{ "id": 12125312, "name": "EDWIN E. FICKLEY, DONALD F. SMITH, and CORAL R. SMITH, Plaintiffs v. GREYSTONE ENTERPRISES, INC., DAVID OSTEEN and CONNIE OSTEEN, Defendants", "name_abbreviation": "Fickley v. Greystone Enterprises, Inc.", "decision_date": "2000-10-03", "docket_number": "No. COA99-1211", "first_page": "258", "last_page": "262", "citations": [ { "type": "official", "cite": "140 N.C. App. 258" } ], "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": "404 S.E.2d 885", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "886" } ], "opinion_index": 0 }, { "cite": "103 N.C. App. 279", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520497 ], "year": 1991, "pin_cites": [ { "page": "281" } ], "opinion_index": 0, "case_paths": [ "/nc-app/103/0279-01" ] }, { "cite": "346 S.E.2d 677", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "681" } ], "opinion_index": 0 }, { "cite": "82 N.C. App. 502", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8359260 ], "year": 1986, "pin_cites": [ { "page": "507-08" } ], "opinion_index": 0, "case_paths": [ "/nc-app/82/0502-01" ] }, { "cite": "512 S.E.2d 779", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1999, "pin_cites": [ { "page": "782", "parenthetical": "quoting Brooks v. Rogers, 82 N.C. App. 502, 507-08, 346 S.E.2d 677, 681 (1986)" }, { "page": "782" }, { "page": "782-83", "parenthetical": "counterclaim for an amount in excess of $10,000 would have been properly filed on appeal from the judgment of a magistrate to district court" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 569", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11239344 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "574", "parenthetical": "quoting Brooks v. Rogers, 82 N.C. App. 502, 507-08, 346 S.E.2d 677, 681 (1986)" }, { "page": "574" }, { "page": "574-75" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0569-01" ] }, { "cite": "204 S.E.2d 711", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "21 N.C. App. 424", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8556315 ], "year": 1974, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/21/0424-01" ] }, { "cite": "419 S.E.2d 766", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "768" } ], "opinion_index": 0 }, { "cite": "332 N.C. 326", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2504386 ], "year": 1992, "pin_cites": [ { "page": "329" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0326-01" ] } ], "analysis": { "cardinality": 496, "char_count": 10084, "ocr_confidence": 0.723, "pagerank": { "raw": 2.2005359848181306e-07, "percentile": 0.7750990501762844 }, "sha256": "c22bf324ccb0eaf7d0cfa0df9b57aba79859d8490a7fac804040eaac973f6cfb", "simhash": "1:e3ad957a3c299c6f", "word_count": 1560 }, "last_updated": "2023-07-14T16:18:32.795698+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WALKER and HUNTER concur." ], "parties": [ "EDWIN E. FICKLEY, DONALD F. SMITH, and CORAL R. SMITH, Plaintiffs v. GREYSTONE ENTERPRISES, INC., DAVID OSTEEN and CONNIE OSTEEN, Defendants" ], "opinions": [ { "text": "LEWIS, Judge.\nEffective appellate review of this case was made more difficult by the filing of an incomplete record on appeal. The parties\u2019 exhibits, which were necessary to an understanding of appellants\u2019 assignments of error, were not included in the record in this case. The Rules of Appellate Procedure require appellants to present complete records as necessary to understand the errors assigned. N.C.R. App. P. 9(a)(1)(e),(j). We could have dismissed this appeal for failure to comply with the Rules of Appellate Procedure. N.C.R. App. P. 25(b); 34(b)(1). However, we waived the violation pursuant to Appellate Rule 2, obtaining most of these documents through numerous contacts with counsel by the Clerk of this Court. We caution all appellants in the future to be more diligent in complying with the Rules of Appellate Procedure.\nPlaintiff Edwin Fickley (\u201cFickley\u201d) and plaintiffs Donald and Coral Smith (\u201cthe Smiths\u201d) purchased double wide manufactured homes from defendant Greystone Enterprises, Inc. (\u201cGreystone\u201d) in 1992 and 1988, respectively. Fickley and the Smiths leased lots for their manufactured homes in Greystone Subdivision, a residential rental community owned by Greystone. Both lease agreements provided that \u201c[i]tems excluded and forbidden from Greystone [subdivision] shall include . . . \u2018For Sale,\u2019 \u2018For Rent\u2019 and other signs used for advertising purposes.\u201d Fickley and the Smiths subsequently placed \u201cFor Sale\u201d signs on their respective leased premises, and defendants terminated both leases. When the plaintiffs failed to vacate the respective premises, on 25 May 1993, Greystone instituted two summary ejectment proceedings against them. On 3 June 1993 the magistrate entered a judgment for summary eviction in both proceedings.\nNeither Fickley nor the Smiths properly perfected an appeal for de novo review in district court from the magistrate\u2019s judgment. Instead, plaintiffs instituted this action for damages (\u201csecond action\u201d) on 27 November 1996 in. superior court against Greystone, David Osteen, president of Greytone, and Connie Osteen, vice-president of Greystone, ultimately asserting claims for retaliatory eviction and unfair trade practices. Specifically, plaintiffs alleged defendants evicted them as a result of \u201canimosity\u201d arising from plaintiffs\u2019 participation in the Greystone subdivision homeowners\u2019 association and for placing \u201cFor Sale\u201d signs on their leased premises. In their answer, defendants asserted as affirmative defenses that the claims in the second action were compulsory counterclaims under Rule 13(a) and thus barred by the doctrine of res judicata.\nAt trial, the court submitted the retaliatory eviction and unfair trade practices claims to the jury, which was unable to reach a unanimous verdict. The court declared a mistrial and subsequently conducted a hearing on defendant\u2019s renewed motion for directed verdict, which the court granted. Plaintiffs appeal.\nPlaintiffs contend the trial court erred in granting defendants\u2019 renewed motion for directed verdict on the basis that sufficient evidence supported each claim. Defendants maintain the court properly dismissed plaintiffs\u2019 claims since, pursuant to their asserted affirmative defenses, the claim for retaliatory eviction was a compulsory counterclaim which should have been asserted in the prior summary ejectment proceeding. Defendants argue plaintiffs are thereby precluded by the doctrine of res judicata from asserting either of the claims in the second action. We agree.\nWhere a defendant establishes an affirmative defense as a matter of law, there are no issues to submit to a jury and a plaintiff has no right to recover. Directing a verdict for the defendant in such a situation is appropriate. Goodwin v. Investors Life Insurance Co. of North America, 332 N.C. 326, 329, 419 S.E.2d 766, 768 (1992). Under the doctrine of res judicata:\nWhere a second action or proceeding is between the same parties as the first action or proceeding, the judgment in the former action or proceeding is conclusive in the latter not only as to all matters actually litigated and determined, but also as to all matters which could properly have been litigated and determined in the former action or proceeding.\nYoung v. Young, 21 N.C. App. 424, 204 S.E.2d 711 (1974) (citations omitted).\nWe conclude plaintiffs should have asserted their rights in the summary ejectment proceeding by way of a compulsory counterclaim. Generally, a counterclaim is compulsory if \u201cit arises out of the transaction or occurrence that is the subject matter of the opposing party\u2019s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.\u201d N.C.R. Civ. R 13(a). To determine whether a claim arises out of the same transaction or occurrence as a prior claim, the court must consider: \u201c(1) whether the issues of fact and law are largely the same; (2) whether substantially the same evidence is involved in each action; and (3) whether there is a logical relationship between the two actions.\u201d Cloer v. Smith, 132 N.C. App. 569, 574, 512 S.E.2d 779, 782 (1999) (quoting Brooks v. Rogers, 82 N.C. App. 502, 507-08, 346 S.E.2d 677, 681 (1986)).\nHere, the action for summary ejectment was based on the assertion that plaintiffs violated the terms of their respective lease agreements with Greystone. The second action is based on allegations that defendants terminated their lease agreements in retaliation for certain of plaintiffs\u2019 actions and exercised the remedy of summary ejectment in an effort to deprive plaintiffs of their investment. Although in the second action Fickley and the Smiths seek damages, and in the summary ejectment action, defendants sought injunctive relief, the determinative question in both actions is whether Fickley and the Smiths breached their respective lease agreements, making defendants\u2019 termination of the lease agreements valid. Because the issues of fact and law are largely the same, substantially the same evidence is involved in both and the actions are logically related, the second action was a compulsory counterclaim in the summary ejectment action filed by defendants. See also Cloer, 132 N.C. App. at 574, 512 S.E.2d at 782.\nIn the second action, however, plaintiffs seek damages in excess of $10,000, which exceeds the $3,000 jurisdictional amount in small claims actions pursuant to the provisions of N.C. Gen. Stat. \u00a7 7A-210(1) at the time the second action was filed. Accordingly, plaintiffs could not have asserted this action as a compulsory counterclaim to the summary ejectment proceeding while it was before the magistrate. N.C. Gen. Stat. \u00a7 7A-219 (1999) (\u201cNo counterclaim . . . which would make the amount in controversy exceed the jurisdictional amount established by G.S. 7A-210(1) is permissible in a small claim action assigned to a magistrate.\u201d) Instead, plaintiffs were required to file the action, if at all, in an appeal from the magistrate\u2019s decision to the district court. N.C. Gen. Stat. \u00a7 7A-220 (1999) (\u201cOn appeal from the judgment of the magistrate for a trial de novo before a district judge, the judge shall allow appropriate counterclaims . . . .\u201d); see also Cloer, 132 N.C. App. at 574-75, 512 S.E.2d at 782-83 (counterclaim for an amount in excess of $10,000 would have been properly filed on appeal from the judgment of a magistrate to district court).\nRule 13 requires a party to assert as a counterclaim any claim arising out of the same transaction or occurrence as the pending action, \u201cat peril of being barred\u201d from asserting the claim in a separate action. Comment, N.C.R. Civ. R 13 (1999). Because plaintiffs had the opportunity to file retaliatory eviction as a counterclaim in an appeal from the magistrate\u2019s judgment, the doctrine of res judicata barred plaintiffs from asserting either the underlying retaliatory eviction claim or the unfair trade practices claim in the second action. See, e.g., Furr v. Noland, 103 N.C. App. 279, 281, 404 S.E.2d 885, 886 (1991).\nIn their remaining assignments of error, plaintiffs contend the court erred in refusing to submit several issues to the jury. However, by directing a verdict in favor of defendants, the action was completely removed from the jury\u2019s consideration. Plaintiffs\u2019 contentions surrounding the court\u2019s refusal to submit issues to the jury are thereby rendered moot, and we will not address them.\nAffirmed.\nJudges WALKER and HUNTER concur.", "type": "majority", "author": "LEWIS, Judge." } ], "attorneys": [ "John E. Tate, Jr. for the plaintiff-appellants.", "Prince, Youngblood & Massagee, by Boyd B. Massagee, Jr., for the defendant-appellees." ], "corrections": "", "head_matter": "EDWIN E. FICKLEY, DONALD F. SMITH, and CORAL R. SMITH, Plaintiffs v. GREYSTONE ENTERPRISES, INC., DAVID OSTEEN and CONNIE OSTEEN, Defendants\nNo. COA99-1211\n(Filed 3 October 2000)\nCollateral Estoppel and Res Judicata\u2014 res judicata \u2014 claim preclusion \u2014 compulsory counterclaims \u2014 opportunity to assert in appeal from magistrate\u2019s judgment\nThe trial court did not err by granting defendants\u2019 renewed motions for directed verdict on the retaliatory eviction and unfair trade practices claims in a second action based on res judicata after a summary ejectment proceeding, because: (1) plaintiffs should have asserted their rights in the summary ejectment proceeding by way of a compulsory counterclaim since the determinative question in both actions is whether plaintiffs breached their respective lease agreements making defendants\u2019 termination of the lease agreements valid; and (2) even though plaintiffs could not have asserted this action as a compulsory counterclaim to the summary ejectment proceeding while it was before the magistrate since plaintiffs seek damages in excess of the $3,000 jurisdictional amount in small claims actions under N.C.G.S. \u00a7 7A-210(1), plaintiffs had the opportunity to file retaliatory eviction as a counterclaim under N.C.G.S. \u00a7 1A-1, Rule 13 in an appeal from the magistrate\u2019s judgment. N.C.G.S. \u00a7 7A-219.\nAppeal by plaintiffs from judgment entered 15 March 1999 by Judge Robert R Johnston in Henderson County Superior Court. Heard in the Court of Appeals 23 August 2000.\nJohn E. Tate, Jr. for the plaintiff-appellants.\nPrince, Youngblood & Massagee, by Boyd B. Massagee, Jr., for the defendant-appellees." }, "file_name": "0258-01", "first_page_order": 290, "last_page_order": 294 }