in the Court of Appeals 16 January 2019.
by defendant from order entered 14 February 2018 by Judge
Vince Rozier in Wake County No. 17 CVS 1256 Superior Court.
Armstrong Law Firm, P.A., by L. Lamar Armstrong, Jr., and L.
Lamar Armstrong, III, for plaintiffs-appellees.
B. Currin, and Lewis & Roberts, PLLC, by Matthew D.
Quinn, for defendant-appellant.
Wardson Construction, Inc. appeals a partial summary judgment
order rejecting some of Wardson's res judicata defenses.
Wardson concedes that this appeal is interlocutory and,
notably, does not assert on appeal that the trial court's
partial rejection of its res judicata defense creates any
actual risk of inconsistent verdicts-meaning a risk that
separate fact-finders reach conflicting results on the same
relying on a handful of decade-old cases, Wardson contends
that the denial of a res judicata defense is immediately
appealable in every case as a matter of law. As explained
below, this argument has been considered and rejected by this
Court many times. As we recently reaffirmed, "invocation
of res judicata does not automatically entitle a party to an
interlocutory appeal of an order rejecting that
defense." Smith v. Polsky, __ N.C.App. __, __,
796 S.E.2d 354, 359 (2017). For clarity, we once again hold
that appellants in interlocutory appeals involving the
defense of res judicata must show that the challenged order
creates a risk of inconsistent verdicts or otherwise affects
a substantial right based on the particular facts of the
case. Because Wardson did not do so here, we dismiss this
appeal for lack of appellate jurisdiction.
and Procedural History
dispute began after Eric Denney claimed that Wardson
Construction and its subcontractor failed to properly install
spray foam insulation during construction of Denney's
home. In 2015, Denney sued Wardson and the subcontractor,
asserting claims for breach of contract, fraudulent or
negligent misrepresentation, and negligence. Defendants later
moved for summary judgment on all claims. In 2016, the trial
court granted partial summary judgment for Defendants,
dismissing the fraud and negligence claims but permitting the
breach of contract claim to proceed. Denney then voluntarily
dismissed the suit.
2017, Denney and his wife filed a new lawsuit, asserting
claims for breach of express warranty, breach of implied
warranty, breach of contract, unfair and deceptive trade
practices, fraud, conversion, and unjust enrichment. Wardson
moved for summary judgment, arguing that all claims in the
new lawsuit, except the breach of contract claim, were barred
by res judicata.
trial court again granted partial summary judgment, ruling
that the fraud, conversion, and unjust enrichment claims were
barred by res judicata, but permitting the remaining claims
to proceed. Wardson timely appealed.
this Court hears appeals only after entry of a final judgment
that leaves nothing further to be done in the trial
court." Crite v. Bussey, 239 N.C.App. 19, 20,
767 S.E.2d 434, 435 (2015). "The reason for this rule is
to prevent fragmentary, premature and unnecessary appeals by
permitting the trial court to bring the case to final
judgment before it is presented to the appellate
courts." Larsen v. Black Diamond French Truffles,
Inc., 241 N.C.App. 74, 76, 772 S.E.2d 93, 95 (2015).
is a statutory exception to this general rule when the
challenged order affects a substantial right. N.C. Gen. Stat.
§ 7A-27(b)(3)(a). To confer appellate jurisdiction in
this circumstance, the appellant must include in its opening
brief, in the statement of the grounds for appellate review,
"sufficient facts and argument to support appellate
review on the ground that ...