author: PICKETT, Judge. GREMILLION, Judge,

text:
    Byron P. GUILLORY, et ux. v. PELICAN REAL ESTATE, INC., et al.
    No. 14-58.
    Court of Appeal of Louisiana, Third Circuit.
    June 25, 2014.
    Melvin A. Eiden, Rabalais & Hebert, Randall L. Guidry, Attorney at Law, Lafayette, LA, for Plaintiffs/Appellants, Byron P. Guillory and Margo L. Guillory.
    Timothy W. Basden, Breaud & Meyers, Lafayette, LA, for Defendants/Appellees, Pelican Real Estate, Inc., Marla Smith Landry, Brandi Hebert McKnight and Linda Krupke.
    Thomas J. Eppling, Staines & Eppling, Metairie, LA, for Third Party/Appellee, St. Paul Fire & Marine Insurance Company.
    James L. Brazee, Jr., Brazee Law Firm, Lafayette, LA, for Defendant/Appellee, Dr. Johnny Wayne Jones.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, ELIZABETH A. PICKETT, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   PICKETT, Judge.

| tByron and Margo Guillory appeal the trial court’s denial of their Motion to Vacate Ex Parte Order of Abandonment. For the following reasons, we reverse the judgment of the trial court and remand for further proceedings.

FACTS

In June 2008, Byron and Margo Guillory filed suit, alleging that the home they purchased from Johnny Jones in Sunset contained a redhibitory defect because the home and property on which it is situated are prone to flooding. They sued: (1) Mr. Jones; (2) Marla Landry, Mr. Jones’s real estate agent; (3) Brandi McKnight, then-real estate agent; (4) Pelican Real Estate, Inc., the entity that brokered the sale; (5) Linda Krupke, another real estate agent; and (6) ABC Insurance Company. All of the real estate agents were employed by Pelican. In their petition, the Guillorys alleged that Mr. Jones and the real estate agents knew the property had previously flooded and that they made, or caused to be made, negligent or fraudulent misrepresentations regarding the propensity of the property to flood that affected their decision to purchase the property.

Mr. Jones answered the suit and filed third party demands against Pelican, Landry, McKnight, Krupke, and St. Paul Fire and Marine Insurance Company, Pelican’s professional liability insurer. St. Paul filed an answer to Mr. Jones’ third party demand. St. Paul hired separate counsel to represent Pelican, Landry, McKnight, and Krupke and to represent Mr. Jones.

On June 20, 2013, St. Paul filed an Ex Parte Motion to Dismiss on the ground that the Guillorys’ lawsuit was abandoned because no steps had been taken in the prosecution or defense of the matter since March 4, 2010, more than three years before the filing of the motion. The trial court signed the order St. Paul 12submitte d with its motion the following day, dismissing “the above captioned matter, including any and all Third Party Demands made therein” with prejudice. On July 30, 2013, the Guillorys filed a Motion to Vacate the Ex Parte Order of Dismissal. After a hearing, the trial court granted the Guillo-rys’ motion only to the extent that it requested the dismissal be without prejudice. The Guillorys appealed the trial court’s dismissal of their case.

In defense of the Motion to Abandon, and on appeal, the Guillorys assert that the parties engaged in extensive discovery with the last deposition being taken on March 4, 2010, and that they propounded interrogatories and requests for production of documents upon Pelican on December 17, 2012. They further asserted that Pelican did not respond to the discovery, and that on January 21, 2013, their counsel sent notice scheduling a Rule 10.1 discovery conference upon Pelican for 2:00 p.m. January 28, 2013. Counsel for Pelican, Landry, McKnight, and Krupke responded by email on January 24, 2013, asking for terms of a possible settlement. Counsel for the Guillorys conducted the Rule 10.1 discovery conference as scheduled to discuss the outstanding discovery. During the conference, counsel for Pelican, Landry, McKnight, and Krupke asked the Guillorys to submit a written settlement proposal to his clients and that he be allowed to respond to the proposal before responding to the discovery.

The Guillorys provided a written settlement offer to Pelican, Landry, McKnight, and Krupke. Pelican, Landry, McKnight, and Krupke did not respond to the discovery, and their counsel informed counsel for the Guillorys that he considered the case abandoned. Thereafter, St. Paul moved to have the case abandoned; Pelican, Landry, McKnight, Krupke, and Mr. Jones joined in the motion.

I ¡ASSIGNMENTS OF ERROR

The Guillorys assign three errors with the trial court’s judgment:

1. The trial court erred when it held that the actual participation in a Rule 10.1 discovery conference by the attorney for Pelican, Landry, McKnight, and Krupke was not an action taken by defendants during the abandonment period sufficient to preclude a finding of abandonment.
2. The trial court erred when it held that the Guillorys’ action was abandoned as to all parties.
3. The trial court erred when it did not find that the totality of the circumstances precluded a finding of abandonment of the Guillorys’ claims.

DISCUSSION

Louisiana Code of Civil Procedure Article 561(A)(1) provides, in pertinent part: “An action ... is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years.” Subsection (B) of Article 561 provides: “Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action.”

In Louisiana Department of Transportation & Development v. Oilfield Heavy Haulers, L.L.C., 11-912, pp. 5-6 (La.12/6/11), 79 So.3d 978, 981-82, the supreme court discussed the purpose and history of abandonment, explaining:

The purpose of Article 561 is the prevention of protracted litigation filed for purposes of harassment or without a serious intent to hasten the claim to judgment. See Chevron Oil Co. v. Traigle, 436 So.2d 530, 532 (La.1983). Abandonment is not a punitive concept; rather, it balances two competing policy considerations: (1) the desire to see every litigant have his day in court and not to lose same by some technical carelessness or unavoidable delay, and (2) the legislative purpose that suits, once filed, should not indefinitely linger, preserving stale claims from the normal extinguishing operation of prescription. Clark, 00-3010, p. 10-11; 785 So.2d at 787.
14Our jurisprudence has uniformly held Article 561 is to be liberally construed in favor of maintaining a plaintiffs suit. Id., p. 8; 785 So.2d at 785. Because dismissal is the harshest of remedies, any reasonable doubt about abandonment should be resolved in favor of allowing the prosecution of the claim and against dismissal for abandonment. Id., p. 10; 785 So.2d at 787. The intention of Article 561 is not to dismiss suits as abandoned based on technicalities, but only those cases where plaintiffs inaction during the three-year period has “ ‘clearly demonstrated his abandonment of the case.’ ” Id., p. 8-9; 785 So.2d at 785-86 (quoting Kanuk v. Pohlmann, 338 So.2d 757, 758 (La.App. 4 Cir.1976), unit denied, 341 So.2d 420 (La.1977)). For the purpose of determining abandonment, “the intent and substance of a party’s actions matter far more than technical compliance.” Thibaut Oil Co., Inc. v. Holly, 06-0313, p. 5 (La.App. 1 Cir. 2/14/07); 961 So.2d 1170, 1172-73.

The Guillorys first urge that the trial court erred in finding their claims against Pelican, Landry, McKnight, and Krupke were abandoned because within three years of the last action taken in this case, they propounded interrogatories and requests for production on Pelican in December 2012 and conducted a Rule 10.1 discovery conference with counsel for Pelican on January 29, 2013. We agree.

The supreme court has construed Article 561 as imposing three requirements: (1) a party must take some “step” in the prosecution or defense of the litigation; (2) the step must be taken in the litigation and must appear in the record, unless it is formal discovery; and (3) that step must have been taken within three years of the last step taken by either the plaintiff or defendant. Oilfield Heavy Haulers, 79 So.3d 978.

In Oilfield Heavy Haulers, the plaintiffs scheduled a Rule 10.1 discovery conference with one defendant within three years of the last “step” in the prosecution or defense of the case. All parties in the litigation were copied with the correspondence scheduling the conference. This court held that because the correspondence scheduling a Rule 10.1 discovery conference was informal | .¡correspondence between the parties, not the formal discovery required by Article 561, it was “tantamount to the employment of ‘extrajudicial efforts’ at resolving outstanding discovery issues” and, therefore, was not a step in the prosecution of the action. Oilfield Heavy Haulers, 10-1392, p. 6 (La.App. 3 Cir. 4/6/H), 62 So.3d 308, 312. The supreme court reversed, explaining:

[Sjending a letter to all parties scheduling a discovery conference under Louisiana District Court Rule 10.1 constitutes a step in the prosecution or defense of the action. Rule 10.1 requires a discovery conference prior to filing any discovery motion, and discovery motions have the effect of hastening the matter toward judgment. Thus, scheduling a Rule 10.1 conference is a necessary part of the discovery motion process, and a necessary step to hasten a matter toward judgment when a party has failed to comply with discovery requests.

Oilfield Heavy Haulers, 79 So.3d at 986.

Mr. Jones and St. Paul assert that because they were not copied with the discovery, the discovery did not interrupt the abandonment period. Pelican, Landry, McKnight, and Krupke argue that their notice and receipt of the Guillorys’ December 2012 discovery requests did not interrupt the accrual of abandonment as to them because not all parties were served with the discovery requests or the notice of the Rule 10.1 discovery conference. They contend Article 561 requires that service of formal discovery be made on all parties in the litigation for the discovery to constitute a step in the prosecution of the case for purposes of abandonment. They argue that the supreme court’s holding in Oilfield Heavy Haulers stands for this proposition and that the first circuit’s decision in Louisiana Department of Transportation & Development v. Bayou Fleet, Inc., 09-1569 (La.App. 1 Cir. 4/28/10), 37 So.3d 1066, writ granted, 10-1215, (La.7/2/10), 39 So.3d 585, is on point with the facts herein.

|Jn Bayou Fleet, DOTD filed suit against the owner of a motor vessel and the vessel’s captain for damage caused when the vessel collided with a bridge. At the request of the vessel owner, DOTD initially withheld service while the two parties attempted to resolve the claim. Time passed without the claim being resolved and DOTD served the owner; thereafter, the two parties continued trying to resolve the claim. More than three years after the last pleading, DOTD moved for a preliminary default which was granted. The owner, who had not previously been represented by counsel, hired counsel at that time. The newly-hired counsel had the suit dismissed on the basis of abandonment.

In seeking to have the dismissal vacated, DOTD asserted three reasons why the case was not abandoned. First, it argued that an agreement between the parties that DOTD would not take any action against the owner without giving a thirty-day written notice interrupted the abandonment period. Next, it argued that the owner waived its right to plead abandonment because it acknowledged owing a debt to DOTD. Lastly, DOTD argued that correspondence between it and the owner before the owner was represented by counsel constituted discovery that satisfied the formal discovery requirement of Article 561. The trial court found no merit in DOTD’s arguments and denied its motion to vacate the dismissal of its case. The first circuit affirmed.

Pertinent to this case, the first circuit determined that the owner’s correspondence requesting documentation supporting the amounts DOTD sought 17to recover did not interrupt the abandonment period because none of the correspondence was served on the boat captain. The first circuit reasoned:

Pursuant to La. C.C.P. art. 1474, the mailing of discovery pleadings to adverse parties, in accordance with La. C.C.P. art. 1313, satisfies the service requirement of La. C.C.P. art. 561. However, in order to satisfy La. C.C.P. art. 561, it is necessary that any discovery be mailed to all the parties to the action. In the present case, Bayou Fleet does not dispute receiving any of DOTD’s letters by mail, but the record does not establish that any of the letters sent by these two parties were also served on Mr. Elsik, the other defendant in the suit. Thus, the letters were not “served on all parties” as required by La. C.C.P. art. 561. Because DOTD did not establish service of “formal discovery” on “all parties,” it did not establish a “step” in the prosecution of the action. See Stillman [v. Bd. of Supervisors of S. Univ. & Agric. & Meek Coll., 07-2107, p. 4 (La.App. 1 Cir. 6/6/08), 992 So.2d 523,] 526.

Bayou Fleet, 37 So.3d at 1075-76 (all but last citation omitted) (footnote omitted).

The supreme court granted DOTD’s writ of certiorari and reversed the first circuit’s conclusion, stating: “Given the unique facts and circumstances of this case, we find defendant’s correspondence was tantamount to formal discovery.” DOTD v. Bayou Fleet, Inc., 10-1215 (La.7/2/10), 39 So.3d 585, 586. The court continued: “The serving of any discovery materials shall be considered a step in the prosecution or defense of an action for purposes of La.Code Civ. Proc. Art. 561, notwithstanding such discovery materials are not filed in the record of the proceedings. La.Civ.Code Proc. Art. 1474(C)(4).” Id.

As the first circuit noted in Bayou Fleet, La.Code Civ.P. art. 1474, in conjunction with La.Code Civ.P. art. 1313, provides for the service of discovery by mail. The first circuit interpreted Article 561 as requiring service of discovery on all defendants to constitute a step in the prosecution or defense of the action. The supreme court determined, however, that as long as service of discovery satisfies the requirements of Article 1474, it satisfies the requirements of Article 561. ^Accordingly, the Guillorys’ service of discovery on Pelican constituted a step in the prosecution of their actions against all the defendants for purposes of Article 561.

This result is especially applicable here where the facts alleged by the plaintiffs show that all the defendants are likely solidarily liable. In Clark v. State Farm Mutual Automobile Insurance Co., 00-3010, p. 11 (La.5/15/01), 785 So.2d 779, 787, abandonment was recognized as a form of liberative prescription and, therefore, “subject to prescription-based exceptions.” The Civil Code provides in Article 1799, “The interruption of prescription against one solidary obligor is effective against all solidary obligors,” and in Article 3503, “When prescription is interrupted against a solidary obligor, the interruption is effective against all solidary obligors.” Treating abandonment as a species of prescription and applying the Civil Code concept of interruption of prescription applicable to solidary obligors, we conclude that interruption of the three-year abandonment period as to one defendant who is solidarily liable with the other defendants interrupts the accrual of abandonment as to all the defendants with whom that defendant is solidarily liable. Therefore, even if the Guillorys’ service of discovery on Pelican, Landry, McKnight, and Krupke was not sufficient to constitute a step in the prosecution of their claims under Article 561, application of this prescription-based exception yields the same result. For these reasons, the judgment of the trial court is reversed, and the matter is remanded for further proceedings.

DISPOSITION

The judgment dismissing the claims of Byron and Margo Guillory is reversed, and the matter is remanded to the trial court for further proceedings. All [9costs are assessed to the defendants, Johnny Jones, Marla Landry, Brandi McKnight, Pelican Real Estate, Inc., Linda Krupke, and St. Paul Fire and Marine Insurance Company.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

GREMILLION, J., dissents and assigns reasons.

GREMILLION, Judge,

dissents.

hi respectfully dissent from the majority’s decision. Louisiana Code of Civil Procedure Article 561(B) reads (emphasis added): “Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action.”

The majority is correct that Louisiana Dep’t of Transp. & Dev. v. Oilfield Heavy Haulers, L.L.C., 11-912, (La.12/6/11), 79 So.3d 978, held that a conference held pursuant to Rule 10.1 represented a step in the prosecution sufficient to halt the accrual of abandonment. However, that case involved the noticing of all parties of the conference. The majority acknowledges this holding but explains it away on the basis of first circuit jurisprudence.

“The sources of law are legislation and custom.” La.Civ.Code art. 1. This article states the most fundamental principle in Louisiana judicial interpretation. Jurisprudence — especially a single case — does not constitute law; rather, the expression of the legislature does. The legislature spoke when it enacted Code of Civil Procedure article 561(B). Had the legislature intended to allow partial notice or notice to a single party in multi-party litigation, the legislature could have omitted the phrase “and served on all parties.” But it did not omit those words, and | {.their inclusion is presumed to carry intent. ABL Mgmt., Inc. v. Bd. of Sup’rs of Southern Univ., 00-798 (La.11/28/00), 773 So.2d 131. “When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.” La.Civ.Code art. 9.

The phrase “and served on all parties” must be given effect. It cannot be ignored. And in this case, the notice of the 10.1 conference was not served on all parties; therefore, in my opinion, the matter was abandoned.

      . DOTD had filed a motion to substitute counsel during that time; however, it did not dispute that the filing of the motion to substitute counsel and attendant order did not interrupt the accrual of time for purposes of abandonment. See Chevron Oil Co. v. Traigle, 436 So.2d 530 (La.1983).


source: Caselaw Access Project

author: KING, Justice, for the Court:

license: Public Domain

text:
    Sam WOODRUFF v. Rita THAMES and Larry Collins.
    No. 2013-CA-00815-SCT.
    Supreme Court of Mississippi.
    July 31, 2014.

      Anita M. Stamps, Larry Stamps, Jackson, attorneys for appellant.
    Brenton Matthew Carter, David Ringer, Florence, attorneys for appellee.
    Before RANDOLPH, P.J., KING and COLEMAN, JJ.
   KING, Justice, for the Court:

¶ 1. In this real-estate contract case, the trial court entered a default judgment awarding specific performance in favor of the purchaser. The seller moved to have the default judgment set aside, and the trial court denied the motion, finding that the seller lacked good cause for the default and lacked a “compelling defense.” A serious question exists regarding whether a valid contract exists, giving the seller a colorable defense. Because the trial court abused its discretion by failing to set aside the default judgment, this Court reverses the trial court’s judgment and remands the case for proceedings on the merits.

FACTS AND PROCEDURAL HISTORY

¶ 2. Sam Woodruff, a man in his eighties, owned land in Rankin County. He agreed to sell some part of that land to Rita Thames, his first cousin’s daughter, who was also a neighbor. Woodruff claims that he agreed to sell Thames one acre from a tract of land for the purchase price of $9,750. Thames claims that Woodruff agreed to sell her 6.53 acres from a different tract of land for $9,750. Woodruff claims that Thames then brought him a blank contract of sale to sign, which he did. Thames appears to claim that the blank contract of sale included attachments that described the subject land; however, the appellate record contains no evidence of this. The record contains only base assertions by her attorney regarding whether the attachments were part of the contract when signed. Woodruff, however, claims that the attachments were not present at the time he signed the contract. Furthermore, Thames alleges that Larry Collins, her then-boyfriend, and Kimberly Richardson, a notary public, were present for the signing of the contract. Woodruff claims that neither Collins nor Richardson was present for the signing of the contract. According to Woodruff, Thames then gave him $4,000 earnest money and began pointing to the “wrong land.” He “then realized that [they] were not talking about the same piece of real property and immediately wrote ‘void’ on the check, and returned it to her.” Thames admits that he wrote void on the check and that he refused the earnest money. Thames argued at the hearing that Woodruff rejected the payment immediately after he signed the contract because he suddenly had another contract for a higher purchase price on the land.

¶3. On December 13, 2010, Thames and Collins filed a complaint for specific performance. With the complaint, Thames served requests for admission and other discovery. Thames attached the Contract for Sale and Purchase of Real Estate to the complaint, along with the alleged attachments to the contract. The contract states that the seller and purchaser agree to sell and purchase “the hereinafter described property on the terms and conditions stipulated in the following schedules and both Seller and Purchaser acknowledge that this is the procuring cause of this sale.” The next section is entitled “Description/Property Address.” The description is completely blank. It describes utterly nothing, and does not reference any exhibits. The Seller is listed as Sam Woodruff, and the purchasers as Rita Thames and Larry Collins. In the photocopy, Collins’s name appears to be written in different ink than are Woodruffs and Thames’s, but neither the original contract nor a color copy is in the appellate record, nor do they appear to have been before the trial court.

¶ 4. The contract then lists the price. It further contains a title and conveyance provision that states that the “Seller is to furnish Purchaser with Certificate of Title prepared by David attorney [sic], upon whose certificate of title will be obtained title insurance ...” (Emphasis added.) That provision also contained a statement that “Title shall be good and merchantable, subject only to the following items recorded in the Chancery Clerk’s office of -County[ ].” Notably, the county was left blank. Likewise, the closing date was left blank. The contract also provides for who is to pay for multiple costs, such as an appraisal and a survey. For every cost, the letters “N/A” were written. However, on the lines for “Attorney’s fee: (including Certificate of Title and Transfer of Instrument)” and “Other Closing Costs,” “N/A” is scratched out and replaced with “P” to indicate that Thames is responsible for those costs. The letter “P” appears from the black-and-white photocopy to be written in different ink than are the letters “N/A.” No one initialed next to the scratched-out portions. Confusingly, the purchaser is to pay for the certifícate of title when the contract specifically provided elsewhere that the seller was to provide the purchaser with the certificate of title prepared by “David attorney,” which apparently referred to David Ringer, the purchaser’s attorney.

¶ 5. The contract contains a provision stating that “[t]his instrument is to contain all terms of this sale, and no representations have been made other than are herein contained.” (Emphasis added.) It also states that “[b]oth parties agree that this contract, unless subsequently amended in writing, contains the final and entire agreement between the parties hereto, and neither party shall be bound by any terms, conditions, oral statements, warranties, or representations not herein contained. ” (Emphasis added.) Again, the four corners of the contract make no mention of any attachments or amendments to the contract. The contract is dated November 5, 2010, and is signed by Woodruff, Thames, Collins, and a notary public.

¶ 6. Also attached to the complaint is a survey of the land Thames claims was the subject of the contract, and that Thames claims was attached to the contract when it was signed. None of the parties initialed or signed the survey to indicate their acceptance of it, nor is it dated. Thames also attached a written legal description of the land, also undated and unsigned, to the complaint. Thames claims that this description was also attached to the contract when it was signed. Additionally, Thames attached to the complaint a “First Preliminary Certificate of Title” prepared for Thames by her attorney, David Ringer, and signed by him on November 8, 2010, at 8:00 a.m. The certificate of title referenced the land’s written legal description, which was attached thereto.

¶ 7. Woodruff was served with the complaint and discovery, including the requests for admission, on January 7, 2011. Woodruff was thus required to file an answer to the complaint within thirty days, and an answer to the discovery within forty-five days. M.R.C.P. 12(a), 36(a). The forty-fifth day after service was February 21, 2011. On February 25, 2011, Thames and Collins filed a Motion for Default Judgment, as well as an application for entry of default and supporting affidavit. That same day, the chancery clerk of Rankin County issued an entry of default against Woodruff. On March 8, 2011, just ten days after Woodruffs forty-five days to file an answer to discovery ended, the Chancery Court of Rankin County entered a default judgment against Woodruff. The default judgment granted specific performance, ordering the property transferred to Thames and Collins.

¶ 8. Before the thirty days to file an answer ran, Woodruff took the complaint and all of his paperwork to William Smith, an attorney. Woodruff does not specifically assert that he hired Smith, and it does not appear that Woodruff paid Smith or signed an engagement contract, although he maintains that he thought Smith was representing him. However, Woodruff states in his affidavit that he “dismissed” Smith once he learned about the default judgment. Thames maintained that, according to Smith, there was no engagement of services. Woodruff learned of the default judgment in March 2011, and at some point thereafter, retained his current counsel. On May 16, 2011, and May 19, 2011, Woodruffs current counsel sent urgent letters to Smith regarding why Smith failed to answer the original complaint.

¶ 9. On June 20, 2011, Woodruff filed a Motion to Set Aside Judgment, Stay Execution of Judgment, For Extension of Time for Appeal and for Other Relief,- as well as his Answer and Affirmative Defenses. After a hearing on the same, the trial court denied the motion to set aside the default judgment. In making its ruling, the trial court considered that Wood-ruff did not timely answer the requests for admission, acknowledging Thames’s argument that they should be deemed admitted and stating that “in the event that a trial was held, that would be a matter that would have to be considered by the Court.” In its bench ruling, the trial court found that it was “hard, in fact, impossible, to get by the first prong,” finding that Woodruff did not have good cause for his failure to answer in a timely manner. The court also found that the argument that Wood-ruff had a colorable defense because no meeting of the minds occurred was “not compelling.” It further found the argument that exhibits may have been added to the contract after the fact “unsubstantiated” because there was only “lip service to the fact that this was done,” noting that “[tjhere has been no showing whatsoever that either Rita Thames or Larry Collins was in any mode to orchestrate misconduct, misrepresentation, or fraud, which fraud, of course, has to be proven by clear and convincing evidence[.]” The final judgment provided that Woodruff had “failed to show good cause for having failed to answer the Complaint in a timely fashion,” and that Woodruff had “failed to show a compelling defense or other reason why should be set aside the Judgment [sic].” It then noted regarding prejudice “that the failure to satisfy the first two burdens prevent [sic] [the Court] from further consideration on the third element.”

¶ 10. Aggrieved, Woodruff appeals, arguing that the trial court should have set aside the default judgment because: 1) Woodruff had good cause for default; 2) Woodruff was entitled to notice of the entry of default; 8) Woodruff has colorable defenses, including that there was no acceptance, unjust enrichment, and the contract was voidable for lack of description; 4) Thames and Collins will suffer no harmful prejudice if the default judgment is set aside; and 5) Woodruff is entitled to have the default judgment set aside under Rule 60 because he was defrauded. He also argues, in the alternative, that the sale should be rescinded because it is unconscionable, as there was a unilateral mistake.

ANALYSIS

Standard of Review

¶ 11. This Court reviews the trial court’s decision on a motion to set aside a default judgment under an abuse of discretion standard. Am. States Ins. Co. v. Rogillio, 10 So.3d 468, 467 (Miss.2009). Default judgments are not favored in the law. Id. If reasonable doubt exists as to whether a default judgment should be vacated, “the doubt should be resolved in favor of opening the judgment and hearing the case on its merits.” Id. (quoting McCain v. Dauzat, 791 So.2d 889, 843 (Miss.2001)). However, the party seeking relief from the default judgment is not entitled to relief as a matter of right, and this Court will only reverse the trial court where it has abused its discretion. Rogillio, 10 So.3d at 467.

Default Judgment

¶ 12. The clerk of court may enter a default against “a party against whom a judgment for affirmative relief is sought” when that party “has failed to plead or otherwise defend ... and that fact is made to appear by affidavit or otherwise.” M.R.C.P. 55(a). Further, “[i]f the party against whom judgment by default is sought has appeared in the action, he ... shall be served with written notice of the application for judgment at least three days prior to the hearing of such application.” M.R.C.P. 55(b).

¶ 13. A court may set aside the entry of default for good cause shown “and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b).” M.R.C.P. 55(c). Rule 60(b) provides that a court may relieve a party from a final judgment for the following reasons:

(1) fraud, misrepresentation, or other misconduct of an adverse party;
(2) accident or mistake;
(3) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application;
(6) any other reason justifying relief from the judgment.

M.R.C.P. 60(b). “This Court has noted that ‘[ascertaining the meaning of the provisions of Rule 55(c) and Rule 60(b)(5) and (6) with any degree of precision simply may not be done for the language is hopelessly open textured.’ ” Rogillio, 10 So.3d at 467 (quoting Guaranty Nat’l Ins. Co. v. Pittman, 501 So.2d 377, 388 (Miss.1987)) (alteration in original). Thus, considering the interplay of those rules essentially results in a balancing of the equities. Rogillio, 10 So.3d at 467 (quoting Pittman, 501 So.2d at 388).

¶ 14. In determining whether to set aside a default judgment, the trial court must consider a three-part balancing test. Rogillio, 10 So.3d at 467-68. The trial court, and thus this Court, must examine: 1) whether the defendant has good cause for the default; 2) whether the defendant has a colorable defense to the merits of the claim against him; and 3) the prejudice, if any, that the plaintiff may suffer if the court sets aside the default judgment. Id. at 468 (quoting H & W Transfer & Cartage Serv., Inc. v. Griffin, 511 So.2d 895, 898 (Miss.1987)).

a. Good Cause for Default

¶ 15. Woodruff alleges that he was diligent by timely taking his paperwork to Smith to review. He urges that he was under the impression that he had hired Smith and did not realize that no response had been filed on his behalf. Woodruff also notes that both men were in their eighties, presumably arguing that this supports good cause for any confusion.

¶ 16. This Court has held that similar circumstances did not constitute good cause. In Griffin, the defendant company prudently forwarded a complaint against it to its insurance company, which diligently mailed the paperwork to an attorney. Griffin, 511 So.2d at 896-97, 899. Unfortunately, the insurance company’s address for the attorney was incorrect, and the attorney did not receive the paperwork, or even learn of the matter, until after the default was entered. Id. at 897. The defendant imprudently did not follow up with the insurance company after it mailed it the complaint, and the insurance company did not follow up with the attorney after it mailed him the paperwork. Id. at 899. The Court found that these facts were “less than powerful in their influence either way.” Id. It summarized that, “though the initial steps of both [the defendant and its insurance provider] were reasonable and prudent, each thereafter dropped the ball.” Id. It concluded that the defendant’s situation did not amount to good cause for the default. Id. Similarly, it appears that Woodruff was initially prudent in taking his documents to an attorney. However, it appears that Woodruff never received a retainer agreement or paid Smith, and yet never followed up in this matter. Woodruffs assertion that the confusion was reasonable, given that both Woodruff and Smith were in their eighties, is not unthinkable; but, given that no mental deficiencies on the part of either man are alleged, it remains that Woodruff should have followed up with Smith. As in the Griffin case, the facts are not powerfully influential either way, thus the trial court did not abuse its discretion by holding this factor against Woodruff.

b. Colorable Defense

¶ 17. Woodruff claims that the trial court erred in finding that he did not have a colorable defense. The trial court found that no “compelling” defense existed and that Woodruff had only paid “lip service” to his accusations that the exhibits to the contract were added after the fact. Wood-ruff claims that there is not a valid contract because there was neither acceptance nor a meeting of the minds, that the contract is voidable because it lacks a description of the property, and that Thames and Collins were unjustly enriched because no consideration was given. Woodruff also argues that the forced sale should be rescinded as unconscionable because there was unilateral mistake and no meeting of the minds.

¶ 18. A defendant does not have to prove a defense for it be “colorable.” “Colorable” is defined as “appearing to be true, valid, or right.” Black’s Law Dictionary 282 (8th ed. 2004) (emphasis added). A “colorable claim” is defined as “[a] claim that is legitimate and that may reasonably be asserted, given the facts presented and the current law (or a reasonable and logical extension or modification of the current law).” Black’s Law Dictionary 264 (8th ed. 2004) (emphasis added). Thus, a defense does not have to be proven to trial standards, nor must it be “compelling,” as was improperly required by the trial court in this case, to be “colorable”; it merely needs to be “reasonable.” Indeed, this Court has held that even a defense of “questionable” strength may be colorable. Rogillio, 10 So.3d at 471 (“This Court is persuaded by Rogillio’s argument regarding the ambiguity in the insurance policy and finds that the strength of American States’ defense is questionable. Nevertheless, we are of the opinion that American States’ defense does present a colorable defense to the merits of the [sic] Rogillio’s claim for the purpose of the balancing test. Therefore, the second prong of the balancing test weighs in favor of American States.”). Further, the prong of whether the defendant has a colorable defense on the merits outweighs the other factors of the balancing test in its importance. Id. at 469.

¶ 19. “The elements of a valid contract are: (1) two or more contracting parties, (2) consideration, (3) an agreement that is sufficiently definite, (4) parties with legal capacity to make a contract, (5) mutual assent, (6) no legal prohibition precluding contract formation.” Rotenberry v. Hooker, 864 So.2d 266, 270 (Miss.2003). “A contract is unenforceable if the material terms are not sufficiently definite.” Id. The description of the land in a contract for the sale of real property is unquestionably an essential term that must be stated with specificity. See Miss.Code Ann. § 15-3-l(c) (Rev. 2012) (contract for the sale of lands must be in writing); Theobald v. Nosser, 752 So.2d 1036,1040 (Miss.1999) (contracts for the sale of land must describe the land “with reasonable certainty”); Nickerson v. Fithian Land Co., 118 Miss. 722, 80 So. 1 (1918) (an agreement to convey land “cannot be enforced in any case unless the writing identifies with certainty the property sought to be conveyed”); see also Rotenberry, 864 So.2d at 270 (“Price is an essential term that must be stated with specificity. The contract fails when the price has not been stated with specificity.”).

¶ 20. When interpreting a contract, a court must first examine the four corners of that contract. Rotenberry, 864 So.2d at 270. If a contract’s language is clear and unambiguous, then it must be effectuated. Id. Further, if vagueness or ambiguity exist, the terms must be “strongly construed” against the drafting party. Id. “Only when the intent of the parties is not clear” after examining the language and construing the language most favorably to the nondrafting party should the Court resort to examining extrinsic evidence. Id.; Facilities, Inc. v. Rogers-Usry Chevrolet, Inc., 908 So.2d 107, 111 (Miss.2005). “It is only when the review of a contract reaches this point that prior negotiation, agreements and conversations might be considered in determining the parties’ intentions in the construction of the contract.” Facilities, Inc., 908 So.2d at 111. This Court has found that “silence alone does not necessarily create an ambiguity as a matter of law.” Id. at 115; see also Williston on Contracts 4th § 30:4 (2012) (“[A]mbiguity does not necessarily exist simply because a contract requires interpretation or fails to define a term, and the failure to include more express language of the parties’ intent does not create an ambiguity in the contract when only one reasonable interpretation exists. The contract’s silence on a particular issue does not, by itself, create an ambiguity as a matter of law .... ”); 17A Am.Jur.2d Contracts § 331 (2004) (“Ambiguity in a written agreement does not arise from silence, but from what was written so blindly and imperfectly that its meaning is doubtful.”). Additionally,

For an incorporation by reference to be effective, it must be clear that the parties to the agreement had knowledge of and assented to the incorporated terms. A reference to another document must be clear and unequivocal, and the terms of the incorporated document must be known or easily available to the parties.
A document is considered incorporated by reference where the incorporating document specifically provides that it is subject to the incorporated one. However, a mere reference to another document is not sufficient to incorporate that other document into a contract; the writing to which reference is made must be described in such terms that its identity may be ascertained beyond reasonable doubt.

17A C.J.S. Contracts § 402 (2011).

¶ 21. Moreover, if a contract is valid, it must be determined if specific performance is an appropriate remedy. This Court has stated that “[f]or specific performance to be granted, a contract must be reasonably complete and reasonably definite on material terms.” White v. Cooke, 4 So.3d 330, 334 (Miss.2009). A contract enjoys this level of specificity when it contains “matter which will enable the court under proper rules of construction to ascertain its terms, including consideration of the general circumstances and if necessary relevant extrinsic evidence.” Id. (internal quotations omitted). “If the contract does not pass this test of specificity, it should be rendered unenforceable, and specific performance should be denied.” Id. Where a writing “is too indefinite and uncertain in its terms,” specific performance should be refused. Nickerson, 118 Miss, at 722, 80 So. 1.

¶ 22. The trial court determined that Woodruff merely paid “lip service” to his potential defenses, rather than putting forth sufficient evidence. This determination was incorrect. In this case, a court need only look at the four corners of the contract itself, a copy of which was before the trial court, to ascertain that Woodruff has several defenses that are not only colorable, but possibly even strong. The four corners of the contract contain absolutely no description of the property to be sold; it does not even include the county in which the subject property is located. Nor does the contract contain any reference to an attached description, rendering the argument that the allegedly attached property descriptions are part of the contract very questionable, as documents incorporated by reference should be described with some specificity in the contract, and this contract described nothing. The contract also contains definitive statements that the entirety of the contract is contained within the four corners of the document. If the attachments are not part of the contract, the lack of written description of the land would render the contract unenforceable under the Statute of Frauds. Further, it appears possible that some of the elements of a valid contract were not met, namely whether the agreement is sufficiently definite and whether mutual assent was present. Thus, “colorable” defenses are apparent from the four corners of the contract.

¶ 23. Even if the contract were deemed ambiguous, the first rule of construction after such a finding is that it be strongly construed against the drafting party, in this case, Thames and Collins. Only if it is still ambiguous may the court examine extrinsic evidence. It may well be that at trial, Thames and Collins could prove that the exhibits describing the land were part of the contract, but that does not obliterate Woodruffs colorable defenses. Thus, the trial court abused its discretion in finding that Woodruffs defenses were “not compelling,” and this factor strongly favors Woodruff.

c. Prejudice

¶24. Woodruff argues that Thames and Collins would suffer no significant prejudice from having the default judgment overturned. The trial court problematically did not address this factor. Thames and Collins argue that it was not error for the chancellor to refrain from considering this prong; but, if it was error, that error was harmless. They argue first that it would be “illogical” for the trial judge to consider this prong, having already determined that the first two prongs weighed in favor of Thames and Collins. In the alternative, Thames and Collins argue that the failure to consider this prong is harmless error, because they would suffer prejudice were the default judgment set aside. They claim that they incurred “expenses in paying the commissioner to review all the documents and to execute the deed” and closing costs, and that they will have incurred these expenses for nothing if they are forced go to trial and then ultimately win on the merits. Thames and Collins cite no caselaw to bolster their position that this “prejudice” is sufficient to uphold a default judgment.

¶ 25. In the case of King v. Sigrest, a case about a land dispute, the plaintiff suffered the prejudice of a thirty-day delay in the proceedings. King v. Sigrest, 641 So.2d 1158, 1163 (Miss.1994). This Court stated that it was “not impressed” by the prejudice suffered, as the motion to set aside the default was prompt and resulted in little delay. Id. at 1163. Furthermore, it noted that “[t]he land is not going away and the contestants had been neighbors for years.” Id. Similarly, the land in this case is not going away. Additionally, while Thames and Collins bemoan their costs paid, they fail to place into the record the amount of those costs. It is difficult to assess prejudice without any idea of what monetary amount Thames and Collins claim prejudices them. Additionally, given the possibility that a valid contract does not exist in this case, it is difficult to comprehend how Thames and Collins would be prejudiced by not receiving that to which they may not be entitled. As in King, the alleged prejudice suffered by Thames and Collins appears unimpressive. Although the trial court erroneously failed to make findings on this factor, we find that this prong favors Woodruff.

CONCLUSION

¶ 26. While the “good cause for delay” factor favors Thames and Collins, the col-orable defense and prejudice factors favor Woodruff. The chancellor erroneously required Woodruff to put on a “compelling defense,” which is a stricter requirement than “colorable.” Moreover, the colorable defense factor is considerably strong in this particular case, and that factor carries more weight than do the other two factors. Default judgments are not favored in the law, and reasonable doubt should be resolved in favor of opening the judgment and allowing the case to proceed on the merits. A balancing of the equities in this case clearly mandates that the default judgment should be set aside. Thus, the trial court abused its discretion by denying the motion to set aside the default judgment. Therefore, the trial court’s judgment denying the motion to set aside the default judgment is reversed, and the case is remanded to proceed on the merits.

¶ 27. REVERSED AND REMANDED.

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

      . The evidence in the appellate record is sparse, and many of the "facts" alleged are but base assertions made by the attorneys for the parties. Documents that are mentioned in the record (and some of which were before the trial court) and that would be helpful to this Court, but that are not in the appellate record, include: (1) the Woodruff deposition; (2) the Thames deposition; (3) the Smith affidavit; (4) the requests for admission; (5) the alleged contract with subsequent purchasers; (6) the appraisal of the property at issue; (7) the voided check; and (8) an original or color copy of the contract. Interestingly, Thames and Collins filed a motion to supplement the record with the Smith affidavit and the requests for admission. This Court dismissed that motion without prejudice because Thames and Collins had failed to provide a certified copy of the documents as is required by Mississippi Rule of Appellate Procedure 10(e). Then, Woodruff filed a motion to supplement the record with the Woodruff deposition, the Thames deposition, and the Smith affidavit. This Court also dismissed that motion without prejudice for failure to submit certified copies of the documents as required under Mississippi Rule of Appellate Procedure 10(e). Neither party bothered to refile its motion with certified copies of the documents with which they wished to supplement the record. Mississippi Rule of Appellate Procedure 10 makes clear that both parties have a duty to ensure that the record before this Court is complete. While the parties both did a very poor job of ensuring that the appellate record contained all relevant information, the ultimate determination on whether the default judgment should be set aside may be made by relying exclusively on an examination of the four corners of the contract for sale.

      . Woodruff claims that the 6.53 acres is actually worth approximately $64,000, because $9,000-plus is the worth-per-acre of his land.

      . David Ringer is the attorney for Thames and Collins.

      . Woodruff suggests that this document was likely the product of a survey conducted when they filed the lawsuit.

      . Because this Court’s decision results in setting aside the default judgment, we need not address the argument that the contract is unconscionable.

      . Woodruff claims that he should have been given three days’ notice of a hearing on the application for default judgment. This argument is without merit. Three days' notice of a default hearing is only required when a party has appeared in the action. Woodruff did not appear in the action prior to the entry of the judgment of default.

      . Whether the requests for admission are deemed admitted appears to be a matter for trial, not for a hearing on a default judgment.

      . The argument that it is illogical to consider all the factors in a factor test is without merit. "Factor tests ... must be considered on the record in every case.” Lowrey v. Lowrey, 25 So.3d 274, 280 (Miss.2009). "These factor considerations are not only essential for appellate purposes, but also for trial courts, as they provide a checklist to assist in the accuracy of their rulings.” Id. This Court is one of review, and the trial court should generally give it a complete analysis to review.

      . The time between the entry of the default judgment and the motion to set aside default was three and one-half months. However, the hearing in this case did not occur until nearly two years later. The record indicates that the hearing was delayed because both sides agreed to engage in some discovery. At any rate, Thames and Collins do not appear to object to this delay, nor did they characterize it as prejudicial.


author: KITCHENS, Justice, for the Court:

text:
    ELECTION COMMISSION of the TOWN OF EDWARDS, Mississippi v. Marcus L. WALLACE.
    No. 2013-EC-01327-SCT.
    Supreme Court of Mississippi.
    July 31, 2014.

      Howard Brown, Jackson, attorney for appellant.
    Robert L. Gibbs, Jackson, attorney for appellee.
    Before RANDOLPH, P.J., LAMAR and KITCHENS, JJ.
   KITCHENS, Justice, for the Court:

¶ 1. Marcus L. Wallace sought to run as an independent candidate in the June 4, 2013, mayoral election in Edwards, Mississippi. The Edwards Municipal Election Commission (“the Commission”) declined to place his name on the ballot, questioning the validity of certain signatures on Wallace’s petition for candidacy. Following an emergency appeal to this Court and a granted writ of mandamus directing the Commission to conduct a hearing, the Commission again denied Wallace’s petition to be placed on the ballot. Because we agree with the determination of the Special Circuit Judge of the Second Judicial District of Hinds County that the Commission improperly applied Mississippi Code Section 1-3-76 (Rev.2005), and because we find that Wallace’s name should have been placed on the mayoral ballot, we affirm.

FACTS AND PROCEEDINGS BELOW

¶ 2. In an effort to secure placement on the ballot for the municipal election to be held in Edwards on June 4, 2013, on March 7, 2013, Wallace filed with a deputy municipal clerk of the Town of Edwards a Qualifying Statement of Intent and a Candidate Petition. Wallace’s petition purported to include the signatures of sixty qualified electors pursuant to Mississippi Code Section 23-15-361(l)(a) (Rev.2007). The next day, March 8, 2013, the Election Commission met to certify candidates for the 2013 General Election. The Commission found the names of only thirty-three qualified voters among the sixty signatures on Wallace’s petition for candidacy. Specifically, the Commission found that eighteen signatures were “invalid,” that five signatures were “outside corporate limits,” that three signatures were “not registered” voters, and that one signature was a “duplicate.”

¶ 3. On March 18, 2013, Wallace telephoned Municipal Election Commissioner Ethel Thomas-Heard regarding the purported invalidity of signatures on his petition and scheduled a meeting with the Commission for that same day. Wallace attended, accompanied by his attorneys, Robert Gibbs and Mary Margaret Way-caster. The Commission decided at the meeting that ten signatures it previously had deemed invalid were, in fact, valid signatures. Nevertheless, the Commission found that Wallace only had “43 and he must have 50 signatures to qualify as a candidate.”

¶ 4. Then, on March 27, 2013, Wallace filed a “Petition to be Placed on the Ballot” as an independent mayoral candidate with the Commission. The refusal of the Commission to schedule a hearing on Wallace’s petition resulted in his filing an Emergency Complaint for Writ of Mandamus in the Circuit Court of the Second Judicial District of Hinds County. Wallace asked the circuit court to order the Commission to conduct a hearing on his petition. The circuit court conducted a hearing on April 23, 2013, and on the following day denied Wallace’s Complaint for Writ of Mandamus. Wallace then filed an emergency appeal in this Court. In a May 16, 2013, en banc order, this Court reversed and remanded the case, directing the circuit court to grant Wallace’s Complaint for Writ of Mandamus. Wallace v. Election Comm’n of the Town of Edwards, 118 So.3d 568 (Miss.2013). That same day, the circuit court ordered the Commission to conduct a hearing on Wallace’s qualifying petition.

¶ 5. The hearing took place on May 21, 2013. Wallace, along with his attorney, presented to the Commission seven affidavits from individuals attesting that they previously had signed Wallace’s initial Candidate Petition. The Commission, however, held that Mississippi Code Section 1-3-76 applied and that the statutory procedure for contesting the disqualification of signatures had not been followed. Aggrieved, Wallace filed a Bill of Exceptions and Notice of Appeal on May 28, 2013. Following the recusal of all circuit judges of the Second Judicial District of Hinds County (Judges Green, Kidd, Gow-an, and Weill), this Court appointed the Honorable Vernon R. Cotten as a special judge to preside over the matter.

¶ 6. Judge Cotten, following a hearing on Wallace’s Bill of Exceptions and Notice of Appeal, conducted a hearing on June 6, 2013. In Findings of Fact and Conclusions of Law entered July 22, 2013, he found that, “fwjith no evidence to contradict these affidavits, the Court finds that the Election Commission committed error[ ] when it failed to consider the affidavits presented by Wallace” and that Section 1-3-76 was inapplicable. Judge Cotten set aside the June 4, 2013, mayoral election and ordered a new election with Wallace’s name on the ballot, certifying the circuit court’s findings to the Governor, “who has the exclusive power to do all things necessary to effectuate a new election.... ” Jack Wilson, Legal Counsel to the Governor, sent a letter on August 1, 2013, telling Judge Cotten that:

[i]t is my understanding that this case was appealed to the Circuit Court pursuant to Miss.Code Ann. § 11-51-75, in accordance with Town of Terry v. Smith, 48 So.3d 507 (Miss.2010), which the Supreme Court seems to consider an ordinary civil appeal rather than a true election contest under the Mississippi Election Code. See id., at 510 (¶ 8) (“[T]he [plaintiff] came to circuit court not to challenge an election, but to challenge the decision (made by a municipal authority) [excluding a candidate from the general election ballot].”)

On August 2, 2013, Judge Cotten entered a Final Judgment, adjudicating that Wallace had qualified as an independent candidate for mayor and ordering that an election be held, with Wallace’s name on the ballot, on September 3, 2013. The Commission appeals to this Court.

¶ 7. On appeal, the Commission raises the following five issues:

I. Whether the Commission’s decision that Wallace did not have a sufficient number of qualified signatures on his Petition to be an Independent Candidate for Mayor was reasonable and fairly debatable such that their decision should have been upheld by the circuit court.
II. Whether the circuit court’s order setting a special election violates the doctrine of separation of powers based on the facts of this case.
III. Whether the burden of proof was improperly placed on the Commission.
IV. Whether the circuit court improperly found that Miss.Code Ann. § 1-3-76 does not apply to the facts of this case.
V. Whether the fact that no election contest was filed in this case is outcome determinative.

¶ 8. In reviewing the determination of the circuit court, we address the application of Section 1-3-76 and whether the Commission erred by failing to accept seven affidavits submitted by Wallace in support of his petition for candidacy. We find no merit in the Commission’s remaining arguments.

DISCUSSION

¶ 9. The parties disagree respecting which standard this Court must apply in reviewing the present case. The Commission asserts that the standard of review applied to bills of exception is limited to a review of the record “of the testimony made or proffered, to determine whether or not the acts and orders of the board are reasonable and proper or arbitrary or capricious or beyond the power of the board to make or whether they violate any constitutional right of the complaining party.” Riley v. Jefferson Davis County, 669 So.2d 748, 750 (Miss.1996). The Commission argues that its decision that all of the signatures affixed to Wallace’s candidacy petition could not be counted in accordance with the applicable election statutes was “fairly debatable,” and thus not “arbitrary and capricious.” See City of Biloxi v. Hilbert, 597 So.2d 1276, 1280-81 (Miss.1992) (quoting Saunders v. City of Jackson, 511 So.2d 902, 906 (Miss.1987)) (“ ‘fairly debatable’ is the antithesis of arbitrary and capricious. If a decision is one which could be considered ‘fairly debatable,’ then it could not be considered arbitrary and capricious .... ”). Because “many of the signatures looked the same,” because the Commissioners have “been trained” not to count signatures having the same appearance, and because “[n]one of [the individuals whose signatures were disqualified by the Commission] contested the disqualification of their name[s] in accordance with this statutory scheme,” Section 1-3-75, the Commission argues that its decision to withhold Wallace’s name from the mayoral ballot was fairly debatable and thus not arbitrary and capricious.

¶ 10. Conversely, Wallace claims that, because “[t]he decision of the Election Commission was based entirely on its interpretation of [Section] 1-3-76, not on any disputed facts,” the “issue before this Court is strictly a matter of law.” “Legal errors are subject to a de novo review.” Baymeadows, LLC v. City of Ridgeland, 131 So.3d 1156, 1159 (Miss.2014) (quoting ABC Mfg. Corp. v. Doyle, 749 So.2d 43, 45 (Miss.1999)). Following Wallace’s submission of seven affidavits at the Commission hearing, the Commission denied Wallace’s petition pursuant to Section 1-3-76, holding that the statutory “procedure has not been followed with the presentation of the affidavits submitted in today’s hearing.” The circuit court reversed, holding that Section 1-3-76 did not apply and, as a matter of law, that the Commission had “acted [in an] arbitrary, capricious, discriminatory, unlawful, [and] unreasonable [manner] and the decision was not supported by substantial evidence.”

¶ 11. We agree with Wallace that the proper standard of review with regard to the applicability of Section 1-3-76 is de novo. See Miss.Code Ann. § 23-15-69 (Rev.2007) (“All cases on appeal shall be heard by the boards of election commissioners de novo.... The decisions of the commissioners in all cases shall be final as to questions of fact, but as to matters of law they may be revised by the circuit courts and the Supreme Court.”) The Commission’s May 21, 2013, order found that Section 1-3-76 applied and that the signatories had failed to comply with the statutory requirements for contesting the disqualification of their purported signatures. The Commission at no point made substantive findings of fact with regard to the invalidity of the signatures. The Commission made no finding that the signatures “looked the same,” as it asserted to this Court on appeal. In the absence of specific findings of fact by the Commission with regard to the validity of signatures on Wallace’s candidacy petition or some other factual determination, the determination by the Commission that Section 1-3-76 applies, and the holding by the circuit court reversing the Commission’s determination, demonstrate a pure question of law, subject to de novo review by this Court.

¶ 12. No reported cases guide this Court’s analysis of Section 1-3-76. This Court long has held that “[w]hen the language used by the legislature is plain and unambiguous ... and where the statute conveys a clear and definite meaning ... the Court will have no occasion to resort to the rules of statutory interpretation.” Miss. Ethics Comm’n v. Grisham, 957 So.2d 997, 1001 (Miss.2007) (quoting Man v. Broom, 632 So.2d 1315, 1318 (Miss.1994) (citing State v. Heard, 246 Miss. 774, 151 So.2d 417 (1963))) (emphasis omitted). “Instead, ‘[cjourts have a duty to give statutes a practical application consistent with their wording, unless such application is inconsistent with the obvious intent of the legislature.’ ” Grisham, 957 So.2d at 1001 (quoting Man, 632 So.2d at 1318 (citing Thornhill v. Ford, 213 Miss. 49, 56 So.2d 23 (1952))) (emphasis omitted). In accordance with these eases, the circuit court divided Section 1-3-76 “into parts, in a way to help understand and decide its true meaning.”

¶ 13. Section 1-3-76 is limited by its language to situations where “any petition is filed by qualified electors of a county or municipality....” The circuit court held that “no petition [was] filed by qualified electors.” Rather, Wallace sought inclusion on the mayoral ballot as an independent candidate pursuant to Section 23-15-361(l)(a), which requires, “[fjor an office elected by the qualified electors of a municipality having a population of one thousand (1,000) or more,” the signatures of “not [fewer] than fifty (50) qualified electors....” We agree with the circuit court’s exposition of this clause of Section 1-3-76 and find the “petition filed by qualified electors” contemplated by Section 1-3-76 to be wholly separate and distinct from the requirements of Section 23-15-361(l)(a).

¶ 14. Further, the language of Section 1-3-76 contemplates a scenario in which the qualified electors are “requesting a vote on matters affecting all or any portion of a county or municipality.” The circuit court provided the following examples:

[I]f qualified electors filed a petition seeking to recall an Alderperson, this would be a request that would affect a part of a municipality. Or if qualified electors filed a petition seeking to recall the Mayor—this would be a request that affect[s] all of the municipality. Wallace was not requesting a vote that affected the town of Edwards, or any portion of it. He was simply requesting to be placed on the ballot.

We agree with the circuit court that Section 1-3-76 does not apply to the present circumstance. The qualified electors of Edwards are not “requesting a vote” regarding any matter, even if Wallace’s inclusion on the mayoral ballot potentially could affect the entire municipality if the people were to elect him mayor. Wallace, pursuant to Section 23 — 15—361(l)(a), merely is seeking, as an individual citizen, to have his name printed on the mayoral ballot as an independent candidate, since he was not nominated by a political party. Section 23 — 15—361(l)(a) exclusively applies to the present circumstance, and Section 1-3-76 is, by its plain language, inapplicable.

¶ 15. The Commission denied Wallace’s candidacy petition on May 21, 2013, finding that the seven affidavits Wallace had obtained, containing a total of eight signatures, did not comply with the statutory requirement that the persons whose signatures were disqualified appear within ten days after the posting of notice. The circuit court reversed the Commission and held that “[w]ith no evidence to contradict these affidavits, the Court finds that the Election Commission committed error when it failed to consider the affidavits presented by Wallace.” Each of the seven affidavits submitted to the Commission, having been subscribed and sworn before Notary Public Katisha L. Griffith and bearing her seal, contained the following:

1. I am over the age 21 and competent to make the following statement.
2. I am a resident citizen and qualified elector of the Town of Edwards, Mississippi.
3. I was presented a Candidate Petition for Marcus L. Wallace to qualify as an independent candidate for the Mayor of the Town of Edwards, Mississippi.
4.The signature affixed to the Candidate Petition that was disqualified by the Town’s Election Commission is my signature.

¶ 16. Though this matter was not presented to the circuit court as a motion for summary judgment, the circuit court noted that Mississippi Rule of Civil Procedure 56 “allows judgments to be entered with the use of affidavits.” Rule 56(e) provides:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as may be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matter therein.

The circuit court found that, in the absence of any contradiction of the affidavits, “the Election Commission was duly bound to credit Wallace with eight (8) signatures. This results in Wallace[’s] having fifty-one (51) qualified electors signing his Qualifying Statement and pursuant to [Section] 23-15-361(l)(a), the Election Commission must place Marcus Wallace on the ballot as an independent candidate for the Mayor of the Town of Edwards.”

¶ 17. Indeed, at the hearing in circuit court on Wallace’s Bill of Exceptions, the Commission continued to argue that Section 1-3-76 applied. The attorney for the Commission stated that “it’s undisputed that the commissioners were presented with the affidavits and none of the individuals appeared to address the issues of their affidavits-of their signatures being disqualified.” He went on to state, “And I think it’s undisputed, Your Honor, that the commissioners rejected, if that’s the right word, each affidavit. And it’s our position that each affidavit was rejected based on 1-3-76.” But the attorney for the Commission could do no more than speculate about the reasons the affidavits were not accepted. One affidavit contained two signatures. Another was undated. The circuit court opined, “[s]imply because an affidavit does not include the day it was signedf] does not make it invalid.... Again, the Court is not aware that an affidavit becomes invalid because more than one person signed it. In fact, the Court sees no reason to invalid [sic] either signature, since no evidence was presented at the hearing to contradict the affidavits.”

¶ 18. The affidavits before the Commission were signed and sworn and bore the seal and signature of a notary public of this state. The “undated” affidavit was, in fact, partially dated, containing “March, 2018.” Only the numeric date was omitted. In the absence of contradictory evidence presented to contest those affidavits, we cannot say that the circuit court erred in its holding that the Commission was bound to credit Wallace with the signatures appearing on the affidavits. The uncontroverted affidavits in the record raise the total number of signatures on Wallace’s petition for candidacy to a statutorily sufficient number and, therefore, qualify Wallace to be placed on the ballot. See Miss.Code Ann. § 23 — 15—361(1)(a).

CONCLUSION

¶ 19. For the foregoing reasons, we affirm the Findings of Fact and Conclusions of Law and the Final Judgment of the Circuit Court of the Second Judicial District of Hinds County. The Election Commission of the Town of Edwards, Mississippi, is hereby ordered forthwith to place the name of Marcus L. Wallace on the ballot as a qualified independent candidate for the Office of Mayor and to hold a new election in accordance with the Final Judgment of the Circuit Court of the Second Judicial District of Hinds County.

¶ 20. AFFIRMED.

WALLER, C.J., DICKINSON AND RANDOLPH, P JJ., LAMAR, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.

      .Mississippi Code Section 23-15-361 (Rev. 2007) provides, in pertinent part, the following:
      (1) The municipal election commissioner designated to have the ballots printed shall also have printed on the ballot in any municipal election the name of any candidate who, not having been nominated by a political party, shall have been requested to be a candidate for any office by a petition filed with the clerk of the municipality ... and signed by not less than the following number of qualified electors:
      (a) For an office elected by the qualified electors of a municipality having a population of one thousand (1,000) or more, not less than fifty (50) qualified electors.

      . This petition is not included in the record on appeal.

      . Neither Wallace's Emergency Complaint for Writ of Mandamus nor the order of the Circuit Court of the Second Judicial District of Hinds County denying his complaint appears in the record on appeal.

      . Mississippi Code Section 1-3-76 (Rev.2005) provides the following:
      When any petition is filed by qualified electors of a county or municipality requesting a vote on matters affecting all or any portion of a county or municipality, the certifying official shall post a list of all names disqualified from the petition and the reason for disqualification at the courthouse or city hall, as the case may be. A person whose signature has been disqualified by the certifying official may, within ten (10) days after said notice has been posted, appear before such certifying official and present evidence of his qualification accompanied by a notarized affidavit stating the reason that his signature is qualified for the petition. Based upon such information, the certifying official shall reconsider his disqualification and may allow the signature to be counted if such action appears justified.

      . Mississippi Code Section 11-51-75 (Rev. 2012) provides the following:
      Any person aggrieved by a judgment or decision of the board of supervisors, or municipal authorities of a city, town, or village, may appeal within ten (10) days ... and may embody the facts, judgment and decision in a bill of exceptions.... The clerk thereof shall transmit the bill of exceptions to the circuit court at once, and the court shall either in term time or vacation hear and determine the same of the case as presented by the bill of exceptions as an appellate court, and shall affirm or reverse the judgment.

      . See Miss.Code Ann. § 11-51-75 (Rev.2012).


author: RANDOLPH, Presiding Justice, for the Court: DICKINSON, Presiding Justice,

text:
    MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. Leigh Ann DARBY.
    No. 2013-JP-01400-SCT.
    Supreme Court of Mississippi.
    July 31, 2014.

      John B. Toney, attorney for appellant.
    Alan D. Lancaster, attorney for appel-lee.
   RANDOLPH, Presiding Justice, for the Court:

¶ 1. The Mississippi Commission on Judicial Performance (Commission) filed a “Formal Complaint” charging Leigh Ann Darby, Youth Court Referee, Drug Court Judge, and Family Master, Tate County, Mississippi, with judicial misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute in violation of Section 177A of the Mississippi Constitution. The Commission and Judge Darby entered into an “Agreed Statement of Facts and Proposed Recommendation” providing that Judge Darby had violated Canons 1, 2(A), 3(B)(2), 3(B)(4), and 3(B)(8) of the Code of Judicial Conduct and Section 177A of the Mississippi Constitution, and recommended that she be removed from office, prohibited from holding judicial office in the future, and assessed costs of $200. The Commission unanimously accepted and adopted the “Agreed Statement of Facts and Proposed Recommendation.” “This Court now conducts its ‘mandated review of the Commission’s recommendation consistent with Miss. Const, art. 6, § 177A, Miss. Comm’n on Jud. Perf. R. 10, M.R.A.P. 16(a), and our case law.’ ” Mississippi Comm’n on Judicial Performance v. Darby (“Darby P), 75 So.3d 1037, 1039 (Miss.2011) (quoting Mississippi Comm’n on Judicial Performance v. Sanford, 941 So.2d 209, 210 (Miss.2006)).

AGREED FACTS

¶2. This is not Judge Darby’s first appearance before the Commission or this Court. In Darby I, Judge Darby entered an “Agreed Statement of Facts and Proposed Recommendation” with the Commission in which she admitted that “she wrongly imposed sanctions against [a] mother for contempt of court without first affording her the due process rights required in a criminal contempt matter.” Darby I, 75 So.3d at 1041. This Court agreed with the Commission’s and Judge Darby’s recommended sanction and ordered that Judge Darby be publicly reprimanded, fined $500, and assessed costs of $100. Id. at 1044.

¶ 3. In the present case, Judge Darby stipulates to multiple incidents in which she denied citizens their due-process rights. Between May 7, 2008, and September 7, 2010, she “unlawfully ordered the incarceration of’ eight parents and denied each his or her “constitutional right of due process” prior to being “order[ed] ... to jail for conduct allegedly occurring outside of court.” On or about July 8, 2011, three fifteen-year-old minors (two girls and one boy) were arrested by Sena-tobia police after a neighbor of one of the children complained that they had walked across her yard. Judge Darby, in her official capacity as youth court referee and youth court judge, but without authority of law, ordered that the three minors be drug-tested while in custody. Without conducting any hearings, Judge Darby ordered the minors to be taken into custody and transported to a detention facility in Alcorn County, Mississippi. Unrepresented by counsel and denied due process, the minors spent Friday until the following Monday in the detention facility.

¶ 4. On October 3, 2011, the Tate County Board of Supervisors passed a “No Confidence Resolution” regarding Judge Darby. That resolution declared that it was not in the best of interest of Tate County that she continue in her judicial capacity and called upon the senior chancellor of the district to remove her from all Tate County judicial offices. Judge Darby was suspended from office for a period of sixty days. Thereafter, she tendered her resignation to the senior chancellor.

¶ 5. On May 29, 2013, the Commission filed a “Formal Complaint” charging Judge Darby with violation of Canons l, 2A, 3(B)(2), 3(B)(4), and 3(B)(8) of the Code of Judicial Conduct and engaging in willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute in violation of Section 177A of the Mississippi Constitution. Judge Darby did not file an answer to the “Formal Complaint.”

¶ 6. Subsequently, the Commission and Judge Darby filed an “Agreed Statement of Facts and Proposed Recommendation.” Judge Darby stipulated that she had violated Canons 1, 2(A), 3(B)(2), and 3(B)(8) when she “wrongfully incarcerated eight parents and three minors without first affording [each] basic due process rights.” Judge Darby also stipulated that she “frequently violated Canon 3(B)(4) when she treated litigants and others with whom she dealt in her official capacity in an abusive, belittling, impatient, unprofessional, and discourteous manner.” Judge Darby further stipulated that she “violate[d] § 177A of the Mississippi Constitution ... as said conduct constitutes misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute.” The jointly proposed recommendation was that she “be removed from judicial office and prohibited from holding judicial office in the future and assessed costs of court in the sum of two hundred dollars ($200).” The Commission unanimously “accepted] and adopt[ed] the Agreed Statement of Facts and Proposed Recommendation.”

¶7. Pursuant to Section 177A of the Mississippi Constitution and Rule 10(A) of the Rules of the Mississippi Commission on Judicial Performance, the matter was presented to this Court. See Miss. Const, art. 6, § 177A; Miss. Comm’n on Judicial Performance R. 10(A). On September 19, 2013, the Commission and Judge Darby filed a “Joint Motion for Approval of Recommendations Filed by the Mississippi Commission on Judicial Performance” and a “Memorandum Brief in Support of Joint Motion for Approval of Recommendation Filed by the Mississippi Commission on Judicial Performance.”

ANALYSIS

¶ 8. The Mississippi Constitution vests this Court with “the power, ‘[o]n recommendation of the commission on judicial performance,’ to ‘remove from office, suspend, fine or publicly censure or reprimand any justice or judge of this state for ... willful misconduct in office ... or [ ] conduct prejudicial to the administration of justice which brings the judicial office into disreputef.]’ ” Mississippi Comm’n on Judicial Performance v. Skinner, 119 So.3d 294, 298-299 (Miss.2013) (quoting Miss. Const, art. 6, § 177A). While it “accordfs] careful consideration [of] the findings of fact and recommendations of the Commission, or its committee[,]” this Court “is not bound by the Commission’s findings, and ... may impose additional sanctions.” Id. at 299 (citing Mississippi Comm’n on Judicial Performance v. Thompson, 80 So.3d 86, 88 (Miss.2012); Mississippi Comm’n on Judicial Performance v. Osborne, 16 So.3d 16, 19 (Miss.2009)). “This is true even when the Commission and the judge enter into a joint recommendation-this Court’s acceptance of the joint recommendation is not a certainty.” Id. (citing Sanford, 941 So.2d at 217-18 (Miss.2006)).

¶ 9. The jointly recommended sanction requires us to recognize the limits of our constitutionally vested powers in these matters. Included in the recommended sanctions, agreed to by Judge Darby, is that she be “prohibited from holding judicial office in the future.” Our constitution does not expressly empower this Court to order such a prohibition.

I. Whether Judge Darby committed misconduct.

¶ 10. Judge Darby acknowledges that she was frequently and unnecessarily confrontational toward litigants and staff and that she treated litigants and others with whom she dealt in her official capacity in an abusive, belittling, impatient, unprofessional, and discourteous manner. She admits that her conduct in this regard violated Canon 3(B)(4) of the Code of Judicial Conduct. This Court has stated, “[w]e have made it quite clear that the power granted to judges does not license them to be disrespectful to the lawyers and citizens who appear in their courtrooms; and that judges must conduct themselves with appropriate judicial demeanor.” Mississippi Comm’n on Judicial Performance v. Smith, 78 So.3d 889, 893 (Miss.2011). Although the record is silent as to any specific instances of conduct in which Judge Darby acted toward others in a manner ill-fit for a member of the judiciary, we take Judge Darby at her word that she “lack[s] the requisite judicial temperament to serve in any judicial capacity and lacks control over her temper which affects her judgment resulting in abuse of her judicial authority.”

¶ 11. Judge Darby also acknowledges that she “wrongfully incarcerated” eight parents and three minors “without first affording such citizens basic due process rights.” One need look no further than Judge Darby’s first appearance before this Court to recognize the impropriety of her conduct. In Darby I, Judge Darby was sanctioned by this Court after she admitted that “she wrongfully impos[ed] sanctions against [a] mother for contempt of court without first affording her the due process rights required in a criminal contempt matter.” Darby I, 75 So.3d at 1041-42.

II. Whether the recommended sanction is appropriate.

¶ 12. Judge Darby’s resignation “does not foreclose the need to apply appropriate sanctions[,]” for “a judge should not be able to avoid discipline by simply resigning or voluntarily leaving office.” Mississippi Comm’n on Judicial Performance v. Bustin, 71 So.3d 598, 606 (Miss.2011). See Mississippi Comm’n on Judicial Performance v. DeLaughter, 29 So.3d 750 (Miss.2010) (judge removed from office even though he already had resigned); Osborne, 16 So.3d 16 (Miss.2009) (judge removed from office even though he already had resigned); Mississippi Comm’n on Judicial Performance v. Dodds, 680 So.2d 180 (Miss.1996) (judge removed from office even though he had not sought re-election and was no longer in office).

¶ 13. To determine the appropriate sanctions, this Court examines six factors:

(1) the length and character of the judge’s public service; (2) whether there is any prior caselaw on point; (3) the magnitude of the offense and the harm suffered; (4) whether the misconduct is an isolated incident or evidences a pattern of misconduct; (5) whether moral turpitude was involved; and (6) the presence or absence of mitigating or aggravating circumstances.

Smith, 78 So.3d at 893 (citing Mississippi Comm’n on Judicial Performance v. Gibson, 883 So.2d 1155, 1158 (Miss.2004), overruled in part on other grounds by Mississippi Comm’n on Judicial Performance v. Boone, 60 So.3d 172, 177 (Miss.2011)), modified in part by Skinner, 119 So.3d at 306. Recently, in Skinner, this Court modified the “moral turpitude” factor and now considers “the extent to which the conduct was willful, and the extent to which the conduct exploited the judge’s position to satisfy his or her personal desires or was intended to deprive the public of assets or funds rightfully belonging to it.” Skinner, 119 So.3d at 306.

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

¶ 14. In Darby I, this Court noted, Judge Darby was appointed to serve as Family Master/Youth Court Judge for the Third Chancery Court District in the fall of 2007. She hears all involuntary commitment actions, as well as youth-court matters, including the Tate County Juvenile Drug Court. She is a member and past board member of the Tate County Rotary Club. She serves as a trustee of the Senatobia Municipal School District endowment for education. She is a member of the Sardis Church of Christ.

Darby I, 75 So.3d at 1043. Following the Commission’s initiation of the inquiry in the present case (and her suspension from the bench as a result of the “No Confidence Resolution”), Judge Darby resigned her position. See Mississippi Comm’n on Judicial Performance v. DeLaughter, 29 So.3d 750, 755 (Miss.2010) (“In accordance with our precedent, DeLaughter’s resignation is of no effect as regards sanctions by the Court.”)

2. Whether there is any prior caselaw on point.

¶ 15. As the Commission noted in its brief, “[tjhere are no cases on record in this [SJtate ... wherein the judge admits that he or she should be removed from office and prohibited from seeking judicial office in the future.” The Commission’s brief also recognizes that “no judge has ever admitted that he or she lacks the requisite judicial temperament to serve in any judicial capacity and lacks control over his or her temper which affects their judgment resulting in abuse of their judicial authority.” No evidence having been submitted contrary to Judge Darby’s belief that she is unfit to hold judicial office now or in the future, we accept that as a fact.

¶ 16. However, we disagree with the absence of a fine in the joint recommendation. In Smith, this Court found Judge Smith was “confrontational and discourteous” to two attorneys and a bail bondsman in his courtroom. Smith, 78 So.3d at 892. As a result of that misconduct, coupled with his abuse of the contempt process, this Court ordered that Judge Smith be publicly reprimanded, fined $1,000, and assessed costs of $100.

¶ 17. In Darby I, this Court ordered that Judge Darby “be publicly reprimanded, fined $500, and assessed costs of $100” for one instance of depriving a parent of her constitutional right of due process. Darby I, 75 So.3d at 1044. In the instant case, Judge Darby has admitted to unlawfully incarcerating eleven citizens (including three minors) without affording them due process.

3. The magnitude of the offense and the harm suffered

¶ 18. Judge Darby’s actions were “serious, given the deprivation of liberty in this matter.” Id. at 1044. Her conduct had a negative impact on the lives of the eleven citizens she wrongfully incarcerated.

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

¶ 19. Judge Darby’s actions constitute repeated misconduct. She has been before this Court before for similar misconduct. Additionally, the present case presents eleven instances in which Judge Darby admits that she wrongfully incarcerated citizens without affording them basic due-process rights. See Mississippi Comm’n on Judicial Performance v. Bradford, 18 So.3d 251, 256 (Miss.2009) (“Although Judge Bradford does not have a disciplinary history with the Commission, he has evidenced a pattern of conduct based on the ten violations cited within the complaint.”)

5. The extent to which the conduct was willful, and the extent to which the conduct exploited the judge’s position to satisfy his or her personal desires or was intended to deprive the public of assets or funds rightfully belonging to it.

¶ 20. Judge Darby’s actions in this case were willful, as she deliberately and unlawfully incarcerated eleven citizens without affording them due process. Her admitted lack of proper judicial temperament does not make her actions any less willful. However, the record contains no evidence that she engaged in improper conduct in order to “satisfy ... her personal desires or ... intended to deprive the public of assets or funds rightfully belonging to it.” Skinner, 119 So.3d at 306.

6. The presence or absence of mitigating or aggravating circumstances

¶21. This Court consistently has recognized that mitigating circumstances exist when a judge acknowledges his or her errors, which Judge Darby did in this case by entering into the “Agreed Statement of Facts and Proposed Recommendation” with the Commission. See, e.g., Darby I, 75 So.3d at 1044; Skinner, 119 So.3d at 307; Smith, 78 So.3d at 895. However, aggravating factors also exist in this case, as Judge Darby’s inappropriate actions resulted in the Tate County Board of Supervisors passing a “No Confidence Resolution” regarding her. Judge Darby’s misconduct is further compounded by her admission that she lacks the requisite judicial temperament to serve in any judicial capacity.

CONCLUSION

¶ 22. Judge Darby’s conduct violated Canons 1, 2(A), 3(B)(2), 3(B)(4), and 3(B)(8) of the Mississippi Code of Judicial Conduct and Section 177A of the Mississippi Constitution. We order that Judge Darby be removed from office, fined $1,000, and assessed costs of $200.

¶ 23. TATE COUNTY YOUTH COURT JUDGE LEIGH ANN DARBY SHALL BE REMOVED FROM OFFICE, FINED $1,000, AND ASSESSED COSTS OF $200.

' WALLER, C.J., KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ„ CONCUR. DICKINSON, P.J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS AND COLEMAN, JJ. LAMAR, J., NOT PARTICIPATING.

DICKINSON, Presiding Justice,

specially concurring:

¶ 24. The Commission on Judicial Performance recommended that the sanctions against Judge Darby include prohibiting her from holding any future judicial office. In explaining why the prohibition is not included in the sanctions we order today, we pointed out that neither this Court nor the Commission on Judicial Performance has the authority to impose a sanction that prohibits a person from seeking and holding a judicial office in the future.

¶ 25. In my view, no more need be said on the matter for purposes of adjudicating this case. But the Commission requested that we gratuitously note that the Legislature has provided that a removed judge is “ineligible for judicial office.” See Miss. Code Ann. § 9-19-17 (Rev.2002). The majority complied with the request by including footnote seven.

¶ 26. While I believe citing the statute is unnecessary because it is unrelated to the case before us, I do not conclude that anything stated in footnote seven is inaccurate, so I have joined the majority in full. But I also believe that including the statute’s citation in our opinion — without any analysis or comment — could be misleading; so I write this special concurrence to point out that including the statute’s citation at the Commission’s request in no way adjudicates the constitutionality of the statute, nor does it address whether the Legislature has any authority to disqualify or prohibit a person who meets constitutional qualifications for a judicial office from running for that office. That issue has never been raised or decided in any case in this state, including the one before us today.

KITCHENS AND COLEMAN, JJ., JOIN THIS OPINION.

      . Subsequently, another judge found the minors not guilty of the charges.

      . Canon 1 of the Code of Judicial Conduct provides, in pertinent part, that "[a] judge should participate in establishing, maintaining, and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved.”

      . Canon 2(A) of the Code of Judicial Conduct provides that "[a] judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary-”

      . Canon 3(B)(2) of the Code of Judicial Conduct provides that "[a] judge shall be faithful to the law and maintain professional competence in it. A judge shall not be swayed by partisan interests, public clamor, or fear of criticism.”

      . Canon 3(B)(4) of the Code of Judicial Conduct provides, in pertinent part, that "01udges shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom they deal in their official capacities. ...”

      . Canon 3(B)(8) of the Code of Judicial Conduct provides that “[a] judge shall dispose of all judicial matters promptly, efficiently and fairly.”

      . We ordered that the parties file supplemental briefs addressing this Court’s authority to prohibit a removed judge from holding judicial office in the future. In its supplemental brief, the Commission acknowledged that this Court lacks the constitutional authority to impose such a sanction, but requested that we note that the Legislature has provided that a removed judge is "ineligible for judicial office.” See Miss.Code Ann. § 9-19-17 (Rev. 2002).