BRIEF OF APPELLEES ORAL ARGUMENT NOT REQUESTED

Transcription

1 E-Filed Document Mar :22: CA Pages: 53 IN THE SUPREME COURT OF MISSISSIPPI CURTIS RAY MCCARTY, JR. VERSUS ARTHUR E. WOOD, III AND PAULA WOOD APPELLANT NO.2016-CA APPELLEES APPEAL FROM THE SPECIAL COURT OF EMINENT DOMAIN WAYNE COUNTY, MISSISSIPPI CAUSE NO. CV W THE HONORABLE LESTER F. WILLIAMSON, JR., PRESIDING BRIEF OF APPELLEES ORAL ARGUMENT NOT REQUESTED TERRY L. CAVES, MS BAR NO RISHER G. CAVES, MS BAR NO CAVES & CAVES, PLLC Post Office Drawer 167 Laurel, MS Telephone Facsimile terryc@tlcaves.com risherc@tlcaves.com Counsel for Appellees

2 IN THE SUPREME COURT OF MISSISSIPPI CURTIS RAY MCCARTY, JR. VERSUS ARTHUR E. WOOD, III AND PAULA WOOD APPELLANT NO CA APPELLEES I. 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: Curtis Ray McCarty, Jr. -Appellant J. Richard Barry, Esquire - Attorney for Appellant James C. "Cory" Griffin, Esquire - Attorney for Appellant Arthur E. Wood, III - Appellee Paula Wood - Appellee Honorable Terry L. Caves - Attorney for Appellees Honorable Risher G. Caves -Attorney for Appellees Honorable Lester F. Williamson, Jr. - Judge This the 7th day of March, Respectfully submitted, Isl Terry L. Caves TERRY L. CAVES RISHER G. CAVES Attorney for Appellees

3 . ). TERRYL. CAVES -MS BarNo RISHER G. CAVES - MS Bar No CAVES & CAVES, PLLC Post Office Drawer 167 Laurel, MS Telephone Facsimile terryc@tlcaves.com risherc@tlcaves.com ii

4 II. TABLE OF CONTENTS PAGE I. CERTIFICATE OF INTERESTED PERSONS... i II. III. TABLE OF CONTENTS... iii TABLE OF CASES, STATUTES AND OTHER AUTHORITIES... v IV. STATEMENT OF THE ISSUES ON APPEAL... ~.1 V. STATEMENT OF ASSIGNMENT... 3 VI. STATEMENT OF THE CASE... 3 A. Nature of the Case... 3 B. Course of Proceedings and Disposition Below... 4 C. Statement of Facts... 6 VII. Summary of the Argument... 9 VIII. Legal Argument A. Standard of Review I. Because the doctrine of res judicata bars McCarty from re-litigating the same claim for the third time, the grant of summary judgment should be affirmed A. Mississippi applies the transactional approach when determining cause of action identity B. McCarty's current claim is part of the same cause of action as his claims in the previous cases C. There is no genuine issue of material fact II. The judgment below should be affirmed since the full faith and credit clause obviates any jurisdictional impediment to res judicata and chancery and circuit courts have pendent jurisdiction over eminent domain matters A. There is no jurisdictional impediment to the doctrine of res judicata iii

5 B. The doctrine of pendent jurisdiction further buttresses the application of res judicata C. McCarty's claim is barred, because either the chancery court or the circuit court could have exercised pendent jurisdiction over that claim III. Summary judgment should be affirmed because a Final Judgment on an easement by necessity claim has preclusive effect on a subsequent claim for a private road under Section A. Mississippi Code Section 's procedure for establishing a private right-of-way is not a complete and adequate alternative remedy to the recognition and enforcement of an easement by necessity B. Broadhead's holding controls the outcome in this case IV. The trial court's grant of summary judgment should be affirmed because McCarty is collaterally estopped from relitigating the same issue for the third time A. The chancery court's grant of summary judgment collaterally estops McCarty from re-litigating his Section claim B. The Circuit Court's grant of summary judgment in favor of the Woods collaterally estops McCarty from litigating his claim IX. Cross appeal for attorney's fees A. The trial court abused its discretion in failing to award the Woods their reasonable attorney's fees under Rule 11 and the Litigation Accountability Act B. The Woods respectfully request that this Court determine this appeal to be frivolous pursuant to Rule 38 and award just damages and double costs to them X. CONCLUSION XI. CERTIFICATE OF SERVICE IV

6 .' III. TABLE OF CASES, STATUTES AND OTHER AUTHORITIES Cases: Page Aetna Casualty & Surety Company v. Berry 669 So. 2d 56 (Miss. 1996)... 19,35 Anderson v. LaVere 895 SO',2d 828 (Miss. 2004)... 14, 15 Beene v. Ferguson Automotive, Inc. 37 So. 3d 695 (Miss. Ct. App. 2010) Borne v. Estate of Carraway 118 So. 3d 517 (Miss. 2013) Branaman v. Long Beach Water Management District 730 So. 2d 1146 (Miss. 1999) Broadhead v. Terpening 611 So. 2d 949 (Miss. 1992)... 11, 30, 31 Brown v. McQUinn 501 So. 2d 1093 (Miss. 1986) Cannon v. Loyola University of Chicago 784 F.2d 777 (7 th Cir. 1986) Cedars Corporation v. Sun Valley Development Company 573 N.W.2d 467 (Neb. 1998) Celotex Corp. v. Catrett 477 U.S. 317 (1986) Checkers Drive-In Restaurants v. Mississippi Transportation Commission 755 So. 2d 1258 (Miss. Ct. App. 2000) Cities of Oxford, Carthage, Louisville, Starkville, and Tupelo v. Northeast Mississippi Electric Power Association 704 So. 2d 59 (Miss. 1997) City of Hattiesburg v. Pritchett 134 So. 140 (Miss. 1931) City of Jackson v. Lakeland Lounge 688 So. 2d 742 (Miss. 1996) v

7 -' City of Jackson v. Sutton 797 So. 2d 977 (Miss. 2001) Cofield v. Imperial Palace of Mississippi, LLC 147 So. 3d 364 (Miss. Ct. App. 2014) Corsini v. Bloomberg 26 F.Supp. 2d 230 (S.D. N.Y. 2014) Cox v. Trustmark National Bank 733 So. 2d 353 (Miss. Ct. App. 1999) Davis v. Biloxi Public School District 43 So. 3d 1135 (Miss. 2009) DeFoe v. Great Southern National Bank, N.A. 547 So. 2d 786 (Miss. 1989) Derr Plantation, Inc. v. Swarek 14 So. 3d 711 (Miss. 2009)... 27, 28 Douglas v. Denbury Onshore, LLC 78 So. 3d 912 (Miss. Ct. App. 2011) Dunaway v. W,H Hopper & Associates 422 So. 2d 749 (Miss. 1982) Durr v. City of Picayune 185 So. 3d 1042 (Miss. Ct. App ) EMC Mortgage Corp. v. Carmichael 17 So. 3d 1087 (Miss. 2009)... 14, 24 Estate of Anderson v. Deposit Guaranty National Bank 674 So. 2d 1254 (Miss. 1996) Estate of Waitzman 507 So. 2d 24 (Miss. 1987) Exhibitors Posters Exchange, Inc. v. National Screen Service Corporation 421 F.2d 1313 (5 th Cir. 1970)... 19, 35 Fike v. Shelton 860 So. 2d 1227 (Miss. Ct. App. 2003)... 11, 29, 32, 33 Foster v. Ross 804 So. 2d 1018 (Miss. 2002) VI

8 -' Fourth Davis Island Land Company v. Parker 469 So. 2d 516 (Miss. 1985) Franklin Collection Service, Inc. v. Stewart 863 So. 2d 925 (Miss. 2003) Galloway v. Travelers Insurance Company 515 So. 2d 678 (Miss. 1987)... 13, 22 Glover ex rei. Glover v. Jackson State University, 968 So. 2d 1267 (Miss. 2007)... 23, 34 HK. Porter Company, Inc. v. Board of Supervisors of Jackson County 324 So. 2d 746 (Miss. 1975)... 10, 25 Hall v. Corbin 478 So. 2d 253 (Miss. 1985)... 24, 26 Handy v. Nejam 111 So. 3d 610 (Miss. 2013) Harrison v. Chandler-Sampson Ins., Inc. 891 So. 2d 224 (Miss. 2005)... 14, 16, 18, 19, 20 Hill v. Carroll County 17 So. 3d 1081 (Miss. 2009)... 15, 23 In Interest of KM G. 500 So. 2d 994 (Miss. 1987) In Interest ofv.l. W. 751 So. 2d2033 (Miss. 1999) In re Estate of Stutts v. Stutts 529 So. 2d 177 (Miss. 1988) In re Nunley 237 B.R. 907 (Bankr. N.D. Miss. 1999) In re Spencer 985 So. 2d 330 (Miss. 2008) Ivy v. Merchant 666 So. 2d 445 (Miss. 1995)... 10, 23 Johnson v. Hinds County 524 So. 2d 927 (Miss. 1988) Vll

9 Little v. V &G Welding Supply, Inc. 704So.2d 1336 (Miss. 1997)....14, 17, 19,20 Magee v. Griffin 345 So. 2d 1027 (Miss. 1977) Mayor & Board of Aldermen v. Homebuilders Association of Mississippi 932 So. 2d 44 (Miss. 2006) Matter of Guardianship of Sugg 704 So. 2d 56 (Miss. 1997) McBride v. Meridian Public Improvement Corporation 730 So. 2d 548 (Miss. 1998) McDonald's Corp. v. Robinson Industries 592 So. 2d 927 (Miss. 1991)... 10,24,26 McMichael v. Nu- Way Steel & Supply, Inc. 563 So. 2d 1371 (Miss. 1990) Mississippi Employment Security Commission v. Philadelphia Municipal Separate School District of Neshoba County 437 So. 2d 388 (Miss. 1983) Moore v. Sanders 558 So. 2d 1383 (Miss. 1990) Nevada v. United States 463 U.S. 110 (1983) Norwood v. Mississippi Department of Employment Security 105 So. 3d 408 (Miss. Ct. App. 2012) Price v. Purdue Pharma Co. 920 So. 2d 479 (Miss. 2006) Quinn v. Estate of Jones 818 So. 2d 1148 (Miss. 2002) RAS Family Partners, LC v. Onnam Biloxi, LLC 968 So. 2d 926 (Miss. 2007) RelMax Real Estate Partners v. Lindsley 840 So. 2d 709 (Miss. 2003) VIU

10 -' Reeves Royalty Co., Ltd v. ANB Pump Truck Service 513 So. 2d 595 (Miss. 1987) Rogers v. Marlin 754 So. 2d 1267 (Miss. Ct. App. 1999) Rowell v. Turnage 618 So. 2d 81 (Miss. 1993)... 11, 32, 33 SchwartzJager v. Saul 2017 WL , *4 (Miss. Feb ) Smith v. Sanders 485 So. 2d 1051 (Miss. 1986) Swan v. Hill 855 So. 2d 459 (Miss. Ct. App. 2003) Studdard v. Pitts 72 So. 3d 1160 (Miss. Ct. App. 2011) Summers ex rei. Dawson v. St. Andrew's Episcopal Sch. 759 So. 2d 1203 (Miss. 2000) Tideway Oil Programs, Inc. v. Serio 431 So. 2d 454 (Miss. 1983) Tricon Metals & Services, Inc. v. Topp 537 So. 2d 1331 (Miss. 1989) Triplett v. Brunt-Ward Chevrolet, Oldsmobile, Pontiac, Buick, Cadillac, GMAC Trucks, Inc. 812 So. 2d 1061 (Miss. Ct. App. 2001) Vinoski v. Plummer 893 So. 2d 239 (Miss. Ct. App. 2003)... 11, 32, 33 Walton v. Bourgeois 512 So. 3d 698 (Miss. 1987)... 17, 19 Weinfaub v. Glen Reuch Securities, Inc. 419 F.Supp.2d 507 (S.D. N.Y. 2005) Western Maryland Wireless Connection v. Zini 601 F.Supp. 2d 634 (Md. 2009) White v. State 742 So. 2d 1126 (Miss. 1999) ix

11 Statutes and Other Authorities: 1 MS Prac. Civil Proc. 16: MS Prac. Encyclopedia MS Law 13 : MS Prac. Encyclopedia MS Law 14: MS Prac. Encyclopedia MS Law 30: A Wright, Miller, & Kane, Federal Practice and Procedure: Civil2d Section 1584 (1990)...16 CJS Judgments Section ~ Jeffrey Jackson & Mary Miller, Encyclopedia of Mississippi Law Section 14:6,350 (2001) Miss. Civil Prac. Section 1 : Miss. Civil Prac. Section 1:4 n.l Miss. Code Ann (1) Miss. Code Ann Miss. Code Ann (a) Miss. Code Ann Miss. R. App. Pro Miss. R. Civ. Pro. 8(e) Miss. R. Civ. Pro. 11 (b) Miss. R. Civ. Pro Miss. R. Civ. Pro Miss. R. Civ. Pro. 56(c) Miss. R. Civ. Pro. 56(e) U.S. Const. Art. IV, Section x

12 IV. STATEMENT OF THE ISSUES ON APPEAL A. F or the bar of res judicata to apply in Mississippi, there are four identities which must be present: (1) 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 a claim is made. In a prior chancery court suit, summary judgment was entered against McCarty on the issues of easement by necessity, prescriptive easement, and implied easement. In a subsequent circuit court suit, summary judgment was entered against McCarty on the claim of deprivation of access to landlocked property. Whether McCarty's present suit to establish a private road under Mississippi Code Section is barred by res judicata? B. Under the Full Faith and Credit Clause of the United States Constitution, a final judgment from a first court will be afforded preclusive effect in a subsequent case in a second court-regardless of whether the first court would have had jurisdiction over the second case. And where a party alleges multiple claims for relief, as long as one claim properly falls within the jurisdiction of the court, Mississippi courts have pendent jurisdiction over all other transactionally related claims. McCarty has brought two previous suits to gain access to the property at issue, one in chancery court and a second in circuit court. In this case, McCarty filed suit in the special court of eminent domain to establish a private road over the same parcel of property involved in the previous suits. Whether the Full Faith and Credit Clause and the doctrine of pendent jurisdiction require the application of res judicata to McCarty's current claim to establish a private road? C. In Mississippi, a claim to establish a private road under Section is not an adequate alternative remedy to an equitable claim for an easement by necessity. In a 2005

13 chancery court action, summary judgment was granted against McCarty on the issue of easement by necessity. Whether the 2005 chancery court action precludes McCarty from now proceeding under Mississippi Code Section in the special court of eminent domain? D. According to the doctrine of collateral estoppel, a party is precluded from relitigating in the present suit specific questions actually litigated and determined by and essential to the judgment in the prior suit, even though a different cause of action is the subject of the present suit. In a prior suit, a chancery court granted summary judgment against McCarty on the issues of easement by necessity, implied easement, and prescriptive easement. In a second prior suit, a circuit court granted summary judgment against McCarty on the issue of whether he was entitled to access his property. Whether McCarty is collaterally estopped from litigating this eminent domain suit? E. Under Rule 11 and the Litigation Accountability Act, a litigant can be awarded attorney's fees for having to defend a frivolous lawsuit-defined as having no hope of success. In this case, McCarty filed suit against the Woods for a claim that, in a previous case, had been dismissed with prejudice on the grounds of res judicata. Whether the trial court abused its discretion in not awarding the Woods their reasonable attorneys fees? F. Pursuant to Rule 38 of the Appellate Rules of Civil Procedure, if the supreme court or court of appeals determine that an appeal is frivolous, that court will award just damages and single or double costs to the appellee. Having been informed by two different judges that his claim is barred by the doctrines of res judicata and collateral estoppel, McCarty appealed this case anyway. Whether this appeal is frivolous? 2

14 v. STATEMENT OF ASSIGNMENT The Woods submit that the Mississippi Supreme Court should retain this case because the underlying claim concerns eminent domain matters. However, the Woods would rebut McCarty's stated rationales for why the supreme court should retain this matter. First, there are no issues of "fundamental fairness" at play in this case-only questions of law as to the application of the doctrines of res judicata and collateral estoppel. Second, this case will not require the supreme court to second guess well-settled precedent. Since its rendering, the plurality opinion of Broadhead v. Terpening has been reaffirmed in an unbroken line of decisions, on one occasion unanimously so. VI. STATEMENT OF THE CASE A. Nature of the Case The gravamen of this case is about upholding the finality of litigation and enforcing the preclusive effect of final judgments. Perhaps most importantly, however, this case is about protecting Mississippi's longstanding policy against claim-splitting and the refusal of our law to tolerate a multiplicity of litigation. Doctor Arthur Wood, a physician, and his wife, Paula, are a well-respected couple from Waynesboro, Mississippi. For over twelve years now, Curtis Ray McCarty has bombarded the Woods with an endless barrage of vexatious litigation. He has hurled slanderous allegations at them. He has caused them to rack up unnecessary legal expenses. Worse still, he has forced them to defend themselves in not one, not two-but three separate lawsuits. In all three suits, McCarty has sought the same relief from the same defendants as to the same subject matter for the same injury based on the same transaction. 3

15 The first, languishing on the chancery court's docket for over four years, was finally disposed of on summary judgment, which McCarty did not oppose and did not appeal. The second, barred by the doctrines of res judicata and collateral estoppel, was likewise thrown out on summary judgment in circuit court, and again, McCarty did not oppose and did not appeal. In fact, in that particular instance, McCarty's attorney was sanctioned for bringing a frivolous lawsuit and the Woods were awarded their attorney's fees. Still, McCarty was undeterred. And now, in this third successive lawsuit, McCarty has yet again dragged the Woods back into this never-ending thicket of litigation. When will it end? From time immemorial, our appellate courts have heralded the policies underpinning the doctrines of res judicata and collateral estoppel. And for good reason: These policies exist precisely to protect good people against this sort of perpetual litigation. Whatever its motivation, this suit is misconceived and pernicious and must be brought to a prompt and final determination. In the pages that follow, the Woods demonstrate that each of the arguments advanced in McCarty's scattershot appeal is wholly devoid of merit. Accordingly, the Woods request that this Court affirm the trial court's grant of summary judgment in their favor. In addition, the Woods respectfully request that this Court reverse the trial court's decision denying their claim for attorney's fees and remand this issue with instructions for the trial court to determine the amount. Finally, the Woods request that this Court determine that this appeal is frivolous and award them just damages and double costs. B. Course of Proceedings and Disposition Below McCarty filed this suit against the Woods and Plum Creek South Central Timberlands, LLC (hereinafter "Plum Creek") in the Special Court of Eminent Domain of Wayne County, Mississippi, requesting condemnation of a portion of the Woods' property and Plum Creek's 4

16 property in order to gain access to his landlocked parcel. (CP. 7) 1 In response, the Woods filed their Answer, raising the affirmative defenses of res judicata and collateral estoppel, and Counterclaim for attorney's fees pursuant to Rule 11 and the Litigation Accountability Act. (CP. 21 ). Then, McCarty filed a Response to that Counterclaim, denying the allegations asserted by the Woods in their Counterclaim. (CP. 28). Subsequently, the Woods filed their Motion for Summary Judgment. (CP. 31). And Plum Creek filed its Motion for Summary Judgment. (CP. 468). Then, McCarty's attorney, April Ladner, withdrew from representation. And James C. "Cory" Griffin entered his appearance on behalf of McCarty. (CP. 479). All parties entered an Agreed Order allowing McCarty additional time to respond to the respective motions for summary judgment. (CP. 481). And J. Richard Barry entered his appearance on behalf of McCarty. (CP. 482). Then, McCarty filed his Response in Opposition to Defendant's Motion for Summary Judgment. (CP. 485). Subsequently, the Court ordered the parties to participate in mediation and an Agreed Order was entered appointing a mediator. (CP ). On December 22, 2015, all parties participated in a mediation. McCarty and Plum Creek successfully mediated a right-of-way over Plum Creek's property. However, the mediation between McCarty and the Woods was unsuccessful. (CP. 504). Then, McCarty filed a Motion to Establish Remainder of Right-of-Way over the Woods property. (CP. 510). And McCarty filed a Motion to Re-Mediate with the Woods. (CP. 515). The Woods filed their Response in Opposition to the Motion to Re-Mediate. (CP. 521). The Court 1 Reference to "CP" are references to the Clerk's Papers; Reference to "T'' are references to the pages within the transcribed testimony prepared by the Court Reporter; Reference to "Ex." are references to Exhibits within the record; References to "R.E." are references to the Record Excerpts. 5

17 entered its Order denying the Motion to Re-Mediate. (CP. 546). Subsequently, an Agreed Order was entered dismissing Plum Creek with prejudice. (CP. 547). A hearing was held on the Woods' Motion for Summary Judgment. And the trial court entered its Memorandum Opinion and Order granting summary judgment in favor of the Woods. (CP. 549). McCarty filed a Motion to Alter or Amend the Judgment. (CP. 558). And the Woods filed their Motion for Assessment of Attorney's Fees under Rule 11 and the Litigation Accountability Act. (CP. 563). On June 10,2016, the trial court entered its Order denying McCarty's Motion to Alter or Amend the Judgment and the Wood's Motion for Assessment of Attorney's Fees. (CP. 607). McCarty filed his Notice of Appeal (CP. 609). In turn, the Woods filed their Notice of Cross-Appeal of the Order denying their request for attorney's fees. (CP. 611). c. Statement of Facts The Woods and McCarty are adjoining landowners of certain real property in Wayne County, Mississippi. The property owned by McCarty is surrounded on all sides by the Woods' property. On July 7,2005, Curtis Ray McCarty, Jr. filed a Complaint against Paula Cooper Wood and husband, Arthur E. Wood, III and Leaf River Forest Products, Inc., a foreign corporation (hereinafter "Leaf River") in the Chancery Court of Wayne County. (CP. 43). McCarty asserted several claims in this chancery court action. First, McCarty claimed that he had an easement by necessity across the Wood's property located in Section 31, Township 8 North, Range 6 West, Wayne County, Mississippi and across Leaf River's property located in Section 6, Township 7 North, Range 6 West, Wayne County, Mississippi. (CP. 47). Secondly, McCarty claimed that he had a prescriptive easement across the Woods' and Leaf 6

18 River's property. (CP. 48). Thirdly, McCarty asserted a claim for intentional infliction of emotional distress, specifically alleging that the Woods deprived him all access to his property which caused him damages. (CP ). McCarty also made the following accusations against the Woods: That such actions of Arthur E. Wood, III were malicious, unconscionable, outrageous, intentional, wrongful, willful, and reflected his total disregard for the rights of the plaintiff and any others similarly situated. The said Arthur E. Wood, III is a medical doctor and has a demigod attitude and personality and thinks that he can do anything he wants, regardless of the consequences and hardships that such outrageous conduct on his part inflicts upon the plaintiff or any other person. That the said Woods, that is including Mrs. Wood[], purchased the approximately 1,377 acres on July 17,2003, shortly after the defendant Arthur E. Wood, III, complained to the Wayne County News that he could not afford his medical malpractice insurance premiums, or that he could not obtain medical malpractice insurance coverage, and that if he did not receive some type of relief, he would have to close his clinic and possible relocate his medical practice. Upon information and belief, the Wayne County taxpayers are paying the medical malpractice insurance premiums for Arthur E. Wood, III, M.D. (CP ). In the chancery court case an Agreed Temporary Order was filed on October 26,2005, granting McCarty a temporary easement for one year from the date of entry of the Order unless the parties agreed in writing to extend it or until the trial on the merits-whichever occurred first. Because McCarty did not pursue his claim diligently and failed to enter an agreed order extending the easement, McCarty lost any temporary right to traverse Leaf River's and the Woods' property. From May 12, 2006 until April 22, 2008, McCarty took no action to pursue his claims. Leaf River and the Woods appeared in court on April 22, 2008 ready for a trial. McCarty, nor his attorney at the time, Mark Howard, appeared in court on the day of trial. The Woods and Leaf River moved the court to dismiss the Plaintiffs complaint with prejudice pursuant to Rule 41 (b) of the Mississippi Rules of Civil Procedure. 7

19 After the Woods and Leaf River made their motion to dismiss on April 22, 2008, McCarty hired new counsel. Subsequently, the parties appeared in Court two more times. Leaf River and the Woods filed their Motion for Summary Judgment in the chancery case on July 7, 2009-which was unopposed by McCarty. On September 14,2009, the chancery court entered its Order for Summary Judgment dismissing the Plaintiffs claims with prejudice. McCarty did not appeal. That case was pending before the chancery court for approximately four years before being dismissed on Leaf River's and the Woods' Motion for Summary Judgment. Meanwhile, on August 13,2009, Curtis Ray McCarty, Jr. filed a second complaint against Paula Cooper Wood and husband Arthur E. Wood, III in the Circuit Court of Wayne County. (CP. 238). This action concerned the same parcel of property located in Section 31, Township 8 North, Range 6 West, Wayne County, Mississippi. This time, McCarty again claimed that the Woods deprived him of all access to his property which caused him damages. (CP ). Subsequently, on November 18,2009, the Woods moved for summary judgment pursuant to Rule 56 of the Mississippi Rules of Civil Procedure-on the grounds of res judicata and collateral estoppel. (CP. 248). McCarty did not oppose this. (CP. 464). On May 12,2010, the circuit court entered its Order for Summary Judgment dismissing the McCarty's claims with prejudice and granting the Woods' request for attorney's fees. (CP. 464). The circuit court specifically determined that the action was frivolous and sanctioned McCarty's then-attorney with the Woods' attorney's fees. (CP. 464). Again, McCarty did not appeal. 8

20 Then, on October 6, 2014, McCarty filed this suit against the Woods and Plum Creek South Central Timberlands, LLC 2 in the Special Court of Eminent Domain of Wayne County, requesting condemnation of a portion of Plum Creek's property and the Woods' property in order to gain access to his landlocked parcel. (CP. 7). The parties were ordered to participate in a mediation. (CP ). On multiple occasions, McCarty accused the Woods of acting in bad faith and in contravention of the trial court's orders. (CP. 515; 519). The Woods moved for summary judgment and requested attorney's fees. (CP. 31). Based on the doctrines of res judicata and collateral estoppel, the trial court granted summary judgment in favor of the Woods but denied their request for attorney's fees. (CP. 549; 607). McCarty lodged his Notice of Appeal from the judgment. (CP. 609). The Woods' filed their Notice of Cross-Appeal from the post-judgment Order denying their request for attorney's fees. (CP. 611). VII. SUMMARY OF THE ARGUMENT The trial court's grant of summary judgment should be affirmed, because the four identities of res judicata are present in this case. In particular, Mississippi applies the transactional approach when assessing "cause of action" identity. And under the transactional approach, McCarty's current claim is part of the same cause of action as his claims in the two previous cases. Fact is,just like his current claim, his claims in the previous two cases sought access to his property-the only difference is the legal theories that are alleged. Indeed, McCarty does not seriously dispute the trial court's decision that the four identities of res judicata are satisfied; rather, he merely argues that the result is unfair to him. 2 Plum Creek South Central Timberlands, LLC is the successor in interest to Leaf River Forest Products, LLC. 9

21 This argument betrays a fundamental misunderstanding of the doctrine of res judicata. Indeed, accepting McCarty's argument would subvert the important policies of preventing claim-splitting and avoiding a multiplicity of litigation. Consequently, summary judgment should be affrrmed, because there is no genuine issue of material fact. Furthermore, the trial court's grant of summary judgment should be affirmed, because the Full Faith and Credit Clause and the doctrine of pendent jurisdiction remove any jurisdictional hurdle to the application of res judicata. In Mississippi, there is no jurisdictional impediment that stands in the way of res judicata. Ivy v. Merchant, 666 So. 2d 445 (Miss. 1995). Put another way, Mississippi courts are required to accord preclusive effect to final judgments from other jurisdictions-whether it be federal courts, courts from other states, or other state courts in Mississippi. Likewise, the doctrine of pendent jurisdiction further supports the application of res judicata in this case. By way of pendent jurisdiction, chancery courts have properly adjudicated eminent domain claims. H.K Porter Company, Inc. v. Board o/supervisors 0/ Jackson County, 324 So. 2d 746, (Miss. 1975). This jurisdictional overlap is further illuminated by the fact that eminent domain courts can adjudicate pendent claims that would otherwise fall within the original jurisdiction of chancery courts. McDonald's Corp. v. Robinson Industries, 592 So. 2d 927 (Miss. 1991). In addition, circuit courts-as courts of general jurisdiction in Mississippi~an certainly exercise pendent jurisdiction to dispose of an eminent domain claim. After all, in counties such as Wayne County, it is the circuit court that actually presides over eminent domain proceedings. Thus, McCarty's Section claim is barred, because he failed to raise it in his previous two suits against the Woods. Because McCarty cannot overcome this dispositive fact, he instead must circumvent it. Misdirecting the court's attention, McCarty asserts that neither the 10

22 chancery court nor the circuit court had "competent jurisdiction" to adjudicate his Section claim. This assertion fundamentally misapprehends the distinction between original jurisdiction and pendent jurisdiction. Indeed, the unremarkable fact that eminent domain matters do not fall within chancery and circuit courts' original jurisdiction is immaterial-either can adjudicate eminent domain matters as pendent claims. In a separate respect, summary judgment should be affirmed because a final judgment on an easement by necessity claim has preclusive effect on a subsequent claim for a private road under Section In Broadhead v. Terpening, the supreme court first opined that the statutory mechanism found in Section does not provide an adequate, alternative remedy at law to the equitable claim for an easement by necessity. Broadhead v. Terpening, 611 So.2d 949 (Miss. 1992). Therefore, McCarty's misguided choice to pursue an easement by necessitywithout raising Section in the alternative-bars him from now pursuing it. Placing Broadhead in a vacuum, McCarty attacks its precedential value as a plurality opinion. But time and again, this argument has been categorically rejected by our jurisprudence. See, e.g., Rowell v. Turnage, 618 So. 2d 81 (Miss. 1993); Fike v. Shelton, 860 So. 2d 1227 (Miss. Ct. App. 2003); Vinoski v. Plummer, 893 So. 2d 239 (Miss. Ct. App. 2003). As a further matter, summary judgment should be affirmed because McCarty is collaterally estopped from re-litigating the same issue for a third time. In the 2005 chancery court action, summary judgment was granted against McCarty on the issues of easement by necessity and deprivation of access to his property. This was unopposed and was not appealed. Then, in the 2009 circuit court case, summary judgment was granted against McCarty on the issue of deprivation of access to his property. Again, McCarty did not appeal. Thus, McCarty is collaterally estopped from again re-litigating the issue of access to his property. 11

23 That being the case, the Woods respectfully request that this Court reverse and remand the trial court's decision as to attorney's fees. In particular, under Rule 11 and the Litigation Accountability Act, McCarty had no hope of success. Indeed, McCarty brought this case after being explicitly informed by a circuit judge that it was barred by res judicata and collateral estoppel. In fact, his then-attorney was sanctioned for bringing a frivolous suit. Subsequently pursuing the same relief yet again is the very definition of hopeless. Perhaps more troubling still, having had not just one, but two courts explain to him that this case was meritless, McCarty made the conscious decision to appeal this case. As such, the Woods request that this Court adjudge this appeal to be frivolous and award them just damages and double costs for having to defend it. VIII. LEGAL ARGUMENT A. STANDARD OF REVIEW In reviewing a trial court's grant of a motion for summary judgment, this Court conducts a de novo review and "examines all the evidentiary matters before it-admissions in pleadings, answers to interrogatories, depositions, affidavits, etc." Cofield v. Imperial Palace of Mississippi, LLC, (quoting City of Jackson v. Sutton, 797 So. 2d 977,979 (Miss. 2001). An appellate court can affirm a grant of summary judgment for any reason appearing in the record, even if the trial court relied on another ground. Handy v. Nejam, 111 So. 3d 610 (Miss. 2013). On review, the appellate court applies the same standard as the trial court in determining the propriety of summary judgment. Cities of Oxford, Carthage, Louisville. Starkville, and Tupelo v. Northeast Mississippi Electric Power Association, 704 So. 2d 59 (Miss. 1997). Rule 56 of the Mississippi Rules of Civil Procedure provides for summary judgment where there are no genuine issues of material fact such that the movant is entitled to judgment as a matter of law. 12

24 .'. When making this ruling, the Court's duty is to consider the affidavits and all other evidentiary matters such as depositions, admissions, interrogatories, etc. submitted on a Rule 56 motion. Smith v. Sanders, 485 So. 2d 1051, 1054 (Miss. 1986). The movant carries the burden of demonstrating that no genuine issue of material fact exists. Id This burden is one of production and persuasion, not of proof. Brown v. McQuinn, 501 So. 2d 1093, 1095 (Miss. 1986). However, if the nonmovant bears the burden of proof at trial on a claim and fails to establish an essential element, then all other facts are immaterial, and the movant is entitled to judgment as a matter of law. Galloway v. Travelers Insurance Company, 515 So. 2d 678, 683 (Miss. 1987). Ultimately, this Court will affirm the grant of summary judgment "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Durr v. City of Picayune, 185 So. 3d 1042, 1048 (Miss. Ct. App. 2015). In regards to attorney's fees, this Court reviews the decision to grant or deny attorney's fees for an abuse of discretion. The supreme court has explained abuse of discretion in this way: Rather than implying bad faith or an intentional wrong on the part of the trial judge, an abuse of discretion is viewed as a strict legal term that is clearly against logic and effect of such facts as are presented in support of the application or against reasonable and probable deductions to be drawn from the facts disclosed upon the hearing. White v. State, 742 So. 2d 1126, 1136 (Miss. 1999). 13

25 I. BECAUSE THE DOCTRINE OF RES JUD/CATA BARS MCCARTY FROM RE-LITIGATING THE SAME CLAIM FOR THE THIRD TIME, THE GRANT OF SUMMARY JUDGMENT SHOULD BE AFFIRMED. The trial court's grant of summary judgment should be affirmed, because (1) the doctrine of res judicata estops McCarty's claim to establish a private road under Mississippi Code Section and consequently (2) there is no genuine issue of material fact. It is well-settled in this state that a civil defendant may raise res judicata in a motion for summary judgment where a plaintiffs suit centers around claims and issues decided in a previous lawsuit. 3 For the bar of resjudicata to apply, however, there are four identities which must be present: (1) identity of the subject matter (2) identity of the cause of action (3) identity of the parties to the cause of action and ( 4) identify of the quality of character of a person against whom a claim is made. Harrison v. Chandler-Sampson Ins., Inc., 891 So. 2d 224,232 (Miss. 2005) ( citing Quinn v. Estate of Jones, 818 So. 2d 1148, 1151 (Miss. 2002). In addition, a fifth requirement is that the prior judgment must be a final judgment that was adjudicated on the merits. EMC Mortgage Corp. v. Carmichael, 17 So. 3d 1087, 1090 (Miss. 2009). When all four identities are met, the doctrine of res judicata serves two distinct functions. First, under the principle known as "bar," res judicata precludes claims which were actually litigated in a previous action. Harrison v. Chandler-Sampson Ins., Inc., 891 So. 2d 224,232 (Miss. 2005) (citing Jeffrey Jackson & Mary Miller, Encyclopedia of Mississippi Law Section 14:6, 350 (2001). And more broadly, resjudicata acts as a "merger," preventing subsequent litigation of any claim that should have been litigated in a previous action. Id. Put another way, "the doctrine of res judicata bars parties from litigating claims 'within the scope of the 3 Little v. V&G Welding Supply, Inc., 104 So. 2d 1336, (Miss. 1997) (citing Estate of Anderson v. Deposit Guaranty National Bank, 614 So. 2d 1254, 1256 (Miss. 1996). 14

26 judgment' in a prior action." Anderson v. La Vere, 895 So. 2d 828, 832 (Miss. 2004). Accordingly, res judicata is a mandatory joinder device, requiring plaintiffs to bring all transactionally related claims in a single action--or else be barred from ever litigating those claims. Id at In this case, all four identities are present-this case and the prior two cases involve the exact same subject matter, the exact same cause of action, the exact same parties, and the exact same quality or character or a person against whom the claim is made. In fact, the only identities that McCarty appears to dispute are "cause of action" identity and "subject matter" identity. 4 A. Mississippi applies the transactional approach when determining cause of action identity. The Mississippi Supreme Court has defined "cause of action" as the underlying facts and circumstances upon which a claim has been brought. Hill v. Carroll County, 17 So. 3d 1081, 1085 (Miss. 2009). So, to determine whether the cause of action identity is satisfied, Mississippi courts apply the transactional approach. This approach maintains that: causes of actions are the same if they arise from the same "transaction"; whether they are products of the same "transaction" is to be determined by "giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage." Nevada v. United States, 463 U.S. 110, 103 (1983). Under the transactional approach, "the plaintiff may not avoid the application of res judicata by changing legal theories, recasting an old claim as a new legal theory, by concocting a new legal theory, or by cloaking the same cause of action in the language of a different theory." CJS Judgments Section 987. Put otherwise, it is 4 In his brief, McCarty makes the conclusory statement that there is no "subject matter identity," yet no argument is advanced in support of this assertion. 15

27 immaterial how many legal theories or claims for recovery may spring forth from the same body of operative facts: the plaintiff must assert them all in one action. What is more, our Rules of Civil Procedure, which provide for both liberal joinder of claims and attachment of theories in support of claims, support the transactional approach. Specifically, Rule 8( e) instructs that: A party may set forth two or more statements of a claim or defense alternatively or hypothetically, either in one count or defense or in separate counts or defenses. When two or more statements are made in the alternative and one of them ifmade independently would be sufficient, the pleading is not made insufficient by the insufficiency of two or more of the alternative statements. A party may also state as many separate claims or defenses as he has, regardless of consistency. Miss. R. Civ. Pro. 8(e). Further, Rule 18 states that: A party asserting a claim to relief as an original claim, counterclaim, cross-claim, or third-party claim, may join, either as independent or as alternate claims, as many claims as he has against an opposing party... [w ]henever a claim is one heretofore cognizable only after another claim has been prosecuted to a conclusion, the two claims may be joined in a single action... Miss. R. Civ. Pro. 18. Indeed, as our appellate courts have noted, "the two rules are so comprehensive in their coverage that it is impossible to conceive of a joinder claim or theory situation that would not fall within the protection of one of them." Harrison v. Chandler-Sampson Insurance, Inc., 891 So. 2d 224 (Miss. 2005) (citing 6A Wright, Miller, & Kane, Federal Practice and Procedure: Civil2d Section 1584 (1990). On top of these two Rules, Rule 15 affords litigants the mechanism by which they can amend their pleadings to include new claims, remedies, and theories of recovery along the way. See Miss. R. Civ. Pro. 15. So, if a litigant fails to follow this method of pleading, then res judicata will apply. Take, for example, Little v. V &G Welding Supply, Inc., where the Mississippi Supreme Court examined the scope of res judicata. In Little, survivors of workers who were killed in a propylene gas explosion sued the manufacturer and bulk distributor of gas in federal court. After 16

28 the grant of summary judgment to the manufacturer and bulk distributor was affirmed on appeal, the survivors brought a state court action against downstream distributors of gas. The state court granted summary judgment based on res judicata, and on appeal, the Supreme Court observed that even though the federal suit was labeled a products liability case premised upon a design defect and the instant suit is deemed a wrongful death action based upon a manufacturing defect, this distinction does not destroy the cause of action identity. The Little Court explained that "[i]dentity of the cause of action exists when there is a commonality in the 'underlying facts and circumstances upon which a claim is asserted and relief sought from the two actions. '" Little v. V &G Welding Supply, Inc., (citing Walton v. Bourgeois, 512 So. 3d 698, 701 (Miss. 1987). In affirming summary judgment against the plaintiff, the Little Court stated that "[w]here one has a choice of more than one theory of recovery for a given wrong, the party may not assert them serially in successive actions but must advance all at once on pain of the bar of res judicata." Id. (citing Walton, 512 So. 2d at 702). Likewise, in Harrison v. Chandler-Sampson Insurance, Inc., the supreme court underscored this point. In Harrison, insureds filed suit against their insurer alleging breach of contract and ultimately a federal district court dismissed the suit on summary judgment. Subsequently, the insureds filed suit based on a negligence theory against the insurer in state court, and the state court granted summary judgment in favor of the insurer. In affirming summary judgment based on res judicata, the Harrison Court put it this way: The plaintiff is provided with the benefit of the procedural mechanism at the outset of suit. Moreover, the plaintiff is afforded the option of attaching multiple legal theories to an individual claim, of attaching multiple claims to an individual suit and, ultimately, of attaching the suit to several defendants. It follows that the very doors to the courthouse that are so wide-open at the beginning of suit must be closed tightly upon final adjudication. Accordingly, plaintiffs must proceed with a watchful eye on claim preclusion and claim splitting, and consider the full gamut of their claim, in regards to the body of operative fact to which it attaches, and, additionally, determine the legal theories that will best support this claim. Plaintiffs 17

29 must proceed with "reasonable diligence." To allow a plaintiff to breathe life into a claim by way of a new theory for recovery, and resuscitate that which had previously been fully adjudicated, would run contrary to the maintenance of an effective judicial system. Harrison v. Chandler-Sampson Insurance, Inc., 891 So. 2d 224 (Miss. 2005). In concluding, the Harrison Court noted that "[w]hile the result is harsh, allowing the Harrisons to re-visit the same transaction and assert negligence in a second successive action would be to endorse gardenvariety claim-splitting." Id. B. McCarty's current claim is part of the same cause of action as his claims in the previous cases. Exactly so here. McCarty filed two previous suits-one in chancery court and one in circuit court-seeking the same thing from the same individuals: access to his landlocked property. In the chancery court suit, McCarty directly sought access to his property by way of an easement by necessity, an implied easement, and a prescriptive easement. Thus, his instant claim for access is undeniably part of the same cause of action as his chancery court claims. Similarly, in the circuit court action, McCarty indirectly sought access to his landlocked property by requesting damages for alleged deprivation of access-this ultimately boils down to a question of whether McCarty was entitled to access, and if so, in what manner. The unremarkable fact that his claim was inartfully pled makes no difference, because Section was an available mechanism for McCarty to deploy. At any rate, McCarty's claims in the previous suits were fully evaluated by both courts and each was disposed of on summary judgment. And importantly, he did not appeal either time. To be sure, summary judgment is a final judgment on the merits for purposes of res judicata. Beene v. Ferguson Automotive, Inc., 37 So. 3d 695 (Miss. Ct. App. 2010). And "the fact that [a] case was decided [] by way of summary judgment does not lessen the preclusive nature of that 18

30 decision." Aetna Casualty & Surety Company v. Berry, 669 So. 2d 56 (Miss. 1996) (citing Exhibitors Posters Exchange, Inc. v. National Screen Service Corporation, 421 F.2d 1313, 1319 (5th Cir. 1970). But now, in this third successive suit, McCarty seeks access by way of a different legal theory. Yet the current suit is merely a reprise of the claims asserted in the previous suits, because the current claim is a "legal theory derived from the same underlying facts and circumstances" as the prior suit. In point of fact, the facts and circumstances relied on by McCarty in this suit are identical to the previous two suits. He is seeking the same relief from the same defendants as to the same subject matter for the same injury based on the same transaction. The only difference between the current and prior suits is the legal theories on which they are grounded. In particular, McCarty now seeks to proceed under a theory of eminent domain and shoot the final arrow that was left in his quiver following the dismissal of his first two suits. But to permit McCarty to proceed under this new legal theory would fly in the face of well-settled law proscribing claim-splitting. Indeed, the range of precedent that would be drawn into question by allowing McCarty to litigate this case a third time would be little short of staggering. 5 Notwithstanding this, McCarty makes no discernible argument, nor could he, that the four identities are unmet. Stated another way, he fails to engage in any meaningful analysis concerning the four identities of res judicata. In fact, McCarty does not cite a single authority supporting his ostensible position that the four identities of res judicata are not met. But "Rule 28(a)(6) of the Mississippi Rules of Appellate Procedure requires an appellant's brief to contain 5 See, e.g., DeFoe v. Great Southern National Bank, N.A., 547 So. 2d 786 (Miss. 1989); City of Jackson v. Lakeland Lounge, 688 So. 2d 742 (Miss. 1996); Walton v. Bourgeois, 512 So. 3d 698 (Miss. 1987); Little v. V&G Welding Supply, Inc., 704 So. 2d 1336 (Miss. 1997); Harrison v. Chandler-Sampson Insurance, Inc., 891 So. 2d 224 (Miss. 2005). 19

31 the contentions of [the] appellant with respect to the issues presented, and the reasons for those contentions, with citation to the authorities, statutes, and parts of the record relied on." Norwood v. Mississippi Department of Employment Security, l 05 So. 3d 408, 410 (Miss. Ct. App. 2012). And "[f]ailure to cite any authority is a procedural bar, and a reviewing court is under no obligation to consider the assignment." Id. Indeed, McCarty's silence on this issue is deafening. Instead, McCarty devotes the bulk of his argument to lamenting the perceived harsh result he has been dealt. But the blame for this result lies at his own feet. Truth be told, it is McCarty who has aimlessly fired shot after malicious shot at the Woods in this endless onslaught of frivolous lawsuits. In any event, this argument is nothing more than a bare assertion without citation to authority. And furthermore, this argument runs headlong into the more venerated principle that avoiding harsh results must necessarily yield to the imperative rationales for res judicata. The public policy against claim-splitting is "designed to avoid expense and vexation attending multiple lawsuits, conserve judicial resources, and foster reliance on judicial action by minimizing the possibilities of inconsistent decisions." Harrison v. Chandler-Sampson Ins., Inc., 891 So. 2d 224, 232 (Miss. 1005). Stated otherwise, "resjudicata reflects the refusal of the law to tolerate a multiplicity of litigation." Little v. V&G Welding Supply, Inc., 704 So. 2d 1336, 1337 (Miss. 1997). And "while the result is harsh, allowing [a plaintiff] to re-visit the same transaction... would be to endorse garden variety claim-splitting." Harrsion, 891 So. 2d at 232. These principles apply squarely to this case. McCarty has embroiled the Woods in not one, not two, but three separate lawsuits for over twelve years now. Along the way, he has hurled scurrilous, inflammatory allegations against the Woods in his pleadings 6 and caused them 6 In point of fact, McCarty alleged in his 2005 chancery court complaint, "That such actions of Arthur E. Wood, ill were malicious, unconscionable, outrageous, intentional, wrongful, willful, and reflected his 20