IN THE SUPREME COURT OF MISSISSIPPI

NO. 2000-CA-00465-SCT

JOE W. SMITH, JR.

v.

NATALIE CASH MALOUF, ALEX J. MALOUF, JR. AND PATRICIA MALOUF

DATE OF JUDGMENT: 2/14/2000

TRIAL JUDGE: HON. W. ASHLEY HINES

COURT FROM WHICH APPEALED: LEFLORE COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: RONALD HENRY PIERCE

ATTORNEYS FOR APPELLEES: LUTHER T. MUNFORD

STACEY P. STRACENER

F. EWIN HENSON, III

STEVEN COOKSTON

RICHARD A. OAKES

JAMES W. BURGOON, JR.

NATURE OF THE CASE: CIVIL - PERSONAL INJURY

DISPOSITION: AFFIRMED - 8/22/2002

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 9/12/2002

BEFORE McRAE, P.J., DIAZ AND CARLSON, JJ.

DIAZ, JUSTICE, FOR THE COURT:

¶1. In August 1991, Joe W. Smith, Jr. (Joey) and Natalie Cash Malouf (Natalie) were in a dating

relationship, and Natalie became pregnant. Against Joey's wishes, Natalie decided to give the child up for

adoption. Natalie then moved away, allegedly to hide from Joey while she was pregnant. Three months

before the child was born, on January 14, 1992, Joey initiated legal proceedings against Natalie in the

Leflore County Chancery Court seeking a declaration of paternity, order for custody of the child and

injunctive relief to stop adoption proceedings within and outside Mississippi. On March 12, 1992, Joey also

filed for a temporary restraining order to enjoin the commencement of adoption proceedings. On March 27,
1992, the chancellor issued a permanent injunction in the form of a final judgment which enjoined Natalie

and "all who might assist her" from proceeding with an adoption.

¶2. On April 21, 1992, the child was born in Marietta, Georgia, then taken to California. From there, the

child was adopted by Canadian citizens. On June 16, 1992, Joey and his parents filed suit in the Circuit

Court of Leflore County against Natalie and her parents, Alex J. Malouf, Jr. and Patricia Malouf, for

intentional infliction of emotional distress, conspiring to prevent Joey from exercising his parental rights and

conspiring to effect illegal adoption of a child born out of wedlock. In September 1992, the Maloufs filed a

motion to dismiss the complaint under M.R.C.P. 12(b)(6), which was granted by the circuit court in

October 1992. Joey appealed that decision to this Court in November 1992.

¶3. In December 1992, Joey and Natalie agreed to the entry of an order dismissing the chancery court

action. In April 1996, Joey filed a federal RICO lawsuit in Georgia alleging that Georgia residents conspired

with Natalie and her parents to deprive him of his parental rights. That lawsuit was dismissed in September

1996.

¶4. In September 1998, this Court reversed and remanded the circuit court suit. See Smith v. Malouf,

722 So.2d 490 (Miss. 1998) (Smith I). On remand, Joey filed a motion for leave to file an amended

complaint to add additional defendants to the suit. In February 1999, the Maloufs again filed a motion for

summary judgment. In May 1999, the circuit court denied Joey's motion to amend complaint. In February

2000, the circuit court again granted the Maloufs' motion for summary judgment, finding that the agreed

order dismissing the chancery court action collaterally estopped the circuit court suit for damages. It is from

this ruling Joey now appeals citing the following issues:

I. WHETHER THE CIRCUIT COURT ERRED IN GRANTING SUMMARY

JUDGMENT UNDER THE THEORY OF COLLATERAL ESTOPPEL.

II. WHETHER THE DISMISSAL OF JOEY'S RICO SUIT IN GEORGIA FEDERAL

COURT AND THE FINAL ORDER IN CHANCERY COURT BAR HIS CLAIM FOR

CIVIL CONSPIRACY UNDER THE DOCTRINE OF RES JUDICATA.

III. WHETHER THE CIRCUIT COURT ERRED IN DENYING JOEY'S MOTION TO

AMEND COMPLAINT.

STANDARD OF REVIEW

¶5. This Court uses a de novo standard of review in cases where summary judgment has been granted.

Townsend v. Estate of Gilbert, 616 So.2d 333, 335 (Miss. 1993). The evidence must be viewed in the

light most favorable to the non-moving party who will be given the benefit of every reasonable doubt. Id.

DISCUSSION

I. WHETHER THE CIRCUIT COURT ERRED IN GRANTING SUMMARY

JUDGMENT UNDER THE THEORY OF COLLATERAL ESTOPPEL.

¶6. The circuit court found that the agreed order entered in chancery court in 1992 barred Joey's civil

conspiracy suit in circuit court under the doctrine of collateral estoppel. The agreed order essentially stated

that Joey and Natalie agreed that (1) Joey is the biological father of the child; (2) all orders entered by the
chancery court prior to August 28, 1992, are void ab initio because process on Natalie was not proper and

the chancery court did not have personal jurisdiction; (3) neither party nor their attorneys had engaged in

any misconduct and any motions suggesting misconduct were dismissed with prejudice; and (4) Joey's

petition was dismissed with prejudice.

¶7. Collateral estoppel precludes parties from re-litigating specific issues which have been actually litigated

and are essential to the judgment in a former action. Also, collateral estoppel, unlike the broader doctrine of

res judicata, applies only to questions actually litigated in a prior suit, and not to questions which might have

been litigated. State ex rel. Moore v. Molpus, 578 So.2d 624, 640 (Miss.1991).

¶8. In Mississippi Employment Sec. Comm'n v. Philadelphia Mun. Separate Sch. Dist., 437 So.2d

388, 397 (Miss.1983), this Court stated

The doctrine of collateral estoppel must never be seen as anything other than an unusual exception to

the general rule that all fact questions should be litigated fully in each case," and "[w]here there is

room for suspicion regarding the reliability of those first fact findings, collateral estoppel should never

be applied."

¶9. Joey argues that collateral estoppel does not apply when one has sought injunctive relief in chancery

court then seeks damages in a court of law. He cites two cases in support of this argument, Southern

Land & Resources Co. v. Dobbs, 467 So.2d 652 (Miss. 1985) and Bush v. City of Laurel, 234 Miss.

93,105 So.2d 562 (1958). These cases are not precisely on point because the underlying action in

chancery court was won by the plaintiffs in Bush and Dobbs. Here, Joey did not "win" in chancery court;

he consented to an agreed order which dismissed his petition.

¶10. Joey also argues that the agreed order cannot be given collateral estoppel effect because the case was

not litigated on the merits. To the contrary, a "consent judgment acquires the incidents of, and will be given

the same force and effect as, judgments rendered after litigation. It is binding and conclusive, operating as

res judicata and an estoppel to the same extent as judgments after contest." Guthrie v. Guthrie, 233

Miss. 550, 556-57,102 So.2d 381, 383 (1958). Therefore, the provisions of the agreed order cannot be

litigated in the circuit court action under the doctrine of collateral estoppel.

¶11. Our decision in Smith I, however, reveals that Joey's civil conspiracy claim is not solely based on the

chancery court injunction. We found, in Smith I, that Joey's claim is based on the defendants' violation of

the injunction and their conspiracy to "deprive Joey of his lawful rights as the natural parent of the child.

Smith I, 772 So.2d at 498. We further found that "conduct may be at once tortious and violative of a court

order." Id. Absent any outstanding custody order, Joey had the legal right to notice of any adoption and a

right to veto the adoption unless he was found to be unfit. Id. at 498. As previously stated, these rights do

not arise out of an injunction, but are based on the fact that natural parents have the "natural right to the

nurture, care and custody of their children . . . .This is a rule of all nature as well as a rule for all man."

Simpson v. Rast, 253 So.2d 233, 236 (Miss. 1972).

¶12. The tortious conduct which provides the basis for Joey's circuit court claims took place before

December 7, 1992, the date the agreed order was entered. In the order, Joey effectively agreed that

Natalie and those in privity with her committed no misconduct during the time frame when the baby was

born and given up for adoption. Therefore, there is no factual premise for Joey's claims for civil conspiracy

or emotional distress, and the circuit court properly granted summary judgment.
¶13. Finally, Joey argues that the final order can only be given collateral estoppel effect as to Natalie, not

her parents or any other defendants. This raises the issue of privity. Strict identity of parties is not necessary

for either res judicata or collateral estoppel to apply, if it can be shown that a nonparty stands in privity with

the party in the prior action. McIntosh v. Johnson, 649 So.2d 190, 193-94 (Miss.1995), overruled on

other grounds by Norman v. Bucklew, 684 So.2d 1246 (Miss.1996); Johnson v. Howell, 592 So.2d

998, 1002 (Miss.1991); Walton v. Bourgeois, 512 So.2d 698, 701 (Miss.1987).

¶14. We find that the other defendants in this action are in privity with Natalie, especially in light of the final

order stating that it applies to Natalie "and all who acted in concert with her." Therefore, the doctrine of

collateral estoppel operates to bar re-litigation of those issues listed in the agreed order as to all defendants

in this action.

II. WHETHER THE DISMISSAL OF JOEY'S RICO SUIT IN GEORGIA FEDERAL

COURT AND THE FINAL ORDER IN CHANCERY COURT BAR HIS CLAIM FOR

CIVIL CONSPIRACY UNDER THE DOCTRINE OF RES JUDICATA.

¶15. The summary judgment from which Joey now appeals makes no mention of the Georgia RICO action,

nor does it rely on the doctrine of res judicata in reference to the agreed order. Accordingly, we will now

only cursorily discuss the Georgia RICO action.

¶16. The RICO action alleged a conspiracy between Natalie, her parents, and Georgia citizens to deprive

Joey of his parental rights. The action was dismissed due to the running of the applicable statutes of

limitations and lack of personal jurisdiction. Therefore, it was not "actually litigated" and cannot act as a bar

to Joey's current suit under the doctrine of res judicata or collateral estoppel. M.R.C.P. 41(b); Patton v.

Mack Trucks, Inc., 556 So. 2d 679, 680 (Miss. 1989). As such, the Georgia RICO action has no effect

on Joey's present lawsuit in circuit court.

III. WHETHER THE CIRCUIT COURT ERRED IN DENYING JOEY'S MOTION TO

AMEND COMPLAINT.

¶17. Joey filed a motion to amend complaint, seeking to add The Malouf Furniture Co., The John Richards

Collection, Burgoon and Oakes, James W. Burgoon, Richard A. Oakes, Patrick M. Malouf, and Thomas

J. Carr as defendants and to allow the assertion of claims by Joe W. Smith, III, the minor son of Joey,

acting by and through his next friend and guardian, Joey.

¶18. We find that this issue is moot in light of our decision to affirm the circuit court's dismissal of Joey's

claims.

CONCLUSION

¶19. The circuit court was correct in finding that Joey's claims are barred under the doctrine of collateral

estoppel, and its judgment is affirmed.

¶20. AFFIRMED.

SMITH, P.J., WALLER, COBB, CARLSON AND GRAVES, JJ., CONCUR. McRAE,

P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. EASLEY, J., CONCURS

IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION.
PITTMAN, C.J., NOT PARTICIPATING.