Donaldson v. Ovella

• Decision Date: 17 January 2017
• Docket Number: NO. 2014–CA–01509–COA,2014–CA–01509–COA
• Citation: 228 So.3d 820
• Parties: Beth DONALDSON, Colie Donaldson and Coby Donaldson, Appellants v. Dominic OVELLA, Appellee
• Court: Mississippi Court of Appeals

228 So.3d 820

Beth DONALDSON, Colie Donaldson and Coby Donaldson, Appellants

v.Dominic OVELLA, Appellee

NO. 2014–CA–01509–COA

Court of Appeals of Mississippi.

January 17, 2017

ROBERT C. WILLIAMSON JR., JACKSON, DAVID WAYNE BARIA, BRANDON CURRIE JONES, ATTORNEYS FOR APPELLANTS

DORRANCE DEE AULTMAN JR., GULFPORT, ATTORNEY FOR APPELLEE

BEFORE LEE, C.J., BARNES AND ISHEE, JJ.

ISHEE, J., FOR THE COURT:

¶ 1. In February 2010, Dominic Ovella sued B & C Construction and Equipment LLC (B & C) and its individual officers and employees Beth, Colie, and Coby Donaldson (Donaldsons) in federal district court. Ovella asserted a variety of claims arising from a construction contract between Ovella and B & C. All claims against the Donaldsons, individually, were dismissed. Ovella's claims against B & C, however, were submitted to the jury, which returned a take-nothing verdict in favor of B & C. The district court subsequently denied B & C's and the Donaldsons' posttrial motions for sanctions. Before this Court now are the consolidated actions of the Donaldsons against Ovella for the malicious prosecution of that federal action, filed in the Harrison County Circuit Court in November 2012. The circuit court granted Ovella's motion for summary judgment in October 2014, based upon procedural grounds, as well as with respect to the merits of the Donaldsons' claims. The Donaldsons now appeal. Finding error, we reverse.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. In March 2008, Ovella and B & C entered into a contract for the construction of a personal residence to be built in Pass Christian, Mississippi. B & C agreed in the contract to construct the home according to plans Ovella provided to it, and which were attached to the contract. The contract specifically noted, among other things, that the house would be built on 12? x 12? wooden columns. The total contract price for the home was $559,000. Throughout construction, Ovella orally ordered a number of alterations to the plans. Specifically, Ovella authorized a change to the home's support columns. These columns were originally proposed to be 12? x 12? wooden columns. However, Ovella orally approved a change to the columns to mimic brick columns he had seen on another home that B & C had constructed. Ovella contends that he approved this change based on the recommendation and advice of Colie. Ultimately, the columns were built as 10?> x 10? wooden columns surrounded by stucco because of a notable increase in the price of brick cladding for the columns. Ovella claimed that this change from stucco to brick was agreed to upon the condition that he would receive a credit toward other improvements for the home. Disputes exist in the form of conflicting testimony regarding the alteration of the columns.

¶ 3. In May 2009, Ovella and his spouse moved into their house, and received a certificate of occupancy by June 2009. B & C sent a final bill on October 5, 2009, totaling $66,687.42, which included $38,869.26 for upgrades, overages, and various additions that had been made on the home during construction. Ovella claimed that he had made timely payments for the construction from June 2008 until October 5, 2009, with payments totaling $531,181.84. However, he refused to pay the final bill until a number of issues were resolved and he received credits he believed had not been deducted. After that time, Ovella informed B & C that he could feel the house sway in high winds, and that movement within the home caused the house to move on the columns. As a result, B & C installed bracing under the home, which Ovella conceded slightly helped with the issue of swaying. Over a period of several months, Ovella issued various "punch lists" to B & C for items that Ovella wished to have continuously changed or corrected. Communications eventually broke down between Ovella and B & C over the disputed balance, resulting in an impasse among the parties. Ovella then filed a complaint against B & C and the Donaldsons individually on March 1, 2010, in federal district court, regarding construction and payment issues.

¶ 4. In Ovella's complaint, Ovella asserted various claims against B & C, as well as claims against the Donaldsons individually for breach of contract, fraud, negligence, and unjust enrichment. In response, the Donaldsons individually filed counterclaims for intentional infliction of emotional distress, as well as for sanctions under 28 U.S.C. § 1927 (2012) and Federal Rule of Civil Procedure 11.¹ The Donaldsons voluntarily dismissed their intentional-infliction-of-emotional-distress claims over a year before trial, and reserved their claims for sanctions at the close of the federal trial in the form of posttrial motions. The district court dismissed all of Ovella's claims against the Donaldsons individually, as well as all claims by Ovella and B & C for unjust enrichment. Ultimately, the jury found in favor of B & C. At the close of trial, the district court denied all claims for relief regarding sanctions under Rule 11 and 28 U.S.C. § 1927. Ovella did not appeal.

¶ 5. In November 2012, each of the Donaldsons sued Ovella in circuit court for malicious prosecution, negligent and intentional infliction of emotional distress, and to recover attorney's fees and expenses incurred during the defense of the federal action. Ovella moved for summary judgment, which the circuit court granted. In doing so, the circuit court concluded that, based upon the federal action, the Donaldsons' claims were barred under the doctrines of res judicata, collateral estoppel, and judicial estoppel. The circuit court also held the Donaldsons failed to present evidence sufficient to create genuine disputes of material fact regarding the merits of their malicious-prosecution claims. The Donaldsons timely appealed. Finding error on the part of the circuit court, we reverse.

STANDARD OF REVIEW

¶ 6. A trial court's grant or denial of summary judgment is reviewed de novo. Monsanto Co. v. Hall, 912 So.2d 134, 136 (¶ 5) (Miss. 2005). Summary judgment is proper if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." M.R.C.P. 56(c). "If any triable facts exist, the lower court's grant of a summary judgment will be reversed; otherwise the decision will be affirmed." Miller v. Meeks, 762 So.2d 302, 304 (¶ 3) (Miss. 2000). The evidence must be viewed in the light most favorable to the party opposing the motion. Davis v. Hoss, 869 So.2d 397, 401 (¶ 10) (Miss. 2004). Only when the moving party has met its burden by demonstrating that no genuine issues of material fact exist should summary judgment be granted. Tucker v. Hinds Cty., 558 So.2d 869, 872 (Miss. 1990). "[W]here the party opposing the motion for summary judgment on a claim or defense upon which it bears the burden of proof at trial, and the moving party can show a complete failure of proof on an essential element of the claim or defense, other issues become immaterial and the moving party is entitled to summary judgment as a matter of law." Crain v. Cleveland Lodge 1532, Order of Moose Inc., 641 So.2d 1186, 1188 (Miss. 1994).

DISCUSSION

I. The Circuit Court Erred in Granting Ovella's Motion for Summary Judgment Because the Doctrines of Res Judicata, Collateral Estoppel, and Judicial Estoppel Do Not Apply to the Donaldsons' Claims

¶ 7. The circuit court held that the Donaldsons' claims were barred under the doctrines of res judicata, collateral estoppel, and judicial estoppel. We disagree.

A. Res Judicata

¶ 8. The Mississippi Supreme Court has stated that the doctrine of res judicata is "fundamental to the equitable and efficient operation of the judiciary and ‘reflects the refusal of the law to tolerate a multiplicity of litigation.’ " Gibson v. Williams, Williams & Montgomery P.A., 186 So.3d 836, 844 (¶ 16) (Miss. 2016) (quoting EMC Mortg. Corp. v. Carmichael, 17 So.3d 1087, 1090 (¶ 9) (Miss. 2009) ). "The courts cannot revisit adjudicated claims and ‘all grounds for, or defenses to[,] recovery that were available to the parties in the first action, regardless of whether they were asserted or determined in the prior proceeding, are barred from re-litigation in a subsequent suit under the doctrine of res judicata.’ " Id. (citing Harrison v. Chandler–Sampson Ins., 891 So.2d 224, 232 (¶ 23) (Miss. 2005) ). As a doctrine of public policy, res judicata is "designed to avoid the expense and vexation attending multiple lawsuits, conserve judicial resources, and foster reliance on judicial action by minimizing the possibilities of inconsistent decisions." Harrison, 891 So.2d at 224 (¶ 23) (internal quotations omitted).

¶ 9. In order for res judicata to apply, four basic identities 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 the person against whom the claim is made. Gibson, 186 So.3d at 844 (¶ 17). Our supreme court has also added the additional requirement that the prior judgment must be a final judgment on the merits. Id. All five identities must be present, with the absence of any one being "fatal to the defense of res judicata." Id.

¶ 10. On appeal, the Donaldsons argue that the subject matter of their malicious-prosecution claims and the subject matter of their requests for sanctions in the previous federal action are not identical. We agree. Regarding the first element, the supreme court has defined the "identity of the subject matter of the action" to mean "the substance of the lawsuit." Hill v. Carroll Cty., 17 So.3d 1081, 1085 (¶ 12) (Miss. 2009). The subject matter of the present matter is malicious prosecution.

¶ 11. To succeed on a claim for malicious prosecution, a plaintiff must prove, by a preponderance of the evidence, six...