McCallum v. COOPERATIVE EXTENSION SERVICE

• Decision Date: 06 February 2001
• Docket Number: No. COA99-1434.,COA99-1434.
• Citation: 542 S.E.2d 227,142 NC App. 48
• Court: North Carolina Court of Appeals
• Parties: Benjamin F. McCALLUM, Plaintiff-Appellee, v. NORTH CAROLINA COOPERATIVE EXTENSION SERVICE OF N.C. CAROLINA STATE UNIVERSITY and Patricia Barber in her official capacity, Defendants-Appellants.

542 S.E.2d 227

142 NC App. 48

Benjamin F. McCALLUM, Plaintiff-Appellee, v. NORTH CAROLINA COOPERATIVE EXTENSION SERVICE OF N.C. CAROLINA STATE UNIVERSITY and Patricia Barber in her official capacity, Defendants-Appellants.

No. COA99-1434.

Court of Appeals of North Carolina.

February 6, 2001.

McSurely & Osment, by Alan McSurely and Ashley Osment, Chapel Hill, for plaintiff appellee.

Attorney General Michael F. Easley, by Assistant Attorney General Celia Grasty Lata, for defendant appellants.

HORTON, Judge.

The denial of summary judgment is not a final judgment, but rather is interlocutory in nature. We do not review interlocutory orders as a matter of course. Veazey v. Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381,reh'g denied,232 N.C. 744, 59 S.E.2d 429 (1950). If, however, "the trial court's decision deprives the appellant of a substantial right which would be lost absent immediate review[,]" we may review the appeal under N.C.Gen.Stat. §§ 1-277(a) and 7A-27(d)(1). N.C. Dept. of Transportation v. Page, 119 N.C.App. 730, 734, 460 S.E.2d 332, 334 (1995). The moving party must show that the affected right is a substantial one, and that deprivation of that right, if not corrected before appeal from final judgment, will potentially injure the moving party. Goldston v. American Motors Corp., 326 N.C. 723, 726, 392 S.E.2d 735, 736 (1990). Whether a substantial right is affected is determined on a case-by-case basis. Bernick v. Jurden, 306 N.C. 435, 439, 293 S.E.2d 405, 408 (1982).

We have ruled that "appeals raising issues of governmental or sovereign immunity affect a substantial right sufficient to warrant immediate appellate review." Price v. Davis, 132 N.C.App. 556, 558-59, 512 S.E.2d 783, 785 (1999); Derwort v. Polk County, 129 N.C.App. 789, 790, 501 S.E.2d 379, 380 (1998). As a state agency, NCCES is shielded by sovereign immunity from suits based on torts committed while performing a governmental function. Therefore, to the extent defendants' appeal is based on an affirmative defense of immunity, this appeal is properly before us.

Further, our Supreme Court has ruled that the denial of a motion for summary judgment based on the defense of res judicata (or claim preclusion) is immediately appealable. Bockweg v. Anderson, 333 N.C. 486, 491, 428 S.E.2d 157, 161 (1993). Under the doctrine of res judicata, a final judgment on the merits in a prior action precludes a second suit involving the same claim between the same parties. Thomas M. McInnis & Assoc., Inc. v. Hall, 318 N.C. 421, 428, 349 S.E.2d 552, 556 (1986). Denial of a summary judgment motion based on res judicata raises the possibility that a successful defendant will twice have to defend against the same claim by the same plaintiff, in frustration of the underlying principles of claim preclusion. Bockweg, 333 N.C. at 491, 428 S.E.2d at 161. Thus, the denial of summary judgment based on the defense of res judicata can affect a substantial right and may be immediately appealed. Id.

Like res judicata, collateral estoppel (issue preclusion) is "`designed to prevent repetitious lawsuits over matters which have once been decided and which have remained substantially static, factually and legally.'" King v. Grindstaff, 284 N.C. 348, 356, 200 S.E.2d 799, 805 (1973) (quoting Commissioner v. Sunnen, 333 U.S. 591, 599, 68 S.Ct. 715, 92 L.Ed. 898, 907 (1948)). Under collateral estoppel, parties are precluded from retrying fully litigated issues that were decided in any prior determination, even where the claims asserted are not the same. McInnis, 318 N.C. at 428, 349 S.E.2d at 557. The denial of summary judgment based on collateral estoppel, like res judicata, may expose a successful defendant to repetitious and unnecessary lawsuits. Accordingly, we hold that the denial of a motion for summary judgment based on the defense of collateral estoppel may affect a substantial right, and that defendants' appeal, although interlocutory, is properly before us.

Summary judgment is appropriate when there is no genuine issue as to any material fact, and a party is entitled to a judgment as a matter of law. N.C.Gen.Stat. § 1A-1, Rule 56(c) (1999). Defendants assert, on two separate grounds, that they are entitled to such judgment. Defendants first contend that issues dispositive of plaintiff's claims of racial discrimination, equal protection violations and retaliatory discharge have already been litigated to final judgment by the federal court, and that collateral estoppel bars re-litigation of these issues. Second, they argue that plaintiff was an at-will employee with no property right in his employment. We will consider each argument separately.

I. Collateral Estoppel

Under the doctrine of collateral estoppel, when an issue has been fully litigated and decided, it cannot be contested again between the same parties, even if the first adjudication is conducted in federal court and the second in state court. King, 284 N.C. at 359,200 S.E.2d at 807. Plaintiff argues, however, that collateral estoppel cannot bar a state constitutional claim based on a denial of equal protection or due process, regardless of previous federal court adjudications, because only North Carolina courts can "`[answer] with finality'" "`[w]hether rights guaranteed by the Constitution of North Carolina have been provided....'" Evans v. Cowan, 122 N.C.App. 181, 184, 468 S.E.2d 575, 577,disc. review denied, appeal retained, 343 N.C. 510, 471 S.E.2d 634, affirmed, 345 N.C. 177, 477 S.E.2d 926 (1996) (quoting State v. Arrington, 311 N.C. 633, 643, 319 S.E.2d 254, 260 (1984)). Plaintiff contends that since "[o]ur courts ... when construing provisions of the North Carolina Constitution, are not bound by opinions of the federal courts `construing even identical provisions in the Constitution of the United States[,]'" defendants' collateral estoppel argument fails. Evans, 122 N.C.App. at 183-84,468 S.E.2d at 577. Plaintiff also bases his argument upon our recent decision in City-Wide Asphalt Paving, Inc. v. Alamance County, 132 N.C.App. 533, 513 S.E.2d 335,appeal dismissed and disc. review denied, 350 N.C. 826, 537 S.E.2d 815 (1999),

which held that neither res judicata nor collateral estoppel barred plaintiff's state constitutional claims, even though plaintiff's claims under the federal constitution had been previously litigated in federal court.

We find neither Evans nor City-Wide controlling in the instant case. Unlike the case before us, the issue before the Evans Court was "whether plaintiff's state constitutional claims against defendants are barred by res judicata"—not by collateral estoppel. Evans, 122 N.C.App. at 183, 468 S.E.2d at 577. In Evans, plaintiff's claims, based on violations of both the federal and the state constitutions, were initially litigated in federal court, which granted summary judgment to defendants as to all but the state constitutional claims. On remand to state court, defendants argued that plaintiff's claims under the state constitution were identical to plaintiff's claims under the federal constitution, and therefore plaintiff's subsequent litigation was barred under the doctrine of res judicata. Affirming that North Carolina courts "`have the authority to construe our own constitution differently from the construction... of the Federal Constitution,'" this Court held that "the claims asserted by the plaintiff in the State Court on the basis of the North Carolina Constitution are not identical to the claims asserted by the plaintiff in the Federal Court on the basis of the United States Constitution...." Evans, 122 N.C.App. at 184, 468 S.E.2d at 577. Thus, concluded the Court, the doctrine of res judicata did not bar plaintiff's claim.

We also find the decision in City-Wide distinguishable from the instant case. There, plaintiff appealed its state constitutional law claims to this Court from the trial court's grant of defendants' summary judgment motion. Confusing the principles of collateral estoppel with those of res judicata, defendants argued that, because plaintiff's claims under the U.S. Constitution had been previously determined, and because those claims were identical to plaintiff's claims based on violations of the North Carolina Constitution, plaintiff was collaterally estopped from re-litigating "identical issues ... determined by the federal court." City-Wide, 132 N.C.App. at 536, 513 S.E.2d at 337. Defendants failed to specify, however, what the "identical issues" decided by the federal court were. This Court rejected defendants' argument, reaffirming Evans `principle that claims brought under the North Carolina Constitution must be independently determined from claims brought under the U.S. Constitution. Thus, neither res judicata nor collateral estoppel barred plaintiff's claims.

Like the defendants in City-Wide, plaintiff in the instant case conflates the doctrines of collateral estoppel and res judicata. The City-Wide defendants argued that, because the claims in the federal and state courts were essentially identical, the issues to be decided by each court were necessarily the same and collateral estoppel barred their re-litigation. Here, plaintiff contends that, because his claims in federal and state court are different, the issues cannot be the same, and that therefore collateral estoppel cannot apply. We disagree. Although plaintiff's present state court claims are different from those brought in federal court, his state court claims may contain issues previously litigated and determined in the federal court. Thus, plaintiff may be collaterally estopped from re-litigating these issues. To hold otherwise, as plaintiff suggests we should, would mean that state courts are never barred from hearing state constitutional claims or issues pertinent to such claims, even when such issues have been previously litigated in the federal courts. Such a finding would directly violate the underlying principle of judicial economy that precipitated...