author: GRIFFIS, P.J., FOR THE COURT:

text:
    Nitin MALIK a/k/a Natin Malik a/k/a Matin Malik, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-01495-COA
    Court of Appeals of Mississippi.
    December 5, 2017 Rehearing Denied April 10, 2018 Certiorari Denied July 26, 2018
    THOMAS M. FORTNERRICHARD ANTHONY FILCE, ATTORNEYS FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA MCCLINTON, ATTORNEY FOR APPELLEE
    BEFORE GRIFFIS, P.J., CARLTON AND GREENLEE, JJ.
   GRIFFIS, P.J., FOR THE COURT:

¶ 1. Nitin Malik was convicted of two counts of the sale of hydrocodone with acetaminophen, a schedule III controlled substance, in violation of Mississippi Code Annotated section 41-29-139 (Rev. 2013). He was sentenced to two consecutive eight-year terms. The Rankin County Circuit Court denied Malik's posttrial motion. Malik now appeals. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On May 3, 2013, the Mississippi Bureau of Narcotics (MBN) sent a confidential informant (CI) into Hometown Quickie, a convenience store located in Richland. The CI went there to purchase hydrocodone with acetaminophen pills, more commonly known as Lorcet 10 pills. The MBN agents equipped the CI with an audio-and-video recording device, fifty dollars, and a vehicle. When the CI entered the store, she encountered Malik and after several minutes of random conversation, requested "eight for forty." This transaction was captured on the audio recording but not on video.

¶ 3. Immediately after the purchase, the CI met with an MBN agent and turned over eight pills and ten dollars change. The pills were sent off to a crime lab and tested positive for hydrocodone with acetaminophen, or Lorcet 10 pills. The pills were later used as evidence against Malik. MBN did not immediately arrest Malik; instead the agency continued building a case against him.

¶ 4. On June 3, 2013, an MBN agent and the CI worked together to make another purchase from Malik. The CI allegedly prearranged a meeting with Malik. The CI again drove to the convenience store and purchased pills from Malik. The CI purchased ten pills for fifty dollars. This subsequent transaction was not captured on audio or video recording because the device's battery died shortly before the transaction began.

¶ 5. On this occasion, the MBN agent followed the CI to the store and watched her go inside. The agent waited outside and listened to the transaction through his equipment, which worked with the CI's device. Once the task was complete, the MBN agent met with the CI and collected the bag of pills. The crime lab confirmed that the ten pills contained hydrocodone with acetaminophen.

¶ 6. On September 3, 2014, a grand jury returned a four-count indictment on Malik. Malik was charged with two counts of the sale of a controlled substance (Counts I and III) and two counts of conspiracy to sell a controlled substance (Count II and IV). On May 4, 2015, the case proceeded to trial on Counts I and III only. Counts II and IV were ordered nolle prosequi pursuant to the State's motion that in exchange for Malik's guilty plea on Counts I and III, the conspiracy charges would be abandoned. Notably, the State did not pursue the conspiracy charges after Malik elected to proceed with a trial.

¶ 7. Following a two-day jury trial, Malik was found guilty on both counts. On May 11, 2015, he was sentenced to eight years on Count I, for the sale of less than ten dosage units, and he received an eight-year sentence on Count III, for the sale of ten dosage units but less than twenty dosage units. The sentences were order to run consecutively, with all time to be served in the custody of the Mississippi Department of Corrections.

¶ 8. Malik timely filed posttrial motions for a new trial and an amended motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. Within his motion he also requested a hearing to allow testimony of witnesses for completion of the record. Malik asserted that (1) the State failed to provide the defense with exculpatory evidence during discovery, (2) the State made improper closing arguments, (3) the trial court erred in allowing evidence of prior bad acts, and (4) his counsel was ineffective. Following a hearing on August 29, 2016, the circuit judge found that the motions were not supported by the evidence in the case. The motions were denied. Aggrieved, Malik appeals and asserts the same. We find no error and affirm.

ANALYSIS

¶ 9. On appeal, Malik raises each issue asserted below. He asserts that each issue is inextricably intertwined and resulted in prejudice to him during the trial. We address each separately.

I. BradyViolation

¶ 10. Malik first argues that the State failed to disclose exculpatory evidence that was favorable to him, in violation of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). He argues that the State had a duty to reveal that the same CI that testified against him had unsuccessfully sought to purchase pills from him on an occasion prior to May 3 and June 3, 2013. Malik asserts that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id. at 87, 83 S.Ct. 1194. He argues that the State never disclosed the failed purchase attempt, and, in fact, it argued otherwise to the jury. He contends that a reasonable probability exists that the outcome of the trial would have been different if this evidence had been disclosed.

¶ 11. The Mississippi Supreme Court has held that "[t]he standard of review for a trial court's ruling on a discovery violation is abuse of discretion." Curry v. State , 939 So.2d 785, 787 (¶ 8) (Miss. 2006). Further, the supreme court "has stated not all failures to disclose exculpatory evidence constitute reversible error." Id. "The question to be asked regarding a discovery violation is whether there is a reasonable probability that the verdict would have been different but for the governmental evidentiary suppression, which undermines confidence in the outcome of the trial." Id.

¶ 12. Following his conviction, Malik obtained new counsel and filed an "Amended Motion for Judgment Notwithstanding the Verdict or in the Alternative a New Trial and Specific Request for a Hearing to Allow Testimony of Witnesses for Purposes of Completion of Record." The circuit judge granted the request for a hearing. On August 29, 2016, both parties argued their positions with regard to the alleged exculpatory evidence. Malik asserted that the video and/or audio recording, made by law enforcement, of the unsuccessful purchase attempt constituted exculpatory evidence. He argued that the evidence could have been used at trial to substantially discredit the CI's testimony. The State contended that the failed purchase attempt was not exculpatory evidence because it turned out that Malik had no pills to sell-not that he refused to sell the CI the pills. The circuit judge agreed with the State and declined to find that the failed purchase should be considered exculpatory evidence.

¶ 13. The issue is now before us. When dealing with alleged Brady violations, the supreme court has held:

To establish a Brady violation, a defendant must prove the following: (1) that the government possessed evidence favorable to the defendant (including impeachment evidence); (2) that the defendant does not possess the evidence nor could he obtain it himself with any reasonable diligence; (3) that the prosecution suppressed the favorable evidence; and (4) that had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceedings would have been different.

Fortenberry v. State , 191 So.3d 1245, 1255 (¶ 32) (Miss. Ct. App. 2015) (quoting King v. State , 656 So.2d 1168, 1174 (Miss. 1995) ).

¶ 14. As to the first prong, the record clearly provides that the State did not possess a recording, or any physical evidence, of the prior failed purchase attempt. During the hearing on the motion, the State informed the court that Agent Richard Wright with MBN was present and prepared to testify to the events surrounding the failed purchase attempt. The State confirmed that MBN did in fact send the CI into Malik's store to purchase pills; however, Malik had no pills to sell and directed the CI to a relative's home. The CI was unable to purchase from Malik's relative because the relative also had no pills to sell. As a result, MBN made no record of the attempt, and, in fact, the recording had been taped over since no case was being made from the attempt. Because the alleged encounter was not recorded, and also because the MBN agent's testimony would likely show that the only reason the CI was unsuccessful was because Malik had no pills to sell at the time, we do not find the alleged exculpatory evidence favorable to Malik. This prong is not satisfied.

¶ 15. We also do not find that the second prong of Brady is satisfied. It is evident that Malik does not possess physical evidence of the purchase attempt, as the record confirms that no audio or video recording exists. The audio and video recording was never downloaded, no report of the attempt was made, the recording was eventually taped over, and no criminal case exists regarding the attempt. With regard to whether Malik could have obtained the recording, we find no evidence in the record that Malik's trial counsel either corresponded with or attempted to meet with the MBN agents to obtain information pertaining to any previous purchase attempts. There is also no claim that Malik had no access to the agents. Thus, we find that with reasonable diligence, Malik's trial counsel could have obtained this information.

¶ 16. As to the third prong, we do not find that the State suppressed evidence that was favorable to Malik. First, we cannot say that the evidence was actually favorable to him. Furthermore, we find no evidence in the record that suggests that the State suppressed the evidence. This prong is not satisfied.

¶ 17. Likewise, we find that the fourth prong is not satisfied. Based on the foregoing analysis, we do not conclude that a reasonable probability exists that the outcome would have been different if the purchase attempt had been disclosed to the defense.

¶ 18. We do not find that Malik's theories or speculation of how the jury may have perceived the information overcomes the four-pronged test in Brady . Therefore, we find no error in the circuit judge's holding that the failed purchase attempt did not constitute exculpatory evidence. This issue is without merit.

II. Improper Closing Argument

¶ 19. Malik next argues that the State improperly stated in its closing argument that the CI had bought drugs from him on prior occasions. He further argues that the State made the statements in an attempt to bolster the CI's credibility, which he asserts was lawyer misconduct that created prejudice and also violated the Mississippi Rules of Evidence.

¶ 20. "The standard of review that this Court must apply to lawyer misconduct during opening statements or closing arguments is whether the natural and probable effect of the improper argument is to create unjust prejudice against the accused[,] so as to result in a decision influenced by the prejudice so created." Wilson v. State , 194 So.3d 855, 864 (¶ 30) (Miss. 2016) (citation and internal quotation marks omitted). "The purpose of a closing argument is to fairly sum up the evidence." Id. (citation omitted). "Prosecutors are not allowed to employ tactics [that] are inflammatory, highly prejudicial, or reasonably calculated to unduly influence the jury." Id. (citation and internal quotation marks omitted). " The prosecutor may comment upon any facts introduced into evidence, and he may draw whatever deductions and inferences that seem proper to him from the facts." Id. (citation omitted). "Counsel cannot, however, state facts which are not in evidence, and which the court does not judicially know, in aid of his evidence." Id.

¶ 21. During closing argument, the State discussed the CI's inclination to cooperate with law enforcement. The State noted that the CI was a former nurse who had been caught forging prescriptions in order to obtain pills illegally. The CI had lost her nursing license, was facing criminal charges in both Rankin and Simpson Counties, and, if convicted, she could lose custody of her children. The State acknowledged that the CI's credibility was an issue.

¶ 22. The State noted that the CI had been addicted to pain medication and that she was willing to buy drugs to cooperate with law enforcement. The State then made the following statement to the jury:

Where does somebody addicted to pain medicine go to get their drugs? To somebody they know ... will sell them drugs. ... Who did she make arrangements to buy Lorcet or Hydrocodone-Acetaminophen from? This defendant, two separate times, May the 3rd, June the 3rd, that's who she went and bought drugs from, not some stranger, not some random person at a convenien[ce] store that she had never met or didn't know.

At that point, defense counsel objected that the statements were going beyond the record. The circuit judge overruled the objection, stating that "the jury's recollection of the evidence will control. This is argument." The State continued its argument, asserting that the CI "went to Nitin Malik, who she knew she could buy drugs from."

¶ 23. Malik contends that the State's reference implied that the CI had purchased drugs from him on prior occasions. He asserts the statements served to introduce facts that were not in evidence-which prejudiced him before the jury. He argues the statements were also used to bolster the CI's credibility.

¶ 24. This Court has previously held that "arguing statements of fact that are not in evidence or necessarily inferable from it and that are prejudicial to the defendant is error." Mitchell v. State , 720 So.2d 492, 495-96 (Miss. Ct. App. 1998). However, this Court has also held that counsel "may draw whatever deductions and inferences that seem proper to him from the facts." Giles v. State , 187 So.3d 116, 124 (¶ 28) (Miss. 2016). While the State's comments suggest that the CI previously purchased pills from Malik, the statements were not improper. The CI and two MBN agents testified that Malik became known to them through their investigation into the CI's alleged relationship with him. Therefore, the State's comments were appropriately based upon facts established through witness testimony.

¶ 25. The inference that the CI had previously purchased pills could have been reasonably drawn from the testimony. The State did not make reference to the previous attempt or provide any new facts pertaining to prior purchases. Furthermore, we note that the jury was instructed to regard the arguments, statements, and remarks made by counsel during closing arguments as a means to help with understanding the evidence and application of the law, but not as evidence. Therefore, we do not find that the closing argument created unjust prejudice against Malik or influenced the jury's decision.

¶ 26. This Court has previously held that "[t]he standard of review for the admission or exclusion of evidence is ... abuse of discretion." Liddell v. State , 33 So.3d 524, 529 (¶ 12) (Miss. Ct. App. 2010) (citation omitted). "A trial judge enjoys a great deal of discretion as to the relevancy and admissibility of evidence." Id. "Unless the judge abuses this discretion so as to be prejudicial to the accused, the Court will not reverse th[e] ruling." Id. at 529-30 (¶ 12) (quoting Williams v. State , 991 So.2d 593, 597 (¶ 8) (Miss. 2008) ). This issue is without merit.

III. Prior-Bad-Acts Evidence

¶ 27. As to the alleged violation of Mississippi Rule of Evidence 404(b), we do not find that the statements made by the State during closing argument sought to introduce evidence of other crimes, wrongs, or bad acts of the defendant. Malik contends that the State's references were used to show that he had committed other similar offenses, and, therefore, he must have committed the offenses for which he was being tried. We do not find that the State suggested that the CI had purchased pills from Malik on a prior occasion. Rather, we interpret the statements to mean that the CI knew that she could buy drugs from him. Such knowledge was not necessarily limited to previous personal experience.

¶ 28. During the hearing on the posttrial motion, the circuit judge declined to accept Malik's reasoning that mere knowledge was proof that he had sold pills on a prior occasion. The circuit judge concluded that the statements did not equate to the State "putting on evidence of any prior bad acts." Likewise, we hold that the State did not violate Rule 404(b) in its closing argument because the statements were not made to prove that Malik had sold drugs to the CI before.

¶ 29. We find no abuse of discretion by the circuit judge. The decision to overrule Malik's objection to the State's closing argument created no prejudice to the accused. This issue is without merit.

IV. Ineffective Assistance of Counsel

¶ 30. In his final assignment of error, Malik asserts that he received ineffective assistance of counsel when his trial counsel failed to adequately conduct a pretrial investigation to explore an eyewitness's potential testimony for trial. He further asserts that the eyewitness's prospective testimony refuted the State's case. He contends that the eyewitness testimony would have been persuasive to the defense's theory that the CI fabricated the drug buys.

¶ 31. "When considering a claim of ineffective assistance of counsel, this Court must find that trial counsel's performance was deficient and that there would have been a different result in the verdict if it were not for trial counsel's deficiency." Payton v. State , 41 So.3d 713, 719 (¶ 23) (Miss. Ct. App. 2009) (citation omitted). "There is a rebuttable presumption that counsel's representation is competent and that the acts in question fall within the 'wide range of professionally competent assistance.' " Porter v. State , 963 So.2d 1225, 1229 (¶ 15) (Miss. Ct. App. 2007) (quoting Strickland v. Washington , 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ).

¶ 32. Additionally,

[this] Court rarely determines issues of ineffective assistance of counsel on direct appeal unless: "(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial court."

Payton , 41 So.3d at 719 (¶ 23) (quoting Graves v. State , 914 So.2d 788, 798 (¶ 35) (Miss. Ct. App. 2005) ).

¶ 33. Malik maintains that his attorney rendered ineffective assistance when he failed to adequately explore the cashier's eyewitness testimony. He argues that the cashier should have been called to testify on his behalf about the CI's alleged fabricated drug purchase. In support of this claim, he cites to the supreme court's holding in Johns v. State , 926 So.2d 188 (Miss. 2006), where the court reversed on the basis that the defendant's counsel had rendered ineffective assistance. The defendant's trial counsel had failed to interview an alibi witness.

¶ 34. The State disputes Malik's contention that this case is analogous to Johns. The State asserts that, "at a minimum, counsel has a duty to interview potential witnesses and to make independent investigation of the facts and circumstances of the case." (Quoting Payton v. State , 708 So.2d 559, 561 (¶ 8) (Miss. 1998) ). The State asserts that unlike the factual scenario in Johns , Malik's eyewitness was in fact interviewed before the trial, albeit just three days prior to the trial. We agree that this case is distinguishable from Johns.

¶ 35. Moreover, we find that trial counsel did not render ineffective assistance solely because he elected not to call the cashier as an eyewitness for Malik. This Court has previously held that "[c]ounsel's choice of whether or not to file certain motions, call witnesses, ask certain questions, or make certain objections fall[s] within the ambit of trial strategy and will not stand as support for an ineffective[-]assistance[-]of[-]counsel claim." Jackson v. State , 73 So.3d 1176, 1181-82 (¶ 22) (Miss. Ct. App. 2011) (citations and internal quotation marks omitted).

¶ 36. Further, "[t]his Court will only under exceptional circumstances[ ] second guess counsel on matters of trial strategy." Hill v. State , 850 So.2d 223, 226 (¶ 14) (Miss. Ct. App. 2003) (citing Marshall v. State , 759 So.2d 511, 513 (¶ 11) (Miss. Ct. App. 2000) ). We do not find that the alleged errors by Malik's trial counsel "were so egregious as to constitute a deficiency in performance or prejudicial to [Malik]'s defense as to affect the outcome of trial." Cole v. State , 666 So.2d 767, 777 (Miss. 1995).

¶ 37. Additionally, we find no indication of ineffective assistance of counsel in the record. "The Mississippi Supreme Court has stated that, where the record cannot support an ineffective[-]assistance[-]of[-]counsel claim on direct appeal, the appropriate conclusion is to deny relief, preserving the defendant's right to argue the same issue through a petition for post-conviction relief." Wilcher v. State , 863 So.2d 719, 761 (¶ 162) (Miss. 2003) (quoting Aguilar v. State , 847 So.2d 871, 878 (¶ 17) (Miss. Ct. App. 2002) ). "We may determine the merits of the claim [of ineffective assistance of counsel] on direct appeal only if the record affirmatively shows ineffectiveness of constitutional dimensions, or the parties stipulate that the record is adequate .... " Liddell , 33 So.3d at 533 (¶ 31) (citation and internal quotation marks omitted). The record does not affirmatively show ineffectiveness of constitutional dimensions. And the parties did not stipulate to the adequacy of the record for this Court to find ineffective assistance. Therefore, we decline to find ineffective assistance of counsel at this juncture, but we preserve this issue for post-conviction relief.

¶ 38. We conclude that Malik's arguments are without merit, and we affirm the circuit court's judgment.

¶ 39. AFFIRMED.

LEE, C.J., CARLTON, FAIR, WILSON AND GREENLEE, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. WESTBROOKS, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. IRVING, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. TINDELL, J., NOT PARTICIPATING.

      Nolle prosequi is a Latin term that serves as "a legal notice that a lawsuit or prosecution has been abandoned." Black's Law Dictionary (10th ed. 2014).


source: Caselaw Access Project

author: WILSON, J., FOR THE COURT:

license: Public Domain

text:
    Curtis Ray MCCARTY Jr., Appellant/Cross-Appellee v. Arthur WOOD III and Paula Wood, Appellees/Cross-Appellants
    NO. 2016-CA-00928-COA
    Court of Appeals of Mississippi.
    January 23, 2018 Rehearing Denied May 15, 2018 Certiorari Denied August 2, 2018
    ATTORNEYS FOR APPELLANT: J. RICHARD BARRY JAMES CORNELIUS GRIFFIN
    ATTORNEYS FOR APPELLEES: TERRY L. CAVESRISHER GRANTHAM CAVES
    EN BANC.
   WILSON, J., FOR THE COURT:

¶ 1. Curtis Ray McCarty Jr. has thirty to thirty-five acres of land in rural Wayne County, but he has no way to get to it. He used to drive there on a dirt and gravel private road that crossed the lands of neighboring property owners. But in 2004, Arthur Wood III, who owns the property surrounding McCarty's land, put an end to McCarty's use of the road. McCarty sued Wood, and they have been litigating ever since. McCarty first sued Wood in chancery court. Around the time that lawsuit was dismissed with prejudice, McCarty sued Wood in circuit court, but that action was also dismissed with prejudice. Finally, McCarty filed a petition in the Wayne County Special Court of Eminent Domain to establish a "private road" pursuant to Mississippi Code Annotated section 65-7-201 (Rev. 2012). The issue in this appeal is whether either res judicata or collateral estoppel bars McCarty's petition. For the reasons discussed below, we conclude that neither doctrine bars McCarty's petition.

FACTS AND PROCEDURAL HISTORY

¶ 2. McCarty purchased thirty to thirty-five acres of land in rural Wayne County in 1993. McCarty had a trailer and farming equipment on the property, which he used for hunting, cattle, timber, and hay. McCarty's property was landlocked when he bought it, but he accessed it by a dirt and gravel private road that runs from Chicora River Road across land owned by various timber companies. The timber companies did not object to McCarty using the road, and he even put a lock on a gate on the road and graded the road occasionally.

¶ 3. In July 2003, Wood bought the land surrounding McCarty's land. Wood wanted to control access to the road by putting his own lock on a gate on the road, but he gave McCarty a key to the lock and permission to continue using the road. Wood later had problems with trespassers cutting the locks. Each time Wood had to replace the lock, he gave McCarty a key to the new lock, but according to McCarty, Wood sometimes failed to tell him that the lock had been changed. This inconvenienced and frustrated McCarty and led to an argument between the two men in November 2004. According to McCarty, Wood tried to buy his property, and when he refused to sell, Wood refused to give him a key to the new lock on the gate, which prevented him from accessing his property.

¶ 4. In July 2005, McCarty filed a complaint against Wood in the Wayne County Chancery Court. The complaint asserted claims for an implied easement or easement by necessity, a prescriptive easement, and intentional infliction of emotional distress. McCarty sought an easement over the private road, compensatory damages of $50,000, and punitive damages of $100,000. As to the easement claims, McCarty also named Leaf River Forest Products as a defendant as the alleged owner of land that the private road crossed between Wood's property and Chicora River Road. However, Plum Creek South Timberlands LLC (Plum Creek), the true owner of the relevant land, was later substituted for Leaf River. In October 2005, the chancery court entered an agreed order granting McCarty a temporary easement to use the road for one year or until a trial on the merits, whichever occurred first.

¶ 5. The case was set for trial in April 2008, but McCarty failed to appear. Wood then filed a "motion for summary judgment" in which he argued both that "the complaint should be dismissed for failure to prosecute" and that McCarty had failed to prove the various elements of a prescriptive easement or an easement by necessity. McCarty failed to respond to Wood's motion, and in September 2009 the chancery court granted Wood's motion and dismissed the case "with prejudice." However, the chancery court's order did not specify the grounds on which the case was dismissed.

¶ 6. In August 2009, while the chancery court case was still pending, McCarty filed a two-page complaint against Wood in the Wayne County Circuit Court. The complaint, which sought $40,000 in compensatory damages, was basically just a shorter version of the claim for intentional infliction of emotional distress that McCarty had asserted in chancery court. Wood answered and filed a motion for summary judgment. He argued that the circuit court complaint was barred by the doctrine of res judicata. In May 2010, the circuit court granted Wood's motion for summary judgment and also awarded him $5,996.87 in attorney's fees, which were assessed against McCarty's attorney pursuant to the Mississippi Litigation Accountability Act, Miss. Code Ann. §§ 11-55-1 to -15 (Rev. 2012).

¶ 7. In October 2014, McCarty filed a "Complaint to Condemn Real Property" in the Wayne County Special Court of Eminent Domain. He named Wood and Plum Creek as defendants and alleged that he was entitled to a "private road" across their lands pursuant to Mississippi Code Annotated section 65-7-201. Wood answered and filed a motion for summary judgment, arguing that the complaint was barred by the doctrines of res judicata and collateral estoppel based on the prior judgments in the circuit court and chancery court actions. Plum Creek filed a motion for summary judgment adopting Wood's arguments, and McCarty responded to the motions.

¶ 8. The court subsequently ordered the parties to participate in mediation. During the mediation, Plum Creek agreed to grant McCarty an option to purchase a right of way across the section of the private road on its land. However, McCarty and Wood did not reach an agreement. McCarty alleged that Wood refused to even discuss a right of way and only offered to buy McCarty's property "for $200.00 an acre, a far undervalued price." Wood moved to strike McCarty's allegation as a violation of the parties' mediation agreement and an improper disclosure of confidential settlement negotiations.

¶ 9. Following the unsuccessful mediation, the court entered a memorandum opinion and order finding that McCarty's complaint for a private road was barred by the doctrine of res judicata. Accordingly, the court granted Wood's motion for summary judgment.

¶ 10. McCarty filed a timely motion to alter or amend the judgment, and Wood filed a motion for attorney's fees pursuant to Mississippi Rule of Civil Procedure 11 and the Litigation Accountability Act. The court subsequently denied both motions. The court acknowledged that the case raised "a novel issue" of res judicata and that the result was "harsh." However, the court again concluded that res judicata barred McCarty's petition. The court denied Wood's request for attorney's fees because it did "not find the action to be frivolous." McCarty filed a notice of appeal, and Wood filed a cross-appeal from the denial of his motion for attorney's fees.

ANALYSIS

¶ 11. The issues in this appeal are whether McCarty's petition for a private road is barred by either (1) res judicata (as the special court of eminent domain ruled) or (2) collateral estoppel (which Wood raises as an alternative ground for affirmance). For the reasons that follow, we hold that neither doctrine bars McCarty's petition. Therefore, we reverse and remand in the direct appeal. Because McCarty's petition was not frivolous, we affirm the denial of Wood's motion for attorney's fees.

¶ 12. Before we address these issues, we begin with a brief overview of the statute under which McCarty filed his present petition for a private road.

Section 110 of the Mississippi Constitution authorizes the Legislature to "provide, by general law, for condemning rights of way for private roads, where necessary for ingress and egress by the party applying, on due compensation being first made to the owner of the property." Miss. Const. art. 4, § 110. The Legislature has implemented Section 110 by providing that if "any person shall desire to have a private road laid out through the land of another, when necessary for ingress and egress" to his own property, "he shall apply by petition, stating the facts and reasons, to the special court of eminent domain ... of the county where the land or part of it is located." Miss. Code Ann. § 65-7-201. "The court sitting without a jury shall determine the reasonableness of the application," and if the court finds that the application is reasonable, a jury must determine the amount of compensation due to the owner of the property through which the private road is to be established. Id. Until 2003, section 65-7-201 and predecessor statutes required that a petition for a private road be filed with the county board of supervisors. See High v. Kuhn , 191 So.3d 113, 117-18 (¶ 17) (Miss. 2016). The Legislature amended the statute in 2003 to provide that such a petition shall be filed in the special court of eminent domain. See id. at 118 (¶ 18).

I. Res judicata does not bar McCarty's petition for a private road.

¶ 13. "The doctrine of res judicata," also known as "claim preclusion," "bars parties from litigating claims within the scope of the judgment in a prior action." Hill v. Carroll Cty. , 17 So.3d 1081, 1084-85 (¶¶ 8, 14) (Miss. 2009) (quotation marks omitted). "In Mississippi, the doctrine of res judicata requires four identities to be present before it applies: (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." Id. at 1085 (¶ 10). The absence of any one of these identities "is fatal to the defense of res judicata." Id. If all four identities are established, "any claims that could have been brought in the prior action are barred." Id.

¶ 14. We hold that res judicata does not bar McCarty's statutory petition for a private road for two independent reasons. First, his present petition involves different "underlying facts and circumstances" than his prior lawsuits, so there is no "identity of the cause of action." Id. at (¶ 13). Second, a statutory petition for a private road could not have been brought in either of McCarty's prior lawsuits or combined with the common-law claims asserted in those lawsuits. Id. at (¶ 10).

A. McCarty's petition for a private road is not part of the same "cause of action" as the prior actions.

¶ 15. Res judicata applies only when the " 'cause of action' in both suits" is "the same." Id. at 1085 (¶ 13). "[Our Supreme] Court has defined 'cause of action' as the underlying facts and circumstances upon which a claim has been brought." Id. The term "cause of action" is broader than the specific legal theory or theories asserted in the prior suit; it includes all claims arising out of the "body of fact" underlying the prior suit. Id. at 1085-86 (¶ 14).

¶ 16. McCarty's petition for a private road is not based on the same underlying facts and circumstances as his prior lawsuits against Wood. Although there is a superficial similarity among the cases in that all relate to McCarty's inability access his land, there are material differences in the operative facts relevant to the common-law claims in the prior actions and those relevant to McCarty's statutory petition for a private road.

¶ 17. We begin with the three common-law claims asserted in McCarty's prior lawsuits. First, his claim for a prescriptive easement required clear and convincing proof of ten years of actual or hostile, open and notorious, continuous and uninterrupted, exclusive, and peaceful use of the easement. See, e.g. , Keener Props. LLC v. Wilson , 912 So.2d 954, 956 (¶ 4) (Miss. 2005). Second, "[a]n easement by necessity requires proof that (1) the easement is necessary; (2) the dominant and servient estates were once part of a commonly owned parcel; (3) the implicit right-of-way arose at the time of severance from the common owner." Borne v. Estate of Carraway , 118 So.3d 571, 584 (¶ 34) (Miss. 2013). Third, "[a] claim for intentional infliction of emotional distress requires conduct that is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Jones v. Mullen , 100 So.3d 490, 498 (¶ 40) (Miss. Ct. App. 2012) (quotation marks omitted).

¶ 18. Thus, McCarty's prior common-law claims were all backward-looking. Those claims focused on historical ownership of the land, McCarty's prior use of the road, and his allegations of "outrageous" conduct by Wood.

¶ 19. In contrast, McCarty's petition for a private road requires only proof that, at present, the road is reasonably "necessary for ingress and egress" to his property and then a jury trial to determine damages and compensation. Miss. Code Ann. § 65-7-201. In some cases under the statute, a landowner may argue that a petitioner has failed to explore alternative routes of access, see Hooks v. George Cty. , 748 So.2d 678, 683 (¶ 27) (Miss. 1999), but here it is undisputed that Wood's land completely surrounds McCarty's land. Thus, McCarty's petition for a private road can and should be decided based on present property lines and circumstances.

¶ 20. The issues and facts related to the road's use for at least a decade, prior ownership of the respective properties, and the conduct of McCarty and the Woods were all essential to the common-law claims that McCarty previously litigated in chancery court and circuit court. But such issues are all irrelevant to his petition for a private road. Given the material differences between the facts relevant to McCarty's present petition and the facts underlying his prior claims, the cases do not involve the same "cause of action" for purposes of res judicata. Hill , 17 So.3d at 1085 (¶ 13). Accordingly, the doctrine does not bar McCarty's petition for a private road. See id. at (¶ 10).

B. McCarty's petition for a private road could not have been brought in the prior actions or combined with the common-law claims litigated in those actions.

¶ 21. Res judicata does not bar McCarty's statutory petition for a private road for a second, independent reason: the doctrine only applies to "claims that could have been brought in the prior action." Id. (emphasis added). It does not bar claims that could not have been asserted in the prior case because of limits on the court's subject matter jurisdiction. See Marrese v. Am. Acad. of Orthopaedic Surgeons , 470 U.S. 373, 382, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985) ; Restatement (Second) of Judgments § 26(1)(c) (1982) ; 18 Charles Alan Wright, Arthur R. Miller et al., Federal Practice and Procedure § 4412 (3d ed. 2002). Res judicata does not bar McCarty's petition for a private road because he could not have combined such a petition with the common-law claims that he previously litigated in chancery court and circuit court.

¶ 22. The text of section 65-7-201 provides that a petition for a private road must be filed in the special court of eminent domain-not in circuit court or chancery court. It states that any person who desires to establish a private road "shall apply by petition ... to the special court of eminent domain ... of the county where the land or part of it is located." Miss. Code Ann. § 65-7-201 (emphasis added). "A basic tenet of statutory construction is that 'shall' is mandatory ...." Khurana v. Miss. Dep't of Revenue , 85 So.3d 851, 854 (¶ 9) (Miss. 2012) (quoting Franklin v. Franklin ex rel. Phillips , 858 So.2d 110, 115 (¶ 15) (Miss. 2003) ). Thus, "[t]he Legislature's statutory use of the term 'shall' connotes a mandatory requirement." Tallahatchie Gen'l Hosp. v. Howe , 49 So.3d 86, 92 (¶ 17) (Miss. 2010). "Because the statute includes the mandatory term 'shall,' we do not view its restriction as a suggestion-it is a mandate." Pickering v. Langston Law Firm P.A. , 88 So.3d 1269, 1275 (¶ 21) (Miss. 2012). Based on the plain language of the section 65-7-201, McCarty could not have brought a petition for a private road in the prior actions in chancery court or circuit court. Such a petition "shall" be filed in the special court of eminent domain.

¶ 23. Nor could McCarty have combined his prior common-law claims with a statutory petition for a private road in the special court of eminent domain. See Wright, Miller et al., supra , § 4412 ("It has been urged that the plaintiff should be required to seek out the most comprehensive proceeding available .... Some decisions approach this view ...."). Rather, Mississippi Supreme Court precedent indicates that the special court of eminent domain lacks jurisdiction over such claims.

¶ 24. The Supreme Court has discussed the "pendent jurisdiction" of the special court of eminent domain in two cases. In McDonald's Corp. v. Robinson Industries Inc. , 592 So.2d 927, 936 (1991), the Supreme Court held that if "the eminent domain court has subject matter jurisdiction of a condemnation proceeding as established in the pleadings, the court may determine any questions of title which may arise from the proceedings." The title issue in McDonald's first arose when the Supreme Court sua sponte raised the question whether the landowners "were being paid for land they did not own." Id. at 928. In a second appeal in the same litigation, the Court held that the special court of eminent domain had "pendent jurisdiction" to answer that question of title. Id. at 936.

¶ 25. However, in a subsequent opinion, the Supreme Court distinguished McDonald's and held that the special court of eminent domain lacked "pendent jurisdiction" to decide "due-process and civil-rights claims" asserted in an inverse-condemnation case.

Delta MK LLC v. Miss. Transp. Comm'n , 57 So.3d 1284, 1291 (¶ 19) (Miss. 2011). In that case, the owner of a roadside service station (Delta) alleged that highway construction had impeded access to the station and amounted to either a taking without just compensation or a violation of due process. Id. at 1286 (¶¶ 3-5). The special court of eminent domain addressed the merits of Delta's inverse-condemnation claim but dismissed its "due-process and civil-rights claims" for "lack of jurisdiction." Id. at 1287 (¶ 8). On appeal, the Supreme Court affirmed the dismissal of Delta's "pendent" claims, distinguishing McDonald's as follows:

Delta cites McDonald's for the proposition that special courts of eminent domain have the power to determine questions "that were previously considered within the province of the circuit court." But Delta reads McDonald's too broadly. The McDonald's opinion held only that, when a special court of eminent domain has subject matter jurisdiction of a condemnation proceeding, it may exercise pendent jurisdiction over any questions of title which may arise in the proceedings. Delta's due-process and civil-rights claims clearly do not implicate questions of title, so McDonald's lends no support to Delta's argument that the special court of eminent domain should have exercised pendent jurisdiction.

Id. at 1291 (¶ 19) (emphasis in original).

¶ 26. Under these precedents, the special court of eminent domain would not have had "pendent jurisdiction" over McCarty's prior common-law claims. As the Court put it in McDonald's , "questions of title" may simply "arise" in the course of litigation of a condemnation claim-a claim that is clearly within the subject matter jurisdiction of the special court of eminent domain. McDonald's , 592 So.2d at 936. Such "questions of title" are logically antecedent to the condemnation claim. Before the court may condemn property or award just compensation for a taking, the court must resolve any unanswered questions of title. See Gilich v. Miss. State Hwy. Comm'n , 574 So.2d 8, 12 (Miss. 1990) ("Without record title to the property, there exists no genuine issue of material fact as to whether the Highway Commission took [the] property or damaged the concomitant riparian and littoral rights."). In a condemnation case, "questions of title" are not additional or independent claims-they are potential negatives on the landowner's claim, which must be addressed before anything can be condemned or compensation paid.

¶ 27. In contrast, McCarty's prior claims for an easement were distinct and alternative legal grounds for establishing access to his property. The Supreme Court's opinion in Delta MK clarified that although the special court of eminent domain has "pendent jurisdiction" to resolve "questions of title" that "may arise from [condemnation] proceedings," McDonald's , 592 So.2d at 936, the special court does not have jurisdiction over independent claims that seek relief on alternative legal theories. Delta MK , 57 So.3d at 1291 (¶ 19). Delta MK 's holding applies to McCarty's prior common-law claims for an easement by prescription, implication, or necessity. This holding also clearly applies to McCarty's prior common-law claims for intentional infliction of emotional distress and damages.

¶ 28. In addition, our Supreme Court recently stated that landowners could pursue "common-law remedies to gain access" to their property despite their unsuccessful litigation of a statutory petition for a private road. High , 191 So.3d at 119 (¶ 25). In High , the Court held that the owners of a landlocked property in the city of Gulfport could not obtain a statutory private road because section 65-7-201 applies only in unincorporated areas. Id. at 114 (¶¶ 1-2). Accordingly, the Court rendered a judgment against the petitioners in the proceeding. Id. at (¶ 2). However, the Court also stated that

removing the right created by Section 65-7-201 from the table does not necessarily leave the Kuhns without any recourse. The Kuhns have not pursued any common-law remedies to gain access .... And our holding today does not prejudice the Kuhns' ability to avail themselves of these, and potentially other, remedies.

Id. at 119 (¶ 25) (emphasis added). Taken at face value, this statement provides further indication that a landowner is not required to plead alternative common-law claims in the same proceeding as a statutory claim for a private road under section 65-7-201. Such claims may be pursued in separate proceedings.

¶ 29. In summary, we hold that McCarty's statutory petition for a private road is not barred by the doctrine of res judicata for two independent reasons: the petition does not involve the same "cause of action" as the prior suits and could not have been included in those prior suits. We now address McCarty's alternative argument that he is entitled to judgment as a matter of law under the related doctrine of collateral estoppel.

II. Collateral estoppel does not bar McCarty's petition for a private road.

¶ 30. Res judicata (claim preclusion) "has a sister doctrine" known as "issue preclusion" or "collateral estoppel." State ex rel. Moore v. Molpus , 578 So.2d 624, 640 (Miss. 1991). Collateral estoppel "precludes parties from relitigating issues authoritatively decided on their merits in prior litigation to which they were parties or in privity." Id. (emphasis added). But it "must never be seen as anything other than an unusual exception to the general rule that all fact questions should be litigated fully in each case." Marcum v. Miss. Valley Gas Co. , 672 So.2d 730, 733 (Miss. 1996) (quoting Miss. Emp't Sec. Comm'n v. Philadelphia Mun. Separate Sch. Dist. , 437 So.2d 388, 397 (Miss. 1983) ). The doctrine "precludes relitigating a specific issue , which was: (1) actually litigated in the former action; (2) determined by the former action; and (3) essential to the judgment in the former action." Gibson v. Williams, Williams & Montgomery P.A. , 186 So.3d 836, 845 (¶ 21) (Miss. 2016) (emphasis added); accord, e.g. , Glover v. Jackson State Univ. , 755 So.2d 395, 399 (¶ 9) (Miss. 2000).

¶ 31. In this case, Wood argues that the judgment in the prior chancery court action collaterally estops McCarty from relitigating an issue that is essential to his statutory petition for a private road. Specifically, Wood contends that collateral estoppel applies because (1) McCarty's prior common-law claim for an implied easement or easement by necessity required him to prove that the easement was "necessary," (2) the chancery court dismissed that claim with prejudice, and (3) McCarty's present petition for a private road similarly requires proof that a right of way is "necessary." We disagree. Even if we assume for purposes of this appeal that the common-law standard is the same as the statutory standard, Wood cannot show that the chancery court actually decided that issue.

¶ 32. Unlike claim preclusion, collateral estoppel applies only to specific issues . Gibson , 186 So.3d at 845 (¶ 21) ; Glover , 755 So.2d at 399 (¶ 9). In the present case, the record from the prior chancery court action certainly shows that the chancery court dismissed McCarty's complaint with prejudice. But the record does not show that the chancery court actually decided that an easement was not "necessary." The chancery court's one-page order does not state the basis for the court's ruling, and the court may well have granted summary judgment for some other reason-for example, because McCarty failed to prove that his and Wood's properties "were once part of a commonly owned parcel" or because McCarty failed to prove that an "implicit right-of-way arose at the time of severance." Borne , 118 So.3d at 584 (¶ 34) (enumerating the elements of an implied easement by necessity). Alternatively, the chancery court may have dismissed the action for failure to prosecute. In the chancery court, Wood raised all of these issues as grounds for dismissal, and there is no way to determine which of them the court actually decided or which were essential to the court's judgment. See Gibson , 186 So.3d at 845 (¶ 21).

¶ 33. The proponent of a defense of res judicata or collateral estoppel bears the burden of proving the defense. See Astro Transp. Inc. v. Montez , 381 So.2d 601, 604 (Miss. 1980) ; Willis v. City of Hattiesburg , No. 2:14-CV-89-KS-MTP, 2016 WL 6088337, at *3 (S.D. Miss. Oct. 18, 2016) ; Campbell v. City of Indianola , 117 F.Supp.3d 854, 864-65 (N.D. Miss. 2015) ; Restatement (Second) of Judgments § 27 cmt. g (1982). When, as in this case, the judgment and the record in a prior action do not disclose the specific issue or issues decided in the action, the judgment cannot serve to preclude relitigation of issues. See Hardy v. Johns-Manville Sales Corp. , 681 F.2d 334, 343-45 (5th Cir. 1982) ("If ... a judgment may have been based on more than one of several [issues] and there is no indication which issue it was based on ..., such judgment will not preclude, under the doctrine of collateral estoppel, relitigation of any of the issues.");

Midwest Mech. Contractors Inc. v. Commonwealth Constr. Co. , 801 F.2d 748, 751-52 (5th Cir. 1986) (holding that when a prior "order ... did not indicate its basis, and may have rested solely on [other grounds]," collateral estoppel does not apply). Therefore, the prior chancery court judgment and the doctrine of collateral estoppel do not bar relitigation of any issues in the present case.

CONCLUSION

¶ 34. Neither res judicata nor collateral estoppel bars McCarty's statutory petition for a private road. Therefore, the order of the circuit court granting Wood's motion for summary judgment is reversed, and the case is remanded for further proceedings consistent with this opinion. Because McCarty's petition was not frivolous, we affirm the order of the circuit court denying Wood's motion for attorney's fees.

¶ 35. ON DIRECT APPEAL: REVERSED AND REMANDED. ON CROSS-APPEAL: AFFIRMED.

LEE, C.J., GRIFFIS, P.J., BARNES, CARLTON, FAIR, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR. IRVING, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      Wood owns the land with his wife, Paula, and accordingly McCarty named her as a defendant in each of the actions that he has filed concerning the road. However, McCarty testified that he has never met Paula, so for simplicity we omit further reference to her.

      Based on this agreement, the court entered an agreed order dismissing Plum Creek.

      In an appeal from an order granting summary judgment, the appellee is "entitled to raise any alternative ground" that was raised in the court below. Brocato v. Miss. Publishers Corp. , 503 So.2d 241, 244 (Miss. 1987). There are no disputed facts that are material to the issues of res judicata and collateral estoppel. Therefore, these are issues of law that we review de novo. Baker & McKenzie LLP v. Evans , 123 So.3d 387, 401 (¶ 49) (Miss. 2013) ; Global Oceanic Enters. Inc. v. Hynum , 857 So.2d 659, 661 (¶ 8) (Miss. 2003).

      The special court of eminent domain is created "in the county court" of a county that has one and "in the circuit court" of a county (such as Wayne County) that does not. Miss. Code Ann. § 11-27-3 (Rev. 2014).

      In counties that do not have a county court, the "jurisdiction" of the special court of eminent domain is "fixed in the circuit court." Miss. Code Ann. § 11-27-3 ; see ante at n.4. However, even in those counties, the special court of eminent domain and the circuit court are not one and the same. "The [special] court of eminent domain is a creature of statute which exists for a limited time and a limited purpose." Checkers Drive-In Restaurants Inc. v. Miss. Transp. Comm'n , 755 So.2d 1238, 1240-41 (¶ 10) (Miss. Ct. App. 2000).

      From McCarty's perspective, they were preferred theories, because if he could prove a common-law easement, "he would not have to pay [the Woods] for" use of the road. Broadhead v. Terpening , 611 So.2d 949, 955 (Miss. 1992) (plurality op.); accord Vinoski v. Plummer , 893 So.2d 239, 242-43 (¶¶ 10-12) (Miss. Ct. App. 2004).

      McCarty also argues that res judicata should not be applied because it would be contrary to public policy to deny him access to his land. Although we need not reach this issue, we agree that our Constitution and statutory law favor granting a "landlocked" property owner access to his or her property where feasible. See High , 191 So.3d at 119 (¶ 24) ; Warwick v. Pearl River Valley Water Supply Dist. , 246 So.2d 525, 528-29 (Miss. 1971). In addition, our Supreme Court has stated that "the doctrine of res judicata is based upon the public policy of putting an end to litigation," but "the doctrine is not inflexible and incapable of yielding to a superior policy." Bragg v. Carter , 367 So.2d 165, 167 (Miss. 1978).

      We have identified no case that specifically holds that the common-law requirement that "the easement is necessary," Borne , 118 So.3d at 584 (¶ 34) (enumerating the elements of an implied easement by necessity), is the same as the statutory standard, which has been interpreted as "reasonably necessary and practical" but "not absolutely necessary," Quinn v. Holly , 244 Miss. 808, 813, 146 So.2d 357, 359 (1962). This Court's decision in Harkness v. Butterworth Hunting Club Inc. , 58 So.3d 703, 708-09 (¶¶ 14-15) (Miss. Ct. App. 2011), suggests that there may be differences.

      Wood briefly argues that the judgment in the circuit court case collaterally estops McCarty from pursing his petition. However, the only issue that the circuit court decided was that the judgment in the chancery court action was res judicata as to McCarty's claim for damages for an alleged claim of intentional infliction of emotional distress. That is not an issue that McCarty seeks to relitigate in his present petition for a private road.


author: BARNES, J., FOR THE COURT:

text:
    David Michael LYON Jr., Appellant/Cross-Appellee v. Billy MCGEE, Appellee/Cross-Appellant
    NO. 2016-CA-00637-COA
    Court of Appeals of Mississippi.
    January 23, 2018 Rehearing Denied May 15, 2018 Certiorari Denied August 2, 2018
    ATTORNEY FOR APPELLANT: PHILLIP LLOYD LONDEREE, PETAL
    ATTORNEY FOR APPELLEE: PATRICK H. ZACHARY, HATTIESBURG
    BEFORE IRVING, P.J., BARNES AND WESTBROOKS, JJ.
   BARNES, J., FOR THE COURT:

¶ 1. David Michael Lyon (Lyon) sued Billy McGee in the Forrest County Circuit Court seeking damages for alienation of affection after Lyon and his former wife Emma Robin (Robin) divorced. Lyon claimed that McGee interfered with his marriage, causing Robin to abandon the marriage and have an adulterous relationship with McGee. Lyon discovered the relationship in October 2013-after the Lyons had separated and Robin had filed for divorce, but before the divorce was final. Discovery ensued, and McGee admitted to having an affair with Robin commencing on October 4, 2013. McGee filed a motion to dismiss, or in the alternative, for summary judgment. McGee argued dismissal was proper because Lyon ultimately agreed to an irreconcilable-differences divorce, which was at odds with an alienation-of-affection claim. According to McGee, he could not have contributed to the end of the marriage under this form of divorce, as reconciliation of the Lyons was impossible. Further, McGee argued the defenses of issue preclusion and/or judicial or collateral estoppel barred relitigation of the grounds for divorce that an alienation-of-affection claim would create. Alternatively, McGee's motion said summary judgment was proper because there was no causal connection between McGee's conduct and any alleged loss by Lyon, because McGee's conduct with Robin occurred long after the Lyons' separation in July 2013. McGee claimed that he had no contact with Robin prior to this date.

¶ 2. The trial court granted McGee's motion for summary judgment, finding Lyon did not sufficiently respond to establish a genuine issue of material fact, i.e., that McGee was involved with Robin prior to their date of separation. Lyon filed a motion to reconsider, which was denied. Lyon timely appeals, and McGee cross-appeals.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 3. In April 2013, Robin initially asked Lyon for a divorce "out of the blue." Lyon was surprised, as he felt they "were living the American dream." On July 12, 2013, the Lyons decided to separate after a fourteen-year marriage that bore two children. On July 25, 2013, Robin filed for a divorce on the grounds of habitual cruel and inhuman treatment, or alternatively irreconcilable differences. On June 3, 2014, a Property Settlement and Child-Support Agreement, and judgment of divorce based on irreconcilable differences was entered in the Perry County Chancery Court.

¶ 4. On October 3, 2014, Lyon sued McGee for alienation of affection in the Forrest County Circuit Court, seeking one million dollars in actual damages. Lyon contended that McGee interfered with the Lyons' relationship and "destroyed the marriage and deprived [Lyon] of the affections of his former wife," and "but for" the intentional actions of McGee, Lyon would still be married. He claimed to discover the relationship in October 2013, after the couple had separated, but before they were divorced. He made the discovery through cellular-telephone records and McGee's spouse, who had put a recording device in McGee's vehicle.

¶ 5. McGee answered Lyon's complaint, claiming that he and Robin had no relationship until "long after" the Lyons had separated and Robin had filed for divorce (July 12 and 25, 2013, respectively). As an affirmative defense, McGee stated there was thus no causal connection between any conduct by McGee and any loss claimed by Lyon. Further, McGee asserted there was no affection or consortium existing between the Lyons at the alleged date of his involvement with Robin. McGee also argued the claim was barred by issue preclusion and/or judicial estoppel because the divorce was based on irreconcilable differences and, therefore, McGee's conduct could not have ended the marriage.

¶ 6. On January 20, 2016, McGee filed a motion to dismiss, or in the alternative, for summary judgment. McGee again argued collateral and/or judicial estoppel and issue preclusion barred the claim. McGee also argued, almost as an afterthought, that the timing of McGee and Robin's affair occurred long after the Lyons' separation. Therefore, McGee reasoned that Lyon could not prove the causal-connection element of his claim-no conduct of McGee "caused the loss of affection or consortium" because the parties were already separated. McGee attached to his motion Lyon's complaint, his answer, the complaint for divorce, and the settlement agreement, but no sworn statements such as affidavits, depositions, or discovery materials. McGee's supporting brief focused on the estoppel arguments. Lyon filed a memorandum brief in opposition to the motion for summary judgment, only addressing McGee's judicial and collateral estoppel or issue preclusion arguments and, like McGee, did not address the causation/timing argument. Moreover, he did not attach any evidence to his memorandum brief. McGee filed a rebuttal memorandum brief, addressing both the estoppel and causation issues. He argued Lyon's claim was barred by his withdrawal of fault grounds and acceptance of an irreconcilable-differences divorce; thus, the causation element was not met. He attached a portion of Lyon's deposition wherein Lyon explained that Robin had agreed to his receiving sixty percent of the property division if he would agree to an irreconcilable-differences divorce instead of a divorce on the grounds of adultery.

¶ 7. In February 2016, a hearing was held on McGee's motion for summary judgment, which the circuit judge took under advisement. Also addressed were two motions in limine filed by McGee and Lyon. McGee sought to exclude voice recordings of conversations that he had with Robin. The circuit judge granted the motion as the voice recordings were obtained in violation of statutory law, but ruled he would hear further argument at an appropriate time if the recordings became relevant. McGee also sought to exclude emails between his wife and Lyon about the voice recordings. The circuit judge found the emails would be prejudicial unless found relevant as to contact prior to October 2013. Further, McGee requested the court not mention "anything prior to October 2013," because in Lyon's deposition he responded in the negative when asked whether he had any proof of intimate contact between his wife and McGee prior to that date. The circuit judge stated that the motion was granted unless there was specific relevant evidence presented. Lyon also filed a motion in limine to exclude any evidence of a relationship between him and a third party after October 2013. That motion was granted.

¶ 8. On March 1, 2016, the circuit judge entered an order granting summary judgment to McGee, focusing on the timing/causation argument. The circuit judge found Lyon did not establish that his wife and McGee had a relationship before July 12, 2013, the date the Lyons separated. The circuit judge pointed to Lyon's motion in limine, filed February 7, 2016, which the judge found only "partially responded" to McGee's motion for summary judgment. The judge explained that the motion in limine stated "that phone records obtained through depositions[ ] clearly demonstrate a pattern of communication and behavior that support the existence of previous liaisons" between McGee and Robin. The circuit judge ruled that this response to the motion for summary judgment fell short of establishing a genuine issue of material fact that McGee was involved with Robin prior to July 12, 2013, the date of the marital separation. Therefore, McGee's motion was granted.

¶ 9. In response, Lyon moved for reconsideration. He argued that there were uncontested facts before the court that were sufficient to defeat summary judgment. Importantly, he argued that there was evidence the affair took place during the Lyons' attempts to reconcile. First, as stated in McGee's response to interrogatories confirming the affair, Lyon claimed the sexual relationship between McGee and Robin had existed at the latest in October 2013, when Lyon was attempting to reconcile his marriage, even though by then Robin had filed for divorce. Second, he claimed McGee took Robin into his home to cohabitate, ejecting his own wife. Third, Lyon stated telephone records show "sudden and dramatic" daily communication between McGee and Robin beginning in May 2013, before which there was no communication. Lyon also argued that McGee, in his motion for summary judgment, failed to meet his burden of showing a lack of genuine issue of material fact; he only mentioned facts pertaining to his procedural arguments of judicial and/or collateral estoppel. Moreover, Lyon noted that McGee did not support his claim with any evidence such as affidavits or discovery responses. Lyon attached numerous discovery documents to his motion to disprove McGee's claim, including over 500 pages of McGee's cellular-telephone records, and emails between Lyon and McGee's wife about the recording device put in McGee's vehicle to catch McGee and Robin "inflagrante delicto ."

¶ 10. McGee responded, again arguing that there was no causal connection for the claim because the only proof presented as to when the affair started was McGee's sworn interrogatory responses stating the affair began on October 4, 2013, long after the parties had separated. A hearing was held, and the circuit court ultimately denied Lyon's motion to reconsider. Lyon appeals both rulings on the motion for summary judgment and motion to reconsider. McGee cross-appeals, arguing that if summary judgment is found improper, it should be affirmed based upon judicial estoppel.

DISCUSSION

I. Summary Judgment

¶ 11. The standard of review for a trial court's grant or denial of summary judgment is de novo. Ill. Cent. R.R. Co. v. Jackson , 179 So.3d 1037, 1044 (¶ 16) (Miss. 2015). Summary judgment is proper "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." Id. (quoting M.R.C.P. 56(c) ). Evidence will be considered in the light most favorable to the nonmoving party. Id. The moving party has the burden of proving there is no genuine issue of material fact. Id. (citing Hosemann v. Harris , 163 So.3d 263, 267 (¶ 9) (Miss. 2015) ). Once shown, "the burden of rebuttal falls upon the non-moving party" to produce specific facts showing there is a genuine issue of material fact for trial. Wilbourn v. Stennett, Wilkinson & Ward , 687 So.2d 1205, 1213 (Miss. 1996) (citing M.R.C.P. 56(e) ).

¶ 12. McGee's motion focused on the estoppel bars, but secondarily addressed lack of proof for the causation element. Applying the judicial-estoppel doctrine to alienation-of-affection claims, the Mississippi Supreme Court has stated "a party cannot assume a position at one stage of a proceeding and then take a contrary stand later in the same litigation." Wood v. Cooley , 78 So.3d 920, 926 (¶ 14) (Miss. App. 2011) (quoting Dockins v. Allred , 849 So.2d 151, 155 (¶ 7) (Miss. 2003) ). Similarly, collateral estoppel bars a party from relitigating specific issues that have already been litigated in a former action. Ward Gulfport Props. L.P. v. Miss. State Highway Comm'n , 176 So.3d 789, 794 (¶ 14) (Miss. 2015).

¶ 13. McGee argued that Lyon's alienation-of-affection claim was judicially estopped because the couple entered into an agreement whereby Lyon withdrew fault grounds of adultery for irreconcilable differences. Accordingly, McGee argues he cannot be at fault for breaking up a marriage that was already irreconcilably broken. In its order granting summary judgment, the trial court did not address the estoppel argument, but focused on causation.

¶ 14. We find McGee's estoppel and issue-preclusion arguments are without merit. Just because the Lyons were granted an irreconcilable-differences divorce does not mean there was no adultery. As here, divorcing parties often withdraw fault grounds and opt for irreconcilable differences. See Watson v. Watson , 882 So.2d 95, 108-09 (¶¶ 67-68) (Miss. 2004) (In an irreconcilable-differences divorce, a chancellor was found in error for dividing assets equally in property settlement and not taking into consideration the husband's long-term adulterous conduct that broke up the marriage.); Driste v. Driste , 738 So.2d 763, 766 (¶ 9) (Miss. Ct. App. 1998) (In an uncontested divorce, a court held that limited testimony on fault may be introduced for Armstrong factors to determine alimony.). The fact that the divorce is granted without fault does not mean there was no fault, or that fault cannot be considered for other purposes.

¶ 15. Regarding causation, McGee had the initial burden to show that Lyon would be unable to prove an essential element of his claim. See Palmer v. Biloxi Reg'l Med. Ctr. Inc. , 564 So.2d 1346, 1356 (Miss. 1990). The elements of alienation of affection are: "(1) wrongful conduct of the defendant; (2) loss of affection or consortium; and (3) causal connection between such conduct and loss." Fitch v. Valentine , 959 So.2d 1012, 1025 (¶ 36) (Miss. 2007). "A claim for alienation of affection does not require that the plaintiff prove an adulterous relationship ...." Bland v. Hill , 735 So.2d 414, 417 (¶ 13) (Miss. 1999) (citation omitted). "The 'wrongful' conduct necessary to maintain an action for alienation of affections is the direct and intentional interference with the marriage relationship by the defendant." Children's Med. Group P.A. v. Phillips , 940 So.2d 931, 934 (¶ 9) (Miss. 2006). The plaintiff must establish that his spouse "was induced to abandon the [husband] by some active interference on the part of the defendant." Id. (quoting Stanton v. Cox , 162 Miss. 438, 450, 139 So. 458, 460 (1932) ).

¶ 16. In his answer, McGee stated that he was not at fault for the demise of the Lyons' marriage because he had no contact with Lyon's wife until after the Lyons were separated on July 12, 2013. Lyon argues this allegation, in an unsworn pleading, is insufficient to establish a lack of a genuine issue of material fact; thus, summary judgment was improper.

¶ 17. McGee responded that the trial court relied on more than just his answer to find no genuine issue of material fact. Also attached to his motion was the settlement agreement signed by both parties, which stated "irreconcilable differences" had arisen between Robin and Lyon, resulting in their separation on July 12, 2013. McGee cites the settlement agreement as proof that the marriage was "irretrievably broken" as of the date of separation, July 12, 2013. While the agreement does not use that wording, it does state that "irreconcilable differences have arisen between Robin and [Lyon] resulting in the parties having heretofore separated on the 12th day of July, 2013."

¶ 18. After reviewing the record, we find that McGee's motion for summary judgment met his initial burden of showing a lack of a genuine issue of material fact as to a causal connection. While McGee did not offer any sworn evidence to support his argument, but merely his answer, where he stated he was not at fault because his and Robin's contact occurred after separation, Rule 56(b) states that a party may move for summary judgment with or without supporting affidavits. See also Johnson v. Pace , 122 So.3d 66, 68 (¶ 8) (Miss. 2013) ; Lott v. Purvis , 2 So.3d 789, 791 (¶ 9) (Miss. Ct. App. 2009). In Rule 56 of the Federal Rules of Civil Procedure, failure to introduce affidavits will not prevent summary judgment if the prerequisites are met in some other way. 10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2722 at 394-95 (4th ed. 2016). Further, the Mississippi Supreme Court has made clear that the movant only has the burden of producing evidence in support of the motion if the movant has the burden of proof on the issue at trial. Karpinsky v. Am. Nat'l Ins. Co. , 109 So.3d 84, 88-89 (¶ 11) (Miss. 2013) (citation omitted); Haley v. Jurgenson , 154 So.3d 935, 937 (¶ 7) (Miss. Ct. App. 2015). Instead, "the movant bears the burden of persuading the trial judge that: (1) no genuine issue of material fact exists, and (2) on the basis of the facts established, he is entitled to judgment as a matter of law." Karpinsky , 109 So.3d at 88 (¶ 11) (citation omitted). Moreover, summary judgment is appropriate when the nonmovant fails to "make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial." Id. at 89 (¶ 11) (citation omitted).

¶ 19. Here, McGee does not have the burden of proof at trial; therefore, at the summary-judgment stage, he merely had the burden of persuading the trial judge that his motion was proper. McGee cited to his answer that the affair did not begin until months after the Lyons' separation, and then challenged Lyon to prove otherwise. Lyon wholly ignored the challenge.

¶ 20. The oral argument on summary judgment, again, addressed only the estoppel arguments. However, immediately following that hearing was argument on McGee's motion in limine to exclude voice recordings, emails, and evidence showing a relationship between Robin and McGee before October 2013. Although the discussion was not within the context of the motion for summary judgment, it analyzed the evidence that supported when the affair began. Lyon's counsel explained that the affair did not begin "like a light switch" in October 2013, but the evidence would show through a "combination of testimony, phone-record patterns, and behavior-all of these things will agitate toward the affair beginning earlier." McGee's counsel explained that he did not want any information mentioned prior to October 2013 because Lyon admitted in his deposition when asked if "he had any other proof of any intimate conduct prior to October 2013," he responded "no." McGee's counsel surmised that there was no proof of an earlier relationship other than suspicions on the part of Lyon. We cannot say the circuit court erred in concluding that Lyon's references to the telephone records were insufficient to establish a genuine issue of material fact of McGee's involvement with Robin prior to the date of separation.

¶ 21. Next, Lyon argues that the circuit court improperly granted summary judgment because of Lyon's insufficient rebuttal to the unsupported claim that McGee raised in his answer. It is well established that the nonmoving party "may not rest upon the mere allegations or denials of the pleadings," but "must set forth specific facts showing there is a genuine issue for trial." Bosarge v. LWC MS Props. LLC , 158 So.3d 1137, 1142 (¶ 14) (Miss. 2015) (citation omitted). Mississippi Rule of Civil Procedure 56(e) states "[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matter stated therein." In the federal rules, the nonmovant must support his or her factual position by evidence that will be admissible at trial; and not merely rely on allegations in pleadings. F.R.C.P. 56(c)(1) ; Wright & Miller, § 2739 at 354.

¶ 22. We find Lyon presented no proof of causation in rebuttal that could be utilized by the circuit court. Similar to McGee, Lyon did not file any sworn statements or discovery materials to rebut McGee's claim of lack of proof for causation. Instead, Lyon focused his response on McGee's arguments for collateral/judicial estoppel and issue preclusion. It was not until Lyon's motion to reconsider that he offered discovery documents, but these, too, were without proper affidavits or sponsors. When the motion for summary judgment was heard, no evidence was presented to show a triable issue regarding causation. Therefore, we cannot say that the circuit court erred in granting McGee's motion for summary judgment.

II. Motion for Reconsideration

¶ 23. Lyon argues that the circuit court erred in denying his motion for reconsideration under Mississippi Rule of Civil Procedure 59(e). Under such a motion, "the movant must show: (i) an intervening change in controlling law, (ii) availability of new evidence not previously available, or (iii) need to correct a clear error of law or to prevent manifest injustice."

Brooks v. Roberts , 882 So.2d 229, 233 (¶ 15) (Miss. 2004) (citation omitted). The standard of our review is an abuse of discretion. Id.

¶ 24. Lyon argues that the evidence he provided in support of his motion for reconsideration established a genuine issue of fact that McGee and Robin had a relationship that predated July 12, 2013-the date of the Lyons' separation. He also claims the evidence shows an issue of fact for the causal element.

¶ 25. Lyon attached numerous exhibits in support of this contention and his motion; however, none of it was appropriate for a motion to reconsider. Under Rule 59(e), evidence submitted for a motion to reconsider must be "new ... or not previously available." All of the evidence attached to the motion was previously available at the summary-judgment stage. Those exhibits included discovery materials showing regular telephone contact between the couple, emails between Lyon and McGee's wife discussing the affair, and Lyon's own deposition testimony where he testified to McGee's attempt to lure Robin away. Lyon also submitted McGee's interrogatory response where he admitted that the affair with Robin began on October 4, 2013. Further submitted were McGee's work cellular-telephone bills for three years, from 2012 through 2015. Lyon claims that the telephone records show eighteen telephone calls exchanged between McGee and Robin during April 2013, forty-four calls in May 2013, forty-six calls in June 2013, and sixty-five calls in July 2013. Lyon states that these records show a "sudden and dramatic" increase in communication starting in April 2013. However, these were apparently the telephone records referred to during the motion-in-limine hearing, and they were available prior to the court's summary-judgment ruling and would not, therefore, be a proper reason for reconsideration. In In re Will of Smith , 910 So.2d 562, 569 (¶¶ 28-31) (Miss. 2005), the Mississippi Supreme Court found no abuse of discretion for the trial court's refusal to consider an affidavit filed with a motion for reconsideration. Under Rule 56(c), all affidavits must be filed before the date of the hearing on summary judgment.

¶ 26. Further, the records only show an increase in communication; they do not prove an affair at the time. Our Court has recognized:

the circumstantial-evidence doctrine allows the jury to draw an inference of the defendant's negligence.... Circumstantial evidence is sufficient when it leads to an inference of negligence on behalf of one party. But circumstantial evidence that still leaves many inferences available is not sufficient as proof for necessary elements of a claim.

Walz v. HWCC-Tunica Inc. , 186 So.3d 375, 377-78 (¶¶ 12-13) (Miss. Ct. App. 2016) (This Court affirmed summary judgment in a slip-and-fall negligence case because circumstantial evidence surrounding the fall did not create an inference that a business-owner caused a dangerous condition.). Lyon argues that the telephone records lead to an inference that the affair occurred earlier; however, they do not satisfy his burden of proof since they only imply the affair might have started earlier. There is no indication of what was discussed during the telephone calls, or that McGee was inducing Robin to abandon her marriage. Thus, the records create no inference sufficient to satisfy Lyon's burden of proof. ¶ 27. A motion for summary judgment "necessarily implicates the substantive evidentiary standard of proof that would apply at the trial on the merits." Anderson v. Liberty Lobby Inc. , 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Here, as in Liberty Lobby , the ruling judge must ask at the summary-judgment stage "whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict." Id. Even on reconsideration, with Lyon's belated attempt to enter evidence supporting his claim, Lyon did not meet this burden of proof.

¶ 28. ON DIRECT APPEAL: AFFIRMED. ON CROSS-APPEAL: AFFIRMED.

LEE, C.J., IRVING, P.J., CARLTON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR. WILSON, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. GRIFFIS, P.J., AND FAIR, J., NOT PARTICIPATING.

      These motions were not included in the record.

      Lyon notes that the order erroneously stated that the telephone records were obtained through deposition, instead of by subpoena.

      In McGee's motion for summary judgment, he stated there was no causation because "any alleged conduct or contact with [Lyon]'s former spouse, [Robin], occurred long after the separation of [Lyon] and [Robin] and accordingly, there is no causal connection between the alleged conduct on the part of [McGee] in any alleged loss claimed by [Lyon]."

      These emails were unauthenticated and unsworn.

      The attached excerpt of Lyon's deposition testimony was Lyon's response to what proof he had that McGee lured his wife away from him and the marriage. Lyon claimed McGee "had his eyes sexually on my ex-wife since the time she babysat for him twenty years ago" when she would lay out by the pool in a bikini. Lyon claimed that McGee made comments about her appearance "on a regular basis"; some in Lyon's presence. McGee told Robin she could be McGee's fourth wife if she ever left Lyon, in front of McGee's current wife and both couple's children. Lyon testified that they separated because Robin "asked for a divorce in April [2013] out of the blue. We were living the American dream-paid for home, she was a stay-at-home mom home-schooling the kids, lived close to all her family-everything she said she wanted from the beginning of our marriage, she had ...."

      McGee correctly argues that the telephone records, without a sponsoring affidavit, have no evidentiary basis.