Scarvey v First Federal Savings & Loan, 163 NC App 205 (03-354) 03/02/2004

Appeal by plaintiff and intervenors from orders entered 22 August 2002 and 8 November 2002 by Judge Ben F. Tennille in Mecklenburg County Superior Court. Heard in the Court of Appeals 14 January 2004.

Handler & Brown, by B. Ervin Brown II; Moore & Brown, by Beverly C. Moore, Jr.; Bennett & Bennett, by Richard Bennett and Lisa Bennett, for plaintiff-appellants.

Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Mack Sperling and Jessica M. Marlies for defendant-appellee.

    HUNTER, Judge.

    Charlotte T. and Charles E. Curry (“the Currys”) appeal from orders dated (1) 22 August 2002, denying the Currys' motion tointervene with respect to their class action claims on grounds of collateral estoppel; (2) 8 November 2002, denying a motion to sever the Currys' class action claims for an immediate appeal; and (3) 15 September 1995 denying the Currys' class action certification in a separate case. Because the appeal of the 15 September 1995 order is not before us and because we are bound by this Court's prior ruling in this case on the collateral estoppel issue, we affirm.
    The procedural history behind this action as developed in two previous appeals is as follows. On 10 December 1993, the Currys filed suit for breach of contract, breach of fiduciary duty, and unfair and deceptive trade practices. On 6 July 1994, the trial court dismissed both the breach of contract and breach of fiduciary duty claims as time barred. On 14 October 1994, the Currys moved for class action certification. In March 1995, Carol Scarvey (“Scarvey”) moved to intervene, both individually and as a representative of absent class members. On 15 September 1995, the trial court denied the Currys' motion for class certification and Scarvey's motion to intervene. On 7 January 1997, this Court dismissed the appeals from those denials for failure to properly perfect those appeals, and the North Carolina Supreme Court subsequently denied a petition for discretionary review. Curry v. First Federal Savings and Loan Assn., 125 N.C. App. 108, 479 S.E.2d 286, disc. review denied, 346 N.C. 278, 487 S.E.2d 544 (1997). Following that appeal, the Currys took a voluntary dismissal without prejudice of their remaining individual unfair and deceptive trade practices claim, thus ending that case.    The present action was filed by Scarvey on 7 January 1998, in a class action complaint alleging the same claims the Currys had previously brought. On 14 December 1998, the Currys moved to intervene, both individually and as class representatives. On 23 February 2000, the trial court (1) dismissed Scarvey's individual claims as time barred, (2) denied class action certification as barred by collateral estoppel, and (3) denied the Currys' motion to intervene as moot. On appeal from that order, this Court held: (1) Scarvey's individual claims were not time barred, (2) collateral estoppel was properly applied to the class certification denial, and (3) the trial court should reconsider the Currys' motion to intervene in light of the other two holdings. Scarvey v. First Fed. Savings & Loan Ass'n, 146 N.C. App. 33, 552 S.E.2d 655 (2001). On 25 March 2002, the Currys renewed their motion to intervene on both an individual and class basis. The trial court, on 22 August 2002, granted the Currys' motion to intervene with respect to their individual claims, but denied the motion with respect to the class action claims on res judicata and collateral estoppel grounds.
    The issues are whether: (I) the 15 September 1995 order, in the first case, is appealable in this case, and (II) this Court's prior decision in this case is controlling on the issue of whether the Currys are bound by collateral estoppel as to the class certification ruling.
    Before addressing the issues presented, we note that in Scarvey this Court in our discretion addressed the merits of theappeal despite several appellate rule violations. See Scarvey, 146 N.C. App. at 38, 552 S.E.2d at 658. These violations included the failure of assignments of error to include references to pages in the record, a violation of N.C.R. App. P. 10(c)(1), and the failure of arguments in the brief to include references to assignments of error violating N.C.R. App. P. 28(b)(5). Id. Despite our warning, these same violations occur in the present appeal. In addition, we also note further violations of our appellate rules including: failure to include in the brief a statement of grounds for appellate review in violation of N.C.R. App. P. 28(b)(4); failure to comply with word count and certification rules, in violation of N.C.R. App. P. 28(j); inclusion in the record of orders purportedly entered by the trial court, which fail to show the date they were filed or give any indication that they were even signed by the trial court judge, in violation of N.C.R. App. P. 9(b)(3); and failure to include in the notice of appeal the court to which appeal is being taken, in violation of N.C.R. App. P. 3(d). Although these numerous violations of our appellate rules are more than sufficient to warrant dismissal of this case, in the interest of finally resolving this matter, we elect to invoke Rule 2 of the Rules of Appellate Procedure and address the issues presented.

The Currys first ask this Court to review the merits of the 15 September 1995 order denying class certification in the original action. We, however, decline to do so. The Currys' direct appeal in that action was dismissed because they failed to properlyperfect their appeal. See Curry, 125 N.C. App. at 110-12, 479 S.E.2d at 288-89. They subsequently voluntarily dismissed their remaining claim, thus ending that action. “Under North Carolina law, it is clear that a voluntary dismissal terminates a case and precludes the possibility of an appeal.” Dodd v. Steele, 114 N.C. App. 632, 636, 442 S.E.2d 363, 366 (1994). Furthermore, the 15 September 1995 order was entered in an entirely different case, which is no longer before this Court. In other words, the failure in the original case to properly perfect an appeal and the subsequent voluntary dismissal of that case precludes further appellate review of the 15 September 1995 order.

II.

    The Currys also contend that they should not be bound by collateral estoppel from seeking class action certification. This Court addressed this issue in the prior appeal of this case, concluding that Scarvey was bound by collateral estoppel. See Scarvey, 146 N.C. App. at 40, 552 S.E.2d at 659. Our decision in that appeal is binding as the law of the case in this appeal, and the Currys are also collaterally estopped from again seeking to obtain class action certification. See Sloan v. Miller Building Corp., 128 N.C. App. 37, 41, 493 S.E.2d 460, 463 (1997).
    The Currys nevertheless argue that there are outstanding collateral estoppel issues to be decided in this case based on dicta in Scarvey, in which we stated “having affirmed the trial court's holding of collateral estoppel on the issue of class certification . . . , we have not had to address whether thetolling of statutes of limitations by a class action lawsuit would allow the subsequent filing of a second class action lawsuit.” Scarvey, 146 N.C. App. at 43, 552 S.E.2d at 661. This statement in Scarvey, however, has no bearing on whether collateral estoppel applies in the present case. Instead, after holding that statutes of limitation on individual claims were tolled through the appeal of a denial of class action certification, we were simply noting that because collateral estoppel applied, it was not necessary to address whether the statutes of limitation were tolled as to class action claims. The controlling language in Curry resolving the collateral estoppel issue in this case states:
            We conclude that appellants have failed to demonstrate a difference in issues between the Currys' claims [in the first action] and Scarvey's claims . . . in the present case. Because that was the sole argument raised by appellants against the trial court's holding of collateral estoppel, we find no error in the trial court's conclusion that Scarvey is collaterally estopped from seeking class certification of her claims[.]

Id. at 40, 552 S.E.2d at 659. Accordingly, the trial court properly denied the motion to intervene with respect to the Currys' class action claims.   (See footnote 1)
    Affirmed.
    Judges McGEE and GEER concur.
    Report per Rule 30(e).

Footnote: 1