Opinion
No. COA12–1306.
2013-05-7
STATE BOARD OF EXAMINERS OF PLUMBING, HEATING, AND FIRE SPRINKLER CONTRACTORS, Plaintiff, v. David Gill KANUPP, individually and d/b/a American Fire & Equipment, LLC, Defendants.
Young Moore and Henderson P.A., by Reed N. Fountain, for plaintiff-appellee. Wesley E. Starnes, P.C., by Wesley E. Starnes, and by Ian M. McRary, for defendants-appellants.
Appeal by defendants from order entered 15 June 2012 by Judge Beverly T. Beal in Catawba County Superior Court. Heard in the Court of Appeals 25 March 2013. Young Moore and Henderson P.A., by Reed N. Fountain, for plaintiff-appellee. Wesley E. Starnes, P.C., by Wesley E. Starnes, and by Ian M. McRary, for defendants-appellants.
MARTIN, Chief Judge.
Defendant David Gill Kanupp, individually (“defendant Kanupp”), and defendant David Gill Kanupp d/b/a American Fire & Equipment, LLC (“defendant American Fire & Equipment”) appeal from an order entered 15 June 2012 denying defendants' motion for summary judgment. We dismiss this appeal.
The record before us shows that defendant Kanupp filed articles of organization with North Carolina's Secretary of State on 16 March 2009 to form defendant American Fire & Equipment, and on 12 January 2011 to form American IFI Fire Protection, LLC (“IFI”). On 19 January 2011, defendant American Fire & Equipment sent an invoice numbered “20631” totaling $725.00 to Coffey Creek Apartments in Charlotte, North Carolina, for an emergency service call to “Repair, Restore, Trouble Shoot [sic] Fire Sprinkler System due to fire and dry pendant freeze up[.]” IFI then sent an invoice numbered “20631s” to Coffey Creek Apartments requesting payment for the same amount and for the same services as those described on defendant American Fire & Equipment's January 2011 invoice. IFI's invoice also included the following note: “THIS IS A CORRECTION INVOICE[.] DO NOT PAY IF YOUR PAYMENT HAS BEEN RE–MITTED [sic] ALREADY!!!” Two months later, defendant American Fire & Equipment sent an invoice numbered “20613” totaling $3,825.00 to Coffey Creek Apartments for a service call “to repair and replace 3 dry pendant sprinkler heads, drain, remove, replace, flow, system & restore to operating order[.]” On the same day, IFI sent an invoice numbered “20613s” to Coffey Creek Apartments requesting payment for the same amount and for the same services as those described on defendant American Fire & Equipment's March 2011 invoice. IFI's invoice also included the following note: “THIS IS A CORRECTION INVOICE TO REPLACE AMERICAN FIRE & EQUIPMENT INVOICE # 20613 WHICH WAS ISSUED IN ERROR.”
The parties appear to agree that plaintiff State Board of Examiners of Plumbing, Heating, and Fire Sprinkler Contractors (“plaintiff Board”) investigated a complaint concerning the original and “correction” invoices sent to Coffey Creek Apartments from defendant American Fire & Equipment and from IFI, although the record does not contain a copy of the complaint underlying this investigation. The record does reflect, however, that upon the conclusion of plaintiff Board's investigation, on 27 April 2011, a letter was sent from the complaint coordinator for plaintiff Board to defendant Kanupp stating: “After investigation of the above case[, File Number 2010–1165,] by our field staff and upon review of their recommendation by the Committee it has been determined that this file will be, with no further action taken.” Thus, although the letter indicates that there will be “no further action taken” with respect to this matter, as written, the letter fails to include the disposition or conclusion of plaintiff Board's investigation regarding its File No.2010–1165.
In June 2011, plaintiff Board filed a complaint in superior court against defendants alleging that defendant Kanupp “is not now and never has been the holder of a valid license or certificate of renewal of license issued by [plaintiff Board],” and has, “through his alter ego” defendant American Fire & Equipment, “engaged in business as a fire sprinkler contractor” in violation of N.C.G.S. § 87–21 and § 87–25, for which plaintiff Board sought injunctive relief pursuant to N.C.G.S. § 87–25.1. Defendants answered and asserted affirmative defenses, including the defense that the letter sent to defendant Kanupp dated 27 April 2011 constitutes a prior adjudication that precludes plaintiff Board's current action under principles of res judicata or collateral estoppel. Defendants moved for summary judgment on the same grounds. After a hearing on the matter, on 15 June 2012, the trial court denied defendants' motion and certified the issue as immediately appealable pursuant to N.C.G.S. § 1A–1, Rule 54(b). Defendants appealed.
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“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.” Bockweg v. Anderson, 333 N.C. 486, 490, 428 S.E.2d 157, 160 (1993) (internal quotation marks omitted). Nevertheless, “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. “Under the doctrine of res judicata or ‘claim preclusion,’ a final judgment on the merits in one action precludes a second suit based on the same cause of action between the same parties or their privies.” Whitacre P'ship v. Biosignia, Inc., 358 N.C. 1, 15, 591 S.E.2d 870, 880 (2004) (“The doctrine prevents the relitigation of all matters ... that were or should have been adjudicated in the prior action.” (omission in original) (internal quotation marks omitted)). Thus, “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.” Country Club of Johnston Cty., Inc. v. U.S. Fid. & Guar. Co., 135 N.C.App. 159, 167, 519 S.E.2d 540, 546 (1999) (internal quotation marks omitted), disc. review denied, 351 N.C. 352, 542 S.E.2d 207 (2000). “[T]o demonstrate that a second trial will affect a substantial right,” the party bringing the appeal “must show, not only that one claim has been finally determined, and others remain which have not yet been determined, but that (1) the same factual issues would be present in both trials and (2) the possibility of inconsistent verdicts on those issues exists.” Id. at 163–64,519 S.E.2d 540, 519 S.E.2d at 544 (citations and internal quotation marks omitted).
In the present case, defendants assert that the underlying complaint which prompted the sending of the 27 April 2011 letter to defendant Kanupp “involves the same acts, occurrences, time frame and allegations as those complained of in the case presently before this Court,” that the April 2011 letter “constitutes a final judgment on the merits,” and that, as a result of the issuance of this letter, “the allegations alleged in [plaintiff Board's] complaint hav[e] been adjudicated in a prior administrative proceeding.” We need not determine whether the 27 April 2011 letter, which lacks an express disposition or conclusion, from plaintiff Board's complaint coordinator constitutes a final judgment on the merits so as to bar further action based on the doctrine of res judicata, because we conclude that defendants have not provided sufficient evidence in the record to support their assertion that the complaint giving rise to the present action is based on the same claims as those addressed by the letter.
The record includes an affidavit from defendant Kanupp in support of defendants' motion for summary judgment, in which defendant Kanupp states that, after he “made a mistake[ ] and in error billed Coffey Creek Apartments on an American Fire & Equipment, LLC instead of billing on a statement of the [IFI] billing statement,” he “was contacted by a representative of [plaintiff Board] who was undertaking to investigate this matter” and “furnished them with ... information explaining [his] mistake.” Defendant Kanupp then attests that, “in response to [his] communication, [he] received a decision on this issue,” and directs the trial court's attention to a copy of the 27 April 2011 letter he received from plaintiff Board's complaint coordinator. In other words, according to defendant Kanupp's affidavit, which is the only evidence in the record describing the matter that was said to have been resolved by the 27 April 2011 letter, plaintiff Board's investigation regarding its File No.2010–1165 concerned only billing irregularities with respect to defendants. Yet, the allegations in plaintiff Board's June 2011 complaint filed in superior court do not include allegations concerning billing irregularities; rather, as noted above, the allegations concern whether defendant Kanupp engaged in business as a fire sprinkler contractor in violation of N.C.G.S. § 87–21 and § 87–25 “through his alter ego” defendant American Fire & Equipment, and whether plaintiff Board is entitled to injunctive relief as a result of these alleged violations. Because we cannot determine whether there is an identity of claims between plaintiff Board's complaint alleging statutory licensing requirement violations and a complaint that was not included in the record but which is said to have concerned only billing irregularities, we conclude that defendants have failed to demonstrate that the trial court's order involves a substantial right and necessitates immediate review of this interlocutory appeal. See Country Club of Johnston Cty., Inc., 135 N.C.App. at 163–64, 519 S.E.2d at 544. Additionally, because “[t]he denial of a motion for summary judgment is not a final judgment and is generally not immediately appealable even if the trial court has attempted to certify it for appeal under [N.C.G.S. § 1A–1,]Rule 54(b),” see Knighten v. Barnhill Contr'g Co., 122 N.C.App. 109, 111, 468 S.E.2d 564, 565,disc. review denied, 343 N.C. 511, 472 S.E.2d 11 (1996), we conclude the court's certification of the order in the present case as immediately appealable pursuant to N.C.G.S. § 1A–1, Rule 54(b) similarly fails to necessitate immediate review of this appeal. Accordingly, we decline to address the merits of defendants' appeal.
Dismissed. Judges HUNTER and STEPHENS concur.
Report per Rule 30(e).