author: KING, Justice,

text:
    HARRISON COUNTY COMMERCIAL LOT, LLC v. H. GORDON MYRICK, INC. and H. Gordon Myrick, Jr., Individually Harrison County Commercial Lot, LLC v. H. Gordon Myrick, Inc. and H. Gordon Myrick, Jr.
    Nos. 2010-CA-01865-SCT, 2010-CA-01891-SCT.
    Supreme Court of Mississippi.
    Jan. 31, 2013.

      Stephen Giles Peresich, Randi Peresich Mueller, Johanna Malbrough McMullan, attorneys for appellant.
    Christopher Solop, Brenda Tanner Red-fern, Lynn Patton Thompson, attorneys for appellees.
    Before DICKINSON, P. J., CHANDLER and KING, JJ.
   KING, Justice,

for the Court:

¶ 1. H. Gordon Myrick, Inc. (Myrick) contracted with Harrison County Commercial Lot (HCCL) to build HCCL an executive office building. The parties’ contract contained an arbitration provision, which excluded aesthetic-effect claims from arbitration. This case concerns which, if any, of the parties’ claims are subject to arbitration. The trial court determined that the arbitration agreement was valid and ordered arbitration on designated, no-naesthetic claims. Aggrieved, HCCL appeals and Myrick cross-appeals.

¶ 2. HCCL contends that all of its claims are related to aesthetic effect and, thus, not subject to arbitration. HCCL also challenges the validity of the arbitration agreement, which claims are subject to arbitration, and the trial court’s ruling on several of its motions. Myrick raises three claims on cross-appeal: whether HCCL waived its right to litigate aesthetic-effect claims, whether the trial court erred by accepting HCCL’s untimely aesthetic-effect-claim submission, and whether the trial court erred by not ordering all claims to arbitration.

¶ 3. We find that the parties’ claims are without merit. But it is difficult to determine why the trial court ordered certain punch-list items to arbitration and others not. Thus, we remand to the trial court to provide further explanation on the punch-list items alone.

FACTS AND PROCEDURAL HISTORY

¶ 4. HCCL is an owner and developer of commercial buildings, and Myrick is a contractor. On March 26, 2008, the parties contracted for Myrick to build HCCL an executive — office building — the Cain Office Building — in Gulfport, Mississippi. The parties used a standard construction contract created by the American Institute of Architects (AIA) and amended the document to suit their needs. The contract contained provisions regarding mediation and arbitration of certain disputes.

¶ 5. Construction commenced in April 2008, and, by 2009, HCCL was unhappy with Myrick’s choice of project manager and Myrick’s failure to complete the project on time. On May 1, 2009, Myrick declared the building substantially complete. On May 4, 2009, HCCL, unsatisfied with the building’s appearance, submitted punch-list items for Myrick to correct. But, four days later, HCCL terminated Myrick and retained a new contractor to finish the project.

¶ 6. Thereafter, Myrick filed a construction lien against HCCL. In a letter to HCCL, Myrick agreed to mediate claims regarding the punch-list items, but demanded HCCL pay its outstanding balance. HCCL refused to remit payment, requested Myrick to cancel the lien, and expressed its desire to resolve the dispute through mediation. Unsatisfied with HCCL’s response, Myrick filed concurrently a mediation request and a demand for arbitration with the American Arbitration Association on June 16, 2009. And, before mediation occurred, Myrick filed a motion to compel arbitration in the Harrison County Circuit Court.

¶ 7. Mediation occurred in August 2009 and was unsuccessful. On August 31, 2009, HCCL moved to dismiss Myrick’s previously filed motion to compel arbitration, arguing that Myrick had filed its motion prematurely and thus had waived its right to arbitrate. Then, on September 1, 2009, HCCL filed a separate breach-of-contract action against Myrick in the Harrison County Circuit Court and alleged-the following claims/relief: removal of wrongful construction lien, slander of title, removal of cloud on title, abuse of legal process, breach of contract, negligence, fraud and intentional misrepresentation, negligent misrepresentation, breach of duty of good faith and fair dealing, accounting, and an injunction regarding arbitration. Myrick moved to dismiss HCCL’s complaint and to compel arbitration.

¶ 8. On January 8, 2010, the trial court entered an order which determined that the parties’ contract included a valid, enforceable arbitration agreement. The trial court reserved its ruling on which claims were subject to arbitration, stating it would determine the issue later in a summary proceeding. The trial court instructed the parties to submit a memo detailing which claims they thought were related to aesthetic effect and, thus, not subject to arbitration. The order stated that “expert testimony is not necessary” and “no discovery will be conducted prior to the hearing.”

¶ 9. Following that ruling, HCCL filed a direct appeal and an interlocutory appeal to this Court. Myrick filed a motion to dismiss HCCL’s appeals, arguing that the trial court’s order failed to dispose of all issues. On March 4, 2010, this Court dismissed HCCL’s appeals and remanded the case to the trial court for further proceedings.

¶ 10. While HCCL’s appeals were pending, Myrick filed its aesthetic-claims submission — the affidavit of Lee R. Con-nell, a registered architect — on February 4, 2010. In his expert opinion, Connell opined that none of HCCL’s claims was related to aesthetic effect. On March 16, 2010, HCCL filed its submission. HCCL also filed the affidavits of Starann Lamier, its chief operating officer, and Louis Ang-lada and Kempton Batía, who were hired to complete the work. HCCL claimed that all of its claims were related to aesthetic effect and, thus, not subject to arbitration. Both parties moved to strike the others’ submissions — Myrick’s for improper expert testimony and HCCL’s for being late. The trial court denied both motions.

¶ 11. Following oral argument, the trial court ruled that some of HCCL’s punch-list items were aesthetic and, thus, would be submitted to a jury. The trial court’s order stated that items not listed were subject to arbitration. Aggrieved, HCCL appeals, and Myrick cross-appeals the trial court’s order.

ANALYSIS

¶ 12. A grant or denial of a motion to compel arbitration is reviewed de novo. Cmty. Bank of Miss. v. Stuckey, 52 So.3d 1179, 1181 (¶ 12) (Miss.2010). Mississippi law, like federal law, favors the enforcement of valid arbitration agreements. Smith Barney, Inc. v. Henry, 775 So.2d 722, 724 (118) (Miss.2001). Accordingly, the Federal Arbitration Act (FAA) provides that agreements to arbitrate “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” East Ford, Inc. v. Taylor, 826 So.2d 709, 713 (¶ 11) (Miss.2002) (citing 9 U.S.C. § 2). Thus, “any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.” Id. (citation omitted).

¶ 13. The Court does not review the merits of the underlying claim. Smith Barney, 775 So.2d at 725 (¶ 9). Under the Federal Arbitration Act, the Court employs a two-part test: (1) “whether the parties intended to arbitrate the dispute,” and (2) “whether legal constraints external to the parties’ agreement foreclosed the arbitration of those claims.” Scruggs v. Wyatt, 60 So.3d 758, 766 (¶ 17) (Miss.2011); see also East Ford, 826 So.2d at 713 (¶¶ 9-10). The first prong has two considerations: (1) whether there is a valid arbitration agreement, and (2) whether the parties’ disputes fall within the scope of that agreement. Id. Because arbitration is a matter of contract, the parties cannot be required to arbitrate any disputes which they did not agree to do so. Scruggs, 60 So.3d at 767 (1120).

I. Validity of the Arbitration Agreement

¶ 14. The trial court found that the arbitration agreement was valid and enforceable. HCCL argues that the arbitration agreement is not valid because it fails to include an express waiver of its right to a jury trial. HCCL also contends that the contract is ambiguous, providing for both arbitration and the institution of legal or equitable proceedings. Conversely, Myr-ick maintains that the arbitration agreement is unambiguous, binding, and enforceable.

A. Ambiguity

¶ 15. “The mere fact that the parties disagree about the meaning of a provision of a contract does not make the contract ambiguous as a matter of law.” Delta Pride Catfish, Inc. v. Home Ins. Co., 697 So.2d 400 (Miss.1997). When determining whether a valid arbitration agreement exists, we employ ordinary principles of contract law. Terminix Int’l, Inc. v. Rice, 904 So.2d 1051, 1055 (¶ 9) (Miss.2004). One principle instructs courts that, in determining whether a contract is ambiguous, they must review the document as a whole. Cherokee Ins. Co. v. Babin, 37 So.3d 45, 48 (¶8) (Miss.2010). If the contract is not ambiguous, the court should “accept the plain meaning of a contract as the intent of the parties.... ” Ferrara v. Walters, 919 So.2d 876, 882 (¶13) (Miss.2005). Typically, we construe ambiguities against the drafter of the contract. Gulf Ins. Co. v. Neel-Schaffer, Inc., 904 So.2d 1036, 1049 (¶ 44) (Miss.2004). But in the case of arbitration, that doctrine “must succumb to the federal policy” “to construe ambiguities concerning the scope of arbi-trability in favor of arbitration.” Id. at 1049-50 (¶¶ 44-45). We address two issues of ambiguity: whether the parties intended to arbitrate and what exactly is “aesthetic effect.” The latter will' be discussed in section five below. Reviewing the contract as a whole, the Court finds no ambiguity regarding whether the parties intended to arbitrate.

¶ 16. The parties’ contract provides for the resolution of claims and disputes. First, the parties must mediate:

4.5.1 Any Claim arising out of or related to the Contract, except Claims relating to aesthetic effect and except those waived ... shall, be subject to mediation as a condition precedent to arbitration or the institution of legal or equitable proceedings by either party.

Then, the parties must arbitrate:

4.6.1 Any Claim arising out of or related to the Contract, except Claims relating to aesthetic effect and except those waived ... shall, after decision by the Owner or 30 days after submission of the Claim to the Owner, be subject to arbitration. Prior to arbitration, the parties shall endeavor to resolve disputes by mediation in accordance with the provisions of Paragraph 4.5.
4.6.2 Claims not resolved by mediation shall be decided by arbitration....

¶ 17. HCCL contends that the language in section 4.5.1 — that “mediation [is] a condition precedent to arbitration or the institution of legal or equitable proceedings”— does not reflect a clear intent to arbitrate. HCCL claims that the disjunctive “or” allows it to choose whether to arbitrate or to litigate its claims, therein creating ambiguity. Conversely, Myriek states that a review of the contract as a whole shows no ambiguity. We agree.

¶ 18. Reviewing the contract as a whole, the arbitration agreement is not ambiguous. Section 4.5 provides mediation as a method of alternative dispute resolution for those claims subject to arbitration and those claims which are not. Sections 4.6.1 and 4.6.2, which directly address arbitration, state clearly that mediation is a condition precedent to arbitration, and arbitration is the sole method of dispute resolution for all claims, except those related to aesthetic effect. The language in section 4.5 (mediation) is consistent with the parties’ agreement to arbitrate. Thus, no ambiguity exists regarding whether the parties intended to arbitrate. HCCL’s argument is without merit.

B. Right to a Jury Trial

¶ 19. Next, HCCL complains that the arbitration agreement failed to include an express waiver of its right to a jury trial; thus, it is invalid. Myrick counters that there is no such requirement.

¶20. Mississippi Code Sections 11 — 15— 101 to 11-15-148 address arbitration agreements in construction contracts. The statutes provide, in pertinent part, that:

Two (2) or more parties referred to in Section 11-15-101 may agree in writing to submit to arbitration any controversy existing between them at the time of the agreement, or they may include in a written contract a provision for the settlement by arbitration of any controversy thereafter arising between them relating to such contract or the failure or refusal to perform the whole or any part thereof. Such agreement or provision shall be valid, enforceable and irrevocable without regard to the justiciable character of the controversy.

Miss.Code Ann. § 11-15-103 (Rev.2003). The arbitration provision in question provides that “[a]ny Claim arising out of or related to the Contract, except Claims relating to aesthetic effect and except those waived ... shall ... be subject to arbitration.” HCCL claims that the provision must provide an express waiver of a jury trial, but caselaw does not support its position.

¶ 21. HCCL cites two cases in support of its position, but its reliance on these cases is misplaced. In B.C. Rogers Poultry, Inc. v. Wedgeworth, the Court addressed whether an arbitration agreement applied retroactively to disputes arising from previous contracts which did not contain arbitration provisions. B.C. Rogers Poultry, Inc. v. Wedgeworth, 911 So.2d 483 (Miss.2005). The Court stated, “[t]his Court remains unconvinced, as the law requires, that Wedgeworth knowingly, intelligently, and voluntarily waived his fundamental right to a jury trial, when all contracts in effect at the time of the alleged tortious conduct ... failed to contain arbitration clauses.” Id. at 487 (¶ 10). The circumstances of B.C. Rogers simply are not applicable to this case.

¶ 22. In Pre-Paid Legal Services, the Court decided whether language contained in a pre-paid, legal-services plan constituted a binding agreement to arbitrate. Prepaid Legal Servs., Inc. v. Battle, 873 So.2d 79 (Miss.2004). The provision stated:

K. Settlement of Disputes: In the event of a dispute, the parties will agree on an impartial attorney who will decide such dispute and that decision will be binding on all parties to such dispute.

Id. at 81 (¶ 3). Also, the document did not require the plaintiffs’ signatures. Id. The Court found that this language was insufficient to create a binding arbitration agreement, reasoning:

[H]ere there was no notice, no discussion, and no negotiation of the arbitration agreement. Further, based upon the language in this clause, we do not find that an average citizen would realize that he or she is giving up his or her right to a trial by jury under the broad, general language contained in the prepaid legal expense agreement.

Id. at 84 (¶ 15). Further, the Court found that the agreement was ambiguous because it also contemplated litigation. Id. at 84 (¶ 16). Thus, the Court affirmed partial summary judgment in favor of the plaintiffs and remanded to the trial court for further proceedings. Id. at 84 (¶¶ 18-19).

¶ 23. Unlike the provision in Pre-Paid Legal Services, the arbitration provision in HCCL’s and Myrick’s contract is clear and unambiguous. In Harry Baker Smith Architects II, PLLC v. Sea Breeze I, LLC, those parties utilized a similar arbitration provision, and the Court of Appeals found that the provision articulated clearly the parties’ agreement to arbitrate. Harry Baker Smith Architects, 83 So.3d 395, 398 (¶ 11) (Miss.Ct.App.2011). Also, despite HCCL’s claim that it did not intend to waive its right to a jury trial, the parties clearly negotiated the contract. Lamier, on behalf of HCCL, negotiated the contract, sometimes initialing deletions and additions to the contract. HCCL is a sophisticated business, not “an average citizen.” Thus, HCCL should have been aware of the consequences of the arbitration agreement which it negotiated.

¶ 24. No caselaw suggests that, to be valid, an arbitration agreement must include an express statement which waives the right to a jury trial. In contrast, this Court has stated that:

[T]he Constitution does not “confer the right to a trial, but only .the right to have a jury hear the case once it is determined that the litigation should proceed before a court. If the claims are properly before an arbitral forum pursuant to an arbitration agreement, the jury trial right vanishes.”

McKenzie Check Advance of Miss., LLC v. Hardy, 866 So.2d 446, 455 (¶ 30) (Miss.2004) (citations omitted). Section 11 — 15— 103 requires only a written agreement to arbitrate. The language in the contract is an express, written agreement between the parties to arbitrate claims arising out of the contract, except those related to aesthetic effect. Thus, we find that HCCL’s argument is without merit.

II. Motion to Dismiss

¶ 25. The Court reviews a motion to dismiss de novo. Loggers, LLC v. 1 Up Technologies, LLC, 50 So.3d 992, 993 (¶ 4) (Miss.2011). HCCL argues that Myr-iek waived its right to arbitrate by filing suit, and the trial court erred by denying its motion to dismiss on this ground. Myr-ick counters that it did not waive its right to arbitrate by filing a motion to compel arbitration, and its motion was filed properly.

¶ 26. On June 16, 2009, Myrick simultaneously filed a request for mediation and a demand for arbitration. By letter dated July 1, 2009, HCCL opined that its claims were not subject to arbitration. Based on other correspondences between the parties, the parties were clearly at odds and reluctant to comply with the arbitration agreement. On July 17, 2009, prior to mediation, Myrick filed its motion to compel arbitration.

¶ 27. HCCL contends that the trial court should have dismissed Myrick’s “suit” for failure to fulfill a condition precedent to litigation — mediation. Myrick argues that it simply filed a demand for arbitration, which does not violate the arbitration agreement. The caselaw upon which HCCL relies addresses statutory, presuit notice requirements for medical-malpractice suits. See Miss.Code Ann. § 15-1-36 (Rev.2012); see also Thomas v. Warden, 999 So.2d 842, 845-47 (Miss.2008) (dismissing for failure to fulfill presuit notice requirement); and Price v. Clark, 21 So.3d 509 (Miss.2009). Those cases are not applicable here.

¶ 28. The record shows that both parties were reluctant to comply with their mediation/arbitration agreement. Section 11-15-105 gives parties permission to file a motion to compel arbitration:

Amy party to an agreement or provision for arbitration subject to sections 11 — 15— 101 through 11-15-143 claiming the neglect or refusal of another party thereto to comply therewith may make application to the court as described in sections 11-15-133 and 11-15-135 for an order directing the parties to proceed with arbitration in accordance with the terms of such agreement or provision. If the court finds that no substantial issue exists as to the making of the agreement or provision, it shall grant the application. If the court shall find that a substantial issue is raised as to the making of the agreement or provision, it shall summarily hear and determine such issue and shall, consistent with such determination, grant or deny the application.

Miss.Code Ann. § 11-15-105(1) (Rev.2004). Based on Section 11-15-105(1), the motion to compel arbitration was proper. The trial court properly denied HCCL’s motion to dismiss; thus, we find this issue is without merit.

III. Waiver

A. HCCL: Right to Arbitrate

¶ 29. HCCL also maintains that Myrick waived its right to arbitrate by filing its complaint prior to mediation and arbitration. A party may waive the right to compel arbitration where it actively participates in litigation or takes other actions inconsistent with the right to compel arbitration which substantially invoke the judicial process to the detriment or prejudice of the other party. In re Tyco Int'l (US) Inc., 917 So.2d 773, 779-80 (¶¶ 27-28) (Miss.2005). But Myrick filed a motion to compel arbitration, not a lawsuit on the merits.

¶ 30. “Parties seeking to enforce arbitration are to file a [motion to compel arbitration] immediately upon discovery that the controversy or suit is subject to an arbitration agreement.” Century 21 Maselle and Assocs., Inc. v. Smith, 965 So.2d 1031, 1038 (¶ 10) (Miss.2007) (simultaneous request for a jury trial and a motion to compel arbitration did not waive arbitration). The idea that Myrick waived its right to arbitrate by filing a motion to compel arbitration is illogical.

¶ 31. As previously stated, Section 11-15-105(1) specifically allows a party to file a motion to compel arbitration if the opposing party neglects or refuses to comply. Miss.Code Ann. § 11-15-105(1) (Rev.2004). HCCL argues that Myrick’s motion to compel arbitration went beyond a simple demand for arbitration. But the record does not support its assertion. The trial court properly rejected HCCL’s waiver argument; thus, we find that this issue is without merit.

B. Myrick: Right to Litigate

¶ 32. On cross-appeal, Myrick claims that HCCL waived its right to litigate its aesthetic-effect claims by including those claims in mediation. HCCL counters that there is no contract provision which prevents the parties from mediating aesthetic-effect claims, and its good-faith attempt to mediate those claims does not constitute waiver.

¶ 38. Myrick fails to cite any authority in support of its position. It is the appellant’s duty to cite authority in support of its position, and the Court considers unsupported assignments of error to be abandoned. Jones v. Howell, 827 So.2d 691, 702 (¶ 40) (Miss.2002). Because Myr-ick fails to cite any authority in support of its position, the argument is barred from review.

IV. Motions to Strike

¶ 34. Both parties moved to strike the other’s submissions. Myrick moved to strike HCCL’s aesthetic-effect submission because it was late. And HCCL moved to strike Connell’s expert affidavit as improper expert testimony.

A. Aesthetic-Effect Submission

¶ 35. Myrick argues that the trial court erred by denying its motion to strike HCCL’s aesthetic-effect submission for being late. Conversely, HCCL contends that its filing of an interlocutory appeal and direct appeal to this Court was good cause for its late submission, and the trial court properly denied Myrick’s motion to strike. In response, Myrick urges that HCCL should have filed a stay pending appeal and/or requested an extension of time.

¶ 36. On January 8, 2010, the trial court entered an order denying HCCL’s motion for continuance and motion to dismiss but granting Myrick’s motion to compel arbitration. The trial court detailed a timeline for aesthetic-effect-claim submissions. It ordered HCCL to submit its list by January 29, 2010, and ordered Myrick to file its response by February 12, 2010. HCCL filed an interlocutory appeal and direct appeal from this order on January 27, 2010. The Court dismissed HCCL’s appeals on March 9, 2010. Later that month, HCCL filed its aesthetic-effect submission.

¶ 37. Myrick relies on Bowie v. Montfort Jones Memorial Hospital, 861 So.2d 1037 (Miss.2003), to support its position. In Bowie, the court stated:

Our trial judges are afforded considerable discretion in managing the pretrial discoverg process in their courts, including the entry of scheduling orders setting out various deadlines to assure orderly pre-trial preparation resulting in timely disposition of the cases. Our trial judges also have a right to expect compliance with their orders, and when parties and/or attorneys fail to adhere to the provisions of these orders, they should be prepared to do so at their own peril.

Bowie, 861 So.2d at 1042 (¶ 14) (trial court, in its discretion, granted summary judgment where plaintiff failed to timely designate an expert). And Myrick cited this language in its brief. After considering the arguments of both parties, we find that nothing in the record indicates that the trial court abused its discretion by accepting HCCL’s aesthetic-effect submission. This issue is without merit.

B. Expert Affidavit

¶ 38. We review the trial court’s admission or exclusion of evidence for an abuse of discretion. Smith ex rel. Smith v. Clement, 983 So.2d 285, 288 (¶ 11) (Miss.2008). HCCL argues that the trial court erred by denying its motion to dismiss Connell’s affidavit, which it claims provided an improper legal opinion on the terms of the contract. According to HCCL, the trial court initially ruled that expert opinions would not be accepted, and it was not allowed to cross-examine Con-nell or to submit a rebuttal expert report.

¶ 39. The trial court found that a valid arbitration agreement existed between the parties and reserved its ruling on which claims were subject to arbitration. The trial court ordered the parties to submit a memo detailing which claims they thought were related to aesthetic effect. The order provided that “[t]he Court finds expert testimony is not necessary for purposes of this hearing. Accordingly, no discovery will be conducted prior to the hearing.” (Emphasis added.)

¶40. Myrick submitted Connell’s affidavit as its aesthetic-effect submission. Connell opined that, based on his experience in the construction industry, none of HCCL’s claims was related to aesthetic effect and, thus, all were subject to arbitration. Later, HCCL submitted its aesthetic-effect claims along with affidavits. In one affidavit, Lamier stated which claims she thought were related to aesthetic effect.

¶ 41. Arbitration agreements are contractual in nature; thus, parties will not be required to arbitrate matters which they did not consent to arbitrate. Scruggs v. Wyatt, 60 So.3d 758, 767 (¶20) (Miss.2011). HCCL argues that Connell’s affidavit was improper expert testimony, which cannot be used to defeat its position on a question of law — which claims are subject to arbitration. But because HCCL failed to provide any rebuttal, and the trial court did not rely on Connell’s affidavit to reach its judgment, error, if any, is harmless.

¶42. The trial court did not preclude expert opinions, but it deemed that expert opinions were not necessary. At a December 10, 2009, hearing, Myrick offered to call Connell. The trial court responded that it did not intend to hear experts that day because HCCL should have an opportunity to prepare for that testimony and call a rebuttal expert. The trial court gave HCCL an opportunity to respond, and HCCL’s counsel contemplated retaining its own expert. The next hearing was held on September 30, 2010, and, by that time, HCCL had not filed any expert affidavit. The trial court did not preclude HCCL from challenging Connell’s affidavit. Contrary to HCCL’s position, the trial court did allow it an opportunity to rebut Con-nell’s affidavit.

¶ 43. “[Wjhere error involves the admission or exclusion of evidence, this Court ‘will not reverse unless the error adversely affects a substantial right of a party.’ ” Haggerty v. Foster, 838 So.2d 948, 958 (¶ 25) (Miss.2002) (citation omitted). HCCL fails to show how it was prejudiced by Myrick’s filing. Connell’s “expert opinion” is nothing more than a baseless recitation of Myrick’s position— that none of the claims is aesthetic. The record indicates that, in making its decision, the trial court placed relatively little to no emphasis on Connell’s affidavit, stating:

That’s the affidavit of — ...—Lee Con-nell that basically just says all of the plaintiff’s claims are structural?.... Non-aesthetic? ... All right. I don’t know how that assists the Court, but all right.

The trial court neither mentions the substance of Connell’s affidavit in its order nor follows Connell’s opinion. Based on the foregoing, we find that error, if any, is harmless.

V. Scope of Arbitration

¶ 44. After the arbitration agreement is determined to be valid, the Court must determine whether the parties’ claims fall within the scope of the arbitration agreement. The Court must “focus on factual allegations in the complaint rather than the legal causes of action asserted. If the allegations underlying those claims ‘touch matters’ covered by the parties’ ... agreements, then those claims must be arbitrated, whatever the legal labels attached to them.” Scruggs, 60 So.3d at 765 (¶ 16) (quoting Waste Mgmt., Inc. v. Residuos Industriales Multiquim, S.A., 372 F.3d 339, 344 (5th Cir.2004)). “[A]ny doubts concerning the scope of arbitrable issues should be resolved in favor arbitration.” East Ford, 826 So.2d at 713 (¶ 11). Some parties reserve the right to litigate particular claims, and this Court has enforced those contracts. See Fradella v. Seaberry, 952 So.2d 165, 170-72 (¶¶ 15-20) (Miss.2007).

¶ 45. Under the agreement, “[a]ny Claim arising out of or related to the Contract, except Claims relating to aesthetic effect ... shall ... be subject to arbitration.” In its order, the trial court designated which claims were aesthetic, or not subject to arbitration. The trial court further explained that “[a]ll other items in dispute and not identified above as aesthetic are subject to binding arbitration....” (Emphasis added.) HCCL maintains that all of its claims are related to aesthetic effect, and the trial court erred by ordering arbitration. On cross-appeal, Myrick complains that the trial court should have ordered arbitration on all claims.

¶ 46. “Aesthetic effect” is not a legal term. It is a term often used in the construction industry. And “aesthetic effect,” as used in construction contracts, should be defined on a case-by-case basis. Other jurisdictions have explored the issue and, for example only, we discuss those cases below.

¶ 47. The Arkansas Supreme Court has defined “aesthetic” as “pertaining to a sense of the beautiful or to the science of aesthetics.” May Constr. Co., Inc. v. Benton Sch. Dist., 320 Ark. 147, 895 S.W.2d 521, 523 (1995) (citing The Random House Dictionary of the English Language (2d ed.1987)). In May, a school district sued a contractor for negligence and breach of warranties regarding a concrete floor, and the contractor filed a motion to compel arbitration. May, 895 S.W.2d at 522. The school district complained that the contractor improperly had used a substitute sealing which made the floor sticky and caused gross, unsightly scuff marks. Id. The court found that the claims were not arbi-trable:

If the appearance of the concrete floors was not “totally unacceptable” as the plaintiff contends, then there would be no claim. Granted, the plaintiffs complaint refers to May Construction’s negligently supplying a defective product and breach of warranties. However, if the aesthetic effect of the floors was not unacceptable, the product would not be defective and the warranties would not be breached.

Id. at 523. The court in Flandreau Public School District v. G.A. Johnson Construction, Inc., 701 N.W.2d 430 (S.D.2005), relied on this same principle.

¶ 48. In Flandreau, the school district alleged that the contractor had used substandard materials and exhibited poor workmanship when it constructed the school’s interior walls. Flandreau, 701 N.W.2d at 432-33. The contractor filed a motion to compel arbitration, which the court denied. Id. Relying on May, the Flandreau court found that:

[A] review of Flandreau’s complaint and the undisputed facts reveal' that Johnson’s issues of “breach of contract” and “failure to comply with industry standards” are nothing more than the underlying reasons why Flandreau has an aesthetic claim. Paragraph nine of the complaint reflects that the claim relates to the “finish of the interior.” Furthermore, paragraph seventeen only-sought damages for the “appearance of plaintiffs building.” Therefore, this claim was plainly one for the aesthetic effect of Johnson’s work.

Id. at 438. Because Flandreau’s claims related to aesthetic effect, the court found that the claims were not arbitrable. Id. at 438-39.

¶ 49. Because, here, some claims relate to aesthetics and some do not, HCCL’s case is not as easy to determine as May and Flandreau. HCCL raised sixteen counts in its complaint. For the sake of clarity, we address each claim one-by-one.

A. HCCL’s Complaint

Count I—Removal of Wrongful Construction Lien

¶ 50. Because HCCL allegedly failed to pay Myrick, Myrick filed a construction lien against HCCL. The trial court did not mention this claim in its order and thus, by effect, ordered this claim to arbitration. HCCL argues that its refusal to pay is based on the building’s unsatisfactory appearance, so the claims are related to aesthetic effect and not subject to arbitration. We disagree.

¶ 51. The claim stems directly from Myrick’s construction lien filed for nonpayment. We decline to stretch the narrow, aesthetic-effect exception to include this claim. The trial court properly ordered the claim to arbitration.

Count II—Slander of Title and Motion for Injunctive Relief

Count III—Removal of Cloud on Title

Count IV—Abuse of Legal Process in Filing Lien

¶ 52. In count two, HCCL claimed “[t]he willful and malicious filing of the Notice of Construction Lien on May 27, 2009, constitutes a slander of title against HCCL.” HCCL makes similar claims in counts three and four. Once again, these claims relate directly to Myrick’s construction lien. Thus, the trial court properly ordered these claims to arbitration.

Count V—Breach of Contract

¶ 53. HCCL lodges various complaints in its breach-of-contract claim. Given the general definition of the term, some claims arguably are related to aesthetic effect—performing the work in a sloppy, defective, and/or unworkmanlike manner and failing to submit a comprehensive list of items to be completed. But several other complaints are not related to aesth1 etic effect—wrongfully filing a construction lien, making unauthorized changes to the work, failing to complete the work in a timely manner, submitting inflated and/or incorrect payment applications, failing to use Mike Penny as project manager, and failing to replace Scott Oliver with H. Gordon Myrick Jr. as project manager. The trial court properly ordered the latter claims to arbitration.

Count VI—Negligence

¶ 54. Like the breach-of-contract claim, some of HCCL’s negligence claims arguably are related to aesthetic effect: negligent construction and unworkmanlike construction. Others are not: failure to complete the project in a timely manner and within budget and deviating from the bid documents. The trial court properly ordered the latter claims to arbitration.

Count VII & VIII—Fraud and Intentional Misrepresentation

Count IX—Negligent Misrepresentation

¶ 55. In these counts, HCCL alleges that Myrick filed incorrect payment applications, failed to complete the project in a timely and workmanlike manner, and failed to remove Scott Oliver as project manager as promised. These claims are not related to aesthetic effect and thus are subject to arbitration.

Count X — Bad-Faith Breach of Agreement and Breach of Duty of Good Faith and Fair Dealing

¶ 56. HCCL claims that Myrick intentionally misrepresented the payments owed to it, maliciously ceased work to force HCCL to pay, and improperly filed the hen against the building. These claims are not related to aesthetic effect and thus are subject to arbitration.

Count XI — Accounting

¶ 57. To prove whether Myrick submitted false payment applications, HCCL requests an accounting from Myr-ick. This claim is not related to aesthetic effect and thus is subject to arbitration.

Count XII — Injunction to Prevent Fur- ■ ther Slander of Title

¶ 58. As previously stated, the slander-of-title issue relates directly to Myrick’s construction lien. This claim is not related to aesthetic effect and thus is subject to arbitration.

Count XIII — Injunction Regarding Arbitration

¶ 59. In this count, HCCL alleges that the arbitration provision is invalid and unenforceable. As previously discussed in Section I of this memo, the arbitration agreement is valid and enforceable. This issue is without merit.

Count XIV — Damages

¶ 60. HCCL requests damages for each of its previous counts. All requests for damages, except those related to aesthetic effect, are subject to arbitration. We specifically address HCCL’s claim for liquidated damages.

¶ 61. The contract contained a liquidated-damages clause. HCCL claims the issue relates to aesthetic effect and thus is not subject to arbitration. The liquidated-damages clause, which was added by the parties, specifically provides:

If substantial completion is not achieved by 210 days after date permit is issued, liquidated damages in the amount of $1,000 per day shall be payable by contractor to owner until such date as substantial completion is achieved ... If substantial completion is achieved before 210 calender days after permit is issued, an early completion bonus of $1,000 per day shall be paid by Owner to Contractor.

Because this claim relates to timeliness (not aesthetic .issues), the trial court properly ordered arbitration on the liquidated-damages claim. See Roosevelt Univ. v. Mayfair Constr. Co., Inc., 28 Ill.App.3d 1045, 331 N.E.2d 835, 848 (1975) (finding that a liquidation clause concerns the administration of the contract and thus is arbitrable).

B. Punch-List Items

¶ 62. As previously mentioned, HCCL submitted to the trial court a list of claims it deemed were related to aesthetic effect and thus not subject to arbitration. HCCL included the punch-list items it submitted to Myrick prior to the termination. In its order, the trial court picked which punch-list items it believed to be aesthetic and thus were not subject to arbitration. On appeal, HCCL argues that the trial court’s order is not “workable.” We agree.

¶ 63. HCCL listed each aesthetic claim by its location in or around the building. For example, HCCL listed the following issues for the “south side” of the building:

South Side
Overhead light needs paint
Left side of door no wall cover & not square
Above door needs work
Outside cove stucco is marked up
Where stucco meets wood/gutter very rough on all south side doors

In its order, the trial court accepted the following claims as aesthetic and thus not subject to arbitration:

South Side
Overhead light needs paint
Outside cove stucco is marked up
Where stucco meets wood/gutter very rough on all south side doors

Thus, the remaining two claims — “|l]eft side of door no wall cover & not square” and “[ajbove door needs work” — were subject to arbitration. The trial court’s order contains many other examples like this.

¶ 64. As previously mentioned, the Court notes one ambiguity not raised by the parties — the definition of “aesthetic effect.” The parties provided a categorical description of items not subject to arbitration (aesthetic-effect claims), but the parties failed to identify the standards to use to determine whether a claim is aesthetic. “Aesthetic effect” is a term of art, not a legal term, and it is not defined anywhere in the parties’ contract. Thus, ambiguity exists regarding what that term means and what claims it covers. To resolve this ambiguity, the trial court should have utilized the applicable rules of contract construction.

¶ 65. The Court has stated that

Whenever the terms of a contract are susceptible of more than one interpretation, or an ambiguity arises, or the intent and object of the contract cannot be ascertained from the language employed, parol evidence may be introduced to show what was in the minds of the parties at the time of making the contract.... The ambiguity may arise from words which are uncertain when applied to the subject matter of the contract.

IP Timberlands Operating Co., Ltd. v. Denmiss Corp., 726 So.2d 96, 110 (¶ 59) (Miss.1998) (citations omitted). Generally, courts look to the “four corners” of the contract to ascertain its meaning. In this case, the term “aesthetic effect” is not defined anywhere in the contract. Courts can use the plain and ordinary meaning of the term. See Dalton v. Cellular South, Inc., 20 So.3d 1227, 1232 (¶ 10) (Miss.2009). Where the language of the contract is not helpful, extrinsic evidence may be considered, such as prevailing industry standards or commonly accepted trade usage. Id.

¶ 66. Because the contract does not define “aesthetic” and there was no evidence of a prevailing industry standard or commonly accepted trade usage of the term, the trial court had only the applicable dictionary definition. The applicable dictionary definition must then be applied to each individual item to determine whether it is in the category of items excluded from arbitration. There is nothing in the record before this Court to indicate that this was done.

¶ 67. As a preliminary fact-finder, the trial court must determine which claims are arbitrable and which claims are subject to litigation. Greater Canton Ford Mercury, Inc. v. Ables, 948 So.2d 417, 422 (¶ 12) (Miss.2007). To do so, the trial court must determine the definition of “aesthetic effect” using the canons of contract construction, as aesthetic-effect claims are not subject to arbitration. The trial court determined which claims were arbitrable and which claims were subject to litigation. However, the trial court provided no reasoning for its selections during the hearing on the motion nor its order. This yielded inconsistent results in the trial court’s order.

¶ 68. The Court cannot determine what the trial court relied upon in making its decision on the punch-list items. Thus, it is impossible for this Court to determine whether the trial court erred in its judgment. As previously discussed, the trial court must determine what “aesthetic effect” encompasses.

¶ 69. Therefore, we remand this case to the trial court on the punch-list items alone and instruct the trial court to provide reasoning for its aesthetic and no-naesthetic designation of those claims.

CONCLUSION

HCCL’s Claims on Appeal

¶ 70. The arbitration agreement is valid, unambiguous, binding and enforceable, and the contract expressed a clear agreement to arbitrate. The trial court did not err by denying HCCL’s motion to dismiss Myrick’s motion to compel arbitration. By filing a motion to compel arbitration, Myr-ick did not waive its right to arbitrate. Error, if any, the trial court committed by accepting Connell’s affidavit is harmless. And HCCL’s argument that all of its claims are aesthetic and thus not subject to arbitration is without merit.

Myrick’s Claims on Cross-Appeal

¶ 71. By submitting its aesthetic claims to mediation, HCCL did not waive its right to litigate those claims following unsuccessful mediation. The trial court did not err by accepting HCCL’s tardy aesthetic-effects submission. And Myrick’s argument that all of HCCL’s claims should be subject to arbitration is without merit. Remand

¶ 72. Because it is difficult to determine why the trial court ordered certain punch-list items to arbitration and not others, we remand to the trial court to more clearly delineate which of the punch-list items are subject to arbitration and on what basis.

¶ 73. ON DIRECT APPEAL: AFFIRMED IN PART AND REMANDED. ON CROSS-APPEAL: AFFIRMED IN PART AND REMANDED.

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

      . Throughout the record, the parties refer to H. Gordon Myrick as "HGM.” We refer to the company as "Myrick” to prevent confusion.

      . In the construction industry, a "punch list” is completed by the owner and given to the builder when the project is near completion. The punch list designates items which must be completed or repaired to satisfy the terms of the construction contract.

      . According to the order, HCCL's submission was due January 29, 2010, and Myrick's submission was due February 12, 2010.

      . Myrick also filed a second affidavit by Michael Hall Penny, Myrick’s vice-president. Penny stated that HCCL’s punch-list items were not aesthetic claims. Prior to the hearing, Myrick filed a notice to call Connell as an expert. HCCL opposed the notice. Myrick filed its expert affidavit with the trial court. The trial court denied HCCL’s motion after the hearing.

      . Throughout the contract, Lamier, on behalf of HCCL, replaces the term “Architect” with the term “Owner.”

      . The arbitration provision provided that: "Claims, disputes, and other matters in question between the parties that are not resolved by mediation shall be decided by arbitration which, unless the parties mutually agree otherwise, shall be in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association.” Harry Baker Smith Architects, 83 So.3d at 398 (¶ 11).

      . Myrick also claims that HCCL’s aesthetic claims are not aesthetic at all, but regard alleged defects in construction and paving. Myrick further contends that these claims are subject to arbitration.

      . For instance, HCCL alleges that Myrick deviated from the bid regarding heating and air conditioning units.

      . For instance, HCCL listed a complaint as "handles missing on many windows." Without a handle, it may be difficult to open and close a window — an issue of functionality. But also, the missing handle could not be pleasing to the eye. So, is this an aesthetic claim? HCCL’s punch list contains many other examples like this. Thus, on remand, it would be helpful for the trial court to determine whether functional issues are covered by the aesthetic-effect exception,

      . Aesthetic is defined as (1) "relating to the philosophy or theories of aesthetics,” (2) "of or concerning the appreciation of beauty or good taste: the aesthetic faculties,” (3) "characterized be a heightened sensitivity to beauty," (4) "artistic,” and (5) "conforming to accepted notions of good taste.” The American Heritage Dictionary of the English Language 28 (3d ed.1992).

      . See supra note 10.


source: Caselaw Access Project

license: Public Domain

text:
    Edward DANIELS v. STATE of Mississippi.
    No. 2011-KA-00579-SCT.
    Supreme Court of Mississippi.
    Feb. 14, 2013.

      Lafayette County Circuit Court,
    Office of Indigent Appeals by George T. Holmes, attorney for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
   KING, Justice,

for the Court:

¶ 1. On February 11, 2010, Edward Daniels was indicted for the crime of burglary of a dwelling. The indictment alleged that he broke and entered a dwelling with the intent to commit grand larceny. Later, the State amended the indictment to charge Daniels as a habitual offender under Mississippi Code Section 99-19-83. The trial court granted the amendment and the case went to trial. Because Daniels did not appear for trial, the case was tried in his absence. The jury found Daniels guilty, and the court delayed sentencing until Daniels could be located.

¶ 2. The court ultimately sentenced Daniels to life without the possibility of parole under Section 99-19-83. Daniels subsequently filed a motion for a new trial or judgment notwithstanding the verdict (JNOV), which the trial court denied. Aggrieved, Daniels now appeals.

¶ 3. We reverse the decision of the trial court denying Daniels’s motion for new trial and remand the case for further proceedings, because the jury instruction on the elements of burglary was fatally flawed.

FACTS AND PROCEDURAL HISTORY

¶ 4. On February 11, 2010, Daniels was indicted with codefendant Greg Alford. The indictment charged as follows:

[ 0]n or about the 28th day of October, 2009, [in Lafayette County, Mississippi] Edward Daniels and Greg Alford ... did ... unlawfully, willfully, feloniously and burglariously break and enter the dwelling of Lew and Teresa Baumgartel [with] the intent to commit ... grand larceny.

Alford pleaded guilty to the charges, while Daniels entered a plea of not guilty on March 4, 2010.

¶ 5. The trial began on October 19, 2010, at which time Daniels failed to appear. Daniels’s attorney thus moved for a continuance. The trial court denied the motion for a continuance, finding that Daniels’s absence was deliberate, and proceeded with trial in Daniels’s absence.

¶ 6. During trial, both Alford and Investigator Jerret Bundren testified as to the circumstances surrounding the burglary. Alford testified that he and Daniels entered Lew and Teresa Baumgartel’s home with the intent to take something that did not belong to them. He stated that, upon entering the dwelling, they searched for money and removed “a couple of laptops and ... a monitor, a PC unit and ... the biggest TV they had in the house.”

¶ 7. Bundren testified that he recovered a flat-screen television, three laptop computers, a piggy bank full of change, a fifty-four-inch Sanyo television, and additional televisions from a car driven by Alford and Daniels and owned by Daniels’s girlfriend, as well as from an abandoned car owned by one of their acquaintances. He also testified that the items found matched the descriptions of items reported missing from the Baumgartels’ home. Tony Hampton, a neighbor of the Baumgartels, testified that he saw a red Dodge Neon parked in the area and spoke to a man who claimed the car was out of gas.

¶ 8. Following all testimony, the trial court instructed the jury. Among the jury instructions given was jury instruction S-1. Jury instruction S-l stated that if the jury found beyond a reasonable doubt that “Edward Daniels ... broke and entered [the Baumgartels’] dwelling ... by the use of force, and ... Edward Daniels ... intended, once inside this dwelling, to commit a crime therein, which is a crime under the laws of Mississippi, then you shall find the defendant guilty of burglary of a dwelling.” The phrase “grand larceny” was omitted from the jury instruction as the intended crime, an amendment to which the defendant objected. After deliberations, the jury returned a guilty verdict, and the court deferred sentencing until Daniels could be located.

¶ 9. Daniels was subsequently located and taken into custody to await sentencing. On March 8, 2011, the court sentenced Daniels to a term of life imprisonment without the possibility of parole. Daniels then filed a Motion for a New Trial or, in the Alternative, for JNOV, which the trial court denied. Daniels now appeals this denial.

ANALYSIS

1.Standard of Review

¶ 10. This Court applies a de novo standard of review to a trial court’s denial of a judgment notwithstanding the verdict. Johnson v. St. Dominics-Jackson Mem’l Hosp., 967 So.2d 20, 22 (Miss.2007). A motion for JNOV is a challenge to the legal sufficiency of the evidence, and this Court will affirm the denial of a motion for JNOV if there is substantial evidence to support the verdict. Id.

¶ 11. “ ‘Substantial evidence’ is information of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment might have reached different conclusions.” Natchez Elec. & Supply Co. v. Johnson, 968 So.2d. 358, 362 (Miss.2007). The evidence is viewed in the light most favorable to the verdict. Johnson, 967 So.2d at 22.

¶ 12. “A motion for a new trial falls within a lower standard of review than does that of a judgment notwithstanding the verdict or a directed verdict. A motion for a new trial simply challenges the weight of the evidence. The Supreme Court will reverse the lower court’s denial of a motion for a new trial only if, by doing so, the court abused its discretion.” Sheffield v. State, 749 So.2d 123, 127 (¶ 16) (Miss.1999).

¶ 13. Jury instructions are likewise reviewed for abuse of discretion. Bailey v. State, 78 So.3d 308, 315 (Miss.2012). Jury instructions should be read together as a whole, and so long as they “fairly state the law of the case and create no injustice,” no reversible error exists. Id.

¶ 14. Daniels raises several points of error, alleging that

1. the trial court erred in conducting the trial in absentia;
2. the trial court erred by failing to find that the indictment was illegal;
3. the trial court erred by allowing the prosecution to make improper statements in its opening and closing arguments;
4. the trial court erred by setting aside its order reducing charges and sentencing the defendant as a habitual offender;
5. the trial court erred in allowing the jury verdict to stand;
6. the trial court erred in refusing Daniels’s jury instructions; and
7. the cumulative effects of the defendant’s assignments of error caused the defendant to be deprived of his right to a fair trial.

2. Jury Instructions

¶ 15. Daniels argues that the trial court failed to include a jury instruction detailing each element of the underlying grand larceny offense.

¶ 16. While the State did not have to prove grand larceny as an element of burglary, it was necessary that the State offer proof of the intent to commit some specific crime as the second element of burglary.

¶ 17. We find that the trial court’s use of instruction S-l was error, as it did not properly instruct the jury on the elements of the crime of burglary. One of the essential elements of the crime of burglary is the intent to commit a specific crime. State v. Buchanan, 75 Miss. 349, 22 So. 875 (1898); see also Brumfield v. State, 206 Miss. 506, 40 So.2d 268 (1949). Jury Instruction S-l fails to instruct the jury as to what crime Daniels intended to commit, and thus fails to instruct the jury on an essential element of the crime of burglary. The failure to instruct the jury on some specific crime in the second element of burglary would have allowed each of the jurors to arbitrarily select some crime of which there was no proof, and use that nonexistent offense to convict Daniels of burglary. The jury instructions as a whole fail to cure this fatal defect; therefore the trial court abused its discretion in allowing the amendment to Instruction S-l that deleted the phrase “grand larceny.” We find that the trial court’s failure to instruct the jury properly on the essential elements of the crime of burglary requires reversal. ■

¶ 18. Because we find that the jury was improperly instructed on the essential elements of the crime charged, we reverse the trial court’s decision to deny Daniels a new trial, reverse Daniels’s conviction, and remand the case to the Circuit Court of Lafayette County for proceedings consistent with this opinion.

¶ 19. REVERSED AND REMANDED.

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

      . On appeal, this Court noted that Daniels was not represented by counsel and remanded to the trial court for a determination of whether Daniels intelligently and competently waived the right to counsel pursuant to Rule 6 of the Mississippi Rules of Appellate Procedure. The trial court found that Daniels had not intelligently and competently waived his right to appellate counsel, and assigned the Office of Indigent Appeals to represent him. After reviewing the record, his attorney filed a motion to proceed with the case as already submitted, which we granted.

      . Because our decision on this issue requires reversal of Daniels’s conviction, we decline to address Daniels’s additional arguments.

      . See Harrison v. State, 722 So.2d 681, 685 (Miss.1998); Booker v. State, 716 So.2d 1064, 1067-68 (Miss.1998).


author: WALLER, Chief Justice, CHANDLER, Justice,

text:
    MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. Tommy CARVER.
    No. 2012-JP-00683-SCT.
    Supreme Court of Mississippi.
    Feb. 14, 2013.

      John B. Toney, Ayanna Butler, attorneys for appellant.
    Jimmy D. McGuire, attorney for appel-lee.
   WALLER, Chief Justice,

for the Court:

¶ 1. The Mississippi Commission on Judicial Performance filed a formal complaint against Hancock County Justice Court Judge Tommy Carver. It alleged that Judge Carver had ex parte communication with Steven K. Roche about his pending criminal case; failed to disclose such ex parte communication to the prosecutor; dismissed the charges against Roche without a hearing and without any motion to dismiss by the prosecutor; and falsified court records by noting on the file that two witnesses, Officers Bryce Gex and John Grimsley of the Mississippi Department of Marine Resources Marine Patrol, were absent when Roche’s case was called for trial. A three-member committee appointed by the Commission heard the testimony, reviewed the evidence, and recommended that Judge Carver be suspended thirty days from office without pay, publicly reprimanded, and assessed costs. The Commission adopted the committee’s findings. After conducting an independent inquiry of the record and giving careful consideration to the findings of fact and recommendations of the Commission and its three-member committee, we order that Judge Carver be publicly reprimanded and assessed $2,022.75 in costs.

FACTS

¶ 2. On December 23, 2010, Officers Bryce Gex and John Grimsley of the Mississippi Department of Marine Resources Marine Patrol ticketed Stephen K. Roche for five oyster-harvesting violations. Each ticket instructed Roche to appear before or contact the justice court clerk of Hancock County on or before March 22, 2011, at 9:00 a.m. Each ticket listed a phone number, as well. Four tickets included a mailing address, and one had a physical address.

¶ 3. Roche, who has a limited education and is dyslexic, said that he asked his brother-in-law, Frank Klein, to “look at the tickets and tell [him] when and where [he] had to be in court.” Klein said that he did not look at the tickets; instead, based on his father’s suggestion, he and Roche decided to visit Hancock County Justice Court Judge Tommy Carver at his home. Klein had known Judge Carver his entire life; the two of them had played sports together.

¶4. So, one Saturday morning in late March or early April 2011, Roche and Klein went to Judge Carver’s home unannounced. Their only purpose, they said, was to learn the location of the temporary courtroom. The courtroom had moved several times after Hurricane Katrina.

¶ 5. Roche, Klein, and Judge Carver all said that Roche’s case was not discussed that Saturday morning: They spoke only about administrative matters and the court’s location. According to Judge Carver, Roche tried to show him one of the tickets, and he immediately told Roche and Klein that he could not discuss the case. Roche, however, did tell Judge Carver that his arraignment date was April 12, 2011— a fact that Roche could have known only if he or Klein already had contacted the court, according to Judge Carver. Based on the April 12 arraignment date, Judge Carver told them, “Well, that’s me. I definitely can’t talk to you about it.” When Roche said that he could not attend court on April 12, Judge Carver informed him that the case automatically would be reset for trial May 10. “I [gave] him the date and wrote the clerk’s ... phone number to [the] court,” Judge Carver said. Judge Carver denied that he told Roche not to attend court on May 10.

¶ 6. Roche and Klein said that Judge Carver told them the court’s location, advised Roche that he did not have to attend court on April 12 if he wished to contest the charges, and instructed Roche to contact the court clerk for a trial date. Yet, contrary to Judge Carver’s testimony, both claimed that they did not know that the case would be his.

¶ 7. The meeting between Roche, Klein, and Judge Carver was never disclosed to Hancock County Prosecutor Olen Anderson.

¶8. Roche did not attend his April 12 arraignment. On that day, Judge Carver claimed that he had an informal discussion with Officers Gex and Grimsley about Roche’s case. Judge Carver said that he, Gex, and Grimsley stood near the clerk’s office and joked about how Roche had been trying to collect oysters to make a po-boy sandwich. Officers Gex and Grims-ley asked Judge Carver if he had Roche’s case on the docket, and Judge Carver said that he did. Officer Gex then asked if Roche was related to former Justice Court Judge Lee Klein and if Judge Carver needed some “help” with the tickets. Judge Carver declined. “... I’m not sticking my butt on the line[] because I don’t know the guy,” Judge Carver replied. Officer Gex denied that such a conversation occurred.

¶ 9. The Hancock County Justice Court was busier than normal on Roche’s May 10, 2011, trial date due to the initial appearance a local celebrity on a drug charge. Several media members were there, including local reporter Dwayne Bremer. Officers Gex’s and Grimsley’s account of that day conflicts with Roche’s and Judge Carver’s. Also, Prosecutor Anderson’s testimony differs from Judge Carver’s in several key respects.

1110. Officers Gex and Grimsley testified that they were subpoenaed and arrived at the courthouse at approximately 9:30 a.m. for the 10:00 a.m. docket call. The Marine Patrol Official Radio Log shows that Officer Gex went “10-6” (off the patrol radio) in the Hancock County Justice Court at 9:27 a.m. and that Officer Grimsley did likewise at 9:34 a.m. The log showed that Officers Gex and Grimsley went back on at 11:51 a.m. and 12:51 p.m., respectively.

¶ 11. Officer Gex stated that he sat inside the courtroom next to Bremer, his old college dorm-mate. Bremer left before the 10:00 a.m. docket but recalled seeing Officer Gex that morning. Meanwhile, Officer Grimsley moved back and forth between the courtroom and the clerk’s office throughout the morning. Officer Grimsley said that he saw Roche’s name on the copy of the of the 10:00 a.m. docket that Prosecutor Anderson kept on his desk.

¶ 12. Officer Gex testified that he did not hear Roche respond when his name was called during the 10:00 a.m. docket call. Further, neither Officer Gex nor Officer Grimsley saw Roche in the courtroom that morning.

¶ 13. After the docket call, Officer Gex went to Prosecutor Anderson’s desk and saw that Prosecutor Anderson had marked “NS” for “no show” beside Roche’s name. Later, Judge Carver asked the two officers why they were in court. When the officers told him they were in court for the Roche case, Judge Carver said that that case had to be reset for trial because Roche was related to a former justice court judge. Officer Gex testified that Judge Carver had reset trial for July 12, 2011. So Officer Gex wrote “July 12th” on the back of one of the tickets.

¶ 14. Roche, on the other hand, said that he arrived in court at 8:30 a.m. on May 10. Roche said that he “just hollered not guilty when [Judge Carver] called his name and that was it.” It is unclear from Roche’s testimony whether he responded both when his name was called at the 10:00 a.m. docket and when his case was called for trial. In a signed statement, however, Roche said he responded in both instances.

¶ 15. Judge Carver testified that Roche was present when his case was called for trial but that Officers Gex and Grimsley were not. He said that Prosecutor Anderson was not in the courtroom at that time either. Thus, once the clerk confirmed that the officers had been subpoenaed, Judge Carver dismissed the tickets. Judge Carver said that it was his regular practice to dismiss cases if the prosecutor and the subpoenaed officers were not in court; he said that he had dismissed three or four other cases that day for the same reason. Further, Judge Carver said that he had discussed this issue with Prosecutor Anderson on a prior occasion.

¶ 16. Prosecutor Anderson understood Judge Carver’s normal protocol differently. Though Prosecutor Anderson could not recall the events surrounding the Roche case on May 10 and who was or was not present, he did testify about typical proceedings in the Hancock County Justice Court. He said that it was not unusual for subpoenaed officers to wander out of courtroom to the clerk’s office, the parking lot, or the nearby sheriffs department while waiting for their cases to be called. Normally, according to Prosecutor Anderson, Judge Carver would allow him time to look for the absent officers. And if Prosecutor Anderson reported that the officers could not be located, then Judge Carver would move forward at that point. Prosecutor Anderson had no knowledge of Judge Carver ever dismissing a case without him being present and thought that it “would be an issue” if Judge Carver had done so without getting a response from him. Furthermore, Prosecutor Anderson did not recall any conversation in which Judge Carver said that he did not want him leaving the courtroom to track down officers. “[Judge Carver and I] never had a conversation where [Judge Carver] said I don’t want you to leave.... That’s never occurred,” Prosecutor Anderson said.

¶ 17. According to Judge Carver, Officers Gex and Grimsley walked into the courtroom after he had dismissed Roche’s tickets:

I watched [Officers Gex and Grimsley] walk in the courtroom after the cases-[Roche’s] case and three or four other ones were dismissed. I turned in my chair and watched both officers walk in and walk straight to [Prosecutor Anderson’s] desk, look for the file, asked me what I did with it.
... I said, “Ya’ll just walked in. I just saw you. I just watched ya’ll. It was dismissed.”

The court file stated “Dismissed — officer not in court.” Judge Carver said that he offered Anderson and Officers Gex and Grimsley the opportunity to file a motion to set aside the dismissal but that no one pursued such motion. Anderson, Officer Gex, and Officer Grimsley denied that this offer was made.

¶ 18. Officers Gex and Grimsley said that they returned to court on July 12, 2011, but did not see Roche’s name listed on the docket. The clerk then informed them that all five tickets had been dismissed on May 10, 2011. The stated reason: “officer not present.” Thereafter, Officer Grimsley discussed the matter with his supervisor and filed a formal complaint with the Mississippi Commission on Judicial Performance.

STANDARD OF REVIEW

¶ 19. Mississippi Commission on Judicial Performance v. Boone, 60 So.3d 172, 176 (Miss.2011), set forth this Court’s standard of review for judicial performance cases: “[I]n making a ‘final determination of the appropriate action to be taken in each case,’ ... [the Court will] ‘conduct an independent inquiry of the record’ and in doing so, ... [will] ‘accord careful consideration [of] the findings of fact and recommendations of the Commission, or its committee, which has had the opportunity to observe the demeanor of the witnesses.’ ” Boone, 60 So.3d at 176 (quoting In re Removal of Lloyd W. Anderson, Justice Court Judge, 412 So.2d 743, 746 (Miss.1982)). “Careful consideration” is less deferential than the “great weight” or “great deference” that this Court had been giving the Commission’s findings of fact and recommendations prior to Boone. But that does not mean that the Commission’s findings of fact and recommendations are given no deference at all. The findings of fact and recommendations of the Commission, and its three-member committee in particular, merit “careful consideration” for a significant reason: The three-member committee is the only body that actually hears the testimony and observes the demeanor of the witnesses. Thus, it is better-equipped to ascribe what weight should be given to those witnesses. Its findings in that regard are relevant then, especially in cases like this that hinge largely upon determinations of credibility.

¶ 20. To impose sanctions, we must find clear and convincing evidence of misconduct. Boone, 60 So.3d at 174, 184. “Clear and convincing evidence” is an intermediate standard that falls between “preponderance of the evidence” and “beyond a reasonable doubt.” Addington v. Tex., 441 U.S. 418, 423-24, 99 S.Ct. 1804, 1808, 60 L.Ed.2d 323 (1979). The precise meaning of “clear and convincing evidence” is often unclear. In re Medrano, 956 F.2d 101, 102 (5th Cir.1992). The United States Court of Appeals for the Fifth Circuit has provided this useful definition:

[T]hat weight of proof which ‘produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable the fact finder to come to a clear conviction, without hesitancy, of the truth of the precise facts’ of the case.

Id. (finding that this definition of clear and convincing evidence is appropriate for attorney-disbarment proceedings in federal court) (quoting Cruzan by Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 110 S.Ct. 2841, 2855 n. 11, 111 L.Ed.2d 224 (1990) (internal punctuation and citations omitted)).

DISCUSSION

I. Whether Judge Carver’s conduct constituted willful misconduct in violation of Canons 1, 2B, 3B(1), 3B(7), and 3B(8) of the Code of Judicial Conduct, thus causing this matter to be actionable under Article 6, Section 177A of the Mississippi Constitution of 1890, as amended.

¶ 21. The Commission, based upon clear and convincing evidence, adopted the Committee’s findings of fact, conclusions of law, and recommendations. The relevant fact-findings are stated below:

Sometime prior to the March 22, 2011, date printed on the citations, Roche went with his brother-in-law, Klein, to Respondent’s home on a Saturday. When Klein and Roche arrived at Respondent’s home, Respondent met, ex parte, with Roche and discussed the pending charges. During this discussion, Respondent reviewed his personal court calendar and discussed with Roche when the next term of court would be held. Respondent failed to disclose this ex parte conversation to Officer Grims-ley or Officer Gex or Prosecutor Anderson.
Officers Grimsley and Gex were subpoenaed to appear on May 10, 2011, at 10:00 a.m. for Roche’s trial in Hancock County Justice Court.
On the May 10, 2011, trial date, Officers Grimsley and Gex arrived at the Hancock County Justice Court prior to 10:00 a.m. ready to present testimony and evidence in support of their charges against Roche. Roche’s cases were the only cases that Grimsley and Gex had in Hancock County Justice Court that day. The Hancock County Justice Court initial appearance docket was called, and thereafter the trial docket was called. While waiting for Roche’s cases, Gex talked with his former high school classmate and college dorm mate Bremer, a reporter for The Sea Coast Echo newspaper. All of the cases on the trial docket were called and neither Grimsley nor Gex saw Roche on the day of court. Gex looked at Prosecutor Anderson’s docket sheet and next to Roche’s name appeared “NS” (no show). Respondent asked Grimsley and Gex why they were present and Respondent told Grimsley and Gex that because Roche was related to a former Hancock County Justice Court judge, the matter would be reset for trial on July 12, 2011. Gex wrote July 12 on the back of Gex’s copy of Roche’s ticket and Grimsley and Gex left Hancock County Justice Court.
Based upon Respondent’s May 12, 2011, instructions that trial would be held on July 12, 2011, Grimsley and Gex returned to Hancock County Justice Court on July 12, 2011, ready to present testimony and evidence. On July 12, 2011, Grimsley and Gex learned that Respondent had previously dismissed all five (5) of Roche’s charges. The dismissal occurred without a hearing and without the presence of or knowledge of Prosecutor Anderson.
At no time did Prosecutor Anderson or any other representative of the State move for a dismissal. As a pretense for such dismissals, Respondent falsely recorded on the court file “Dismissed-officer not in court” on May 10, 2011, when such officers were in fact present.
In making the foregoing findings of fact, the Committee has assessed the credibility of each witness by viewing the demeanor of each witness, considering the evidence (including Exhibits) presented, and considering the testimony of each witness:
(a) Officer Grimsley was credible.
(b) Officer Gex was credible.
(c) Bremer was credible.
(d) Roche was not credible — Roche wanted the Committee to believe that Roche and Klein went to Respondent’s home solely for the purpose of determining the location of the courthouse, but prior to going to Respondent’s home, Roche had already called the Hancock County Justice Court courthouse and was informed of an April 2011 arraignment date.
(e) Klien was not credible — Klein wanted the Committee to believe that Klein and Roche went to Respondent’s home solely for the purpose of determining the location of the courthouse, but prior to going to Respondent’s home, Roche had already called the courthouse and was informed of an April 2011 arraignment date.
(f) Prosecutor Anderson was credible, but was obviously uncomfortable in testifying about misconduct by Respondent.
(g) Respondent was credible in his testimony in which he acknowledged that he dismisses tickets without providing due process to the prosecutor, but failed to recognize that such conduct is improper. Respondent was not credible in his testimony about (i) what occurred in his home with Roche and Klein; and (ii) court interaction with Prosecutor Anderson, Officer Grimsley and Officer Gex on May 10, 2011, and July 12, 2011.

¶22. In sum, the Commission determined that Judge Carver had: (1) failed to properly adjudicate criminal matters assigned to him; (2) engaged in ticket-fixing; (3) dismissed criminal charges against Roche without a hearing and without the presence or knowledge of Prosecutor Anderson, Officer Gex, or Officer Grims-ley; (4) engaged in improper ex parte contact with Roche about his pending criminal matter; (5) falsified official court records by noting on the court file that Officers Gex and Grimsley were not in court when, in fact, they were present. Accordingly, it found that Judge Carver had violated Canon 1 (charging judges to establish, maintain, and enforce high standards of conduct to uphold the integrity of the judiciary), Canon 2B (forbidding judges to allow their family, social, or other relationships to influence their judicial conduct or judgment), Canon 3B(1) (charging judges to hear and decide all matters "within the judge’s jurisdiction except those that require disqualification), Canon 3B(7) (charging judges to accord all who are legally interested in a proceeding the right to be heard according to law and forbidding judges to engage in ex parte communications about a pending matter except in certain circumstances), and Canon 3B(8) (charging judges to dispose of all judicial matters promptly, efficiently, and fairly).

¶ 23. After conducting an independent inquiry of the record, with careful consideration to the findings of fact and recommendations of the Commission and its committee, we find that Judge Carver violated Canons 1, 2B3 3B(1), 3B(7), and 3B(8) of the Code of Judicial Conduct and that his actions constituted willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute, pursuant to Article 6, Section 177A, of the Mississippi Constitution of 1890, as amended.

¶ 24. Judge Carver’s, Roche’s, and Klein’s testimony was discredited in several material respects throughout the record so that the evidence, viewed as a whole, leaves little doubt as to what happened at Judge Carver’s home and in court on May 10. First,, Roche’s and Klein’s purported reason for visiting Judge Carver — simply to learn the location of the courthouse — is specious. Each ticket had a date, time, and telephone number for the court written at the bottom — one ticket even had a physical address listed. The evidence supports that either Roche or Klein, or both, had seen some or all of this information before they visited Judge Carver. Judge Carver said that when Roche and Klein arrived at his doorstep, Roche already had obtained an April 12 initial-appearance date; Roche or Klein would have had to contact the court to obtain that date, according to Judge Carver. Clearly then, Roche and Klein had knowledge of the court’s contact information — through the tickets themselves, most likely — and had some idea about how to proceed on the tickets. Further, if they truly had needed only to learn the court’s whereabouts, they easily could have contacted the clerk of the court and gotten that information instead of stopping by Judge Carver’s house unannounced on a Saturday morning.

¶ 25. Besides the evidence that Roche or Klein had read the tickets and had contacted the court, Judge Carver’s own testimony belies their assertion that they left Judge Carver’s house without knowing who would- hear Roche’s case. After Roche told Judge Carver that his initial appearance was April 12, Judge Carver told them, “Well, that’s me.” And he even told them the trial date, even though the court docket was not at his house.

¶ 26. As for Judge Carver’s and Roche’s assertions that Roche was in court on May 10, Roche’s recollection about that day makes the truth of his presence less than clear, direct, weighty, and convincing. Everyone testified that the Hancock County Justice Court was crowded and busy on May 10, except one person: Roche. When questioned about the environment inside the courthouse on May 10, Roche said that “[i]t wasn’t packed with people” and that he had not noticed anything special or unusual going on that day.

¶ 27. Then, there is Judge Carver’s claim that Officers Gex or Grimsley were not in court when Roche’s case was called for trial on May 10 and that he had not seen them earlier that morning either. Given the larger-than-normal crowd and busyness in court that particular day, perhaps Judge Carver could have missed seeing the two officers early that morning. Even so, eyewitness testimony from news reporter Bremer, the officers’ official radio log, and the officers’ testimony clearly support their presence in the courtroom that morning.

¶28. Finally, and perhaps most convincing, is the collective testimony that conflicts with Judge Carver’s claim that he offered Prosecutor Anderson and Officers Gex and Grimsley, in open court, the opportunity to file a motion to set aside the dismissal. Prosecutor Anderson, Officer Gex, and Officer Grimsley denied that such an offer was made.

¶ 29. Considering the record as a whole, Roche’s, Klein’s, and Judge Carver’s accounts simply are not believable; they conflict with one another and with other direct and circumstantial evidence.

¶ 30. Even if Judge Carver’s account is accepted as true, sanctions still would be warranted. Judge Carver- testified that he dismissed a case on his own accord without either a hearing or a motion to dismiss from the prosecutor. That alone constituted misconduct: “Procedurally speaking, a court cannot dismiss a case on its own volition. A hearing must be conducted unless the prosecuting attorney moves to dismiss the case.” Miss. Comm’n on Judicial Performance v. Chinn, 611 So.2d 849, 852 (Miss.1992). In the recent past, this Court has sanctioned judges for dismissing cases without proper motion or notification to the prosecutor. Miss. Comm’n on Judicial Performance v. Bradford, 18 So.3d 251, 253, 255, 258 (Miss.2009).

¶ 31. Judge Carver directs the Court to a 2008 Attorney General opinion that suggests that a justice court judge can dismiss a case if the prosecuting attorney fails to attend court. Strait, 2008 WL 4140511 (Miss.A.G. Aug. 22, 2008). And he submits that if dismissal under such circumstances indeed is impermissible, then he simply made a mistake of law.

¶ 32. Neither the Attorney General opinion nor a mistake in the law, of this particular nature, exonerates Judge Carver. Attorney General opinions offer guidance, but they are not binding on this Court. Shelter Mut. Ins. Co. v. Dale, 914 So.2d 698, 703 (Miss.2005) (citing In re Assessment of Ad Valorem Taxes on Leasehold Interest Held by Reed Mfg., Inc. ex rel. Itawamba County Bd. of Supervisors, 854 So.2d 1066, 1071 (Miss.2003)). Though the Attorney General opinion may suggest that a justice court judge can dismiss a case if the prosecutor is not in court when the case is called, this Court said otherwise in Chinn. Chinn, 611 So.2d at 852. And though honest, simple mistakes in reasonably attempting to decide cases based on controlling law are not sanctionable, ignorance or mistakes of law that exceed mere errors in judgment, such as improperly dismissing tickets, do not shield a judge from sanctions. Miss. Comm’n on Judicial Performance v. Martin, 921 So.2d 1258, 1268-69 (Miss.2005).

¶ 33. We now move to consider the appropriate sanctions in this case.

II. Whether Judge Carver’s misconduct warrants a thirty-day suspension without pay, a public reprimand, and assessment of costs in the amount of $2,022.75.

¶ 34. The Commission recommends that Judge Carver be suspended thirty days from office without pay, publicly reprimanded, and assessed costs in the amount of $2,022.75. We weigh the appropriateness of sanctions based on: “(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 conduct; (5) whether moral turpitude was involved; and (6) the presence or absence of mitigating or aggravating circumstances.” Boone, 60 So.3d at 185 (citing Miss. Comm’n on Judicial Performance v. Gibson, 883 So.2d 1155, 1157 (Miss.2004) overruled on other grounds by Boone, 60 So.3d 172).

A. The length and character of Judge Carver’s service

¶ 35. Judge Carver has served as a justice court judge for twelve years. The record is silent as to the character of his public service.

B. Prior caselaw on point

¶ 36. The Commission cites four cases that involved ticket-fixing and/or ex parte communication with a defendant.

¶ 37. In Mississippi Commission on Judicial Performance v. Sanford, 941 So.2d 209, 218 (Miss.2006), Justice Court Judge John L. Sanford arranged for the arresting officer in a DUI case to “no show” at trial so that he could dismiss the case for failure to prosecute. Id. The Commission and Judge Sanford submitted a joint motion for approval of recommendation that Judge Sanford be publicly reprimanded and assessed with costs. Id. at 210. But, because of the seriousness of Judge Sanford’s actions, this Court did not accept the joint recommendation. Id. at 218. Instead, we imposed a thirty-day suspension, public reprimand, and assessment of costs in the amount of $100. Id.

¶ 38. Mississippi Commission on Judicial Performance v. Gordon, 955 So.2d 300 (Miss.2007), involved ticket-fixing and ex parte communication with defendants. Id. There, Municipal Court Judge Rex Gordon Jr. “passed” fourteen tickets to the file over the issuing officer’s objection and advised the defendants not to appear in court. Id. at 302-03. We ordered a thirty-day suspension, a public reprimand, and assessment of costs in the amount of $100. Id. at 306.

¶ 39. In Mississippi Commission on Judicial Performance v. Bradford, 18 So.3d 251, 253 (Miss.2009), Justice Court Judge Richard Bradford acted inappropriately by:

engaging in ex parte communications in a rental-dispute case and subsequently ruling in favor of the party with whom he had the ex parte communications; continuing a case in which all of the parties failed to appear for court without such motion from either of the parties in violation of Rule 2.06 of the Uniform Rules of Procedure for Justice Court; dismissing a case without prejudice in which all of the parties failed to appear for court in violation of Rule 2.06 of the Uniform Rules of Procedure for Justice Court; attempting to have two traffic citations which had been issued to Kacy D. Jones and assigned to another justice court judge dismissed by the county prosecutor; dismissing a profane-and-in-deeent-language case without motion or proper notification to the prosecutor; dismissing a failure-to-abide-by-a-protective-order case without proper motion or notification to the prosecutor; dismissing second-offense DUI charges without the prosecution being allowed to call the issuing officer as a witness; non-adjudicating a first-offense DUI charge against a minor without notice to the prosecutor after attempting, but failing, to transfer the matter to youth court; ordering contempt warrants issued against individuals in the absence of pending charges against those individuals and in the absence of notice or a hearing for such individuals; and dismissing charges of failure to abide by a protective order without allowing the prosecutor to be present or to present witnesses.

Id. The Court noted the Commission’s finding that taking “dispositive action in cases without notifying the prosecutor or affording the prosecutor the opportunity to present witnesses is akin to ‘ticket[-]fixing.’ ” Id. at 255. As punishment, this Court imposed a thirty-day suspension, a public reprimand, and assessment of costs in the amount of $100. Id. at 258.

¶ 40. Finally, in Mississippi Commission on Judicial Performance v. McKenzie, 63 So.3d 1219, 1222-23 (Miss.2011), Justice Court Judge Marion McKenzie committed numerous infractions: He disposed of, or attempted to dispose of, nine ticket citations for misdemeanor offenses; intervened, or attempted to intervene, in cases assigned to another judge; and improperly disposed of three cases. Id. The Commission and Judge McKenzie field a joint motion for approval of recommendation of a public reprimand, a $500 fine, and assessment of costs in the amount of $100. Id. at 1221. Yet, because of the egregiousness of Judge McKenzie’s conduct — especially his intervention in cases assigned to other judges — we imposed a thirty-day suspension, as well. Id. at 1226.

¶ 41. Judge Carver’s misconduct, though serious, is not as egregious or extensive as the judges’ misdeeds in Sanford, Gordon, Bradford, and McKenzie. Judge Sanford’s misconduct tarnished not just the judiciary but law enforcement, as well. Sanford, 941 So.2d at 216. And the number of improprieties committed by the judges in Gordon, Bradford, and McKenzie exceed the number in this case.

C.Magnitude of the offense and the harm suffered

¶ 42. Judge Carver interfered with the administration of justice and brought the judicial office into disrepute. His actions created an impression that certain defendants could influence his judicial conduct. Further, he deprived the State of an opportunity to prosecute Roche.

D.Pattern of conduct

¶ 43. Judge Carver has no disciplinary history with the Commission. Nevertheless, we have said that “‘a pattern of misconduct exists where a single disciplinary action comprises multiple offenses.’ ” Id. at 1225 (quoting Bradford, 18 So.3d at 256). Here, Judge Carver committed four offenses: (1) he had ex parte communication with Roche; (2) he failed to disclose that ex parte communication to the prosecutor; (3) he dismissed five tickets against Roche without a hearing and without the prosecutor’s presence or knowledge; and (4) he falsified court records by writing on the file that Officers Gex and Grimsley were absent when Roche’s case was called for trial. We find that this constitutes a pattern of misconduct.

E.Moral turpitude

¶ 44. Moral turpitude includes “‘actions which involve interference with the administration of justice, misrepresentation, fraud, deceit, bribery, extortion, or other such actions which bring the judiciary into disrepute.’ ” McKenzie, 63 So.3d at 1225 (quoting Gordon, 955 So.2d at 305). Ticket-fixing implicates moral turpitude, as well. See McKenzie, 63 So.3d at 1225 (citing Gordon, 955 So.2d at 305).

¶45. We agree with the Commission that Judge Carver’s actions involved moral turpitude.

F.Mitigating or aggravating circumstances

¶ 46. The Commission cites no mitigating factors. Additionally, Judge Carver has not acknowledged any wrongdoing.

¶47. The Commission’s recommendation of a thirty-day suspension, a public reprimand, and assessment of costs in the amount of $2,022.75 matches the punishment we imposed in Sanford, Gordon, Bradford, and McKenzie. But we do not find that Judge Carver’s misconduct is as egregious or as extensive as the misdeeds in those cases. Accordingly, based on the totality of the circumstances, we find that Judge Carver’s actions require imposition of a public reprimand and assessment of costs in the amount of $2,022.75.

CONCLUSION

¶48. After conducting an independent review of the record, and after giving careful consideration to the findings of fact and recommendations of the Commission, we find that Judge Carver violated Canons 1, 2B, 3B(1), 3B(7), and 3B(8) of the Code of Judicial Conduct and that his actions constituted willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute under Article 6, Section 177A of the Mississippi Constitution of 1890, as amended. Therefore, we order that Judge Carver be publicly reprimanded and assessed $2,022.75 for the costs of this proceeding.

¶ 49. HANCOCK COUNTY JUSTICE COURT JUDGE TOMMY CARVER SHALL BE PUBLICLY REPRIMANDED IN OPEN COURT BY THE PRESIDING JUDGE OF THE HANCOCK COUNTY CIRCUIT COURT ON THE FIRST DAY OF THE NEXT TERM OF THAT COURT IN WHICH A JURY IS PRESENT AFTER THE ISSUANCE OF THIS COURT’S MANDATE, WITH JUDGE CARVER IN ATTENDANCE. IN ADDITION, JUDGE CARVER IS ASSESSED COSTS OF $2,022.75.

RANDOLPH, P.J., LAMAR, PIERCE AND COLEMAN, JJ„ CONCUR. CHANDLER, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., KITCHENS AND KING, JJ.

CHANDLER, Justice,

dissenting:

¶ 50. It has been this Court’s consistent holding that clear and convincing evidence is required to support a finding of judicial misconduct. Mississippi Commission on Judicial Performance Rule 8D. Today the majority appears to abandon that standard because the evidence it cites supporting the Commission’s finding that Judge Carver engaged in ticket-fixing is insubstantial. Therefore, I respectfully dissent.

¶ 51. “Clear and convincing evidence” has been defined as:

that weight of proof which “produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable the fact finder to come to a clear conviction, without hesitancy, of the truth of the precise facts” of the case.

In re Medrano, 956 F.2d 101, 102 (5th Cir.1992) (quoting Cruzan by Cruzan v. Director, Mo. Dep’t of Health, 497 U.S. 261, 110 S.Ct. 2841, 2855 n. 11, 111 L.Ed.2d 224 (1990)).

¶ 52. The majority rests Judge Carver’s sanctions on two findings: (1) that Judge Carver discussed Roche’s pending charges at the visit at Judge Carver’s house, and that (2) Judge Carver dismissed Roche’s five tickets under the deliberate false pretense that the prosecutor and officers were not in court when the case was called. The majority finds that Roche must have called the courthouse to obtain his arraignment date, and that Roche was lying when he said he still had felt he needed more information from Judge Carver. But Roche was fifty-nine years old with a sixth-grade education, hard-of-hearing, had trouble reading and writing, and his testimony was confusing. At the time of his detention by Gex and Grimsley, Roche had been gathering twenty oysters to make a sandwich. Klein’s testimony was plausible that he had brought Roche to Judge Carver’s house, at his father’s suggestion, for the purpose of allowing Roche to ascertain the location of the courthouse and whether he had to appear on the arraignment date. There was no evidence contradicting the testimony of Klein, Roche, and Judge Carver about the conversation. The discrepancies in the testimony pointed out by the majority fall woefully short of providing clear and convincing evidence that Roche asked Judge Carver to “fix” the tickets. To the contrary, such minor discrepancies are precisely what one would expect from three witnesses to an under-ten-minute, casual conversation that occurred more than a year before the Committee hearing.

¶ 53. .Further, the evidence surrounding the dismissal of the tickets amounted to nothing more than a swearing match between Judge Carver and Officers Grimsley and Gex. Grimsley and Gex testified that they were present in court when Roche’s trial was called, that Roche was not present, and that Judge Carver had continued the case to July 12. In contrast, Judge Carver testified that, when the trial was called, neither the prosecutor nor the officers were in court, so he dismissed the tickets. No one corroborated the officers’ version of events. Grimsley admitted that he had not remained in the courtroom during the entire time that court was in session, but he testified that he had spent part of the time sitting inside the clerk’s office. Bremer corroborated that Gex was in court before the 10:00 a.m. docket call, but he was unable to confirm his presence after 10:00 a.m. Anderson was unable to corroborate the presence of the officers. It was undisputed that officers attending the Hancock County Justice Court habitually wander in and out of the courtroom while court is in session. And only Gex and Grimsley confirmed that, in fact, the pair returned to court on July 12 for a reset trial date. Anderson testified that there had been a problem with cases being dismissed for “officer not in court,” suggesting a motive for the officers to lie about their absence. There was nothing in the record corroborating the testimony of Gex and Grimsley that would elevate the proof to clear and convincing evidence.

¶ 54. The majority strains reason by finding that evidentiary conflicts materially discredited Judge Carver’s testimony. The majority cites the following in support of its finding that Judge Carver dismissed the tickets under false pretenses: that Roche said the courtroom was not “packed with people,” while other witnesses said it was crowded; that the officers’ testimony, Bremer’s testimony, and the call logs supported their presence in court that day, although Judge Carver said they did not appear at the time the case was called; and that neither Gex, Grimsley, nor Anderson recalled Judge Carver’s set-aside offer. While perhaps sufficient to support a mere suspicion of misconduct, the slight evidentiary conflicts identified by the majority simply do not elevate the quantum of proof to “clear, direct and weighty and convincing” evidence such that this Court, as fact-finder, can “come to a clear conviction, without hesitancy,” that Judge Carver engaged in ticket-fixing. In re Medrano, 956 F.2d 101, 102 (5th Cir.1992).

¶ 55. The majority errs by equating insubstantial evidence of judicial misconduct with clear and convincing evidence. I would find that no sanctions are warranted. Judge Carver’s admitted action of dismissing the tickets because the officers and prosecutor were not in court when the case was called is not sanctionable. While the majority finds that a justice court judge may not dismiss a ticket without a hearing, Judge Carver did hold a hearing on Roche’s tickets — one that was not attended by the prosecutor or the officers. Mississippi Attorney General Opinion No.2008-00415 states “[i]f the prosecuting attorney fails to attend court to prosecute a case properly set for trial the court may continue the case for good cause or may dismiss the case.” Strait, Op. Miss. Att’y Gen.2008-00415 (August 22, 2008). Because a judge may not be sanctioned for a mistake of law, and the attorney general’s opinion provides some authority for Judge Carver’s actions, Judge Carver’s dismissal of the tickets on the ground that the prosecutor and officers were absent for trial was, at most, a mistake of law and not sanctionable. Miss. Comm’n on Judicial Performance v. Martin, 921 So.2d 1258, 1268 (Miss.2005).

¶ 56. Judge Carver has served his community for twelve years as a justice court judge. In that capacity, Judge Carver likely handles as many as one hundred cases per month. Multiply that by the number of months he has presided during the twelve-year period, and one can appreciate the number of cases he has decided, with no indication of wrongdoing on his part until this single incident. Yet, the majority concludes that Judge Carver has engaged in misconduct based upon uncorroborated evidence and immaterial conflicts in the testimony. Therefore, I respectfully dissent.

DICKINSON, P.J., KITCHENS AND KING, JJ., JOIN THIS OPINION.

      . The Commission further found that Judge Carver had violated Mississippi Code Section 97-11-1 by falsifying court records. Section 97-11-1 states:

        If any clerk of any court, or public officer or any other person, shall wittingly make any false entry, or erase any work or letter, or change any record belonging to any court or public office, whether in his lceep-ing or not, he shall, on conviction thereof, be imprisoned in the penitentiary for a term not exceeding ten years, and be liable to the action of the party aggrieved.
      Miss.Code Ann. § 97-11-1 (Rev.2006).