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  "name": "PAULA MAY TOWNSEND, Plaintiff v. MARK WILLIAM SHOOK, individually and in his official capacity as Sheriff of Watauga County; and WESTERN SURETY COMPANY; Defendants",
  "name_abbreviation": "Townsend v. Shook",
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    "judges": [
      "Judges BRYANT and ERVIN concur."
    ],
    "parties": [
      "PAULA MAY TOWNSEND, Plaintiff v. MARK WILLIAM SHOOK, individually and in his official capacity as Sheriff of Watauga County; and WESTERN SURETY COMPANY; Defendants"
    ],
    "opinions": [
      {
        "text": "STEELMAN, Judge.\nThe prior action pending doctrine is not applicable where the parties, legal issues, and subject matter in this case are not substantially similar to those raised in Shook\u2019s lawsuit filed in 2007. Plaintiff was not required to file her wrongful termination claim as a compulsory counterclaim to Shook\u2019s action under Rule 13 of the Rules of Civil Procedure.\nI. Factual and Procedural Background\nOn 12 December 2006, Paula Townsend (plaintiff) filed an action in the United States District Court for the Western District of North Carolina against Mark Shook (Shook), individually and in his official capacity as Sheriff of Watuaga County; Watauga County; and Western Surety Company, the provider of Shook\u2019s surety bond pursuant to N.C. Gen. Stat. \u00a7 162-8 (collectively, defendants). Plaintiff asserted claims for wrongful termination under Title VII; violations of 42 U.S.C. \u00a7 1983 and N.C. Gen. Stat. \u00a7 143-422.2; intentional and negligent infliction of emotional distress; and negligent supervision and retention of Shook by Watauga County. Plaintiff contended that she was subjected to disparate treatment due to her gender and that she was terminated from her position as Chief Deputy Sheriff for Watauga County based upon her refusal to submit to Shook\u2019s sexual advances. Defendants filed an answer denying the material allegations of plaintiff\u2019s complaint. Shook, in his individual capacity, filed a counterclaim for defamation based upon alleged statements plaintiff made to others that he \u201cforced himself on her[.]\u201d All parties filed cross-motions for summary judgment.\nOn 18 October 2007, the United States District Court granted summary judgment in favor of defendants on all of plaintiffs claims with the exception of her claim for intentional infliction of emotional distress. The court dismissed this claim and Shook\u2019s. counterclaim for defamation without prejudice to re-file in state court. Plaintiff appealed that order to the United States Fourth Circuit Court of Appeals.\nWhile plaintiff\u2019s appeal was pending, Shook re-filed his claim for defamation in the Superior Court of Catawba County (07 CVS 4087) on 5 December 2007. The parties filed a joint motion to place Shook\u2019s action on inactive status while plaintiff\u2019s appeal was pending, and a consent order was entered placing the action on inactive status. On 24 April 2009, the Fourth Circuit issued an unpublished opinion, which vacated the entry of summary judgment in favor of defendants with respect to plaintiff\u2019s wrongful termination claim pursuant to N.C. Gen. Stat. \u00a7 143-422.2, remanded the case to the District Court for further proceedings, and affirmed the remaining portions of the District Court\u2019s order. On 24 June 2009, the United States District Court entered an order that declined to exercise supplemental jurisdiction over plaintiff\u2019s wrongful termination claim and dismissed it without prejudice to re-file in an appropriate state court.\nOn 14 July 2009, plaintiff re-filed her wrongful termination claim pursuant to N.C. Gen. Stat. \u00a7 143-422.2 in Watauga County against Shook, both in his individual and official capacity, and against Western Surety Company. On 20 September and 13 October 2009, defendants filed motions to dismiss based on several grounds, including that her claim was barred by the prior action pending in Catawba County; that her claim was a compulsory counterclaim in Shook\u2019s defamation lawsuit; that Shook, individually, was not the employer of plaintiff; and that plaintiff failed to assert a cause of action against Western Surety as required by N.C. Gen. Stat. \u00a7 58-76-5. The trial court denied all of defendants\u2019 motions to dismiss.\nDefendants appeal.\nII. Interlocutory Nature of Appeal\nAt the outset, we note that this appeal is interlocutory. See Reid v. Cole, 187 N.C. App. 261, 263, 652 S.E.2d 718, 719 (2007) (\u201cTypically, the denial of a motion to dismiss is not immediately appealable to this Court because it is interlocutory in nature.\u201d (citation omitted)). However, this Court has held that the refusal to abate an action on grounds of a prior action pending is immediately appealable. Gillikin v. Pierce, 98 N.C. App. 484, 486, 391 S.E.2d 198, 199, disc. review denied, 327 N.C. 427, 395 S.E.2d 677 (1990); Atkins v. Nash, 61 N.C. App. 488, 489, 300 S.E.2d 880, 881 (1983). The denial of a motion to dismiss pursuant to Rule 13(a) relating to compulsory counterclaims is also immediately appealable. Hendrix v. Advanced Metal Corp., 195 N.C. App. 436, 438, 672 S.E.2d 745, 747 (2009).\nWe only address the issues that are properly before us.\nIII. Prior Action Pending Doctrine\nIn their first argument, defendants contend that the trial court erred by denying defendants\u2019 motions to dismiss on the basis that there was a prior action pending between the parties. We disagree.\n\u201cUnder the law of this state, where a prior action is pending between the same parties for the same subject matter in a court within the state having like jurisdiction, the prior action serves to abate the subsequent action.\u201d Eways v. Governor\u2019s Island, 326 N.C. 552, 558, 391 S.E.2d 182, 185 (1990) (citations omitted). In order to determine \u201cwhether or not the parties and causes are the same for the purpose of abatement by reason of the pendency of the prior action is this: Do the two actions present a substantial identity as to parties, subject matter, issues involved, and relief demanded?\u201d Cameron v. Cameron, 235 N.C. 82, 85, 68 S.E.2d 796, 798 (1952) (citations omitted).\nIn the instant case, the parties, legal issues, and subject matter in this case are not substantially similar to those raised in Shook\u2019s prior lawsuit filed in Catawba County. In Shook\u2019s lawsuit, the parties are Shook and plaintiff, in their individual capacities as private citizens. Shook alleged plaintiff defamed him by stating to Ms. Frieda Regan that Shook \u201cforced himself on her[.]\u201d Shook alternatively pled claims for slander per se and slander per quod. The issue presented in the lawsuit is whether Shook can produce sufficient evidence to establish slander. In order to prove a claim for slander per se, Shook will have to produce evidence that the statement was false, communicated to another person, and involved an accusation of crimes or offenses involving moral turpitude. See Donovan v. Fiumara, 114 N.C. App. 524, 527-28, 442 S.E.2d 572, 574-75 (1994). In order to prove a claim for slander per quod, Shook will have to produce evidence that the statement was false, communicated to another person and made with malice, and that he suffered actual pecuniary loss as a result of the statement. Id. at 527, 442 S.E.2d at 574-75. Shook seeks to recover monetary damages in the form of compensatory, special, and punitive damages.\nIn plaintiffs lawsuit in Watauga County, the parties are plaintiff; Shook, individually and in his official capacity as Sheriff of Watauga County; and Western Surety Company. This action arises out of an employer-employee relationship. The issue presented is whether plaintiff was terminated from her employment in the Watauga County Sheriffs Office in violation of N.C. Gen. Stat. \u00a7 143-422.2. Evidence regarding her job performance and reasons for termination will be at issue. Plaintiff seeks monetary damages in the form of compensatory and punitive damages. Contrary to defendants\u2019 contentions, the dispositive issue in this lawsuit is not whether Shook \u201cforced himself\u2019 on plaintiff, but, rather, whether plaintiff was discriminated against and wrongfully terminated from her employment.\nBecause the parties, legal issues, and subject matter in this case are not substantially similar to those raised in Shook\u2019s prior lawsuit filed in Catawba County, the prior action pending doctrine is not applicable to the instant case.\nThis argument is without merit.\nIV. Compulsory Counterclaim\nIn their second argument, defendants contend that the trial court erred by denying their motions to dismiss on the basis that plaintiff\u2019s wrongful termination claim under N.C. Gen. Stat. \u00a7 143-422.2 is a compulsory counterclaim to Shook\u2019s lawsuit in Catawba County. We disagree.\nRule 13(a) of the Rules of Civil Procedure provides, in part:\nA pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it 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. . . .\nN.C. Gen. Stat. \u00a7 1A-1, Rule 13(a) (2009). Our Supreme Court has stated that in order to determine whether two or more claims arose out of the same transaction or occurrence for purposes of Rule 13(a), the court must examine the following factors: \u201c(1) whether the issues of fact and law raised by the claim and counterclaim are largely the same; (2) whether substantially the same evidence bears on both claims; and (3) whether any logical relationship exists between the two claims.\u201d Jonesboro United Methodist Church v. Mullins-Sherman Architects, L.L.P., 359 N.C. 593, 599-600, 614 S.E.2d 268, 272 (2005) (quotation and alterations omitted). \u201cThere is no simple test for determining whether a counterclaim is compulsory. Each proposed counterclaim must be examined individually regarding its relationship to the original claim.\u201d 1 G. Gray Wilson, North Carolina Civil Procedure, \u00a7 13-3, at 13-8 (3rd ed. 2007).\nBoth parties reiterate their arguments presented in the appellant\u2019s first issue on appeal. Shook specifically argues that there is a clear and logical relationship between the actions and contends that \u201c[a] determination that [he] did not sexually harass Townsend would present an insurmountable bar to her [N.C. Gen. Stat. \u00a7 143-422.2] claim and would almost completely determine and resolve in Shook\u2019s favor his defamation claim against Townsend asserted in the Prior Pending Action.\u201d Shook\u2019s argument is misplaced.\nShook\u2019s lawsuit for defamation is solely based on his allegation that plaintiff stated to Ms. Frieda Regan that Shook had \u201cforced himself on her[.]\u201d As articulated above, Shook would have to prove that this statement was false, was made with malice, and damaged his reputation. Even if a jury found that Shook did not \u201cforce\u201d himself on plaintiff, that inquiry would not be determinative of plaintiff\u2019s wrongful termination action.\nPlaintiff made numerous allegations of misconduct by Shook as the basis of her wrongful termination claim, including that Shook wrote a letter expressing his love for her; Shook began to assign plaintiff to work on assignments specifically with him; Shook expressed his desire to engage in a personal, intimate relationship with plaintiff at various times from 2002 until 2005; after continually rejecting these advances, Shook negatively altered her work conditions; Shook excluded plaintiff from important staff meetings; Shook made derogatory statements about her to other male sheriff deputies; decreased her responsibilities and authority; and ultimately terminated her employment. In order to prevail on this claim, plaintiff would have to present evidence of these acts.\nContrary to defendants\u2019 assertion, the wrongful termination lawsuit and the defamation lawsuit do not involve substantially the same issues of fact and law nor substantially the same evidence. See, e.g., Winston-Salem Joint Venture v. Cathy\u2019s Boutique, 72 N.C. App. 673, 675, 325 S.E.2d 286, 287 (1985) (holding that a claim for breach of a lease is not a compulsory claim in a lawsuit for libel where the only relationship existing between the fact, claims, and nature of the action was the landlord-tenant relationship).\nAlthough these two actions have certain common factual issues, this is not sufficient to require that plaintiffs wrongful termination action be designated a compulsory counterclaim in Shook\u2019s defamation action. Hailey v. Allgood Construction Co., 95 N.C. App. 630, 633, 383 S.E.2d 220, 222 (1989); see also Murillo v. Daly, 169 N.C. App. 223, 227, 609 S.E.2d 478, 481 (2005) (holding that a common origin alone is insufficient to characterize a claim as a compulsory counterclaim).\nThis argument is without merit.\nDefendants also filed a petition for writ of certiorari requesting that this Court determine an additional issue on appeal. Defendant concedes that no immediate right of appeal exists as to this issue, and, thus, we do not address it because of its interlocutory nature.\nAFFIRMED.\nJudges BRYANT and ERVIN concur.\n. It does not appear from the record that plaintiff re-filed her intentional infliction of emotional distress claim against defendants.",
        "type": "majority",
        "author": "STEELMAN, Judge."
      }
    ],
    "attorneys": [
      "Gray Newell, LLP, by Angela Newell Gray, for plaintiffappellee.",
      "Forman Rossabi Black, P.A., by Emily J. Meister and Gavin J. Reardon for defendant-appellant Mark Shook, in his individual capacity; and Womble Carlyle Sandridge & Rice, by James R. Morgan, Jr. and Bradley O. Wood, for defendant-appellants Mark Shook, in his official capacity as Sheriff of Watauga County, and Western Surety Company."
    ],
    "corrections": "",
    "head_matter": "PAULA MAY TOWNSEND, Plaintiff v. MARK WILLIAM SHOOK, individually and in his official capacity as Sheriff of Watauga County; and WESTERN SURETY COMPANY; Defendants\nNo. COA10-383\nFiled 15 March 2011)\n1. Appeal and Error\u2014 interlocutory orders and appeals \u2014 prior action pending \u2014 compulsory counterclaim \u2014 immediately appealable\nDefendants\u2019 appeal from the trial court\u2019s interlocutory order denying their motion to dismiss in a wrongful termination case was considered by the Court of Appeals. The refusal to abate an action on grounds of a prior action pending and the denial of a motion to dismiss pursuant to Rule 13(a) relating to compulsory counterclaims were immediately appealable.\n2. Employer and Employee\u2014 wrongful termination \u2014 prior action pending doctrine \u2014 not applicable\nThe trial court did not err in a wrongful termination case by denying defendants\u2019 motions to dismiss. The prior action pending doctrine was not applicable to this case because the parties, legal issues, and subject matter were not substantially similar to those raised in defendant\u2019s pending prior lawsuit.\n3. Employer and Employee\u2014 wrongful termination \u2014 no compulsory counterclaim\nThe trial court did not err in a wrongful termination case by denying defendants\u2019 motions to dismiss. Plaintiff\u2019s wrongful termination claim under N.C.G.S. \u00a7 143-422.2 was not a compulsory counterclaim to defendant Shook\u2019s pending lawsuit.\nAppeal by defendants from order entered 28 January 2010 by Judge Richard L. Doughton in Watauga County Superior Court. Heard in the Court of Appeals 26 October 2010.\nGray Newell, LLP, by Angela Newell Gray, for plaintiffappellee.\nForman Rossabi Black, P.A., by Emily J. Meister and Gavin J. Reardon for defendant-appellant Mark Shook, in his individual capacity; and Womble Carlyle Sandridge & Rice, by James R. Morgan, Jr. and Bradley O. Wood, for defendant-appellants Mark Shook, in his official capacity as Sheriff of Watauga County, and Western Surety Company."
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