author: RANDOLPH, Justice, KING, Justice,

text:
    LEMON DROP PROPERTIES, LLC v. PASS MARIANNE, LLC and Alfonso Realty, Inc. (d/b/a Coldwell Banker Alfonso Realty, Inc.)
    No. 2010-IA-00883-SCT.
    Supreme Court of Mississippi.
    Oct. 20, 2011.

      Stephen Walker Burrow, James H. Col-mer, Jr., Pascagoula, Ann M. Halphen, attorneys for appellant.
    Gail D. Nicholson, Chester D. Nicholson, Gulfport, attorneys for appellees.
   RANDOLPH, Justice,

for the Court:

¶ 1. This interlocutory appeal proceeds from an order of the Circuit Court of Harrison County, Mississippi, First Judicial District, which granted the “Motions to Compel Arbitration” of Pass Marianne, LLC (“Pass”) and Alfonso Realty, Inc. (“Alfonso”). On appeal, this Court considers (1) whether Pass waived its right to arbitration, and (2) whether a principal’s waiver of its contractual right to arbitrate operates to waive that right for its agent.

FACTS AND PROCEDURAL HISTORY

¶ 2. In 2005, Pass entered into a contract with Carl E. Woodward, LLC (“Woodward”) for the construction of a new condominium development, Pass Marianne Condominiums, in Pass Christian, Mississippi. On February 8, 2005, Pass and Lemon Drop Properties, LLC (“Lemon Drop”) entered into a “Preconstruction Sales and Purchase Agreement” (“Agreement”) for Unit No. 209 within the Pass Marianne Condominiums. Regarding Alfonso, the Agreement provided that:

[e]ach party hereby agrees to indemnify and hold the other harmless from and against any liability for any claims of any broker claiming by, through or under it. SELLER has not listed this property with any real estate firm, however on certain transactions, [Alfonso] has represented the SELLER. SELLER’S agent with respect to those specific transactions is [Alfonso], which represent the SELLER and IS NOT a Buyer’s agent and Buyer acknowledges that he is a “customer’’ of Realtor. The real estate agency disclosure form may be attached hereto as if a real estate broker was a part of this transaction. PURCHASER ALSO ACKNOWLEDGES THAT THE PRINCIPALS OF [PASS] ARE LICENSED REAL ESTATE BROKERS AND ARE, IN ALL CASES, REPRESENTING THEMSELVES AND [PASS]. WHEN EITHER ALFONSO AND/OR RETCH-INGS PRESENTED THE PROJECT TO A POTENTIAL PURCHASER AND OBTAINED THE RESERVATION AGREEMENT OR THIS CONTRACT OR ANY OTHER AGREEMENT, THE AFOREMENTIONED ALFONSO AND RETCHINGS WERE ACTING IN THEIR CAPACITY AS THE SELLER AND NOT AS A LICENSED REAL ESTATE BROKER.

(Emphasis added.) The Agreement also contained the following provision:

ARBITRATION. It is agreed that the subject matter of this Agreement substantially involves interstate commerce. Any disagreement or question between the parties which shall arise out of this Agreement, its breach or otherwise related to the development shall be submitted to arbitration under the Rules of the American Arbitration Association or as the parties may later agree in writing. The arbitration decision shall be binding on both parties. The parties renounce all right to take legal action except to enforce any arbitration award, which award shall be a condition precedent to any right of legal action that either party may have against the other.

¶ 3. Because of Hurricane Katrina, construction of the Pass Marianne Condominiums was not completed until 2007. On October 3, 2007, Pass executed a warranty deed conveying Unit No. 209 to Lemon Drop, and Woodward furnished a “Warranty of Completion of Construction” to Lemon Drop.

¶ 4. On October 28, 2008, Lemon Drop filed a Complaint in the circuit court against Pass and Woodward, which sought, inter alia, rescission of the Agreement due to alleged defects in design and construction. The Complaint failed to attach a copy of the Agreement. See Miss. R. Civ. P. 10(d) (“[w]hen any claim or defense is founded on an account or other written instrument, a copy thereof should be attached to or filed with the pleading unless sufficient justification for its omission is stated in the pleading.”).

¶ 5. On December 22, 2008, Pass filed its Answer, along with a cross-claim against Woodward for fraud, defamation, and breach of contract. The pleading requested a jury trial and did not invoke an arbitration plea against Lemon Drop. On March 6, 2009, Pass joined in an agreed “Order Setting Trial Date.” Subsequently, Pass propounded and responded to written discovery requests with both Lemon Drop and Woodward.

¶ 6. On June 5, 2009, Lemon Drop filed a “Motion to Amend Complaint,” seeking to add Alfonso as a defendant. In response to Lemon Drop’s “Motion to Amend Complaint,” Pass pleaded the following:

[wjhile it is still the preference of [Pass] to proceed in Court consistent with the Cross-Claim of [Pass] against [Woodward], in the event that either the pending Motion to Compel Arbitration filed by [Woodward] or the Motion to Bifurcate or Sever Cross-Claim filed by [Lemon Drop] is granted then, and only then, [Pass] would assert their contractual right to arbitration of any claims of [Lemon Drop] as to [Pass].

(Emphasis added.) Thereafter, the circuit court granted Woodward’s “Motion to Compel Arbitration” as to Pass’s cross-claim against Woodward.

¶ 7. On August 27, 2009, after the circuit court granted the “Motion to Amend Complaint,” Lemon Drop filed its “First Amended Complaint,” which named Pass, Woodward, and Alfonso as defendants. Multiple claims were asserted against Alfonso which related to, and arose out of, the transaction.

¶ 8. On September 11, 2009, Pass filed its “Answer; Affirmative Defenses; and Motion to Compel Arbitration” in response to the “First Amended Complaint.” On September 30, 2009, approximately one month after the “First Amended Complaint” was filed, Alfonso filed its “Answer, Affirmative Defenses and Motion to Compel Arbitration.” Alfonso asserted that, because it had acted as Pass’s agent, any claim against Alfonso would be subject to the Agreement’s arbitration provision.

¶9. Following a hearing, the parties were ordered to participate in good-faith mediation. After mediation proved unsuccessful, the circuit court entered an order which granted the “Motions to Compel Arbitration” filed by Pass and Alfonso, concluding that as “[tjhere has been no ‘unreasonable delay’ coupled with ‘active participation’ or any factors which have combined to waive its enforcement[,]” the arbitration provision “is valid and binding upon the parties.”

¶ 10. Thereafter, Lemon Drop filed a petition for permission to file an interlocutory appeal, which was granted.

ISSUES

¶ 11. This Court will consider:

(1) Whether Pass waived its right to arbitration.
(2) Whether Alfonso, acting as Pass’s agent, has a right to compel arbitration.

ANALYSIS

I. Whether Pass waived its right to arbitration.

¶ 12. This Court has held that the right to compel arbitration can be waived where a party “actively participates in a lawsuit or takes other action inconsistent with the right to arbitration[,]” which “substantially invokes the judicial process to the detriment or prejudice of the other party.” MS Credit Ctr., Inc. v. Horton, 926 So.2d 167, 179 (Miss.2006) (citations omitted).

¶ IB. In the case sub judice, Pass answered the original Complaint, but failed to assert arbitration as an affirmative defense, and instead demanded a jury trial. Thereafter, Pass joined in an agreed “Order Setting Trial Date” and engaged in discovery. Although the Complaint should have attached a copy of the Agreement, the absence thereof did not excuse Pass’s failure to demand arbitration, since Pass acknowledged that its “closing attorney had all contracts of units which had closed in storage.” See Miss. R. Civ. P. 10(d). Two-hundred-and-fifty-two (252) days after the Complaint was filed, Pass attempted to invoke a contingent affirmative defense of mandatory arbitration, dependent upon further rulings of a court, which is inconsistent with claiming an absolute right to arbitrate. See supra ¶ 6. Thus, Pass’s participation in, and invocation of, the judicial process vis-a-vis arbitration was inconsistent with timely invocation of the arbitration process. This Court has held that:

when a party, with full knowledge of the existence of an arbitration clause in the contract which is the subject matter of the litigation, makes a conscious decision to proceed with responding to the lawsuit, demanding a jury trial, and invoking discovery only to thereafter invoke the arbitration clause, that party does so at its own peril....

In re Tyco Int’l (US) Inc., 917 So.2d 773, 780 (Miss.2005). Accordingly, under the facts presented, Pass waived its right to compel arbitration.

II. Whether Alfonso, acting as Pass’s agent, has a right to compel arbitration.

¶ 14. Lemon Drop first argues that Alfonso has no right to compel arbitration as a nonsignatory. But under the Agreement, Alfonso is Pass’s express agent. See supra ¶ 2 (Alfonso “represents] the SELLER and IS NOT a Buyer’s agent....”). “An express agent is one who is ‘in fact authorized by the principal to act on their behalf.’ ” McFarland v. Entergy Miss., Inc., 919 So.2d 894, 902 (Miss.2005) (citation omitted). Consistent with Mississippi law and the law of other states, Alfonso, as Pass’s agent, had the right to compel arbitration based on the Agreement between Pass and Lemon Drop. See Garcia v. Huerta, 340 S.W.3d 864, 869 (Tex.App.2011) (“[t]he scope of an arbitration agreement may be extended to claims against agents of the principal when all the agents’ allegedly wrongful acts relate to their behavior as agents of the principal signatory company, and those acts were within the scope of the claims covered by the arbitration provisions for which the principal would be liable.”) (citation omitted); Kiskadee Commc’ns (Bermuda), Ltd. v. Father, 2011 WL 1044241, at *5 (N.D.Cal. March 22, 2011) (“agents of a signatory can compel the other signatory to arbitrate so long as (1) the wrongful acts of the agents for which they are sued relate to their behavior as agents or in their capacities as agents ... and (2) the claims against the agents arise out of or relate to the contract containing the arbitration clause ....”) (citations omitted); Sawyers, 26 So.3d at 1088 (quoting B.C. Rogers Poultry, Inc. v. Wedgeworth, 911 So.2d 483, 491-92 (Miss.2005)) (“[a] non-signatory should have standing to compel arbitration where the non-signatory has a close legal relationship, such as, alter ego, parent/subsidiary, or agency relationship, with a signatory to the agreement.”); Amisil Holdings Ltd. v. Clarium Capital Mgmt., 622 F.Supp.2d 825, 832 (N.D.Cal.2007); Arnold v. Arnold Corp., 920 F.2d 1269, 1282 (6th Cir.1990).

¶ 15. Lemon Drop alternatively argues that, even if Alfonso had the right to compel arbitration, Pass waived that right. But this Court previously has rejected the proposition “that one defendant may waive [a] defense on behalf of all defendants.” Am. Family Life Assurance of Columbus v. Ellison, 4 So.3d 1049, 1052 (Miss.2009). In Ellison, the plaintiff filed a complaint against AFLAC and two of its agents, in their individual and corporate capacities, for breach of the duty of good faith and fair dealing. See id. at 1050. In its answer, AFLAC “asserted improper venue as one of its affirmative defenses.” Id. The two agents filed a separate answer, but “failed to raise the defense of improper venue and, thus, waived it.” Id. at 1050-51. Yet this Court recognized that the defense of improper venue was a personal defense that did not belong to one defendant exclusively, such that the agents’ waiver did not waive the defense for AFLAC. See id. at 1051-52.

¶ 16. The same logic is controlling in this case. Pass’s waiver is not imputed to Alfonso. We previously have stated that arbitration pertains to forum. See Covenant Health & Rehab. of Picayune, LP v. Estate of Moulds, 14 So.3d 695, 697 (Miss.2009). Moreover, arbitration is in the nature of an affirmative defense. See Miss. R. Civ. P. 8(c). As arbitration is a forum-related defense (i.e., an appropriate venue), emanating from arbitration law and provided for contractually in this case, a demand to arbitrate must be timely raised. The “Motion to Compel Arbitration” filed by Alfonso is akin to the Rule 12(b)(3) motion to transfer venue at issue in Ellison. See Ellison, 4 So.3d at 1050 (“the question presented is whether the trial court abused its discretion when it denied the defendant’s motion to transfer venue.”). Stated succinctly, both a motion to compel arbitration and a motion to transfer venue challenge the forum where the dispute should be resolved. Furthermore, a motion to compel arbitration is no less personal than a motion to transfer venue. The decision to exercise the right to arbitrate, vel non, is often made for strategic reasons consistent with the client’s best interests (e.g., familiarity with local courts; lack of discovery, without permission, in arbitration; the reputation of client and counsel in the community; cost considerations; preference for a jury trial as opposed to a decision rendered by arbitrator(s); etc.). Such strategy considerations undeniably are personal and may differ as between the principal and agent. In Ellison, AFLAC was not bound by its agent’s decisions, strategic or otherwise, resulting in the agents’ waiver of the venue defense. See id. at 1049, 1052. Therefore, Pass’s waiver is not imputed to Alfonso.

¶ 17. Although this is a matter of first impression for this Court, recent decisions in other states support the same conclusion. The only courts faced with this identical question have enforced arbitration agreements pleaded by nonsignatory agents for alleged wrongful acts related to their behavior as agents, holding that the principal’s waiver of its right to arbitrate did not operate as a waiver of the agent’s right to arbitrate under the same agreement. See Garcia, 340 S.W.3d at 869-70; Kiskadee Commc’ns, 2011 WL 1044241, at *6. In Garcia, the plaintiffs “asserted that [the principal’s] express waiver ... must be imputed to Garcia because he acted as [a nonsignatory] agent of [the principal], and his right to arbitration was therefore derivative of [the principal].” Garcia, 340 S.W.3d at 869-70. But the Texas appellate court rejected that assertion, determining that “[t]he [plaintiffs] cite no authority for this proposition, and we cannot agree that one party’s waiver of the right to arbitration can be imputed to another.” Id. at 870 (emphasis added). See also Kiskadee Commc’ns, 2011 WL 1044241, at *6 (“[p]laintiff reasons that [defendant-agents] should be bound by [the principal’s] alleged waiver of the arbitration clause because ‘[j]ust as acts of an agent within the scope of the agent’s powers bind his principal as a matter of law, acts of the principal are equally binding on the agent.’ Plaintiff, however, does not cite any legal authority for this proposition. On the contrary, ‘[a] principal cannot bind its agent.’ Accordingly, [the principal’s] alleged waiver of the arbitration clause could not bind the [defendant-agents].”) (citation omitted) (emphasis added). Like the plaintiffs in Garcia and Kiskadee Communications, Lemon Drop has failed to cite any legal authority to support the contention that Pass’s waiver should bind Alfonso.

¶ 18. Given the presumption against the waiver of arbitration, and Alfonso’s prompt “Motion to Compel Arbitration” after Lemon Drop filed its “First Amended Complaint,” there can be no dispute that Alfonso timely and properly asserted its arbitration rights. See Horton, 926 So.2d at 179-80.

CONCLUSION

¶ 19. While Pass waived its right to compel arbitration, that waiver is not imputed to its agent, Alfonso. As there is no evidence of waiver by Alfonso, it should be entitled to proceed in arbitration. Therefore, as to Alfonso, the order of the Circuit Court of Harrison County granting arbitration is affirmed. But regarding Pass, the order of the Circuit Court of Harrison County granting arbitration is reversed and remanded for further proceedings consistent with this opinion.

¶ 20. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., LAMAR, CHANDLER AND PIERCE, JJ„ CONCUR. KING, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, J.

KING, Justice,

concurring in part and dissenting in part:

¶ 21. I concur with the Majority’s result that Pass waived its contractual right to compel arbitration. However, I dissent from the Majority’s holding that Pass’s waiver of arbitration does not operate as a waiver of its agent’s right to arbitrate. I agree that Alfonso does have the right, as an express agent of Pass, to compel Lemon Drop into arbitration based on the agreement between Pass and Lemon Drop. Sawyers v. Herrin-Gear Chevrolet Co., Inc., 26 So.3d 1026, 1037 (¶ 32) (Miss.2010) (citations omitted). Even so, in recognition of the application of agency principles, I respectfully dissent to the Majority’s conclusion that Pass’s waiver of arbitration is not imputed to Alfonso.

¶ 22. The Majority has held that American Family Life Assurance of Columbus v. Ellison, 4 So.3d 1049, 1052 (¶¶ 11-13) (Miss.2009), is applicable to the instant case, and a particular defendant cannot waive a defense on behalf of all defendants. I do not find Ellison applicable. In Ellison, Ellison filed a complaint against AFLAC and two agents, in their individual and corporate capacities, for a breach of duty of good faith and fair dealing. Id. at 1050 (¶ 2). AFLAC filed its answer and asserted improper venue as one of its affirmative defenses. The two agents filed a separate answer, but “failed to raise the defense of improper venue and, thus, waived it.” Id. at 1051 (¶ 11).

¶ 23. The instant case is distinguishable from Ellison. The complaint does not specify that Alfonso is being sued in its individual capacity, and if the claims were against Alfonso in its individual capacity, the arbitration agreement would not apply. “A third party who is a non-signatory to a contract should not be able to enforce an arbitration agreement ... where there is no alter ego, parent/subsidiary, agency, or other form of close legal relationship alleged....” Sawyers, 26 So.3d at 1039 (¶ 32) (citation omitted).

¶ 24. In Ellison, this Court recognized that the defense of improper venue was a personal defense that did not belong to one defendant exclusively. Id. at 1051 (¶ 11). Thus, this Court held that the agents’ waiver of venue did not waive the defense for AFLAC. Id. The Majority applies the holding from Ellison and states that “a motion to compel arbitration is no less personal than a motion to transfer venue.” (Maj. Op. at ¶ 16). In seeking to support its position with Ellison, the Majority fails to realize that, under the facts of Ellison, any other holding would be completely contrary to agency law. While it is true that an agent may bind his principal, that does not apply where the principal has clearly, and in advance, adopted a contrary position. Northlake Dev. L.L.C. v. Bank-Plus, 60 So.3d 792, 796 (¶ 13) (Miss.2011).

¶ 25. The right to arbitrate is purely contractual. Qualcomm Inc. v. American Wireless License Group, LLC, 980 So.2d 261 (Miss.2007). Pass’s contractual right to arbitration was extended to Alfonso, only as an agent of Pass. Accordingly, Alfonso’s right to arbitration is not a personal defense and should be governed according to the principles of agency.

¶ 26. “[A]n agent is one who stands in the shoes of his principal; he is his principal’s alter ego ...” Aladdin Constr. Co., Inc. v. John Hancock Life Ins. Co., 914 So.2d 169, 175 (¶ 10) (Miss.2005) (citation omitted). Pass waived its right to invoke arbitration. Thus, Alfonso, stepping into the shoes of Pass, had no right to assert a separate right to arbitration for actions taken solely as the agent of Pass, where Pass had chosen to waive that right.

¶ 27. The Majority seems to suggest that a motion to compel arbitration and a motion to transfer venue are so similar that they must be treated the same. That view is overly simplistic. Arbitration is a matter of contractual agreement, while venue is not. Venue refers solely to the forum in which the dispute is to be resolved. Blacldedge v. Scott, 530 So.2d 1363, 1365 (Miss.1988). By way of example; the question of whether a dispute is one which is properly tried in the Circuit Court of Panola County rather than the Circuit Court of Harrison County is determined by statute. See Miss.Code Ann. § 11-1-3 (Rev.2004). However, no matter where the proper venue lies, the process is the same. That process includes the application of the Rules of Civil Procedure, the application of the Rules of Evidence, the right to have matters of fact determined by a jury which is representative of the community, the right to have questions of law resolved by a judge, and, perhaps most important, the right to appeal any adverse decision. Arbitration not only changes the forum in which the dispute is to be resolved, it also changes these and other rights.

¶ 28. For the aforementioned reasons, I dissent to the Majority’s conclusion that Pass’s waiver of arbitration is not imputed to Alfonso. I would hold that Pass waived the right for both itself and its agent, Alfonso.

KITCHENS, J., JOINS THIS OPINION.

      . Lemon Drop attached the Agreement to this pleading.

      . For instance, Lemon Drop maintained a claim against Alfonso for failure to furnish "the statutorily required Seller's Disclosure Statement.” See Miss.Code Ann. §§ 89 — 1— 501 to -525 (Rev. 1999). According to Lemon Drop, had that disclosure statement been provided:
      the defects in the Project now alleged by [Pass] to exist within the Project and the Property would have been disclosed before the October 3, 2007 closing. Had [Lemon Drop] know[n] in advance of these defects or other construction "problems” as alleged by [Pass] in its August 2007 complaint against Woodward, it would not have closed on die purchase of Unit 209.
      Moreover, Lemon Drop asserted that Alfonso "knew about the alleged defects and poor workmanship in the construction of the Project and Property on and before October 3, 2007[,]” but failed to "fully and completely disclose” all such defects.

      .This Court has stated that there is "but one procedure for this Court’s review of a trial court's grant or denial of a motion to compel arbitration, and that one procedure shall be via a direct appeal pursuant to the provisions of Mississippi Rules of Appellate Procedure 3 & 4.” Sawyers v. Herrin-Gear Chevrolet Co., Inc., 26 So.3d 1026, 1032 (Miss.2010).

      . The separate opinion agrees with this proposition. (Sep. Op. at ¶ 21) ("I agree that Alfonso does have the right, as an express agent of Pass, to compel Lemon Drop into arbitration based on the agreement between Pass and Lemon Drop.”).

      . In critiquing this Court’s analysis as “overly simplistic[,]” the separate opinion contends that "[ajrbitration is a matter of contractual agreement, while venue is not.” (Sep. Op. at ¶ 27). Titan Indemnity Company v. Hood, 895 So.2d 138 (Miss.2004), dispels that notion. There, this Court held a forum-selection clause that provided for "exclusive personal jurisdiction and venue ... in Bexar County, Texas" to be "binding and enforceable.” Id. at 146, 151 (emphasis added). See also Long Beach Auto Auction, Inc. v. United Sec. Alliance, Inc., 936 So.2d 351, 355 (Miss.2006) ("[f]orum selection clauses are 'presumptively valid and enforceable' _”) (citation omitted).

      . By analogy, had the statute of limitations been at issue and not raised by the principal, we would not impute that waiver to the subsequently sued agent, denying him the opportunity to bring forth such a defense as to the claim(s) against him.

      . The separate opinion’s reliance upon Aladdin Construction Company v. John Hancock Life Insurance Company, 914 So.2d 169, 175 (Miss.2010), for maintaining that Pass’s waiver of its right to invoke arbitration precludes Alfonso from ”assert[ing] a separate right to arbitration for actions taken solely as the agent of Pass” because Alfonso ”stepp[ed] into the shoes of Pass[,]” is misplaced, as Aladdin is plainly distinguishable. (Sep. Op. at ¶ 26). Aladdin Construction did not involve the contractual right to arbitrate or any waiver thereof. See Aladdin Construction, 914 So.2d at 169. Rather, Aladdin Construction dealt only with the application of general agency-law principles in the context of a construction contract. See id.

      .Nor does the separate opinion.

      . In an effort to camouflage its overly simplistic analysis, the Majority takes out of context my view of venue. (Maj. Op. at n. 5). If the Majority wishes to quote, it should do an appropriate quote which places the statement in context. Such a quote would be:
      Arbitration is a matter of contractual agreement, while venue is not. Venue refers solely to the forum in which the dispute is to be resolved. Blacldedge v. Scott, 530 So.2d 1363, 1365 (Miss.1988). By way of example; the question of whether a dispute is one which is properly tried in the Circuit Court of Panola County rather than the Circuit Court of Harrison County is determined by statute. See Miss.Code Ann. § 11-1-3 (Rev.2004).
      While venue may be subject of a contractual agreement, contrary to the suggestion of the Majority, venue is generally not a matter of contract.

      . The Majority notes this issue to be a matter of first impression in this State, and then states the lack of authority to support the separate opinion. (Maj. Op. at n. 8). Any reader can note that the only authorities which the Majority cites are nonbinding decisions from other jurisdictions. These decisions are doubtlessly just as wrong.


source: Caselaw Access Project

author: LAMAR, Justice, DICKINSON, Presiding Justice,

license: Public Domain

text:
    MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. Teresa Brown DEARMAN.
    No. 2011-JP-00554-SCT.
    Supreme Court of Mississippi.
    Nov. 3, 2011.
    John B. Toney, Darlene Ballard, for attorneys for appellant.
    Teresa Brown Dearman, Wiggins, appel-lee, pro se.
   LAMAR, Justice,

for the Court:

¶ 1. The Mississippi Commission on Judicial Performance recommends that Teresa Brown Dearman, Justice Court Judge for the West District of Stone County, be publicly reprimanded and ordered to pay costs of $100 for attempting to influence another judge in a matter involving Judge Dearman’s friend. Judge Dearman joins the Commission’s recommendations and has admitted to all charges of misconduct. After reviewing the record, we find the recommended sanctions are insufficient. We order that Judge Dearman be suspended from office for thirty days without pay in addition to a public reprimand and costs of $100.

FACTS

¶ 2. The Commission filed a formal complaint against Judge Dearman on January 19, 2011. It alleged that Judge Dearman had violated Canons 1 (charging judges to establish, maintain, and enforce high standards of conduct to uphold the integrity of the judiciary), 2A (charging judges to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary), 2B (charging judges to avoid lending the prestige of their office to advance the private interests of others), and 3B(2) (charging judges to be faithful to the law and not to be swayed by partisan interests), when she initiated a telephone call to Circuit Court Judge Linda L. Nobles of the First Judicial District of Florida on November 5, 2010. The Commission averred that Judge Dearman reached the voice mailbox of Judge Nobles’s judicial assistant, identified herself as a justice court judge in Mississippi, and recommended that Judge Nobles set bond for a criminal defendant, a longtime friend. It further averred that Judge Dearman personally guaranteed the defendant’s appearance if Judge Nobles granted the bond. According to the formal complaint, Judge Dearman left her telephone number and requested that Judge Nobles return her call.

¶ 3. Judge Dearman did not answer the formal complaint but entered into an agreed statement of facts and proposed recommendation with the Commission. The agreed statement of facts essentially reiterated the factual averments in the complaint, except that it clarified that Judge Dearman was a friend of the defendant’s family (not the defendant) and that Judge Dearman requested Judge Nobles to call if she had any questions. The agreed statement of facts also set forth that Judge Dearman never spoke directly with Judge Nobles and that Judge Dear-man’s call had no direct effect on the setting of bond, since the bond hearing had been held prior to the phone call. Judge Dearman agreed that her conduct violated Canons 1, 2A, 2B, and 3B(2), and is sanc-tionable under Section 177A of the Mississippi Constitution. Judge Dearman agreed to the sanction of a public reprimand and costs of $100. The Commission and Judge Dearman move this Court to accept the agreed findings of fact and recommendation for discipline.

DISCUSSION

¶ 4. This Court must undertake an independent inquiry of the record, as we are vested with the sole power to impose sanctions in judicial misconduct cases. “In doing so, we will accord careful consideration to the findings of fact and recommendations of the Commission, or its committee, which has had the opportunity to observe the demeanor of the witnesses.” We may “accept, reject, or modify, in whole or in part, the findings and recommendation of the Commission.”

¶ 5. We agree that Judge Dear-man’s conduct violates Canons 1, 2A, 2B, and 3B(2), and is sanctionable under Section 177A of the Mississippi Constitution. Section 177A provides in relevant part that “we may remove from office, suspend, fine or publicly censure or reprimand any justice or judge of this state for ... (b) willful misconduct in office; ... or (e) conduct prejudicial to the administration of justice which brings the judicial office into disrepute.” To be willful under Section 177A, the misconduct must be “done willfully or with gross unconcern and generally in bad faith[.]” And “conduct prejudicial to the administration of justice that brings the judicial office into disrepute” necessarily includes all willful misconduct. But it can also mean actions undertaken through negligence or ignorance.

¶ 6. We agree with the Commission that Judge Dearman’s conduct falls under subsections (b) and (e) of Section 177A, as Judge Dearman allowed her relationship with the defendant’s family to influence her judgment by willfully contacting another jurisdiction on a pending criminal matter. Judge Dearman knew or should have known that such contact and misuse of power is prohibited by the Code of Judicial Conduct. Therefore, we must determine whether the recommended sanction is appropriate.

¶ 7. This Court considers the following six Gibson factors when sanctioning a judge:

(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.

And we have ruled that the “guiding factor in assigning an appropriate sanction is that if it fits the offense, and this is best measured by comparison with sanctions handed down in prior cases for the listed offense.”

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

¶ 8. Judge Dearman has been a justice court judge for six years. The record is silent as to the character of her public service.

2. Whether there is any prior caselaw on point.

¶ 9. The Commission and Judge Dear-man cite four cases that involve justice court judges who tried to use their positions to benefit relatives or friends in pending cases. In Mississippi Commission on Judicial Performance v. Brown, Justice Court Judge A.L. Brown’s son was arrested for driving under the influence (DUI). Judge Brown contacted the judge assigned to his son’s case and the arresting officer and asked for help in dismissing the charge. He also contacted the arresting officer’s supervisor on behalf of his son. Based on Judge Brown’s misconduct, this Court imposed a public reprimand, a $500 fíne, and assessed Judge Brown with costs.

¶ 10. Similarly, in Mississippi Commission on Judicial Performance v. Cole, Judge Cecil Cole used his position as justice court judge to intervene in his grandson’s DUI case. He entered an order reinstating his grandson’s driver’s license until the disposition of the DUI case. After his grandson’s conviction, Judge Cole also approached the Tate County Sheriff in an attempt to have the grandson serve his sentence in the Tate County Detention Facility instead of the state facility. This Court imposed a public reprimand and costs, noting that the case was Judge Cole’s first infraction and that he had cooperated with the Commission and had entered into an agreed statement of facts and proposed recommendation.

¶ 11. And in Mississippi Commission on Judicial Performance v. Thompson, this Court imposed a sanction of a public reprimand and costs upon Judge Rickey Thompson for his misconduct in attempting to talk to another judge about a pending case in which he was familiar with the litigants. In that case, Judge Thompson also instructed the deputy clerk not to send a warrant. In sanctioning Judge Thompson, this Court noted that he had one prior disciplinary action. It also found that his actions did not amount to moral turpitude, as he did not attempt to persuade the judge not to sign the arrest warrant, and the warrant was in fact executed.

¶ 12. But in Mississippi Commission on Judicial Performance v. Brown, this Court removed Justice Court Judge Billy Brown from office and assessed costs for his interference in his son’s domestic-abuse case. Judge Brown ordered the release of his son from jail, arranged to have the case remanded to the file, and threatened his son’s wife. He also contacted the prosecutor and arresting officer, asking them to dismiss the charges. In determining the appropriate sanction, this Court found the case involved multiple instances of misconduct and that Judge Brown previously had been disciplined for similar misconduct. It also found that his conduct involved moral turpitude.

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

¶ 13. Judge Dearman impermissibly attempted to advance the private interests of others in a pending criminal matter and allowed her social relationships to influence her judgment and conduct. Such impropriety erodes the public confidence in our judiciary. While her conduct did not cause any direct harm to the litigants in the Florida case, it undoubtedly causes the public to doubt the integrity and independence of the judiciary.

4. Whether the misconduct is an isolated incident or evinces a pattern of conduct.

¶ 14. This is the second formal disciplinary action taken against Judge Dear-man. This Court recently sanctioned Judge Dearman with a public reprimand, suspension for thirty days without pay, and assessment of costs for numerous, unrelated violations based on misconduct spanning from April 2006 through May 2009. Her conduct in this case occurred in November 2010, only two months after a joint motion for approval of recommended sanctions was signed and filed in this Court in Dearman Z. In light of that fact, we find her conduct in this case evinces a pattern of misconduct.

5. Whether moral turpitude was involved.

¶ 15. This Court has ruled that moral 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.” We also have said that a finding of moral turpitude “must involve some immorality” and must cross the line “from simple negligence or mistake, to willful conduct which takes advantage of a judge’s position for greed or other inappropriate motives.”

¶ 16. While Judge Dearman’s conduct in this case was highly inappropriate, we do not find it involved moral turpitude. We find this case most analogous to Thompson, in which we found no moral turpitude. Judge Dearman’s conduct did not “involve some immorality” nor cross the line “from simple negligence or mistake, to willful conduct which takes advantage of a judge’s position for greed or other inappropriate motives.”

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

¶ 17. We find Judge Dearman’s cooperation with the Commission to be a mitigating factor. However, this is her second formal disciplinary action before this Court. In this case, she willfully violated the Code of Judicial Conduct even though she recently had acknowledged her misconduct in Dearman I.

CONCLUSION

¶ 18. After considering Judge Dear-man’s conduct in light of the Gibson factors, we impose suspension without pay for thirty days, a public reprimand, and costs of $100 upon her. While her conduct is analogous to that in Thompson, in which we imposed only a public reprimand and costs, we find a harsher sentence is warranted in light of her recent misconduct in Dearman I. The Clerk of this Court shall send copies of this opinion and the mandate of this Court to the Chancery Clerk of Stone County, to the Circuit Clerk of Stone County as well as to the Stone County Justice Court Clerk, the County Administrator for Stone County, and the Stone County Board of Supervisors.

¶ 19. STONE COUNTY JUSTICE COURT JUDGE TERESA BROWN DEARMAN SHALL BE SUSPENDED FROM OFFICE FOR A PERIOD OF THIRTY DAYS WITHOUT PAY, EFFECTIVE ON THE DATE OF ISSUANCE OF THIS COURT’S MANDATE; PUBLICLY REPRIMANDED; AND ASSESSED COSTS OF $100. THE PUBLIC REPRIMAND SHALL BE READ IN OPEN COURT BY THE PRESIDING JUDGE OF THE STONE COUNTY CIRCUIT COURT ON THE FIRST DAY OF THE NEXT TERM OF THAT COURT IN WHICH A JURY VE-NIRE IS PRESENT AFTER THE ISSUANCE OF THIS COURT’S MANDATE, WITH JUDGE DEARMAN IN ATTENDANCE.

WALLER, C.J., CARLSON, P.J., RANDOLPH, KITCHENS, CHANDLER, PIERCE AND KING, JJ., CONCUR. DICKINSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION.

DICKINSON, Presiding Justice,

dissenting:

¶ 20. For the reasons stated in my dissenting opinion in Mississippi Commission on Judicial Performance v. McGee, I cannot agree that this Court has authority to order punishment not recommended by the Commission, and I respectfully dissent.

      . In re Anderson, 412 So.2d 743, 746 (Miss.1982).

      . Id.

      . Miss. Comm'n on Judicial Performance R. 10(E).

      . Miss. Const, art. 6, § 177A(b),(e).

      . Miss. Comm’n on Judicial Performance v. U.U., 875 So.2d 1083, 1088-89 (Miss.2004).

      . Miss. Comm'n on Judicial Performance v. Vess, 10 So.3d 486, 489 (Miss.2009).

      . Miss. Comm'n on Judicial Performance v. Buffington, 55 So.3d 167, 169 (Miss.2011) (citations omitted).

      . Miss. Comm'n on Judicial Performance v. Gibson, 883 So.2d 1155, 1158 (Miss.2004), overruled in part by Miss. Comm'n on Judicial Perfonnance v. Boone, 60 So.3d 172 (Miss.2011).

      . Miss. Comm’n on Judicial Performance v. Britton, 936 So.2d 898, 906 (Miss.2006).

      . Miss. Comm'n on Judicial Peiformance v. Brown, 761 So.2d 182, 183 (Miss.2000).

      . Id.

      . Id. at 184.

      . Id. at 186.

      . Miss. Comm'n on Judicial Performance v. Cole, 932 So.2d 9, 10 (Miss.2006), overruled in part by Miss. Comm'n on Judicial Performance v. Boone, 60 So.3d 172 (Miss.2011).

      . Id.

      . Id.

      . Id. at 10, 12.

      . Miss. Comm’n on Judicial Peformance v. Thompson, 972 So.2d 582, 584-85 (Miss.2008), overruled in part by Miss. Comm’n on Judicial Peformance v. Boone, 60 So.3d 172 (Miss.2011).

      . Id.

      . Id. at 588.

      . Id. at 589.

      . Miss. Comm'n on Judicial Peformance v. Brown, 918 So.2d 1247, 1250 (Miss.2005).

      . Id.

      . Id. at 1251, 1255.

      . Id. at 1258.

      . Id.

      . Miss. Comm’n on Judicial Performance v. Dearman (Dearman I), 66 So.3d 112 (Miss.2011).

      . Id. at 114.

      . Gibson, 883 So.2d at 1158.

      . Miss. Comm’n on Judicial Performance v. Roberts, 952 So.2d 934, 942 (Miss.2007).

      . Miss. Comm’n on Judicial Performance v. Vess, 10 So.3d 486, 493 (Miss.2009) (quoting Miss. Comm’n on Judicial Performance v. Gordon, 955 So.2d 300, 305 (Miss.2007)).

      . Roberts, 952 So.2d at 942.

      . Vess, 10 So.3d at 493 (quoting Gordon, 955 So.2d at 305).

      . Mississippi Comm’n on Judicial Performance v. McGee, 71 So.3d 578 (Miss.2011).


author: LAMAR, Justice,

text:
    Scott HARRISON and Mona Harrison v. MAYOR AND BOARD OF ALDERMAN OF the CITY OF BATESVILLE and Memphis Stone & Gravel Company.
    No. 2009-CT-00981-SCT.
    Supreme Court of Mississippi.
    Nov. 3, 2011.

      Paul B. Watkins, Jr., Pope S. Mallette, Oxford, attorneys for appellants.
    Benjamin E. Griffith, Daniel J. Griffith, Cleveland, Robert T. Jolly, E. Patrick Lancaster, Olive Branch, Michael S. Carr, Lauren Webb Carr, attorneys for appel-lees.
   ON WRIT OF CERTIORARI

LAMAR, Justice,

for the Court:

¶ 1. In this certiorari case, we consider whether the Mayor and the Batesville Board of Aldermen (collectively the “Board”) erred in granting a variance to allow mining in an area zoned single-family residential and community business. The Mississippi Court of Appeals found that it had and reversed and rendered. However, its opinion provided little discussion of the applicable zoning ordinance governing variances. That ordinance allows the Board to grant a variance due to “practical difficulties or unnecessary hardships.” While the Batesville Code does not define these terms, this language originated in the 1920s and is used in other jurisdictions. While the law and judicial interpretations from other jurisdictions do not bind us, they are helpful in cases where we have no precedent of our own. Therefore, we look to those jurisdictions to aid us in deciding whether the Board applied the correct legal standard and whether its decision to grant the variance is supported by substantial evidence.

Facts

¶ 2. Memphis Stone & Gravel Company submitted to the Board a variance request to mine sand and gravel from eighteen acres leased from various property owners. This tract of land is zoned single-family residential (R-l) and community business (C-2) and is contiguous with Memphis Stone’s existing plant operation located in the county. Under the Bates-ville Code, mining only can be a conditional (as opposed to permitted) use in areas zoned agricultural and industrial.

¶ 3. In support of its zoning application, Memphis Stone attached maps of the area, promotional materials for the company, and an operations narrative. The operations narrative provided general information on the project and mining process and also provided the following information:

Based on national and local trends it takes approximately 10 tons of aggregate each year for new construction and to maintain our existing infrastructure. The growth in Tate County [sic] demands a good source of local aggregate. Memphis Stone & Gravel Company believes this deposit will be an asset to the local economy and will likely be lost to future residential development if not managed as a resource for construction material.

¶ 4. The variance request was first approved by the City of Batesville Planning Commission. The Planning Commission’s minutes for May 19, 2008, reflect that:

There next came on for consideration the variance request of Memphis Stone and Gravel, to have allowed the mining of sand and gravel in the R-l, Residential, and C-2, Commercial Zones. Alan Parks of Memphis Stone and Gravel gave a presentation concerning the property being leased from the Haire Family and Seale Family located on the west side of Hwy. 35, South. If the variance is allowed, the sand and gravel will be conveyored to the existing wash plant on Hwy. 35, South for processing.

The Planning Commission’s minutes also show that a motion to recommend approval of the variance “carried unanimously.”

¶ 5. Next, the Board held a public hearing on the variance request. The Board’s minutes reflect that “Alan Parks and Bill Kelly of Memphis Stone & Gravel were present and spoke in support of this request. Scott Harrison, Mona Harrison and Bill Joiner (residents in said area) was [sic ] present in opposition to the request.” Without any further discussion reflected in the minutes, the Board voted to take the variance request under advisement until its next regular meeting. The minutes of the next regular meeting reflect that:

Alan Parks of Memphis Stone & Gravel was present and answered questions from the Board regarding said request. Scott Harrison (resident in said area) was present in opposition to the request .... it was ordered that the aforesaid request contained of Memphis Stone & Gravel for a variance for the mining and transportation of sand and gravel in a C-2, Commercial District, and an R-l, Single Family Residential District which request was approved by the City Planning Commission and which variance is necessary in order to avoid practical difficulties or unnecessary hardship on the use and development of said property be and it is hereby approved and said variance is hereby granted in said application.

¶ 6. Thereafter, at its next meeting, a Board member moved to rescind the variance grant, but the motion failed. The member then moved to amend the order granting the variance so that it would include various conditions. Before the Board finalized the conditions, it heard from Paul Watkins, the Harrisons’ attorney. Watkins stated that the Board’s decision to grant a variance would change the character of the land and constitute spot zoning, and that the record before the Board contained no reason for its approval. He asserted that Memphis Stone wanted the variance for financial gain and convenience, which are insufficient to show practical difficulty or unnecessary hardship. Watkins also placed in the record a copy of a letter that he previously had sent the Board. In his letter, Watkins argued the variance would have a negative effect on surrounding property, cause a nuisance, and fail to provide any additional employment or tax base for the City.

¶ 7. The Board also heard from the president of Memphis Stone, who addressed only the proposed conditions, one of which was reclamation of the land to its original state. The president stated that reclamation to the original state was “impossible” since his company would be “taking out 40 to 60 [feet] of material ... there is no way ... to meet the same topography that is there now. I’m going to have to create a lake out there.” Ultimately, the Board upheld the variance with the following conditions: (1) a two-and-one-half-year time limit with review every six months; (2) operations confined to weekdays from 7:00 a.m. to 5:00 p.m.; (B) the erection and construction of berms to screen the project from neighboring property and the road; (4) the watering of objectionable dust; and (5) the imposition of fines for any violations of the conditions.

¶ 8. The Harrisons appealed the variance to the circuit court via a bill of exceptions in compliance with Mississippi Code Section 11-51-75. By agreed order, Memphis Stone was allowed to intervene in the appeal. The circuit court held a hearing and heard arguments from the Harrisons, the Board, and Memphis Stone. The Harrisons argued that substantial evidence did not support the Board’s decision, as Memphis Stone had failed to present any evidence of hardship to the Board. The Harrisons argued that, in order to show hardship, Memphis Stone must submit evidence that a unique condition of the property prevented it from making full use of the land. The Harrisons argued that increased profitability and convenience of location do not establish hardship.

¶ 9. They also argued that the variance can be only a minor deviation from the applicable zoning ordinances to be consistent with the spirit of those ordinances. The Harrisons argued that the variance constituted a major change to the zoning ordinances that could be proper only upon rezoning. Last, they argued that public need was not an appropriate factor for the court to consider.

¶ 10. In response, the Board argued that Memphis Stone had set forth in its operations narrative that ten tons of aggregate is needed for construction and infrastructure and that these minerals would be lost if the land was developed as currently zoned. It also argued that the Board members had visited the existing mine operation in the county to see how it operated and to determine how intrusive it would be if extended into the city. The Board asserted that it had considered the size, character, and location of the land.

¶ 11. Memphis Stone argued that, under the Batesville Code, it was not required to show hardship. It asserted that it only had to show by a preponderance of evidence that it was entitled to a variance. Memphis Stone also argued that, at the reclamation stage, it would fill in the quarry and plant vegetation, and that, within five years or more, the land would be “suitable for any use” and “any type of structures.”

¶ 12. At the conclusion of the hearing, the court took the matter under advisement. It subsequently issued a written order, in which it affirmed the Board’s decision to grant the variance. It found the Batesville Code required proof of “practical difficulties or unnecessary hardship” and that Memphis Stone had provided “ample evidence” to justify the variance. It noted that Memphis Stone had presented “evidence of a public need for a good source of local aggregate and the project would be a good asset for the local community’s economy that will likely be lost to future residential development based on the location of the property.”

¶ 13. Aggrieved by the trial court’s af-firmance, the Harrisons appealed, and the case was assigned to the Court of Appeals. Relying upon our decision, Drews v. City of Hattiesburg, the Court of Appeals reversed and rendered, finding the variance constituted a “classic case of spot zoning.” And “[njotwithstanding that finding, [it went on to] determine whether Memphis Stone proved that there was a public need or a compelling reason for the variance.” It concluded that the record lacked substantial evidence to support a finding of public need or that the variance would be an asset to the local economy. It further found that the record “lacks evidence of any ‘practical difficulty or unnecessary hardship’ ” without any analysis or explanation of those terms. We granted certiorari to clarify the standards that should apply when a zoning ordinance uses the language “practical difficulties or unnecessary hardships” for granting a variance.

Discussion

¶ 14. A variance generally is defined as the “right to use or to build on land in- a way prohibited by strict application of a zoning ordinance.” The grant or denial of a variance is adjudicatory, rather than legislative. In reviewing adjudicatory decisions by zoning boards, we have ruled that:

the burden is upon the applicants to prove by a preponderance of evidence that they have met the elements/factors essential to obtaining the [requested relief]. If the Board’s decision is founded upon substantial evidence, then its is binding upon an appellate court, i.e., the Circuit Court and this Court. This is the same standard of review which applies in appeals from decisions of other administrative agencies and boards.

This Court will reverse only if the decision “1) is not supported by substantial evidence, 2) is arbitrary or capricious, 3) is beyond the scope or power granted to the agency, or 4) violates one’s constitutional rights.” We review questions of law under a de novo standard.

I. Whether the variance resulted in spot zoning.

¶ 15. The Harrisons argue that the variance constitutes spot zoning, as it is a dramatic departure from the current zoning ordinances and favors Memphis Stone to the exclusion of the surrounding property owners. Spot zoning “is ordinarily used where a zoning ordinance is amended reclassifying one or more tracts or lots for a use prohibited by the original zoning ordinance and out of harmony therewith. Whether such an amendment will be held void depends upon the circumstances of each case.” But this definition is not applicable to a variance. However, the Court of Appeals relied on Drews v. City of Hattiesburg, where this Court found “spot zoning” after reviewing the grant of six variances to build a 60,000 square foot medical office in an area originally developed for residential housing. In Drews, we ultimately held the petitioners “failed to present any evidence” to support the six variances, and that the City had “attempted to bypass the safeguards provided by the rezoning process in that the need for a variance must be proven only by a preponderance of the evidence while the need for rezoning must be proven by clear and convincing evidence.” In other words, this Court found the proposed variances were not “minor departures” from the applicable zoning ordinances, and that these departures from use and area requirements could be obtained only through rezoning and not a variance request. Therefore, we found the Board acted beyond its scope or power when it granted the variances.

¶ 16. While this Court used the terminology “spot zoning” in the Drews opinion, we expressly used the term rezoning in the holding. As noted in the learned treatise, Rathkopf's the Law of Zoning and Planning:

The grant of a variance or special exception that has the same effect as a small parcel rezoning cannot be attacked as spot zoning. The distinction lies in the difference between the traditionally legislative process of amending a zoning ordinance and the administrative act of granting a variance or special exception. Neither of the latter two involve a zone change, but are permitted when certain conditions exist.

¶ 17. Therefore, the proper question is not whether the variance is “spot zoning” but whether the Board acted within its scope and power under the applicable zoning ordinances. Connected with that determination is whether substantial evidence supports the Board’s decision to grant the variance.

II. Whether the Board erred in granting Memphis Stone’s variance request.

¶ 18. The Legislature has provided “the governing authority of any municipality” with the power to enact zoning regulations “for the purpose of promoting health, safety, morals, or the general welfare of the community[.]” As previously noted, the Board had zoned the land at issue as single-family residential and community commercial. But Memphis Stone requested a variance to change the use of this zoned area. A “use” variance is one of two types of variances:

With a ‘use’ variance, the owner is allowed to engage in a use of the land prohibited by the zoning ordinance. With a ‘nonuse,’ or ‘area’ variance, the owner must comply with the zoning ordinance’s limitations on use of the land but is allowed to build or maintain physical improvements that deviate from the zoning ordinance’s nonuse limitations.

¶ 19. And this Court noted the distinction in Drews:

Variances were conceived initially as a means for granting relief from height, bulk, and location restrictions in the ordinances which rendered use of the property impossible or impractical. No conceptual problems arise when the variance is granted to authorize minor departures from the terms of the ordinance; e.g. to permit a landowner to place the structure on his lot nearer the lot line than is permitted by the set-back or side-yard requirements. Such relief does not authorize a use inconsistent with the ordinance and, consequently, does not constitute rezoning under the guise of a variance....
On the other hand, serious questions arise when a variance is granted to permit a use otherwise prohibited by an ordinance; e.g., a service station or a quick-stop grocery in a residential district. ■ The most obvious danger is that the variance will be utilized to by-pass procedural safeguards required for valid amendment.

¶ 20. In reviewing the grant of a variance, we start with the governing zoning ordinances. “A city must follow its ordinance when granting [a] variance to a zoning regulation.” The Batesville Code defines “variance” as “[a] grant of permission ... that authorizes the recipient to do that which, according to the strict letter of this appendix, he could not otherwise legally do.” The Batesville Code also provides that the Board may “vary or modify the application of any of the regulations or provisions of the ordinance where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of this ordinance, so that the spirit of this ordinance shall be observed, public welfare and safety secured and substantial justice done.”

¶ 21. The Batesville Code provides no definition or guidelines for determining the meaning of “practical difficulties or unnecessary hardships.” And neither the record nor the Board’s decision provides any insight into what criteria it used to determine the meaning of these terms. The Board simply stated that the “variance is necessary in order to avoid practical difficulties or unnecessary hardship on the use and development of said property be [sic ] and it is hereby approved and said variance is hereby granted in said application.”

¶ 22. While arguably the imposed conditions show the Board’s effort to comply with the “spirit of the ordinance” so that “public welfare and safety secured and substantial justice [be] done[,]” they fail to shed any light upon what “practical difficulties or unnecessary hardships” existed, authorizing the Board to grant the variance. The Board merely provided a conclusion with no findings of fact. As noted by another jurisdiction when reviewing a variance grant, “[findings of fact which show the actual grounds of a decision are necessary for an intelligent review of a quasi-judicial or administrative determination.” Similarly, in Barnes v. Board of Supervisors, this Court ruled that Boards should make findings of fact when granting or denying conditional use permits, which are also quasi-judicial decisions.

¶ 23. Although in Barnes we upheld the Board’s decision despite its failure to make specific findings of fact, we did so because the record clearly supported the Board’s decision. Here, the only “evidence” found in the record before this Court was contained in Memphis Stone’s operations statement: (1) that ten tons of aggregate is needed each year for new construction and to maintain existing infrastructure; (2) that it believes the deposit will be an asset to the local economy; and (3) that the deposit would otherwise be lost to future development.

¶ 24. The Harrisons argue that this does not constitute evidence of hardship, and that nothing in the record shows that the property is unsuitable for the purpose for which it is zoned — residential and light commercial use. They further argue that Memphis Stone failed to show that it would suffer unusual hardship or difficulty greater than any other resident in the city’s R-l and C-2 districts. Conversely, the Board argues that it found the variance would provide a good source of local aggregate and a benefit to the local economy. It also argues that its decision was based on its common knowledge of the land and familiarity with the ordinance.

¶ 25. The language “practical difficulties” and “unnecessary hardships,” as well as other aspects of the Batesville zoning ordinance, originated in a 1920 amendment to the General City Law of New York and the Standard Zoning Act prepared by the Department of Commerce in the 1920s. The 1920 amendment provided that:

Where there are practical difficulties in the way of carrying out the strict letter of such ordinance, the board of zoning appeals shall have the power to vary or modify the application of any of the regulations or provisions of such ordinance relating to the use, construction or alteration of buildings or structures, or the use of land, so that the spirit of the ordinance shall be observed, public safety and welfare secured and substantial justice done.

And the Standard Zoning Act provided that:

To authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done.

¶ 26. While some courts view the terms “practical difficulty” and “unnecessary hardship” as interchangeable, other jurisdictions follow New York’s approach and hold that “practical difficulty” applies to a nonuse or area variance while “unnecessary hardship” applies to a use variance. Jurisdictions that distinguish the two terms among nonuse and use variances do so because “an area variance is a relaxation of one or more incidental limitations to a permitted use and does not alter the character of a district as much as a use not permitted by the ordinance.” Even those jurisdictions that construe “practical difficulties or unnecessary hardships” together apply a more rigorous standard for proving a use variance. Likewise, in Drews, we noted the “serious questions” that arise when a Board grants a use variance rather than a nonuse or area variance and insinuated that a higher burden (e.g., unnecessary hardship) applies to a use variance. Therefore, we follow the New York approach and hold that the phrases “practical difficulty” and “unnecessary hardship” apply to nonuse and use variances respectively, as the applicable zoning ordinance closely follows the 1920 New York amendment. We adopt the following definition for “unnecessary hardship”:

[T]he record must show that (1) the land in question cannot yield a reasonable return if used only for a purpose allowed in that zone; (2) that the plight of the owner is due to unique circumstances [of the land for which the variance is sought] and not to the general conditions in the neighborhood which may reflect the unreasonableness of the zoning ordinance itself; and (3) that the use to be authorized by the variance will not alter the essential character of the locality.

¶ 27. Whether the hardship is self-created is also relevant to the determination of granting or denying a use variance. Similarly, while not determinative of hardship, the Board should consider the fact Memphis Stone entered into these leases with actual or constructive knowledge that the land was zoned R-l and C-2. The Board also must ensure that the variance complies with “the spirit of [the] ordinance” and that “public welfare and safety [be] secured and substantial justice done.” This requirement “limits the authority of the board only with respect to the scope and character of the relief to be granted by way of the variance.”

¶ 28. In reviewing the record in this case, we find no evidence of “unnecessary hardship” as we now define that phrase. We further find the definition for unnecessary hardship does not take into account “public need” as Memphis Stone argues (and the trial court found), but instead focuses on any alleged “public detriment.” Because this is a case of first impression, we vacate the decision of the Court of Appeals and reverse the trial court, remanding the case to the Board so the parties have the opportunity to present it with evidence in compliance with this opinion. Any evidence presented should be made part of the record, and the Board should provide specific findings of fact and conclusions of law to support any decision in this matter.

Conclusion

¶29. We vacate the decision of the Court of Appeals and reverse the trial court and the Board, remanding to the Board for further proceedings consistent with this opinion.

¶ 30. REVERSED AND REMANDED.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR. KING, J., NOT PARTICIPATING.

      . We have used a copy of the Batesville Code attached as an exhibit to the Harrisons' brief, as it is our understanding that this version was in effect at the time the variance was granted. It was effective May 14, 1992. The Board does not contend that this is an incorrect version.

      . Matthew v. Smith, 707 S.W.2d 411, 414 (Mo.1986).

      . The entire leased tract is sixty-five acres, eighteen of which are in the Batesville city limits.

      . R-l districts "are designed primarily to accommodate single-family detached residential uses (other than mobile homes) at medium densities in areas served by public water and sewer facilities. Two-family and multi-family residences are allowed in these districts only in the context of planned residential developments." Batesville, Miss., Code § 301(c).

      .C-2 districts are:
      designed to accommodate commercial development on a scale that is less intensive than that permitted in a C-l district. A lesser intensity of development is achieved through setback, height and minimum lot size requirements that are more restrictive than those applicable to the C-l district. The types of uses permissible in these districts are generally similar to the types permissible in a C-l district, except that additional automobile-oriented businesses (e.g. drive-in banks and restaurants not allowed in the C-l district are permissible in these districts). The C-2 thus may provide transition in some areas between a C-l district and a residential district or may provide for a smaller scale shopping center that primarily serves one (1) neighborhood or area of the city (as opposed to a regional shopping center).
      Batesville, Miss., Code § 302(c).

      . Batesville, Miss., Code § 401.

      . The City of Batesville is located in Panola County, not Tate County.

      .The Batesville Code provides that the "board of appeals” has jurisdiction to grant a variance, and from that decision an appeal is made to the mayor and board of aldermen, who are to make "findings” after a "hearing.” Batesville, Miss., Code § 1205. No party makes any reference to the board of appeals or asserts any error as to the procedure taken in this appeal.

      . Emphasis added.

      . Because the Harrisons agreed to allow Memphis Stone to intervene, we do not address their argument that Memphis Stone should be dismissed as a party to this appeal under our recent decision. City of Jackson v. United Water Servs., Inc., 47 So.3d 1160, 1164-65 (Miss.2010) (ruling that the circuit court was correct in denying a party’s motion to intervene in an appeal under Mississippi Code Section 11-51-75, as no authority exists for granting such a motion filed by a nonagg-rieved party).

      . This information was not included in the record (e.g., the bill of exceptions), and an appellate court can review only evidence contained in the bill of exceptions. Nelson v. City of Horn Lake ex. rel. Bd. of Aldermen, 968 So.2d 938, 946-47(Miss.2007).

      . Memphis Stone does not argue this on appeal.

      . This too was not included in the bill of exceptions, and in fact, directly contradicts the evidence Memphis Stone presented to the Board.

      . Drews v. City of Hattiesburg, 904 So.2d 138 (Miss.2005).

      . Harrison v. Mayor & Bd. of Alderman, 73 So.3d 1169, ¶ 11, (Miss.Ct.App.2010).

      . Id.

      . Id. at ¶ 14.

      . Id. at ¶ 15.

      . Gail Gudder, Rathkopf's the Law of Zoning and Planning, § 58.1 (Thomson/West Aug. 2006).

      . 83 Am. Jur. 2d Zoning and Planning § 749 (Westlaw).

      . Barnes v. Bd. of Sup’rs, DeSoto County, 553 So.2d 508, 511 (Miss.1989).

      . Sprouse v. Miss. Employment Sec. Comm'n, 639 So.2d 901, 902 (Miss.1994).

      . Drews v. City of Hattiesburg, 904 So.2d 138, 140 (Miss.2005).

      . McKibben v. City of Jackson, 193 So.2d 741, 744 (Miss.1967) (emphasis added).

      . Harrison, 73 So.3d at 1171-73 (citing Drews, 904 So.2d at 141).

      . Drews, 904 So.2d at 142 (emphasis added).

      . Id.

      . See id.

      . Id. at 141-42.

      . Edward H. Ziegler, Jr., Rathkopf's the Law of Zoning and Planning, § 41.2 n. 1 (Thomson/West Aug. 2006) (emphasis added).

      . Miss.Code Ann. § 17-1-3(1) (Rev.2003). Section 17-1-3(1) provides:
      for the purpose of promoting health, safety, morals, or the general welfare of the community, the governing authority of any municipality ... [is] empowered to regulate the height, number of stories and size of building and other structures, the percentage of lot that may be occupied, the size of the yards, courts and other open spaces, the density of population, and the location and use of buildings, structures and land for trade, industry, residence or other purposes. ...

        Id.

      . Gail Gudder, Rathkopf's the Law of Zoning and Planning, § 58.4 (Thomson/West Aug. 2006).

      . Drews v. City of Hattiesburg, 904 So.2d 138, 141 (Miss.2005) (citing Robert C. Khayat & David L. Reynolds, Zoning Law in Mississippi, 45 Miss. L.J. 365, 383 (1974)).

      . Mary E. Miller, Encyclopedia of Mississippi Law New Topic Service, Variances and Exceptions § 12 (2003) (citing Robinson v. Indianola Mun. Separate Sch. Dist., 467 So.2d 911 (Miss.1985)).

      . Batesville, Miss., Code § 201.

      . Id. at § 1204 (emphasis added).

      . See Matter of Gilbert v. Stevens, 284 A.D. 1016, 1016, 135 N.Y.S.2d 357 (N.Y.A.D. 3 Dept. 1954).

      . Id.

      . Barnes v. Bd. of Supervisors, DeSoto County, 553 So.2d 508, 511 (Miss.1989).

      . Id.

      . While the Board may consider information based on its "common knowledge,” Bd. of Aldermen of Town of Bay Springs v. Jenkins, 423 So.2d 1323, 1327 (Miss.1982), these facts should be disclosed in the record. 83 Am. Jur. 2d, Zoning and Planning § 714 (West-law).

      . Matthew v. Smith, 707 S.W.2d 411, 414 (Mo.1986).

      . Id. (emphasis added).

      . Id. (emphasis added).

      . Id. at 416; McQuillin, The Law of Municipal Corporations, Unnecessary Hardship or Difficulty § 25:179.37 (3d ed. Westlaw).

      . Matthew, 707 S.W.2d at 416.

      . Id.

      . Palmer v. Bd. of Zoning Adjustment, 287 A.2d 535, 541 (D.C.1972).

      . As noted by the Missouri Supreme Court in adopting the New York definition, the landowner must establish "reasonable return” by submitting evidence that "he or she will be deprived of all beneficial use of the property under any of the permitted uses” and this requires "actual proof, often in the form of dollars and cents evidence.” Matthew, 707 S.W.2d at 417.

      . "[tflniqueness does not require that only the parcel of land in question and none other be affected by the condition that creates the hardship. What is required ... is that the hardship condition be sufficiently rare that if all similarly situated parcels in the zoning district were granted variances the district would remain materially unchanged.” Gail Gudder, Rathkopf's the Law of Zoning and Planning, § 58:11 (Thomson/West Aug. 2006) (citing Matter of Douglaston Civic Ass'n v. Klein, 51 N.Y.2d 963, 435 N.Y.S.2d 705, 416 N.E.2d 1040 (N.Y.1980)).

      . A board should grant a use variance only if it is the "minimum that will afford relief.” . Id. at § 58.12.

      . Matter of Otto v. Steinhilber, 282 N.Y. 71, 76, 24 N.E.2d 851 (1939).

      . Gudder, Rathkopf's the Law of Zoning and Planning at § 58:22. The New York legislature codified the definition of unnecessary hardship promulgated by the Otto court and added the requirement the applicant prove the hardship was not self-created. Matter of Sasso v. Osgood, 86 N.Y.2d 374, 382, 633 N.Y.S.2d 259, 657 N.E.2d 254, (1995).

      . See id.

      . Batesville, Miss., Code § 1204 (emphasis added).

      . Gudder, Rathkopf's the Law of Zoning and Planning at § 58:9. In other words, the Board does not have to grant the variance as requested: it may impose conditions or otherwise modify the variance so that it is the "minimum that will afford relief.” See fn.44 supra.

      . See generally id. at § 58:16 (public detriment is a factor in determining hardship, while public detriment and public benefit are considered under practical difficulties).


author: CHANDLER, Justice,

text:
    Stephan HICKMAN v. STATE of Mississippi.
    No. 2010-KA-01274-SCT.
    Supreme Court of Mississippi.
    Nov. 3, 2011.

      Office of Indigent Appeals by George T. Holmes, Leslie S. Lee, Aafram Yaphet Sellers, attorneys for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before DICKINSON, P.J., CHANDLER and KING, JJ.
   CHANDLER, Justice,

for the Court:

¶ 1. After a mistrial, Stephan Hickman was retried and found guilty of capital murder with the underlying felony of robbery. The Circuit Court of Hinds County, First Judicial District, sentenced Hickman to life without parole in the custody of the Mississippi Department of Corrections. Hickman appeals, arguing that the trial court erroneously restricted his right to cross-examine a witness in violation of his right to confrontation, and that the verdict was against the overwhelming weight of the evidence. Finding no error, we affirm.

FACTS

¶ 2. On September 6, 2007, the body of an elderly man, Jesse Reed, was discovered in a rural area in Hinds County. Reed had died from a gunshot wound to the head. After Reed’s neighbor, Hickman, was seen driving Reed’s car, he was arrested for receiving stolen property. While in jail, Hickman confessed to Earl Terrell that he had robbed and killed Reed. Hickman was charged with capital murder.

¶ 3. At Hickman’s trial, Alexis Walls testified that she lived close to Reed and Hickman, and had been friends with Hickman. Walls testified that, on the first or second day of September 2007, she had been sitting on her porch talking to Hickman. He had asked her which of two elderly male neighbors had more money, and she responded that it was Reed. Hickman had told her he was going to rob Reed. Walls then saw Hickman go to Reed’s house and look around. Walls testified that Reed drove a Chrysler 300 vehicle. Later in the week, she saw a car that looked like Reed’s pai'ked in Hickman’s yard. Walls also testified that Hickman had related several conflicting stories about how he had acquired the car. Walls and several other witnesses testified that they had never seen Hickman in possession of a car before seeing him with the Chrysler.

¶ 4. DeMarcus Brown testified that he lived in the same neighborhood as Walls, Hickman, and Reed. On September 2, 2007, Brown brought a gun that he had found in his grandmother’s house to Deon-tay Franklin’s house. While Franklin was taking a bath, Hickman came over, saw the gun, and demanded that Brown give it to him. Brown testified that he heard Hickman say he was going to “hit a lick,” which Brown defined as stealing something from someone or getting money from someone. When Brown refused to give Hickman the gun, Hickman took it against Brown’s wishes. The next day, Brown saw a Chrysler 300 in Hickman’s yard. A couple of days later, Hickman returned the gun to Brown and instructed him to give it away. When Hickman returned the gun to Brown, the bullets that previously had been in the box with the gun were missing. Brown sold the gun to Michael Harelson, who testified that he threw the gun away after hearing it was “hot.”

¶ 5. Franklin testified that Hickman came to his house on September 2, 2007, and asked for a gun to hit a lick. Franklin did not give Hickman a gun, and Hickman left. Franklin assumed Hickman planned to rob someone. Franklin testified that Brown came over later that day to show him a gun he had found. Franklin did not see Hickman again that day. But on September 4, 2007, Hickman came over, asked for a ride to the store, and said he had to hit a lick. The next day, Hickman came to Franklin’s house driving a Chrysler 300. Hickman stated “I told you I was going to hit a lick.” Hickman then drove off in the car.

¶ 6. Franklin also testified that, later in the week, a group had gathered at his house to watch a football game, and Hickman stopped by. After the game, Reed’s death was reported on the news. Hickman told the group that he had not killed Reed, asked what channel the news report was on, and abruptly left.

¶ 7. Walls’s twin brother Alex Walls also testified. Alex testified that Hickman had shown him a Chrysler he had acquired. Hickman told Alex he had purchased the car with his girlfriend’s student loan funds, but later he said had exchanged drugs for the car. Hickman drove Alex to a car-wash, where they removed items from the Chrysler and threw them into a garbage can and onto an adjacent field. Then they drove to the home of someone named Mar-qus, and Hickman asked him to keep the car. Hickman told Marqus he could drive it anywhere but the neighborhood where Hickman lived. Marqus refused. Then Hickman drove to Stravoss Manning’s house. Hickman asked Manning to keep the car. He told Manning he could drive the car anywhere but the area where Hickman lived. Manning refused. Alex said that the car subsequently disappeared, and Hickman said he had traded it for another car, but he never saw Hickman with another car. Officer James Roberts testified that he had found the Chrysler at an apartment complex near Hickman’s house.

¶ 8. On September 6, 2007, Marsha Temple, an employee of Stirling Properties, was inspecting a Trustmark bank when she discovered Reed’s credit card lying on the ground. The bank’s surveillance video had captured Hickman using Reed’s credit card at 10:12 p.m. on September 5, 2007. The bank’s records revealed that Hickman had tried to withdraw funds twice, but each time he was unable to retrieve money because the PIN number he entered was incorrect.

¶ 9. Earl Terrell testified that, on September 5, 2007, he saw Hickman with a Chrysler 800. He and Hickman drove the car to a Trustmark ATM machine. On the way, he found a wallet in the car and showed Hickman. Hickman removed the credit cards from the wallet and threw it out the window. When Hickman was unable to remove any money from the Trust-mark ATM machine, they drove to two other ATM locations, but Hickman was unsuccessful each time. After Hickman and Terrell were seen driving Reed’s Chrysler, they were arrested for receiving stolen property. Terrell testified that, while they were in the same jail cell, Hickman confessed that he had shot Reed in the head. Officer Roberts testified that he had interviewed several witnesses who established that Terrell had an alibi on September 4, 2007, the day before Hickman was first seen with Reed’s car.

¶ 10. The jury found Hickman guilty of capital murder with the underlying felony of robbery.

DISCUSSION

I. WHETHER THE TRIAL COURT ERRONEOUSLY RESTRICTED CROSS-EXAMINATION IN VIOLATION OF HICKMAN’S CONFRONTATION RIGHTS.

¶ 11. Hickman was tried twice. In Hickman’s first trial, Walls had testified on redirect examination that she had spoken with Hickman while she was sitting on her porch “waiting on some marijuana.” The trial resulted in a hung jury, and the court declared a mistrial. Before the second trial, the State entered a motion in limine to exclude the testimony. Specifically, the State requested that “the defense be prohibited from asking any questions or making any statements in the presence of the jury regarding who state witness, Alexis Walls, was waiting on when she had her conversation with the defendant regarding Mr. Jesse Reed.”

¶ 12. The trial court heard arguments on the motion. The State argued that the reason Walls had been sitting on her porch was irrelevant and more prejudicial than probative, because there had been no testimony that, at the time Walls spoke with Hickman, she had been using marijuana or had been under its influence. Hickman argued that the testimony was admissible, because it tended to show she was a credible witness as she was able to recall what she had been doing when she had spoken to Hickman. Hickman also argued it was relevant because it showed how she was able to remember what she had been doing. The State responded that, because Walls had not mentioned the planned marijuana delivery until redirect examination, Walls obviously had not relied on her memory of the planned marijuana delivery to refresh her memory. The trial court granted the motion upon a finding that the testimony was irrelevant and inadmissible under Mississippi Rules of Evidence 401, 402, 403, and 608(b).

¶ 13. Hickman argues that the ruling was incorrect under the Mississippi Rules of Evidence, and it erroneously restricted his right his right of confrontation under the Sixth Amendment to the United States Constitution. The Sixth Amendment provides that “in all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const, amend. VI (emphasis added). See also Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. 1354, 1364, 158 L.Ed.2d 177, 192 (2004) (the Confrontation Clause applies to “witnesses” against the accused, in other words, those who “bear testimony.”) (citations omitted).

¶ 14. As long as the trial court remains within the boundaries of the Mississippi Rules of Evidence, its decision to admit or exclude evidence will be accorded a high degree of deference. Johnston v. State, 567 So.2d 237, 238 (Miss.1990). But “error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of a party is affected.” M.R.E. 103(a). The trial court has the inherent power to limit cross-examination to relevant matters. Foley v. State, 914 So.2d 677, 691 (Miss.2005).

¶ 15. The trial court held that Walls’s testimony that she was waiting on marijuana was irrelevant under Rule 401 and inadmissible under Rule 402. Under Rule 401, relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. M.R.E. 401. Under Rule 402, irrelevant evidence is not admissible. The trial court also held that the testimony was inadmissible under Rule 403, which states that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. M.R.E. 403. The trial court further held that the testimony was inadmissible under Rule 608(b) because it was not probative of Walls’s character for truthfulness or untruthfulness. Rule 608(b) states:

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’s character for truthfulness, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness’s character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

¶ 16. Hickman argues that Walls’s testimony that she was waiting on marijuana was relevant to show her character for truthfulness or untruthfulness. This Court has held that, under Rule 608(b), a specific instance of conduct not resulting in a conviction may be inquired into on cross-examination if it reflects on the witness’s character for truthfulness. Brent v. State, 632 So.2d 936, 943 (Miss.1994). But “[i]f the past conduct did not involve lying, deceit, or dishonesty in some manner, it cannot be inquired into on cross-examination.” Id.

¶ 17. In Johnston v. State, 618 So.2d 90, 94 (Miss.1993), this Court held that a witness’s prior marijuana use had no bearing on her character for truthfulness under Rule 608(b) and was irrelevant. But in Havard v. State, 800 So.2d 1193, 1199 (Miss.Ct.App.2001), the Court of Appeals held that the trial court had properly permitted cross-examination of a witness about his marijuana use on the day of the crime because it was relevant to his memory and powers of observation. And in Smith v. State, 733 So.2d 793, 801 (Miss.1999), cited by Hickman, this Court held that cross-examination concerning the witness’s drug problems was probative of a witness’s credibility, because the witness had “been a mental patient, abused alcohol, drugs, sniffs gas and freon, that he was suicidal, that he was afraid of being in jail, has an explosive, violent temper, and had attempted to kill members of his immediate family.” Smith, 733 So.2d at 801.

¶ 18. We hold that the trial court was within its discretion in finding that Walls’s testimony that she was “waiting on some marijuana” when she spoke with Hickman had no bearing on her truthfulness. The fact that Walls expected to receive a delivery of marijuana does not involve lying, deceit, or dishonesty. Unlike in Smith, there was no evidence that Walls had a significant past history of mental problems and drug use that could have impacted her credibility. Unlike in Havard, there was no evidence that Walls had been under the influence of marijuana at the time she spoke with Hickman such that her memory or powers of observation were impaired. We find that the exclusion of the testimony was within the trial court’s discretion, and Hickman’s right to confrontation was not violated.

II. WHETHER THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

¶ 19. “When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (Miss.2005). The evidence is weighed in the light most favorable to the verdict. Id. On appellate review of a challenge to the weight of the evidence, this Court sits as the thirteenth juror; a new trial should be granted only in exceptional cases when the evidence preponderates heavily against the verdict. Id. (quoting Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947 (Miss.2000)).

¶ 20. Hickman argues that no physical evidence tied him to Reed’s death, that Terrell’s testimony was incredible, and that the rest of the State’s evidence was merely speculative. Hickman argues that, without Terrell’s testimony about Hickman’s jail-cell confession, the State presented no evidence. He cites the rule that an accomplice’s testimony is insufficient to sustain a conviction if the testimony is unreasonable, self-contradictory, or substantially impeached. Williams v. State, 32 So.3d 486, 490 (Miss.2010)

¶ 21. “A limited amount of physical evidence, in itself, does not mean that a guilty verdict was against the weight of the evidence.” Blanchard v. State, 55 So.3d 1074, 1079 (Miss.2011). Even without Terrell’s testimony, the State presented evidence that strongly implicated Hickman as Reed’s killer. A few days before Reed was found dead, Hickman asked Walls if Reed had money and then told Walls he was going to rob Reed. Hickman told Brown that he was going to “hit a lick,” and then stole Brown’s gun. Hickman also told Franklin he was going to “hit a lick” and, the next day, Hickman was in possession of Reed’s car. He was caught on surveillance video attempting to use Reed’s credit card. A few days after Hickman told the three witnesses that he was going to “hit a lick,” he returned the gun to Brown with instructions to give it away. Hickman also tried to find someone who lived outside his neighborhood to store Reed’s car. When this evidence is viewed along with Hickman’s confession to Terrell, and viewing the evidence in the light most favorable to the verdict, the evidence did not preponderate so heavily against Hickman’s guilt that a new trial is required.

CONCLUSION

¶ 22. Because Hickman’s right of confrontation was not violated when the trial court limited his cross-examination of Walls, and the verdict was not against the overwhelming weight of the evidence, we affirm.

¶ 23. CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE WITHOUT PAROLE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.

WALLER, C.J., CARLSON, P.J., RANDOLPH, KITCHENS, PIERCE AND KING, JJ., CONCUR. DICKINSON, P.J., AND LAMAR, J., CONCUR IN PART AND IN RESULT.


author: KING, Justice,

text:
    DOUBLE QUICK, INC. v. Dorothy MOORE, as Administrator and on Behalf of all of the Wrongful Death Beneficiaries of Mario Moore, Deceased.
    No. 2010-IA-01963-SCT.
    Supreme Court of Mississippi.
    Nov. 3, 2011.

      Lonnie D. Bailey, Marc A. Biggers, Charles Cameron Auerswald, Greenwood, attorneys for appellant.
    Andrew M.W. Westerfield, Warren Barksdale Bell, Cleveland, attorneys for appellee.
    Before DICKINSON, P.J., CHANDLER and KING, JJ.
   KING, Justice,

for the Court:

¶ 1. This case comes before the Court on interlocutory appeal from the Bolivar County Circuit Court. The matter arises from a shooting which occurred in the parking lot of a Double Quick convenience store. We must determine whether the trial court erred in failing to apply premises-liability law and denying Double Quick, Inc.’s motion for summary judgment. Finding that the trial court erred, we hereby reverse and render a judgment of dismissal in Double Quick’s favor.

FACTS AND PROCEDURAL HISTORY

¶ 2. On May 17, 2008, Wytisha Jackson was an assistant store manager of a Double Quick convenience store in Shelby, Mississippi. At approximately 7:30 p.m., George Ford, accompanied by his young son, entered Double Quick to make a purchase. Shortly afterward, Cassius Gallion entered the store. Ford and Gallion exchanged words. Gallion exited the store first. Then, Ford left the store to pump gas into his car. Because she was worried that Ford and Gallion would fight, Jackson accompanied Ford and helped Ford’s son into the car. At the gas pumps, Ford and Gallion again exchanged words. Then, Mario Moore, who had arrived at the Double Quick but had not yet been inside, approached Ford’s car, intervened in the argument, and threw a punch at Ford. Mario missed Ford, but struck Jackson, who then returned to the store and called the police. Ford then retrieved a pistol from' the trunk of his car and shot Mario. Mario died as result of his injury.

¶ 3. On September 5, 2008, Dorothy Moore, as administrator of Mario’s estate, filed suit against Double Quick. Moore argued that Double Quick had neglected to protect Mario from injury and death while he was on the store’s premises. On October 2, 2008, Double Quick answered the complaint and denied the essential allegations, including liability to Moore. On October 7, 2010, after extensive discovery by both parties, Double Quick filed its motion for summary judgment.

¶ 4. Within its motion, Double Quick argued that premises-liability law was applicable, and in order for Double Quick to be liable for the failure to protect Mario from the intentional acts of another, Moore must show that the injury was foreseeable. Double Quick argued that Moore had failed to prove foreseeability pursuant to Corley v. Evans, 835 So.2d 30, 38-39 (¶ 26) (Miss.2003), which required Moore to establish that Double Quick had actual or constructive knowledge of the assailant’s violent nature or actual or constructive knowledge that an atmosphere of violence existed on the premises.

¶ 5. On October 19, 2010, Moore filed a response to Double Quick’s motion for summary judgment and a cross-motion for partial summary judgment. She argued that Double Quick and Jackson were negligent, because once Jackson and other employees were aware of the argument, Jackson had failed to call the police immediately or to separate Gallion and Ford by asking Ford to stay inside until the police had arrived.

¶ 6. The trial court heard arguments on the motions, and on November 23, 2010, entered its order denying both motions for summary judgment. The trial court held that, while neither prong of the Corley test was met, the Corley test was not applicable, because the case was more similar to a basic negligence action against an employee of Double Quick than a premises-liability action. The trial court further held that a jury should determine whether Jackson’s actions were the proximate cause of Mario’s injuries. Double Quick appeals the portion of the order denying summary judgment. On December 8, 2010, this Court granted Double Quick’s petition for permission to file an interlocutory appeal.

DISCUSSION

¶ 7. We must determine whether the principles of premises-liability law apply, and if so, whether Double Quick is entitled to summary judgment. This Court will review a trial court’s grant or denial of a motion for summary judgment de novo. Titus v. Williams, 844 So.2d 459, 464 (¶ 16) (Miss.2003). The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If, in this view, the moving party is entitled to judgment as a matter of law, summary judgment should be entered in his favor. Otherwise, the motion should be denied. Id.

Premises Liability

¶ 8. Double Quick argues that it is entitled to summary judgment under the principles of premises-liability law. “[Pjremises liability is a theory of negligence that establishes the duty owed to someone injured on a landowners’s premises as a result of ‘conditions or activities’ on the land.” Doe v. Jameson Inn, Inc., 56 So.3d 549, 553 (¶ 11) (Miss.2011) (citation omitted).

¶ 9. Moore contends that the instant ease is not one of premises liability, but a basic negligence case against Jackson. The only case Moore relies on to support her claim that this is a basic negligence case is Foradori v. Captain D’s, LLC, 2005 WL 3307102 (N.D.Miss.2005), and its affirmance by the Fifth Circuit in Foradori v. Harris, 523 F.3d 477 (5th Cir.2008). In Foradori, the plaintiff, a customer, was injured by employees of Captain D’s. Id. at 482. Foradori involved the legal principle of vicarious liability of Captain D’s for its manager’s negligent failure to control her employees and prevent them from assaulting a customer of the restaurant. Id. at 483. The Foradon case was not a premises-liability case, and the Fifth Circuit noted that the district court granted summary judgment, dismissing the premises-liability claims. Id.

¶ 10. However, the Foradon case is not factually similar to the instance case, and this Court recently has reiterated that whether a cause of action falls under the general theory of negligence or a specific type of negligence warrants a review of the facts that gave rise to the claim. Doe, 56 So.3d at 553 (¶ 10). In the instant case, Mario was not injured by the Double Quick employees; the Double Quick employees were not even aware of his presence on the premises. Because Mario’s injury was the result of an activity that occurred on Double Quick’s property, we find that Moore’s claim is one of premises liability. Accordingly, the trial court erred in holding that the instant case was not a premises-liability case.

Summary Judgment

¶ 11. To recover damages in a premises-liability action, Moore must show (a) the duty owed to Mario by Double Quick; (b) a breach of that duty; (c) damages; and (d) a causal connection between the breach and the damages, such that the breach is the proximate cause of Mario’s injuries. Crain v. Cleveland, Lodge 1532, Order of Moose, Inc., 641 So.2d 1186, 1189 (Miss.1994) (citations omitted).

¶ 12. Generally, in order to determine the duty owed by the business owner, the status of the injured party must be determined. The injured party should be classified as an invitee, licensee, or trespasser. Leffler v. Sharp, 891 So.2d 152, 153 (¶ 10) (Miss.2004). An invitee is a person who enters the premises of another in response to an “express or implied invitation of the owner or occupant for their mutual advantage.” Id. at 153 (¶ 11). A licensee enters the premises “for his own convenience, pleasure, or benefit pursuant to the license or implied permissionf.]” A trespasser enters the premises “without license, invitation, or other right.” Id.

¶ 13. Under Mississippi law, a property owner is not the insurer of an invitee’s safety. Rather, he owes a duty to the invitee to keep the premises reasonably safe and, when not reasonably safe, to warn only of hidden dangers not in plain and open view. Corley, 835 So.2d at 37 (¶ 22) (citations omitted). Also, the duty owed to a licensee or trespasser is the same — not to willfully or wantonly injure such person. Leffler, 891 So.2d at 157 (¶12).

¶ 14. The parties disagree on Mario’s status, but Mario’s classification is irrelevant in determining the outcome of this appeal. The issue is not determinative, because even if Jackson and Double Quick owed Mario a higher duty of care, Moore failed to provide evidence that Jackson’s action or inaction was the proximate cause of Mario’s death.

¶ 15. Proximate cause is defined as the “cause which in natural and continuous sequence unbroken by any efficient intervening cause produces the injury and without which the result would not have occurred.” Delahoussaye v. Mary Mahoney’s, Inc., 783 So.2d 666, 671 (¶ 13) (Miss.2001). Generally, “criminal acts can be intervening causes which break the causal connection with the defendant’s negligent act, if the criminal act is not within the realm of reasonable foreseeability.” O’Cain v. Harvey Freeman & Sons, Inc., 603 So.2d 824, 830 (Miss.1991) (citing Touche Ross v. Commercial Union Ins., 514 So.2d 315, 324 (Miss.1987); Robinson v. Howard Bros. of Jackson, Inc., 372 So.2d 1074, 1076 (Miss.1979)). Thus, in order to establish that Jackson’s behavior was the proximate cause of Mario’s injury, Moore would have to prove that Mario’s injury was reasonably foreseeable.

¶ 16. In premises-liability eases, there are two ways to establish legal causation, or foreseeability, in cases of assault by a third person: the requisite “cause to anticipate” the assault may arise from actual or constructive knowledge of the assailant’s violent nature, or actual or constructive knowledge that an atmosphere of violence exists on the premises. Id.

¶ 17. There was no suggestion within the record that Jackson had actual or constructive knowledge of Ford’s violent nature. Jackson voluntarily went outside to the gas pumps with Ford. Further, the record does not indicate that an atmosphere of violence existed on the premises of Double Quick. See Gatewood v. Sampson, 812 So.2d 212, 220 (¶ 14) (Miss.2002). In fact, Moore’s attorney conceded during the hearing on the motions for summary judgment that there was no evidence to indicate that Double Quick had a violent atmosphere.

¶ 18. Because Moore failed to prove that the injury was reasonably foreseeable, there is no evidence to suggest that Jackson’s behavior was the proximate cause of Mario’s injuries. Accordingly, the trial judge should have granted Double Quick’s motion for summary judgment.

CONCLUSION

¶ 19. We find that the trial court erred in denying Double Quick’s motion for summary judgment. Therefore, we reverse the judgment of the trial court and render a judgment of dismissal in favor of Double Quick.

¶ 20. REVERSED AND RENDERED.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ„ CONCUR.