Wilson v. Watson

• Decision Date: 01 February 2000
• Docket Number: No. COA99-60.,COA99-60.
• Citation: 524 S.E.2d 812,136 NC App. 500
• Court: North Carolina Court of Appeals
• Parties: George W. WILSON, Jr., and Mary E. Wilson Downing, Plaintiffs, v. Letha Frances Wilson WATSON, Defendant.

524 S.E.2d 812

136 NC App. 500

George W. WILSON, Jr., and Mary E. Wilson Downing, Plaintiffs, v. Letha Frances Wilson WATSON, Defendant.

No. COA99-60.

Court of Appeals of North Carolina.

February 1, 2000.

Ernest C. Richardson, III, New Bern, for the plaintiff-appellees.

James M. Ayers, II, New Bern, for the defendant-appellant.

LEWIS, Judge.

The parties in this case are all children of Letha Mae Morris Wilson, who died on 23 November 1996. Ms. Wilson executed a power of attorney which appointed defendant as her attorney-in-fact. It included a clause which stated: "I hereby relieve my attorney-in-fact of the responsibility and duty of filing any reports, inventories or accounts with the Clerk of Superior Court of any county."

On 20 May 1997, plaintiffs brought a Motion to Compel an Accounting before the Craven County Clerk of Superior Court ("Case I"). In that action, they moved the court to "enter an Order requiring [defendant] to appear before the [c]lerk at a date certain, and to bring with her, canceled checks, bank statements, tax returns, any and all documentation and correspondence with institutions which [defendant] has in her possession of Letha Mae Morris Wilson for the past three (3) years." Following a hearing, the clerk of court entered an order denying plaintiffs' request on 17 December 1997. The clerk had the discretion and authority to grant or deny the request. Plaintiffs did not appeal from this order and lost their right.

On 8 January 1998, plaintiffs filed a complaint in Craven County Superior Court ("Case II"). In their complaint, plaintiffs requested the court to "enter a Mandatory Injunction, as well as an Order directing and requiring [defendant] to produce any and all records she has concerning the accounts of Letha Mae Morris Wilson prior to the death of Letha Mae Morris Wilson and to provide an accounting of any and all transactions in which she exercised her [p]ower of [a]ttorney and/or acting on behalf of her mother, Letha Mae Morris Wilson." On 20 October 1998, the trial court entered an order denying defendant's motion for summary judgment. Defendant appeals from this order.

The order denying defendant's motion for summary judgment was interlocutory, and not immediately appealable unless it affects a substantial right. N.C. Gen.Stat. § 7A-27 (1999). The denial of a motion for summary judgment on the basis of res judicata affects a substantial right and entitles a party to an immediate appeal. Bockweg v. Anderson, 333 N.C. 486, 491, 428 S.E.2d 157, 161 (1993). Accordingly, defendant's appeal is properly before this Court.

Defendant argues that the present claims are barred by principles of collateral estoppel and res judicata. Collateral estoppel, or issue preclusion, applies to a subsequent suit between the parties on a different cause of action. Nationsbank of N.C. v. American Doubloon Corp., 125 N.C.App. 494, 503, 481 S.E.2d 387, 392 (1997). Res judicata, or claim preclusion, on the other hand, entirely bars an identical party or those in privity from relitigating a second action identical to the first where a court of competent jurisdiction has already rendered a final judgment on the merits. News and Observer Pub. Co. v. Coble, 128 N.C.App. 307, 310-11, 494 S.E.2d 784, 786-87 (1998).

Plaintiffs concede that the parties and subject matter in Case I and Case II are identical. Indeed, Case I and Case II arose out of a single action, involve the same facts, and identical parties have raised identical issues of law in each case. The issue for our consideration, then, is properly one of res judicata.

Plaintiffs argue that the Craven County Clerk of Court was without jurisdiction to enter its order of 20 May 1997 denying plaintiffs' Motion to Compel an Accounting. Specifically, plaintiffs assert that inclusion of the clause relieving defendant of the responsibility to file reports, inventories and accounts with the clerk tacitly removed the clerk's jurisdiction to enter an order in their Motion to Compel an Accounting under G.S. 32A-11(b). Because the clerk was without jurisdiction, plaintiffs contend that the decision was made by a court without competent jurisdiction, thereby making the doctrine of res judicata inapplicable. We must first clarify the statutory provision plaintiff contends is relevant to this argument. Section 32A-11(b) provides in relevant part:

Any provision in the power of attorney waiving or requiring the rendering of inventories and accounts shall govern, and a power of attorney that waives the requirement to file inventories and accounts need not be filed with the clerk of superior court. Otherwise, subsequent to the principal's incapacity or mental incompetence, the attorney-in-fact shall file in the office of the clerk of the superior court of the county in which the power of attorney is filed, inventories of the property of the principal in his hands and annual and final accounts of the receipt and disposition of property of the principal and of other transactions in behalf of the principal.

This section does not even address the clerk's jurisdiction to compel the production of inventories and accounts; it simply allows those attorneys-in-fact who are given waivers to choose not to file them with the clerk. Instead, the real provision relevant to the issue of the clerk's jurisdiction in this case is N.C. Gen.Stat. § 7A-103(15) (1999). This section grants the clerk of superior court jurisdiction to "audit the accounts of fiduciaries, as required by law," and by implication, to deny a request to audit such accounts as well. Thus, the clerk here had jurisdiction to grant or deny plaintiffs' Motion to Compel an Accounting. We conclude, then, that a court of competent jurisdiction entered the order of 17 December 1997 in Case I.

We must note that plaintiffs had a 10-day right of appeal from the clerk's order of 17 December 1997, the superior court having jurisdiction to hear and determine all matters in controversy in the proceeding. N.C. Gen.Stat. § 1-301.1 (1999). Having waived their right of appeal to superior court, we conclude that the doctrine of res judicata bars the new action asserted by plaintiffs in Case II. Accordingly, the trial court erred in denying defendant's motion for summary judgment. We reverse for entry of summary judgment in defendant's favor.

Reversed and remanded.

Judge McGEE concurs.

Judge JOHN concurs in the result with separate opinion.

JOHN, Judge, concurring in the result with separate opinion.

I believe...