author: LAMAR, Justice, KITCHENS, Justice, PIERCE, Justice,

text:
    MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. Houston J. PATTON.
    No. 2010-JP-01387-SCT.
    Supreme Court of Mississippi.
    March 31, 2011.

      Darlene D. Ballard, attorney for appellant.
    Sorie S. Tarawally, Jackson, attorney for appellee.
   LAMAR, Justice,

for the Court:

¶ 1. The Mississippi Commission on Judicial Performance recommended that Houston J. Patton, County Court Judge for Hinds County, be publicly repi'imanded and ordered to pay a fine of $1,000 and costs of $100 for engaging in ex parte communications, misusing his contempt power, failing to propeidy notice hearings, granting relief not requested, and issuing a search warrant without legal authority, all actions which the Commission found to constitute willful misconduct in office. Judge Patton joined the Commission’s recommendations and has admitted to all chai’ges of misconduct. After l-eviewing the record, we find the recommended sanctions to be insufficient, and we decline to adopt the Commission’s recommendations. We impose a sanction of suspension without pay for thirty days, a public reprimand, a fine of $1,000, and costs of $100.

STATEMENT OF FACTS AND PROCEEDINGS

¶ 2. On Febraaiy 19, 2009, the Commission filed a formal complaint, in which it alleged that Judge Patton had engaged in improper conduct in two cases involving the same defendant. In the first case, the Commission avei-red that Judge Patton had engaged in ex parte communications with the plaintiffs and counsel for the defendant; had presided over numerous hearings and entered orders without proper notice to the defendant; had wrongfully held the defendant in contempt, which resulted in his incarcex-ation; and had wrongfully issued a search warrant for the defendant’s premises in violation of his due-process rights. And in the second case, the Commission averi-ed that Judge Patton had engaged in ex parte communications with the plaintiff and counsel for the defendant; had granted relief not prayed for by the plaintiffs; and had wrongfully held the defendant in contempt, resulting in his incarceration. The Commission found that Judge Patton’s conduct in both cases had violated Canons 1, 2A, 2B, 3B(2), 3B(7), 3B(8), and 3B(9) of the Code of Judicial Conduct. The Commission further found that Judge Patton’s actions constituted “... (b) willful misconduct in office; [and] (e) conduct prejudicial to the administration of justice which brings the judicial office into disrepute[.]” ¶ 3. On May 19, 2010, the Commission filed a second formal complaint against Judge Patton. The Commission averred that Judge Patton again unlawfully had held a party in contempt, resulting in incarceration. The Commission found that Judge Patton’s conduct had violated Canons 1, 2A, 2B, 3B(2), 3B(7), 3B(8), and 3C(1) of the Code of Judicial Conduct and Article 3, Section 30 of the Mississippi Constitution, which prohibits imprisonment for debt. The Commission found the conduct was sanctionable under Section 177A of the Mississippi Constitution, as it was “... (b) willful misconduct in office; [and] (e) conduct prejudicial to the administration of justice which brings the judicial office into disrepute.” The Commission, through its attorney, and Judge Patton entered into an Agreed Statement of Facts and Proposed Recommendation in lieu of a hearing. This agreed statement essentially reiterated the facts set forth in the formal complaints. Judge Patton and the Commission agreed that he had violated Article 3, Section 30 of the Mississippi Constitution and Canons 1, 2A, 2B, 3B(2), 3B(7), 3B(8), 3B(9), 3C(1), and that his conduct was willful and prejudicial to the administration of justice under Section 177A of the Mississippi Constitution. They agreed that the appropriate sanctions should be a public reprimand, a $1,000 fine, and $100 in costs. The full Commission accepted and -adopted the Agreed Statement of Facts and Proposed Recommendation with one change; it was silent as to a violation of Article 3, Section 30, of the Mississippi Constitution.

DISCUSSION

¶ 4. This Court conducts a “ ‘de novo review of judicial misconduct proceedings, giving great deference to the findings, based on clear and convincing evidence, of the recommendations of the Mississippi Commission on Judicial Performance.’ ” We may “accept, reject, or modify, in whole or in part, the findings and recommendation of the Commission.” This Court must render an independent judgment, as we are vested with the “sole power to impose sanctions in judicial misconduct cases.”

¶ 5. The Commission found by clear and convincing evidence that Judge Patton’s conduct was willful and prejudicial to the administration of justice under Section 177A of the Mississippi Constitution, and that it violated Canons 1, 2A, 2B, 3B(2), 3B(7), 3B(8), 3B(9), and 3C(1). 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” includes all willful conduct. This Court has held that a judge’s participation in ex parte communication and misuse of contempt power constitute willful misconduct and conduct prejudicial to the administration of justice. Further, Judge Patton agrees that his conduct falls within Section 177A(b) and (e), violates the above-noted code sections, and is sanctionable. We also find that Judge Patton’s action of imprisoning a litigant for failure to pay a civil judgment is a violation of Article 3, Section 30 of the Mississippi Constitution. Therefore, we find that Judge Patton should be sanctioned.

¶ 6. Under Section 177A, this Court may “remove from office, suspend, fine or publicly censure or reprimand” a judge for misconduct. This Court considers six factors to determine an appropriate sanction:

(1) The length and character of the judge’s public service; (2) Whether there is any prior case law [sic] 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 semce

¶ 7. Judge Patton has been a judge for more than twenty years, and has no prior disciplinary record. The record contains no information about the character of Judge Patton’s public service.

2. Whether there is any prior caselaw on point.

¶ 8. This Court has considered numerous judicial-misconduct cases involving abuse of contempt power and ex parte communications. Recently, this Court decided Mississippi Judicial Performance v. Vess, in which this Court sanctioned a justice court judge with a public reprimand, a fine of $2,000, and costs of $100, for engaging in ex parte communications with both parties in a pending suit and for failing to provide notice to one of the parties. In that case, the judge admitted his recent misconduct and agreed to the imposed sanction, but he also had been disciplined on two other occasions.

¶ 9. And in Mississippi Commission on Judicial Performance v. Byers, this Court sanctioned a circuit judge with a public reprimand, fine of $1,500, and costs of $2,023.59 for various improprieties, including the “serious charge” of misusing the contempt power. In that case, a reporter disobeyed a court order by publishing an article about a juvenile proceeding. The circuit judge had the reporter arrested and incarcerated without filing an affidavit or an order to show cause, without noticing the hearing, and without an appeal bond. In addition to misusing the contempt power, the Court found that the judge had improperly sentenced a defendant under the wrong statute and had improperly extended a defendant’s probation. The Court reviewed the misconduct at issue and a previous private reprimand for abuse of judicial powers before imposing sanctions. But the Court noted it “seriously considered the sanction of removal.”

¶ 10. The Court also considered a judge’s misuse of contempt in Mississippi Commission on Judicial Performance v. Gunter, in which a municipal judge had a seventeen-year-old arrested for contempt and immediately brought before him for failing to appear for community service. The judge also improperly ordered that the teenager’s mother be arrested for contempt of court and held for several hours without bond. In addition to finding the judge had misused his power of contempt, this Court also found that the judge had abused his official capacity as a judge by using the National Crime Information Center and contacting clerks and police officers regarding a case in' which he was counsel. The Court noted that this was the judge’s first infraction when it imposed a sanction of a public reprimand, a $1,500 fine, and $100 in costs.

¶ 11. But this Court has imposed harsher sanctions in cases involving similar misconduct. In Mississippi Commission on Judicial Performance v. Gordon, the Mississippi Commission on Judicial Performance recommended a public reprimand and assessment of costs for a municipal court judge who engaged in ex parte communications with defendants and subsequently fixed fourteen traffic tickets. This Court enhanced the punishment to a thirty-day suspension without pay, a public reprimand, and court costs, even though the judge had no formal disciplinary record.

¶ 12. Likewise, in Mississippi Commission on Judicial Performance v. Britton, the Court again imposed an enhanced punishment of suspension without pay for thirty days, a public reprimand, and costs, on a justice court judge when the Commission had recommended only a public reprimand and costs of $1,118.37. In that case, the judge had engaged in improper ex parte communications and without notice or hearing, had entered orders and had undertaken other actions in two unrelated cases. The judge also had engaged in similar misconduct and had been before the Commission a total of six times, but he had never been admonished by this Court.

¶ 13. And in Mississippi Commission on Judicial Perfomance v. Lewis, this Court accepted the Commission’s recommendation to remove a justice court judge from office and assess costs of $2,080.23. In that case, the judge had engaged in ex parte communications in two separate cases and improperly had dismissed a default judgment. This Court also found that the judge had engaged in improper sexual advances toward the litigants, and that he had failed to pay previous court costs and submit to a public reprimand for prior disciplinary proceedings.

3. The magnitude of the offense and the ham suffered

¶ 14. In this case, Judge Patton failed to follow the law regarding ex parte communications, contempt, and execution of search warrants. He failed to ensure litigants received notice of hearings, and he publicly commented on pending cases. This Court has ruled that “immeasurable harm occurs when a judge who is trusted as the gatekeeper to justice for all our citizens, fails to learn and apply fundamental tenets of the law.” And we also have ruled that “the power to hold a person in contempt of court is a solemn responsibility, and any misuse of this power is a serious charge.” Judge Patton’s conduct gave the appearance of impropriety and of lending the prestige of his office to advance the private interests of others. Further, his actions have violated the due-process rights of litigants. We find that Judge Patton’s conduct brings the integrity, independence, and quality of the judiciary in question.

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

¶ 15. While this is Judge Patton’s first time to be sanctioned for misconduct, this action was initiated by two formal complaints involving misconduct in three civil eases. In each case, Judge Patton engaged in ex parte communication. In two cases, he improperly used his contempt power, held hearings without notice, and wrongfully incarcerated defendants. We have held that three incidents within one formal complaint constituted a pattern. Similarly, we found ten violations of various misconduct to constitute a pattern where the judge had no prior disciplinary history and all allegations were brought within one formal complaint. So, contrary to the dissent, this Court has found a pattern of misconduct when there is no prior disciplinary action. Therefore, we find a pattern of misconduct.

5. Whether moral turpitude was involved.

¶ 16. 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 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.” Our discussion of this Gibson factor in Mississippi Commission on Judicial Performance v. Sanford, in which we found moral turpitude, is particularly relevant:

[Tjhis case is not about a judge’s conduct because of a judge’s lack of judicial education or training. This case involves some of the basic tenets of daily living in a civil society, such as living by standards of fundamental decency and honesty by not abusing the judicial process, and by revering the law and the judicial system, and upholding the dignity and respect of the judiciary through appropriate conduct and behavior toward others.

We find that Judge Patton’s conduct, which is undisputed, involves moral turpitude, as he abused the judicial process and failed to revere the law and judicial system. His actions of wrongfully incarcerating litigants, engaging in ex parte communications; failing to give notice of hearings and orders, publicly commenting on a pending case, and improperly issuing a search warrant in a civil case, certainly warrant this Court to find moral turpitude.

6. The presence or absence of mitigating or aggravating circumstances

¶ 17. This is Judge Patton’s first time to be sanctioned. He has admitted his misconduct and has agreed to the recommended sanctions. However, his behavior was very similar in three different cases and shows a pattern of misconduct. Judge Patton has ignored the Code of Judicial Conduct, and his actions have deprived litigants of the due process of law, the gravity of which this Court takes very seriously. This Court gives great deference to the Commission’s findings with the clear charge that we must render an independent judgment.

¶ 18. While this is Judge Patton’s first disciplinary action, we find his conduct is egregious enough to warrant suspension, as imposed in Gordon and Button, in addition to the recommended sanction. After full consideration and de novo review of the record before us, we find that the Commission’s recommendation is too lenient, and we enhance the sanction to include a thirty-day suspension without pay, in addition to a public reprimand, fine of $1,000, and costs of $100.

CONCLUSION

¶ 19. Judge Patton has violated Canons 1, 2A, 2B, 3B(2), 3B(7), 3B(8), 3B(9), 3C(1) of the Code of Judicial Conduct, and his conduct violated Article 3, Section 30 of the Mississippi Constitution and is within the scope of Section 177A, subparts (b) and (e). Because of his misconduct, we impose a sanction of a suspension without pay for thirty days, a public reprimand, a fine of $1,000, and costs of $100. The public reprimand shall be read in open court on the first day of the next term of the Circuit Court of Hinds County in which a jury venire is present, with Judge Patton in attendance.

¶ 20. JUDGE HOUSTON J. PATTON, COUNTY COURT JUDGE FOR HINDS COUNTY, SHALL BE PUBLICLY REPRIMANDED IN OPEN COURT BY THE PRESIDING JUDGE OF THE HINDS COUNTY CIRCUIT COURT ON THE FIRST DAY OF THE NEXT TERM OF THAT COURT AFTER THIS DECISION BECOMES FINAL WHEN A VENIRE PANEL IS PRESENT, IS SUSPENDED FROM OFFICE WITHOUT PAY FOR THIRTY(30) DAYS, AND IS ASSESSED A FINE IN THE AMOUNT OF $1,000 AND COSTS OF $100.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., AND RANDOLPH, J., CONCUR. KITCHENS, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY CHANDLER AND PIERCE, JJ. PIERCE, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS AND CHANDLER, JJ. KING, J., NOT PARTICIPATING.

KITCHENS, Justice,

concurring in part and dissenting in part:

¶ 21. I must respectfully dissent from the portion of today’s opinion that adds a thirty-day suspension to the sanctions recommended by the Commission. Judge Patton agreed to the Commission’s recommendation, and the recommended sanctions are consistent with our prior rulings in similar cases. This Court, in my judgment, should accept that recommendation rather than imposing heightened sanctions that are unwarranted by the facts. I specifically take issue with the majority’s finding that Judge Patton’s conduct evinces a pattern of bad behavior and that his conduct involved moral turpitude.

¶ 22. While this Court has the ultimate authority over the imposition of sanctions, it is well settled that sanctions .in any disciplinary action should be consistent with previous, similar cases. Miss. Comm’n on Judicial Performance v. Sanford, 941 So.2d 209, 215 (Miss.2006) (citing In re Bailey, 541 So.2d 1036, 1039 (Miss.1989)). The majority’s decision to impose heightened sanctions on a finding of moral turpitude is not warranted by the facts and is in conflict with prior cases involving similar conduct. In addition, the majority is not justified in finding, contrary to the Commission’s conclusions, that the acts in this case show a pattern of misconduct; this is the first occasion upon which Judge Patton has been sanctioned by this Court in the course of a career on the bench that is in its third decade.

¶ 23. The determination of sanctions for judicial misconduct and the appropriateness of a sanction are based on a finding of these well-known factors: (1) the length and character of the judge’s public service; (2) whether there is 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. Miss. Comm’n on Judicial Performance v. Gibson, 883 So.2d 1155, 1158 (Miss.2004).

¶24. Moral turpitude is a notoriously undefined term of art, and our decisions do not shed much light on its meaning. For the purposes of judicial discipline, it “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.” Sanford, 941 So.2d at 217 (Miss. 2006) (quoting Gibson, 883 So.2d at 1158). In the context of criminal and tort law, this Court has said that moral turpitude “has been defined as inherent baseness or vileness of principle in the human heart., It means, in general, shameful wickedness, so extreme a departure from ordinary standards of honesty, good morals, justice or ethics as to be shocking to the moral sense of the community.” Speed v. Scott, 787 So.2d 626, 633 (Miss.2001) (quoting Restatement (Second) Torts § 571, cmt. g (1977)). In the context of attorney discipline, this Court has held, for instance, that the intentional conversion of client funds for one’s own use constitutes attorney conduct involving moral turpitude. See, e.g., Miss. Bar v. Sweeney, 849 So.2d 884, 888 (Miss.2003); Miss. State Bar Ass’n v. Strickland, 492 So.2d 567, 571 (Miss.1986).

¶ 25. The United States Supreme Court, in the context of deportable offenses under immigration law, has refused to assign a fixed meaning to the term “moral turpitude,” other than to hold that crimes involving an element of fraud implicate that term. Jordan v. De George, 341 U.S. 223, 232, 71 S.Ct. 703, 708, 95 L.Ed. 886 (1951). In reaching its decision that conspiracy to defraud the United States is a deportable offense involving moral turpitude, that Court stated “that fraud has consistently been regarded as such a contaminating component in any crime that American courts have, without exception, included such crimes within the scope of moral turpitude.” Id. at 228, 71 S.Ct. 703. Of course, that analysis, while incorporating fraud, brings this Court no closer to an exhaustive definition. Indeed, Justice Jackson, in his dissent to that decision, condemned the use of the term in the law as insufficiently definite' to pass constitutional muster. Id. at 232, 71 S.Ct. 703 (Jackson, J., dissenting). After noting that resort to a dictionary renders the meaning of the phrase as “morally immoral,” Justice Jackson argued that the terra should have no application in law as an aggravating factor, writing:

We should not forget that criminality is one thing — a matter of law — and that morality, ethics and religious teachings are another. Their relations have puzzled the best of men. Assassination, for example, whose criminality no one doubts, has been the subject of serious debate as to its morality. This does not make crime less criminal, but it shows on what treacherous grounds we tread when we undertake to translate ethical concepts into legal ones, case by case. We usually end up by condemning all that we personally disapprove and for no better reason than that we disapprove it. In fact, what better reason is there? Uniformity and equal protection of the law can come only from a statutory definition of fairly stable and confined bounds.

Id. at 241, 71 S.Ct. 703. We may take heed of Justice Jackson’s admonition without completely rejecting the idea that some acts, within the context of circumstances, deserve moral condemnation. Whatever the definition of moral turpitude should be for our purposes, it should be clear that its application as an aggravating factor should occur only where the facts warrant our strongest condemnation. In addition, if fraud is a touchstone, it indicates that a finding of moral turpitude requires this Court to look beyond the sanctionable conduct itself and examine, as well, the intent underlying the behavior in question.

¶ 26. In line with that principle, this Court has said that a finding of moral turpitude requires a determination of “whether a judge’s conduct crosses the line from simple negligence or mistake, to willful conduct which takes advantage of a judge’s position for greed or other inappropriate motives.” Miss. Comm’n on Judicial Performance v. Gordon, 955 So.2d 300, 305 (Miss.2007) (holding that fixing tickets by passing them to the inactive files without requiring the defendants to appear in court and over the objections of the issuing officer constituted moral turpitude). Thus, heightened sanctions may be appropriate when there is a finding that the conduct “willfully subverts justice.” Id. Therefore, if the facts presented to us do not support a conclusion that the motives of the judge being sanctioned were inappropriate, we should refrain from finding that moral turpitude has been implicated.

¶ 27. The majority cites Mississippi Commission on Judicial Performance v. Lewis, 913 So.2d 266 (Miss.2005), for the proposition that sanctions beyond fines and public reprimands are appropriate where judicial misconduct involves improper ex parte communications and improper dismissals. The majority, in the present case, however, fails to recount the underlying facts that led it to a finding of moral turpitude in that case. In Lewis, 913 So.2d at 268, the judge had engaged in ex parte communications in order to make sexual advances toward several women. The improper dismissal cited by this Court was intended by him to aid the judge’s sexual advances. Id. at 269. The improper ex parte communications were not confined to meetings with the complainants in chambers but also included telephone calls, sexual in content, made by the judge to at least one of the complainants at her home. Id. at 268. The judge had been sanctioned numerous times prior to the cited action and had failed to pay fines and costs imposed for those previous sanctions. Id. It was clear in that case that the improper conduct was not only prejudicial to the administration of justice, but also in furtherance of the judge’s personal ends in conflict with his role as an officer of the court. This Court specifically found that the judge’s conduct made it impossible for him to present himself as an unbiased trier of fact. Id. at 271. Unlike today’s case, the Leiuis opinion extensively discussed the facts that supported a conclusion that the sanctionable conduct was not merely in violation of the Canons, but involved significant aggravating circumstances.

¶ 28. Here, this Court uses the inclusive definition of moral turpitude in a manner that is inconsistent with the fundamental premise underlying that factor: that some wrongful acts by judges, committed in furtherance of their private interests, are so repugnant to the basic standards of social expectations that we must condemn and punish -them more harshly than we would condemn and punish other wrongful acts. Here, the majority does not hold that Judge Patton’s conduct was in any way fraudulent, intended to further his own interests to the detriment of the judiciary, motivated by greed, or was otherwise so morally repugnant that society as a whole would find his conduct shocking. The majority simply states that, as his conduct interfered with the administration of justice, heightened sanctions are appropriate.

¶ 29. Our jurisprudence cries out for consistency on this point. Not every ex parte communication is the product of a base heart; not every improper dismissal is the product of the desire for personal gain at the expense of the impartial administration of justice. Judges are human, and therefore inherently imperfect; the Canons impose a standard of conduct that is not impossibly high, but also sanctions conduct that is the product of human flaws or frailty but is not necessarily wicked, deceitful, fraudulent or vile. We should take it as a limiting principle that even actions amounting to willful misconduct do not constitute wrongdoing that is the product of impurity or immorality unless the totality of the circumstances so indicates. Where, as here, there is no allegation and no proof that the judge subject to discipline acted in furtherance of his self-interests, with an intent to defraud, with inherent baseness or vileness of principle, with deceit — in short, with shameful wickedness — this Court should not make a finding that moral turpitude is present.

¶ 30. I also take issue with the majority opinion’s characterization of Judge Patton’s conduct as a pattern of behavior. The Commission made no ■ such finding, and the facts in the record do not support that conclusion. While I do not dispute that Judge Patton’s conduct in these three cases violated the Canons, it does not necessarily follow that improper conduct in three cases over the course of a 20-plus-year career on the bench with no prior disciplinary actions constitutes a pattern. The majority cites Mississippi Commission on Judicial Performance v. Cowart, 936 So.2d 343, 350 (Miss.2006), and Mississippi Commission on Judicial Performance v. Bradford, 18 So.3d 251, 256 (Miss.2009), for the proposition that three incidents within one formal complaint constitute a pattern. I note that, in Cowart, each of the three incidents alluded to by the majority involved substantially identical misconduct of improperly remanding traffic citations and then reinstating them on the active docket. Cowart, 936 So.2d at 345-46. If three incidents reported within one disciplinary action is the de minimis standard to be employed by this Court with respect to a finding of a pattern of conduct, then we should, at the very least, also make a finding that the conduct in question is so substantially similar, if not identical, that it warrants application of this factor' when we refuse to adopt a recommendation of the Commission.

¶ 31. The majority also relies on Mississippi Commission on Judicial Performance v. Britton, 936 So.2d 898 (Miss.2006), and Gordon, 955 So.2d 300, as similar cases in which the Court was justified in imposing heightened sanctions for a first public infraction. As noted above, this Court in Gordon ruled a single disciplinary action involving fourteen separate acts of ticket fixing, despite the egregiousness of the conduct, did not constitute a pattern of conduct. Gordon, 955 So.2d at 305. And, in Britton, the judge had been before the Commission on six separate occasions over a six-year period, each time for infractions involving similar conduct. Britton, 936 So.2d at 907. In both Britton and Gordon, this Court made extensive findings of fact to support the conclusion that the conduct was sufficiently egregious, either by a finding of moral turpitude or of a pattern of conduct, to justify enhanced sanctions. Here, the Court does not support its ruling that aggravating circumstances, including its findings of moral turpitude and a pattern of conduct, are present. As such, suspension in this case is not appropriate.

¶ 32. For the above reasons, I respectfully concur in part and dissent in part.

CHANDLER AND PIERCE, JJ., JOIN THIS OPINION.

PIERCE, Justice,

concurring in part and dissenting in part:

¶ 33. I concur in part and dissent in part in this case because I would accept the Commission’s and Judge Patton’s Agreed Statement of Facts and Proposed Recommendation. As the majority appropriately points out (Maj. Op. ¶ 7), “Judge Patton has been a judge for more than twenty years, and has no prior disciplinary record.” Therefore, I would hold that a public reprimand, payment of $1,000 fine, and payment of costs of $100 is an appropriate sanction.

KITCHENS AND CHANDLER, JJ., JOIN THIS OPINION.

      . John Woodward and Vivian Wajda v. Billy Ralph Sullivan, No. 07-1884.

      . Joseph Gregory and Debra Gregory v. Billy R. Sullivan, Individually and Billy R. Sullivan d/b/a A <fe S Environmental, No. 251-07-000328-CQV.

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

      . Vernon and Constance Hughes v. Homer "H.L.” Tillman and John Does 1-5, No. [ XXX-XX-XXXX ]-COV.

      . Miss. Const, art. 3, § 30.

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

      . Miss. Comm’n on Judicial Performance v. Sanford, 941 So.2d 209, 212 (Miss.2006) (quoting Miss. Comm’n on Judicial Performance v. Gibson, 883 So.2d 1155, 1156 (Miss.2004)).

      . Rules of'the Miss. Comm’n on Judicial Performance 10(E).

      . Gibson, 883 So.2d at 1157.

      . We note that the record contains no facts that support a violation of Canon 3B(9), which generally prohibits a judge and his court personnel from publicly commenting on a pending case. Presumably facts in support of this violation were presented to the Commission, because Judge Patton and the Commission provided in the agreed statement of facts that Cannon 3B(9) was violated. Furthermore, the Commission filed a brief in support of its recommendation in which it stated: "During the time the cases involved in Inquiry Concerning a Judge No. 2008-274 were pending, Respondent made comments to the local newspaper in an attempt to explain his actions and justify Sullivan’s incarceration. In addition, Respondent publicly admitted ex parte contact with one of the litigants.” Judge Patton did not file a brief but joined the "petition filed by the Commission.” We will consider these unrebutted (and agreed to) assertions under the applicable de-novo review.

        . 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).

      . Id.

      . Miss. Comm'n on Judicial Performance v. Walker, 565 So.2d 1117, 1124 (Miss.1990).

      . See In re Nichols, 749 So.2d 68 (Miss.1999).

      . Miss. Const, art. 6, § 177A.

      . Miss. Comm'n on Judicial Performance v. Gibson, 883 So.2d 1155, 1158 (Miss.2004).

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

        . See e.g., Vess, 10 So.3d at 488-89, 495 (ex parte communication and abuse of contempt); Britton, 936 So.2d at 906 (ex parte communication); Miss. Comm’n on Judicial Performance v. Lewis, 913 So.2d 266 (Miss.2005) (ex parte communication); Miss. Comm’n on Judicial Performance v. Blakeney, 848 So.2d 824 (Miss.2003) (ex parte communication); Miss. Comm’n on Judicial Performance v. Willard, 788 So.2d 736 (Miss.2001) (ex parte communication and abuse of contempt); Miss. Comm'n on Judicial Performance v. Gunter, 797 So.2d 988, 990 (Miss.2001) (abuse of contempt); Miss. Comm'n on Judicial Performance v. Lewis, 801 So.2d 704 (Miss.2001) (ex parte communication); Miss. Comm’n on Judicial Performance v. Byers, 757 So.2d 961, 973 (Miss.2000) (abuse of contempt); Miss. Comm'n on Judicial Performance v. Sanders, 749 So.2d 1062 (Miss.1999) (ex parte communication and abuse of contempt); Walker, 565 So.2d at 1124 (abuse of contempt).

      . Miss. Comm’n on Judicial Performance v. Vess, 10 So.3d 486, 488-89, 495 (Miss.2009).

      . Id. at 491, 492-93.

      . Byers, 757 So.2d at 973.

      . Id. at 970.

      . Id. at 970-71.

      . Id. at 967-69.

      . Id. at 970, 973.

      . Id. at 973.

      . Miss. Comm’n on Judicial Performance v. Gunter, 797 So.2d 988, 990 (Miss.2001).

      . Id.

      . Id. at 989.

      . Id. at 991-92.

      . Miss. Comm'n on Judicial Performance v. Gordon, 955 So.2d 300, 301-02 (Miss.2007).

      . Id. at 306.

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

      . Id. at 902-03.

        .Id. at 907.

      . Miss. Comm’n on Judicial Performance v. Lewis, 913 So.2d 266, 268 (Miss.2005).

      . Id. at 268-69.

      . Id. at 271-72.

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

      . Miss. Comm'n on Judicial Performance v. Byers, 757 So.2d 961, 973 (Miss.2000).

      . Miss. Comm'n on Judicial Performance v. Cowart, 936 So.2d 343, 350 (Miss.2006).

      . Miss. Comm'n on Judicial Performance v. Bradford, 18 So.3d 251, 256 (Miss.2009).

      . Miss. Comm'n on Judicial Performance v. Gibson, 883 So.2d 1155, 1158 (Miss.2004).

        . 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)).

      . Miss. Comm’n on Judicial Performance v. Sanford, 941 So.2d 209, 217 (Miss.2006).


source: Caselaw Access Project

author: GRIFFIS, J., IRVING, J.,

license: Public Domain

text:
    CITIGROUP GLOBAL MARKETS, INC. and Scott Jones, Appellants v. Randy BRASWELL, Appellee.
    No. 2009-CA-01275-COA.
    Court of Appeals of Mississippi.
    Feb. 15, 2011.

      Melinda Lucas Peevy, attorney for appellants.
    Wayne Dowdy, Angela Ylona Cocker-ham, Magnolia, attorneys for appellee.
   GRIFFIS, J.,

for the Court:

¶ 1. Citigroup Global Markets, Inc. and Scott Jones (collectively “Citigroup”) appeal the Pike County Circuit Court’s judgment that denied their motion to compel arbitration. Citigroup argues that the circuit court erroneously found that: (1) Citigroup was not a party to the arbitration agreement, and (2) the arbitration agreement was unconscionable. We find reversible error. Accordingly, the judgment of the circuit court is reversed and rendered, and this case is remanded for further proceedings consistent with this opinion.

FACTS

¶ 2. Citigroup is an investment company headquartered in New York with offices in Mississippi. Smith Barney, Inc. is a division of Citigroup. Randy Braswell opened two accounts at Smith Barney in 1996. Braswell executed a client agreement containing a pre-dispute arbitration clause.

¶ 3. On June 17, 2008, Braswell filed his complaint. He alleged that Citigroup (1) failed to follow his instructions regarding his investment accounts, (2) negligently handled his investments, and (3) breached its fiduciary duty. Braswell and Citigroup then filed a joint motion to stay the proceedings pending arbitration.

¶ 4. Two months later, Braswell filed a motion to withdraw the joint motion to stay the proceedings. In support of his motion, Braswell stated that the Financial Industry Regulatory Authority (FIN-RA) — the largest non-governmental regulator of security firms in the United States — prescribes the rules governing arbitration of disputes involving its members. Braswell cited FINRA Rule 12206 that no claim is eligible for submission to arbitration if six years have elapsed since the event giving rise to the claim. Since Braswell’s claims dated back to 1996-more than six years before his complaint was filed — Braswell asserted that his claims were not subject to arbitration.

¶ 5. Citigroup responded with a motion to compel arbitration. Citigroup argued that all of Braswell’s claims fall within the scope of the arbitration agreement. Further, Citigroup stated that the six-year time limit for FINRA arbitration does not apply when a claim is submitted for arbitration by a court. Citigroup cited FIN-RA Rule 12206(c), which states: •

The rule does not extend applicable statutes of limitations; nor shall the six-year time limit on the submission of claims apply to any claim that is- directed to arbitration by a court of competent.jurisdiction upon request of a member or associated person. .

¶ 6. Braswell then filed an amended complaint to add as a defendant Jones, a financial advisor at Smith Barney. Citigroup and Jones responded with another motion to compel arbitration.

¶ 7. The circuit court granted Braswell’s motion to withdraw the joint motion to stay pending arbitration and denied Citigroup’s motion to compel arbitration. The circuit court found that: (1) the arbitration clause failed to encompass claims against Citigroup as a successor of Smith Barney, and (2) the arbitration terms were rendered unconscionable by the merging of all securities-regulatory organizations into one organization — FINRA. Citigroup now appeals.

STANDARD OF REVIEW

¶ 8. We apply a de novo standard of review to the denial of a motion to compel arbitration because the motion presents a question of law as to whether the circuit court has jurisdiction to hear the underlying matter. Vicksburg Partners, L.P. v. Stephens, 911 So.2d 507, 513 (¶ 9) (Miss.2005) (overruled on other grounds).

¶ 9. “In determining the validity of a motion to compel arbitration under the Federal Arbitration Act, courts generally conduct a two-pronged inquiry. The first prong has two considerations: (1) whether there is a valid arbitration agreement and (2) whether the parties’ dispute is within the scope of the arbitration agreement.” East Ford, Inc. v. Taylor, 826 So.2d 709, 713 (¶ 9) (Miss.2002). The second prong of the inquiry is “whether legal constraints external to the parties’ agreement foreclosed arbitration of those claims.” Id. at 713 (¶ 10) (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626, 105 S.Ct. 3346, 87 L.Ed.2d 444, (1985)).

¶ 10. Further, “only generally applicable contract defenses, such as fraud, duress, or unconscionability, can be used to invalidate arbitration provisions or agreements” governed by the FAA. Stephens, 911 So.2d at 514 (¶ 11). “Doubts as to the availability of arbitration must be resolved in favor of arbitration. Unless it can be said with positive assurance that an arbitration clause is not susceptible of an interpretation which would cover the dispute at .issue, then a stay pending arbitration should be granted.” IP Timberlands Operating Co., Ltd. v. Denmiss Corp., 726 So.2d 96, 107 (Miss.1998) (internal citations and quotation omitted).

ANALYSIS

1. Is Braswell bound to arbitrate his claims against Citigroup, a successor of Smith Barney?

¶ 11. The circuit court held that the client agreement between Braswell and Smith Barney created an ambiguity as to whether claims against Citigroup, as a successor to Smith Barney, are subject to the arbitration clause contained within the client agreement. Citigroup argues that the client agreement clearly and expressly encompasses Citigroup as Smith Barney’s successor; therefore, Citigroup is entitled to enforce the arbitration agreement.

¶ 12. At issue are clauses six and seven of the client agreement. Clause six contains the arbitration clause, which states:

6. Arbitration
• Arbitration is final and binding on the parties.
• The parties are waiving their right to seek remedies in court, including the right to jury trial.
• Pre-arbitration discovery is generally more limited than and different from court proceedingSs
• The arbitrator’s award is not required to include factual findings or legal reasoning, and any party’s right to appeal or to seek modification of rulings by the arbitrators is strictly limited.
• The panel of arbitrators will typically include a minority of arbitrators who were or are affiliated with the securities industry.
I agree that all claims or controversies, whether such claims or controversies arose prior, on or subsequent to the date hereof, between me and SB and/or any of its present or former officers, directors, or employees concerning or arising from (i) any account maintained by me with SB individually or jointly with others in any capacity; (ii) any transaction involving SB or any predecessor firms by merger, acquisition or other business combination and me, whether or not such transaction occurred in such account or accounts; or (iii) the construction, performance or breach of this or any other agreement between us, any duty arising from the business of SB or otherwise, shall be determined by arbitration before, and only before, any self-regulatory organization or exchange of which SB is a member. I may elect which of these arbitration forums shall hear the matter by sending a registered letter or telegram addressed to Smith Barney at 388 Greenwich Street, New York, N.Y. 10013-2396, Attn.: Law Department. If I fail to make such election before the expiration of five (5) days after receipt of a written request from SB to make such election, SB shall have the right to choose the forum.
No person shall bring a putative or certified class action to arbitration, nor seek to enforce any pre-dispute arbitration agreement against any person who has initiated in court a putative class action; or who is a member of a putative class who has not opted out of the class with respect to any claims encompassed by the putative class action until: (i) the class certification is denied; (ii) the class is .decertified; or (iii) the customer is excluded from the class by the court.
Such forbearance to enforce an agreement to arbitrate shall not constitute a waiver of any rights under this agreement except to the extent stated herein.

(Emphasis added).

¶ 13. Clause seven of the client agreement states:

The provisions of the Agreement shall be continuous, shall cover individually and collectively all accounts which I may open or reopen with SB, and shall inure to the benefit of SB’s present organization or any successor organization or assigns ....

(Emphasis added).

¶ 14. The circuit court found that the client agreement was ambiguous, stating:

[W]hen read as a whole, the contract is ambiguous as to which parties are bound by the contract. In subsection six of the Client Agreement, the plaintiff agreed to resolve all claims through arbitration that might arise with SB or any of its “present or former officers, directors or employees,” and claims arising from any “transaction involving SB or any predecessor firms by merger, acquisition or other business combination....” In subsection seven of the Client Agreement the document states that the provisions of the Agreement shall inure to the benefit of SB’s present organization or any successor organization or assigns.
Read alone, the arbitration clause clearly and unambiguously fails to bind any successor of Smith Barney. The -subsequent clause in subsection seven that purports to bind Smith Barney’s successors, creates the ambiguity.

¶ 15. Upon this finding of ambiguity, the circuit court applied rules of contract construction to find that Citigroup, as a successor to Smith Barney, was not a party under the terms of the contract. First, the circuit court construed the language of the contract against Citigroup because Smith Barney was the drafter of the agreement.

¶ 16. Second, the circuit court applied the doctrine of ejusdem generis, which dictates‘that specific contract provisions control over general contract provisions. Clause six contains the specific provision on arbitration, and the circuit court found that it does not name Smith Barney’s successors as parties to the contract. Clause seven contains the general provision, which states that the client agreement binds all of Smith Barney’s successors to all provisions of the agreement. The circuit court concluded that clause six, specific to arbitration, controlled over the general language found in clause seven.

¶ 17. However, we find that the contract unambiguously applies to the successors of Smith Barney; therefore, the circuit court’s application of these rules of contract construction was in error. The supreme court has set out a three-tiered approach to contract interpretation. Royer Homes of Miss., Inc. v. Chandeleur Homes, Inc., 857 So.2d 748, 752 (¶ 10) (Miss.2003). First, the “[l]egal purpose or intent should ... be sought in an objective reading of the words employed in the contract to the exclusion of parol or extrinsic evidence.” Id. (citations omitted). “Second[ ], if the court is unable to translate a clear understanding of the parties’ intent, the court should apply the discretionary ‘canons’ of contract construction.” Id. at 753 (¶ 11) (citation omitted). “Finally, if the contract continues to evade clarity as to the parties’ intent, the court should consider extrinsic or parol evidence.” Id. (citation omitted).

¶ 18. We must first look to the four corners of the client agreement to determine whether it was the intent of the parties to arbitrate claims against Smith Barney’s successors. “When construing a contract, we will read the contract as a whole, so as to give effect to all of its clauses.” Facilities, Inc. v. Rogers-Usry Chevrolet, Inc., 908 So.2d 107, 111 (¶ 10) (Miss.2005). A contract is ambiguous when it “can be interpreted as having two or more reasonable meanings.” Miss. Farm Bureau Cas. Ins. Co. v. Britt, 826 So.2d 1261, 1265 (¶ 14) (Miss.2002).

¶ 19. Reading the client agreement as a whole, we begin with the definition of the term “SB.” The first sentence of the client agreement states:

In consideration of your opening one or more accounts for me ... and your agreeing to act as broker/dealer for me for the extension of credit and in the purchase or sale of securities, commodities, options and other property, it is agreed in respect to any and all accounts, whether upon margin or otherwise, which I now have or may at any future, time have with Smith Barney Inc. or its direct or indirect subsidiaries and affiliates or their successors or assigns (hereinafter referred to as “you” or “your or “SB ”), that:....

(Emphasis added). The agreement then contains seventeen separate clauses, one of which is the arbitration agreement found in clause six. It is clear from this first sentence that the parties intended for the term “SB” to refer not only to Smith Barney but also to Smith Barney’s direct or indirect subsidiaries and affiliates or their successors or assigns.

¶20. Accordingly, by its use of the term “SB” the arbitration agreement encompasses successors of Smith Barney in its statement that “all claims or controversies ... between [Braswell] and SB ... shall be determined by arbitration.... ” Clause seven further expresses this intent of the parties by stating: “The provisions of the Agreement shall ... inure to the benefit of SB’s present organization or any successor organization or assigns.”

¶ 21. We find that the contract as a whole unambiguously binds any successor of Smith Barney. Both parties concede that Citigroup is a successor of Smith Barney; thus, Citigroup is a party to the agreement, and Braswell’s claims against Citigroup are encompassed by the arbitration agreement.

¶ 22. We further note that the circuit court denied the motion to compel arbitration as to all defendants, including Jones, an employee of Smith Barney. We find that the arbitration agreement explicitly covers all disputes concerning employees of Smith Barney. Accordingly, Braswell’s claims against Jones are also subject to arbitration.

2. Is the arbitration agreement unconscionable due to the formation of FINRA or the requirement that Braswell pay the entire cost of the arbitration?

¶ 28. Alternatively, the circuit court held that the arbitration agreement was unconscionable. Specifically, the circuit court found that the agreement required Braswell to bear the expense of the entire arbitration, and the agreement purported to give Braswell an option of which self-regulatory organization of which Smith Barney was a member would arbitrate the dispute. However, after the agreement was signed, all of those organizations merged into FINRA. The circuit court found that this effectively left Bras-well with no choice; therefore, the arbitration agreement was oppressive as written.

¶ 24. Unconscionability is defined as “an absence of meaningful choice on the part of one of the parties, together with contract terms which are unreasonably favorable to the other party.” East Ford, 826 So.2d at 715 (¶ 17) (citation omitted). There are two types of unconsciona-bility:

Procedural unconscionability may be proved by showing a lack of knowledge, lack of voluntariness, inconspicuous print, the use of complex legalistic language, disparity in sophistication or bargaining power of the parties and/or a lack of opportunity to study the contract and inquire about the contract terms. Substantive unconscionability may be proven by showing the terms of the arbitration agreement to be oppressive.

Id. at 714 (¶¶ 13-14) (citation omitted).

¶ 25. Here, because the circuit court found that the agreement was oppressive, we proceed to an analysis of substantive unconscionability. Braswell, as the party opposing arbitration, bears the burden to prove that the terms of the agreement are unconscionable. MS Credit Ctr., Inc. v. Horton, 926 So.2d 167, 175 (¶ 21) (Miss.2006). We find that he has failed to meet this burden.

¶ 26. First, he claims that his lack of choice of a forum for the arbitration is unfair. The agreement states that the arbitration will be held before “any self-regulatory organization or exchange of which SB is a member. [Braswell] may elect which of these arbitration forums shall hear the matter by sending a registered letter or telegram addressed to Smith Barney....” Citigroup admitted that, since the signing of the agreement, all of the qualifying organizations have merged into FINRA leaving Braswell no other choice of forum other than FINRA. However, that alone does not render the arbitration agreement unconscionable.

¶ 27. The supreme court ruled on this issue in Cleveland v. Mann, 942 So.2d 108 (Miss.2006). An arbitration agreement between a physician and a patient provided that the arbitration shall be submitted to Judicial Arbitration and Mediation Services, an alternative dispute-resolution service chosen by the physician. Id. at 113 n. 3. The patient argued that the agreement was substantively unconscionable due to the physician’s right to choose the arbitration association. Id. at 116 (¶ 28).

¶ 28. The supreme court held that the agreement was not unconscionable because it provided the patient with a proper forum, stating:

while unconscionably oppressive terms can be facially invalid, a per se finding of substantive unconscionability is strictly applicable only to a provision that by its very language significantly alters the legal rights of the parties involved and severely abridges the damages which they may obtain. The agreement at issue provides [the patient] with a fair opportunity and a proper forum in which to dispute his claims. It does not limit [the patientjs damages, [his] legal rights, or [the doctor and clinic]’s liability. The agreement further provides for arbitration by a neutral association in the business of providing neutral arbitrators.

Id. at 117 (¶ 32) (internal citation and quotation omitted).

¶ 29. Similarly, the arbitration agreement here provides a proper arbitration forum. Braswell has shown no evidence that FINRA arbitration would be biased toward Citigroup or unfair in any other way. The formation of FINRA may have eliminated Braswell’s choice of a forum, but it did not limit his damages or legal rights. Nor did it affect the liability of Citigroup. The legal rights of the parties were not significantly altered; therefore, the agreement is not per se substantively unconscionable because of the formation of FINRA.

¶ 30. Second, Braswell asserts that FINRA’s costly arbitration fees are so oppressive as to prevent or deter him from bringing his claims to arbitration. The circuit court’s order stated that Citigroup’s attorney conceded that the arbitration agreement would require Braswell to bear the expense of the entire arbitration. The circuit court found this to be oppressive.

¶ 31. However, the circuit court’s finding as to fees is not supported by the record. The arbitration agreement found in clause six does not address arbitration fees. Citigroup states in its brief to this Court that it made no such concession that Braswell would bear the entire cost of the arbitration. As there is no transcript of the hearing in the record before us, we are unsure of what was stated to the circuit court. But we do not find the concession supported by the record because the arbitration agreement does not mention fees much less require Braswell to bear the entire cost of the arbitration fees.

¶32. Citigroup states that each party would be required to pay a filing fee and bear their own expense throughout the arbitration process. Braswell does not refute that statement in his brief to this Court. He merely argues that FINRA’s fees are so costly as to be oppressive. He cites to a flow chart of fees that is in the record; however, the ■ flow chart merely names certain fees for services provided by FINRA. The amount of the fees are not listed, nor are we told which of those fees Braswell would be assessed for arbitration in this case.

¶ 33. Furthermore, as Citigroup argues, Braswell has made no showing that his fees for arbitration would be more costly than pursuing his claim in the court system. We have no evidence before us to conclude that Braswell is bound to bear the cost of the entire arbitration or that FINRA’s fees are so costly as to be oppressive. As such, Braswell’s argument that the arbitration agreement is unconscionable is without merit.

¶ 34. The judgment of the circuit court is reversed, and the case is remanded with directions for the circuit court to compel arbitration.

¶ 35. THE JUDGMENT OF THE CIRCUIT COURT OF PIKE COUNTY IS REVERSED AND RENDERED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

LEE AND MYERS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. IRVING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, C.J.

IRVING, J.,

dissenting:

¶ 36. In this case, the circuit court determined that the client agreement that Randy Braswell signed with Smith Barney was ambiguous in that paragraph six, the arbitration clause, and paragraph seven of the agreement are in conflict as to the identity of parties who are required to arbitrate. Consequently, the circuit court denied Citigroup Global Markets, Inc.’s (Citigroup) motion to compel arbitration. The circuit court also found that the arbitration clause Was unenforceable because it was oppressive and unconscionable.

¶ 37. The majority, finding that the client agreement is neither ambiguous nor unconscionable with respect to Braswell’s obligation to arbitrate, reverses and renders the judgment of the circuit court and remands for arbitration. I disagree with the majority’s conclusion that arbitration is proper in this case. Based on the record before us, I do not believe that we have sufficient information to make that determination. Therefore, I would reverse and remand this case to the circuit court for further findings of fact.

¶ 38. The preamble to the client agreement contains the following provision:

[I]t is agreed in respect to any and all accounts, whether upon margin or otherwise, which I [Braswell] now have or may at any future time have with Smith Barney Inc. or its direct or indirect subsidiaries and affiliates or their successors or assigns (hereinafter referred to as “you” or “your” or “SB” that....)

(Emphasis added).

¶ 39. The arbitration clause contains the following language: “I [Braswell] agree that all claims or controversies, whether such claims or controversies arose prior, on[,] or subsequent to the date hereof, between me and SB and/or any of its present or former officers, directors, or employees concerning or arising ... (Emphasis added).

¶40. Paragraph seven of the client agreement contains the following language: “[t]he provisions of this Agreement shall be continuous, shall cover individually and collectively all accounts which I may open or reopen with SB, and shall inure to the benefit of SB’s present organization, and any successor organization or assigns.” (Emphasis added).

¶41. I cannot find in the record any definitive discussion or explanation of the relationship, if any, between Citigroup and Smith Barney. In other words, I cannot find any compelling evidence that Citigroup is either a direct or indirect subsidiary, affiliate, or a successor or assign of Smith Barney. Citigroup’s motion to compel arbitration states that Smith Barney is a division of Citigroup. The circuit court found ambiguity in the client agreement because the arbitration clause requires Braswell to arbitrate all claims arising between him and Smith Barney and any of Smith Barney’s “present or former officers, directors, or employees,” while paragraph seven of the agreement requires Braswell to arbitrate with SB’s “present organization, and any successor organization or assigns.”

¶ 42. It is clear that the language in the preamble covers not only Smith Barney but any of “its direct or indirect subsidiaries and affiliates or their successors or assigns.” Therefore, it seems to me that the pivotal question is: what is the relar tionship of Citigroup to Smith Barney? Was it a direct or indirect subsidiary, or affiliate of Smith Barney when the agreement was signed, or is it now a successor or assign of Smith Barney? In its motion to compel arbitration, Citigroup stated that Smith Barney is a division of Citigroup. The circuit court did not directly address the relationship issue. I assume that the court considered it unnecessary since it found ambiguity as to what entity or entities are covered in the agreement. Considering the language in the preamble, which embraces the entities covered in paragraph seven, I do not think the agreement is ambiguous. However, I do not think the record is sufficient for this Court to determine whether Citigroup is a subsidiary, affiliate, successor, or assign of Smith Barney. In my judgment, this is a factual determination. Therefore, I would reverse and remand for this reason.

¶ 43. As stated, the circuit court also found the arbitration clause unconscionable because the agreement would require Braswell to bear the expense of the entire arbitration. As with the first issue, I do not believe that the record is sufficient for us to determine whether the arbitration clause compels or supports that finding by the circuit court. The arbitration clause is silent on the issue of fees and expenses. On this point, I note that Braswell attached a fee flow chart to his response to Citigroup’s motion to compel. While the chart indicates that significant fees and expenses will be assessed during the arbitration process, it does not definitively indicate who will bear those fees and expenses. The circuit court stated in its order denying Citigroup’s motion to compel that Citigroup’s attorney conceded that Braswell would have to pay the fees and expenses. However, Citigroup in its brief denies that that is correct. Therefore, I would also remand this issue to the circuit court for a factual determination.

¶ 44. For all of the reasons presented, I would reverse the judgment of the circuit court and remand this case for further findings of fact.

KING, C.J., JOINS THIS OPINION.

      . The Mississippi Supreme Court has held that an appeal may be taken from the denial of a motion to compel arbitration. Tupelo Auto Sales, Ltd. v. Scott, 844 So.2d 1167, 1170 (¶ 10) (Miss.2003).


author: GRIFFIS, J., ROBERTS, J.,

text:
    J. Clifford HARRISON as Trustee (“Harrison”) and Regions Bank f/k/a AmSouth Bank and Successor in Interest to Deposit Guaranty National Bank (“Bank”), Appellants v. MISSISSIPPI TRANSPORTATION COMMISSION, Appellee.
    No. 2008-CA-02067-COA.
    Court of Appeals of Mississippi.
    Feb. 23, 2010.
    Rehearing Denied July 20, 2010.

      Jeffrey Dale Rawlings, Jon Jerdone Mims, Madison, attorneys for appellants.
    James T. Metz, attorney for appellee.
    Before MYERS, P.J., IRVING and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court:

¶ 1. J. Clifford Harrison, as trustee, and Regions Bank fik/a AmSouth Bank (“the Bank”), as successor in interest to Deposit Guaranty National Bank, appeal the judgment of the Webster County Special Court of Eminent Domain in favor of the Mississippi Transportation Commission (“MTC”) in the amount of $42,950. The Appellants claim that: (1) the trial court abused its discretion in denying the Appellants’ motion to amend judgment or, alternatively, for relief from judgment because the Appellants were not parties to the removal of funds deposited by the MTC and were not properly notified of the trial; (2) the trial court lacked authority to enter a money judgment against them under the eminent domain quick-take provision; and (3) the trial court’s judgment is in violation of Rules 8 and 54 of the Mississippi Rules of Civil Procedure. We agree that the trial court abused its discretion in denying the Appellants’ motion to amend judgment or, alternatively, for relief from judgment. Therefore, the judgment of the trial court is reversed, and this case is remanded for further proceedings consistent with this opinion.

FACTS

¶ 2. On October 20, 1998, the MTC filed a complaint for eminent domain proceedings to acquire 1.45 acres of land in Webster County, Mississippi for the purpose of expanding a portion of U.S. Highway 82. As the owner of the property, Sherry Mann (“Sherry”) was named as a defendant. The Appellants were named as defendants as the beneficiary and trustee under certain deeds of trust which secured Sherry’s indebtedness to the Bank.

¶ 3. A statement of valúe was filed with the complaint in which the MTC’s appraiser estimated just compensation for the taking to be $14,450. Accordingly, the MTC deposited $14,450 with the trial court. The trial court then granted the MTC the right of immediate title and possession of the property.

¶ 4. Pursuant to Mississippi Code Annotated section 11-27-83 (Rev.2004), the trial court appointed a disinterested appraiser, Andy Johnson, Jr., to determine just compensation. Johnson determined that the total compensation due to the owner was $57,400. The trial court entered an amended order granting the MTC the right of immediate title and possession upon the MTC’s deposit of the difference between $57,400 and the’ $14,450 already deposited with the trial court. The MTC complied with this order and deposited a total of $57,400 which was then released to the named defendants — Sherry, Harrison, and the Bank.

¶ 5. The check from the trial court was made out to “Sherry Belinda Mann a/k/a Sherry Mann, Ben F. Hilbun, Jr., Atty., Deposit Guaranty National Bank, Beneficiary, J.L. Clifford Harrison, Trustee.” The clerk’s docket shows that the check was delivered to Ben Hilbun, attorney for Sherry. The back of the check was endorsed by Hilbun and Sherry. Below their signatures is a stamp with the following: “Deposit Guaranty National Bank, Post Office Drawer 919, Eupora, Mississippi 39744-0919.” Below the stamp is an illegible signature and the notation: “Personal Banker, applied to ILS # 9500312557.” Apparently, the funds were applied to Sherry’s mortgage loan held by the Bank.

¶ 6. Thereafter, the MTC discovered that Sherry had conveyed the property to her mother, Peggy Mann (“Peggy”), by warranty deed. The MTC then amended the compláint to include the new landowners — Peggy and her husband, Wayne Mann. An agreed order of continuance of the trial was entered on May 7, 2002. This order was signed by counsel for the MTC and counsel for the Manns; however, the Appellants did not approve this order. Trial was set for February 17, 2004. Although the MTC’s notice of trial date was mailed to the Appellants, it was not served on the Appellants’ attorney of record.

¶ 7. A second agreed order of continuance was entered on June 15, 2004, again signed only by counsel for the MTC and counsel for the Manns. The MTC filed a motion for trial setting on February 15, 2007. The Appellants were not served with this motion. On September 7, 2007, the • trial court entered an order setting trial for June 17, 2008.

¶ 8. The jury found that the defendants in the eminent domain action — Sherry, Peggy, Wayne, the Bank, and Harrison— were owed $14,450 as just compensation for the taking. Mississippi Code Annotated section 11-27-87 (Rev.2004), titled “Effect of insufficiency or excess of deposit,” states, in pertinent part, that:

If the plaintiff takes title to and possession of the .land condemned pursuant to the order of the court and the amount of the compensation as determined upon final disposition of the case is less than the amount of the deposit, the plaintiff shall be entitled to a personal judgment against the owner for the amount of the difference.

Accordingly, the trial court entered a judgment against the defendants and in favor of the MTC in the amount of $42,950 — the difference between the MTC’s deposit of $57,400 and the jury’s award of $14,450.

¶ 9. The Appellants filed a motion to amend judgment or, alternatively, for relief from judgment claiming that they should be removed as judgment debtors or, alternatively, that they are entitled to relief from the judgment since they were not party to the withdrawal of the funds deposited by the MTC. The trial court denied the motion and found that the Appellants were proper parties to the action and chose not to appear and defend their interests at the trial conducted on June 17, 2008. The trial court further noted that the back of the check was endorsed by the Bank; thus, the Appellants were parties to the removal of funds.

¶ 10. The trial court entered an order reopening the time for appeal, and the Appellants properly filed their notice of appeal.

STANDARD OF REVIEW

¶ 11. “The grant or denial of a Rule 59 motion is within the discretion of the judge[,] and we will not reverse the denial absent an abuse of discretion or if allowing the judgment to stand would result in a miscarriage of justice.” Journeay v. Berry, 953 So.2d 1145, 1160 (¶ 51) (Miss.Ct.App.2007) (citing Clark v. Columbus & Greenville Ry. Co., 473 So.2d 947, 950 (Miss.1985)). The grant or denial of a Rule 60(b) motion is also reviewed under an abuse-of-discretion standard. Tel. Man, Inc. v. Hinds County, 791 So.2d 208, 210 (¶ 9) (Miss.2001) (citation omitted).

ANALYSIS

Whether the judgment against the Appellants was in error because the Appellants were not parties to the removal of funds deposited by the MTC and were not properly notified of the trial.

¶ 12. The Appellants claim that their request for relief from judgment under Rules 59(e) and 60(b)(6) of the Mississippi Rules of Civil Procedure was improperly denied by the trial court because they were not a party to the removal of funds deposited by the MTC. Further, the Appellants also claim that they were not properly notified of the trial date.

¶ 13. “M.R.C.P. 59(e) provides for a motion to alter or amend a judgment. In order to succeed on a Rule 59(e) motion, the movant must show: (1) an intervening change in controlling law, (2) the availability of new evidence not previously available, or (3) the need to correct a clear error of law or to prevent manifest injustice.” Joumeay, 953 So.2d at 1160 (¶ 51) (citing Brooks v. Roberts, 882 So.2d 229, 233 (¶ 15) (Miss.2004)). The Appellants argue that to hold them liable as judgment debtors in this matter results in manifest injustice.

¶ 14. Furthermore, Rule 60(b)(6) allows the trial court to relieve a party from a final judgment for “any reason justifying relief from the judgment.” The Appellants contend that sufficient evidence exists to show that the judgment is prejudicial, unconscionable, and unfair. We agree that the trial court should have either amended the judgment to remove the Appellants as judgment debtors or, alternatively, granted the Appellants relief from the judgment.

¶ 15. We first consider whether the Appellants were parties to the removal of the funds. The clerk’s docket record shows that the check was delivered to Hilbuq, Sherry’s attorney. Sherry and Hilbun both endorsed the check and then presented it to a teller at the Bank. Sherry had the check applied toward her mortgage loan held by the Bank. Harrison, the trustee, did not endorse the check. The only evidence that the Bank endorsed the check is the stamp placed on the check. The Bank claims that such stamp is insufficient to constitute an endorsement by the Bank so as to make the Bank a party to the removal of funds.

¶ 16. Because the check was ambiguous as to whether the parties were paid jointly or alternatively, i.e., there was no “and” or “or” language on the payee line of the check, Mississippi Code Annotated section 75-3-110(d) (Rev.2002) provides that the check is payable to the parties alternatively and may be negotiated by any of the parties in possession of the check. Thus, the Appellants’ endorsements were not required for Sherry to negotiate the check.

¶ 17. It is clear, as the MTC argues, that the MTC is entitled to a judgment in the amount of their excess deposit. However, to hold the Appellants responsible for that judgment — almost ten years after the money was disbursed to the landowner and applied to the landowner’s mortgage — constitutes manifest injustice. The Bank was a nominal party to this case as a lien holder, and the Bank’s lien had long since been satisfied by the time this judgment was entered. Sherry, as the landowner, benefitted from the disbursement of funds that were applied to reduce her mortgage on the land. To now hold the Appellants liable for repayment of those funds — when Sherry’s loan with the Bank has been satisfied and the Bank no longer has any claim against her — results in a significant windfall to Sherry and constitutes a patently unfair result for the Appellants.

¶ 18. The trial court held that the stamp constituted the Bank’s endorsement and made the Bank a party to the removal of funds. However, the stamp was placed on the check only because Sherry presented the check to the Bank to be applied to her mortgage loan. It was an abuse of discretion for the trial court to hold that this action by Sherry made the Bank a party to the removal of funds.

¶ 19. We next consider the trial'court’s finding that the Appellants failed to appear and defend their interests at trial. Many pleadings in this matter regarding the trial date were not served on the Appellants’ attorney of record. Although the Bank admits it was aware of the trial date, it submitted an affidavit from its attorney stating that he called Josh Freeman, attorney for the MTC, the day before trial. He informed Freeman that the Bank’s lien had been paid in full and that he would not attend the trial because the Bank no longer had an interest in the property. Freeman agreed and never indicated that the MTC would seek- to collect the judgment from the Bank. This conversation is not disputed by the MTC-

¶ 20. The MTC’s pleadings in this case never indicated that it was going to attempt to collect judgment from the Appellants. Instead, the MTC argues that the quick-take provisions put Appellants on notice that the funds deposited with the trial court might have to be returned to the MTC. Section 11-27-87 states that, if the jury award is less than the deposit, “the plaintiff shall be entitled to a personal judgment against the owner for the amount of the difference.” (Emphasis added). The MTC claims that the Bank was an owner of the funds because its endorsement was required for Sherry to negotiate the check; thus, the Bank could force Sherry to apply the check to its loan. However, as we noted above, this argument is incorrect. The payees were listed in the alternative; therefore, Sherry could negotiate the check alone. See Miss.Code Ann. § T5 — 3—110(d). MTC’s argument is further negated by the fact that Harrison, the trustee, never endorsed the check. This clearly indicates that the endorsement of all the parties was not required for Sherry to negotiate the check.

¶ 21. The Appellants did file an answer in this case requesting that any compensation awarded in this matter be paid first to the Bank to satisfy the indebtedness on Sherry’s mortgage. However, that answer was filed on February 4, 2000 — over eight years before the judgment was entered in this case. We agree that the Bank, at that time, could have been considered an “owner” of the funds because it still had a lien on the property. However, that lien was long extinguished before the judgment was entered.

¶ 22. The MTC claims that Sherry does not have the funds for repayment purposes because she used the funds to- extinguish a loan held by the Bank. However, again, it is Sherry who benefitted from this transaction as she now holds the land free and clear of the encumbrance of the mortgage loan.

¶ 23. Due to the considerable delay between the time the funds were disbursed and the time of trial, we find it prejudicial and inequitable for the trial court to hold that the Appellants failed to appear and defend their interests. Their interests were dissolved at the moment Sherry’s loan was extinguished. They were not on notice that they would be liable to the MTC under the quick-take provisions because they had no reason to believe they were still an “owner” of the property.

¶ 24. The trial court had a “grand res-ervón' of equitable power to do justice” and grant the Appellants relief from the judgment. Bryant, Inc. v. Walters, 493 So.2d 933, 939 (Miss.1986) (citation omitted). We find that sufficient evidence exists to show that the trial court abused its discretion in denying the Appellants’ motion to amend -the judgment or, alternatively, for relief from the judgment. Accordingly, the judgment of the trial court is reversed, and the case is remanded for the trial court to grant such relief.

¶ 25. THE JUDGMENT OF THE WEBSTER COUNTY SPECIAL COURT OF EMINENT DOMAIN IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

MYERS, P.J., BARNES, ISHEE AND MAXWELL, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY. ROBERTS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, C.J., LEE, P.J., AND CARLTON, J.

ROBERTS, J.,

dissenting:

. ¶ 26. The majority finds that the trial court abused its discretion when it denied the Appellants’ post-trial motions because the Appellants were merely nominal parties with no interest in the eminent domain proceedings after Sherry Mann (Sherry) satisfied the debts on her property. Consequently, the majority concludes that it was manifestly unjust for the trial court to hold the Appellants responsible for reimbursing the Mississippi Transportation Commission (MTC). With utmost respect for the majority, I do riot reach the same conclusion. The brief discussion of the facts that follows is not due to any inadequacies in the majority’s well-written opinion, but it is to provide a framework for my own opinion.

¶27. The broad issue on appeal is whether the Appellants should be liable for reimbursing the MTC for money that it deposited as the tentative figure necessary to compensate Sherry for the MTC’s taking of an approximately 1.45-acre portion of Sherry’s property in Webster County, Mississippi. When the MTC filed.its initial complaint in October 1998, it sought to utilize the statutory “pre-take” eminent domain proceedings set forth within Mississippi Code Annotated section 65-1-301 to -347 (Rev.2005). The MTC filed a statement of value and claimed just compensation for the taking was $14,450. Accordingly, the MTC deposited that figure with the Webster County Circuit Clerk.

¶ 28. In April 1999, Sherry moved to dismiss the MTC’s complaint on the basis that the Mississippi Supreme Court had determined that section 65-1-301 to -347 was unconstitutional. The MTC opposed Sherry’s motion to dismiss, but it ultimately amended its complaint and opted to proceed pursuant to the “quick-take” provisions set forth in Mississippi Code Annotated section 11-27-81 to -91 (Rev.2004), rather than the “pre-take” procedure set forth in section 65-1-301 to -347.

¶ 29. The circuit court convened a special court of eminent domain (the trial court)- and appointed Andy Johnson, Jr., an independent, disinterested appraiser to provide an appraisal of the property at issue pursuant to the “quick-take” proceedings. Johnson’s appraisal reflected his opinion that the MTC should pay Sherry $57,400 as compensation for taking the 1.45-acre section of her fifty-acre parcel of property.

¶ 30. In September 1999, the trial court granted the MTC the right to immediate title to and possession of the property. However, the trial court’s order reflected that the MTC’s right to immediate title to and possession of the property was conditioned upon the MTC’s deposit of the difference between the amount it had previously deposited and Johnson’s appraised value of the -property. Shortly afterward, the MTC deposited $42,950 with the circuit clerk.,The trial court then ordered “that the sum of $57,400.00 which has been deposited to this [cjourt is to be released to the defendants immediately.”

¶31. In November 1999, the circuit clerk wrote a check for the value of the deposit to multiple parties, including the Appellants. As the majority notes, Sherry presented the check to Regions Bank fik/a AmSouth Bank (the Bank) to satisfy all or part of an unspecified debt. It is possible that Sherry paid off some portion of her mortgage debt with the Bank, but the record does not indicate exactly to what debt those funds were applied.

¶ 32. In January 2000, the MTC amended its complaint for the second time. In February 2000, the Bank filed an answer to the MTC’s second amended complaint. According to the Bank, it was “the beneficiary of duly recorded deeds of trust on the subject property.” The Bank went on to state that “[a]ny distributions, compensation or awards in this proceeding should be paid first to Bank [sic] to satisfy the indebtedness then due, if any.”

¶33. After-numerous attempts to set a trial date, changes in defense counsel, and various discovery issues, the trial court finally scheduled the matter for trial to occur in June 2008. During the trial, the jury found that the MTC should pay Sherry $14,500 for taking the 1.45-acre portion of property at issue. The MTC subsequently sought reimbursement of the difference between the amount deposited and disbursed and the judgment amount.

¶ 34. Despite having received notice of the trial, the Bank’s attorney contacted the MTC’s attorney and stated that he would not be appearing at the hearing. The Appellants neglected to attend the hearing, and the trial court held that the Appellants would be responsible for reimbursing the MTC. The Appellants later unsuccessfully sought post-trial relief from the trial court’s judgment. The majority finds that the trial court abused its discretion when it denied the Appellants’ motion for relief from judgment. I respectfully disagree.

¶35. “The grant or denial of a Rule 60(b) motion is generally within the discretion of the trial court.” Am. Cable Corp. v. Trilogy Commc’ns, Inc., 754 So.2d 545, 549 (¶ 7) (Miss.Ct.App.2000). The majority mentions that previous unrelated pleadings were not properly served on the Bank; the Bank’s lawyer was of the opinion that the Bank no longer had an interest in the property; and the MTC’s lawyer did not persuade the Bank’s lawyer to appear. The majority also emphasizes that the MTC’s lawyer did not tell the Appellants that he would try to recover a judgment from them. However, there is no indication that the MTC’s lawyer ever commented on the matter in any form. That is, the MTC’s lawyer did not say he would or would not attempt to collect any judgment from the Bank or any other particular party. However, it openly proceeded pursuant to section 11-27-81 to -91, and Mississippi Code Annotated section 11-27-87 (Rev.2004) clearly includes a provision stating that the MTC would be entitled to reimbursement if the amount deposited was in excess of the value of the property. The Appellants simply made a calculated, unilateral decision that they had no interest in attending the hearing.

¶ 36. It is noteworthy that the Appellants never sought to be dismissed from the litigation. According to the Appellants, at some unspecified point in the proceedings, Sherry satisfied her debt, and as a result the Appellants no longer had an interest in the litigation. The record does not specify when Sherry satisfied her debt. More importantly, the Appellants were never dismissed as parties to the litigation. They merely decided that they would not attend the hearing. I can find no authority authorizing a defendant to unilaterally dismiss himself from a civil suit without leave or permission of the trial court.

¶ 37. The majority finds that the trial court’s decision to deny the Appellants’ post-trial motion results in manifest injustice because Sherry benefitted from the disbursement. However, the Appellants also benefitted from the disbursement. Sherry presented all of the “quick-take” funds to the Bank to satisfy at least some portion of her debt. Accordingly, the Bank no longer had to manage the risk that accompanied the possibility of Sherry defaulting on her mortgage. Assuming Sherry did not satisfy the remainder of her debt with the Bank when she tendered the disbursement funds, once those funds were applied to Sherry’s mortgage, the Bank instantly received greater security on her mortgage because it was less likely that Sherry would default on the property in which she had more equity. Additionally, the Bank benefitted in that it earned interest on the money that it had previously loaned to Sherry.

¶ 38. Mississippi Code Annotated section 11-27-87 sets forth that, in the event deposited and disbursed funds are greater than the value of property subject to eminent domain proceedings, the entity proceeding pursuant to section 11-27-87 is entitled to a “personal judgment against the owner.” (Emphasis added). The majority finds that the Appellants were “owners” at one time, but they ceased to be owners when Sherry satisfied her debt. I agree that the Appellants were “owners” at the time the proceedings were initiated. The deed of trust provided that the Trustee was to hold legal title to Sherry’s land on behalf of the Bank’s interest in the property. They may very well have ceased to be “owners” when Sherry satisfied her debt — whenever that was, as the record does not indicate such — but the Appellants may not simply decide on their own that they will neglect to attend court proceedings because, in their opinion, they have no more interest in the litigation. They made a calculated decision to forego attending the hearing, and they did so at their own peril.

¶ 39. According to the majority, the Appellants had no reason to know that they were still “owners” of the property at issue. However, they had every reason to know they were parties to the litigation. They made an informed decision not to attend the trial. They did not seek to be dismissed from the case, and they never informed the trial court that they had no interest in the litigation. They simply decided that, although they were parties to litigation, they had no reason to attend the trial. I find no manifest injustice where parties choose to avail themselves of a court and then refuse to attend further proceedings once they decide, on their own, that they are through attending court proceedings. In my opinion, the trial court did not abuse its discretion. I would concur with the majority if the Bank would have timely informed the trial court that it had applied the disbursement funds to Sherry’s debt and that it had released its interest on the 1.45-acre section of property at issue and then moved to be dismissed from the litigation and, after having done so, then received more disbursement funds from Sherry. Under the present circumstances, however, I would hold that the trial court acted well within its discretion when it denied the Appellants’ motion for relief from the judgment when their only argument for relief was that they did not want to attend a hearing despite then being parties to the litigation and the clear statutory provision that certainly included them as parties from which the MTC could seek reimbursement. Just as every other litigant, the Appellants were charged with knowledge of the law, including section 11-27-87. Accordingly, I respectfully dissent.

KING, C.J., LEE, P.J., AND CARLTON, J., JOIN THIS OPINION.

      . The Bank and trustee will be referred to collectively as the "Appellants.”

      . The complaint was later amended to seek immediate title and possession under Mississippi's quick-take provision codified at Mississippi Code Annotated sections 11-27-81 to - 91 (Rev.2004).

      . The MTC argues that the record is unclear that it was, in fact. Sherry’s loan to which the funds were applied because the loan is merely referred to by number. However, the MTC then argues that the Bank controlled the funds by requiring that the funds be applied to Sherry’s loan. Such argument essentially concedes that the funds were applied to Sherry’s loan as there is nothing in the record that would indicate otherwise.

      . Mississippi Code Annotated section 75-3-110(d) states that:
      If an instrument is payable to two (2) or more persons alternatively, it is payable to any of them and may be negotiated, discharged, or enforced by any or all of them in possession of the instrument. If an instrument is payable to two (2) or more persons not alternatively, it is payable to all of them and may be negotiated, discharged, or enforced only by all of them. If an instrument payable to two (2) or more persons is ambiguous as to whether it is payable to the persons alternatively, the instrument is payable to the persons alternatively.

      . In Lemon v. Mississippi Transportation Commission, 735 So.2d 1013, 1020 (¶ 30) (Miss.1999), the Mississippi Supreme Court found that the condemnation proceedings set forth in .65-1-301 to -347 were unconstitutional violations of the right to procedural due process.

      . The MTC stated that it had recently discovered that, on November 5, 1999, Sherry had conveyed her property to her mother, Peggy Mann. The MTC sought to amend its complaint to include Peggy and Wayne Mann, Peggy’s husband, as defendants.

      . A "legal owner” is "one in whom the legal title to real estate is vested, but who holds it in trust for the benefit of another, tíre latter being called the 'equitable' owner.” Black’s Law Dictionary 1106 (6th ed. 1990). A deed of trust "serv[es] the uses of a mortgage, by which the legal title to real property is placed in one or more trustees, to secure repayment of a sum of money or the performance of other conditions.” Id. at 414. Accordingly, the Trustee had legal title and was, therefore, a "legal owner.” As for the Bank, pursuant to Mississippi law, a mortgage "shall mean and include a deed of trust.” Miss.Code Ann. § 75-9-102(a)(55) (Rev.2002). Sherry was, therefore, a mortgagor, and a mortgagor gives "legal title or a lien” to a mortgagee as security for a loan. Black’s Law Dictionary 1012 (6th ed. 1990). Since (1) Sherry’s deed of trust is considered a mortgage pursuant to Mississippi law, and (2) Sherry (the mortgagor) gave the Bank (the mortgagee) legal title to the property, the Bank also was a "legal owner” of the properly af issue.