Bockweg v. Anderson

• Decision Date: 08 April 1993
• Docket Number: No. 7PA92,7PA92
• Citation: 428 S.E.2d 157,333 N.C. 486
• Court: North Carolina Supreme Court
• Parties: Cynthia BOCKWEG and husband, Gregory Bockweg v. Stephen G. ANDERSON, Bonney H. Clark, Executrix of the Estate of R. Perry B. Clark, and Lyndhurst Gynecologic Associates, P.A.

Page 157

428 S.E.2d 157

333 N.C. 486

Cynthia BOCKWEG and husband, Gregory Bockweg v. Stephen G. ANDERSON, Bonney H. Clark, Executrix of the Estate of R. Perry B. Clark, and Lyndhurst Gynecologic Associates, P.A.

No. 7PA92.

Supreme Court of North Carolina.

April 8, 1993.

On discretionary review pursuant to N.C.G.S. § 7A-31 prior to determination by the Court of Appeals of the denial of defendants' motion for summary judgment on the basis of res judicata by Hairston, J., entered on 8 October 1991 at the Civil Non-Jury Session of Superior Court, Forsyth County. By order dated 4 March 1992 the Supreme Court allowed defendants' petition for discretionary review in addition to writs of certiorari and supersedeas pursuant to N.C.G.S. § 7A-32(b). Heard in the Supreme Court 11 September 1992.

Grover C. McCain, Jr., Kenneth B. Oettinger, and William R. Hamilton, Chapel Hill, for plaintiff-appellees.

Petree Stockton & Robinson by J. Robert Elster, Stephen R. Berlin, and Henry C. Roemer, III, Winston-Salem, for defendant-appellants.

FRYE, Justice.

This case presents two issues for our review. First, we must determine whether the trial court's denial of defendants' motion for summary judgment based on the doctrine of res judicata is immediately appealable. If it is, we must then determine whether the trial court erred in this case by concluding that res judicata does not bar plaintiffs' present action. While we hold that the denial of defendants' motion for summary judgment based on res judicata is immediately appealable, we also hold that the trial court correctly concluded that the doctrine of res judicata does not bar plaintiffs' action in this case.

I.

Prior to the present action, plaintiffs filed a negligence action in the United States District Court for the Middle District of North Carolina [hereinafter the federal court action] against these and other defendants. Plaintiff Cynthia Bockweg claimed, inter alia, that: 1) defendants were negligent in their failure to monitor her nutrition and in their failure to provide the proper vitamins and trace elements in the intravenous feeding solution during her hospital stay which caused her to suffer brain damage; and 2) defendants were negligent in their failure to appropriately diagnose and treat a pelvic infection which led to the unnecessary loss of her reproductive organs. Plaintiff Gregory Bockweg claimed damages for loss of consortium, companionship, society and services resulting from defendants' negligence. On 2 November 1987, by stipulation, the parties voluntarily dismissed without prejudice the claim regarding the loss of Mrs. Bockweg's reproductive organs as to defendants Anderson, the Estate of R. Perry B. Clark (Estate of Clark), Lyndhurst Gynecologic Associates (Lyndhurst Associates) and another defendant. After the partial voluntary dismissal, the Estate of Clark was no longer a party defendant in the federal court action. Before proceeding to trial in federal court, plaintiffs settled with various other defendants with respect to the claim regarding Mrs. Bockweg's brain damage. The case proceeded to trial in federal court in March 1989 as against defendants Anderson and Lyndhurst Associates based on the claim regarding Mrs. Bockweg's brain damage. The jury returned a verdict in favor of defendants, finding that plaintiffs were not damaged by the negligence of these defendants. Judgment was entered accordingly on 27 March 1989.

On 18 October 1988, within one year of the partial voluntary dismissal, the claim regarding the loss of Mrs. Bockweg's reproductive organs was refiled by plaintiffs in Forsyth County Superior Court [hereinafter the state court action]. Defendants moved to dismiss the action on the basis of the statute of limitations set forth in N.C.G.S. § 1-15(c). The trial court treated the motion as a motion for summary judgment and granted the motion. Plaintiffs appealed to the Court of Appeals which reversed the trial court. Bockweg v. Anderson, 96 N.C.App. 660, 387 S.E.2d 59 (1990). On discretionary review requested by defendants, this Court affirmed the Court of Appeals, holding that the savings provision of N.C.G.S. § 1A-1, Rule 41(a)(1) applies when parties "stipulate to a voluntary dismissal without prejudice of an action in a federal district court sitting in North Carolina and plaintiffs file the same action within the one-year period in a North Carolina state court." Bockweg v. Anderson, 328 N.C. 436, 437, 402 S.E.2d 627, 627, reh'g denied, 329 N.C. 277, 406 S.E.2d 599 (1991) (Bockweg I ).

Upon remand to the Superior Court, defendants Anderson, the Estate of Clark, and Lyndhurst Associates filed a motion to dismiss, an alternative motion for summary judgment based on res judicata and estoppel, a motion for credit and their answer. Judge Hairston denied defendants' motion for summary judgment on 8 October 1991. Defendants appealed to the Court of Appeals and filed a petition in this Court for discretionary review prior to determination by the Court of Appeals on the res judicata issue. On 21 January 1992, plaintiffs filed a motion to dismiss appeal in the Court of Appeals. The Court of Appeals dismissed the appeal on 4 February 1992. Defendants then filed petitions for writs of certiorari and supersedeas in this Court. On 4 March 1992, this Court allowed the writs and petition. We now affirm the trial court.

II.

In reviewing the trial court's denial of defendants' motion for summary judgment, we must view the facts in the light most favorable to the non-moving party. Flippin v. Jarrell, 301 N.C. 108, 111, 270 S.E.2d 482, 485 (1980), reh'g denied, 301 N.C. 727, 274 S.E.2d 228 (1981). Taken in this light, the allegations of the complaint in the present state court action show the following sequence of events. On 4 December 1983 plaintiff Cynthia Bockweg was admitted to Forsyth Memorial Hospital by her obstetrician R. Perry B. Clark for delivery of her baby. The baby was delivered by cesarean section. During the cesarean section, a laceration of a uterine segment occurred and was reportedly repaired by Dr. Clark. Post-operatively, Mrs. Bockweg developed an infection and fever and was treated with antibiotics prior to her discharge from the hospital on 11 December 1983.

Due to her continued fevers and discomfort, Mrs. Bockweg was readmitted to the hospital on 16 December 1983 by Stephen Anderson, the medical partner of Dr. Clark. Both of the doctors practiced with Lyndhurst Associates. When Mrs. Bockweg was readmitted she was diagnosed as having a "wound infection." A pelvic examination resulted in a diagnosis of parametritis, pelvic cellulitis, and probable ovarian abscess. On 2 January 1984, Dr. Anderson performed a laparotomy for the purpose of draining her abscess and also performed a complete hysterectomy and bilateral salpingo-oophorectomy on plaintiff. Subsequently, on 9 January 1984, Dr. Anderson performed another incision and drainage operation. On 7 February 1984, Mrs. Bockweg was finally discharged from the hospital. As a result of defendants' negligent diagnosis and treatment of the pelvic infection, Mrs. Bockweg underwent a hysterectomy and salpingo-oophorectomy resulting in the loss of her ability to bear children, prolonged hospitalization, pain, suffering, disability, loss of income and medical expenses.

III.

Plaintiffs contend that defendants' appeal from the trial court's order denying their motion for summary judgment is interlocutory, premature and should be dismissed. 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." See Waters v. Personnel, Inc., 294 N.C. 200, 208, 240 S.E.2d 338, 344 (1978). 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." Green v. Duke Power Co., 305 N.C. 603, 606, 290 S.E.2d 593, 595 (1982) (quoting Survey in Developments in N.C. Law, 1978, 57 N.C.L.Rev. 827, 907-08 (1979)). See also Patterson v. DAC Corp., 66 N.C.App. 110, 310 S.E.2d 783 (1984) (appeal from order allowing summary judgment as to some defendants not premature where defendants' actions were interrelated since plaintiff might otherwise face a second trial based on the same issues and a possibility of inconsistent verdicts).

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). 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. N.C.G.S. § 1-277 (1983); N.C.G.S. § 7A-27(d) (1989). See also Kleibor v. Rogers, 265 N.C. 304, 306, 144 S.E.2d 27, 29 (1965) (holding that an order "which sustains a demurrer to a plea in bar [res judicata ] affects a substantial right and a defendant may appeal therefrom"). Accordingly, we reject plaintiffs' contention that defendants' appeal in this case should be dismissed.

IV.

We now turn to whether the trial court erred in denying defendants' motion for summary judgment based on res judicata. We conclude that the trial court did not err in denying defendants' motion....