text:
    In re: Barbara DUNN, Hinds County Circuit Clerk.
    No. 2010-CS-00323-SCT.
    Supreme Court of Mississippi.
    April 7, 2011.
    C.R. McRae, attorney for Dunn.
    Before CARLSON and DICKINSON, P.JJ., and KITCHENS, J.
   KITCHENS, Justice,

for the Court:

¶ 1. In 2008, Barbara Dunn, the Circuit Clerk of Hinds County, Mississippi, was sanctioned by this Court for her office’s failure to comply with the requirements of the Mississippi Rules of Civil Procedure, including Rule 77(d). In February 2010, this Court discovered that Mrs. Dunn’s office gain had failed to follow the requirements of Rule 77(d) of the Mississippi Rules of Civil Procedure. In re Dunn, 84 So.3d 4, 4 (Miss.2010). A panel of this Court ordered Dunn to appear at a show-cause hearing. Id. Upon our review of the clerk’s mishandling of the underlying circuit court action and the statements of the clerk and her attorney during the show-cause hearing, we sanctioned Dunn by requiring her to pay an amount we thought would be sufficient to deter further improprieties. Id. at 7. After sanctioning Circuit Clerk Dunn in the amount of $5,000, we afforded her the opportunity to file a detailed statement with this Court in which she would report to us on remedial changes in her two offices that would be expected to prevent recurrence of the same or similar errors. Id. In our published decision, we said that, if we found the remedial measures to be sufficient, we would consider reducing the sanction, which is to say that, if the clerk would demonstrate to this Court that she was diligently working to solve the serious problems in her offices, we would return to her some portion of her money. Id.

¶ 2. Circuit Clerk Dunn has filed a statement in which she lists procedures she proffers as adequate to correct the deficiencies. Her statement and proposed procedural “solutions” clearly show that she continues to misunderstand the nature and severity of the serious mistakes that repeatedly have occurred in her offices. The potential for additional errors remains, and we are not persuaded that Dunn is entitled to a reduction in monetary sanctions. Contrary to the clerk’s analysis of her failures, it is clear to this Court that the recurring clerical disasters in the Hinds County Circuit Clerk’s office are the product of human blunders rather than, as Circuit Clerk Dunn seems to see it, an inadequate computer system. The Hinds County Circuit Clerk has fallen far short of providing this Court any reason to believe a reduction in our most recent sanction of her to be appropriate.

¶ 3. Additionally, Mrs. Dunn specifically was ordered to pay the sanction from her personal funds. Id. at 7. This Court ordered that the amount “shall not be paid, in whole or in part, from public funds.” Id. at 7 n. 4. In apparent violation of that order, Dunn paid the $5,000 sanction with a check, signed by her, from the “Hinds County Barbara Dunn Circuit Clerk Fee Account.” The very name of that account suggests that it contains public rather than private funds. Within ten days of the date of the entry of this decision, Dunn shall provide documentary proof to this Court that she has repaid that account with her personal funds. Alternatively, if the referenced checking account is a repository for Dunn’s private funds only, she shall provide this Court sworn documentation to that effect, also within ten days. Further, she shall, within said ten days, show cause to this Court, in writing, if any she can, why she should not be held in contempt of this Court for having paid the monetary sanction levied upon her by this Court ,on September 30, 2010, from a checking account containing public funds, if that be the case.

¶ 4. Rule 77(d) of the Mississippi Rules of Civil Procedure provides:

(d) Notice of Orders or Judgments. Immediately upon the entry of an order or judgment the clerk shall serve a notice of the entry in the manner provided for in Rule 5 upon each party who is not in default for failure to appear, and shall make a note in the docket of the service. Any party may in addition serve a notice of such entry in the manner provided in Rule 5 for the service of papers. Lack of notice of the entry by the clerk does not affect the time to appeal, nor relieve, nor authorize the court to relieve, a party for failure to appeal within the time allowed, except as permitted by the Mississippi Rules of Appellate Procedure.

M.R.C.P. 77(d) (emphasis added). Dunn’s office has, at least four times within the past three years, failed to provide notice of the entry of civil orders and judgments to “each party.” The failure to provide the required notice has endangered numerous parties’ rights to appeal within the time allowed.

¶ 5. In addition, within the ten days herein provided, Circuit Clerk Barbara Dunn shall file with this Court a detailed, written narrative, under oath, meticulously describing what, if any, procedures and practices she has implemented in each of her offices to assure her full and consistent compliance with Rule 77(d) of the Mississippi Rules of Civil Procedure, whereby all litigants in the Circuit and County Courts of the First and Second Judicial Districts of Hinds County, Mississippi, and their attorneys, shall receive from the clerk immediate and accurate notice of the entry of all orders and judgments rendered by the several judges of these courts in the cases in which such litigants and their counsel appear. The clerk’s explanation shall include a clear and precise statement of: (1) the manner and means by which the identities and addresses of parties and their attorneys are ascertained by the clerk; (2) when this is done in relation to the filing of pleadings by the parties (including instances in which pleadings are received from other courts); (3) how and when this information is recorded by the clerk or her designees; and (4) what controls are in place for verification that, in each and every case, such information is timely and accurately recorded, and that notices of the entry of all orders and judgments are served on all parties not in default, in the manner provided by Rule 5 of the Mississippi Rules of Civil Procedure.

¶ 6. Upon Circuit Clerk Dunn’s filing of such narrative with this Court, or upon her failure to do so, this Court will determine, in due course, whether to schedule a hearing for the clerk’s personal appearance before this Court to show cause, if any she can, why she should not be sanctioned for her failure fully to comply with this decision, and with the prior directives of this Court issued on September 30, 2010.

¶ 7. HINDS COUNTY CIRCUIT CLERK BARBARA DUNN IS ORDERED TO SHOW CAUSE.

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


source: Caselaw Access Project

author: WALLER, Chief Justice, DICKINSON, Justice,

license: Public Domain

text:
    Joe Gregory STEWART v. THE MISSISSIPPI BAR.
    No. 2009-BR-01954-SCT.
    Supreme Court of Mississippi.
    Jan. 6, 2011.

      Michael B. Martz, attorney for appellant.
    Adam B. Kilgore, Jackson, attorney for appellee.
   WALLER, Chief Justice,

for the Court:

¶ 1. This is Joe Gregory Stewart’s second petition for reinstatement to the practice of law. Stewart v. Miss. Bar, 5 So.3d 344 (Miss.2008) (Stewart I). Stewart has made great strides toward rehabilitating his character, and has demonstrated a changed life in many ways. Yet because he made a false statement to the Mississippi Bar and failed to cooperate with the Bar during its investigation of his petition, we deny Stewart’s request for reinstatement.

FACTS & PROCEDURAL HISTORY

¶ 2. Joe Gregory Stewart was disbarred in 2004 after he pleaded guilty in federal court to one count of conspiracy to commit extortion under color of official right. Miss. Bar v. Stewart, 890 So.2d 900 (Miss.2004). Stewart admits that, in 1998, he paid a Tunica County sheriffs deputy to absent himself as a witness in five DUI matters in justice court. Stewart I, 5 So.3d at 346. The deputy sheriffs absence led to the dismissal of those cases. Id. Stewart self-reported his illegal activity to the Federal Bureau of Investigation (FBI). Id. He eventually was sentenced to three years probation and ordered to pay a $20,000 fine and a $100 special assessment. Id.

¶ 3. This Court denied Stewart’s first petition for reinstatement, finding that he had failed clearly to establish a rehabilitated character. Id. at 352. Stewart contends that this, his second petition, demonstrates sufficient evidence of rehabilitation in character to warrant his reinstatement to the Bar.

¶ 4. The Bar continues to oppose Stewart’s reinstatement. The Bar opposed his first petition for reinstatement on the basis that Stewart’s misconduct was simply too egregious. Stewart I, 5 So.3d at 346. The Bar maintains that stance and, after further investigation, now gives additional reasons for its opposition: (1) Stewart failed to make any meaningful attempt to compensate the State for its pecuniary loss resulting from his misconduct; (2) he has not been forthcoming about his prior criminal history; (3) he has been untruthful and misleading about his prior military experience; and (4) in soliciting letters of recommendation, he communicated his desire to enlist in the Mississippi National Guard if reinstated, despite knowing that he was ineligible to do so because of his prior felony conviction.

DISCUSSION

¶ 5. This Court has “ ‘exclusive and inherent jurisdiction’ ” over attorney-reinstatement cases. In re Morrison, 819 So.2d 1181, 1183 (Miss.2001) (quoting In re Smith, 758 So.2d 396, 397 (Miss.1999)). We review these matters de novo, on a case-by-case basis. In re Morrison, 819 So.2d at 1183 (quoting In re Smith, 758 So.2d at 397).

¶ 6. A petitioner seeking reinstatement “carries the burden of proving that he has rehabilitated himself and has established the requisite moral character to entitle him to the privilege of practicing law.” Stewart I, 5 So.3d at 346-47 (citing In re Holleman, 826 So.2d 1243, 1246 (Miss.2002)). He or she must demonstrate “ ‘[a] firm resolve to live a correct life evidenced by outward manifestation sufficient to convince a reasonable mind clearly that the person has reformed. . . .'" In re Petition of Massey, 670 So.2d 843, 845 (Miss.1996) (quoting Phillips v. Miss. Bar, 427 So.2d 1380, 1382 (Miss.1983)). Part of doing so involves meeting the jurisdictional requirements under Rule 12 of the Mississippi Rules of Discipline. Miss. R. Disc. 12; In re Benson, 890 So.2d 888, 890 (Miss.2004) (citing In re Holleman, 826 So.2d 1243, 1247 (Miss.2002)).

¶ 7. Rule 12 requires a petitioner to (1) state the cause or causes for suspension or disbarment; (2) provide the names and current addresses of all persons, parties, firms, or legal entities who suffered pecuniary loss as a result of the improper conduct; (3) make full amends and restitution; (4) demonstrate that he or she has the necessary moral character to practice law; and (5) show that he or she possesses the requisite legal education to be reinstated. Miss. R. Disc. 12.7; see also In re Benson, 890 So.2d at 890. The Bar’s position, while not a jurisdictional requirement, is a factor in deciding whether to grant reinstatement. In re Benson, 890 So.2d at 890 (citing In re Holleman, 826 So.2d at 1248).

¶ 8. It is important to point out that Stewart most likely would not be eligible for reinstatement had he committed his felony offense under our current Rules of Discipline. See Miss. R. Disc. 12(c). But he is eligible to seek reinstatement based on the rules that were in effect at the time of his offense.

I. Cause for disbarment

¶ 9. As already mentioned, the cause for Stewart’s disbarment was his guilty plea to the felony of extortion. Stewart I, 5 So.3d at 347.

II. Full amends and restitution to anyone suffering pecuniary loss

¶ 10. In his first petition, Stewart alleged that no person, party, firm, or legal entity had suffered pecuniary loss due to his misconduct. Stewart I, 5 So.3d at 347. But we pointed out that if Stewart’s clients were in fact guilty, the State has incurred a financial loss in the form of unpaid fines. Id. at 347 (citing Miss.Code Ann. § 99-19-73(1) (Rev.2007)). We added that “[n]o determination has been made of any pecuniary loss incurred by the [S]tate.” Stewart I, 5 So.3d at 348.

¶ 11. Stewart says that he is “extremely remorseful” for the State’s financial loss and is prepared to pay whatever is required, but only after an appropriate authority has determined the amount, if anything, he owes. Otherwise, according to Stewart, the State’s financial loss is purely speculative. He also argues that his clients, not he, would have had to pay any applicable fines.

¶ 12. Though Stewart would have bene-fitted from some type of good-faith effort to address the Court’s stated concerns regarding the State’s financial loss, we agree that he should not be held accountable for failing to pay for hypothetical losses. There is nothing in the record to indicate a determination of guilt in any of the DUI cases. Stewart’s clients must be presumed innocent “unless and until the government proves beyond a reasonable doubt each element of the offense charged.” Clark v. Arizona, 548 U.S. 735, 766, 126 S.Ct. 2709, 165 L.Ed.2d 842 (2006) (citations omitted). Furthermore, no court or tribunal, including this Court, has ever determined the amount of the State’s pecuniary loss or directly ordered Stewart to reimburse this loss. Stewart I cited several cases to support that the State can suffer pecuniary loss because of lost fines. Id. at 347 (citing Miss. Comm’n on Judicial Performance v. Gibson, 883 So.2d 1155, 1158 (Miss.2004); Miss. Comm’n on Judicial Performance v. Hartzog, 904 So.2d 981, 984, 986 (Miss.2004)). But the cases cited in Stewart I involved instances in which this Court explicitly required disciplined judges to reimburse their respective municipalities and counties for financial losses resulting from those judges’ misconduct. Stewart I, 5 So.3d at 347 (citing Gibson, 883 So.2d at 1158; Hartzog, 904 So.2d at 986). Here, in contrast, no explicit orders to pay have been made.

¶ 13. Because Stewart has paid all of the fines and costs he owes, we find that he has made full amends and restitution.

III. Rehabilitation and requisite moral character

¶ 14. The most important inquiry in reinstatement cases is whether the petitioner has “demonstrated sufficient rehabilitation in character and conduct.” Stewart I, 5 So.3d at 348.

A. Expungement

¶ 15. The Bar deposed Stewart twice in its investigation of this petition. During his first deposition, the Bar asked Stewart whether he had ever had anything nonadjudicated or expunged. Stewart replied, “No.”

¶ 16. After this first deposition, the Bar received two letters opposing Stewart’s reinstatement. One letter was from retired Mississippi Supreme Court Justice Kay Cobb; the other was from Robert Norman, a senior Assistant United States Attorney in the Northern District of Mississippi. Norman served as an assistant district attorney for Lafayette County during the 1980s, and Cobb served as an attorney with the Mississippi Bureau of Narcotics (MBN) during this same time period. Both Norman and Cobb recalled that Stewart had had a conviction expunged during the 1980s. The Bar forwarded copies of Norman’s and Cobb’s letters to Stewart prior to conducting a second deposition.

¶ 17. At the second deposition, the Bar confronted Stewart about the prior ex-pungement. Stewart explained that he previously had answered “no” because he did not believe that he had had anything expunged. The word “expungement,” he said, had never been used with him. Stewart said that, since then, he had retrieved some paperwork from his deceased grandfather’s files and learned that he did, in fact, have an expunged record. He confirmed the existence of two orders concerning the expunction.

¶ 18. Although Stewart acknowledged the expunged record, he refused to discuss the underlying conduct. When the Bar asked Stewart if he had been convicted of a criminal act other than the one leading to his disbarment, he invoked the protections of Section 41-29-150(d)(2) of the Mississippi Code. This law provides that a person benefitting from an expungement order shall not be “guilty of perjury or otherwise giving a false statement by reason of his failures to recite or acknowledge such arrest, or indictment or trial in response to any inquiry made of him for any purpose.” Miss.Code Ann. § 41—29—150(d)(2) (Rev. 2009); see also Miss.Code Ann. § 99-19-71(3) (Rev.2007). Stewart also, initially at least, refused even to provide the Bar a copy of the two expungement-related orders. He argued that an expungement is confidential, and that he was not free to share those orders without being held in contempt of court.

¶ 19. Stewart further suggested that Norman and Cobb inadvertently had subjected themselves to a Bar complaint or to contempt proceedings for divulging confidential, privileged information. He argued that Norman and Cobb both had learned of his expungement during the course of their attorney-client relationship with the State, and that they could disclose this information only with their client’s consent.

¶ 20. The same day as this second deposition, Stewart filed in this Court a Motion to Seal File and Record of Court or, In the Alternative, to Seal the Exhibits Attached Hereto. The attached exhibits included Norman’s and Cobb’s letters, and the two expungement-related orders. We denied Stewart’s motion.

¶ 21. Stewart continues to insist that an expungement is not public record, and that it can be used only for the limited purposes prescribed by law. He contends that even asking someone if they have an expunged matter may violate that person’s due-process and equal-protection rights. He asks that this Court appoint a master or tribunal to conduct a fair and impartial hearing on this particular issue.

¶ 22. The effect of an expungement order is to “to restore the person, in the contemplation of the law, to the status he occupied before” his or her arrest. Miss. Code Ann. § 41-29-150(d)(2) (Rev.2009); Miss.Code Ann. § 99-19-71(3) (Rev.2007). Mississippi law restricts who may access expungement orders and sets out the purposes for which that information may be used. Section 45-27-21 provides that the Mississippi Criminal Information Center is to retain a certified copy of expunction orders in a confidential database, to be accessible “only upon written request by a district attorney, a county prosecuting attorney, a municipal court prosecuting attorney, the Attorney General of Mississippi and the Mississippi Law Enforcement Standards and Training Board.” Miss. Code Ann. § 45-27-21 (Supp.2010). The expunged conviction may be then be used “for the purpose of determining habitual offender status and for the use of the Mississippi Law Enforcement Standards and Training Board in giving or retaining law enforcement certification, and to ensure that a person is only eligible for first-offender status one (1) time.” Miss.Code Ann. § 45-27-21 (Supp.2010).

¶ 23. During its 2010 Session, the Mississippi Legislature passed a bill concerning the disclosure of expunged matters. House Bill 160 states that “[t]he existence of an order of expunction shall not preclude an employer from asking a prospective employee if the employee has had an order of expunction entered on his behalf.” Miss.Code Ann. § 99-19-71(3) (Supp.2010). It further requires that if a person with an expunction is called as a prospective juror, that person must, upon request, disclose the prior conviction and expunction to the court, in camera. Miss.Code Ann. § 99-19-71(3) (Supp.2010); Miss.Code Ann. § 41-29-150(d)(2) (Supp.2010).

¶24. These laws allow expunged records to be used, or asked about, only in certain instances, none of which include admission or reinstatement to the practice of law. While these laws seemingly prevent the Bar from inquiring about an ex-punction, they are not necessarily the final say. We have held that statutes are trumped by contradictory rules governing matters over which this Court has exclusive authority. See Miss. Bar v. McGuire, 647 So.2d 706, 707-08 (Miss.1994).

¶ 25. This Court has the exclusive authority to admit persons to the practice of law. Miss.Code Ann. § 73-3-2(1) (Rev. 2008). To administrate this process, the Court appoints a Board of Bar Admissions. Miss.Code Ann. § 73-3-2(3)(Rev.2008). The Board is given authority to promulgate necessary rules, subject to the Chief Justice’s approval, to carry out its duties. Id. These rules govern admission specifically, but they are relevant to reinstatement as well. See Ex parte Marshall, 165 Miss. 523, 147 So. 791, 794-95 (1933).

¶26. As part of its rules, the Board requires each applicant to complete, under oath, an application form approved by the Board. Rules Governing Admission to the Miss. Bar, Rule III, § 1. Rule III, Section 1, states that “[t]he applicant must give a full and direct response to all inquiries on the [application and furnish all additional documents required by the [application.” Rule III, § 1. The application to which Rule III, Section 1, refers requires the disclosure of expunged matters. Question 22a on the July 2011 Mississippi Bar Exam Application asks, “Have you, either as an adult or juvenile, been cited, arrested, charged or convicted for any violation of any law (except traffic violations)? NOTE: This should include matters that have been expunged or been subject to a diversionary program.” The application further instructs that if the answer to Question 22a is “yes,” the applicant must fill out Form 22. Form 22 is a one-page form that asks for specific details concerning the violation. The failure fully to disclose all information called for in any of these application forms constitutes sufficient grounds for denial of admission to practice law. Rule V, § 1, B.

¶ 27. The Board of Bar Admissions then, with the implicit endorsement of this Court, has determined that the disclosure of expunged matters is necessary and proper to ensure that each admittee is of good moral character. This policy or rule falls within an area governed exclusively by this Court, and therefore, it supercedes any statutes to the contrary. See McGuire, 647 So.2d at 707-08.

¶ 28. Because this Court has exclusive authority over admission and reinstatement to practice law, we find that the Bar had the right to ask Stewart if he had an expunged record, and that the Bar could inquire about the underlying circumstances or offense. If every Mississippi employer has the right to ask such questions to its prospective employees, as Section 99-19-71(3) now provides, surely an institution of public trust such as the Bar should be able to do likewise for its prospective members.

¶ 29. The practice of law is a revocable privilege, not a right. E.g., Miss. State Bar v. Attorney-Respondent in Disciplinary Proceedings, 367 So.2d 179, 183 (Miss.1979) (citing Petition for Disbarment of J.R. Poole, 222 Miss. 678, 76 So.2d 850 (1955)). By seeking readmission to practice law, Stewart opened his past to inspection and could not refuse to disclose expunged criminal records. In re Rodriguez, 753 N.E.2d 1289, 1290 (Ind.2001); see also Application of Watson, 31 Ohio St.3d 220, 509 N.E.2d 1240 (1987). Requiring such disclosure furthermore did not violate Stewart’s constitutional rights. An Oregon federal district court faced with this very same argument concluded that “[determination of moral character is without question a legitimate state purpose in the context of a professional licensing scheme. The demand for disclosure of expunged offenses is a rational and reasonable method by which to promote this state purpose. It scarcely violates [an applicant’s] constitutional rights.” Wilson v. Wilson, 416 F.Supp. 984, 986 (D.C.Or.1976).

¶ 30. Because the Bar had a right to ask Stewart whether he had had anything expunged, Stewart had an obligation to answer the question truthfully. Stewart said that his reason for not doing so was that the word “expungement” had never been used with him. But the word “expunge,” or some derivation thereof, is used no less than nine times between the two expungement-related orders. The word “expunging” is even included in the title of one order. Stewart never claimed ignorance of having a prior offense cleared; so even if the word “expungement” never had been communicated to him, as he claims, Stewart still knew what effectively had occurred.

¶ 31. Stewart’s failure to respond truthfully to the Bar’s clear, direct question reflects negatively on his character and may alone be sufficient grounds for denial of reinstatement. See Rule V, § 1, B; see also In re Dean, 972 So.2d 590, 595-96, 600 (Miss.2008) (application for admission to the Bar denied, in part, because applicant answered falsely to three questions on his Bar application). Stewart only exacerbated the situation by refusing to cooperate with the Bar and answer its additional inquiries concerning the expungement. In refusing to talk about the underlying offense, Stewart invoked the protections of Section 41-29-150(d)(2). Miss.Code Ann. § 41-29-150(d)(2) (Supp.2010). That statute may protect Stewart from being found guilty of perjury or making a false statement, but it does not protect him from the negative inferences created by his lack of candor.

B. Prior military experience

¶ 32. An additional reason that the Bar opposes Stewart’s reinstatement is its perception that Stewart was untruthful and misleading about his prior military experience.

¶ 38. At his first deposition, when asked whether he had ever served in the military, Stewart responded, “No.” During his second deposition, it was brought out, apparently by Stewart himself, that he had undergone basic training with the United States Marine Corps in 1987 at Quantico, Virginia. Stewart explained that he had completed basic training but was not allowed to participate in the commissioning ceremony. Stewart said that the Marines would not allow him to be commissioned because of certain information it had received from the Mississippi Bureau of Narcotics (MBN). Although Stewart refused to discuss details, this information appears to be related to the expunged matter. Whatever the case, this information made him ineligible to receive a security clearance.

¶ 34. Considering the record in its entirety, it does not appear that Stewart was attempting to deceive the Bar about his prior military experience. The Bar, in fact, already knew about his time with the Marines. In his first petition for reinstatement, Stewart filed a supplemental petition which included a copy of his enlistment form and a report referencing his separation or discharge from the Marines. Although Stewart’s answer to the Bar’s question about his prior military service is puzzling, we do not believe that he was attempting to hide this information or to mislead the Bar.

C. Civic, church, and charitable involvement

¶ 35. Many of Stewart’s civic, church, and charitable activities were noted in Stewart I: (1) fifty hours of community service required as part of his court-ordered probation; (2) involvement in his church and Sunday-school class; (3) a $500 donation to the Bayou View Elementary Parent Teacher Association (PTA); and (4) offering hotel accommodations and amenities to several nonprofit and church groups. Stewart I, 5 So.3d at 348.

¶ 36. In addition to the activities cited in Stewart I, Stewart now details more of his civic, church, and community involvement: (1) joining his son and the Boy Scouts on a one-week, thirty-mile hike along the Appalachian Trail and on a week-long summer camp; (2) serving as a member of the Nutrition Board for the Gulfport City Schools; (3) serving on the Board of Directors of the Orange Grove-Lyman Chamber of Commerce; (4) volunteering for the Korean MIA Project, which helps connect the remains of lost servicemen with their families or hometowns; (5) participating in six community-theater productions; (6) volunteering regularly to clean up beaches in Harrison County; (7) serving as a poll worker during the 2008 general election; (8) serving actively in the Harrison County Republican Women; (9) helping sponsor the Heritage Festival in Laurel, which celebrates Celtic music and heritage; (10) spearheading efforts to clean up a cemetery in Tallahatchie County where several of Stewart’s distant relatives are buried; (11) re-indexing a seventy-year-old Works Project Administration cookbook and a fifty-year-old Wesleyan Guild cookbook; and finally (12) serving as a member of the Sons of Confederate Veterans.

D. Letters of recommendation

¶ 37. In his first petition, Stewart submitted ten letters of recommendation. Stewart I, 5 So.3d at 348-49. Nine of the authors are members of the Mississippi Bar, and one, Keith Wiseman, is a member of the Georgia Bar. As noted in Stewart I, these individuals included a former chancellor of the University of Mississippi, a faculty member of the University of Mississippi School of Law, and a faculty member of the Mississippi College School of Law. Stewart I, 5 So.3d at 348-49. The Bar also received an additional letter supporting Stewart’s reinstatement. Id. at 349.

¶38. In his second petition, Stewart includes letters of recommendation from the same ten individuals as before, with the exception of Richelle Lumpkin. Stewart explained that Lumpkin had become a city judge since his first petition, and consequently, she was uncomfortable submitting a letter of support. Each of these individuals maintain their support for Stewart’s reinstatement and speak highly of his personal character, his commitment to family, and his charitable deeds. In addition to the individuals who submitted letters of support for his first attempt at reinstatement, Stewart now produces eighteen more letters of recommendation, eleven of which are authored by members of the Mississippi Bar.

E. Employment since disbarment

¶ 39. After his disbarment, Stewart operated a hotel that he and his wife had purchased. He did this until they sold the hotel, sometime around March 2008. He and his wife used the proceeds from that sale to finance a triple-net lease on three Wendy’s restaurants. These three properties are currently his only source of income.

F. Future plans

¶ 40. In his first petition, Stewart said that, if reinstated, he planned to represent himself in future business dealings and, possibly, work for another real-estate attorney. Stewart I, 5 So.3d at 349. He continues to express a desire to associate with another attorney in a small real-estate practice. He says he would like to do “just a little” domestic work, such as adoptions and volunteering as a guardian ad litem. He has strong opinions about child-support enforcement and even mentions the possibility of working for the Mississippi Department of Human Services in the child-support division. Stewart also expresses a desire to enlist in the Mississippi National Guard. This particular desire raised the Bar’s suspicions.

¶ 41. The Bar insists that Stewart’s military aspirations are simply a ruse, and that he is not able to join the Guard because of his prior felony conviction. Stewart communicated his desire to enlist in the Guard in the letters he sent to various individuals soliciting their support for his reinstatement. Three of the individuals who submitted letters on Stewart’s behalf even expressed their admiration for Stewart’s desire to serve in the military. The Bar believes that Stewart misled these potential supporters in an effort to acquire their favor.

¶42. In his first deposition, Stewart, who is forty-six-years old, expressed his desire to join the Guard and said that the Guard could waive his age and his prior felony. He said that he had been in touch with Sergeant Donald Spikes, an officer in the Guard, and Donald Lott, a retired military officer with the Guard Recruiting Assistance Program. Lott told Stewart that it would be best for him to clear things with the Bar before trying to enlist. Stewart said that he also had spoken with Eric Kimbrough, an attorney and a unit commander in the Guard. Kimbrough told Stewart that it was his understanding that a local commander could make a waiver request. The record contains an email from Kimbrough to Stewart in which Kim-brough recalls an occasion that he requested, and was granted, a waiver for a soldier in his unit.

¶ 43. Following the first deposition, the Bar contacted the Guard and asked about the possibility of a felony waiver for someone with a professional degree. Lieutenant Commander Gregory S. Michel responded adamantly that the Guard does not allow waivers for felony convictions:

The assertion that the National Guard would allow an exception for a felony waiver to an individual possessing] a law degree is patently wrong. Whether the applicant holds a professional law degree or not, a felony conviction is not authorized nor is it waiverable [sic] under current enlistment criteria. And, finally, an individual with a felony conviction would never pass a security clearance investigation which is required for all officers.

Stewart received a copy of Michel’s letter prior to his second deposition.

¶ 44. At his second deposition, Stewart agreed that current enlistment criteria do not permit felony waivers. But Stewart insisted that enlistment standards fluctuate depending on circumstances. If recruitment is down, such as during wartime or when the economy is robust, standards are more lax so that more people are eligible. But if new recruits are pouring in, the Guard has the freedom to be more selective, and enlistment standards are more strict. Stewart referenced several news articles that spoke to fluctuating enlistment standards and the availability of waivers. He said that he began looking at joining the Guard back in 2005. He initially contacted Bob Carson in United States Representative Gene Taylor’s office, and Carson directed him to a Colonel Jolly. According to Stewart, both Carson and Jolly had said that the best course was to try and get a waiver from the National Guard Bureau in Washington, D.C.

¶ 45. We cannot say that Stewart was deceitful in expressing a desire to join the Guard. While there is conflicting evidence about the felony-waiver issue, Stewart received information from several knowledgeable individuals, each of whom indicated that felony waivers are available. Additionally, his solicitation letter acknowledged that he had to overcome the waiver issue before being able to enlist: “I am still holding on to the desire to serve in the military once I can order my credentials to meet Guard standards (with the waivers).” Finally, and perhaps most importantly, Stewart filed a supplement to his current petition in which the three individuals who praised his military aspirations confirmed their support for Stewart regardless of whether or not he was able to join the Guard.

G. Mental and emotional status

¶ 46. The Bar does not contend, and there is no evidence in the record-to suggest, that Stewart suffers from any mental or emotional problems.

IY. Requisite legal education for reinstatement

¶ 47. Stewart completed more than twenty-six hours of continuing legal education in 2009, including four hours of ethics. He also passed the Multi-State Professional Responsibility Exam with a scaled score of not less than 80. As a condition for reinstatement, Stewart would be required to take and pass the Mississippi Bar exam, as well. Stewart I, 5 So.3d at 350 n. 3 (citing Miss. R. Disc. 12.5).

CONCLUSION

¶ 48. Stewart has improved' upon his first petition for reinstatement in several ways. His current pétition lists additional civic, church, and charitable activities, and details the extent of his personal involvement in those activities. Contra Stewart I, 5 So.3d at 348. He introduces eighteen more letters supporting his reinstatement. By all accounts, he is respected and well-regarded by his peers.

¶ 49. Despite the factors weighing in his favor, Stewart’s second petition for reinstatement still falls short. Stewart answered falsely when the Bar asked if he had an expunged offense. And when forced to acknowledge the expungement, Stewart refused to disclose any information about the underlying offense. Because of these deficiencies, and considering the Bar’s continued opposition to his reinstatement, Stewart’s second petition for reinstatement is denied.

¶ 50. PETITION OF JOE GREGORY STEWART FOR REINSTATEMENT TO THE MISSISSIPPI BAR IS DENIED.

CARLSON, P.J., RANDOLPH, LAMAR, CHANDLER AND PIERCE, JJ., CONCUR. GRAVES, P.J., CONCURS IN RESULT ONLY. DICKINSON, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, J.

DICKINSON, Justice,

dissenting:

¶ 51. The majority goes too far in holding that this Court’s rule-making authority justifies the Mississippi Bar’s violation of this state’s substantive law. Because I do not agree with this unwarranted, unnecessary, and — in my view — unconstitutional encroachment on the Legislature’s exclusive authority to enact substantive law, I dissent.

¶ 52. The majority begins well enough by correctly holding that “statutes are trumped by contradictory rules governing matters over which this Court has exclusive authority.” But what contradictory rule? The Legislature enacted a presumptively constitutional statute that explicitly prohibits everyone — including the Mississippi Bar — from penalizing any person (including Joe Gregory Stewart) for “failures to recite or acknowledge such arrest, or indictment or trial in response to any inquiry made of him for any purpose.” I interpret “any purpose” to include admission to the Mississippi Bar. We have no rule that contradicts this statute.

¶ 53. Oddly enough, the majority briefly abandons its “inherent power” argument to claim that any power granted by the Legislature to an employer should have also been granted to this Court. Specifically, the majority says:

If any Mississippi employer has the right to ask such questions to its prospective employees, as Section 99-19-71(3) (Supp.2010) now provides, surely an institution of public trust such as the Bar should be able to do likewise for its prospective members.

“Should be able to do likewise” indeed. This argument, in essence, says that, if it’s good enough for an employer, it’s good enough for us, and since the Legislature didn’t include this Court in the statute, we’ll just include ourselves. On this point, I cannot agree with the majority. The fact (unexplainable though it may be) is that the Legislature chose to grant to employers a right it did not choose to grant to this Court. But that is no reason for this Court to simply order itself into the statute.

¶ 54. Indeed, the majority recognizes that the law allows “expunged records to be used, or asked about, only in certain instances, none of which include admission or reinstatement to the practice of law.” Yet, the majority deftly circumnavigates that law by simply proclaiming that the Bar may require an applicant to disclose the information — never mind that the Legislature has specifically declared the applicant does not have to reveal it.

¶ 55. Having no authority to justify its holding, the majority turns to Mississippi Bar v. McGuire, a case that includes no language or citation to any rule that remotely supports the majority’s conclusion. In McGuire, this Court was faced with a statute that did not allow disbarment for violations of the Internal Revenue Code. We held that Rule 6 of the Rules of Discipline—which conflicted with the statute—controlled, and we granted the Bar’s petition to suspend the attorney indefinitely. McGuire stops far short of holding that the Mississippi Bar may ignore Section 41-29-150(d)(2).

¶56. Unlike McGuire, this case does not involve a statute in conflict with the Rules of Discipline. Indeed, the statute at issue in this case does not conflict with any rules promulgated by this Court. Moreover, the statute at issue does not address any matters that are within the exclusive jurisdiction of this Court. Section 41-29-150(d)(2) addresses the effect of an expunged conviction; it does not dictate how this Court must conduct the bar-admission process. The mere fact that this Court has exclusive jurisdiction over the bar-admission process does not mean that the Mississippi Bar or the Board of Bar Admissions may ignore statutes at its pleasure.

¶ 57. Because the majority usurps legislative authority, I dissent.

KITCHENS, J., JOINS THIS OPINION.

      . Mississippi Board of Bar Admissions, http:// www.mssc.state.ms.us/ baradmissions/barad-missions_barapplication.html (last visited January 4, 2011).

      . Id.

      . Mississippi Board of Bar Admissions, http:// www.mssc.state.ms.us/baradmissions/bar admissions_forms.html (last visited January 4, 2011).

      . While Stewart I cited fifty hours, the record here indicates that the actual number of hours was fifty-two.

      . Stewart’s petition references the "Harrison County Republican Men,” but Stewart explained later that this was a typo.

      . The authors of these letters were Robert Khayat, Guthrie Abbott, Shelton Hand, Norman Gillespie, Richelle Lumpkin, Keith Wise-man, John Cocke, William Hooper, Jr., Andre de Gruy, and Carl Ford. Stewart I, 5 So.3d at 349 n. 2.

      . Steven Farese, Sr., Sherman Muths, III, Brad Walsh, William McDonough, Jr., William Weatherly, Alwyn Luckey, Robert Little, Jr., Cynthia Mitchell, Robert Crook, Mary Libby Payne, and Paul Newton all are members of the Bar. Robin S. Steward, William Fag-gert, George Church, Daniel Bomar, Nancy Ford, Jonathan Rawl, and Dr. B.H. Papasan are nonattorneys.

      . Stewart acknowledged that he had not relied on these particular articles in submitting his petition for reinstatement. But he maintained that he had seen similar articles prior to filing his petition.

      . Maj. Op. ¶ 24.

      . Miss. Bar v. McGuire, 647 So.2d 706 (Miss.1994).

        . McGuire, 647 So.2d at 708 ("any statute ... is trumped by a contradictory Rule of Discipline”).


author: LAMAR, Justice, DICKINSON, Justice,

text:
    The MISSISSIPPI BAR v. Greg PIERCE.
    No. 2010-BD-00936-SCT.
    Supreme Court of Mississippi.
    Jan. 13, 2011.

      Adam B. Kilgore, attorney for appellant.
    Greg Pierce, pro se.
   LAMAR, Justice,

for the Court:

¶ 1. Greg Pierce pleaded guilty and was convicted of felony possession of a controlled substance' in 2006. The Mississippi Bar has filed a complaint with the Court requesting disbarment of Pierce based on his conviction. Pierce does not present a defense against disbarment, but instead, asserts that he resigned from the Bar in June 2006, and argues that he should not be taxed with the costs of this action. We disagree and find that Pierce must pay costs under Rule 27 of the Mississippi Rules of Discipline (“MRD”).

FACTS

¶ 2. Greg Pierce pleaded guilty to and was sentenced for felony possession of a controlled substance in October 2006. In response to this conviction, the Mississippi' Bar has belatedly submitted a formal complaint against Pierce, requesting disbarment under MRD 6.

¶ 3. Pierce does not dispute his conviction. Rather, Pierce contends that he should not be responsible for costs associated with this litigation, since he resigned in 2006. The Bar confirms that, upon Pierce’s request, it allowed him voluntarily to resign. It is undisputed that Pierce has not been an active member of the Mississippi Bar since 2006.

DISCUSSION

¶ 4. Jurisdiction in bar disciplinary matters is given exclusively to the Mississippi Supreme Court. The standard of review for bar disciplinary matters is de novo. The Mississippi Bar has the burden to show by clear and convincing evidence that there was misconduct on the part of the attorney. In this case, Pierce’s felony conviction is undisputed. The Bar presented the Court with a certified copy of the judgment of conviction accepting Pierce’s guilty plea. Under Rule 6(a), the certified copy of the judgment of conviction “shall be conclusive evidence thereof’ and “[t]he Court shall then forthwith strike the name of the attorney and order his immediate suspension from the practice of law.” And under Rule 6(d), “[w]hen time for appeal from judgment or conviction ... expires or all appeals have been concluded without reversal ... the Court shall forthwith enter an order of disbarment.” Therefore, the Bar has met its burden to show that Pierce should be disbarred immediately.

¶ 5. The only issue is whether Pierce should pay costs associated with this action when he already has “resigned” from the Bar. Pierce’s resignation, dated May 30, 2006, simply states that, “Effective Immediately, I request and wish to RESIGN my Mississippi Bar membership. Please effectuate my resignation immediately upon receipt of this letter. Please send to the address above correspondence confirming that I am no longer a member of the Mississippi Bar.” Notably, this letter was sent prior to his conviction and does not acknowledge any pending criminal proceedings.

¶ 6. The only resignation from the Bar that is addressed by our rules is embodied in Rule 10.5, which allows for an irrevocable resignation during the pendency of disciplinary actions. Absent an irrevocable resignation or an order of disbarment, the Bar is concerned that Pierce could resume practicing law by paying past dues and a penalty. We have found only one case in which this Court has granted an attorney’s petition for reinstatement after he had “resigned” from the Bar. Clearly, that case recognized that reinstatement to the Bar under circumstances such as this would require this Court’s approval.

¶7. Nonetheless, we find the Bar’s action in this case to be both necessary and appropriate. Pierce was a member of the Bar when he committed this felony offense, and he was subject to the discipline of this Court. Pierce failed to discharge his affirmative duty to notify the Bar or this Court of the felony charge or conviction. Subsequently, upon learning of Pierce’s conviction, the Bar had an obligation to investigate and submit its findings to this Court, which has exclusive jurisdiction in Bar discipline matters. Further, there is no evidence that Pierce complied -with Rule 11(c), which requires an attorney to give notice to clients and our trial courts upon disbarment, suspension, or resignation. Therefore, we find this disciplinary action to be appropriate and necessary and order that Pierce is disbarred from the practice of law and assessed the costs incurred in the investigation of this matter under MRD 27(a).

¶ 8. GREG PIERCE IS DISBARRED FROM THE PRACTICE OF LAW IN THE STATE OF MISSISSIPPI AND ASSESSED COSTS OF THIS PROCEEDING.

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

DICKINSON, Justice,

dissenting:

¶ 9. In 2006, Greg Pierce notified the Mississippi Bar that he wished to resign. The Bar responded with a document titled “Resignation Confirmation,” informing Pierce that his membership with the Mississippi Bar “has been changed to resigned on the rolls of the Bar.” His name was removed from the Bar roll and he stopped paying Bar dues.

¶ 10. Now, four years later, the Mississippi Bar has filed what the majority refers to as a “belated” petition to disbar Pierce — the same man who, four years ago,' it allowed to resign — and to make him pay for the disbarment proceedings. The Bar now says — upon reflection — that once you become a member of the Mississippi Bar, you cannot resign.

¶ 11. The majority states: “Pierce does not present a defense against disbarment, but instead, asserts that he resigned from the Bar in June 2006.” From where I sit, that sounds like a pretty good defense. The majority’s response to this non-defense reminds me of a judge who — upon learning in the middle of a trial that the defendant had died of a heart attack— nevertheless insisted on proceeding with the death-penalty phase of the trial.

¶ 12. The majority’s concern that “Pierce could resume practicing law by paying past dues and a penalty” is both irrelevant and unfounded. The case cited by the majority clearly recognizes that reinstatement to the Bar requires this Court’s approval. And should Pierce ever seek such approval, the majority would be within the bounds of its discretion to deny the request. So now I find myself in the unfortunate position of disagreeing with the majority — for whom I hold the deepest respect — for two reasons: In addition to finding the majority’s holding illogical (disbarring someone who is not a member of the Bar), I find it decidedly unnecessary.

¶ 13. While I do agree with the majority’s excellent point that “jurisdiction in bar disciplinary matters is given exclusively to the Mississippi Supreme Court,” I simply cannot conclude that this Court’s powers stretch so far as to allow us to disbar someone who has not been a member of the Mississippi Bar for the past four years.

¶ 14. A good friend once told me: ‘You cannot overcome reality.” And the reality here is, Pierce is not a member of the Bar, so we ought not claim we are disbarring him. Accordingly, I respectfully dissent.

CHANDLER, J., JOINS THIS OPINION.

      . Miss. Bar v. Pels, 708 So.2d 1372, 1374 (Miss.1998).

      . Miss. Bar v. Shelton, 855 So.2d 444, 445 (Miss.2003).

      . Pels, 708 So.2d at 1373.

      . MRD 6(a).

      . MRD 6(d).

      . MRD 10.5 provides that:
      An attorney may tender an irrevocable resignation to either the Court or the Tribunal. Such a resignation shall acknowledge each and all disciplinary matters then pending, provide the docket number or numbers, state that the attorney does not desire to defend, and request permission to resign with prejudice from the Bar. Upon receipt of such a resignation, and any response that the Bar may elect to file, the disciplinary proceedings shall terminate and either the Court or the Tribunal shall enter its order accepting the resignation, revoking the attorney’s license, and barring forever thereafter the attorney's right to seek reinstatement to the privilege of practicing law in this state. Such a resignation and order shall be considered disciplinary action, and the resignation shall be considered tantamount to the proof of guilt on the matter charged.

        . In re Reinstatement of Cosnahan, 890 So.2d 874, 875 (Miss.2004).

      . See MRD 4(b).

      . MRD 11(c).

      . "A tribunal or the Court may assess costs incurred in the investigation, prosecution and defense of any disciplinary matter as justice may require. Such costs and expenses shall include the actual and reasonably necessary expenses of the Bar, excluding Complaint Counsel's time.” MRD 27(a).

      . One wonders if the Mississippi Bar was the inspiration for these words from the Eagles' "Hotel California”: "You can check out any time you like; but you can never leave!”

      . In re Petition for Reinstatement of Cosnahan, 890 So.2d 874, 875 (Miss.2004).


author: LEE, C.J.,

text:
    CONGRESS STREET PROPERTIES, LLC and 930 Blues Café, LLC, Appellants v. BMR FUNDING, LLC, Appellee.
    No. 2010-CA-01584-COA.
    Court of Appeals of Mississippi.
    Jan. 24, 2012.

      Suzanne Griggins Keys, Jackson, attorney for appellants.
    Donald Alan Windham, William L. Smith, Tara Pierre Ellis, Jackson, attorneys for appellee.
    Before LEE, C.J., ROBERTS and RUSSELL, JJ.
   LEE, C.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. On December 10, 2009, BMR Funding LLC (BMR) filed two lawsuits in the Hinds County Chancery Court to eject Congress Street Properties LLC (CSP) and 930 Blues Café LLC from commercial properties BMR had acquired through foreclosure proceedings. Both CSP and 930 Blues Café were owned by Isaac K. Byrd. The cases were consolidated, and the chancellor ultimately found in favor of BMR, ordering Byrd to relinquish possession of the properties to BMR. Both CSP and 930 Blues Café appealed, asserting the following issues: (1) the chancellor erred in finding the CSP deed of trust was enforceable, and (2) the chancellor erred in finding the 930 Blues Café deed of trust had not been satisfied.

FACTS

CSP

¶ 2. In 2002, CSP purchased certain real property located between President and Congress Streets in Jackson, Mississippi. The property included an office building, three lots, a ten-foot strip of a fourth lot numbered 939 North President Street, and a vacant lot numbered 933 North President Street. CSP borrowed $618,000 from SouthTrust Bank to purchase the property, with Byrd personally guaranteeing the debt. To secure payment, SouthTrust was granted a deed of trust. SouthTrust merged with Wachovia Bank, and the deed of trust was eventually assigned to BMR.

¶ 3. The legal description of the property on the first page of the CSP deed of trust provides:

See Exhibit “A,” which is attached to this Deed of Trust and made a part of this Deed of Trust as if fully set forth herein,
The Real Property or its address is commonly known as 939 North President Street, Jackson, MS 39201.

Exhibit A to the CSP deed of trust contained a legal description identical to the legal description in the special warranty deed. However, when the CSP deed of trust was originally recorded, Exhibit A was accidentally omitted. The CSP deed of trust was initially recorded on May 9, 2002. The CSP deed of trust, including Exhibit A, was re-recorded on June 19, 2002. According to the record, Byrd was notified of the re-recording via letter, and he was sent a copy of the re-recorded CSP deed of trust, including Exhibit A.

¶ 4. CSP has stipulated it is in default on the loan. CSP alleged that the attaching of Exhibit A to the CSP deed was a fraudulent, material alteration thereby rendering the deed of trust void. Byrd stated the only collateral he intended to pledge for the $618,000 loan was the property located at 939 North President Street, and not 933 North President Street. The chancellor determined the re-recorded CSP deed of trust simply corrected the mistake and was not a fraudulent, material alteration.

930 Blues Café

¶ 5. During other real-estate transactions, Byrd also executed a deed of trust in favor of SouthTrust, now BMR, on the 930 Blues Café property. Another one of Byrd’s properties, Northgate, sold for $900,000, which was well below the amount of Byrd’s loan of $1.3 million. In order to release BMR’s security interest and allow the sale of the Northgate property to proceed, Byrd and his business entities were required to make a payment of $200,000. The 930 Blues Café property was used as additional security for the $200,000 payment, and a deed of trust was executed in favor of BMR. The 930 Blues Café deed of trust states the property was used to secure payment of the $200,000 as well as “other amounts due and payable or which may become due and payable under this Deed of Trust, the Reaffirmation Agreement[,] or any other agreement between Grantor and Beneficiary....” Byrd also executed a “Reaffirmation Agreement,” which provided the $200,000 payment was a “partial credit against the indebtedness.”

¶ 6. Byrd argued to the chancery court that the 930 Blues Café deed of trust was intended to secure only the $200,000 payment and should have been released upon the payment of the same. BMR, however, contended the deed of trust secured the entire outstanding indebtedness, which was in default at the time of the foreclosure. The chancellor agreed with BMR’s position.

STANDARD OF REVIEW

¶ 7. This Court will not reverse a chancellor’s decision unless the decision was manifestly wrong, clearly erroneous, or unsupported by substantial evidence. City of Picayune v. S. Reg’l Corp., 916 So.2d 510, 518 (¶ 22) (Miss.2005) (citations omitted).

DISCUSSION

I. CSP DEED OF TRUST

¶8. CSP argues that clear and convincing evidence proves the CSP deed of trust was materially altered, rendering it void. The material alteration of a deed is an affirmative defense that must be proved by clear and convincing evidence. Tate v. Rouse, 247 Miss. 545, 550, 156 So.2d 217, 219 (1963). Furthermore, to render the deed of trust void, the alteration must be the result of fraud and not an honest mistake or omission. Mullins v. Merchandise Sales Co., 192 So.2d 700, 704 (Miss.1966); see also McRaven v. Crisler, 53 Miss. 542, 546 (1876) (Even if alteration of a note was material, the alteration was made according to the intent of both parties to the instrument and honestly made to correct a mistake; thus, the note was not void.).

¶ 9. CSP contends the alteration was fraudulent because Byrd stated he never intended for the CSP deed of trust to encumber the property located at 933 North President Street, and the CSP deed of trust was re-recorded without his knowledge of the attachment. However, it is clear from the record that the re-recording of the CSP deed of trust to include Exhibit A was not a fraudulent alteration for several reasons: (1) the CSP deed of trust specifically referenced Exhibit A as containing the legal description of the property; (2) Exhibit A included the description of both properties located at 989 North President Street and 933 North President Street; (3) Byrd was notified of the re-recorded deed of trust; (4) Byrd acknowledged the Assignment of Rents, which contained the same legal description as Exhibit A; (5) the 2005 foreclosure notice included the property described in Exhibit A; (6) the 2009 foreclosure notice included the property described in Exhibit A; and (7) Byrd made no objection prior to foreclosure proceedings.

¶ 10. The chancellor found CSP had failed to demonstrate by clear and convincing evidence that re-recording the CSP deed of trust to include the legal description of the property in Exhibit A was a fraudulent, material alteration sufficient to render the deed void. We agree and find substantial evidence to support the chancellor’s decision. This issue is without merit.

II. 930 BLUES CAFÉ

¶ 11. In regard to the 930 Blues Café deed of trust, Byrd argues the deed of trust was intended to secure only the $200,000 payment. According to our rules of contract interpretation, “where the contract is not ambiguous, the intention of the contracting parties should be gleaned solely from the wording of the contract.” Turner v. Terry, 799 So.2d 25, 32 (¶ 16) (Miss.2001). If the terms of the contract are clear and unambiguous, parol evidence is inadmissible. HeartSouth, PLLC v. Boyd, 865 So.2d 1095, 1107 (¶ 36) (Miss.2003).

¶ 12. The courts use a three-step approach to interpret a contract:

First, the “four corners” test is applied, wherein the reviewing court looks to the language that the parties used in expressing their agreement. 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. Finally, if the contract continues to evade clarity as to the parties’ intent, the court should consider extrinsic or parol evidence. It is only when the review of a contract reaches this point that prior negotiations, agreements!,] and conversations might be considered in determining the parties’ intentions in the construction of the contract.

Tupelo Redevelopment Agency v. Abernathy, 913 So.2d 278, 284 (¶ 13) (Miss.2005) (internal citations omitted).

¶ 13. The 930 Blues Café deed of trust states the property was used to secure payment of the $200,000 as well as “other amounts due and payable or which may become due and payable under this Deed of Trust, the Reaffirmation Agreement!,] or any other agreement between Grantor and Beneficiary....” Since this Reaffirmation Agreement was referred to in the deed of trust, we must construe this document along with the 930 Blues Café deed of trust. See United Miss. Bank v. Gen. Motors Acceptance Corp. Mortgage Co., 615 So.2d 1174, 1176 (Miss.1993). According to the Reaffirmation Agreement, the $200,000 payment was a “partial credit against the indebtedness.” This agreement also states that failure to pay “all amounts payable by Grantor to Beneficiary pursuant to the Reaffirmation Agreement and this Deed of Trust” triggers a default. And under the agreement, the $200,000 is considered “a credit against the indebtedness.” The chancellor determined the 930 Blues Café deed of trust specifically provided that it secured the full indebtedness, not just the $200,000 payment. We find substantial evidence in the record to support the chancellor’s decision. This issue is without merit.

¶ 14. THE JUDGMENT OF THE HINDS COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND RUSSELL, JJ., CONCUR. FAIR, J., NOT PARTICIPATING.


author: ISHEE, J.,

text:
    J. CRISS BUILDER, INC. and Janie Criss, Individually, Appellants v. William P. WHITE and Patricia L. White, Appellees. J. Criss Builder, Inc. and Janie Criss, Individually, Appellants v. William P. White and Patricia L. White, Appellees.
    Nos. 2010-CA-02085-COA, 2008-CT-00832-COA.
    Court of Appeals of Mississippi.
    Feb. 21, 2012.

      Paul E. Rogers, Jackson, attorney for appellants.
    John W. Christopher, attorney for ap-pellees.
    Before GRIFFIS, P.J., BARNES, and ISHEE, JJ.
   ISHEE, J.,

for the Court:

¶ 1. This appeal arises from a December 14, 2010 order of the Madison County Circuit Court granting the Appellees’ motion for an additur in the amount of $73,701.82. On appeal, the Appellants argue the trial court erred in granting the additur. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On July 30, 1996, J. Criss Builder Inc. (JCB) purchased a lot in Madison County, Mississippi. JCB was subsequently granted a building permit to erect a residence on the lot. Although JCB as a corporation did not have a residential builder’s license, Janie Criss, the sole owner of JCB, had a residential builder’s license in her individual capacity and oversaw construction of the home. On November 21, 1996, JCB conveyed the lot and the completed home to Criss, individually. Shortly thereafter, JCB requested and received a final inspection of the home. Criss used the home as a personal residence during which time she applied for homestead tax exemption. On February 17, 1997, Criss sold the home to William and Patricia White (the Whites). Several years after the Whites acquired the property, a crack developed in the foundation. Upon inspection of the foundation, soil testing revealed the house was built upon soil containing Yazoo clay. In 2007, the Whites had the crack in the foundation repaired. They also repaired damage to the house that resulted because of the foundation work. According to expert testimony, the value of the house diminished as a result of the repairs.

¶ 3. On February 12, 2003, the Whites filed a complaint against JCB, Criss, and Bailey Engineering and Land Surveying LLC (Bailey) alleging breach of warranty, negligence, and failure to disclose. Bailey was later dismissed as a party. JCB and Criss filed a motion for summary judgment, arguing the statute of limitations had expired. Their motion for summary judgment was denied and a jury trial began on February 26, 2008. At the close of trial, the jury returned a verdict in favor of the Whites in the amount of $30,000. The Whites then filed a motion for an additur or, alternatively, a new trial on damages. The trial judge granted an additur and awarded total damages in the amount of $103,701.82.

¶ 4. From that ruling JCB and Criss appealed, arguing, among other claims, the trial court erred by granting an additur. On appeal, this Court remanded the case to the trial court to reinstate the jury’s verdict or provide adequate findings to support the additur. J. Criss Builder, Inc. v. White, 35 So.3d 541, 546 (¶ 17) (Miss.Ct.App.2009). On remand, the trial court again granted the additur. From that ruling, JCB and Criss now appeal.

DISCUSSION

¶ 5. In their sole issue on appeal, JCB and Criss argue the trial court erred by granting an additur. They assert that the trial court’s findings are not adequate to support an additur and that the additur intrudes upon the province of the jury. Pursuant to Mississippi Code Annotated section 11-1-55 (Rev.2002), the trial court may grant an additur “if the court finds that the damages are excessive or inadequate for the reason that the jury or trier of the facts was influenced by bias, prejudice, or passion, or that the damages awarded were contrary to the overwhelming weight of credible evidence.”

¶ 6. The standard of review for a grant or denial of an additur is abuse of discretion. Rodgers v. Pascagoula Pub. Sch. Dist., 611 So.2d 942, 945 (Miss.1992) (citation omitted). Jury awards “are not merely advisory and will not under the general rule be set aside unless so unreasonable in amount as to strike mankind at first blush as being beyond all measure, unreasonable in amount[,] and outrageous.” Id. (citations omitted). To set aside a jury award the trial court must comply with the language of the statute and find: “(1) the jury’s verdict is so shocking to the conscience that it evinces bias, passion, and prejudice on the part of the jury; or (2) the verdict is contrary to the overwhelming weight of the credible evidence.” White, 35 So.3d at 546 (¶ 16) (citing State Highway Comm’n of Miss. v. Warren, 530 So.2d 704, 707 (Miss.1988)). “Absent either of these findings, the trial court [has] abuse[d] its discretion.” Id.

¶ 7. In this case, the trial judge did not merely substitute his opinion regarding damages for that of the jury. The jury failed to take into account credible evidence of compensable damages. The Whites presented testimony from a variety of experts. The testimony established the cause of the cracks in the foundation and the costs incurred to repair the cracks. Expert testimony was also presented regarding the diminution of the home’s value. While JCB and Criss’s trial counsel effectively cross-examined the Whites’ experts, JCB and Criss failed to present any expert testimony or credible evidence to show the amounts were incorrect or unreasonable. It is clear from the amount awarded that the jury failed to consider the evidence provided by the Whites and ignored the overwhelming weight of the credible evidence when awarding damages. Thus, the trial court did not abuse its discretion in granting an additur.

¶ 8. Furthermore, the trial judge included specific findings in the order granting the additur. The Whites sought damages in the amount of $31,233 for the cost of foundation repair; $50,000 for diminution of the home’s value; and $31,989.23 for repairs done to the house after the foundation work had been completed. The trial judge found the Whites proved by a preponderance of evidence that the cost of the foundation repairs totaled $31,233, and the diminution in the value of the residence totaled $50,000. However, the trial judge reduced the claim for repairs to the house done after the foundation work was completed. Some costs that were called into question included the deck lighting, the deck extension, and the hardwood floors. The trial judge .reduced the additur amount by $935 for the fighting on the outside deck. He also reduced the amount by $2,000 for a portion of the deck’s cost. The trial judge reduced the additur amount because the original deck did not have lights and the new deck is larger than the original deck. Furthermore, because the Whites used a more expensive type of wood during repairs than was required to repair the floor adequately, the trial judge reduced the additur amount by $6,585.41 for the new hardwood floors. Thus, the trial judge granted a total of $22,468.82 for repairs made to the house after the foundation work had been completed. After reducing the claim, the trial judge granted an additur in the amount of $73,701.82 for a total award of damages of $103,701.82. The trial judge provided adequate findings to support the granting of an additur. Accordingly, this issue is without merit.

¶ 9. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

LEE, C.J., IRVING AND GRIFFIS, dP.JJ., BARNES, ROBERTS, MAXWELL, RUSSELL AND FAIR, JJ., CONCUR. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.