IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2013-CP-01906-COA
OUIDA J. CLAIBORNE APPELLANT
v.
OCWEN LOAN SERVICING, LLC, BAKER APPELLEES
DONELSON, BEARMAN, CALDWELL &
BERKOWITZ, PC AND ADAMS AND REESE
LLP
DATE OF JUDGMENT: 10/07/2013
TRIAL JUDGE: HON. M. JAMES CHANEY JR.
COURT FROM WHICH APPEALED: WARREN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: OUIDA J. CLAIBORNE (PRO SE)
ATTORNEYS FOR APPELLEES: C. LEE LOTT III
G. ROBERT PARROTT II
CHARLES N. PARROTT
D. STERLING KIDD
NATURE OF THE CASE: CIVIL - TORTS - OTHER THAN PERSONAL
INJURY AND PROPERTY DAMAGE
TRIAL COURT DISPOSITION: GRANTED MOTION FOR SUMMARY
JUDGMENT AND MOTIONS TO DISMISS
IN FAVOR OF APPELLEES
DISPOSITION: AFFIRMED - 10/06/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE GRIFFIS, P.J., BARNES AND JAMES, JJ.
BARNES, J., FOR THE COURT:
¶1. This case began in 2003, when Ouida Claiborne sued Ocwen Loan Servicing LLC
(Ocwen), alleging that the company had wrongfully foreclosed on her home (Claiborne I).
During discovery, Claiborne produced copies of the back of money orders in an attempt to
establish she had made payments on the mortgage. However, Ocwen introduced evidence
of the front of the money orders, showing that the money orders were in fact not payable to
Ocwen, but rather to Claiborne or other entities. Ocwen attached the copies of the
authenticated money orders to a motion to dismiss and a motion for summary judgment.
After a hearing, the County Court of Warren County granted Ocwen’s motions and dismissed
Claiborne’s claim with prejudice on May 8, 2007, finding that there was no genuine issue of
material fact that she “was actually in default through no fault of the Defendants,” and that
Claiborne had “behaved egregiously” in “bringing this suit based on falsified documents,
producing falsified documents and testifying under oath claiming to have made payments
[she] did not make[.]” Ocwen was ordered to return any money orders belonging to
Claiborne that were still in its possession within thirty days.1
¶2. As Claiborne filed an untimely appeal of the county court’s order and did not comply
with procedural requirements, her subsequent appeal to the Warren County Circuit Court was
dismissed on March 6, 2008. She continued to file motions requesting reconsideration of
the judgment, a jury trial, and change of jurisdiction. In a June 20, 2008 order, the circuit
judge ordered Claiborne to cease filing any additional frivolous motions, and to file any
subsequent appeals to the Mississippi Supreme Court. However, Claiborne filed three more
motions for appeal with the circuit court, and on January 9, 2009, she filed a motion for
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Ocwen noted at the hearing that Claiborne had continued to send partial payments
after the foreclosure. Since those payments did not fully satisfy the arrearage, Ocwen
attempted to return the funds to her. Claiborne, however, refused to accept the returned
money orders. Ocwen eventually put money orders totaling $17,721 in a circuit court
supervised account on May 17, 2008. In a letter dated January 7, 2014, the circuit clerk
informed Claiborne that the majority of the money orders (issued by Western Union) had
been “returned by our bank for payment stopped[.]”
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recusal. As a result, a show-cause hearing was conducted on February 6. The circuit court
held Claiborne in civil contempt and ordered her jailed until she paid a $300 fine. Claiborne
then filed an appeal with the Mississippi Supreme Court, which dismissed the appeal on
November 1, 2012, for failure “to seek leave of the trial court to file an out-of time appeal”
and failure “to comply with the procedural requirements[.]”
¶3. On January 2, 2013, Claiborne filed a second complaint against Ocwen, which is the
subject of this appeal. In the complaint, she alleges that in Claiborne I, the defendants
“tamper[ed] with the evidence and provid[ed] fraudulent money orders that were not by the
Plaintiff.” She also asserted claims of defamation and pain and suffering. Ocwen filed a
motion to dismiss and a motion for summary judgment on March 17, 2013. Claiborne
responded, claiming that her complaint was a new action alleging fraud, perjury, spoliation
of evidence, and negligence. Claiborne subsequently amended her complaint on May 6,
2013, naming Baker Donelson, Bearman, Caldwell & Berkowitz PC, the firm who represents
Ocwen in the current action, and Adams and Reese LLP, the firm who represented Ocwen
in Claiborne I, as additional defendants to the action.
¶4. Ocwen filed a revised motion for summary judgment on June 19, 2013, arguing that
Claiborne was “seek[ing] to litigate issues already decided in a suit she brought in 2003
(Claiborne I).” Baker Donelson filed its motion to dismiss on June 27, 2013. Adams and
Reese joined in Ocwen’s motion for summary judgment and Baker Donelson’s motion to
dismiss, along with its own motion to dismiss on July 9, 2013.
¶5. The circuit court conducted hearings on July 17, 2013, and September 27, 2013.
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Concluding that Claiborne’s claims were barred by the doctrine of collateral estoppel and the
applicable statute of limitations, and that her claims were “non-cognizable,” the circuit court
entered the following orders on October 7, 2013, that collectively dismissed Claiborne’s
claims with prejudice: (1) Order Granting Motion to Dismiss of Adams and Reese; and (2)
Order Ruling on Motions and Dismissing Civil Action with Prejudice, which dismissed
Claiborne’s claims against Ocwen and Baker Donelson.
¶6. Claiborne filed a timely appeal, asserting that the circuit court erred in granting the
motion for summary judgment.2 Finding that the circuit court was correct in holding that
collateral estoppel applies and bars Claiborne’s 2013 action, we affirm the court’s ruling.
As the first issue is dispositive, we do not address any remaining arguments raised on appeal.
STANDARD OF REVIEW
¶7. We review a circuit court’s grant of summary judgment de novo. Webb. v. Imperial
Palace of Miss. LLC, 76 So. 3d 759, 759-60 (¶3) (Miss. Ct. App. 2011). Summary judgment
“shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and
admissions on file, together with the affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled to a judgment as a matter of law.”
M.R.C.P. 56(c). All evidence before the circuit court will be considered “in the light most
favorable to the non-moving party.” Webb, 76 So. 3d at 760 (¶3) (citation omitted). “The
party opposing the motion ‘may not rest upon the mere allegations or denials of his
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Claiborne’s appeal does not address the circuit court’s decision to grant the motions
to dismiss. However, as the circuit court granted the Appellees’ motions to dismiss on the
same grounds as its grant of summary judgment (collateral estoppel, statute of limitations),
we find our analysis applicable to the court’s ruling on those motions as well.
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pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth
specific facts showing that there is a genuine issue for trial.’” Id. (quoting M.R.C.P. 56(e)).
DISCUSSION
¶8. In the order granting summary judgment dated October 7, 2013, the circuit judge
concluded that Claiborne’s claims were “barred by the doctrine of collateral estoppel” and
“the applicable statutes of limitations.” Claiborne argues on appeal that the circuit court
erred in granting Ocwen’s motion for summary judgment, contending that “collateral
estoppel should not apply” and that the statute of limitations was tolled.
¶9. The collateral-estoppel doctrine precludes parties “from relitigating the specific issues
actually litigated, determined by, and essential to the judgment in a former action, even
though a different cause of action is the subject of the subsequent action.” Baker &
McKenzie LLP v. Evans, 123 So. 3d 387, 401 (¶49) (Miss. 2013). The issue of collateral
estoppel is reviewed de novo. Id. Although Baker Donelson and Adams and Reese were not
parties to the original action, “if the nonparty can prove that he was in privity with the parties
in the former action, then collateral estoppel may be applied.” Id. at 402. “For a nonparty
to be considered in privity, the nonparty must be ‘connected with the former action in their
interests and be affected by the judgment with reference to interest involved in the action, as
if they were parties.”’ Id. (quoting Little v. V & G Welding Supply Inc., 704 So. 2d 1336,
1339 (¶15) (Miss. 1997)). “Even if the nonparty is considered to be in privity, the issues
must be ‘the specific issues actually litigated.’” Id. (quoting Marcum v. Miss. Valley Gas Co.
Inc., 672 So. 2d 730, 732-733 (Miss. 1996). As both law firms represented Ocwen in the
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previous action (Adams and Reese at trial level and Baker Donelson on appeal), we find
privity existed with Ocwen. See Century 21 Deep South Props. Ltd. v. Corson, 612 So. 2d
359, 373 (Miss. 1992) (noting that “privity is a necessary component of the attorney-client
relationship”).
¶10. Claiborne insists that the 2013 action concerns fraud conducted by the Appellees not
addressed in the prior action. The Appellees assert that Claiborne was collaterally estopped
from bringing the 2013 action, as it merely relitigated the same issues address in Claiborne
I. We find collateral estoppel clearly bars Claiborne’s January 2, 2013 complaint, in which
she claimed that Ocwen “intentionally did spoliation by tampering with the evidence and
providing fraudulent money orders” and “withheld and falsified information.” But although
Claiborne argues her claims of “fraud” and “spoliation” are different causes of action, it is
apparent the basis of the 2013 complaint was that the money orders submitted by the
Appellees were fraudulent – a claim that the county court specifically addressed and found
to be baseless in its May 8, 2007 ruling. See Dignowity v. Dignowity, 37 So. 3d 1263, 1267
(¶11) (Miss. Ct. App. 2010) (“Under the doctrine of collateral estoppel, an issue of ultimate
fact determined by a former judgment cannot be relitigated between the same parties in a
later action.” (quoting Short v. State, 929 So. 2d 420, 424 (¶12) (Miss. Ct. App. 2006))). At
the 2007 hearing on Ocwen’s motion for summary judgment in Claiborne I, Claiborne
alleged: “They did get the money, Your Honor, and I have proof that they did. What they
are presenting in court today is forgery.” Claiborne continually protested to the county judge
throughout the hearing that the money orders presented by Ocwen were “fake.” However,
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the county court determined that Claiborne was the party who presented fraudulent
documents in an attempt to support her claim.
¶11. At the motion hearing on September 27, 2013, the circuit judge concluded:
There’s a country saying that . . . when you put lipstick on a pig, it’s still a pig.
And the idea is that you can change up the words, you can call it different
causes of action, spoliation and perjury and that kind of stuff, but it’s all
related to the same issue. And those are the issues that you’re arguing to me.
Did they withhold payment? Did they change the money order? Were you
behind on your payments or not? All of those things I’m convinced were
before the [c]ounty [c]ourt judge.
We affirm the circuit court’s grant of summary judgment, finding that the issues brought in
this action were already addressed by the county court in Claiborne I, and the doctrine of
collateral estoppel barred Claiborne’s claim.
¶12. As this issue is dispositive of Claiborne’s appeal, we decline to address any remaining
issues.
¶13. THE JUDGMENT OF THE WARREN COUNTY CIRCUIT COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, MAXWELL,
FAIR AND WILSON, JJ., CONCUR. JAMES, J., CONCURS IN PART WITHOUT
SEPARATE WRITTEN OPINION.
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