Smith v. Malouf8/22/2002
2, the date the agreed order was entered. In the order, Joey effectively agreed that Natalie and those in privity with her committed no misconduct during the time frame when the baby was born and given up for adoption. Therefore, there is no factual premise for Joey's claims for civil conspiracy or emotional distress, and the circuit court properly granted summary judgment.
. Finally, Joey argues that the final order can only be given collateral estoppel effect as to Natalie, not her parents or any other defendants. This raises the issue of privity. Strict identity of parties is not necessary for either res judicata or collateral estoppel to apply, if it can be shown that a nonparty stands in privity with the party in the prior action. McIntosh v. Johnson, 649 So.2d 190, 193-94 (Miss.1995), overruled on other grounds by Norman v. Bucklew, 684 So.2d 1246 (Miss.1996); Johnson v. Howell, 592 So.2d 998, 1002 (Miss.1991); Walton v. Bourgeois, 512 So.2d 698, 701 (Miss.1987).
. We find that the other defendants in this action are in privity with Natalie, especially in light of the final order stating that it applies to Natalie "and all who acted in concert with her." Therefore, the doctrine of collateral estoppel operates to bar re-litigation of those issues listed in the agreed order as to all defendants in this action.
II. WHETHER THE DISMISSAL OF JOEY'S RICO SUIT IN GEORGIA FEDERAL COURT AND THE FINAL ORDER IN CHANCERY COURT BAR HIS CLAIM FOR CIVIL CONSPIRACY UNDER THE DOCTRINE OF RES JUDICATA.
. The summary judgment from which Joey now appeals makes no mention of the Georgia RICO action, nor does it rely on the doctrine of res judicata in reference to the agreed order. Accordingly, we will now only cursorily discuss the Georgia RICO action.
. The RICO action alleged a conspiracy between Natalie, her parents, and Georgia citizens to deprive Joey of his parental rights. The action was dismissed due to the running of the applicable statutes of limitations and lack of personal jurisdiction. Therefore, it was not "actually litigated" and cannot act as a bar to Joey's current suit under the doctrine of res judicata or collateral estoppel. M.R.C.P. 41(b); Patton v. Mack Trucks, Inc., 556 So. 2d 679, 680 (Miss. 1989). As such, the Georgia RICO action has no effect on Joey's present lawsuit in circuit court.
III. WHETHER THE CIRCUIT COURT ERRED IN DENYING JOEY'S MOTION TO AMEND COMPLAINT.
. Joey filed a motion to amend complaint, seeking to add The Malouf Furniture Co., The John Richards Collection, Burgoon and Oakes, James W. Burgoon, Richard A. Oakes, Patrick M. Malouf, and Thomas J. Carr as defendants and to allow the assertion of claims by Joe W. Smith, III, the minor son of Joey, acting by and through his next friend and guardian, Joey.
. We find that this issue is moot in light of our decision to affirm the circuit court's dismissal of Joey's claims.
CONCLUSION
. The circuit court was correct in finding that Joey's claims are barred under the doctrine of collateral estoppel, and its judgment is affirmed.
. AFFIRMED.
SMITH, P.J., WALLER, COBB, CARLSON AND GRAVES, JJ., CONCUR. McRAE, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. EASLEY, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. PITTMAN, C.J., NOT PARTICIPATING.
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