CITICORP TRUST BANK, FSB,
Plaintiff,
Gaston County
v. No. 03 CVS 2756
MARK VAUGHAN, LINDA R.
VAUGHAN, RANDY LEE HAMMITT
and SANDRA MARIE HAMMITT,
Defendants.
No brief
for plaintiff-appellee.
Randy Lee Hammitt and Sandra Marie Hammitt, pro se
defendant-appellants.
MARTIN, Chief Judge.
On 4 August 2003, plaintiff Citicorp Trust Bank, FSB
(“Citicorp”) filed a foreclosure action against the defendants.
Citicorp had acquired a note and deed of trust from defendants Mark
and Linda R. Vaughan. Defendants Randy Lee and Sandra Marie
Hammitt had entered into a contract with the Vaughans to purchase
the property set forth in the deed of trust. Citicorp sought a
declaratory judgment stating that it had an enforceable first deed
of trust lien on the property and was entitled to foreclose,
judicial sale, and monetary relief. On 31 October 2003, Randy Lee Hammitt and Sandra Marie Hammitt
(“defendants Hammitt”)
moved for summary judgment. Appellants
argued that: (1) Citicorp could not maintain the action because it
was an unregistered foreign corporation; (2) that the action was
barred by res judicata; (3) Citicorp was not a holder in due course
with legal title; and (4) there were ethical violations in Kellam
& Pettit, P.A., acting as both advocate and a trustee. On 20
January 2004, the motion was denied.
On 6 August 2004, defendants Hammitt
petitioned this Court for
writ of certiorari. Defendants Hammitt
claimed in their petition
that they did not discover that a written order was entered denying
their motion for summary judgment until 4 August 2004.
They
argued
that the denial of their motion for summary judgment affected a
substantial right and asked this Court to review the
case and
dismiss the action in Superior Court for lack of subject matter
jurisdiction. On 26 August 2004, the petition was denied.
On 27 August 2004, defendants Hammitt
entered notice of appeal
from the order denying their motion for summary judgment.
The
record on appeal was filed on 13 October 2004 and docketed on 8
November 2004.
On appeal,
defendants Hammit
essentially renew the arguments
made in their motion for summary judgment.
However,
their appeal
must be dismissed for their failure to
file timely notice of appeal
from the order denying their motion. Though defendants Hammitt
asserted in their petition for writ of certiorari that they did not
learn that a written order was entered until 4 August 2004, we notethat the certificate of service attached to the order states that
it was served on them by mail on 20 January 2004.
To the extent
that we were inclined to treat their appeal as a petition for writ
of certiorari, we must deny the petition because another panel of
this Court has already denied a previous petition for certiorari
based upon the same grounds. See In the Matter of Appeal from
Civil Penalty, 324 N.C. 373, 379 S.E.2d 30 (1989)(When a panel of
this Court has decided the same issue in a different case,
subsequent panels are bound to the decision until it is overturned
by the higher court
). Accordingly, the appeal is dismissed.
Appeal dismissed.
Judges HUNTER and STEELMAN concur.
Report per Rule 30(e).
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