An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance with
the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.


                 IN THE COURT OF APPEALS OF NORTH CAROLINA

                                          No. COA14-1132

                                        Filed: 19 May 2015

Durham County, No. 13 CVD 5392

TERRA E. WOLFE, Plaintiff,

                v.

THE ARCHIMEDES ACADEMY, a partnership, and TAMMY KEARNS, ROBNET
KEARNS1, and GARY HULL, Individually and as Partners Associated and in
Business Under the Common Name The Archimedes Academy, Defendants.


        Appeal by plaintiff from order entered 2 May 2014 by Judge James T. Hill in

Durham County District Court. Heard in the Court of Appeals 5 March 2015.


        Hutchison PLLC, by Trevor P. Schmidt, and Wood Jackson PLLC, by J.
        Christopher Jackson, for plaintiff-appellant.

        Nelson Mullins Riley & Scarborough LLP, by Donna Rascoe and Bryce R.
        Lowder, for defendants-appellees.


        DAVIS, Judge.


        Terra E. Wolfe (“Plaintiff”) appeals from the trial court’s order dismissing her

complaint against the Archimedes Academy (“Archimedes”), Tammy Kerns

(“Tammy”), Robnet Kerns (“Robnet”), and Gary Hull (“Hull”) (collectively




        1 We note that while the trial court’s order spells Robnet and Tammy Kerns’s last name as
“Kearns,” elsewhere in the record their last name is spelled “Kerns.” We therefore elect to use the
spelling “Kerns” throughout this opinion as this appears to be the spelling actually used by the parties.
                                WOLFE V. ARCHIMEDES ACADEMY

                                         Opinion of the Court



“Defendants”) pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil

Procedure.      On appeal, Plaintiff contends that the trial court erred in granting

Defendants’ motion to dismiss based on the doctrine of res judicata. After careful

review, we affirm.

                                      Factual Background

        We have summarized the pertinent facts below using Plaintiff’s own

allegations from her complaint, which we treat as true in reviewing a trial court’s

order granting a motion to dismiss under Rule 12(b)(6). See, e.g., Stein v. Asheville

City Bd. of Educ., 360 N.C. 321, 325, 626 S.E.2d 263, 266 (2006) (“When reviewing a

complaint dismissed under Rule 12(b)(6), we treat a plaintiff’s factual allegations as

true.”).

        Archimedes was a private school formed in early 2012 by Tammy, Robnet, and

Hull. Archimedes was established as a general partnership under North Carolina

law, and the members of the partnership were Tammy, Robnet, and Hull.2 The

inaugural class of Archimedes was to be comprised of the Kernses’ daughter and

Hull’s daughter. Defendants planned to enroll additional students at Archimedes in

the future.




        2While Defendants deny that Archimedes was, in fact, a general partnership, they
acknowledge in their brief that for purposes of our review of an order entered pursuant to Rule 12(b)(6),
we must take Plaintiff’s allegations in her complaint as true.

                                                  -2-
                              WOLFE V. ARCHIMEDES ACADEMY

                                    Opinion of the Court



      On 28 April 2012, Hull and Plaintiff met and discussed Hull’s vision for

Archimedes. This meeting led to Plaintiff submitting her resume to Archimedes for

a teaching position.

      On 17 May 2012, the Kernses and Hull encouraged Plaintiff to move to North

Carolina from Florida by making multiple representations to her about becoming the

first teacher at Archimedes, teaching their daughters, and “working with the

partnership to create a curriculum that would form the basis of future years of

instruction at the school.”

      On 24 May 2012, Tammy drafted and sent to Plaintiff a written employment

agreement (“the Employment Agreement”) offering Plaintiff a teaching position at

Archimedes from 15 August 2012 through 15 June 2013 for which she would be

compensated in the amount of $2,500.00 per month. Tammy signed the Employment

Agreement as the President of Archimedes.             Plaintiff signed the Employment

Agreement the following day. Plaintiff subsequently moved to North Carolina in July

of 2012 and began working for Archimedes on 15 August 2012.

      Beginning in October 2012, however, a dispute arose between the Kernses and

Hull. While the nature of the dispute is not clear from the record, it appears that as

a result of the dispute, Archimedes began to pay Plaintiff only $1,250.00 — rather

than $2,500.00 — per month.




                                           -3-
                              WOLFE V. ARCHIMEDES ACADEMY

                                      Opinion of the Court



      On 15 November 2012, Hull sent Plaintiff a letter (the “November

Agreement”), which stated, in pertinent part, as follows:

               I, Gary Hull, agree to pay you the amount of $5,000 (five
               thousand dollars) if you continue teaching at Archimedes
               Academy through the end of the 2012-2013 school year.
               This includes teaching through the end of the spring term
               (May 31, 2013), and executing end-of-the-year
               responsibilities such as issuing the year-end grade reports.
               The amount will be paid upon your successful submission
               of those grade reports.

               I am compelled to pay you this money because, on
               September 19, 2012, Robnet and Tammy Kerns
               unilaterally (and without legal cause) breached their
               contract with you and with Archimedes Academy. (That
               contract is dated May 24, 2012.) For teaching their
               daughter, they were contractually obligated to pay you
               $12,500 in 10 equal installments from August 15, 2012
               through June 15, 2013. The total amount of their breach
               is $11,050.00.

               The amount of $5,000 will be reduced commensurate with
               the amount of any monetary damages recovered from the
               Kerns. So, for example, if the Kerns pay damages of
               $1,000, then the amount paid at the end of the school year
               will be $4,000.

Plaintiff signed the November Agreement, assenting to its terms. However, Plaintiff

never received any compensation pursuant to this agreement.

      On 24 January 2013, Plaintiff filed an action (“the Small Claims Action”) in

Durham County Small Claims Court against Tammy and Robnet.3 In her complaint,




      3   Neither Hull nor Archimedes were named as defendants.

                                              -4-
                             WOLFE V. ARCHIMEDES ACADEMY

                                    Opinion of the Court



Plaintiff alleged claims for (1) breach of contract; (2) fraud; and (3) “tortious

interference.” Based on these claims, she sought damages in the amount of $5,000.00.

Plaintiff later submitted to the small claims court a copy of the Employment

Agreement and a narrative setting out the allegations underlying her claims for

relief.

          On 28 February 2013, the magistrate ruled in favor of Tammy and Robnet and

dismissed Plaintiff’s action with prejudice.        Plaintiff appealed the dismissal to

Durham County District Court, and the case was assigned to arbitration pursuant to

N.C. Gen. Stat. § 7A-37.1.

          On 24 April 2013, an arbitration award and judgment was entered against

Plaintiff awarding her nothing and taxing her with the costs of the action. On 31

May 2013, Judge James T. Hill adopted the arbitration award as the judgment of the

district court.

          Plaintiff did not appeal from Judge Hill’s 31 May 2013 judgment. Instead, she

filed a new action in Durham County District Court on 27 November 2013, the action

that forms the basis for the present appeal. In her complaint, Plaintiff asserted

causes of action against Archimedes, Tammy, Robnet, and Hull, alleging that

Tammy, Robnet, and Hull were being sued both individually and in their capacities

as partners of Archimedes. The complaint contained claims for (1) breach of the

Employment Agreement; (2) violation of the North Carolina Wage and Hour Act; (3)



                                           -5-
                           WOLFE V. ARCHIMEDES ACADEMY

                                  Opinion of the Court



breach of the November Agreement; (4) fraud and negligent misrepresentation; (5)

unjust enrichment; and (6) unfair trade practices.

      On 22 January 2014, Plaintiff filed a motion for entry of default as to

Archimedes and Hull based on their failure to respond to her complaint. On that

same date, default was entered by an assistant clerk of court against Hull and

Archimedes. On 5 February 2014, Tammy and Robnet filed an answer to Plaintiff’s

complaint and a motion to dismiss pursuant to Rule 12(b)(6).

      The motion to dismiss was heard before Judge Hill on 28 April 2014. On 2 May

2014, Judge Hill entered an order dismissing Plaintiff’s complaint, which contained

the following findings of fact:

             1.    Plaintiff initiated a small claims action (13 CVM
             697) against Defendants Robnet Kerns and Tammy Kerns.
             The small claims action was continued until counsel for
             Defendants Robnet Kerns and Tammy Kerns were served
             with documents referred to and attached to the small
             claims complaint.       The small claims action was
             subsequently adjudicated in favor of Defendants Robnet
             Kerns and Tammy Kerns by the duly appointed magistrate
             on February 28, 2013.

             2.     Plaintiff appealed her small claims action to the
             District Court which was heard, pursuant to the Local
             Rules of the 14th Judicial District, District Court Division,
             by a duly appointed arbitrator. The arbitrator also
             adjudicated the action in favor of Defendants Robnet and
             Tammy Kerns on April 24, 2013.

             3.    Plaintiff did not file a motion for a trial de novo
             within the designated time period and this Court therefore
             adopted the ruling of the arbitrator as the judgment of this


                                         -6-
                          WOLFE V. ARCHIMEDES ACADEMY

                                   Opinion of the Court



            Court on May 31, 2013.

            4.    Plaintiff subsequently filed a second lawsuit in
            Durham County District Court against Defendants in the
            above entitled action. Attached to Plaintiff’s Complaint in
            the instant second lawsuit was the same alleged contract
            that was referred to and attached to Plaintiff’s initial
            lawsuit that commenced in small claims court.

      Judge Hill then made the following conclusions of law:

            1.    The Court takes judicial notice of the pleadings and
            papers in the court file for Plaintiff’s first lawsuit, the small
            claims action and subsequent appeal to District Court; said
            court documents are relevant to the instant action and to
            this Court’s analysis of the res judicata doctrine.

            2.    After reviewing the pleadings and papers in
            Plaintiff’s small claims and subsequent District Court
            appeal action, and after consideration of the papers
            submitted in the instant action as referenced above,
            Plaintiff’s Complaint alleges the same series of facts,
            circumstances, and parties as the previous small claims
            and District Court lawsuit.

            3.     Plaintiff’s Complaint in the instant action is barred
            due to the res judicata doctrine.

                  NOW, THEREFORE, IT IS HEREBY ORDERED
            that the Motion to Dismiss is GRANTED and Plaintiff’s
            Complaint is dismissed with prejudice as to all parties.

      On 30 May 2014, Plaintiff filed a notice of appeal to this Court.

                                       Analysis

      Plaintiff’s sole argument on appeal is that the trial court erred in dismissing

her complaint.



                                          -7-
                          WOLFE V. ARCHIMEDES ACADEMY

                                  Opinion of the Court



             The standard of review of an order granting a Rule 12(b)(6)
             motion is whether the complaint states a claim for which
             relief can be granted under some legal theory when the
             complaint is liberally construed and all the allegations
             included therein are taken as true. On appeal, we review
             the pleadings de novo to determine their legal sufficiency
             and to determine whether the trial court’s ruling on the
             motion to dismiss was correct.

Gilmore v. Gilmore, __ N.C. App. __, __, 748 S.E.2d 42, 45 (2013) (internal citations,

quotation marks, and brackets omitted).

I. Res Judicata

      Plaintiff concedes that the doctrine of res judicata serves to bar her claims

against Robnet and Tammy in their individual capacities based upon the prior ruling

in the Small Claims Action. However, she contends that the trial court erred in ruling

that res judicata likewise bars her claims against (1) Archimedes; (2) Hull; and (3)

Tammy and Robnet, in their capacities as partners of Archimedes. We disagree.

                    In order to successfully assert the doctrine of res
             judicata, a litigant must prove the following essential
             elements: (1) a final judgment on the merits in an earlier
             suit, (2) an identity of the causes of action in both the
             earlier and the later suit, and (3) an identity of the parties
             or their privies in the two suits.

Moody v. Able Outdoor, Inc., 169 N.C. App. 80, 84, 609 S.E.2d 259, 262 (2005).

      Furthermore, “[w]hether the doctrine of res judicata operates to bar a cause of

action is a question of law reviewed de novo on appeal.” Mount Ulla Historical Pres.

Soc’y., Inc. v. Rowan Cty., __ N.C. App. __, __, 754 S.E.2d 237, 240 (2014) (citation,



                                          -8-
                           WOLFE V. ARCHIMEDES ACADEMY

                                   Opinion of the Court



quotation marks, and brackets omitted). As such, the defense of res judicata may be

raised in connection with a motion to dismiss under Rule 12(b)(6). See ACC Const.,

Inc. v. SunTrust Mortgage, Inc., __ N.C. App. __, __, 769 S.E.2d 200, 211 (2015) (“[A

party] cannot circumvent the application of res judicata by seeking a different remedy

and asserting a new theory for a claim that could and should have been resolved in

[an earlier action]. Accordingly, we hold that the trial court did not err in granting

[a] Rule 12(b)(6) motion to dismiss [on this basis].”).

      Plaintiff does not dispute that the first two elements of res judicata exist as to

her claims in the present action. Therefore, we need only address the validity of the

trial court’s ruling as to the third element of res judicata — whether an identity of

the parties or their privies existed between the present action and the Small Claims

Action.

      This Court has held that

             [i]n general, privity involves a person so identified in
             interest with another that he represents the same legal
             right. Although the meaning of ‘privity’ has proven to be
             elusive, and there is no definition of the word . . . which can
             be applied in all cases, the prevailing definition in our
             cases, at least in the context of res judicata, . . . is that
             privity denotes a mutual or successive relationship to the
             same rights of property. In determining whether such a
             privity relation exists, courts will look beyond the nominal
             party whose name appears on the record . . . and consider
             the legal questions raised as they may affect the real party
             or parties in interest.




                                          -9-
                              WOLFE V. ARCHIMEDES ACADEMY

                                       Opinion of the Court



Williams v. Peabody, 217 N.C. App. 1, 8, 719 S.E.2d 88, 94 (2011) (internal citations,

quotation marks, and brackets omitted).

       Because of the allegation in Plaintiff’s complaint concerning the status of

Archimedes as a partnership with Hull, Tammy, and Robnet serving as its general

partners, we must examine principles of law applicable to general partnerships in

order to determine whether the third element of res judicata has been met.4 It is

well-established that

               a partnership is an association of two or more persons to
               carry on as co-owners a business for profit; that every
               partner is an agent of the partnership for the purposes of
               its business, and the act of every partner for apparently
               carrying on in the usual way the business of the
               partnership of which he is a member ordinarily binds the
               partnership; that where by any wrongful act or omission of
               any partner acting in the ordinary course of the business of
               the partnership or with the authority of his co-partners,
               loss or injury is caused to any person, not being a partner
               in the partnership, or any penalty is incurred, the
               partnership is liable therefor to the same extent as the
               partner so acting or omitting to act; and that all partners
               are liable jointly and severally for everything chargeable to
               the partnership[.]

Dwiggins v. Parkway Bus Co., 230 N.C. 234, 238, 52 S.E.2d 892, 894-95 (1949)

(internal citations omitted).




       4  In her brief, Plaintiff cites cases involving the extent to which privity existed between
shareholders and the corporate entity in the context of a closely held corporation. See, e.g., Troy
Lumber Co. v. Hunt, 251 N.C. 624, 112 S.E.2d 132 (1960). However, because, as explained herein,
principles of partnership law apply instead, her reliance on such cases is misplaced.

                                              - 10 -
                            WOLFE V. ARCHIMEDES ACADEMY

                                   Opinion of the Court



      We are guided by our Supreme Court’s decision in Ron Medlin Const. v. Harris,

364 N.C. 577, 704 S.E.2d 486 (2010), in which the Court made clear that actions taken

by individual partners in furtherance of partnership business bind the partnership

and further distinguished between corporations and partnerships in this context:

             Unlike a corporation that acts through its officers and
             directors, who may or may not be shareholders,
             partnerships act through their partners. Shareholders in
             a corporation are insulated from personal liability for acts
             of the corporation, but partners in a partnership are not
             insulated from liability. Stated differently, no corporate
             veil exists between a general partnership and its partners.

             ....

             The jurisdictions appear to be split as to whether a
             partnership is a separate legal entity, an aggregate of the
             partners, or a hybrid organization that is viewed as an
             aggregation of partners for some purposes and as a
             separate entity for others. . . . In our view, the treatment of
             a partnership as a hybrid organization that is considered
             an aggregate of the partners for some purposes and a
             separate entity for others more nearly reflects a correct
             interpretation of the Uniform Partnership Act than does
             the separate entity concept. The act of a partner in
             furtherance of the partnership’s business binds the
             partnership unless the partner was not authorized to act.

Id. at 583-84, 704 S.E.2d at 490-91 (internal citations and quotation marks omitted

and emphasis added).

      This Court has held that a privity relationship exists between partners when

a contract is entered into by the partnership through one of its partners acting as an

agent of the partnership.


                                          - 11 -
                          WOLFE V. ARCHIMEDES ACADEMY

                                  Opinion of the Court



             Defendant argues, however, that there is no privity
             between the defendant-seller and plaintiff since it was the
             partnership and not the plaintiff which purchased the
             cable and clamp. We do not agree. It is fundamental that
             all partners are agents of each other, that a contract
             entered into by the agent is a contract entered into by the
             principal and that all partners are liable on any contract
             executed by a single partner in the name of the
             partnership. If a partner may be sued for nonpayment or
             other breach of the contract, he certainly is privy to the
             contract.

Barnes v. Campbell Chain Co., 47 N.C. App. 488, 490, 267 S.E.2d 388, 389-90 (1980)

(internal citations omitted). These fundamental principles of partnership law — that

a privity relationship exists between a partnership and its general partners and that

partners are agents of the partnership and each other — are directly applicable to

the present case.

      In addition, our prior caselaw has applied these principles in the res judicata

context, holding that

             the principal’s liability is derivative, arising from the acts
             of the agent. Accordingly, where the agent has no liability,
             there is nothing from which to derive the principal’s
             liability under the doctrine. Applying this reasoning, the
             appellate courts of this State have repeatedly held that a
             final adjudication on the merits that an agent bears no
             liability acts as res judicata to prevent an attempt to
             pursue derivative claims against the principal.

Cameron Hospitality, Inc. v. Cline Design Associates, PA, __ N.C. App. __, __, 735

S.E.2d 348, 351 (2012) (internal citations omitted), disc. review denied, 366 N.C. 564,

738 S.E.2d 370 (2013).


                                         - 12 -
                                WOLFE V. ARCHIMEDES ACADEMY

                                          Opinion of the Court



        We believe that the real party in interest here in both the Small Claims Action

and the present action is Archimedes. It is clear that the Employment Agreement —

written on Archimedes letterhead — was entered into by Tammy acting in her

capacity as a partner of Archimedes and in furtherance of the partnership’s business

by extending the offer of a teaching position to Plaintiff. It is likewise clear that, in

so acting, she served as an agent of Archimedes, Hull, and Robnet. 5

        Similarly, the November Agreement was entered into by Hull in his role as a

partner of Archimedes given that the document provided for Plaintiff’s continued

teaching at Archimedes and further obligated her to perform “end-of-the-year

responsibilities such as issuing the year-end grade reports” for the partnership’s

benefit. For this reason, Hull bound Archimedes, Tammy, and Robnet when he

executed the November Agreement in his capacity as a partner of Archimedes.6




        5Indeed, Plaintiff’s complaint appears to acknowledge that the Employment Agreement was
an agreement between her and Archimedes. Her complaint alleges that “[a]mong other things, the
Employment Agreement obligated Archimedes Academy to pay [Plaintiff] $2,500 per month for the
period beginning August 15, 2012 through June 15, 2013.” (Emphasis added).

        6 Despite the fact that the November Agreement contains language such as “I, Gary Hull, agree
to pay you . . .” and “I am compelled to pay you this money . . .” and further references an internal
dispute between the partners of Archimedes, there was nothing in the materials properly before the
trial court to refute the proposition that the agreement was nevertheless executed by Hull acting as a
partner in furtherance of the partnership’s business. The November Agreement conveys benefits to
Archimedes in the form of (1) Plaintiff’s agreement to continue teaching at the school; and (2) Plaintiff’s
promise to execute additional tasks at the end of the school year. In addition, immediately below
Hull’s name on the letterhead of the November Agreement is the phrase “Founder, Archimedes
Academy[.]”




                                                  - 13 -
                                 WOLFE V. ARCHIMEDES ACADEMY

                                           Opinion of the Court



         Therefore, because both the Employment Agreement and the November

Agreement were executed in furtherance of the partnership’s business, Archimedes

was the real party in interest in both actions. Consequently, the ruling in favor of

the Kernses in the Small Claims Action based on the alleged breach of the

Employment Agreement precluded further litigation of claims relating to Plaintiff’s

employment agreements in a subsequent suit against Archimedes, the Kernses, or

Hull.7

         For these reasons, we conclude that the third element of res judicata was

satisfied here. Although Plaintiff asserts that she sued Tammy and Robnet in the

Small Claims Action solely in their individual capacities, a privity relationship clearly

existed between Tammy, Robnet, Archimedes, and Hull. Thus, regardless of the

differences in the manner in which Plaintiff has attempted to frame her allegations

and identify the adverse parties in the two actions, it is clear that both lawsuits, in




         7While the November Agreement was not expressly raised in the Small Claims Action, it is
well-established that res judicata applies not only to claims actually brought in a prior action but also
to claims that could have been brought in that action. See Housecalls Home Health Care, Inc. v. State,
__ N.C. App. __, __, 738 S.E.2d 753, 758 (“The doctrine [of res judicata] prevents the relitigation of all
matters that were or should have been adjudicated in the prior action. Thus, res judicata not only
bars the relitigation of matters determined in the prior proceeding but also all material and relevant
matters within the scope of the pleadings, which the parties, in the exercise of reasonable diligence
could and should have brought forward. All of a party’s damages resulting from a single wrong must
be recovered in a single action.” (internal citations, brackets, and ellipses omitted)), disc. review denied,
366 N.C. 592, 743 S.E.2d 181 (2013). In addition, as noted above, Plaintiff has conceded that the
“identity of claims” element of res judicata is satisfied as between the Small Claims Action and the
present action.


                                                   - 14 -
                           WOLFE V. ARCHIMEDES ACADEMY

                                   Opinion of the Court



essence, seek redress of the same wrong — breach of the employment agreements in

effect between her and Archimedes.

      The res judicata doctrine therefore bars Plaintiff’s claims in the present action

based on the final judgment in the Small Claims Action. Plaintiff’s argument on this

issue is therefore overruled.

II. Entry of Default

      Plaintiff’s final contention is that the trial court erred in dismissing her

complaint as to Hull and Archimedes because the entry of default previously entered

against them had not been set aside prior to the date of the trial court’s 2 May 2014

order dismissing the action in its entirety. This argument also lacks merit.

      It is well-established that “[t]he effect of an entry of default is that the

defendant against whom entry of default is made is deemed to have admitted the

allegations in plaintiff’s complaint, and is prohibited from defending on the merits of

the case.” Hartwell v. Mahan, 153 N.C. App. 788, 791, 571 S.E.2d 252, 253-54 (2002)

(citation and quotation marks omitted), disc. review denied, 356 N.C. 671, 577 S.E.2d

118, 118-19 (2003). However, it is only “[w]hen an entry of default is made and the

allegations of the complaint are sufficient to state a claim, [that] the defendant has no

further standing to contest the merits of plaintiff’s right to recover.” Id. at 790, 571

S.E.2d at 253 (emphasis added).




                                          - 15 -
                              WOLFE V. ARCHIMEDES ACADEMY

                                       Opinion of the Court



      Therefore, obtaining an entry of default against a defendant does not eliminate

the plaintiff’s obligation to state a claim upon which relief can be granted under some

legal theory.

                       A default judgment admits only the allegations
                contained within the complaint, and a defendant may still
                show that the complaint is insufficient to warrant
                plaintiff’s recovery. Lowe’s of Raleigh, Inc. v. Worlds, 4
                N.C. App. 293, 295, 166 S.E.2d 517, 518 (1969); accord,
                Weft, Inc. v. G.C. Investment Associates, 630 F.Supp. 1138,
                1141 (E.D.N.C. 1986), aff’d, 822 F.2d 56 (4th Cir. 1987)
                (default not treated as absolute confession by defendant of
                plaintiff’s right to recover and court must consider whether
                plaintiff’s allegations are sufficient to state claim for relief).

Hunter v. Spaulding, 97 N.C. App. 372, 377, 388 S.E.2d 630, 634 (1990).

      Thus, the key question is whether Plaintiff’s complaint in the present action

was sufficient to warrant recovery against Archimedes and Hull. We conclude that

it was not.

      “On a Rule 12(b)(6) motion to dismiss, the question is whether, as a matter of

law, the allegations of the complaint, treated as true, state a claim upon which relief

can be granted.” Allred v. Capital Area Soccer League, Inc., 194 N.C. App. 280, 282,

669 S.E.2d 777, 778 (2008) (citation omitted). The applicability of the res judicata

doctrine is sufficient to warrant the dismissal of an action under Rule 12(b)(6). See

Cline v. McCullen, 148 N.C. App. 147, 149, 557 S.E.2d 588, 590 (2001) (affirming trial

court’s dismissal of claim under Rule 12(b)(6) where privity element of res judicata

was established).


                                              - 16 -
                           WOLFE V. ARCHIMEDES ACADEMY

                                   Opinion of the Court



      In the present case, as discussed above, the real party in interest in both the

Small Claims Action and the present action was Archimedes. Because Tammy,

Robnet, and Hull were all in privity with Archimedes by nature of their status as

general partners of the partnership, res judicata operates as a bar to Plaintiff’s claims

in the present action as to all of the named Defendants.          Therefore, Plaintiff’s

complaint was not sufficient to state a valid claim for relief against Hull or

Archimedes. For this reason, the prior entry of default against these two defendants

did not preclude the trial court from dismissing the claims asserted by Plaintiff

against them.

                                     Conclusion

      For the reasons stated above, the order of the trial court is affirmed.

      AFFIRMED.

      Judges STROUD and DILLON concur.

      Report per Rule 30(e).




                                          - 17 -
