An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-483
NORTH CAROLINA COURT OF APPEALS
Filed: 18 March 2014
MELISSA JOY FRIEDMAN,
Plaintiff
Iredell County
v.
No. 12 CVS 1812
BANK OF AMERICA, N.A. AS SUCCESSOR BY MERGER
TO BAC HOME LOANS SERVICING, LP f/k/a
COUNTRYWIDE HOME LOANS SERVICING, INC.; LISA
S. CAMPBELL, SUBSTITUTE TRUSTEE,
Defendants
Appeal by plaintiff from order entered 8 October 2012 by
Judge Mark E. Klass in Iredell County Superior Court. Heard in
the Court of Appeals 10 October 2013.
Law Office of James W. Surane, PLLC, by James W. Surane,
for Plaintiff.
The Law Office of John T. Benjamin, Jr., P.A., by John T.
Benjamin, Jr., and James R. White, for Defendants.
ERVIN, Judge.
Plaintiff Melissa Joy Friedman appeals from an order
dismissing various claims that she asserted against Defendants
Bank of America, N.A., as successor to BAC Home Loans Servicing,
L/P., f/k/a Countrywide Home Loans Servicing, Inc., and Lisa S.
Campbell. On appeal, Plaintiff argues that she had stated
viable claims for intentional or negligent misrepresentation,
-2-
intentional or negligent infliction of emotional distress,
unfair debt collection, unclean hands, punitive damages, and
violation of the Real Estate Settlement Procedures Act of 1974
in her second amended complaint and that the trial court erred
by dismissing that pleading. After careful consideration of
Plaintiff’s challenges to the trial court’s order in light of
the record and the applicable law, we conclude that the trial
court’s order should be affirmed.
I. Factual Background
A. Substantive Facts
In 2001, Plaintiff purchased a tract of property located in
Mooresville, having financed this transaction using a
$536,250.00 loan procured from Approved Federal Savings Bank.
As part of these credit arrangements, Plaintiff executed a
promissory note and deed of trust in favor of Approved Federal,
with Neil W. Phelan having been designated as trustee under that
deed of trust. On 26 December 2001, Approved Federal’s interest
in the note and deed of trust was assigned to Bank of New York.
On 13 December 2002, James P. Bonner was substituted for Mr.
Phelan as the trustee under the deed of trust. On 14 January
2003, Mr. Bonner filed a petition seeking to foreclose upon
Plaintiff’s property and served a notice of hearing in that
proceeding upon Plaintiff. As a result of the fact that Mr.
Bonner failed to appear at the scheduled hearing, the
-3-
foreclosure proceeding was involuntarily dismissed with
prejudice on 28 April 2003.
On 31 July 2003, another notice of foreclosure was served
upon Plaintiff. On 15 January 2004, the Clerk of Superior Court
of Iredell County entered an order determining that Bank of New
York was the holder of the note, that Plaintiff was in default
under the note and deed of trust, and that Mr. Bonner, as
substitute trustee, was entitled to foreclose upon Plaintiff’s
property. Although no explanation for this fact appears in the
record, it is clear that no foreclosure sale relating to
Plaintiff’s property occurred following the entry of the 15
January 2004 order.
In September of 2009, BAC, a Bank of America subsidiary
which claimed to be the holder of the note that Plaintiff
executed in favor of Approved Federal, appointed Ms. Campbell as
substitute trustee under the deed of trust. On 6 October 2009,
Ms. Campbell served a notice of foreclosure hearing on
Plaintiff. On 15 March 2010, Ms. Campbell sent Plaintiff a
notice of rights indicating that she, as substitute trustee, had
been requested to initiate foreclosure proceedings under the
deed of trust that Plaintiff had executed in favor of Approved
Federal and informing Plaintiff of her rights as required by
statute. Although Ms. Campbell voluntarily dismissed this
foreclosure proceeding on 19 March 2010, she served another
-4-
notice of hearing on the same date naming BAC as the holder of
the note and scheduling the foreclosure hearing for 17 June
2010.1 At the foreclosure hearing, an affidavit executed by a
BAC employee asserted that BAC held the note that Plaintiff had
executed in favor of Approved Federal. On 19 August 2010, the
Clerk of Superior Court entered an order authorizing Ms.
Campbell to proceed with the foreclosure based on a
determination that the “debtors have shown no valid legal reason
why foreclosure should not commence.” A notice that Plaintiff’s
property would be sold as a result of the foreclosure proceeding
was filed on 15 June 2012.
B. Procedural History
On 26 July 2012, Plaintiff filed a complaint against BAC
and Ms. Campbell in which she sought to recover compensatory and
punitive damages, to have the order authorizing the sale of her
property set aside, and to obtain the issuance of temporary,
preliminary, and permanent injunctive relief precluding the sale
of her property. On that same day, the trial court temporarily
restrained the sale of Plaintiff’s property. On 20 August 2012,
Ms. Campbell filed a responsive pleading in which she denied the
material allegations of Plaintiff’s complaint and asserted
various affirmative defenses. On 5 September 2012, Bank of
1
BAC’s parent company, Bank of America, assumed
responsibility for servicing Plaintiff’s loan on 1 July 2011.
-5-
America, acting in its capacity as successor to BAC, filed a
responsive pleading in which it sought to have Plaintiff’s
complaint dismissed on the grounds that Plaintiff had failed to
name Bank of America as a party defendant or to cause the
issuance of a summons directed to Bank of America and on the
grounds that Plaintiff’s complaint failed to state a claim for
relief, denied the material allegations of Plaintiff’s
complaint, and asserted various affirmative defenses.
On or about 6 September 2012, Plaintiff filed an amended
complaint against BAC and Ms. Campbell in which she sought to
recover compensatory and punitive damages, to have the order
authorizing the sale of her property set aside, and to obtain
the issuance of temporary, preliminary, and permanent injunctive
relief precluding the sale of her property. On 12 September
2012, Plaintiff took a voluntary dismissal without prejudice of
her claim against BAC.
On 21 September 2012, Plaintiff filed a second amended
complaint against Bank of America, in its capacity as the
successor to BAC, and Ms. Campbell in which she sought to
recover compensatory and punitive damages, to have the order
authorizing the sale of her property set aside, and to obtain
the issuance of temporary, preliminary, and permanent injunctive
relief precluding the sale of her property. On 27 September
2012, Defendants filed a responsive pleading in which they
-6-
sought to have Plaintiff’s second amended complaint dismissed on
the grounds that Plaintiff had failed to state a claim for which
relief could be granted, denied the material allegations of
Plaintiff’s complaint, and asserted various affirmative
defenses.
After holding a hearing on 27 September 2012 for the
purpose of considering Plaintiff’s request for the issuance of a
preliminary injunction and Defendants’ request for the dismissal
of Plaintiff’s second amended complaint, the trial court entered
orders on 8 October 2012 granting Defendants’ dismissal motion
and denying Plaintiff’s motion for the issuance of a preliminary
injunction. Plaintiff noted an appeal to this Court from the
trial court’s dismissal order.2
II. Substantive Legal Analysis
A. Standard of Review
“A motion to dismiss under N.C. Gen. Stat. § 1A-1, Rule
12(b)(6) for failure to state a claim upon which relief may be
granted tests the legal sufficiency of the complaint.”
Signature Dev., LLC v. Sandler Commer. at Union, L.L.C., 207
N.C. App. 576, 582, 701 S.E.2d 300, 305 (2010), appeal dismissed
2
Consistently with her notice of appeal, Plaintiff has
refrained from challenging the denial of her request for the
issuance of a preliminary injunction in the brief that she has
filed with this Court on appeal.
-7-
as moot, 365 N.C. 211, 710 S.E.2d 28, disc. review denied, 365
N.C. 211, 710 S.E.2d 333 (2011).
In ruling on the motion, “the allegations of
the complaint must be viewed as admitted,
and on that basis the court must determine
as a matter of law whether the allegations
state a claim for which relief may be
granted.” Stanback v. Stanback, 297 N.C.
181, 185, 254 S.E.2d 611, 615 (1979).
Dismissal is proper “(1) when the complaint
on its face reveals that no law supports
plaintiff's claim; (2) when the complaint
reveals on its face that some fact essential
to plaintiff's claim is missing; and (3)
when some fact disclosed in the complaint
defeats the plaintiff’s claim.” Schloss
Outdoor Advertising Co. v. Charlotte, 50
N.C. App. 150, 152, 272 S.E.2d 920, 922
(1980).
Id. In the course of engaging in the required analysis, the
plaintiff’s complaint should be liberally construed. Dixon v.
Stuart, 85 N.C. App. 338, 340, 354 S.E.2d 757, 758 (1987). A
trial court’s decision to grant a dismissal motion is subject to
de novo review by this Court. Leary v. N.C. Forest Prods.,
Inc., 157 N.C. App. 396, 400, 580 S.E.2d 1, 4, aff’d, 357 N.C.
567, 597 S.E.2d 673 (2003). We will now utilize this standard
of review in considering the validity of Plaintiff’s challenges
to the trial court’s order.3
3
As a general proposition, we note that Plaintiff’s
complaint consists of little more than a generalized recitation
of the elements of the claims that she wishes to assert couched
in the language of the applicable legal principles unaccompanied
by any significant factual overlay. In view of the fact that a
proper analysis of the sufficiency of an affirmative pleading
-8-
B. Analysis of Plaintiff’s Claims
1. False Representation Claims
In the course of challenging the trial court’s dismissal
order, Plaintiff contends that the trial court erred by
dismissing her intentional and negligent misrepresentation,
unfair and deceptive practice,4 and intentional and negligent
infliction of emotional distress claims set out in her complaint
on the grounds that her allegation that Defendants had made
certain material misrepresentations to the Clerk of Superior
Court in the course of the foreclosure proceeding sufficed to
preclude the entry of an order dismissing those claims. In
necessarily focuses on whether the pleading “gives sufficient
notice of the events or transactions which produced the claim to
enable the adverse party to understand the nature of it and the
basis for it, to file a responsive pleading, and—by using the
rules provided for obtaining pretrial discovery—to get any
additional information that he may need to prepare for trial,”
Sutton v. Duke, 277 N.C. 94, 104, 176 S.E.2d 161, 167 (1970),
and the fact that a defendant cannot understand the basis for
the plaintiff’s claim based solely upon a mere generalized
recitation of the elements of the plaintiff’s claim
unaccompanied by any description of the facts upon which that
claim rests, litigants should avoid filing complaints or other
pleadings seeking affirmative relief that consist of little more
than a list of the elements of the claim that the litigant
wishes to assert.
4
Plaintiff’s unfair and deceptive practice claim hinges on
the assertion that Defendants violated N.C. Gen. Stat. § 75-54,
which prohibits any effort to collect a debt through the use of
“any fraudulent, deceptive or misleading representation,” by
falsely representing in the foreclosure proceeding that BAC was
the current note holder, a fact which, according to Plaintiff,
entitled her to the relief authorized by N.C. Gen. Stat. § 75-
16.
-9-
support of this contention, Plaintiff claims that, even though
BAC represented that it was the holder of Plaintiff’s note in
the foreclosure proceeding, she had demonstrated in her
complaint, including the attached documents, that Bank of New
York had been the holder of Plaintiff’s note and that BAC had
failed to provide any documentary support for its claim to have
subsequently become the holder of the note in question. We do
not find Plaintiff’s argument persuasive.5
As we have previously stated:
Under the doctrine of collateral estoppel,
or issue preclusion, a final judgment on the
merits prevents relitigation of issues
actually litigated and necessary to the
outcome of the prior action in a later suit
involving a different cause of action
between the parties or their privies. A
party asserting collateral estoppel is
required to show that the earlier suit
resulted in a final judgment on the merits,
that the issue in question was identical to
an issue actually litigated and necessary to
the judgment, and that both the party
asserting collateral estoppel and the party
against whom collateral estoppel is asserted
5
After the record on appeal was filed with this Court,
Defendants filed a motion seeking to have this case dismissed on
the grounds that, to the extent that Plaintiff’s claims rested
on actions that occurred during the litigation of the underlying
foreclosure proceeding, those claims had been rendered moot by
the fact that the foreclosure proceeding had been completed.
Although we might agree with Defendants’ contention in the event
that Plaintiff was attempting to recover the property that she
lost through the foreclosure process, Plaintiff is now seeking
to recover damages rather than to regain possession of her
property. As a result, Defendants’ motion to dismiss this case
on mootness grounds should be, and hereby is, denied.
-10-
were either parties to the earlier suit or
were in privity with the parties.
Williams v. Peabody, __ N.C. App. __, __, 719 S.E.2d 88, 93
(2011) (citations and quotation marks omitted) (quoting State ex
rel. Tucker v. Frinzi, 344 N.C. 411, 414, 474 S.E.2d 127, 128
(1996)). According to N.C. Gen. Stat. § 45-21.16(d), the Clerk
of Superior Court must determine, in the course of addressing a
foreclosure proceeding, that the person or entity on whose
behalf the foreclosure proceeding has been brought is the holder
of the note. Moreover, the documents attached to Plaintiff’s
complaint indicate that the Clerk of Superior Court did, in
fact, determine that BAC held Plaintiff’s note. As a result,
the issue of whether BAC was the holder of Plaintiff’s note was
“actually litigated and necessary to the outcome of the prior
action,” Williams, __ N.C. App. at __, 719 S.E.2d at 93, and
cannot be relitigated in this civil action. Thus, since the
complaint alleges facts that preclude Plaintiff from asserting
that BAC had falsely represented itself to be the note holder,
the claims that Plaintiff has attempted to assert against
Defendants based upon that contention are barred by the doctrine
of collateral estoppel.
In addition, a number of the claims that Plaintiff has
asserted in reliance upon the contention that Defendants falsely
represented that BAC held the note that Plaintiff had executed
-11-
in favor of Approved Federal were subject to dismissal for other
reasons as well. For example, Plaintiff failed to allege any
facts describing the allegedly false representation upon which
she predicates her claim that Defendants violated N.C. Gen.
Stat. § 75-54, a deficiency that provides an independent
justification for the dismissal of Plaintiff’s unfair and
deceptive practices claim. In addition, Plaintiff’s intentional
and negligent infliction of emotional distress claims were
properly dismissed given Plaintiff’s failure to allege facts
tending to show that she had sustained severe emotional
distress. E.g., Holloway v. Wachovia Bank & Trust Co., N.A.,
339 N.C. 338, 351, 452 S.E.2d 233, 240 (1994) (noting that
severe emotional distress is an essential element of a claim for
intentional infliction of emotional distress); Williams v. HomEq
Servicing Corp., 184 N.C. App. 413, 419, 646 S.E.2d 381, 385
(2007) (quoting Johnson v. Ruark Obstetrics, 327 N.C. 283, 304,
395 S.E.2d 85, 97 (1990)) (stating that severe emotional
distress is an element of a negligent infliction of emotional
distress claim, with examples of such distress including
“‘neurosis, psychosis, chronic depression, phobia, or any other
type of severe and disabling emotional or mental condition which
may be generally recognized and diagnosed by professionals
trained to do so’”). As a result, the trial court did not err
by dismissing Plaintiff’s intentional and negligent
-12-
misrepresentation, unfair and deceptive practices, and
intentional and negligent infliction of emotional distress
claims for failure to state a claim upon which relief can be
granted.
2. Unclean Hands
Secondly, Plaintiff asserts that the trial court erred by
dismissing her “unclean hands” claim. In essence, Plaintiff
contends that she adequately alleged an “unclean hands” claim
based on the assertion that Defendants’ conduct violated the
provisions of a consent judgment to which Bank of America was
subject. Once again, we conclude that Plaintiff’s argument
lacks merit.
Although Plaintiff treats Defendants’ “unclean hands” as
sufficient to support an affirmative claim for relief, this
assumption rests upon a fundamental misunderstanding of the
relevant legal doctrine. According to well-established North
Carolina law, the “unclean hands” doctrine, instead of
supporting the assertion of “an equitable claim,” provides an
equitable defense to an affirmative claim asserted by a person
who or an entity which has allegedly acted in an “unclean” or
inequitable manner. E.g., Roberts v. Madison Cnty. Realtors
Ass'n, 344 N.C. 394, 399, 474 S.E.2d 783, 787 (1996) (holding
that, “[w]hen equitable relief is sought, courts claim the power
to grant, deny, limit, or shape that relief as a matter of
-13-
discretion . . . normally invoked by considering an equitable
defense, such as unclean hands”); Elliott v. Enka-Candler Fire &
Rescue Dep’t, Inc., 213 N.C. App. 160, 162, 713 S.E.2d 132, 134
(2011) (noting that the “defendant filed an answer and asserted
several affirmative defenses, including unclean hands”). As a
result, given that the “unclean hands” doctrine provides the
basis for the assertion of an equitable defense rather than an
equitable claim, the trial court properly dismissed Plaintiff’s
“unclean hands” claim.
3. RESPA
Thirdly, Plaintiff contends that the trial court erred by
dismissing the claim that she asserted pursuant to RESPA, which
has been codified at 12 U.S.C. § 2601, et. seq. According to
Plaintiff’s complaint, BAC violated RESPA by failing to respond
to certain written requests for information and by failing to
notify Plaintiff in a timely manner that Plaintiff’s loan had
been transferred. We do not find Plaintiff’s argument
persuasive.
a. Failure to Respond to Qualifying Written Request
According to 12 U.S.C. § 2605(e)(2)(C), a loan servicer
that receives a qualified written request is required to
“provide the borrower with a written explanation or
clarification” within thirty days of the date of receipt “after
conducting an investigation.” Although a plaintiff who is able
-14-
to show that a violation of 12 U.S.C. § 2605(e)(2)(C) occurred
is entitled to assert a claim against the offending loan
servicer, we do not believe that Plaintiff has pled sufficient
facts to establish that a violation of the relevant statutory
provision actually occurred. Simply put, although Plaintiff
alleged that “BAC/BOA failed to respond in a proper and timely
way” to her written requests pursuant to 12 U.S.C. §
2605(e)(2)(C)(i), she failed to make any allegations concerning
the dates upon which the requests were made, the nature of
Plaintiff’s requests, or the dates upon which BAC responded to
Plaintiff’s requests. In the absence of such allegations,
Defendants have no ability to identify the facts that form the
basis for Plaintiff’s contention that an alleged violation of 12
U.S.C. § 2605(e)(2)(C) occurred.6 Davis v. Bowens, 2012 U.S.
Dist. LEXIS 101402 at *20, 2012 WL 2999766 at *6 (M.D.N.C. July
6
The complete absence of any factual allegations concerning
the dates upon which Plaintiff’s requests were made and upon
which Defendant responded to Plaintiff’s requests is
particularly significant given that, until July, 2010, a loan
servicer had 60 days within which to respond to a qualifying
request, Pub. L. No. 101-625, § 941(e)(2)(C)(1), 104 Stat. 4079,
4409, and that, after July 2010, the statutorily required
response time was reduced to 30 days. Pub. L. No. 111-203, §§ 4
& 1463(c)(2), 124 Stat. 1376, 1390, 2184. As a result of the
fact that Plaintiff’s complaint makes many references to actions
that occurred in 2010 and the fact that Plaintiff has provided
no factual allegations concerning the date upon which the
alleged violation of 12 U.S.C. § 2605(e)(2)(c) occurred, we are
simply unable to determine whether Plaintiff has actually
alleged that Defendants failed to respond to any qualifying
written requests that she may have submitted to them in a timely
manner.
-15-
23, 2012) (memorandum opinion and recommendation), adopted, 2012
U.S. Dist. LEXIS 136677, 2012 WL 4462184 (M.D.N.C. Sept. 25,
2012) (holding that, since the “[p]laintiff has included no
factual matter showing that his alleged written demands”
constituted qualified written requests, those claims were
subject to dismissal). As a result, Plaintiff’s complaint fails
to state a claim for relief predicated upon an alleged violation
of N.C. Gen. Stat. § 12 U.S.C. 2605(e)(2)(C).
b. Failure to Provide Notice of Transfer
According to 12 U.S.C. §§ 2605(c)(1) and 2605(c)(2)(A),
“[e]ach transferee servicer to whom the servicing of any
federally related mortgage is assigned, sold, or transferred
shall notify the borrower of any such assignment, sale, or
transfer” within fifteen days “after the effective date of the
transfer of the servicing of the mortgage loan (with respect to
which such notice is made),” subject to certain exceptions set
out in 12 U.S.C. §§ 2605(c)(2)(B) and 2605(c)(2)(C). In her
complaint, Plaintiff alleged that BAC “failed to send notice of
transfer of loan servicing to the Plaintiff within 15 days after
the effective date of transfer of the servicing of the mortgage
loan, in violation of 12 U.S.C. § 2605(c).” In her brief,
however, Plaintiff argues that Defendants “did not provide
Plaintiff or the trial court with a notice of transfer of loan”
in a timely manner. A cursory reading of 12 U.S.C. § 2605(c)
-16-
establishes that any claim for relief under that statutory
subsection must relate to the transfer of responsibility for
servicing a loan rather than a transfer of the loan itself. For
that reason, the argument advanced in Plaintiff’s brief does not
provide any basis for overturning the decision that the trial
court actually made. Viar v. N.C. Dept. of Transp., 359 N.C.
400, 402, 610 S.E.2d 360, 361 (2005)) (stating that “[i]t is not
the role of the appellate courts . . . to create an appeal for
an appellant”). In addition, Plaintiff has completely failed to
allege any facts in support of her contention that Defendants
violated 12 U.S.C. § 2605(c), including the approximate date
upon which the alleged transfer of responsibility for servicing
Plaintiff’s loan occurred and the identity of the entities
involved in the alleged transfer. In the absence of such
allegations, Defendants have been provided no meaningful notice
of the nature of the claim that Plaintiff has attempted to
assert against them in reliance upon 12 U.S.C. § 2605(c).
Davis, 2012 U.S. Dist. LEXIS 101402 at *16, 2012 WL 2999766 at
*5. As a result, the trial court did not err by dismissing this
aspect of Plaintiff’s RESPA claim either.7
7
Although Plaintiff has also challenged the dismissal of her
punitive damages claim, any award of punitive damages is “only
[appropriate] if the claimant proves that the defendant is
liable for compensatory damages.” N.C. Gen. Stat. § 1D-15(a).
In light of our decision to uphold the dismissal of the
substantive claims asserted in Plaintiff’s complaint, we need
-17-
C. Other Issues
Finally, Plaintiff contends that the trial court erred by
failing to determine that the institution and maintenance of the
foreclosure proceeding that led to the loss of her property was
precluded by the doctrine of res judicata in light of the fact
that a prior foreclosure proceeding had been dismissed with
prejudice based upon the trustee’s failure to appear at the
foreclosure hearing and by allowing the same counsel to
represent both Ms. Campbell, in her capacity as trustee, and
Bank of America, in its capacity as lender and servicer, in the
present proceeding. We do not believe that either of these
arguments provides any basis for overturning the trial court’s
dismissal order.
Although the exact nature of Plaintiff’s res judicata
argument is somewhat unclear, we understand her to be contending
that the trial court should have determined that the foreclosure
proceeding in which she lost her property should have been
decided in her favor on res judicata grounds. Aside from the
fact that this claim was not asserted in Plaintiff’s complaint,
Plaintiff’s argument totally overlooks the fact that Plaintiff,
having failed to challenge the foreclosure order on the basis of
the res judicata argument upon which she now seeks to rely in
not address the dismissal of her punitive damages claim in any
detail in this opinion.
-18-
the manner required by the applicable law, is bound by the
outcome in the underlying foreclosure proceeding. According to
well-established North Carolina law, the very doctrine of res
judicata upon which Plaintiff relies “bars every ground of
recovery or defense which was actually presented or which could
have been presented in the previous action.” Goins v. Cone
Mills Corp., 90 N.C. App. 90, 93, 367 S.E.2d 335, 336-37, disc.
rev. denied, 323 N.C. 173, 373 S.E.2d 108 (1988). Although
Plaintiff could have raised the res judicata argument upon which
she now relies in the foreclosure proceeding, she refrained from
acting in that manner and has, instead, sought to raise that
claim in this civil action. As a result, we have no hesitation
in concluding that Plaintiff’s res judicata claim is barred by
the very doctrine upon which Plaintiff now seeks to rely.
In addition, although Plaintiff is certainly correct in
pointing out that, according to N.C. Gen. Stat. § 45-
21.16(c)(7)(b), “the trustee [under a deed of trust] . . . is a
neutral party and, while holding that position in the
foreclosure proceeding may not advocate for the secured creditor
or for the debtor in the foreclosure proceeding,” we are unable
to understand why this principle provides any basis for
overturning the trial court’s dismissal order in this case.
Aside from the fact that Plaintiff does not appear to have
raised this issue in the trial court, Westminster Homes, Inc. v.
-19-
Town of Cary Zoning Bd. of Adjustment, 354 N.C. 298, 309, 554
S.E.2d 634, 641 (2001) (holding that “issues and theories of a
case not raised below will not be considered on appeal”), or to
have alleged any claim on the basis of this alleged conflict of
interest in her complaint, we see no indication that the
conflict of interest upon which Plaintiff relies occurred “[i]n
the instant case.” Instead, having been named as parties in
Plaintiff’s complaint, Ms. Campbell and Bank of America retained
the same counsel to represent them in this subsequent civil
action. Plaintiff has not pointed us to any authority tending
to show that the maintenance of such a joint defense in a
subsequent civil action in any way violates N.C. Gen. Stat. §
45-21.16(c)(7)b, and we know of none. As a result, the final
arguments advanced in Plaintiff’s brief provide no basis for
overturning the trial court’s dismissal order.
III. Conclusion
Thus, for the reasons set forth above, we conclude that
none of Plaintiff’s challenges to the trial court’s dismissal
order have merit. As a result, the trial court’s order should
be, and hereby is, affirmed.8
8
On 19 June 2013, Defendants filed a motion seeking the
imposition of sanctions against Plaintiff on the grounds that
Plaintiff had failed to comply with the 24 May 2013 order of the
Court striking certain portions of the record on appeal as filed
and requiring Plaintiff to file an addendum to the record on
appeal that contained several items that the parties had
-20-
AFFIRMED.
Judges ROBERT N. HUNTER, JR., and DAVIS concur.
Report per Rule 30(e).
previously agreed should be included in that document on or
before 14 June 2013. In response, Plaintiff asserted that she
had not received the order that she was alleged to have
violated, that she had only learned about it when she received
Defendants’ 19 June 2013 sanctions motion, and that she would
comply with the order in question immediately. In light of
these filings, the Court entered an order on 5 July 2013
requiring Plaintiff to file the addendum on or before 15 July
2013, providing that Plaintiff’s appeal would be dismissed if
she failed to make the required filing, and referring the issue
of whether additional sanctions should be imposed to the panel
to which this case would be assigned for further consideration.
The addendum to the record referenced in the 24 May 2013 and 5
July 2013 orders was filed on 10 July 2013. Although we find
Plaintiff’s failure to comply with the Court’s prior order
troubling, we conclude, in the exercise of our discretion, that
no additional sanctions should be imposed in this instance.
However, we admonish Plaintiff to remain informed about and to
scrupulously comply with her obligations in connection with the
course of the record settlement process in the future. As a
result, Defendants’ sanctions motion should be, and hereby is,
denied.