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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA06-1143

NORTH CAROLINA COURT OF APPEALS

Filed: 03 July 2007

JEFFREY FRANZ and
KRISTIANE FRANZ,
    Plaintiffs,

v .                         Mecklenburg County
                            No. 04 CvS 17501
TRIBECK, INC., d/b/a
LAKE NORMAN PAINT & BODY
SHOP; and HARLEY TRITT,
    Defendants.

    Appeal by plaintiffs from order entered 30 March 2006 by Judge Jesse B. Caldwell, III in Mecklenburg County Superior Court. Heard in the Court of Appeals 22 March 2007.

    Law Office of J. Neal Rodgers, PLLC, by J. Neal Rodgers, for plaintiffs-appellants.

    Knox, Brotherton, Knox & Godfrey, by Lisa G. Godfrey and Frances S. Knox, for defendants-appellees.

    STEELMAN, Judge.

    Plaintiffs' claims under N.C. Gen. Stat. § 20-354 et seq., and for unfair and deceptive trade practices were not barred by the affirmative defenses of res judicata and collateral estoppel where the causes of action were not the same and there was not an identity of issues.

Factual Background
    On 29 April 2003, Jeffrey and Kristiane Franz (“plaintiffs”) were the owners of a 2003 Volkswagen Jetta vehicle that was damaged in a collision. The other vehicle involved in the collision wasoperated by Daryl Gary Queen (“Queen”). Plaintiffs had their vehicle repaired by Tribek, Inc., d/b/a Lake Norman Paint & Body Shop, which was managed by Harley Tritt (“defendants”). Defendants' estimate to repair the vehicle was $8,396.03. Repairs were made to plaintiffs' vehicle, and defendants were paid the amount of the estimate by Queen's insurance carrier. Plaintiffs picked up the vehicle from defendants on 28 July 2003. On 27 August 2003, plaintiffs submitted the vehicle to Collision Consulting for an appraisal of the diminution of value of the vehicle as a result of it being involved in the collision. Collision Consulting determined that the value had been diminished by $6,009.00, of which $4,986.00 was due to the collision and $1,023.00 was due to faulty repairs. A dispute ensued between plaintiffs and defendants as to the quality of the repairs made to the vehicle.
    On 21 November 2003, plaintiffs filed a small claim action against Queen in Lincoln County, seeking $4,000.00 in damages due to diminution of value of the vehicle. Mr. Patrick Yurek testified on behalf of plaintiffs as to Collision Consulting's appraisal of the $6,009.00 diminution of value. On 17 December 2003, the magistrate entered judgment in favor of plaintiffs in the amount of $2,900.00. This judgment was paid and satisfied by Queen's insurance carrier.
    On 25 January 2005, plaintiffs filed a complaint against defendants in the Superior Court of Mecklenburg County seeking monetary damages, punitive damages, and attorney's fees based uponbreach of contract, violation of N.C. Gen. Stat. § 20-354 et seq., negligence, gross negligence, and unfair and deceptive trade practices. On 21 February 2006, defendants filed a motion to dismiss pursuant to N.C. R. Civ. P. 12(b)(6), and in the alternative, moved for summary judgment on the grounds of res judicata and collateral estoppel. On 30 March 2006, Judge Caldwell granted defendants' motion for summary judgment dismissing plaintiffs' action, with prejudice. Plaintiffs appeal.
Scope of Appellate Review
    Plaintiffs have made two assignments of error. First, they assert that the trial court erred in granting summary judgment as to their claim under N.C. Gen. Stat. § 20-354 et seq. Second, they assert that the trial court erred in granting summary judgment as to their unfair and deceptive trade practices claim. Plaintiffs have failed to assign error to the trial court's dismissal of their claims for breach of contract, negligence, and gross negligence. Thus, as to these claims, we leave the decision of the trial court undisturbed. N.C. R. App. P. 10(a) (2007).
    While the order of the trial court does not state the legal theory upon which plaintiffs' action was dismissed, all parties have confined their arguments to res judicata and collateral estoppel. We therefore limit our analysis to these two theories which are properly before this Court.
Claim Under North Carolina Motor Vehicle Repair Act
    In their first argument, plaintiffs contend that the trial court erred in granting summary judgment in favor of defendants asto their claims pursuant to N.C. Gen. Stat. § 20-354 et seq. (North Carolina Motor Vehicle Repair Act). We agree.
     Summary judgment is proper 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 to a judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2005). The moving party bears the burden of demonstrating the lack of triable issues of fact. Koontz v. City of Winston-Salem, 280 N.C. 513, 518, 186 S.E.2d 897, 901 (1972).
        [U]nder res judicata as traditionally applied, 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. When the plaintiff prevails, his cause of action is said to have “merged” with the judgment; where defendant prevails, the judgment “bars” the plaintiff from further litigation. In either situation, all matters, either fact or law, that were or should have been adjudicated in the prior action are deemed concluded. See Restatement (Second) of Judgments § 18, 19 (1982); 1B Moore's Federal Practice § 405[1] at 181-85 (2d ed. 1984). Under collateral estoppel as traditionally applied, 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. See Restatement (Second) of Judgments § 27 (1982); 1B Moore's Federal Practice § 0.441[1] at 718 (2d ed. 1984).

Thomas M. McInnis & Assoc., Inc. v. Hall, 318 N.C. 421, 428-29, 349 S.E.2d 552, 556-57 (1986). Plaintiffs' complaint in the instant case alleged that defendants:        Made false representations to the plaintiffs that the parts used to repair the plaintiffs' vehicle conformed to the original vehicle manufacturer's established repair procedures or specifications and allowable tolerances for that particular model and year, and performed other acts as set forth herein in violation of NCGS § 20-354.8...

These allegations state a claim under Article 15B of Chapter 20 of the General Statutes, the North Carolina Motor Vehicle Repair Act. This act provides remedies to consumers for certain practices of repairing motor vehicles which the General Assembly found to be misleading, deceptive, fraudulent, or unethical, and required a separate statute to prohibit these practices and provide an appropriate remedy to consumers.
    The small claim action filed by plaintiffs in Lincoln County against Queen sought $4,000.00 in damages arising out of a “motor vehicle collision.” This was a tort action based upon the negligence of Queen.
    For the doctrine of res judicata to be applicable to bar plaintiffs' action under N.C. Gen. Stat. § 20-354 et seq., in the instant case, defendants would need to show that the previous suit resulted in a final judgment on the merits, that the same cause of action was involved, and that both plaintiffs and defendants were either parties or in privity with the parties in the prior Lincoln County small claim action. See McInnis, at 428, 349 S.E.2d at 557.
    It is clear that the actions in the instant case and the Lincoln County small claim action are not the same action. While both involve alleged problems with plaintiffs' vehicle, one was an action in tort based upon negligence, while the other was a claimbased upon a consumer protection statute. Res judicata is thus not applicable to bar this claim against defendants.
    We now turn to collateral estoppel, which is issue preclusion, rather than claim preclusion. For collateral estoppel to bar plaintiffs' action under N.C. Gen. Stat. § 20-354 et seq., in the instant case, defendants would need to show that the earlier suit resulted in a final judgment on the merits, that the issue in question was identical to the issue actually litigated and necessary to the judgment, and that both plaintiffs and defendants were either parties or stand in privity with the parties in the prior Lincoln County small claim action. See id. at 429, 349 S.E.2d at 557.
    Defendants argue that since plaintiffs introduced the appraisal from Collision Consulting into evidence at the Lincoln County small claim hearing, and this included $1,023.00 for diminution in value due to faulty repairs, that the judgment of the magistrate for $2,900.00 must have included the $1,023.00. Since this judgment has been paid, defendants argue that any further claims for the diminution in value to plaintiffs' vehicle are barred.
    Only the diminution in value proximately caused by the negligence of Queen was before the magistrate in Lincoln County. Defendants were never parties to that action. Further, Queen's insurance carrier had paid for the repairs to plaintiffs' vehicle. Therefore, any issue pertaining to the quality of the repairs and the resulting diminution of value of the vehicle was an issue to beresolved between plaintiffs and defendants and not between plaintiffs and Queen. We hold that the issue of diminution of value to plaintiffs' vehicle caused by any alleged faulty repairs by defendants was not before the magistrate in Lincoln County, and that the doctrine of collateral estoppel does not bar plaintiffs' claim under N.C. Gen. Stat. § 20-354 et seq., in the instant action.
    The ruling of the trial court granting summary judgment and dismissing plaintiffs' claims against defendants under N.C. Gen. Stat. § 20-354 et seq., is reversed.
Unfair and Deceptive Trade Acts and Practices Claim
    In their second argument, plaintiffs contend that the trial court erred in granting summary judgment in favor of defendants and dismissing plaintiffs' claim for unfair and deceptive trade practices. We agree.
    Defendants argue that since plaintiffs' underlying claims were properly dismissed under the theories of res judicata and collateral estoppel, their claims for unfair and deceptive trade practices must also fail. We have previously held that these doctrines do not bar plaintiffs' claim under N.C. Gen. Stat. § 20- 354 et seq.
    The conduct alleged under that claim would also be a violation of N.C. Gen. Stat. § 75-1 et seq., which prohibits “[u]nfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce.” N.C. Gen. Stat. § 75-1.1 (2005). N.C. Gen. Stat. § 20-354.9 specificallystates that “this Article does not limit the rights or remedies which are otherwise available to a consumer under any other law.” The ruling of the trial court granting summary judgment and dismissing plaintiffs' claim for unfair and deceptive trade practices is reversed.
    Reversed as to plaintiffs' claims under N.C. Gen. Stat. § 20- 354 et seq., and for unfair and deceptive trade practices. The dismissal of the remainder of plaintiffs' claims by the trial court is left undisturbed by this opinion.
    REVERSED.
    Judges BRYANT and LEVINSON concur.
    Report per Rule 30(e).

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