An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-163


Filed: 4 March 2003


v .                         Avery County
                            No. 00 CVS 382
FOR AVERY COUNTY, and each in his
official and individual capacity,

    Appeal by plaintiff from order entered 7 November 2001 by Judge Zoro J. Guice, Jr. in Avery County Superior Court. Heard in the Court of Appeals 16 October 2002.

    Phyllis A. Palmieri for plaintiff appellant.

    WOMBLE CARLYLE SANDRIDGE & RICE, A Professional Limited Liability Company, by James R. Morgan, Jr. and Robert D. Mason, Jr. for defendant appellees.


    S. Wayne Johnson (“plaintiff”) appeals an order of summary judgment granted by the trial court in favor of The County of Avery, The Board Of Commissioners For Avery County, Sam Laws, Troy Clark, Kenny Poteat, Clay Houston and Jake Owens (hereinafter collectively, “defendants”). For the reasons stated herein, we affirm the trial court.     This is the second lawsuit brought by plaintiff against defendants. The facts of this case and the relationship between the two suits brought by plaintiff are essential to an understanding of this matter. An examination of the pleadings, exhibits, and depositions filed in response to defendants' summary judgment motion, considered in the light most favorable to plaintiff, show the following sequence of events: On 5 October 1999, plaintiff, Director of the Avery Elections Board, filed suit (“first lawsuit”) against defendants claiming that he suffered monetary damages when defendants wrongfully “withheld [his] wages and salary.” The complaint further alleged that the Avery County Board of Commissioners (“the Board of Commissioners”) adopted a directive mandating that plaintiff submit to drug testing. As a result of the mandate, a dispute between the Board of Commissioners and the Avery County Board of Elections (“the Board of Elections”) arose over whether the Board of Commissioners had the authority to require drug testing of plaintiff, or any person serving as Elections Board Director.
    On 26 August 1999, the Board of Commissioners approved a motion “not to release any paycheck to any County board of elections [member who denies] that their employees are subject to the County personnel policy outside of appointment, termination, grievance or disciplinary procedures.” On 27 August 1999, Gary O. Bartlett (“Bartlett”), the Executive Secretary of the North Carolina State Board of Elections, advised the Board of Commissioners, in writing, that withholding plaintiff's paycheckwas the equivalent of firing him. Bartlett also advised the Board of Commissioners that only the Board of Elections from North Carolina or Avery County had the authority to discipline or terminate plaintiff. The letter from Bartlett (“Bartlett letter”) was included in the first lawsuit filed by plaintiff and entitled “Exhibit B, Letter from Gary O. Bartlett.”
    Plaintiff's first lawsuit sought a writ of mandamus. On 15 October 1999, the trial court heard testimony from plaintiff on the matter of defendants refusal to pay plaintiff his wages. The trial court set the matter for hearing on 15 November 1999, for defendants to appear and show cause why a writ of mandamus should not be issued. On 15 November 1999, plaintiff and defendants appeared before the trial court and advised the court that certain matters in controversy were resolved by the parties. On 17 November 1999, as a result of the court being advised that certain matters had been resolved, Judge Marcus Johnson entered findings in an order entitled “Stipulation of Judgment.” The Stipulation of Judgment order ended the first lawsuit.
    On 26 June 2001, plaintiff filed a second lawsuit, which is presently before this Court. Plaintiff's second lawsuit names the same defendants included in the first lawsuit. The June 2001 complaint asserts that defendants violated: (1) the election laws of the State of North Carolina and tortiously interfered with plaintiff's rights under those laws; (2) public policy by wrongfully discharging plaintiff from his position as Director ofthe Avery Elections Board; and (3) 42 U.S.C. § 1983 and the North Carolina Constitution.
    On 7 August 2001, defendants filed a motion for summary judgment, arguing that the suit was barred by res judicata and collateral estoppel. On 1 October 2001, the trial court heard arguments on this matter. On 7 November 2001, the trial court issued an order granting summary judgment in favor of defendants. From this order, plaintiff appeals.


    Plaintiff argues that the trial court erred in granting summary judgment in favor of defendants when his claims were not barred by res judicata or collateral estoppel. For the reasons stated herein, we affirm the order of the trial court.
    Plaintiff contends that summary judgment was improperly granted for defendants, because his lawsuit was not barred by the doctrines of res judicata or collateral estoppel. Plaintiff asserts that neither doctrine barred his action because (1) the causes of action in the two suits are different, (2) the relief sought is different, (3) plaintiff did not know the full extent of his injuries at the time the first lawsuit was filed, and (4) there was not a final judgment on the merits in the first lawsuit. We disagree.
    Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled tojudgement as a matter of law. N.C. Gen. Stat. § 1A-1, Rule 56(c) (2001). The moving party has the burden of showing there is no genuine issue of any material fact. Whitley v. Coltrane, 65 N.C. App. 679, 683, 309 S.E.2d 712, 716 (1983). In reviewing a motion for summary judgment, the record should be viewed in the light most favorable to the non-movant, and all inferences will be drawn against the non-movant. Allstate Ins. Co. v. Oxendine, 149 N.C. App. 466, 468, 560 S.E.2d 858, 860 (2002).
    “The companion doctrines of res judicata (claim preclusion) and collateral estoppel (issue preclusion) have been developed by the courts for the dual purposes of protecting litigants from the burden of relitigating previously decided matters and promoting judicial economy by preventing needless litigation.” Bockweg v. Anderson, 333 N.C. 486, 491, 428 S.E.2d 157, 161 (1993). Res judicata “entirely bars an identical party or those in privity, from relitigating a second action identical to the first where a court of competent jurisdiction rendered a final judgment on the merits.” Wilson v. Watson, 136 N.C. App. 500, 502, 524 S.E.2d 812, 813 (2000). Under the doctrine of res judicata, “'a final judgment on the merits in a prior action will prevent a second suit based on the same cause of action between the same parties or those in privity with them.'” Clancy v. Onslow Cty., 151 N.C. App. 269, 271, 564 S.E.2d 920, 922-23 (2002) (quoting Thomas M. McInnis & Assoc., Inc. v. Hall, 318 N.C. 421, 428, 349 S.E.2d 552, 556 (1986)). “Res judicata operates as a bar not only against matters litigated or determined in the prior proceeding but also against'all material and relevant matters within the scope of the pleadings, which the parties, in the exercise of reasonable diligence, could and should have brought forward.'” Ballance v. Dunn, 96 N.C. App. 286, 290, 385 S.E.2d 522, 524-25 (1989) (quoting Burton v. Light., Co., 217 N.C. 1, 7, 6 S.E.2d 822, 826 (1940)).
    In, Northwestern Financial Group v. County of Gaston, 110 N.C. App. 531, 430 S.E.2d 689, disc. review denied, 334 N.C. 621, 435 S.E.2d 337 (1993), the plaintiff filed two separate lawsuits against the defendants for equitable relief in the form of an injunction, a writ of mandamus, or a writ of certiorari compelling the defendants to issue a building permit to the plaintiff for a mobile home park. Id. at 534-35, 430 S.E.2d at 692. In the first action, the trial court issued an injunction in favor of the plaintiff requiring the defendants to issue the permit; however, the plaintiff filed a second lawsuit seeking compensation for damages and discrimination under 42 U.S.C. § 1983. Id. The Northwestern Court concluded that although the plaintiff claimed not to know the full extent of the damages at the filing of the first action, the second action was barred. Id. at 540, 430 S.E.2d at 695. The Court further concluded that the plaintiff was required to bring all “claims for relief . . . in the same action” if the plaintiff incurred monetary damages at the time the initial lawsuit was filed. Id. at 541, 430 S.E.2d at 695.
    Here, plaintiff contends that he only knew that his wages were wrongfully withheld by defendants, but that he did not know the full extent of his damages when the first lawsuit was filed. However, a review of the record reveals that in the complaint in the first lawsuit, plaintiff alleged monetary damages and was awarded his wages with interest as the result of a court order. Therefore, it would violate the rule against claim splitting to allow plaintiff to again seek monetary relief in the present action whether or not plaintiff knew the full extent of his damages.
    In the instant case, plaintiff contends that defendants violated the election laws of North Carolina, through tortious interference with his rights under those laws; violated public policy by wrongfully discharging plaintiff from his employment; and violated plaintiff's civil rights under 42 U.S.C. § 1983 when plaintiff was deprived of his income. “[T]he common law rule against claim-splitting is based on the principle that all damages incurred as the result of a [single wrong] must be recovered in one lawsuit.” Bockweg, 333 N.C. at 492, 428 S.E.2d at 161. It is well established that a plaintiff must in his first suit seek all the relief to which he is entitled. Northwestern, 110 N.C. App. at 538-39, 430 S.E.2d at 694. Judgment in the first suit bars a second suit seeking different or additional relief. Id.
    A review of the record reveals that the Bartlett letter, which was included as an exhibit in plaintiff's October 1999 complaint, placed plaintiff on notice that the claims presented in this action were present at the time the first suit was filed. The Bartlett letter specifically stated that withholding plaintiff's pay was “tantamount to firing” him and also informed the Board of Commissioners that they had “no authority to terminate ordiscipline [plaintiff] or anyone in the position of Director.” This evidence tends to show that the claims presently before this Court were material, relevant, and within the scope of the pleadings in the first lawsuit. Therefore, in an exercise of reasonable diligence, plaintiff could have and should have brought forth a complaint in the first lawsuit, which included defendants' violation of public policy by wrongfully discharging plaintiff; interference with plaintiff's duties as the Director of the Board of Elections; and violation of plaintiff's civil rights under 42 U.S.C. § 1983, in that defendants sought to deprive plaintiff of his liberty and property under color of state law.
    Plaintiff nevertheless contends that the “Stipulation of Judgment” entered in the initial complaint was not a final judgment and therefore res judicata does not apply. We disagree.
    Any material fact that has been in controversy between the plaintiff and defendant may be established by stipulation. Thomas v. Poole, 54 N.C. App. 239, 241, 282 S.E.2d 515, 517 (1981), cert. denied, 304 N.C. 733, 287 S.E.2d 902 (1982). “Where the stipulations of plaintiff and defendant have been entered of record, and there is no contention that the attorney for either party was not authorized to make such stipulations, the parties are bound and cannot take a position inconsistent with the stipulations.” Id. The effect of a stipulation by the parties withdraws a particular fact from the realm of dispute. Despathy v. Despathy, 149 N.C. App. 660, 662, 562 S.E.2d 289, 291 (2002). “'An admission in a pleading or a stipulation admitting a material factbecomes a judicial admission in a case and eliminates the necessity of submitting an issue . . . to the jury.'” Id. (quoting Crowder v. Jenkins, 11 N.C. App. 57, 62, 180 S.E.2d 482, 485 (1971)). In order to set aside a stipulation, one of the parties to the stipulation may or should seek a motion to set aside the stipulation in the court where the action is pending. See R. R. Co. v. Horton and R. R. Co. v. Oakley, 3 N.C. App. 383, 389, 165 S.E.2d 6, 10 (1969).
    In the present case, the record reveals that plaintiff and defendants stipulated to certain facts which were entered in an order styled “Stipulation of Judgment” by the trial court dated November 1999, which read in pertinent part:
        . . . .
        On the fifteenth day of November, pursuant to the order of this Court, the parties appeared, and this court having reviewed the evidence of record, and having heard the arguments of counsel, and having been advised that certain matters in controversy are resolved by agreement of the parties, finds as follows:

        That respondents have acknowledged that the laws of the State of North Carolina require payment of wages due to Petitioner as those wages fall due, and, the Respondent being without grounds to show cause why a writ of mandamus should not issue, that those wages withheld to date are to be provided to the Petitioner forthwith, along with the agreed upon amount of interest of $75, from the date of the filing of the Petition for the writ of mandamus; and

        That the [defendants] reserving the right to continue with their efforts to seek review of the legal basis of [their] obligations under the law, the [defendants] agrees to continue to pay the [plaintiff], or any Director of the Avery County Board of Elections or other employee of the Avery County Board of Elections whom it is bound to pay by law without interruption or interference of any kind, until such time as that legal obligation is lifted. . . .
        . . . .
        It is therefore ordered that the findings herein and the stipulations of the parties as to the obligation to provide payment to the Petitioner as Director of the Avery County Board of Elections, to any subsequent holder of that office or employee of the Board of Elections; the payment of interest on the wages withheld, and the payment of attorney fees to the Petitioner, are adopted as the judgment of this Court,. . .
        . . . .

    An examination of the record reveals that plaintiff did not make a motion to set aside the stipulation, nor was there any showing that plaintiff's attorney was not authorized to enter into a stipulation. The evidence tends to show that while the Stipulation of Judgment order left open the issues of attorney's fees and the defendants' “right to explore the legal basis” of their obligations, the order certainly resolved any claims of monetary damages to plaintiff. The trial court could determine that summary judgment was proper, because the initial lawsuit and the present action are brought against the same defendants; there was a final judgment on the merits in the first lawsuit as to all of plaintiff's claims; and in an exercise of due diligence, plaintiff could have presented all claims for relief in the first lawsuit. Therefore, plaintiff's claims are barred by the doctrine of res judicata.     In light of the foregoing analysis, we decline to address the issue of collateral estoppel.
    Judges WYNN and HUNTER concur.
    Report per Rule 30(e).

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