{ "id": 11240730, "name": "GEORGE W. WILSON, JR., and MARY E. WILSON DOWNING, Plaintiffs v. LETHA FRANCES WILSON WATSON, Defendant", "name_abbreviation": "Wilson v. Watson", "decision_date": "2000-02-01", "docket_number": "No. COA99-60", "first_page": "500", "last_page": "505", "citations": [ { "type": "official", "cite": "136 N.C. App. 500" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "517 S.E.2d 901", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "134 N.C. App. 485", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11145576 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc-app/134/0485-01" ] }, { "cite": "453 S.E.2d 175", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "opinion_index": 0 }, { "cite": "338 N.C. 667", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2516968, 2520329, 2519273, 2521292, 2519452 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/338/0667-03", "/nc/338/0667-01", "/nc/338/0667-04", "/nc/338/0667-02", "/nc/338/0667-05" ] }, { "cite": "449 S.E.2d 226", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "227" }, { "page": "227", "parenthetical": "appeal of denial of summary judgment motion based on res judicata deemed interlocutory; \"facts of this case would not lead to\" inconsistent verdicts if case proceeded to trial" } ], "opinion_index": 0 }, { "cite": "116 N.C. App. 731", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525591 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "733" }, { "page": "733" } ], "opinion_index": 0, "case_paths": [ "/nc-app/116/0731-01" ] }, { "cite": "519 S.E.2d 540", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "545-46", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 159", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11239532 ], "year": 1999, "pin_cites": [ { "page": "166", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0159-01" ] }, { "cite": "435 S.E.2d 337", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "334 N.C. 621", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2530443, 2532332, 2530396, 2531257, 2532508 ], "year": 1993, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0621-03", "/nc/334/0621-02", "/nc/334/0621-05", "/nc/334/0621-04", "/nc/334/0621-01" ] }, { "cite": "430 S.E.2d 689", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "692", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "110 N.C. App. 531", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525976 ], "year": 1993, "pin_cites": [ { "page": "535", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/110/0531-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-301.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1999, "opinion_index": 0 }, { "cite": "494 S.E.2d 784", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "786-87" } ], "opinion_index": 0 }, { "cite": "128 N.C. App. 307", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11654026 ], "year": 1998, "pin_cites": [ { "page": "310-11" } ], "opinion_index": 0, "case_paths": [ "/nc-app/128/0307-01" ] }, { "cite": "481 S.E.2d 387", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "392" } ], "opinion_index": 0 }, { "cite": "125 N.C. App. 494", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11869002 ], "year": 1997, "pin_cites": [ { "page": "503" } ], "opinion_index": 0, "case_paths": [ "/nc-app/125/0494-01" ] }, { "cite": "428 S.E.2d 157", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1993, "pin_cites": [ { "page": "161" }, { "page": "161", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "333 N.C. 486", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2546781 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "491" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0486-01" ] } ], "analysis": { "cardinality": 562, "char_count": 11509, "ocr_confidence": 0.761, "pagerank": { "raw": 1.10557368627794e-07, "percentile": 0.5694822362230385 }, "sha256": "d6658983bfd06a28645b21dc63196b86efcb6d1835fed508a3824849b2ab36b3", "simhash": "1:d96bdd3c44374483", "word_count": 1874 }, "last_updated": "2023-07-14T19:33:36.366510+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge McGEE concurs.", "Judge JOHN concurs in the result with separate opinion.", "Judge John concurring in the result." ], "parties": [ "GEORGE W. WILSON, JR., and MARY E. WILSON DOWNING, Plaintiffs v. LETHA FRANCES WILSON WATSON, Defendant" ], "opinions": [ { "text": "LEWIS, Judge.\nThe.parties in this case are all children of Letha Mae Morris Wilson, who died on 23 November 1996. Ms. Wilson executed a power of attorney which appointed defendant as her attomey-in-fact. It included a clause which stated: \u201cI hereby relieve my attomey-in-fact of the responsibility and duty of filing any reports, inventories or accounts with the Clerk of Superior Court of any county.\u201d\nOn 20 May 1997, plaintiffs brought a Motion to Compel an Accounting before the Craven County Clerk of Superior Court (\u201cCase I\u201d). In that action, they moved the court to \u201center an Order requiring [defendant] to appear before the [c]lerk at a date certain, and to bring with her, canceled checks, bank statements, tax returns, any and all documentation and correspondence with institutions which [defendant] has in her possession of Letha Mae Morris Wilson for the past three (3) years.\u201d Following a hearing, the clerk of court entered an order denying plaintiffs\u2019 request on 17 December 1997. The clerk had the discretion and authority to grant or deny the request. Plaintiffs did not appeal from this order and lost their right.\nOn 8 January 1998, plaintiffs filed a complaint in Craven County Superior Court (\u201cCase II\u201d). In their complaint, plaintiffs requested the court to \u201center a Mandatory Injunction, as well as an Order directing and requiring [defendant] to produce any and all records she has concerning the accounts of Letha Mae Morris' Wilson prior to the death of Letha Mae Morris Wilson and to provide an accounting of any and all transactions in which she exercised her [p]ower of [attorney and/or acting on behalf of her mother, Letha Mae Morris Wilson.\u201d On 20 October 1998, the trial court entered an order denying defendant\u2019s motion for summary judgment. Defendant appeals from this order.\nThe order denying defendant\u2019s motion for summary judgment was interlocutory, and not immediately appealable unless it affects a substantial right. N.C. Gen. Stat. \u00a7 7A-27 (1999). The denial of a motion for summary judgment on the basis of res judicata affects a substantial right and entitles a party to an immediate appeal. Bockweg v. Anderson, 333 N.C. 486, 491, 428 S.E.2d 157, 161 (1993). Accordingly, defendant\u2019s appeal is properly before this Court.\nDefendant argues that the present claims are barred by principles of collateral estoppel and res judicata. Collateral estoppel, or issue preclusion, applies to a subsequent suit between the parties on a different cause of action. Nationsbank of N. C. v. American Doubloon Corp., 125 N.C. App. 494, 503, 481 S.E.2d 387, 392 (1997). Res judi-cata, or claim preclusion, on the other hand, entirely bars an identical party or those in privity from relitigating a second action identical to the first where a court of competent jurisdiction has already rendered a final judgment on the merits. News and Observer Pub. Co. v. Coble, 128 N.C. App. 307, 310-11, 494 S.E.2d 784, 786-87 (1998).\nPlaintiffs concede that the parties and subject matter in Case I and Case II are identical. Indeed, Case I and Case II arose out of a single action, involve the same facts, and identical parties have raised identical issues of law in each case. The issue for our consideration, then, is properly one of res judicata.\nPlaintiffs argue that the Craven County Clerk of Court was without jurisdiction to enter its order of 20 May 1997 denying plaintiffs\u2019 Motion to Compel an Accounting. Specifically, plaintiffs assert that inclusion of the clause relieving defendant of the responsibility to file reports, inventories and accounts with the clerk tacitly removed the clerk\u2019s jurisdiction to enter an order in their Motion to Compel an Accounting under G.S. 32A-ll(b). Because the clerk was without jurisdiction, plaintiffs contend that the decision was made by a court without competent jurisdiction, thereby making the doctrine of res judicata inapplicable. We must first clarify the statutory provision plaintiff contends is relevant to this argument. Section 32A-ll(b) provides in relevant part:\nAny provision in the power of attorney waiving or requiring the rendering of inventories and accounts shall govern, and a power of attorney that waives the requirement to file inventories and accounts need not be filed with the clerk of superior court. Otherwise, subsequent to the principal\u2019s incapacity or mental incompetence, the attorn\u00e9y-in-fact shall file in the office of the clerk of the superior court of the county in which the power of attorney is filed, inventories of the property of the principal in his hands and annual and final accounts of the receipt and disposition of property of the principal and of other transactions in behalf of the principal.\nThis section does not even address the clerk\u2019s jurisdiction to compel the production of inventories and accounts; it simply allows those attorneys-in-fact who are given waivers to choose not to file them with the clerk. Instead, the real provision relevant to the issue of the clerk\u2019s jurisdiction in this case is N.C. Gen. Stat. \u00a7 7A-103(15) (1999). This section grants the clerk of superior court jurisdiction to \u201caudit the accounts of fiduciaries, as required by law,\u201d and by implication, to deny a request to audit such accounts as well. Thus, the clerk here had jurisdiction to grant or deny plaintiffs\u2019 Motion to Compel an Accounting. We conclude, then, that a court of competent jurisdiction entered the order of 17 December 1997 in Case I.\nWe must note that plaintiffs had a 10-day right of appeal from the clerk\u2019s order of 17 December 1997, the superior court having jurisdiction to hear and determine all matters in controversy in the proceeding. N.C. Gen. Stat. \u00a7 1-301.1 (1999). Having waived their right of appeal to superior court, we conclude that the doctrine of res judicata bars the new action asserted by plaintiffs in Case II. Accordingly, the trial court erred in denying defendant\u2019s motion for summary judgment. We reverse for entry of summary judgment in defendant\u2019s favor.\nReversed and remanded.\nJudge McGEE concurs.\nJudge JOHN concurs in the result with separate opinion.\nJudge John concurring in the result.\nI believe this Court should entertain defendant\u2019s appeal and I therefore concur in the result reached herein by the majority. However, I write separately to address the issue of the interlocutory nature of defendant\u2019s appeal.\nAs a general rule, the denial of a motion for summary judgment is a nonappealable interlocutory order. However, an exception arises when a substantial right of one of the parties would be lost if the appeal were not heard prior to the final judgment.\nNorthwestern Financial Group v. County of Gaston, 110 N.C. App. 531, 535, 430 S.E.2d 689, 692, disc. review denied, 334 N.C. 621, 435 S.E.2d 337 (1993) (citation omitted).\nIn electing to entertain defendant\u2019s appeal, the majority cites Bockweg v. Anderson, 333 N.C. 486, 428 S.E.2d 157 (1993) as holding that denial of a summary judgment motion predicated upon res judi-cata implicates a substantial right entitling a party to an immediate appeal. However, our Supreme Court stated in Bockweg only that\ndenial of a motion for summary judgment based on the defense of res judicata may affect a substantial right....\nId. at 491, 428 S.E.2d at 161 (emphasis added). Further, in a subsequent opinion of this Court, Bockweg was interpreted as follows:\nBockweg [does not mandate] in every instance immediate appeal of the denial of a summary judgment motion based upon the defense of res judicata....\n[Rather], 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 \u201cwhere a possibility of inconsistent verdicts exists if the case proceeds to trial.\u201d\nCountry Club of Johnston County v. USF&G, 135 N.C. App. 159, 166, 519 S.E.2d 540, 545-46 (1999) (emphasis added) (citing Community Bank v. Whitley, 116 N.C. App. 731, 733, 449 S.E.2d 226, 227, disc. review denied, 338 N.C. 667, 453 S.E.2d 175 (1994)).\nAccordingly, the issue is not solely whether the defense of res judicata has been raised in a summary judgment motion, but also whether, absent an immediate appeal, there exists the possibility of inconsistent verdicts if the case proceeds to trial. See id. Another recent opinion of this Court indicates that the answer under the circumstances sub judice is in the affirmative.\nIn Little v. Hamel, 134 N.C. App. 485, 517 S.E.2d 901 (1999), summary judgment was entered on the plaintiffs claim of negligent representation against a law firm, and plaintiff did not pursue an appeal. Approximately one year later, plaintiff instituted a \u201cjoint and several\u201d claim of fraud against the law firm and an individual member thereof essentially based upon the same alleged actions the plaintiff had cited as supporting the earlier negligence claim. In the second case, the defendants\u2019 summary judgment motion grounded upon the defense of res judicata was denied. Although not analyzing the issue, this Court appears to have determined a substantial right was affected in light of the potential for a verdict in the second case inconsistent with the award of summary judgment to the defendant law firm in the first case. Cf. Community Bank, 116 N.C. App. at 733, 449 S.E.2d at 227 (appeal of denial of summary judgment motion based on res judicata deemed interlocutory; \u201cfacts of this case would not lead to\u201d inconsistent verdicts if case proceeded to trial).\nIn the instant case, were plaintiffs action to proceed to trial, a result might be reached inconsistent with the earlier ruling of the clerk of court. I therefore join with the majority in voting to consider defendant\u2019s appeal and concur in the resulting opinion save as noted above.", "type": "majority", "author": "LEWIS, Judge." } ], "attorneys": [ "Ernest C. Richardson, III for the plaintiff-appellees.", "James M. Ayers, II for the defendant-appellant." ], "corrections": "", "head_matter": "GEORGE W. WILSON, JR., and MARY E. WILSON DOWNING, Plaintiffs v. LETHA FRANCES WILSON WATSON, Defendant\nNo. COA99-60\n(Filed 1 February 2000)\n1. Appeal and Error\u2014 appealability \u2014 denial of summary judgment \u2014 res judicata\nThe denial of a motion for summary judgment on the basis of res judicata affects a substantial right and entitles a party to an immediate appeal.\n2. Clerks of Court\u2014 compelling accounting \u2014 jurisdiction\nThe clerk of court had jurisdiction to enter an order denying a request for an accounting from an attorney-in-fact where the power of attorney waived inventories and accounts. The provision relied upon by plaintiff, N.C.G.S. \u00a7 32A-ll(b), does not address the clerk\u2019s jurisdiction to compel inventories and accounts; the relevant provision, N.C.G.S. \u00a7 7A-103(15), grants the clerk the jurisdiction to audit the accounts of fiduciaries and by implication to deny a request to audit such accounts as well.\n3. Collateral Estoppel and Res Judicata\u2014 right to appeal waived \u2014 new action\nThe trial court erred by denying defendant\u2019s motion for summary judgment in an action to compel an accounting by an attomey-in-fact where the clerk of court had entered an order denying plaintiffs\u2019 request, plaintiffs did not appeal from the clerk to superior court, and plaintiffs later filed a complaint in superior court seeking the accounting. Having waived the right of appeal to superior court, the doctrine of res judicata bars the new action.\nJudge John concurring in the result.\nAppeal by defendant from order entered 20 October 1998 by Judge Howard E. Manning, Jr. in Craven County Superior Court. Heard in the Court of Appeals 20 October 1999.\nErnest C. Richardson, III for the plaintiff-appellees.\nJames M. Ayers, II for the defendant-appellant." }, "file_name": "0500-01", "first_page_order": 534, "last_page_order": 539 }