An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA 03-1171

NORTH CAROLINA COURT OF APPEALS

Filed: 7 September 2004

MARY C. MORRIS and
JOSEPH ERVIN MORRIS,
            Plaintiffs,

v .                         Durham County
                            No. 02 CVS 4206
JOHN S. THOMAS,
            Defendant.

    Appeal by plaintiffs from order entered 7 July 2003 by Judge Orlando F. Hudson, Jr. in Superior Court in Durham County. Heard in the Court of Appeals 20 May 2004.

    Maupin Taylor, P.A., by M. Keith Kapp, Charles L. Steel, IV, Tyler L. Randolph and Kevin W. Benedict, for plaintiff- appellants.

    Hedrick, Murray & Cheek, P.L.L.C., by Lewis A. Cheek and Martha E. Soule, for defendant-appellee.

    HUDSON, Judge.

    Plaintiffs Mary C. Morris and Joseph Ervin Morris commenced this action on 9 August 2002 alleging breach of contract, breach of fiduciary duties, and fraudulent or negligent misrepresentation by defendant John S. Thomas.
    On 2 December 2002, defendant moved to dismiss plaintiffs' complaint pursuant to North Carolina Rules of Civil Procedure 12(b)(1) and 12(b)(6) on the basis of res judicata. On 7 July 2003, the trial court granted defendant's motion, and plaintiff appeals. We affirm.

    The plaintiffs have filed at least two previous lawsuits against defendant based on a common set of facts, issues and claims (“the Guilford Actions”). On 10 May 2002, plaintiffs filed their first suit in Guilford County (No. 02-CVS-6777, “Guilford I”) individually and derivatively on behalf of the E.A. Morris Charitable Foundation (“the Foundation”). There, plaintiffs alleged breach of fiduciary duties and breach of promises in managing the Foundation. The same defendants as here moved for summary judgment, which the trial court granted. Plaintiffs appealed to this Court, and we affirmed. See Morris v. Thomas, 161 N.C. App. 680, 589 S.E.2d 419 (2003), disc. review denied, 358 N.C. 235, 593 S.E.2d 592, (2004).
    On 7 August 2002, the same plaintiffs, plus one more, filed a second action in Guilford County (No. 02-CVS-9217, “Guilford II”). The second complaint alleged that the Foundation failed to carry out plaintiffs' intentions and committed other wrongful acts. Defendants moved to dismiss pursuant to Rule 12(b)(6), and the trial court granted the motion on 4 November 2002, and plaintiffs appealed. In an opinion filed on 16 December 2003, we affirmed. See Morris v. E.A. Morris Charitable Found., 161 N.C. App. 673, 589 S.E.2d 414 (2003), disc. review denied, 358 N.C. 235, 593 S.E.2d 592 (2004).
        
    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.” Thomas M. McInnis & Assoc., Inc. v. Hall, 318 N.C.421, 428, 349 S.E.2d 552, 556 (1986). “The essential elements of res judicata are: (1) a final judgment on the merits in an earlier lawsuit; (2) identity of the cause of action in the prior suit and the later suit; and (3) an identity of the parties or their privies in both suits.” Culler v. Hamlett, 148 N.C. App 389, 392, 559 S.E.2d 192, 194 (2002).
            
    This Court noted that “[i]n general, a cause of action determined by an order for summary judgment is a final judgment on the merits.” Green v. Dixon, 137 N.C. App. 305, 310, 528 S.E.2d 51, 55, affirmed, 352 N.C. 666, 535 S.E.2d 356 (2000). Likewise, this Court has previously held that dismissal pursuant to Rule 12(b)(6) “operates as an adjudication on the merits unless the court specifies that the dismissal is without prejudice.” Clancy v. Onslow Cty, 151 N.C. App. 269, 272, 564 S.E.2d 920, 923 (2002). Thus, the Guilford Actions (summary judgment in Guilford I and failure to state a claim in Guilford II) are final adjudications on the merits.
B.
    For purposes of res judicata, strict identity of the issues is not required, so long as the issues arise under the same facts that gave rise to the previous action. See Kabatnik v. Westminster Co., 63 N.C. App. 708, 712, 306 S.E.2d 513, 515 (1983). Res judicata is “intended to force parties to join all matters which might or should have been pleaded in one action,” and “applies to those issues which could have been raised in the prior action but were not.” Chrisalis Properties, Inc. v. Separate Quarters, Inc., 101N.C. App. 81, 84, 398 S.E.2d 628, 631 (1990), disc. review denied, 328 N.C. 570, 403 S.E.2d 509 (1991) (citations omitted). Further, a party cannot avoid res judicata “by shifting legal theories or asserting a new or different ground for relief.” Northwestern Financial Group v. County of Gaston, 110 N.C. App. 531, 538, 430 S.E.2d 689, 694, disc. review denied, 334 N.C. 621, 435 S.E.2d 337 (1993).
    Here, while the three complaints are not identical, they all arise out of the same set of facts - the alleged improper operation of the Foundation by defendant. All include allegations of fraudulent or deceptive acts and breaches of fiduciary duties and breaches of contract. Additionally, nearly all of the allegations in the present complaint also appear in either one or both of the two previous suits.
    The only allegation in the present complaint that is not also part of the Guilford Actions is that defendant advised plaintiff Mary C. Morris to make certain charitable gifts personally rather than through the Foundation. However, the addition of a new contention in a second lawsuit between the same parties or their privies does not prevent the cases from having “identity of issues” for preclusion purposes. Clancy, 151 N.C. App. at 271-72, 564 S.E.2d at 923.
        
    For purposes of res judicata, the actions must involve the same parties or those in privity with them. Chrisalis, 101 N.C. App. at 84, 398 S.E.2d at 631. “[I]t [is] not necessary that precisely the same parties [are] plaintiffs and defendant in thetwo suits.” Culler, 148 N.C. App. at 393, 559 S.E.2d at 195.
    Plaintiffs assert that they sued defendant in his individual capacity here, but that previously they sued him in his capacity as director and trustee. However, we conclude that defendant is the same individual sued in all three actions and is in privity with himself in either capacity. See, e.g., Northwestern, 110 N.C. App. at 537, 430 S.E.2d at 693 (“[e]ven though defendants have been sued in an additional capacity, they are still the same individuals, and at a minimum, would have to be considered in privity with the defendants in the [previous] action”).
            
    Thus, we conclude that plaintiff has satisfied all of the elements of res judicata, and we affirm the order of the trial court.
    Affirmed.
    Judges McCULLOUGH and LEVINSON concur.
    Report per Rule 30(e).

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