               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA 18-1075

                                Filed: 18 June 2019

Davidson County, No. 16 CVS 1474

R.C. KOONTS and SONS MASONRY, INC., DAVID CRAIG KOONTS, and ROY
CLIFTON KOONTS, III, Plaintiffs,

             v.

FIRST NATIONAL BANK, f/k/a YADKIN BANK f/k/a NEWBRIDGE BANK f/k/a
LEXINGTON STATE BANK, Defendant.


      Appeal by defendant from order entered 5 July 2018 by Judge Martin B.

McGee in Davidson County Superior Court.         Heard in the Court of Appeals

21 May 2019.


      Smith Law Group, PLLC, by Steven D. Smith, Matthew L. Spencer, and
      Jonathan M. Holt, for plaintiff-appellees.

      Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Elizabeth L.
      Troutman and James C. Adams, II, for defendant-appellant.


      ARROWOOD, Judge.


      First National Bank, formerly known as Yadkin Bank, formerly known as

NewBridge Bank, formerly known as Lexington State Bank (“defendant”) appeals

from an order denying its motion for summary judgment. For the reasons stated

herein, we affirm in part and reverse in part.

                                 I.     Background
                R.C. KOONTS AND SONS MASONRY, INC. V. YADKIN BANK

                                   Opinion of the Court



       Defendant engages in commercial lending. On or about 22 November 2004,

R.C. Koonts and Sons Masonry, Inc. (the “corporate plaintiff”) obtained a $417,306.14

loan from defendant. The individual plaintiffs, plaintiff David Craig Koonts (“David

Koonts”) and plaintiff Roy Clifton Koonts, III (“R.C. Koonts”), who owned the

corporate plaintiff at all times relevant to this action, guaranteed the loan.

       The parties renewed the loan in 2005. As collateral, R.C. Koonts and Sons

Masonry, Inc., R.C. Koonts, and David Koonts (collectively, “plaintiffs”) pledged all

inventory, vehicles, accounts receivable, machinery, and equipment of the corporate

plaintiff.   Plaintiffs defaulted on the loan in 2007.    The parties entered into a

forbearance agreement on 19 December 2007, however, plaintiffs subsequently

defaulted on the agreement.

       On 15 January 2009, defendant filed suit against plaintiffs seeking repayment

of the loan. Defendant also instituted a claim and delivery proceeding to seize the

collateral pledged as security for the loan. Pursuant to a 12 February 2009 court

order, defendant posted a surety bond and seized the collateral in a claim and delivery

proceeding. Plaintiffs were unable to secure a bond to recover the collateral. On

15 October 2012, the Honorable Theodore Royster of Davidson County Superior

Court determined plaintiffs were liable to defendant on the loan.

       Plaintiffs filed counterclaims challenging the propriety of the seizure of

collateral and requesting consequential damages. Specifically, the counterclaims



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                                  Opinion of the Court



challenged the enforceability of defendant’s security interest and of the forbearance

agreement, defendant’s right to seize the collateral, and the amount of the loan that

remained outstanding. The counterclaims also alleged: the amount of collateral

seized forced the corporate plaintiff out of business, the corporate plaintiff lost the

rental value of the collateral due to the seizure, and defendant failed to maintain the

collateral in proper condition, in violation of Article 9 of the Uniform Commercial

Code (“UCC”). Defendant moved for summary judgment on plaintiffs’ counterclaims.

      The matter came on for hearing before the Honorable John O. Craig, III in

Davidson County Superior Court on 15 June 2015. On 3 November 2015, the trial

court entered an order granting partial summary judgment, as follows.

             1. Insofar as [R.C. Koonts and Sons Masonry, Inc., R.C.
                Koonts, and David Koonts’] counterclaims challenge
                [the] seizure of collateral, pursuant to N.C. Gen. Stat. §
                1-473, et. seq., they are hereby dismissed, with
                prejudice.

             2. Insofar as [R.C. Koonts and Sons Masonry, Inc., R.C.
                Koonts, and David Koonts’] counterclaims arise out of
                Article 9 of the Uniform Commercial Code, N.C. Gen.
                Stat. § 25-9-100, et seq., for failure to make a
                commercially reasonable disposition of the collateral,
                [the] claims are not ripe at this time. The Court
                approves of [R.C. Koonts and Sons Masonry, Inc., R.C.
                Koonts, and David Koonts] voluntary dismissal of such
                claims without prejudice, [R.C. Koonts and Sons
                Masonry, Inc., R.C. Koonts, and David Koonts] shall not
                be required to pay the costs pursuant to Rule 41(d)
                when filing or refiling such counterclaims.

             3. All other counterclaims of [R.C. Koonts and Sons


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                 R.C. KOONTS AND SONS MASONRY, INC. V. YADKIN BANK

                                        Opinion of the Court



                   Masonry, Inc., R.C. Koonts, and David Koonts] are
                   dismissed with prejudice.1

       Following a bench trial, the trial court ruled that plaintiffs owed defendant

$708,373.80, plus interest accruing at 13.25% per annum, plus costs. The trial court

entered the final judgment on 3 November 2015. Plaintiffs did not appeal.2

       After defendant sold the collateral, plaintiffs filed the instant lawsuit, claiming

defendant violated N.C. Gen. Stat. §§ 25-9-100, et seq., (2017) and committed unfair

and deceptive trade practices. Defendant answered the complaint on 3 August 2016,

and moved for summary judgment on 20 April 2018. Defendants argued in particular

that plaintiffs’ claims were barred by res judicata and collateral estoppel, that

plaintiffs lack standing, and that plaintiffs’ claims were barred for failure to adduce

evidence supporting the elements of their claims.

       The matter came on for hearing before the Honorable Martin B. McGee in

Davidson County Superior Court on 21 May 2018. The trial court denied defendant’s

motion for summary judgment by order entered 5 July 2018.

       Defendant appeals the trial court’s denial of summary judgment.

                                        II.    Discussion



       1  Alterations have been added for clarity because plaintiffs were the defendants in the first
law suit, and defendant was the plaintiff.
        2 The partial summary judgment order and the final order were amended twice; however, the

amendments did not alter the dismissal of plaintiffs’ counterclaims. The amendments only added
language describing the seized collateral, which was required by the North Carolina Division of Motor
Vehicles and the Federal Aviation Administration to permit defendant to proceed with the disposition
of the property.

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               R.C. KOONTS AND SONS MASONRY, INC. V. YADKIN BANK

                                  Opinion of the Court



      Defendant argues the trial court erred by wholly denying its motion for

summary judgment because res judicata and collateral estoppel bar all claims except

the allegation that defendant disposed of the collateral in a commercially reasonable

manner. Therefore, defendant argues the trial court erred when it did not grant

partial summary judgment. We agree.

                        A.     Grounds for Appellate Review

      At the outset, we must address the interlocutory nature of this appeal.

Defendant contends the trial court’s interlocutory order is immediately appealable

because defendant would be deprived of a substantial right without immediate

review. We agree.

      “The denial of summary judgment is not a final judgment, but rather is

interlocutory in nature.” Williams v. City of Jacksonville Police Dep’t, 165 N.C. App.

587, 589, 599 S.E.2d 422, 426 (2004) (citation and quotation marks omitted). As a

matter of course, our Court does not review interlocutory orders. Id. “If, however,

the trial court’s decision deprives the appellant of a substantial right which would be

lost absent immediate review, we may review the appeal under N.C. Gen. Stat. §§ 1-

277(a) and 7A-27(d)(1).” Id. (citation and internal quotation marks omitted).

      “[T]he 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 589, 599 S.E.2d at 426 (citation and quotation marks omitted). However, a



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                                   Opinion of the Court



mere allegation that res judicata bars a suit “does not automatically affect a

substantial right; the burden is on the party seeking review of an interlocutory order

to show how it will affect a substantial right absent immediate review.” Whitehurst

Inv. Properties, LLC v. NewBridge Bank, 237 N.C. App. 92, 95, 764 S.E.2d 487, 489

(2014) (emphasis in original). For an appellant “to meet its burden of showing how a

substantial right would be lost without immediate review,” the appellant must

demonstrate: “(1) the same factual issues would be present in both trials and (2) the

possibility of inconsistent verdicts on those issues exists.” Id. at 96, 764 S.E.2d at

490 (citation and quotation marks omitted).

      Here, defendant argues it was entitled to summary judgment on all claims

except those arising out of Article 9 of the UCC, N.C. Gen. Stat. § 25-9-100, et seq.,

for failure to make a commercially reasonable disposition of the collateral. Therefore,

defendant contends, because plaintiffs’ complaint includes allegations that were

already litigated, or could have been litigated, in the prior case in addition to claims

arising out of Article 9, the trial court’s denial of its motion for summary judgment is

immediately appealable because re-litigation of the claims is barred by res judicata

and collateral estoppel. Absent immediate appeal, defendant would lose a substantial

right because trial of the instant case could result in inconsistent judgments between

the same parties involving the seizure of the same collateral. For the reasons that

follow, we agree. Therefore, defendant’s appeal is properly before this court.



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                                  Opinion of the Court



                                 B.     Res Judicata

      First, defendant argues res judicata bars all claims except issues related to the

commercial reasonableness of the disposition of the collateral.

      “Our standard of review of an appeal from summary judgment is de novo; such

judgment is appropriate only when the record shows 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.’ ” In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (quoting

Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007)).

      “Under the doctrine of res judicata or ‘claim preclusion,’ a final judgment on

the merits in one action precludes a second suit based on the same cause of action

between the same parties or their privies.” Williams v. Peabody, 217 N.C. App. 1, 5,

719 S.E.2d 88, 92 (2011) (citation and quotation marks omitted). For an action to be

barred by res judicata, “a party must show that the previous suit resulted in a final

judgment on the merits, that the same cause of action is involved, and that both the

party asserting res judicata and the party against whom res judicata is asserted were

either parties or stand in privity with parties.” Id. (citation and quotation marks

omitted). Res judicata bars both “matters actually determined or litigated in the prior

proceeding” and also “all relevant and material matters within the scope of the

proceeding which the parties, in the exercise of reasonable diligence, could and should




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                R.C. KOONTS AND SONS MASONRY, INC. V. YADKIN BANK

                                    Opinion of the Court



have brought forward for determination.” Id. at 7, 719 S.E.2d at 93 (citation and

quotation marks omitted).

       Here, it is undisputed that the parties in the instant action are the same

parties that litigated the first suit, which resulted in a final judgment. Additionally,

both suits rose from the same factual circumstances addressed by the first suit: When

plaintiffs defaulted on defendant’s loan to plaintiffs, defendant filed a complaint to

enforce repayment. Defendant also caused a claim and delivery order of seizure of

the items plaintiffs had pledged as collateral for the loan. Plaintiffs then raised

various allegations in their counterclaims related to both the seizure and disposition

of the collateral.

       Although the first suit resulted in a final judgment, finding plaintiffs owed

defendant $708,373.80, plus interest accruing at 13.25%, plus costs, and that

defendant could sell the collateral, both parties anticipated plaintiffs would file a

second suit based on this same collateral. The trial court specifically dismissed one

of plaintiffs’ counterclaims in the first suit, without prejudice, because it was not ripe:

              2. Insofar as [R.C. Koonts and Sons Masonry, Inc., R.C.
                 Koonts, and David Koonts’] counterclaims arise out of
                 Article 9 of the Uniform Commercial Code, N.C. Gen.
                 Stat. § 25-9-100, et seq., for failure to make a
                 commercially reasonable disposition of the collateral,
                 [the] claims are not ripe at this time. The Court
                 approves of [R.C. Koonts and Sons Masonry, Inc., R.C.
                 Koonts, and David Koonts] voluntary dismissal of such
                 claims without prejudice, [R.C. Koonts and Sons
                 Masonry, Inc., R.C. Koonts, and David Koonts] shall not


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               R.C. KOONTS AND SONS MASONRY, INC. V. YADKIN BANK

                                    Opinion of the Court



                 be required to pay the costs pursuant to Rule 41(d)
                 when filing or refiling such counterclaims.

      However, the complaint in the instant, second suit exceeds the counterclaim

the trial court dismissed without prejudice in the first suit. The complaint specifically

raises allegations related to the seizure of the collateral, an issue that was

adjudicated in the first lawsuit:

             15. R.C. Koonts and Sons was operated and been
                 incorporated [sic] for 15 years, and operated as a
                 partnership for 27 years to the formation of a
                 corporation. R.C. Koonts and Sons operated and
                 engaged in the masonry business continuously until
                 Defendant seized Plaintiffs assets thereby putting
                 them out of business. Plaintiffs had no assets with
                 which to operate since said seizure of all its assets by
                 Defendant, and has been closed since the seizure after
                 many years of continuous, successful operation as a
                 thriving business. . . .

             ....

             17. Plaintiffs have been damaged for the loss of said
                 assets in an amount to be determined at trial but
                 believed to be in excess of $25,000.00.

             18. In addition, Plaintiffs have been damaged in that they
                 have lost their business and the use of said assets,
                 which had a fair rental value of $50,000.00 per month
                 for each month since the seizure of said assets on
                 March 12, 2009.

             19. Defendant’s seizure of the assets of Plaintiffs,
                 proximately caused the closure of the business of R.C.
                 Koonts and Sons, damaging said Plaintiff by the loss
                 of business and income, an amount to be determined
                 at trial, since the closure of Plaintiffs’ business


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               R.C. KOONTS AND SONS MASONRY, INC. V. YADKIN BANK

                                   Opinion of the Court



                   continuing into an indefinite time into the future.

             20. Defendant’s seizure of the helicopter of Defendant
                 David Craig Koonts has proximately caused and
                 damaged said Plaintiff in the fair market value and
                 rental value of the helicopter in an amount to be
                 determined at trial but believed to be in excess of
                 $25,000.00[.]

(Emphasis added).

      Clearly, these claims relate to the seizure of the collateral. Allegations related

to the collateral’s seizure were litigated in the first lawsuit, where the trial court

determined “Plaintiff was legally permitted to seize all of the machinery, equipment

and other collateral[.]” Therefore, all of defendant’s counterclaims related to the

seizure of collateral pursuant to N.C. Gen. Stat. § 1-473, et seq., in the first suit were

dismissed. Accordingly, res judicata bars these claims and the damages plaintiffs

prayed for in their complaint related to allegations of an improper seizure, and loss

of the business due to the seizure, cannot be recovered. To hold otherwise could result

in inconsistent verdicts related to the seizure of the collateral.

      In sum, the 3 November 2015 order makes clear that all claims except those

arising out of Article 9 of the UCC, N.C. Gen. Stat. § 25-9-100, et seq., for failure to

make a commercially reasonable disposition of the collateral were decided in the first

suit. Therefore, plaintiffs’ attempts to bring claims outside of those arising out of

Article 9 of the UCC are barred by res judicata. Plaintiffs can no longer request

damages based on allegations that the business could not continue after the seizure


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                R.C. KOONTS AND SONS MASONRY, INC. V. YADKIN BANK

                                    Opinion of the Court



of the collateral, that defendant seized more collateral than it was entitled to seize,

that the seizure proximately caused the loss of the business, and that the business

was damaged because it did not have the use of the collateral after the seizure.

Furthermore, to the extent the second claim, alleging unfair and deceptive trade

practices, relates to anything other than the claim reserved by the 3 November 2015

order, it is also barred by res judicata.

      However, it is clear that the trial court in the first suit dismissed plaintiffs’

claim arising out of Article 9 of the UCC, N.C. Gen. Stat. § 25-9-100, et seq., for failure

to make a commercially reasonable disposition of the collateral without prejudice.

Therefore, plaintiffs’ allegations that defendant failed to dispose or sell of the

collateral in a commercially reasonable manner, including that defendant did not

properly maintain the property to allow for a commercially reasonable sale, is not

barred by res judicata and may proceed to trial. Because defendant’s collateral

estoppel argument requests the same conclusion we have reached based on the

doctrine of res judicata, we need not consider defendant’s second argument on appeal.

      We reverse the trial court’s order to the extent it permitted plaintiffs to raise

claims in addition to those arising out of Article 9 of the UCC, N.C. Gen. Stat. § 25-9-

100, et seq., for failure to make a commercially reasonable disposition of the collateral.

                                    III.    Conclusion

      For the foregoing reasons, we reverse in part and affirm in part.



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       R.C. KOONTS AND SONS MASONRY, INC. V. YADKIN BANK

                       Opinion of the Court



REVERSED IN PART; AFFIRMED IN PART.

Chief Judge MCGEE and Judge INMAN concur.




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