August 8, 2012 § 5 Comments

Lawyers from time to time will argue, or try to, that particular relief is barred by the operation of res judicata.

Here’s a succinct statement of the rule:

We recognize that the doctrine of res judicata precludes a party from litigating claims that were raised or could have been raised in the original action. Howard v. Howard, 968 So. 2d 961, 973 (¶27) (Miss. Ct. App. 2007). Four identities must be present before a subsequent action may be dismissed on the basis of res judicata:

(1) identity of the subject matter of the original action when compared with the action . . . sought to be precluded; (2) identity of underlying facts and circumstances upon which a claim is asserted and relief sought in the two actions; (3) identity of the parties to the two actions, and identity met where a party to the one action was in privity with a party to the other; and (4) identity of the quality or character of a person against whom the claim is made.

Id. “If the four identities are present, a party may not raise a claim in a subsequent action.” Id. “This is true regardless of whether all grounds for possible recovery were litigated or asserted in the prior action, as long as those grounds were available to a party and should have been asserted.” Id. (citation omitted).

Rogers v. Rogers, COA, July 24, 2012, ¶26, fn 2.

Res judicata has no application in a modification case involving alimony or child support, since those matters are never truly final, and are always subject to modification based on a change of circumstances. See Campbell v. Campbell, 357 So.2d 129, 130 (Miss. 1978); Austin v. Austin, 91 So.2d 1000, 1005 (Miss. App. 2007).

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