author: CHATELAIN , Judge Pro Tempore.

text:
    Lucinda CHARLES a/k/a Lucinda Landry v. Charles Ray LANDRY.
    No. 09-1161.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 2010.
    Thomas A. Budetti, Attorney at Law, Lafayette, Louisiana, for Defendant/Appel-lee, Charles Ray Landry.

      Marcus A. Alien, Sr., Attorney at Law, Lafayette, Louisiana, for Plaintiff/Appellant, Lucinda Charles a/k/a Lucinda Landry.
    Court composed of JAMES T. GENOVESE, SHANNON J. GREMILLION, and DAVID E. CHATELAIN, Judges.
   CHATELAIN , Judge Pro Tempore.

11 Plaintiff, Lucinda Charles a/k/a Lucinda Landry (Lucinda), appeals the trial court’s judgment that granted peremptory exceptions of prescription and no cause of action in favor of the defendant, Charles Ray Landry (Mr. Landry). For the following reasons, we dismiss the appeal of Lucinda Charles.

FACTS AND PROCEDURAL HISTORY

The relevant facts in this matter are not in dispute. Lucinda and Mr. Landry are former spouses who divorced in 1983. In their community property settlement recorded in 1984, Lucinda transferred to Mr. Landry her ownership interest in the community home, which was subject to a $13,000 mortgage in favor of the United States Department of Agriculture, Farmers Home Administration (FHA). Conversely, Mr. Landry agreed to fully assume the mortgage and to hold Lucinda harmless for all indebtedness owed on the home. The community property settlement, however, did not require the home to be re-mortgaged, and, thus, both Lucinda and Mr. Landry remained listed as obligors on the FHA mortgage.

In the fall of 1989, Mr. Landry stopped paying the FHA indebtedness and moved out of the home. The FHA instituted foreclosure proceedings against Mr. Landry and Lucinda in 1992. Because neither could be located, a curator ad hoc was appointed to represent them in the suit. The curator was unable to contact Mr. Landry; however, she did contact Lucinda, who was now married to Russell Charles (Mr. Charles). When Lucinda informed the FHA that she should not be held liable for the mortgage because she had transferred her interest in the home to |gMr. Landry in their community property settlement, she was told that because the transfer of home’s ownership occurred without the knowledge, consent, or authorization of the FHA, she was still jointly liable with Mr. Landry for payment of the mortgage note. Negotiations ensued between Lucinda and the FHA, and the FHA agreed to dismiss the foreclosure suit without prejudice. According to the petition in the present ease, it is alleged that Lucinda and Mr. Charles “repurchased the property back from the [FHA] via the form of a ‘short sale’ ” and began cleaning and refurbishing the home. Lucinda did not submit any evidence to substantiate her assertion that she “repurchased” the home. Indeed, Mr. Landry remained as the record owner of the immovable property.

In February of 2008, Mr. Landry sold the home to Curtis Viator (Mr. Viator) for $25,000. As a result, Lucinda brought this suit against Mr. Landry seeking damages for loss of use and ownership of the property; loss of money for the repurchasing, refurbishing, and maintaining of the property; fraudulent unilateral conveyance of the property; mental anguish and emotional distress; and embarrassment and humiliation. Mr. Landry answered the suit, claiming therein that Lucinda’s petition failed to state a cause of action and that her claims against him were prescribed.

The matter was originally set for trial on March 30, 2009. At a pretrial conference on the morning of trial, the trial judge informed the parties that he believed that the case presented legal, rather that factual, issues. The matter was reset for April 27, 2009 for argument only, and the trial judge invited the parties to submit briefs regarding whether Lucinda’s claims against Mr. Landry were prescribed and/or | .¡whether she could recover based on community property or acquisitive prescription laws, as well as any other relevant issues.

At the April 27, 2009 hearing, counsel for Lucinda conceded that, based upon applicable law, she could not and did not acquire the home through acquisitive prescription. Nevertheless, Lucinda claimed that she had acquired the home under the legal principle of abandonment; that is, she claimed that Mr. Landry had relinquished possession of the property with the intent of giving up ownership, and she had possessed the property with the intent to own it. Following the hearing, the trial court determined that Lucinda had paid off the FHA mortgage without having title to the home in 1992, thus giving her a claim against Mr. Landry, but that she simply waited too long to assert that claim in court. With regard to Lucinda’s claim that she acquired the home due to Mr. Landry’s having abandoned it when he could no longer afford to pay the mortgage, the trial court ruled that this claim, too, was untimely asserted against Mr. Landry, given the fact that he no longer owned the house at the time Lucinda filed suit against him. The trial court based this reasoning on the fact that, despite Lucinda’s having satisfied the mortgage, Mr. Landry retained title to the home in 2008 and was thus free to sell it to Mr. Viator. Accordingly, the trial court granted Mr. Landry’s exceptions of prescription and no cause of action, finding that title of the home had remained with Mr. Landry as a result of the community property settlement and that Lucinda’s right to recover against Mr. Landry was time-barred.

| .(Lucinda now appeals, asserting in her sole assignment of error that the trial court erred when it granted Mr. Landry’s exception of no cause of action because it failed to consider her arguments regarding abandonment under La.Civ.Code art. 3418.

DISCUSSION

From the outset, we observe that the tack Lucinda has taken in perfecting her appeal, by limiting her argument to an attack on the trial court’s ruling on Mr. Landry’s peremptory exception of no cause of action and choosing not to argue the correctness of the trial court’s ruling with regard to the peremptory exception of prescription, poses a fundamental problem for appellate review. Because of the posture of this appeal, we must first determine whether we are presented with only a moot question.

An “[a]ppeal is the exercise of the right of a party to have a judgment of a trial court revised, modified, set aside, or reversed by an appellate court.” La.Code Civ.P. art. 2082. “An assignment of errors is not necessary in any appeal.” La.Code Civ.P. art. 2129. Correlatively, an “appellate court shall render any judgment which is just, legal, and proper upon the record on appeal.” La.Code Civ.P. art. 2164. Thus, an appeal generally presents to the appellate court all of the issues, claims, or defenses that were decided against the appellant by the trial court judgment.

Nevertheless, “[t]he Courts of Appeal will review only issues which were submitted to the trial court and which are contained in specifications or assignments of error, unless the interest of justice clearly requires otherwise.” Uniform Rules— Courts of Appeal, Rule 1-8. More particularly, the rules of the appellate courts further state, in part, that the “brief of the appellant or relator shall set forth ... a specification or assignment of alleged errors relied upon, the issues presented for review, [and] an argument confined strictly to the issues of the case.” Uniform |5Rules-Courts of Appeal, Rule 2-12.4. Based upon those rules, this court has repeatedly stated that it will not consider issues not contained in assignments of error. See e.g., Shay v. Creative Poolseapes and Gardens, LLC, 09-256 (La.App. 3 Cir. 11/10/09), 25 So.3d 155; Pomier v. Move-land, 06-1117 (La.App. 3 Cir. 2/7/07), 951 So.2d 486; Maricle v. Sunbelt Builders, Inc., 05-398 (La.App. 3 Cir. 11/2/05), 916 So.2d 1226, writ denied, 05-2506 (La.3/31/06), 925 So.2d 1261.

Putting aside for the moment the question of whether an assignment of error is necessary to preserve appellate review of an issue, Uniform Rules — Courts of Appeal, Rule 2-12.4 further provides that “[a]ll specifications or assignments of error must be briefed” and that the “court may consider as abandoned any specification or assignment of error which has not been briefed.” Based upon that rule, this court has time and again stated that “[w]here a party advances no argument whatsoever for one of [its] alleged specific assignments of error, the court may consider that assignment of error abandoned.” Velazquez v. Landcoast Insulation, Inc., 08-804, p. 8 (La.App. 3 Cir. 12/10/08), 999 So.2d 318, 323, writ denied, 09-66 (La.3/6/09), 3 So.3d 490. See also, Friendship Hunting Club v. Lejeune, 08-671 (La.App. 3 Cir. 12/10/08), 999 So.2d 216, writ denied, 09-79 (La.3/13/09), 5 So.3d 121; DeBaillon v. Consol. Operating Co., Inc., 07-1117 (La. App. 3 Cir. 1/30/08), 975 So.2d 682; Smith v. Morris & Dickson, 05-1120 (La.App. 3 Cir. 3/1/06), 924 So.2d 1217.

Notwithstanding Lucinda’s failure to abide by Uniform Rules — Courts of Appeal, Rules 1-3 and 2-12.4, even should we find that the issue of prescription is properly before us, we are still faced with the fact that she failed to brief that issue. Under well-settled jurisprudence interpreting Uniform Rules — Courts of Appeal, Rule 2-12.4, we find Lucinda’s failure to advance any argument whatsoever on the propriety of the trial court’s granting of the peremptory exception of prescription constitutes an abandonment of that issue.

It is well settled that “[t]he function of the peremptory exception is to have the plaintiffs action declared legally nonexistent, or barred by effect of law, and hence this exception tends to dismiss or defeat the action.” La. Code Civ.P. art. 928. It is likewise well established that the peremptory exceptions of no cause of action and prescription are distinct pleas. Succession of Thompson, 191 La. 480, 186 So. 1 (1938). Moreover, the peremptory “exception of no cause of action can not be made to fill the place of an exception or plea of prescription.” Id. at 8. Applying this body of law and Lucinda’s abandonment of the prescription issue, we find that the portion of the trial court’s judgment granting Mr. Landry’s peremptory exception of prescription has become final. See La.Code Civ.P. art. 1841; La.Code Civ.P. art. 2087. As such, regardless of how we might assess Lucinda’s argument about abandonment and the propriety of the trial court’s granting of the peremptory exception of no cause of action, the peremptory exception of prescription defeats Lucinda’s claim against Mr. Landry. Accordingly, we pretermit any discussion of Lucinda’s assignment of error regarding abandonment and its basis for her attack against the trial court’s | granting of Mr. Landry’s peremptory exception of no cause of action. To do otherwise would require us to render an advisory opinion “from which no practical results can follow.” Wood v. Fontenot, 04-1174, p. 4 (La.App. 3 Cir. 3/2/05), 896 So.2d 323, 326, writ denied sub nom. City of New Iberia v. New Iberia Fire and Police Civil Serv. Bd., 05-801 (La.5/13/05), 902 So.2d 1023.

DECREE

For the foregoing reasons, the appeal of Lucinda Charles is dismissed. All costs of this appeal are assessed to Lucinda Charles.

APPEAL DISMISSED.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

      .According to the petition, the transfer of the home’s ownership occurred without the knowledge, consent, or authorization of the FHA.

      . See Civil Docket No. 92-1724 filed in the Fifteenth Judicial District Court in Lafayette Parish, Louisiana, entitled U.S., Dep’t of Agrie., Farmers Home Admin, v. Landry.

      . The record does include a copy of a motion to dismiss the foreclosure suit which FHA filed; however, the motion is silent as to the reason why FHA desired to dismiss its suit.

      . The record contains two transcripts reflecting proceedings had on March 30, 2009. In the first transcript, beginning on page sixty of the record, the matter was reset to April 27, 2009. Accordingly, we have assumed, for purposes of this opinion, that the transcript beginning on page sixty-five of the record reflects the proceedings had on April 27, as opposed to March 30, 2009.

        . An exception to this statement is provided for when an appellant chooses to limit the issue(s) for the appellate court to decide by designating record portions and by stating the points relied upon. See La.Code Civ.P. arts. 2128, 2129.

      . For an interesting discussion of the seeming conflict between La.Code Civ.P. art. 2129 and the Uniform Rules — Courts of Appeal, see Judge Pro Tempore Culpepper’s partial dissent in Mayo v. Nissan Motor Corp. in U.S.A., 93-852 (La.App. 3 Cir. 6/22/94), 639 So.2d 773, writs granted and remanded, 94-1978, 94-1990 (La. 11/11/94), 644 So.2d 661.


source: Caselaw Access Project

author: GENOVESE, Judge.

license: Public Domain

text:
    TYCO VENTURES, L.L.C. v. Joshua WIGGINS, et al.
    No. 09-1168.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 2010.

      Robert G. Nida, Gold, Weems, Bruser, Sues & Rundell, Alexandria, LA, for Defendants/Appellants, H.C. Corbitt, III, and Corbitt Manufacturing Co., Inc.
    John W. Munsterman, The Munsterman Law Firm, George C. Gaiennie, III, Gaien-nie Law Firm, L.L.C., Alexandria, LA, for Plaintiff/Appellee, TYCO Ventures, L.L.C.
    Joshua Wiggins, Winnsboro, LA, In Proper Person.
    Court composed of JAMES T. GENOVESE, SHANNON J. GREMILLION, and DAVID E. CHATELAIN, Judges.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   GENOVESE, Judge.

_JjH.C. Corbitt, III, and Corbitt Manufacturing Company, Inc. (hereinafter collectively referred to as Corbitt), appeal a judgment rendered against them and in favor of TYCO Ventures, L.L.C., in the amount of $30,000.00 as general damages for the wrongful conversion of a tractor. For the following reasons, we affirm the judgment of the trial court.

PROCEDURAL BACKGROUND

TYCO Ventures, L.L.C. (TYCO), filed a Petition for Order of Possession on October 26, 2007, against Joshua Wiggins, Cor-bitt Manufacturing Company, Inc., and H.C. Corbitt, III, asserting that it had purchased “a Case [International Harvester] 7140[t]ractor bearing [s]erial [n]umber JJA001824” from Defendant, Joshua Wiggins, on July 19, 2007. TYCO alleged that subsequent to its purchase of said tractor, “Joshua Wiggins ... delivered possession of the [Case tractor] to Corbitt ...” without TYCO’s consent.

Corbitt filed an Answer to Petition for Order of Possession on January 18, 2008, admitting “on information and belief’ TYCO’s assertion that TYCO had purchased the Case tractor from Mr. Wiggins on July 19, 2007. However, Corbitt’s answer also asserted “they [were] not in possession of the tractor at issue in this litigation, nor aware of its current whereabouts, and [were] unable to surrender possession of same.”

Mr. Wiggins filed an Answer, Defenses, and Reconventional Demand on May 5, 2008. As an affirmative defense, Mr. Wiggins asserted that TYCO failed to state a claim upon which relief could be granted; however, “if [TYCO] was damaged, the ^alleged damages were due to the actions, contributory negligence[,] or comparative fault, conduct or negligence of Dean Tyler [].... ” Mr. Wiggins also alleged “that Dean Tyler ... received the sum of $6,000[.00] for the [Case] tractor.” In answer to TYCO’s petition, Mr. Wiggins denied delivering the Case tractor to Corbitt without TYCO’s consent. In fact, in his answer, Mr. Wiggins admits that he “delivered the [Case] tractor to Corbitt Manufacturing” and that said delivery “was made expressly upon instructions from Dean Tyler.” In his reconventional demand, Mr. Wiggins alleged:

On or about July 19, 2007, after entering into the act of sale with ... [Mr.] Tyler, [Mr.] Tyler instructed [him] to take the [Case] tractor at issue to Cor-bitt Manufacturing and secure a loan of $6,000[.00] against the [Case] tractor. In doing so, the [Case] tractor was transferred to the possession of Corbitt Manufacturing with the permission and knowledge of ... [Mr.] Tyler.
[Mr. Wiggins] did as instructed by Mr. Tyler and received a check in the amount of $6,000[.00] made payable to [Mr.] Tyler for the [Case] tractor.
[Mr. Wiggins] delivered the check from Corbitt Manufacturing to [Mr.] Tyler.
[Mr. Wiggins] avers that he acted only on the instruction of Mr. Tyler and [Mr.] Tyler had complete and full knowledge of the transaction as it was carried out in accordance with his personal instructions.

Mr. Tyler denied the allegations made by Mr. Wiggins. Specifically, Mr. Tyler responded by stating that “at no time and under no circumstances did he instruct, authorize or direct [Mr.] Wiggins to take the [Case] tractor which [Mr.] Wiggins sold to [TYCO] Ventures, L.L.C. on July 19, 2007 to Corbitt Manufacturing for the purpose of securing a loan of $6,000.00 against the [Case] tractor.”

laTYCO amended its petition on September 30, 2008, to include a prayer for damages from Mr. Wiggins and Corbitt for their alleged conversion of the Case tractor.

On October 7, 2008, Corbitt filed an Answer to Amending and Supplemental Petition wherein they stated:

Corbitt Manufacturing Company, Inc. on July 19, 2007, was in possession of the tractor under [a] security agreement creating a security interest in the tractor perfected by possession and that any subsequent purchaser of the tractor acquired the same subject to the perfected security interest of Corbitt Manufacturing, Inc. Corbitt Manufacturing Company, Inc. is entitled to be paid in full for all sums secured by its possessory security interest in the tractor in connection with any surrender of the tractor to any alleged purchaser of it.

On the same day, Corbitt also filed an Amended Answer to Original Petition wherein they alleged:

On June 18, 2007, Corbitt ... loaned to [Mr.] Wiggins the sum of $4,000[.00], and in connection therewith secured a security agreement of the same date and received possession of the [Case] tractor.
On July 27, 2007, Corbitt ... loaned to [Mr.] Wiggins $6,000[.00], and secured a security agreement on that date and retained possession of the tractor, giving Corbitt a possessory security interest in the tractor.
Under ... La. R.S. 10:9-313 and 10:9-320, Corbitt had a perfected pos-sessory security interest in the [Case] tractor and [TYCO] purchased the [Case] tractor subject to Corbitt’s pos-sessory security interest in it.
Corbitt is entitled to be paid all amounts secured by its possessory interest in the [Case] tractor before it can be compelled to surrender possession of the [Case] tractor to [TYCO].

Mr. Wiggins filed an Answer to Supplemental Petition on October 8, 2008. In his answer, Mr. Wiggins alleged that “[a]t all times relevant herein, [Mr.] Tyler ... was aware that the tractor in question was located on the premises of Corbitt.... ”

On December 3, 2008, a trial on the merits was held, after which the trial court | Requested post-trial memoranda and took the matter under advisement. The trial court issued Written Reasons on April 9, 2009, wherein it ruled, in pertinent part:

The [c]ourt finds that Joshua Wiggins did in fact sell the tractor in question to Dean Tyler on July 19, 2007.
The [c]ourt finds that Dean Tyler did not allow or authorize Mr. Wiggins to use the tractor as collateral to secure a $6,000.00 loan from Corbitt Manufacturing, Inc. made to Joshua Wiggins.
The [cjourt finds that as a matter of law and fact Joshua Wiggins had no right to grant a security interest in the tractor to Corbitt as the tractor was not owned by Mr. Wiggins at the time he sought to grant the security interest.
The [cjourt therefore finds that Cor-bitt could not have obtained a security interest in the tractor.
The more difficult issue is whether Wiggins and Corbitt conspired to convert or otherwise interfere [with TYCO’s] ownership of the tractor.
The [cjourt finds that the evidence shows that H.C. Corbitt and Corbitt Manufacturing, Inc. obtained possession of the property of Tyco (Tyler) in an unlawful and unauthorized manner. The evidence is clear that Corbitt and/or Corbitt Manufacturing, Inc. removed the tractor from the state to control possession of the tractor. Joshua Wiggins/or Corbitt have refused to return the tractor. Therefore, the [cjourt finds that the tractor was converted by Corbitt and Corbitt Manufacturing, Inc.
The [cjourt finds therefore that Wiggins and Corbitt and Corbitt Manufacturing, Inc. conspired to convert the tractor owned by Tyler to Corbitt.
The [cjourt therefore awards damages to Tyco and Tyler in the amount of $30,000.00, plus interest from the date of judicial demand until paid. In addition, the [cjourt assesses court costs against the [Djefendants. The [cjourt also finds that Wiggins, Corbitt and Corbitt Manufacturing, Inc. are solidarity liable for this amount.

A judgment to this effect was signed on April 24, 2009. Corbitt filed a suspensive appeal.

ASSIGNMENT OF ERROR

Corbitt assigns as error: “The trial court erred in finding that Corbitt converted 15the Case tractor.” The issue of damages has not been raised and is not before this court.

LAW AND DISCUSSION

In Glod v. Baker, 08-355, p. 10 (La.App. 3 Cir. 11/19/08), 998 So.2d 308, 317, writ denied, 08-2937 (La.2/20/09), 1 So.3d 497, this court set forth the applicable appellate standard of review:

A trial court’s factual determination is subject to the manifest error standard of review. Bellard v. Am. Cent. Ins. Co., 07-1335, 07-1399 (La.4/18/08), 980 So.2d 654. The issue to be resolved by the reviewing court is whether the fact finder’s conclusion was a reasonable one. Id.
Conversion consists of an act in derogation of plaintiffs possessory rights. Angelo and Son, Inc. v. Rapides Bank & Trust Co., 95-992 (La.App. 3 Cir. 4/10/96), 671 So.2d 1283, writs denied, 96-1173, 96-1204 (La.6/21/96), 675 So.2d 1083. Any wrongful exercise or assumption of authority over another’s goods, depriving him of possession, permanently or for an indefinite period of time, is conversion. Id.

Corbitt, in brief, contends that the issue before this court is whether “one holding a possessory security interest in an untitled movable, which security interest was granted by the ostensible owner of the movable, [can] convert the movable by failing to return it to the true owner until the secured debt has been satisfiedf.]”

The evidence and testimony in the record reveal that Mr. Wiggins had two loans with First South Production Credit (First South): (1) a farming equipment loan; and (2) a logging equipment loan. Mr. Tyler guaranteed Mr. Wiggins’ logging equipment loan; however, much of the equipment which secured his farming equipment loan, which included the Case tractor, also secured his logging equipment loan. Some time in July of 2007, Mr. Tyler was notified that Mr. Wiggins’ farming | r,equipment loan was due. As guarantor of the logging equipment loan, and aware that Mr. Wiggins had cross-collateralized much of his equipment, Mr. Tyler approached Mr. Wiggins with an offer in an effort to avoid legal action being taken by First South.

The arrangement between Mr. Tyler and Mr. Wiggins resulted in three separate transactions, all executed on July 19, 2007. First, TYCO purchased twelve farming implements, including the Case tractor, from Mr. Wiggins for $23,160.S4. Second, Tyler Timber, Inc. purchased eight logging implements from Mr. Wiggins by assuming his mortgage on same with First South. Third, Tyler Timber, Inc. and Mr. Wiggins executed an Equipment Lease with Option to Purchase, whereby Mr. Wiggins leased nine logging implements from Mr. Tyler for forty-five monthly payments of $5,000.00 beginning July 19, 2007.

Prior to Mr. Tyler’s purchase of the Case tractor, Mr. Wiggins used the Case tractor as collateral for a $4,000.00 loan from Corbitt on June 18, 2007. According to the testimony of Mr. Wiggins, Corbitt was repaid through weekly installments of $1,000.00 which were deducted from Mr. Wiggins’ logging operations. The final payment on this $4,000.00 loan was made to Corbitt on July 20, 2007.

Mr. Wiggins claimed that, pursuant to the Equipment Lease with Option to Purchase, he needed $6,000.00 to make the first payment on his lease of the logging equipment; therefore, he borrowed $6,000.00 from Corbitt. Mr. Wiggins testified that Mr. Tyler knew that he was borrowing money from Corbitt for this purpose and “he knew I was using the [Case] tractor as collateral for $6,000.00.” According to Mr. |7Wiggins, he did not directly receive this money from Corbitt; instead, “[Corbitt] asked [him] how [he] wanted the cheek made out and [he] told them they could make it out to Dean Tyler or Tyler Timber Inc....” Mr. Wiggins testified that around August 15, 2007, Mr. Tyler picked up all of the logging equipment which prevented him from both logging and paying off Corbitt. However, Mr. Wiggins denied ever granting Corbitt the authority to either use the Case tractor or to take it out of Louisiana.

Mr. Tyler testified that on the morning of July 19, 2007, prior to purchasing the farming and logging implements from Mr. Wiggins, he went to Mr. Wiggins’ farm located on Palmer Chapel Road and personally inspected the equipment. In particular, Mr. Tyler inspected the Case tractor. According to Mr. Tyler, he discovered that the Case tractor was no longer at Mr. Wiggins’ farm within a few days thereafter. When he questioned Mr. Wiggins as to its whereabouts, Mr. Tyler learned that Mr. Wiggins had brought the Case tractor to Corbitt to secure a loan for his logging operation. Mr. Tyler denied telling Mr. Wiggins to pledge the Case tractor as collateral for any loan from Corbitt.

Mr. Tyler claims that he then called H.C. Corbitt, III, on July 24, 2007. According to Mr. Tyler, his conversation with Mr. Corbitt went as follows:

“I informed Mr. [Corbitt] that I had bought the [Case] tractor from [Mr. Wiggins] on July the 19th, and I requested him to bring the tractor back because I needed it to get it ready to [sell]. [Mr. Corbitt] informed me that[ ] he had six thousand dollars that he had given Josh and he was going to hold the tractor as collateral.... ”

On cross-examination, Mr. Tyler testified that by the terms of the Equipment Lease with Option to Purchase, Mr. Wiggins was to pay him $5,000.00 per month, not $6,000.00 as stated by Mr. Wiggins. Instead, Mr. Tyler contends that the | s$6,000.00 he received from Corbitt was for leasing the 1997 KMC Skidder.

Lee Bathall, plant manager of Corbitt’s Louisiana division, testified that Corbitt obtained possession of the Case tractor in June of 2007. Contrary to Mr. Tyler’s testimony, Mr. Bathall claimed that the Case tractor did not leave Corbitt’s facility in Monroe until August of 2007. According to Mr. Bathall, he learned from Mr. Corbitt that Mr. Wiggins had sold the Case tractor after “Mr. Tyler called [Mr. Corbitt] and said that he owned the tractor.” Mr. Bathall also recalled that Cor-bitt gave Mr. Wiggins the $6,000.00 loan on July 27, 2007.

The evidence and testimony indicates that the $4,000.00 loan that Mr. Wiggins obtained from Corbitt was paid in full by Mr. Wiggins on July 20, 2007. This is before the date that Mr. Tyler claims that he informed Mr. Corbitt that TYCO, not Mr. Wiggins, owned the Case tractor and that he wanted it returned to him immediately. The evidence and testimony also indicates that Mr. Wiggins signed a Loan Agreement with Corbitt for the $6,000.00 he borrowed on July 27, 2007. According to Mr. Tyler’s testimony, this occurred after he told Mr. Corbitt that TYCO, and not Mr. Wiggins, owned the Case tractor.

Having reviewed the record, we find no error in the trial court’s rejection of Cor-bitt’s argument that they had a valid security interest in the Case tractor. When Mr. Wiggins paid off the $4,000.00 loan to Corbitt on July 20, 2007, Corbitt’s valid security interest was terminated. When Mr. Wiggins obtained the $6,000.00 loan from Corbitt on July 27, 2007, Mr. Wiggins was no longer the owner of the Case tractor and did not have the right to grant a security interest in the Case tractor to Corbitt. According to Mr. Tyler, he personally notified Mr. Corbitt of this fact on July 24, 2007. Therefore, Corbitt’s conversion of the Case tractor began with Mr. laCorbitt’s refusal to return the Case tractor on July 24, 2007.

After reviewing the evidence, we find the trial court’s decision was reasonable in light of the record. The factual findings set out in the Written Reasons are accurate interpretations of the evidence. Additionally, the credibility of the parties involved in these proceedings is at issue. The standard of review for courts of appeal for reviewing credibility is well established.

[W]here there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.... Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong....

Robin v. Allstate Ins. Co., 03-1009, 03-926, p. 4 (La.App. 3 Cir. 3/24/04), 870 So.2d 402, 406, writ denied, 04-1383 (La.9/24/04), 882 So.2d 1143 (quoting Rosell v. ESCO, 549 So.2d 840, 844 (La.1989) (citations omitted)). It is clear that the trial court made demeanor and credibility determinations based upon the conflicting testimony. Recognizing that the trier of fact is in the best position to assess the demeanor and judge the credibility of witnesses when there is conflicting testimony, we cannot say that the trial court was manifestly erroneous or clearly wrong in determining that Corbitt wrongfully converted the Case tractor owned by TYCO.

DECREE

For the foregoing reasons, we affirm the judgment of the trial court. All costs of these proceedings are assessed against Defendants/Appellants, H.C. Corbitt, III, and Corbitt Manufacturing Company, Inc.

AFFIRMED.

      . H.C. Corbitt, III, is the President/Director of Corbitt Manufacturing Company, Inc.

      . A. Dean Tyler is the President of Tyler Timber, Inc. and New Way Investments, Inc., both of which are Officers of Plaintiff, TYCO Ventures, L.L.C.

      . At all times referenced herein, Mr. Tyler acted in a representative capacity for TYCO Ventures, L.L.C and/or Tyler Timber, Inc.

      . These funds paid off Mr. Wiggins’ farming equipment loan with First South.

      . One noteworthy implement included in the Equipment Lease with Option to Purchase is a 1997 KMC Skidder.


author: LOLLEY, J.

text:
    Kerry RAINWATER, Plaintiff-Appellee, v. TANGO TRANSPORT, Defendant-Appellant.
    No. 45,041-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    March 10, 2010.

      Mayer, Smith & Roberts by J. Kris Jackson, Kim Purdy-Thomas, Shreveport, for Appellant.
    Street & Street by C. Daniel Street, Monroe, for Appellee.
    Before GASKINS, PEATROSS and LOLLEY, JJ.
   LOLLEY, J.

| ,In this workers’ compensation claim, defendants, Tango Transport (“Tango”) and its workers’ compensation insurance carrier, Liberty Mutual, appeal the decision of the Office of Workers Compensation, First District East, Parish of Ouachi-ta, State of Louisiana, which found in favor of claimant, Kerry Rainwater. For the following reasons, we affirm.

FACTS

Claimant-appellee, Kerry Rainwater, worked for appellant, Tango, as a long-haul eighteen-wheeler truck driver beginning in August 2007. On January 29, 2008, Rainwater picked up a load of steel bars in Gary, Indiana to take to Laredo, Texas. Because of the wintry conditions, he covered the load with a tarp to protect it from the weather. Outside of Gary, Indiana, the tarp came off the load and Rainwater had to “re-tarp” the load which took close to 45 minutes to complete. According to Rainwater, his hands started to hurt due to the weather exposure. Since his hands still hurt the next day, Rainwater went to Provena Medical Center in Urbana, Illinois. The doctors diagnosed the condition as “pre-frostbite” and Rainwater was told not to work “with [his] hands for two days.” Despite this, Rainwater completed the trip and returned home to Monroe, Louisiana. Rainwater filed a Disputed Claim for Compensation on April 9, 2008.

After a hearing, the Workers’ Compensation Judge (“WCJ”) found that a 12work-related accident occurred; ordered retroactive payment of Total Temporary Disability (“TTD”) benefits from January 29, 2008, through February 2009; and, awarded Supplement Earnings Benefits (“SEBs”) thereafter. The WCJ also found that Rainwater was entitled to medical treatment for his hands. The WCJ awarded penalties in the amount of $2,000.00 for failure to provide medical treatment and $2,000.00 for failure to pay indemnity benefits and attorney’s fees in the amount of $10,000.00. This appeal ensued.

LAW AND DISCUSSION

Work-Related Accident

Factual findings in a workers’ compensation cases are subject to manifest error. Seal v. Gaylord Corp., 1997-0688 (La.12/02/97), 704 So.2d 1161. In applying the manifest error/clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Stobart v. State through Dept. of Tramp, and Devel opment, 617 So.2d 880 (La.1993). A plaintiff in a workers’ compensation action has the burden of establishing a work-related accident by a preponderance of the evidence. Graham v. Nissan, 89,656 (La. App. 2d Cir.06/29/05), 907 So.2d 213.

The worker’s testimony alone may be sufficient to satisfy this burden, | ¡¡provided that two elements are satisfied: first, there must be no other evidence which discredits or casts serious doubt on the worker’s version of the incident; and, second, the worker’s testimony must be corroborated by the testimony of fellow workers, his spouse and other close family members, friends, or the introduction of medical evidence. Kidd v. Brown Radiator & Frame, 38,729 (La.App. 2d Cir.12/22/04), 890 So.2d 796, writ denied, 2005-0172 (La.03/24/05), 896 So.2d 1042.

Whether the claimant has carried his burden of proof and whether testimony is credible are questions of fact to be determined by the WCJ. Lewis v. Chateau D’Arbonne Nurse Care Center, 38,394 (La. App. 2d Cir.04/07/04), 870 So.2d 515. Furthermore, the question of whether a claimant is entitled to compensation benefits is also a question of fact, and a WCJ’s determination may not be disturbed on appeal absent manifest error. Jones v. Hollywood Casino Shreveport, 42,819 (La.App. 2d Cir.12/05/07), 972 So.2d 1189.

According to Tango, Rainwater never reported any accident or injury to Tango, nor did he submit any medical bills to his employer or his employer’s workers’ compensation carrier. Tango further contends that the only evidence of a work-related accident is the claimant’s own testimony which is contradicted in several instances. We disagree.

| .[The record reflects that Rainwater testified that while in Laredo, Texas, he called a Tango dispatcher, whom he thought was Enrique Gonzales, to ask for assistance in taking off the tarp on his truck. Rainwater further explained that instead of making the delivery to the customer, he went to Tango’s yard, located in Laredo, for assistance from Tango personnel to help remove the tarps. Tango did not present evidence to refute the actual call to the dispatcher or the stop made at the yard. Tango does assert that Enrique Gonzales, whom Rainwater specifically identified, had been terminated from Tango a month earlier and could not have been the dispatcher-this is not dispositive. We find, as the WCJ did, that Rainwater’s testimony was credible. In addition to his testimony, the medical reports from Prove-na Medical Center in Urbana, Illinois corroborate the date of admittance and the diagnosis of “pre-frostbite.” Finally, the termination papers clearly stated:

“driver got frostbite on previous load while tarping. Has not gotten released from doctor and has exceeded days out. Driver was working with risk management and HR to resolve issue.”

This evidence, arguably, rises to the level of an admission by Tango in that the “frostbite” was work-related and the company was on notice. Accordingly, we do |snot find that the WCJ was manifestly erroneous in finding that Rainwater’s injury was compensable.

Tango makes much of the fact that Rainwater submitted his bills to his personal health insurer, not Tango or Liberty Mutual. Rainwater explained his valid reasons, namely that he had already been denied coverage by Tango, e.g. the emergency room bills had not been paid, and he needed to mitigate his situation. Again, we do not find Tango’s argument persuasive.

Medical and Compensation Benefits

Rainwater was awarded medical treatment related to his frostbite. Rainwater’s physicians clearly attribute the current limited use of his hands to the frostbite. Tango failed to provide evidence to the contrary. Based on the finding that there was a work-related injury and that Tango was aware of the issue, we agree that Rainwater is entitled to pursue further treatment he was erroneously denied. Furthermore, because he was physically unable to engage in any employment for a period of time, we agree that Rainwater is entitled to TTD benefits beginning January 29, 2008, through the time he found other employment. La. R.S. 23:1221(l)(c).

As a result of the limited use of his hands, Rainwater found employment elsewhere since he did not feel comfortable or safe driving an eighteen-wheeler on Lthe road. SEBs are to compensate the injured employee for the wage earning capacity he has lost as a result of his accident. La. R.S. 23:1221(3)(a). In order to defeat the employee’s claim for SEBs or establish the employee’s earning capacity, employer must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his community or reasonable geographic region. Lee v. Heritage Manor of Bossier City, 41,858 (La.App. 2d Cir.03/14/07), 954 So.2d 276, writ denied, 2007-0736 (La.05/18/07), 957 So.2d 157; Banks v. Industrial Roofing & Sheet Metal Works, Inc., 1996-2840 (La.07/01/97), 696 So.2d 551. Tango failed to present any evidence that Rainwater could perform a certain job, nor did Tango offer him an alternative job. Accordingly, we agree with the WCJ that Rainwater is entitled to SEBs.

Penalties and Attorney’s Fees

Tango also argues that it had articulable and objective reasons for denying payment of benefits to Rainwater, and, as such, should not have been penalized with attorney fees and penalties. We disagree. Penalties and attorney’s fees may be awarded for failure to provide payment of indemnity or medical benefits. La. R.S. 23:1201(F); Moore v. Transmissions, Inc., 41,472 (La.App. 2d Cir.09/27/06), 940 So.2d 694. It is a well-established jurisprudential principle that |7the determination of whether an employer is to be assessed attorney’s fees and penalties is a question of fact and the WCJ’s findings shall not be disturbed absent manifest error. Alford v. Acadian Ambulance Service, 1996-639 (La.App. 3d Cir.11/06/96), 682 So.2d 942.

Here, as the WCJ noted, Tango did not investigate the matter despite the evidence of a “work-related” accident. Tango was clearly identified as the employer/guarantor on the initial emergency room bill in Illinois, which was ultimately denied and sent directly to Rainwater. In fact, the bill indicates there was an “adjustment” to the total amount due in light of workers’ compensation identification. Also, as stated earlier, Rainwater’s discharge papers noted the reasons for his termination specifically that Rainwater “got frostbite on previous load while tarping.” Tango employees at the yard actually saw Rainwater’s situation when he sought help with his load; however, there is nothing in the record evidencing that interviews were conducted.

We also note there are discrepancies as to why Rainwater eventually chose medical leave under the Family Medical Leave Act versus workers’ compensation leave and whether he was misinformed about his options. We need not investigate this further, since the record clearly indicates that Tango imprudently relied on other superficial reasons to prevent Rainwater from receiving the benefits he was ^entitled to. In light of the evidence, we find that the WCJ correctly awarded penalties and attorney’s fees against Tango.

CONCLUSION

For the foregoing reasons, we affirm the WCJ’s judgment in its entirety. Costs of this appeal are assessed to Tango Transport.

AFFIRMED.

      . However, there may have been a Reuben Gonzales and an Enrique Sanchez who worked at Tango at the time.


author: WALLER, Chief Justice,

text:
    MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. Bill ANDERSON.
    No. 2009-JP-01880-SCT.
    Supreme Court of Mississippi.
    April 22, 2010.

      Darlene D. Ballard, attorney for appellant.
    James K. Dukes, Hattiesburg, attorney for appellee.
   WALLER, Chief Justice,

for the Court:

¶ 1. The Mississippi Commission on Judicial Performance initiated these proceedings against Lamar County Justice Court Judge Bill Anderson. The Commission recommends that Judge Anderson be publicly reprimanded, suspended from the office of justice court judge for thirty days without pay, and assessed costs of $100. We agree and adopt the Commission’s recommendations.

FACTS

¶2. Regarding the two separate complaints against Judge Anderson, the Commission and Judge Anderson executed the following Agreed Statement of Facts, which the Commission found supported by clear and convincing evidence.

No. 2008-169
Respondent, in his official capacity as Justice Court Judge, on or about April 1, 2008, presided over three cases: (1) Don and Shirley Jones vs. Sheila A. Saucier, Docket No. 239, Page No. 341, (2) Don and Shirley Jones vs. Al Saucier, Docket No. 239, Page No. 342, and (3) Don and Shirley Jones vs. Ashley Anderson, Docket No. 239, Page No. 343, wherein each defendant was charged with malicious mischief. The Jones allege the defendants on three separate occasions removed the survey flags and rods from their property each time they had it surveyed. At the trial, Respondent called the parties to the bench and advised them that they needed to be better neighbors. Respondent further advised the parties that the case was a line dispute and chancery court matter, and thereafter, dismissed all three cases. After the hearing, Respondent talked and exchanged pleasantries with the defendants.
On or about April 30, 2008, Don Jones was involved in a physical altercation ■with Albert Saucier which resulted in bodily injury to both parties, as well as Jones’ daughter, Suzanne Jones. Don Jones’ injuries resulted in his hospitalization. Based upon the aforementioned physical altercation the Respondent, in his official capacity as Justice Court Judge, on or about May 15, 2008 presided over three other cases involving the same parties: (1) Al Saucier vs. Donald Jones, Docket No. 245, Page No 35, (2) Donald, Jones vs. Al Saucier, Docket No. 245, Page No. 36, and (3) Suzanne Jones vs. Al Saucier, Docket No. 245, Page No. 37, wherein each defendant was charged with simple assault. Cases (1) and (2) were put on hold by Respondent pending the outcome in the chancery court case involving the line dispute. The file in case (3) reflects that the charge against Al Saucier is simply “pending.”
In the matter of Donny Pittman vs. Donald Jones, Docket No. 248, Page No. 128, on or about July 10, 2008, Don Jones was involved in a verbal altercation -with Donny Pittman, a family member of Al Saucier. Jones called the Lamar County Sheriffs Department and deputies responded and defused the situation advising the parties to go to their respective homes for the evening; all parties complied. Pittman later spoke ex parte’ with Respondent about the incident. Consequently, Respondent signed an arrest warrant and advised deputies of the Lamar County Sheriffs Department to arrest Don Jones for simple assault by threat and to be held ■with no bond. The following day, Respondent set Jones’ bond at $1,000.00. Jones retained an attorney and the matter is reflected as “pending” in the case file.
The next day, on or about July 11, 2008, Respondent sat in on a hearing in the Chancery Court involving the land dispute between the parties, styled Donald O. Jones & Shirley Jones vs. Ronald Eugene Anderson, Alfred Saucier, Shelia Saucier, John Ashley Anderson and Tiffany Anderson, Civil Action No. 2008-232-G-F, in which Chancellor Eugene L. Fair, Jr. presided. The facts at issue involved the same parties and many similar facts at issue in the justice court still pending befoi’e Respondent. During the hearing, Respondent sat in the back of the courtroom. At one point during the hearing, Respondent stated that he had set Jones’ bond at $1,000.00 but intended to drop it to $500.00. Both during and after the Chancery hearing, the Respondent was again observed talking and exchanging pleasantries with the defendants and their family members.
No. 2009-044
The Respondent, in his official capacity as Justice Court Judge, on or about November 20, 2008, presided over the initial appearance of the defendant, Jeffery W. Smith on the charge of Possession of Precursors, Docket No. 251, Page No. 293. Respondent set Mr. Smith a bond in the amount of $250,000.00.
Thereafter, on or about December 23, 2008, counsel for the defendant, Michael D. Mitchell filed a Motion for Bond Reduction and Notice of Hearing. The bond reduction hearing was held in camera on or about December 30, 2008. At the hearing, Mr. Mitchell, Lamar County Prosecutor Dawn H. Beam, and Respondent agreed to reduce the defendant’s bond to $30,000.00. Respondent consented to signing an order to that effect. However, after the conclusion of the hearing the Respondent received information ex parte that defendant was allegedly threatening the Respondent and a law enforcement officer with bodily harm. Based upon that ex parte information Respondent then refused to reduce the defendant’s bond as agreed at the hearing.
On or about January 20, 2009, Respondent presided over the defendants’s preliminary hearing and found probable cause to believe the defendant did commit the crime of Possession of Precursors. However, at the hearing, though no affidavit or formal charge had been filed, Respondent allowed extensive testimony regarding the alleged threats made by defendant against Respondent and the officer. Based upon all of the evidence presented, Respondent bound the defendant over to the next Grand Jury and ordered him held without bond. On or about February 20, 2009, Habeas Corpus relief was granted the defendant by the Circuit Court of the 15th District of Mississippi and defendant was allowed a bail of $30,000.
Thereafter, on or about April 22, 2009, the defendant was indicted on the charge of Possession of Precursors with Intent, State of Mississippi vs. Jeffery Smith, Cause No. 2009K-94H, in the Circuit Court of the 15th District of Mississippi. Lamar County Circuit Court Judge Prentiss G. Harrell allowed the defendant’s bond to remain at $30,000.00.

Commission Findings of Fact and Recommendation 2-7.

¶ 3. The Commission and Judge Anderson agree that, by engaging in the aforementioned conduct, Judge Anderson has violated Canons 1, 2A, 2B, 3B(1), 3B(2), 3B(7), 3B(8), and 3E(1) of the Code of Judicial Conduct. Judge Anderson also recognizes that his actions were improper and constitute misconduct. The Commission and Judge Anderson also agree that the above conduct violates Section 177A of the Mississippi Constitution of 1890, as amended, “as said conduct constitutes willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute.” Judge Anderson also agreed that he will not engage in such behavior in the future.

STANDARD OF REVIEW

¶ 4. This Court conducts a de novo review of judicial misconduct proceedings, while affording deference to the Commission’s recommendations when the Commission’s findings are based on clear and convincing evidence. While we give great deference to the Commission’s findings, we also are charged to render an independent judgment. In essence, this Court serves as the “the trier of fact,” since we have the sole power to impose sanctions in judicial misconduct cases. Miss. Comm’n on Judicial Performance v. Thompson, 972 So.2d 582, 585 (Miss.2008) (internal citations and quotations omitted).

ANALYSIS

¶ 5. Section 177A of the Mississippi Constitution provides the authority for this Court to sanction judges of this state. Specifically, Section 177A states:

On recommendation of the commission on judicial performance, the Supreme Court may remove from office, suspend, fine or publicly censure or reprimand any justice or judge of this state for: (a) actual conviction of a felony in a court other than a court of the State of Mississippi; (b) willful misconduct in office; (c) willful and persistent failure to perform his duties; (d) habitual intemperance in the use of alcohol or other drugs; or (e) conduct prejudicial to the administration of justice which brings the judicial office into disrepute; and may retire involuntarily any justice or judge for physical or mental disability seriously interfering with the performance of his duties, which disability is or is likely to become of a permanent character.

Miss. Const, art. 6, § 177A (emphasis added).

I. WHETHER THE CONDUCT OF THE RESPONDENT, JUSTICE COURT JUDGE BILL ANDERSON, CONSTITUTED WILLFUL MISCONDUCT IN OFFICE AND CONDUCT PREJUDICIAL TO THE ADMINISTRATION OF JUSTICE WHICH BROUGHT THE JUDICIAL OFFICE INTO DISREPUTE, PURSUANT TO SECTION 177A OF THE MISSISSIPPI CONSTITUTION OF 1890, AS AMENDED.

¶ 6. The Commission found by clear and convincing evidence that Judge Anderson’s conduct violated Canons 1, 2A, 2B, 3B(1), 3B(2), 3B(7), 3B(8), and 3E(1) of the Code of Judicial Conduct. Further, the Commission found by clear and convincing evidence that Judge Anderson had engaged in willful misconduct and conduct prejudicial to the administration of justice which brings the judicial office into disrepute in violation of the provisions of the Mississippi Constitution. This Court has held:

Willful misconduct in office is the improper or wrongful use of power of his office by a judge acting intentionally or with gross unconcern for his conduct and generally in bad faith. It involves more than an error of judgment or a mere lack of diligence. Necessarily, the term would encompass conduct involving moral turpitude, dishonesty, or corruption, and also any knowing misuse of the office, whatever the motive.... Willful misconduct in office of necessity is conduct prejudicial to the administration of justice that brings the judicial office into disrepute.

Miss. Com/m’n on Judicial Performance v. Roberts, 952 So.2d 934, 938-41 (Miss.2007) (quoting Miss. Comm’n on Judicial Performance v. Carr, 786 So.2d 1055, 1058-59 (Miss.2001)). This Court also has recognized that a judge’s conduct need not be intentional, willful, or in bad faith for it to be sanctionable. Negligence, ignorance, and incompetence are conduct sufficient to be prejudicial to the administration of justice which brings the judicial office into disrepute. See, e.g., In re Quick, 553 So.2d 522 (Miss.1989); In re Bailey, 541 So.2d 1036 (Miss.1989); In re Baker, 535 So.2d 47 (Miss.1988); In re Collins, 524 So.2d 553 (Miss.1987); In re Stewart, 490 So.2d 882 (Miss.1986); In re Garner, 466 So.2d 884 (Miss.1985); and In re [Lloyd] Anderson, 412 So.2d 743 (Miss.1982).

¶ 7. Judge Anderson has agreed to the Commission’s findings of fact and recommendation and has joined the Commission’s motion for approval of recommendations. Further, Judge Anderson acknowledges that he engaged in the conduct in violation of the Code of Judicial Conduct. As there is no dispute of relevant facts and because Judge Anderson admits that his actions were in violation of the judicial canons, we must determine the appropriate sanctions.

II. WHETHER PUBLIC REPRIMAND, SUSPENSION FROM OFFICE AND ASSESSMENT OF COSTS ARE APPROPRIATE SANCTIONS.

¶ 8. Judge Anderson is accused of violating Canons 1, 2A, 2B, 3B(1), 3B(2), 3B(7), 3B(8), and 3E(1) of the Code of Judicial Conduct. Canon 1 requires that a judge “shall uphold the integrity and independence of the judiciary.” The other canons state, in relevant part:

CANON 2
A judge shall avoid impropriety and the appearance of impropriety in all activities.
A. A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
B. Judges shall not allow their family, social, or other relationships to influence the judges’ judicial conduct or judgment. Judges shall not lend the prestige of their offices to advance the private interests of the judges or others; nor shall judges convey or permit others to convey the impression that they are in a special position to influence the judges. Judges shall not testify voluntarily as character witnesses.
CANON 3
A judge shall perform the duties of judicial office impartially and diligently.
B. Adjudicative Responsibilities.
(1) A judge shall hear and decide all assigned matters within the judge’s jurisdiction except those in which disqualification is required.
(2) A judge shall be faithful to the law and maintain professional competence in it. A judge shall not be swayed by partisan interests, public clamor, or fear of criticism.
(3) A judge shall require order and decorum in proceedings before the judge.
(7) A judge shall accord to all who are legally interested in a proceeding, or their lawyers, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding except that:
(a) where circumstances require, ex parte communications for scheduling, administrative purposes or emergencies that do not deal with substantive matters or issues on the merits are authorized: provided:
(i) the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication, and
(ii) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication and allows an opportunity to respond.
(b) Judges may obtain the advice of a disinterested expert on the law applicable to a proceeding before them if the judges give notice to the parties of the person consulted and the substance of the advice, and afford the parties reasonable opportunity to respond.
(c) A judge may consult with court personnel whose function is to aid the judge in carrying out the judge’s adjudicative responsibilities or with other judges.
(d) A judge may, with the consent of the parties, confer separately with the parties and their lawyers in an effort to mediate or settle matters pending before the judge.
(e)A judge may initiate or consider any ex parte communications when expressly authorized by law to do so.
(8) A judge shall dispose of all judicial matters promptly, efficiently and fairly.
E. Disqualification.
(1) Judges should disqualify themselves in proceedings in which their impartiality might be questioned by a reasonable person knowing all the circumstances or for other grounds provided in the Code of Judicial Conduct or otherwise as provided by law, including but not limited to instances where:
(a) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentia-ry facts concerning the proceeding;
(b) the judge served as lawyer in the matter in controversy, or a lawyer ■with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;
(c) the judge knows that the judge, individually or as a fiduciary, or the judge’s spouse or member of the judge’s family residing in the judge’s household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;
(d) the judge or the judge’s spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
(i) is a party to the proceeding, or an officer, director, or trustee of a party;
(ii) is acting as a lawyer in the proceeding;
(iii) is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;
(iv) is to the judge’s knowledge likely to be a material witness in the proceeding;

¶ 9. Additionally, in Mississippi Commission on Judicial Performance v. Gibson, 883 So.2d 1155 (Miss.2004), this Court listed the following factors, which we use when determining the appropriate sanctions (the “Gibson factors”):

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

Gibson, 883 So.2d at 1158. This Court is not required to follow the Commission’s recommended sanctions. In re Collins, 524 So.2d 553 (Miss.1987). However, this Court has stated that “[t]he sanction imposed should be consistent with other cases and ‘ought to fit the offense.’ ” Bailey, 541 So.2d at 1039.

¶ 10. Here, based on the aforementioned, agreed-upon findings of fact, the Commission charged Judge Anderson with the following violations.

The Respondent failed to issue rulings in cases, refused to rule in certain criminal cases pending the outcome of a non-issue related Chancery Court case, engaged in ex parte communication with a litigant and based upon that information issued an arrest warrant, held a defendant without bond on a non-capital offense, acquired ex parte information by sitting in on a Chancery Court hearing involving parties that have cases pending before him in Justice Court, improperly reduced a defendant’s bond, behaved with impropriety or the appearance of impropriety toward certain litigants and/or persons related to litigants that have cases pending in his court, refused to reduce a defendant’s bond based upon information he received ex parte and allowed testimony at a defendant’s preliminary hearing about “alleged threats” that were supposedly made against the Respondent by the defendant. Such allegations erode the public’s perception of the integrity and impartiality of the judiciary.

¶ 11. The Commission supports its recommended sanctions by citing various cases in which the judge engaged in similar conduct as Judge Anderson and thus received similar sanctions. See Miss. Comm’n on Judicial Performance v. Sutton, 985 So.2d 322 (Miss.2008) (judge publicly reprimanded and assessed costs of $1,900.89 for ex parte communications, entering orders based on ex parte information, and neglecting to promptly dispose of judicial matters); Miss. Comm’n on Judicial Performance v. Roberts, 952 So.2d 934 (Miss.2007) (justice court judge publicly reprimanded, suspended for thirty days, fined $1,500, and assessed costs of $100 for improperly issuing arrest warrants, revoking probation, and ordering defendant acquitted of DUI charges not to drive for two years); Miss. Comm’n on Judicial Performance v. Britton, 936 So.2d 898 (Miss.2006) (judge publicly reprimanded, suspended for thirty days, and assessed costs for ex parte communications and setting aside default judgment based on ex parte information); Miss. Comm’n on Judicial Performance v. McPhail, 874 So.2d 441 (Miss.2004) (justice court judge publicly reprimanded, suspended for thirty days, and assessed costs of $401.14 for backdating judgment, entering judgments without notice to a party, ex parte communications, and untimely rendering decisions); Miss. Comm’n on Judicial Performance v. Per-due, 853 So.2d 85 (Miss.2003) (youth court judge suspended for thirty days and assessed costs of $888.22 for issuing ex parte temporary custody order); and Miss. Comm’n on Judicial Performance v. Pey-ton, 812 So.2d 204 (Miss.2002) (justice coui't judge suspended for thirty days and assessed costs of $100 for conducting ex parte hearing and appointing daughter as public defender).

¶ 12. The Commission also made the following findings regarding the Gibson factors, to which Judge Anderson agreed.

1. The length and character of the judge’s public service.
The Respondent has served as Justice Court Judge in Lamar County, Mississippi for 19 years. There is nothing in the record to determine any other actions or deeds of Respondent in public service.

2. Whether there is any prior case law on point.

[See case law cited above.]

3. The magnitude of the offense and the harm suffered.

The Respondent failed to issue rulings in cases, refused to rule in certain criminal cases pending the outcome of a non-issue related Chancery Court case, engaged in ex parte communication with a litigant and based upon that information issued an arrest warrant, held a defendant without bond on a non-capital offense, acquired ex parte information by sitting in on a Chancery Court hearing involving parties that have cases pending before him in Justice Court, improperly reduced a defendant’s bond, behaved with impropriety or the appearance of impropriety toward certain litigants and/or persons related to litigants that have cases pending in his court, refused to reduce a defendant’s bond based upon information he received ex parte and allowed testimony at a defendant’s preliminary hearing about “alleged threats” that were supposedly made against the Respondent by the defendant. Such allegations erode the public’s perception of the integrity and impartiality of the judiciary.

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

The Commission took informal Commission action against the Respondent in three separate matters, Commission File Nos. 1991-027, 1993-020, and 1998-313. The conduct of the Respondent in Commission File Nos. 1993-020, where the Commission cautioned the Respondent about avoiding the appearance of impropriety, and 1998-313, wherein the Respondent was warned about involving himself in a matter pending in Chancery Court, is similar to the behavior in the instant case. Also, in Mississippi Commission on Judicial Performance v. Bill Anderson, 691 So.2d 1019 (Miss. 1996), a case for which no written opinion was published, the Mississippi Supreme Court ordered that the Respondent be publicly reprimanded, fined $500.00 and assessed the cost of the proceeding. The Respondent also received a private admonishment in Inquiry Concerning a [Judge] No. 2009-036 for conduct unrelated to this case.

5. Whether “moral turpitude” was involved.

No moral turpitude was involved.

6. The presence or absence of mitigating or aggravating circumstances. Aggravating circumstances are present in that Respondent's] actions reflect adversely on the independence, propriety and impartiality of the judiciary. Mitigating circumstances include the fact that Respondent acknowledged his inappropriate conduct by entering into the Agreed Statement of Facts and Proposed Recommendation with the Commission.

¶ 13. Based on Judge Anderson’s improprieties and the Commission’s consideration of the Gibson factors, all of which the Commission found by clear and convincing evidence, the Commission recommended that Judge Anderson be (1) publicly reprimanded, (2) suspended from the office of justice court judge for thirty days without pay, and (3) assessed costs of $100.00.

¶ 14. This is not Judge Anderson’s first time to be sanctioned for the same or similar conduct, as evidenced by the Commission’s findings under the fourth Gibson factor. These previous sanctions stemmed from conduct that is the same as or very similar to Judge Anderson’s misconduct in the instant case. Because of Judge Anderson’s prior warnings, cautions, reprimands, and fines, we think it is appropriate to increase the sanctions. To accomplish this, the Commission has suggested the additional sanction of a thirty-day suspension without pay, to which Judge Anderson has agreed. We concur with the Commission and adopt the Commission’s recommendation.

CONCLUSION

¶ 15. We find that Judge Anderson’s violation of the various judicial canons we have discussed constitutes willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute. Therefore, his misconduct is sanctionable pursuant to Section 177A of the Mississippi Constitution of 1890, as amended. Therefore, we grant the Joint Motion for Approval of Recommendations Filed by the Mississippi Commission on Judicial Performance, and order that Anderson be publicly reprimanded, suspended from the office of Lamar County Justice Court judge for a period of thirty days without pay, and taxed with the costs of this proceeding in the amount of $100.

¶ 16. JUDGE BILL ANDERSON, JUSTICE COURT JUDGE FOR LAMAR COUNTY, SHALL BE PUBLICLY REPRIMANDED BY THE PRESIDING JUDGE OF THE LAMAR COUNTY CIRCUIT COURT IN OPEN COURT WHEN THE VENIRE PANEL MEETS ON THE FIRST DAY OF THE NEXT TERM OF THAT COURT AFTER THIS DECISION BECOMES FINAL, AND HE SHALL BE SUSPENDED FROM THE OFFICE OF LAMAR COUNTY JUSTICE COURT JUDGE FOR A PERIOD OF THIRTY (30) DAYS WITHOUT PAY. ANDERSON IS ASSESSED COSTS IN THE AMOUNT OF $100.

CARLSON AND GRAVES, P.JJ, RANDOLPH, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR. DICKINSON, J., NOT PARTICIPATING.