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Civil Practice — Res Judicata – Separate Wrongs – Real Property – Unsuitable Lot

Sanderford v. Duplin Land Development, Inc. (Lawyers Weekly No. 011-260-16, 10 pp.) (Rick Elmore, J.) Appealed from New Hanover County Superior Court (Jay Hockenbury, J.) N.C. App.

Holding: Plaintiff lost a prior federal-court action in which he sought specific performance of a contract addendum requiring defendant to give plaintiff timely notice of a report regarding levels of fecal coliform. This state-court action is not barred by res judicata since plaintiff alleges a separate wrong: defendant’s breach of a fiduciary duty to disclose that the lot was unsuitable for a single-family residence.

We dismiss defendant’s appeal of the trial court’s denial of its motion for summary judgment.

Where a plaintiff has suffered multiple wrongs at the hands of a defendant, a plaintiff may normally bring successive actions, or, at his option, may join several claims together in one lawsuit.

The federal district court held that defendant provided plaintiff with timely notice of a confirmatory report indicating acceptable levels of fecal coliform, foreclosing plaintiff’s claim for specific enforcement of the remedies in Addendum B. Moreover, the court found that although defendant used a different company to take samples of the soil, defendant did not breach its contract in light of the contract-designated Clark Group’s oversight of the process. The court also determined that defendant did not misrepresent that it received a confirmatory report. Lastly, it concluded that Addendum B to the purchase agreement was an unenforceable contract.

In the instant action, plaintiff alleges a breach of fiduciary duty based on defendant’s failure, through its agent Mac Rogerson, who plaintiff claimed was also his realtor and “stood in a fiduciary relationship” to plaintiff, “to disclose all material facts known to [d]efendant regarding the Lot.” Plaintiff alleged that defendant “failed to meet its obligations by not disclosing the Buried Unsuitable Materials….” Additionally, plaintiff claimed that a “Soil Bearing Test uncovered buried organic material beginning approximately three feet below the surface” indicating that “the Lot is unsuitable for construction.” Moreover, “[t]he Unsuitable Buried Material is approximately eighteen (18) to twenty four (24) inches thick across the Lot,” and “[u]pon information and belief, … [d]efendant[ ] covered the Unsuitable Buried Material with fill dirt, in order to cover and obscure” it, rather than remove it.

In the federal action, there was not a final judgment on the merits on the current claim of breach of fiduciary duty based on the alleged unsuitable buried material affecting the suitability of the lot for construction. Moreover, the current claim is not a material and relevant matter within the scope of the pleadings of the federal suit, which focused solely on Addendum B.

Plaintiff is seeking a remedy for a separate and distinct negligent act leading to a separate and distinct injury. Therefore, plaintiff’s claim is not barred by res judicata.

Appeal dismissed.

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