In Re Investigation Regarding the Approval & Closing of the Business Combination of Duke Energy Corp. & Progress Energy, Inc.

NO. COA13-880

NORTH CAROLINA COURT OF APPEALS

Filed: 20 May 2014

IN THE MATTER OF

INVESTIGATION REGARDING THE North Carolina
APPROVAL AND CLOSING OF THE Utilities Commission
BUSINESS COMBINATION OF DUKE No. E-7, SUB 1017
ENERGY CORPORATION AND PROGRESS
ENERGY, INC.

Appeal by proposed intervenor from orders entered 13 July

2012, 12 December 2012, and 29 April 2013 by the North Carolina

Utilities Commission. Heard in the Court of Appeals 11 December

2013.

No brief filed on behalf of appellee State of North
Carolina ex rel. Utilities Commission.

Chief Counsel Antoinette R. Wike for appellee Public Staff
-- North Carolina Utilities Commission.

Law Offices of F. Bryan Brice, Jr., by Matthew D. Quinn;
and John D. Runkle, for proposed intervenor-appellant North
Carolina Waste Awareness and Reduction Network, Inc.

Womble Carlyle Sandridge & Rice, LLP, by James P. Cooney
III; Allen Law Offices, PLLC, by Dwight W. Allen; and Duke
Energy Corporation, by Deputy General Counsel Lawrence B.
Somers, for appellees Duke Energy Corporation, Duke Energy
Carolinas, LLC, and Duke Energy Progress, Inc. (formerly
Carolina Power & Light Company d/b/a Progress Energy
Carolinas, Inc.).

GEER, Judge.
 -2-
Proposed intervenor North Carolina Waste Awareness and

Reduction Network, Inc. ("NC WARN") appealed two orders of the

North Carolina Utilities Commission (1) denying NC WARN's motion

to intervene in an investigation conducted by the Commission and

(2) approving a settlement agreement by the parties to the

investigation and closing the investigation. The Commission

entered an order dismissing that appeal on the grounds that NC

WARN lacked standing to appeal. NC WARN has appealed the

dismissal order.

We hold that the Commission acted in excess of its

jurisdictional authority in dismissing NC WARN's appeal for lack

of standing, and we, therefore, vacate that order as void ab

initio and address the merits of NC WARN's first appeal. We

hold that the Commission properly denied NC WARN's motion to

intervene and, therefore, affirm the order denying intervention.

Since NC WARN was not a party to the Commission's investigation

and had no standing to appeal from the settlement order, we also

affirm that order.

Facts

On 4 April 2011, Duke Energy Corporation and Progress

Energy, Inc. filed an application requesting that the Commission

approve their proposed merger (the "merger docket"). The

companies indicated in the application that William D. Johnson
 -3-
would be named president and CEO of the merged company ("Duke")

for a three-year term. Mr. Johnson filed written testimony in

the merger docket stating he would be president and CEO of Duke,

and James Rogers filed testimony stating he would be the

executive chairman of Duke's board of directors. On 29 June

2012, the Commission entered an order approving the merger

subject to regulatory conditions and code of conduct. Duke

closed the merger on 2 July 2012. The next day, on 3 July 2012,

Duke announced that Mr. Rogers would replace Mr. Johnson as

president and CEO of the company.

On 6 July 2012, the Commission opened an investigation,

pursuant to N.C. Gen. Stat. § 62-37 (2011), into the change in

leadership immediately following the merger. NC WARN filed a

motion to intervene in the investigation on 10 July 2012,

alleging it was a non-profit corporation, with approximately

1,000 individual members, established for the purpose of

"reduc[ing] hazards to public health and the environment from

nuclear power and other polluting electricity production through

energy efficiency and renewable energy resources."

The motion alleged that most of NC WARN's members resided

in North Carolina and were customers of Duke, and its members

were "concerned about the merger's potential impacts on the cost

of their electricity." NC WARN stated that it had intervened in
 -4-
the merger docket, and that if allowed to intervene in the

investigation, it would "assist and support the Commission."

Attached to the intervention motion were NC WARN's "initial

scoping comments to assist the Commission in defining the

investigation."

On 13 July 2012, the Commission entered an order denying NC

WARN's motion to intervene. The order explained that the

proceeding was "an investigation pursuant to the Commission's

supervisory authority under Article 3 of Chapter 62 [of the

General Statutes], rather than an application or rate case being

conducted pursuant to the Commission's authority under Article

4." The Commission also found that "NC WARN is not a party

affected within the meaning of G.S. 62-37, requiring the

Commission to 'make no order without affording the parties

affected thereby notice and a hearing.'"

Relying on State ex rel. Utils. Comm'n v. Carolina Util.

Customers Ass'n, 163 N.C. App. 1, 592 S.E.2d 277 (2004)

(hereinafter "CUCA"), the Commission further found that its

"order in this proceeding will have only a generalized effect on

NC WARN's members, no more and no less than it will have on all

of Duke's and Progress' ratepayers." In addition, the Public

Staff of the North Carolina Utilities Commission ("Public

Staff") and the Attorney General were parties to the
 -5-
investigation, and the Commission found that those parties

"represent the interest of all consumers who will be affected by

the Commission's investigation."

On 29 November 2012, the Staff of the North Carolina

Utilities Commission, the Public Staff, and Duke entered into a

settlement agreement regarding the investigation. The agreement

provided that Mr. Rogers, Mr. Johnson, and other individuals had

testified before the Commission during the investigation; that

Duke had filed thousands of pages of documents with the

Commission pursuant to orders during the investigation; and that

the parties desired to resolve "all matters and issues . . .

without further litigation and expense and to move forward in a

positive manner." The terms of the settlement agreement

included that: (1) Duke maintain certain staff in Raleigh; (2)

Duke create a board committee for regulatory compliance; (3)

Duke provide retail ratepayers an "additional $25 million in

fuel and fuel-related cost savings" and contribute "an

additional $5 million to workforce development and low-income

assistance," each on top of amounts provided for in the merger

order; (4) Duke make certain executive-level staffing changes;

(5) Duke bring in two new outside board members and retire

current board members in a certain manner; (6) Mr. Rogers retire

in December 2013 and the new top executive be hired from outside
 -6-
the company; and (7) Duke "issue a statement of acknowledgement

to the Commission that its activities have fallen short of the

Commission's understanding of Duke's obligations under its

regulatory compact that frame the duties for a regulated utility

in this state."

Although denied intervention, NC WARN continued to file

comments in the investigation docket during the investigation,

and NC WARN filed a motion opposing the settlement agreement on

3 December 2012. The Commission entered an order approving the

settlement agreement and closing the investigation on 12

December 2012. The order provided that the "integrity of the

Commission to carry out its statutory mandate relies on the

openness and honesty of the regulated public utilities . . . ."

The order further provided, however, that the settlement

agreement "restore[d] the balance between legacy Duke and legacy

Progress in the merged company . . ., reaffirm[ed] the

regulatory compact and continued public confidence in the

integrity of utility regulation, and allow[ed] the merged

company to focus on its mission to provide affordable, reliable

electric service to North Carolina consumers."

On 9 January 2013, NC WARN timely appealed the intervention

order and the settlement order. Prior to NC WARN's service of

the proposed record on appeal, Duke filed a motion to dismiss NC
 -7-
WARN's appeal with the Commission on 7 March 2013. The

Commission entered an order dismissing NC WARN's appeal for lack

of standing on 29 April 2013.

The majority of the Commission concluded that NC WARN had

no right to intervene in the investigation under CUCA, and, as a

non-party, NC WARN had no right to appeal. The majority further

determined that it had jurisdiction to dismiss NC WARN's appeal

for lack of standing. It reasoned that under N.C. Gen. Stat. §

62-90(c) (2011) and Farm Credit Bank of Columbia v. Edwards, 121

N.C. App. 72, 464 S.E.2d 305 (1995), the Commission retained

certain jurisdiction over appealed orders until the appeal is

docketed in the appellate court, including jurisdiction to

dismiss an appeal by a non-party.

Commissioner ToNola D. Brown-Bland concurred in the result.

Commissioner Brown-Bland reasoned that because the investigation

was pursuant to the Commission's Article 3 powers and was wholly

separate from the Commission's Article 4 judicial function, the

only party affected by the investigation was necessarily Duke,

the party investigated, since there was no assertion by any

party during the investigation that the public's interests were

not adequately protected. Accordingly, only Duke could appeal

the settlement order. Commissioner Brown-Bland, like the

majority, believed the Commission could dismiss NC WARN's
 -8-
appeal, an appeal by an unaffected non-party, as a nullity,

although she additionally concluded that the Commission could

dismiss the appeal under Rule 25 of the Rules of Appellate

Procedure.

Commissioner Bryan E. Beatty dissented because, while he

agreed that the Commission properly denied NC WARN's

intervention motion, he disagreed that the Commission had the

authority to dismiss NC WARN's appeal from the intervention

order. Commissioner Beatty reasoned that N.C. Gen. Stat. § 62-

90(a) did not limit NC WARN, a non-party, from appealing since

that statute was limited to a "'final order or decision'" and

the intervention order was an interlocutory procedural order.

He further reasoned that Rule 25 of the Rules of Appellate

Procedure did not give the Commission authority to dismiss the

appeal for lack of standing because that rule was limited to

dismissals for failure to take timely action, and there was no

allegation NC WARN had not timely taken and perfected its

appeal.

Commissioner Beatty noted that, although the Commission

properly exercised its discretion in denying NC WARN

intervention, "the majority's decision to dismiss NC WARN's

appeal of that ruling on that same basis gives the appearance

that the majority is acting as an appellate court in affirming
 -9-
its own exercise of discretion." Since Duke had cited no

authority directly stating the Commission had the power to

dismiss NC WARN's appeal from the intervention order,

Commissioner Beatty "would follow the more cautious route and

leave th[e] question to the appellate court."

On 16 May 2013, NC WARN timely appealed the order

dismissing its first appeal and, in the same notice of appeal,

again appealed the intervention order and settlement order. On

the same day, 16 May 2013, NC WARN filed a petition for writ of

certiorari in this Court seeking review of the order dismissing

its first appeal. This Court entered an order denying NC WARN's

petition on 4 June 2013. Duke filed a motion to dismiss NC

WARN's second appeal in this Court on 7 August 2013.

I

We first address the Commission's order dismissing NC

WARN's first appeal, including its appeal from the intervention

order, for lack of standing. NC WARN argues, both in its brief

and in response to Duke's motion to dismiss filed in this Court,

that the Commission did not have jurisdiction to dismiss its

first appeal for lack of standing. We agree.

In reviewing an order by the Commission, this Court "may

affirm or reverse the decision of the Commission, declare the

same null and void, or remand the case for further proceedings;
 -10-
or it may reverse or modify the decision if the substantial

rights of the appellants have been prejudiced because the

Commission's findings, inferences, conclusions or decisions are:

(1) [i]n violation of constitutional provisions, or (2) [i]n

excess of statutory authority or jurisdiction of the Commission,

or (3) [m]ade upon unlawful proceedings, or (4) [a]ffected by

other errors of law, or (5) [u]nsupported by competent, material

and substantial evidence in view of the entire record as

submitted, or (6) [a]rbitrary or capricious." N.C. Gen. Stat. §

62-94(b) (2013).

"The general rule is that an appeal takes the case out of

the jurisdiction of the trial court. Thereafter, pending the

appeal, the trial judge is functus officio." Estrada v. Jaques,

70 N.C. App. 627, 637, 321 S.E.2d 240, 247 (1984). This general

rule is, however, "subject to two exceptions and one

qualification[.]" Id.

"The exceptions are that notwithstanding the
pendency of an appeal the trial judge
retains jurisdiction over the cause (1)
during the session in which the judgment
appealed from was rendered and (2) for the
purpose of settling the case on appeal. The
qualification to the general rule is that
the trial judge, after notice and on proper
showing, may adjudge the appeal has been
abandoned and thereby regain jurisdiction of
the cause."
 -11-
Id. at 637-38, 321 S.E.2d at 247 (quoting Bowen v. Hodge Motor

Co., 292 N.C. 633, 635-36, 234 S.E.2d 748, 749 (1977)).

While it retains jurisdiction over an appealed matter, a

trial tribunal may dismiss an appeal under the circumstances

provided for in Rule 25 of the Rules of Appellate Procedure.

Rule 25 provides in relevant part:

(a) Failure of appellant to take timely
action. If after giving notice of appeal
from any court, commission, or commissioner
the appellant shall fail within the times
allowed by these rules or by order of court
to take any action required to present the
appeal for decision, the appeal may on
motion of any other party be dismissed.
Prior to the filing of an appeal in an
appellate court motions to dismiss are made
to the court, commission, or commissioner
from which appeal has been taken; after an
appeal has been filed in an appellate court
motions to dismiss are made to that court.
Motions to dismiss shall be supported by
affidavits or certified copies of docket
entries which show the failure to take
timely action or otherwise perfect the
appeal, and shall be allowed unless
compliance or a waiver thereof is shown on
the record, or unless the appellee shall
consent to action out of time, or unless the
court for good cause shall permit the action
to be taken out of time.

This Court interpreted the scope of Rule 25 in Estrada,

where the trial court dismissed an appeal on the grounds that

the appealed order was interlocutory. 70 N.C. App. at 639, 321

S.E.2d at 248. The Court explained: "Taken out of context, the

second sentence of the Rule might provide the trial court with
 -12-
authority to dismiss interlocutory appeals. However, elementary

principles of construction require that words and phrases be

interpreted contextually and in harmony with the underlying

purposes of the whole." Id. The Court reasoned: "The title and

first and third sentences clearly indicate that the motions

described in the second sentence are only those for failure to

comply with the Rules of Appellate Procedure or with court

orders requiring action to perfect the appeal." Id.

In Estrada, the plaintiff appealed "various orders" prior

to final judgment being entered as to all claims and parties,

and the trial court dismissed the plaintiff's appeal as

interlocutory. Id. at 637, 321 S.E.2d at 247. This Court then

reviewed on appeal whether the trial court had jurisdiction to

dismiss the plaintiff's appeal. Id. This Court laid out the

above rules for a trial court's continued jurisdiction over an

appealed matter and determined that the exceptions and

qualification did not apply. Id. at 638, 321 S.E.2d at 248.

The Court concluded that, given its interpretation of Rule 25,

the trial court did not have jurisdiction under Rule 25 to

dismiss the appeal on the grounds that the appeal was

interlocutory. Id. at 639, 321 S.E.2d at 248. Consequently,

the Court held, the trial court "acted beyond [its] authority in

dismissing the appeal." Id.
 -13-
Here, there is similarly no contention that NC WARN

abandoned its first appeal or that the order dismissing NC

WARN's first appeal was in any way related to settling the

record on appeal. However, with respect to the "exception" in

which a trial court maintains jurisdiction over an appealed

matter during the session in which the appealed order was

rendered, the Commission's order provided that "[i]n contrast to

a Superior Court judge, the Utilities Commission never loses

jurisdiction over its cases before appeals are docketed in the

appellate court due to termination of a term of court." The

order cited N.C. Gen. Stat. § 62-90(c) in support of that

distinction. See id. ("The Commission may on motion of any

party to the proceeding or on its own motion set the exceptions

to the final order upon which such appeal is based for further

hearing before the Commission."). The Commission further

reasoned that its jurisdiction over appealed orders was "more

pervasive than the General Court of Justice, especially in its

investigation determinations under Article 3."

The Commission's order additionally provided: "North

Carolina recognizes an exception to the rule that a lower

tribunal loses jurisdiction upon notice of appeal so as to

permit the lower tribunal to modify its judgment thereby also

permitting it to retain jurisdiction to dismiss an appeal."
 -14-
(Emphasis added.) In support of this latter proposition, the

Commission cited Farm Credit Bank as support for its position

that "[e]ven where the retention by the trial court of

jurisdiction after notice of appeal may be circumscribed for

settling the record on appeal, the courts have permitted the use

of this limited jurisdiction to dismiss an appeal."

However, Farm Credit Bank does not stand for the

proposition that simply because a trial tribunal retains

jurisdiction over a matter in order to settle the record on

appeal, the trial tribunal is empowered to dismiss the appeal

for reasons unrelated to settling the record during that time.

Rather, the Farm Credit Bank Court held that the trial court had

jurisdiction over a motion to dismiss an appeal as being

unauthorized because (1) that issue was expressly made an

objection to the proposed record on appeal, (2) the plaintiff

consented to the trial court addressing the matter, and (3) the

plaintiff waived any objection to the jurisdictional issue by

requesting affirmative relief from the trial court on other

matters. 121 N.C. App. at 77, 464 S.E.2d at 307-08.

We note that Farm Credit Bank's reasoning is directly

contrary to the well-established principle that "[s]ubject

matter jurisdiction 'cannot be conferred upon a court by

consent, waiver or estoppel, and therefore failure to . . .
 -15-
object to the jurisdiction is immaterial.'" In re T.R.P., 360

N.C. 588, 595, 636 S.E.2d 787, 793 (2006) (quoting In re Sauls,

270 N.C. 180, 187, 154 S.E.2d 327, 333 (1967)). Nevertheless,

the validity of the Farm Credit Bank Court's reasoning aside,

that opinion's holding simply does not support the Commission's

assertion that the Commission's continuing jurisdiction over

certain matters, such as jurisdiction to hold a further hearing

on exceptions set out in a notice of appeal under N.C. Gen.

Stat. § 62-90(c), necessarily gives the Commission the authority

to dismiss an appeal for reasons unrelated to the specific

nature of that continued jurisdiction.

Moreover, the Commission's broad reading of Farm Credit

Bank conflicts with the analysis in Estrada. In Estrada, the

Court explained that since the session of the term of the

appealed order had ended and there was no allegation that the

plaintiff had abandoned the appeal or failed to timely take

action with respect to the appeal, "the Superior Court had

jurisdiction on [the day the defendants moved to dismiss the

appeal] only for the purpose of settling the case on appeal."

70 N.C. App. at 638, 321 S.E.2d at 248.

The Court went on to hold that because the trial court's

order dismissing the appeal as interlocutory had nothing to do

with settling the record on appeal, the order went beyond the
 -16-
court's authority. Id. at 638, 639, 321 S.E.2d at 248. Since

Farm Credit Bank could not overrule Estrada, see In re Civil

Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989), we do not

read Farm Credit Bank as providing a trial tribunal jurisdiction

to dismiss an appeal during a time of continued jurisdiction for

a reason unrelated to that continued jurisdiction apart from the

trial tribunal's limited power to dismiss appeals as provided in

Rule 25.

Thus, the Commission was correct that it had some continued

jurisdiction over the orders at issue in NC WARN's first appeal,

N.C. Gen. Stat. § 62-90(c). However, that continued

jurisdiction allowed the Commission to dismiss NC WARN's appeal

only based on the grounds specified in Rule 25.

We initially observe that because NC WARN's first appeal

had not yet been docketed with this Court, Duke's motion to

dismiss the appeal was properly made to the Commission. N.C.R.

App. P. 25(a). Estrada held that Rule 25 gives a trial court

authority to dismiss an appeal, prior to docketing in the

appellate court, "only . . . for failure to comply with the

Rules of Appellate Procedure or with court orders requiring

action to perfect the appeal." 70 N.C. App. at 639, 321 S.E.2d

at 248. There is no dispute in this case that NC WARN's first

notice of appeal was timely filed, that NC WARN timely complied
 -17-
with all appellate rules concerning its appeal, and that NC WARN

properly perfected its appeal. Consequently, the Commission's

order dismissing NC WARN's first appeal was not properly based

upon Rule 25.

The Commission determined, however, that it nonetheless had

jurisdiction to dismiss NC WARN's appeal under the rule stated

by our Supreme Court in State ex rel. Utils. Comm'n v. Edmisten,

291 N.C. 361, 365, 230 S.E.2d 671, 674 (1976) that "an attempted

appeal from a nonappealable order is a nullity and does not

deprive the tribunal from which the appeal is taken of

jurisdiction." That rule does not support the Commission's

order, however, because the authority to ignore an appeal from a

nonappealable order and proceed as if no appeal had been taken

is not equivalent to authority to dismiss the appeal itself. In

Edmisten, the Supreme Court held that the intervenor's appeal

from a nonappealable order did not divest the Commission of

jurisdiction over the appealed order, and, therefore, the

Commission "was not deprived of authority later to modify this

order." Id. Notably, however, the Commission in Edmisten did

not attempt to dismiss the appeal, and it was this Court that

held, in a different opinion, that the appealed order was

interlocutory and, therefore, nonappealable. Id. at 363-64, 230

S.E.2d at 673.
 -18-
Finally, the Commission's order was based on the reasoning

that it could dismiss the appeal of any non-party to the

proceeding, including NC WARN, since a non-party has no

statutory right to appeal. This Court has, however, recognized

a non-party's right to appeal from an order denying the non-

party's motion to intervene, despite the fact that the non-party

is, by virtue of the appealed order, not a party to the case.

See Procter v. City of Raleigh Bd. of Adjustment, 133 N.C. App.

181, 184, 514 S.E.2d 745, 747 (1999) (holding proposed

intervenors had standing to appeal order denying motion to

intervene under Rule 24 of Rules of Civil Procedure, reversing

intervention order, and remanding for entry of order allowing

intervention). See also State ex rel. Easley v. Philip Morris

Inc., 144 N.C. App. 329, 334-35, 548 S.E.2d 781, 784 (2001)

(reviewing merits of proposed intervenor's appeal from order

denying motion to intervene and affirming denial of

intervention).

If sustained, the Commission's position that it should be

permitted to dismiss NC WARN's appeal from its order denying NC

WARN's motion to intervene since NC WARN was a non-party would

deprive NC WARN of appellate review of the denial of its motion

to intervene. The Commission's decision would be insulated from

review. We do not believe the General Assembly intended that
 -19-
result. We, therefore, hold that the Commission exceeded its

authority in dismissing NC WARN's appeal for lack of standing.

In Estrada, after holding that the trial court had no

authority to dismiss the plaintiff's appeal as interlocutory,

the Court noted: "Depending on our interpretation of the legal

basis of the order [dismissing the plaintiff's appeal], we could

either: (1) treat [the plaintiff's] appeal as an application for

certiorari, grant same, and consider the merits; or (2) treat

the order as in excess of authority and void ab initio, and

consider the purported appeal, assuming the substantial right

doctrine applies [to the interlocutory appeal], as properly

before us." 70 N.C. App. at 640, 321 S.E.2d at 249 (internal

citations omitted).

The Court held, however, that it was unable to treat the

plaintiff's appeal as a petition for writ of certiorari because

the plaintiff had already petitioned the Court for a writ of

certiorari to review the order dismissing his appeal, a separate

panel of the Court had previously denied that petition, and the

Estrada Court was bound by the prior decision denying the

petition to review the same order. Id. at 640-41, 321 S.E.2d at

249. The Court further held that although it could treat the

order dismissing the appeal as void ab initio and consider the

merits of the appeal, the appeal at issue was interlocutory and,
 -20-
since a prior panel of the Court had also denied the plaintiff's

separate petition for writ of certiorari to review the orders

underlying the first appeal, the Estrada Court was unable to

conclude that the appeal affected a substantial right. Id. at

641, 321 S.E.2d at 249. Consequently, the Court dismissed the

plaintiff's appeal of the interlocutory orders. Id.

In this case, as in Estrada, NC WARN has already filed a

petition for writ of certiorari in this Court seeking review of

the Commission's order dismissing its first appeal. A separate

panel of this Court has denied that petition. We may not,

therefore, treat NC WARN's appeal as a petition for writ of

certiorari and allow it in order to reach the merits of NC

WARN's appeal from the underlying orders. There is no

impediment, however, to our treating the Commission's order "as

in excess of authority and void ab initio, and consider[ing] the

purported appeal . . . as properly before us." Id. at 640, 321

S.E.2d at 249.

We, therefore, hold that the Commission's order dismissing

NC WARN's first appeal is void ab initio and we treat NC WARN's

first appeal, from the intervention order and settlement order,

as properly before us. In light of our holding, we need not

address the sufficiency of NC WARN's second appeal from the

intervention order and the settlement order.
 -21-
II

We next address NC WARN's appeal from the order denying its

motion to intervene. We initially observe that NC WARN does not

substantively challenge, in its brief, the Commission's order

denying NC WARN's motion to intervene as of the time the order

was entered. Although NC WARN makes an unsupported assertion

that "the Commission's denial of NC WARN's Motion to Intervene

was improper because NC WARN had standing to participate in this

case," that bare contention, without any supporting authority or

argument, is insufficient to raise the issue of the merits of

the intervention order at the time it was entered. N.C.R. App.

P. 28(b)(6).

Rather than arguing that the intervention order was

erroneous when entered, NC WARN contends that the Commission's

subsequent settlement order affected NC WARN, thereby giving

rise to NC WARN's standing to intervene in this investigation

docket. Since NC WARN has abandoned its right to substantively

challenge the intervention order, we affirm that order.

We now turn to NC WARN's argument that it had standing to

intervene after entry of the settlement order. The Commission's

investigation in this case was an investigation pursuant to N.C.

Gen. Stat. § 62-37, which provides:

(a) The Commission may, on its own
motion and whenever it may be necessary in
 -22-
the performance of its duties, investigate
and examine the condition and management of
public utilities or of any particular public
utility. In conducting such investigation
the Commission may proceed either with or
without a hearing as it may deem best, but
shall make no order without affording the
parties affected thereby notice and hearing.

(Emphasis added.)

NC WARN contends that it was a "party affected" by the

Commission's settlement order because the settlement order

"directly modified the underlying merger order in the merger

docket" since it "goes outside the scope of investigation and

attempts to . . . resolve matters in the merger dockets." NC

WARN was a party to the merger docket, and it contends that it

"cannot be a party affected in the merger dockets and somehow no

longer affected when the merger order is modified in another

docket."

We note that NC WARN never filed a second motion to

intervene with the Commission, after entry of the settlement

order, presenting the argument it now raises on appeal.

However, NC WARN did argue in its first notice of appeal that

the settlement order "approved a settlement agreement that had

the intent and effect of significantly modifying the

Commission's [merger order] in the other dockets relating to the

merger of the two electric utilities . . . in which NC WARN was

an intervening party." This is essentially the same basis upon
 -23-
which NC WARN now contends that it had standing to intervene in

this investigation.

In its order dismissing NC WARN's first appeal, the

Commission determined that NC WARN was properly denied

intervention and that "the Commission's order in this docket

does not modify its order in the merger docket as NC WARN

alleges." We assume, without deciding, that NC WARN's

assertions in its first notice of appeal, and the Commission's

ruling in its order dismissing that appeal, sufficiently

preserve for appeal NC WARN's standing argument.

This Court addressed a similar standing issue in CUCA.

There, the Commission and a South Carolina agency initiated a

joint investigation of Duke Power under N.C. Gen. Stat. § 62-37

regarding accounting irregularities at Duke alleged by a

whistleblower. CUCA, 163 N.C. App. at 2, 592 S.E.2d at 278.

Carolina Utility Customers Association, Inc. ("CUCA"), an

association representing many of North Carolina's largest

industrial manufacturers, sought permission to "participate in"

the investigation "to insure that the interests of its rate-

paying manufacturers who may have suffered disproportionately

from any excessive charges for electrical power were protected."

Id.
 -24-
The Commission denied CUCA's request to participate, and

during the investigation it was determined that Duke had,

through accounting practices, "'inappropriately reduced'" its

"'pre-tax utility operating income'" for several years by

millions of dollars. Id. at 3, 592 S.E.2d at 279. The

Commission Staff and Duke then negotiated a settlement agreement

whereby Duke would be required, among other things, to correct

erroneous accounting entries, "'make a one-time $25 million

credit in 2002 to its deferred fuel amounts in North Carolina

and South Carolina . . . to be incorporated into the next fuel

cost proceedings in the respective states[,]" implement certain

remedial actions, and "'acknowledge and regret that

communications with the two State Commissions failed to

adequately detail significant changes to prior accounting

practices[.]'" Id. at 4, 592 S.E.2d at 279.

The Commission held a staff conference to discuss the

settlement agreement, and CUCA presented the Commission, at the

conference, with a "motion requesting further investigation and

hearing." Id. at 5, 592 S.E.2d at 279. The Commission denied

CUCA's motion and voted unanimously to approve the settlement

agreement, but the vote did not constitute a final order since

the South Carolina agency had not yet approved the agreement.

Id., 592 S.E.2d at 279-80.
 -25-
Prior to entry of a final order, CUCA and an individual

ratepayer, Wells Eddleman, filed petitions to intervene and

motions for further investigation and hearing. Id. at 2, 5, 592

S.E.2d at 278, 280. The Commission subsequently entered a final

order granting CUCA and Eddleman's motions to intervene after

concluding that "'as ratepayers, CUCA [and] Eddleman . . . are

affected by the level of Duke's rates and have an interest in

this matter.'" Id. at 5, 592 S.E.2d at 280. The Commission's

order, however, denied the motions for further hearing and

formally approved the settlement agreement. Id. On appeal,

CUCA and Eddleman "raise[d] issues regarding the investigation

of Duke and the Commission's subsequent order approving the

settlement agreement resulting from that investigation." Id. at

6, 592 S.E.2d at 280. Duke, in turn, cross-appealed and argued

that the Commission erred in granting CUCA and Eddleman

intervention since they were not "'parties affected'" by the

investigation. Id.

This Court in CUCA held that CUCA and Eddleman were not

"'parties affected'" by the order and, therefore, had no

standing to appeal the Commission's approval of the settlement

agreement. Id. The Court first noted that "the investigation

of Duke was conducted by the Commission pursuant to its powers

and duties defined under Article 3 of our General Statutes,
 -26-
particularly Section 62-37, and not pursuant to the Commission's

judicial functions outlined in Article 4." Id. The Court

observed that intervention under the Commission Procedural Rules

was permitted as follows: "'Any person having an interest in the

subject matter of any hearing or investigation pending before

the Commission may become a party thereto and have the right to

call and examine witnesses, cross-examine opposing witnesses,

and be heard on all matters relative to the issues involved . .

. .'" Id. at 7-8, 592 S.E.2d at 281 (quoting N.C.U.C. Rule R1-

19(a)). The Commission had, therefore, "concluded that CUCA and

Eddleman not only had an 'interest in the subject matter' but

were also 'parties affected' by the order . . . ." Id. at 8,

592 S.E.2d at 281.

With respect to whether CUCA and Eddleman were "parties" to

the investigation, the Court held that CUCA and Eddleman were

not "parties" under N.C. Gen. Stat. § 62-37 until the

Commission's final order granted their motion to intervene. 163

N.C. App. at 9, 592 S.E.2d at 282. The Court then addressed

whether CUCA and Eddleman were parties "affected" by the order,

and looked to a case interpreting the prior version of the

statute providing a right to appeal the Commission's orders for

"'any party affected thereby.'" Id. (quoting In re Hous. Auth.

of City of Charlotte, 233 N.C. 649, 657, 65 S.E.2d 761, 767
 -27-
(1951)). The Court observed that "'party affected'" had been

defined, under that statute, as follows: "'[A] party is not

affected by a ruling of the Utilities Commission unless the

decision affects or purports to affect some right or interest of

a party to the controversy and [is] in some way determinative of

some material question involved.'" Id. (quoting In re Hous.

Auth., 233 N.C. at 657, 65 S.E.2d at 767).

Further, with respect to whether a party is "affected," the

Court explained that the current appeals statute, which replaced

the statute construed in In re Housing Authority, used the

phrase "'party aggrieved'" instead of "'party affected.'" 163

N.C. App. at 10, 592 S.E.2d at 282 (quoting N.C. Gen. Stat. §

62-90(a) (2003)). The Court observed that, generally, "'[a]

"party aggrieved" is one whose rights have been directly and

injuriously affected by the judgment entered . . . .'" Id.

(quoting Hoisington v. ZT-Winston-Salem Assocs., 133 N.C. App.

485, 496, 516 S.E.2d 176, 184 (1999)). In addition, "[t]his

Court's interpretation of 'party aggrieved' as it relates to an

appeal of an order by the Commission also suggests that more

than a generalized interest in the subject matter is required."

Id.
 -28-
Applying those interpretations of "'party affected'" and

"'party aggrieved'" to the facts before it, the Court in CUCA

reasoned:

Duke was the only party recognized by the
Commission throughout the investigation, as
well as the only party directly and
substantially affected by any subsequent
order arising therefrom in the sense
envisioned by the statute. As such, only
Duke was entitled to receive notice and
hearing pursuant to Section 62-37 to protect
its due process rights. While CUCA and
Eddleman may have had an interest in the
matter, their interest was only generalized
and unsubstantial -- not specific to them as
individual Duke customers.

Id., 592 S.E.2d at 283 (emphasis added).

The Court also rejected CUCA and Eddleman's argument that

there was no party in the investigation that adequately

protected their interests. Id. at 11, 592 S.E.2d at 283. In

fact, the Court pointed out, the Public Staff participated in

the investigation and recommended approving the settlement

agreement, and the Public Staff acts independently of the

Commission and was created "'to represent [the interests of] the

using and consuming public' in matters before the Commission."

Id. (quoting N.C. Gen. Stat. § 62-15(b) (2003)).

The Court in CUCA concluded that while CUCA and Eddleman

"may have had an interest in the matter sufficient for

intervention in a hearing or investigation pending before the
 -29-
Commission pursuant to Article 4, Article 3 requires the

prospective interveners to also be 'parties affected' pursuant

to Section 62-37." Id. at 11-12, 592 S.E.2d at 283-84. Since

"approval of the settlement agreement only had a generalized and

unsubstantial affect on CUCA and Eddleman, they were not

'parties affected[,]'" and the Commission abused its discretion

in granting their petitions to intervene. Id. at 12, 592 S.E.2d

at 284. Further, since CUCA and Eddleman had no standing to

appeal from the Commission's final order, the Court affirmed the

order. Id. at 6, 12, 592 S.E.2d at 280, 284.

Here, Duke was the only party investigated by the

Commission and, as in CUCA, the investigation was pursuant to

the Commission's Article 3 powers and not its Article 4 judicial

power. Like CUCA, NC WARN is an organization of ratepayer

members and sought to intervene in order to protect the

financial interests of its members. In other words, NC WARN's

interest was "only generalized and unsubstantial -- not specific

to [it] as [an] individual Duke customer[]." Id. at 10, 592

S.E.2d at 283. And, as in CUCA, the Public Staff, the party

protecting the interest of the consuming public, participated in

the investigation and recommended the Commission adopt the

settlement agreement. NC WARN's interest in this case is,
 -30-
therefore, materially indistinguishable from the interests of

the intervenors in CUCA.

NC WARN nonetheless tries to distinguish CUCA from the

present case by arguing that here, unlike in CUCA, the

settlement order modified the merger order and NC WARN, having

already been a party to the merger docket, was therefore

necessarily a party affected by the settlement order. In

support of its argument, NC WARN relies upon the following

specific provisions of the settlement agreement:

C. Duke will guarantee that Duke's North
Carolina retail ratepayers will receive
an additional $25 million in fuel and
fuel-related cost savings over and
above the amount Duke is obligated to
provide pursuant to the Merger Order.

D. Duke will contribute an additional $5
million to workforce development and
low-income assistance in North Carolina
on top of the amount provided in the
Merger Order.

NC WARN also points to the settlement agreement's statement

that the parties "desire to resolve all matters and issues

involved in the Commission's investigation and the Merger

Dockets without further litigation and expense and to move

forward in a positive manner." These provisions of the

settlement agreement were summarized in the Commission's

settlement order.
 -31-
Based on the provisions highlighted by NC WARN, however, we

believe that the settlement agreement does not modify the merger

order but, by its own terms, requires Duke to comply with

provisions that are "over and above" obligations placed on Duke

in the merger order. While we acknowledge that the parties'

assertion in the settlement agreement that they wanted to

resolve "all matters and issues involved in the . . . Merger

Dockets" unnecessarily blurred the otherwise clear distinction

between the two proceedings, the parties' loose statement does

not serve to alter the material terms of the settlement

agreement highlighted by NC WARN. Based on the face of the

agreement as to those terms, we cannot conclude that the

settlement order modified the merger order.

Further, even assuming that the settlement order dealt with

some of the same matters at issue in the merger order, CUCA

makes clear that there are different requirements for

intervention in an Article 4 judicial proceeding before the

Commission and intervention in an Article 3 investigation before

the Commission. While it appears that the Commission's

Procedural Rules permit intervention by "'[a]ny person having an

interest in the subject matter of any hearing'" before the

Commission, id. at 7, 592 S.E.2d at 281 (quoting N.C.U.C. Rule

R1-19(a)), the "party affected" standard under N.C. Gen. Stat. §
 -32-
62-37(a) is higher and does not permit intervention by a party

that merely has a "generalized and unsubstantial" interest in

the matter, CUCA, 163 N.C. App. at 10, 592 S.E.2d at 283. Thus,

under CUCA, even assuming NC WARN had an interest sufficient to

intervene in the merger docket, a non-Article 3 proceeding, NC

WARN's intervention in the merger docket does not show that it

was a party affected for purposes of the investigation docket.

Under CUCA, we hold that NC WARN was properly denied

intervention by the Commission and that the subsequent entry of

the settlement order did not change NC WARN's status and make NC

WARN a "party affected." Consequently, as in CUCA, NC WARN has

no standing to appeal from the settlement order, and we affirm

that order as well. In light of our disposition, we deny Duke's

motion to dismiss the appeal.

Vacated in part; affirmed in part.

Judges BRYANT and CALABRIA concur.