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Civil Practice  –  Interlocutory Appeals – Summary Judgment Denial – Res Judicata

Defendant unsuccessfully moved for summary judgment on the basis of res judicata. Since there is no risk of inconsistent verdicts, defendant is not entitled to an immediate appeal.

Appeal dismissed.

This case is easily distinguishable from cases holding that the denial of a motion for summary judgment on the basis of res judicata raises a substantial right so as to permit immediate appellate review.

First, the posture of this case is unique in that the complaint in the present action was filed prior to plaintiff’s district-court action that defendant now claims precludes recovery.

Second, the district court case, which sought only a no-contact order under G.S. Chapter 50C based on factual allegations similar to those made in the present case, was dismissed for plaintiff’s failure to prosecute. Thus, there was no determination of the underlying issues that would raise the potential for an inconsistent verdict. Additionally, the issues to be decided in a Chapter 50C action for a no-contact order are substantially narrower than those to be determined in the present action.

As a result, res judicata does not raise a substantial right in this case so as to permit an immediate appeal of the trial court’s denial of defendant’s motion for summary judgment.


Brown v. Thompson (Lawyers Weekly No. 011-045-19, 8 pp.) (John Arrowood, J.) Appealed from Wake County Superior Court (Vince Rozier, J.) No brief filed for plaintiff; Dhamian Blue for defendant. N.C. App.

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