August 21, 2014
KENNETH THOMPSON BUILDER, INC., COASTAL MASONRY, PRO MOW LAWN CARE, INC. AND CAPITAL SECURITY SERVICES, INC. CONSOLIDATED WITH JEANETTE CARPENTER
KENNETH THOMPSON BUILDER, INC., COASTAL MASONRY, PRO MOW LAWN CARE, INC., CAPITAL SECURITY SERVICES, INC., MALLETTE BROTHERS CONSTRUCTION, INC. AND MISSISSIPPI TRANSPORTATION COMMISSION a/k/a MISSISSIPPI DEPARTMENT OF TRANSPORTATION
FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT.
TRIAL JUDGES: HON. ROBERT P. KREBS, HON. KATHY KING JACKSON.
JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE
JUDGMENTS OF THE JACKSON COUNTY CIRCUIT COURT ARE REINSTATED
APPELLANT: A. NORRIS HOPKINS, JR.
APPELLEES: STEPHEN G. PERESICH, PATRICK H. ZACHARY, VICKI R.
LEGGETT, MARK D. NORTON, RICHARD D. NORTON, EDWARD C. TAYLOR,
KRISTI R. BROWN.
APPELLEES: STEPHEN G. PERESICH, JOHANNA M. MCMULLAN, PATRICK
H. ZACHARY, VICKI LEGGETT, MARK D. NORTON, RICHARD D. NORTON,
EDWARD C. TAYLOR, KRISTI R. BROWN, J. STEPHEN WRIGHT, T.
PHILLIP HUSKEY, WILLIAM E. WHITFIELD, III, KARA L. LIND.
JUSTICE. RANDOLPH, P.J., PIERCE AND COLEMAN, JJ., CONCUR.
LAMAR, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE
WRITTEN OPINION JOINED BY KITCHENS AND KING, JJ. WALLER,
C.J., AND DICKINSON, P.J., NOT PARTICIPATING.
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
We granted certiorari in this personal-injury negligence
action to clarify state law on the doctrine of
claim-splitting. After new defendants were identified during
discovery on her original complaint, Plaintiff Jeanette
Carpenter filed a motion to amend her complaint to include
the newly discovered defendants. A hearing could not be
scheduled in time for the trial court to approve the
amendment before the expiration of the three-year statute of
limitations. In an effort to avoid losing the opportunity to
bring the new defendants into the litigation, Carpenter filed
a second action before the statute of limitations ran, based
on the exact same set of facts, in the same court, and naming
the same new defendants named in the motion to amend. The
trial court dismissed both cases. The cases were consolidated
for purpose of appeal. We hold that Carpenter's
procedural actions constituted impermissible claim-splitting
as outlined by this Court in Wilner v. White, 929
So.2d 315 (Miss. 2006). Therefore, we reverse the judgment of
the Court of Appeals and affirm the judgments of the Jackson
County Circuit Court.
AND PROCEEDINGS BELOW
On August 15, 2007, Jeanette Carpenter tripped on some
parking-lot striping tape at a welcome center on Interstate
10. The resulting fall caused injuries, including two broken
wrists as well as lacerations and bruising to her face from
the impact with the pavement.
On June 26, 2008, Carpenter filed a negligence suit against
the Mississippi Department of Transportation and five John
Does (" Carpenter I" ). The case was
assigned to Circuit Judge Kathy King Jackson. More than a
year later, Carpenter moved to amend her complaint to add
Mallette Brothers Construction, Inc., and J.L. McCool
Contractors. Judge Jackson granted the motion. This first
amended complaint was filed within the statute of
[¶4] On March 4, 2010, Carpenter filed a
second motion for leave to amend her complaint. This time,
she sought to add Kenneth Thompson Builders (" KTB
" ), Coastal Masonry, Pro Mow Lawn Care, and Capital
Security as defendants. At this time, Carpenter had been
aware of the existence of these potential defendants (via
interrogatory responses) for almost a year. Carpenter
attempted to set a hearing on the motion before the statute
of limitations expired on August 15, 2010, but the parties
were not able to select a hearing date agreeable to all
parties. The court ultimately approved the
second amended complaint on November 12, 2010, after the
statute of limitations had run.
On July 22, 2010, prior to the statute-of-limitations
deadline and in light of the likelihood that the amendment
would not be granted before August 15, Carpenter filed a
second complaint (" Carpenter II" ), also
in the Circuit Court of Jackson County, naming KTB, Coastal
Masonry, Pro Mow Lawn Care, and Capital Security as
defendants. This case was assigned to Circuit Judge Robert
Krebs. Carpenter filed various motions to consolidate the
cases. The motions to consolidate were never ruled on at the
KTB and the other new defendants filed motions to dismiss
both cases. Judge Jackson granted the motion to dismiss
Carpenter I on the ground that the second amended
complaint was filed after the statute of limitations had
run. This order granting dismissal was
entered June 27, 2011. Judge Krebs granted the motion to
dismiss Carpenter II on the ground that the second
complaint impermissibly split Carpenter's cause of action
in violation of Wilner. This order granting
dismissal was entered on June 28th, 2011.
The Court of Appeals reversed both dismissals, rejecting the
claim-splitting argument and finding that the two cases
should be considered consolidated for purposes of remand.
Jeanette Carpenter v. Kenneth Thompson Builder, et
al., 186 So.3d 855, 2013 WL 2180136 (Miss. Ct.App.
2013). The defendants appeal.
Standard of review
Typically, we review motions to dismiss under a de
novo standard. Scaggs v. GPCH-GP, Inc., 931
So.2d 1274, 1275 (Miss. 2006). While the question of whether
the claim-splitting doctrine is applicable to a case is a
question of law
reviewed de novo, dismissals on the basis of the
claim-splitting doctrine are made for the purpose of
eliminating duplicative litigation and for docket control.
See Kanciper v. Suffolk Co. Soc. for the
Prevention of Cruelty to Animals, Inc., 722 F.3d 88 (2d
Cir. 2013); Katz v. Gerardi, 655 F.3d 1212, 1217
(10th Cir. 2011). Such dismissals are premised on the fact
that the party in question is involved in a pending
duplicative action in which the party's procedural and
substantive due-process rights are being satisfied.
Therefore, " [w]e will review for abuse of discretion
when a [trial] court's 'dismissal for claim-splitting
was premised in significant measure on the ability of the
district court to manage its own docket,' and will
reverse the [trial] court only if we find its judgment
'exceeded the bounds of the rationally available choices
given the facts and the applicable law in the case at
hand.'" Katz, 655 F.3d at 1217 (quoting
Big Sky Network Canada, Ltd. v. Sichuan Provincial
Gov't, 533 F.3d 1183, 1186 (10th Cir.
The doctrines of res judicata and
We agree with the circuit court that Carpenter II
violated this state's long-standing prohibition on
claim-splitting. Since a final judgment was entered
dismissing the defendants with prejudice from Carpenter
I before a final judgment was entered dismissing
Carpenter II, we additionally find it appropriate to
affirm the dismissal of Carpenter II on the ground
of res judicata.
Claim-splitting has long been prohibited under Mississippi
law and occurs when a plaintiff attempts to bring a
duplicative action involving claims arising from a single
body of operative facts against the same defendants.
See Wilner v. White, 929 So.2d 315 (Miss.
2006); Harrison v. Chandler-Sampson Ins., Inc., 891
So.2d 224, 234 (Miss. 2005); Alexander v. Elzie, 621
So.2d 909, 910 (Miss. 1992); Kimball v. Louisville and
Nat'l R.R. Co., 94 Miss. 396, 48 So. 230 (1909).
" [P]laintiffs have no right to maintain two actions on
the same subject in the same court, against the same
defendant at the same time." Curtis v.
Citibank, N.A., 226 F.3d 133, 139 (2nd Cir.
2000). " The rule against claim-splitting requires a
plaintiff to assert all of its causes of action arising from
a common set of facts in one lawsuit. By spreading claims
around in multiple lawsuits in other courts or before other
judges, parties waste 'scarce judicial resources' and
undermine 'the efficient and comprehensive disposition of
cases.'" Katz, 655 F.3d at 1217 (quoting
Hartsel Springs Ranch of Colo., Inc. v. Bluegreen
Corp., 296 F.3d 982, 985 (10th Cir. 2002)). " It is
well-settled that a plaintiff may not use the tactic of
filing two substantially identical complaints to expand the
procedural rights he would have otherwise enjoyed."
Hartsel, 296 F.3d at 990. " [T]he [United
States] Supreme Court captured the general principle
When the pendency of a [previously filed] suit is set up to
defeat another, the case must be the same. There must be the
same parties, or, at least, such as represent the same
interest; there must be the same rights asserted and the same
relief prayed for; the relief must
be founded upon the same facts, and the title, or essential
basis, of the relief sought must be the same."
Katz, 655 F.3d at 1217 ( quoting The
Haytian Republic, 154 U.S. 118, 124 14 S.Ct. 992, 38
L.Ed. 930 (1894)).
Unlike the doctrine of res judicata, a final
judgment is not required in order to apply a claim-splitting
analysis; rather, the test is " whether the first suit,
assuming it were final, would preclude the second suit. This
makes sense, given that the claim-splitting rule exists to
allow [trial] courts to manage their docket[s] and dispense
with duplicative litigation." Katz, 655 F.3d at
1218-19. In Katz, the Tenth Circuit held that "
[t]he district court did not abuse its discretion by
dismissing the [plaintiff] from this case for claim
splitting" where " [the plaintiff] filed two cases
in the same district court, involving the same subject
matter, seeking the same claims for relief against the same
defendants." Id. at 1219.
This is not the first time we have provided an analysis of
how Mississippi's prohibition on claim-splitting applies
to the scenario at hand. Carpenter's procedural actions
are identical to a scenario this Court expressly rejected in
Wilner. Wilner, 929 So.2d at 320. Wilner
had filed a motion to amend her complaint to add new
defendants. That motion was not approved by the trial court
before the statute of limitations ran. On writ of certiorari,
in holding that the Court of Appeals had found incorrectly
that Wilner's amended complaint related back to the
original complaint, saving it from the procedural bar, this
Court also rejected the Court of Appeals' following
If Wilner had named the four new parties in a separate,
original complaint, and moved to consolidate the two cases,
we would not have an issue with the statute of limitations,
nor would there be an issue regarding [whether the amended
complaint related back].
Id. (quoting Wilner v. White, 929 So.2d
343, 350 (Miss. Ct.App. 2005)). We found that the above
situation would constitute impermissible claim-splitting,
Respectfully, the Court of Appeals is mistaken in its
assumption that Wilner could have properly named the new
parties in a separate complaint. Had Wilner done this, she
would have offended the long-standing principal [sic] of law
in Mississippi prohibiting a party from splitting a cause of
action into the subject of two different actions, reaching
back to this Court's decision in Kimball v.
Louisville and Nat'l R.R. Co., 94 Miss. 396, 48 So.
230 (1909). See also Harrison v.
Chandler-Sampson Ins., Inc., 891 So.2d 224, 234 (Miss.
2005); Alexander v. Elzie, 621 So.2d 909, 910 (Miss.
Wilner, 929 So.2d at 320. The Court of Appeals erred
in construing Wilner as inapplicable to the facts of
The correct analysis to apply when determining whether the
" identity-of-parties" element is met is to
anticipate whether a final judgment will preclude the parties
from further litigation based on the same set of facts.
See Katz, 655 F.3d at 1218. Carpenter
argues, and the Court of Appeals agreed, that the "
identity-of-parties" element was not met for purposes of
a claim-splitting analysis because KTB and the other new
defendants had not yet formally been added as a party to the
Carpenter I litigation at the time Carpenter
filed; rather, the motion to amend the complaint to add them
as defendants to Carpenter I was merely
pending. Not only is that the incorrect
analysis to determine the " identity-of-parties"
element, but the timeline clearly demonstrates that the
motion to add the defendants as formal parties to
Carpenter I was approved while Carpenter II
was pending. The defendants were formal parties to both
litigations simultaneously until the motion to dismiss
Carpenter I was granted. Carpenter was
" maintain[ing] two actions on the same subject in the
same court, against the same defendant at the same
time." See Sep. Op. ¶ 22 (quoting
Curtis v. CitiBank, N.A., 226 F.3d 133, 139 (2nd
Cir. 2000)). The identity-of-parties element was clearly met.
Contrary to the separate opinion's argument, the arrival
of the final judgment to one of two pending duplicative
actions does not eliminate the relevance of a claim-splitting
analysis; the question simply becomes, not whether a final
judgment will preclude the duplicative litigation,
but whether the final judgment that has now arrived
currently precludes the duplicative litigation. Both
a judgment on the substantive merits of the case and a
dismissal of parties with prejudice due to
procedural bars are final judgments that will preclude the
parties from further litigation on the same set of facts. The
rules governing timely addition of defendants would be
meaningless if that procedural bar could be sidestepped by
simply filing a second action in anticipation of an adverse
ruling. Carpenter filed the second action in anticipation of,
and in an attempt to sidestep, a final judgment that would
preclude the defendants from litigation on this nucleus of
facts. This is exactly the type of scenario
the claim-splitting doctrine is designed to protect against.
Carpenter argues that, since the defendants' dismissal
from Carpenter I was due to failure to get a hearing
date in time, and therefore was a dismissal for "
form" rather than " substance," Carpenter
II should be preserved so that she does not lose her
opportunity to bring the defendants into the litigation. The
Court of Appeals opinion takes the position that
consolidation of the two cases on remand would result in the
timely service of process on the defendants in Carpenter
II being imputed to Carpenter I. But " the
rules nowhere contemplate the filing of duplicative law suits
to avoid the statutes of limitations . . . ." Serlin
v. Arthur Andersen & Co., 3 F.3d 221, 224 (7th Cir.
1993). In Serlin, the Seventh Circuit affirmed
dismissal of a duplicative action that was filed in an
attempt to preserve a claim after service of process within
the original action failed to conform with the rules.
Id. at 221. The court stated:
Serlin claims that [a special consideration] exists in the
present case because, if his second suit is dismissed as
duplicative of his first, and if his first is dismissed . . .
for untimely service under Federal Rule 4(j), then he will be
out of court and barred by the statute of limitations from
refiling his . . . complaint.
In light of this possible consequence, he argues, [the judge]
abused his discretion in dismissing his complaint as
This argument is without merit. . . . Alongside this wholly
legitimate concern for wise judicial administration is the
fact that even if Serlin eventually does find himself out of
court, that result will be entirely a consequence of the
plaintiff's own failure to follow the rules.
Id. at 224.
While we agree with Judge Krebs's comment that "
I'm not insensitive to the difficulty in getting a
hearing, counselor," no special circumstances are
present to justify an exception to the procedural bar. The
second motion to amend was filed almost a year after
Carpenter became aware of the existence of the new
defendants; multiple timely court dates were available for
the parties to work with; Carpenter's own attorney had
limited availability, and no bad faith is evident from any of
the parties regarding the scheduling. We find that the trial
court correctly characterized Carpenter II as a
violation of the doctrine against claim-splitting, and the
Court of Appeals erred in construing Carpenter's
procedural maneuvers as a permissible tactic for avoiding the
impending statute-of-limitations bar on the second amended
complaint in Carpenter I.
Judge Jackson had dismissed the defendants with prejudice
from Carpenter I by the time Judge Krebs dismissed
Carpenter II. Because a final judgment is in play,
we also apply a res judicata analysis to the
dismissal of Carpenter II. " The doctrine of
res judicata bars parties from litigating claims 'within
the scope of the judgment' in a prior action."
Anderson v. LaVere, 895 So.2d 828, 832 (Miss. 2004).
" It is a doctrine of public policy designed to avoid
the expense and vexation attending multiple lawsuits,
conserve judicial resources, and foster reliance on judicial
action by minimizing the possibilities of inconsistent
decisions." Harrison, 891 So.2d at 232. The
four identities Mississippi requires to be present for
res judicata to apply are 1) identity of the subject
matter 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 of character of a person against whom
the claim is made. Hill v. Carroll County, 17 So.3d
1081, 1085 (Miss. 2009). The second amended complaint in
Carpenter I and the complaint in Carpenter
II contain the same identities required above. We find
therefore that the final judgment in Carpenter I
precluded the defendants from further participation in
Carpenter II on the ground of res judicata.
The circuit court appropriately dismissed the complaints
filed against KTB, Inc., Coastal Masonry, Pro Mow Lawn Care,
Inc., and Capital Security Services, Inc. The second amended
complaint in Carpenter I was granted outside the
limitations period, and the filing of Carpenter
II violated this state's long-standing
prohibition on claim-splitting. Judge Jackson's final
order dismissing the defendants from Carpenter I
precluded the defendants' participation in litigation
brought by Carpenter on the same nucleus of facts under the
doctrine of res judicata. We therefore reverse the
judgment of the Court of Appeals and reinstate and affirm the
respective judgments of the Jackson County Circuit Court
dismissing Carpenter I and Carpenter II.
THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE
JUDGMENTS OF THE JACKSON COUNTY CIRCUIT COURT ARE REINSTATED
P.J., PIERCE AND COLEMAN, JJ., CONCUR. LAMAR, J., CONCURS IN
PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION
JOINED BY KITCHENS AND KING, JJ. WALLER, C.J., AND DICKINSON,
P.J., NOT PARTICIPATING.
JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:
I agree with the majority's decision to affirm the trial
court's dismissal of the Second Amended Complaint in
Carpenter I, but I disagree with its decision to
affirm the dismissal of Carpenter II. Because I find
that Carpenter II is not barred by the doctrine of
claim-splitting or by res judicata, I respectfully
dissent in part.
In his Order dismissing Carpenter II, the trial
judge found that Carpenter had " improperly filed this
lawsuit contrary to the long-standing principal [sic] in
Mississippi prohibiting a party from splitting a cause of
action into the subject of two different actions." But
Carpenter argues there is no claim-splitting because the
" identity-of-parties" element is not present, and
I agree. The majority correctly states that " plaintiffs
have no right to maintain two actions on the same subject in
the same court, against the same defendant at the
same time." Curtis v. CitiBank, N.A.,
226 F.3d 133, 139 (2d. Cir. 2000) (emphasis added). Here, the
trial judge dismissed the four defendants at issue (those
named in the Second Amended Complaint) from Carpenter
I on June 13, 2011. So, at the time Carpenter
II was dismissed based on impermissible claim-splitting
(June 28, 2011), Carpenter was not maintaining two
actions against the same defendants. Similarly, at the time
Carpenter initiated Carpenter II (July 22, 2010),
her motion to amend Carpenter I had yet to be ruled
on, and so she was not maintaining two actions against the
same defendants at that time either.
Both the majority and the trial judge relied heavily on this
Court's decision in Wilner v. White, 929 So.2d
315 (Miss. 2006), to support their holdings that Carpenter
had impermissibly split her claims. But in my view, their
reliance is misplaced. First, the Wilner language
relied on by the majority is mere dicta, and
its application in this case is therefore not required.
Secondly, and more importantly, the case cited by the
Wilner Court as support for its dicta, Kimball
v. Louisville and National Railroad Co., 94 Miss. 396,
48 So. 230 (Miss. 1909), is clearly distinguishable from the
case here. In Kimball, the plaintiff brought suit
against a railroad company for injuries to his horse and
wagon and was awarded a judgment at trial, which was
satisfied. Id. He then tried to bring suit
against the same railroad company for injuries to
himself resulting from the same occurrence, which the Court
disallowed. Id. at 230-31.
Finally, the Wilner Court also cited a portion of
Section 62 of the Restatement of Judgments with approval, but
it omitted the second comment to that Section, which states:
The rule stated in this Section presupposes a claim and
judgment of a single plaintiff against a single defendant. It
does not deal with situations in which there is a single
event or transaction from which arise a number of claims by
one person against several or by several persons against one
or a number of persons. Thus, a person may have a claim
against a number of others on a joint and several contract or
because of a joint tort; or a number of persons may be
entitled to maintain actions for a single act . . . .
Restatement (First) of Judgments § 62 cmt. b
The elements of claim-splitting are thoroughly discussed by
the majority, and it is undisputed that identity of the
parties is one. I am not convinced by the majority's
reliance on dicta from Wilner, which was supported
by cases that are clearly inapposite to our facts here. In
sum, I find nothing in Mississippi caselaw or our Rules that
would prevent Carpenter from maintaining Carpenter
II, now that the four defendants at issue have been
dismissed from Carpenter I.
Moreover, I simply cannot agree with the majority's
statement that " Carpenter filed the second action in
anticipation of, and in an attempt to sidestep, a
final judgment that would preclude the defendants from
litigation on this nucleus of facts." See Maj.
Op. ¶ 15 (emphasis added). At the time Carpenter filed
the second action, she had absolutely no way of knowing
whether the judge ultimately would grant her motion for leave
to amend. So she was not attempting to " sidestep"
a final judgment; rather, she was preserving her opportunity
to sue the four new defendants should the trial judge decide
that they could not be added as defendants in the first
Finally, I also disagree with the majority's decision
sua sponte to find that Carpenter II is
barred by res judicata.
The requirements for res judicata are well-known:
" (1) identity of the subject matter 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 character of a person against whom the claim is
made." EMC Mortage Corp. v. Carmichael, 17
So.3d 1087, 1090 (Miss. 2009) (emphasis added). The absence
of any one of the elements is fatal to the defense of res
judicata. Harrison v. Chandler-Sampson Ins.,
Inc., 891 So.2d 224, 232 (Miss. 2005). " In
addition to the four identities, a fifth requirement is that
the prior judgment must be a final judgment that was
adjudicated on the merits. "
Carmichael, 17 So.3d at 1090 (emphasis added). The
doctrine of res judicata prevents claims which were
actually litigated in a previous action.
Harrison, 891 So.2d at 232 (emphasis added).
Here -- in addition to the lack of identity of the parties
discussed above -- there is no final judgment on the
merits. The trial judge dismissed Carpenter I
because she found that Carpenter did not properly substitute
the four new defendants under Mississippi Rule of Civil
Procedure 9(h). In my view, that certainly does not equate to
a " decision on the merits," in which the claims
against the four defendants at issue were " actually
litigated." See, e.g., Harrison, 891
So.2d at 229 (" [T]here must have been a right
adjudicated or released in the first suit to make it a bar,
and this fact must appear affirmatively . . . . [I]f the
first suit was dismissed for defect of pleadings, or parties,
or a misconception of the form of proceeding, or the want of
jurisdiction, or was disposed of on any ground which did not
go to the merits of the action, the judgment rendered will
prove no bar to another suit." ) (quoting Costello
v. United States, 365 U.S. 265, 285, 81 S.Ct. 534, 544,
5 L.Ed.2d 551 (1961)).
Because I find that Carpenter II is not barred by
the doctrines of claim-splitting or res judicata, I
would reverse the trial judge's decision to that
AND KING, JJ., JOIN THIS OPINION.
This included the limited availability of
Carpenter's attorney due in part to overseas military
deployment. The court did not permit telephonic participation
for this type of hearing.
Carpenter had argued that the second
amended complaint related back to the date of the original
complaint under Mississippi Rule of Civil Procedure 9(h),
thereby saving it from the statute-of-limitations bar.
However, pursuant to the rules established by this Court in
Curry v. Turner, 832 So.2d 508 (Miss. 2002), and
Wilner, 929 So.2d 315, Judge Jackson found that the
defendants were not fictitious parties under Rule 9(h)
because the names of the new defendants had not been properly
submitted in lieu of the previously listed John Does, but
rather were merely added in addition to the John Does.
Therefore, the claims against them did not relate back to the
original complaint. In support of the inapplicability of Rule
9(h), KTB and the other the new defendants submitted
affidavits that they were not aware of the existence or
grounds of Carpenter's suit until served process for the
second amended complaint.
The court also granted the dismissal on the
ground of priority jurisdiction. The Court of Appeals
disagreed with the circuit court on that issue. Since we
affirm dismissal on the ground of claim-splitting, we do not
address priority jurisdiction.
 This standard does not extend to cases
dismissed under the related doctrine of res
judicata, or claim preclusion: " . . . different
treatment is warranted because of the different results
created by a dismissal under res judicata and claim
splitting. A dismissal on res judicata grounds can stop a
case in its tracks. . . . But with a dismissal on
claim-splitting grounds, by its nature, the dismissed party
is involved in another pending suit regarding the same
subject matter against the same defendants."
Katz, 655 F.3d at 1219.
Even if we were to view our discussion in
Wilner as dicta, as the dissent would, the rationale
of that discussion is exactly applicable here and is the
rationale we adopt in the case at hand.
The separate opinion similarly focuses on
the timeline of the parties' formal participation in the
litigation. This is simply the incorrect standard to
determine " identity-of-parties" and is irrelevant
to a determination of whether Carpenter was attempting
impermissibly to sidestep a procedural bar by bringing two
suits against the same party in the same court on the same
set of facts.
The final judgment would preclude a second
action regardless of whether that judgment was in
Carpenter's favor. The significance in anticipating the
procedural bar is anticipating a final judgment with
prejudice, regardless of which party prevails.
A res judicata analysis is
relevant to this case in order to prevent confusion regarding
these related yet distinct doctrines. A claim-splitting
analysis is applicable when the final judgment is still
pending, which is why part of the analysis is to anticipate
the implications of the future final judgment. But once a
final judgment is in play, the implications of the final
judgment can be decided affirmatively and, as noted earlier,
are subject to a stricter standard of review. The respective
motions to dismiss Carpenter I & II proceeded
neck-and-neck, and the chronological order in which the
respective judgments of dismissal were entered is ultimately
irrelevant and nondispositive to our affirmation of both
The trial judge's Order dismissing
Carpenter I dismissed Kenneth Thompson Builders,
Coastal Masonry, Pro Mow Lawn Care and Capital Security
Services only. Carpenter's action against MDOT, Mallette
Brothers Construction and McCool Contractors remains
The trial judge entered a memorandum
Order of Dismissal on June 13, 2011, which granted the four
defendants' motion to dismiss. She later entered another
order of dismissal that certified the judgment as final under
Rule 54(b) on June 27, 2011.
The majority places much emphasis on the
following language from Wilner:
Respectfully, the Court of Appeals is mistaken in
its assumption that Wilner could have properly named the
new parties in a separate complaint. Had Wilner done this,
she would have offended the long-standing principal [sic]
of law in Mississippi prohibiting a party from
splitting a cause of action into the subject of two
different actions, reaching back to this Court's
decision in Kimball v. Louisville and Nat'l R.R.
Co., 94 Miss. 369, 48 So. 230 (1909).
Wilner, 929 So.2d at 320.
The Wilner Court cited two other
opinions in support of its claim-splitting dicta as well.
Wilner, 929 So.2d at 320. But, just as in
Kimball, those cases are inapposite to our factual
scenario here. In Harrison v. Chandler-Sampson Ins.,
Inc., the Court addressed whether res judicata
barred a plaintiff's third suit against the same
defendant. Id. at 226-228. And in Alexander v.
Elzie, 621 So.2d 909 (Miss. 1992), the Court found that
a plaintiff was barred on res judicata and
collateral estoppel grounds from pursuing a claim for
personal injuries against an insurer who previously had been
found liable for property damage. Id. at
To the extent that Carpenter
II was dismissed based on priority jurisdiction, I
disagree with that finding as well. " Priority
jurisdiction typically applies when the same lawsuit has been
filed in two different courts, not in the same court. More
importantly, that doctrine presupposes a pending action that
the plaintiff can proceed upon and obtain 'adequate
relief.'" Compere v. St. Dominic Jackson
Mem'l Hosp., 71 So.3d 607, 610 (Miss. 2011).