Decisions – COA- Dec. 17, 2017

Beth Donaldson, Colie Donaldson and Coby Donaldson v. Dominic Ovellamalicious prosecution – In 2009, Dominic Ovella, a Louisiana construction lawyer contracted with B & C Construction and Equipment, LLC to construct a water-front vacation home in Pass Christian.  The price was  $559,000.  After construction began, Ovella changed the plans and used up all the money he had for the house.  He managed to convince  B & C to keep working by making repeated promises he would soon pay all that was owed.  The Ovellas moved in in May 2009 and complained he could feel the  house sway in high winds so B & C installed bracing under the house.

Ovella ended up suing the owners and officers of B & C and B&C in federal district court.    The district court granted the motions by the owners and officers (the Donaldsons) to dismiss.  The jury returned a take nothing judgment on all claims against the company.   The district court also denied B & C’s and the Donaldsons’ motion for sanctions.  Ovella did not appeal.

On November 13, 2012, each of the Donaldsons sued Ovella for malicious prosecution seeking to recover attorneys’ fees and expenses incurred from defending the Ovella lawsuit and for other harms.  The trial court granted summary judgment for Ovella finding that because the district court denied the Donaldsons’ motion for sanctions in the federal case, the claim was barred by judicial estoppel and res judicata.  The Donaldsons appealed. The COA reverses and remands.

On appeal, the Donaldsons argue that the subject matter oftheir malicious-prosecution claims and the subject matter of their requests for sanctions in the previous federal action are 6 not identical. We agree. Regarding the first element, the supreme court has defined the “identity of the subject matter of the action” to mean “the substance of the lawsuit.” Hill v. Carroll Cty., 17 So. 3d 1081, 1085 (¶12) (Miss. 2009). The subject matter of the present matter is malicious prosecution.

 

Jason Bozeman  v. State of Mississippi – fondling – Bozeman was convicted of fondling his eight-year-old niece.  On appeal he argues that the State failed to provide any physical evidence that he had touched her.  The COA affirms.

Charles D. Easley v. Public Employees’ Retirement System – PERS benefits – Former Supreme Court Justice Charles D. Easley requested Public Employees’ Retirement System  benefits from  his work as a court-appointed attorney in the Lowndes  County Chancery Court for the years 1986 to 2000. The PERS Board denied him credit for those years on the grounds that he was an independent contractor.  The Circuit Court agreed as does the COA which affirms.

 

 

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