IN THE SUPREME COURT OF MISSISSIPPI No TS CURTIS RAY MCCARTY, JR. RESPONSE IN OPPOSITION TO PETITION FOR CERTIORARI

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1 E-Filed Document Jun :30: CT SCT Pages: 6 IN THE SUPREME COURT OF MISSISSIPPI No TS CURTIS RAY MCCARTY, JR. APPELLANT VS. ARTHUR E. WOOD, III, AND PAULA WOOD APPELLEES RESPONSE IN OPPOSITION TO PETITION FOR CERTIORARI COMES NOW, the Appellant, Curtis Ray McCarty, Jr., (hereinafter referred to as McCarty ), by and through his counsel of record, and files this his Response in Opposition to Petition for Certiorari in this appeal and in support thereof would show unto the Court the following: On March 1, 2016, the Wayne County Special Court of Eminent Domain entered summary judgment in favor of Appellees. Aggrieved, Appellant timely filed his appeal. On January 23, 2018, the Court of Appeals rendered its Opinion reversing and remanding the judgment of the Wayne County Special Court of Eminent Domain. Thereafter, the Woods timely filed their Motion for Rehearing. Appellant filed a Response in Opposition to the Motion for Rehearing. On May 15, 2018, the Court of Appeals denied the Motion for Rehearing. McCarty submits that the Court of Appeals correctly apprehended and applied the law on the application of the doctrines of res judicata and collateral estoppel. Res judicata does not bar McCarty s petition for a private road. Collateral estoppel does not bar McCarty s petition for a private road. As such, this Court should deny Appellees Petition for Certiorari. ARGUMENT I. Res judicata does not bar McCarty s petition for a private road under Miss. 1

2 Code Ann The doctrine of res judicata, also known as claim preclusion, bars parties from litigating claims within the scope of the judgment in a prior action. Hill v. Carroll Cty., 17 So.3d 1081, ( 8, 14) (Miss. 2009) (quotation marks omitted). In Mississippi, the doctrine of res judicata requires four identities to be present before it applies: (1) the identity of the subject matter of the action; (2) identity of the cause of action; (3) identity of the parties; and (4) identity of the quality or character of a person against whom the claim is made. Id. at 1085 ( 10). The absence of any one of these identities is fatal to the defense of res judicata. Id. If all four identities are established, any claims that could have been brought in the prior action are barred. Id. Res judicata does not bar McCarty s statutory petition for a private road for two reasons. First, McCarty s petition under Miss. Code Ann involves different underlying facts and circumstances than his prior Chancery and Circuit Court lawsuits. Additionally, McCarty s statutory petition for a private road pursuant to Miss. Code Ann could not have been brought in his prior Chancery and Circuit Court lawsuits. Given this, this Court should deny Appellees Petition for Certiorari. A. McCarty s petition for a private road pursuant to Miss. Code Ann is not part of the same cause of action as his prior lawsuits. Res judicata only applies when the cause of action in both suits is the same. Id. at 1085 ( 13). The Supreme Court has defined cause of action as the underlying facts and circumstances upon which a claim has been brought. Id. The term cause of action is broad er than the specific legal theory or theories asserted in the prior suit; it includes all claims arising 2

3 out of the body of fact underlying the prior suit. Id. at ( 14). The Court of Appeals properly held that McCarty s petition for a private road is not based on the same underlying facts and circumstances as his Chancery and Circuit Court lawsuits. There are material differences in the operative facts relevant to the common-law claims in the prior actions and those relevant to McCarty s statutory petition for a private road. Given those differences, McCarty s present petition and his prior claims do not involve the same cause of action for purposes of res judicata. As such, the doctrine does not bar McCarty s petition under Miss. Code Ann , and this Court should deny Appellees Petition for Certiorari. B. McCarty s petition for a private road pursuant to Miss. Code Ann could not have been brought in the prior lawsuits or combined with the commonlaw claims litigated in those actions. Res judicata only applies to claims that could have been brought in the prior action. Id. It does not bar claims that could not have been asserted in the prior case because of limits on the court s subject matter jurisdiction. See Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373, 382 (1985). The Court of Appeals properly held that res judicata does not bar McCarty s petition for a private road because he could not have combined such a petition with the commonlaw claims that he litigated in the prior Chancery and Circuit Court lawsuits. Miss. Code Ann provides that a petition for a private road must be filed in the special court of eminent domain. It states that any person who desires to establish a private road shall apply by petition... to the special court of eminent domain... of the county where the land or part of it is located. Miss. Code Ann (emphasis added). Accordingly, based on the plain language of the statute, McCarty could not have brought a petition for a private road in 3

4 the prior actions in Chancery and Circuit Court. Rather, McCarty s petition had to be filed in the Wayne County Special Court of Eminent Domain. Additionally, McCarty could not have combined his prior claims with a statutory petition for a private road in the Wayne County Special Court of Eminent Domain. Mississippi Supreme Court precedent regarding the pendant jurisdiction of the special court of eminent domain makes clear that the special court of eminent domain lacks jurisdiction over such common-law claims. The Court of Appeals correctly held that McCarty s statutory petition for private road is not barred by the doctrine of res judicata because the petition does not involve the same cause of action as the prior lawsuits and could not have been included in those prior lawsuits. Therefore, this Court should deny Appellees Petition for Certiorari. II. Collateral estoppel does not bar McCarty s petition for a private road under Miss. Code Ann Collateral estoppel precludes parties from relitigating issues authoritatively decided on their merits in prior litiggation to which they were parties or in privity. State ex rel. Moore v. Molpus, 578 So.2d 624, 640 (Miss. 1991). The doctrine precludes relitigating a specific issue, which was: (1) actually litigated in the former action; (2) determined by the former action; and (3) essential to the judgment in the former action. Gibson v. Williams, Williams & Montgomery, P.A., 186 So.3d 836, 845 (Miss. 2016). In this case, the judgments and records of both of McCarty s prior cases do not disclose the specific issue or issues were decided in the actions, and as such the judgments cannot serve to preclude relitigation of issues. The doctrine of collateral estoppel does not bar relitigation of any issues in the present case, all of which are set out under the statute, and not through common- 4

5 law. As such, this Court should deny Appellees Petition for Certiorari. CONCLUSION For the foregoing reasons, this Court should deny the Appellees Petition for Certiorari. Additionally, because McCarty s petition was not frivolous, this Court should deny certiorari to the extent Appellees seek review of the Court of Appeals ruling with regard to the issues of attorney s fees under Rule 11, the Mississippi Litigation Accountability Act, and Rule 38 of the Mississippi Rules of Appellate Procedure. This the 31st day of May, Respectfully submitted, CURTIS RAY MCCARTY, JR., APPELLANT By: /s/ James C. Griffin J. Richard Barry, MSB NO James C. Griffin, MSB No Barry, Thaggard, May & Bailey, LLP P. O. Box 2009 Meridian, MS (601) Attorney for Appellant 5

6 CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing document with the Clerk of the Court using the ECF system which sent notification of such filing to the following: Terry L. Caves, Esq. CAVES & CAVES, PLLC P. O. Drawer 167 Laurel, MS Attorney for Appellee and I hereby certify that I have hand delivered the document to the following non-efc participants: Hon. Lester Williamson Lauderdale County Circuit Court Lauderdale County Courthouse Meridian, MS This the 31st day of May, /s/ James C. Griffin 6