IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2018-CP-00722-COA HE SHAO APPELLANT

v. UNIVERSITY OF MISSISSIPPI MEDICAL CENTER APPELLEE

DATE OF JUDGMENT: 05/01/2018 TRIAL JUDGE: HON. JEFF W EILL SR. COURT FROM W HICH APPEALED: HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: HE SHAO (PRO SE) ATTORNEY FOR APPELLEE: MARK D. RAY NATURE OF THE CASE: CIVIL - CONTRACT DISPOSITION: AFFIRMED: 05/21/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE BARNES, C.J., TINDELL AND McCARTY, JJ. TINDELL, J., FOR THE COURT: ¶1. On Decem

b e r 9, 2014, He Shao f

iled a com plaint against the University o f Mississip pi
Me d i c a l C e nter (UMMC) in the M adison County Circuit Court af ter her term ination f

rom

a post-doctoral f

ellowship program with UMMC in 2011. On October 5 , 2015, the Madison County Circuit C ourt dism issed the case f or f a i lure to properly serve the A t torney G eneral’s Of f ice within the tim e period prescribed by Mississippi Rule of Civil Procedure 4. He Shao then f iled a second c om

plaint on February 17, 2017, in Hinds C ounty Circuit Court, which the court later dism i ssed based upon the doctrines of res judicata and judicial estoppel. He Shao now appeals the circuit court’s decision, arguing that dism issal of her second claim wasim

p roper beca u s e t h e M a d ison County Circuit Court’s o rder of d ism issal was not a f inal judgm ent on the m erits. This Court declines t o apply the doctrines of res judic ata and judicial estoppel to this case, but we f ind that He Shao’s claim i s barred by the statute of
lim itat i o n s . T h e ref

ore, the Hinds County Circuit Court’s dism issal o f He Shao’s second

com plaint is af

f irm e d.
FACTS ¶2. O n March 9, 2011, He Shao began h er post-doctoral f ellowship p r o g r a m i n t h e Departm ent of Pathology at UMMC. In August o f 2011, s h e w a s term inated f rom the
p rogram and inf

orm ed by a prof

e ssor and several UMMC staf f m e m bers that h e r l a s t d a y would be August 1 5, 2011. Aggrieved b y her term ination, He Shao f iled a com p laint against
UMMC in the Madison County Circuit Court on Decem ber 9 , 2 014, alleging c laim s f or breach of contract, wrongf u l term ination, abuse of power, knowingly violati n g the law,

m isconduct, f

raud, and f

ederal civil rights violations. Af t er she f ailed to properly serve the Attorney General within 120 d ay s, pursuant to Mississippi Rule of Civil P rocedure 4(d)(5), the statute of lim itations b egan to run again. On October 5, 2015, the Madison C ounty Circuit
Court granted a m otion t o dism i ss on behalf of UMMC and dism issed He Shao’s claim f or f ailure to serve the com

plaint within 120 day s. He Shao then f iled an untim ely appeal with the Mississippi Suprem e Court, which UMMC m oved t o di s mi s s f o r lack of appellate jurisdiction. T h e Suprem e Court granted U MMC’s m otion and then subsequently denied eight separate m otions f

iled by a dissatisf

ied He Shao.

2¶3. He Shao re-f iled her com

plaint against UMMC on February 1 7 , 2 0 1 7 , in the Hinds County C irc u i t C o u r t

. On M a y 1 , 2018, the Hinds County Circuit Court entered an order dism issing the com

plaint based upon the doctrines of res judicata and judicial estoppel. In its order, t he circuit c ourt f ound t hat the issues raised by He Shao’s new com plaint were all
f ully and f

inally adjudicated or should have been r aised in her c a s e b e f ore t he Madison County Circuit Court. He Shao now appeals this decision.

STANDARD OF REVIEW ¶4. W e review a ruling court’s decision to g rant a m otion t o d i s mi s s d e n o v o. Ralph
W alker, I nc. v. Gallagher , 926 So. 2 d 8 9 0 , 893 (¶3) ( Miss. 2006). T his Court is “not required to def

er to the [ circuit] court’s j udgm e nt or r uling,” but r at h e r t o s i t i n the sam e position as the circuit court in the original m atter. Id . at (¶4).
ANALYSIS ¶5. The Hinds County Circ u i t C o u r t d i s mi ssed He Shao’s com plaint based upon the doctrines of res judicata a n d judicial estoppel. For res judicata to apply , there m ust have been a f inal judgm ent o n t he m erits of the plaintif f ’ s prior case. B eene v. Ferguson
Automotive Inc. , 37 So. 3d 695, 698 (¶7) (Miss. Ct. App. 2 010). Res judicata aim s to prevent plaintif f s f rom attem

pting t o “bring in a second f orum claim s that were part of a single body of operative f

a cts already l itigated in another f orum .” Gray v. Univ. of Miss. Sch. of Med ., 996 So. 2d 75, 81 (¶17) (Miss. Ct. App. 2008). UMMC asks this Court to apply the doctrine of res judicata to cases dism issed based upon the expiration of the s tatute o f lim itations. But, there was no f

ull and f i nal judgm ent on the m erits of He Shao’s f irst claim based upon the

3statute of lim itations. The Madison County Circuit Court’s order granted t he m otion to

dism iss by UMMC solely f or f ailure to properly serve the Attorney G eneral’s Of f ice within
1 2 0 day s. Generally , such dism issals are granted without prejudice, allowing plaintif f s t o rig h t f u l l y re-f ile their actions if the statute of lim itations has not l apsed. S ee W atters v. Stripling , 675 So. 2d 1242, 1243 (Miss. 1996). B ut, U MMC m ade n o argum ent in its m otion

to dism iss that the statute of l i mi t a t i ons had expired, and likewise, the Madison County Circuit C ourt m ade no f

inal judgm ent of the sam e. Because the circuit c ourt m ade no f inal judgm ent based u p o n the expiration of the statute of lim itations, we f ind that the Hinds County Circuit Court was without authority to dism iss He Shao’s second com plaint on the basis of res judicata and judicial estoppel. ¶6. W h ile we disagree w ith t h e H inds C o unty Circuit Court’s d ism issal based upon res judicata, we do, however, exercise our authority to af f irm the circuit court’s decision based
upon t he lapse o f the statute of lim itations. See H a r b i t v
. H a rbit , 3 S o. 3d 156, 1 63 (¶24) (Miss. C t. App. 2009) (“An appellate cour t ma y af f irm a trial court on other g rounds if it
f inds that the trial court r eached the r ight result despite its f lawed or erroneous prem ises.”).
He Shao’s f

irst and s econd lawsuits against U MMC stem m ed f rom h er term ination in August of 2011. “UMMC is an instrum ent of the State of Mississippi and is s ubject to the requirem ents of the Mississippi Tort Claim s A c t ( M T C A ).” Univ. of Miss. Med. Ctr. v. McGee , 999 So. 2d 837, 839 (¶7) (Miss. 2008). A s s u c h , a n y state tort claim s against
UMMC w ould be subject a one-y ear statute of lim itations. Miss. Code A nn. § 11-46-11(3) (Rev. 2012). Further, in Missi ssippi, a three-y ear statute of lim itations applies to a breach

4o f c ontract claim

. M iss. Code Ann. § 15-1-49. For f ederal civil rights v iolations, a threey ear statute of l im itations also applies. Edm o n d s v
. O k tibbeha County , 675 F.3d 911, 916 (5th Cir. 2012) ( “Because no specif ied f ederal s tatute of lim itations exists f or § 1983 suits,
f ederal c ourts b o rrow the f orum state’s general or residual personal-injury lim itations period

. . . which in Mississippi i s three y ears.”). Because He Shao’s t erm i nation d a t e s b a c k t o August 201 1 , a ny c om

plaint f iled a f ter 2014 would be tim e-barred. He Shao’s second

com plaint was f

iled on February 17, 2017, well past the expiration of any applicable statute

o f l im i tations f

or her claim s. As such, we f ind that t he c om

plaint was properly dism issed, not based upon res judicata, but due to the running of the statute of

lim itations.
CONCLUSION ¶7. He Shao’s f

i rst com plaint was dism issed b y the Madison County Circuit C o u r t f o r f ailure to serve process within 120 day s. However, t here was no f inal j udgm ent on the m erits of the f irst com plaint b ased upon the statute of l im itations. W h ile we disagree with the Hinds County Circuit C ourt’s use of res j udicata and j udicial estoppel to dism iss H e Shao’s second

c om plaint, we do f

ind that her second com

p laint w as f

iled w ell past the expirat i o n o f a n y applicable statutes of lim itations. For that reason, we af f irm Hinds County Circuit Court’s dism issal. ¶8. AFFIRMED. BARNES, C.J., C ARLTON AND J. WILSON, P.JJ., GREENLEE, WESTBROOKS, McDONALD, LAWRENCE, McCARTY A N D C . WILSON, JJ., CONCUR.

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