Anderson v. LaVere

• Decision Date: 09 December 2004
• Docket Number: No. 2002-CA-00098-SCT.,2002-CA-00098-SCT.
• Citation: 895 So.2d 828
• Parties: Annye C. ANDERSON, as Personal Representative and Legatee of the Estate of Carrie H. Thompson, Deceased; and Robert M. Harris, Legatee of the Estate of Carrie H. Thompson, Deceased v. Stephen C. LAVERE; Delta Haze Corporation, A Nevada Corporation; and Sony Music Entertainment, Inc., A Delaware Corporation.
• Court: Mississippi Supreme Court

895 So.2d 828

Annye C. ANDERSON, as Personal Representative and Legatee of the Estate of Carrie H. Thompson, Deceased; and Robert M. Harris, Legatee of the Estate of Carrie H. Thompson, Deceased v. Stephen C. LAVERE; Delta Haze Corporation, A Nevada Corporation; and Sony Music Entertainment, Inc., A Delaware Corporation.

No. 2002-CA-00098-SCT.

Supreme Court of Mississippi.

December 9, 2004.

James W. Craig, Reuben V. Anderson, Debra M. Brown, Jackson, Attorneys for Appellants.

Richard A. Oakes, Greenwood, Anthony Kornarens, W. Scott Welch, III, Anita K. Modak-Truran, James W. Kitchens, Margaret P. Ellis, Jackson, Attorneys for Appellees.

EN BANC.

ON MOTION FOR REHEARING

COBB, Presiding Justice, for the Court:

¶ 1. The motion for rehearing is granted. The original opinion is withdrawn, and this opinion is substituted therefor.

¶ 2. Litigation concerning the estate of legendary blues artist Robert Johnson (Johnson) has been ongoing for fifteen years. The first suit was commenced in June, 1989, in the Chancery Court of Leflore County, when Annye Anderson¹ (Anderson) filed the initial petition to open the Johnson estate.² See In re Estate of Johnson, 705 So.2d 819 (Miss.1996). Anderson was initially appointed administratrix of the estate, but Leflore County clerk Willis Brumfield was subsequently substituted as administrator.³ In 1992, Brumfield filed a petition to determine the heirs of Johnson. Claud Johnson (Claud) filed a formal entry of appearance, asserting his claim as the biological son of Robert Johnson, and thus the sole heir to the Johnson estate. In September of 1992, the trial court refused Claud's claim as time barred and "provisionally ruled that Robert M. Harris and Annie [sic] C. Anderson had met the burden of proof that they were the heirs of Carrie Dodds Thompson and that Carrie was the only surviving sister of Robert L. Johnson, deceased."⁴ On appeal, this Court reversed and remanded, stating that Claud was entitled to prosecute his claim. Id.

¶ 3. On remand, the chancery court held a hearing for the purpose of determining if Claud was the natural son of Johnson (the heirship proceeding), and entered a final judgment in October, 1998, stating that Claud was the biological son of Johnson and sole heir to the Johnson estate. Anderson and Harris appealed the chancery court ruling, which this Court affirmed June 15, 2000. In re Estate of Johnson, 767 So.2d 181 (Miss.2000).

¶ 4. Prior to this Court's affirmance of the heirship judgment, a second lawsuit was filed. In the second lawsuit, which is presently before this Court, Anderson, as personal representative and legatee of the Thompson estate, and Harris, as legatee of the Thompson estate, filed suit against Claud Johnson, Stephen C. LaVere (LaVere), Delta Haze Corporation (Delta) and Sony Music Entertainment, Inc. (Sony) in the Circuit Court of the First Judicial District of Hinds County,⁵ Mississippi on March 21, 2000. The complaint alleged, among other things, conversion, fraud, misrepresentation and breach of contract, concerning a 1974 contract between Thompson and LaVere, in which, among other things, Thompson assigned to LaVere the right to use certain photographs of Johnson for commercial use in exchange for a percentage of the royalties earned from the use of the photos in exploiting Robert Johnson's work.

¶ 5. LaVere, Delta and Sony moved for dismissal or, in the alternative, for summary judgment based on, among other things, the defense of res judicata. The Leflore County Circuit Court found that the issue was barred due to res judicata, because Anderson and Harris "could have petitioned the Chancery Court to make a determination that the copyrights to the photographs were rightfully theirs" during the estate administration. The trial court granted the motion to dismiss the complaint as to fewer than all the defendants on behalf of LaVere, Delta and Sony, and entered a final judgment pursuant to M.R.C.P. 54(b). Anderson and Harris now appeal to this Court.

¶ 6. In addition to the contract questions, at the heart of this suit is the question of who owns the only two photos of Johnson known to exist, the ones used in the promotion of the "Complete Recordings," and which are now producing royalties. In her complaint, Anderson asserted that Carrie Thompson, Robert Johnson's half-sister, had collected photographs of Johnson and their family while they were growing up, which she preserved as a record of her family's history, and that they were Thompson's personal property. In his answer, Claud, as heir to the Johnson estate stated that he was without sufficient information to admit or deny that claim. LaVere, in his answer, acknowledged that Carrie Thompson had been in possession of the photographs, but offered no rebuttal to Anderson's claim of ownership. Additionally, there is no evidence in the record before us showing that this claim has ever been challenged. It is apparent that this claim has never been litigated in a suit between the parties, nor was it required to be. The doctrine of res judicata may not now be used to preclude its litigation. Thus we reverse the trial court and remand this case for trial on the merits.

FACTS

¶ 7. Robert Johnson died intestate on August 16, 1938. Johnson was penniless when he died, and thus no one opened his estate. The heir presumptive was Johnson's only living sibling, his half-sister, Carrie Thompson. Over 35 years later, in 1974, a music historian named Steve LaVere, who had done extensive research into the life of Robert Johnson, contacted Thompson about commercially promoting the music of Robert Johnson. LaVere and Thompson subsequently entered into a contract by which LaVere recognized Thompson as a source of information about Johnson, and the "owner of certain items relating to Johnson such as photographs, etc." Thompson recognized LaVere as an expert in utilizing such items for commercial purposes, and she assigned to LaVere the rights to photographs of Johnson and other memorabilia she possessed and copyrights to Johnson's works in exchange for 50% of any royalties to be earned by LaVere from their use. Relying on the contract with Thompson, LaVere entered into an agreement with CBS Records, assigning his rights to CBS to be used in conjunction with the release of Johnson's work to the public.

¶ 8. In 1980, after no commercial release of Johnson's works had occurred, Thompson notified LaVere that she was rescinding the contract with him because she felt that he had failed to perform his obligations under their agreement. Being advised by counsel that Thompson could not unilaterally rescind the contract, LaVere continued his efforts to exploit the Johnson materials. Thompson died in 1983, leaving her estate (including any rights she had to the Johnson estate) to her half-sister Anderson and her grandson, Harris. Anderson opened the Johnson estate in June of 1989 and was appointed administratrix. In 1990, CBS released Johnson's record collection, utilizing the photographs and biographical information obtained from Thompson via LaVere. In 1991, the chancery court substituted Brumfield for Anderson as administrator and authorized LaVere to deposit royalty funds into the Johnson estate, but made no findings on any ownership or contract issues.⁶ Subsequently, Brumfield signed a contract with LaVere, which was almost identical to the contract between Thompson and LaVere to exploit Johnson's works for profit. The following year, Brumfield filed a petition to determine heirs of Robert Johnson, to which Claud was eventually adjudicated to be the sole heir.

ANALYSIS

¶ 9. The standard for reviewing the granting or denying of summary judgment is set forth in Miss. R. Civ. P. 56. We conduct a de novo review of orders granting or denying summary judgment and examine all the evidentiary matters before us-admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The burden of demonstrating that no genuine issue of fact exists is on the moving party. That is, the non-movant is given the benefit of the doubt. McCullough v. Cook, 679 So.2d 627, 630 (Miss.1996). If, in this view, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, summary judgment should be entered in that party's favor. The party opposing the motion must be diligent and may not rest upon allegations or denials in the pleadings but must by allegations or denials set forth specific facts showing that there are indeed genuine issues for trial. Richmond v. Benchmark Constr. Corp., 692 So.2d 60, 61 (Miss.1997). A motion for summary judgment is not a substitute for trial of disputed fact issues. Accordingly, the court cannot try issues of fact on a Rule 56 motion; it may only determine whether there are issues to be tried. Dennis v. Searle, 457 So.2d 941, 944 (Miss.1984).

¶ 10. The Leflore County Circuit Court granted summary judgment upon defendants' argument that plaintiffs' claims are precluded by the doctrine of res judicata. Res judicata is a doctrine of claim preclusion. McIntosh v. Johnson, 649 So.2d 190, 193 (Miss.1995), overruled on other grounds, Norman v. Bucklew, 684 So.2d 1246 (Miss.1996)

. It precludes parties from litigating in a second action claims within the scope of the judgment of the first action. This includes claims which "were made or should have been made, in the prior suit." Id. The burden of proving res judicata as a defense is on the defendant. Pate v. Evans, 232 Miss. 6, 97 So.2d 737, 739 (1957). In Dunaway v. W.H. Hopper & Associates, Inc., 422 So.2d 749, 751 (Miss.1982), we said:

Generally, four identities must be present before the doctrine of res judicata will be applicable: (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 the claim is made. Mississippi

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