IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _____________________

No. 02-60093 _____________________

H. S. STANLEY, Jr., Trustee of the Bankruptcy Estate of Kathy Delk,

Plaintiff-Appellant,

KATHY DELK Appellant,

versus

JOHNNY GRAY, Etc.; ET AL

Defendants,

JOHNNY GRAY, Individually and doing business as Contractor's Edge; CONTRACTOR'S EDGE; THE LATHAN COMPANY; AMERICAN NATIONAL INSURANCE COMPANY, Individually and doing business as Edgewater Mall; AMERICAN NATIONAL REAL ESTATE MANAGEMENT CORPORATION, Individually and doing business as Edgewater Mall

Defendants-Appellees.

__________________________________________________________________

Appeal from the United States District Court for the Southern District of Mississippi USDC No. 1:00-CV-217-RG _________________________________________________________________ January 6, 2003

Before JOLLY, DUHÉ and WIENER, Circuit Judges.

PER CURIAM:*

H.S. Stanley (“Stanley”) and Kathy Delk (“Delk”) appeal the

district court’s grant of summary judgment in favor of defendants

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Johnny Gray, Contractor’s Edge, The Lathan Company (“contractors”),

American National Insurance Company and American National Real

Estate Management Corporation (“mall owners”). Because the

district court erroneously applied collateral estoppel and

determined that Delk was a licensee rather than a business invitee,

we REVERSE and REMAND.

I.

Delk co-owned a beauty salon located in Edgewater Mall called

Edgewater Glamourama. On May 29, 1999, few days before Edgewater

Glamourama’s lease of space in Edgewater Mall expired, Delk went to

Edgewater Mall to remove equipment from the Edgewater Glamourama

space. Because of ongoing renovation at Edgewater Mall, Delk could

only access the Edgewater Glamourama space through a single outside

entrance. A large dumpster had been placed near the entrance,

apparently for the purpose of collecting debris from the renovation

of the roof of Edgewater Mall. While exiting her shop, Delk was

struck on the head and injured by debris thrown by workers from the

roof. As a result she suffered neck and back injuries that

required several surgeries.

Stanley, as Delk’s trustee in bankruptcy, brought suit on

behalf of Delk against the contractors and the mall owners,

alleging that she was injured as a result of their negligence. The

district court granted summary judgment, concluding that the claims

were barred by collateral estoppel and that Delk was a licensee to

whom the defendants owed no duty of reasonable care.

2 II.

We have carefully considered the record, briefs and arguments

of counsel and are convinced that collateral estoppel is not

applicable in this case, that Delk was a business invitee entitled

to reasonable care, and that issues of material fact exist which

preclude summary judgment.

Under Mississippi law collateral estoppel prevents parties

from litigating in a current action issues decided in a prior

action. The actions must be between the same parties and involve

the same subject matter and cause of action. Farris v. State,

(Miss. 2000)(“an issue of ultimate fact which was

a valid and final judgment may not be relitigated between the same

parties in a subsequent suit.”) The district court based its

finding of collateral estoppel on a prior action brought in

Mississippi state court by Delk against the mall owners alleging

breach of contract, tortious interference with business relations

and other claims based on Edgewater Glamourama’s lease. The

Mississippi court dismissed the suit because Delk, who was not a

signatory to the lease, lacked standing. The prior action did not

involve the same cause of action or subject matter as the current

action and, because it was dismissed for lack of standing, clearly

did not involve the litigation or the resolution on the merits of

any issues present in the current action. In addition, the

determination in the prior suit that Delk was not a signatory to

the lease does not bear on whether she is or is not a third party

3 beneficiary to the contract between the mall owners and the

contractors at issue in this case. For these reasons, the district

court erred by applying collateral estoppel in this case.

The district court also held that Delk was a licensee rather

than a business invitee and therefore not entitled to reasonable

care by the defendants under Mississippi law. A licensee enters

the property of another for his own benefit, while an invitee

enters the property of another for the mutual benefit of both owner

and invitee. A business invitee is an invitee whose presence is

directly or indirectly connected with business dealings with the

property owner. Case v. Wal-Mart Stores, Inc.,

(S.D. Miss. 1998). Owners have a duty of reasonable care with

respect to business invitees.

Delk was on Edgewater Mall

property in connection with her status as an employee and co-owner

of Edgewater Glamourama, a business which had a valid lease of the

space with the mall owners. As such, Delk was a business invitee

entitled to reasonable care with respect to both the mall owners

and the contractors.

The district court erred in applying collateral estoppel and

in determining that Delk was a licensee rather than a business

invitee under Mississippi law. With the issues thus resolved,

there remain disputed issues of material fact that preclude the

grant of summary judgment. Accordingly, the judgment of the

district court is REVERSED and the matter is REMANDED to the

4 district court for further proceedings not inconsistent with this

1 opinion.

REVERSED AND REMANDED.

5