Norman v. Bucklew, 94-CA-00448-SCT

• Citation: 684 So.2d 1246
• Decision Date: 05 December 1996
• Docket Number: No. 94-CA-00448-SCT,94-CA-00448-SCT
• Parties: Joe H. NORMAN and Beverly Norman v. Henry BUCKLEW, Individually and in His Official Capacity as the Mayor of the City of Laurel, Mississippi.
• Court: United States State Supreme Court of Mississippi

Page 1246

684 So.2d 1246

Joe H. NORMAN and Beverly Norman v. Henry BUCKLEW, Individually and in His Official Capacity as

the Mayor of the City of Laurel, Mississippi.

No. 94-CA-00448-SCT.

Supreme Court of Mississippi.

Dec. 5, 1996.

J. Andrew Phelps, Robert R. Marshall, Hattiesburg, for appellant.

Harold W. Melvin, Laurel, for appellee.

Before DAN LEE, C.J., and PITTMAN and JAMES L. ROBERTS, Jr., JJ.

JAMES L. ROBERTS, Jr., Justice, for the Court:

INTRODUCTION

This is a case involving questions of civil procedure. Specifically, the Court is requested to determine whether or not the Jones County Circuit court properly dismissed the appellants' complaint on the basis of res judicata and collateral estoppel. The following is the finding of the Court.

The federal court dismissed with prejudice and entered a final adjudication on the slander, libel, and false arrest/imprisonment claims as being barred by the one-year statute of limitations. The act giving rise to these claims occurred on January 10, 1990. The federal complaint was not filed until January 8, 1993. Therefore, the district judge properly decided these issues. Accordingly thereafter, the state trial court judge properly found collateral estoppel as to these issues.

The other state law claims, i.e., negligence, malicious prosecution, and intentional and/or negligent infliction of emotional distress claims, were dismissed without prejudice by the federal district judge. Therefore, their dismissal was of no preclusive affect to Norman refiling in state court. The negligence and intentional and/or negligent infliction of emotional distress claims are governed by the three-year statute of limitations. The events giving rise to these claims occurred on January 10, 1990. Thus, the three years would have expired on January 11, 1993. Norman filed his federal court claim on January 8, 1993, which would thus have tolled the statute of limitations when federal pendent jurisdiction was invoked. The fact that these claims were subsequently dismissed without prejudice does not prevent the statute of limitations from having been tolled previously. Accordingly, the state trial court erred in imposing the affirmative defense of the three-year statute of limitations.

The malicious prosecution claim was also dismissed without prejudice by the district judge on July 7, 1993. The grand jury ultimately dismissed the criminal affidavit on October 29, 1992. Malicious prosecution claims are governed by a one-year statute of limitations. Miss.Code Ann. § 15-1-35. Therefore, Norman had until October 29, 1993, to file a claim in state court on this ground as noted by the district judge. Norman filed his state court claim on October 14, 1993. Thus, he tolled the malicious prosecution claim. Accordingly, the state trial judge erred on this issue in holding to the contrary. Consequently, the Jones County Circuit Court trial judge's decision from which this appeal rises is affirmed in part and reversed and remanded in part.

STATEMENT OF THE CASE

The procedural history of this case is long and convoluted, resulting in the Court being presented with yet another case involving theories of res judicata and collateral estoppel. The Jones County trial court's holding was based on a previous suit filed in federal court which was on appeal to the Fifth Circuit Court of Appeals as of the date of the state trial court's ruling. Oral argument before the Fifth Circuit Court of Appeals was scheduled for October 31, 1994. The Court's research discloses that the Fifth Circuit Court of Appeals affirmed the appeal without opinion on November 2, 1994. Norman v. Bucklew, 40 F.3d 384 (5thCir.1994). ¹ To give a coherent presentation of the procedural posture of this case, the Court will begin with the initial federal suit.

On January 8, 1993, Joe H. Norman and Beverly Norman (hereinafter Norman) filed their complaint in the United States District Court for the Southern District of Mississippi, Hattiesburg Division, against Henry Bucklew (hereinafter Bucklew), individually, and in his official capacity as Mayor of the City of Laurel, Mississippi. Their complaint was brought pursuant to 28 U.S.C. Section 1343, 42 U.S.C. Section 1983, 42 U.S.C. Section 1988, the First, Fourth and Fourteenth amendments to the United States Constitution while also invoking pendent jurisdiction to consider their claims arising under state law. The theories alleged numerous constitutional violations, negligence, defamation of character, slander and libel, intentional and/or negligent infliction of emotional distress, false arrest, false imprisonment, malicious prosecution, and attorney's fees. Their complaint was subsequently amended on August 3, 1993. On November 3, 1993, District Judge Dan M. Russell Jr. entered the following Order and Judgment in response to Bucklew's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.

ORDERED, that defendant's motion for summary judgment is granted as to Constitutional claims; and, IT IS FURTHER ORDERED AND ADJUDGED that the plaintiff's section 1983 claims are all hereby dismissed, in both individual and official capacity, with prejudice. IT IS FURTHER ORDERED AND ADJUDGED that the Court's Memorandum Order of July 7, 1993, is correct and that the one-year Mississippi statute of limitation applies, and therefore the state law claims, for slander and libel, and false arrest and (emphasis added).

                imprisonment are dismissed, with prejudice, and;  IT IS FURTHER, ORDERED AND ADJUDGED that the Motion for Interlocutory Appeal is not well taken and is hereby denied, with prejudice, and;  IT IS FURTHER ORDERED AND ADJUDGED that the state law claims for malicious prosecution is hereby dismissed, without prejudice.   IT IS FURTHER ORDERED AND ADJUDGED that all other state law claims are hereby dismissed without prejudice.   ORDERED AND ADJUDGED, this the 3rd day of November, A.D., 1993
                

Norman perfected his appeal to the Fifth Circuit Court of Appeals but allegedly ² did not assign as error the refusal of the district judge to exercise pendent jurisdiction over the remaining state law claims. Therefore, because the federal district judge dismissed the state law claims without prejudice, specifically the malicious prosecution claim and impliedly the negligence and intentional and/or negligent infliction of emotional distress claims, Norman subsequently sought relief in state court. However, the following sets forth the actual grounds sought in state court.

On October 14, 1993, Joe H. Norman and Beverly Norman filed their complaint in the Second Judicial District of the Circuit Court of Jones County, Mississippi against Henry Bucklew individually and in his official capacity as Mayor of the City of Laurel, Mississippi. The complaint alleged six causes of action, namely: (1) negligence, (2) defamation of character, (3) slander and libel, (4) intentional and/or negligent infliction of emotional distress, (5) malicious prosecution, and (6) attorney's fees. Both actual and punitive damages, together with attorney's fees and costs in conjunction with pre-judgment interest, were requested.

Bucklew, in his official capacity, filed his Motion to Dismiss, M.R.C.P. 12(b), on November 3, 1993 contending: (1) that he had ceased being Mayor of Laurel on June 30, 1993, and thus no longer had an official capacity; (2) process was not served on the City of Laurel; (3) the Jones County Grand Jury dismissed the criminal affidavit against Norman; (4) the one year statute of limitations, M.C.A. § 15-1-39, ran as of October 29, 1993; and (5) that the three year statute of limitations, Miss.Code Ann. § 15-1-49, ran as of January 11, 1993. Norman filed his respective response to Bucklew's motion to dismiss on November 5, 1993. Norman's response contended: (1) that Bucklew was still responsible for his actions while previously being Mayor despite the fact that he was no longer Mayor; (2) process was not necessary for the City of Laurel; (3) that the one-year statute of limitation was tolled by filing his complaint on October 14, 1993, allegedly fifteen days before the statute ran; (4) that a civil complaint had been filed in the United States District Court for the Southern District of Mississippi, Hattiesburg Division, containing state law claims tolling the statute of limitations two/three days before it expired.

Bucklew responded by filing his Answer and Affirmative Defenses on November 10, 1993. Bucklew denied that Norman was entitled to any judgement and requested that the suit be dismissed assessing all costs to Norman. Specifically, Bucklew raised the following affirmative defenses; (1) the City of Laurel was a necessary party defendant and that until it was joined, that Bucklew should be required to delete and remove all claims against Norman in his official capacity; (2) that Mrs. Norman be stricken and dismissed as a misjoined party because she was not named in the complaint filed by Bucklew giving rise to the present suit and additionally because she does not qualify as a bystander; (3) reasserts that the one-year statute of limitation is applicable; (4) that Bucklew is entitled to sovereign immunity and qualified immunity as an individual; (5) that Norman's malicious prosecution claims were barred by Miss.Code Ann. § 15-1-35, and that the return of a "no-bill" was not a termination in favor of Norman; (6) that because Bucklew was a "vortex public figure," that all of Norman's claims must be based on actual malice; and finally (7) that "[a]n identical suit in federal court, by the Accordingly, following his Answer, Bucklew filed another motion to dismiss on November 29, 1993, both in his individual and official capacity, upon the ground of res judicata as to Norman's claims for false arrest, false imprisonment, slander and libel. Copies of the previous federal court complaint, order, judgment and Norman's notice of appeal to the Fifth Circuit Court of...