Opinion
No. COA12–1168.
2013-03-19
John D. McCALLISTER, Plaintiff, v. Ernie R. LEE, Jospeh Gilbert, Dewey Hudson, Cara Tussey, Defendants.
John D. McCallister, Pro Se. Attorney General Roy Cooper, by Special Deputy Attorney General David J. Adinolfi, II, for defendants Ernie R. Lee and Dewey Hudson.
Appeal by plaintiff from order entered 19 July 2012 by Judge Jack W. Jenkins in Onslow County Superior Court. Heard in the Court of Appeals 13 February 2013. John D. McCallister, Pro Se. Attorney General Roy Cooper, by Special Deputy Attorney General David J. Adinolfi, II, for defendants Ernie R. Lee and Dewey Hudson.
John Carter for defendant Cara Tussey.
John Ceruzzi for defendant Joseph B. Gilbert.
ELMORE, Judge.
On 4 May 2012, John D. McCallister (plaintiff) initiated this pro se action against (1) Joseph B. Gilbert, plaintiff's alleged former counsel, (2) Cara Tussey, records division clerk for the Jacksonville Police Department, (3) Ernie R. Lee, Onslow County Assistant District Attorney, (4) and Dewey Hudson, former Onslow County District Attorney (collectively defendants). On 20 July 2012, the trial court dismissed the action with prejudice as to all defendants. Plaintiff now appeals. After careful review, we affirm.
I. Background
Plaintiff was convicted in Onslow County Superior Court of the offenses of felony larceny on 7 December 1990, the sale or delivery of cocaine on 2 February 1992, and possession of stolen property on 19 November 1998. On 16 November 2004, approximately six years after his conviction for possession of stolen property, Onslow County obtained a “superseding” ancillary indictment, alleging that plaintiff was guilty of attaining habitual felon status based, in part, on his possession of stolen properly conviction.
While we do not have copies of the original pleadings, the record indicates that plaintiff brought suit against defendants on 19 November 2009 in case number 09 CVS 4995. This action was dismissed with prejudice pursuant to Rules 12(b)(1) and 12(b)(6) of the North Carolina Rules of Civil Procedure. This Court denied plaintiff's petition for writ of certiorari on 18 August 2010.
Thereafter, on 4 May 2012, plaintiff filed a subsequent lawsuit in case number 12 CVS 1694 against defendants, alleging that defendants engaged in a conspiracy by (1) concealing evidence that presumably would exonerate him, and/or (2) tampering with evidence, including altering his warrants and criminal record relating to his possession of stolen property conviction. Plaintiff prayed the trial court for a preliminary and permanent injunction, the removal of habitual felon status from his record, a public apology, and compensatory damages in the amount of $250,000.00 per named defendant.
On 20 July 2012, the trial court dismissed the action with prejudice pursuant to Rules 12(b)(1), 12(b)(2), 12(b)(5), and 12(b)(6) on the grounds of lack of subject matter jurisdiction, lack of personal jurisdiction, insufficient service of process, and failure to state a claim on which relief could be granted based on absolute immunity and res judicata. The trial court found as fact that the claims were identical to those already made, and dismissed, in case number 09 CVS 4995. In addition, the trial court granted defendant Joseph B. Gilbert's motion for sanctions. Accordingly, the trial court enjoined plaintiff from filing any document with any Clerk of Superior Court against any of the defendants or employees of the government without first obtaining an affidavit signed by a licensed North Carolina attorney certifying its merits. Plaintiff now appeals.
II. Res Judicata.
Plaintiff asserts that the trial court erred in granting defendants' motions to dismiss on the basis of res judicata. We disagree.
“This Court must conduct a de novo review of the pleadings to determine their legal sufficiency and to determine whether the trial court's ruling on the motion to dismiss was correct.” Leary v. N.C. Forest Prods., Inc., 157 N.C.App. 396, 400, 580 S.E.2d 1, 4, (2003), aff'd per curiam,357 N.C. 567, 597 S.E.2d 673 (2003). Under the doctrine of res judicata
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.
Thomas M. McInnis & Associates, Inc. v. Hall, 318 N.C. 421, 428, 349 S.E.2d 552, 556 (1986) (citation omitted). Furthermore, this Court has held that “[a] dismissal taken with prejudice indicates a disposition on the merits which precludes subsequent litigation to the same extent as if the action had been prosecuted to a final adjudication.” Riviere v. Riviere, 134 N.C.App. 302, 306, 517 S.E.2d 673, 676 (1999) (quotation omitted).
Here, the trial court's order dismissing with prejudice plaintiff's claim in case number 09 CVS 4995 was a final judgment on the merits. Because the present suit is between the same parties and raises issues “identical to those already made, and dismissed,” res judicata bars plaintiff's action. Accordingly, we affirm the trial court's dismissal and decline to address the remaining issues on appeal.
Affirmed. Judges BRYANT and ERVIN concur.
Report per Rule 30(e).