TA LOVING COMPANY v. Latham , 15 N.C. App. 441 ( 1972 )

190 S.E.2d 248 (1972) 15 N.C. App. 441

T. A. LOVING COMPANY
v.
James F. LATHAM et al.

No. 7215SC144.

Court of Appeals of North Carolina.

August 2, 1972.

Latham, Pickard & Ennis by Spencer Ennis, and Dalton & Long by W. R. Dalton, Jr., Burlington, for original defendants, appellants.

Sanders, Holt & Spencer, by James C. Spencer, Jr., Burlington, for additional defendants, Owen Steel Company, Inc., and A. B. Whitley, Inc., appellees.

Wardlow, Knox, Caudle & Knox by Lloyd C. Caudle, Charlotte, for additional defendants, Rayson Company and Florida Steel Company, Inc., appellees.

Robert N. Robinson, Charlotte, for additional defendant, General Specialties Co., Inc., appellee.

Yarborough, Blanchard, Tucker & Denson by Irvin B. Tucker, Jr., Raleigh, for additional defendant, Partitions, Inc., appellee.

Haywood, Denny & Miller by Emery B. Denny, Jr., Chapel Hill, for additional defendants, James A. Smith & Son, and S. H. Basnight & Sons, appellees.

Brown, Brown & Brown by R. L. Brown, Jr., Albemarle, for additional defendant, Overdoors of the Carolinas, Inc., appellee.

Taylor, Allen, Warren & Kerr by W. Frank Taylor, Goldsboro, for additional defendants, W. H. Best & Sons, Inc., and Dewey Bros., Inc., appellees.

Adams, Kleemeier, Hagan, Hannah & Fouts by Clinton Eudy, Jr., Greensboro, for additional defendant, W. H. Sullivan Co., appellee.

Allen, Allen & Sternberg, by Louis C. Allen, Jr., Burlington, for additional defendants, Richard A. Robertson t/a Richard A. Robertson, Masonry Contractor, and Overman Cabinet and Supply Co., appellees.

Falk, Carruthers & Roth by Herbert S. Falk, Jr., Greensboro, for additional defendant, Greensboro Concrete & Construction Co., Inc., appellee.

PARKER, Judge.

Appellants contend they are entitled to have the disclaimers of appellees made "irrevocable, permanent, and binding," and that the order appealed from does not have this effect. They reason that the order is in favor of appellees, not against them, and from this somehow arrive at the conclusion that appellees are left free in the future to assert possible claims against them. We agree neither with appellants' reasoning nor with their conclusion.

While Judge Hobgood's order is in favor of appellees in the sense that it was entered in response to their motions made to obtain relief from the unwanted burden of continued participation in someone else's expensive lawsuit, it was nevertheless entirely binding upon them and effectively foreclosed them from asserting in the future any claims against appellants arising out of matters alleged in the pleadings. The order was based on appellees' solemn judicial admissions that they had no such claims. These judicial admissions are binding on appellees, Stansbury, N.C. Evidence 2d, § 116, p. 423, and established that no genuine issue as to any material fact existed insofar as the rights as between appellees and all other parties to the litigation are concerned. As a matter of law, appellees became entitled to an order freeing them from continued involvement, even peripherally, in litigation which promises to be lengthy and expensive and in which they can have no possible interest. Summary judgment granting them this relief was therefore proper. At the same time, the order appealed from adequately protects appellants from the possibility that any appellee might successfully assert against them in the future any claim which such appellee judicially admitted in the trial court and on this appeal continues strenuously to contend it does not have. Based on appellees' admissions, Judge Hobgood found as a fact that none of the appellees has any such claim. This determination was all that appellants were entitled to receive insofar as any rights which they may have against appellees are concerned, and such determination will continue to be binding.

"Matters determined by a summary judgment, just as by any other judgment, are res judicata in a subsequent action." Vol. 3, Barron and Holtzoff, Federal Practice and Procedure, Rules Edition, § 1246, p. 211.

The order appealed from is

Affirmed.

MALLARD C. J., and MORRIS, J., concur.