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Brower v. Killens6/18/1996
statute because officer must have probable cause to arrest), aff'd, 599 F.2d 1048 (4th Cir. 1979). Put simply, the quantum of proof necessary to establish probable cause to arrest in criminal driving while impaired cases and civil license revocation proceedings, notwithstanding the different burdens on the remaining elements, is virtually identical. Therefore, we can discern no rational reason to allow DMV to relitigate the probable cause determination from case I.
Accordingly, we affirm the trial court's order collaterally estopping DMV from relitigating whether or not Trooper Mendenhall had probable cause to arrest Brower.
II.
Finally, DMV contends the trial court's order is invalid because it does not contain a judgment.
It is well settled that when, as here, the contested order is "defective because it did not contain [an appropriate judgment] . . . the remedy to correct this deficiency . . . is not a new trial, but rather a remand for entry of a proper judgment." Pitts v. Broyhill, 88 N.C. App. 651, 658, 364 S.E.2d 738, 743 (1988). See also N.C. Gen. Stat. § 1A-1, Rule 52(a)(1) (1990) ("In all actions tried upon the facts without a jury . . . the court shall find the facts specially and state separately its Conclusions of law thereon and direct the entry of the appropriate judgment.") (emphasis added).
Accordingly, under Pitts, we remand this case to the trial court for entry of an order consistent with this opinion which satisfies the strictures of N.C.R. Civ. P. 52(a)(1).
Affirmed and remanded.
Judges GREENE and JOHN concur.
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