Gregory v. Penland

• Decision Date: 19 September 2006
• Docket Number: No. COA05-885.,No. COA05-952.,No. COA05-953.,COA05-885.,COA05-952.,COA05-953.
• Citation: 634 S.E.2d 625
• Court: North Carolina Court of Appeals
• Parties: Michael Harrison GREGORY and wife, Vivian Gregory, Plaintiffs, v. Leon Reece PENLAND, Sr., Administrator of the Estate of Leon Reece Penland, Jr., Defendant. Jill Ann Ward and husband, William Bryan Ward, Plaintiffs, v. Leon Reece Penland, Sr., Administrator of the Estate of Leon Reece Penland, Jr., Defendant. Shirley Christy Snapp and husband, Joseph Lee Snapp, Plaintiffs, v. Leon Reece Penland, Sr., Administrator of the Estate of Leon Reece Penland, Jr., Defendant.

634 S.E.2d 625

Michael Harrison GREGORY and wife, Vivian Gregory, Plaintiffs, v. Leon Reece PENLAND, Sr., Administrator of the Estate of Leon Reece Penland, Jr., Defendant.

Jill Ann Ward and husband, William Bryan Ward, Plaintiffs, v. Leon Reece Penland, Sr., Administrator of the Estate of Leon Reece Penland, Jr., Defendant.

Shirley Christy Snapp and husband, Joseph Lee Snapp, Plaintiffs, v. Leon Reece Penland, Sr., Administrator of the Estate of Leon Reece Penland, Jr., Defendant.

No. COA05-885.

No. COA05-952.

No. COA05-953.

Court of Appeals of North Carolina.

September 19, 2006.

COPYRIGHT MATERIAL OMITTED

Appeal by defendant from judgments entered 7 April 2005 by Judge William C. Gore in Brunswick County Superior Court. Heard in the Court of Appeals 21 February 2006.

Baker & Slaughter P.A., by H. Mitchell Baker, III and M. Troy Slaughter, Wilmington, for plaintiffs-appellees.

Johnson, Lambeth & Brown, by Maynard M. Brown and Anna J. Averitt, Wilmington, for defendant-appellant.

GEER, Judge.

Defendant, the Administratrix of the Estate of Leon Reece Penland, Jr.,¹ appeals from an order of the trial court denying her motion for summary judgment and granting summary judgment to plaintiffs Vivian and Michael Harrison Gregory, Jill Ann and William Bryan Ward, and Shirley and Joseph Snapp with respect to defendant's affirmative defenses of res judicata and collateral estoppel. As the issues presented in these separate appeals involve common questions of law, we have consolidated the appeals for purposes of decision.

Defendant contends that a finding of the North Carolina Industrial Commission, in an action brought under the State Tort Claims Act, that Leon Reece Penland, Jr. ("SPC Penland") was not grossly negligent precludes recovery in this case under N.C. Gen. Stat. § 166A-14 (2005). Because, however, the Industrial Commission proceeding and this action do not involve an identity of claims or parties, the doctrine of res judicata is inapplicable. Further, the Commission had no jurisdiction to make any finding regarding SPC Penland, and, therefore, the gross negligence finding cannot be a basis for collateral estoppel. Accordingly, we hold the trial court properly granted summary judgment on defendant's affirmative defenses.

Facts

The facts of this case are largely undisputed. On 14 September 1999, following Hurricane Floyd, North Carolina Governor James B. Hunt, Jr. issued a Proclamation of a State of Disaster for the North Carolina coastline under the North Carolina Emergency Management Act, N.C. Gen.Stat. §§ 166A-1 through -53 (2005). As part of the Emergency Operations Plan, the North Carolina National Guard, including SPC Penland, was called to active duty in the area of Oak Island, North Carolina. The National Guard and volunteers, including plaintiffs Jill Ward, Michael Gregory, and Shirley Snapp, performed beach patrols in which they attempted to keep people off of the beaches.

Late in the evening on 22 September 1999, SPC Penland was waiting at a local fire department for another National Guard member. While there, SPC Penland met Ms. Ward, Mr. Gregory, and Ms. Snapp, who told SPC Penland that they were bored and were interested in riding in a Humvee. Although he had never previously driven a Humvee on a beach, SPC Penland offered to take the group in a Humvee on a beach patrol.

SPC Penland drove east along the beach until the end of the island, turned around, "gunned the engine," and "did a little fish-tail" before straightening back out. Although Mr. Gregory advised SPC Penland to follow his outbound tracks and stay on the hard-packed sand if he wished to increase the speed, SPC Penland drove toward the softer sand by the dunes and "accelerat[ed] to significantly higher speeds than he had originally driven." As the Humvee bounced over the dunes, "the vehicle became airborne," then "landed and . . . vaulted again."

When it landed for the second time, the Humvee flipped over. All three passengers were injured, and SPC Penland was thrown from the vehicle and killed. No one had seen the speedometer, but Ms. Ward and Ms. Snapp believed the vehicle had been going "extremely fast," which Ms. Ward estimated to be about 50 or 55 miles per hour. Mr. Gregory estimated that the Humvee had been going between 40 and 50 miles per hour.

Plaintiffs ultimately filed a complaint against defendant in Brunswick County Superior Court alleging gross negligence by SPC Penland. Based on the same facts, plaintiffs also brought an action in the Industrial Commission against the North Carolina National Guard under the State Tort Claims Act, N.C. Gen.Stat. §§ 143-291 through -300.1A (2005). Prior to the adjudication of plaintiffs' claims in superior court, Deputy Commissioner Morgan S. Chapman denied plaintiffs' claims in the Industrial Commission. Plaintiffs appealed and, on 2 December 2003, the Full Commission likewise entered an opinion and award in favor of the State.

The Commission relied upon N.C. Gen. Stat. § 166A-14(a), which provides:

(a) All functions hereunder and all other activities relating to emergency management are hereby declared to be governmental functions. Neither the State nor any political subdivision thereof, nor, except in cases of willful misconduct, gross negligence or bad faith, any emergency management worker complying with or reasonably attempting to comply with this Article or any order, rule or regulation promulgated pursuant to the provisions of this Article or pursuant to any ordinance relating to any emergency management measures enacted by any political subdivision of the State, shall be liable for the death of or injury to persons, or for damage to property as a result of any such activity.

Applying this statute, the Commission found that SPC Penland "was an emergency management worker acting within the course of his employment" on the date of the accident and that he had "breached his duty of care" toward plaintiffs. The Commission concluded, however, that plaintiffs were not entitled to recover under the State Tort Claims Act because the Emergency Management Act did not permit recovery against the State for an emergency management worker's actions "committed during emergency management operations." The Commission further found that SPC Penland's "actions did not rise to the level required in order to constitute gross negligence," as required for individual liability under the Emergency Management Act. Plaintiffs ultimately chose not to appeal the Full Commission's decision.

Subsequently, defendant moved for summary judgment in superior court, contending that the Commission's finding that SPC Penland was not grossly negligent precluded plaintiffs' action based on res judicata and collateral estoppel. The court disagreed and instead entered summary judgment for plaintiffs on defendant's defenses of res judicata and collateral estoppel. Defendant timely appealed to this Court.

Discussion

As an initial matter, we must address whether this Court has jurisdiction to hear defendant's appeal since it involves an interlocutory order. An order is interlocutory if "it is made during the pendency of an action and does not dispose of the case but requires further action by the trial court in order to finally determine the entire controversy." Howerton v. Grace Hosp., Inc., 124 N.C.App. 199, 201, 476 S.E.2d 440, 442 (1996). There is generally no right to appeal an interlocutory order. Id.

An interlocutory order is subject to immediate appeal only if (1) the order is final as to some but not all of the claims or parties, and the trial court certifies the case for appeal pursuant to Rule 54(b) of the Rules of Civil Procedure, or (2) the trial court's decision deprives the appellant of a substantial right that will be lost absent immediate review. Id. Because the trial court did not include a Rule 54(b) certification in its order, we have jurisdiction over defendant's appeal only if the trial court's order deprived defendant of a substantial right.

"`The right to avoid one trial on . . . disputed issues is not normally a substantial right that would allow an interlocutory appeal, [but] 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 of Developments in N.C. Law, 1978, 57 N.C. L.Rev. 827, 907-08 (1979)). In such situations, "[a] substantial right is affected when `(1) the same factual issues would be present in both trials and (2) the possibility of inconsistent verdicts on those issues exists.'" In re Estate of Redding v. Welborn, 170 N.C.App. 324, 328, 612 S.E.2d 664, 668 (2005) (quoting N.C. Dep't of Transp. v. Page, 119 N.C.App. 730, 735-36, 460 S.E.2d 332, 335 (1995)).

Because the issues raised by defendant on appeal, if resolved in her favor, meet these criteria, we hold that defendant has sufficiently demonstrated the existence of a substantial right that would be lost if we waited to review these issues until after a final judgment. See Bockweg v. Anderson, 333 N.C. 486, 491, 428 S.E.2d 157, 161 (1993) (noting "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" because defendant may "twice have to defend against the same claim by the same plaintiff [and participate in] . . . a second trial in frustration of the underlying principles of the doctrine of res judicata"). Accordingly, we have jurisdiction to address defendant's argument that plaintiffs' claims are barred by the doctrines of res judicata and collateral estoppel.

I

Our Supreme Court recently explained that "[u]nder 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...