{ "id": 8558870, "name": "SMOKY MOUNTAIN ENTERPRISES, INC. v. JESSE ROSE", "name_abbreviation": "Smoky Mountain Enterprises, Inc. v. Rose", "decision_date": "1973-05-09", "docket_number": "No. 80", "first_page": "373", "last_page": "379", "citations": [ { "type": "official", "cite": "283 N.C. 373" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "139 S.E. 2d 206", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "263 N.C. 194", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568604 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/nc/263/0194-01" ] }, { "cite": "151 S.E. 2d 553", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "268 N.C. 664", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564674 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/268/0664-01" ] }, { "cite": "26 S.E. 144", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "119 N.C. 460", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655342 ], "opinion_index": 0, "case_paths": [ "/nc/119/0460-01" ] }, { "cite": "101 S.E. 564", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "179 N.C. 167", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655334 ], "pin_cites": [ { "page": "169" } ], "opinion_index": 0, "case_paths": [ "/nc/179/0167-01" ] }, { "cite": "17 S.E. 2d 339", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "220 N.C. 318", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11302256 ], "opinion_index": 0, "case_paths": [ "/nc/220/0318-01" ] }, { "cite": "6 S.E. 2d 822", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "217 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8597345 ], "opinion_index": 0, "case_paths": [ "/nc/217/0001-01" ] }, { "cite": "85 S.E. 2d 909", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1955, "opinion_index": 0 }, { "cite": "241 N.C. 532", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8613474 ], "year": 1955, "opinion_index": 0, "case_paths": [ "/nc/241/0532-01" ] }, { "cite": "12 S.E. 2d 686", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1940, "opinion_index": 0 }, { "cite": "219 N.C. 7", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8620389 ], "year": 1940, "opinion_index": 0, "case_paths": [ "/nc/219/0007-01" ] }, { "cite": "97 S.E. 2d 492", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1957, "opinion_index": 0 }, { "cite": "246 N.C. 34", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623555 ], "year": 1957, "opinion_index": 0, "case_paths": [ "/nc/246/0034-01" ] }, { "cite": "79 S.E. 2d 167", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "238 N.C. 679", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8616307 ], "opinion_index": 0, "case_paths": [ "/nc/238/0679-01" ] }, { "cite": "2 S.E. 2d 570", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1939, "opinion_index": 0 }, { "cite": "215 N.C. 501", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630490 ], "year": 1939, "opinion_index": 0, "case_paths": [ "/nc/215/0501-01" ] }, { "cite": "17 S.E. 2d 614", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1941, "opinion_index": 0 }, { "cite": "220 N.C. 425", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11304085 ], "year": 1941, "opinion_index": 0, "case_paths": [ "/nc/220/0425-01" ] }, { "cite": "119 S.E. 2d 200", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "254 N.C. 421", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626586 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/nc/254/0421-01" ] } ], "analysis": { "cardinality": 609, "char_count": 12621, "ocr_confidence": 0.548, "pagerank": { "raw": 9.17738273695334e-08, "percentile": 0.5091107628282575 }, "sha256": "81c8bdcb88a018f26f4f2d8267de4d7243f65f0f9ec8197b7c8e24efd0bf8824", "simhash": "1:af6fa8eec47829e2", "word_count": 2122 }, "last_updated": "2023-07-14T22:42:12.699050+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "SMOKY MOUNTAIN ENTERPRISES, INC. v. JESSE ROSE" ], "opinions": [ { "text": "MOORE, Justice.\nDefendant contends that the court erred in denying defendant\u2019s motion to dismiss plaintiff\u2019s cause of action on the ground of res judicata.\nThere had been no jury trial in the prior action before Judge Martin. Hence, the plea was determinable on the facts disclosed, by the judgment roll in that case. No question was raised as to the authenticity of the judgment entered by Judge Martin. It is incorporated in the agreed case on appeal. Burbank did not obj\u00e9ct to the findings of fact made by Judge Martin and did not appeal from the judgment dismissing that action. See 1 Strong, N. C. Index 2d, Appeal and Error \u00a7 42, p. 185, and cases therein cited. Also, W. F. Burbank, the plaintiff in that case, testified in the present case as follows: \u201cOn June 26, 1969, I was President of Smoky Mountain Enterprises, Inc., a corporation in which I owned all the stock.\u201d With reference to the action heard by Judge Martin in Superior Court, Burbank further testified:\n' \u201cI brought an action in the superior court in my own name individually asking for the same relief I am asking for now. That action was based on this paper writing that I have introduced to this court. In the superior court action, I contended that that paper writing was a contract between Smoky Mountain Enterprises and Jesse Rose. I was President at the time the paper writing was signed. The corporation had a secretary but I don\u2019t remember who it was. I don\u2019t have a copy of the Corporate Charter here with me. I don\u2019t have anything at all from Smoky Mountain.\u201d\nJudge Martin\u2019s judgment, together with Burbank\u2019s testimony in this case, was sufficient to present defendant\u2019s plea of res judicata. Jones v. Mathis, 254 N.C. 421, 119 S.E. 2d 200 (1961); Current v. Webb, 220 N.C. 425, 17 S.E. 2d 614 (1941).\nOrdinarily the plea of res judicata may be sustained only when there is an identity of parties, of subject matter, and of issues. Leary v. Land Bank, 215 N.C. 501, 2 S.E. 2d 570 (1939).\n\u201c. . . Even so, there is a well established exception to this general rule. This Court, in the case of Light Co. v. Insurance Co., 238 N.C. 679, 79 S.E. 2d 167, speaking through Devin, C.J., said: \u2018The principle invoked is stated in Restatement of Judgments, sec. 84, as follows: \u201cA person who is not a party but who controls an action, individually or in cooperation with others, is bound by the adjudications of litigated matters as if he were a party if he has a proprietary interest or financial interest in the judgment or in the determination of a question of act or a question of law with reference to the same subject matter, or transactions; if the other party has notice of his participation, the other party is equally bound.\u201d \u2019 \u201d Thompson v. Lassiter, 246 N.C. 34, 97 S.E. 2d 492 (1957).\nIn the former action Burbank individually was plaintiff. In this action Smoky Mountain Enterprises, Inc., is plaintiff. Burbank is the president and owns all the stock of Smoky Mountain Enterprises, Inc. Notice to the president is notice to the corporation. Patterson v. Henrietta Mills, 219 N.C. 7, 12 S.E. 2d 686 (1940). Hence, Smoky Mountain Enterprises, Inc., had notice of the prior action instituted by its president. Burbank was personally in control of the action before Judge Martin in Superior Court and the present action. He had the same proprietary interest or financial interest in the judgment in both cases, and was equally concerned with the determination of questions of fact or questions of law pertaining to the contract which was involved in both actions.\nWe hold, therefore, that for the purpose of the plea of res judicata, Smoky Mountain Enterprises, Inc., is bound by the judgment of Judge Martin.\nUnder the complaint as originally filed in this action, the plaintiff asked for money judgment in the amount of $4,939, or, in the alternative, that the defendant be ordered to relinquish all rights to the establishment known as \u201cThe Hideaway.\u201d By amendment to the complaint, plaintiff also seeks injunctive relief. Plaintiff in the previous action could have asked for any remedy available under the contract. Plaintiff cannot in this action seek relief which, in the exercise of reasonable diligence, could have been presented for determination in the prior action.\nAs stated in Gaither Corp. v. Skinner, 241 N.C. 532, 85 S.E. 2d 909 (1955):\n\u201c. . . The general rule is that the whole cause of action must be determined in one action, and where an action is brought for a part of a claim, a judgment obtained in the action ordinarily precludes the owner thereof from bringing a second action for the residue of the claim. Bruton v. Light Co., 217 N.C. 1, 6 S.E. 2d 822; Allison v. Steele, 220 N.C. 318, 17 S.E. 2d 339; 1 Am. Jur., Actions, section 96; 30 Am. Jur., Judgments, section 173.\n\u201cIt is to be noted that the phase of the doctrine of res judicata which precludes relitigation of the same cause of action is broader in its application than a mere determination of the questions involved in the prior action. The 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. Bruton v. Light Co., supra; Moore v. Harkins, 179 N.C. 167, 169, 101 S.E. 564; Wagon Co. v. Byrd, 119 N.C. 460, 26 S.E. 144; 1 Am. Jur., Actions, section 96; 30 Am. Jur., Judgments, sections 179 and 180.\u201d\nAccord, Garner v. Garner, 268 N.C. 664, 151 S.E. 2d 553 (1966); Wilson v. Hoyle, 263 N.C. 194, 139 S.E. 2d 206 (1964).\nFinal judgment adverse to plaintiff was entered in the first action. That judgment is res judicata and constitutes a bar to the present action. It is not necessary to consider other assignments of error.\nThe cause is remanded to the District Court of Buncombe County for the entry of judgment dismissing the action. The judgment entered in the District Court of Buncombe County is reversed.\nReversed.", "type": "majority", "author": "MOORE, Justice." } ], "attorneys": [ "Clarence N. Gilbert for defendant appellant.", "Hendon & Carson by George Ward Hendon for plaintiff appellee." ], "corrections": "", "head_matter": "SMOKY MOUNTAIN ENTERPRISES, INC. v. JESSE ROSE\nNo. 80\n(Filed 9 May 1973)\n1. Judgments \u00a7 36\u2014 plea of res judicata \u2014 parties concluded \u2014 corporation and president individually\nSmoky Mountain Enterprises, Inc., plaintiff in this action, is bound by the judgment entered in an earlier action instituted by W. P. Burbank, president and sole stockholder of Smoky Mountain Enterprises, Inc., which involved the same paper writing purporting to be a contract of sale, involved the same defendant and was personally controlled, as was the present action, by Burbank who had the same proprietary interest or financial interest in the judgment in both cases; therefore, the trial court erred in denying defendant\u2019s motion to dismiss plaintiff\u2019s cause of action on the ground of res judicata.\n\u25a0 2. Judgments. \u00a7 37\u2014 res judicata \u2014 relief that could have been demanded but was not\nWhere plaintiff individually brought an action for breach of contract and issues were determined adversely to him, he may not subsequently bring an action in the name of the corporation of. which he is sole stockholder based on the same alleged contract asking for money judgment or, in the alternative, that defendant he ordered to relinquish all rights to the business establishment that was the subject of the sale, since relief sought in the subsequent action was available to plaintiff and could have been determined in the earlier action.\nAppeal by defendant from Winner, District Judge, at the 28 August 1972 Non-Jury Session of Buncombe County District Court, transferred for initial appellate review by the Supreme Court by order dated 26 March 1973, pursuant to G.S. 7A-31(b) (4).\nOn 26 June 1969 W. F. Burbank and Jesse Rose signed a paper, writing purporting to be a sales contract. W. F. Burbank is president and sole stockholder in Smoky Mountain Enterprises, Inc., plaintiff in this case. However, his signature on the contract dicl not denote his corporate capacity and was not attested to by any other officer of the company. The instrument provides for the sale of all the assets of Smoky Mountain Enterprises, Inc. Consideration for this sale included the payment of all the outstanding accounts of the corporation, weekly payments of $137.50 for a fifty-two week period, and $700 in cash. The instrument provided, \u201cIf, during this period Mr. Rose should default in any of the above mentioned conditions, this agreement .will immediately be null and void and all assets, shall remain the property of Smoky Mountain Enterprises, Inc., and Mr. Rose will relinquish all rights to said establishment.\u201d\nThe major assets of plaintiff'were a bar named \u201cThe Hideaway\u201d and certain furniture and equipment contained in that bar. The corporation had a lease on the property which housed \u201cThe Hideaway\u201d and a license for the sale of beer and wine on the premises. Rose partially fulfilled his obligation .under, the instrument. He paid all the outstanding debts of the corporation and inad\u00e9 a $700 cash payment. Additionally, he made weekly payments totaling $2,475.18. Thereafter, apparently because the corporation\u2019s beer and wine license was revoked and the. carpo-ration?s lease on \u201cThe Hideaway\u201d property expired, Rose ceased making the weekly payments. On 15 December 1969 defendant\u2019s attorney wrote Burbank that Rose would make no further payments; that he was moving the furniture and fixtures from \u201cThe Hideaway\u201d to a safe.storage at 48 North Market Street in Asheville, North Carolina; that he had paid the storage-for a month'in advance; and that at any time during the next.month Burbank could obtain the furniture and fixtures by calling Mr. Rose. After receiving this letter, Burbank sold for $800 forty sets of t\u00e1bles and chairs which Rose had stored. Burbank.kept the $800.\nOn 27 February 1970 W. F. Burbank individually instituted an action in the Superior Court of Buncombe County against the defendant in the instant case, Jesse Rose, for breach of the contract of 26 June 1969. On 12 February 1971 Judge Harry Martin granted defendant\u2019s motion for summary judgment and dismissed that action with prejudice.\nOn 7 October 1971 the present action was instituted by Smoky. Mountain Enterprises, Inc., as plaintiff, against Jesse Rose. The complaint alleged a breach of this same 26 June. 1969 contract and sought a money judgment or specific performance of the contract, or, in the alternative, relinquishment by defendant of all rights to \u201cThe Hideaway.\u201d Defendant filed an answer, denied plaintiff\u2019s allegations, and as a second further defense alleged:\n\u201cThat the matters in controversy in this cause, as alleged in the complaint, were tried and answered in favor of the defendant in the case of W. F. Burbank v. Jesse Rose, heard in the Superior Court of Buncombe County, North Carolina, by the Honorable Harry C. Martin, Judge presiding; a copy of the judgment entered in that case is attached hereto as defendant\u2019s Exhibit \u2018A\u2019 and is pleaded as a bar to plaintiff\u2019s right to recover in this action for that said judgment finds as a fact that the alleged contract upon which the present action is based is not executed by or on behalf of Smoky Mountain Enterprises, Inc., and defendant pleads said finding and other findings in said judgment as res judicata in this action.\u201d\nOn 17 August 1972 defendant filed a motion for judgment on the pleadings and for summary judgment, pleading in bar of plaintiff\u2019s right to recover the judgment in favor of defendant entered by Judge Martin on 12 February 1971. This motion was not passed upon at the time, but was denied on 21 September 1972. On 21 September 1972, after the case was tried, plaintiff filed a motion to amend the complaint to ask for injunctive relief, which motion was allowed by the court on that same date.\nThe case was tried on 1 September 1972 without a jury. At the close of plaintiff\u2019s evidence, defendant moved the court, pursuant to Rule 41 of the Rules of Civil Procedure, for dismissal. The motion was denied. Defendant offered no evidence but renewed his motion for dismissal. This motion was also denied. The trial judge then, after finding facts and stating conclusions of law, entered judgment for plaintiff. The judgment required defendant to deliver to plaintiff all articles sold by plaintiff to defendant under the 26 June 1969 contract, listing among other articles the tables and chairs which plaintiff had already sold, and additionally enjoined the defendant from using the name \u201cThe Hideaway\u201d in any manner. From this judgment, defendant appealed to the North Carolina Court of Appeals.\nClarence N. Gilbert for defendant appellant.\nHendon & Carson by George Ward Hendon for plaintiff appellee." }, "file_name": "0373-01", "first_page_order": 401, "last_page_order": 407 }