An unpublished opinion of the North Carolina Court of Appeals does not constitute 

controlling legal authority. Citation is disfavored, but may be permitted in accordance 

with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-1048

NORTH CAROLINA COURT OF APPEALS

Filed: 4 March 2014

TERRY HARRIS and

MICHELLE HARRIS

Plaintiffs,

v. Randolph County

No. 12 CVS 2353

A-1 BUILDERS OF NC., INC.,

Defendant.

Appeal by defendant from order entered 24 April 2013 by 

Judge L. Todd Burke in Randolph County Superior Court. Heard in 

the Court of Appeals 3 February 2014.

Moser, Schmidly, & Roose, by J. Brooke Schmidly and R. 

Anthony Copple, for plaintiffs.

Carruthers & Roth, P.A., by Mark K. York and J. Patrick 

Haywood, for defendant.

ELMORE, Judge.

Defendant appeals from an order entered 24 April 2013

denying its motion for judgment on the pleadings pursuant to 

North Carolina Civil Procedure Rule 12(c). After careful 

consideration, we affirm the trial court’s order.

I. Facts
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On 2 August 2010, A-1 Builders of NC, Inc. (defendant)

through its owner and president David Hazelwood, entered into a 

contract (purchase contract) and New Construction Addendum (the 

addendum) with Michelle A. Harris (Ms. Harris) to build a house 

located at 3882 Hangar Run in Sophia, which Ms. Harris agreed to 

purchase for $197,600.00. Under the “change orders” provision 

of the addendum, the buyer could “order changes in the 

construction of the [h]ouse within the general scope of the 

[p]lans and [s]pecifications, consisting of additions, deletions 

or other revisions, and the purchase price and [c]losing date 

shall be adjusted accordingly.” However, the provision 

specifically required that “[a]ll such changes shall be made 

only by a change order, which shall be in writing and signed by 

both [b]uyer and [s]eller.” The addendum also stated that

[s]eller hereby warrants that, for a period 

of one (1) year from the date of [c]losing 

or the date [b]uyer occupies the [h]ouse, 

whichever comes first, [s]eller will make 

all necessary repairs and corrections to the 

[h]ouse, either interior or exterior, 

structural or nonstructural, that shall 

become necessary by reason of faulty 

construction, labor or materials or nonconformity of construction to the [p]lans 

and [s]pecifications. 

Ms. Harris’ husband, Terry Harris (Mr. Harris), was not a 

party to either the purchase contract or the addendum. After 
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Ms. Harris and defendant executed the contract, but before 

construction of the house, Mr. Harris and Ms. Harris 

(collectively plaintiffs) asked that defendant install hardwood 

stairs in the residence instead of carpeted stairs as originally 

agreed upon. Defendant approved this change, and on 27 

September 2010, Ms. Harris paid defendant $1,120.00 by check to 

complete this upgrade. After defendant commenced construction 

of the residence, Ms. Harris requested that defendant construct 

two brick columns on the driveway’s entrance. Once again, 

defendant acquiesced and was paid $1,010.00 for the cost of the 

columns. On 20 October 2010, defendant signed a Warranty of 

Completion of Construction, which provided that defendant 

“warrants” to buyer, “the property against defects in equipment, 

material, or workmanship and materials supplied or performed by 

[defendant] or any subcontractor or supplier at any tier 

resulting in noncompliance with standards of quality as measured 

by acceptable trade practices.”

Plaintiffs conducted a final inspection of the residence on 

8 November 2010 and found that some of the hardwood stairs were 

cracked. Additionally, plaintiffs noticed that bricks were 

falling off the columns. In response, Mr. Harris filed a pro se

small claims action entitled “complaint for money owed” (the 
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first complaint) in the amount of $2,130.00, which alleged that 

“[h]ardwood steps has [sic] splits [i]n the wood, can’t use” and 

“[b]rick columns – [b]ricks are falling of [sic] the columns[.]” 

After a hearing, the magistrate ruled in favor of plaintiff, and 

defendant filed notice of appeal to Randolph County District 

Court (district court). The case was selected for court ordered 

arbitration, and the arbitrator ruled that “plaintiff is awarded 

nothing from the defendant” and dismissed the action. Mr. 

Harris appealed for a trial de novo in district court, and the 

case was heard before Judge Robert M. Wilkins. Judge Wilkins 

entered an order on 4 January 2012, concluding as a matter of 

law that: 1.) although Mr. Harris was not a party to the 

purchase contract between defendant and Ms. Harris, he was a 

“real party in interest and ha[d] standing to maintain this 

action[;]” and 2.) plaintiff was entitled to $500.00 for the 

cost to replace three cracked stairs.

Plaintiffs filed a separate complaint (the second 

complaint) on 24 September 2012 for breach of the purchase 

contract and addendum; negligent construction and repair; breach 

of express warranty; breach of implied warranty of habitability;

and unfair and deceptive trade practices after numerous 

unsuccessful attempts, both orally and in writing, to get 
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defendant to correct defective work in and around the residence. 

Plaintiffs alleged that they only noticed these additional 

defects after they occupied the residence on 22 November 2010. 

Defendant moved for judgment on the pleadings, arguing that 

plaintiffs’ second complaint was barred by res judicata.

Defendant’s motion was denied in an order entered 24 April 2013 

by Judge Burke. Defendant timely appealed Judge Burke’s order 

to this Court on 2 May 2013.

II. Analysis

a.) Interlocutory Appeal

We first address plaintiffs’ argument that we should 

dismiss defendant’s appeal because the order is interlocutory 

and fails to affect a substantial right. We disagree.

“Generally, there is no right of immediate appeal from 

interlocutory orders and judgments.” Goldston v. Am. Motors 

Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). “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.” Veazey v. City of Durham, 

231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950) (citation omitted). 

Therefore, a trial court’s denial of a motion for judgment on 
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the pleadings is interlocutory and normally not appealable 

because a denial of the motion “does not finally determine the 

rights of the parties[.]” Boyce & Isley, PLLC v. Cooper, 169 

N.C. App. 572, 574, 611 S.E.2d 175, 176 (2005). However, 

immediate appeal of an interlocutory order is available when it 

“affects a substantial right[.]” Sharpe v. Worland, 351 N.C. 

159, 162, 522 S.E.2d 577, 579 (1999). Our Supreme Court has 

noted that “the right to avoid the possibility of two trials on 

the same issues can be such a substantial right.” Bockweg v. 

Anderson, 333 N.C. 486, 490-91, 428 S.E.2d 157, 160 (1993) 

(citation and quotation omitted).

Under the doctrine of res judicata, “a final judgment on 

the merits in one action precludes a second suit based on the 

same cause of action between the same parties or their privies.” 

Williams v. Peabody, ___ N.C. App. ___, ___, 719 S.E.2d 88, 92 

(2011) (citation and quotations omitted). Thus, a motion for 

judgment on the pleadings based on res judicata seeks to prevent 

“a successful defendant, or one in privity with that defendant, 

[from] twice hav[ing] to defend against the same claim by the 

same plaintiff, or one in privity with that plaintiff.” 

Bockweg, 333 N.C. at 491, 428 S.E.2d at 161. An order denying 

such a motion can affect a substantial right because it “could 
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lead to a second trial in frustration of the underlying 

principles of the doctrine of res judicata.” Id. 

Here, defendant’s motion requested that the trial court 

dismiss plaintiffs’ complaint because the claims asserted “were 

or should have been litigated in the previous action[.]” Thus, 

defendant’s motion was based on the defense of res judicata. 

The trial court’s denial of defendant’s motion could result in 

defendant having to litigate the same claims in the second 

complaint that were brought by Mr. Harris in the first 

complaint. Therefore, we conclude the order is immediately 

appealable because it affects a substantial right, and we 

address the merits of defendant’s arguments on appeal. 

b.) Judgment on the Pleadings

Defendant argues that the trial court erred in denying his 

motion for judgment on the pleadings because plaintiffs’ second 

complaint is barred by res judicata. Specifically, defendant 

avers that both complaints were based upon breach of the 

purchase contract and addendum. We disagree. 

We review a trial court’s ruling on a motion for judgment 

on the pleadings under a de novo standard of review. Builders 

Mut. Ins. Co. v. Glascarr Properties, Inc., 202 N.C. App. 323, 

325, 688 S.E.2d 508, 510 (2010) (citation and quotation 
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omitted). “‘Under a de novo review, the court considers the 

matter anew and freely substitutes its own judgment’ for that of 

the lower tribunal.” State v. Williams, 362 N.C. 628, 632-33, 

669 S.E.2d 290, 294 (2008) (quoting In re Greens of Pine Glen,

Ltd. P’ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)); see 

also Craig v. New Hanover Cnty. Bd. of Educ., 363 N.C. 334, 337, 

678 S.E.2d 351, 354 (2009) (“Under a de novo review, the court 

considers the matter anew and freely substitutes its own 

judgment for that of the lower tribunal.”). Judgment on the 

pleadings “is appropriate when all the material allegations of 

fact are admitted in the pleadings and only questions of law 

remain.” Groves v. Community Hous. Corp., 144 N.C.App. 79, 87,

548 S.E.2d 535, 540 (2001) (citation and quotations omitted). 

In ruling on a motion for judgment on the pleadings, we look 

“solely to the pleadings” and “only consider facts properly 

pleaded and documents referred to or attached to the pleadings.” 

Builders Mut. Ins. Co., 202 N.C. App. at 324, 688 S.E.2d at 510 

(citation and quotation omitted). 

Res judicata, also known as claim preclusion, bars the 

“relitigation of all matters . . . that were or should have been 

adjudicated in the prior action.” Whitacre P'ship v. Biosignia,

Inc., 358 N.C. 1, 15, 591 S.E.2d 870, 880 (2004) (citation and 
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quotation omitted). The party seeking to assert res judicata

has the burden of establishing its elements. Bluebird Corp. v.

Aubin, 188 N.C. App. 671, 679, 657 S.E.2d 55, 62 (2008). A 

party must show “(1) a final judgment on the merits in an 

earlier suit, (2) an identity of the causes of action in both 

the earlier and the later suit, and (3) an identity of the 

parties or their privies in the two suits” in order to prevail 

on a theory of res judicata. Herring v. Winston-Salem/Forsyth 

Cnty. Bd. of Educ., 188 N.C. App. 441, 444, 656 S.E.2d 307, 310 

(2008) (citation and quotation omitted).

The dispositive question to this appeal is whether the 

first and second complaints have an identity of the causes of 

action. Subsequent to entrance of the purchase contract and 

addendum, two separate oral arrangements were agreed upon 

between plaintiffs and defendant. Plaintiffs requested that 

instead of installing carpeted stairs in the house as was 

originally discussed, defendant install hardwood stairs. 

Defendant agreed, and Ms. Harris paid defendant $1,120.00. Ms. 

Harris also asked defendant to build two brick columns on the 

driveway and paid defendant $1,010.00 to complete the task. 

Under the addendum, the only way to modify the construction of 

the residence was pursuant to the “change orders” provision of 
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the addendum. However, the construction of the hardwood stairs 

and the columns did not operate as a “change order” because they 

were neither made in writing nor signed by the parties. 

Furthermore, the price of the house under the purchase contract 

did not change, as required by the change order provision, 

despite the additional construction costs. Thus, the terms of 

the purchase contract and addendum were unchanged and remained 

the same as originally contemplated. 

When plaintiffs conducted a final inspection of the 

residence before moving in, they observed that 3 of the 11 

hardwood stairs were cracked. They also noted that the bricks 

were falling off the columns, and the columns were different 

heights. Accordingly, Mr. Harris filed the first complaint for 

money owed in the amount of $2,130.00, which was the total sum 

provided by plaintiffs to defendant for construction of the 

hardwood stairs and the columns. The first complaint merely 

alleged that “[h]ardwood steps has [sic] splits [i]n the wood, 

can’t use” and “[b]rick columns – [b]ricks are falling of [sic] 

the columns[.]” Mr. Harris also specified that “[defendant] was 

paid cash for steps . . . and [b]rick columns [i]n front of 

[h]ouse. The wood has splits in it and the [b]ricks are falling 

off.” Thus, the totality of the circumstances surrounding the 
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first complaint shows that it originated from a separate oral 

agreement arising outside the scope of the purchase contract and 

addendum. 

Unlike the first complaint, the subject matter of the 

second complaint is not money owed for the hardwood steps or 

columns. Rather, the second complaint is based on a statutory 

violation and breach of contract that alleges defendant’s breach 

of the purchase contract and addendum, negligent construction 

and repair, breach of express warranty, breach of implied 

warranty of habitability, and unfair and deceptive trade 

practices. The allegations address defendant’s failure to abide 

by the terms of the contracts by not: 1.) “perform[ing] work on 

the [r]esidence and property in a proper, workmanlike and 

ordinarily skillful manner[;]” 2.) working “in accordance with . 

. . the standards of good workmanship common in the construction 

industry[;]” and 3.) “correct[ing] the defective work performed 

on the [r]esidence[.]” Plaintiffs list over twenty-five 

discovered alleged defects, none of which include faulty 

construction of the hardwood stairs or the columns. While the 

first complaint involved an issue for money owed stemming from 

an agreement made outside the purview of the purchase contract 

and addendum before plaintiffs occupied the residence, the 
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second complaint directly relates to defendant’s breach of the 

purchase contract, addendum, warranties, and industry standards 

after plaintiffs’ occupancy. Thus, the claims in the complaints 

arise from two different causes of action. Accordingly, we rule

that the trial court did not err in denying defendant’s motion 

for judgment on the pleadings because plaintiffs’ second 

complaint is not barred by res judicata. 

III. Conclusion

In sum, the trial court did not err in denying defendant’s 

motion for judgment on the pleadings. Thus, we affirm the trial 

court’s order. 

Affirmed. 

Chief Judge MARTIN and Judge HUNTER, Robert N., concur.

Report per Rule 30(e).