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Beck v. City of Durham12/3/2002
ntiff's "complaint must admit of no motive for interference other than malice." Filmar Racing, Inc. v. Stewart, 141 N.C. App. 668, 674, 541 S.E.2d 733, 738 (2001). With respect to both claims in plaintiff's complaint, he alleged that Ewell's comment to one of plaintiff's clients that she "could do better" than hiring plaintiff induced that client to terminate her contract with plaintiff. However, this allegation simply expresses Ewell's subjective view regarding plaintiff's abilities and does not express the malicious motive required by these torts. Therefore, the court did not err in granting summary judgment on these claims against Ewell.
IV.
The final issue presented to this Court is whether the trial court erred in granting summary judgment because there were no genuine issues of material fact by which to allow plaintiff's claim against the City for violation of his rights to due process and equal protection as enforced by Title 42, Section 1983 of the United States Code ("Section 1983") and Article I, Section 19 of the North Carolina Constitution to go forward. Specifically, plaintiff contends he has been denied due process and equal protection of the law because the City asserted governmental immunity in his case in an effort not to pay damages for his claims, while customarily waiving it for similarly situated individuals. The City contends that this claim is barred by res judicata because the middle district court previously dismissed plaintiff's federal claim based on Section 1983.
The doctrine of res judicata was developed by the Courts "for the dual purposes of protecting litigants from the burden of relitigating previously decided matters and promoting judicial economy by preventing needless litigation." Bockweg v. Anderson, 333 N.C. 486, 491, 428 S.E.2d 157, 161 (1993). "Res judicata precludes a second suit involving the same claim between the same parties or those in privity with them when there has been a final judgment on the merits in a prior action in a court of competent jurisdiction." Little v. Hamel, 134 N.C. App. 485, 487, 517 S.E.2d 901, 902 (1999). "The defense of res judicata may not be avoided by shifting legal theories or asserting a new or different ground for relief." Rodgers Builders v. McQueen, 76 N.C. App. 16, 30, 331 S.E.2d 726, 735 (1985).
Although plaintiff's prior and current due process and equal protection claims were brought under Section 1983 and against the same party, these claims were based on different factual and legal issues. The prior claim related to plaintiff's continued employment and job reassignment with the DPD, which required the court to consider the facts and circumstances prior to plaintiff's retirement. The current claim related to the City's actions with respect to plaintiff's tort claims filed after his retirement and whether those claims were treated any differently by the City from claims raised by similarly situated individuals. Thus, plaintiff's current claim under Section 1983 is not barred by res judicata. Nevertheless, we conclude the trial court did not err in granting summary judgment on plaintiff's claim for violation of his rights to due process and equal protection. Plaintiff made the following allegations with respect to this claim against the City:
86. The City's custom and practice of paying damages in some tort claims asserted against it, while refusing to pay damages to Plaintiff Beck, is unconstitutional, as it denies Plaintiff Beck's right to due process and equal protection under Article I, Section 19 of the North Carolina Constitution.
87. Plaintiff Beck has been damaged by the denial of his constitutional rights by the City, and he is entitled to compensation f
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