IN THE SUPREME COURT OF MISSISSIPPI
NO. 2024-CA-00277-SCT
FEDERAL NATIONAL MORTGAGE ASSOCIATION
v.
RON CARBO
DATE OF JUDGMENT: 02/06/2024 TRIAL JUDGE: HON. ELEANOR JOHNSON PETERSON TRIAL COURT ATTORNEYS: ERIC CHRISTOPHER MILLER PETER LAWRENCE LUBLIN AMANDA McGREGOR BECKETT CODY WILLIAM GIBSON CORY PATRICK SIMS TRENT L. WALKER COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: PETER LAWRENCE LUBLIN AMANDA McGREGOR BECKETT ATTORNEY FOR APPELLEE: CODY WILLIAM GIBSON NATURE OF THE CASE: CIVIL - REAL PROPERTY DISPOSITION: AFFIRMED - 06/12/2025 MOTION FOR REHEARING FILED:
BEFORE COLEMAN, P.J., CHAMBERLIN AND GRIFFIS, JJ.
COLEMAN, PRESIDING JUSTICE, FOR THE COURT:
¶1. A mortgage-holder foreclosed on Ron Carbo’s home after he defaulted on the
conditions of his mortgage note and deed of trust. After purchasing the home in a
foreclosure sale, Federal National Mortgage Association filed suit in 2010 to evict Carbo and
for back rent in the Hinds County County Court. The Association sold the property in 2012,
and the current owner is Mariners Pac Ventures, LLC. In 2020, the Association attempted to substitute Mariners as plaintiff, but the county court denied the motion. The county court
then granted Carbo’s motion to dismiss, citing the Association’s lack of standing. The
Association appealed to the Hinds County Circuit Court, which affirmed the county court’s
judgments. The Association then appealed. Finding no error, we affirm the judgments of
the county and circuit courts.
FACTS
¶2. After Carbo defaulted on the terms and conditions of a mortgage note and deed of
trust on his home, the mortgage-holder foreclosed on the property. Carbo, however, failed
to vacate, and on June 21, 2010, the Association purchased the property at a foreclosure sale.
The Association obtained a Substitute Trustee’s Deed.
¶3. On July 30, 2010, the Association filed an eviction complaint against Carbo, alleging
that Carbo failed to vacate the premises after a foreclosure of the mortgage lien. Carbo
answered the complaint on December 8, 2010, and asserted multiple counterclaims. The
county court dismissed Carbo’s counterclaims on December 17, 2014, for failure to
prosecute, failure to respond to discovery requests, and failure to comply with court orders.
¶4. The Association later sold the property to Ally Bank via a quitclaim deed on January
27, 2012, which was properly recorded. After selling the property, the Association filed a
second lawsuit in the County Court of the Second Judicial District of Hinds County against
Carbo for possession and back rent on May 22, 2015. The lawsuit was dismissed with
prejudice on December 30, 2015, by an agreed order between the parties due to the
2 Association’s lack of standing since the Association sold the property in January 2012,
terminating all of its rights and interest in the property.
¶5. On May 24, 2017, Ally Bank sold the property to ResCap Securities Holdings, Co.
(ResCap), via quitclaim deed, which was also properly recorded. Then, in February 2018,
ResCap sold the property to the current owner, Mariners, via quitclaim deed, which was also
properly recorded. Mariners brought three lawsuits against Carbo in Hinds County Chancery
Court seeking eviction and back rent, filed May 3, 2018, October 23, 2018, and April 9,
2019. All three lawsuits were dismissed without prejudice for “procedural issues, duplicative
of actions, and other things.”
¶6. Nearly ten years after the Association filed its initial lawsuit (current lawsuit), the
Association filed its first motion to substitute Mariners as plaintiff on May 18, 2020. After
venue was transferred to the County Court of the Second Judicial District of Hinds County,
the Association renewed its motion to substitute parties, which sought to have Mariners, as
the current interest holder of the property, substituted as the plaintiff in the current lawsuit.
Carbo opposed the motion, however, arguing that it was untimely and that the Association
had filed duplicate lawsuits.
¶7. At the hearing on the Association’s motion to substitute, the county court noted it was
more reasonable to continue with the named plaintiff when the matter was filed, the
Association. Thus, the county court found the Association’s motion “not well-taken” and
denied it.
3 ¶8. Carbo then filed a motion to dismiss, arguing that the Association lacked standing
because it retained no interest in the property since it no longer owned it. At the hearing on
Carbo’s motion to dismiss, the county court again considered the issue of mootness and the
previous identical lawsuits. The county court granted Carbo’s motion to dismiss, dismissing
both the Association as a party and the lawsuit.
¶9. The Association appealed the county court’s denial of its motion to substitute parties
and the county court’s granting of Carbo’s motion to dismiss to the Circuit Court of the
Second Judicial District of Hinds County. The circuit court affirmed both of the county
court’s judgments. It found that the county court “applied the proper legal standard and its
decision was reasonable in light of the facts and procedural history of this case.”
Specifically, it concluded that allowing the original plaintiff, the Association, to continue as
the plaintiff was reasonable and proper and that res judicata barred the Association’s claims.
The Association subsequently filed the current appeal.
¶10. Carbo responded by filing another motion to dismiss in our Court, arguing: (1) that
the Association lacks standing since it no longer owns the property and (2) that the lawsuit
is moot. We deny Carbo’s motion to dismiss, and we conclude that the Association has
standing to appeal the county and circuit court’s judgments since the appeal involves the
denial of the Association’s motion to substitute the current property owners, Mariners.
Indeed, a ruling on the merits of the motion to substitute would be a benefit to the
Association and would not be a detriment to Carbo, rendering the lawsuit not moot. Gamma
4 Healthcare Inc. v. Est. of Grantham, 334 So. 3d 85, 87 (¶ 2) (Miss. 2022). Below, we will
address each claim.
STANDARD OF REVIEW
¶11. Determining whether to grant or deny a motion to substitute is generally discretionary.
Citizens Nat’l Bank, LLC v. Dixieland Forest Prods., LLC, 935 So. 2d 1004, 1008 (¶ 13)
(Miss. 2006). When our Court reviews a decision that is within the trial court’s discretion,
we first ask whether the trial court applied the correct legal standard. Id. If it did, we then
consider “whether the decision was one of several reasonable ones which could have been
made.” Id. (internal quotation mark omitted) (quoting Amiker v. Drugs For Less, Inc., 796
So. 2d 942, 948 (Miss. 2000)). Our Court will affirm the trial court’s decision “unless there
is a ‘definite and firm conviction that the court below committed a clear error of judgment
in the conclusion it reached upon weighing the relevant factors.’” Id. (quoting Amiker, 796
So. 2d at 948 (¶ 24)). When reviewing a trial court’s grant or denial of a motion to dismiss,
we apply a de novo standard of review. Sweet Valley Missionary Baptist Church v. Alfa Ins.
Corp., 124 So. 3d 643, 645 (¶ 6) (Miss. 2013). We review questions of law, including
whether to apply res judicata, de novo. Hinton v. Rolison, 175 So. 3d 1252, 1258 (¶ 18)
(Miss. 2015).
DISCUSSION
I. Whether the county court erred by denying the Association’s motion to substitute and whether the circuit court erred by affirming the county court’s decision.
5 ¶12. The Association argues that the county court improperly denied its motion to
substitute Mariners as plaintiffs since Mariners is the current property owner. It further
claims that the circuit court erred by affirming the county court’s denial of its motion to
substitute. In support of its argument, the Association cites Citizens for the proposition that
because it was the property owner when it properly filed the current suit pursuant to
Mississippi Rules of Civil Procedure 17 and because Mariners is now the only property
owner with interest in the suit, allowing Mariners to continue its suit against Carbo under
Mississippi Rules of Civil Procedure 25(c) is mandatory rather than permissive. Citizens
Nat’l Bank, LLC, 935 So. 2d at 1013-14 (¶¶ 37-39). Thus, the Association requests our
Court to reverse the judgments of the county and circuit courts.
¶13. Carbo counters that the county and circuit courts did not err by denying the
Association’s motion to substitute. He claims that Mariners did not obtain rights to the
lawsuit because the deed merely conveyed title to the property, not the rights to the
Association’s lawsuit. Carbo also argues that the Association is the only party that may
participate in the litigation and that Mariners is not litigating in the name of the Association.
Lastly, relying on Flowers v. McCraw, 792 So. 2d 339, 342 (¶ 9) (Miss. Ct. App. 2001), he
provides that under the doctrine of prior trespass, a land deed does not implicitly convey any
right of action for trespasses or property damage that occurred prior to the transaction.
¶14. Mississippi Rule of Civil Procedure 17 states: “[e]very action shall be prosecuted in
the name of the real party in interest.” Citizens Nat’l Bank, LLC, 935 So. 2d at 1013 (¶ 37)
(internal quotation marks omitted) (quoting Miss. R. Civ. P. 17). Mississippi Rule of Civil
6 Procedure 25(c) provides: “[i]n a case of any transfer of interest, the action may be continued
by or against the original party, unless the court upon motion directs the person to whom the
interest is transferred to be substituted in the action or joined with the original party.” Id.
(internal quotation marks omitted) (quoting Miss. R. Civ. P. 25(c)).
¶15. Rule 25 is typically utilized when a party to an action dies. “[U]pon the death of one
party, a ‘motion for substitution’ must be made ‘within ninety days after the death is
suggested’ or ‘the action shall be dismissed without prejudice.’” Burch v. Ill. Cent. R.R. Co.,
136 So. 3d 1063, 1066-67 (¶ 8) (Miss. 2014) (quoting Miss. R. Civ. P. 25(a)(1)). However,
the court may allow a party to file a motion to substitute after the ninety-day period if the
party can show their failure to act was a result of excusable neglect. Id. at 1067 (quoting
Miss. R. Civ. P. 25(a)(1) advisory comm. n.).
¶16. In Citizens, the plaintiffs filed a lawsuit against the defendant bank, and the bank filed
counterclaims for debts owed to it by the plaintiffs and a third party. Citizens Nat’l Bank,
LLC, 935 So. 2d at 1006 (¶¶ 2-3). The court granted the bank a monetary judgment. Id. (¶
5). After the plaintiffs failed to pay the judgment to the bank, the causes of action were sold
to the bank, as the highest bidder, at an auction. Id. (¶ 7). Then, in the lender liability suit
that it had purchased, the bank filed a motion to substitute itself as the party plaintiff and to
have the suit dismissed. Id. (¶ 10). The trial court denied the bank’s motion to substitute. Id.
¶17. On appeal, the Citizens Court held that the trial court abused its discretion by refusing
to substitute the bank as plaintiff since the bank was the owner of the claims and the only
remaining party in interest. Id. at 1013-14 (¶ 38). It noted that Rule 25(c) transfers are
7 generally permissive, but it again relayed that the bank was the only party with any interest
in the litigation, insinuating that such a transfer was mandatory. Id. at 1013 (¶ 38).
¶18. In Henderson v. Copper Ridge Homes, LLC, the Hendersons entered into a contract
with Copper Ridge for the construction of a new home, then they contracted with First Bank
to finance its construction. Henderson v. Copper Ridge Homes, LLC, 273 So. 3d 750, 752
(¶ 5) (Miss. 2019). The Hendersons filed a complaint against Copper Ridge and First Bank
for breach-of-contract and tort claims. Id. (¶ 9). The Hendersons then opted not to make
their promissory note payment. Id. As such, in its answer to the Hendersons’ complaint, First
Bank included a counterclaim for judicial foreclosure. Id. At a hearing for summary
judgment on the judicial foreclosure, the trial court found the Hendersons failed to produce
sufficient evidence to rebut the foreclosure, so it granted First Bank’s motion for an order of
judicial foreclosure. Id. at 752-53 (¶ 10).
¶19. The Hendersons sought to amend their complaint to add a claim for wrongful
foreclosure, and Copper Ridge and First Bank filed motions for summary judgment. Id. at
753 (¶ 11). The trial court denied the Hendersons’ leave to amend and granted Copper
Ridge’s and First Bank’s motions for summary judgment, “finding that the claims arising out
of the allegedly faulty construction of the house traveled with the title to the property.” Id.
The trial court concluded that the Hendersons lost their right to seek damages since they no
longer owned any interest in the home or land due to the foreclosure. Id. The Hendersons
appealed. Id. (¶ 12).
8 ¶20. On appeal, our Court reversed the trial court’s dismissal of the Hendersons’ claims,
holding that:
The deed of trust specifically conveys only the property identified in the deed of trust in the event of foreclosure. It did not convey the Hendersons’ contractual or common-law rights related to either the promissory note or its separate contract with Copper Ridge. Therefore, the Court holds that the trial court erred in finding that the Hendersons’ claims traveled with the title to the property upon foreclosure. Accordingly, we reverse the grant of summary judgment to Copper Ridge and First Bank.
Id. at 755 (¶ 26) (footnote omitted).
¶21. In reversing, the Henderson Court concluded that the case was not analogous to
Citizens because the bank in Citizens did not foreclose, rather the bank purchased the claims
in order to satisfy a debt. Id. (¶ 24) (citing Citizens Nat’l Bank, LLC, 935 So. 2d at 1008 (¶
7)). The Henderson Court noted that, in their case, First Bank did not assert that it had
purchased the Hendersons’ claims to satisfy any remaining deficiency on a judgment; instead,
“it suggested that the claims traveled with the title to the property by virtue of the foreclosure
or that the Hendersons had lost their rights and the bank should be substituted as the real
party in interest.” Id. (¶ 25). Further, the deed of trust conveyed solely the property identified
in the deed in the event of foreclosure, not the Hendersons’ rights. Id. (¶ 26).
¶22. Further, our Court has held that without an explicit conveyance of a cause of action,
we “presume that no such conveyance occurred.” Russell Real Prop. Servs., LLC v. State
ex rel. Hosemann, 200 So. 3d 426, 430 (¶ 9) (Miss. 2016) (citing Flowers, 792 So. 2d at 342
(¶¶ 7-9)). Specifically, “[u]nder the doctrine of ‘prior trespass,’ the deed to land does not
implicitly convey any right of action for trespasses or property damage that occurred prior
9 to the transaction.” Id. (internal quotation marks omitted) (quoting Flowers, 792 So. 2d at
342 (¶ 9)). In Russell, “the quitclaim deed [that transferred] the property to Russell . . . did
not contain language conveying a transfer of a cause of action[,]” and, although the
presumption is rebuttable, Russell failed to provide “evidence that the cause of action owned
by the Ellis Trust was ever assigned or sold to Russell . . .” Id. at 429-30 (¶ 9).
¶23. In light of the above case law and the rules of civil procedure, we hold that the county
court properly denied the Association’s motion to substitute Mariners as plaintiff, and the
circuit court properly affirmed the county court’s denial. Neither party disputes that the
Association was the real party in interest when it filed suit against Carbo. Miss. R. Civ. P.
17. Additionally, the plain language of Mississippi Rule of Civil Procedure 25(c) conveys
that it is proper for an action to be continued by or against the original party when there is
a transfer of interest, unless the court directs the new party to be substituted or joined. Miss.
R. Civ. P. 25(c). After Mariners received interest in the property, the county court did not
direct Mariners to be added to or substituted in the lawsuit. As such, under Rule 25(c), it was
permissible for the county court to allow the original plaintiff, the Association, to continue
its suit against Carbo.
¶24. We conclude that Henderson is more applicable to the lawsuit sub judice than
Citizens. Henderson, 273 So. 3d at 755 (¶ 24) (citing Citizens Nat’l Bank, LLC, 935 So. 2d
at 1008 (¶ 7)). Here, as in Henderson, Mariners did not purchase the Association’s lawsuit
but, rather, Mariners simply purchased the property. Id. Thus, the Henderson Court’s
holding favors the county court’s decision to deny the Association’s motion to substitute
10 since the Association’s lawsuit did not travel with the property, and the quitclaim deed did
not explicitly convey the suit to Mariners, meaning that the Association retained its interest
in the suit. Henderson, 273 So. 3d at 755 (¶ 26); Russell Real Prop. Servs., LLC, 200 So.
3d at 430 (¶ 9) (citing Flowers, 792 So. 2d at 342 (¶¶ 7-9)).
¶25. Similarly, because the quitclaim deed lacked language conveying a transfer of the
Association’s cause of action to Mariners, the Association was required to rebut the
presumption by providing evidence that the suit was assigned or sold to Mariners. Russell
Real Prop. Servs., LLC, 200 So. 3d at 429-30 (¶ 9). It failed to do so.
¶26. Last, although the event that severed the Association’s interest was not a death but the
sale of the property, we hold that the Association and Mariners failed to timely file a motion
to substitute within ninety days of Mariners’ acquisition of the property. Burch, 136 So. 3d
at (¶ 8) (quoting Miss. R. Civ. P. 25(a)(1); Miss. R. Civ. P. 25(a)(1) advisory comm. n.).
Mariners waited nearly three years after acquiring the property to attempt to substitute into
the lawsuit, and it failed to show that the untimeliness resulted from excusable neglect. Id.
¶27. As there is not “a definite and firm conviction” that the county court committed a
clear error of judgment by denying the Association’s motion to substitute after weighing the
relevant factors, we affirm the county court’s denial of the Association’s motion to substitute,
as well as the circuit court’s affirmance of it. Citizens, 935 So. 2d at 1008 (¶ 13) (internal
quotation mark omitted) (quoting Amiker, 796 So. 2d at 948).
II. Whether the county court erred by granting Carbo’s motion to dismiss, and whether the circuit court erred by affirming the county court’s decision.
11 ¶28. The Association argues that the county court improperly dismissed the action after
Mariners received interest in the property. It ultimately asserts that because the county court
denied its motion to substitute, it is allowed to proceed as the original party, and the transfer
of interest cannot serve as a basis for dismissal. It requests that we reverse the judgments of
the county and circuit courts and that we direct Mariners to be joined as a necessary party.
¶29. Carbo rebuts by claiming that the county court properly dismissed the lawsuit and that
the circuit court properly affirmed the dismissal. He claims that: (1) res judicata applies here
since the Association’s 2015 lawsuit was dismissed with prejudice via agreed order, and (2)
Mariners is not a necessary party.
¶30. Mississippi Rule of Civil Procedure 19(a) requires:
A person who is subject to the jurisdiction of the court shall be joined as a party in the action if:
(1) in his absence complete relief cannot be accorded among those already parties, or
(2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impeded his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.
TXG Intrastate Pipeline Co. v. Grossnickle, 716 So. 2d 991, 1023 (¶ 119) (Miss. 1997)
(quoting Miss. R. Civ. P. 19(a)).
¶31. As cited above, Mississippi Rule of Civil Procedure 25(c) provides: “[i]n a case of any
transfer of interest, the action may be continued by or against the original party, unless the
court upon motion directs the person to whom the interest is transferred to be substituted in
12 the action or joined with the original party.” Citizens Nat’l Bank, LLC, 935 So. 2d at 1013
(¶ 37) (internal quotation marks omitted) (quoting Miss. R. Civ. P. 25(c)). Regarding the
interplay of the Rules, when a party’s interest is transferred during the pendency of a cause
of action that allegedly renders the transferee an indispensable party, Mississippi Rules of
Civil Procedure 19(a) and 25(c) are to be viewed together, “not as one trumping the other.”
TXG Intrastate Pipeline Co., 716 So. 2d at 1023 (¶ 120).
¶32. In general, a dismissal with prejudice acts as an adjudication on the merits. Rayner
v. Raytheon Co., 858 So. 2d 132, 134 (¶ 9) (Miss. 2003). “A dismissal with prejudice ‘bar[s]
the right to bring or maintain an action on the same claim or cause.’” Est. of Pope ex rel.
Payne v. Delta Health Grp., Inc., 55 So. 3d 1080, 1082 (¶ 11) (Miss. 2011) (emphasis
added) (quoting Pulley v. Chicago, R.I. & P. Ry. Co., 122 Kan. 269, 251 P. 1100, 1101
(1927)). In Estate of Pope, “the plaintiff was barred from bringing a subsequent action after
the original complaint was dismissed with prejudice.” Id.
¶33. We affirm the county and circuit courts’ grant of Carbo’s motion to dismiss. The
Association’s arguments in the current section relate to its arguments in the first section,
namely, that Mariners was improperly denied substitution or joinder in the lawsuit. Viewing
Mississippi Rules of Civil Procedure 25(c) and 19(a) together, the county court properly
denied the Association’s motion to substitute Mariners as plaintiff for two reasons. First, the
county court had discretion to deny the Association’s motion to substitute Mariners under
Mississippi Rule of Civil Procedure 25(c). Citizens Nat’l Bank, LLC, 935 So. 2d at 1008 (¶
13); TXG Intrastate Pipeline Co., 716 So. 2d at 1023 (¶ 117). Second, Mariners was not
13 required to be joined under Mississippi Rule of Civil Procedure 19(a) because the
Association and Carbo had previously been accorded complete relief without Mariners’
presence, as demonstrated by the 2015 agreed order. Miss. R. Civ. P. 19(a).
¶34. Further, after the Association filed the current lawsuit, it brought an identical lawsuit
against Carbo in 2015. When it did so, the Association no longer owned the property, and
the current lawsuit was still pending. To voluntarily dismiss the 2015 lawsuit, the parties
filed a joint unopposed ore tenus motion, seeking dismissal of both the Association’s
complaint and Carbo’s counterclaim. The county court granted the motion and entered an
agreed order dismissing with prejudice “the Complaint and Counter Complaint and all claims
that were or could have been brought in this action.”
¶35. Although the current lawsuit was filed prior to the 2015 lawsuit that was dismissed
with prejudice, the Estate of Pope Court posited that a dismissal with prejudice also bars the
right to maintain an action on the same claim. Est. of Pope, 55 So. 3d at 1082 (¶ 11) (citing
Pulley, 251 P. at 1101). Thus, the Association lost its right to maintain the current lawsuit
when the county court dismissed its 2015 lawsuit with prejudice. Id. However, as Carbo
notes, Mariners, as a real party in interest pursuant to Mississippi Rule of Civil Procedure 17,
retains its right to file suit against Carbo for eviction and back rent. Miss. R. Civ. P. 17.
III. Whether the county court and circuit court erred by concluding the Association’s suit is barred by res judicata.
¶36. The Association disagrees with the circuit court’s finding that res judicata applied.
It urges our Court to reverse the county and circuit courts’ judgments and remand the lawsuit.
14 ¶37. Carbo counters by claiming that res judicata bars the Association’s current lawsuit
and requests our Court affirm the dismissal. He alternatively argues that judicial estoppel
should apply here because Mariners has taken inconsistent positions in the lawsuit sub judice
and in its prior lawsuit for Carbo’s eviction that it filed in the Hinds County Chancery Court
in 2019.
¶38. “Res judicata ‘bars a second action between the same parties on the subject matter
directly involved in the prior action.’” Clark v. Neese, 262 So. 3d 1117, 1123 (¶ 14) (Miss.
2019) (quoting Harrison v. Chandler-Sampson Ins., Inc., 891 So. 2d 224, 232 (¶ 22) (Miss.
2005)). In Mississippi, res judicata will bar a claim if four identities are present and the
same in both cases: “(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.” Ward Gulfport Props., L.P. v. Miss.
State Highway Comm’n, 176 So. 3d 789, 793 (¶ 10) (Miss. 2015) (quoting Channel v.
Loyacono, 954 So. 2d 415, 424 (Miss. 2007)).
¶39. As to the first identity, the subject matter of the action is defined as “the substance of
the lawsuit.” Clark, 262 So. 3d at 1123 (¶ 13) (internal quotation marks omitted) (quoting
Harrison, 891 So. 2d at 232-33 (¶ 26)). The second “identity requires the ‘cause of action’
in both suits to be the same.” Id. (¶ 15). We have “defined ‘cause of action’ as the
underlying facts and circumstances upon which a claim has been brought.” Id. (citing Hill
v. Carroll Cnty., 17 So. 3d 1081, 1085 (¶ 13) (Miss. 2009)). For the third identity to apply
under res judicata, the parties must be in privity with one another. Id. at 1124 (¶ 18). The
15 strict identity of the parties need not be used, so long as the parties are in privity with one
another. Id. Although there is no prevailing definition of privity, the Court has defined it as
a word which expresses the idea that as to certain matters and in certain circumstances persons who are not parties to an action but who are connected with it in their interests are affected by the judgment with reference to the interests involved in the action, as if they were parties. The statement that a person is bound . . . as a privy is a short method of stating that under the circumstances and for the purpose of the case at hand he is bound by . . . all or some of the rules of res judicata by way of merger, bar or collateral estoppel.
Id. (citing Little v. V & G Welding Supply, Inc., 704 So. 2d 1336, 1339 (¶ 15) (Miss. 1997).
¶40. As to the fourth identity, the Court has not explicitly defined it, but such “[e]xamples
of this identity and its application exist, particularly where the parties are the same in the
relevant actions and are acting in the same interests or capacity.” Id. (¶ 21).
¶41. If all four identities are present, a party is precluded from litigating claims in a second
action that fall within the scope of the judgment of the first action. Hinton, 175 So. 3d at
1258 (¶ 19). However, if any one of the listed identities is absent, a party may not use res
judicata as a defense. Ward Gulfport Props., L.P., 176 So. 3d at 793 (¶ 10). “Even if all
four elements of res judicata are satisfied, the prior judgment also must be final and on the
merits.” Clark, 262 So. 3d at 1125 (¶ 23) (citing Anderson v. LaVere, 895 So. 2d 828, 832-
33 (¶ 10) (Miss. 2004)).
¶42. We agree with Carbo that the trial courts did not err by applying the principle of res
judicata. First, we again conclude that Mariners is not involved in the current lawsuit, and
Mariners is not litigating in the name of the Association, since the county court properly
denied the Association’s motion to substitute Mariners as plaintiff. Thus, the Association’s
16 argument that privity does not retroactively bind a grantee after the grantor grants interest
fails. In concluding that Mariners is not a party here, we will analyze res judicata as it
applies solely to the Association and its two lawsuits at issue: the current lawsuit which was
initiated in 2010 and its 2015 lawsuit, which was dismissed with prejudice by an agreed
order.
¶43. Between the Association’s current lawsuit and its 2015 lawsuit, all four res judicata
identities are present: (1) the subject matter of each suit concerns the foreclosure of Carbo’s
property; (2) the causes of action are identical because the underlying facts deal with the
foreclosure of the property and the fact that Carbo failed to vacate the premises; (3) the
parties are identical since the Association and Carbo are the plaintiff and defendant,
respectively, in each suit; and (4) the quality or character of a person against whom the claim
is made is met since, as established, the Association and Carbo are identical in each action,
and they each are acting in their same interests and capacities in both suits. Clark, 262 So.
3d at 1123-25 (¶¶ 14-23).
¶44. Last, as previously discussed, the 2015 agreed order dismissed with prejudice the
Association’s cause of action against Carbo. That agreed order was a final judgment on the
merits. Clark, 262 So. 3d at 1125 (¶ 23) (citing Anderson, 895 So. 2d at 832-33 (¶ 10));
Rayner, 858 So. 2d at 134 (¶ 9); Est. of Pope, 55 So. 3d at 1082 (¶ 11). Because all four
identities are present and because the 2015 agreed order was a final judgment on the merits,
the Association is precluded from litigating the same claims here. Hinton, 175 So. 3d at 1258
(¶ 19). As mentioned, Carbo admits that Mariners may file its own claim, and we agree.
17 Because res judicata bars the current lawsuit, we will not address Carbo’s argument that
judicial estoppel applies.
CONCLUSION
¶45. Finding no error, we affirm the county court’s denial of the Association’s motion to
substitute and its grant of Carbo’s motion to dismiss and the circuit court’s judgment
affirming the same.
¶46. AFFIRMED.
RANDOLPH, C.J., KING, P.J., MAXWELL, CHAMBERLIN, ISHEE, GRIFFIS, SULLIVAN AND BRANNING, JJ., CONCUR.