An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-781

NORTH CAROLINA COURT OF APPEALS

Filed: 5 April 2005

KENNETH T. DIXON,
    Plaintiff,

     v .                                 Pamlico County
                                        No. 03 CVS 121< br> JOHN TAYLOR and
BRIAN Z. TAYLOR,
    Defendants.

    Appeal by plaintiff from order entered 10 March 2004 by Judge Jack W. Jenkins in Pamlico County Superior Court. Heard in the Court of Appeals 12 January 2005.

    The Brough Law Firm, by Robert E. Hornik, Jr., for plaintiff appellant.

    Henderson, Baxter, Taylor, & Gatchel, P.A., by David S. Henderson, for defendant appellees.

    McCULLOUGH, Judge.

    Plaintiff appeals from the trial court's order which dismissed his claim seeking to enjoin defendants from building a roadway. On 3 April 1990, Zachary Taylor and Matthew Tingle entered into an agreement which permitted “a sixty foot wide right of way from the 'Old Bridge' across Trent Creek Canal running in a Northeasterly direction along the side of one of Tingle's field ditches to State Road #1322.” One month later, Brian and John Taylor obtained a survey depicting a “60' Roadway Easement” which was purportedly the sixty-foot wide easement referred to in the agreement dated one month earlier.     In early 1992, the executor of Tingle's estate, Kenneth Dixon, challenged Zachary Taylor's authority to enter into the 1990 agreement. Dixon also contested the validity of the agreement. In his answer, Zachary Taylor included a counterclaim seeking a declaration of the validity of the 1990 agreement and an order directing Dixon to execute and deliver a deed of easement in furtherance of the agreement.
    On 6 June 1995, the trial court entered a judgment in the case. The 1995 judgment determined that the size of the easement was 60 feet. Additionally, it concluded that the easement was to be a roadway easement. Finally, the judgment addressed the rights of the parties with respect to the easement; in particular, it mentioned the precise location of the easement and how the easement would affect the property owners' land.
    In early 2003, defendants John Taylor and Brian Taylor, the successors-in-interest to Zachary Taylor, announced their intention to construct a 60-foot roadway easement. Plaintiff challenged the existence of the 1990 agreement and also disputed defendants' right to construct a roadway. Defendants filed an answer and counterclaim. They asserted that plaintiff failed to state a claim upon which relief could be granted and that the doctrines of res judicata and collateral estoppel prevented plaintiff from prevailing.
    On 1 March 2004, the trial court held a hearing and granted defendants' motion to dismiss. Plaintiff appeals.     On appeal, plaintiff argues that the trial court erred by (1) considering matters outside the pleadings and (2) granting defendants' motion to dismiss. We disagree and affirm the decision of the trial court.
    Plaintiff asserts that the trial court erred by considering matters outside the pleadings when evaluating defendants' motion to dismiss. His contention is that consideration of these matters prevented him from reacting and objecting to the pleadings and other documents from the 1992 litigation. We disagree.
    Under N.C. Gen. Stat. § 1A-1, Rule 12(b) (2003):
        If, on a motion . . . to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

Thus, there is statutory authority allowing the trial court to convert a motion to dismiss into a motion for summary judgment when it considers matters outside the pleadings.
    We also disagree with plaintiff's assertion that he was unable to react to the trial court's consideration of documents from the 1992 litigation, including the 1995 judgment. Plaintiff had sufficient notice of the res judicata and collateral estoppel defenses because they appeared in defendants' answer and counterclaim. Furthermore, defendants specifically mentioned the 1995 judgment in explaining why the court had already litigated andresolved the issues in plaintiff's complaint. Under these circumstances, plaintiff cannot claim any unfair surprise. We overrule this assignment of error.
    In his other assignment of error, plaintiff suggests that the trial court erred in determining that res judicata or collateral estoppel barred plaintiff's claims in this action.
    At the outset, we acknowledge that res judicata and collateral estoppel are two separate doctrines. Our Supreme Court has explained:
        Whereas res judicata estops a party or its privy from bringing a subsequent action based on the “same claim” as that litigated in an earlier action, collateral estoppel precludes the subsequent adjudication of a previously determined issue, even if the subsequent action is based on an entirely different claim.

Whitacre P'ship v. Biosignia, Inc., 358 N.C. 1, 15, 591 S.E.2d 870, 880 (2004). In its order dismissing plaintiff's claim, the trial court cited both res judicata and collateral estoppel as reasons for its decision. We believe that collateral estoppel provides the proper analytical framework since it precludes the subsequent adjudication of previously determined issues.
    Under the doctrine of collateral estoppel, “a final judgment on the merits prevents relitigation of issues actually litigated and necessary to the outcome of the prior action in a later suit involving a different cause of action between the parties or their privies.” Thomas M. McInnis & Assoc., Inc. v. Hall, 318 N.C. 421,428, 349 S.E.2d 552, 557 (1986). For collateral estoppel to apply, defendants must show that
        (1) the earlier action resulted in a final judgment on the merits, (2) the issue in question is identical to an issue actually litigated in the earlier suit, (3) the judgment on the earlier issue was necessary to that case and (4) both parties are either identical to or in privity with a party or the parties from the prior suit.

Bee Tree Missionary Baptist Church v. McNeil, 153 N.C. App. 797, 799, 570 S.E.2d 781, 783 (2002). To meet this burden, defendants must show, with clarity and certainty, what the prior judgment determined. Burgess v. First Union Nat'l Bank of N.C., 150 N.C. App. 67, 75, 563 S.E.2d 14, 20 (2002).
    The trial court properly concluded that defendants established all the elements of collateral estoppel. In this appeal, plaintiff only takes issue with the second element. However, we believe that the issues in the present case, enjoining the construction of a roadway easement and determining the scope of the easement, were actually litigated in the first case.
    The 1995 judgment mentions that Brian and John Taylor obtained a survey which illustrates and describes the precise location of the 60 foot roadway easement. This determination is significant because it shows the size (60 feet), location (where the easement will run with regard to the landowners' property), and type of easement (roadway). Most importantly, the 1995 judgment rejected plaintiff's request to cease all trespasses by defendants. Therefore, in the present case, plaintiff could not enjoin theconstruction of a roadway easement because the earlier case already determined that the agreement called for the construction of a roadway easement. Likewise, plaintiff's attempt to determine the scope of the easement in the present case cannot go forward because that issue was already litigated in the first case.
    We conclude that the trial court correctly determined that collateral estoppel bars plaintiff's claims in the present case. Therefore, the trial court's order dismissing plaintiff's claims is
    Affirmed.
    Judges ELMORE and LEVINSON concur.
    Report per Rule 30(e).     

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