IN THE SUPREME COURT OF MISSISSIPPI NO. 2018-IA-01172-SCT MICHELE BIEGEL AND BETTIE RUTH JOHNSON

v. BARRY WADE GILMER

DATE OF JUDGMENT: 07/30/2018 TRIAL JUDGE: HON. CHRISTOPHER A. COLLINS TRIAL COURT ATTORNEYS: BARRY W

. GILMER CHUCK McRAE SETH CLAYTON LITTLE ROBERT G. GERMANY DANIEL J. MULHOLLAND JOSHUA BRIAN STRETCH COURT FROM W HICH APPEALED: MADISON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANTS: ROBERT G. GERMANY ATTORNEY FOR APPELLEE: BARRY W A DE GILMER (PRO SE) NATURE OF THE CASE: CIVIL - TORTS-OTHER THAN PERSONAL INJURY & PROPERTY DAMAGE DISPOSITION: REVERSED AND REMANDED - 02/13/2020 MOTION FOR REHEARING FILED: MANDATE ISSUED:

BEFORE KING, P.J., CHAMBERLIN AND ISHEE, JJ. ISHEE, JUSTICE, FOR THE COURT: ¶1. This is an interlocutory appeal f rom an order o f t h e M adison County Circuit Court transf erring a suit to the Hinds C ounty Chancery Court b ased on the f irst-to-f ile rule. 1 Most

1 See, e.g. , RAS Fam ily Partners, L P v. Onnam Bilox i , LLC , 968 S o. 2d 926, 929 (Miss. 2007).o f the claim s w ere properly t ransf erred, b ut a ll p arties to t his a ppeal a gree it was error to transf er the claim s a gainst two of the def endants, Michele Biegel and Bettie Ruth Johnson.
W e recognize the inherent power of t h e c i r c u i t c ourt to control its own d ocket, but af ter reviewing the record, we agree t hat the transf er of the entire case was erroneous. W e reverse the transf er of t he claim s against Biegel and Johnson, and we rem and the case to the Madison County Circuit Court.
FACTS ¶2. The u nderly ing controversy is a f ee dispute between attorney s Seth Little, Barry W a d e Gilm er, and Chuck M cRae. McRae s u e d G i lm er in the Hinds County Chancery Court, claim ing unjust enrichm ent and seeking a n a ccounting. McRae also f iled suit i n f

ederal court, adding various claim s including an alleged violation of the RICO Act. 2 ¶3. Gilm er later f

iled this suit in the M a d i s o n C o u n t y C i r cuit Court against McRae’s attorney s i n the f

ee dispute, M i chele Biegel and Bettie Ruth J ohnson. Gilm er’s circuit-court

com plaint accused them of “conspir[ ing] to def eat and steal t he benef

its o f Barry W ade Gilm er’s cont i n g e ncy f

ee contract” by “instruct[ ing] Chuck M cRae on July 15, 2016 to
contact [ t he client] by telephone” “f or f raudulent pecuniary gain.” G ilm er’s com plaint also sought an injunction a gainst McRae, Biegel, and Johnson to s top their “persistent ef f orts to prosecute f

rivolous claim s against [ Gilm er].” ¶4. Biege l a n d J o h n s o n f iled a special entry of appearance and a m otion t o d ism iss the

com plaint against them

. McRae requested that the claim s against h im be transf erred to the

2 T h e R ack eteer In f

lu en ced an d C o r

ru p t O r g a n i z a t i o n s A ct. S ee 1 8 U .S

. C

. § 1 9 6 4 (2 0 1 2 ). 2Hinds County Chancery Court, i n w h i c h McRae p reviously h ad f iled suit a gainst Gilm er. The Madison C o u n t y Circuit Court ordered the entire suit, including the claim s against Biegel and Johnson, t ransf erred. T h e c i r c uit court denied Biegel and Johnson’s m otion to reconsider. This Court granted interlocutory appeal on Novem

ber 14, 2018.
DISCUSSION 1. Transfer Order ¶5. T h e Madison County Circuit Court t ransf erred Gilm er’s c laim s against B i e g e l a n d Johnson to the Hinds C ounty C ha n c e r y Court, i n which McRae had a pending suit against Gilm er. The circuit court had bef o re it a m otion to transf

er, but it was only as t o the claim s against McRae. ¶6. The c ircuit court based its dec i s i o n o n t he “f irst to f ile” or “race to the courthouse” rule. RAS Fam ily Partners , 968 So. 2d a t 929. “ [ W ]here two suits b etween the sam e parties over the sam e controversy are brought in courts o f concurrent jurisdiction, the court which f irst acquires jurisdiction retains j urisdiction over t he whole controversy to the exclusion or abatem ent o f t h e second suit.” Id. (internal quotation m arks o m itted) (quoting Scruggs, Millette, Bozem a n & Dent, P.A. v. Merkel & Cocke, P.A. , 804 So. 2d 1000, 1 006 (Miss. 2001)). This Court has said that
A p roper test i n d eterm i n i n g w hether o r n ot a subsequent action should be abated on account of the pendency o f a prior action is: W ould the judgm ent in the prior action be conclusive b etween the parties and o perate as a bar to the second, or, in o t h e r words, would the judgm ent in a prior action be res adjudicata of

the issues presented in the second suit? 1 C.J. 66. State v. Large , 164 Miss. 318, 145 So. 346, 347 (1933).

3¶7. All parties agree that transf er of G ilm er’s c l aim s a g ainst Biegel and Johnson to the chancery court was e rroneous. B ut this Court can disregard an appellee’s conf ession of error and af f irm if it “can say with conf idence, af ter considering the r ecord and brief o f a ppealing party , that there was no error.” Dennis v . Dennis , 234 So. 3d 371, 374 (Miss. 2017) (internal
quo t ation m ark om itted) ( quoting Sanders v. Cham blee , 819 So. 2d 1275, 1277 (Miss. 2002)). And we a re m indf ul that our trial courts have the inherent authority t o control their own dockets. See, e.g. , City of Jackson v. Rhaly , 95 So. 3d 602, 607 (¶10) (Miss. 2012). ¶8. Biegel and Johnson argue transf er was not r equired under t he f i rst-to-f ile rule because the elem ents of

res judicata are not m et. See Large , 145 S o. at 347. Res judicata “bar[ s] a subsequ e n t a t t em

pt to litigate a claim already d ecided.” Clark v. Neese , 262 So. 3d 1117,
1122 (Miss. 2019) (citing Harrison v. Chandler-Sam p son Ins., Inc. , 891 So. 2d 224, 232 (Miss. 2005)). Res judi c a t a “ i s a d o ctrine of public policy designed to avoid the ‘expense and vexation’ o f attending m ultiple lawsuits, conserve judicial resources and f oster reliance

on judicial action by m inim izin g t h e p o s sibilities of inconsistent decisions.” I d. (quoting
Little v. V

& G Welding Supply, Inc. , 704 So. 2d 1336, 1337 (Miss. 1997)). It “generally requires the presence of

f our identities: ‘(1) identity of the subject m atter of the a ction, (2) identity of the cause of action, (3) identity of the p arties to t h e c a u s e o f action, and (4) identity of the quality or character of a person against w hom the c l aim is m a de.’” Clark , 262 So. 3d at 1122 (quoting H i nton v. Rolison , 175 So. 3d 1252, 1258 (Miss. 2015)). ¶9. This Co u r t ’ s h o l d i n g i n L a r g e i s i nstructive—there, we held that there was no abatem ent of t h e s econd suit because, although the identity and subject m atter of the second

4lawsuit w ere the sam e, the parties were dif f e r ent. Large , 145 So. a t 347. In today ’s case, the identity of the action and t he subject m atter are the sam e, but Biegel and Johnson were acting

as McRae’s attorney s in the chancery -court suit and were not them selves parties. It was not

com pulsory f or Gilm er t o assert his claim s agai n s t B i e gel and Johnson in that suit. See M.R.C.P. 13(a) (counterclaim s are com pulsory only against “any

opposing party ”). ¶10. Since Biegel and J ohnson were not parties to the chancery -court action, there was no exclusion or abatem ent of the circuit-court suit against them

. S ee Large , 145 So. at 347. The circuit c ourt thus erred by transf erring the suit against B i e g e l a n d Johnson t o t he chancery
court. 2. 12(b)(6) Dism issal of Claim s ¶11. Finally , Biegel and Johnson argue t hat this C o u r t s hould dism iss the claim s against them f or f ailure to state a claim on which relief can b e granted. See M.R.C.P. 12(b)(6). But Biegel and Johnson did not raise this issue in their principal appellate brief

. Mississippi Rule of Appellate Procedure 28(a)(3) requires that the brief o f the appellant contain a Statem ent

o f I s s u e s that “ shall identif y the issues presented f

or review.

. . . Each i ssue presented f o r review shall be separately num bered in th e s t a t e me nt.” And “ [ n]o issue not distinctly identif ied shall be a rgued b y counsel, except upon request of the court, b ut the court m ay , at its option, notice a plain error not identif i ed or d istinctly specif

ied.” M

. R

. A

. P

. 28(a)(3). Rule 2 8(a)(7) f

urther requires that the appellant’s brief “contain the contentions of appellant with r espect to t he issues presented, and the r easons f or t hose contentions, with citations to the a uthorities, statutes, and parts of the record relied on.” M .R.A.P. 28(a)(7). Consequently ,

5“this Court does not consider issues raised f or t he f irst t im e in an a

ppellant’s r e p l y b r i e f

. ” Ray v. State , 238 So. 3d 1118, 1122 n.3 (Miss. 2 018) (citing Sanders v. State , 678 So. 2d 663, 669-70 (Miss. 1996)). This issue is procedurally barred.
CONCLUSION ¶12. W e reverse the c ircuit court’s transf er o f the claim s against Biegel and Johnson and

rem and the case to the Madison County Circuit Court f or f urther proceedings consistent with this opinion. ¶13. REVERSED AND REMANDED. RANDOLPH, C.J., KITCHENS AND KING, P.JJ., COLEMAN, M AX WELL, BEAM, CHAMBERLIN AND GRIFFIS, JJ., CONCUR.

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