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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.

NO. COA07-1138


Filed: 3 June 2008

KAREN SHEHAN, as Administratrix


Gaston County

No. 06 CVS 2836
in his capacity as Gaston
County Chief of Police,
JASON CARY MAY, in his capacity
as an officer of the Gaston
County Police Department, and
JOSEPH BRADSHAW, individually,


Appeal by defendants from order entered 30 April 2007 by Judge
Beverly T. Beal in Gaston County Superior Court. Heard in the
Court of Appeals 20 February 2008.

Campbell & Associates, LLP, by Payton D. Hoover, for

Stott, Hollowell, Palmer & Windham, LLP, by Martha Raymond
Thompson and Aaron C. Low, for defendants.

ELMORE, Judge.

Gaston County, Gaston County Chief of Police Bill Farley, and
Jason Cary May (collectively, defendants) appeal an order denying
their motion for judgment on the pleadings on the issue of
collateral estoppel. For the reasons stated below, we affirm the
order of the trial court. Karen Shehan, as administratrix for the Estate of Kenneth
James Bishop (plaintiff), sued defendants and Joseph Bradshaw for
wrongful death. Bradshaw is not a party to this appeal.
Plaintiff’s complaint and amended complaints allege the following
facts: During the early hours of 9 June 2005, Mr. Bishop was
walking on an unpaved right-of-way portion of N.C. 279, near
Cherryville in Gaston County. Bradshaw confronted Mr. Bishop and,
after arguing with him, struck him on the head with a blunt
instrument. Bradshaw left Mr. Bishop, now suffering from a severe
head injury, in the northbound lane of N.C. 279. A couple in a
passing car discovered Mr. Bishop lying in the road and called 911.
The driver “angled his car in the center turn lane of N.C. 279,
with his lights on, to aid responding emergency vehicles in
locating Mr. Bishop.” Defendant May, a Gaston County Police
Officer, was traveling northbound on N.C. 279 and responded to the
911 call. At the time, defendant May was acting in his official
capacity as a Gaston County police officer and employee of
defendant Gaston County Police Department.
When defendant May reached the stretch of N.C. 279 where Mr.
Bishop was lying, defendant May ran over Mr. Bishop’s body with his
patrol car and dragged the body more than ten feet. Plaintiff
alleged that she has located a person who is reasonably expected to
qualify as an expert witness who will testify that Mr. Bishop was
alive when defendant May ran over him. This testimony would be
based on a review of defendant Gaston County’s “Report of
Investigation by the Medical Examiner,” “Accident Report,” “911Dispatch Tapes,” and “Autopsy Report.” In their brief, defendants
deny that Mr. Bishop was killed when defendant May ran over him.
On 7 October 2005, Bradshaw entered an Alford plea in which he
entered a plea of guilty to voluntary manslaughter for his part in
the death of Mr. Bishop. Pursuant to the Alford plea, Bradshaw did
not admit guilt, but instead acknowledged that it was in his best
interest to plead guilty and that he understood that he would be
treated as being guilty whether or not he admitted that he was in
fact guilty.
Plaintiff alleged in her complaint that “the negligence of
Joseph Bradshaw was concurrent with the negligence of Defendants
Gaston County, the Gaston County Police Department and Gaston
County Police Officer Jason May . . . in proximately causing the
death of Kenneth Bishop and the injuries to the plaintiff.”
(Emphasis added). Defendants filed an amended answer on 19
February 2007 in which they asserted as a defense that Bradshaw’s
actions and omissions “constitute superceding, intervening,
insulating actions and omissions, and further rise to the standard
of gross negligence, intentional or willful actions and/or criminal
acts; all of which bar any purported claims against these answering
Defendants also asserted a defense and crossclaim in the 19
February 2007 amended answer that states:
If it be determined that these answering
Defendants were in any way negligent or liable
to the Plaintiff, and that such negligence was
the proximate cause of the Plaintiff’s
damages, if any, or that these Defendants were
otherwise in any way liable to the Plaintiff,all of which has been and is once again
denied, then it is alleged that Defendant
Bradshaw was negligent as alleged above and
otherwise, and these Defendants / [sic] allege
that such negligence was primary and active
and was the proximate cause of the Plaintiff’s
damages, if any, and these Defendants’
negligence, if any, was secondary and passive
and that by reason of the matters herein
stated, these Defendants are entitled to be
indemnified by Defendant Bradshaw with respect
to any judgment, award, cost, expenses, or
attorneys fees the Plaintiff or any other
party may recover of these Defendants in this

The Assistant Clerk of Superior Court in Gaston County entered
default against Bradshaw as to the crossclaim on 16 April 2007.
On 20 March 2007, defendants filed a motion for judgment on
the pleadings and dismissal of plaintiff’s complaint, pursuant to
N.C. Gen. Stat. § 1A-1, Rule 12(c), “on the grounds of collateral
estoppel, sovereign immunity, public official immunity, and other
forms of governmental immunity.” On 30 April 2007, the trial court
denied defendant’s Rule 12(c) motion as to the issue of collateral
estoppel. The court noted that “counsel for the moving defendants
orally announced that the other grounds for 12(c) were not being
presented at this time, and are therefore not considered or ruled
upon at this time . . . .” The court issued the order “after
reviewing the pleadings in the Court file, along with 05 CRS 60553,
the criminal file referenced in the Amended Answer of the moving
defendants, and after hearing arguments of counsel for the moving
defendants and for plaintiff.”
Defendants now appeal the trial court’s 30 April 2007 order
denying their motion for judgment on the pleadings. They arguethat no genuine issue of material fact exists as to collateral
estoppel, and therefore they are entitled to judgment on the
pleadings as a matter of law.
We review de novo the trial court’s denial of a 12(c) motion
for judgment on the pleadings. Carpenter v. Carpenter, ___ N.C.
App. ___, ___, 659 S.E.2d 762, ___(2008) (citations omitted)
Judgment on the pleadings, pursuant to Rule
12(c), is appropriate when all the material
allegations of fact are admitted in the
pleadings and only questions of law remain.
Judgments on the pleadings are disfavored in
law, and the trial court must view the facts
and permissible inferences in the light most
favorable to the non-moving party.

Id. at ___, 659 S.E.2d at ___ (citations and quotations omitted).
“[C]ollateral estoppel precludes the subsequent adjudication
of a previously determined issue, even if the subsequent action is
based on an entirely different claim.” Gregory v. Penland, 179
N.C. App. 505, 513, 634 S.E.2d 625, 631 (2006) (quoting Whitacre
P’ship v. Biosignia, Inc.
, 358 N.C. 1, 15, 591 S.E.2d 870, 880
For defendant[s] “to assert a plea of
collateral estoppel under North Carolina law
as traditionally applied, [defendants] would
need to show that [1] the earlier suit
resulted in a final judgment on the merits,
[2] that the issue in question was identical
to an issue actually litigated and necessary
to the judgment, and [3] that both
[defendants] and [plaintiff] were either
parties to the earlier suit or were in privity
with parties.” Thomas M. McInnis & Assocs.,
Inc. v. Hall
, 318 N.C. 421, 429, 349 S.E.2d
552, 557 (1986). The Court in Hall, however,
went on to abandon the third requirement,
commonly called “mutuality,” when collateral
estoppel is being used “against a party who
has previously had a full and fair opportunityto litigate a matter and now seeks to reopen
the identical issues with a new adversary.”
Id. at 434, 349 S.E.2d at 560 . . . .

Gregory, 179 N.C. App. at 513-14, 634 S.E.2d at 631.
Here, defendants are using collateral estoppel defensively,
which eliminates the “privity” or “mutuality” requirement.
“Defensive use of collateral estoppel means that a stranger to the
judgment, ordinarily the defendant in the second action, relies
upon a former judgment as conclusively establishing in his favor an
issue which he must prove as an element of his defense.” Mays v.
, 169 N.C. App. 239, 241, 609 S.E.2d 453, 455 (2005)
(citation and quotations omitted). In this case, both defendants
and plaintiff are strangers to the original judgment, Bradshaw’s
voluntary manslaughter conviction based on his Alford plea. The
only parties to Bradshaw’s judgment were Bradshaw and the State.
Plaintiff had no opportunity to litigate the issue of proximate
cause during Bradshaw’s plea hearing. Even if Bradshaw had
proceeded to trial, plaintiff would not have had a “full and fair
opportunity to litigate the matter.”
Defendants rely on Mays to support their defensive use of
collateral estoppel against plaintiff. The plaintiff in Mays,
Arthur Lee Mays, “engaged in a physical altercation” with a
Taylorsville police officer after a Christmas Parade. Id. at 240,
609 S.E.2d at 454-55. The officer arrested Mays. In 2001, Mays
filed a civil suit against the officer, “the Town of Taylorsville,
and the Taylorsville Police Department alleging battery, false
imprisonment, negligent hiring, and negligent supervision.” Id.,609 S.E.2d at 454. In 2002, Mays was convicted by a jury of
“assaulting a public officer with a deadly weapon and simple
assault . . . .” Id., 609 S.E.2d at 455. In 2003, the defendants
moved for summary judgment on the basis of collateral estoppel, and
the trial court granted their motion. Id. Mays appealed to this
Court, and we affirmed the trial court’s order, explaining that
“evidence of a prior criminal conviction is admittable in a civil
suit to support a defensive use of collateral estoppel.” Id. at
242, 609 S.E.2d at 456 (citation omitted).
Mays is easily distinguished from the case at hand: Mays had
a full and fair opportunity to litigate the elements of his crimes
during his criminal jury trial. He was the plaintiff in the civil
trial, and his criminal convictions for assaulting a police officer
with a deadly weapon and simple assault established certain
elements that were also elements in his civil case. Here,
plaintiff was not a party to Bradshaw’s criminal proceeding and had
no ability to intercede and litigate the issue of causation.

(See footnote 1)

Moreover, plaintiff alleged concurrent negligence in her complaint.
Even if she had received a full and fair opportunity to litigate
the issue of whether Bradshaw proximately caused Mr. Bishop’s
death, she still would not have had a full and fair opportunity to
litigate defendants’ role in Mr. Bishop’s death; Bradshaw’s
negligence does not preclude defendants’ negligence. Accordingly, defendants could not meet the requirements of
collateral estoppel as a matter of law and the trial court properly
determined that a judgment on the pleadings was not appropriate.
We affirm the order of the trial court.
Judges MCCULLOUGH and ARROWOOD concur.

Footnote: 1

That Bradshaw entered an Alford plea rather than
undergoing a trial or entering a traditional guilty plea poses an
additional issue, but one that we need not reach in this case.

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