1. Courts--transfer from district to superior--motions to dismiss in both
A motion to dismiss was appropriately heard immediately after the court transferred the
case from district court where defendants had simultaneously filed a motion to dismiss in district
court. Although plaintiff argues that the superior court lacked jurisdiction, the transfer occurred
when the superior court allowed defendants' motion to transfer, and the superior court was
therefore the proper place to hear the substantive motion to dismiss. Plaintiff had notice of the
hearing on the motion to dismiss, attended and participated, and made no objection.
2. Collateral Estoppel and Res Judicata--prior ruling brought by petition--issue
resolved--judgment on the merits
Res judicata and collateral estoppel barred a breach of contract action by a dismissed high
school principal where a superior court had issued a prior ruling that plaintiff had not timely
requested a hearing before the board of education. Although plaintiff contended that the earlier
ruling did not constitute a judgment on the merits because the matter was before the court by way
of petition, it is clear that the earlier court resolved the issue of whether plaintiff was denied a
proper hearing, and he may not now re-litigate the issue.
McLean Law Firm, P.A., by Russell L. McLean, III, for
plaintiff-appellant.
Tharrington Smith, L.L.P., by Kenneth A. Soo and Deborah R.
Stagner, for defendants-appellees.
MARTIN, Chief Judge.
Plaintiff appeals from an order allowing defendants' motion to
dismiss his complaint and denying plaintiff's motion to amend the
complaint. We affirm. On 4 March 2004, plaintiff filed a complaint in Jackson County
District Court alleging claims against the Jackson County School
Board (“School Board”), the Jackson County Board of Education
(“Board of Education”), individual School Board members in their
official capacities, and Superintendent C.E. McCary, III
(“Superintendent McCary”) (collectively hereinafter, “defendants”)
for breach of contract and wrongful termination. Plaintiff alleged
he had been hired by defendants by contract dated 31 May 2000 to
serve as the principal of Smoky Mountain High School in Jackson
County. On or about 23 June 2003, Superintendent McCary suspended
plaintiff from his position upon allegations he had violated School
Board policies. Plaintiff was subsequently terminated from his
position on 4 September 2003. In his complaint, plaintiff alleged
he was terminated without proper procedure, specifically, that he
was terminated without notice or a hearing upon the charges against
him, and that defendants thereby breached their contract with him.
Plaintiff claimed damages in excess of ten thousand dollars as a
result of defendants' actions.
On 29 March 2004, the School Board and the Board of Education,
along with the individual members of the School Board, moved to
transfer plaintiff's case to superior court pursuant to section
7A-258 of the North Carolina General Statutes, on the ground that
plaintiff sought damages in excess of ten thousand dollars. They
also moved to dismiss plaintiff's case on the following grounds:
(1) plaintiff had failed to plead facts to demonstrate he had
exhausted administrative remedies available to him; (2) plaintiff'ssuit was barred by the doctrines of res judicata and collateral
estoppel; (3) plaintiff's second cause of action did not state a
claim for wrongful termination because he was a contract employee;
and (4) plaintiff could not maintain his claims against the
individual members of the School Board, as they were sued in their
official capacities only.
In support of defendants' contention that plaintiff's
complaint was barred by the doctrines of res judicata and
collateral estoppel, an order of the superior court of Jackson
County filed 22 December 2003 was attached to the motion to
dismiss. The 22 December 2003 order contained the following
pertinent findings:
3. On or about June 24, 2003, the
superintendent of the Jackson County Schools,
Dr. C.E. McCary III, suspended [plaintiff]
from his duties with pay pursuant to G.S.
115C-325(f1). Dr. McCary notified [plaintiff]
by letter that the purpose of the suspension
was to investigate allegations that
[plaintiff] had sexually harassed two
subordinates.
4. [Plaintiff], in a letter from his attorney
dated July 1, 2003, requested an appeal of the
suspension with pay to the school board
“unless, or until you can convince us that
this does qualify for one of the criterion for
which suspension may be appropriate under the
statutes.”
5. Nancy R. Sherill and B. David Steinbicker
investigated complaints against [plaintiff],
including complaints from a third employee,
and notified [plaintiff] by letter dated July
8, 2003, that his alleged conduct violated
Board policy. The letter stated that the
matter would be referred to the superintendent
for corrective steps.
6. [Plaintiff], through his attorney, wrote
Superintendent McCary a letter dated July 10,
2003, stating “Please consider this letter a
notice of appeal based upon the findings of
Ms. Nancy R. Sherill.” The letter further
requested a copy of Ms. Sherill's report.
7. Superintendent McCary sent a letter to
[plaintiff] on July 30, 2003, outlining in
detail accusations of sexual harassment made
by three school employees against [plaintiff].
The superintendent's letter notified
[plaintiff] that the evidence showed that
[plaintiff] had violated Jackson County Board
of Education policy and the North Carolina
General Statutes.
8. Superintendent McCary's July 30, 2003,
letter stated that he would recommend to the
Board of Education that the Board dismiss
[plaintiff] from employment. The letter
notified [plaintiff] that he could have the
superintendent's intended recommendation
reviewed by a case manager if he requested a
hearing within fourteen days, and that he
could request a hearing before the Board of
Education within fourteen days. It is not
disputed that [plaintiff] received the letter
on July 31, 2003.
9. Superintendent McCary, [plaintiff] and
their respective counsel met on August 4,
2003, to discuss the charges against
[plaintiff].
10. Neither [plaintiff] nor his attorney filed
a written request for a hearing within
fourteen days of [plaintiff's] receipt of the
July 30, 2003, letter from Superintendent
McCary. By letter dated August 18, 2003,
[plaintiff], through counsel, requested a
hearing.
11. In view of [plaintiff's] failure to
request a hearing within fourteen days of
receipt of the July 30, 2003, letter, the
Jackson County Board of Education on September
4, 2003, dismissed [plaintiff] upon
Superintendent McCary's recommendation.
12. The procedures contained in N.C. Gen.
Stat. § 115C-325 govern the dismissal ofcontract school principals and apply to this
case.
13. The July 30, 2003, letter from
Superintendent McCary adequately notified
[plaintiff] that he must request a hearing
within fourteen days, and [plaintiff] failed
to do so as required by G.S. § 115C-325(h).
14. [Plaintiff] failed to request a hearing
within fourteen days of his receipt of
Superintendent McCary's notice to [plaintiff]
of his intent to recommend [plaintiff's]
dismissal to the Board of Education.
15. The Jackson County Board of Education did
not violate [plaintiff's] rights under G.S. §
115C-325 or his due process rights when it
dismissed him on September 4, 2003.
In the 22 December 2003 order, the trial court denied
plaintiff's motions to (1) remand his case for a hearing before the
Board of Education or case manager; (2) stay the Board of
Education's decision to dismiss him; and (3) hold an evidentiary
hearing before the trial court on the allegations contained in the
sexual harassment complaint. Plaintiff did not appeal the 22
December 2003 order.
The motions to dismiss and to transfer plaintiff's case came
before the superior court on 19 April 2004. The trial court also
heard an oral motion by plaintiff to amend the complaint. After
examining the pleadings, the court file, and upon argument by
counsel, the trial court ordered the case transferred to superior
court, allowed defendants' motion to dismiss, and denied
plaintiff's motion to amend. Plaintiff appeals.
________________________________________________ [1] Plaintiff first argues the trial court erred by hearing
the motion to dismiss immediately after ruling on, and allowing,
the motion to transfer to superior court. On 29 March 2004,
defendants served notice for a 19 April 2004 hearing of their
motion to transfer to the superior court division. Also on 29
March 2004, defendants served plaintiff notice of hearing in the
superior court division on their motion to dismiss. Defendants
simultaneously filed their motion to dismiss in the district court
division. Because defendants filed the substantive motion to
dismiss in the district court division, plaintiff argues the
superior court lacked jurisdiction over the motion to dismiss and
that notice was thereby defective. We reject plaintiff's argument.
As plaintiff concedes, transfer of the substantive case
occurred on 19 April 2004 when the superior court allowed
defendants' motion to transfer to the superior court division. The
case was transferred at that time, and the superior court was
therefore the proper division to hear the substantive motion to
dismiss. Moreover, plaintiff had notice of the hearing on the
motion to dismiss more than two weeks before the actual hearing,
attended and participated in the hearing, and made no objection to
the hearing. “A party waives notice of a motion by attending the
hearing of the motion and by participating in the hearing without
objecting to the improper notice or requesting a continuance for
additional time to produce evidence.” Anderson v. Anderson, 145
N.C. App. 453, 456, 550 S.E.2d 266, 269 (2001). We overrule this
assignment of error. [2] By his second assignment of error, plaintiff contends the
trial court erred in dismissing his case as a matter of law.
Plaintiff argues the earlier 22 December 2003 order of the trial
court did not constitute a “judgment on the merits” for the
purposes of res judicata, and therefore poses no bar for his
present claim for breach of contract. Again we disagree.
“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.” Bockweg v. Anderson, 333
N.C. 486, 491, 428 S.E.2d 157, 161 (1993). The essential elements
of res judicata are: (1) a final judgment on the merits in an
earlier lawsuit; (2) an identity of the cause of action in the
prior suit and the later suit; and (3) an identity of parties or
their privies in both suits. See Hogan v. Cone Mills Corp., 315
N.C. 127, 135, 337 S.E.2d 477, 482 (1985); Culler v. Hamlett, 148
N.C. App. 389, 392, 559 S.E.2d 192, 194 (2002). “When a court of
competent jurisdiction has reached a decision on facts in issue,
neither of the parties are allowed to call that decision into
question and have it tried again.” Green v. Dixon, 137 N.C. App.
305, 308, 528 S.E.2d 51, 53, aff'd per curiam, 352 N.C. 666, 535
S.E.2d 356 (2000). Similarly, 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 v. N.C. Coop. Extension Serv., 142 N.C.App. 48, 52, 542 S.E.2d 225, 231, disc. review denied, 353 N.C.
452, 548 S.E.2d 527 (2001). Collateral estoppel applies when the
following requirements are met: (1) the issues to be concluded are
the same as those involved in the prior action; (2) the issues in
the prior action were raised and actually litigated; (3) the issues
were material and relevant to the disposition of the prior action;
and (4) the determination made of those issues in the prior action
was necessary and essential to the resulting judgment. Id. at 54,
542 S.E.2d at 233.
In the case at bar, plaintiff's claims for breach of contract
and wrongful termination are based entirely upon his contention he
was denied a hearing by the School Board before his dismissal. The
22 December 2003 order of the trial court, however, addressed these
very issues and concluded plaintiff was not entitled to a hearing
because he failed to timely request such hearing. Plaintiff was
entitled to appeal the 22 December 2003 order, but did not do so.
Plaintiff nevertheless asserts the earlier order did not constitute
a “judgment on the merits” for purposes of res judicata or
collateral estoppel because the matter was then before the court by
way of petition filed by plaintiff to review the actions of the
School Board.
Plaintiff does not fully explain, nor does he cite any support
for his assertion that an order issued by a trial court upon
petition rather than upon complaint, does not constitute a “final
judgment.” Regardless of the procedural manner in which the issue
reached the trial court, it is clear from the 22 December 2003order that the focus of the court's review of the Board's
termination of plaintiff was his claim that he was denied a proper
hearing. The trial court resolved this issue against him, and
plaintiff may not now seek to re-litigate whether or not he was
denied a proper hearing. See McCallum, 142 N.C. App. at 55, 542
S.E.2d at 233 (holding that a federal court's resolution of issues
central to the plaintiff's claims in state court prevented
litigation of the plaintiff's suit in state court). Plaintiff's
present suit is a breach of contract claim based upon his
contention that he was denied a proper hearing. The doctrines of
res judicata and collateral estoppel bar an action, and the trial
court did not err in dismissing it. We overrule this assignment of
error.
Finally, plaintiff argues the trial court abused its
discretion in denying his oral motion to amend his complaint.
During the hearing to dismiss, defendants argued plaintiff's
complaint failed to allege he had exhausted his administrative
remedies before filing suit, and should therefore be dismissed.
Plaintiff then moved to amend his complaint to allege he had in
fact exhausted his administrative remedies, which motion the court
denied. Plaintiff argues the court had no basis to deny his motion
and thus abused its discretion. As we have already determined that
plaintiff's complaint was properly dismissed on the basis of res
judicata and collateral estoppel, we need not address this
assignment of error.
The judgment of the trial court is hereby Affirmed.
Judges TYSON and LEVINSON concur.
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