Lowder v. Lowder , 68 N.C. App. 505 ( 1984 )

315 S.E.2d 520 (1984)

W.H. LOWDER
v.
Malcolm M. LOWDER, Patty S. Lowder, Brown, Brown & Brown, a Partnership, and Moore & Van Allen, a Partnership.

No. 8320SC818.

Court of Appeals of North Carolina.

May 15, 1984.

DeLaney, Millette, DeArmon, & McKnight, P.A. by Ernest S. DeLaney, Charlotte, for plaintiff.

Moore, Van Allen & Allen by Randel E. Phillips, Charlotte, for defendants Malcolm M. Lowder and Patty S. Lowder.

Bailey, Brackett & Brackett, P.A. by Martin L. Brackett, Jr., Charlotte, for defendant Brown, Brown and Brown.

Golding, Crews, Meekins, Gordon & Gray by James P. Crews, Charlotte, for defendant Moore & Van Allen.

WELLS, Judge.

The sole issue raised by this appeal is whether the trial court properly dismissed plaintiff's complaint. The motions to dismiss were made pursuant to N.C.Gen. Stat. § 1A-1, Rule 12(b)(6) of the Rules of Civil Procedure. It is apparent from the wording of the order of dismissal that the trial court considered the record of proceedings in Lowder, et al. v. All Star Mills, Inc., et al, No. 79CVS015, supra. Pursuant to the provisions of Rule 12(b)(6), defendants' motions were thus converted to Rule 56 motions for summary judgment. See Smith v. Insurance Co., 43 N.C.App. 269, 258 S.E.2d 864 (1979) and cases and authorities cited therein. Accordingly, we treat the trial court's order as constituting entry of summary judgment for defendants. Summary judgment is proper when it appears that even if the facts as claimed by plaintiff are taken as true, there can be no recovery. Doggett v. Welborn, 18 N.C. App. 105, 196 S.E.2d 36, cert. denied, 283 N.C. 665, 197 S.E.2d 873 (1973).

The question of whether Brown, Brown and Brown divulged confidential information to the other parties was litigated and decided against Horace by this court in Lowder v. Mills, Inc., 60 N.C.App. 275, 300 S.E.2d 230, aff'd in part, rev'd in part, 309 N.C. 695, 309 S.E.2d 193 (1983). In that action Horace attempted to have the Brown firm and the Moore and Van Allen firm disqualified from representing the Lowders based upon these same allegations. The trial court refused to disqualify the attorneys. That order was affirmed by this court. Plaintiff is estopped to relitigate this issue. See King v. Grindstaff 284 N.C. 348, 200 S.E.2d 799 (1973).

For the reasons stated, we hold that the trial court properly entered summary judgment for defendants.

Affirmed.

BECTON and JOHNSON, JJ., concur.