                    IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2007-IA-01362-SCT

DEERE & COMPANY AND PARKER TRACTOR &
IMPLEMENT COMPANY, INC.

v.

FIRST NATIONAL BANK OF CLARKSDALE AND
EDWARD J. JOHNSON, JR. d/b/a F & E FARM

                            ON MOTION FOR REHEARING

DATE OF JUDGMENT:                           07/16/2007
TRIAL JUDGE:                                HON. CHARLES R. BRETT
COURT FROM WHICH APPEALED:                  COAHOMA COUNTY COUNTY COURT
ATTORNEYS FOR APPELLANT:                    JOHN B. GILLIS
                                            KEN R. ADCOCK
ATTORNEYS FOR APPELLEE:                     TOM T. ROSS, JR.
                                            DANA J. SWAN
NATURE OF THE CASE:                         CIVIL - CONTRACT
DISPOSITION:                                AFFIRMED AND REMANDED - 06/18/2009
MOTION FOR REHEARING FILED:                 11/25/2008
MANDATE ISSUED:

       EN BANC.

       DICKINSON, JUSTICE, FOR THE COURT:

¶1.    The motion for rehearing filed by Deere & Company is denied. The original opinion

is withdrawn, and these opinions are substituted therefor.

¶2.    A farm-implement dealer sold a farmer a bad combine.1 The farmer sued the dealer

in circuit court and won a judgment of $90,000. The dealer appealed, and we affirmed the

judgment.


       1
        For those few souls in Mississippi not familiar with combines, they are farm implements
used to harvest corn, wheat, and other grain crops.
¶3.    In an unrelated case, a bank took a $50,000 default judgment against the farmer in

county court. The bank attempted to collect its county-court judgment by garnishing the

money the farmer won against the dealer in circuit court.

¶4.    The company that manufactured the combine was on the hook for the judgment

against its dealer, so it intervened in the county-court garnishment action, claiming that the

farmer’s circuit-court judgment could not be collected in county court because of other

proceedings which had taken place in the federal courts.

¶5.    The manufacturer filed a motion for summary judgment, which the county court

denied. The manufacturer filed a motion for interlocutory appeal, which we granted.

                       BACKGROUND FACTS AND PROCEEDINGS

       Preliminary statement

¶6.    This case’s simple beginning belies its protracted course of complex litigation 2 which

began in 1994, when Edward Johnson (“Johnson”), purchased a John Deere combine for

$153,173.36 from Parker Tractor & Implement Company (“Parker Tractor”). He paid for

the combine using $30,634.36 of his own funds, and the balance from a loan (the “Loan”)

he obtained from John Deere & Company (“Deere”). The combine stood as collateral for the

loan, and Johnson was to make periodic loan payments to his creditor, Deere.

¶7.    Parker Tractor’s delivery of the combine to Johnson was delayed due to wiring and

electrical problems and, once delivered, the combine did not operate properly. In an attempt



       2
           See Appendix A for a timeline of events.

                                                 2
to revoke acceptance of the combine, Johnson wrote a letter to Deere, stating that Parker

Tractor was unable to repair the problem he was having with the combine.

¶8.    We think the labyrinth of facts to follow will be more easily digested if we pause here

to point out that the record provides us no clue as to why Johnson attempted to revoke

acceptance of the combine with Deere, who loaned him money, rather than with Parker

Tractor, who sold him the combine. In one of the related cases, discussed later in this

opinion, the United States Court of Appeals for the Fifth Circuit observed:

       In this case, a central issue -- which the parties pled, tried to the jury, retried
       in post-verdict motions, briefed, and orally argued on appeal -- is whether
       Johnson effectively revoked the sale contract for the combine. Johnson entered
       into this contract with Parker. We note, in passing, that there is nothing in the
       record that suggests (1) that Deere and Parker are one entity or (2) that Parker
       assigned Deere its rights under the sale contract.

       Moreover, even if we assumed that Deere, not Parker, had all the rights under
       the sale contract, this fact would still fail to explain why the parties vigorously
       litigated the validity of the underlying sale contract in this action for collection
       on a loan contract. The loan contract and the sale contract are independent
       unless there is a contractual provision which states otherwise. Neither contract
       contains such a provision.

Deere & Co. v. Johnson, 271 F. 3d 613, 624 n.1 (5th Cir. 2001).

¶9.    In any case, Deere refused to accept Johnson’s attempted revocation of acceptance.

Consequently, Johnson refused to make payments to Deere on the loan, but he continued to

use the combine for three farming seasons, from 1994 through the spring of 1996. Just prior

to the 1996 season, the lawsuits began.

       1. FEDERAL I – (Deere v. Johnson)




                                                3
¶10.   On September 26, 1995, Deere sued Johnson in the United States District Court for

the Northern District of Mississippi, claiming Johnson had failed to make timely payments

on the loan. Johnson counterclaimed against Deere, alleging, inter alia, that it had revoked

acceptance of the combine because of numerous breaches of various warranties, and

intentional misrepresentations.

       2. STATE I – (Johnson v. Parker Tractor)

¶11.   On October 3, 1995 – one week after Deere filed Federal I – Johnson sued Parker

Tractor in the Coahoma County Circuit Court, claiming negligence and breach of warranty

arising from Parker Tractor’s sale of the combine and failure to properly repair it. Deere was

not a party to this litigation, but it agreed to indemnify and defend Parker Tractor. Parker

Tractor & Implement Co. v. Johnson, 819 So. 2d 1234 (Miss. 2002).

¶12.   In early 1998, while Federal I was still pending, State I proceeded to trial, and the

jury rendered a verdict for Johnson in the amount of $150,000, which the trial court remitted 3

in the amount of $60,000, resulting in a final judgment in favor of Johnson for $90,000. Id.

at 1234. The $90,000 judgment was entered of record in February 1998. Deere, which had

indemnified Parker Tractor, timely posted a supersedeas bond, and Parker Tractor appealed

to this Court.




       3
         Although not at issue here, Justice Carlson’s excellent recent opinion in Dedeaux v.
Pellerin Laundry, Inc., 947 So. 2d 900, 908-09 (Miss. 2007), clarifies the law regarding remittiturs
or additurs.

                                                 4
¶13.   Meanwhile, in July 1998, while the State I appeal was pending, Johnson filed a

motion for a continuance in the Federal I suit – which had been pending for more than two

years – arguing that the ultimate outcome in State I would serve as collateral estoppel, res

judicata, and/or issue preclusion in Federal I.4

¶14.   Johnson’s motion for continuance of Federal I was granted in April 1999.

Nevertheless, for reasons unexplained by the record or the briefs filed by counsel, Federal

I proceeded to trial in June 2000, while the appeal of State I was pending before this Court.

The federal jury returned a verdict on Johnson’s claims against Deere in the amount of

$30,634.36. However, because Johnson had used the combine without paying for it, the jury

also awarded Deere $70,000 as the combine’s reasonable rental value. Deere & Co. v.

Johnson, 271 F.3d 613, 615 (5th Cir. 2001).

¶15.   Both parties appealed. The Fifth Circuit – clearly baffled as to why revocation of

acceptance was raised by Johnson against Deere – nevertheless affirmed Johnson’s verdict.

It reversed the trial court’s finding of a quantum meruit recovery by Deere for Johnson’s use

of the combine (because it was neither pleaded nor raised at trial), but allowed Deere a set-off

which served to render the entire lawsuit “a wash.” The Fifth Circuit then remanded the case

for entry of a “take-nothing” judgment, which the district court entered on January 11, 2002.

Id.




       4
        Deere opposed Johnson’s motion, claiming (contrary to its position in the matter before us
today) the issues in the two lawsuits were different.

                                                5
¶16.   Meanwhile, in the State I suit, this Court affirmed Johnson’s $90,000 State I

judgment in the same month the federal district court entered the “take-nothing” judgment

in Federal I – January 2002. Parker Tractor & Implement Co. v. Johnson, 819 So. 2d

1234, 1242 (Miss. 2002) (“State I”).

       3. STATE II – (First National Bank v. Johnson)

¶17.   Backing up five months to August 2001, while State I and Federal I were both

pending, First National Bank of Clarksdale (“the Bank”) sued Johnson in the County Court

of Coahoma County for collection of an unrelated promissory note. After obtaining a default

judgment against Johnson in September 2001 for $50,439.08, the Bank cast its grateful eyes

on Johnson’s $90,000 State I judgment (once it was affirmed by this Court), regarding the

State I judgment as an excellent source of funds from which to collect its own judgment

against Johnson. The Bank filed a writ of garnishment against the $90,000 judgment and,

as discussed below, Deere later intervened in State II to stop the garnishment.

       4. FEDERAL II – (Deere v. First National Bank and Johnson)

¶18.   Deere had indemnified Parker Tractor for the judgment in State I. Thus, Deere filed

suit against Johnson and First National Bank in the U.S. District Court for the Northern

District of Mississippi, seeking to enjoin the garnishment action. Ordinarily, federal courts

may not issue injunctions against state courts. 28 U.S.C. § 2283 (1948) (“Anti-Injunction

Act”). However, Deere argued that the injunction it sought fit the exceptions under the act.

¶19.   In September 2002, the district court refused to enjoin enforcement of Johnson’s State

I judgment and dismissed Deere’s Federal II complaint for failure to state a claim. Deere

                                             6
appealed, and the following May, in an unpublished opinion, the Fifth Circuit affirmed the

district court’s decision, citing federalism and its intent to protect the integrity of the state

and federal judiciary. Deere & Co. v. Johnson, 67 Fed. Appx. 253 (5th Cir. 2008).

       The interlocutory appeal of State II

¶20.   A month following its unsuccessful efforts in federal court, Deere moved to intervene

in State II, claiming that its indemnity of Parker Tractor in State I provided it with standing

and a sufficient interest in the litigation. Deere was permitted to intervene as an interested

party in State II in October 2004, and it sought to have the county court declare the $90,000

judgment null and void, based upon Federal I’s “take-nothing” judgment.

¶21.   Deere moved for summary judgment in November 2004, which the trial court denied.

The trial court stayed all proceedings in State II and opined that the matter was proper for

an interlocutory appeal to this Court.        Accordingly, Deere filed its application for

interlocutory appeal, raising the following issues:

       I.     Whether the trial court erred in denying Deere’s motion for summary
              judgment by not holding that collection on this Court’s judgment was
              precluded by the federal court judgment being satisfied.

       II.    Whether the trial court erred in its denial of summary judgment by
              holding that the last-in-time doctrine is inapplicable.

       III.   Whether the trial court erred in its denial of summary judgment by
              holding the federal court orders in Federal II to be the law of the case
              in the State II matter.

¶22.   We granted Deere’s application for interlocutory appeal.

                                         ANALYSIS


                                               7
¶23.   Interlocutory appeals are granted only to resolve a question of law, including the

application of facts to that law. Miss. R. App. P. 5.     We employ a de novo standard in

reviewing questions of law. Russell v. Performance Toyota, Inc., 826 So. 2d 719, 721 (Miss.

2002). We also review denials of summary judgment using a de novo standard. Treasure

Bay Corp. v. Ricard, 967 So. 2d 1235, 1238 (Miss. 2007). A motion for summary judgment

may be granted only if “there is no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law.” Id. (citing Miss. R. Civ. P. 56(c)). “The evidence

must be viewed in the light most favorable to the nonmoving party.” Id. (citing Flores v.

Elmer, 938 So. 2d 824, 826 (Miss. 2006)).

                                              I.

¶24.   We begin by addressing an issue not raised by the parties, but one of significant

importance to our judicial system. The precise issue before us is whether to reverse the trial

court’s denial of Deere’s motion for summary judgment. In essence, the issue is whether the

county court may prevent Johnson from proceeding with collection of a judgment he

obtained in the circuit court – a judgment which was affirmed by this Court on appeal, and

was not attacked in the circuit court that rendered the judgment.

¶25.   Although Deere’s brief argues that “the state court judgment is not enforceable,” this

surface argument obscures the logical consequence which follows Deere’s premise. In

effect, Deere asks the county-court judge to hold the State I judgment uncollectible because

it was made void by a judgment rendered in the federal court.



                                              8
¶26.   We know of no statute, rule, or constitutional provision which permits a county court

to invalidate a judgment rendered by a Mississippi circuit court and affirmed by this Court.

Such attacks on a judgment are properly within the purview of Rule 60 of the Mississippi

Rules of Civil Procedure, which provides in part:

       (b) . . . On motion and upon such terms as are just, the court may relieve a
       party or his legal representative from a final judgment, order, or proceeding for
       the following reasons:

              (1)    fraud, misrepresentation, or other misconduct of an
                     adverse party;

              (2)    accident or mistake;

              (3)    newly discovered evidence which by due diligence could
                     not have been discovered in time to move for a new trial
                     under Rule 59(b);

              (4)    the judgment is void;

              (5)    the judgment has been satisfied, released, or discharged,
                     or a prior judgment upon which it is based has been
                     reversed or otherwise vacated, or it is no longer equitable
                     that the judgment should have prospective application;

              (6)    any other reason justifying relief from the judgment.

Miss. R. Civ. P. 60(b). The comment to the rule provides that “[m]otions for relief under

MRCP 60(b) are filed in the original action, rather than as independent actions themselves.”

¶27.   In any case, the record before us says nothing of a Rule 60 motion, and neither party

raised it on appeal. We therefore now proceed to address the issues raised.

                                              II.




                                              9
¶28.   Deere argues that Johnson litigated the same breach-of-warranty causes of action in

State I and Federal I. Citing City of Jackson v. Lakeland Lounge of Jackson, 688 So. 2d

742, 749 (Miss. 1996), Deere argues that there is a commonality in the “underlying facts and

circumstances upon which a claim is asserted and relief is sought from the two actions.”

Deere further asserts that the same issues of damages were argued in both cases because the

causes of action were identical.

¶29.   Based on the facts presented in the record before us, we cannot agree that State I and

Federal I involved identical causes of action, arising out of a commonality of underlying

facts and circumstances. Deere initiated Federal I to collect amounts due pursuant to the

Loan between itself and Johnson. The record provides no evidence that the Loan involved

Parker Tractor.

¶30.   Furthermore, Johnson’s counterclaim against Deere asserted a claim of revocation of

acceptance of the combine, a claim related to the seller, rather than the financier. Johnson’s

State I suit included a claim of negligence, a claim not present in Federal I. And although

both suits involved breach-of-warranty claims, the record does not clearly establish that these

warranty claims are the same. Thus, we are not persuaded that the claims in State I and

Federal I are identical. Since they are not, Deere’s argument – that the State I judgment was

satisfied by the Federal I “take-nothing” judgment – has no merit.

                                             III.

       The “last-in-time” doctrine.



                                              10
¶31.   Deere next argues that we should apply the “last-in-time” doctrine to give precedence

to the Federal I judgment over the State I judgment. According to the Restatement (Second)

of Judgments: “When in two actions inconsistent final judgments are rendered, it is the later,

not the earlier, judgment that is accorded conclusive effect in a third action under the rules

of res judicata.” Restatement (Second) of Judgments § 15 (1982).

¶32.   The comments to Section 15 state, in relevant part, that “when a prior judgment is not

relied upon in a pending action in which it would have had conclusive effect as res judicata,

the judgment in that action is valid even though it is inconsistent with the prior judgment.”

Id. cmts. Deere argues that the judgment in Federal I is controlling because it was rendered

after the judgment in State I, and Johnson did not assert res judicata in Federal I. We reject

Deere’s argument.

¶33.   We begin by pointing out the obvious: The “last-in-time” rule applies only where res

judicata could have applied.

       Res judicata

¶34.   This Court has held that

       four identities must be present before the doctrine of res judicata will be
       applicable: (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.
       Where these four identities are present, the parties will be prevented from re-
       litigating all issues tried in the prior lawsuit, as well as all matters which
       should have been litigated and decided in the prior suit.

Hogan v. Buckingham, 730 So. 2d 15, 17 (Miss. 1998). See also Walton v. Bourgeois, 512

So. 2d 698, 701-702 (Miss. 1987) (internal citations omitted).

                                              11
¶35.   Res judicata requires a finding of all four identities. Because we hold that the second

identity – “identity of the cause of action” – clearly has not been established in this case, we

find it unnecessary to address the other three identities.

¶36.   In State I, Johnson sued Parker Tractor for negligence and breach of warranty. In

Federal I, Deere sued Johnson for breach of his loan agreement, and Johnson counterclaimed

against Deere for breach of its implied and express warranties, breach of the implied

warranty of fitness for a particular purpose, and intentional misrepresentations.

¶37.   Although Deere argues that the same breach-of-warranty claims are raised in both

suits, it is unclear from the record before this Court whether that is so. The warranties for

which a seller is responsible are not necessarily the same warranties for which a

manufacturer is responsible – and the damages may be very different. See Royal

Lincoln-Mercury Sales, Inc. v. Wallace, 415 So. 2d 1024, 1027-28 (Miss. 1982) (holding

the implied warranty of merchantability is applicable only to the seller of a defective

automobile, while the manufacturer could be held liable for breach of express warranties).

Moreover, the cases cited by Deere to support its res judicata argument involve federal and

state cases with identical parties. Clearly, that is not the case here.

¶38.   Further, the federal action includes Johnson’s claim that he revoked acceptance of the

combine. State I includes no such claim, but does include a negligence claim not found in

Federal I. For these reasons, we hold that Deere has failed to establish the second identity

required for res judicata to have conclusive effect and, therefore, the county-court judge in

State II did not commit error in denying summary judgment.

                                              12
¶39.   Finally, contrary to Deere’s implication, Johnson asserted res judicata when he moved

to have Federal I stayed pending the outcome of the State I appeal. Deere fails to convince

us that Johnson should have done more to preserve his res judicata defense.

                                              IV.

¶40.   In its third and final issue raised on appeal, Deere asserts “that the trial court erred in

denying [its] motion . . . for summary judgment by concluding that under the ‘law-of-the-

case’ doctrine, the district court order and the unpublished opinion of the Fifth Circuit in

[Federal II] are the law of the case in [State II].”

¶41.   The federal court in Federal II held the “last-in-time” rule did not apply because there

was no identity of the causes of action in State I and Federal I. Deere argues, however, that

the state court in State II should not have applied this holding from Federal II because it is

not the law of the case in State II. While we agree with Deere that the Federal II holding

is not binding as the law of the case as to State II, Deere’s argument nevertheless fails for

the reasons stated above in section III.

                                       CONCLUSION

¶42.   For all of the above reasons, the Coahoma County Court’s denial of summary

judgment is affirmed.     This case is affirmed and remanded to that court for further

proceedings consistent with this opinion.

¶43.   AFFIRMED AND REMANDED.

    WALLER, C.J., AND CARLSON, P.J., RANDOLPH, LAMAR, CHANDLER
AND PIERCE, JJ., CONCUR. GRAVES, P.J., DISSENTS WITH SEPARATE
WRITTEN OPINION JOINED BY KITCHENS, J.

                                               13
                                        APPENDIX A

Dates          Federal I               State I               State II              Federal II
            Deere v. Johnson      Johnson v. Parker    First National Bank   Deere v. Johnson and
                                                            v. Johnson        First National Bank


9.26.95   Deere sued Johnson
          in the Northern
          District of
          Mississippi for
          payment on a finance
          contract for the
          combine
          ...
          Johnson
          counterclaimed for
          breach of implied
          and express
          warranty, breach of
          the implied warranty
          of fitness for a
          particular purpose,
          and intentional
          misrepresentations.

10.3.95                          Johnson sued Parker
                                 in Coahoma County
                                 Circuit Court for
                                 negligence and
                                 breach of warranty.

2.13.98                          $90,000 judgment in
                                 favor of Johnson
                                 entered in State I.
                                 ...
                                 Parker appealed to
                                 this Court.

7.20.98   Johnson filed a
          motion to continue
          Federal I while
          State I was pending
          on appeal, claiming,
          inter alia, res
          judicata

4.16.99   Federal I was
          continued.


                                              14
11.4.99                             Mississippi Supreme
                                    Court reversed circuit
                                    court’s $90,000
                                    judgment.
                                    ...
                                    Johnson filed a
                                    petition for
                                    rehearing.

6.5.2000   Federal I proceeded
           to trial. Jury verdict
           reached.

8.8.01                                                       First National Bank
                                                             sued Johnson in
                                                             Coahoma County
                                                             Court for payment on
                                                             a promissory note.
                                                             This suit is unrelated
                                                             to the combine at
                                                             issue in State I and
                                                             Federal I.

9.24.01                                                      Default judgment in
                                                             favor of First
                                                             National Bank is
                                                             entered in the amount
                                                             of $50,439.08.

11.12.01   Fifth Circuit
           remanded Federal I
           for entry of “take-
           nothing” judgment.

1.10.02                             Granting rehearing,
                                    the Mississippi
                                    Supreme Court
                                    affirmed the original
                                    $90,000 judgment in
                                    State I.

1.11.02    “Take-nothing”
           judgment entered by
           District Court in
           Federal I.




                                                  15
1.17.02         Writ of Garnishment
                served on Parker to
                collect on the
                $90,000 State I
                judgment.

1.28.02                                  Deere sued Johnson
                                         and First National
                                         Bank in the Northern
                                         District of
                                         Mississippi, seeking
                                         to enjoin
                                         enforcement of the
                                         State I judgment.

9.24.02                                  District Court
                                         dismissed Federal II
                                         for failure to state a
                                         claim.

5.14.03                                  The Fifth Circuit
                                         Court of Appeals
                                         affirmed the District
                                         Court’s dismissal.

6.23.03         Deere moved to
                intervene in State II.

10.11.04        Deere allowed to
                intervene as an
                interested party in
                State II.

11.24.04        Deere moved for
                summary judgment
                in State II.

11.30.05        Coahoma County
                Circuit Court denied
                Deere’s motion for
                summary judgment.
                ...
                Deere appeals denial
                of summary
                judgment in State II
                to this Court.




           16
       GRAVES, PRESIDING JUSTICE, DISSENTING:

¶44.   As the majority correctly states, this case involves an underlying dispute over a John

Deere & Company (Deere) combine purchased by Edward Johnson from Parker Tractor &

Implement Company (Parker). I disagree with the majority’s analysis of the last-in-time

doctrine and res judicata as they apply to the facts of this case. The majority’s analysis and

conclusion are inconsistent with this Court’s prior caselaw regarding res judicata and the last-

in-time doctrine.      Today’s opinion only serves to cloud and confuse this area of law.

Therefore, I respectfully dissent.

                                                    I.

¶45.   The factual and procedural history in this case are somewhat complex. Therefore, I will

briefly restate the facts. On September 26, 1995, Deere sued Johnson in the Northern District

of Mississippi (in what the majority terms “Federal I”) to recover the balance of the purchase

price for the combine that Johnson bought from Parker.5 Johnson counterclaimed against

Deere for, inter alia, breach of implied and express warranties.

¶46.   On October 3, 1995, Johnson sued Parker in Coahoma County Circuit Court (in what

the majority terms “State I”) for, inter alia, breach of implied and express warranties and

sought actual and punitive damages. The state case proceeded to trial, and Johnson was

ultimately awarded $90,000 on February 13, 1998. Parker subsequently appealed to this Court,

and Deere posted a supersedeas bond to stay the execution of the judgment.



         5
             See Figure 1 for a timeline of relevant events in the procedural history of these cases.

                                                   17
¶47.   On July 20, 1998, Johnson filed a motion to continue the case in federal court (in what

the majority terms “Federal I”), citing the pending appeal in state court and referencing the

legal principles of collateral estoppel, res judicata, and issue preclusion. Deere filed a motion

in opposition, but on April 16, 1999, the district court granted Johnson’s motion for a

continuance.

¶48.   The majority does not mention that, after reviewing the appeal in state court (in “State

I”), this Court reversed the circuit court judgment and ordered a new trial on November 4,

1999. Parker Tractor & Implement Co. v. Johnson, No. 98-CA-00457-SCT, 1999 Miss.

LEXIS 346 (Miss. Nov. 4, 1999). However, upon Johnson’s petition for rehearing, this Court

subsequently affirmed the circuit court’s $90,000 judgment on January 10, 2002. Parker

Tractor & Implement Co. v. Johnson, 819 So. 2d 1234 (Miss. 2002).

¶49.   Although the federal case (“Federal I”) was initially continued in 1999, for some reason

that is not clear from the record, the case proceeded to trial on June 5, 2000. The federal jury

returned a verdict awarding $30,634.36 to Johnson and $70,000 to Deere. An appeal and

cross-appeal were taken and, on November 12, 2001, the Fifth Circuit affirmed the judgment

in favor of Johnson, but reversed the jury awards, declaring that the case was a “wash” and that

neither party would receive an award. Deere & Co. v. Johnson, 271 F.3d 613 (5th Cir. 2001).

The Fifth Circuit accordingly remanded the case for the entry of a “take-nothing” judgment.

Id.




                                               18
¶50.   Meanwhile, the present case was initiated when First National Bank of Clarksdale (First

National Bank) sued Johnson in Coahoma County Court on August 8, 2001 (in what the

majority terms “State II”) for defaulting on a promissory note. On September 24, 2001, a

default judgment was entered against Johnson for $50,439.08. First National Bank then

obtained a writ of garnishment against Parker on the basis of the $90,000 judgment entered by

the circuit court.

¶51.   On January 28, 2002, Deere sued Johnson and First National Bank in the Northern

District of Mississippi (in what the majority terms “Federal II”) to enjoin enforcement of the

circuit court’s $90,000 judgment, citing the binding effect of the federal court’s “take-nothing”

judgment. Johnson subsequently moved to dismiss. On September 24, 2002, the district court

dismissed the case for failure to state a claim because “the state court case was tried to final

judgment before the federal court case,” making the state court’s $90,000 judgment binding.

The district court also cited the Anti-Injunction Act, 28 U.S.C. § 2283 (1948). On May 14,

2003, the Fifth Circuit affirmed the district court’s ruling. Deere & Co. v. Johnson, 67 Fed.

Appx. 253 (5th Cir. 2003).

¶52.   On June 23, 2003, Deere moved to intervene in First National Bank’s garnishment

action (“State II”), as it had previously agreed to indemnify Parker for any damages related

to the dispute over the combine. Deere later moved for summary judgment on November 24,

2004. The county court denied the motion for summary judgment, and Deere filed this

interlocutory appeal.



                                               19
                                          Figure 1.

Federal Court                                       State Court

Sept. 26, 1995 - Deere sues Johnson in              Oct. 3, 1995 - Johnson sues Parker in
Northern District of Mississippi.                   Coahoma County Circuit Court.

...

                                                    Feb. 13, 1998 - Coahoma County Circuit
                                                    Court enters $90,000 judgment in favor
                                                    of Johnson.

July 20, 1998 - Johnson files motion to             Parker appeals.
continue case in Northern District of
Mississippi.

Apr. 16, 1999 - District Court grants motion
to continue.

                                                    Nov. 4, 1999 - Mississippi Supreme Court
                                                    reverses circuit court’s $90,000 judgment.
                                                    Johnson files a petition for rehearing.
June 5, 2000 - Case proceeds to trial in
Northern District of Mississippi; jury verdict
is reached.

Appeal and cross-appeal are taken.

                                                    Aug. 8, 2001 - First National Bank sues
                                                    Johnson in Coahoma County Court.
                                                    Sept. 24, 2001 - Default judgment is
                                                    entered; writ of garnishment is obtained.

Nov. 12, 2001 - Fifth Circuit remands for
entry of “take-nothing” judgment.

Jan. 28, 2002 - Deere sues Johnson and First        Jan. 10, 2002 - Mississippi Supreme
National Bank in Northern District of               Court affirms circuit court’s $90,000
Mississippi.                                        judgment on rehearing.

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Sept. 24, 2002 - District Court dismisses case
for failure to state a claim.
Deere appeals.

May 14, 2003 - Fifth Circuit affirms dismissal. June 23, 2003 - Deere moves to intervene
                                                in First National Bank suit.

                                                     Nov. 24, 2004 - Deere moves for summary
                                                     judgment.

                                                     Nov. 30, 2005 - Coahoma County
                                                     Court denies summary judgment.
                                                     Deere appeals.

                                               II.

¶53.   This Court has adopted and applied the last-in-time rule. State ex rel. Moore v. Molpus,

578 So. 2d 624, 641 (Miss. 1991) (“[W]hen inconsistent final judgments are rendered in two

actions, the judgment more recent in time is given conclusive effect in a later action.” (quoting

Dimock v. Revere Copper Co., 117 U.S. 559, 566, 6 S. Ct. 855, 857-58, 29 L. Ed. 994, 997

(1886); Reimer v. Smith, 663 F.2d 1316, 1327 (5th Cir. 1981); Garden Suburbs Golf &

Country Club, Inc. v. Murrell, 180 F.2d 435, 436 (5th Cir. 1950); Donald v. J. J. White

Lumber Co., 68 F.2d 441, 442, (5th Cir. 1934); Marsh v. Mandeville, 28 Miss. 122, 128

(1854); Restatement (Second) of Judgments § 15 (1977); 2 E. Tuttle, Freeman On Judgments

§ 629 (5th ed. 1925))); see also Treinies v. Sunshine Mining Co., 308 U.S. 66, 60 S. Ct. 44,

84 L. Ed. 85 (1939). In Molpus, this Court held that a later case had conclusive effect, despite

an earlier, inconsistent decision regarding the same state constitutional amendment. State ex

rel. Moore v. Molpus, 578 So. 2d 624 (Miss. 1991). The dispute in Molpus involved a



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constitutional amendment from 1914 that gave the electorate the power to enact constitutional

amendments and legislative measures and to reject acts passed by the Legislature. Id. at 627.

After the amendment was passed, its validity was challenged, and this Court ruled that the

amendment had been properly submitted, ratified, and added to the Constitution. State ex rel.

Howie v. Brantley, 74 So. 662, 664 (Miss. 1917). However, five years later, in a case

involving parties distinct from those in Brantley, this Court held that the same constitutional

amendment was void. Power v. Robertson, 93 So. 769, 775-77 (Miss. 1922). In 1991, the

plaintiffs in Molpus sought a declaratory judgment that the constitutional amendment from

1914 was valid and enforceable. Molpus, 578 So. 2d at 631. The defendant asserted res

judicata and collateral estoppel and cited this Court’s decision in Power. Id. After a lengthy

analysis, this Court ultimately held that, of the two inconsistent judgments regarding the 1914

constitutional amendment that were reached in Brantley and then in Power, the more recent

judgment in Power had binding effect. Id. at 641-42.

¶54.   The last-in-time rule is also explained in the Restatements of the Law. The Restatement

(Second) of Judgments sets out the last-in-time rule: “When in two actions inconsistent final

judgments are rendered, it is the later, not the earlier, judgment that is accorded conclusive

effect in a third action under the rules of res judicata.” Restatement (Second) of Judgments §

15 (1982). The comments to Section 15 state, in relevant part, that “when a prior judgment is

not relied upon in a pending action in which it would have had conclusive effect as res




                                              22
judicata, the judgment in that action is valid even though it is inconsistent with the prior

judgment.” Id. cmts.

¶55.   Applying the last-in-time rule to this case, the federal court’s “take-nothing” judgment

should be given conclusive effect. This Court’s affirmance of the circuit court’s $90,000

judgment was handed down in 2002, after the federal court’s “take-nothing” judgment was

entered in 2001. However, this Court’s affirmance relates back to, and is considered effective

as of, the date that the judgment was originally entered by the circuit court in 1998. See

Norman v. Bucklew, 684 So. 2d 1246, 1254 (Miss. 1996) (citing Smith v. Malouf, 597 So. 2d

1299, 1301 (Miss. 1992)); see also Early v. Bd. of Supervisors, 181 So. 132, 132 (Miss. 1938).

In Norman, this Court stated that if a judgment is affirmed on appeal with supersedeas, “the

effect thereof is to establish or confirm the validity of the judgment from and as the date of its

rendition in the court of original jurisdiction.” Norman, 684 So. 2d at 1254. Therefore, in this

case, of the two judgments in question, the federal court’s “take-nothing” judgment is the last

in time. See Figure 1.

¶56.   Furthermore, contrary to the majority’s analysis, giving the federal court’s “take-

nothing” judgment conclusive effect is consistent with the rules of res judicata. Res judicata

applies when four identities are present: 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. Little v. V & G

Welding Supply, Inc., 704 So. 2d 1336, 1338-39 (Miss. 1997); Norman, 684 So. 2d at 1253.



                                                23
¶57.   The requirements for res judicata have been met in this case. First, the subject matter

of the judgments involved – whether Deere or Parker is liable to Johnson for breach of implied

and express warranties related to the allegedly faulty Deere combine that Johnson bought from

Parker – is identical. Second, the causes of action are identical because Johnson’s claims

against Deere and Parker arise out of the same transaction – Johnson’s purchase of the Deere

combine from Parker. The majority appears unaware of the fact that Mississippi applies a

transactional approach to determining whether causes of action are identical for purposes of

applying res judicata. Harrison v. Chandler-Sampson Ins., Inc., 891 So. 2d 224, 234 (Miss.

2005) (quoting Nevada v. U.S., 463 U.S. 110, 131 n.12, 103 S. Ct. 2906, 2919, 77 L. Ed. 2d

509, 525 (1983)) (finding that “causes of actions are the same if they arise from the same

‘transaction’”); Walton v. Bourgeois, 512 So. 2d 698, 701 (Miss. 1987) (concluding that res

judicata barred plaintiff’s second suit because “the underlying facts and circumstances are the

same as those involved in the first suit”). Third, identity of the parties is present, since Parker

(whom Johnson sued in the state case) and Deere (whom Johnson asserted counterclaims

against in the federal case) are in privity as dealer and manufacturer, respectively. This Court

has held that, for purposes of res judicata, parties in privity qualify as identical parties. Little,

704 So. 2d at 1339; Norman, 684 So. 2d at 1253; Molpus, 578 So. 2d at 640. Fourth, the

quality and character of the parties against whom the claims are made are also identical –

Parker and Deere are corporate entities involved in selling the combine in question to Johnson.




                                                 24
¶58.   In this case, Johnson initially sought a continuance of the federal court case by raising

the defense of res judicata, but for some reason not explained in the record, the federal case

eventually proceeded to a trial on the merits. The record does not suggest that Johnson made

any further attempt to preserve his res judicata defense beyond seeking the initial continuance.

Johnson has not provided any explanation of what occurred in federal court such that the case

proceeded to trial despite the fact that a continuance had been granted. In allowing the case

to proceed to trial, Johnson waived his res judicata defense. The comments to the Restatement

(Second) on Judgments state that “[t]he considerations of policy which support the doctrine

of res judicata are not so strong as to require that the court apply them of its own motion when

the party himself has failed to claim such benefits as may flow from them.” Restatement

(Second) on Judgments § 15 cmts. Along the same vein, this Court stated in Molpus that “in

Power [i.e., the more recent of the two judgments involved] no one pleaded collateral estoppel,

and we accept that then as now such matters are in the nature of affirmative defenses which

are waived if not timely pleaded.” Molpus, 578 So. 2d at 641 (citing Miss. R. Civ. P. 8(c))

(footnote omitted). Also, the pending appeal in state court would not have precluded Johnson

from raising the defense of res judicata. This Court has previously adopted the view that an

“appeal to the Supreme Court of Mississippi does not prevent [the judgment being appealed]

from being res judicata.” Smith v. Malouf, 597 So. 2d 1299, 1301 (Miss. 1992) (quoting

Miss. Power & Light Co. v. Town of Coldwater, 168 F. Supp. 463, 476 (N.D. Miss. 1958)).

This Court has also recognized that “[t]he various states have ruled with virtual unanimity that



                                              25
a judgment is ‘final’ for res judicata and collateral estoppel purposes even though pending on

appeal.” Norman, 684 So. 2d at 1255 (citations omitted).

¶59.   It should further be noted that Johnson did not argue to the federal court that it should

abstain from adjudicating the dispute since there was ongoing parallel litigation taking place

in state court regarding the same cause of action. See Colo. River Water Conservation Dist.

v. U.S., 424 U.S. 800, 96 S. Ct. 1236, 47 L. Ed. 2d 483 (1976). Johnson failed to seek to

prevent the federal case from proceeding to trial and reaching a final judgment. He should now

be bound by the federal judgment pursuant to the last-in-time rule.

¶60.   The last-in-time rule dictates that the federal court’s “take-nothing” judgment has

conclusive effect in this matter. As a result, First National Bank cannot recover Johnson’s debt

from Deere through the writ of garnishment obtained on the basis of the circuit court’s $90,000

judgment. Viewing all evidence in the light most favorable to First National Bank, the county

court should have found for Deere as a matter of law on this ground and granted summary

judgment. Therefore, I respectfully dissent.

       KITCHENS, J., JOINS THIS OPINION.




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