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  "name": "MICHAEL HARRISON GREGORY and wife, VIVIAN GREGORY, Plaintiffs v. LEON REECE PENLAND, SR., Administrator of the Estate of LEON REECE PENLAND, JR., Defendant; JILL ANN WARD and husband, WILLIAM BRYAN WARD, Plaintiffs v. LEON REECE PENLAND, SR., Administrator of the Estate of LEON REECE PENLAND, JR., Defendant; SHIRLEY CHRISTY SNAPP and husband, JOSEPH LEE SNAPP, Plaintiffs v. LEON REECE PENLAND, SR., Administrator of the Estate of LEON REECE PENLAND, JR., Defendant",
  "name_abbreviation": "Gregory v. Penland",
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    "judges": [
      "Judges McGEE and CALABRIA concur."
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    "parties": [
      "MICHAEL HARRISON GREGORY and wife, VIVIAN GREGORY, Plaintiffs v. LEON REECE PENLAND, SR., Administrator of the Estate of LEON REECE PENLAND, JR., Defendant JILL ANN WARD and husband, WILLIAM BRYAN WARD, Plaintiffs v. LEON REECE PENLAND, SR., Administrator of the Estate of LEON REECE PENLAND, JR., Defendant SHIRLEY CHRISTY SNAPP and husband, JOSEPH LEE SNAPP, Plaintiffs v. LEON REECE PENLAND, SR., Administrator of the Estate of LEON REECE PENLAND, JR., Defendant"
    ],
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      {
        "text": "GEER, Judge.\nDefendant, the Administratrix of the Estate of Leon Reece Penland, Jr., appeals from an order of the trial court denying her motion for summary judgment and granting summary judgment to plaintiffs Vivian and Michael Harrison Gregory, Jill Ann and William Bryan Ward, and Shirley and Joseph Snapp with respect to defendant\u2019s affirmative defenses of res judicata and collateral estoppel. As the issues presented in these separate appeals involve common questions of law, we have consolidated the appeals for purposes of decision.\nDefendant contends that a finding of the North Carolina Industrial Commission, in an action brought under the State Tort Claims Act, that Leon Reece Penland, Jr. (\u201cSPC Penland\u201d) was not grossly negligent precludes recovery in this case under N.C. Gen. Stat. \u00a7 166A-14 (2005). Because, however, the Industrial Commission proceeding and this action do not involve an identity of claims or parties, the doctrine of res judicata is inapplicable. Further, the Commission had no jurisdiction to make any finding regarding SPC Penland, and, therefore, the gross negligence finding cannot be a basis for collateral estoppel. Accordingly, we hold the trial court properly granted summary judgment on defendant\u2019s affirmative defenses.\nFacts\nThe facts of this case are largely undisputed. On 14 September 1999, following Hurricane Floyd, North Carolina Governor James B. Hunt, Jr. issued a Proclamation of a State of Disaster for the North Carolina coastline under the North Carolina Emergency Management Act, N.C. Gen. Stat. \u00a7\u00a7 166A-1 through -53 (2005). As part of the' Emergency Operations Plan, the North Carolina National Guard, including SPC Penland, was called to active duty in the area of Oak Island, North Carolina. The National Guard and volunteers, including plaintiffs Jill Ward, Michael Gregory, and Shirley Snapp, performed beach patrols in which they attempted to keep people off of the beaches.\nLate in the evening on 22 September 1999, SPC Penland was waiting at a local fire department for another National Guard member. While there, SPC Penland met Ms. Ward, Mr. Gregory, and Ms. Snapp, who told SPC Penland that they were bored and were interested in riding in a Humvee. Although he had never previously driven a Humvee on a beach, SPC Penland offered to take the group in a Humvee on a beach patrol.\nSPC Penland drove east along the beach until the end of the island, turned around, \u201cgunned the engine,\u201d and \u201cdid a little fish-tail\u201d before straightening back out. Although Mr. Gregory advised SPC Penland to follow his outbound tracks and stay on the hard-packed sand if he wished to increase the speed, SPC Penland drove toward the softer sand by the dunes and \u201cacceleratfed] to significantly higher speeds than he had originally driven.\u201d As the Humvee bounced over the dunes, \u201cthe vehicle became airborne,\u201d then \u201clanded and . . . vaulted again.\u201d\nWhen it landed for the second time, the Humvee flipped over. All three passengers were injured, and SPC Penland was thrown from the vehicle and killed. No one had seen the speedometer, but Ms. Ward and Ms. Snapp believed the vehicle had been going \u201cextremely fast,\u201d which Ms. Ward estimated to be about 50 or 55 miles per 'hour. Mr. Gregory estimated that the Humvee had been going between 40 and 50 miles per hour.\nPlaintiffs ultimately filed a complaint against defendant in Brunswick County Superior Court alleging gross negligence by SPC Penland. Based on the same facts, plaintiffs also brought an action in the Industrial Commission against the North Carolina National Guard under the State Tort Claims Act, N.C. Gen. Stat. \u00a7\u00a7 143-291 through -300.1A (2005). Prior to the adjudication of plaintiffs\u2019 claims in superior court, Deputy Commissioner Morgan S. Chapman denied plaintiffs\u2019 claims in the Industrial Commission. Plaintiffs appealed and, on 2 December 2003, the Full Commission likewise entered an opinion and award in favor of the State.\nThe Commission relied upon N.C. Gen. Stat. \u00a7 166A-14(a), which provides:\n(a) All functions hereunder and all other activities relating to emergency management are hereby declared to be governmental functions. Neither the State nor any political subdivision thereof, nor, except in cases of willful misconduct, gross negligence or bad faith, any emergency management worker complying with or reasonably attempting to comply with this Article or any order, rule or regulation promulgated pursuant to the provisions of this Article or pursuant to any ordinance relating to any emergency management measures enacted by any political subdivision of the State, shall be liable for the death of or injury to persons, or for damage to property as a result of any such activity.\nApplying this statute, the Commission found that SPC Penland \u201cwas an emergency management worker acting within the course of his employment\u201d on the date of the accident and that he had \u201cbreached his duty of care\u201d toward plaintiffs. The Commission concluded, however, that plaintiffs were not entitled to recover under the State Tort Claims Act because the Emergency Management Act did not permit recovery against the State for an emergency management worker\u2019s actions \u201ccommitted during emergency management operations.\u201d The Commission further found that SPC Penland\u2019s \u201cactions did not rise to the level required in order to constitute gross negligence,\u201d as required for individual liability under the Emergency Management Act. Plaintiffs ultimately chose not to appeal the Full Commission\u2019s decision.\nSubsequently, defendant moved for summary judgment in superior court, contending that the Commission\u2019s finding that SPC Penland was not grossly negligent precluded plaintiffs\u2019 action based on res judicata and collateral estoppel. The court disagreed and instead entered summary judgment for plaintiffs on defendant\u2019s defenses of res judicata and collateral estoppel. Defendant timely appealed to this Court.\nDiscussion\nAs an initial matter, we must address whether this Court has jurisdiction to hear defendant\u2019s appeal since it involves an interlocutory order. An order is interlocutory if \u201cit is made during the pendency of an action and does not dispose of the case but requires further action by the trial court in order to finally determine the entire controversy.\u201d Howerton v. Grace Hosp., Inc., 124 N.C. App. 199, 201, 476 S.E.2d 440, 442 (1996). There is generally no right to appeal an interlocutory order. Id.\nAn interlocutory order is subject to immediate appeal only if (1) the order is final as to some but not all of the claims or parties, and the trial court certifies the case for appeal pursuant to Rule 54(b) of the Rules of Civil Procedure, or (2) the trial court\u2019s decision deprives the appellant of a substantial right that will be lost absent immediate review. Id. Because the trial court did not include a Rule 54(b) certification in its order, we have jurisdiction over defendant\u2019s appeal only if the trial court\u2019s order deprived defendant of a substantial right.\n\u201c \u2018The right to avoid one trial on . . . disputed issues is not normally a substantial right that would allow an interlocutory appeal, [but] the right to avoid the possibility of two trials on the same issues can be such a substantial right.\u2019 \u201d Green v. Duke Power Co., 305 N.C. 603, 606, 290 S.E.2d 593, 595 (1982) (quoting Survey of Developments in N.C. Law, 1978, 57 N.C. L. Rev. 827, 907-08 (1979)). In such situations, \u201c[a] substantial right is affected when \u2018(1) the same factual issues would be present in both trials and (2) the possibility of inconsistent verdicts on those issues exists.\u2019 \u201d In re Estate of Redding v. Welborn, 170 N.C. App. 324, 328, 612 S.E.2d 664, 668 (2005) (quoting N.C. Dep\u2019t of Transp. v. Page, 119 N.C. App. 730, 735-36, 460 S.E.2d 332, 335 (1995)).\nBecause the issues raised by defendant on appeal, if resolved in her favor, meet these criteria, we hold that defendant has sufficiently demonstrated the existence of a substantial right that would be lost if we waited to review these issues until after a final judgment. See Bockweg v. Anderson, 333 N.C. 486, 491, 428 S.E.2d 157, 161 (1993) (noting \u201cthe denial of a motion for summary judgment based on the defense of res judicata may affect a substantial right, making the order immediately appealable\u201d because defendant may \u201ctwice have to defend against the same claim by the same plaintiff [and participate in] ... a second trial in frustration of the underlying principles of the doctrine of res judicata\u201d). Accordingly, we have jurisdiction to address defendant\u2019s argument that plaintiffs\u2019 claims are barred by the doctrines of res judicata and collateral estoppel.\nI\nOur Supreme Court recently explained that \u201c[u]nder the doctrine of res judicata or \u2018claim preclusion,\u2019 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.\u201d Whitacre P\u2019ship v. Biosignia, Inc., 358 N.C. 1, 15, 591 S.E.2d 870, 880 (2004). For defendants to establish that a plaintiff\u2019s claim is barred by res judicata, they \u201cmust show (1) a final judgment on the merits in an earlier suit, (2) an identity of the cause of action in both the earlier and the later suit, and (3) an identity of parties or their privies in the two suits.\u201d Erler v. Aon Risks Servs., Inc. of the Carolinas, 141 N.C. App. 312, 316, 540 S.E.2d 65, 68 (2000), disc. review denied, 548 S.E.2d 738 (2001). There is no dispute that the Commission\u2019s opinion and award constituted a final judgment entitled to res judicata effect. See Bryant v. Weyerhaeuser Co., 130 N.C. App. 135, 138, 502 S.E.2d 58, 61 (\u201cThe doctrine of res judicata precludes relitigation of final orders of the Full Commissions . . . .\u201d), disc. review denied, 349 N.C. 228, 515 S.E.2d 700 (1998). We hold, however, that defendant has failed to meet the second and third requirements for res judicata.\nIn the Industrial Commission, plaintiffs brought a claim against the State under the State Tort Claims Act, while the action currently on appeal is a common-law claim against an individual. Our Supreme Court has previously held that a claim against the State in the Industrial Commission \u201cdid not constitute another action pending between the same parties for the same cause\u201d as an action filed in superior court against a state employee. Wirth v. Bracey, 258 N.C. 505, 507, 128 S.E.2d 810, 812 (1963). As a result, Wirth establishes that plaintiffs\u2019 cause of action in the Industrial Commission is not the same as the cause of action in superior court.\nThis view is confirmed by Meyer v. Walls, 347 N.C. 97, 108, 489 S.E.2d 880, 886 (1997):\nFurthermore, the fact that the Tort Claims Act provides for subject matter jurisdiction in the Industrial Commission over a negligence claim against the State does not preclude a claim against defendants in Superior Court. A plaintiff may maintain both a suit against a state agency in the Industrial Commission under the Tort Claims Act and a suit against the negligent agent or employee in the General Court of Justice for common-law negligence.\nIf, under Meyer, a plaintiff may properly bring both a claim in the Industrial Commission and a claim in superior court, then the causes of action cannot be identical. The Commission\u2019s decision thus does not meet the second requirement of res judicata.\nWith respect to the third element of res judicata, since the parties were not identical, defendant must establish that SPC Penland was in privity with the North Carolina National Guard. \u201c \u2018[Pjrivity\u2019 for purposes of res judicata ... denotes a mutual or successive relationship to the same rights of property.\u201d State ex rel. Tucker v. Frinzi, 344 N.C. 411, 417, 474 S.E.2d 127, 130 (1996) (internal quotation marks omitted). \u201c \u2018Privity is not established, however, from the mere fact that persons may happen to be interested in the same question or in proving or disproving the same state of facts, or because the question litigated was one which might affect such other person\u2019s liability as a judicial precedent in a subsequent action.\u2019 \u201d Id. (quoting 47 Am. Jur. 2d Judgments \u00a7 663 (1995)).\nTypically, \u201c[i]n order for a person to be privy to an action, he must have acquired an interest in the subject matter of the action either by succession, inheritance, or purchase from a party subsequent to the action.\u201d Smith v. Smith, 334 N.C. 81, 85, 431 S.E.2d 196, 198 (1993). That basis for privity does not exist in this case. Instead, the only relationship relied upon by defendant is the fact that SPC Penland was the employee of the National Guard alleged to be negligent. It is, however, well established that \u201c[t]he relationship of principal and agent or master and servant does not create [the] privity\u201d required for res judicata. Kayler v. Gallimore, 269 N.C. 405, 408, 152 S.E.2d 518, 521 (1967). Indeed, in Kaminsky v. Sebile, 140 N.C. App. 71, 81, 535 S.E.2d 109, 115-16 (2000), this Court held that no privity existed for res judicata purposes between a member of the military and the United States Army.\nMoreover, our Supreme Court has held:\nOne is \u2018privy,\u2019 when the term is applied to a judgment or decree, whose interest has been legally represented at the trial. A party will not be concluded by a former judgment unless he could have used it as a protection, or as a foundation of a claim, had the judgment been the other way.\nMasters v. Dunstan, 256 N.C. 520, 526, 124 S.E.2d 574, 578 (1962). See also Kayler, 269 N.C. at 407, 152 S.E.2d at 520 (\u201c[A] party to the subsequent action, who was not a party to the former action and, therefore, is not estopped by the judgment therein, cannot assert that judgment as an estoppel against his opponent, even though the opponent was a party to the action in which the judgment was rendered.\u201d). Here, if the judgment had been in plaintiffs\u2019 favor in the Industrial Commission, defendant would not have been bound by that judgment. Accordingly, defendant is not in privity with the State such that plaintiffs\u2019 claims against defendant are barred by res judicata.\nDefendant cites Brotherton v. Paramore, 5 N.C. App. 657, 169 S.E.2d 36 (1969), and Mason v. N.C. State Highway Comm\u2019n, 7 N.C. App. 644, 173 S.E.2d 515 (1970), as support for application of res judi-cata. We find neither decision controlling. Brotherton, in which the plaintiff had recovered damages against the State in the Industrial Commission and sought to recover additional damages from the state employee, applied the rule set out in Bowen v. Iowa Nat\u2019l Mut. Ins. Co., 270 N.C. 486, 496, 155 S.E.2d 238, 246 (1967): \u201cAlthough separate judgments may be rendered against the agent and his principal arising out of the same cause of action, there can be but one satisfaction of the judgments arising on the same cause of action . . . .\u201d See Brotherton, 5 N.C. App. at 658, 169 S.E.2d at 37 (\u201cWe think the rationale of the opinion in Bowen ... is clearly applicable here.\u201d). The issue of one satisfaction of judgments is not present in this case. In Mason, both the prior action and the subsequent action (found barred by res judicata) were filed in the Industrial Commission against the State under the State Tort Claims Act, with the only distinction being the identity of the employees alleged to have been negligent. 7 N.C. App. at 646, 173 S.E.2d at 516. In this case, plaintiffs have not attempted to file a second action in the Industrial Commission alleging negligence by a state employee other than SPC Penland, and we fail to see how Mason supports defendant\u2019s position.\nRes judicata does not, therefore, bar plaintiffs\u2019 claims. We now turn to defendant\u2019s arguments regarding collateral estoppel.\nII\nThe Industrial Commission, in addition to concluding that the State could not be held liable under N.C. Gen. Stat. \u00a7 166A-14(a), found that \u201c[although [SPC Penland] breached his duty of care to his three passengers by driving too fast, his actions did not rise to the level required in order to constitute gross negligence.\u201d A state employee may not be held liable under N.C. Gen. Stat. \u00a7 166A-14(a) unless grossly negligent, engaging in willful misconduct, or acting in bad faith. Defendant contends that collateral estoppel precludes plaintiffs from relitigating whether SPC Penland\u2019s actions constituted gross negligence.\nIn Whitacre Partnership, the Supreme Court explained that \u201c[w]hereas res judicata estops a party or its privy from bringing a subsequent action based on the \u2018same claim\u2019 as that litigated in an earlier action, collateral estoppel precludes the subsequent adjudication of a previously determined issue, even if the subsequent action is based on an entirely different claim.\u201d 358 N.C. at 15, 591 S.E.2d at 880. For defendant \u201cto assert a plea of collateral estoppel under North Carolina law as traditionally applied, [defendant] would need to show that [1] the earlier suit resulted in a final judgment on the merits, [2] that the issue in question was identical to an issue actually litigated and necessary to the judgment, and [3] that both [defendant] and [plaintiffs] were either parties to the earlier suit or were in privity with parties.\u201d Thomas M. McInnis & Assocs., Inc. v. Hall, 318 N.C. 421, 429, 349 S.E.2d 552, 557 (1986). The Court in Hall, however, went on to abandon the third requirement, commonly called \u201cmutuality,\u201d when collateral estoppel is being used \u201cagainst a party who has previously had a full and fair opportunity to litigate a matter and now seeks to reopen the identical issues with a new adversary.\u201d Id. at 434, 349 S.E.2d at 560; see also Whitacre P\u2019ship, 358 N.C. at 15, 591 S.E.2d at 880 (\u201cNorth Carolina recognizes both [the doctrines of res judicata and collateral estoppel] as traditionally formulated, although we have followed the modern trend in abandoning the strict \u2018mutuality of estoppel\u2019 requirement for defensive uses of collateral estoppel.\u201d (quoting Hall, 318 N.C. at 434, 349 S.E.2d at 560)).\nWe have already concluded that the decision of the Full Commission constituted a final judgment on the merits. Moreover, because defendant is attempting to defensively invoke collateral estop-pel to preclude plaintiffs from relitigating the issue of SPC Penland\u2019s gross negligence, the mutuality requirement does not apply. Finally, as the parties do not dispute, and we see no reason to doubt, that the issue of SPC Penland\u2019s gross negligence before the Industrial Commission is \u201cidentical to\u201d the issue of SPC Penland\u2019s gross negligence at common law, all that remains for us to determine is whether this issue was \u201cactually litigated and necessary to the [Commission\u2019s] judgment.\u201d Hall, 318 N.C. at 429, 349 S.E.2d at 557.\nOn this question, this Court has held: \u201c[W]here the court adjudicating the prior proceeding lacked jurisdiction over an issue, the [actually litigated and necessary] element of collateral estoppel has not been met.\u201d Meehan v. Cable, 127 N.C. App. 336, 340, 489 S.E.2d 440, 443 (1997) (issues raised before the clerk of court were not \u201cactually litigated\u201d or \u201cnecessary to the judgment\u201d because the clerk lacked jurisdiction to hear them). In Alt v. John Umstead Hosp., 125 N.C. App. 193, 479 S.E.2d 800, disc. review denied, 345 N.C. 639, 483 S.E.2d 702 (1997), this Court applied this principle to circumstances analogous to those here. The plaintiff in Alt had filed a complaint in superior court alleging malicious prosecution, false imprisonment, and the deprivation of his constitutional and statutory rights against the defendants, a state psychiatric hospital and various individuals. Id. at 194, 479 S.E.2d at 801. The plaintiff\u2019s claims were dismissed following a motion for summary judgment by the defendant, and the trial court\u2019s ruling was upheld on appeal. Id.\nThe plaintiff subsequently filed a complaint in the Industrial Commission under the State Tort Claims Act, alleging he had been injured by the State\u2019s negligence. Id. The defendant contended that the dismissal of plaintiff\u2019s claims in superior court precluded plaintiff\u2019s claims in the Industrial Commission. Id. at 198, 479 S.E.2d at 803. In holding that the \u201cactually litigated\u201d requirement of collateral estoppel was not satisfied, this Court explained:\nPursuant to the State Tort Claims Act, exclusive original jurisdiction of claims against the State or its institutions and agencies, in which injury is alleged to have occurred as a result of the negligence of an employee of the State, is vested in the North Carolina Industrial Commission. Thus, plaintiff\u2019s negligence claim against defendant hospital could not have been adjudicated in the prior proceeding because the Superior Court had no jurisdiction over a tort claim against the State.\nId., 479 S.E.2d at 804 (emphasis added) (internal citation omitted). As a result, this Court upheld the Commission\u2019s rejection of the collateral estoppel defense.\nLikewise, in this case, the Industrial Commission lacked jurisdiction to address SPC Penland\u2019s gross negligence. \u201c[T]he Tort Claims Act does not confer jurisdiction in the Industrial Commission over a claim against an employee of a state agency.\u201d Meyer, 347 N.C. at 105, 489 S.E.2d at 884. Thus, the Commission would have jurisdiction to address the issue of gross negligence only if that issue fell within its jurisdiction with respect to claims against the State.\nThe Emergency Management Act, however, provides that \u201c[n] either the State nor any political subdivision thereof, nor, except in cases of willful misconduct, gross negligence or bad faith, any emergency management worker complying with or reasonably attempting to comply with this Article ... shall be liable for the death of or injury to persons . . . .\u201d N.C. Gen. Stat. \u00a7 166A-14(a). We agree with the Full Commission that, under N.C. Gen. Stat. \u00a7 166A-14(a), the State has maintained its sovereign immunity with respect to emergency management operations. The Commission, therefore, had no jurisdiction to hear plaintiffs\u2019 claims filed in the Industrial Commission and could not properly make any findings on the parties\u2019 factual allegations. See Vereen v. N.C. Dep\u2019t of Corr., 168 N.C. App. 588, 591, 608 S.E.2d 412. 414 (2005) (\u201cHaving dismissed plaintiff\u2019s tort claim, the Commission had no jurisdiction to ex mero motu enter an order with respect to any workers\u2019 compensation claim which plaintiff may have . . . .\u201d).\nAccordingly, under Alt, because of this lack of jurisdiction, plaintiffs\u2019 claim of gross negligence under the Emergency Management Act was not \u201cactually litigated\u201d before the Commission or \u201cnecessary\u201d to its judgment, and, therefore, plaintiffs are not collaterally estopped by the Commission\u2019s finding on that issue. See also Templeton v. Apex Homes, Inc., 164 N.C. App. 373, 378, 595 S.E.2d 769, 772 (2004) (concluding that, because plaintiffs won on one of their breach of contract claims and were awarded the only remedy plaintiffs sought, trial court\u2019s ancillary determinations that plaintiffs lost on two other breach of contract claims were not \u201cnecessary\u201d to the judgment). We hold, therefore, that the trial court properly concluded that plaintiffs\u2019 claims were not barred by collateral estoppel.\nAffirmed.\nJudges McGEE and CALABRIA concur.\n. Originally, plaintiffs sued Leon Reece Penland, Sr. as the administrator of SPC Penland\u2019s estate. Subsequently, Merinda S. Woody was substituted as the administratrix.\n. Res judicata also bars a party from filing a subsequent action for any claims that could have been asserted in the prior action. Rodgers Builders, Inc. v. McQueen, 76 N.C. App. 16, 23, 331 S.E.2d 726, 730 (1985), disc. review denied, 315 N.C. 590, 341 S.E.2d 29 (1986). Plaintiffs, in this case, could not have asserted their claims against defendant in their Industrial Commission proceeding: \u201c[T]he Tort Claims Act does not confer jurisdiction in the Industrial Commission over a claim against an employee of a state agency.\u201d Meyer, 347 N.C. at 105, 489 S.E.2d at 884.",
        "type": "majority",
        "author": "GEER, Judge."
      }
    ],
    "attorneys": [
      "Baker & Slaughter P.A., by H. Mitchell Baker, III and M. Troy Slaughter, for plaintiffs-appellees.",
      "Johnson, Lambeth & Brown, by Maynard M. Brown and Anna J. Averitt, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "MICHAEL HARRISON GREGORY and wife, VIVIAN GREGORY, Plaintiffs v. LEON REECE PENLAND, SR., Administrator of the Estate of LEON REECE PENLAND, JR., Defendant JILL ANN WARD and husband, WILLIAM BRYAN WARD, Plaintiffs v. LEON REECE PENLAND, SR., Administrator of the Estate of LEON REECE PENLAND, JR., Defendant SHIRLEY CHRISTY SNAPP and husband, JOSEPH LEE SNAPP, Plaintiffs v. LEON REECE PENLAND, SR., Administrator of the Estate of LEON REECE PENLAND, JR., Defendant\nNo. COA05-885\nNo. COA05-952\nNo. COA05-953\n(Filed 19 September 2006)\n1. Appeal and Error\u2014 appealability \u2014 denial of summary judgment \u2014 res judicata and collateral estoppel \u2014 substantial right\nAlthough an appeal from the denial of a motion for summary judgment is generally an appeal from an interlocutory order, the trial court had jurisdiction to hear defendant\u2019s argument that plaintiffs\u2019 claims are barred by the doctrines of res judicata and collateral estoppel, because: (1) a substantial right is affected when the same factual issues would be present in both trials and the possibility of inconsistent verdicts on those issues exists; and (3) the issues raised by defendant on appeal, if resolved in her favor, meet these criteria.\n2. Collateral Estoppel and Res Judicata\u2014 res judicata\u2014 Industrial Commission and superior court actions \u2014 privity\nThe trial court did not err by denying defendant\u2019s motion for summary judgment and by granting summary judgment to plaintiffs with respect to defendant\u2019s affirmative defense of res judi-cata even though plaintiffs brought a claim against the State under the State Tort Claims Act in the Industrial Commission while the action currently on appeal is a common law claim against an individual, because: (1) our Supreme Court has previously held that a claim against the State in the Industrial Commission does not constitute another action pending between the same parties for the same cause as an action filed in superior court; (2) the relationship of principal and agent or master and servant does not create the privity required for res judi-cata; and (3) the issue of one satisfaction of judgments is not present in this case.\n3. Collateral Estoppel and Res Judicata\u2014 collateral estop-pel \u2014 gross negligence \u2014 not actually litigated\nThe trial court did not err by denying defendant\u2019s motion for summary judgment and by granting summary judgment to plaintiffs with respect to defendant\u2019s affirmative defense of collateral estoppel even though defendant contends a finding of the North Carolina Industrial Commission in an action brought under the State Tort Claims Act that decedent was not grossly negligent precludes recovery in this case under N.C.G.S.. \u00a7 166A-14, because: (1) the Industrial Commission lacked jurisdiction to address decedent\u2019s gross negligence since the Tort Claims Act does not confer jurisdiction in the Industrial Commission over a claim against an employee of a state agency; (2) under N.C.G.S. \u00a7 166A-14, the State has maintained its sovereign immunity with respect to emergency management operations; and (3) plaintiffs\u2019 claim of gross negligence under the Emergency Management Act was not actually litigated before the Commission or necessary to its judgment.\nAppeal by defendant from judgments entered 7 April 2005 by Judge William C. Gore in Brunswick County Superior Court. Heard in the Court of Appeals 21 February 2006.\nBaker & Slaughter P.A., by H. Mitchell Baker, III and M. Troy Slaughter, for plaintiffs-appellees.\nJohnson, Lambeth & Brown, by Maynard M. Brown and Anna J. Averitt, for defendant-appellant."
  },
  "file_name": "0505-01",
  "first_page_order": 537,
  "last_page_order": 548
}