IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2015-CP-01237-COA ANNIE Y. GRIFFIN AND FREDERICK GRIFFIN APPELLANTS

v. ABN AMRO MORTGAGE GROUP, INC., ITS AFFILIATES, HEIRS, AND ASSIGNS, MORRIS & ASSOCIATES, EMILY K. COURTEAU, INDIVIDUALLY AND IN HER CAPACITY AS SUBSTITUTED TRUSTEE ON THE DEED OF TRUST, AND CITIMORTGAGE INC., AS SUCCESSOR IN INTEREST TO ABN APPELLEES

DATE OF JUDGMENT: 08/21/2015 TRIAL JUDGE: HON. MITCHELL M. LUNDY JR. COURT FROM W HICH APPEALED: DESOTO COUNTY CHANCERY COURT ATTORNEYS FOR APPELLANTS: FREDERICK GRIFFIN (PRO SE) ANNIE Y. GRIFFIN (PRO SE) ATTORNEYS FOR APPELLEES: BRADLEY BARRON VANCE RICHARD CARLTON KELLER MICHAEL ALAN JEDYNAK NATURE OF THE CASE: CIVIL - OTHER TRIAL COURT DISPOSITION: ACTION DISMISSED FOR FAILURE TO PROSECUTE DISPOSITION: AFFIRMED - 05/16/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., ISHEE AND GREENLEE, JJ. GREENLEE, J., FOR THE COURT: ¶1. Annie and F rederick Grif f i n stopped pay ing their m ortgage f o llowing a disagreem ent with their m ortgage p rovider over m od i f i e d loan term s. In 2 007, they s u ed their m ortgage carrier, ABN, in the Chancery Court of DeSoto County ( Griffin I ), alleging f

raud as well as violations of the Fair D ebt Collection Practices Act ( FDCPA) and the Truth i n Lending Act(TILA). The c ase was rem o v ed to f ederal court, a n d in 2012 the district court dism issed the action f or f a ilure to p rosecu t e . T h e court’s order noted that it h ad previously warned the Grif f ins t h at dism issal f

or f ailure to prosecute was i m m inent if the case did n ot m ove f orward, and a lso noted t hat the G rif f ins appeared to be engaged in a deliberate strategy of

ex t ending the lif

e of the litigation indef

initely

. Af

t er the case was dism issed, the Grif f ins f iled a n e w, substantially identical com plaint i n DeSoto C ounty Chancery Court ( Griffin II ). Griffin I I was dism issed on the ground of r es judicata. The Grif f ins appeal the dism issal of Griffin II to this Court. Finding no error, we af f irm

. FACTS AND PROCEEDINGS BELOW ¶2. In Griffin I

, the def e ndant m ortgage com

pany sought t o com

pel arbitration af

ter being sued by the Grif

f ins over m o dif

ied loan term s. The m otion t o arbitrate was granted, but the

ca s e w a s rem anded back t o f ederal court in June 2010 af ter the designated arbitrator withdrew f

rom the c onsum er arbitration business. In March 2011, the Grif f ins f iled a m otion

to declare t he a rbitration agreem ent une n f orceable. To m ove the litigation along, the def endants f iled a m otion to w ithdraw their re q u est to c o m pel arbitration, consenting to proceed in court. The district court granted the m otion. ¶3. The Grif

f i n s t h e n f

i l e d a p r o s e mo t i o n o b j e cting to the court’s grant of the def endants’ withdrawal o f the r equest to com pel arbitration. 1 The Grif f ins o b j e c t e d to the

1 A t th is p o in t in th e litig atio n th e co u rt g ran ted th e G rif f i n s’ atto rn ey ’s req u est to w i th d raw . T h e atto r

n ey rep r esen ted to th e c o u rt: T h e u n d ersig n ed atto rn ey is n o l o n g er ab le to ef f e c tiv ely co m m u n icate w ith th e P lain tif

f s c o n c e r n in g t h e litig atio n o f th is case . . . . T h e clien ts in th is m atter in sis t o n p u rsu in g o b j ectiv es t h a t th e u n d ersig n ed co n sid ers to b e 2m otion being granted prior t o t h e i r h a ving an opportunity to r espond (even though the

Grif f ins had a standing m o tion to f ind the arb itration agreem ent unenf o rceable), and then proceeded to argue that the m ortgage contract bound both p arties t o resolve d i s p u t e s by arbitration. ¶4. On May 23, 2 012, the district court entered an order on its own m otion dism issing the

case f or f ailure to p r osecute. The court, in a detailed order, traced the Grif f i ns’ shif ting legal
argum ents and cam e to the conclusion that “[ i]t appears to this court that plaintif f s view this lawsuit not as som ething t o b e actually litigated, but, rather, as s om ething t o be kept alive indef i nitely , even at t he c ost of taking a position that is f undam entally inconsistent with the one they have taken f

or y e ars in this case.” ¶5. In January 2 014, f ollow i n g t h e d i s m i s s a l of the case f rom the f ederal court, the Grif f ins f i led a new com

plaint pro se in the Chancery Court of DeSoto County ( Griffin II ). The new c o mp l a i n t asserted the sam e causes of action a rising out of t he sam e f actual circum stances as those asserted in Griffi n I

. Af ter various procedural actions including a

rem oval t o and t hen rem and back f rom f ederal court, as well as reassignm ent to a dif f erent chancellor, the c hancery court granted the def endants’ m otion to dism iss Griffin II on the ground of res judicata. ¶6. The Grif

f ins appeal pro se. DISCUSSION ¶7. “The appropriateness of application o f t h e d o c t rine of res judicata is a question of

im p ru d en t an d p ro v id i n g t h e u n d ersig n ed w ith in stru ctio n s t h at are in co n sisten t

w ith th e u n d ersig n ed ’s p ro f essio n al ad v ice. 3law” and will theref ore b e reviewed de novo. S waney v. Swaney , 962 So. 2d 105, 108 (¶11) (Miss. Ct. App. 2007). ¶8. W e agree with the chancellor that Griffin I I is properly b arred under the doctrine of

res j udicata. The doctrine of res judicata has f our identities: (1) identity of the subject m atter of the action; (2) identity of the cause o f act i o n ; ( 3 ) i d e n tity of the p arties to the cause of action; and (4) i dentity o f the quality or character of a perso n against whom the claim is

m ade. Harrison v. Chandler-Sampson Ins. , 891 So. 2d 224, 232 (¶24) (Miss. 2005). ¶9. All f

our i dentities are m et i n the case a t hand. The f actual allegations i n the com plaint of Griffin II w ere c opied alm ost verbatim f r o m t he c om

plaint of Griffin I

, and with the exception of dropping a couple of clai ms ( t h e F D CPA and TILA claim s), t he com plaint

reasserts the sam e claim s of f raud. All parties present in Griffin I were also present in Griffin
II

. ¶10. In a ddition to those f o ur identities, to qualif

y as r es j udicata the prior judgm ent m ust have been a f

inal ju d g me n t o n t h e m erits. A nderson v. LaVere , 895 S o. 2d 828, 8 33 (¶10) (Miss. 2004). Under both Mississippi and Federal R ule o f Civil Procedure 41(b), dism issal f or f ailure to prosecute operates as a f inal judgm ent and d ism issal is with prejudice. An exception is f

o und in Mississippi Rule of Civil Procedure 4 1(d), which provides that where dism issal is m a de by t he clerk f ollowing twelve m onths of docket inactivity , that dism issal is without prejudice. See Strickland v. Estate of Broome , 179 So. 3d 1088, 1094 ( ¶18) (Miss. 2015). But the case at hand does not f all under Rule 4 1(d), but rather f alls under Rule 41(b). Prior t o dism issal, the Grif f ins were put on notice b y the district judge that the case would

4be dism issed f or f ailure to prosecute if the litigation did not m ove f orward in a m eaningf

ul
way . The Grif

f ins responded by shif

ting their legal position i n order to avoid try ing the m erits of the case. The district c ourt’s dism i ssal of the action was not only

appropriate f

or f ailure

t o p r o s e c u t e , but was also consistent with the Grif f ins’ n ew a rgum ent that the case should not be tried in court at all but rather arbitrated. ¶11. The rem aining issues the Grif f ins raise o n appeal are also without m erit. The Grif f ins f i l e d a p e t i tion f

o r review in t he Mississippi Suprem e Court under Mississippi Rule of
A p p e l l a t e Procedure 21, objecting to an adm inistrative reassignm ent of t heir case to a dif f erent chancellor by the court clerk. This mo t i o n w as d enied by order on Novem ber 4, 2 0 1 5, and the Grif

f ins did not f

i le a m otion f

o r reconsideration within f ourteen day s a s required by Mississippi Rule of Appellate Procedure 27(h)(5). The Grif f ins also argue that the chancery court erred in f ailing to rule on the d ef

endants’ m otion to transf e r t he case to circuit court—a m otion the Gr i f f i n s opposed and which the def endants w ithdrew. The Gri f f i n s have cited no legal basis, nor can we f ind any , indicating how the Grif f ins were conceivably prejudiced b y t h e c h a n c e ry court f ailing to rule o n a transf

er m otion that the Grif f ins o p posed and that was withdrawn by the d ef endants. These issues are without m erit. CONCLUSION ¶12. W e agree w ith t he d istrict co u r t ’ s o bservation that t he Grif f ins appear e ngaged in a strategy of deliberately prolonging lit i g ation against their m ortgage com pany without any intent to actually r each the m e rits of their claim s . The di s missal of Griffin I f or f ailure to prosecute operated as a f inal judgm ent on the m erits, and t he C h a n c e r y C ourt o f DeSoto

5County

appropriately dism issed Griffin II as barred by

the doctrine of

res judicata. ¶13. THE JUDGMENT OF THE CHANCERY C OURT OF D ESOTO COUNTY IS AFFIRMED. ALL COS T S O F THIS APPEAL ARE ASSESSED TO THE APPELLANTS.
L E E , C . J . , I R

V I N G AND GRIFFIS, P.JJ., ISHEE, C ARLTON, FAIR, W ILSON AND W ESTBROOKS, JJ., CO N C U R . BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

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