IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2014-CA-01509-COA BETH DONALDSON, COLIE DONALDSON AND COBY DONALDSON APPELLANTS

v. DOMINIC OVELLA APPELLEE
DATE OF JUDGMENT: 10/01/2014 TRIAL JUDGE: HON. LAW RENCE PAUL BOURGEOIS JR. COURT FROM W HICH APPEALED: HARRISON COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEYS FOR APPELLANTS: DAVID W A YNE BARIA ROBERT C. W ILLIAMSON JR. BRANDON CURRIE JONES ATTORNEY FOR APPELLEE: DORRANCE DEE AULTMAN JR. NATURE OF THE CASE: CIVIL - TORTS - OTHER THAN PERSONAL INJURY AND PROPERTY DAMAGE TRIAL COURT DISPOSITION: MOTION FOR SUMMARY JUDGMENT GRANTED IN FAVOR OF APPELLEE DISPOSITION: REVERSED AND REMANDED - 01/17/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., BARNES AND ISHEE, JJ. ISHEE, J., FOR THE COURT: ¶1. In February 2010, Dom inic Ovella s ued B & C C o n s t r u c t i o n a n d Equipm ent LLC (B&C) and its individ u a l o f f icers and em

ploy ees Beth, Colie, and Coby Donaldson (Donaldsons) in f

ederal district court. Ovella asserted a variety of clai ms arising f rom a construction contract between Ovella and B&C. All claim s against the D o naldsons, individually , were dism issed. Ovella’s claim s against B&C, however, w ere subm itted to thejury , w hich returned a take-nothing verdict i n f avor of B&C. T h e d istrict court s u bsequently denied B&C’s and the Donaldsons’ posttrial m o tions f or sanctions. B ef

ore this Court now

are the consolidated actions of the Donaldsons against Ovella f or the m alicious prosecution of that f ederal action, f

iled in the Harrison County Circuit Court in Novem ber 2012. The circu i t court granted Ovella’s m otion f or sum m ary judgm e nt in O ctober 2014, based upon pr o c e dural grounds, a s well as with respect to the m erits of the Donaldsons’ claim s. The Donaldsons now appeal. Finding error, we reverse.

STATEMENT OF FACTS AND PROCEDURAL HISTORY ¶2. In March 2008, Ovella and B&C e n t e r e d i n t o a c o n tract f or the construction of

a personal residence to be built i n Pass Christian, Mississippi. B&C agreed i n t he contract to
construct the hom e according to plans Ovella p rovided to it, a n d which were a ttached to the

contract. The contract s pecif ically noted, am ong other things, that t he house would be built

o n 12" x 12" wooden colum ns. The t otal contract price f or the hom e w as $559,000

. Throughou t construction, Ovella orally ordered a num ber of alterations to the plans. Specif ically , Ovella authorized a change to the hom e’s support colum n s . These colum ns

were originally proposed to be 12" x 12" wooden colum n s. However, O v ella orally approved

a change to the colum ns to m im ic b rick colum ns he had seen on another hom e that B&C had constructed. Ovella contends that he approved this change based on t he recom m endation and advice of Colie. Ultim ately , the colum ns were built as 10" x 10" woo d e n c o lum ns surrounded by s tucco bec a u s e o f a notable increase i n the price of brick c ladding f or the colum ns. Ovella claim ed that this change f rom s t u cco to brick was agreed to upon the

2condition that he would receive a credit toward other im provem ents f

or the hom e. Disputes exist in the f

orm of conf licting testim ony

regarding the alteration of t he colum ns. ¶3. In May 2009, Ovella and his spouse m oved into their h ouse, and received a certif icate of occupancy by June 2009. B&C sent a f inal b ill on O ctober 5, 2009, totaling $66,687.42, which included $38,869.26 f or upgrades, overages, and various additions that had been m ade

on the hom e during construction. Ovella claim ed that he had m ade tim e ly pay m ents f or the

c o n s t r u c t i on f

rom June 2 008 until October 5, 2009, with pay m e nts totaling $531,181.84. However, he ref

used t o pay the f

inal bill until a n u mb e r o f i ssues were resolved and he received credits he believed had n ot been deducted. Af ter that tim e, Ovella inf

orm ed B&C that he could f

e el the house sway i n high winds, a nd that m ovem e nt w ithin the hom e caused the house to m ove on t he colum n s. As a r esult, B &C installed bracing under the hom e, which Ovella conceded slightly helped with the issue o f s way ing. Over a period of several

m onths, Ovella issued var i o u s “ p u n ch lists” to B&C f or item s that Ovella wished to have continuously c hanged o r c o r r e c t e d

. Com m

unications e v entually broke down between Ovella and B&C over the disputed b alance, resulting in an im passe am ong the parties. Ovella then f iled a com plaint against B&C and the Donaldsons individually on March 1, 2010, in f ederal district court, regarding construction and pay m ent issues. ¶4. In Ovella’s com

p laint, O vella asserted v arious claim s against B &C, as w e l l as claim s against the Donaldsons individually f o r b r e ach of c o ntract, f

r aud, n egligence, and unjust enrichm ent. I n response, t h e D o n a ldsons individually f iled counterclaim s f

or i ntentional inf liction of em otional distress, as well as f or sanctions under 28 U.S.C. § 1927 (2012) and

3F e d eral Rule of C ivil P rocedure 11. 1 The Donaldsons voluntarily dism issed their intentionalinf liction-of -em otional-distress claim s over a y ear bef ore trial, and reserved their claim s f or sanctions at the close of t he f ederal trial in the f

o rm of posttrial m otions. The d istrict court dism issed all o f Ovella’s claim s against the Donaldsons individually , as well as all claim s by Ovella and B&C f

or unjust enrichm ent. Ultim ately , the jury f o und i n f avor of B &C. At the close of trial, the d istrict c ourt denied all claim s f or relief regarding sanctions under Rule 11 and 28 U.S.C. § 1927. Ovella did not appeal. ¶5. In Novem

b er 2012, each of the Donaldsons sued Ovella i n circuit court f or m alicious prosecution, negligent and intentional inf lic t i o n of em o tional distress, and to recover attorney ’s f

e es a nd e xpenses incurred during the def ense of the f

ederal action. Ovella m oved f or s um m ary judgm ent, which the circuit court g ranted. In doing so, the c ircui t c o u rt concluded that, based upon the f ederal action, the Donaldsons’ claim s w ere barred under the doctrines o f res j udicata, collateral estoppel, and judicial estoppel. The circuit court also held the Donaldsons f

ailed to present evidence suf f icient to create genuine d isputes o f m aterial f act regarding t h e me r i ts of their m alicious-prosecution claim s. The D onaldsons tim ely appealed. Finding error on the part of the circuit court, we reverse. STANDARD OF REVIEW ¶6. A trial court’s grant or denial of sum m ary judgm ent is reviewed de n ovo. Monsanto C o
. v
. H all , 912 So. 2d 1 34, 1 36 (¶5) (Miss. 2005). Sum m ary judgm ent is p roper i f “ t h e

1 T h ese claim s an d co u n t e r c l a im s are w h a t f o rm ed t h e b asis f

o r t h e D o n ald so n s’ m alicio u s -p ro s ecu tio n claim s f iled in th e circu it co u rt, w h ich in stig a ted th e p resen t m atter b ef o r e th is C o u rt. In ad d itio n , th e reco rd sh o w s n o in v o lv em en t b y B eth o th er th an b ein g a m em b er o f B &C

. 4pleadings, depositions, answers to interrogatories and adm i ssions o n f ile, together with the af f idavits, if any , show that there is no g enuine issue a s to any m a terial f act a nd tha t the

m oving party is entitled to a judgm ent as a m a tter of law.” M .R.C.P. 56(c). “If any triable f a c t s e x i s t , t he lower court’s grant of a sum m ary judgm ent will be reversed; otherwise the decision will b e a f

f irm ed.” Miller v. Meeks , 762 So. 2d 302, 304 (¶3) (Miss. 2000). The evidence m

ust be viewed in the light m o st f avorable to the party opposing the m otion. Davis

v. Hoss , 869 So. 2d 397 , 401 (¶10) (Miss. 2004). Only when the m oving party has m et its burden by dem onstrating that no genuine issues of m a terial f act exist s h o u l d s um m ary judgm ent be granted. Tucker v. Hinds Cty. , 558 So. 2d 8 69, 872 (Miss. 1990). “ [ W ]here the party opposing t he m o tion f or sum m ary judgm ent on a claim or def e nse upon which it bears the burden of proof at trial, and t he m oving party c an show a com plete f ailure of proof on an essential e lem ent of the claim or def ense, other issues b ecom e im m ateri a l and the m oving party is e ntitled to sum m ary judgm ent as a m atter of law.” Crain v. Cleveland L odge 1532, Order of Moose Inc. , 641 So. 2d 1186, 1188 (Miss. 1994). DISCUSSION I. The Circuit C ourt Erred in G r anting Ovella’s Motion for Sum m ary Judgm ent Because the Doctrines o f Res Judicata, Collateral Estoppel, and Judicial Estoppel Do N o t A p ply to t he Donaldsons’ Claim s ¶7. The circuit court held that the Donaldsons’ claim s were barred under the doctrines of res judicata, collateral estoppel, and judicial estoppel. W e disagree.

A. Res Judicata ¶8. T h e M i s s i s s i p p i S u p r e m e Court has stated t hat t he doctrine of r es judicata i s

5“f

undam ental to the equitable and ef f icient operation of the judiciary and ‘ref lects t he ref

usal of t he law t o t o l e r a t e a m ultiplicity of litigation.’” G ibson v. W illiams, W

illiams & Montgomery P.A. , 1 86 So. 3d 836, 844 (¶16) ( Miss. 2 0 1 6 ) ( q u o t i ng EMC Mortg. Corp. v. Carmichael , 17 So. 3d 1 087, 1090 (¶9) (Miss. 2009)). “The c ourts cannot revisit adjudicated claim s and ‘all grounds f

o r, or def enses to[ , ] recovery that w ere a vailable to the parties in the f irst action, regardless o f whether they were a s serted or determ i ned in the prior proceeding,

are barred f

r om re-litigation in a subsequent sui t u n der the doctrine of res judicata.’” Id. (citing Harrison v. Chandler-Sampson Ins. , 891 So. 2 d 2 24, 232 (¶23) ( Miss. 2005)). As a doctrine of public policy , r es judicata is “designed t o avoid the expense and vexat i on attending m

ultiple lawsuits, conserve judicial resource s , and f oster r eliance on judicial action by m inim izing the p ossibilities of inconsistent decisions.” Harrison , 8 91 So. 2 d at 224 (¶23) (internal quotations om itted). ¶9. In o rder f

or r es judicata to apply , f

our basic identities m

ust be present: (1) identity of the subject m atter of the action; (2) identity of the c a use of action; (3) identity of t he parties

to the cause of action; and (4) i dentity of the quality or c haracter o f t he person against whom the claim is m ade. G ibson , 186 So. 3d at 844 ( ¶17). Our suprem e court has also added the additional requirem ent that the prior judgm ent m ust be a f inal j udgm ent on the m erits. Id. All f ive identities m

ust be present, with t h e a bsence of any one being “f atal to the def

ense of res judicata.” Id. ¶10. On appeal, the Donaldsons argue that t he subject m atter of th e i r m a l i c i o u s - p r o s e c u t ion claim s and the subject m atter of their requests f or sanctions in the previous f ederal action are

6not identical. W e agree. Regarding the f i rst elem ent, t h e s u p r e me c ourt has def ined the “identity of the subject m atter of the action” to m ean “the substance o f the lawsuit.” Hill v. Carroll Cty. , 17 So. 3d 1081, 1085 ( ¶ 1 2 ) ( M i s s. 2009). The s u bject m atter o f the present

m atter is m a licious prosecution. ¶11. To succeed on a c l a i m f o r ma l i c i o u s p r o s e c u t i o n, a plaintif f m ust prove, by

a prepond e r a n c e of the evidence, six elem ents: (1) the institution o f a proceeding; (2) by , or
at the insistence of

, the def e ndant; (3) the term ination of such p roceeding in the plaintif f ’s f avor; (4) m a lice in i nstituting the proceeding; (5) want of probable cause f or the proceeding; and (6) the suf

f ering of the injury or dam age a s a r esult of the p rosecution. Miles v. Paul Moak of Ridgeland Inc. , 113 So. 3d 580, 585 (¶10) (Miss. Ct. A pp. 2 012). Thus, the subject

m atter in the present dispute is the a c t i o n s o f Ovella, whereas the subject m atter of the

m otions in the f

ederal case—sanctions u n d e r F ederal Rule o f Civil P rocedure 11 and 28 U.S.C. § 1 927—was the conduct of O vella’ s lawy e rs in pursuing those c laim s in f ederal

court. ¶12. Theref

ore, while there i s not Mississippi caselaw directly on point, other courts have held that Rule 11 and the tort of m alicious prosecution “dif f er in their nature, the elem ents of the claim s, and the potential rem edies.” C o hen v
. Lupo , 927 F.2d 363, 365 (8th C ir. 1991).
Because these are two separate and distinct actions, it has becom e well recognized that the grant or d enial of a R

ule 11 m otion does not serve as res judicata f or a subsequently f

iled claim f o r m alicious prosecution. See Lightning Lube Inc. v. W itco C orp. , 4 F.3d 1153, 1196 (3d Cir. 1993) (holding “the denial of a Rule 11 m otion does not f o reclose the assertion of

7a subsequent m a licious prosecution suit”); see also In re Southmark Cor p
. , 163 F.3d 925, 934-35 ( 5th Cir. 1999) (citing Port Drum Co. v. Umphrey , 8 52 F.2d 148, 150 (5th Cir. 1988) (holding “[ i]f Rule 11 did e xpand substantive rights, it would be i nvalid under the Enabling Act” b ecause R

ule 11’s purpose is to regulate procedure r ather t han create a new s u bstantive right o r a n independent cause o f action)). Even m ore authoritative is the advisory com m ittee

no t e t o Rule 11, w hich s pecif ically states that “ it should be noted that Rule 11 does not preclude a party f

rom initiating an independent a ction f or m alicious p rosecution or abuse of process.” Fed. R. Civ. P

. 11 advisory com m ittee’s note to 1993 am e ndm e nt (em phasis added). As such, we fi n d that the Donaldsons’ m a l icious-prosecution claim s encom pass both

a dif f erent subject m atter and cause o f a ction than the m otion f o r R ule 11 sanctions. Theref ore, res judicata cannot apply as two of the d octrine’s f ive identities are not satisf ied. ¶13. In addition, res judicata cannot apply to the Donaldsons’ claim s as t he f ederal court did not i ssue a f

inal j udgm ent o n the m erits. See Gibs o n , 186 So. 3d at 844 ( ¶17). For a f actual issue to be p r e c l u d e d , t here m ust have been an a ctual a d judication of the issue f ollowed by

a f ull and f air opportunity

to litigate the i ssue. Carmichael , 17 So. 3d at 1091 (¶16). From the record bef ore this Court, there is no evidence that the f ederal d istrict court adjudicated whether Ovella possessed probable cause w hen he sued the Donaldsons. Rather, the record re f

lects that the district court denied the Donaldsons’ Rule 11 m o tion on purely procedural grounds, a s the district-court judge explicitly stated, “The [ Donaldsons] have not shown that t hey com

plied with the saf

e harbor provision [ of Rule 11(c)(2)], and t heir m otion f or sanctions under Rule 11 will be denied on that basis.” By deny ing the D onaldsons’ Rule

811 m otion f o r sanctions on procedural grounds, t he f ederal district court never addressed the

m erits of the Rule 11 m otion. ¶14. In the sam e v e i n , t h e f e d e r a l district court’s denial of the Donaldsons’ 28 U.S.C. §1927 claim related to a ctions t aken by Ovella’s a ttorney s in the prosecution of the case, and in p articular, sought c osts and a ttorney ’s f e e s. Regarding this c l aim , the f ederal d istrict judge stated, “ The relevant inquiry is w hether the claim s were at least colorable at the tim e of the [ lawy ers’] signing of the com plaint.” Again, however, the D onaldsons’ section 1927 claim s

were against Ovella’s atto r n e y s ; i n t h e p r e s e n t a c tion, the Donaldsons’ m alicious-prosecution claim s relate only to Ovella. As such, the resolution of the Donaldsons’ section 1927 claim s has no bearing on the m erits of the Donaldsons’ m a l icious-prosecutions claim s under review by this Court. ¶15. In s um , to adjudicate whether Ovella possessed probable cause would have required the f ederal district court to go bey ond the elem e nts necessary in determ ining whether Rule
11 sanctions were proper. To reiterate, this is because the p rocedural device that is Rule 11 and the s ubstantive tort of m alicious prosecution “dif f er in their nature, the elem ents of the claim s, and the potential r em e dies.” Cohen , 927 F.2d a t 365. Theref o r e , as t he advisory

com m ittee note to Rule 1 1 c o n f i r ms, a Rule 11 adjudication does not b ar a subsequent

m alicious-p r o s e c u t i on action. Fed. R. Civ. P. 11 a dvisory com m ittee’s n ote to 1993

am endm ent; see also Cohen , 927 F.2d at 365 ( holding R ule 11 adjudication “did n ot decide [ whether the com

plaint] w as f

iled with[ ] p robable cause, whether [ the plaintif f s] acted with

m alice, or the am ount of dam ages [ t h e d ef e n dant] s u f

f ered as a result of [ the plaintif f s’]

9m isconduct. Those inquiries are irrelevant under Rule 11, but are the sum and substance of

the tort of m alicious prosecution.”). Thus, we f ind that the Donaldsons’ claim s are not barred by the doctrine o f res judica t a as the f ive e ssential identities of the d octrine have not been satisf i ed.
B. Collateral Estoppel ¶16. “ T h e d o c t r ine o f collater a l e s t o p p e l

— o f t e n c o n s i d e r e d t h e c o u s i n o f r e s judicata—serves a ‘dual purpose’ and ‘protects litigants f rom t he burden of re-litigating an identical issue with t h e s a m e p arty or his privy ’ and ‘prom otes judicial e conom y by preventing needless litigation.’” Gibson , 186 So. 3d at 845 (¶21) (quoting Mayor & Bd. of Aldermen, City of Ocean Springs, Miss. v. Homebuilders Ass’n of Miss. Inc. , 932 So. 2d 44, 59 (¶61) (Miss. 2006)). Collateral estoppel precludes “relitigating a specif i c issue, wh ich

was: ( 1) a c tually litigated in the f orm er action; (2) determ i ned by the f orm er action; and (3) essential to the judgm ent in the f orm er action.” Id. (citing Stutts v
. Stutts , 529 So. 2d 177, 179 (Miss. 1988)). Collatera l estoppel, however, is distinguished f rom res judicata in that it applies only to t hose issues “actually litigated and not to those issues which m erely could have been litigated in t he prior suit.” Id. F i n a l ly , our suprem e court has h eld that both doctrines of res judicata and c ollateral estoppel, “even if f ound to be perm issible, are not inf lexible com m ands which m ust be brutally enf

orced in all cases.” Id. ( internal quotations

om itted). ¶17. In granti n g O v e l l a ’ s mo t i o n f o r s u m m ary judgm ent, the circuit court held the Donaldsons’ claim s were barred by collateral estoppel “since their individual counter-claim s

1 0were dism isse d a s a m atter of law[ , and] [ t]he Donaldsons cannot com plain of m alicious prosecution since they them selves lost the v ery sam e claim s by counter-claim /third-party

com plaint that they allege O vella m aliciously prosecute d

. ” For reasons sim ilar to those d i s c u s s e d concerning res j udicata, however, w e h old that collateral estoppel cannot apply

. Sim ply put, all the elem ents of

collateral estoppel are not satisf ied. ¶18. As discussed above, the m erits of whether Ovella possessed probable cause or m alice in the institution of t he f

ederal action was not actually litigated in the f orm er action, was not determ ined by the f

orm er action, and theref ore, could not have been ess e n t i a l to the judgm ent. See G ibson , 186 So. 3d at 846 (¶23). For these r e a sons, this Court f inds that neither res judicata n or c ollateral estoppel precludes the Donaldsons’ m alicious-prosecution claim s in the present m atter.

C. Judicial Estoppel ¶19. “Judicial e stoppel i s design e d t o p r o t e c t t h e j u d i c i a l s y s tem and applies where ‘intentional self

-contradiction is being used as a m eans o f obtaining unf a i r ad v a n t a g e i n a f orum provided f

or suitors seeking justice.’” Id. at (¶24) (quoting Kirk v. Pope , 973 So. 2d 981, 991 (¶ 31) (Miss. 2007)). Judicial estoppel arises “when one party a sserts a position contrary to one t aken in a p rior litigation,” a nd “precludes a party f rom asserting a position, benef itting f rom that p osition, and then, when it becom es m ore convenient or p rof itable, retreating f

rom that position later in the litigation.” Id. (internal citations om itted). ¶20. The elem ents necessary t o dem onstrate judicial estoppel are: (1) the position m ust be clearly inconsistent with one taken during previous litigation; (2) th e c ourt m ust have

1 1accepted and relied on the previous position; and (3) the party m ust not have inadvertently taken the inconsistent position. Id. at (¶25). The doctrine shall not apply , however, where

a p a rty does n ot benef

i t f rom the assertion of a prior position. Id. R eviewing t he r e c o r d bef ore us, we f

ind that judicial estoppel does not apply in the present m atter. ¶21. The circuit court held that the Donaldsons’ claim s were barred under judicial estoppel be cause t he Donaldsons had “ chang[ ed] their positions” by virtue of the “corporate shield [ being] waived in both m atters.” Thus, the c ircuit court concluded t he D onaldsons had taken inconsistent positions by asserting i n d ividual counterclaim s in the f e deral action against Ovella, b ut later asserting the “ cor p orate shield” d ef ense in the p resent action. W e respectf ully disagree with this characterization by the circuit court, as the corporate-shield def ense i s neither an af

f irm ative def

ense, nor was it w aived b y t he Donaldsons i n e ither action. ¶22. In the original f

ederal-court a c t i o n , O v e l l a sued B &C as well as t he Donaldsons individually . In their answers to Ovella’s f ederal-court com

plaint, the Donaldsons alleged that they “were acting in the course and s cope of their em ploy m ent with B&C Construction, LLC,” and in a ddition, t hat Ovella had pled “no f acts or allegations justif

y ing the claim s against the individual d ef endants.” In the p r e sent m alicious-prosecution action, the Donaldsons allege t hat Ovella’s claim s were i nstituted against them “without p robable cause and f or m alicious purposes including harass[ m ent] and coerc[ i on] causing [ them ] f inancial hardship, and r etaliating a g a inst [ them ] f o r actions taken by others.” W e f ind the Donaldsons’ p osition in the f e deral case to be w holly consistent with their position in the

1 2present m atter. As such, the f irst prong of t he judicial-estoppel f ram ework is not satisf

ied. ¶23. Ovella argues, however, that the corporate-shield def e nse is an af

f irm a tive def

ense, and m ust have been af

f i rm atively pled by the Donaldsons. Ovella f urther ar g u e s t h a t by

a s s e r ting individual counterclaim s in the f ederal action, the D onaldsons waived t h e corporate-shield def

ense, a nd thus, cannot assert the c orporate shield here, t hereby adopting

an inconsistent position than that in the f ederal a c tion. W e f

ind this argum e nt without m erit,

as neither Federal Rule of Civil Procedure 8(c)(1), nor Mississippi Rule o f Civil Procedure 8(c), delineates the “corporate shield” as an af f irm ative def

ense. Furtherm ore, nothing in the record indicates that Ovella af f irm atively pled any grounds showing his intention to pierce the cor p o r ate veil, or that the Donaldsons’ actions were taken outside or bey ond the scope of their authority as of

f icers a nd m em

bers of B&C. See Powertrain Inc. v. Ma , 640 F. App’x 263, 266 (5th Cir. 2016) ( holding “[ c]orporate veil claim s are analy zed under state law”); see also Can. Nat’l Ry. Co. v
. Wa l t m a n , 94 S o. 3d 1111, 1116 (¶9) (Miss. 2012) (holding “in order to m ake a prim a f a cie case of jurisdiction, the p laintif f m ust m ake s u f

f i c i e ntly particularized allegations dem onstrating the applicability of the piercing doctrine to the f acts of the case”). ¶24. As the f

irst prong of the judicial-estoppel f r am ework cannot be satisf ied, we f ind the latter two prongs of the doctrine are theref ore inapplicable. Ovella d id not properly plead or provide specif

ic allegations regarding his intention to pierce B&C’s corporate veil, and the Donaldsons did not waive the c orporate-shield def ense in either the f

ederal action or the present m atter. As we f

ind t he Donaldsons have not adopted an inconsistent position, we

1 3likewise f

i nd that the Donaldsons have n ot benef itted f rom their prior p osition, and theref ore, their claim s are not b arred by judicial estoppel. See G ibson , 1 86 So. 3d at 846-47 ( ¶¶25, 29) ( h o l d i n g that the doctrine of j udicial estoppel cannot apply where a party does not be n e f i t f rom a prior position). T hus, reviewing the r ecord anew, this Court f i n d s t h a t t h e circuit

court erred in b a rring the Donaldsons’ m alicious-prosecution c l aim s under t he doctrines of res judicata, collateral estoppel, and judicial estoppel.
II. G e n u ine Issues of Material Fact Ex ist as to Whether Ovell a Possessed Probable Cause and Malice ¶25. A s we f

i nd that t he circuit court erred in g ranting O vella’s mo t i o n f o r s u mma r y judgm ent on p rocedural grounds, we a lso f ind t h e existence of genuine d isputes regarding

m aterial f acts related to the m erits of the Donaldsons’ m alicious-prosecution claim s . I n particular, we f

ind that the circuit court erred in f inding there is no genuine dispute as to any

m aterial f act regarding whether Ovella possessed probable cause a nd m alice in the assertion of his f ederal claim s against the Donaldsons individually

. A. Probable Cause ¶26. U n der the tort o f m alicious prosecution, “ [ p ]robable cause is d eterm in e d f r o m t h e f acts apparent to the observer when prosecution is initiated.” Miles , 1 13 So. 3d at 585 (¶11).
To establish “probable cause requires t he concurrence of (1) a subjective elem ent—an honest belief in the guilt of t he p erson a ccused, and (2) an objective elem ent—reasonable grounds f or such belief

s .” Id. R egarding the elem ent of p r o b a b l e c a u se, the circuit f ound that probable cause was evidenced by (1) the denial of sanctions; (2) Ovella’s claim s surviving

two separate m otions f

or sum m a ry judgm ent; a nd (3) Ovella’s claim s f o r n e g l i gence,

1 4m isrepresentation, breach of warranty , and breach of contract were all subm itted to a jury ,

and s urvived a m otion f

or a judgm ent as a m atter of law. Reviewing the evidence in the light

m ost f avorable to the Donaldsons, however, we f ind the c i r c u i t court’s reliance on these aspects m isplaced, and theref ore, erroneous. ¶27. As discussed a

bove, the denial of sanctions by the district-court j udge u nder Federal Rule 11 an d 2 8 U

. S .C. § 1927 d id n ot address the m erits o f whether Ovella possessed probable cause or m alice in the initiation of his f ederal action. See Cohen , 927 F .2d at 365 ( h o l d i n g R

ule 11 adjudication “did not decide [ w hether the com plaint] was f

iled with[ ] probable cause, [ or] whether [ the plaintif f s] acted with m a lice

. . . . Tho s e i nquiries are irrelev a n t u n der Rule 11, but are the sum and substance of the t ort o f m alicious prosecution.”). In a ddition, the tw o mo t i ons f or sum m a ry judgm ent that the circuit court relied upon had no relation to whether Ovella possessed probable c ause and m alice in the f ederal action. Rather, as the district-court judge pointed out in the record, the m otions f or

sum m ary jud g me nt r elated to “ alleged building code violations” and Ovella’s “duty to

m itigate [ his] dam ages.” Finally , the f act t hat Ovella had c e rt ain claim s subm i tted to the jury , as well a s s u r v i ved a m otion f or a judgm e nt as a m atter of law, is irrelevant to the present action. These claim s p e r tained directly to liability on the p art of B&C—not the Donaldsons individually

. This is f urther e v i d e n c ed by the district court’s dism issal of all claim s b y Ovella against t he Donaldsons i ndivi d u a l l y , stating there was “insuf f icient evidence t o support [ Ovella’s] claim s against t h e individual [ d]ef endants.” Thus, we f

ind that the circuit court erred in rely ing on these com p onents as undisputed e vidence that Ovella

1 5possessed suf f icient probable cause. ¶28. Moreover, the record ref lects conf licting t estim o ny regarding whether Ovella’s house would be “sway p roof

” or “sway resistant,” as well as t he size and ty pe of c o lum ns that would be used to s upport Ovella’s hom e . Ovella testif i ed that Colie and Coby represented

to him that Ovella’s hom e would be sway proof , m eaning h is hom e would not sway or m ove in the wind. C olie and Coby testif ied, however, that they inf orm ed Ovella otherwise—that Ovella would not e x p erience excessive m o vem ent in the wind, thereby m aking his hom e sway resistant, rather than s way proof

. In addition, O vella also testif ied that Colie and Coby represented to him that his hom e would be b uilt on 12" x 12" wooden colum ns. W hile 12"

x 12" colum ns were originally agreed upon by Ovella a n d B&C, Colie a nd Coby contested this testim ony by testif

y ing them selves that Ovella directed B&C t o a lter the colum ns to be 10" x 10", based upon a dif f erently sty led hom e Ovella h ad been shown by B &C. On crossexam ination, Ovella adm itted he had ordered B&C to m ake the changes, and m oreover, that he had been advised by an engineer any house b uilt on s tilts was subject to som e m ovem ent in the wind. ¶29. Furtherm ore, r egarding whether Ovella’s h ouse sway ed excessively , Ovella neither
requ e s t e d nor conducted any i nvestigation by an engineer p rior to suing B&C and the
D o naldsons individually in f ederal court. “ W here a reasonable person w ould investigate f urther prior to instit u t i n g a p roceeding, the f ailure to d o so indicates a lack of probable cause.” J unior Food Stores Inc. v. Rice , 671 So. 2d 67, 74 (Miss. 1996). W e f i nd this f act
to weigh against the circuit court’s f inding that, as a m atter of law, Ovella possessed probable

1 6cause. Furtherm ore, w hen f acts are in dispute, such a s i s the case regarding the conf licting

t e s t i mo ny by Ovella, Colie, and Coby , probable c a use becom es a jury issue. See M o o n v
. C o ndere Corp. , 690 So. 2d 1191, 1195 (Miss. 1997). As such, we f ind there i s a g e n u i n e dispute as to m a terial f

acts regarding whether O v e l l a p ossessed probable cause (i.e., an honest belief and reasonable grounds f or such a belief

). See Miles , 113 So. 3 d at 585 (¶11).
B. Malice ¶30. Ne x t , t o determ ine whether Ovella acted with m a lice, Mississippi courts look to a party ’s subjective state o f m ind. Nassar v. Concordia Rod & Gun Club Inc. , 682 So. 2 d 1035, 1042 (Miss. 1996) (citing Owens v. Kr o g er Co. , 430 So. 2d 843, 846 (Miss. 1983)).
In a n ef f ort to def i ne m alice, the suprem e court has said that the term “m alice” in the law of

m alicious prosecution is used in a n a r t i f i c i al and legal sense and applied to prosecution instituted prim arily f

o r s o me purpose other than that of bringing an of f e nder to justice. Benjamin v. Hooper Elec. Supply Co. , 568 So. 2d 1182, 1191 ( Miss. 1990); O wens , 430 So. 2d at 846. Malice in the artif icial and legal sense does not ref er to m e an o r evil intent as a lay m an m ight o r d i n a rily think. The determ ination of m alice is a question o f f act to be determ ined by t he jury u n less only one conclusion m ay rea s o n ably be drawn f rom the evidence. Malice m ay

be and usually is shown by circum stantial evidence. See Benjamin , 568 So. 2d at 1191; see also Strong v. Nich o l s o n , 5 80 So. 2d 1288, 1293 (Miss. 1991). Moreover, a

bsence of p robable cause f o r the p rosecution i s circum stantial evidence of

m alice. Trilogy Commc’n Inc. v. Times Fiber C ommc’n I nc. , 47 F. Supp. 2d 774, 780-81 (S.D. Miss. 1998). Finally , m alice m ay be i nf erred f rom a f inding that the def

endant acted

1 7in reckless disregard of the other person’s rights. Brown v. United States , 653 F.2d 196, 199

(5th Cir. 1981), cert. denied , 456 U.S. 925 (1982). ¶31. Apply ing t hese principles to the f a c t s i n t h e r e c o r d b e f

o re u s, w e f

ind there are genuine disputes as to m aterial f acts with respect to whether O vella possessed m alice in the institution of his f

ederal claim s against the Donaldsons individually

. A s ab s e nce, or the possible absence, of probable cause f or the prosecution is circum s t antial evidence of m alice,

we f ind there is a genuine dispute as to Ovella’s s t ate of m ind at the t im e of his f iling the f ederal action

. See Trilogy Commc’n , 47 F

. Supp. 2 d at 7 80-81. Moreover, we f ind that

sum m ary judgem ent was im proper regarding this elem ent of the Donaldsons’ m aliciousprosecution claim s as this elem ent is g enerally a question f o r the jury

. S

e e i d

. L astly , we f ind that a reasonable jury could inf er that Ovella acted with m alice by recklessly initiating the f ederal action against the Donaldsons individually without conducting any p re-suit investigation regarding the sway ing of his hom e. See Brown , 653 F.2d at 199. As such, we f ind that t he Donaldsons produced signif icant probative e vidence of a g enuine issue f or trial regarding probable cause and m alice. Pric e v
. P u r d u e P h arm. Co. , 9 20 So. 2d 479, 485 (¶16) (Miss. 2006). CONCLUSION ¶32. Reviewing t h e r e cord anew, this Court f inds that genuine d isputes of f acts m aterial

to t he outcom e of this case clearly exist and shou l d b e l e f t to r esolution by the f

actf inder. Af ter c onsidering the evidence in the light mo s t f a v o r a ble to the Donaldsons, w e f ind that the circuit court erred in granting Ovella’s m otion f or sum m ary judgm ent on p rocedural

1 8grounds, as w e l l a s in its f indings regarding t he m erits of the D onaldsons’ m aliciousprosecution c l a i ms . Theref ore, we m

ust reverse the judgm ent of t he circuit court, and

rem and the case f

or f urther proceedings consistent with the f indings of

this opinion. ¶33. T H E J U D GMENT OF T HE HARRISON C OUNTY CIRCUIT COURT, FIRST JUDICIA L D I S TRICT, IS REVERSED, AND T HIS CASE IS REMANDED FOR F U R T H E R P R O C E E D I N G S C O N S I S T E N T W I T H T H I S O P I N I O N . A L L C O S TS O F THIS APPEAL ARE ASSESSED TO THE APPELLEE. LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES , FAIR, WILSON AND GREENLEE, J J., CONCUR. CARLTON, J., DISSENTS WIT HOUT SEPARATE WRITTEN OPINION. WESTBROOKS, J., NOT PARTICIPATING.

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