author: RANDOLPH, Justice, KITCHENS, Justice,

text:
    MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. Theresa Brown DEARMAN.
    No. 2010-JP-01435-SCT.
    Supreme Court of Mississippi.
    June 16, 2011.
    Rehearing Denied Aug. 11, 2011.

      Darlene D. Ballard, Ayanna Batiste Butler, John B. Toney, attorneys for appellant.
    Sean Jeffrey Tindell, attorney for appel-lee.
   RANDOLPH, Justice,

for the Court:

¶ 1. The Mississippi Commission on Judicial Performance (“Commission”) recommends a public reprimand, suspension for thirty days without pay and assessment of the costs of these proceedings for Justice Court Judge Theresa Brown Dearman of the West District of Stone County. Dear-man signed an Agreed Statement of Facts and Proposed Recommendation. The Court finds the agreed-upon proposed sanctions appropriate and orders them as recommended.

PROCEEDINGS BEFORE THE COMMISSION

¶ 2. In November 2009, December 2009, and March 2010, the Commission filed formal complaints charging Judge Dearman with willful misconduct in office and conduct prejudicial to the administration of justice bringing the judicial office into disrepute in violation of the Mississippi Code of Judicial Conduct (“Code”). Such conduct is actionable under Article 6, Section 177A of the Mississippi Constitution. The complaints charged violations of Canons 1, 2A, 2B, 3B(1), 3B(2), 3C(1), and 3E(1) of the Code.

¶ 3. In lieu of a hearing, the Commission and Judge Dearman signed an Agreed Statement of Facts and Proposed Recommendation. See M.C.J.P. Rule 8. Following acceptance of the recommendation by the Commission at its regular monthly meeting, the record (findings, clerk’s papers, and transcript) was filed with this Court. See Miss. RApp. P. 10(a); M.C.J.P. Rule 10B (Mississippi Rules of Appellate Procedure apply to all Commission proceedings before this Court). As there was no hearing, the transcript consisted only of the agreed statement of facts and proposed recommendation. Judge Dearman made no objection to the content of the record.

¶ 4. In September 2010, Judge Dearman and the Commission signed and filed with this Court a Joint Motion for Approval of Recommendation. Judge Dearman filed a simultaneous brief in support of the joint motion. However, Judge Dearman’s brief included factual allegations and assertions that dispute portions of the agreed statement and joint motion, and also attached proposed exhibits not included in the record before the Commission.

¶ 5. The Commission moved to “Strike Portions of Respondent’s Memorandum Brief in Support of Joint Motion for Approval of Recommendations filed by [the Commission].” Judge Dearman responded, arguing that the record was void of items that would have been included, had there been a hearing, and that the additional and contradictory material was presented to aid this Court in conducting its review. In our order granting the Commission’s motion, we found that the exhibits attached to Judge Dearman’s brief and the contradictory factual allegations and assertions were an impermissible attempt to add to the record. See Miss. R.App. P. 10(f). Although Judge Dearman is allowed to submit a brief, this Court will not consider exhibits or factual allegations and assertions that were not presented below. See M.C.J.P. Rule 10D. This Court examines only the record as presented.

AGREED FACTS

¶ 6. In April 2006, Judge Dearman presided over the initial appearance of Philipe D. White, who was charged with felony possession of a controlled substance, cocaine base. Judge Dearman set White’s bail at $2,500 and, as a condition of bail, required White to attend church at least once a week. In June 2006, a probation officer charged White with violating the terms of release. Judge Dearman issued a mittimus ordering that White be arrested and allowed no bond. When White was arrested, Judge Dearman set bond at $50,000. In September 2006, after White had waived a preliminary hearing, Judge Dearman ordered White released on $2,500 bond on the same conditions. A week later, the grand jury issued a true bill. In November 2006, White violated his release terms. As before, Judge Dear-man ordered that White be arrested and allowed no bond.

¶ 7. In May 2007, a Mississippi Bureau of Narcotics (“MBN”) agent filed an affidavit against Onnie Bond for possession of marijuana with intent to distribute. As a part of the same incident, a Mississippi Highway Patrol (“MHP”) trooper cited Bond for driving under the influence and five other traffic offenses. On the evening the charges were filed, Judge Dearman called the trooper and inquired about reducing the drug charge to a misdemeanor, as she questioned whether the quantity was enough to support a felony charge. Later that night, Judge Dearman called again, asking the trooper to authorize the release of Bond’s vehicle. The trooper properly declined to intervene, explaining that it was an MBN case and that the vehicle was being inventoried and might be held as evidence.

¶ 8. In October 2008, Judge Dearman set bond at $60,000 at William Ritzer’s initial appearance on felony charges for possession of a controlled substance. After the case was referred to the district attorney’s office for prosecution, Judge Dearman sua sponte reduced the bond to $10,000 and set conditions on the reduction, including Ritzer agreeing to enter a drug-rehabilitation program. Ritzer’s appearance bond was executed the same day. Approximately two months later, after Rit-zer had completed the program, Judge Dearman set new bail conditions and erroneously entered the bond amount as $5,000.

¶ 9. On February 2, 2009, Olan Brian Brown (Judge Dearman’s nephew) and his girlfriend, Shannon Jones, were charged with domestic violence and simple assault for their involvement in a domestic dispute. On the same day, Judge Dearman presided over the initial appearance of both individuals and set conditions for their release. Brown’s bond conditions were less stringent than Jones’s.

¶ 10. In March 2009, Judge Dearman issued a warrant for the arrest of Ricky Wayne Polk for grand larceny in the theft of property valued at $6,000. At Polk’s initial appearance, Judge Dearman sua, sponte amended the charge to petit larceny. After the county attorney contested the amendment, the case was transferred to the district attorney’s office. Subsequently, a grand jury issued a true bill for grand larceny.

¶ 11. In April 2009, Judge Dearman presided over Frank Drew Rettig’s initial appearance on felony charges of manufacturing methamphetamine and four misdemeanor traffic violations. In August 2009, Rettig waived a preliminary hearing, and Judge Dearman, without objection, reduced his bond to $10,000. In October 2009, Judge Dearman further reduced his bond to $2,000 and set conditions for the reduction, including Rettig agreeing to enter a drug-rehabilitation program. A week later, Judge Dearman increased his bond to $5,000, noting that Rettig could not enter the program. In a similar case in October 2009, Judge Dearman set Christopher T. Gray’s bond at $5,000 and, as a condition of his bond, required him to attend church twice a week. He had been charged with sale of a controlled substance.

¶ 12. In May 2009, Myriah Perry was charged with grand larceny for stealing property, including a digital camera. A note in the court file indicated that, if the camera was returned by a certain date, no charges would be filed. Judge Dearman learned through an ex parte communication that the camera had been returned. Based on this ex parte communication, she reduced the charge to a misdemeanor. Later, she dismissed the case under a mistaken belief that Perry was a minor and that the Youth Court would take jurisdiction.

¶ 13. Judge Dearman has made her views known to the public through her writings about the problems caused by the use of illegal drugs. She has expressed her view that the Stone County Sheriffs Department has been ineffectual in dealing with the problem. In these writings, she has invited ex parte communications on the subject. In May 2008, she wrote a letter to the sheriff, attaching to it a “communique” entitled, “Illegal Drugs, Effects, <& Do We Have a Problem?” In the communique, she stated, “So little is being done about the drugs in our County, State and Country.” She included her office phone number and invited “community leaders, law enforcement, churches, educators, and citizens” to call and discuss the problem. She also authored columns in a local newsletter in which she discussed her differences with the sheriff and advocated for her policy in drug cases of setting low bond amounts with conditions. In one column, she invited her readers to attend initial-appearance hearings at her court, adding, “Afterwards, I would appreciate your thoughts and ideas.”

ANALYSIS

¶ 14. Our review is guided by the rules we adopted, which “shall be liberally interpreted so as to carry out the mandate of the electorate by its approval of Section 177A of the Mississippi Constitution of 1890.” M.C.J.P. Rule 1C. We “‘accord careful consideration [to] the findings of fact and recommendations of the Commission ....’” Miss. Comm’n on Judicial Performance v. Boone, 60 So.3d 172, 176 (Miss.2011) (quoting In re Removal of Lloyd W. Anderson, Justice Court Judge, 412 So.2d 743, 746 (Miss.1982)). With all due consideration to the concerns stated in the dissent, the Statement of Facts and Proposed Recommendation is not contested by the parties in the record before us. Thus, no justiciable issue is before us regarding facts or recommendations. We are left only with our duty to impose a constitutionally permissible sanction. See Miss. Const. art. 6 § 177A.

I. Whether Judge Dearman’s conduct violated Article 6, Section 177A of the Mississippi Constitution.

¶ 15. We agree with the Commission that Judge Dearman violated Canons 1, 2A, 2B, 3B(1), 3B(2), 3B(7), 3C(1), and 3E(1) of the Code. We find by clear and convincing evidence that Judge Dearman’s conduct was willful, as well as prejudicial to the administration of justice, bringing her judicial office into disrepute. The judge’s conduct is in violation of Article 6, Section 177A of the Mississippi Constitution.

1116. Judge Dearman argues that “most of the Complaints against [her] are matters involving the exercise of judicial discretion, disagreements with [her] application of the law, and honest mistakes.” She now argues that her actions were not misconduct, but derived from being a fallible human, inevitably subject to occasional error “while making hundreds of decisions often under pressure.” This Court has defined the term “willful misconduct” to include “any knowing misuse of the office, whatever the motive.” In re Anderson, 412 So.2d 743, 745 (Miss.1982) (quoting In re Nowell, 293 N.C. 235, 237 S.E.2d 246, 255 (1977)). By engaging in the following conduct, Judge Dearman knowingly misused her office by: (1) sua sponte reducing bonds and charges without proper motion; (2) conditioning the reduction on church attendance; (3) exceeding her authority by altering bonds after a defendant had been released on bond or had waived preliminary hearing, or after a preliminary hearing had been conducted; (4) permitting others to create the impression that they were in a special position to influence her as a judge; (5) initiating and inviting ex parte communications; and (6) presiding at her nephew’s initial appearance. Her motivations (including her belief that her system for handling drug offenders is more effective and better serves the public) are irrelevant to a finding of willful misconduct in office. See Miss. Comm’n on Judicial Performance v. Vess, 10 So.3d 486, 489 (Miss.2009).

¶ 17. This Court has explained that “conduct prejudicial to the administration of justice that brings the judicial office into disrepute” includes, by necessity, all willful misconduct. Anderson, 412 So.2d at 745. However, such conduct may also include behavior brought about “through negligence or ignorance not amounting to bad faith.... The result is the same regardless of whether bad faith or negligence or ignorance are involved and warrants sanctions.” Miss. Comm’n on Judicial Performance v. Boykin, 763 So.2d 872, 875 (Miss.2000) (quoting In re Anderson, 451 So.2d 232, 234 (Miss.1984)).

¶ 18. Judge Dearman agreed with the Commission that her conduct violated several canons of the Code, particularly: Canon 1 (charging judges to establish, maintain, and enforce high standards of conduct to uphold the integrity of the judiciary); Canon 2A (charging judges to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary); Canon 2B (charging judges to avoid lending the prestige of their office to advance the private interests of others); Canon 3B(1) (charging judges not to hear and decide matters requiring disqualification); Canon 3B(2) (charging judges to be faithful to the law and not be swayed by public clamor); Canon 3B(7) (charging judges not to “initiate, permit, or consider ex parte communications” other than those expressly excepted); Canon 3C(1) (charging judges to discharge their administrative responsibilities without bias or prejudice and to cooperate with other judges and court officials); and Canon 3E(1) (charging judges to disqualify themselves when their impartiality may be questioned or on grounds provided by law or judicial canon).

¶ 19. Judge Dearman agreed with the Commission’s recommended sanctions. She acknowledges that she violated several canons of the Code and that her actions constituted willful misconduct prejudicial to the administration of justice, bringing her judicial office into disrepute. We accept the agreed-upon findings and recommendation. We find that Judge Dearman’s misconduct was willful and prejudicial to the administration of justice, bringing the judicial office into disrepute.

II. Whether the proposed sanctions should be ordered.

¶ 20. The sanctions agreed upon by the Commission and Judge Dearman are a public reprimand, suspension for thirty days without pay, and payment of the cost of these proceedings in the amount of $100. Article 6, Section 177A of the Mississippi Constitution grants this Court the power, upon recommendation of the Commission, to order the removal, suspension, fine, public censure, or reprimand of any judge in Mississippi. Miss. Const. art. 6, § 177A. The sanctions imposed should be consistent with those in other cases and “ought [to] fit the offense.” In re Inquiry Concerning Bailey, 541 So.2d 1036, 1039 (Miss.1989). The six-factor Gibson analysis is applied “generally to the determination of all sanctions in judicial misconduct proceedings.... ” Miss. Comm’n on Judicial Performance v. Gibson, 883 So.2d 1155, 1158 (Miss.2004), overruled on other grounds by Boone, 60 So.3d 172.

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

¶21. Judge Dearman has served her district as 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.

¶ 22. We determine whether the recommended sanctions fit the offense and are consistent with previous holdings of this Court. The cases cited infra involve justice-court judges accused of misconduct, including ex parte communications, abuse of process, procedural errors, and lending the prestige of office to advance the private interests of others.

¶23. In Mississippi Commission on Judicial Performance v. Fowlkes, 967 So.2d 12 (Miss.2007), this Court found that the recommended sanctions for ex parte communications were insufficient, and ordered a public reprimand, a thirty-day suspension without pay, and the payment of costs. Id. at 16. However, Judge Fowlkes had been disciplined for the same violation and had, just a year earlier, acknowledged the impropriety of ex parte communications. Id. at 15. In Vess, this Court accepted the Commission’s recommendation of a public reprimand and a fine of $2,000 for violations including ex parte communications. See Vess, 10 So.3d at 495. The Court noted that Vess had been disciplined for the same misconduct a decade earlier. Id. at 494. Likewise, in Mississippi Commission on Judicial Performance v. Britton, 936 So.2d 898 (Miss.2006), this Court ordered a public reprimand, a thirty-day suspension, and the payment of costs for a pattern of ex parte communications, including setting aside a judgment based on ex parte communications. Id. at 905, 907. In egregious cases, this Court has removed judges for engaging in a pattern of misconduct including ex parte communications. See Miss. Comm’n on Judicial Performance v. Willard, 788 So.2d 736 (Miss.2001); Miss. Comm’n on Judicial Performance v. Spencer, 725 So.2d 171 (Miss.1998).

¶ 24. Here, although this case involves multiple instances of ex parte communications and an agreed finding of an overall pattern of violations, this is Judge Dear-man’s first formal commission action. Her ex parte communications, taken alone, do not constitute a pattern as egregious as that in Britton. She initiated ex parte communications with a law-enforcement officer. In another case, she reduced a felony charge to a misdemeanor based on information received ex parte. She also invited ex parte communications through her writings.

¶ 25. This Court has disciplined judges for abuse of process and procedural errors. See Miss. Comm’n on Judicial Performance v. Roberts, 952 So.2d 934 (Miss.2007); Willard, 788 So.2d at 738-39. In Roberts, the judge admitted to numerous violations, was in his first term of office, and had never been formally disciplined by the Commission. Id. at 935-37, 942. This Court accepted the Commission’s recommendation and ordered a public reprimand, thirty-day suspension, and payment of costs. Id. at 942. Judge Dearman’s abuse-of-process and procedural violations are comparable in number and severity to Roberts’s. She also is in a similar position regarding her overall experience and disciplinary history. Judge Dearman sua sponte reduced charges in two cases, reduced bonds without authority, and, in three cases, improperly altered bond terms.

¶ 26. This Court has disciplined judges for conduct creating the appearance of impropriety by failing to recuse themselves from a case involving a relative. Miss. Comm’n on Judicial Performance v. Cole, 932 So.2d 9 (Miss.2006), overruled on other grounds by Boone, 60 So.3d 172. See also Miss. Comm’n on Judicial Performance v. Brown, 918 So.2d 1247 (Miss.2005). Judge Cole reinstated his grandson’s driver’s license and attempted to use his influence to keep him out of a state facility. Cole, 932 So.2d at 11. This Court found that “Judge Cole should not have involved himself in any facet of the pending matters and should have recused himself from any matters involving a relative.” Id. Here, Judge Dearman presided over the initial appearance of her nephew, “a person within the third degree of relationship.” Miss.Code of Judicial Conduct Canon 3E(1). Even if we were to consider Judge Dearman’s new argument that Brown and Jones were not harmed, as they declined the opportunity to object, it would be unhelpful to her. The harm to be considered here is the harm to the public’s impression of the judiciary. See Vess, 10 So.3d at 493. Here, Judge Dear-man’s handling of her nephew’s case created the appearance of impropriety, especially considering the inconsistent result.

¶ 27. Likewise, Judge Dearman’s writings created an appearance of impropriety, harming the public’s impression of the judiciary. She might have given, as the Commission found and Dearman agreed, the impression that she was advocating in favor of drug defendants by setting low bond amounts. Conversely, she could have given the impression that a drug defendant could not receive a fair trial in her court. Further, her call for a public debate and for public input on her handling of initial-appearance hearings allowed the impression that she would let public sentiment sway her judicial decisions.

3. The magnitude of the offense and the harm suffered

¶28. Judge Dearman’s misconduct involved nine cases over a period of more than three years and affected at least twenty-two litigants and complainants, including the parent of a minor, a county prosecutor, an MBN agent, an MHP trooper, two sheriffs deputies, and a probation officer. Her misconduct also affected the operation of other courts, as well as the district attorney’s office, a bonding company, and a drug-rehabilitation center. The harm caused by her public writings and her handling of her nephew’s case is detailed above.

¶ 29. Avoiding the appearance of impropriety is particularly important at the justice-court level because of the harmful effect of such an appearance on the public’s impression of the entire judiciary. This Court has stated, “[ojfficial integrity of our Justice Court Judges is vitally important, for it is on that level that many citizens have their only experience with the judiciary.” Vess, 10 So.3d at 493 (quoting In re Inquiry Concerning Garner, 466 So.2d 884, 887 (Miss.1985), overruled on other grounds by Boone, 60 So.3d 172).

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

¶ 30. The series of formal complaints at issue here represent Judge Dearman’s first formal disciplinary action, although she has had one previous informal action regarding unrelated conduct. The Commission found, and Judge Dear-man agreed, that the numerous violations constitute a pattern. Judge Dearman committed similar actions during a period of more than three years. These actions were the result of a policy decision that she had announced and advocated to the public. A history of formal disciplinary actions is not necessary to a finding of a pattern if a judge has committed numerous violations. See Miss. Comm’n on Judicial Performance v. Bradford, 18 So.3d 251, 256 (Miss.2009) (ten violations); Miss. Comm’n on Judicial Performance v. Cowart, 936 So.2d 343, 350 (Miss.2006) (three violations). We find a pattern of misconduct.

5. Whether moral turpitude was involved.

¶ 31. The joint memorandum brief states that Judge Dearman’s “actions do not rise to the level of conduct involving moral turpitude.” This Court has stated, “Moral turpitude includes, but is not limited to, actions which involve interference with the administration of justice, misrepresentation, fraud, deceit, bribei’y, extortion, or other such actions which bring the judiciary into disrepute.” Gibson, 883 So.2d at 1158 n. 2. In Mississippi Commission on Judicial Performance v. Gordon, 955 So.2d 300 (Miss.2007), this Court described moral-turpitude analysis as follows:

The bottom line of this element is that we must determine 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. If the conduct willfully subverts justice, more punishment is warranted.

Id. at 305.

¶ 32. In Vess, this Court examined the moral-turpitude element at length. See Vess, 10 So.3d at 493-94. The Vess Court found that the violations brought the judicial office into disrepute, but did not meet the Gordon standard for moral turpitude. Id. at 494. We find no evidence that Judge Dearman’s conduct involved moral turpitude.

6. The presence or absence of mitigating or aggravating factors

¶ 33. We find neither the presence nor absence of mitigating or aggravating factors.

¶ 34. We considered the agreed sanctions and performed a Gibson analysis. We accept the agreed recommendation. We find that the recommended sanctions fit the offense and should be imposed.

CONCLUSION

¶ 35. We agree with the Commission’s recommendation, and we order Justice Court Judge Theresa Brown Dearman of the West District of Stone County to be publicly reprimanded, suspended from office for thirty days without pay, and assessed costs in the amount of $100. Judge Dearman’s public reprimand shall be read in open court on the first day of the next term of the Circuit Court of Stone County in which a jury venire is present, with Judge Dearman present and standing before the presiding judge.

¶ 36. STONE COUNTY JUSTICE COURT JUDGE THERESA BROWN DEARMAN SHALL BE SUSPENDED FROM OFFICE FOR A PERIOD OF THIRTY (30) 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 AND DICKINSON, P.JJ., LAMAR, CHANDLER, PIERCE AND KING, JJ., CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION.

KITCHENS, Justice,

dissenting:

¶ 87. In the present posture of this case, and given the turning point in the evolution of this Court’s approach to judicial performance cases at which we now find ourselves, I believe that the fairest and most prudent thing for us to do is to remand this matter to the Commission for a full-blown hearing, without regard to the Agreed Statement of Facts and Proposed Recommendations with which we have been presented.

¶ 38. Judge Dearman and her lawyer may well have relied upon this Court’s multitudinous published decisions in which we have represented to litigants and to the public that we conduct de novo reviews of the cases that come to us from the Mississippi Commission on Judicial Performance. See e.g., Miss. Comm’n on Judicial Performance v. Brown, 37 So.3d 14, 19 (Miss.2010) (citing Miss. Comm’n on Judicial Performance v. Vess, 10 So.3d 486, 489 (Miss.2009)); Miss. Comm’n on Judicial Performance v. Bradford, 18 So.3d 251, 253 (Miss.2009) (citing Miss. Comm’n on Judicial Performance v. Gunn, 614 So.2d 387, 389 (Miss.1993)). Such a reliance is evidenced by Judge Dearman’s attempt, in her brief to this Court, to explain and, in some instances, seemingly to deny and defend against, accusations to which she had admitted in the Agreed Statement of Facts and Proposed Recommendations. Even though, as the majority opinion correctly observes, these portions of her brief are altogether extraneous and are, in fact, procedurally barred in the face of her admissions, she and her attorney very well may have believed, albeit mistakenly, that in the context of an expected de novo review by the Supreme Court, she appropriately could continue to defend herself, much as an appellant from a justice court conviction could do in a de novo trial in county or circuit court.

¶ 39. Before Judge Dearman’s case could finally be resolved by this Court, a change of major proportions occurred in our approach to judicial performances cases, as explained in detail in our unanimous decision in Mississippi Commission on Judicial Performance v. Boone, 60 So.3d 172, 176 (Miss.2011), in which we revert to a process this Court adopted in the early days of judicial performance jurisprudence in Mississippi, as explained in In re Removal of Anderson, 412 So.2d 743, 746 (Miss.1982). As quoted in Boone, Anderson provided that:

Therefore, it appears we are required to be a factfinding body, at least to some degree, in every case of this nature.
The power to impose sanctions is delegated solely to this Court; it therefore follows we have an obligation to conduct an independent inquiry of the record in order to make our final determination of the appropriate action to be taken in each case. In so doing, we will accord careful consideration the findings of fact and recommendations of the Commission, or its committee, which has had the opportunity to observe the demeanor of the witnesses.

In re Anderson, 412 So.2d at 746.

¶40. What remains unclear is what consideration, if any, we give to findings of fact and recommended sanctions reached by agreement. Compare Miss. Comm’n on Judicial Performance v. Williams, 880 So.2d 343, 347 (Miss.2004) (“Although there are unanswered questions regarding the mitigating facts in this case, we accept the recommendation before us, because it comes to us as an agreed recommendation.”) with Miss. Comm’n on Judicial Performance v. Sanford, 941 So.2d 209, 217-18 (Miss.2006) (holding that a joint recommendation is “akin to a criminal defendant entering into a plea agreement with the prosecution, whereby the defendant agrees to plead guilty to the offense in return for the prosecution’s promise of a specific recommended sentence to the judge for consideration”). Even though our rules do not contemplate judicial performance cases’ reaching this Court via agreed statements of facts and proposed recommendations, such is not prohibited, and seemingly it is a reasonable and appropriate mechanism that facilitates the efficient and timely resolution of cases. But no evidence is adduced and no record is made in the absence of a hearing, which presents a significant impediment to this Court’s exercise of its constitutional duties as the sole decider of judicial performance cases. We are hard pressed to assess the appropriateness of proposed recommendations for ultimate resolution of these important cases when we have been provided scant information concerning the facts that gave rise to the accusations against a judge.

¶41. This is true with regard to the accusations against Judge Dearman in the present case. With most of the instances of alleged judicial conduct of which she is accused, there are unanswered questions which appear to have great importance, and which, if answered in one way would validate or legitimatize her conduct, but, if answered in some other way, might result in a finding of egregious misconduct.

¶ 42. For example, in the case of Phil-ipe D. White, the judge set the defendant’s bail at $2,500 and imposed as a condition that White attend church at least once weekly. In light of our decision in Mississippi Commission on Judicial Performance v. Martin, 921 So.2d 1258, 1263 (Miss.2005), the imposition of an invalid condition of bail may have been nothing more than a judicial error, i.e., an incorrect legal interpretation, and Martin is clear authority for the bedrock proposition that we do not sanction judges for erroneously interpreting the law.

¶ 43. We are told that, two months after White’s bail bond was set and he apparently had posted bail, a probation officer reported to Judge Dearman that White had violated the terms of his release. Judge Dearman may have exercised her discretion properly, and it is quite possible that she correctly followed the appropriate procedures in ordering White’s arrest. We simply cannot determine this, one way or the other, from the limited facts before us. We are informed that she issued a mittimus “ordering that White be arrested and allowed no bond.” It is impossible for us to discern what this means; a mittimus is a document whereby a judge orders an accused person detained, usually to await grand jury action on a felony charge. See Miss.Code Ann. §§ 99-5-31 (“Mittimus in bailable cases to fix the bail”); 99-25-7 (“Mittimus where bail is denied”); 99-25-9 (“Mittimus where bail is allowed and not given”) (Rev.2007). At the point at which she issued a mittimus, the judge seems to have set White’s bail at $50,000. We have no earthly way of knowing whether there was anything wrong with her having done that.

¶ 44. Next, we are told that White waived a preliminary hearing. We do not know whether it was on the initial charge, or on some other charge. When White waived the preliminary hearing, we are told, “Judge Dearman ordered White released on $2,500 bond on the same conditions.” While experience tells us it is more likely that the judge set White’s bail at $2,500, then someone posted the bail and he was released, rather than the judge’s ordering him released, it is not possible to read the few facts we are provided and ascertain what, if anything, the judge did wrong. We are informed that, a week later, the grand jury indicted White. For what crime he was indicted is not revealed to us, or whether there were other charges still pending against him before Judge Dearman, or whether new charges were brought against him in the justice court. We are told only that in November 2006, White violated his release terms and that Judge Dearman again ordered him arrested and allowed no bond. In short, the information before us is unfathomably vague and hopelessly confusing, so much so that, in its present posture, the portion of Judge Dearman’s case that relates to her judicial interaction with Philipe D. White defies intelligent adjudication by this Court.

¶ 45. Without attempting, at this point, laboriously to analyze and make sense of the superficial, greatly abbreviated factual recitations that pertain to the other litigants mentioned in the majority opinion, it is sufficient to say that none of them— through no fault of the author of that opinion — provides adequate detail for us to discern whether Judge Dearman has violated applicable judicial canons, and, if so, to what extent. The record before us is woefully deficient in that regard. Thus, if this judge has committed indiscretions or infractions that rise to the level of judicial misconduct, we are in no position to determine appropriate sanctions.

¶ 46. Finally, I respectfully disagree that Judge Dearman’s writings are clear evidence of any bias or that they amount to an invitation to ex parte communications. Notably, the majority opinion does not determine whether they demonstrate a partiality toward criminal defendants or the prosecuting authorities. Maj. Op. at ¶ 27. The most that can be said is that Judge Dearman could have been expressing her understanding that “[ejxcessive bail shall not be required.” U.S. Const. amend. VIII; Miss. Const. art. 3, § 29. Moreover, Judge Dearman maintains that she was not inviting the public to comment on a particular matter, but rather, she was seeking input about the general administration of justice. See Miss.Code of Judicial Conduct Canon 3(B)(9) (“This Section does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court.”). This is not so different from a circuit judge’s discussing judicial proceedings with a jury after a verdict has been rendered. In my opinion, to sanction Judge Dearman for her writings would amount to an unconstitutional infringement of her right to free speech. Miss. Comm’n on Judicial Performance v. Wilkerson, 876 So.2d 1006, 1010 (Miss.2004) (“[Tjhis Court clearly may not impose sanctions for violation of a Canon where doing so would infringe on rights guaranteed under the First Amendment, including the freedom of speech.”). Because the remainder of the vague allegations are unsupported by facts sufficient to determine to what extent Judge Dearman engaged in misconduct, if at all, I would remand the case to the Commission for further proceedings. See Brown, 37 So.3d at 18 n. 4 (noting that we had remanded a judicial performance matter to the Commission for further factual development when the record presented “an insufficient factual basis before the Court to determine whether the recommended sanctions, or any sanctions at all, were appropriate”).

      . In her response to the Commission’s motion to strike, Judge Dearman says:
      It should be noted that Respondent has agreed that her actions constituted misconduct, but she also feels she [is] entitled to a[n] independent review of these issues by [the] Mississippi Supreme Court. She could have chose[n] to raise a number of these issues set forth in her brief at a hearing before the Commission, but doing so would have likely cost her thousand[s] of dollars in her own attorney’s fees, plus paying those incurred by the Commission. As such, Respondent elected [to] raise some of these mitigating factors and issuefe] in her Brief to this Court.

      . While judges have no authority to require church attendance, Rule 3.04 of Mississippi’s Uniform Rules of Procedure for Justice Court does say that the justice court judge has the authority "to require a certain type of bond.” The rule provides no explanation of what this means, and this language could mislead a nonlawyer justice court judge to believe she had authority to craft any sort of bond she pleased.


source: Caselaw Access Project

author: PIERCE, Justice, LAMAR, Justice,

license: Public Domain

text:
    Kelly Finn BLOSSOM v. Michael BLOSSOM.
    No. 2010-IA-00882-SCT.
    Supreme Court of Mississippi.
    July 21, 2011.

      J. Edward Rainer, Gary Lee Williams, Brandon, attorneys for appellant.
    Christopher Paul Palmer, Michael A. Boland, Frank D. Edens, Craig Lawson Slay, Brandon, attorneys for appellee.
   PIERCE, Justice,

for the Court:

¶ 1. This matter is an interlocutory appeal by Kelly Blossom (“Kelly”) regarding the issuance of a protective order by the Rankin County Chancery Court denying her attempt to take the deposition of two witnesses in her pending divorce case. One of the witnesses was a minor victim in a criminal case (“C.B.”) in which Kelly eventually pleaded guilty to having committed sexual battery. The other potential deponent, a minor named R.W., was identified by Kelly as having knowledge about “the rape” in the criminal case. At the time the trial court issued the protective order, Kelly was being prosecuted for sexual battery in the Rankin County Circuit Court and was represented by the same counsel for both the criminal prosecution and the divorce proceeding.

STATEMENT OF THE ISSUES

Did the chancellor err in entering a protective order enjoining and preventing taking the deposition of C.B. and of R.W.?

FACTS

¶ 2. On September 25, 2009, Michael Blossom (“Michael”) filed a complaint and obtained a temporary restraining order, preliminary injunction, and permanent injunction against Kelly, enjoining her from having any contact with their children. Michael’s complaint for the temporary restraining order was based on the fact that Kelly previously had been arrested and charged with ten counts of sexual battery against a minor, C.B., in the city of Flo-wood, Mississippi.

¶ 3. On December 8, 2009, Kelly filed her Answer and Defenses to the complaint for the temporary restraining order, preliminary injunction, and permanent injunction. Included in her Answer and Defenses, Kelly filed a Counterclaim for a Temporary Restraining Order and for Divorce and for Other Relief.

¶ 4. In her complaint for divorce, Kelly alleged that she was entitled to a divorce from Michael on the grounds of habitual cruel and inhuman treatment and sought custody of their minor children and possession of all marital property. On February 10, 2010, Michael filed his responses to Kelly’s First Set of Interrogatories, and, within the responses, he denied that Kelly was entitled to a divorce. He did not assert any grounds for divorce against her.

¶ 5. On April 21, 2010, Kelly issued deposition subpoenas for C.B. and R.W., both of whom were to be deposed on May 5, 2010. At the time, C.B. was the alleged victim in the sexual-battery charges pending against Kelly in Rankin County Circuit Court.

¶ 6. On April 26, 2010, Kelly responded to Michael’s First Set of Interrogatories and Request for Production of Documents, identifying numerous witnesses whom she intended to call at trial who had relevant knowledge in the matter. In her response to Michael’s interrogatories, Kelly did not mention C.B., but she included R.W. as an intended witness.

¶7. On May 4, 2010, Michael filed a Motion for a Protective Order to prevent the depositions of C.B. and R.W. The district attorney’s office sought to intervene with a Motion to Quash Deposition Subpoena with prejudice, requesting

an ore tenus motion on behalf of the State of Mississippi that the Rankin County District Attorney’s Office may be heard in this case ... due to the fact that one of the persons who has been subpoenaed to be deposed is a victim in a criminal matter in which [the] defendant is also a criminal defendant in the Circuit Court of Rankin County.

The chancellor barred the State of Mississippi from proceeding on its motion, stating that Kelly’s counsel was “entitled to more notice.” On May 10, 2010, after giving consideration to the pleadings and the arguments of the parties’ counsel, the trial court entered an order prohibiting the depositions of C.B. and R.W.

¶ 8. Kelly appeals the chancellor’s decision prohibiting her from deposing C.B. and R.W. and this Court granted interlocutory appeal pursuant to Mississippi Rule of Appellate Procedure 5.

STANDARD OF REVIEW

¶ 9. When reviewing matters relating to discovery, this Court has used an abuse-of-discretion standard. “In regard to matters relating to discovery, the chancellor has considerable discretion. This Court will not disturb discovery orders unless there has been an abuse of discretion.” Electronic Data Sys. Corp. v. Miss. Div. of Medicaid, 853 So.2d 1192, 1209 (Miss.2003).

ANALYSIS

¶ 10. This Court has a history of applying strict standards for interlocutory appeals as they relate to discovery matters. In fact, “as a general rule, this Court has declared that it ‘is not about to become involved in the wholesale granting of interlocutory appeals of civil discovery disputes. Pre-trial discovery is governed by flexible rules well within the administrative capacity of our trial courts.’ ” Haynes v. Anderson, 597 So.2d 615, 617 (Miss.1992) (citing In Re Knapp, 536 So.2d 1330, 1333 (Miss.1988)). The standards for interlocutory appeal have been set out to the point that “[rjarely will we entertain an interlocutory appeal regarding a discovery matter.” Miss. State Bar v. Attorney L., 511 So.2d 119, 121 (Miss.1987).

¶ 11. Both parties stipulate that the issue of this appeal is whether the chancellor in the lower court erred by entering a protective order, enjoining and preventing Kelly from taking the deposition of both C.B. and R.W. To properly address these issues, this Court must examine the proper rules and the reasoning used by the chancellor when he granted the protective orders. Rule 26(d) of the Mississippi Rules of Civil Procedure sets out the guidelines and requirements of a protective order. Michael argued that the deposition of C.B. and R.W. “exceeds the scope of permissible discovery as governed by Miss. R. Civ. P. 26.” Kelly argued that, pursuant to Rule 30(a) of the Mississippi Rules of Civil Procedure, “C.B. and R.W. are persons ... subject to being deposed for relevant information they may have that involves this action.”

¶ 12. After reviewing the record herein, this Court finds that the chancellor erred by granting the protective orders without meeting the requirements set out in Rule 26(d). The fact that a witness is an “alleged minor victim of a crime” alone, does not constitute sufficient grounds to deny a party the right to depose that witness. The trial court is not precluded from granting the issuance of the protective orders, but further explanation regarding the issues and requirements set out in the rules is necessary to warrant the issuance of a protective order.

CONCLUSION

¶ 13. We reverse the decision of the chancellor and remand this matter to the trial court for a disposition consistent with this opinion.

¶ 14. REVERSED AND REMANDED.

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

LAMAR, Justice,

dissenting:

¶ 15. Because the chancellor did not abuse his discretion in entering the protective orders, I respectfully dissent.

¶ 16. As an initial matter, I find this case inappropriate for interlocutory review. Although the majority correctly notes that this Court has stated that it is “not about to become involved in the wholesale granting of interlocutory appeals of discovery disputes,” it fails to explain why it is doing so in this case. (Maj. Op. ¶ 10). As this Court stated in American Electric v. Singarayar, 530 So.2d 1319, 1322 (Miss.1988), “Indeed, the language of Rule 5(a) naturally suggests an opposition between a question of law and a question of fact or matter for the discretion of the trial court. Common sense suggests matters of the latter category — acts of discretion — least eligible for interlocutory review.”

¶ 17. I also disagree with the majority’s cursory finding that the chancellor erred in granting the protective orders. The standard of review in discovery matters is abuse of discretion. Electronic Data Sys. Corp. v. Miss. Div. of Medicaid, 853 So.2d 1192, 1209 (Miss.2003). In fact, this Court has stated that in “matters relating to discovery, the chancellor has considerable discretion.” Id. (emphasis added).

¶ 18. A party may obtain discovery “regarding any matter, not privileged, which is relevant to the issues raised by the claims or defenses of any party.” Miss. R. Civ. P. 26(b)(1) (emphasis added). But a trial judge may enter a protective order “upon motion by a party ... and for good cause shown ... to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense .... ” Miss. R. Civ. P. 26(d) (emphasis added).

¶ 19. Here, Michael Blossom filed a motion for a protective order to prevent Kelly Blossom from deposing C.B. and R.W. Michael argued that Kelly was seeking to “use the divorce case to conduct discovery for the criminal cases which would otherwise be unavailable to her within the criminal cases themselves” and that C.B. and R.W. “clearly [had] absolutely no relevance to the parties’ pending divorce case.... ” The chancellor agreed and entered the protective orders, finding that any information C.B. possessed was “beyond the scope of discovery” in the divorce proceeding, and that any knowledge R.W. had was “not relevant to [the] divorce proceeding.”

¶ 20. I find no abuse of the chancellor’s “considerable” discretion in this case. A chancellor may issue a protective order “for good cause shown.” Here, C.B. was the minor victim of a crime committed by Kelly, the person seeking the deposition. And R.W. had information — according to Kelly — only about “the rape” in the criminal case. I believe the chancellor was within his discretion to find that C.B. and R.W. had no information relevant to the divorce action.

¶ 21. As discussed above, I find this case inappropriate for interlocutory review. But because this Court has decided to address the issues on the merits, I would affirm the chancellor’s ruling.

      . Kelly has since pleaded guilty to one count of sexual battery against C.B.

      . See Dawkins v. Redd Pest Control, Inc., 607 So.2d 1232, 1235 (Miss.1992).

      . Mississippi Rule of Civil Procedure 26(d) reads:
      Protective Orders. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending, or in the case of a deposition the court that issued a subpoena therefor, may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
      (1) that the discovery not be had;
      (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place;
      (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;
      (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters;
      (5) that discovery be conducted with no one present except persons designated by the court;
      (6) that a deposition after being sealed to be opened only by order of the court;
      (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way;
      (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court;
      (9) the court may make any other order which justice requires to protect the party or witness from annoyance, embarrassment, oppression or undue burden or expense, including provision for payment of expenses attendant upon such deposition or other discovery device by the party seeking same.
      If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. Rule 37(a)(4) applies to the award of expenses incurred in relation to the motion.

      . Mississippi Rule of Civil Procedure 26(d)(4) states: (4) "that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters;”

      . Id.


author: DICKINSON, Presiding Justice,

text:
    The ESTATE (through the Administratrix Ida CAMPBELL) and the Wrongful Death and Survival Beneficiaries of John Earl Sykes, Deceased: Ida Campbell, Jeffie Ezell, Donnie Draine, Sammie Joe Sykes, Ricky Wayne Sykes, Brenda Fay Hardwick, Terry Sykes and James E. Sykes v. CALHOUN HEALTH SERVICES.
    No. 2010-CA-00654-SCT.
    Supreme Court of Mississippi.
    July 21, 2011.

      David A. Bowling, Susannah C. McKinney, attorneys for appellants.
    John G. Wheeler, attorney for appellee.
    Before DICKINSON, P.J., LAMAR and KITCHENS, JJ.
   DICKINSON, Presiding Justice,

for the Court:

¶ 1. After John Sykes died in the emergency room (ER) of Calhoun Health Services (CHS), his estate sued the hospital for wrongful death, claiming Sykes should have been hooked up to a cardiac monitor. The trial judge held the estate had failed to prove that CHS had deviated from the applicable standard of care, and had failed to prove that use of a cardiac monitor would have made a difference. We affirm.

FACTS AND BACKGROUND

¶ 2. CHS’s triage policy — a process used to prioritize emergency-room care — requires a registered nurse to obtain information from emergency-room patients and categorize them as emergent, urgent, or nonurgent. The policy also provides that a nurse may “request assistance from [other] employees,” but “[t]he nurse is responsible for determining the patient’s acuity level.”

¶ 3. When Sykes arrived at CHS’s emergency room on January 1, 2007, at approximately 5:50 p.m., he told the ER clerk he was experiencing “heart racing.” The ER was unusually busy with multiple “emergent” patients who required the attention of the ER physician and two registered nurses on duty.

¶ 4. Ten minutes after Sykes’s arrival, Toby Lafayette, an emergency medical technician, took Sykes’s vital signs, asked him questions about his chief complaint, and assessed him. According to Lafayette, Sykes said his chest was “sore,” but denied that he felt pressure, radiating pain, or sharp or dull pain; he merely repeated that his chest was “sore.” Sykes did not appear to be in distress, was not short of breath, and was not sweating; and he denied having any other symptoms.

¶ 5. Lafayette relayed this information to his boss, Ron Evans, a paramedic, who instructed Lafayette to follow up with additional questions. After doing so, Lafayette wrote down the “pertinent information” on a sticky note and gave it to one of the two ER nurses, Joan Marshall.

¶ 6. After receiving the information from Lafayette and learning about Sykes’s chief complaint of “heart racing,” Nurse Marshall determined that — because Sykes was not in distress, had “essentially stable” vital signs, and had complained only of chest “soreness” rather than “pain” — he was a nonurgent patient. Accordingly, Nurse Marshall did not initiate the hospital’s Advanced Cardiac Life Support (ACLS) protocol, which would have involved the use of a cardiac monitor.

¶ 7. When Debbie Stroup Russell — also an ER nurse — arrived at 6:00 p.m. for her 7:00 p.m. shift, she found “a very hectic situation” in the ER. She went to reevaluate the four patients in the waiting room, asking whether any of them felt they needed to be seen immediately. One of the four — not Sykes — raised his hand. After caring for that patient, Nurse Russell assessed Sykes, who repeated his complaint of “chest soreness.” Nurse Russell observed that Sykes was not short of breath or sweating, was not in distress, but was laughing and talking with the other patients in the waiting room. Based on her evaluation and observations, Nurse Russell also determined that Sykes was a nonur-gent patient.

¶8. It is undisputed that some of the required triage information was obtained “piecemeal” from various CHS employees, and that Sykes did not receive a “target assessment of the chief complaint” from a registered nurse; nor did anyone ask him about his medications or medical history.

¶ 9. At about 6:55 p.m., Nurse Russell heard a woman’s scream in the waiting area. She immediately responded and saw a woman running out the door into the parking lot. When another person indicated that something was wrong with Sykes, Nurse Russell checked him and found him unconscious. She immediately called for help and began CPR. The ER doctor, another nurse, and some emergency medical services personnel responded, got Sykes onto a stretcher, and moved him to one of the patient rooms.

¶ 10. Blood was drawn and Sykes was connected to a heart monitor, which revealed that he was in ventricular fibrillation. Attempts to resuscitate him using chest compressions, medication, and electronic defibrillation were unsuccessful, and Sykes was pronounced dead at 7:32 p.m. An autopsy revealed that Sykes had “severe cardiomegaly” (an enlarged heart) and had died of “sudden' cardiac death” related to “severe ... hypertensive heart disease.”

¶ 11. Sykes’s estate sued CHS for wrongful death under the Mississippi Tort Claims Act, alleging that CHS’s “inadequate assessment” had prevented it from recognizing and properly treating Sykes’s cardiac event.

¶ 12. After a bench trial in the Circuit Court of Calhoun County, the trial judge found that, despite CHS’s failure to adhere to its own triage policy, the estate had failed to meet its burden of proving that CHS had deviated from the applicable standard of care. The judge also found that the nature of Sykes’s complaints and his lack of observable symptoms did not require CHS to perform a more extensive evaluation or ACLS protocol; and that, even if Sykes had been attached to a cardiac monitor (as the estate argued he should have been), there was insufficient evidence that any efforts at defibrillation would have saved Sykes’s life. Accordingly, the trial court entered judgment for CHS, and Sykes’s estate now appeals.

ISSUES

¶ 13. The estate raises five issues, which we condense and restate as follows:

I. Was the trial court manifestly wrong in finding that the estate had failed to carry its burden of proving that CHS had breached the applicable standard of care?
II. Was the trial court manifestly wrong in finding that, even if CHS had breached the standard of care, the estate did not carry its burden of proving that the breach was the proximate cause of Sykes’s death?

STANDARD OF REVIEW

¶ 14. When reviewing a judgment from a bench trial, this Court employs the “substantial evidence/manifest error rule.” That is, the trial court’s findings will be affirmed “unless they are manifestly’wrong, clearly erroneous, or an erroneous legal standard was applied.”

ANALYSIS

1. The trial court was not manifestly wrong in finding that the estate had failed to carry its burden of proving that CHS had breached the applicable standard of care.

¶ 15. The trial court found that “[t]he plaintiffs in this case have failed to meet their burden of proving, by a preponderance of the evidence, that CHS health care personnel failed to conform to applicable standards of care in a manner that proximately caused or contributed to the death of John Earl Sykes.” The estate argues this finding was manifestly wrong and was not supported by “substantial evidence.”

¶ 16. The estate bore the burden of proof at trial, and its argument that the trial court’s verdict for the defendant was not supported by substantial evidence is misplaced. The defendant, CHS, had no obligation to put on any proof at all; and, unless the estate met its burden of proof, CHS was entitled to a verdict — not because of substantial evidence supporting the defense verdict, but because of insufficient evidence on behalf of the estate.

¶ 17. So whether the trial judge’s verdict in favor of CHS was based on any evidence, substantial or otherwise, is not the question. Rather, the question is whether the estate met its burden of proof. And even when a plaintiff has produced enough evidence to establish a prima fade case of negligence, the credibility of the evidence still must be determined by the fact-finder. A defendant may — but is not required to — rebut the plaintiffs evidence. So, to justify reversal, the estate must demonstrate that, upon considering the evidence favoring the plaintiff, the verdict was manifestly wrong. It has not done so here.

¶ 18. This Court has defined “standard of care” as follows:

[G]iven the circumstances of each patient, each physician has a duty to use his or her knowledge and therewith treat through maximum reasonable medical recovery, each patient, with such reasonable diligence, skill, competence, and prudence as are practiced by minimally competent physicians in the same specialty or general field of practice throughout the United States, who have available to them the same general facilities, services, equipment and options.

¶ 19. The breach of applicable standards of care in a medical-malpractice case generally must be established by expert testimony that “identifies] the action or inaction [that] allegedly constituted a breach of duty and [that] proximately caused the patient’s injury.”

¶20. The estate makes three arguments in support of its claim that the trial court was manifestly wrong in finding that the estate had not met its burden of proving that CHS’s breach of the applicable standard of care proximately caused Sykes’s death.

A. The standard of care may take into account the conditions existing at the hospital at the time of the alleged negligence.

¶ 21. The estate argues that CHS’s busy ER did not excuse its failure to initiate ACLS protocol because the standard of care is the same, regardless of the ER traffic at the time Sykes arrived. But the estate cites no authority for this proposition, and we find much authority to the contrary.

¶ 22. This Court has held that the minimum standard of care depends in part on “the circumstances of each patient,” and is to be compared to minimally competent practitioners “who have available to them the same general facilities, services, equipment and options.” In considering the applicable standard of care, the trial judge properly considered the circumstances existing at the ER when Sykes arrived. And, as discussed in more detail in the next subsection, CHS produced expert testimony from which the trial court reasonably could have concluded that CHS had satisfied the standard of care applicable to the circumstances existing at the time, so this argument is without merit.

B. Experts disagreed over whether the standard of care required strict compliance with the CHS triage policy.

¶ 23. Next, the estate argues that CHS’s triage policy constituted the objective standard of care in this case. Dr. Andrew Perrin — an expert in the field of emergency medicine — testified that the standard of care required the administration of an electrocardiogram (EKG) within ten minutes of Sykes’s arrival. The estate’s other expert, Dr. Neil Shadoff, agreed. Finally, the estate argues that, “[ajccording to the nurse who was supposed to be performing the triage, the standard of care require[d] compliance with the [CHS] policies and procedures.”

¶ 24. CHS also called two expert witnesses, both of whom testified to the contrary. Dr. William Calhoun, an expert in cardiology, testified that CHS’s assessment of Sykes was appropriate. Dr. Rick Carlton, CHS’s emergency-medicine expert, testified that, under the circumstances at the time, the evaluation Sykes received “was a reasonable preliminary screen.”

¶ 25. The estate points out that, on cross examination, Dr. Carlton admitted that a “targeted assessment” by a registered nurse is a “standard of practice,” but not the “standard of care.” But on redirect, Dr. Carlton unequivocally stated that, “given the totality of what was known at the time and the circumstances in the [ER,] they met the standard of care for Mr. Sykes.”

¶ 26. As for Nurse Marshall’s testimony, we first note that — although her opinion went into the record without objection — she was never qualified or offered as an expert by any party. The estate implies that, because Nurse Marshall worked at CHS, her testimony should be given greater weight than the testimony of the other experts. But the estate provides no citation of authority and no argument why this is so. We find that, even if Nurse Marshall’s opinion testimony properly was in the record, that does not change the fact that the trial judge was free to accept the substantial evidence that CHS did not breach the standard of care.

¶27. Conflicting expert testimony — often called a “battle of the experts” — requires the fact-finder to assign credibility. The trial judge, as the fact-finder in this case, was free to accept or reject any of the expert opinions. He found CHS’s experts to be more credible, and we cannot say his decision amounted to an abuse of discretion. So this argument is without merit.

C. Experts disagreed over whether Sykes’s known symptoms required CHS to begin cardiac life-support protocols.

¶ 28. Finally, the estate argues that, even in the absence of proper triage, the symptoms known to the CHS nursing staff were sufficient to trigger CHS’s duty to begin their ACLS protocol, which would have saved Sykes’s life. But Dr. Calhoun testified that CHS’s actions were appropriate, because none of Sykes’s responses revealed symptoms that “sounded cardiovascular in nature.”

¶ 29. Dr. Carlton testified that, given Sykes’s symptoms, it was reasonable under the circumstances for CHS to delay giving Sykes an EKG, which is a component of the ACLS protocol. In sum, the trial court heard expert testimony that Sykes’s symptoms were not typical cardiac presentation and that, due to the “mass casualty” situation, it was reasonable for CHS staff not to begin the ACLS protocol. As discussed above, the trial judge resolved this battle of the experts in favor of CHS, so this argument is without merit.

¶ 30. Overall, the estate has not established that the trial court was manifestly wrong to conclude that the estate did not prove a breach of the standard of care. CHS’s experts testified that the standard of care applicable to CHS required a “reasonable preliminary screen,” and that Sykes received one. Because the applicable standard of care may be based on the “circumstances of each patient” and the “general facilities, services, equipment and options” available to the hospital, a reasonable fact-finder could conclude from the expert testimony that the standard of care for a hospital experiencing a “mass casualty” situation did not require a more detailed evaluation than the one Sykes received.

¶ 31. Moreover, the trial court had heard sufficient testimony to conclude that CHS personnel did not have a duty to begin their ACLS protocol, because Sykes did not present with typical symptoms of cardiac distress. The estate’s entire argument on this issue constitutes an attempt to impermissibly reweigh the evidence.

II. The trial court was not manifestly wrong in finding that, even if CHS breached the standard of care, the estate did not carry its burden of proving that the breach was the proximate cause of Sykes’s death.

¶ 32. Proximate cause in medical-malpractice cases must be established through expert testimony. The estate argues that it produced the required testimony, but that the trial court held it to an impermissibly high burden of proof, and was manifestly wrong in finding that it had not met its burden.

A. The trial court did not apply an improper burden of proof.

¶ 33. According to the estate, the trial court erroneously required it to disprove “all possible alternative theories to plaintiffs’ proof of causation, and thus, [the trial court’s] conclusion [was] not based on the proper standard of proof.” In support, the estate points to the following conclusion of law penned by the trial judge:

It is entirely possible that Mr. Sykes was not suffering a myocardial infarction at the time of his presentation to the CHS emergency department, given the autopsy findings of no acute or chronic infarction of heart muscle, and thus, his elevated cardiac isoenzymes were likely due to CPR and defibrillation efforts during his attempted resuscitation.

¶ 34. We do not share the estate’s assignment of importance to the phrase “entirely possible,” as it was used in this context. The trial judge was free to observe that many things were possible, so long as his decision was based (as it was) on his finding that the estate had failed to establish its case by a preponderance of the evidence. This argument is without merit.

B. The trial court was not required to accept the estate’s theory of causation.

¶ 35. The estate also argues that—in the face of the evidence it presented—the trial court was in manifest error to find in favor of CHS on the issue of causation. But, as with the previous issue, this argument boils down to a battle of the experts, which the trial court resolved in favor of CHS.

¶ 36. The estate’s theory, as elicited from Drs. Perrin and Shadoff, was that Sykes was in cardiac distress when he arrived at the CHS ER; that his condition deteriorated as he waited—unmonitored— in the waiting room; and that his fatal ventricular fibrillation was caused by a heart attack that could have been prevented had CHS properly screened Sykes and begun ACLS protocol shortly after he arrived. The estate’s experts concluded that the elevated troponin levels in Sykes’s blood established that he had suffered a heart attack.

¶ 37. On the other hand, CHS’s theory was that Sykes’s preexisting hypertensive heart disease, not a heart attack, caused his fatal ventricular fibrillation, and that even if CHS had done everything the estate’s witnesses suggested it should have done, Sykes likely would have died anyway.

¶ 38. Dr. Calhoun explained the significance of Sykes’s enlarged heart and opined that, if the elevated troponin levels really were caused by a heart attack, that would have shown up on the autopsy. Dr. Carlton agreed, adding that the elevated tropo-nin levels probably were caused by the attempts to resuscitate Sykes. Dr. Carlton concluded his testimony by opining that, even if CHS had done everything the way the estate’s experts testified it should have done, Sykes probably still would have died.

¶ 39. In short, both sides presented conflicting theories, each supported by ample expert testimony. Under such circumstances, it is the role of the fact-finder to resolve the conflict. In this case, the trial judge resolved the conflict in favor of CHS, and the estate offers no basis for its contention that the judge’s resolution of this issue was manifestly wrong. As with the standard-of-care issue, the estate’s argument is nothing more than an attempt to reargue its case. This issue is therefore without merit.

C. The trial court considered the proper causal time frame.

¶ 40. The estate’s final attempt to overturn the verdict is its argument that the trial court

committed clear error by only focusing on the chances of resuscitating the patient after he collapsed. It is the likely lost opportunity to save him during the hour plus period of time he was waiting for assessment and care before he became unresponsive which is the issue in this case.

¶ 41. While it is true that the trial court’s findings of fact mentioned “the time of the disrhythmic event,” there is no basis for the estate’s assertion that the trial court didn’t also consider Sykes’s chance of recovery had CHS done everything the estate claims it should have— including earlier treatment. Indeed, Dr. Carlton — the last witness to testify — stated that, when Sykes presented to the CHS emergency room, even if CHS had done all the estate claimed it should have, Sykes only had a “30 percent” chance of survival.

¶ 42. This argument is without merit.

CONCLUSION

¶ 43. All of the estate’s issues concern factual determinations that were within the discretion of the trial court. The estate presents no meritorious argument that the trial court was manifestly wrong. We affirm the judgment of the Circuit Court of Calhoun County.

¶ 44. AFFIRMED.

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

      . CHS is a "community hospital" under Mississippi Code Section 41-13-15 (Rev.2009). So this case is governed by the Mississippi Tort Claims Act, which mandates that suits against government entities be decided by a judge, sitting without a jury. Miss.Code Ann. § 11-46-13(1) (Rev.2002).

      . Univ. of Miss. Med. Ctr. v. Pounders, 970 So.2d 141, 145 (Miss.2007) (citing Miss. State Tax Comm'n v. Med. Devices, 624 So.2d 987, 989 (Miss.1993); Right v. Sheppard Bldg. Supply, Inc., 537 So.2d 1355, 1358 (Miss.1989)).

      . City of Jackson v. Powell, 917 So.2d 59, 68 (Miss.2005).

      . McCaffrey v. Puckett, 784 So.2d 197, 205-06 (Miss.2001).

      . Palmer v. Biloxi Reg’l Med. Ctr., Inc., 564 So.2d 1346, 1354-55 (Miss.1990); Hall v. Hilbun, 466 So.2d 856, 873 (Miss.1985).

      . Drummond, v. Buckley, 627 So.2d 264, 268 (Miss. 1993) (citing Kelley v. Frederic, 573 So.2d 1385, 1387 (Miss.1990); Palmer v. Biloxi Reg'l Med. Ctr., Inc., 564 So.2d 1346, 1355 (Miss.1990); Phillips v. Hull, 516 So.2d 488, 491 (Miss.1987)).

      . Palmer, 564 So.2d at 1355 (citing Hull, 516 So.2d at 491; Hall 466 So.2d at 870-73).

      . Palmer, 564 So.2d at 1354-55; Hall, 466 So.2d at 873.

      . Hill v. Mills, 26 So.3d 322, 330 (Miss.2010) (citing Bickham v. Grant, 861 So.2d 299, 307 (Miss.2003)). See also City of Jackson v. Brister, 838 So.2d 274, 279 (Miss.2003) (citing Yarbrough v. Camphor, 645 So.2d 867, 869 (Miss.1994); Bryan v. Holzer, 589 So.2d 648, 659 (Miss.1991); Bell v. Parker, 563 So.2d 594, 597 (Miss.1990)) (“[W]hen the trial judge sits as the finder of fact, he has the sole authority for determining the credibility of witnesses.”).

      . Palmer, 564 So.2d at 1354-55; Hall, 466 So.2d at 873.

      . Quitman County. v. State, 910 So.2d 1032, 1045 (Miss.2005) (The party appealing the verdict “cannot retry its case on appeal....”).

      . McGee v. River Region Med. Ctr., 59 So.3d 575, 578, (Miss.2011) (citing McDonald v. Mem'l Hosp., 8 So.3d 175, 180 (Miss.2009); Barner v. Gorman, 605 So.2d 805, 809 (Miss.1992)).

      . (Emphasis added.)