                         IN THE SUPREME COURT OF MISSISSIPPI

                                      NO. 2002-CA-00283-SCT


TODD W. DUNN

v.

JUDY H. DUNN

DATE OF JUDGMENT:                                 1/23/2002
TRIAL JUDGE:                                      HON. DOROTHY WINSTON COLOM
COURT FROM WHICH APPEALED:                        OKTIBBEHA COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                           DAVID MICHAEL BRISOLARA
ATTORNEY FOR APPELLEE:                            DOLTON W. McALPIN
NATURE OF THE CASE:                               CIVIL - REAL PROPERTY
DISPOSITION:                                      AFFIRMED - 06/12/2003
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


        EN BANC.

        WALLER, JUSTICE, FOR THE COURT:

¶1.     The Oktibbeha County Chancery Court reformed a certain real estate deed in favor of Judy H.

Dunn and against Todd W. Dunn. The chancery court also ordered Judy to pay $42,973.57, an amount

owed pursuant to a mortgage on the real estate, to the Merchants & Farmers Bank in Starkville. Judy

made the payment after the final judgment was entered in the chancery court, resulting in this fact not being

a matter of record on appeal. Todd appealed to this Court, which reversed and rendered.1 This ruling's

effect was that Todd was never divested of the title. Judy then filed, in the chancery court, a motion for

restitution and other relief against Todd to recover the $42,973.57 paid by her to satisfy the debt against



        1
         Dunn v. Dunn, 786 So. 2d 1045 (Miss. 2001).
the real estate. Todd responded, alleging that the issue of restitution had been raised before and ruled upon

by this Court. Therefore, he argued, res judicata prevented Judy from relitigating the issue. The chancery

court, rejecting Todd's argument, and noting that Judy made the payment under court order, granted Judy's

motion for restitution. Todd appeals, arguing that allowing Judy to proceed in chancery court after this

Court has reversed and rendered, flies in the face of the principle of finality of judgments. He claims that

the issue was before the Court on appeal because the order that was appealed both reformed the deed and

ordered Judy to pay the funds to the bank. Because Judy did not present her claim for restitution to this

Court by way of a cross-appeal, Todd argues that Judy's only recourse would have been to file a motion

for rehearing under M.R.A.P. 40. Because she failed to do so, she is procedurally barred from proceeding

in the chancery court.

¶2.     We find that the issues of Judy's payment and Todd's unjust enrichment were not raised in the first

appeal, are not barred by res judicata, and therefore were properly brought before the chancery court by

way of motion for restitution.

                                             DISCUSSION

                I.       WHETHER JUDY IS BARRED FROM
                         PROCEEDING ON A MOTION FOR RESTITUTION
                         IN CHANCERY COURT WHEN SHE FAILED TO
                         FILE A CROSS-APPEAL IN #2000-CA-00714-SCT.

¶3.     We have never addressed the issue of when a party must file a cross-appeal. We therefore review

authority from other jurisdictions.

¶4.     Michigan courts have held, "Generally, the failure to file a cross appeal precludes the appellee from

raising an issue not raised by appellant." Hajj v. Roat, 2002 WL 571785 *1 (Mich. Ct. App. 2002)

(citing Kosmyna v. Botsford Cmty. Hosp., 607 N.W.2d 134 (Mich. Ct. App. 1999)). However,



                                                     2
"[w]hile a cross appeal is necessary to obtain a decision more favorable than that rendered by the lower

tribunal, it is not necessary to urge an alternative ground for affirmance, even if the trial court considered

and rejected that alternative ground." Hajj, 2002 WL 571785 at *1 (citing In re Herbach, 583 N.W.2d

541 (Mich. Ct. App. 1998)); see also Kosmyna, 607 N.W.2d at 136.

¶5.     Likewise, Arizona courts have held that "[a] party may not appeal from any portion of a judgment

that does not aggrieve it." Larkin v. State ex rel. Rottas, 857 P.2d 1271, 1279 (Ariz. Ct. App. 1993)

(citing State v. O'Connor, 827 P.2d 480, 485 (Ariz. Ct. App. 1992)).

¶6.     Our own Court of Appeals has recently held that "[i]n order for the appellee to gain reversal of any

part of the decision of a trial court about which the appellant brings no complaint, the appellee is required

to file a cross-appeal." Delta Chem. & Petroleum, Inc. v. Citizens Bank of Byhalia, Miss., 790

So. 2d 862, 878 (Miss. Ct. App. 2001).

¶7.     The State of Ohio has adopted an appellate rule of procedure which states as follows:

                3(C)(1): Cross appeal required. A person who intends to defend a
                judgment or order against an appeal taken by an appellant and who also
                seeks to change the judgment or order or, in event the judgment or order
                may be reversed or modified, an interlocutory ruling merged into the
                judgment or order, shall file a notice of cross appeal within the time
                allowed by App.R. 4.

                3(C)(2): Cross appeal not required. A person who intends to defend
                a judgment or order appealed by an appellant on a ground other than that
                relied on by the trial court but who does not seek to change the judgment
                or order is not required to file a notice of cross appeal.

Ohio App. R. 3(C)(1).

¶8.     Following this precedent, we conclude that an appellee should not be required to file a cross-appeal

unless he or she is aggrieved by the trial court's judgment. Because Judy won a favorable judgment in the

chancery court, her position on appeal was to have this Court affirm the judgment. She did not seek to

                                                      3
alter or reverse the judgment below. Therefore, she was not required to raise any issues on cross-appeal.

Also, the issue of unjust enrichment did not ripen until this Court entered its judgment.

                 II.      WHETHER JUDY IS BARRED FROM
                          PROCEEDING ON A MOTION FOR RESTITUTION
                          IN CHANCERY COURT WHEN SHE FAILED TO
                          FILE A MOTION FOR REHEARING IN #2000-CA-
                          00714-SCT.

¶9.     Under M.R.A.P. 40,2 motions for rehearing are properly brought when the court has overlooked

or misapprehended points of law or fact. Here, the Court did not overlook or misapprehend any points

of law or fact because the issue of restitution was not raised in the first appeal. As stated above, the issue

of restitution did not ripen until this Court entered its judgment.

¶10.    If no motion for rehearing is filed within fourteen days of the entry of the appellate court's judgment,

see M.R.A.P. 40(a), the judgment becomes res judicata. This is so even where the issue was not raised

during appeal and the appellate court did not consider it on the merits. It is axiomatic that res judicata

prevents the parties from relitigating all issues tried in the prior lawsuit, as well as all matters which should

have been litigated and decided in the prior suit. Dunaway v. W.H. Hopper & Assocs., Inc., 422 So.

2d 749, 751 (Miss. 1982).

¶11.    We find that the issue of restitution could not have been raised before the Court in a motion for

rehearing because there was absolutely no evidence in that record concerning any actions by the parties



        2
         M.R.A.P. 40(a) Time for Filing; Content; Answer; Action by Court if Granted.

                  . . . The motion shall state with particularity the points of law or fact
                 which, in the opinion of the movant, the court has overlooked or
                 misapprehended and shall contain such argument in support of the motion
                 as movant desires to present. The motion for rehearing should be used to
                 call attention to specific errors of law or fact which the opinion is thought
                 to contain. . . .

                                                       4
in response to that part of the judgment which ordered Judy to pay the bank. Because Judy's payment to

the bank in accordance with the chancery court's order was not in the record, the issue of restitution was

not a proper basis for a motion for rehearing. The only thing Judy could do was what she did: she went

back to the chancery court via a motion for restitution, made a record that the payment was remitted, and,

in light of this Court's ruling, asked for restitution. This Court could not have reviewed the issue of

restitution until a record showing the payment was before the Court. Therefore, res judicata does not apply

to the issue of restitution.




                                                    5
                 III.    WHETHER TODD WAS UNJUSTLY ENRICHED.

¶12.     The equitable principle of unjust enrichment clearly applies to the facts at hand. Judy paid the bank

with the understanding that she had title to the property. When she was divested of title, Todd, the owner,

got the property back debt-free as Judy had paid off his indebtedness. Todd is not entitled to profit from

Judy's payment. See, e.g., Milliken & Michaels, Inc. v. Fred Netterville Lumber Co., 676 So.

2d 266, 269 (Miss. 1996). In Milliken, the Court quoted at length from Bessler Movable Stairway

Co. v. Bank of Leakesville, 140 Miss. 537, 106 So. 445 (1925), as follows:

                 Money paid to another by mistake of fact, although such mistake may
                 have been caused by payor's negligence, may be recovered from the
                 person to whom it was paid, in an action for money had and received.
                 The ground on which recovery is allowed is that one receiving money paid
                 to him by mistake should not be allowed to enrich himself at the expense
                 of the party who paid the money to him by retaining it, but in equity and
                 good conscience should refund it. In order that this rule may apply, the
                 party to whom the payment mistake was made must be left in the same
                 situation after he refunds it as he would have been left had the payment not
                 been made.

Milliken, 676 So. 2d at 269 (citations omitted). See also U.S.F.&G. Co. v. Newell, 505 So. 2d 284

(Miss. 1987). Even though the money was not paid directly to Todd, he benefitted from the payment of

the money. In equity and good conscience, Todd should have refunded the money to Judy without the

necessity of further legal or equitable action. Therefore, the chancery court did not err in ordering

restitution.




                                                      6
                                             CONCLUSION

¶13.    Because Judy could not have raised the issue of restitution in the first appeal, res judicata does not

apply to her claim. Todd was undoubtedly unjustly enriched by Judy's payment. We therefore affirm the

chancery court's judgment granting Judy's motion for restitution.

¶14.    AFFIRMED.

      PITTMAN, C.J., SMITH, P.J., COBB, DIAZ, CARLSON AND GRAVES, JJ.,
CONCUR. McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION. EASLEY,
J., NOT PARTICIPATING.




        McRAE, PRESIDING JUSTICE, DISSENTING:

¶15.    The majority erroneously finds that Judy was not required to file a mandatory cross appeal in the

original action and that she is not barred by res judicata from re-litigating issues which were decided in the

original action. Judy had ample opportunity to litigate her claim and could have utilized the Rules of

Appellate Procedure to correct or modify the record in the original appeal to reflect her payment of the

loans. Judy's failure to file a mandatory cross-appeal, motion for rehearing, and/or motion to correct or

amend mandate amounts to a procedural bar for review. Furthermore, res judicata most certainly applies

under the circumstances of this case since it was the same subject matter, same parties, and basically the

same issues. For these reasons, I dissent.

¶16.    In 2001, this Court decided Dunn v. Dunn, 786 So.2d 1045 (Miss. 2001), wherein the same

facts presented before us today were litigated. The Chancellor of Oktibbeha County had ordered

reformation of a deed in favor of Judy and ordered Judy to pay off the existing loan on the land. Id. at

1047. Before the appeal to this Court, Judy paid off the loan in accordance with the Chancellor's order.



                                                      7
The issues presented and decided on this original appeal included: (1) Did the Court err in its additional

findings of facts submitted to the Mississippi Supreme Court in support of the Court's denial of the

Defendant's Motion for Stay of Execution; (2) Did the Court commit reversible error in reforming the

warranty deed based upon a finding of mistake on the part of the Plaintiff; (3) Did the Court err as a matter

of law in finding that the Defendant had a confidential relationship with the Plaintiff; and (4) Did the Court

err in denying Todd the relief sought in his Counter Complaint. Id. at 1048-55. Ultimately, we reversed

the order of the Chancery Court "to the extent that it reformed the warranty deed from Judy H. Dunn to

Todd W. Dunn" and "rendered here for Todd dismissing Judy's complaint and action with prejudice." Id.

at 1055. In conclusion we stated that "[i]n all other respects the judgment is affirmed." Id. In Dunn, we

never addressed any facts concerning Judy's payment of the loan because there was nothing in the record

to that effect and Judy did not raise the issue by cross-appeal. However, our closing statement in the case

tends to show that we were aware of the portion of the Chancellor's order which made Judy responsible

for payment of the loan. Thus, Judy was in a position to file either a motion to rehear or a motion to correct

or amend the mandate, she did not.

¶17.    Res judicata clearly applies to the present cause of action. "The requisites for application of the

doctrine of res judicata are: (1) identity of the thing sued for; (2) identity of the cause of action; (3) identity

of the persons and parties to the cause of action; and (4) identity of the quality in the persons for and against

whom the claim is made." Standard Oil Co. v. Howell, 360 So.2d 1200, 1202 (Miss. 1978) (citing

Pray v. Hewitt, 254 Miss. 20, 179 So.2d 842 (1965)). See also Taylor v. Taylor, 835 So.2d 60, 65

(Miss. 2003); Pro-Choice Miss. v. Fordice, 716 So.2d 645, 655 (Miss. 1998); Little v. V & G

Welding Supply, Inc., 704 So.2d 1336, 1338 (Miss. 1997). Res judicata bars litigation in a second

action "of all grounds for, or defenses to, recovery that were available to the parties regardless of whether

                                                        8
they were asserted or determined in the prior proceeding." Johnson v. Howell, 592 So.2d 998, 1002

(Miss. 1991) (quoting Dunaway v. W.H. Hopper & Assocs., Inc., 422 So.2d 749, 751 (Miss. 1982)).

¶18.    The first requirement is identity of the subject matter. There is no doubt that the original lawsuit and

the present action involve the same subject matter. The original action concerned the loan on the land,

reformation of the land deed, the trial court's denial of the Motion to Stay Execution, whether a confidential

relationship existed, and costs for damages and rent. Dunn, 786 So.2d at 1048-55. The present action

seeks restitution for payment of the loan on the land. These two actions are the same subject matter. Both

sought determination as to the land loan and or who owed what. The second requirement is identity of the

cause of action. This is found where there is commonality concerning the "underlying facts and

circumstances upon which the claim is asserted and relief sought." Riley v. Moreland, 537 So.2d 1348,

1354 (Miss. 1989). This requirement is also fulfilled under the facts and circumstances of both actions.

Both the original action and the present action are based on the same facts. The facts have already been

litigated in the original action. The third requirement is identity of the parties. Both parties are the same in

the original and present suit. The fourth requirement is identity of the quality or character of the person for

or against whom the suit is brought. This too is fulfilled. Thus, the four requirements for res judicata are

met. It is of no consequence that Judy failed to cross-appeal and litigate the loan issue in the original action

because as we have stated res judicata not only applies to issues that were litigated but also to issues that

"should have been litigated." Johnson, 592 So.2d at 1002. Judy should have raised the loan payment

issue on appeal in the original action. Her failure to do so amounts to res judicata since we reversed and

rendered in the original suit.

¶19.    Another important point is finality of judgment. In the Dunn, we reversed and rendered and

specifically stated that:

                                                       9
        [T]he judgment of the Oktibbeha County Chancery Court is reversed to the extent that it
        reformed the warranty deed from Judy H. Dunn to Todd W. Dunn, and judgment is
        rendered here for Todd dismissing Judy's complaint and action with prejudice. In all other
        respects the judgment is affirmed.

786 So.2d at 1055. Our opinion was a final judgment on the merits. "A final judgment on the merits of

an action precludes the parties and their privies form re-litigating claims that were or could have been raised

in that action." Walton v. Bourgeois, 512 So.2d 698, 701 (Miss. 1987) (citations omitted). "A final

judgment has been defined by this Court as a judgment adjudicating the merits of the controversy which

settles all the issues as to all the parties." Sanford v. Bd. of Supervisors, 421 So.2d 488, 490-91

(Miss. 1982) (citations omitted). "An order is considered final if it ends the litigation on the merits and

leaves nothing for the court to do but execute the judgment.'" Banks v. City Fin. Co., 825 So.2d 642,

645 (Miss. 2002) (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed.

911 (1945)). Our 2001 opinion in Dunn, was a final order and adjudication on the merits. Judy can not

now attempt to attack this ruling. Additionally, we would not have included language to the effect that "[i]n

all other respects the judgment is affirmed," if we were not passing upon the portion of the Chancellor's

order concerning Judy's responsibility to pay the loan. That was the only part of the order which we did

not reverse, why include such language if we were not meaning to affirm that portion of the order which

Judy now attempts to litigate.

¶20.    Additionally, Judy had ample opportunity to utilize the Rules of Appellate Procedure to obtain

timely relief on this issue. Under Mississippi Rule of Appellate Procedure 10(e), Judy could have requested

correction or modification of the record to clarify to this Court that she indeed had paid the loan in reliance

on the Chancellor's ruling. Rule 10(e) provides in relevant part:

                 If any difference arises as to whether the record truly discloses what occurred in
        the trial court, the difference shall be submitted to and settled by that court and record

                                                     10
        made to conform to the truth. If anything material to either party is omitted
        from the record by error or accident or is misstated in the record, the
        parties by stipulation, or the trial court either before or after the record is transmitted to the
        Supreme Court or the Court of Appeals, or either appellate court on proper motion or of
        its own initiative may order that the omission or misstatement be corrected,
        and, if necessary, that a supplemental record by filed. . . .

Miss. R. App. P. 10(e) (emphasis added). Judy knew that she had complied with the Chancellor's order

and paid the loan but did nothing to present this Court with the facts surrounding such payment. If Judy

had corrected or modified the record to include such information, then this Court would have had the

necessary facts to grant relief in the original action.

¶21.    Judy's failure to file a cross-appeal in the original appeal is also a procedural error. Under Rule

3(a) of the Mississippi Rules of Appellate Procedure, a party is required to file a notice of appeal or face

possible dismissal of their claim. Rule 3(a) states in relevant part:

        In all cases, both civil and criminal, in which an appeal is permitted by law as of right to the
        Supreme Court, there shall be one procedure for perfecting such appeal . . .
        . An appeal permitted by law as of right from a trial court to the Supreme Court shall be
        taken by filing a notice of appeal with the clerk of the trial court within the
        time allowed by Rule 4. Failure of an appellant to take any steps other than the timely
        filing of a notice of appeal does not affect the perfection of the appeal, but is ground only
        for such action as the Supreme Court deems appropriate, which may include dismissal of
        the appeal.

Miss. R. App. P. 3(a) (emphasis added). Rule 4(a) prescribes the proper time period for such appeal.

Miss. R. App. P. 4(a). Rule 4(a) states in relevant part:

        Except as provided in Rule 4(d) and 4(e), in a civil or criminal case in which an appeal or
        cross appeal is permitted by law as of right from a trial court to the
        Supreme Court, the notice of appeal required by Rule 3 shall be filed with the clerk of
        the trial court within 30 days after the date of entry of the judgment or order
        appealed from.

(emphasis added). Failure to file timely notice of appeal deprives this Court of jurisdiction to review an

issue. See Bank of Edwards v. Cassity Auto Sales, Inc., 599 So.2d 579 (Miss.


                                                          11
1992); Duncan v. St. Romain, 569 So.2d 687 (Miss. 1990); Tandy Electronics, Inc. v. Fletcher,

554 So.2d 308 (Miss. 1989); McCarty Farms, Inc. v. Kelly, 811 So.2d 250 (Miss.

Ct. App. 2001). Additionally, "[f]ailure to file a notice of cross appeal is usually considered

fatal." Lindsey v. Lindsey, 612 So.2d 376, 378 (Miss. 1992) See also McCarty Farms, 811 So.2d

250 (holding issues raised by appellee would not be determined by this Court since she failed to file a

cross-appeal).

¶22.    These rules make it clear, that cross-appeals are of the same nature as direct appeals.

They are prescribed the same procedural rules, and failure to follow the rules prescribed may result in

dismissal of the issues on appeal. Additional support for a finding that Judy's claims are appropriately

compulsory cross-appeal claims, is found in the Mississippi Rules of Civil Procedure. Rule 13(a) of the

Mississippi Rules of Civil Procedure provides in relevant part:

        A pleading shall state as a counter-claim any claim which at the time of serving the pleading
        the pleader has against any opposing party if it arises out of the transaction or occurrence
        that is the subject matter of the opposing party's claim and does not require for its
        adjudication the presence of third parties over whom the court cannot acquire jurisdiction.
        . . . In the event an otherwise compulsory counter-claim is not asserted in reliance upon
        any exception stated in paragraph (a), re-litigation of the claim may nevertheless be barred
        by the doctrines of res judicata or collateral estoppel by judgment in the event certain
        issues are determined adversely to the party electing not to assert the claim.

A compulsory counter-claim is of the same nature as a compulsory cross-appeal. Just as failure to raise

a compulsory counter-claim may bar subsequent action on an issue, failure to raise a compulsory cross

appeal may also lead to res judicata or collateral estoppel. The Court of Appeals has also held that "[i]n

order for the appellee to gain reversal of any part of the decision of a lower tribunal about which the

appellant brings no complaint, the appellee is required to file a cross-appeal." Brock v. Hankins




                                                    12
Lumber Co., 786 So.2d 1064, 1068 (Miss. Ct. App. 2000). 3 In Dunn, Judy failed to cross-appeal.

She failed to raise any issues concerning her payment of the loan. Her failure to raise such issues on cross-

appeal is now a procedural bar in this action. Judy can not now raise such issues as under the Appellate

Rules she had "30 days after the date of entry of the judgment or order" to appeal those issues. Miss. R.

App. P. 4(a). Ultimately, her procrastination and inadvertence will be Todd's gain.

¶23.    Also, Judy's failure to file a motion for rehearing of the original action amounts to procedural bar.

Mississippi Rule of Appellate Procedure 40(a) prescribes the proper procedure and timing for a motion

for rehearing. Rule 40(a) states in pertinent part:

        A motion for rehearing may be filed within 14 days after a decision is handed down on
        the merits of a case by the Supreme Court or the Court of Appeals. The motion shall state
        with particularity the points of law or fact which, in the opinion of the movant, the
        court has overlooked or misapprehended and shall contain such argument
        in support of the motion as movant desires to present. The motion for
        rehearing should be used to call attention to specific errors of law or fact
        which the opinion is thought to contain; the motion for rehearing is not intended
        to afford an opportunity for a mere repetition of the argument already considered by the
        court.

Miss. R. App. P. 40(a) (emphasis added). Judy had fourteen days after this Court's decision

in Dunn to file a motion for rehearing. In such motion, Judy would have had the opportunity to address

this Court's failure to specifically address the portion of the Chancellor's order which saddled her with the

responsibility of paying off the loan on the land. It is not obvious whether the Dunn decision "overlooked"

this fact when reversing and rendering a decision in favor of Todd. However, in all equity and fairness,


        3
            See also Edwards v. Thigpen, 433 So.2d 906, 908 (Miss. 1983) where this Court stated
that "if the issue were raised on appeal then it has been previously litigated and therefore is barred from
consideration in the present proceeding . . . [and] [i]f it were not raised on appeal, then the petitioner has
accepted the trial court's determination of the issue . . . Failure to specifically assign such an error in the
direct appeal before this Court resulted in petitioner's acceptance of the trial court's determination of this
issue; therefore it is now barred."

                                                      13
had such information been called to our attention, we would have addressed this issue and likely have

reversed the Chancellor's order which required Judy to pay off the loan. However, Judy's failure to file a

motion for rehearing now acts as a procedural bar to review of this issue.

¶24.    Finally, Judy's failure to file a motion to amend or correct the mandate also acts as a procedural

bar to the issue she is now presenting. Mississippi Rule of Appellate Procedure 41(e) provides the proper

procedure and timing for a motion to amend or correct. Rule 41(e) states:

        Any motion to amend or correct the mandate may be filed within fourteen (14) days after
        the court has issues the mandate or any addition to the mandate.

Miss. R. App. P. 41(e). The content of such motion is controlled by Rule 27(a) which requires the motion

to "state with particularity the ground on which it is based, and the order or relief sought." Miss. R. App.

P. 27(a). If Judy took issue with this Court's opinion in Dunn, she should have filed a motion to amend

or correct mandate at least fourteen days after the judgment was issues. Our failure to specifically address

the portion of the Chancellor's order which required Judy to pay the loan would have been ample grounds

for such a motion. Her failure to follow the proper procedure can only lead to one result, dismissal of the

issues for which she now seeks review. Judy's failure to file a cross appeal, motion for rehearing, and/or

motion to correct or amend acts as a procedural bar to review. Judy's restitution claim should have been

dismissed since res judicata and other procedural bars prevent its re-litigation. Accordingly, I would

reverse the chancery court judgment awarding Judy restitution and render judgment finally dismissing Judy's

restitution claim with prejudice as barred by res judicata and other procedural bars.

¶25.    For these reasons, I dissent.




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