Rymer v. Estate of Sorrells By and Through Sorrells

• Citation: 127 N.C.App. 266,488 S.E.2d 838
• Decision Date: 19 August 1997
• Docket Number: No. COA96-1210,COA96-1210
• Parties: Cynthia Jo RYMER and Joan Trull, Plaintiffs-Appellees, v. ESTATE OF Ralph Henry SORRELLS, Jr., By and Through the Court Appointed Collector, Elson Britt SORRELLS, Defendant-Appellant.
• Court: North Carolina Court of Appeals

Page 838

488 S.E.2d 838

127 N.C.App. 266

Cynthia Jo RYMER and Joan Trull, Plaintiffs-Appellees, v. ESTATE OF Ralph Henry SORRELLS, Jr., By and Through the

Court Appointed Collector, Elson Britt SORRELLS,

Defendant-Appellant.

No. COA96-1210.

Court of Appeals of North Carolina.

Aug. 19, 1997.

Hyler & Lopez, P.A. by George B. Hyler, Jr., Michele M. Watson, and Robert J. Lopez, Asheville, for plaintiffs-appellees.

Cogburn Goosmann Brazil & Rose, P.A. by Steven D. Cogburn, Asheville, for defendant-appellant.

WYNN, Judge.

The facts of this case arise from the same accident addressed by our decision of Trantham v. Estate of Sorrells, 121 N.C.App. 611, 468 S.E.2d 401 (1996), disc. review denied, 343 N.C. 311, 471 S.E.2d 82 (1996):

On 26 January 1991, ... Tina Trantham visited a bar in Haywood County where she met Cynthia Rymer and agreed to spend the night at her house. They rode together in Ms. Rymer's car which was driven by defendant-decedent, Ralph Henry Sorrells. Ms. Rymer had asked him to drive because she had consumed too much alcohol and Mr. Sorrells had represented that he had consumed only two beers.

Ms. Rymer rode in the front passenger seat, and Ms. Trantham and a male friend of Mr. Sorrells' rode in the back seat. During the course of the drive from Waynesville towards Canton on Interstate 40, Mr. Sorrells drove at a dangerously high rate of speed despite repeated protests and requests by Ms. Rymer and Ms. Trantham for him to slow down. He eventually stopped the car at a convenience store near Clyde, North Carolina where all of the occupants got out and entered the store. After assuring Ms. Rymer that he would drive slower, Mr. Sorrells continued driving the car. Nevertheless, he resumed driving at an excessively high speed again over the protests of Ms. Rymer and Ms. Trantham. Tragically, after turning onto North Canton Road, Mr. Sorrells drove the car into a wall on the roadside causing it to careen into a tree killing him and severely injuring Ms. Trantham and the other passengers.

Id. at 612, 468 S.E.2d at 402.

In Trantham, a jury found Mr. Sorrells negligent and grossly negligent, Tina Trantham contributorily negligent and grossly contributorily negligent, but awarded Ms. Trantham $25,000 after finding that Mr. Sorrells had the last clear chance to avoid the accident. This court upheld the submission of the issue of last clear chance to the jury and affirmed the trial court's decision. Trantham, 121 N.C.App. at 612, 468 S.E.2d at 402.

The instant case involves a suit brought against Mr. Sorrells' estate by the front seat passenger-owner Cynthia Jo Rymer. Prior to trial, the trial court granted partial summary judgment in favor of Ms. Rymer on the issue of liability on the grounds that the Trantham judgment operated as collateral estoppel on the issues of Mr. Sorrell's negligence, gross negligence and last clear chance. Following a hearing on the issue of damages, the trial court entered judgment for Ms. Rymer in the amount of $25,000 plus costs. The Estate of Sorrells appealed to this Court.

This case presents two issues on appeal: (I) Does North Carolina authorize the non-mutual, offensive use of collateral estoppel; and (II) If so, did the trial court abuse its discretion in applying it in this case. We find that our state does authorize the non-mutual, offensive use of collateral estoppel but conclude that it would be inequitable to allow Ms. Rymer to assert it in this case. We, therefore, reverse and remand the judgment of the trial court.

I.

"Collateral estoppel precludes relitigation of an issue decided previously in judicial or administrative proceedings provided the party against whom the prior decision was asserted enjoyed a full and fair opportunity to litigate that issue in an earlier proceeding." In re McNallen, 62 F.3d 619, 624 (4th Cir.1995). See also King v. Grindstaff, 284 N.C. 348, 358, 200 S.E.2d 799, 806 (1973).

Until recently, our courts limited the application of collateral estoppel to parties or those in privity with them by requiring "mutuality": both parties had to be bound by the earlier judgment. King v. Grindstaff, 284 N.C. at 357, 200 S.E.2d at 805. However, in 1986, our Supreme Court, recognizing that "[t]he modern trend in both federal and state courts is to abandon the requirement of mutuality for collateral estoppel," eliminated the mutuality requirement for defensive collateral estoppel. Thomas M. McInnis & Assoc., Inc. v. Hall, 318 N.C. 421, 432, 349 S.E.2d 552, 558 (1986)(non-mutual, defensive use of collateral estoppel occurs when a defendant seeks to prevent a plaintiff from relitigating an issue the plaintiff has previously litigated unsuccessfully in another action against a different party. See Parklane Hosiery Company v. Shore, 439 U.S. 322, 326, 99 S.Ct. 645, 649, 58 L.Ed.2d 552, 559 (1979)).

In the subject case, Ms. Rymer was not a party to the Trantham litigation, but she seeks to use the Trantham judgment against the Estate of Sorrells, which was a party in Trantham. This is known as non-mutual, offensive collateral estoppel: a plaintiff seeks to foreclose a defendant from relitigating an issue that the defendant has previously litigated unsuccessfully in another action against a different party. See Parklane, supra. In principle, this Court in Tar Landing Villas v. Town of Atlantic Beach, 64 N.C.App. 239, 307 S.E.2d 181 (1983), disc. rev. denied, 310 N.C. 156, 311 S.E.2d 296 (1984), approved of the use of non-mutual, offensive collateral estoppel even though we chose not to apply it in that case. Writing for the Court, Judge Wells stated:

While we recognize these exceptions [regarding mutuality and offensive application] and approve of the expanded doctrine as a way to end vexatious litigation, we, nevertheless, find that it would be inequitable to allow petitioners, even those with privity, to assert the doctrine in this case.

Id. at 243, 307 S.E.2d at 185.

Again, we reiterate Judge Wells' recognition of the modern trend and conclude that mutuality of parties is no longer required when invoking either offensive or defensive collateral estoppel.

II.

Having determined that our law allows a non-mutual party to assert offensive collateral estoppel, we next consider whether it would be inequitable to allow Ms. Rymer to do so under the facts of this case.

In Parklane, the United States Supreme Court expressed its...