropriate disposition of a legal matter based, at least in part, on a judge or court’s “track record” in deciding similar cases. It is critical that our trial and appellate courts afford consistency in the decision-making process. We are confident that the joint recommendation before us today is a result of both the Commission and Judge Sanford, and his counsel, relying on the past decisions of this Court in factually similar cases, such as Blakeney I. However, we are likewise confident that neither counsel for the Commission nor Judge Sanford made any assurances to Judge Sanford that this Court’s acceptance of the joint recommendation was an absolute certainty. To some extent, the procedural posture of the joint recommendation in this judicial discipline case is akin to a criminal defendant entering into a plea agreement with the prosecution, whereby the defendant agrees to plead guilty to the offense in return for the prosecution’s promise of a specific recommended sentence to the judge for consideration. Such a plea agreement is quite often reached based on the knowledge of the prosecutor and the defense attorney of the judge’s history in sentencing defendants for similar crimes with similar facts, including defendants with criminal histories similar to the defendant before the court for sentencing. However, such a plea agreement is reached with the caveat that the judge may impose a sentence deemed to be either more lenient or more severe than the sentence customarily imposed by the judge for such a crime.

¶ 19. We are now more than three years removed from our decision in Blakeney I. Again, we now find that such action on the part of Judge Sanford in attempting to subvert justice by clandestinely arranging for the arresting officer in a DUI case to “no show” at the criminal prosecution of the case so that the judge can dismiss the case for failure to prosecute is the epitome of judicial misconduct exhibiting moral turpitude. As we previously observed, our justice court justices are on the front line “where the rubber meets the road” as far as constant contact with our citizens. Justice courts will ordinarily have a much greater volume of cases than our state trial courts or appellate courts. Our citizenry’s overall perception of the entire judicial system in this state is quite often a result of contact with our justice courts, since the vast majority of our citizens will have little or no contact with our state trial or appellate courts, other than for jury service. See, e.g., In re Bailey, 541 So.2d at 1039. We can no longer condone conduct similar to that exhibited by Judge Sanford to be sanctionable by way of a public reprimand. Simply put, what Judge Sanford did in this case is serious business. We thus find that, based on the record in this case, the appropriate sanction for Judge Sanford’s conduct is not only a public reprimand, but also a thirty-day suspension and assessment of costs.

CONCLUSION

¶ 20. Judge Sanford’s actions constituted willful misconduct prejudicial to the administration of justice which brought the judicial office into disrepute. For the reasons stated, we do not accept the joint recommendation of the Commission and Judge Sanford for the issuance of a public reprimand and assessment of costs, but instead, we hereby order a public reprimand, a suspension from office for a period of thirty (30) days without pay, and assessment of court costs of $100.00 against Judge Sanford. This reprimand shall be read in open court on the first day of the next term of the Circuit Court of Coving-ton County, with Judge Sanford present.

¶ 21. COVINGTON COUNTY JUSTICE COURT JUDGE JOHN L. SANFORD SHALL BE PUBLICLY REPRIMANDED IN OPEN COURT BY THE PRESIDING JUDGE OF THE COV-INGTON COUNTY CIRCUIT COURT ON THE FIRST DAY OF THE NEXT TERM OF THAT COURT AFTER THIS DECISION BECOMES FINAL; IS SUSPENDED WITHOUT PAY FOR THIRTY (30) DAYS FROM AND AFTER THE DATE OF ISSUANCE OF THE MANDATE IN THIS CASE; AND, IS ASSESSED COSTS IN THE AMOUNT OF $100.00.

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

      . Judge Blakeney would later be before this Court on charges of violating our then-judicial canons prohibiting photographic or electronic coverage of court proceedings. Miss. Comm’n on Judicial Performance v. Blakeney, 905 So.2d 521 (Miss.2004) (.Blakeney II). Of course, subsequent to Judge Blakeney committing the actions which brought him before this Court in Blakeney II, this Court adopted the Mississippi Rules for Electronic Photographic Coverage of Judicial Proceedings, effective April 17, 2003.

      . In today's case, Judge Sanford is not charged with violation of Canon 3(A)(4), which provides that “[¡judges shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom they deal in their official capacities, and shall require similar conduct of lawyers, and of their staffs, court officials, and others subject to their direction and control.”

      . In imposing a public reprimand, this Court, in Blakeney I, likewise relied on our prior decisions in Gunn, 614 So.2d at 391 (judge publicly reprimanded for fixing ticket and having ex parte communications with traffic violator); and, Miss. Comm’n on Judicial Performance v. Vess, 692 So.2d 80, 81 (Miss.1997) (judge publicly reprimanded for ex parte communications with defendant, defendant’s mother, arresting officer, and prosecutor, as well as interfering with bonding process).

      . The only difference between Judge Blake-ney’s conduct and Judge Sanford's conduct is that Judge Blakeney went directly to the arresting officer in a DUI case and requested the arresting officer not to appear in court so that the DUI case could be dismissed; whereas, Judge Sanford used an intermediary, Sheriff Speed, in requesting that Officer Springer be late for court so that a DUI case could be dismissed for lack of prosecution.

      .In their joint memorandum brief, the Commission and Judge Sanford state, as to the fifth Gibson factor, that "[a]lthough there is no evidence which would suggest that moral turpitude was involved in the [judge's] actions, the [judge's] abuse of his position for personal reasons is quite serious.”


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    ALAMAC LLC, Appellant v. TRAVELERS BANK & TRUST, FSB, Citifinancial Mortgage Company, Inc., Debera Bridges, Trustee and Emily Kaye Courteau, Substituted Trustee, Appellees.
    No. 2005-CA-01681-COA.
    Court of Appeals of Mississippi.
    Oct. 3, 2006.
    Irving Conrad Mord, attorney for appellant.
    Michael A. Courteau, attorney for appel-lees.
    Before MYERS, P.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Alamac, LLC filed suit against Travelers Bank & Trust, FSB, Citifinan-cial Mortgage Company, Inc., Deberá Bridges, in her capacity as trustee, and Emily Kay Courteau, in her capacity as substituted trustee (Travelers) in the Chancery Court of Walthall County requesting a temporary restraining order, preliminary injunction, and declaratory judgment to prohibit Travelers from conducting a foreclosure sale of certain real property in Walthall County. Both Ala-mac and Travelers filed motions for summary judgment. The court granted Travelers’s motion for summary judgment. On appeal, Alamac asserts that the court abused its discretion, applied an erroneous legal standard and committed manifest error in failing to sustain Alamac’s motion for summary judgment.

FACTS

¶ 2. On January 11, 2000, Karen Stocki executed a deed of trust for the benefit of Travelers. The deed of trust, which was prepared by Travelers, was recorded in the land records of Walthall County in trust deed book 262, at page 651. The real property encumbered by this deed of trust is located in Tylertown, Mississippi; the correct legal description of the real property is as follows: Section 19, Township 2 North, Range 11 East. The Travelers deed of trust contained the correct legal description in the granting clause, but the indexing instructions on the instrument described the property as being located in Section 15, Township 2 North, Range 11 East. Thus, the Travelers deed of trust was incorrectly indexed by the Walthall County chancery clerk in the sectional index. Nonetheless, the Travelers’s deed of trust was correctly indexed in the general index.

¶ 3. On January 13, 2000, Stocki conveyed the property to Alamac by warranty deed. At the time of the conveyance, the Travelers’s deed of trust was still outstanding. The title search commissioned by Alamac prior to purchase from Stocki did not reveal the outstanding deed of trust because the search was confined to the sectional index. Thus, Alamac purchased the property and borrowed a portion of the purchase price from Pike County National Bank without consulting the general index of the Walthall County land records.

¶ 4. On December 28, 2004, Alamac filed a complaint in the Chancery Court of Walthall County against Travelers asserting that it was a bona fide purchaser for value without notice of the Travelers’s deed of trust. Consequently, Alamac prayed for a temporary restraining order, and a preliminary and permanent injunction to prevent Travelers from conducting a foreclosure sale. Alamac also requested a declaratory judgment that Travelers’s security interest in the property was subordinate and junior to Alamac’s interests. On April 12, 2005 Alamac filed an amended complaint listing two additional grounds for relief: estoppel and laches.

¶5. On May 19, 2005, Alamac filed a motion for summary judgment. Travelers also filed a motion for summary judgment on June 3, 2005. The chancery court granted Travelers’s motion for summary judgment on August 3, 2005. Citing Mississippi Code Annotated section 89-5-33, the court found that the general index “remains the official index to be primarily relied upon in the State of Mississippi and that any document correctly indexed in such index will stand as constructive notice to any potential purchaser.” Consequently, the court determined that Alamac was not a bona fide purchaser without notice. Aggrieved, Alamac appeals.

STANDARD OF REVIEW

¶ 6. An appeal from summary judgment is reviewed de novo. Jacox v. Circus Circus Miss., Inc., 908 So.2d 181, 183(114) (Miss.Ct.App.2005) (citing Cossitt v. Alfa Ins. Corp., 726 So.2d 132, 136(¶ 19) (Miss.1998)). The standard by which we review the grant or denial of summary judgment is the same standard as is employed by the trial court under Rule 56(c) of the Mississippi Rules of Civil Procedure. Id. (citing Dailey v. Methodist Med. Ctr., 790 So.2d 903, 906-07(¶ 3) (Miss.Ct.App.2001)). Pursuant to Rule 56(c) of the Mississippi Rules of Civil Procedure, summary judgment is appropriate when “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.” The evidence must be viewed in the light most favorable to the non-moving party. Jacox, 908 So.2d at 184 (¶ 4) (citing Dailey, 790 So.2d at 907).

ISSUE AND ANALYSIS

I. Whether the trial court abused its discretion, applied an erroneous legal standard and committed manifest error in failing to sustain Alamac’s motion for summary judgment.

¶ 7. Citing Mississippi Code Annotated section 89-5-33(2), Alamac maintains that Travelers was unable to satisfy its burden to defeat Alamac’s motion for summary judgment because Travelers failed to provide a correct indexing instruction of the land for the statutorily mandated sectional index. Mississippi Code Annotated section 89-5-33(2) provides in part that “[t]he clerk of the chancery court shall maintain a sectional index to instruments describing land which are also entered in the general index.” Alamac also cites Mississippi Code Annotated section 89-5-33(3) (Supp. 2005), which provides in part that “[e]very surveyer or other person who prepares a legal description of land ... shall ... include an indexing instruction which shall state the section, township and range.” Based on the foregoing statutory provisions, Alamac asserts that the person who prepares the document and the chancery clerk have the responsibility of properly entering documents in the sectional index. Alamac further asserts that it had no notice of the Travelers’s deed of trust because it had a right to rely solely on the statutorily mandated sectional index. Consequently, Alamac contends that Travelers waived its priority by not ensuring that their document was properly entered in the sectional index.

¶ 8. The chancery court determined that Alamac was not a bona fide purchaser without notice because the Travelers deed of trust was properly entered in the general (direct and reverse) index. We agree. In addition to the portion cited by Alamac, Mississippi Code Annotated section 89-5-33(2) also provides in part that: “[i]n the event of conflict between the general and the sectional indices, the notice imparted by the general index shall prevail except to the extent the land is described by lot number for platted subdivisions, official surveys and unofficial subdivisions and surveys commonly in use, the sectional index shall prevail.” In the case sub judi-ce, the land is not described by lot number for platted subdivisions, official surveys, or unofficial subdivision, or a survey commonly in use. Thus, Alamac had a duty to search the general index, as it would prevail over an incorrect entry in the sectional index. Because the deed of trust was properly entered in the general index, we find that the chancery court correctly determined that Alamac had constructive notice of the Travelers’s deed of trust. We also find the chancery court did not err in denying Alamac’s motion for summary judgment. This issue is without merit.

¶ 9. THE JUDGMENT OF THE CHANCERY COURT OF WALTHALL COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES, AND ROBERTS, JJ., CONCUR.


author: SOUTHWICK, J.,

text:
    Stephon HUDDERSON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2005-KA-01806-COA.
    Court of Appeals of Mississippi.
    Oct. 31, 2006.

      John A. Howell, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before MYERS, P.J., SOUTHWICK and GRIFFIS, JJ.
   SOUTHWICK, J.,

for the Court.

¶ 1. Stephon Hudderson was convicted in the Pearl River County Circuit Court for sale of cocaine. On appeal, he argues that his conviction should be reversed because he was not granted a needed continuance, and because the verdict was contrary to the great weight of the evidence. He further argues that his sentence is constitutionally defective. We find no infirmity in his conviction or sentence and consequently affirm.

¶ 2. On September 24, 2004, Stephon Hudderson was standing outside of a convenience store in Picayune, Mississippi. There, he was approached by an undercover police officer and a confidential informant seeking to purchase narcotics. The officer and informant returned later in the day to make the purchase. Hudderson entered the vehicle which the officer and informant occupied and instructed the officer to drive down the street. The sale of cocaine took place while the men were riding together. Hudderson was arrested and indicted for sale of a controlled substance. Miss.Gode Ann. § 41-29-139(a) (Supp.2005). The indictment was later amended to charge Hudderson as a habitual offender. After a jury trial, Hudderson was convicted and sentenced to sixty years imprisonment without possibility of parole.

DISCUSSION

1. Continuance of Trial

¶ 3. The identity and last known residence of the confidential informant were disclosed to Hudderson well before the trial. Hudderson attempted to have the informant and the police chief subpoenaed as witnesses. The State also attempted to serve the confidential informant with a subpoena. On the day before his scheduled trial, Hudderson was notified that the informant had not been located and that the police chief was out of town at a conference. The trial judge gave Hud-derson the option of a continuance for his trial from July 2005 until October 2005 if he wanted to make further attempts to locate the confidential informant and have the police chief available for the trial. Hudderson declined the continuance and said he wanted to go to trial on the following day without the informant or police chief present.

¶ 4. The next day, Hudderson revealed to the court that he had changed his mind and requested a continuance so that he could attempt to locate the informant. The continuance was denied because Hud-derson had refused the continuance the judge offered the previous day.

¶ 5. Hudderson argues that the trial court erred by refusing to grant a continuance due to the unavailability of the confidential informant. Hudderson claims that he was prevented from making a defense that he would have made because two witnesses were not at trial. Hudderson does not articulate the defense that he forfeited due to the absent witnesses.

¶ 6. Hudderson relies on caselaw that requires that a criminal defendant be afforded the opportunity to locate a witness such as a confidential informant. Turner v. State, 501 So.2d 350, 352 (Miss.1987). A trial court has discretion when resolving a motion for continuance. Miss. Code Ann. § 99-15-29 (Supp.2005). Reversal requires that the denial of a continuance have resulted in manifest injustice. Smiley v. State, 815 So.2d 1140, 1143-44 (Miss.2002). Before there will be manifest injustice in the denial of a continuance, an accused must have suffered unfair surprise or prejudice. Blanton v. State, 727 So.2d 748, 751 (Miss.Ct.App.1998).

¶ 7. Here, the prosecution disclosed the identity and last known residence of the informant well before the scheduled trial. The trial court gave Hudderson the opportunity to accept a continuance, but he was satisfied to go to trial without the informant or police chief present. There was no abuse of the trial court’s discretion when it denied the continuance on the day of trial.

2. Illegal Sentence

¶ 8. Hudderson argues that due to his age of forty-three at the time of his conviction, only a jury could impose a sentence of sixty years imprisonment without parole. Hudderson relies on a precedent holding that “imposition of a life sentence is within the sole province of the jury and, absent a jury recommendation of like imprisonment, the trial judge must sentence the defendant to a definite term reasonably expected to be less than life.’ Friday v. State, 462 So.2d 336, 339 (Miss.1985). However, the Supreme Court has distinguished sentences issued in drug cases from sentences for crimes that require a judge to impose a sentence “reasonably expected to be less than life” in the absence of a jury recommending a life sentence. Cannon v. State, 919 So.2d 913, 917 (Miss.2005). Hudderson was indicted and sentenced as a subsequent offender under Mississippi Code Section 41-29-147 and as a habitual offender under Section 99-19-81 for the crime of sale of a controlled substance. Under Cannon, Hudderson’s argument is without merit.

¶ 9. Hudderson also argues that he is entitled to the benefit of proportionality analysis regarding his sentence. Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). The Solem analysis is applied only in rare cases where “a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.” Ewing v. California, 538 U.S. 11, 30, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (quoting Harmelin v. Michigan, 501 U.S. 957, 1005, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring in part and concurring in judgment)). Sentences that do not exceed statutory limitations will generally be upheld. Tate v. State, 912 So.2d 919, 933 (Miss.2005). Hudderson received the maximum sentence allowed for sale of a controlled substance as a subsequent and habitual offender. The analysis for proportionality is not required for the sentence Hudder-son received.

S. Weight and Sufficiency of the Evidence

¶ 10. Hudderson argues that the evidence was not sufficient to support his guilt because of the gross errors committed by law enforcement. These errors include not documenting the pre-transaction search of the informant and vehicle for narcotics. Counsel for Hudderson moved the court to “dismiss or direct a verdict” claiming that the State failed to put on evidence from which any reasonable juror could find guilt. Hudderson also filed a motion for judgment notwithstanding the verdict,, or in the alternative, for a new trial.

¶ 11. The denial of a motion for directed verdict or judgment notwithstanding the verdict challenges the sufficiency of the evidence. This Court must consider all of the evidence in the light most favorable to the State. Shaw v. State, 915 So.2d 442, 448 (Miss.2005); Bush v. State, 895 So.2d 836, 843 (Miss.2005). The objective of this review is to determine whether a jury could not have found an accused guilty even with all the reasonable inferences that could have been derived from the evidence. Shaw, 915 So.2d at 448-49.

¶ 12. A challenge to the weight of the evidence by a motion for a new trial triggers a review where the evidence is viewed in a light most favorable to the verdict. Bush, 895 So.2d at 844. An appellate court sits as a limited thirteenth juror and will only disturb the verdict if allowing it to stand would “sanction an unconscionable injustice.” Id.

¶ 13. The prosecution charged that Hudderson wilfully and feloniously and distribute cocaine for money. The evidence presented against Hudderson at trial included direct evidence by way of an audio-visual recording and testimony that Hudderson received money and handed the undercover officer cocaine in exchange for that money. Viewing the evidence in a light most favorable to the State, we affirm the judgment.

¶ 14. THE JUDGMENT OF THE PEARL RIVER COUNTY CIRCUIT COURT OF CONVICTION OF SALE OF A CONTROLLED SUBSTANCE-COCAINE AND SENTENCE OF SIXTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS A HABITUAL OFFENDER IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PEARL RIVER COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.


author: BARNES, J.,

text:
    Frederick VANCE a/k/a Fredrick Vance, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-02150-COA.
    Court of Appeals of Mississippi.
    Oct. 31, 2006.

      Frederick Vance, Appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before MYERS, P.J., BARNES and ISHEE, JJ.
   BARNES, J.,

for the Court.

¶ 1. Frederick Vance, pro se, appeals the judgment of the Circuit Court of Clay County dismissing his motion for post-conviction relief. Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. Frederick Vance pled guilty to aggravated assault on July 14, 1998, in Clay County Circuit Court and received a ten-year suspended sentence, five years of supervised probation, and a $1,000 fine. Less than one year later, Vance violated his probation, and it was revoked. He was imprisoned to begin serving his ten-year sentence. In 2001, Vance filed a timely motion for post-conviction relief with the Clay County Circuit Court, seeking to withdraw his guilty plea and requesting an evidentiary hearing. Additionally, Vance claimed ineffective assistance of counsel regarding the entry of his guilty plea. On April 11, 2001, the circuit court denied Vance’s motion without a hearing. Vance appealed, and on January 8, 2002, this Court found Vance’s claims without merit, and affirmed the trial court’s denial of his motion. Vance v. State, 803 So.2d 1265 (Miss.Ct.App.2002).

¶ 3. In 2003, Vance filed an “extraordinary writ” with the Mississippi Supreme Court, which was denied on February 4, 2004. On May 31, 2005, Vance submitted a self-styled “Petition for Writ of Habeas Corpus” in Clay County Circuit Court, which was denied twice by that court. On July 25, 2005, the circuit court found the motion time-barred according to the statute of limitations provided in Mississippi Code Annotated section 99-39-5 (Supp. 2005). On October 12, 2005, the circuit court again dismissed Vance’s motion. The circuit court’s second denial was in response to a motion Vance filed for reinstatement of his habeas corpus petition. Vance alleged his motion should be an exception to the statute of limitations as he was convicted of aggravated assault instead of simple assault, and thus his sentence was illegal. The circuit court found that Vance’s indictment was correct, because it charged him with hitting the victim with a brick, which would constitute aggravated assault. Also, the court stated that since Vance pled guilty, he waived his right to present any possible defenses to the charge of aggravated assault. On November 4, 2005, the Clay County Circuit Court received a letter from Vance, dated October 31, 2005, inquiring about the status of his motion to reinstate his petition for habeas corpus. By notice of appeal dated November 8, 2005, Vance sought this Court’s review of his petition for reinstatement. The notice of appeal, however, was not stamped “filed” until November 14, 2005, two days after the date required for timely notice of appeal under M.R.A.P. 4(a). The State has not challenged appellate jurisdiction in this case.

STANDARD OF REVIEW

¶ 4. Our standard of review of a trial court’s decision to deny a motion for post-conviction relief is clear. This Court will not alter findings of fact by the trial court unless they are found to be clearly erroneous. Smith v. State, 806 So.2d 1148, 1150(¶ 3) (Miss.Ct.App.2002). Questions of law are reviewed de novo. Pace v. State, 770 So.2d 1052, 1053(¶4) (Miss.Ct.App.2000).

DISCUSSION

¶ 5. This Court must have jurisdiction to consider this appeal. We note that Vance’s notice of appeal was not received by the circuit court for filing within thirty days of the order of the circuit court. “An appeal shall be dismissed if the notice of appeal is not timely filed pursuant to Rules 4 or 5.” M.R.A.P. 2(a)(1). While the State has not challenged appellate jurisdiction, it is incumbent upon us to assure ourselves such jurisdiction does exist. The prison mailbox rule, as applied to pro se post-conviction relief proceedings, states the prisoner’s motion is considered delivered for filing, under the Uniform Post-Conviction Collateral Relief Act and the Mississippi Rules of Civil Procedure, when the prisoner gives the documents to prison officials for mailing. Sykes v. State, 757 So.2d 997, 1000-01 (¶ 14) (Miss.2000). Recently, we noted in Melton v. State, 930 So.2d 452, 455(¶ 8) (Miss.Ct.App.2006), that if the State wants to challenge an appeal as untimely, the State bears the burden of proving the notice was not timely mailed by the prisoner. Id. The State has made no attempt to meet this burden, and it may well be that Vance did deliver his papers to prison officials in a timely manner.

¶ 6. Moreover, post-conviction relief petitions are governed by Mississippi Rule of Appellate Procedure 2(c). This Court may suspend the requirements of the appellate rules in the interest of justice. M.R.A.P. 2(c). Specifically, this Court may suspend Rule 4(a) of the Mississippi Rules of Appellate Procedure to allow an out-of-time appeal for criminal cases. In the instance case, from the facts at hand, we cannot tell when Vance’s petition was given to prison officials to mail. Also, we do not know when Vance received notice of the ruling on his motion by the circuit court. Because of the unique circumstances presented in this case, we opt to exercise our discretion under Rule 2(c) of the Mississippi Rules of Appellate Procedure to suspend the thirty-day filing requirement to the extent Vance’s filing may have been untimely under the prison mailbox rule. Thus, we find jurisdiction proper and proceed to address Vance’s appeal on the merits.

¶ 7. Vance appeals the denial of his self-styled “Petition for Writ of Habeas Corpus.” In his petition, he argues: his plea was not entered knowingly, intelligently, or voluntarily; the court erred in accepting a guilty plea for aggravated assault without factual basis; he was denied effective assistance of counsel at the plea hearing; he was deprived of a fair trial because of the judge’s bias towards him; and his sentence is illegal as a matter of law.

¶ 8. Habeas corpus petitions based on the issues presented here have been supplanted by motions for post-conviction relief. See Miss.Code Ann. §§ 99-39-3, - 27(9) (Supp.2005). A dismissal or denial of such a petition shall constitute a final judgment, and bars any successive petitions. Miss.Code Ann. § 99-39-27(9) (Supp.2005). Moreover, any additional motions for post-conviction relief, however denominated, but actually functioning as a post-conviction relief motion, shall be properly dismissed as a “successive writ.” Id.

¶ 9. According to our research, in 2001 Vance filed a timely motion for post-conviction relief which was denied by the Clay County Circuit Court. On January 8, 2002; this Court affirmed that denial. See Vance, 803 So.2d 1265. Vance’s current petition for “writ of habeas corpus” is procedurally barred, as it is actually a second motion for post-conviction relief, which is prohibited under section 99-39-27(9) as a successive writ.

¶ 10. In our original 2001 opinion denying Vance’s motion for post-conviction relief, we addressed two of the issues he places before this Court today. Specifically, we ruled on whether there was evidence sufficient to prove an essential element of his conviction for aggravated assault, and whether Vance was denied effective assistance of counsel. We found both claims without merit. We concluded that the circuit court did not err in accepting Vance’s guilty plea for aggravated assault. Further, the Clay County Circuit Court’s order of October 12, 2005, stated that, after a review of Vance’s file, his indictment does charge him with hitting the victim with a brick. This act would constitute aggravated assault, thus his conviction was proper.

¶ 11. Regarding the ineffective assistance of counsel claim, previously we held that since Vance’s underlying argument was erroneous, as there was sufficient evidence to convict him of aggravated assault, his attorney acted properly in allowing him to plead guilty to this charge. There was no merit to this claim. Further, since these two issues have been previously adjudicated and denied, they are procedurally barred here as a successive writ, as are Vance’s remaining claims regarding his plea entry, denial of a fair trial, and supposed illegal sentence. Miss.Code Ann. § 99-39-27(9).

¶ 12. Accordingly, we affirm the decision of the Circuit Court of Clay County dismissing Vance’s petition.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF CLAY COUNTY DISMISSING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CLAY COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, ISHEE AND ROBERTS, JJ., CONCUR.

      . Although post-conviction relief motions are technically "civil” actions, they are governed by the rules of criminal appeals, and are thus considered a criminal action for the purposes of this rule. See M.R.A.P. Rule 4 cmt.


author: MYERS, P.J.,

text:
    Harold F. GARRIS, Appellant v. SMITH’S G & G, LLC, Appellee.
    No. 2005-CA-01389-COA.
    Court of Appeals of Mississippi.
    Oct. 31, 2006.

      Gerald W. Chatham, Sr., Hernando, attorney for appellant.
    Christian T. Goeldner, Southaven, attorney for appellee.
    Before MYERS, P.J., BARNES and ISHEE, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. The underlying case involved a contractual dispute between Smith’s G & G, LLC (Smith’s), the collective group of purchasers of a small country store, and the seller, Garris. Finding that Garris fraudulently misrepresented the amount of the business’ monthly revenue, the jury awarded Smith’s $85,000 in damages, and also awarded Garris on his counterclaim an amount representative of the past due installment payments on the promissory note held by him. Following trial, Smith’s presented a motion for judgment notwithstanding the verdict, seeking to vacate the portion of the jury verdict awarding damages to Garris. The trial court granted Smith’s motion, finding the contract void due to fraud through a faulty application of contract law. This Court is asked to determine whether the trial court erred in setting aside the jury verdict on Garris’ counterclaim and upholding the jury verdict on Smith’s damages. Finding error in the trial judge’s grant of Smith’s motion for judgment notwithstanding the verdict and application of law, this Court reverses the judgment of the lower court and remands the damage computation issue of this case for a new trial.

STATEMENT OF THE CASE

¶ 2. In the summer of 2003, Garris and Smith’s negotiated the sale and purchase of a business named “Donna’s Country Kitchen,” located on Highway 4 East in Senatobia, Mississippi. During the negotiations, Garris furnished Smith’s with a written representation that the store had an average of $46,868.40 in monthly sales. The business, consisting of commercial real estate and a country store, was purchased on September 15, 2003, for a total price of $415,000, including a cash down payment of $85,000. Smith’s gave a first mortgage on the real property to Norman Smith and borrowed $100,000 from an investor, George Smith, executing a second mortgage on the property for said debt. Smith’s additional financing was in the form of a promissory note executed to Garris in the amount of $185,790.51 secured by a financing statement on the inventory and equipment. Less than six months after the closing date, Smith’s filed a complaint against Garris alleging several claims, including the claim that Garris had fraudulently misrepresented the income generated from the business in an amount of $30,000 per month. Upon the filing of the complaint, Smith’s discontinued making payments under the promissory note held by Garris. Garris then filed a counterclaim against Smith’s for the past due payments.

¶ 3. The case went to trial in the Circuit Court of Tate County on January 24, 2005. After three days of trial, the jury was given instructions. Significant to our review of this appeal is that the record is devoid of calculations or testimony concerning the actual losses incurred by Smith’s due to Garris’ misrepresentation. During the deliberations, the jury sent a note to the judge asking whether they could find for both the plaintiff and the defendant. The record reflects that the trial judge answered their query affirmatively. The jury then found for both Smith’s on the fraudulent misrepresentation claim in the amount of $85,000, and for Garris on his counterclaim in the amount of $53,080 for past due payments. Smith’s award represented the total of her cash down payment for the property. Garris’ claimed amount represented the monthly amount due on the note for thirteen months, along with interest. A hearing was later held on the issue of punitive damages and the issue was submitted to the same jury. The jury did not award punitive damages.

¶ 4. Within the time prescribed by Mississippi Rule of Civil Procedure 50(b), Smith’s filed a motion for judgment notwithstanding the verdict (JNOV) and for declaratory judgment. On April 21, 2005, the trial court issued an order granting Smith’s motion for JNOV and setting aside the judgment for Garris. In granting the motion for JNOV, the court reasoned that the contract entered into by Smith’s was procured by Garris’ fraudulent misrepresentation of the monthly income generated by the business. Garris then filed a motion for reconsideration or, in the alternative, clarification of order, which included a request for a new trial. Garris’ motion was overruled by the trial judge, thereby denying a new trial pursuant to Mississippi Rule of Civil Procedure 50(c).

¶ 5. Aggrieved, Garris appeals to this Court identifying the following issue for review:

WHETHER THE TRIAL COURT ERRED IN SETTING ASIDE THE JURY VERDICT ON THE APPELLANT’S COUNTERCLAIM AND UPHOLDING THE JURY VERDICT ON APPELLEE’S DAMAGES INSTEAD OF GRANTING A NEW TRIAL?

STANDARD OF REVIEW

¶ 6. In review of a trial court ruling on a motion for judgment notwithstanding the verdict, this Court considers the evidence in the light most favorable to the non-moving party. Tharp v. Bunge Corp., 641 So.2d 20, 23 (Miss.1994); King v. Progressive Gulf Ins. Co., 913 So.2d 1065, 1067(¶ 4) (Miss.Ct.App.2005). When a trial court considers a motion for JNOV, it is called upon to test the legal sufficiency of the evidence supporting the verdict, but not the weight of the evidence. Id. We, in turn, review the trial court’s grant or denial of a JNOV de novo. Id.

LEGAL ANALYSIS

¶ 7. Garris argues that the judge erred when he granted Smith’s motion for JNOV, thereby taking away the damages the jury had previously awarded Garris on his counterclaim for non-payment under the contract. Garris further argues that he should have received a new trial, and that the trial court’s denial of same was error. As the record reflects, the trial court vacated Garris’ counterclaim judgment and the promissory note, reasoning that the verdict was inconsistent with the jury’s finding that Garris falsely misrepresented material facts during the negotiations of the contract. This finding was predicated upon a faulty assumption that because fraud was found in the contract, this fraud vitiated the entire contract. The trial court further reasoned that because fraud vitiated the contract, Smith’s would not be liable for payments due on the promissory note. Subsequently, when the trial court ruled on Garris’ motion for reconsideration or, in the alternative, clarification of order, the trial court effectively refused to grant a new trial to Garris. We disagree with the trial court that the jury’s award was contradictory as a matter of law and find that the jury could have awarded a verdict to both Smith’s and Garris. The trial judge’s grant of the motion for JNOV was incorrect as a matter of law and, therefore, we reverse. Further, we hold that because the jury was not properly instructed as to the valuation of damages, this issue must be remanded for a new trial.

¶ 8. In awarding a verdict in favor of Smith’s, it is evident to this Court that the jury found that Smith’s was defrauded by Garris during the negotiations of the contract. While this portion of the jury finding is not contested by Garris, we note that our standard of review prohibits overturning a jury verdict unless “it is clear that the verdict is a result of prejudice, bias or fraud, or is manifestly against the weight of the credible evidence.” Sessums v. Northtown Limousines, 664 So.2d 164, 168-69 (Miss.1995) (quoting Wilmoth v. Peaster Tractor Co. of Lexington, Inc., 544 So.2d 1384, 1386-87 (Miss.1989)). The law is clearly established that the jury’s finding of fraudulent misrepresentation allows Smith’s to make a choice to either rescind the contract and be restored to its’ former position before the store was purchased or to elect to keep the business and bring an action for damages. Brent Towing Co. v. Scott Petroleum Corp., 735 So.2d 355, 360(¶ 14) (Miss.1999); Ezell v. Robbins, 533 So.2d 457, 458 (Miss.1988); Turner v. Wakefield, 481 So.2d 846, 848 (Miss.1985); Hamilton v. McGill, 352 So.2d 825, 828 (Miss.1977); Hunt v. Sherrill, 195 Miss. 688, 701, 15 So.2d 426, 430 (1943); Laurel Auto Supply Co. v. Sumrall, 184 Miss. 88, 93, 185 So. 566, 567 (1939); Estell v. Myers, 54 Miss. 174, 194 (1876); Gardner v. Little, 755 So.2d 1273, 1276(¶9) (Miss.Ct.App.2000).

¶ 9. When a recision of a land sale contract will bring about an inequitable result, abatement of the purchase price is the appropriate remedy. Hamilton, 352 So.2d at 830. Furthermore, when rescission is impossible, such as in this situation where there exists an intervening lien holder that prohibits a rescission of the contract, “the court is powerless to do anything except to accept the situation created by the fraud and award monetary damages upon the tort committed thereby.” Brown v. Ohman, 42 So.2d 209, 215 (Miss.1949).

¶ 10. While it is true that a contract procured by fraud is voidable as to all provisions and the entire transaction may be avoided by the party who entered into the contract without knowing of the fraud, if it is impossible to elect a rescission, the only other remedy is to recover damages. Allent v. Mac Tools, Inc., 671 So.2d 636, 641 (Miss.1996) (quoting Turner, 481 So.2d 846); Brown, 42 So.2d at 215. If this Court were to allow the lower court’s judgment to stand, which we cannot, Smith’s would be able to keep the property at issue, retain the award of damages, and forgo further payments on the promissory note held by Garris. This remedy, stated conservatively, would be unjust. A party is not entitled to a recovery of damages if it would constitute a windfall or “double recovery.” Ciba-Geigy Corp. v. Murphree, 653 So.2d 857, 873 (Miss.1994).

¶ 11. The Mississippi Supreme Court has addressed the precise issue of whether a finding of fraud in the inducement of a land sale contract requires recision. Browder v. Williams, 765 So.2d 1281 (Miss.2000). In that case, the court held that while rescission could be an appropriate remedy, rescission is not required where monetary damages would serve as an adequate remedy. Id. at (¶ 23). Quoting a leading treatise, the court stated,

One induced to purchase land for fraudulent misrepresentation may either bring an action for the fraud or for breach of covenants of his deed. He has an election.* * He may either affirm the contract, and sue for damages, or disaffirm it and be reinstated in the position in which he was before it was consummated.

Id. at (¶ 17) (quoting 8A Thompson on Real Property § 4468, at 387-88 (1963)). In discussion of relevant case law concerning a rescission suit, the court noted that when a party cannot be returned to status quo “they are not precluded from relief against fraud, but the court may proceed to restore them to status quo as nearly as possible and make compensation for the difference.” Id. at (¶ 19) (discussing holding in Brown v. Norman, 65 Miss. 369, 4 So. 293 (1888)).

¶ 12. In a case such as this, a rescission of the contract would not be an appropriate remedy because there are intervening lien holders which would complicate the return of the store to Garris. Furthermore, we note that Smith’s did not elect this option of rescission. Therefore, following precedent laid many years before us, we find that Smith’s only remedy is to seek monetary damages incurred due to the fraud in the inducement of the contract. However, we are now faced with a dilemma in determining whether the amount the jury awarded to Smith’s was predicated upon his actual losses due to the fraud in the contract. While it is true that the jury is the ultimate fact-finder in regard to valuation of damages, in this case, the jury was presented with no evidence as to the actual losses incurred by Smith’s due to Garris’ fraudulent misrepresentations. The jury awarded Garris an amount representative of the amount of the cash down payment, but nowhere in the record is there an indication supportive of this figure. We will reverse a jury finding if it is “manifestly against the weight of the credible evidence.” Sessions, 664 So.2d at 168-69. In this case, the amount awarded to Garris based upon the damages incurred as a product of the fraudulent misrepresentations as to the store’s monthly profit was not based on any evidence presented at trial, much less “credible evidence.”

¶ 13. In cases where during the negotiations there has been a material misrepresentation of a collateral characteristic of the property, such as misrepresentation concerning past rents or income from property, the proper measure of damages is the difference between the actual value of the property and the contract price. Hunt v. Sherrill, 195 Miss. 688, 701, 15 So.2d 426, 430 (1943). Had the jury been instructed on the applicable rule to find the amount of damages to award, we would uphold the jury’s award. However, because the jury was not presented evidence concerning the actual value of the property, we are forced to vacate the jury award of $85,000 to Smith’s and remand this portion of the case for a new trial so that a jury may consider evidence concerning the damages and award accordingly.

¶ 14. Upon our de novo review, this Court finds that the evidence presented at trial did not support the trial judge’s granting of the motion for judgment notwithstanding the verdict. We are, thus, compelled to conclude that this judgment must be reversed and remanded for further proceedings to determine the proper amount of compensation due to both Smith’s for the damages incurred due to the fraudulent misrepresentation and to the appealing party, Garris, for the amounts due to him for payments under the promissory note — a proceeding in which the parties must present competent evidence of the difference between the actual value and contract price of the property to set off the amount past due on the promissory note.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF TATE COUNTY IS REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE DIVIDED EQUALLY BETWEEN APPELLANT AND APPELLEE.

KING, C.J., LEE, P.J., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.


author: SEE, Justice.

text:
    Sam J. CARROLL III and GOCO Acquisition Corporation v. W.L. PETREY WHOLESALE COMPANY, INC., et al.
    1041466.
    Supreme Court of Alabama.
    April 21, 2006.

      Thomas T. Gallion III and Jamie Austin Johnston of Haskell, Slaughter, Young & Gallion, LLC, Montgomery, for appellants.
    Richard H. Gill and J. David Martin of Copeland, Franco, Screws & Gill, P.A., Montgomery, for appellees.
   SEE, Justice.

Sam J. Carroll III and GOCO Acquisition Corporation, the defendants in the underlying action, appeal the trial court’s order denying their motion to compel arbitration. We affirm the trial court’s order.

Facts and Procedural History

On July 31, 1998, Sam J. Carroll III, James W. Jackson (“Bill Jackson”), and Robert W. Jackson (“Warren Jackson”) formed CJJ, Inc., to acquire, own, manage, and sell various businesses related to convenience stores. At that time, Bill Jackson and Warren Jackson were principals in W.L. Petrey Wholesale Company, Inc. (“Petrey Wholesale”); Carroll was a director and employee of Petrey Wholesale. In forming CJJ, Carroll, Bill Jackson, and Warren Jackson executed articles of incorporation, bylaws, and a shareholders agreement (“the shareholders agreement”). Among other things, the shareholders agreement restricts the transfer of CJJ stock to third parties, provides a procedure for transferring shares of CJJ stock among the existing shareholders (Carroll, Bill Jackson, and Warren Jackson), and includes an arbitration clause. Neither the articles of incorporation nor the bylaws contain an arbitration clause, and those documents do not purport to incorporate by reference the arbitration clause or any other provision of the shareholders agreement.

In October 2004, Bill Jackson, Warren Jackson, Petrey Wholesale, and CJJ (collectively “the plaintiffs”) sued Carroll. They also named as a defendant GOCO Acquisition Corporation (“GOCO”), which Carroll had formed in 1999 to purchase 15 convenience stores, and P & C Grocers, Inc., to which Carroll eventually sold 9 of those 15 stores. The facts giving rise to the dispute are discussed in detail below. Carroll and GOCO, pointing to the arbitration clause in the shareholders agreement, moved the trial court to compel the plaintiffs to arbitrate all of their disputes against Carroll and GOCO. The trial court found that the complaint

“reveals that the lawsuit does not involve, either directly or indirectly, any claim of a violation of the Shareholders Agreement, the disposition of shares in CJJ, or the breach of any duties or limitations created by the Shareholders Agreement or implied by law merely as a result of Sam Carroll’s status as a CJJ shareholder.”

Accordingly, the trial court denied Carroll and GOCO’s motion to compel arbitration. Carroll and GOCO appeal.

Standard of Review

“ ‘ “[T]he standard of review of a trial court’s ruling on a motion to compel arbitration at the instance of either party is a de novo determination of whether the trial judge erred on a factual or legal issue to the substantial prejudice of the party seeking review.” Ex parte Roberson, 749 So.2d 441, 446 (Ala.1999). Furthermore:

“ ‘ “A motion to compel arbitration is analogous to a motion for summary judgment. TranSouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala.1999). The party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that that contract evidences a transaction affecting interstate commerce. Id. ‘After a motion to compel arbitration has been made and supported, the burden is on the non-movant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.’ ”
‘Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala.2000) (quoting Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (Ala.1995) (emphasis omitted)).’
“Vann v. First Cmty. Credit Corp., 834 So.2d 751, 752-53 (Ala.2002).”

Blue Cross Blue Shield of Alabama v. Rigas, 923 So.2d 1077, 1083 (Ala.2005).

Discussion

Carroll and GOCO rely on the arbitration clause in the shareholders agreement to attempt to compel arbitration of the plaintiffs’ disputes. The shareholders agreement is the only agreement in the record that contains an arbitration clause. The arbitration clause states:

“The parties agree that any disputes directly or indirectly relating to this Agreement which cannot be resolved by the parties after good faith negotiations shall be submitted to binding arbitration conducted in Pike County, Alabama, in accordance with the rules of the American Arbitration Association before a mutually agreeable arbitrator.”

“This Court has repeatedly stated ‘ “that the words ‘relating to’ in the arbitration context are given a broad construction.” ’ ” Serra Chevrolet, Inc. v. Hock, 891 So.2d 844, 847 (Ala.2004) (quoting other cases).

“The Federal Arbitration Act creates a strong presumption in favor of arbitration, and any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, ‘whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitra-bility.’” Blue Cross Blue Shield of Alabama v. Rigas, 923 So.2d at 1083 (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)). ‘“[A]ny doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration. ..Blue Cross Blue Shield of Alabama v. Rigas, 923 So.2d at 1083 (quoting Moses H. Cone Mem’l Hosp., 460 U.S. at 24-25, 103 S.Ct. 927). “Thus, a motion to compel arbitration should not be denied ‘unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” Ex parte Colquitt, 808 So.2d 1018, 1024 (Ala.2001) (quoting United Steelworkers of America v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582-83, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960)); accord David L. Threlkeld & Co. v. Metallgesellschaft Ltd., 923 F.2d 245, 248 (2d Cir.1991); Collins & Aikman Prods. Co. v. Building Sys., Inc., 58 F.3d 16, 19 (2d Cir.1995). While, “as with any other contract, the parties’ intentions control, ... those intentions are generously construed as to issues of arbitrability.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985). However, ‘““[t]he courts are not to twist the language of the contract to achieve a result which is favored by federal policy but contrary to the interest of the parties.” ’ ” Lanier Worldwide, Inc. v. Clouse, 875 So.2d 292, 296 (Ala.2003) (quoting other cases).

This Court has stated that, where the parties have entered into a succession of contractual dealings, “[ajnalyzing the connection and relationship between the subsequently arising controversy and the various earlier contracts and transactions requires first a determination of the nature of the controversy.” AmSouth Bank v. Dees, 847 So.2d 923, 934 (Ala.2002). “Where ... the dispute has been articulated in a complaint filed to initiate a lawsuit, that statement by the plaintiffs of their claim or claims is essentially determinative-” Dees, 847 So.2d at 934. “Thus, in the litigation context, the plaintiffs have the opportunity, in the first instance, to define the dispute. They may pursue or forgo available claims as they see fit and select the factual underpinnings they deem pertinent to aver.” Dees, 847 So.2d at 934. In this case, to determine the nature of the plaintiffs’ disputes, the Court must look to the factual basis of their disputes.

I. Nature of the Disputes

Bill Jackson, Warren Jackson, and Carroll formed CJJ in 1998. According to the plaintiffs’ complaint, Carroll induced Bill Jackson and Warren Jackson to form CJJ with him by representing that “he would locate and bring to CJJ various convenience store investment opportunities”; that “all profits and assets from any and all convenience store investments or convenience store related matters, in which he was involved, would be paid to CJJ”; and that “he would pay and contribute 40% of all operating and investment costs to the joint enterprise.” CJJ alleges that Carroll breached these alleged agreements and breached his fiduciary duties to CJJ. Bill Jackson and Warren Jackson also allege that Carroll breached those promises and that they were injured as a result of various business decisions they made allegedly in reliance on Carroll’s representations. The plaintiffs also allege fraud and conspiracy by Carroll and the other defendants. These transactions and the various other claims that arise from them are discussed below.

In 1999, Carroll formed GOCO so that GOCO could acquire 15 convenience stores. German-Ameriean Capital Corporation financed GOCO’s acquisition of the stores. After GOCO acquired the stores, Carroll transferred 20% of the ownership of GOCO to “James L. Richardson, or entities owned or controlled by him, Happy Stores, Inc., and/or Happy Retail, L.C. (collectively ‘Happy Stores’).” During the time that GOCO owned and managed the 15 stores, GOCO ordered and received from Petrey Wholesale more than $892,782 in goods and merchandise, but it failed to pay Petrey Wholesale for the items. GOCO at some time transferred management of the 15 stores to Happy Stores. Petrey Wholesale continued to supply goods and merchandise to the convenience stores during the period of Happy Stores’ management. When Happy Stores stopped managing the GOCO stores, Happy Stores owed Petrey Wholesale more than $556,000 for goods and merchandise that Petrey Wholesale had supplied; Pe-trey Wholesale sued Richardson and Happy Stores, but, at that time, did not sue Carroll or GOCO for the $892,782 GOCO owed Petrey Wholesale.

Allegedly in reliance on Carroll’s representation that all assets and earnings of his convenience-store businesses, including GOCO, would belong to and be for the benefit of CJJ, Bill Jackson and Warren Jackson agreed to become personally obligated on a $600,000 letter of credit taken out for additional financing for the purchase of the 15 GOCO stores. This letter of credit was later converted into a loan from SouthTrust Corporation. In 2004, SouthTrust sought to renew the loan. Carroll refused to renew the loan; instead he instructed SouthTrust to seize the collateral he had pledged in connection with the loan. However, the collateral Carroll had pledged was worth only approximately 40% of the debt Carroll owed to South-Trust. Bill Jackson and Warren Jackson allege that they then paid the balance of the loan from SouthTrust, which they had personally guaranteed.

The plaintiffs also claim that Carroll defrauded them in connection with Carroll and GOCO’s litigation with German-Amer-iean. In July 2001, Carroll and GOCO sued German-Ameriean as the result of German-American’s allegedly improper conduct in financing GOCO’s purchase of the 15 convenience stores. Then, in August 2001, GOCO voluntarily filed a petition in bankruptcy. German-Ameriean offered to assume and to pay GOCO’s $892,782 debt to Petrey Wholesale in exchange for control of the 15 GOCO stores. The plaintiffs allege that Carroll represented to Warren Jackson, then president of Petrey Wholesale and a principal in CJJ, that if Petrey Wholesale would oppose German-American’s proposal, GOCO would pay the debt it owed Petrey Wholesale first from any proceeds GOCO received in resolution of its dispute with German-Ameriean. According to the plaintiffs, Carroll also represented to Warren Jackson that “a successful resolution of the German-Ameriean dispute would result in the 15 stores and any net settlement proceeds being available assets for the benefit of CJJ under the terms of Carroll’s prior representations and agreements.” The plaintiffs contend that, based on Carroll’s assurances, Petrey Wholesale did not accept German-American’s offer to pay GOCO’s debt.

In October 2001, Carroll and GOCO settled their dispute with German-American. As a result, GOCO held a clear and unencumbered title to the 15 convenience stores. In addition, GOCO received a lump-sum payment in cash. However, GOCO did not use the cash to pay Petrey Wholesale the $892,782 it owed, nor did Carroll pay any of the settlement proceeds to CJJ. Furthermore, Carroll did not transfer to CJJ ownership of the 15 convenience stores now owned by GOCO. Instead, according to the plaintiffs, Carroll represented to Warren Jackson that, if Petrey Wholesale would dismiss its claims against Richardson and Happy Stores, Richardson would relinquish his ownership share in GOCO to Carroll, thereby vesting 100% ownership of GOCO in Carroll. Carroll also allegedly stated that he would then sell the 15 convenience stores, pay Petrey Wholesale from the sales proceeds, and deliver the remaining portion of the sales proceeds to CJJ. In reliance on Carroll’s representations, Petrey Wholesale dismissed its action against Richardson and Happy Stores. Richardson transferred his ownership of GOCO to Carroll, thus vesting 100% of GOCO in Carroll. Carroll did not, however, sell the 15 convenience stores and remit the proceeds to CJJ. Petrey Wholesale sued GOCO for the $892,782 GOCO allegedly owed Petrey Wholesale. In addition, Petrey Wholesale sued Carroll alleging that he breached the fiduciary duties he owed Petrey Wholesale as an officer and director of Petrey Wholesale, that he breached his employment contract with Petrey Wholesale, that he breached the Sam Carroll Family Agreement, and that he breached his bonus compensation agreement with Petrey Wholesale.

In April 2004, Carroll sold 9 of the 15 convenience stores to P & C Grocers, Inc., an entity owned and controlled by Carroll’s family. The plaintiffs claim that Carroll, GOCO, and P & C Grocers defrauded them and conspired against them regarding the sale of the nine stores. The plaintiffs contend that “[i]n connection with the closing of the sale to P & C Grocers, Carroll, GOCO and P & C Grocers created a false and fraudulent closing statement purporting to evidence the receipt and disbursement of sales proceeds in excess of $4,300,000 by virtue of which more than $1,300,000 was diverted from Petrey [Wholesale] and CJJ, to which the proceeds belonged.”

The plaintiffs also contend that Carroll had acquired an interest in and employment with Mott Oil Co., a company also engaged in the convenience-store business. According to the plaintiffs, this arrangement violated Carroll’s agreement with Bill Jackson and Warren Jackson that he would present all convenience-store-related opportunities to CJJ and that Carroll’s interest in and earnings from any convenience-store-related business belonged to CJJ. According to the plaintiffs, Mott Oil paid Carroll in excess of $100,000 per year, and Carroll failed to remit those funds to CJJ.

Bill Jackson and Warren Jackson alleged that Carroll committed fraud because, they assert, they guaranteed a loan by which Mott Oil purchased nine convenience stores from Pro Marketing, LLC, of which CJJ owned a 49% interest, based on Carroll’s representations that Carroll owned a 50% share of Mott Oil, which the plaintiffs allege was false, and that the transaction was in the plaintiffs’ best interests.

II, The Shareholders Agreement The shareholders agreement, which contains the arbitration clause upon which Carroll and GOCO rely, (1) restricts the transfer of CJJ stock to third parties; (2) provides a procedure for buying or selling shares of CJJ stock among the existing shareholders (Carroll, Bill Jackson, and Warren Jackson); (3) allows CJJ or another shareholder to purchase the shares of a CJJ shareholder upon the involuntary encumbrance of such shares; (4) eliminates the right of a shareholder to appoint a proxy to vote his shares; (5) requires a specific endorsement on each CJJ stock certificate; (6) avoids any transfer of shares made in contravention of the terms of the agreement; (7) provides the parties with the remedy of specific performance for a breach of the agreement; and (8) entitles CJJ and the shareholders to indemnification from any litigation arising out of or relating to the shareholders agreement. Thus, the substance of the shareholders agreement is the disposition of shares of CJJ stock. It also provides indemnification for CJJ and CJJ’s shareholders and prohibits voting by proxy.

III. Relation of the Underlying Disputes to the Shareholders Agreement

The trial court concluded that “the lawsuit does not involve, either directly or indirectly, any claim of a violation of the Shareholders Agreement, the disposition of shares in CJJ, or the breach of any duties or limitations created by the Shareholders Agreement or implied by law merely as a result of Sam Carroll’s status as a CJJ shareholder.”

The plaintiffs argue that the shareholders agreement does not relate to then-disputes because they do not claim a breach of the shareholders agreement, because the shareholders agreement is not mentioned anywhere in the complaint, because they do not have to rely on the shareholders agreement to support their claims, because their disputes will not affect the validity of the shareholders agreement, and because neither the articles of incorporation of CJJ nor its bylaws reference the shareholders agreement or an arbitration clause.

Carroll and GOCO allege that the plaintiffs’ disputes relate to the shareholders agreement in that the complaint contends that Carroll is responsible for 40% of all operating and investment costs of CJJ and is entitled to 40% of the profits of CJJ, while Bill Jackson and Warren Jackson are each responsible for 30% of the operating and investment costs of CJJ and entitled to 30% of CJJ’s profits. The shareholders agreement does provide that Carroll has 400 shares of CJJ stock and Bill Jackson and Warren Jackson each have 300 shares of CJJ stock. Thus, Carroll owns 40% of CJJ and Bill Jackson and Warren Jackson each own 30% of CJJ. However, the shareholders agreement does not address the expenses and profits upon which Carroll and GOCO premise their argument. The shareholders agreement instead addresses the transfer of shares of stock in CJJ and the capitalization of CJJ. We also note that “[a] corporation is generally regarded as a legal entity separate from its directors, officers, and shareholders; therefore, those persons are generally not individually liable for the debts of the corporation.” Ex parte AmSouth Bank of America, 669 So.2d 154, 156 (Ala.1995). Carroll and GOCO’s contention that the complaint refers to the shareholders agreement because it refers to a 40/30/30 split of costs and profits is, therefore, not convincing.

In this case, the arbitration clause reads: “The parties agree that any disputes directly or indirectly relating to this Agreement which cannot be resolved by the parties after good faith negotiations shall be submitted to binding arbitration.... ” Although, “[t]his Court has repeatedly stated ‘ “that the words ‘relating to’ in the arbitration context are given a broad construction,” ’ ” Serra Chevrolet, 891 So.2d at 847 (quoting other cases), to come within the arbitration clause the dispute must relate to the shareholders agreement. The shareholders agreement places a limit on the disputes it reaches.

We agree with the trial court’s conclusion that the plaintiffs’ disputes do not relate to the shareholders agreement. The arbitration clause in the shareholders agreement provides that the parties agree to arbitrate “any disputes directly or indirectly relating” to the shareholders agreement. Although the Court is to give the arbitration clause a broad construction, the plaintiffs’ disputes must relate, at least indirectly, to the shareholders agreement before the plaintiffs can be compelled to arbitrate the disputes. We cannot conclude that the trial court erred in concluding that the plaintiffs’ claims fell outside the ambit of the shareholders agreement.

The plaintiffs’ disputes stem from agreements between them and Carroll and statements that Carroll had made with and to the plaintiffs concerning Carroll’s subsequent eonvenience:store-related opportunities and investments, none of which, even indirectly, relate to the disposition of shares of CJJ stock. Comparing the nature of the disputes asserted by the plaintiffs to the shareholders agreement supports the plaintiffs’ contention that those disputes do not relate, either directly or indirectly, to the shareholders agreement. Thus, the plaintiffs’ disputes are outside the scope of the arbitration clause.

Conclusion

The trial court correctly found that the plaintiffs’ disputes fall outside the scope of the shareholders agreement that contains the arbitration clause and, therefore, that Carroll and GOCO cannot compel the plaintiffs to arbitrate their claims. We affirm the trial court’s order denying Carroll and GOCO’s motion to compel arbitration.

AFFIRMED.

NABERS, C.J., and HARWOOD, STUART, and BOLIN, JJ., concur.

      . In addition, the shareholders agreement eliminates the right of a shareholder to appoint a proxy to vote his shares, requires a specific endorsement on each CJJ stock certificate, avoids any transfer made in contravention of the terms of the shareholders agreement, provides the parties with the remedy of specific performance for a breach of the agreement, and entitles CJJ and its shareholders to indemnification in certain situations.

      . P & C Grocers did not file a motion to compel arbitration.

      . In November 2004, SouthTrust Corporation merged with Wachovia Corporation.

      . In December 2001, GOCO dismissed its voluntary bankruptcy petition.

      . In September 1998,. Carroll executed the Sam Carroll Family Agreement with Petrey Wholesale and CJJ. The Sam Carroll Family Agreement provided that Carroll would " 'devote such time, energy and efforts as are deemed necessary to further the business’ of Petrey [Wholesale] and CJJ.”

      . The trial court’s order indicates that the trial court placed the burden on Carroll and GOCO to show that the plaintiffs’ claims fell within the shareholders agreement, instead of placing the burden on the plaintiffs to show that their claims fell outside of the shareholders agreement ("Despite the conclusory statements of [Carroll and GOCO] to the contrary, [Carroll and GOCO] have failed to carry their burden of establishing that the arbitration clause at issue covers the disputes before the court.’’). However, Carroll and GOCO, as the movants seeking to compel arbitration, have the burden of showing the existence of a contract that involves interstate commerce and that calls for arbitration. After Carroll and GOCO satisfy this burden, the burden then shifts to the plaintiffs, as the nonmov-ants, to show that the disputes in this case do not relate to the shareholders agreement. See Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala.2000) ("The party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that that contract evidences a transaction affecting interstate commerce. ‘After a motion to compel arbitration has been made and supported, the burden is on the non-movant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.' Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (Ala.1995) (citations and emphasis omitted)). However, our de novo review of the issue indicates that the trial court’s conclusion — that the disputes fall outside the shareholders agreement — was nonetheless correct. We can affirm a trial court’s judgment for any reason, even one not contemplated by the trial court. See Turner v. Westhampton Court, L.L.C., 903 So.2d 82, 88 (Ala.2004) ("This Court can affirm a trial court's judgment for any reason, but only if the record on appeal evidences the fact that is the basis for the affirmance.” (citing Ex parte Ryals, 773 So.2d 1011, 1013 (Ala.2000))).