              IN THE SUPREME COURT OF MISSISSIPPI

                      NO. 2001-CA-01097-SCT


RANDELL G. TAYLOR

v.

DONALD E. TAYLOR


DATE OF JUDGMENT:              6/26/2001
TRIAL JUDGE:                   HON. R. I. PRICHARD, III
COURT FROM WHICH APPEALED:     PEARL RIVER COUNTY CIRCUIT
                               COURT
ATTORNEYS FOR APPELLANT:       JOHN D. SMALLWOOD
                               GLENN LOUIS WHITE
ATTORNEYS FOR APPELLEE:        HAROLD WAITS MELVIN
                               PATRICIA FRANCINE MELVIN
NATURE OF THE CASE:            CIVIL - PERSONAL INJURY
DISPOSITION:                   AFFIRMED - 01/23/2003
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

                      CONSOLIDATED WITH
                       NO. 97-CA-00610-SCT

STEVE R. TAYLOR, INDIVIDUALLY AND AS
GUARDIAN OF THE MINOR, RANDELL G.
TAYLOR

v.

GENERAL MOTORS CORPORATION AND
ALLSTATE INSURANCE COMPANY

DATE OF JUDGMENT:              4/7/1997
TRIAL JUDGE:                   HON. R. I. PRICHARD, III
COURT FROM WHICH APPEALED:     PEARL RIVER COUNTY CIRCUIT
                               COURT
ATTORNEYS FOR APPELLANT:                    GLENN LOUIS WHITE
                                            SAMUEL PEARSON WESTMORELAND
ATTORNEYS FOR APPELLEES:                    GENE D. BERRY
                                            JAMES (JAY) R. FOSTER, II
                                            ROBERT W. ATKINSON
NATURE OF THE CASE:                         CIVIL - OTHER
DISPOSITION:                                AFFIRMED - 01/23/2003
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



       EN BANC.

       CARLSON, JUSTICE, FOR THE COURT:

¶1.    Randell G. Taylor appeals from the judgment of the trial court which dismissed his

lawsuit against Donald E. Taylor with prejudice pursuant to Miss. R. Civ. P. 41(b), Miss.

Code Ann. § 15-1-49 (1995), and the legal doctrine of res judicata. Because we find this

action was properly dismissed, we affirm the judgment of the Circuit Court of Pearl River

County.

               FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶2.    On July 22, 1993, a single-car accident occurred while Randell G. Taylor ("Randell"),

then a minor,1 was a passenger in the car driven by his uncle, Donald E. Taylor ("Donald").

On July 19, 1996, Randell's father, Steven R. Taylor, filed suit in state court on behalf of

Randell against Donald, Allstate Insurance, Company and General Motors Corporation. The

circuit court granted the defendants' motion to dismiss as to all three defendants because




       1
        Randell was born on September 22, 1978.

                                             2
Randell's counsel, a Louisiana attorney, did not qualify pro hac vice.2 The complaint was

also dismissed as to Donald for failure to serve personal process. These orders dismissing

the complaint did not include the phrase "with prejudice," but were labeled "full and final

orders."

¶3.     Randell appealed that decision to this Court. While on appeal, attorneys for Randell

and Donald filed a motion to dismiss Donald as a party to the appeal which contained a

stipulation of dismissal with prejudice. This Court then rendered a decision which included

only General Motors and Allstate as appellees finding that the trial court had properly

dismissed the case, without prejudice, because Randell's attorneys had failed to qualify pro

hac vice. Taylor v. Gen. Motors Corp., 717 So. 2d 747 (Miss. 1998).

¶4.    Randell then filed a second suit in circuit court on December 7, 1998, against Donald,

General Motors and Allstate.3 Process was again never served on Donald. The circuit court

also dismissed this suit with prejudice as to Donald. Randell reached a settlement with

General Motors and Allstate.

¶5.    On October 9, 2000, Randell filed a third suit against Donald in circuit court alleging

that Donald was negligent in driving the car the day of the accident.4 The trial court granted


       2
       See M.R.A.P. 46(b). This Rule has been amended as published on January 16, 2003, effective
on March 1, 2003; however, the amended Rule does not apply in the case sub judice.
       3
        This second suit was styled “Randell Taylor v. General Motors Corporation, Donald E.
Taylor, and Allstate Insurance Company.” Though Randell was only twenty years of age, this suit
makes no mention of Randell’s minor status. In fact, it is interesting to note that Paragraph 2 of the
Complaint states “[t]hat the Plaintiff has filed a timely action under Mississippi Code Annotated § 15-
1-59,” which is the minor’s savings clause.
       4
       This third suit was styled “Randell Taylor v. Donald Taylor.” By then, Randell was twenty-
two years of age.

                                                  3
Donald's motion to dismiss under the doctrine of res judicata because the first suit against

Donald was dismissed for lack of service of process and, on appeal, both parties entered into

a stipulation of dismissal with prejudice. The trial court further found that the statute of

limitations had run. It is from this judgment that Randell now appeals and asserts the

following issues which have been restated for the sake of clarity:

       I.     WHETHER THE CIRCUIT COURT COMMITTED ERROR IN
              DISMISSING THE SUIT BECAUSE A DISMISSAL PURSUANT
              TO MISS. R. CIV. P. 4(H) IS WITHOUT PREJUDICE.

       II.    WHETHER THE CIRCUIT COURT COMMITTED ERROR IN
              FINDING THAT THE STATUTE OF LIMITATIONS HAD RUN
              IN AN ACTION WHERE A MINOR CHILD WAS THE
              INJURED PARTY.

       III.   WHETHER THE CIRCUIT COURT COMMITTED ERROR IN
              DISMISSING RANDELL'S CASE BASED ON MISS. R. CIV. P.
              41.

       IV.    WHETHER THE CIRCUIT COURT COMMITTED ERROR IN
              FINDING RANDELL'S CASE WAS BARRED UNDER THE
              DOCTRINE OF RES JUDICATA.

                                       DISCUSSION

       I.     WHETHER THE CIRCUIT COURT COMMITTED ERROR IN
              DISMISSING THE SUIT BECAUSE A DISMISSAL PURSUANT
              TO MISS. R. CIV. P. 4(H) IS WITHOUT PREJUDICE.

       III.   WHETHER THE CIRCUIT COURT COMMITTED ERROR IN
              DISMISSING RANDELL'S CASE BASED ON MISS. R. CIV. P.
              41.

¶6.    In the interest of brevity and clarity, this Court will discuss Issues I and III together.




                                               4
Two suits were filed by Randell's father, on Randell's behalf, against Donald. Both were

dismissed for failure to properly serve process on Donald. The first suit was also dismissed

under Miss. R. Civ. P. 41(b) because Randell's attorney failed to qualify pro hac vice.

¶7.    Randell argues that these dismissals were without prejudice and do not bar his third

suit against Donald. However, Donald argues that a dismissal under Miss. R. Civ. P. 41(b)

is with prejudice and operates as an adjudication upon the merits citing the comment to Miss.

R. Civ. P. 41.

¶8.    In Taylor v. General Motors Corp., 717 So.2d 747 (Miss. 1998) ("Taylor I"), this

Court specifically stated that the dismissal under Rule 41(b) was without prejudice as to the

claim of Randell, a minor.

       However, the dismissal is without prejudice as to the claim of Taylor's minor
       son, against whom the statute of limitations, pursuant to Miss. Code Ann. §
       15-1-59 (1995), does not begin to run until the son attains his twenty first
       birthday. The minor's claim remains viable for this time period should a
       determination be made to pursue the same.

Id. at 750.

       IV.       WHETHER THE CIRCUIT COURT COMMITTED ERROR IN
                 FINDING RANDELL'S CASE WAS BARRED UNDER THE
                 DOCTRINE OF RES JUDICATA.

¶9.    The first case in this trilogy, which was filed in Pearl River County Circuit Court, was

styled “Steve R. Taylor, both individually and as guardian of the minor, Randell G. Taylor

versus General Motors Corporation, Donald S. Taylor and Allstate Insurance Company,” and

was assigned cause number 96-0174 on the docket of that court. On April 7, 1997, Judge




                                              5
Prichard entered an Order Denying Motion for Admission to Practice Pro Hac Vice,5 and on

the same date, Judge Prichard likewise entered an Order Granting Defendant’s Motion to

Dismiss as to Donald S. Taylor, because of the plaintiff’s failure to obtain Rule 4 process

upon Donald.6 More specifically the circuit judge found that Steve had failed to effect

proper process upon Donald within the required 120 days as set out in Miss. R. Civ. P. 4(h).

While the dismissal order did not contain the language “with prejudice” or “without

prejudice," the clear language of Miss. R. Civ. P. 4(h) states that such dismissal shall be

“without prejudice.”

¶10.   It is clear as to what the issue was in Taylor I. We find the following language in

Taylor I:

       Due to [the lawyer’s] rejected affidavit, the trial court denied him admission
       to practice before the court in the instant matter and entered an order
       dismissing the complaint and cause of action. It is from this dismissal that
       Taylor appeals to this Court asserting the following issue:

               WHETHER THE TRIAL COURT’S DISMISSAL OF TAYLOR’S
               CAUSE OF ACTION, AS A PENALTY FOR HIS OUT-OF-
               STATE ATTORNEY’S FAILURE TO SUBMIT A PROPER
               AFFIDAVIT IN SUPPORT OF HIS MOTION TO APPEAR PRO
               HAC VICE, IS AN INAPPROPRIATELY EXTREME AND
               HARSH SANCTION WHEN TAYLOR IS REPRESENTED BY
               TWO DULY LICENSED MISSISSIPPI ATTORNEYS WHO
               HAVE PROPERLY ENTERED AN APPEARANCE IN THE
               CASE.

717 So.2d at 748.




       5
         This order not only denied the request of the plaintiff’s attorney to be admitted to practice
in this case pro hac vice, but also struck all pleadings and dismissed the case.
       6
        Miss. R. Civ. P. 4.

                                                  6
¶11.   On September 8, 1997, while Taylor I was pending on appeal before this Court, Steve

and Donald filed in this Court a document entitled “Stipulation of Dismissal of Appellee,

Donald S. Taylor [M.R.A.P. 42(b)].” The stipulation was signed by the attorneys for Steve

and Donald and stated in pertinent part:

       COMES NOW the Appellant, Steve R. Taylor, and Appellee, Donald S.
       Taylor, and under M.R.A.P. 42(b) files this Stipulation to Dismiss Appellee,
       Donald S. Taylor, with prejudice, and costs being assessed to the Appellant.

       WHEREFORE PREMISES CONSIDERED, Appellant, Steve R. Taylor, and
       Appellee, Donald S. Taylor jointly move the Court to dismiss the Appeal, as
       pertains to this Appellee, and assess all costs to the Appellant.

(emphasis added). M.R.A.P. 42 provides the procedure for dismissing a party from an

appeal:

       (b) Dismissal in the Appellate Court. After the appeal has been docketed
       with the clerk of the Supreme Court, an appeal may be dismissed on motion
       of the appellant upon such terms as may be agreed upon by the parties or
       fixed by the Supreme Court or, if the case has been assigned to the Court of
       Appeals, by the Court of Appeals. If the parties to an appeal or other
       proceeding or their attorneys agree that the proceeding be dismissed, they may
       file a joint motion to dismiss specifying the terms as to the payment of costs
       and that all fees have been paid.

(emphasis added).

¶12.   Pursuant to the filing of this Stipulation, this Court entered the following Order, dated

December 8, 1997, and filed on December 12, 1997:

       This matter came before a panel of this Court consisting of Prather, P.J.,
       Pittman and McRae, JJ., on motion of appellee Donald Taylor to be dismissed
       from the appeal of this matter. Appellant has joined in the motion and the




                                               7
       remaining appellees have filed no objection.7 The Court finds that the motion
       should be granted.

       IT IS THEREFORE ORDERED that the motion to dismiss be and is granted
       and that appellee Donald Taylor shall be dismissed as a party to this appeal
       upon entry of this order.

Although this Court, in its order dismissing Donald as a party to the appeal, did not indicate

the dismissal was with prejudice, the stipulation clearly stated the parties agreed to dismiss

Donald with prejudice. Therefore, pursuant to M.R.A.P. 42(b), the appeal was dismissed on

the motion of the parties pursuant to the terms agreed upon in their stipulation. Those terms

specifically included the dismissal of Donald from the appeal with prejudice.

¶13.   With Donald no longer a party to the appeal in Taylor I, this Court, in due course,

issued an opinion affirming the judgment of the circuit court, and concluded by stating:

       Therefore, the lower court’s decision to dismiss this case is affirmed.
       However, the dismissal is without prejudice as to the claim of Taylor’s minor
       son, against whom the statute of limitations, pursuant to Miss. Code Ann.
       § 15-1-59 (1995), does not begin to run until the son attains his twenty first
       birthday. The minor’s claim remains viable for this time period should a
       determination be made to pursue the same.

717 So.2d at 750.

¶14.   That is all well and good as to Randell’s claims remaining viable under the savings

clause, Miss. Code Ann. § 15-1-59 (1995). But Randell’s claims could only be asserted as

to those parties who might have potential liability. A party, who has been dismissed, with

prejudice, such as Donald, has no further liability as to Steve or Randell as a result of the


       7
         The appellant and remaining appellees to which reference is made in the order, as so noted
in the style of the order, were “Steve R. Taylor, Both Individually and as Guardian of the Minor,
Randell G. Taylor” and “General Motors Corporation, Donald S. Taylor and Allstate Insurance
Company.”

                                                8
cause of action which accrued on July 22, 1993. Otherwise, what does the phrase “dismissal

with prejudice” mean?

¶15.   Steve Taylor appeared in the first lawsuit as “next friend” of Randell Taylor as

authorized by Miss. R. Civ. P. 17(c). Once a minor, through competent representative and

legal counsel has filed suit, he is bound by the actions of his representatives. A parent

appearing as next friend has authority under Miss. R. Civ. P. 17(c) to enter into a stipulation,

subject to approval by the court, which approval was given. As Steve and Randell have

never denied the stipulation, or attacked it for fraud, mistake, accident or misrepresentation

by an adverse party (Miss. R. Civ. P. 60), then Steve and Randell are stating to the Court that

the stipulation was knowingly, correctly, knowledgeably entered into by a competent

Mississippi counsel for Steve and Randell.

¶16.   The effect of a consent judgment or decree has been addressed by this Court in

holding that a “consent judgment acquires the incidents of and will be given the same force

and effect as, judgment rendered after litigation.” Guthrie v. Guthrie, 233 Miss. 550, 556-57,

102 So. 2d 381, 383 (1958). In addition, “consent judgments receive the same force as

regular judgments, in binding parties under collateral estoppel and res judicata.” Id.

¶17.   Mississippi law on res judicata is well established. Generally, four identities are

required to establish collateral estoppel, as well as res judicata: identity of the subject matter

of the action, identity of the cause of action, identity of the parties to the cause of action, and

identity of the equality or character of person against whom the claim is made. Dunaway

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



                                                9
¶18.   This third suit is based on the same accident as the earlier suit, by the same plaintiff

against the same defendant, seeking the same relief for the same injuries in the same court.

The only difference is that Randell Taylor is no longer a minor and has brought this suit on

his own behalf. Donald has long ago been dismissed from this cause of action “with

prejudice.” As Donald’s counsel so ably inquired in his brief, “Can the Appellant be faced

with his signed Stipulation of Dismissal with prejudice and contend he is not bound by the

strongest words in legal practice?”

¶19.   The circuit court did not err in dismissing the suit by Randell based on res judicata.

       II.    WHETHER THE CIRCUIT COURT COMMITTED ERROR IN
              FINDING THAT THE STATUTE OF LIMITATIONS HAD RUN
              IN AN ACTION WHERE A MINOR CHILD WAS THE
              INJURED PARTY.

¶20.   Because we find Randell's suit is barred under the doctrine of res judicata, this issue

will not be addressed by this Court as it is moot.

                                      CONCLUSION

¶21.   This Court finds the trial court did not err in dismissing this case based on Miss. R.

Civ. P. 41(b) and res judicata. Therefore, the final judgment of dismissal entered by the

Circuit Court of Pearl River County is affirmed.

¶22.   AFFIRMED.

    PITTMAN, C.J., SMITH, P.J., WALLER AND EASLEY, JJ., CONCUR.
COBB, J., CONCURS IN RESULT ONLY. DIAZ, J., DISSENTS WITH SEPARATE
WRITTEN OPINION JOINED BY McRAE, P.J., AND GRAVES, J.




       DIAZ, JUSTICE, DISSENTING:

                                              10
¶23.   The first suit brought in circuit court was dismissed as to Donald E. Taylor for failure

of personal process and because the attorney for Randell G. Taylor did not qualify pro hac

vice. Randell appealed this decision to this Court. Attorneys for Randell and Donald moved

to dismiss Donald as a party to the appeal. This Court then rendered a decision which

included only General Motors Corp. and Allstate Insurance Co. as appellees finding that the

trial court had properly dismissed the case, without prejudice, because Randell's attorneys

had failed to qualify pro hac vice. Taylor v. Gen. Motors Corp., 717 So.2d 747 (Miss. 1998)

(Taylor I). The stipulation agreement entered into by Randell's father, on Randell's behalf,

and Donald under M.R.A.P. 42(b) only dismissed Donald as a party in the appeal.

¶24.   This Court dwells on the fact that the agreement stated that Donald was to be

dismissed with prejudice, but the order issued by this Court granting the stipulation says

nothing about whether the dismissal was with or without prejudice. This question of whether

the stipulation or order is controlling should have no effect on this suit because this case was

brought in circuit court, not an appeals court. The comment to Rule 42(b) notes that once

an appeal is voluntarily dismissed, no further appeal may be brought, but this suit was not

an appeal.

¶25.   Moreover, even if it did have an effect, it would still not bar this suit because the

"stipulation agreement" Donald relies upon including the language "with prejudice" is, in

reality, merely a motion to dismiss presented to this Court pursuant to M.R.A.P. 42(b). The

order which dismisses Donald as a party to that appeal makes no mention of whether the

dismissal was with or without prejudice. The comment to Rule 42(b) recognizes, “an

                                              11
appellant’s right to dismiss an appeal is not absolute, but subject to the discretion of the

court.” See also Wolf v. Miss. Valley Trust & Co., 130 Miss. 144, 93 So. 581 (1922).

Although the majority's argument that “the appeal was dismissed on the motion of the parties

pursuant to the terms agreed upon in their stipulation” was modeled after the language of

Rule 42(b), that rule also includes the language “upon such terms as may be agreed upon by

the parties or as fixed by the Supreme Court.” (emphasis added).

¶26.   This suit is simply the suit Randell was entitled to bring because his first case was

dismissed without prejudice pursuant to M.R.C.P. 4(h), and because his attorney did not

qualify pro hac vice, which this Court determined was also without prejudice.              By

concluding that Randell could bring suit against General Motors and Allstate and not Donald,

the majority says in effect, that the law applies differently to people although the first suit

was dismissed against all parties for the same reason.

¶27.   Furthermore, since Randell's suit was not barred under the doctrine of res judicata,

the question of whether the statute of limitations has run must be addressed. Randell was

fifteen years old when the accident occurred. He turned twenty-one on September 22, 1999.

Donald argues, and the circuit court found, that the statute of limitations was not tolled

because Randell's father filed suit on Randell's behalf.

¶28.   Miss. Code Ann. § 15-1-59 (1995) provides:

       If any person entitled to bring any of the personal actions mentioned shall, at
       the time at which the cause of action accrued, be under the disability of
       infancy or unsoundness of mind, he may bring the actions within the times in
       this chapter respectively limited, after his disability shall be removed as
       provided by law. However, the saving in favor of persons under disability of
       unsoundness of mind shall never extend longer than twenty-one (21) years.


                                              12
The statute does not state that the statute of limitations will not be tolled if the minor is

represented by a next friend or guardian. Furthermore, in Taylor I, this Court specifically

found that:

       the dismissal is without prejudice as to the claim of Taylor's minor son, against
       whom the statute of limitations, pursuant to Miss. Code Ann. § 15-1-59
       (1995), does not begin to run until the son attains his twenty first birthday. The
       minor's claim remains viable for this time period should a determination be
       made to pursue the same.

717 So.2d. at 750.

¶29.   The agreed statute of limitations for this cause of action is three years. Miss. Code

Ann. § 15-1-49 (1995). As Randell turned twenty-one in September 1999, the statute of

limitations began running three years from that date. Randell filed the current suit against

Donald in October 2000, well within the required period of time. Thus, this suit is not barred

by the statute of limitations either.

¶30.   For these reasons, I respectfully dissent.

       McRAE, P.J., AND GRAVES, J., JOIN THIS OPINION.




                                              13
