IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 02-60093
_____________________
H. S. STANLEY, Jr., Trustee of the Bankruptcy
Estate of Kathy Delk,
Plaintiff-Appellant,
KATHY DELK
Appellant,
versus
JOHNNY GRAY, Etc.; ET AL
Defendants,
JOHNNY GRAY, Individually and doing business as Contractor's
Edge; CONTRACTOR'S EDGE; THE LATHAN COMPANY; AMERICAN NATIONAL
INSURANCE COMPANY, Individually and doing business as
Edgewater Mall; AMERICAN NATIONAL REAL ESTATE MANAGEMENT
CORPORATION, Individually and doing business as Edgewater
Mall
Defendants-Appellees.
__________________________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:00-CV-217-RG
_________________________________________________________________
January 6, 2003
Before JOLLY, DUHÉ and WIENER, Circuit Judges.
PER CURIAM:*
H.S. Stanley (“Stanley”) and Kathy Delk (“Delk”) appeal the
district court’s grant of summary judgment in favor of defendants
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Johnny Gray, Contractor’s Edge, The Lathan Company (“contractors”),
American National Insurance Company and American National Real
Estate Management Corporation (“mall owners”). Because the
district court erroneously applied collateral estoppel and
determined that Delk was a licensee rather than a business invitee,
we REVERSE and REMAND.
I.
Delk co-owned a beauty salon located in Edgewater Mall called
Edgewater Glamourama. On May 29, 1999, few days before Edgewater
Glamourama’s lease of space in Edgewater Mall expired, Delk went to
Edgewater Mall to remove equipment from the Edgewater Glamourama
space. Because of ongoing renovation at Edgewater Mall, Delk could
only access the Edgewater Glamourama space through a single outside
entrance. A large dumpster had been placed near the entrance,
apparently for the purpose of collecting debris from the renovation
of the roof of Edgewater Mall. While exiting her shop, Delk was
struck on the head and injured by debris thrown by workers from the
roof. As a result she suffered neck and back injuries that
required several surgeries.
Stanley, as Delk’s trustee in bankruptcy, brought suit on
behalf of Delk against the contractors and the mall owners,
alleging that she was injured as a result of their negligence. The
district court granted summary judgment, concluding that the claims
were barred by collateral estoppel and that Delk was a licensee to
whom the defendants owed no duty of reasonable care.
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II.
We have carefully considered the record, briefs and arguments
of counsel and are convinced that collateral estoppel is not
applicable in this case, that Delk was a business invitee entitled
to reasonable care, and that issues of material fact exist which
preclude summary judgment.
Under Mississippi law collateral estoppel prevents parties
from litigating in a current action issues decided in a prior
action. The actions must be between the same parties and involve
the same subject matter and cause of action. Farris v. State, 764
So. 2d 411, 423 (Miss. 2000)(“an issue of ultimate fact which was
a valid and final judgment may not be relitigated between the same
parties in a subsequent suit.”) The district court based its
finding of collateral estoppel on a prior action brought in
Mississippi state court by Delk against the mall owners alleging
breach of contract, tortious interference with business relations
and other claims based on Edgewater Glamourama’s lease. The
Mississippi court dismissed the suit because Delk, who was not a
signatory to the lease, lacked standing. The prior action did not
involve the same cause of action or subject matter as the current
action and, because it was dismissed for lack of standing, clearly
did not involve the litigation or the resolution on the merits of
any issues present in the current action. In addition, the
determination in the prior suit that Delk was not a signatory to
the lease does not bear on whether she is or is not a third party
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beneficiary to the contract between the mall owners and the
contractors at issue in this case. For these reasons, the district
court erred by applying collateral estoppel in this case.
The district court also held that Delk was a licensee rather
than a business invitee and therefore not entitled to reasonable
care by the defendants under Mississippi law. A licensee enters
the property of another for his own benefit, while an invitee
enters the property of another for the mutual benefit of both owner
and invitee. A business invitee is an invitee whose presence is
directly or indirectly connected with business dealings with the
property owner. Case v. Wal-Mart Stores, Inc., 13 F.Supp. 2d 597,
600 (S.D. Miss. 1998). Owners have a duty of reasonable care with
respect to business invitees. Id. Delk was on Edgewater Mall
property in connection with her status as an employee and co-owner
of Edgewater Glamourama, a business which had a valid lease of the
space with the mall owners. As such, Delk was a business invitee
entitled to reasonable care with respect to both the mall owners
and the contractors.
The district court erred in applying collateral estoppel and
in determining that Delk was a licensee rather than a business
invitee under Mississippi law. With the issues thus resolved,
there remain disputed issues of material fact that preclude the
grant of summary judgment. Accordingly, the judgment of the
district court is REVERSED and the matter is REMANDED to the
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district court for further proceedings not inconsistent with this
1 opinion.
REVERSED AND REMANDED.
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