IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2018-CA-01674-COA KAREN GRIFFIN APPELLANT

v. CLARK ADAMS APPELLEE DATE OF JUDGMENT: 10/19/2018 TRIAL JUDGE: HON. MARK SHELDON DUNCAN COURT FROM W HICH APPEALED: NESHOBA COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: JOSEPH ANTHONY DENSON ATTORNEY FOR APPELLEE: STEVEN DETROY SETTLEMIRES NATURE OF THE CASE: CIVIL - PERSONAL INJURY DISPOSITION: REVERSED AND REMANDED - 02/25/2020 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE CARLTON, P.J., WESTBROOKS AND McCARTY, JJ. WESTBROOKS, J., FOR THE COURT: ¶1. K a r e n G r i f

f in f iled a com

p laint f o r dam a ges a gainst Clark Adam s in the N e s h o b a County Circuit Court. Adam s f iled a m otion to dism i ss, asserting res judicata. Agreeing with Adam s , the c ircuit court dism issed Gr i ffi n ’ s com p laint. G rif

f in appealed. Af

ter reviewing the record b ef

ore us, we f

ind r e s judicata i s not applicable. T he circuit court erred in dism issing Grif f in’s com p l aint because there was no f inal judgm e n t on the m erits in the preceding justice court action. For the f o llowing reasons, we reverse a n d r e ma nd f o r f urther proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY¶2. An incident occurred on March 29, 2015, between Grif f in and Adam s. 1 On April 2, 2015, Grif

f in s ought em ergency relief and protection f rom dom estic abuse in the Neshoba County J ustice Court pursuant to Mississippi C ode Annotated s ection 93-21-15 ( 1)(a) (Supp. 2014). The justice court g ranted Grif f in’s petition and entered a “Te m p o r a r y D o m e stic Abuse Protection Order” on April 20, 2015, stem m ing f r om t h e a l l e g ations of sim

ple a n d aggravated

as s a ult, against Adam s. 2 Grif f in f iled the subject c om

plaint f or dam ages against Adam s in the N eshoba County Circuit Court on Septem ber 22, 2015. G rif

f in s ought c om

pensation f

or injuries and dam ages she alleged were the result of the March 29, 2015 incident involving Adam s , which was the s u bject of the Tem

porary Dom estic Abuse Protection O rder. Adam s f iled a m otion to dism iss Grif f in’s com plaint o n M a y 1 1 , 2018, alleging the circuit court action was barred under the doctrine of res judicata. The circuit court agreed with Adam s and dism issed Grif

f in’s com p laint on October 19, 2018. ¶3. In the one-page order granting Adam s ’s m otion to dism iss, the circuit court stated:

ON THIS DAY cam e Def endant, Clark Adam s, who f iles his “Motion to Dism iss,” in which he m akes the argum ent that the present m atter bef ore the Court is barred on the basis of res judicata.
To be sure, the Court will a ddress the f our-part te s t r e g a r d i ng res judicata presented i n Howard v. H o w a r d , 968 So. 2 d 961 [ (Miss. Ct. App. 2 0 0 7 ) ]

. (1) The identity of the subject m a tter in each is the s am e ; (2) th e identity o f the parties to the cause of action i s the sam e; (3) the identity of the

1 G rif f in alleg e s th at o n M arch 2 9 , 2 0 1 5 , A d am s cau sed h er b o d ily in j u ry b y v io len tly c h o k in g h er an d p u sh i n g h er to th e g ro u n d

. G r if f in claim s s h e su f

f ered a b r o k en rig h t sh o u ld e r an d o th er in

j u ries as a resu lt o f

th e su b j ect in cid en t

. 2 T h e reco rd ref

lects G rif f in co n ten d ed , an d C lark ag reed , th at th ere w a s n o t an actu al o rd er b u t in stead a j u stice co u rt ab stract o n f ile th at ill u s t r a t e d th e j u stice co u rt’s ru lin g . T h ere is n o d isp u te reg ard in g th e actio n s th at o ccu rred in th e j u stice co u r t. 2quality or character of the p erson against whom the c laim is m a d e is the sam e

and; ( 4) the j udgm ent of the Justice Court was a f inal judgm ent on the m erits. Theref o re, the Court f

inds a ll the requirem e nts of res judicata are m et and f urther f inds this m a tter be dism issed with prejudice.
T h e c i rcuit court of

f ered n o f urther explanation, f

indings o f f

acts, or conclusions of law regarding its decision to dism iss Grif f in’s com plaint apply ing the doctrine of r es judicata.
STANDARD OF REVIEW ¶4. W e review the circuit court’s dism i ssal of the c om plaint de novo. See C

lark v. Neese , 262 So. 3d 1117, 1122 (¶9) (Miss. 2019).
DISCUSSION ¶5. At issue in the instant case is w h e t h e r t he trial court erred i n dism i ssing Grif f in’s

com plaint under the doctrine of r e s j u d i cata. “ Generally , f o ur identities m

ust be present bef ore the doctrine of res judicata will be applicable: ( 1) identity o f the s ubject m atter of the action, (2) identity of the cause of action, (3) identity of the parties to the cause of action, and (4) identity of the quality or charac t e r o f a p e r son against whom the claim is m ade.” Dunaway v. Hopper , 422 S o. 2d 749, 751 ( Miss. 1982). “ If [ the] f our identities a re present,

. . . parties [ are] prevented f rom re-litigating [ any and] all issues tried in t h e [ p r e vious l a wsuit].” Id

. Matters that should have or could have b een litigated and decided in the previous action are equally barred under res judicata. Id

. ¶6. In addition to the f our identities enum erated above, res judicata only applies to f inal judgm ents on the m erits. Anders o n v
. LaVere , 895 So. 2d 828, 833 ( ¶10) (Miss. 2004).
“Even if all f

our elem ents of res judicata are satisf ied, the prior judgm e nt m ust be f inal and

3on the m erits.” Clark v. Neese , 2 62 So. 3d 1117, 1125 (¶23) ( Miss. 2019) (citing Anderson ,

895 So. 2 d at 832-33 (¶10)). Res judicata applies when a c ourt of com petent jurisdiction has entered a f

inal judgm ent on the m erits. Harrison v. Chandler-Sampson Ins. Inc. , 891 So. 2d 224, 232 ( ¶22) (Miss. 2005) ( quoting M iss. Dep’t of

Human Servs. v. Shelby , 8 02 So. 2d 89,
95 (¶24) ( Miss. 2 001)). “ [ R]es judicata precludes claim s that were actually l i t igated i n a previous action.” Id

. “Furtherm ore, not all judgm ents are on the m erits.” C lark , 262 So. 3d at 1125 (¶23) (citing Bowen v. Bowen , 688 So. 2d 1374, 1384 (Miss. 1997)). ¶7. L o oking to the instant case, both Grif f in’s justice c ou r t p e t i t i o n f o r t e mp o r a r y dom estic-abuse protection a nd her circuit cou r t c o m plaint against Adam s f

o r assault and battery involved the s am e p a rties and subject m atter. But as outlined above, in order f or res judicata to be applicable, there m ust have been a f

inal j udgm ent on the m erits. Id

. In order
f or the dism issal o f the circuit court action to b e proper, the justice c ourt action m ust have resulted in a f

inal judgm ent on the m e rits. ¶8. Grif

f in sought and was granted e m ergency protection f rom dom estic abuse pursuant

t o section 93-21-15. As written at the tim e of the subject incident, the statute r e a d s a s f ollows:
Af ter a hearing is held as provided in Section 93-21-11 f or which notice and opportunity t o be h eard has been granted to the respondent, and upon a f inding that the petitioner has proved the existence of abuse b y a preponderance of the evidence, the m

unicipal and justice c o u r t s s hall b e em powered to grant a temporary dom estic abuse protection order to b ring about a c essation of abuse of the petitioner, any m inor children, or any person a lleged to be incom petent. Miss. Code Ann. § 93-21-15(1)(a) (em phasis added). Adam s argued in his m otion to dism iss,

a n d a t the hearing in the circuit court, that the tem porary dom estic-abuse p rotection orde r

4entered by the justice court c onstituted a f i nal j udgm e n t on the m erits. The statute provides
f o r b oth tem

porary and perm anent orders; however, m u nicipal a nd justice courts are governed by section 93-21-15(1)(a), and as quoted a b o v e , they are only able to grant
tem porary orders. Such em ergency orders are “ef f ective f or t en day s or until a hearing m ay be h e l d , w h i c h e ver occurs f irst. If the hearing is c ontinued, the c ourt m ay extend the

em ergency order f

or up to twenty d ay s, a s it deem s necessary f or the protection o f the abused person.” W

aite v. Adkisson , 282 So. 3d 7 44, 7 46 (¶4) (Miss. Ct. App. 2019). Perm anent and
f inal orders are addressed in section 93-21-15(2)(a), w h i c h s t a tes that “the chancery or county
court s h a l l be em

powered to grant a final dom estic abuse protection order or approve any
consent agreem ent to bring about the cessation of abuse of the petitioner, any m inor children,

o r a n y person alleged to b e incom petent.” Miss. C ode Ann. § 93-21-15(2)(a) (em phasi s added). The justice c ourt only had authority to enter a tem porary order. Any perm anent order and accom

pany ing relief available under this s t atute w ould have to have bee n sought by Grif f in in the chancery

court. 3 W hile it is true Grif f in was f ree to seek additional and f inal

rem edies in the chancery c ourt, such statutory provisions were not her exclusive rem edies. She was equal l y f

r ee to litigate h er issues in circuit court as initiated b y f iling the subject

com plaint. ¶9. Grif

f in could not obtain any

thing other than tem

porary relief f rom the justice court. The statute is not am

biguous in outlining the c ourts perm itted t o provide t em porary relief and the courts with the authority to provide perm a nent relief

. Neither of w hich would bar Grif f in

3 Wh ile th e statu te say s p e rm an en t o rd ers an d relief can b e so u g h t i n th e co u n ty co u rt o r ch an cery

co u rt, N esh o b a C o u n ty

d o es n o t h av e a co u n ty

co u rt. 5f

rom seeking dam ages in tort. Regarding tem porary or injunctive relief , o ur Suprem e Court has stated that “an i njunction cannot constitute a f inal judgm ent upon the m erits of a case f rom which res judicata can be applied to a s u bsequent action.” Stewart v. Guar. Bank & Tr. Co. , 596 So. 2d 870, 871 (Miss. 1992). Our Suprem e Court has f urther held that res judicata does not appl y t o orders that are tem porary in nature. W

aller v. W aller , 754 So. 2d 1181,
1183-84 (¶¶12-13) (Miss. 2000). The instant case involves a tem porary order f

or dom esticabuse protection, which w as erroneously deem ed a f inal judgm e nt o n the m erits f or purposes of res judicata, barring Grif f in’s com plaint in circuit court. ¶10. Notwithstanding that the s ubje c t j u s t i c e c o u r t o rder was not a f inal j udgm ent f

or
purposes of res judicata, it is worth noting that the f irs t i d e n t i t y elem e nt, that there be “identity o f the s ubject m atter of the action,” is not m et, and theref ore res judicata does not apply f or this additional reason. The suprem e court has d escribed s ubject m atter i dentity “as identity in the thing sued f or,” Hill v. Carroll C

ty

. , 17 So. 3d 1081, 1085 (¶12) (Miss. 2009) (quoting Black v. N. Panola Sch. Dist. , 461 F.3d 584, 589 (5th Cir

. 2006)), or “the ‘substance’ of the lawsuit.” Id. (quoting Harrison , 891 So. 2d at 2 33 (¶26)). Although both actions f iled by Grif

f in arise out of the sam e M arch 29, 2015 inciden t b e t w e e n h er and Adam s , the em ergency relief and p rotection that Grif f i n obtained in the justice court pursuant
to M i ssissippi Code Annotated section 93-21-15 and G rif f in’s c i vi l l awsuit f

or dam ages against Adam s d o n ot share the sam e subject m atter i dentity

. I n p a r t i c u l ar, section 93-21- 15(1)(a), as in ef

f e ct at the tim e of

Grif f in’s March 29, 2015 petition, provided as f ollows:
Af ter a hearing is held as provided in Section 93-21-11 f or which notice and opportunity to be h eard has been granted to the respondent, and upon a f inding

6that the petitioner has proved the existence o f abuse by a preponderance of the

evidence, the municipal and justice c ourts shall be e mpowered to grant a temporary d

o mestic abuse protection order to bring about a cessation of abuse of the petitioner, any m inor children, o r any person alleged to be incompetent

. The relief the court m ay provide includes, but is not lim ited to, the f ollowing: ( i ) Directing the respondent to ref r ain f rom abusing th e petitioner, any m inor chil d r e n , o r any person a lleged to be incom petent; ( i i ) Prohibiting or lim iting respondent’s phy sical proxim ity to the a b u s e d o r other household m em bers as designated by the court, including residence and place of work; (iii) Prohibiting or l i mi t ing contact by the respondent with the a bused or o ther household m em bers designated by the c o u r t , whether i n person, by telephone o r by o ther electronic com m unication; (iv) Granting p o s s e ssion to the p etitioner of the residence or household to the exclus i on of the respondent by evicting the respondent or restoring possession to the petitioner, or both; or (v) Prohibiti n g the transf e r ring, encum

bering or o therwise disposing of property m

utually owned or leased b y the parties, except when in the ordinary course of business. (Em phasis added). ¶11. As such, this statutory provision af f o rds a m eans f

or a petitioner to obtain e quitable, injunctive relief in “m

unicipal or justice court” to “bring abo u t a c e s s ation of abuse of the petitioner, any m inor children, or an y person alleged t o be i ncom petent.” Id. The justice

court was without juris d i c t ion t o allow any ty p e of m onetary com

pensation or award dam ages but, instead, entered n e gative injunctions to Adam s r egarding abusing, stal k i n g , and contacting Grif

f in, as well as the transf

erring and disposing of

certain property

. ¶12. In com

parison, Grif

f in’s civil l awsuit against Adam s in the Neshoba County Circuit

7Court seeks a rem edy at law, nam ely dam ages f or injuries she alleges s h e r e c e i v e d i n the March 29, 2015 incident. There is no subject m atter identity be t w e e n t h e t wo proceedings under these circum stances. In short, the f irst identity elem ent required f or res j udicata—that there be i dentity of the subject m atter of the action—is not m et. Res j udicata does not apply because there i s no identity of the subject m atter b etween the two actions. A dditionally , res judicata does not apply i n this cas e because the tem porary restraining order granted by the justice court was not a f

inal judgm ent. ¶13. Grif

f in only sought tem

p orary injunctive relief i n the justice c ourt. The justice court had no authority pursuant t o the applicable statute t o provide G rif f in with any r elief besides

tem porary injunctive relief

. W hile in theory Grif

f in could have eventually s o ught perm anent relief in the chancery court, s he did not. She elected instead to f ile a suit based i n tort. There

was no f inal judgm ent on the m erits, and Grif f in has not had, nor waived, her opportunity to litigate the issues in the circuit court com plaint. I n f

act, th e c i rcuit court action is the f irst tim e Grif f in h as sou g h t p e r m anent relief o r a perm anent rem edy of any kind. The circuit

court erred by determ ining the justice court a ction was a f inal a djudication on the m erits and in subsequently

apply ing res judicata to dism iss the circuit court com plaint. ¶14. REVERSED AND REMANDED. BARNES, C.J., CARLTON, P.J. GREENLEE, TINDELL, M cDONALD, LAWRENCE, McCARTY AND C. WILSON, J J., CONCUR. J. WILSO N , P . J ., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

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