McDonald v. Skeen
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NO. COA01-1069 NORTH CAROLINA COURT OF APPEALS Filed: 06 August 2002 C. WAYNE McDONALD v. ERVIN DWAIN SKEEN t/a DWAIN SKEEN COMMERCIAL INDUSTRIAL REAL ESTATE Appeal by defendant from judgment entered 28 March 2001 by Judge Henry E. Frye, Jr. in Guilford County Superior Court. Heard in the Court of Appeals 22 May 2002. Cunningham, Crump & Cunningham, PLLC, by James Calvin Cunningham, III, R. Flint Crump, and J. Calvin Cunningham for plaintiff-appellee. Roberson, Haworth & Reese, PLLC, by Robert A. Brinson and Christopher C. Finan for defendant-appellant. THOMAS, Judge. Defendant, Ervin Dwain Skeen t/a Dwain Skeen Commercial Industrial Real Estate, appeals an order denying his motion for summary judgment in this breach of contract case. motion solely on collateral estoppel grounds. He based that For the reasons discussed herein, we affirm. The pertinent facts are as follows: Plaintiff, C. Wayne McDonald, was a party in an action previously before this Court where Skeen allegedly acted as an agent during the events leading to that lawsuit. See Cap Care Group, Inc. v. McDonald, ___ N.C. App. ___, ___ S.E.2d ___ (No. COA01-170) (filed Apr. 16, 2002). We held a partnership existed between Cap Care and McDonald even though McDonald argued no such partnership was ever formed. In the -2instant case, McDonald claims Skeen breached his contract with him in that Skeen: (1) violated N.C. Gen. Stat. § 93A-6(a)(4) by acting as an agent for more than one party; (2) violated duties of loyalty and consent owed to McDonald; and (3) did not disclose that he was an agent for Cap Care. McDonald contends Skeen fraudulently gave Cap Care confidential information that led to Cap Care s action to enforce a partnership. Skeen, according to McDonald, acted as an agent for both parties without McDonald s knowledge or permission. alleges Skeen violated his duty of loyalty and consent. not a party to the previous action. That He also Skeen was complaint and counterclaim only concerned the principals to the partnership, McDonald and Cap Care. Here, Skeen filed a motion to dismiss and alleged: (1) absence of a justiciable case; (2) violation of the statute of limitations; (3) collateral estoppel; (4) estoppel by judgment; and (5) res judicata. contending Subsequently, the Cap Care Skeen action moved for conclusively summary judgment, established that McDonald knew about Skeen s involvement with Cap Care and that McDonald breached a partnership contract with Cap Care. Skeen presented the affidavits of many of the individuals involved in the Cap Care case to support his motion for summary judgment. McDonald also moved for summary judgment, although that motion is not included in the record. The trial court denied Skeen s motion for summary judgment. He appeals. -3Before we consider Skeen s arguments, we note the trial court s order would not normally be immediately appealable because it would be considered interlocutory. State ex rel. Employment Security Commission v. IATSE Local 574, 114 N.C. App. 442 S.E.2d 339, 340 (1994). 662, 663, A ruling is interlocutory if it does not determine the issues but directs some further proceeding preliminary to a final decree. Blackwelder v. Dept. of Human Resources, 60 N.C. App. 331, 299 S.E.2d 777 (1983). However, an interlocutory order may be heard in appellate courts if it affects a substantial right. See N.C. Gen. Stat. § 1-277(a) (1999). In Green v. Duke Power Co., 305 N.C. 603, 606, 290 S.E.2d 593, 595 (1982), our Supreme Court stated that the right to avoid the possibility of two trials on the same issues can be such a substantial right. Nonetheless, we find that the collateral estoppel claim has no merit. The doctrine of collateral estoppel is designed to prevent repetitious lawsuits over matters which have once been decided and which have remained substantially static, factually and legally. Scarvey v. First Federal Savings and Loan Ass'n of Charlotte, 146 N.C. App. 33, 38-39, 552 S.E.2d 655, 659 (2001) (quoting King v. Grindstaff, 284 N.C. 348, 356, 200 S.E.2d 799, 805 (1973)). order for collateral requirements must be met. estoppel to be applicable, In certain The elements of collateral estoppel, as stated by our Supreme Court, are as follows: (1) a prior suit resulting in a final judgment on the merits; (2) identical issues involved; (3) the issue was actually litigated in the prior suit -4and necessary to the judgment; and (4) the issue was actually determined. Thomas M. McInnis & Associates, Inc. v. Hall, 318 N.C. 421, 349 S.E.2d 552 (1986). In Cap Care, the main issue was whether Cap Care and McDonald formed an enforceable partnership. partnership agreement existed. This Court held that such a The issue of Skeen s agency status was never actually litigated and determined in the prior case. We thus reject Skeen s argument. By his second assignment of error, Skeen contends the trial court erred in not granting summary judgment because McDonald failed to show any damages. However, Skeen did not present this ground in his motion to dismiss or argue it at the hearing, although he pled and fully argued the collateral estoppel ground. Thus, we do not consider this contention. 7(b)(1); N.C.R. App. P. 10(b)(1). AFFIRMED. Judges WYNN and HUNTER concur. See N.C.R. Civ. P.
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