The opinion
Judge Greene
dissenting:
Because I do not agree that the State and Forsyth County DSS are in privity, the principles of res judicata and collateral estoppel do not preclude the State from bringing this action. I would reverse the order of the trial court and remand for trial.
The first action to establish paternity and support was filed by the Forsyth County DSS. The second action to establish paternity and support was filed by the State of North Carolina. At the time the first action was filed, the mother lived in Forsyth County and that county’s Child Support Enforcement Program was administered by the Forsyth County Board of Commissioners. At the time of the second action, the mother lived in Union County and that county’s Child Support Enforcement Program was administered by the North Carolina Department of Human Resources. See N.C.G.S. § 110-141 (1991) (permitting operation by either the State or the County). Although the State and the County were interested in proving that the defendant was the child’s father, the State had no control over the first action filed by the County, and nothing in this record indicates that the interest of the State was represented in the first action. See County of Rutherford v. Whitener, 100 N.C. App. 70, 76 , 394 S.E.2d 263, 266 (1990) (no privity where County administered the Child Support Enforcement Program); State v. Lewis, 311 N.C. 727, 733-34 , 319 S.E.2d 145, 149-50 (1984) (privity where State administered the Child Support Enforcement Program). Accordingly, the State was not in privity with the County, and the doctrines of res judicata and collateral estoppel do not bar the State’s action. This is especially so in this case where the issues of paternity and support were never litigated in the first claim, and it cannot be argued that the State was adequately represented in the prior action. In this instance, to hold otherwise would violate the State’s rights of fundamental fairness and due process.
I am aware that permitting two different Child Support Enforcement agencies, one administered by the State and one administered by a County, to file separate claims to establish paternity could lead to abuses. The mother could be encouraged to move from one jurisdiction to another for the sole purpose of vesting another agency with the right to file a new claim against the same defendant. The solution to that possibility is not, however, to deny parties the right to file good faith claims to establish paternity, which may serve the best interest of the child. Parties who abuse the process are subject to a claim for abuse of process, a tort long recognized by our courts. E.g., Melton v. Rickman, 225 N.C. 700, 703, 36 S.E.2d. 276, 278 (1945).