                         IN THE SUPREME COURT OF MISSISSIPPI

                                    NO. 2003-CA-02653-SCT

MARK HATHCOCK

v.

SOUTHERN FARM BUREAU CASUALTY
INSURANCE COMPANY, MISSISSIPPI FARM
BUREAU CASUALTY INSURANCE COMPANY,
SOUTHERN FARM BUREAU LIFE INSURANCE
COMPANY, MISSISSIPPI FARM BUREAU MUTUAL
INSURANCE COMPANY AND ANTHONY
CHRISTIAN

DATE OF JUDGMENT:                             11/05/2003
TRIAL JUDGE:                                  HON. JERRY O. TERRY, SR.
COURT FROM WHICH APPEALED:                    HARRISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                       JOE SAM OWEN
ATTORNEYS FOR APPELLEES:                      DALE GIBSON RUSSELL
                                              CHARLES G. COPELAND
NATURE OF THE CASE:                           CIVIL - INSURANCE
DISPOSITION:                                  AFFIRMED - 03/17/2005
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



      EN BANC.

      RANDOLPH, JUSTICE, FOR THE COURT:

¶1.   This appeal arises out of a suit brought by Mark Hathcock (“Hathcock”) against

Southern Farm Bureau Casualty Insurance Company, Mississippi Farm Bureau Casualty

Insurance Company, Southern Farm Bureau Life Insurance Company, Mississippi Farm Bureau

Mutual Insurance Company and Anthony Christian1 (collectively “Farm Bureau”) in the Circuit

      1
          Farm Bureau’s District Sales Manager.
Court of Harrison County, Mississippi, for wrongful discharge, breach of contract, and tortious

interference with a business contract.        After summary judgment was granted in favor of Farm

Bureau, Hathcock learned of a potential conflict of interest involving the trial judge and Farm

Bureau.       Hathcock filed a motion for relief under Rule 60(b) of the Mississippi Rules of Civil

Procedure and Rule 1.15 of the Uniform Circuit and County Court Rules requesting that the

trial judge recuse himself and the order granting summary judgment be set aside.            The trial

court denied Hathcock’s motion.          It is from this ruling that Hathcock now appeals and asserts

as error the trial court’s denial of his motion for relief.

                                FACTS AND PROCEDURAL HISTORY

¶2.       On June 16, 2000, Farm Bureau terminated the employment of Hathcock. Hathcock

brought suit against Farm Bureau seeking damages for wrongful discharge, breach of contract

and tortuous interference with a business contract. Farm Bureau answered and filed a motion

for summary judgment.2         On June 24, 2003, Circuit Court Judge Jerry O. Terry, entered his

order and judgment granting Farm Bureau’s motion for summary judgment.

¶3.       Hathcock’s attorney claims he was informed on or about September 18, 2003, that Jerry

O. Terry, Jr., son of Judge Terry, was employed in a supervisory capacity in the Regional

Claims Office in Laurel, Mississippi. On October 3, 2003, Hathcock filed a motion for relief

under Rule 60(b) of the Mississippi Rules of Civil Procedure and under Rule 1.15 of the

URCCC, requesting that the trial court vacate and set aside the summary judgment and transfer


          2
       Christian filed a separate answer and defenses, but joined in the motion for
summary judgment.

                                                        2
the case to another judge.

¶4.         On November 5, 2003, Judge Terry entered an order denying Hathcock’s motion for

relief. In the order, Judge Terry stated that his son was employed by Farm Bureau since 1987

as a claims representative and was serving in the capacity of the District Claims Representative

in Laurel, Mississippi at the time Hathcock’s complaint was filed. Judge Terry’s son does not

and has not ever supervised claims handled in the counties within the Second Judicial District

where Judge Terry sits. Judge Terry stated that for approximately twenty years prior to taking

his judicial seat in 1987, he represented Farm Bureau in all of the counties in the Second

District.     While Judge Terry informed the parties of his relationship with Farm Bureau in all

other cases where Farm Bureau was a litigant or insurer for the purpose of providing an

opportunity for recusal requests, the record reflects that:      (1)   he failed to disclose that

information in this case, and (2) this is the probably the first time Hathcock’s attorney has

appeared before Judge Terry. Hathcock timely brings this appeal and asserts that the trial court

erred in denying his motion for relief under M.R.C.P. 60(b) and URCCC 1.15.           Specifically,

Hathcock argues that the trial judge should have recused himself, vacated and set aside the

order granting summary judgment in favor of Farm Bureau, and transferred the case to another

circuit court judge.

                                            DISCUSSION

¶5.         On review of a denial of a motion to recuse, this Court “will not order recusal unless

the decision of the trial judge is found to be an abuse of discretion.” M.R.A.P. 48B. See also

Bredemeier v. Jackson, 689 So. 2d 770, 774 (Miss. 1997) (citing Davis v. Neshoba County

                                                  3
Gen. Hosp., 611 So. 2d 904, 905 (Miss. 1992)) (where this Court stated: “This Court reviews

a judge’s refusal to recuse himself using the manifest error standard”).         The Court will not

reverse the ruling on the motion for recusal unless the trial judge abused his discretion in

overruling the motion. Bredemeier, 689 So. 2d at 774 (citations omitted).

        I. Timeliness of Appeal.

                A. Appeal as of Right Under Rule 4.

¶6.     Hathcock requests that this Court vacate and set aside the order granting summary

judgment in favor of Farm Bureau and transfer the case to another judge. Hathcock appeals the

trial court’s grant of summary judgment under M.R.A.P. 4.          Rule 4 provides the guidelines for

timely filing of an appeal of right. The appellant must file the notice of appeal with the clerk

of the trial court within thirty (30) days after the date of entry of the judgment or order from

which the appeal arises. M.R.A.P. 4. Hathcock clearly met the 30 day requirement. The trial

court denied the motion for relief on November 5, 2003, and Hathcock filed his notice of

appeal on December 4, 2003, exactly twenty-nine (29) days later.

                B. Denial of Recusal Under Rule 48B.

¶7.     Farm Bureau contends that Hathcock’s motion is not timely under M.R.A.P 48B, which

governs proceedings on a motion for disqualification of a trial judge.         When a circuit court

judge denies a motion for his recusal, the moving party may, within fourteen (14) days

following the judge’s ruling, seek review of the judge’s action by this Court. M.R.A.P. 48B.

The parties in the case sub judice seek interpretation on the application of 48B, specifically

challenging the circumstances under which this rule applies.

                                                    4
¶8.      Despite the undisputable fact that Hathcock filed a timely appeal under M.R.A.P. 4,

Farm Bureau argues that Hathcock’s appeal is barred under M.R.A.P. 48B because he filed his

appeal twenty-nine (29) days after the trial court’s issuance of summary judgment.           As an

emanation from the separation of powers doctrine, this Court has the inherent power to

prescribe rules of procedure for Mississippi courts.     Newell v. State, 308 So. 2d 71 (Miss.

1975).     The meaning of “judicial power” as listed in the Mississippi Constitution of 1890

includes the power to make rules of procedure. Miss. Const. art. VI, § 144. This Court has the

power to proscribe the Rules of Appellate Procedure, and the Court will not indulge the

suggestion to read the rules in such a way as to unnecessarily cause conflict between them.

Under M.R.A.P. 4, using the language “shall,” requires a party to file notice of appeal within

30 days, while M.R.A.P. 48B, using the language “may,” permits a party to seek review within

14 days. Hathcock’s appeal is timely because it was filed in accordance with M.R.A.P. 4.

         II. Denial of Hathcock’s Motion for Relief.

¶9.      “[T]his Court presumes that a judge, sworn to administer impartial justice, is qualified

and unbiased.” Turner v. State, 573 So. 2d 657, 678 (Miss. 1990) (emphasis added). “To

overcome the presumption, the evidence must produce a ‘reasonable doubt’ (about the validity

of the presumption); that is, one must question whether ‘a reasonable person, knowing all of

the circumstances, would harbor doubts about the [judge’s] impartiality.’”            Id. (citations

omitted). This presumption is overcome only by showing beyond a reasonable doubt that the

judge was biased or unqualified. Upton v. McKenzie, 761 So. 2d 167, 172 (Miss. 2000).



                                                 5
¶10.    This Court has held in numerous cases that the “evidence presented must produce a

reasonable doubt as to a judge’s impartiality.” Dodson v. Singing River Hosp. Sys., 839 So.

2d 530, 533 (Miss. 2003); see also Tubwell v. Grant, 760 So. 2d 687, 688 (Miss. 2000);

Beyer v. Easterling, 738 So. 2d 221, 228 (Miss. 1999); Walls v. Spell, 722 So. 2d 566, 571

(Miss. 1998).     Impartiality is viewed under the “totality of the circumstances” analysis using

an objective reasonable “person, not a lawyer or judge,” standard. Dodson, 839 So. 2d at 534

(citing Collins v. Joshi, 611 So. 2d 898, 903 (Miss. 1992) (Banks, J., concurring)) (emphasis

in original). In Dodson, this Court stated:

                 Surely, it could not have been intended that the standard for recusal be so
        stringent as to warrant the criminal law “beyond a reasonable doubt” burden of
        proof.     Quoting Turner, we stated in Collins that “[t]o overcome the
        presumption, the evidence must produce a ‘reasonable doubt’ (about the validity
        of the presumption).” 611 So. 2d at 901. However, in the very next paragraph
        we stated, “This presumption may only be overcome by evidence showing
        beyond a reasonable doubt that the judge was biased or not qualified.” Id.
        (emphasis added). In Norton, we quoted Collins in applying the “beyond a
        reasonable doubt” burden. 742 So. 2d at 131. Also, in Upton, we cited
        Bredemeier and Turner as the sources of the beyond a reasonable doubt burden
        when both of those cases clearly applied the “produces a reasonable doubt”
        burden. Upton, 761 So. 2d at 172. See Bredemeier, 689 So. 2d at 774 (quoting
        Turner); Turner, 573 So. 2d at 678 (applying “must produce a reasonable
        doubt” burden).

                 The stringent “beyond a reasonable doubt” burden is, in our opinion,
        incompatible with the standard of a hypothetical “reasonable person knowing all
        the circumstances.” The proper standard is that recusal is required when the
        evidence produces a reasonable doubt as to the judge's impartiality. The
        misapplication of the “beyond a reasonable doubt” burden in the above-discussed
        cases was nothing more than a minor oversight and would have led to the same
        conclusion. We now clarify the burden of proof from what was previously
        stated in Upton, Norton, and Collins.



                                                 6
839 So. 2d at 533.

¶11.   “When a judge is not disqualified under the constitutional or statutory provisions, ‘the

propriety of his or her sitting is a question to be decided by the judge, and on review, the

standard is manifest abuse of discretion.’” Farmer v. State, 770 So. 2d 953, 956 (Miss.

2000) (quoting Ruffin v. State, 481 So. 2d 312, 317 (Miss. 1985)) (emphasis added).           In

determining whether a judge should have recused himself, this Court must consider the trial

in its entirety and examine every ruling to determine if those rulings were prejudicial to the

moving party. Jones v. State, 841 So. 2d 115, 135 (Miss. 2003) (citing Hunter v. State, 684

So. 2d 625, 630-31 (Miss. 1996)) (emphasis added).

¶12.   Hathcock argues that Judge Terry should have recused himself because of his prior

representation of Farm Bureau and his son’s employment relationship with Farm Bureau.

               A. Mississippi Constitution of 1890 and Mississippi Code
               Annotated.

¶13.   Article 6, Section 165 of the Mississippi Constitution of 1890 states in pertinent part:

       No judge of any court shall preside on the trial of any cause, where the parties
       or either of them, shall be connected with him by affinity or consanguinity, or
       where he may be interested in the same, except by the consent of the judge and
       of the parties.

(Emphases added). See also Cashin v. Murphy, 138 Miss. 853, 103 So. 787 (1925) (Judge

is not disqualified to sit in a case unless connected with a party by affinity or consanguinity,

or pecuniarily interested); see e.g. Nimocks v. McGehee, 97 Miss. 321, 52 So. 626 (1910)

(Justice of the peace disqualified under Article 6, Section 165 of the Mississippi Constitution



                                                 7
where his first cousin was the president of a corporation, which was one of the parties before

him).   “Affinity” is defined as: “relationship by marriage between a husband and his wife’s

blood relations or between a wife and her husband’s blood relations.”             Byrd v. Wallis, 182

Miss. 499, 181 So. 727, 732 (1938) (quoting Webster’s International Dictionary (2nd. ed)).

“Consanguinity” is defined as: “Kinship, blood relationship; the connection or relation of

persons descended from the same stock or common ancestor.” Wilmore v. State, 268 Ga.

App. 646, 648 602 S.E.2d 343, 345 (2004) (citations omitted).

¶14.    The Mississippi Code states:

        The judge of a court shall not preside on the trial of any cause where the
        parties, or either of them, shall be connected with him by affinity or
        consanguinity, or where he may be interested in the same, or wherein he may
        have been of counsel, except by the consent of the judge and of the parties.

Miss. Code Ann. § 9-1-11 (Rev. 2002) (emphases added). Had the Legislature of this State

desired to include prior representation of a party as grounds for disqualification, it could have

chosen to do so.

¶15.    There is no evidence that Judge Terry is connected with the parties through marriage

or blood. There is no evidence that Judge Terry may have had an interest in the outcome of the

proceeding, or that he is otherwise precluded by the statute.        It is only in causes wherein the

judge may have been of counsel3 that provides for disqualification.          It is abundantly clear that

Judge Terry was not required to disqualify himself under the Mississippi Constitution or



        3
          This Court has stated: “‘of counsel’ refers to one who actually participated in the prosecution
or defense of the case in controversy.” Turner, 573 So. 2d at 676 n. 9 (citations omitted).

                                                    8
Mississippi Code. See generally Miss. Const. art. VI, § 165; Miss. Code Ann. § 9-1-11.

               B. Code of Judicial Conduct , Uniform Circuit and County
               Court Rules, and Applicable Case Law.

¶16.   The Mississippi Code of Judicial Conduct provides the standard for disqualification of

judges. Code of Judicial Conduct, Canon 3(E).           Pursuant to Canon 3, subdivision E, of the

Code of Judicial Conduct, “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.”

(Emphasis added). Illustrative of that standard are several instances listed in Canon 3(E)(1)(a)-

(d) where the judge should recuse himself/herself, none of which are present here.

¶17.   Uniform Circuit and County Court Rule 1.15 states: “Any party may move for the

recusal of a judge . . . if it appears that the judge’s impartially 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.”

¶18.   In his order denying Hathcock’s motion for relief, Judge Terry stated:

                Plaintiff’s motion raises the issue concerning the presiding judge’s being
       related to an employee of Farm Bureau, and the failure of said judge to bring the
       relationship to the attention of the attorney who argued for Plaintiff in
       opposition to the motion for summary judgment.

                                                 ***

               Jerry O. Terry, Jr., is currently the District Claims Representative
       located in Laurel, MS, where he has been located for the past several years. He
       does not and has not supervised any claims handling in the counties making
       up the Second Circuit Court District which his father serves. For some 20
       years prior to his taking the bench in 1987, Judge Terry, himself, represented

                                                   9
        Farm Bureau in all counties of the Second Judicial Court District.

                In all other cases coming before Judge Terry since 1987, where it was
        known that Farm Bureau was a named party or where it was learned that
        Farm Bureau was the insurer of a litigant, Judge Terry has informed the
        attorneys and parties in such cases of the foregoing relationship for the
        purpose of allowing either party to suggest a need for recusal. Plaintiff filed
        this lawsuit filed [sic] August 18, 2000. This case was assigned to Judge Terry
        October 23, 2000. The summary judgment motion was filed more than two
        years later, on October 28, 2002, and was not heard and granted until June 2003.
        The docket reflects no action in court prior to the motion for summary
        judgment. When Plaintiff raised the issue in this motion, after judgment was
        entered against him, the Court reviewed the summary judgment hearing
        transcript to determine whether, prior to argument on the summary judgment
        motion, Judge Terry made his usual announcement regarding his
        relationship with Farm Bureau.          Since the transcript contains no such
        announcement, the Court assumes it inadvertently overlooked the point in
        this case. The Court further notes that this was probably the first appearance
        before this judge by the particular attorney who argued for Plaintiff.

                 The issue of “perception of impropriety” of a Judge is nebulous, to say
        the least, and in most instances it would be of no consequence to any party for
        the judge to promptly react to the issue by recusal and reassignment. However,
        now that this Court has entered summary judgment against Plaintiff, from which
        Plaintiff perfected no appeal, there is a consequence to be considered. Entry
        of summary judgment is reviewed on appeal de novo and unless there existe d a
        fact issue or the ruling judge misapplied the law, it should be upheld. . . . In this
        case, there was no issue of fact for the jury (which the Court assumes is why
        Plaintiff did not appeal), and the law of this State seems to be well-settled
        that Mississippi follows the doctrine of “employment-at-will” as between
        employer and employee.

                The perception of impropriety in this case might possibly appear if there
        were a fact issue to be decided and not simply an application. [sic] of existing
        legal principle. The application of the law being the sole complaint of the
        Plaintiff here, the Court finds it inappropriate to now set aside the judgment
        and recuse in order for another judge to apply the same well-established law
        to the same undisputed facts.

(First, second, third, fourth, fifth and seventh emphasis added).


                                                    10
¶19.    In reviewing Judge Terry’s grant of summary judgement to Farm Bureau, this Court

employs a de novo standard of review. Saucier ex rel. Saucier v. Biloxi Reg’l Med. Ctr., 708

So. 2d 1351, 1354 (Miss. 1998).           The trial court reviewed all proper documents associated

with summary judgment. See Id. (quoting Townsend v. Estate of Gilbert, 616 So. 2d 333, 335

(1993) (citations omitted)) (“‘This entails reviewing all evidentiary matters in the record:

affidavits, depositions, admissions, interrogatories, etc.’”).   Although the ruling on summary

judgement was prejudicial Hathcock, the trial court followed the correct legal standard

associated with same, and therefore, we find, as Judge Terry, that Farm Bureau was entitled to

summary judgment.        See Miss. R. Civ. P. 56(c) (proper to grant summary judgment “if the

pleadings, depositions, answers to interrogatories and admissions on file, together with

affidavits, if any, show that there is no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law”).

¶20.    The Code of Judicial Conduct addresses the situation where the relative of a judge has

an interest that could be substantially affected by the outcome of the case.        See Code of

Judicial Conduct, Canon 3(E)(1)(c).        Hathcock claims that Judge Terry should have recused

himself because his son, a district claims manager of Farm Bureau, had an interest in the

outcome of the litigation.     There is no evidence presented by Hathcock showing that Judge

Terry’s son had a “legal” interest that could be substantially affected by the outcome of this

proceeding. See Buchanan v. Buchanan, 587 So. 2d 892, 896 (Miss. 1991) (stating that the

“Canon’s concept of interest refers to a legal interest that will be affected by the final

judgment”).    Therefore, no objective reasonable person would conclude that Judge Terry was

                                                    11
not impartial.

¶21.    Canon 2(B) of the Code of Judicial Conduct states in pertinent part: “Judges shall not

allow their family, social, or other relationships to influence the judges’ judicial conduct or

judgment.”       (Emphasis added).   There is no evidence in the record from which a reasonable

person could conclude that his familial relationship influenced Judge Terry’s judgment in this

case.

¶22.    Canon 3(B)(1) of the Code of Judicial Conduct states: “A judge shall hear and decide

all assigned matters within the judge’s jurisdiction except those in which disqualification is

required.” (Emphases added). Under the facts and circumstances in this case, it is evident that

disqualification was not required.

¶23.    Subsection (E)(1)(a) of Canon 3 states that a judge should disqualify himself if “the

judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed

evidentiary facts concerning the proceeding.”    In the absence of a judge expressing a bias or

prejudice toward a party or proof in the record of such bias or prejudice, a judge should not

recuse himself. Here, we find no evidence in the record to support a finding that Judge Terry

had a personal bias or prejudice concerning a party or personal knowledge of disputed

evidentiary facts.

¶24.    Additionally, Subsection (E)(1)(b) of Canon 3 states that a judge should disqualify

himself if “the judge served as a 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 [the matter in

                                                 12
controversy].” However, the record does not support that Judge Terry served as a lawyer in the

matter, was previously associated with a lawyer who served in the matter in controversy, or was

a material witness or associated with a lawyer who was a material witness in the matter of

controversy.

¶25.    We note that the Commentary to Canon 3(E)(1) states that a judge should disclose on

the record such information that the judge believes the parties or their attorneys might

consider relevant to the question of his disqualification, notwithstanding the judge’s belief that

there is no real basis for disqualification. Judge Terry evidently believed he should follow his

longstanding practice of disclosing the aforementioned, notwithstanding the judge’s belief that

there is no real basis for disqualification.

¶26.    In this case, Judge Terry notes that since the record lacks such a disclosure, he

therefore assumes that he did not execute his self-imposed safeguard. A review of the record

does not reveal such a disclosure by Judge Terry of this fact, and therefore, we, as Judge Terry,

must assume he did not.          However, this is of no consequence because neither disclosure is

required, per se. See generally Miss. Const. art. VI, § 165; Miss. Code Ann. § 9-1-11; Code

of Judicial Conduct, Canon 3; URCCC 1.15.           Even had Judge Terry made the disclosure, the

ultimate result would be no different because there is no real basis for disqualification.

Assuming arguendo that Judge Terry’s failure to disclose would be error, it would be de

minimus at best, and therefore, harmless, as had Hathcock been informed of the son’s

employment and/or Judge Terry’s prior representation was neither a basis for disqualification

or recusal.     In the case sub judice, there are two undisputed facts, (1) Judge Terry’s prior

                                                  13
representation of Farm Bureau, and (2) Judge Terry’s son’s employment with Farm Bureau in

an unrelated capacity.     Hathcock has offered this Court no additional facts.            Accepting those

two facts together, does not create a reasonable doubt as to Judge Terry’s impartiality.

                C. Past Representation.

¶27.    It should be noted that no language can be found in the Mississippi Constitution of

1890, Mississippi Code Annotated, Code of Judicial Conduct or URCCC requiring, or even

suggesting, that a judge’s prior representation of a party, absent additional circumstances, is

a basis for recusal.     This relationship, standing alone, is an insufficient basis for recusal and

not supported by Article 6, Section 165 of the Miss. Const. of 1890, Miss. Code Ann. § 9-1-

11, Canon 3 of the Code of Judicial Conduct, URCCC 1.15 or applicable case law. It is evident

that no objective reasonable person could conclude otherwise.

                                           CONCLUSION

¶28.    We find that the Miss. Const. of 1890, the Miss. Code Ann., the Code of Judicial

Conduct, the URCCC, and applicable case law do not require Judge Terry to disclose these

relationships to the parties.    Furthermore, following a review of the case in its entirety and

examining Judge Terry’s rulings, we find that no objective reasonable person would question

Judge Terry’s impartiality, and any error that may have occurred was harmless beyond all

reasonable doubt.      Consequently, Judge Terry did not manifestly abuse his discretion in

denying Hathcock’s motion for relief.         The judgment of Harrison County Circuit Court is

affirmed.

¶29.    AFFIRMED.

                                                   14
     SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY, CARLSON AND
DICKINSON, JJ., CONCUR. DIAZ AND GRAVES, JJ., NOT PARTICIPATING.




                              15
