all issues tried in the prior lawsuit, as well as all matters which should have been litigated and decided in the prior suit, if four identities of res judicata 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.Riley v. Moreland, 537 So.2d 1348, 1354 (Miss. 1989) (quoting Dunaway v. W.H. Hopper Assocs., Inc., 422 So.2d 749, 751 (Miss. 1982); see also Johnson v. Howell, 592 So.2d 998, 1002 (Miss.
(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.Riley v. Moreland, 537 So.2d 1348, 1354 (Miss. 1989)(quoting Dunaway v. W.H. Hopper and Associates, Inc., 422 So.2d 749, 751 (Miss. 1982).
See Johnson v. Howell, 592 So.2d 998, 1002 (Miss. 1991); Riley v. Moreland, 537 So.2d 1348, 1354 (Miss. 1989); Dunaway v. W.H. Hopper Assoc., 422 So.2d 749, 751 (Miss. 1982).
This case involves a dispute over the apportionment of attorney's fees arising from the wrongful death suit of Mark Moreland. This is actually the fourth time these parties have carried their ongoing dispute before this Court. Riley v. Moreland, 537 So.2d 1348 (Miss. 1989) ( Moreland III); Moreland v. Riley, 537 So.2d 1345 (Miss. 1989) ( Moreland II); Moreland v. Moreland, 537 So.2d 1337 (Miss.
Even though the federal suit was labeled a products liability case premised upon a design defect and the instant suit is deemed a wrongful death action based upon a manufacturing defect, this distinction does not destroy the second identity. In Riley v. Moreland, 537 So.2d 1348 (Miss. 1989), this Court explained that "[i]dentity of the cause of action exists when there is a commonality in the `underlying facts and circumstances upon which a claim is asserted and relief sought from the two actions.'" Id. at 1354 ( citing Walton v. Bourgeois, 512 So.2d 698, 701 (Miss.
Johnson v. Howell, 592 So.2d 998, 1002 (Miss. 1991); Riley v. Moreland, 537 So.2d 1348, 1354 (Miss. 1989); Dunaway, at 751. "Where one has a choice of more than one theory of recovery for a given wrong, she may not assert them serially in successive actions but must advance all at once on pain of the bar of res judicata."
Trammell v. State, 622 So.2d 1257, 1261 (Miss. 1993), citing Riley v. Moreland, 537 So.2d 1348, 1354 (Miss. 1989). Riley properly states that res judicata bars both claims that were made, or should have been made, in the prior suit.
Common Cause of Mississippi, Inc. v. Smith, 548 So.2d 412, 414 (Miss. 1989); Riley v. Moreland, 537 So.2d 1348, 1351 (Miss. 1989). In "typing" the case we look to "the nature of the controversy and the relief sought," Johnson v. Hinds County, 524 So.2d 947, 952 (Miss.
Id. (interpreting Mississippi case law and citing Harrison, 891 So.2d 224).Black v. City of Tupelo, 853 So.2d 1221, 1225 (Miss. 2003) (citing Riley v. Moreland, 537 So.2d 1348, 1354 (Miss. 1989)).See LaVere, 895 So.2d at 835.
In gauging whether identity of subject matter exists, the court's recent analysis has focused on the actual basis of the actions, "rather than the identity of the things sued for." Gates v. Walker, 62 F.3d 394, at *3 (5th Cir. 1995) (not reported) (citing Riley v. Moreland, 537 So. 2d 1348, 1354 (Miss. 1989)). In other words, "identity of subject matter turns on a general characterization of the suit.