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AUGUST 12, 1987





Today's appeal presents an issue of res judicata. Plaintiff brought an action in 1984 charging medical malpractice and asserting a theory of recovery sounding in tort. She suffered an adverse final judgment dismissing her complaint. In 1985 she filed a second suit against the same defendants, charging the same underlying facts, only this time she sought recovery for breach of contract. There is nothing in her second complaint that could not as well have been asserted the first time around.

 The Circuit Court sustained Defendants' affirmative defense of res judicata and entered summary judgment dismissing the present complaint. For good measure three alternative grounds for dismissal were found. For the reasons set forth below, we affirm.


 On January 10, 1984, Annie L. Walton filed her complaint in the Circuit Court of Harrison County, Case No. 1919, charging Drs. Michael Bourgeois and Frank Gruich with medical malpractice and demanding damages therefor. She thereafter filed an amended complaint alleging the same claim. Walton alleged that in July, 1977, Drs. Bourgeois and Gruich advised her that surgery was necessary to remove ovarian cysts and female organs. Following this operation, she charged that she continued to experience abdominal pain whereupon she continued to see the Defendants and they assured her that her pain could not be due to her female organs nor ovaries. Walton alleged that later in February, 1982, she visited Dr. Frank Martin, who hospitalized her and removed her female organs and ovaries. As such, Walton charged Drs. Bourgeois and Gruich were negligent in performing their duties towards her in that they failed to remove her female organs and ovaries.

 While admitting surgery was performed on Walton, Drs. Bourgeois and Gruich denied they were negligent in treating her. The doctors thereupon moved for summary judgment. On July 12, 1984, the Circuit Court granted the motion and entered judgment summarily in favor of the doctors and against Walton. No appeal was taken from the granting of summary judgment, thus rendering that judgment final.

 On February 20, 1985, Walton commenced the present action when she filed another complaint, Case No. 2087, charging the

 same underlying facts, but seeking recovery on a different legal theory. This time Walton sought recovery based on the theory that the Defendant doctors had breached their contract with her to remove certain ovarian cysts, ovaries and female organs. On March 11, 1985, the defendants moved to dismiss Case No. 2087 on the grounds that the summary judgment granted in Case No. 1919 constituted res judicata and collateral estoppel of the second claim, along with the second claim being barred due to the election of remedies doctrine and statutes of limitations.

 On April 22, 1985, the Circuit Court enter an order that Defendants' motion to dismiss be treated as a motion for summary judgment pursuant to Rules 12 (b) and 56, Miss.R.Civ.P. So treated, the motion was then granted on res judicata and several alternative grounds, whereupon the action was finally dismissed. Walton then timely perfected the present appeal.


 Walton first urges that the Circuit Court erred by granting summary judgment instead of ruling directly on Defendants' Rule 12 (b) motion to dismiss. She argues that at no point during the hearing on the motion to dismiss was she notified that the Circuit Court was considering treating the motion as one for summary judgment.

 Our jurisprudence on this once novel point of procedure is by now quite familiar. In Gray v. Baker, 485 So.2d 306, 307 (Miss. 1986) this Court recognized that motions to dismiss and motions for summary judgment have been by rule declared interchangeable. See also Rule 12 (b), Miss.R.Civ.P.; Kountouris v. Varvaris, 476 So.2d 599, 602 n.3 (Miss. 1985); Griffin v. Ware, 457 So.2d 936, 938 (Miss. 1984); cf. Millican v. Turner, 503 So.2d 289, 292 (Miss. 1987) (conversely, where motion for summary judgment is failed and court determines it may appropriately be acted upon without reference to matters outside the pleadings, judgment shall be entered as judgment on the pleadings pursuant to R.12 (c), Miss.R.Civ.P.). The Court went on to explain:

 The motion for summary judgment is the functional equivalent of the Rule 12 (b)(6) motion to dismiss, only it occurs at a subsequent stage of the proceedings. the motion to dismiss, it tests the legal sufficiency of the plaintiff's claim to ...

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