Moody v. Able Outdoor, Inc.

TYSON, Judge

concurring in the result only.

Because plaintiff could have asserted this cause of action in Case I but failed to do so, I vote to reverse the trial court’s order. Any dis*88cussion of Case II is unnecessary to resolve this appeal. I respectfully concur in the result only of the majority’s opinion.

I. Res Judicata

Under the doctrine of res judicata, “a final judgment on the merits in a prior action will prevent a second suit based on the same cause of action between the same parties or those in privity with them.” Thomas M. McInnis & Assoc., Inc. v. Hall, 318 N.C. 421, 428, 349 S.E.2d 552, 556 (1986). “The doctrine of res judicata is a principle of universal jurisprudence, forming a part of the legal systems of all civilized nations as an obvious rule of expediency, justice and public tranquillity.” Queen City Coach Company v. Frank Burrell, 241 N.C. 432, 434-35, 85 S.E.2d 688, 691 (1955) (citation omitted).

“The essential elements of res judicata are: (1) a final judgment on the merits in an earlier lawsuit; (2) identity of the cause of action in the prior suit and the later suit; and (3) an identity of the parties or their privies in both suits.” Culler v. Hamlett, 148 N.C. App. 389, 392, 559 S.E.2d 192, 194 (2002). “ ‘Strict identity of issues ... is not absolutely required and the doctrine of res judicata has been accordingly expanded to apply to those issues which could have been raised in the prior action.’ ” Stafford v. County of Bladen, 163 N.C. App. 149, 152, 592 S.E.2d 711, 713 (emphasis supplied) (quoting Caswell Realty Assoc. v. Andrews Co., 128 N.C. App. 716, 720, 496 S.E.2d 607, 610 (1998)), appeal dismissed and disc. rev. denied, 358 N.C. 545, 599 S.E.2d 409, (2004).

Our Supreme Court noted long-ago that “[t]he bar of the judgment in such cases extends not only to matters actually determined but also to other matters which in the exercise of due diligence could have been presented for determination in the prior action.” Gaither Corp. v. Skinner, 241 N.C. 532, 535-36, 85 S.E.2d 909, 911 (1955) (citation omitted). In analyzing the doctrine of res judicata as it applies to breach of contract claims, “[o]rdinarily, for the breach of an entire and indivisible contract only one action for damages will lie.” Gaither Corp., 241 N.C. at 536, 85 S.E.2d at 912 (citation omitted).

In Bockweg v. Anderson, our Supreme Court held that res judi-cata did not bar the plaintiffs’ action where they were “seeking a remedy for a separate and distinct negligent act leading to a separate and distinct injury.” 333 N.C. 486, 494, 428 S.E.2d 157, 163 (1993). However, Bockweg reconciled its result with that in Gaither by clearly distinguishing the causes of action: “While Gaither may be *89read broadly as defendants contend, Gaither dealt with res judicata only in the context of a second suit for damages under an entire and indivisible contract, not a negligence action as in the instant case.” Id. at 494, 428 S.E.2d at 162; see also Davenport v. North Carolina Dep’t of Transp., 3 F.3d 89 (4th Cir. 1993).

II. Analysis

I would follow our Supreme Court’s reasoning in both Bockweg and Gaither to reverse the trial court’s order denying PNE defendants’ motion for summary judgment. Here, plaintiff brought the first cause of action on 25 May 2001. Barely one month prior to the fire, in October 2001, plaintiff amended his complaint to include additional causes of action. Presuming plaintiff was unaware at the time of the first action that PNE defendants were in breach of the contract for failure to procure fire insurance, plaintiff most certainly became aware of PNE defendants’ breach in November 2001 following the fire.

The “exercise of due diligence” language in Gaither should not be construed broadly. Considering the facts of this case, plaintiff not only could have amended his complaint to include another claim for breach of contract, but should have included this action. The action at bar was filed 25 February 2002, while Case I was still pending. The parties did not settle Case I until 4 February 2003, a year after the filing of the action at bar.

Following the well-established rule that “for the breach of an entire and indivisible contract only one action for damages will lie,” Gaither Corp., 241 N.C. at 536, 85 S.E.2d at 912, plaintiff had the opportunity, upon discovery of additional breaches, to include any additional claims arising out of the only contract it had with PNE defendants. See Smoky Mountain Enterprises, Inc. v. Jesse Rose, 283 N.C. 373, 378, 196 S.E.2d 189, 192 (1973) (“Plaintiff cannot in this action seek relief which, in the exercise of reasonable diligence, could have been presented for determination in the prior action.”).

I would reverse the trial court solely on this basis. Any discussion in the majority’s opinion regarding Case II and privies is unnecessary to the resolution of this case. I respectfully concur in the result only in the majority’s opinion.