Opinion
No. 06-999.
Filed March 4, 2008.
Gaston County No. 05CVS1261.
Appeal by plaintiff from order entered 27 April 2006 by Judge Timothy S. Kincaid in Gaston County Superior Court. Heard in the Court of Appeals 27 March 2007.
Klein Freeman, PLLC, by Katherine Freeman and Paul I. Klein, for plaintiff-appellant. Templeton Raynor, P.A., by Kenneth R. Raynor, for defendants-appellees.
Vergil Skeen ("plaintiff") appeals from an order of the trial court granting summary judgment in favor of Warren Sweat Manufacturing, Inc. ("Warren Sweat") and Cart Products, Inc. ("Cart Products" collectively "defendants"). We reverse.
In 2001, plaintiff purchased a hunting tree stand ("the stand") from Sports Authority, Inc. in Gastonia ("Sports Authority") designed and manufactured by defendants. On 6 October 2001, plaintiff was injured while hunting with the stand. Specifically, the stand collapsed during plaintiff's use. On 12 June 2002, plaintiff filed a complaint ("the prior action") against defendants, Sports Authority, Inc. ("Sports Authority"), and Florida Hunting Supplies ("Florida H.S.") alleging the defective stand caused his injuries and asserting breach of warranty and negligence claims. After motions by both parties, plaintiff amended the complaint. In his amended complaint, plaintiff did not include Florida H.S. as a party, but maintained the same claims against defendants and Sports Authority. In addition to the change in parties, plaintiff added three new claims: fraud, unfair and deceptive trade practices ("UDTP"), and spoliation of evidence.
Cart Products filed a motion to dismiss plaintiff's cause of action for spoliation of evidence pursuant to North Carolina Rules of Civil Procedure Rule 12(b)(6) and the court granted the motion. Subsequently, Cart Products filed a motion for a partial summary judgment of plaintiff's causes of action for fraud and UDTP pursuant to Rule 56 of the North Carolina Rules of Civil Procedure and this motion was also granted.
On 17 May 2004, plaintiff filed a voluntary dismissal without prejudice on his negligence and breach of warranty actions, the two remaining claims against defendants. Subsequently, plaintiff filed a notice of appeal on 24 May 2004 challenging the dismissal of the fraud and UDTP claims. Plaintiff's appeal was dismissed by this Court in an unpublished opinion for failure to include a notice of appeal in the record. See Skeen v. Sports Authority, Inc., 171 N.C. App. 515, 615 S.E.2d 738 (2005). On 23 March 2005, plaintiff re-filed a complaint against defendants alleging negligence and breach of warranty, the two original claims that had previously been voluntarily dismissed without prejudice ("the present action"). The present action omitted Sports Authority as a defendant. Defendants filed a Rule 12(b)(6) motion to dismiss plaintiff's re-filed claims based on res judicata, abandonment of claims, and plea in abatement. Defendants' motion was denied. Defendants appealed and argued that the Rule 12(b)(6) motion was converted into a summary judgment motion because the trial court considered matters outside the pleadings.
Defendants' appeal was dismissed. On 24 February 2006, defendants filed a Rule 56 motion for summary judgment on the grounds of res judicata, abandonment of claims, and plea in abatement. The Honorable Timothy S. Kincaid ("Judge Kincaid") found that plaintiff's claims asserted in the prior action arose out of the same operative facts and circumstances as those claims asserted in the present action and granted defendants' motion. Plaintiff appeals.
Plaintiff argues the trial court erred by granting defendants' motion for summary judgment on plaintiff's claims for negligence and breach of warranty on the grounds of res judicata, abandonment of claims and plea in abatement. We agree.
On appeal of a trial court's grant of a motion for summary judgment, this Court considers whether there was a genuine issue of material fact and whether the moving party is entitled to a judgment as a matter of law. Summey v. Barker, 357 N.C. 492, 496, 586 S.E.2d 247, 249 (2003); Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998); see also N.C. Gen. Stat. § 1A-1, Rule 56(c) (2007). The party moving for summary judgment bears the burden of establishing the lack of any triable issue of fact. N.C. Farm Bureau Mut. Ins. Co. v. Fowler, 162 N.C. App. 100, 102, 589 S.E.2d 911, 913 (2004). When reviewing the evidence, this Court must view it in the light most favorable to the nonmoving party. Id. See also Hodge v. Harkey, 178 N.C. App. 222, 224, 631 S.E.2d 143, 144 (2006). "If findings of fact are necessary to resolve an issue of material fact, summary judgment is improper." Prior v. Pruett, 143 N.C. App. 612, 617, 550 S.E.2d 166, 170 (2001).
Defendants filed two motions in this case on the grounds of res judicata, abandonment, or abatement, seeking the same relief. The first motion was brought pursuant to Rule 12(b)(6) to dismiss the negligence and breach of warranty claims alleging they were re-filed claims. This motion was denied. The second motion, a motion for summary judgment, was granted.
Under certain circumstances it is permissible for a party to move for summary judgment on the identical grounds as his previous, unsuccessful motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6). This is because the 12(b)(6) motion merely challenges the sufficiency of the complaint and is based solely upon the complaint itself, whereas a motion for summary judgment is typically based upon affidavits, pleadings and discovery responses.
The test on a motion to dismiss for failure to state a claim upon which relief can be granted is whether the pleading is legally sufficient. But, where a motion for summary judgment is made and is supported by matters outside the pleadings, the test is whether on the basis of the materials presented to the court there is any genuine issue as to any material fact.
Alltop v. Penney Co., 10 N.C. App. 692, 694-95, 179 S.E.2d 885, 887 (1971) (internal citations omitted). "On appeal, review of summary judgment is necessarily limited to whether the trial court's conclusions as to these questions of law were correct ones." Ellis v. Williams, 319 N.C. 413, 415, 355 S.E.2d 479, 481 (1987).
On the facts presented to this Court we find that the defendants were not entitled to judgment as a matter of law. 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. Thomas M. McInnis Assoc., Inc. v. Hall, 318 N.C. 421, 428, 349 S.E.2d 552, 556 (1986). For res judicata to apply, a party must "show that the previous suit resulted in a final judgment on the merits, that the same cause of action is involved, and that both . . . were either parties or stand in privity with parties." Id., 318 N.C. at 429, 349 S.E.2d at 557.
Here, the identity of the parties is not at issue. Instead we determine whether the present action involves the same claims as those brought in the prior action, and whether there has been a final judgment on the merits. While a plaintiff must recover all damages as a result of a single wrong in one lawsuit, "[w]here a plaintiff has suffered multiple wrongs at the hands of a defendant, a plaintiff may normally bring successive actions, or, at his option, may join several claims together in one lawsuit." Bockweg v. Anderson, 333 N.C. 486, 492, 428 S.E.2d 157, 161 (1993) (internal citations omitted) (emphasis added).
The negligence and breach of warranty claims could not be brought but for the collapse of the tree stand and subsequent injury to plaintiff. The fraud and UDTP claims, however, are predicated on the labeling of the stand as "certified." These claims do not rely on the same sets of operative facts as the negligence and breach of warranty claims and the issues involved are different; therefore, they cannot be considered to be the same cause of action.
By appealing the summary judgment in favor of the defendants as to the fraud and UDTP claims, there was a final judgment on the merits as to both claims. However, upon taking a voluntary dismissal without prejudice prior to the appeal as to the negligence and breach of warranty claims, it is as if those claims were not raised by the pleadings in the prior action. Therefore, there has been no final judgment on the merits as to the negligence and breach of warranty claims. Id., 333 N.C. at 496, 428 S.E.2d at 164 (where pleadings did not raise claim now presented, present claim is not barred by res judicata).
The facts in this case do not meet two of the three requirements necessary to find this matter is barred by res judicata. This Court concludes that the trial court erred in granting summary judgment in favor of defendants and dismissing plaintiff's claims on the grounds of res judicata.
Defendants also contend plaintiff's claims should be dismissed on the grounds of plea in abatement and rely upon Clark v. Craven Regional Medical Authority, 326 N.C. 15, 387 S.E.2d 168 (1990). In Clark, the Court determined that "a prior action which has been dismissed in the trial court and is pending appeal in this Court is a `prior action pending' upon which a plea in abatement can be based." Id., 326 N.C. at 20, 387 S.E.2d at 171. However, Clark is inapplicable to the case before us. Here, as defendants concede, there was no action pending at the time plaintiff filed the present action. Thus, the doctrine of plea in abatement is inapplicable and the trial court erred by dismissing plaintiff's claims.
Because we determined the trial court erred by granting summary judgment in favor of defendants based on the doctrines of res judicata and plea in abatement, we need not address plaintiff's remaining arguments. For the foregoing reasons, the order of the trial court is reversed.
Reversed.
Judge STEPHENS concurs.
Judge JACKSON concurs in the result only.
Report per Rule 30(e).