Nationwide Mut. Ins. Co. v. Douglas, COA01-52.

• Decision Date: 28 December 2001
• Docket Number: No. COA01-52.,COA01-52.
• Citation: 148 NC App. 195,557 S.E.2d 592
• Court: North Carolina Court of Appeals
• Parties: NATIONWIDE MUTUAL INSURANCE COMPANY, Plaintiff, v. Kelly DOUGLAS and Jerry Fogleman, Defendants.

557 S.E.2d 592

148 NC App. 195

NATIONWIDE MUTUAL INSURANCE COMPANY, Plaintiff, v. Kelly DOUGLAS and Jerry Fogleman, Defendants.

No. COA01-52.

Court of Appeals of North Carolina.

December 28, 2001.

Bailey & Dixon, L.L.P., by Gary S. Parsons and A. John Hoomani, Raleigh, for plaintiff.

Harrison, North, Cooke & Landreth, by A. Wayland Cooke, Greensboro, and Bennett, Beswick, McConkey & Marquardt, L.L.P., by George W. Beswick, Morehead, for defendant-appellant Kelly Douglas. WYNN, Judge.

Kelly Douglas appeals from the entry of judgment on the pleadings favoring Nationwide Mutual Insurance Company. We affirm.

The underlying facts show that while Kelly Douglas stayed at a home owned by Jerry Fogleman and insured by Nationwide Insurance, Fogleman secretly videotaped her in the bathroom. Following Fogleman's conviction under the secret peeping statute, N.C. Gen.Stat. § 14-202 (1999), Douglas brought a civil action against him alleging intentional infliction of emotional distress and invasion of privacy (98 CVS 386). Nationwide Insurance defended Fogleman under a reservation of rights, and a jury awarded Douglas compensatory damages in the amount of $33,000.00 and punitive damages in the amount of $50,000.00.

On 30 December 1999, Nationwide Insurance brought a declaratory judgment action in Superior Court, Wake County, seeking relief from any obligation to indemnify Fogleman on the judgment against him. Subsequently, Superior Court Judge A. Leon Stanback, Jr., ordered a change of venue to Carteret County. On 20 June 2000, Nationwide Insurance voluntarily dismissed that action without prejudice under N.C. Gen.Stat. § 1A-1, Rule 41 (1999).

Three days later at 12:54 p.m., Douglas filed a declaratory judgment action in Superior Court, Carteret County seeking an adjudication on the same issues under the action previously dismissed by Nationwide Insurance. About three and one-half hours later, Nationwide Insurance refiled its declaratory judgment action in Superior Court, Wake County.

Notwithstanding notice of the pending action in Carteret County, Superior Court Judge Abraham Penn Jones entered judgment in the Wake County action (1) denying Douglas's motion to dismiss based on the pending action in Carteret County, (2) denying Douglas's alternative motion for change of venue to Carteret County, and (3) granting Nationwide Insurance's Rule 12(c) motion for judgment on the pleadings. We uphold the trial court's judgment.

Douglas argues that the trial court should have dismissed Nationwide Insurance's action in Wake County because she had filed an action about three and one-half hours earlier in Carteret County (00 CVS 726). "Under the law of this state, where a prior action is pending between the same parties for the same subject matter in a court within the state having like jurisdiction, the prior action serves to abate the subsequent action." Eways v. Governor's Island, 326 N.C. 552, 558, 391 S.E.2d 182, 185 (1990) (citing McDowell v. Blythe Brothers Co., 236 N.C. 396, 72 S.E.2d 860 (1952); Cameron v. Cameron, 235 N.C. 82, 68 S.E.2d 796 (1952)). See State ex rel. Onslow County v. Mercer, 128 N.C.App. 371, 496 S.E.2d 585 (1998). Douglas's motion to dismiss presents essentially the same questions as the outmoded plea of abatement, and was properly raised in her responsive pleading. See Brooks v. Brooks, 107 N.C.App. 44, 47, 418 S.E.2d 534, 536 (1992) ("[a] plea in abatement based on a prior pending action ... is a preliminary motion of the type enumerated in Rule 12(b)(2)-(5) and the time for filing such motion is governed by that rule"); Lehrer v. Edgecombe Mfg. Co., 13 N.C.App. 412, 185 S.E.2d 727 (1972).

However, in Mercer, this Court recognized that the plea of abatement doctrine serves the purpose of avoiding a subsequent action which is "wholly unnecessary and therefore, in the interest of judicial economy, should be subject to a plea in abatement." 128 N.C.App. at 375,496 S.E.2d at 587. In this matter, in light of our recent decision in N.C. Farm Bureau Mut. Ins. Co. v. Allen, ___ N.C.App. ___, 553 S.E.2d 420 (2001), judgment on the pleadings in favor of Nationwide Insurance would be warranted regardless of whether we allow the Wake County judgment to stand or remand this matter on the basis of the plea of abatement doctrine to be decided in Carteret County. Remanding this matter for abatement of the Wake County action in deference to the Carteret County action would therefore offend the purpose behind the abatement doctrine. Thus, in the interest of judicial economy, we discern no reason...