                                  NO. COA13-1072

                     NORTH CAROLINA COURT OF APPEALS

                             Filed: 3 June 2014


GRETCHEN J. PROPST,
     Plaintiff,
                                          North Carolina
    v.                                    Industrial Commission
                                          I.C. No. TA-20853
NORTH CAROLINA DEPARTMENT OF
HEALTH AND HUMAN SERVICES,
     Defendant.


    Appeal by plaintiff from Order entered 18 May 2012 by the

North Carolina Industrial Commission.              Heard in the Court of

Appeals 20 February 2014.


    Rabon Law Firm, PLLC by Charles H. Rabon, Jr., and Marshall
    P. Walker, for plaintiff-appellant.

    Attorney General Roy A. Cooper, III, by Special                     Deputy
    Attorney General Olga Vysotskaya, for the State.


    STROUD, Judge.


    Gretchen Propst (“plaintiff”) appeals from an order entered

18 May 2012 by the Full Commission granting summary judgment in

favor   of   the   North   Carolina   Department    of   Health   and   Human

Services (“defendant”). We affirm.

                             I.     Background

    Plaintiff filed a claim for damages under the Tort Claims

Act on 9 September 2008. In that claim, she alleged that Dr.
                                        -2-
Bruce   Flitt,     the   Gaston   County      Medical    Examiner,   negligently

failed to perform his duties as medical examiner on 11 September

2005 when he signed a Medical Examiner’s Report (“ME Report”)

that stated he had examined the body of plaintiff’s son and

included several inaccurate statements regarding her son’s body.

The ME Report stated that plaintiff’s son’s body was warm when

examined and that         he had brown eyes. Plaintiff claimed that

these     statements     caused   her     substantial      emotional   distress

because her son’s eyes were blue and she had been told by the

funeral     home   that    her    son’s    body    had     been   stored   in   a

refrigeration unit. She worried that the body she and her family

had buried may not have been that of her son.

    When they exhumed the body, they discovered that it was in

fact plaintiff’s son, but that her son had not been dressed in

the burial attire she chose. She alleged that this discrepancy

shows that Dr. Flitt and his assistants never actually viewed or

examined her son’s body, in violation of their duties. Plaintiff

claimed that the failure of Dr. Flitt and his assistants to

perform their duties in examining               her son’s     body   caused her

severe emotional distress and “post traumatic stress syndrome.”

She sought $200,000 in damages.
                                       -3-
    On    30    July     2010,   defendant   filed     a   motion       for   summary

judgment,      contending    that     plaintiff’s      claim      was    barred       by

collateral     estoppel     because   plaintiff      had   previously         filed    a

negligence      action     against    Dr.    Flitt    in    his     official      and

individual capacities in superior court.               The superior court had

granted summary judgment in favor of Dr. Flitt on grounds of

immunity and the public duty doctrine by order entered 28 April

2010. Plaintiff did not appeal from the superior court’s order.

Defendant attached the pleadings, motions, and order from the

prior suit to its summary judgment motion.                   Defendant further

argued that even if the prior determination by the superior

court did not preclude the issue from being contested in the

present suit, defendant owed plaintiff no individual duty under

the public duty doctrine.

    The        summary     judgment     motion       was   heard        by     Deputy

Commissioner Glenn on 16 August 2010. Deputy Commissioner Glenn

entered an order on 6 July 2011 denying defendant’s motion for

summary judgment.         Defendant appealed to the Full Commission on

6 July 2011.      The Full Commission granted defendant’s motion for

summary judgment by order entered 18 May 2012. It concluded that

plaintiff’s claim was barred by collateral estoppel because the

superior court had already determined that Dr. Flitt did not owe
                                         -4-
plaintiff any individual duty. It further concluded that even if

it were not barred, plaintiff’s claim fails because she has

failed   to    show    that   Dr.    Flitt     owed   her   an   individual   duty,

distinct      from    his   duty    to   the    public.     However,   due    to   an

apparent clerical error, the order was not served on plaintiff

until 28 May 2013.          Plaintiff filed written notice of appeal to

this Court on 25 June 2013.

                            II.     Standard of Review

              The standard of review for an appeal from
              the Full Commission’s decision under the
              Tort Claims Act shall be for errors of law
              only under the same terms and conditions as
              govern appeals in ordinary civil actions,
              and the findings of fact of the Commission
              shall   be  conclusive   if   there is  any
              competent evidence to support them.

Dawson v. N.C. Dept. of Environment and Natural Resources, 204

N.C. App. 524, 527, 694 S.E.2d 427, 430 (2010) (citation and

quotation marks omitted).

              Summary judgment is appropriate if “the
              pleadings,     depositions,    answers    to
              interrogatories, and admissions on file,
              together with the affidavits, if any, show
              that there is no genuine issue as to any
              material fact and that any party is entitled
              to a judgment as a matter of law.” N.C. R.
              Civ. P. 56(c). The trial court may not
              resolve issues of fact and must deny the
              motion if there is a genuine issue as to any
              material fact. Moreover, all inferences of
              fact must be drawn against the movant and in
              favor of the party opposing the motion. The
                               -5-
          standard of review for summary judgment is
          de novo.

Forbis v. Neal, 361 N.C. 519, 523-24, 649 S.E.2d 382, 385 (2007)

(citations, quotation marks, and ellipses omitted).

                      III. Summary Judgment

     The Industrial Commission granted summary judgment in favor

of defendant because it concluded that plaintiff’s claim was

defeated by collateral estoppel and that Dr. Flitt did not owe

any duty to plaintiff individually. Plaintiff argues that both

of these conclusions were in error.

          Collateral   estoppel   applies    when  the
          following requirements are met:      (1) the
          issues to be concluded must be the same as
          those involved in the prior action; (2) in
          the prior action, the issues must have been
          raised and actually litigated; (3) the
          issues must have been material and relevant
          to the disposition of the prior action; and
          (4) the determination made of those issues
          in the prior action must have been necessary
          and essential to the resulting judgment.

Urquhart v. East Carolina School of Medicine, 211 N.C. App. 124,

128, 712 S.E.2d 200, 204 (citation and quotation marks omitted),

disc. rev. denied, 365 N.C. 335, 717 S.E.2d 389 (2011).1



1
  There has been some confusion in recent years over whether the
“mutuality of parties” and privity is still required or not.
See, e.g., In re K.A., ___ N.C. App. ___, 756 S.E.2d 837 (2014)
(No. COA13-972) (acknowledging the confusion over whether
mutuality is still required or not). In any event, as discussed
below, there is no dispute that there is sufficient identity of
                                   -6-
            An issue is actually litigated, for purposes
            of collateral estoppel or issue preclusion,
            if it is properly raised in the pleadings or
            otherwise submitted for determination and is
            in fact determined. A very close examination
            of matters actually litigated must be made
            in order to determine if the underlying
            issues are in fact identical; if they are
            not   identical,   then   the   doctrine  of
            collateral estoppel does not apply.

Williams v. Peabody, ___ N.C. App. ___, ___, 719 S.E.2d 88, 93

(2011)   (citations,   quotation    marks,   brackets,   and   footnote

omitted).

    Here, there is no dispute that the prior judgment was a

final judgment on the merits,2 that the issue of the public duty

doctrine was actually litigated and decided in the prior suit,

nor that there is sufficient identity of the parties.3 However,



parties for collateral estoppel to apply here.
2
  The prior suit was resolved when the superior court granted
summary judgment in favor of Dr. Flitt. “In general, a cause of
action determined by an order for summary judgment is a final
judgment on the merits.” Williams, ___ N.C. App. at ___, 719
S.E.2d at 93.
3
  Plaintiff’s claims against defendant here are premised on the
alleged negligence of Dr. Flitt and those he supervised, imputed
to defendant through respondeat superior. Therefore, a judgment
in favor of Dr. Flitt on the negligence claims bars the same
claims being brought against defendant, his employer. See
Urquhart, 211 N.C. App. at 129, 712 S.E.2d at 204-05 (holding
that collateral estoppel applied where the prior judgment
involved the plaintiff’s suit against the state employee in his
individual capacity and the subsequent suit was brought under
the Tort Claims Act); Kayler v. Gallimore, 269 N.C. 405, 408,
152 S.E.2d 518, 521 (1967) (“[A] principal or master, sued for
damages by reason of the alleged negligence of his agent or
                                           -7-
plaintiff argues that the superior court’s determination on the

public duty issue does not preclude her from contesting that

issue   in    the    present      suit.       She    contends     that    because    the

superior court granted summary judgment both on the grounds of

immunity     and    on    the   basis    of    the    public     duty    doctrine,   its

determination       of    the    duty     issue      was   not    necessary    to    its

judgment, and therefore not entitled to preclusive effect.

       The Restatement (Second) of Judgments supports plaintiff’s

position. The Second Restatement drafters comment that “[i]f a

judgment of a court of first instance is based on determinations

of two issues, either of which standing independently would be

sufficient to support the result, the judgment is not conclusive

with    respect      to    either     issue      standing      alone.”     Restatement

(Second)     of     Judgments     §     27,    cmt.    i    (1982).      Nevertheless,

plaintiff cites no North Carolina case adopting this rule, and

we have found none. Other appellate courts around the country

have split on whether to adopt this rule or the contrary rule

from the First Restatement of Judgments, discussed below. See


servant, may plead, in bar of such action, a judgment in favor
of the agent or servant in a former action by or against the
present plaintiff, which judgment establishes that the agent or
servant was not negligent.”);    Bullock v. Crouch, 243 N.C. 40,
42, 89 S.E.2d 749, 751 (1955) (“[I]f the judgment in the action
against the servant had terminated in favor of servant, since
the defendants’ liability was only derivative, no action could
have been sustained against the defendants.”)
                                  -8-
Jean Alexander Cosmetics, Inc. v. L’Oreal USA, Inc., 458 F.3d

244, 251 (3d Cir. 2006) (observing that “[t]here is no consensus

among the courts of appeals as to whether the First or Second

Restatement offers the better approach”).

      We decline to follow the approach of the Second Restatement

as to this issue because it is incompatible with the doctrine of

collateral estoppel as it has been applied in this state.4 The

Second   Restatement   drafters   explain   their   decision   to   give

neither basis of a judgment with alternative bases preclusive

effect as follows:

          First, a determination in the alternative
          may not have been as carefully or rigorously
          considered as it would have if it had been
          necessary to the result, and in that sense
          it has some of the characteristics of dicta.
          Second, and of critical importance, the
          losing party, although entitled to appeal
          from both determinations, might be dissuaded
          from doing so because of the likelihood that
          at least one of them would be upheld and the
          other one not even reached.

Id.

      We are not convinced that these policy rationales justify a

departure from the general rule that issues actually litigated




4
   The Restatements are persuasive, not binding authority,
“[e]xcept as specifically adopted in this jurisdiction.” Hedrick
v. Rains, 344 N.C. 729, 729, 477 S.E.2d 171, 172 (1996).
                                  -9-
and determined in a prior action preclude later relitigation of

those issues. We have said that

         the prior judgment serves as a bar only as
         to issues actually litigated and determined
         in   the  original   action.  An   issue  is
         ‘actually   litigated,’   for  purposes   of
         collateral estoppel or issue preclusion, if
         it is properly raised in the pleadings or
         otherwise submitted for determination and is
         in fact determined.

City of Asheville v. State, 192 N.C. App. 1, 17, 665 S.E.2d 103,

117 (2008) (citations, quotation marks, brackets, and emphasis

omitted), app. dismissed and disc. rev. denied, 363 N.C. 123,

672 S.E.2d 685 (2009). Under the rule urged by plaintiff and the

Second Restatement, the parties could fully litigate two issues,

either of which could independently support the trial court’s

judgment, but neither of which would have preclusive effect in a

later case. A party would be free to relitigate either issue in

a future case.

    The First Restatement of Judgments suggests the opposite

conclusion.   The drafters of the First Restatement noted that

when there are multiple independent grounds for a trial court’s

judgment, “it must be said either that both are material to the

judgment or that neither is material.” Restatement (First) of

Judgments § 68, cmt. n (1942). They observed that “[i]t seems
                                          -10-
obvious that it should not be held that neither is material, and

hence both should be held to be material.” Id.

      While this conclusion may not be obvious, as evidenced by

the contrary conclusion in the later Restatement, we agree that

both independent grounds of a prior judgment should have later

preclusive      effect,       assuming    all       of   the    other        elements      of

collateral estoppel are present. As the drafters of the Second

Restatement recognized, “[t]he cases on this question of effect

of alternative determinations are not numerous, and some are

unclear in their rationale . . . . [T]he question is a close and

difficult      one.”     Restatement          (Second)     of    Judgments           §    27,

Reporter’s Note. To hold that a prior judgment is not preclusive

on   either    ground    on    which     it   was    based     would    undermine         the

entire      purpose     of     the     collateral        estoppel       doctrine,          to

“protect[] litigants from the burden of relitigating previously

decided     matters     and   promot[e]       judicial    economy       by     preventing

needless litigation.” City of Asheville, 192 N.C. App. at 17,

665 S.E.2d at 117 (citation and quotation marks omitted).

      The     illustration      given     by     the     drafters       of     the       First

Restatement explains why they came to this conclusion:

              A brings an action against B to recover
              interest on a promissory note payable to A,
              the principal not yet being due. B alleges
              that he was induced by the fraud of A to
                                           -11-
              execute the note, and further alleges that A
              gave him a release under seal of the
              obligation to pay interest. The jury in
              answer to interrogatories finds that B was
              induced by A’s fraud to execute the note,
              and also finds that A had given him a
              release under seal of the obligation to pay
              interest, and gives a verdict for B on which
              judgment is entered. After the note matures
              A brings an action against B for the
              principal of the note. The prior judgment is
              a defense to the action, since the finding
              that the execution of the note was procured
              by fraud is conclusive.

Restatement (First) of Judgments § 68,                      illus. 7.           The Second

Restatement     uses       this    same    illustration,          but      comes    to     the

opposite   conclusion.           Restatement      (Second)       of   Judgments       §    27,

illus.   15.    Under      the    latter    analysis,       B    would      have     had   to

relitigate     the    issue       of   fraud,     as    neither       of    the    previous

determinations would have preclusive effect. This result defeats

the purpose of collateral estoppel previously discussed.

       Additionally, this state’s analysis as to what constitutes

dicta supports the adoption of the rule of the First Restatement

over   that    of    the    Second.       The   Second     Restatement          considered

alternative grounds that support a judgment to be the equivalent

of dicta. See Restatement (Second) of Judgments § 27, cmt. i.

However,      alternative,        independent          grounds    for      an      appellate

decision are not considered obiter dicta here. The Supreme Court

has held that
                                    -12-
               where a case actually presents two or more
               points, any one of which is sufficient to
               support decision, but the reviewing Court
               decides all the points, the decision becomes
               a precedent in respect to every point
               decided, and the opinion expressed on each
               point becomes a part of the law of the case
               on subsequent trial and appeal.

Hayes v. City of Wilmington, 243 N.C. 525, 537, 91 S.E.2d 673,

682 (1956).

       Moreover, we are not convinced that the possibility that

the trial court erroneously decided one of the multiple grounds

relied on outweighs the interests of judicial economy and the

prevention of unnecessary relitigation.                Our Supreme Court has

explained that the doctrine of collateral estoppel applies even

if the prior judgment may have been error:

               To be valid a judgment need not be free from
               error. Normally no matter how erroneous a
               final valid judgment may be on either the
               facts or the law, it has binding res
               judicata and collateral estoppel effect in
               all courts, Federal and State, on the
               parties and their privies.

King   v.   Grindstaff,    284   N.C.   348,    360,   200     S.E.2d   799,   808

(1973).     Therefore, we hold that where a trial court bases its

judgment on multiple independent grounds, each of which have

been fully litigated, and that judgment has not been appealed,

the    trial    court’s   determination    as    to    every    issue   actually

decided has preclusive effect in later litigation.
                                                -13-
       Here,       all    elements        of    collateral         estoppel       are    present.

First, the issues involved in the present action are the same as

those in the prior action. The issue of whether Dr. Flitt owed a

duty    to     plaintiff         is     vital    to    plaintiff’s          negligence        claim

against      defendant          here,    as     it    was    in    her    claim    against        Dr.

Flitt. Second, the issue of whether the public duty doctrine

defeated the duty element of plaintiff’s negligence claim was

raised       and    actually          litigated       in    the    prior       action.       In    Dr.

Flitt’s answer, he specifically pled the public duty doctrine as

a defense.          Plaintiff specifically and extensively briefed the

issue     of       the    public        duty     doctrine         in     her    memorandum         in

opposition         to     Dr.    Flitt’s        summary          judgment      motion    in       the

superior court action.                  Further, the superior court specifically

noted that Dr. Flitt was “entitled to summary judgment based on

the public duty doctrine.”                       Third, the issue of whether Dr.

Flitt     owed      a     duty     to     plaintiff         was     material      to     deciding

plaintiff’s         negligence          claim    against          him.   See     Ray    v.    North

Carolina Dept. of Transp., 366 N.C. 1, 5, 727 S.E.2d 675, 679

(2012) (“Because the public duty doctrine says that there is a

duty to the public generally, rather than a duty to a specific

individual,         the    doctrine       operates          to    prevent      plaintiffs         from

establishing the first element of a negligence claim—duty to the
                                     -14-
individual plaintiff.”). Finally, as we held above, because the

public duty doctrine was specifically relied on to support the

trial court’s judgment, and it alone could have supported the

trial court’s judgment, that issue was necessary and essential

to the judgment.

    We     conclude    that   the   superior   court’s   summary   judgment

order collaterally estops plaintiff to contest the issue of the

public duty doctrine. As a result, plaintiff cannot show that

any duty was owed to her individually and her negligence claim

against defendant must fail. See Ray, 366 N.C. at 5, 727 S.E.2d

at 679. Therefore, we affirm the Industrial Commission’s order

granting defendant’s motion for summary judgment.

                              IV.   Conclusion

    For the foregoing reasons, we conclude that plaintiff is

precluded from contesting the issue of whether the public duty

doctrine    applies.     Therefore,     plaintiff    cannot    show    that

defendant or its employee, Dr. Flitt, owed her any individual

duty and her negligence claim fails as a matter of law. We

accordingly affirm the Full Commission’s order granting summary

judgment to defendant.

    AFFIRMED.

    Judges CALABRIA and DAVIS concur.
