Opinion
No. 08-1136.
Filed March 17, 2009.
Appeal by plaintiff from order entered 4 June 2008 by Judge Abraham Penn Jones in Durham County Superior Court. Heard in the Court of Appeals 25 February 2009.
Bugg Wolf, by William J. Wolf, for plaintiff-appellant. Brooks, Pierce, McLendon, Humphrey Leonard, L.L.P., by James C. Adams, II and Sarah A.L. Phillips, for defendant-appellee.
Appeal from the Durham (06CVS5872).
West Durham Lumber Company (the Lumber Company) appeals from an order granting a motion to dismiss in favor of Suntrust Bank (Suntrust).
Facts
This case has been before this Court in a previous appeal. A full recitation of the facts may be found in West Durham Lumber Co. v. Meadows, 179 N.C. App. 347, 635 S.E.2d 301 (2006) ( West Durham I). The facts necessary to the instant appeal are as follows: The Lumber Company supplied materials to Meadows Custom Homebuilders (Meadows) for a lot located at 12460 Richmond Run Drive, Raleigh, North Carolina (the property). The Lumber Company sought to recover $77,625.51 in funds it was owed by Meadows for materials supplied to the construction site by filing a materialman's lien on 14 October 2003.
On 12 August 2003, Suntrust began foreclosure proceedings, and on 2 October 2003, purchased the property at a foreclosure sale for $425,000.00. On 6 October 2003, the Lumber Company brought an action to enforce its claim of lien. Both parties entered motions for summary judgment and the trial court granted summary judgment in favor of the Lumber Company. Suntrust appealed to this Court. In West Durham I, this Court held that the Lumber Company had a valid materialmen's clam of lien but the lien was extinguished when Suntrust foreclosed on the property. This Court remanded West Durham I to the trial court to enter partial summary judgment in favor of Suntrust.
After remand, the Lumber Company instituted a second action against Suntrust on 2 October 2006 alleging claims for unjust enrichment, conversion, constructive trust, and unfair and deceptive trade practices. The Lumber Company asserted Suntrust was unjustly enriched by receiving disbursed funds from the proceeds of the foreclosure sale that exceeded the amount of the deed of trust securing the purchase of the property. On 21 February 2008, Suntrust filed a motion to dismiss on the basis that the Lumber Company's claims were barred by the doctrine of res judicata, merger and bar, collateral estoppel, lack of subjectmatter jurisdiction, and the statute of limitations. On 4 June 2008, the trial court entered an order dismissing the Lumber Company's claims as barred by the doctrine of res judicata. The Lumber Company appeals.
The dispositive issue on appeal is whether the trial court erred by dismissing the Lumber Company's claims as barred by the doctrine of res judicata.
"On a Rule 12(b)(6) motion to dismiss, the question is whether, as a matter of law, the allegations of the complaint, treated as true, state a claim upon which relief can be granted." Allred v. Capital Area Soccer League, Inc., ___ N.C. App. ___, ___, 669 S.E.2d 777, 778 (2008).
" Res judicata precludes a second suit involving the same claim between the same parties or those in privity with them when there has been a final judgment on the merits in a prior action in a court of competent jurisdiction." Moody v. Able Outdoor, Inc., 169 N.C. App. 80, 84, 609 S.E.2d 259, 262 (2005). In order to successfully assert the doctrine of res judicata, a litigant must prove three essential elements: "(1) a final judgment on the merits in an earlier suit, (2) an identity of the causes of action in both the earlier and the later suit, and (3) an identity of the parties or their privies in the two suits." Id.
In the instant case, the only essential element of res judicata that is in question is whether there is an identity of the causes of action. Under res judicata, "all matters, either fact orlaw, that were or should have been adjudicated in the prior action are deemed concluded." Thomas M. McInnis Assoc., Inc. v. Hall, 318 N.C. 421, 428, 349 S.E.2d 552, 556 (1986). "[S]ubsequent actions which attempt to proceed by asserting a new legal theory or by seeking a different remedy are prohibited under the principles of res judicata," Bockweg v. Anderson, 333 N.C. 486, 494, 428 S.E.2d 157, 163 (1993), because "the judgment in the former action or proceeding is conclusive in the latter not only as to all matters actually litigated and determined, but also as to all matters which could properly have been litigated and determined in the former action or proceeding." Fickley v. Greystone Enters., Inc., 140 N.C. App. 258, 260, 536 S.E.2d 331, 333 (2000) (citation omitted). "A party is required to bring forth the whole case at one time and will not be permitted to split the claim or divide the grounds for recovery[.]" Rodgers Builders v. McQueen, 76 N.C. App. 16, 23, 331 S.E.2d 726, 730 (1985).
The Lumber Company argues there is no identity of causes of action between West Durham I and the present case because the claims and issues are distinct from the claims in the former case. However, simply asserting a new legal theory or seeking a different remedy does not circumvent the application of res judicata. Bockweg, 333 N.C. at 494, 428 S.E.2d at 163. In the previous case, the Lumber Company sought to have the property in question sold in order to satisfy the Lumber Company's materialmen's lien. At the time the Lumber Company filed its action to enforce its lien on 6 October 2003, Suntrust had not only instituted foreclosureproceedings, but had actually sold the property for $425,000.00. Because the property had already been sold at the time the Lumber Company initiated its claim of lien, the Lumber Company should also have made a claim against surplus funds from the foreclosure sale by filing a claim with the clerk of court. See N.C. Gen. Stat. § 45-21.31(b) (2007). Because the Lumber Company failed to bring all claims at the time of its initial action, the doctrine of res judicata bars the Lumber Company's claims in the present action. The trial court did not err by dismissing the Lumber Company's claims under the doctrine of res judicata. Therefore, the order of the trial court is affirmed.
AFFIRMED.
Judges ELMORE and STEELMAN concur.
Report per Rule 30(e).