Brown v. Thompson ( 2019 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-919
Filed: 5 March 2019
Wake County, No. 17 CVS 9169
SHAKEEVIA BROWN, Plaintiff-Appellee,
v.
STEPHEN SHAW THOMPSON, Defendant-Appellant.
Appeal by defendant from order entered 6 June 2018 by Judge Vince M. Rozier,
Jr., in Wake County Superior Court. Heard in the Court of Appeals
13 February 2019.
No brief filed for plaintiff-appellee.
Blue LLP, by Dhamian A. Blue, for defendant-appellant.
ARROWOOD, Judge.
Stephen Shaw Thompson (“defendant”) appeals from the trial court’s order
denying his motion for summary judgment. For the following reasons, we dismiss
the appeal.
I. Background
Shakeevia Brown (“plaintiff”) commenced this action against defendant on
27 July 2017. Plaintiff asserted allegations including defamation, intentional
BROWN V. THOMPSON
Opinion of the Court
infliction of emotional distress, negligent infliction of emotional distress, and sexual
harassment. Defendant filed a motion to dismiss and an answer on 11 October 2017.
On 25 April 2018, defendant filed a motion for summary judgment, or in the
alternative, a motion to dismiss for failure to prosecute. Defendant sought summary
judgment on the basis that principles of res judicata precluded plaintiff from any
recovery. Defendant attached to the motion a copy of a “Complaint for No-contact
Order for Stalking or Nonconsensual Sexual Conduct” filed by plaintiff in Wake
County District Court on 5 October 2017. Defendant also attached to the motion a
copy of the district court’s 2 November 2017 “No Contact Order for Stalking or
Nonconsensual Sexual Conduct” denying plaintiff’s complaint and dismissing the
matter upon finding a failure to prosecute.
Defendant’s motion for summary judgment was heard at the 31 May 2018
session of Wake County Superior Court. On 6 June 2018, the trial court entered an
order denying defendant’s motion for summary judgment. Defendant filed notice of
appeal on 27 June 2018.
II. Discussion
At the outset, we must address the interlocutory nature of defendant’s appeal.
An order denying of a motion for summary judgment is an interlocutory order
because it leaves the matter for further action by the trial court. See Veazey v. City
of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950) (“An interlocutory order is
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Opinion of the Court
one made during the pendency of an action, which does not dispose of the case, but
leaves it for further action by the trial court in order to settle and determine the entire
controversy.”). “Generally, there is no right of immediate appeal from interlocutory
orders and judgments.” Goldston v. Am. Motors Corp., 326 N.C. 723, 725, 392 S.E.2d
735, 736 (1990). However, “immediate appeal is available from an interlocutory order
or judgment which affects a substantial right.” Sharpe v. Worland, 351 N.C. 159,
162, 522 S.E.2d 577, 579 (1999) (quotation marks omitted).1
“[W]hen an appeal is interlocutory, the appellant must include in its statement
of grounds for appellate review ‘sufficient facts and argument to support appellate
review on the ground that the challenged order affects a substantial right.’ ” Johnson
v. Lucas, 168 N.C. App. 515, 518, 608 S.E.2d 336, 338 (quoting N.C.R. App. P.
28(b)(4)), aff’d per curiam, 360 N.C. 53, 619 S.E.2d 502 (2005). “The appellants must
present more than a bare assertion that the order affects a substantial right; they
must demonstrate why the order affects a substantial right.” Hoke Cnty. Bd. of Educ.
v. State, 198 N.C. App. 274, 277-78, 679 S.E.2d 512, 516 (2009) (emphasis in original).
Defendant concedes this appeal is interlocutory, but contends it affects a
substantial right because the basis of his motion for summary judgment was that
recovery in this action is barred by principles of res judicata.
1 Immediate appeal is also available if the trial court certifies the matter for immediate appeal.
See N.C. Gen. Stat. § 1A-1, Rule 54 (b) (2017); Sharpe, 351 N.C. at 161-62, 522 S.E.2d at 579. However,
the trial court did not certify its order in this case as immediately appealable under Rule 54(b).
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Opinion of the Court
As defendant points out, this Court has acknowledged that “our Supreme
Court has ruled that the denial of a motion for summary judgment based on the
defense of res judicata . . . is immediately appealable.” McCallum v. N.C. Co-op. Ext.
Serv. of N.C. State Univ., 142 N.C. App. 48, 51, 542 S.E.2d 227, 231 (citing Bockweg
v. Anderson, 333 N.C. 486, 491, 428 S.E.2d 157, 161 (1993)), appeal dismissed and
disc. review denied, 353 N.C. 452, 548 S.E.2d 527 (2001). When considered in
isolation, the above quote seems to be an absolute statement of the law; however, in
context, it is clear that this Court was simply noting that, in Bockweg, the denial of
the defendant’s motion for summary judgment based on the defense of res judicata
was held to affect a substantial right. In McCallum, this Court further stated, “the
denial of summary judgment based on the defense of res judicata can affect a
substantial right and may be immediately appealed.” Id. (citing Bockweg, 333 N.C.
at 491, 428 S.E.2d at 161).
In Bockweg, the Supreme Court explained why the denial of a motion for
summary judgment based on the defense of res judicata can affect a substantial right
and may be immediately appealable:
As a general rule, a moving party may not appeal the
denial of a motion for summary judgment because
ordinarily such an order does not affect a substantial right.
However, we have noted that while [t]he right to avoid one
trial on the disputed issues is not normally a substantial
right that would allow an interlocutory appeal, . . . the
right to avoid the possibility of two trials on the same
issues can be such a substantial right.
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333 N.C. at 490-91, 428 S.E.2d at 160 (quotation marks and citations omitted).
Under the doctrine of res judicata, a final judgment on the
merits in a prior action in a court of competent jurisdiction
precludes a second suit involving the same claim between
the same parties or those in privity with them. Thus, a
motion for summary judgment based on res judicata is
directed at preventing the possibility that a successful
defendant, or one in privity with that defendant, will twice
have to defend against the same claim by the same
plaintiff, or one in privity with that plaintiff. Denial of the
motion could lead to a second trial in frustration of the
underlying principles of the doctrine of res judicata.
Therefore, we hold that the denial of a motion for summary
judgment based on the defense of res judicata may affect a
substantial right, making the order immediately
appealable.
Id. at 491, 428 S.E.2d at 161 (internal citations omitted).
Subsequent to the Court’s decision in Bockweg, this Court has noted the
permissive language in Bockweg, emphasizing that Bockweg holds the denial of
summary judgment based on a defense of res judicata “may” affect a substantial right.
See Country Club of Johnston Cnty., Inc. v. U.S. Fidelity and Gaur. Co., 135 N.C. App.
159, 166, 519 S.E.2d 540, 545 (1999) (“[W]e do not read Bockweg as mandating in
every instance immediate appeal of the denial of a summary judgment motion based
upon the defense of res judicata. The opinion pointedly states reliance upon res
judicata ‘may affect a substantial right.’ ”) (quoting Bockweg, 333 N.C. at 491, 428
S.E.2d at 161 (emphasis added)), disc. review denied, 351 N.C. 352, 542 S.E.2d 207
(2000). In Country Club of Johnston Cnty., this Court explained that,
in an opinion issued shortly after Bockweg, Community
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Bank v. Whitley, 116 N.C. App. 731, 449 S.E.2d 226, disc.
review denied, 338 N.C. 667, 453 S.E.2d 175 (1994), [it]
interpreted the permissive language of Bockweg as
allowing, under the substantial right exception, immediate
appeal of the denial of a motion for summary judgment
based, inter alia, upon defense of res judicata “where a
possibility of inconsistent verdicts exists if the case proceeds
to trial.” Id. at 733, 449 S.E.2d at 227 (emphasis added);
see also Little v. Hamel, 134 N.C. App. 485, 517 S.E.2d 901
(1999) (appeal of denial of summary judgment motion
based upon res judicata considered to affect substantial
right where, although not directly noted by the Court,
defendants had been absolved of liability in previous suit
between the parties and faced possibility of inconsistent
verdicts).
In short, denial of a motion for summary judgment based
upon the defense of res judicata may involve a substantial
right so as to permit immediate appeal only “where a
possibility of inconsistent verdicts exists if the case
proceeds to trial.” Community Bank, 116 N.C. App. at 733,
449 S.E.2d at 227.
135 N.C. App. at 166-67, 519 S.E.2d at 545-46. There was no possibility of
inconsistent verdicts in Country Club of Johnston Cnty., id. at 167, 519 S.E.2d at 546,
and this Court dismissed the appeal, id. at 168, 519 S.E.2d at 546; see also
Northwestern Fin. Group, Inc. v. Cnty. Of Gaston, 110 N.C. App. 531, 536, 430 S.E.2d
689, 692 (holding there was no possibility for inconsistent verdicts because there had
yet to be a trial in the matter because the initial action sought only equitable relief),
disc. review denied, 334 N.C. 621, 435 S.E.2d 337 (1993). Citing Country Club of
Johnston Cnty. and Northwestern Fin. Group, Inc., this Court has more recently
stated that it “has previously limited interlocutory appeals to the situation when the
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Opinion of the Court
rejection of [a res judicata defense] gave rise to a risk of two actual trials resulting in
two different verdicts.” Foster v. Crandell, 181 N.C. App. 152, 162, 638 S.E.2d 526,
534, disc. review denied, 361 N.C. 567, 650 S.E.2d 602 (2007).
The present case is easily distinguishable from cases holding the denial of a
motion for summary judgment on the basis of res judicata raises a substantial right
to permit immediate appellate review. First, the posture of this case is unique in that
the complaint in the present action was filed prior to the complaint in the district
court case that defendant now claims precludes recovery. Second, the district court
case, which sought only a no contact order under Chapter 50C of the General Statutes
based on factual allegations similar to those made in the present case, was dismissed
for plaintiff’s failure to prosecute. Although a dismissal that does not indicate
otherwise operates as an adjudication on the merits, see N.C. Gen. Stat. § 1A-1, Rule
41(b) (2017), there was no determination of the underlying issues that would raise
the potential for an inconsistent verdict in the present case. Additionally, the issues
to be decided in a Chapter 50C action for a no contact order are substantially more
narrow than those to be determined in the present action seeking additional relief
including money damages, relief not afforded in a Chapter 50C action. As a result,
we hold the doctrine of res judicata does not raise a substantial right in this case to
permit an immediate appeal of the trial court’s denial of defendant’s motion for
summary judgment.
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Opinion of the Court
III. Conclusion
The denial of defendant’s motion for summary judgment on the basis of res
judicata does not affect a substantial right in this instance. Therefore, immediate
appeal is not proper and defendant’s appeal is dismissed.
DISMISSED.
Judges STROUD and TYSON concur.
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