Link to original WordPerfect file
How to access the above link?
All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
TODD WILLIAMS, Plaintiff, v. CITY OF JACKSONVILLE POLICE
DEPARTMENT, BILLY J. HOUSTON and EARL K. BURKHART, Individually
and in their official capacity, Defendants
Filed: 3 August 2004
1. Appeal and Error_appealability_denial of summary judgment_res judicata and
The denial of summary judgment based on the defenses of res judicata and collateral
estoppel may affect a substantial right and make the order immediately appealable.
2. Collateral Estoppel and Res Judicata_state claims in federal court_not ruled
upon_not barred by res judicata
Res judicata did not bar state claims which a federal judge had expressly declined to
review and dismissed without prejudice even though he also ruled on federal claims arising from
the same traffic stop.
3. Collateral Estoppel and Res Judicata_prior ruling on federal issues_underlying
issues and identical elements_collateral estoppel
Summary judgment should have been granted for defendants on civil claims against
police officers and their department based on collateral estoppel where a federal court had ruled
on underlying issues and identical elements when granting summary judgment for defendants on
Appeal by defendants from order entered 1 May 2003 by Judge
Paul L. Jones in Onslow County Superior Court. Heard in the Court
of Appeals 16 June 2004.
Ernest J. Wright, for plaintiff-appellee.
Crossley, McIntosh, Prior & Collier, by Brian E. Edes and Clay
A. Collier, for defendants-appellants.
The City of Jacksonville Police Department (Jacksonville
Police Department), Officer Billy J. Houston (Officer Houston),
and Officer Earl K. Burkhart (Officer Burkhart) (collectively,
defendants) appeal from an order denying their Motion for SummaryJudgment. We reverse.
Plaintiff originally filed this action on 2 March 2000 in
Onslow County Superior Court from incidents that arose during a
traffic stop of plaintiff by defendants. Plaintiff asserted claims
for: (1) personal injuries, pain and suffering, humiliation, loss
of liberty and emotional distress that he suffered as a result of
defendants' negligence, malicious and wanton conduct; (2) the
action of Defendants violated the 4th and/or the 14th Amendments to
the U.S. Constitution, protecting against unlawful seizures; (3)
the acts and conduct of the Defendants . . . constitutes [sic]
false arrest and negligence under the laws of the State of North
Carolina; and (4) The City of Jacksonville intentionally or
negligently failed to properly train its officers . . . .
Defendants removed the action to the United States District
Court for the Eastern District of North Carolina (the U.S.
District Court) pursuant to plaintiff's assertion of a violation
of the Civil Rights Act, Title 42 U.S.C. § 1983 and moved for
summary judgment. By Order entered 29 May 2001, the Honorable
James C. Fox, Senior U.S. District Court Judge, granted defendants'
motion. Judge Fox found, as a matter of law: (1) defendants had
probable cause to stop and detain plaintiff; (2) defendants acted
reasonably in conducting a pat-down search and in using threat of
force; and (3) defendants did not use excessive force. Judge Fox
also concluded, Because the officers [Houston and Burkhart] did
not commit any constitutional violation, summary judgment is also
appropriate as to the plaintiff's claims against the City ofJacksonville. Judge Fox's Order stated, To the extent that the
plaintiff's complaint alleges state law causes of action, the
court, pursuant to 28 U.S.C. § 1367(c)(3), declines to exercise
supplemental jurisdiction over such pendent claims, and ORDERS
these claims DISMISSED without prejudice.
Plaintiff timely filed a new complaint on 16 November 2001
asserting the causes of action stated in his earlier complaint,
except for deleting his claim for violations of the Fourth and
Fourteenth Amendments of the United States Constitution.
Defendants filed an answer and asserted thirty defenses, including
governmental immunity, public duty doctrine, and res
judicata/collateral estoppel. Defendants moved for summary
judgment and asserted, Plaintiff's pendant state tort claims are
premised on either the lack of probable cause or the
unreasonableness of Defendants' conduct . . . [and] are barred
under the doctrines of res judicata and collateral estoppel in that
the necessary elements of Plaintiff's claims have been previously
adjudicated in favor of Defendants. The trial court denied
defendants' motion. Defendants appeal.
The issues presented are whether: (1) this appeal is
interlocutory; and (2) the trial court erred in denying defendants'
Motion for Summary Judgment because the doctrines of res judicata
and collateral estoppel bar plaintiff's claims.
III. Interlocutory Appeal
 The denial of summary judgment is not a final judgment,
but rather is interlocutory in nature. We do not reviewinterlocutory orders as a matter of course. McCallum v. N.C.
Coop. Extension Serv., 142 N.C. App. 48, 50, 542 S.E.2d 227, 230,
appeal dismissed and disc. rev. denied, 353 N.C. 452, 548 S.E.2d
527 (2001) (citing Veazey v. Durham, 231 N.C. 357, 361-62, 57
S.E.2d 377, 381, reh'g denied, 232 N.C. 744, 59 S.E.2d 429 (1950)).
If, however, 'the trial court's decision deprives the appellant of
a substantial right which would be lost absent immediate review,'
we may review the appeal under N.C. Gen. Stat. §§ 1-277(a) and
7A-27(d)(1). McCallum, 142 N.C. App. at 50, 542 S.E.2d at 230-31
(quoting N.C. Dept. of Transportation v. Page, 119 N.C. App. 730,
734, 460 S.E.2d 332, 334 (1995)).
Although interlocutory, the denial of a motion for summary
judgment based on the defense of res judicata may affect a
substantial right, making the order immediately appealable.
Bockweg v. Anderson, 333 N.C. 486, 491, 428 S.E.2d 157, 161 (1993)
(citations omitted). Under the doctrine of res judicata, a final
judgment on the merits in a prior action in a court of competent
jurisdiction precludes a second suit involving the same claim
between the same parties or those in privity with them. Id.
(citing Thomas M. McInnis & Assoc., Inc. v. Hall, 318 N.C. 421,
428, 349 S.E.2d 552, 556 (1986)).
Denial of a summary judgment motion based on
res judicata raises the possibility that a
successful defendant will twice have to defend
against the same claim by the same plaintiff,
in frustration of the underlying principles of
claim preclusion. Thus, the denial of summary
judgment based on the defense of res judicata
can affect a substantial right and may be
McCallum, 142 N.C. App. at 51, 542 S.E.2d at 231 (citing Bockweg,333 N.C. at 491, 428 S.E.2d at 161). The denial of summary
judgment based on collateral estoppel, like res judicata, may
expose a successful defendant to repetitious and unnecessary
lawsuits. Accordingly, . . . the denial of a motion for summary
judgment based on the defense of collateral estoppel may affect a
substantial right . . . . [such that the appeal] is properly before
us. McCallum, 142 N.C. App. at 51, 542 S.E.2d at 231.
Defendants' appeal is properly before this Court.
IV. Summary Judgment
Defendants argue the trial court erred in denying their motion
for summary judgment based on res judicata and collateral estoppel.
Rule 56(c) of the North Carolina Rules of Civil Procedure
provides that summary judgment will be granted if 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 to
judgment as a matter of law. N.C. Gen. Stat. § 1A-1, Rule
An issue is genuine if it can be proven by
substantial evidence and a fact is material
if it would constitute or irrevocably
establish any material element of a claim or a
defense. A party moving for summary judgment
may prevail if it meets the burden (1) of
proving an essential element of the opposing
party's claim is nonexistent, or (2) of
showing through discovery that the opposing
party cannot produce evidence to support an
essential element of his or her claim.
Generally this means that on undisputed
aspects of the opposing evidential forecast,
where there is no genuine issue of fact, the
moving party is entitled to judgment as a
matter of law. If the moving party meets this
burden, the non-moving party must in turn
either show that a genuine issue of materialfact exists for trial or must provide an
excuse for not doing so.
Lowe v. Bradford, 305 N.C. 366, 369, 289 S.E.2d 363, 366 (1982)
(internal citations omitted).
Here, defendants moved for summary judgment and asserted
plaintiff's claims were barred under the doctrines of res judicata
and collateral estoppel. The parties did not brief, move for, or
present further arguments or other grounds to the trial court to
support or contest the Motion for Summary Judgment. Our review is
limited to whether defendants were entitled to summary judgment as
a matter of law based on res judicata and collateral estoppel. See
McDonald v. Skeen, 152 N.C. App. 228, 567 S.E.2d 209, disc. rev.
denied, 356 N.C. 437, 571 S.E.2d 221 (2002) (addressing only the
issue of collateral estoppel and declining to consider arguments
that were not presented in motion or argued at the hearing); see
also N.C.R. App. P. 10(b)(1).
V. Res Judicata and Collateral Estoppel
The trial court concluded neither res judicata nor collateral
estoppel precluded plaintiff's claims and denied defendants' Motion
for Summary Judgment.
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, 333
N.C. at 491, 428 S.E.2d at 161.
Where the second action between two parties is
upon the same claim, the prior judgment serves
as a bar to the relitigation of all mattersthat were or should have been adjudicated in
the prior action. Where the second action
between the same parties is upon a different
claim, the prior judgment serves as a bar only
as to issues actually litigated and determined
in the original action.
Id. at 492, 428 S.E.2d at 161 (citations omitted). Our Supreme
Court has distinguished between these two doctrines:
Under the doctrine of res judicata or claim
preclusion, 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. The doctrine
prevents the relitigation of all matters . . .
that were or should have been adjudicated in
the prior action. Under the companion
doctrine of collateral estoppel, also known as
estoppel by judgment or issue preclusion,
the determination of an issue in a prior
judicial or administrative proceeding
precludes the relitigation of that issue in a
later action, provided the party against whom
the estoppel is asserted enjoyed a full and
fair opportunity to litigate that issue in the
Whitacre P'ship v. Biosignia, Inc., 358 N.C. 1, 15, 591 S.E.2d 870,
880 (2004) (internal citations and quotations omitted). Res
judicata precludes a party from bringing a subsequent action based
on the 'same claim' . . . litigated in an earlier action . . . .
Id. Collateral estoppel bars the subsequent adjudication of a
previously determined issue, even if the subsequent action is based
on an entirely different claim. Id.
VI. Res Judicata
 In City-Wide Asphalt Paving, Inc. v. Alamance County, we
held the doctrines of res judicata and collateral estoppel did not
bar the plaintiff's claims under the North Carolina Constitution,
although the federal court had already ruled on the same issues
under the United States Constitution. 132 N.C. App. 533, 536, 513S.E.2d 335, 338, appeal dismissed and disc. rev. denied, 350 N.C.
826, 537 S.E.2d 815 (1999).
After careful review of the record, briefs and
contentions of both parties, we hold that
plaintiff's claims are not barred by res
judicata or collateral estoppel. The federal
court expressly stated that it declined to
exercise supplemental jurisdiction over
Plaintiff's state law claims, and dismissed
them without prejudice. While the federal
court did review federal due process and equal
protection claims, this Court has stated that
our courts . . . when construing provisions
of the North Carolina Constitution, are not
bound by the opinions of the federal courts
'construing even identical provisions in the
Constitution of the United States . . . ' and
that an independent determination of
plaintiff's constitutional rights under the
state constitution is required.
Id. at 536, 513 S.E.2d at 338 (quoting Evans v. Cowan, 122 N.C.
App. 181, 183-84, 468 S.E.2d 575, 577, aff'd per curiam, 345 N.C.
177, 477 S.E.2d 926 (1996)).
Here, Judge Fox expressly declined to review plaintiff's state
claims, and stated in his Order, To the extent that the
plaintiff's complaint alleges state law causes of action, the
court, pursuant to 28 U.S.C. § 1367(c)(3), declines to exercise
supplemental jurisdiction over such pendent claims, and ORDERS
these claims DISMISSED without prejudice. Plaintiff's complaint,
filed after the U.S. District Court's ruling, alleged causes of
action under state law for negligence, false arrest, and assault.
By dismissing these claims without prejudice, plaintiff's
subsequent action is not based on the 'same claim' as that
litigated in an earlier action. Whitacre P'ship, 358 N.C. at 15,
591 S.E.2d at 880.
We hold that plaintiff's claims are not barred by res judicataas Judge Fox's Order addressed only plaintiff's claims under
federal law and the United States Constitution. Judge Fox
expressly declined to rule on plaintiff's causes of action
controlled by state law.
VII. Collateral Estoppel
 Defendants assert that the doctrine of collateral estoppel
precludes plaintiff's suit in state court. Under the doctrine of
collateral estoppel, when an issue has been fully litigated and
decided, it cannot be contested again between the same parties,
even if the first adjudication is conducted in federal court and
the second in state court. McCallum, 142 N.C. App. at 52, 542
S.E.2d at 231 (citation omitted). This Court has held:
Although plaintiff's present state court
claims are different from those brought in
federal court, his state court claims may
contain issues previously litigated and
determined in the federal court. Thus,
plaintiff may be collaterally estopped from
re-litigating these issues. To hold
otherwise, . . . would mean that state courts
are never barred from hearing state
constitutional claims or issues pertinent to
such claims, even when such issues have been
previously litigated in the federal courts.
Such a finding would directly violate the
underlying principle of judicial economy that
precipitated the creation of the collateral
estoppel and res judicata doctrines . . . .
We reaffirm, therefore, that collateral
estoppel may prevent the re-litigation of
issues that are necessary to the decision of a
North Carolina constitutional claim and that
have been previously decided in federal court.
Id. at 53-54, 542 S.E.2d at 232-33. For collateral estoppel to bar
a party's subsequent claim:
(1) the issues to be concluded must be the
same as those involved in the prior action;
(2) in the prior action, the issues must have
been raised and actually litigated; (3) theissues must have been material and relevant to
the disposition of the prior action; and (4)
the determination made of those issues in the
prior action must have been necessary and
essential to the resulting judgment.
Id. at 54, 542 S.E.2d at 233 (quoting King v. Grindstaff, 284 N.C.
348, 358, 200 S.E.2d 799, 806 (1973)).
Here, the federal court's Order addressed the issue of whether
Defendant Billy Houston and Defendant Earl K. Burkhart violated
[plaintiff's] Fourth and Fourteenth Amendment rights during a
traffic stop . . . . In granting summary judgment for defendants
on the issues of unlawful seizure and excessive force under the
United States Constitution, Judge Fox ruled, among other things,
Officer Houston and Officer Burkhart: (1) did not expand the
permissible scope of the stop; (2) did not use excessive force
because the threat of force displayed by Houston in order to
persuade the driver not to leave the scene was not unreasonable;
(3) did not violate the plaintiff's Fourth Amendment rights by
asking the plaintiff to step out of his vehicle; and (4) a pat-
down search was not unreasonable under the circumstances . . . .
The U.S. District Court held, Because the officers did not commit
any constitutional violation, summary judgment is also appropriate
as to the plaintiff's claims against the City of Jacksonville
Following entry of the U.S. District Court's Order, plaintiff
filed a new complaint in state court and asserted claims for
negligence, false arrest, and assault. Plaintiff also asserted the
Jacksonville Police Department negligently trained its officers.
While the U.S. District Court's Order did not rule on defendants'ultimate liability for these claims, the Order ruled on several
underlying issues and identical elements of these claims. To the
extent the U.S. District Court ruled on these issues, plaintiff is
barred from relitigating the issues in state court. See McCallum,
142 N.C. App. at 53, 542 S.E.2d at 232.
Plaintiff's complaint alleges Officer Houston and Officer
Burkhart acted negligently in their official and individual
capacity. 'In a negligence action, a law enforcement officer is
held to the standard of care that a reasonably prudent person would
exercise in the discharge of official duties of like nature under
like circumstances.' Prior v. Pruett, 143 N.C. App. 612, 620, 550
S.E.2d 166, 172 (2001), disc. rev. denied, 355 N.C. 493, 563 S.E.2d
572 (2002) (quoting Best v. Duke University, 337 N.C. 742, 752, 448
S.E.2d 506, 511-12 (1994) (quoting Bullins v. Schmidt, 322 N.C.
580, 582, 369 S.E.2d 601, 603 (1988))). A law enforcement officer
may be held liable for use of unreasonable or excessive force
upon another person. N.C. Gen. Stat. § 15A-401(d)(2) (2003).
In the U.S. District Court's Order, Judge Fox held, Viewed
from the perspective of an objectively reasonable police officer,
the court concludes that the threat of force displayed by Houston
. . . was not unreasonable. Additionally, the officers' actions
did not amount to an unreasonable seizure, and the pat-down
search was not unreasonable under the circumstances . . . . The
issues regarding the reasonableness of Officer Houston and Officer
Burkhart's actions were litigated in federal court. Plaintiff is
precluded from relitigating the issue of whether the officers actedreasonably in performing their official duties. The trial court
erred in failing to grant summary judgment for defendants in their
official capacity on the issue of negligence.
To withstand a law enforcement officer's motion for summary
judgment on the issue of individual capacity, plaintiff must allege
and forecast evidence demonstrating the officers acted maliciously,
corruptly, or beyond the scope of duty. Prior, 143 N.C. App. at
623, 550 S.E.2d at 173-74. [S]tate governmental officials can be
sued in their individual capacities for damages under section
1983. Corum v. University of North Carolina, 330 N.C. 761, 772,
413 S.E.2d 276, 283, reh'g denied, 331 N.C. 558, 418 S.E.2d 664,
cert. denied, 506 U.S. 985, 121 L. Ed. 2d 431 (1992) (citing
Kentucky v. Graham, 473 U.S. 159, 87 L. Ed. 2d 114 (1985)).
[U]nlike a suit against a state official in
his official capacity, which is basically a
suit against the official office and therefore
against the State itself, a suit against an
individual who happens to be a governmental
official but is not acting in his official
capacity is not imputed to the State. Such
individuals are sued as individuals, not as
Corum, 330 N.C. at 772, 413 S.E.2d at 283.
In support of his claim that defendants acted negligently in
their individual capacity, plaintiff asserts that Officer Houston
intentionally, negligently[,] and maliciously pointed a loaded
weapon at plaintiff. Other than this broad assertion, plaintiff
presents no other allegation or forecast of evidence to show that
defendants acted maliciously, corruptly, or beyond the scope of
duty. Prior, 143 N.C. App. at 623, 550 S.E.2d at 174. The U.S.
District Court ruled that Officer Houston acted reasonably inpointing his service weapon at plaintiff. Plaintiff is
collaterally estopped from relitigating this issue.
Plaintiff's complaint also alleges that defendants
intentionally destroyed dispatch tapes and conspired to
unnecessarily call the plaintiff's supervisor to the scene . . . .
Judge Fox's Order recites these allegations and indicates that he
considered these actions in ruling on plaintiff's claim under 42
U.S.C. § 1983. The U.S. District Court's Order does not rule on
the ultimate issue of defendants' negligence in their individual
capacity. However, Judge Fox's award of summary judgment to
defendants essentially ruled both officers' actions were
reasonable; neither officer violated plaintiff's constitutional
rights; and their actions did not extend beyond the scope of
duty. Id. Collateral estoppel precludes plaintiff's suit on the
issue of negligence for Officer Houston and Officer Burkhart in
their individual capacity. The trial court erred in denying
defendants' Motion for Summary Judgment on the issue of negligence.
B. False Arrest
[U]nder state law, a cause of action in tort will lie for
false imprisonment, based upon the 'illegal restraint of one's
person against his will.' A false arrest, i.e., one without proper
legal authority, is one means of committing a false imprisonment.
Myrick v. Cooley, 91 N.C. App. 209, 212, 371 S.E.2d 492, 494, disc.
rev. denied, 323 N.C. 477, 373 S.E.2d 865 (1988) (quoting Mobley v.
Broome, 248 N.C. 54, 56, 102 S.E.2d 407, 409 (1958)). Probable
cause is an absolute bar to a claim for false arrest. Burton v.
City of Durham, 118 N.C. App. 676, 682, 457 S.E.2d 329, 333, disc.rev. denied and cert. denied, 341 N.C. 419, 461 S.E.2d 756 (1995)
(citing Friedman v. Village of Skokie, 763 F.2d 236, 239 (7th Cir.
In the prior federal court action, Judge Fox ruled that
Officer Burkhart had probable cause to detain plaintiff because
plaintiff admittedly drove his vehicle in excess of the speed
limit. Further, Judge Fox ruled that defendants did not
unreasonably expand the permissible scope of the stop. As probable
cause is an absolute bar to plaintiff's claim, he is collaterally
estopped from relitigating this issue. Plaintiff's claim for false
arrest fails. Burton, 118 N.C. App. at 682, 457 S.E.2d at 333.
The trial court erred in failing to grant summary judgment on
plaintiff's claim of false arrest.
'[A] civil action for damages for assault . . . is available
at common law against one who, for the accomplishment of a
legitimate purpose, such as justifiable arrest, uses force which is
excessive under the given circumstances.' Thomas v. Sellers, 142
N.C. App. 310, 315, 542 S.E.2d 283, 287 (2001) (quoting Myrick, 91
N.C. App. at 215, 371 S.E.2d at 496).
An officer of the law has the right to use
such force as he may reasonably believe
necessary in the proper discharge of his
duties to effect an arrest. Within reasonable
limits, the officer is properly left with the
discretion to determine the amount of force
required under the circumstances as they
appeared to him at the time of the arrest.
State v. Anderson, 40 N.C. App. 318, 321, 253 S.E.2d 48, 50 (1979)
In the prior federal court action, Judge Fox held thatdefendants' display of force and the subsequent pat-down search of
plaintiff were reasonable under the circumstances. Collateral
estoppel bars plaintiff from relitigating these issues and bars
plaintiff's assault claim in state court. The trial court erred in
failing to grant summary judgment in favor of defendants on
plaintiff's assault claim.
D. Jacksonville Police Department
Without an underlying negligence charge against the [law
enforcement officers], a claim of negligence against the
[department] can not [sic] be supported. Prior, 143 N.C. App. at
622, 550 S.E.2d at 172-73 (citing Johnson v. Lamb, 273 N.C. 701,
707, 161 S.E.2d 131, 137 (1968); Wrenn v. Maria Parham Hosp., Inc.,
135 N.C. App. 672, 681, 522 S.E.2d 789, 794 (1999)). To the extent
collateral estoppel bars plaintiff's claims against defendants' in
their official governmental capacity, plaintiff is precluded from
asserting a negligence action against the Jacksonville Police
Plaintiff's claims are not barred by res judicata
the trial court erred in failing to grant summary judgment in favor
of defendants based on collateral estoppel. Essential elements of
plaintiff's claims for false arrest and assault were raised,
litigated, and ruled upon in the U.S. District Court's Order. See
, 142 N.C. App. at 55, 542 S.E.2d at 233.
Judge Fox also ruled that Officer Houston and Officer Burkhart
acted reasonably and within the scope of their duties in stopping
and detaining plaintiff and also in their show of force and pat-down search of plaintiff. Collateral estoppel bars plaintiff's
action against defendants for negligence in their official and
individual capacities. Without liability shown for defendants'
conduct in their official capacity, plaintiff's claim against the
Jacksonville Police Department for negligent training fails. The
judgment of the trial court is reversed and this cause is remanded
to the trial court for entry of summary judgment for defendants.
Reversed and remanded.
Judges BRYANT and STEELMAN concur.
*** Converted from WordPerfect ***