Taylor v. Tri-County Electric Membership Corp. , 17 N.C. App. 143 ( 1972 )

193 S.E.2d 402 (1972) 17 N.C. App. 143

James A. TAYLOR and wife, Frankie G. Taylor
v.
TRI-COUNTY ELECTRIC MEMBERSHIP CORPORATION.

No. 728SC682.

Court of Appeals of North Carolina.

December 20, 1972.

Dees, Dees, Smith & Powell by Tommy W. Jarrett, Goldsboro, for plaintiff appellants.

Herbert B. Hulse and George F. Taylor, Goldsboro, for defendant appellee.

BRITT, Judge.

The sole question for our determination is whether the trial court erred in dismissing plaintiffs' action on the ground of res judicata. We hold that it did not.

In their brief plaintiffs note that if old G.S. § 1-25 were still in effect, they could maintain their action. They concede that this "saving" statute has been repealed and largely replaced by G.S. § 1A-1, Rule 41(a)(2), which permits the court to order a voluntary dismissal without prejudice. Plaintiffs maintain that while the trial court made no such order in the prior action, that action was not a trial on the merits for that the judgment therein granted a directed verdict due to a technical rule of evidence; that since the prior action was not tried before a jury, plaintiffs have never had their full day in court.

Basic to the doctrine of res judicata is the premise that a plea of res judicata must be founded on an adjudication —a judgment on the merits. Pack v. McCoy, 251 N.C. 590, 112 S.E.2d 118 (1960). As Sharp, Justice, points out in Cutts v. Casey, 278 N.C. 390, 420, 180 S.E.2d 297, 313 (1971), "When a motion for a directed verdict under Rule 50(a) is granted, the defendant is entitled to a judgment on the merits unless the court permits a voluntary dismissal of the action under Rule 41(a) (2)." (Emphasis added.) In McIntosh, North Carolina Practice and Procedure, 2d Ed., Vol. 2, § 1488.30, Pocket Supplement, p. 28, we find: "Judgment entered upon a directed verdict is a final judgment on the merits. It is therefore appealable, and operates with full res judicata effect." A footnote to this statement explains: "This differs from the effect of involuntary nonsuit under former practice where the nonsuit was granted for insufficiency of evidence to make out a prima facie case. Plaintiff was barred in such circumstances only if his proof on second trial was substantially similar to that on first trial; he could ``mend his licks' with substantially different proof." (Citation.) Therefore, plaintiffs' contention in the case at bar that they were deprived of their full day in court is untenable.

Plaintiffs further contend that even if the directed verdict in the prior action is res judicata as to matters and occurrences prior to its effective date, that a continuing trespass exists as long as defendant's power lines remain on said land and such continuing trespass gives rise to a new and separate claim for relief. This contention has no merit.

As between the parties the question of title to the subject property was determined in the prior action and that determination is conclusive. Of necessity the question of title would be raised in the present case and as was said in Poindexter v. Bank, 247 N.C. 606, 618-619, 101 S.E.2d 682, 691-692 (1958), "``It is a fundamental principle of jurisprudence that material facts or questions which were in issue in a former action, and were there admitted or judicially determined, are conclusively settled by a judgment therein, and that such facts or questions become res judicata and may not again be litigated in a subsequent action between the same parties * * *, regardless of the form the issue may take in the subsequent action. * * *'"

In order for a judgment to constitute res judicata in a subsequent action there must be identity of parties, subject matter, issues and relief demanded. Shaw v. Eaves, 262 N.C. 656, 138 S.E.2d 520 (1964); Mason v. Highway Comm., 7 N. C.App. 644, 173 S.E.2d 515 (1970). In the instant case, the parties are identically the same as in the original action; the cause of action arises from the same facts upon which recovery was initially predicated; the merits of the cases are the same; and plaintiffs seek the same type of relief initially sought.

For the reasons stated, the judgment appealed from is

Affirmed.

MALLARD, C. J., and BROCK, J., concur.