Gregory v. Mitchell, 79-3036

• Decision Date: 12 January 1981
• Docket Number: No. 79-3036,79-3036
• Parties: E. A. GREGORY and Vonna Jo Gregory, Plaintiffs-Appellants, v. Dennis M. MITCHELL, etc., et al., Defendants-Appellees, Federal Deposit Insurance Corporation, Intervenor-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 205

634 F.2d 205

E. A. GREGORY and Vonna Jo Gregory, Plaintiffs-Appellants, v. Dennis M. MITCHELL, etc., et al., Defendants-Appellees, Federal Deposit Insurance Corporation, Intervenor-Appellee.

No. 79-3036.

United States Court of Appeals, Fifth Circuit.

Jan. 12, 1981.

E. A. Gregory, pro se.

Vonna Jo Gregory, pro se.

Steiner, Crum & Baker, R. E. Steiner, III, Montgomery, Ala., for Mitchell, Grimsley, Rainer, Crump, Strother and McGahay.

Smith, Bowan, Thagard, Crook & Culpepper, Charles M. Crook, Montgomery, Ala., for FDIC, First Ala. Bancshares, Inc., First Ala. Bank, N.A., Notasulta.

Appeal from the United States District Court for the Middle District of Alabama.

Before DYER, RUBIN and POLITZ, Circuit Judges.

POLITZ, Circuit Judge:

This case was consolidated for oral argument with the cause entitled Gregory v. Mitchell, 634 F.2d 199 (Gregory I ), this date decided, in which we affirmed the district court's dismissal of plaintiffs' complaint.

The instant suit (Gregory II ) was filed in Alabama State Court by E. A. Gregory, Vonna Jo Gregory and First Bank of Macon County against Dennis M. Mitchell, the Alabama Superintendent of Banks, the Alabama State Banking Board and its six members individually, First Alabama Bancshares, Inc., and First Alabama Bank, N.A. The petition alleged the following state law claims:

1. The seizure and sale of the assets of the First Bank of Macon County (Bank) were arbitrary and capricious;

2. The seizure and sale of the Bank's assets were done in bad faith;

3. The ex parte sale of the assets denied the Bank its right to notice under Ala.Code § 5-10-31;

4. The ex parte sale of the assets effectively negated the Bank's right to seek injunctive relief under Ala.Code § 5-10-33;

5. The seizure and sale of the assets deprived the Bank of its right to judicial review of the seizure and sale under Ala.Constitution § 13, and Ala.Code §§ 5-10-31 and 5-10-33; and

6. The defendants conspired to seize and acquire the assets of the Bank through the arbitrary and capricious actions of the Superintendent of Banks, the State Banking Board, its members and employees.

The Federal Deposit Insurance Corporation (FDIC) petitioned for leave to intervene as a defendant and, upon the granting of the intervention, effected removal to federal court pursuant to 12 U.S.C. § 1819. The original defendants sought and were granted summary judgment on the grounds of res judicata, based on the district court's ruling in Gregory I. The FDIC successfully moved for dismissal. We affirm the dismissal of the FDIC and reverse the summary judgments granted the other defendants.

The requisites for a plea of res judicata are set out in our decision in Stevenson v. International Paper Co., Mobile, Alabama, 516 F.2d 103, 108-09 (5th Cir. 1975):

For a prior judgment to bar a subsequent action, it is firmly established (1) that the prior judgment must have been rendered by a court of competent jurisdiction; (2) that there must have been a final judgment on the merits; (3) that the parties, or those in privity with them, must be identical in both suits; and (4) that the same cause of action must be involved in both suits. Wasoff v. American Automobile Ins. Co., 451 F.2d 767 (5th Cir. 1971). If these elements are established, then the judgment or decree upon the merits in the first case is an absolute bar to the subsequent action or suit, not only in respect of every matter which was actually offered and received to sustain the demand, but also as to every ground of...