Opinion
No. 08-779.
Filed February 17, 2009.
Appeal by defendant from judgment entered 18 April 2008 by Judge A. Leon Stanback, Jr. in Wake County Superior Court. Heard in the Court of Appeals 4 December 2008.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Nancy R. Dunn, for plaintiff-appellee. Smith Moore Leatherwood, LLP, by Mark Anderson Finkelstein and Jason C. Pfister, for defendant-appellant.
Wake County DONo. 07 CVS 20574.
Where plaintiff's previously filed action abated its second action, the trial court erred in failing to dismiss plaintiff's second action.
I. Factual and Procedural Background
Defendant State Properties, LLC, is a North Carolina company doing business in Wake County. In 1997, defendant purchased a piece of real property located in Wake Forest, North Carolina, which was the site of a former Winn-Dixie store. On 19 August1998, the plaintiff, the North Carolina Department of Environment Natural Resources ("DENR"), inspected defendant's property and discovered that an intermittent stream had been obliterated by the former owner of the property. In June of 2003, plaintiff assessed a penalty against defendant pursuant to N.C. Gen. Stat. 143-215.6A, for the violation of North Carolina water quality regulations and laws. On 28 January 2004, the parties entered into a Settlement Agreement resolving the penalty. The Settlement Agreement provided that defendant would pay two monetary penalties in the amounts of $9,719.63 and $5,000.00. The Settlement Agreement outlined a remedial work schedule to be followed by defendant to bring its property into compliance with North Carolina water quality laws, and provided that defendant would pay a penalty of $2,000.00 per day for any missed deadline. On 19 April 2004, plaintiff filed a lawsuit in Wake County Superior Court, seeking an injunction requiring defendant to comply with the conditions of the Settlement Agreement, including the payment of the $9,719.63 and $5,000.00 monetary penalties ("State Properties I"). This case was administratively dismissed without prejudice as to further motions and orders in the case on 18 November 2005 by Judge Rand in Wake County Superior Court. On 24 April 2007, plaintiff filed a motion to set aside the involuntary discontinuance. This motion was granted on 13 June 2008.
On 20 December 2007, plaintiff filed a second complaint in Wake County Superior Court, alleging that defendant failed to comply with the terms of the Settlement Agreement, and seeking stipulated penalties in the amount of $2,000.00 per day for defendant's alleged failure to meet the deadline for completion of remedial work at its property ("State Properties II"). On 15 February 2008, defendant filed a motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the North Carolina Rules of Civil Procedure based on the doctrines of res judicata and abatement. On 18 April 2008, the trial court entered an order denying defendant's motion to dismiss. Defendant appeals.
II. Interlocutory Appeal
We initially note that the appeal of the trial court's denial of defendant's motion to dismiss is interlocutory. See Veazey v. Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950) ("An interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy."). Although generally a party has no right of appeal from an interlocutory order, Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253 (1994), this Court has held that the denial of a motion to dismiss on the ground of a prior action pending is immediately appealable. Gillikin v. Pierce, 98 N.C. App. 484, 486, 391 S.E.2d 198, 199 (1990) (citing Atkins v. Nash, 61 N.C. App. 488, 489, 300 S.E.2d 880, 881 (1983). Thus, immediate review of defendant's appeal is proper.
III. Motion to Dismiss
In its sole argument on appeal, defendant contends that the trial court erred in denying its motion to dismiss State Properties II on the grounds that it is abated by State Properties I. We agree.
Abatement
"The pendency of a prior action between the same parties for the same cause in a State court of competent jurisdiction works an abatement of a subsequent action either in the same court or in another court of the State having like jurisdiction." McDowell v. Blythe Brothers Co., 236 N.C. 396, 398, 72 S.E.2d 860, 862 (1952) (citations omitted). "This is so because the court can dispose of the entire controversy in the prior action and in consequence the subsequent action is wholly unnecessary. By abating the second action, a multiplicity of actions is prevented." Clark v. Craven Regional Medical Authority, 326 N.C. 15, 20, 387 S.E.2d 168, 171 (1990). The second action is abated by the first action on the grounds that the entire controversy can be disposed of by the court in the first action. McDowell at 398, 72 S.E.2d at 862. "[T]he ordinary test for determining whether or not the parties and causes are the same for the purpose of abatement by reason of the pendency of a prior action is whether the two actions present a substantial identity as to parties, subject matter, issues involved, and relief demanded." Weaver v. Early, 325 N.C. 535, 538, 385 S.E.2d 334, 336 (1989).
In the instant case, the parties in State Properties I are identical to the parties in State Properties II. Both State Properties I and State Properties II seek to enforce the 28 January 2004 Settlement Agreement between plaintiff and defendant. In both cases, plaintiff seeks monetary penalties against defendant, and both cases raise the legal issues of whether the Settlement Agreement is enforceable through stipulated penalties and whether the affirmative defenses of impossibility and estoppel bar plaintiff's claims. Although the penalties sought in State Properties I are different than those sought by plaintiff in State Properties II, North Carolina case law makes clear that this difference does not preclude abatement. See Vinson v. O'Berry, 209 N.C. 289, 290, 183 S.E. 424, 424-25 (1936) (holding that plaintiff's seeking damages in the first suit and injunctive relief in a second suit against the same defendant on the same grounds was "not only taking two bites at the cherry, but biting in two places at the same time."); see also Weaver at 538, 385 S.E.2d at 336 (applying the doctrine of abatement "when there is a prior action in which a party could by motion in the cause achieve what he is attempting to achieve in the subsequent action.").
We hold that, because the parties, the subject matter, the causes of action, and the relief requested are substantially identical, the State Properties I action abates the State Properties II action.
REVERSED.
Judges CALABRIA and STROUD concur.
Report per Rule 30(e).