NATE ROLISON, Individually

Transcription

1 E-Filed Document Feb :22: CA Pages: 19 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI CASE NO CA I4-CA CLAYTON HINTON APPELLANT v. NATE ROLISON, Individually NATE ROLISON d/b/a/lincoln dlb!ailincoln ROAD AUTOPLEX; and CREDIT ACCEPTANCE CORPORATION APPELLEES LEES APPEAL FROM THE CIRCUIT COURT OF LAMAR COUNTY, MISSISSIPPI BRIEF OF APPELLEE NATE ROLISON, Individually NATE ROLISON d/b/a/ d!b!a! LINCOLN ROAD AUTOPLEX John G. Corlew (MSB # 6526) CORLEW MUNFORD & SMITH PLLC 4450 Old Canton Road; Suite 111 Post Office Box Jackson, MS Telephone: Facsimile: Carroll H. Ingram lngram (MSB # 3023) Jennifer Ingram Wilkinson (MSB# 99265) INGRAM & WILKINSON 2901 Arlington Loop (39401) Post Office Box Hattiesburg, MS Telephone: Facstmile: FacsImile:

2 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI CASE NO CA CLAYTON HINTON APPELLANT v. NATE ROLISON, Individually NA TE ROLISON d/b/a/lincoln ROAD AUTOPLEX; and CREDIT ACCEPTANCE CORPORATION APPELLEES CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the justices of the Supreme Court and/or the judges of the Court of Appeals may evaluate possible disqualification or recusal: 1. Clayton Hinton 2. Nate Rolison 3. Credit Acceptance Corporation 4. John G. Corlew; Corlew Munford & SmithPLLC (counsel for Nate Rolison) 5. Carroll Ingram and Jennifer Ingram Wilkinson, Ingram & Wilkinson ( counsel for Nate Rolison) 6. L. Clark Hicks, Jr. and R. Lane Dossett, Hicks Law Firm (counsel for Clayton Hinton) 7. Mark Tyson and Stephen Masley, McGlinchey Stafford, PLLC (counsel for Credit Acceptance Corporation) This the 6th day of February, Isl John G Corlew John G. Corlew Counsel for Nate Rolison 1

3 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS I TABLE OF CONTENTS ii TABLE OF CASES, STATUTES AND OTHER AUTHORITIES CITED III STATEMENT REGARDfNG ORAL ARGUMENT I STATEMENT OF THE ISSUE I Whether the Circuit Court correctly granted Rolison's Motion to Dismiss because Hinton's cause of action is barred by resjudicata STATEMENT OF THE CASE STATEMENT OF FACTS SUMMARY OF THE ARGUMENT ARGUMENT L The identity of subject matter was met because the same agreement was the subject of both suits n. The identity of cause of action was met because the claims comprise one transaction Il. IV. The identity of the Parties was met because all Hinton parties were in privity with one another and all Rolision parties were in privity with one another The identity of the quality or character of the person against whom tile claim is made was met because the named defendant is the same in each suit..... '. 13 CONCLUSION CERTIFICATEOFSERVICE I

4 TABLE OF CASES, STATUTES AND OTHER AI!THORITIES CITED CASES Beene v. Ferguson Automotive, Inc., 37 So.3d 695 (Miss.App.Ct. 2010) Brown v. Fe/sen, 442 U.S. 127,99 S.C!. 2205, 60 L.Ed.2d 767 (1979) Copiah Medical Assocs. V. Mississippi Baptist Health Sys., 898 So.2d 656 (Miss. 2005) I I Fason v. Trussell Enter., Inc., 120 So.3d 454 (Miss.App.Ct )... 9, 10,12,13 Global Oceanic Enter., Lnc. v. Hynum, 857 So. 2d 659 (Miss. 2003)... 8 Hanison v. Chandler-Sampson Ins., Lnc., 89 1 So.2d 224 (Miss. 2005) , 9, LO, I I Hill v. Carroll County, 17 So. 3d L081(Miss. 2009) 9 Jarrett v. Dillard, 2014 WL (Miss.App.C! 20 14) McCorkle v. LouMiss Timber Co., 760 So.2d 845, 856 (Miss.App.Ct. 2000) , I I Nevada v. United States, 463 U.S. 11 0, 103 S.C! 2906, 77 L.Ed.2d 509 (1983)

5 STATEMENT REGARDING ORAL ARGIJMENT The issue in this case is straightforward and simple. Appellee does not believe oral argument would significantly assist the decisional process. STATEMENT OF THE ISSUE Whether the Circuit Court correctly granted Rolison's Motion to Dismiss because Hinton' s cause of action is barred by resjudicata.

6 STATEMENT OF THE CASE On February 19, 2013 Clayton Hinton sued Nate Rolison and Credit Acceptance Corporation in Lamar County Circuit Court for breach of an August 1, 2009 "Lease of Property Agreement" (the "Circuit Court Action"). (Appellee R. Ex. 2, R.7-20; Appellee R. Ex. 3, R. 21). At the time, Hinton was Plaintiff in another action naming Nate Rolison as Defendant in the Chancery Court of Lamar County (the "Chancery Court Action"). The Chancery Court Action had been filed on April 13, 2012 and was amended on December 10, 2012 to include allegation of breach of the lease agreement which was the subject of the Circuit Court pleading. Hinton alleged: The parties entered into a contractual rental agreement whereby Defendants, Nate Rolison and/or Nate Rolison, Inc. d/b/a Lincoln Road Autoplex agreed to pay monthly rent in the amount of Seven Thousand Dollars ($7,000.00) per month. Defendants have defaulted under the terms of this agreement by failing to timely pay rent. (Appellee R. Ex. l, R. 565, 567). Rolison filed a motion to dismiss the Circuit Court Action contending that the Circuit Court was prohibited from taking jurisdiction over the litigation because of the prior action filed in Lamar County Chancery Court. (R ). Thereafter the parties agreed to mediate their disputes and all parties in all litigation pending between the Hinton interests and Rolison interests, except Wells Fargo Bank and Credit Acceptance Corporation participated.' At the May 9, 2013 mediation, the parties 1 Wells Fargo was dismissed by stipulation. Credit Acceptance Corporation was dismissed in the Circuit Court Action and is a party appellee in this appeal. Repreresented at the 2

7 executed a Memorandum Settlement Agreement which did not include the Circuit Court Action. (Appellee R. Ex. 4, R ). In June 2013 all parties who participated in the mediation signed a Mutual Release Agreement which, among other things, recited: The parties desire to resolve, settle and terminate all of their disputes with respect to the ownership of the subject property and all of the claims and counterclaims which were asserted in the referenced litigation, and could have been therein asserted, which the Hinton parties and the Rolison parties intend to be a complete accord and satisfaction by and between them. Appellee R. Ex. 5, R ). The Hinton parties included Clayton Hinton, his wife Zaffitt Hinton, his children Nathan Hinton and Seneca Eubanks, and two closely held Hinton family corporations, CZ, Inc., a Florida corporation and CNRS&Z, a Mississippi corporation. The Rolison parties were identified as Nate Rolison, his solely owned corporation Nate Rolison, Inc. and his employee Karen Chadwell. The Memorandum Settlement Agreement required that several actions be taken: ( 1) A mutually owned property in Laurel would be conveyed to Mr. Hinton and its Deed oftrustin the amountoftwo Hundred Trurty Five Thousand Dollars ($235,000.00) paid off. Mr. Rolison did that. (Tr. 64). (2) Nathan Hinton and Seneca Eubanks were to be paid One Hundred Thousand Dollars ($100,000.00). Mr. Rolison did that. (Tr. 64). mediation were Clayton Hinton, his children Nathan Hinton and Seneca Eubanks, his wife Zaffit Hinton and Hinton's closely held family corporations, CZ, Inc. And CNRS&Z, Inc. Nate Rolison, his solely owned corporation, Nate Rolison, Inc. and his employee Karen Chadwell were also represented at the mediation. 3

8 (3) Twenty Five Thousand Dollars ($25,000.00) in the registry of the Chancery Court was to be released to CNRS&Z. Mr. Rolison approved the judgment that allowed that to happen. (Tr. 64). (4) A Deed of Trust to Wells Fargo Bank was to be paid off in full. Mr. Rolison bid in the property at foreclosure 2 in the full amount of the indebtedness to Wells Fargo and more, creating a surplus, which is the subject of separate litigation between these parties. The Mutual Settlement Agreement was executed by all Hinton paities and all Rolison parties and a judgment of dismissal with prejudice of the Chancery Court Action was approved by counsel for the Rolison parties and the Hinton parties and entered on June 7, (Appellee R. Ex. 6, R ). Thereafter, on October 4 ~ 20 l 3 Rolison amended the motion to dismiss pending in the Circuit Court Action to plead res judicata. (R ). The Circuit Court granted judgment of dismissal on those grounds on February 24, 2014 (Appellant R. Ex. 7, R ). The Circuit Court further denied a motion filed by Hinton to reconsider. (Appellant R. Ex. 8, R ). This appeal followed. 2 The foreclosure was commenced immediately after the mediation and pending at the time of execution of the Mutual Settlement Agreement. 4

9 STATEMENT OF FACTS Clayton Hinton initiated multiple lawsuits against Nate Rolison which involved Mr. Hinton, his wife Zaffitt Hinton, his children Seneca Eubanks and Nathan Hinton and two closely held Hinton family corporations, CZ, Inc. and CNRS&Z, Inc. Hinton included as defendants Mr. Rolison, his solely owned corporation, Nate Rolison, Inc. and his employee, Karen Chadwell. 3 This appeal is from dismissal by the Circuit Court of a lawsuit alleging breach of contract with respect to a one page "Lease Property Agreement" executed by Hinton and CZ, Inc. as Lessors and Rolison d/b/a Lincoln Road Autoplex as Lessee. (AppellantR. Ex. 7, R ) agreement: Another of the Hinton actions against Rolison alleged breach of the same lease The parties entered into a contractual rental agreement whereby defendants, Nate Rolison and/or Nate Rolison, Inc. d/b/a Lincoln Road Autoplex agreed to pay monthly rent in the amount of Seven Thousand Dollars ($7,000.00) per month. Defendants have defaulted under the terms of this agreement by failing to timely pay rent. Chancery Court Action (Appellee R. Ex. l, R. 565, 567) The parties engaged in a mediation on May 9, 2013 which was not attended by Hinton's then counsel in this Circuit Court proceeding, Bradley Glaze. The Memorandum 3 Hinton included Wells Fargo as a defendant in one case, later dismissed by stipulation; and Credit Acceptance Corporation in this case. The Circuit Court dismissed Credit Acceptance Corporation. An appeal from that dismissal is pending in this appeal. 5

10 Settlement Agreement recited: The only remaining claims and causes of action among the parties are those contained in the civil action identified as Clayton Hinton v. Nate Rolison, Inc., fndividually; Nate Rolison Lincoln Road Alitoplex; and Credit Acceptance Corporation, Inc. (Appellee R. Ex. 4, R ) Rolison fulfilled all of the conditions of the Memorandum Settlement Agreement, including payment to and payment on behalf of the Hinton parties, in an amount of approximately Seven Hundred Eighty Five Thousand Dollars ($785,000.00), and conveyance to the Hinton parties of property in Laurel, Mississippi which Hinton describes as a part of the "Lincoln Road Autoplex" business. (Appellant Brief, p. 4). The parties entered a Mutal Release Agreement which recited: The parties desire to resolve, settle and terminate all of their disputes with respect to the ownership of the subject propelty and all of the claims and counterclaims which were asserted in the referenced litigation, and could have been therein asserted, which the Hinton parties and the Rolison parties intend to be a complete accord and satisfaction by and between them. (Appellee R. Ex. 5, R ) The parties entered an Agreed Judgment of Dismissal with prejudice of the Chancery Court Action which alleged breach of the alleged agreement between Hinton and Rolison. (Appellee R. Ex. 6, R ). Rolison amended a pending motion to dismiss the Circuit Court Action to allege res judicata. The motion was heard in Circuit Court on October 18, Mr. Glaze represented Hinton at that argument. The May 9,2013 Memorandum Settlement Agreement 6

11 was offered as an exhibit during the hearing. The Court in fact took a recess in order to review that document. (Tr. pp ) The Circuit Court entered a Judgment of Dismissal, reciting that: Hinton and Rolison have been involved in three other lawsuits involving Lincoln Road Autopiex. The claims Hinton pled in this action are identical to the claims he brought in one or more of those lawsuits that have been dismissed with prejudke. Accordingly, the claims Hinton exerts in the instant case are barred by the doctrine of res judicata. (Appellant R. Ex. 7, R ) Hinton fi led a motion to reconsider which was heard by the Circuit Court on May 12, Mr. Glaze did not participate. Hinton was represented by Misters Clark Hicks and Lane Dossett (Tr. 34). Mr. Hicks testified (Tr. p. 44, et seq.) and offered into evidence an exhibit constituting "an itemization of the misstatements made at tile October 18, hearing by counsel." (Appellant Brief, p. 6). The Circuit Court denied the motion to reconsider. SUMMARY OF THE ARGUMENT The Circu it Court Judge correctly found that the Circuit Court Action was barred by res judicata. The Judge found that "[t]he claims Hinton pled in this action are identical to the claims he brought in one or more of those lawsuits that have been dismissed with prejudice." (Appellant R.Ex. 7, R ). Atthe May 14, 2013 hearing, the CircuitJudge stated that the two cases had one common denomj nator, that being the "deterioration and 7

12 fight between two fonner partners and friends over property in a dealership and money." (Tr. 72: 23-26). The fact is that both the Chancery Court Action and Circuit Court Action alleged breach ofthe "Lease Property Agreement." When the Chancery Court Action was dismissed with prejudice, it barred re-litigation of the "Lease Property Agreement." The Circuit Court was correct in dismissing Hinton's Circuit Court Action. ARGUMENT The doctrine of res judicata operates to bar any claim in subsequent litigation that could have or should been brought in a prior cause of action. Harrison v. Chandler-Sampson Ins., Inc., 89 1 So.2d 224, 232 (Miss. 2005). In Brown v. Felsen, 442 U.S. 127, 131,99 S.Ct. 2205,2209,60 L.Ed.2d 767 (1979) the United States Supreme Court held [r]es judicata prevents litigation of all grounds from, or defenses to, recovery that were previously available to the parties, regardless of whether they were asserted or detennined in the prior proceeding. Jd. Whether to apply res judicata is a legal question which is reviewed on appeal de novo. Global Oceanic Enter., Inc. v. Hynum, 857 So. 2d 659, 661 (Miss. 2003). In order for res judicata to apply four identities are required "( I) identity of the subject matter of the action; (2) identity of the cause of action; (3) identity of the parties to the cause of action; and (4) identity of the quality or character of a person against whom the claim is made." Beene v. Ferguson Automotive, Inc., 37 So. 3d 695, 698 (Miss.App.Ct. 2010). 8

13 I. The Identity of Subject Matter was met because the same agreement was the subject of both suits. Both the Chancery Court Action and the Circuit Court Action involved the same Agreement, thus the identity of subject matter is met. Subject matter has been defined as the substance of the lawsuit. Hill v. Carroll County, 17 So. 3d 1081, 1086 (Miss. 2009). The Supreme Court found that when the claims in two cases were based on the same written insurance agreement, subject matter identity existed. Harrison, 89 1 So.2d at 233. See also (McCorkle v. LouMiss Timber Co., 760 So.2d 845, 856 (Miss.App.Ct. 2000) (finding subject matter identity when both causes of action involve the same contract). Likewise, in Fason, the Court found identity of subject matter although the first suit involved collections and the second suit was for malicious prosecution, false imprisonment and abuse of process because the crux of both was the collection of money. Fason v. Trussell Enter.. Inc., 120 So.3d 454, 459 (Miss.App.Ct. 2013). When two cases involved the same method of restraint by deputies, identity of subject matter existed. Hill, 17 So. 3d at When two cases involved the same injury and how it is compensated, subject matter identity existed. Jarrett v. Dillard, 2014 WL * 4 (Miss.App.Ct 2014). Both the Chancery Court Action and Circuit Court Action alleged breach of an alleged August 2009 Agreement between Hinton and Rolison. Paragraph 6 of the Circuit Court Complaint refers to the lease which Hinton complains was breached in the Chancery Court 9

14 Action. (Appellant R. Ex. 2, R. 9). In both cases, Hinton claims injury because of Rolison's alleged breach of that Agreement. Hinton wants to label the Chancery Court Action as a mere "land dispute" and the Circuit Court Action as the "partnership case", RegardJess of the label, both encompass alleged injuries flowing from the same Agreement. The Circuit COUll below found that the identity of subject matter had been met. II. The Identity of Cause of Action was met because the claims comprise one transaction. Identity of the cause of action exists because the claims asserted in both cases arise out of the same nucleus of operative facts and comprise one transaction. The cause of action in each suit must be the same, or as further defined by this Court as being the same set of "underlying facts and circumstance upon which a claim has been brought". Fason, 120 So. 3d at 459. Courts are instructed to look past the legal theories asserted and to the factual and transactional relationship between the two causes of action. ld. This transactional approach is defined as [C]auses of action are the same if they arise from the same "transaction"; whether they are products of the same "transaction " is to be detennined by "giving weight to such considerations as whether the facts are related in time, space, origin or motivation, whether they fonn a convenient trial unit, and whether their treatment as a unit confonns to the parties' expectations or husiness understanding or usage. Harrison, 89 1 So.2d at 234 (quoting Nevada v. United States, 463 U.S. 110, 113, 103 S.Ct 2906,77 L.Ed.2d 509 (1983)) 10

15 The Court of Appeals has found that the identity of cause of action existed when botll suits involved proof of an Agreement, the meaning afthe Agreement, and the actions of the parties under the agreement. McCorkle. 760 So. 2d at 856. In an interiocutoly appeal based on competing circuit and chancery cases, the Supreme Court discussed res judicata and stated: because both cases involve the alleged breach afthe same lease agreement, the parties are identical, and each action seeks to determine tjle parties' contractual rights and responsibilities under the contract, the elements of res judicata are met. Copiah Medical Assocs. v. Mississippi Baptist Health Sys., 898 So.2d656, 663 (Miss. 2005). The same statement can be made about the case before this Court. A claim is barred under the doctrine of res judicata even when a plaintiff is prepared in the second action to "( I)[t]o present evidence or grounds or theories of the case not presented in the first action, or (2) [t]o seek remedies or forms of re lief not demanded in the first action." Harrisoll, 891 So.2d at 236. The Court has held that "where one has a choice of recovery for a given wrong, they may not assert them serially in successive actions but must advance all at once. Jd. The cause of action in both su its arises out of the same transaction and have the same origin, that being the lease agreement. Hinton attempts in the second su it to present ev idence and theories that he could have and should have presented in the first. The Circuit Court found that the cla ims arose from the same nucleus of operative facts and comprise one II

16 transaction when it stated that they had one common denominator, a fi ght over money and property. The Circuit Court correctly found that the identity of subject matter had been met. III. The Identity of the Parties was met because all Hinton parties were in privity with one another and all Rolision parties were in privity with one another. lil order to find identity of parties, strict identity is not necessary as long as a party is in "pri vity' wi th a named defendant. Fason, 120 So. 3d at 460. Privity has been defined as a word which expresses the idea that as to certain matters and in certain circumstances persons who are not parties to an action but who are connected with it in their interest are affected by the judgment with reference to interests involved in the action, as if they were parties. 'Privity' is a broad concept that requires us to look at the surrounding circumstances in order to detennine whether a claim preclusion is justified.!d. In Fason, the Court noted that privity was found because the pleadings of the parties had acknowledged it.!d. In the Chancery Court Action the Plaintiffs and Third Party Defendants are Clayton Hinton, his wife, Zaffitt Hinton, his children Nathan Hinton and Seneca Eubanks and his closely held fami ly corporations CZ, Inc. and CNRS&Z, Inc.; in the Ci rcuit Court Action the Plaintiff is Clayton Hinton. In the Chancery Court Action the Defendants are Nate Rolison, his solely owned corporation Nate Rolison, Inc. and his employee Karen Chadwell. In the Circuit Court Action the Defendants are Nate Ro lison and Credit Acceptance Corporation. The Court dismissed Credit Acceptance Corporation from the sui t. 12

17 The Plaintiffs and Third Party Defendants are in privy with Hinton. The Defendants are in privy with Rolison. The identity of parties is met. IV. The Identity of the Quality or Character ofthe Person Against Whom the Claim is Made was met because the named defendant is the same in each suit. Identity of the quality or character of the person against whom the claim is made is met where a named defendant is the same in both actions. Fason, 120 So. 3d at 460. Nate Rolison is the named defendant in both causes of action and the target of all of Clayton Hinton 's claims. His qua lity or character has remained constant since the filing of the Chancery Court Action. As such, this identity has been met. CONCLUSION The Circuit Court Judge correctly found that resjudicata barred the subsequent action filed by Hinton. Only one Agreement was ever aueged between the parties, that being the August I, 2009 Agreement. It was attached as Exhibit A to the Complaint in the Circuit Court Action and referenced in paragraph II in the Chancery Court Action. All claims asserted in the Circuit Court Action could have and should bave been filed in December when Hinton amended his Chancery complaint. A full and final settlement was reached with a Judgment of Dismissal entered in the Chancery Court Action which specifically addressed claims that should have or could have been raised. All claims raised were based on the same 13

18 transaction, involving the same Agreement, against the same parties. Res Judicata prevents them from being raised again. DATED: Febmary 6, OF COUNSEL: John G. Corlew (MSB #6526) CORLEW MUNFORD & SMITH PLLC Id Canton Road, Suite 111 (3 9211) Post Office Box Jackson, MS Phone: Fax: jcorlew@cmslawyers.com Respectfully submitted, NATE ROLISON s/ John G Corlew JOHN G. CORLEW (MSB # 6526) Attorney for Appellees Carroll H. Ingram (MSB # 3023) Jennifer Ingram Wilkinson (MSB # 99265) Ingram Wilkinson Arlington Loop (3 940 l) Post Office Box Hattiesburg, MS carroll@ini:rrarnlawyers.com jennifena).ingramlawyers.com 14

19 CERTIFICATE OF SERVICE I hereby certify that on February 6, 2015, I electronically f~ed the foregoing with the Clerk of the Court using the MEC system which sent notification of such filing to tile following: L.Clark Hicks ciark@ hicksattqldeys.com R. Lane Dossett laoe@ hicksattqrneys,cow Mark H. Tyson mtyson@mcglinchey.com and I hereby certify that I have mailed by United States Postal Service the document to the following non-ecf participants: Honorable Anthony Mozingo Post Office Drawer 269 Purvis, MS sl John G. Corlew JOH N O. CORLEW (MSB #6526) 15