        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2016-CA-00928-COA

CURTIS RAY MCCARTY JR.                                                  APPELLANT/
                                                                    CROSS-APPELLEE

v.

ARTHUR WOOD III AND PAULA WOOD                                          APPELLEES/
                                                                 CROSS-APPELLANTS

DATE OF JUDGMENT:                          03/01/2016
TRIAL JUDGE:                               HON. LESTER F. WILLIAMSON JR.
COURT FROM WHICH APPEALED:                 WAYNE COUNTY SPECIAL COURT OF
                                           EMINENT DOMAIN
ATTORNEYS FOR APPELLANT:                   J. RICHARD BARRY
                                           JAMES CORNELIUS GRIFFIN
ATTORNEYS FOR APPELLEES:                   TERRY L. CAVES
                                           RISHER GRANTHAM CAVES
NATURE OF THE CASE:                        CIVIL - EMINENT DOMAIN
DISPOSITION:                               ON DIRECT APPEAL: REVERSED AND
                                           REMANDED. ON CROSS-APPEAL:
                                           AFFIRMED - 01/23/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       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, Wood1 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



       1
         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.

                                             2
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.



                                              3
¶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




                                              4
the section of the private road on its land.2 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



       2
           Based on this agreement, the court entered an agreed order dismissing Plum Creek.

                                              5
estoppel (which Wood raises as an alternative ground for affirmance).3 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.”4 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


       3
         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).
       4
        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).

                                               6
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



                                                7
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.”

                                               8
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



                                               9
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 (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



                                                 10
‘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.5

¶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


       5
        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).

                                              11
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

                                              12
       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




                                             13
grounds for establishing access to his property.6 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.

       6
       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).

                                             14
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.7

¶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

       7
        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).

                                              15
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,8

Wood cannot show that the chancery court actually decided that issue.


       8
         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.

                                               16
¶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



                                             17
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.9

                                      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,

       9
         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.

                                              18
WESTBROOKS AND TINDELL, JJ., CONCUR.   IRVING, P.J., DISSENTS
WITHOUT SEPARATE WRITTEN OPINION.




                           19
