                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                        No. COA18-919

                                 Filed: 5 March 2019

Wake County, No. 17 CVS 9169

SHAKEEVIA BROWN, Plaintiff-Appellee,

              v.

STEPHEN SHAW THOMPSON, Defendant-Appellant.


      Appeal by defendant from order entered 6 June 2018 by Judge Vince M. Rozier,

Jr., in Wake County Superior Court.               Heard in the Court of Appeals

13 February 2019.


      No brief filed for plaintiff-appellee.

      Blue LLP, by Dhamian A. Blue, for defendant-appellant.


      ARROWOOD, Judge.


      Stephen Shaw Thompson (“defendant”) appeals from the trial court’s order

denying his motion for summary judgment. For the following reasons, we dismiss

the appeal.

                                   I.       Background

      Shakeevia Brown (“plaintiff”) commenced this action against defendant on

27 July 2017.      Plaintiff asserted allegations including defamation, intentional
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infliction of emotional distress, negligent infliction of emotional distress, and sexual

harassment. Defendant filed a motion to dismiss and an answer on 11 October 2017.

      On 25 April 2018, defendant filed a motion for summary judgment, or in the

alternative, a motion to dismiss for failure to prosecute. Defendant sought summary

judgment on the basis that principles of res judicata precluded plaintiff from any

recovery. Defendant attached to the motion a copy of a “Complaint for No-contact

Order for Stalking or Nonconsensual Sexual Conduct” filed by plaintiff in Wake

County District Court on 5 October 2017. Defendant also attached to the motion a

copy of the district court’s 2 November 2017 “No Contact Order for Stalking or

Nonconsensual Sexual Conduct” denying plaintiff’s complaint and dismissing the

matter upon finding a failure to prosecute.

      Defendant’s motion for summary judgment was heard at the 31 May 2018

session of Wake County Superior Court. On 6 June 2018, the trial court entered an

order denying defendant’s motion for summary judgment. Defendant filed notice of

appeal on 27 June 2018.

                                   II.    Discussion

      At the outset, we must address the interlocutory nature of defendant’s appeal.

      An order denying of a motion for summary judgment is an interlocutory order

because it leaves the matter for further action by the trial court. See Veazey v. City

of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950) (“An interlocutory order is



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one made during the pendency of an action, which does not dispose of the case, but

leaves it for further action by the trial court in order to settle and determine the entire

controversy.”). “Generally, there is no right of immediate appeal from interlocutory

orders and judgments.” Goldston v. Am. Motors Corp., 326 N.C. 723, 725, 392 S.E.2d

735, 736 (1990). However, “immediate appeal is available from an interlocutory order

or judgment which affects a substantial right.” Sharpe v. Worland, 351 N.C. 159,

162, 522 S.E.2d 577, 579 (1999) (quotation marks omitted).1

        “[W]hen an appeal is interlocutory, the appellant must include in its statement

of grounds for appellate review ‘sufficient facts and argument to support appellate

review on the ground that the challenged order affects a substantial right.’ ” Johnson

v. Lucas, 168 N.C. App. 515, 518, 608 S.E.2d 336, 338 (quoting N.C.R. App. P.

28(b)(4)), aff’d per curiam, 360 N.C. 53, 619 S.E.2d 502 (2005). “The appellants must

present more than a bare assertion that the order affects a substantial right; they

must demonstrate why the order affects a substantial right.” Hoke Cnty. Bd. of Educ.

v. State, 198 N.C. App. 274, 277-78, 679 S.E.2d 512, 516 (2009) (emphasis in original).

        Defendant concedes this appeal is interlocutory, but contends it affects a

substantial right because the basis of his motion for summary judgment was that

recovery in this action is barred by principles of res judicata.



        1 Immediate appeal is also available if the trial court certifies the matter for immediate appeal.
See N.C. Gen. Stat. § 1A-1, Rule 54 (b) (2017); Sharpe, 351 N.C. at 161-62, 522 S.E.2d at 579. However,
the trial court did not certify its order in this case as immediately appealable under Rule 54(b).

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      As defendant points out, this Court has acknowledged that “our Supreme

Court has ruled that the denial of a motion for summary judgment based on the

defense of res judicata . . . is immediately appealable.” McCallum v. N.C. Co-op. Ext.

Serv. of N.C. State Univ., 142 N.C. App. 48, 51, 542 S.E.2d 227, 231 (citing Bockweg

v. Anderson, 333 N.C. 486, 491, 428 S.E.2d 157, 161 (1993)), appeal dismissed and

disc. review denied, 353 N.C. 452, 548 S.E.2d 527 (2001).        When considered in

isolation, the above quote seems to be an absolute statement of the law; however, in

context, it is clear that this Court was simply noting that, in Bockweg, the denial of

the defendant’s motion for summary judgment based on the defense of res judicata

was held to affect a substantial right. In McCallum, this Court further stated, “the

denial of summary judgment based on the defense of res judicata can affect a

substantial right and may be immediately appealed.” Id. (citing Bockweg, 333 N.C.

at 491, 428 S.E.2d at 161).

      In Bockweg, the Supreme Court explained why the denial of a motion for

summary judgment based on the defense of res judicata can affect a substantial right

and may be immediately appealable:

             As a general rule, a moving party may not appeal the
             denial of a motion for summary judgment because
             ordinarily such an order does not affect a substantial right.
             However, we have noted that while [t]he right to avoid one
             trial on the disputed issues is not normally a substantial
             right that would allow an interlocutory appeal, . . . the
             right to avoid the possibility of two trials on the same
             issues can be such a substantial right.


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333 N.C. at 490-91, 428 S.E.2d at 160 (quotation marks and citations omitted).

             Under the doctrine of res judicata, a final judgment on the
             merits in a prior action in a court of competent jurisdiction
             precludes a second suit involving the same claim between
             the same parties or those in privity with them. Thus, a
             motion for summary judgment based on res judicata is
             directed at preventing the possibility that a successful
             defendant, or one in privity with that defendant, will twice
             have to defend against the same claim by the same
             plaintiff, or one in privity with that plaintiff. Denial of the
             motion could lead to a second trial in frustration of the
             underlying principles of the doctrine of res judicata.
             Therefore, we hold that the denial of a motion for summary
             judgment based on the defense of res judicata may affect a
             substantial right, making the order immediately
             appealable.

Id. at 491, 428 S.E.2d at 161 (internal citations omitted).

      Subsequent to the Court’s decision in Bockweg, this Court has noted the

permissive language in Bockweg, emphasizing that Bockweg holds the denial of

summary judgment based on a defense of res judicata “may” affect a substantial right.

See Country Club of Johnston Cnty., Inc. v. U.S. Fidelity and Gaur. Co., 135 N.C. App.

159, 166, 519 S.E.2d 540, 545 (1999) (“[W]e do not read Bockweg as mandating in

every instance immediate appeal of the denial of a summary judgment motion based

upon the defense of res judicata. The opinion pointedly states reliance upon res

judicata ‘may affect a substantial right.’ ”) (quoting Bockweg, 333 N.C. at 491, 428

S.E.2d at 161 (emphasis added)), disc. review denied, 351 N.C. 352, 542 S.E.2d 207

(2000). In Country Club of Johnston Cnty., this Court explained that,

             in an opinion issued shortly after Bockweg, Community

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                                   Opinion of the Court



             Bank v. Whitley, 116 N.C. App. 731, 449 S.E.2d 226, disc.
             review denied, 338 N.C. 667, 453 S.E.2d 175 (1994), [it]
             interpreted the permissive language of Bockweg as
             allowing, under the substantial right exception, immediate
             appeal of the denial of a motion for summary judgment
             based, inter alia, upon defense of res judicata “where a
             possibility of inconsistent verdicts exists if the case proceeds
             to trial.” Id. at 733, 449 S.E.2d at 227 (emphasis added);
             see also Little v. Hamel, 134 N.C. App. 485, 517 S.E.2d 901
             (1999) (appeal of denial of summary judgment motion
             based upon res judicata considered to affect substantial
             right where, although not directly noted by the Court,
             defendants had been absolved of liability in previous suit
             between the parties and faced possibility of inconsistent
             verdicts).

             In short, denial of a motion for summary judgment based
             upon the defense of res judicata may involve a substantial
             right so as to permit immediate appeal only “where a
             possibility of inconsistent verdicts exists if the case
             proceeds to trial.” Community Bank, 116 N.C. App. at 733,
             449 S.E.2d at 227.

135 N.C. App. at 166-67, 519 S.E.2d at 545-46.            There was no possibility of

inconsistent verdicts in Country Club of Johnston Cnty., id. at 167, 519 S.E.2d at 546,

and this Court dismissed the appeal, id. at 168, 519 S.E.2d at 546; see also

Northwestern Fin. Group, Inc. v. Cnty. Of Gaston, 110 N.C. App. 531, 536, 430 S.E.2d

689, 692 (holding there was no possibility for inconsistent verdicts because there had

yet to be a trial in the matter because the initial action sought only equitable relief),

disc. review denied, 334 N.C. 621, 435 S.E.2d 337 (1993). Citing Country Club of

Johnston Cnty. and Northwestern Fin. Group, Inc., this Court has more recently

stated that it “has previously limited interlocutory appeals to the situation when the


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                                    Opinion of the Court



rejection of [a res judicata defense] gave rise to a risk of two actual trials resulting in

two different verdicts.” Foster v. Crandell, 181 N.C. App. 152, 162, 638 S.E.2d 526,

534, disc. review denied, 361 N.C. 567, 650 S.E.2d 602 (2007).

      The present case is easily distinguishable from cases holding the denial of a

motion for summary judgment on the basis of res judicata raises a substantial right

to permit immediate appellate review. First, the posture of this case is unique in that

the complaint in the present action was filed prior to the complaint in the district

court case that defendant now claims precludes recovery. Second, the district court

case, which sought only a no contact order under Chapter 50C of the General Statutes

based on factual allegations similar to those made in the present case, was dismissed

for plaintiff’s failure to prosecute.   Although a dismissal that does not indicate

otherwise operates as an adjudication on the merits, see N.C. Gen. Stat. § 1A-1, Rule

41(b) (2017), there was no determination of the underlying issues that would raise

the potential for an inconsistent verdict in the present case. Additionally, the issues

to be decided in a Chapter 50C action for a no contact order are substantially more

narrow than those to be determined in the present action seeking additional relief

including money damages, relief not afforded in a Chapter 50C action. As a result,

we hold the doctrine of res judicata does not raise a substantial right in this case to

permit an immediate appeal of the trial court’s denial of defendant’s motion for

summary judgment.



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                                 Opinion of the Court



                                 III.   Conclusion

      The denial of defendant’s motion for summary judgment on the basis of res

judicata does not affect a substantial right in this instance. Therefore, immediate

appeal is not proper and defendant’s appeal is dismissed.

      DISMISSED.

      Judges STROUD and TYSON concur.




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