Skeen v. McIntyre, No. COA06-910 (N.C. App. 3/4/2008)
| Decision Date | 04 March 2008 |
| Docket Number | No. COA06-910,COA06-910 |
| Parties | VERGIL SKEEN, Plaintiff v. RAY G. McINTYRE, Defendant |
| Court | North Carolina Court of Appeals |
Klein & Freeman, PLLC, by Katherine Freeman and Paul I. Klein, for plaintiff-appellant.
Templeton & Raynor, P.A., by Kenneth R. Raynor, for defendant-appellee.
Vergil Skeen ("plaintiff") appeals from an order of the trial court granting summary judgment in favor of Ray G. McIntyre ("Mr. McIntyre" or "defendant") on the basis of collateral estoppel. We affirm.
Defendant, a citizen and resident of the state of Florida, is the president and primary shareholder of Cart Products, Inc. ("Cart Products") and Warren & Sweat Manufacturing, Inc. ("Warren & Sweat") (collectively "the corporations"). The corporations design, manufacture and distribute hunting stands. In 2001, plaintiff purchased a hunting tree stand ("the stand") allegedly designed and manufactured by defendant. On 6 October 2001, plaintiff was injured when the stand collapsed during use.
On 12 June 2002, plaintiff filed a complaint in Gaston County Superior Court against the corporations, Sports Authority, Inc. ("Sports Authority") and Florida Hunting Supplies ("Florida H.S.") alleging the defective stand caused his injuries (this action will be referred to as "the prior action"). Plaintiff later amended the complaint to remove Florida H.S. as a party and add three new claims to the original claims for negligence and breach of warranty. Defendant was not named as a defendant in the prior action or in the amended complaint. The three new claims were: fraud, unfair and deceptive trade practices ("UDTP") and spoliation of evidence.
Cart Products filed a motion to dismiss plaintiff's cause of action for spoliation of evidence pursuant to North Carolina Rules of Civil Procedure Rule 12(b)(6). The trial court granted the motion. Subsequently, Cart Products filed a motion for a partial summary judgment to dismiss plaintiff's causes of action for fraud and UDTP pursuant to Rule 56 of the North Carolina Rules of Civil Procedure and this motion was also granted.
On 17 May 2004, plaintiff filed a voluntary dismissal without prejudice of his negligence and breach of warranty actions, the two remaining claims against the corporations. Subsequently, plaintiff filed a notice of appeal on 24 May 2004 challenging the dismissal of the fraud and UDTP claims. Plaintiff's appeal was dismissed by this Court in an unpublished opinion for failure to include anotice of appeal in the record. See Skeen v. Sports Authority, Inc., 171 N.C. App. 515, 615 S.E.2d 738 (2005).
On 23 March 2005, plaintiff re-filed a complaint against the corporations alleging negligence and breach of warranty, the two original claims that had previously been voluntarily dismissed without prejudice. On 24 February 2006, the trial court granted defendant's motion for summary judgment against plaintiff on the grounds of res judicata, abandonment of claims, and plea in abatement. Plaintiff appeals that order in a companion case, Skeen v. Warren & Sweat Manufacturing, Inc., and Cart Products, Inc., COA06-999 ("the companion case").
On 9 August 2005, plaintiff filed a new complaint in Gaston County Superior Court, 05 CVS 3246, alleging negligence, breach of warranty, fraud, UDTP, and spoliation of evidence ("the present action"). The claims in 05 CVS 3246 are identical to those alleged in the amended complaint in the prior action. Plaintiff essentially substituted Mr. McIntyre as a defendant in the present action in place of the corporations who were named as defendants in the prior action.
On 13 March 2006, defendant filed a motion for summary judgment on the basis of collateral estoppel. Defendant alleged plaintiff's complaint filed against defendant's employer in the prior action sought to recover damages for the same incident and injuries. On 27 April 2006, the trial court granted summary judgment in favor of defendant. Plaintiff appeals. Plaintiff argues the trial court erred by granting summary judgment on the basis of collateral estoppel because the issues presented had not been litigated in the prior action.
On appeal of a trial court's grant of a motion for summary judgment, this Court considers whether there was a genuine issue of material fact and whether the moving party is entitled to a judgment as a matter of law. Summey v. Barker, 357 N.C. 492, 496, 586 S.E.2d 247, 249 (2003); Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998); see also N.C. Gen. Stat. § 1A-1, Rule 56(c) (2007).
The party moving for summary judgment bears the burden of establishing the lack of any triable issue of fact. N.C. Farm Bureau Mut. Ins. Co. v. Fowler, 162 N.C. App. 100, 102, 589 S.E.2d 911, 913 (2004). When reviewing the evidence, this Court must view it in the light most favorable to the nonmoving party. Id.; See also Hodge v. Harkey, 178 N.C. App. 222, 224, 631 S.E.2d 143, 144 (2006). "If findings of fact are necessary to resolve an issue of material fact, summary judgment is improper." Prior v. Pruett, 143 N.C. App. 612, 617, 550 S.E.2d 166, 170 (2001). Summary judgment was proper in this case.
"Collateral estoppel bars a claim where (1) there has been a prior judgment on the merits; (2) identical issues were involved; (3) the issues were actually litigated; (4) the issues were actually determined; and, (5) the determination of those issues was necessary to the resulting judgment." C.C. Mangum, Inc. v. Brown, 124 N.C. App. 658, 660, 478 S.E.2d 245, 247 (1996). "Under the doctrine of collateral estoppel, also known as issue preclusion, 'parties and parties in privity with them-even in unrelated causes of action-are precluded from retrying fully litigated issues that were decided in any prior determination and were necessary to the prior determination.'" Scarvey v. First Fed. Sav. & Loan Ass'n of Charlotte, 146 N.C. App. 33, 38, 552 S.E.2d 655, 658-59 (2001) (quoting King v. Grindstaff, 284 N.C. 348, 356, 200 S.E.2d 799, 805 (1973)). Our Supreme Court has established the following requirements for the identity of issues:
(1) the issues must be the same as those involved in the prior action, (2) the issues must have been raised and actually litigated in the prior action, (3) the issues must have been material and relevant to the disposition of the prior action, and (4) the determination of the issues in the prior action must have been necessary and essential to the resulting judgment.
State v. Summers, 351 N.C. 620, 623, 528 S.E.2d 17, 20 (2000).
Plaintiff alleges fraud and UDTP, on the basis that Mr. McIntyre fraudulently labeled the stand as certified. Plaintiff alleges the spoliation of the evidence claim, on the basis that Mr. McIntyre destroyed company documents upon notification of the potential claim by plaintiff. In the prior action, plaintiff's forecast of the evidence shows he sought to impute the actions of Mr. McIntyre as an employee of the corporation to prove the fraud, UDTP, and spoliation of evidence claims. All three issues were raised and litigated in the prior action. They were material and relevant to the determination, as well as necessary and essential to the outcome. Here, plaintiff seeks to prove the same three issues, only now he lacks the requirement of imputing those actions to the corporation. In the prior action, plaintiff lost on the merits and is now estopped from raising those same issues personally against Mr. McIntyre.
In the companion case, we reversed the trial court's order granting summary judgment in favor of the corporations, therefore, the claims of negligence and breach of warranty are still pending in that action. Since there has been no final judgment, collateral estoppel does not bar these claims. However, the claims for negligence and breach of warranty in...
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