ERVIN, Judge.
Plaintiff Kay R. Hamilton appeals from an order entered on 10 dismissal motions filed by Defendants First American Title Insurance Company (First American) and Mortgage Information Services, Inc. (MIS), and
On 22 April 2005, Plaintiff procured a home loan from Ameriquest Mortgage Company. As part of this transaction, Ameriquest engaged MIS, acting as a settlement agent, to provide services in connection with Plaintiff's loan. In exchange for these services, Plaintiff was charged various fees, which were paid from the proceeds of Plaintiff's loan.
On 25 August 2008, Plaintiff filed a complaint in Wake County Superior Court against First American and MIS.
Closing fee to MIS $325.00 Title search [fee] to MIS $225.00 Title clearing [fee] to MIS $ 75.00 Title insurance binder [fee] to MIS $ 50.00 Signing fee to Mobile Closings $250.00 Title insurance $371.60 Courier Fee to MIS $ 60.00
The claims asserted in Plaintiff's complaint fall into several categories: (1) claims that certain fees represented payments to a non-lawyer for the provision of legal services; (2) claims that certain payments involved the unlawful division of fees for legal services between lawyers and non-lawyers; (3) claims that certain fees violated the prohibition contained in N.C. Gen.Stat. § 28-8(d) against the charging of unreasonable third party fees associated with loan-related goods, products, or services; (4) claims that certain fees violated N.C. Gen.Stat. § 58-33-85(b) because Plaintiff did not consent in advance and in writing to the imposition of those fees; (5) claims that work for which certain fees were charged was not performed properly; (6) claims that certain fees were not permitted by the rate filing that First American had made with the North Carolina Department of Insurance; (7) claims that certain fees exceeded the level authorized by the North Carolina Notary Public Act; (8) claims that the services associated with certain fees were not performed at all; and (9) claims that closing insurance was issued in violation of N.C. Gen.Stat. § 58-26-1.
On 25 November 2008, this case was classified as an Exceptional Case pursuant to Rule 2.1 of the General Rules of Practice and assigned to the trial court. On 27 October 2008, Defendants filed separate dismissal motions.
On 10 November 2009, the trial court entered an order granting Defendants' dismissal motions in part and denying them in part and granting Plaintiff's class certification motion in part and denying it in part. The trial court dismissed all of the claims asserted in Plaintiff's complaint except the claim pertaining to the following:
In addition, the trial court granted class certification
Plaintiff noted an appeal to this Court on 25 November 2009. Subsequently, Defendants moved for dismissal of Plaintiff's appeal.
An order is either "interlocutory or the final determination of the rights of the parties." N.C. Gen.Stat. § 1A-1, Rule 54(a). "An interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy." Veazey v. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950) (citation omitted). The order from which Plaintiff has attempted to appeal in this case is clearly interlocutory given that it does not dispose of all claims as to either Defendant. See Pratt v. Staton, 147 N.C. App. 771, 773, 556 S.E.2d 621, 623 (2001) (stating that "[a]n order . . . granting a motion to dismiss certain claims in an action, while leaving other claims in the action to go forward, is plainly an interlocutory order"). As a general proposition, only final judgments, as opposed to interlocutory orders, may be appealed to the appellate courts. Steele v. Hauling Co., 260 N.C. 486, 491, 133 S.E.2d 197, 201 (1963) (citing Perkins v. Sykes, 231 N.C. 488, 490, 57 S.E.2d 645, 646 (1950)); Goldston v. American Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990) (stating that "there is no right of immediate appeal from interlocutory orders and judgments"). Appeals from interlocutory orders are only available in "exceptional cases." Ford v. Mann, ___ N.C.App. ___, ___, 690 S.E.2d 281, 283 (2010). Interlocutory orders are, however, subject to appellate review:
Currin & Currin Constr., Inc. v. Lingerfelt, 158 N.C. App. 711, 713, 582 S.E.2d 321, 323
Since the order which Plaintiff appeals was not certified for immediate review pursuant to N.C. Gen.Stat. § 1A-1, Rule 54(b),
The extent to which an interlocutory order affects a substantial right must be determined on a case-by-case basis. McCallum v. N.C. Coop. Extension Serv., 142 N.C. App. 48, 50, 542 S.E.2d 227, 231 (citing Bernick v. Jurden, 306 N.C. 435, 439, 293 S.E.2d 405, 408 (1982)), disc. review denied, 353 N.C. 452, 548 S.E.2d 527 (2001); Travco Hotels v. Piedmont Natural Gas Co., 332 N.C. 288, 292, 420 S.E.2d 426, 428 (1992)(stating that, "[i]n determining which interlocutory orders are appealable and which are not, [this Court] must consider the particular facts of each case and the procedural history of the order from which an appeal is sought") (citations omitted). In making this determination, we take a "restrict[ive] view of the `substantial right' exception to the general rule prohibiting immediate appeals from interlocutory orders."
According to clearly-established North Carolina law, a party's preference for having all related claims determined during the course of a single proceeding does not rise to the level of a substantial right. J & B Slurry Seal Co. v. Mid-South Aviation, Inc., 88 N.C. App. 1, 7, 362 S.E.2d 812, 816 (1987). In J & B Slurry Seal, we discussed the Supreme Court's decision in Green v. Duke Power Co., 305 N.C. 603, 290 S.E.2d 593 (1982), stating that:
Id. Issues are the "same" if the facts relevant to their resolution overlap in such a way as to create a risk that separate litigation of those issues might result in inconsistent verdicts. Davidson v. Knauff Ins. Agency, 93 N.C. App. 20, 25, 376 S.E.2d 488, 491, disc. review denied, 324 N.C. 577, 381 S.E.2d 772 (1989). As we explained in Davidson:
Id. (quoting Green, 305 N.C. at 608, 290 S.E.2d at 596); see also J & B Slurry Seal, 88 N.C.App. at 9, 362 S.E.2d at 817 (explaining that "the presence of identical factual issues in both proceedings may produce inconsistent verdicts and thus an immediate appeal is [ ] allowed").
The mere fact that claims arise from a single event, transaction, or occurrence does not, without more, necessitate a conclusion that inconsistent verdicts may occur unless all of the affected claims are considered in a single proceeding. Moose v. Nissan of Statesville, Inc., 115 N.C. App. 423, 428, 444 S.E.2d 694, 698 (1994). In Moose, a plaintiff sought compensatory and punitive damages based on a single automobile accident. Id. We held that, "despite being based on the same facts," "there [was] no possibility of inconsistent verdicts" if plaintiff's claims were determined in separate proceedings because "the issues before the jury [would be] separate." Id. at 428, 444 S.E.2d at 697-98. In support of this conclusion, we explained that:
Id. at 428, 444 S.E.2d at 698; see also Nguyen v. Taylor, 200 N.C. App. 387, 393-94, 684 S.E.2d 470, 474-75 (2009) (stating that, "[w]hile plaintiffs are correct that all of these claims ultimately arise out of [the same incident], they are not correct in asserting that this creates a substantial right based upon the possibility of inconsistent verdicts and supports this Court's hearing of an interlocutory appeal[;]" that, "[a]lthough the facts involved in the claims remaining before the trial court may overlap with the facts involved in the claims that have been dismissed, plaintiffs have failed to show that they will be prejudiced by the possibility of inconsistent verdicts in two separate proceedings[;]" and that, "[a]ccordingly, plaintiffs have failed to establish that a substantial right will be lost unless the trial court's order is immediately reviewed").
In light of the principle enunciated in Moose and Nguyen, we must look beyond the fact that Plaintiff's claims arose out of a single transaction in order to determine whether the trial court's order is immediately appealable. Instead, we must evaluate the specific proof required to litigate each claim in order to determine whether inconsistent verdicts might result in the event that we refrained from considering Plaintiff's appeal on the merits at this time.
On appeal, Plaintiff contends that her substantial right to have all of her claims against First American, each of which alleges the charging of unreasonable fees, determined in a single proceeding would be adversely affected were we to refuse to hear her appeal at this time. More specifically, Plaintiff argues that separately litigating her claims alleging that First American charged an unreasonable title binder fee, which survived Defendants' dismissal motions, and her claims challenging the reasonableness of the closing fee, the title search fee, the title clearing fee, the signing fee, and the courier fee, which were not equally successful in surviving Defendant's dismissal motions, might result in inconsistent verdicts. In each of these claims, Plaintiff has sought to have First American found liable based on a derivative liability theory. For that reason, the success of each claim depends upon a finding that First American "was either the principal of, a co-conspirator of, or a cooperating participant in MIS's unfair trade practices." As Plaintiff correctly points out, "there will be issues of fact for trial as to whether or not (and to what extent) MIS was [First American]'s agent in collecting the `title binder,' whether or not MIS and [First
As we understand Plaintiff's claims, First American's liability to Plaintiff must be assessed on a fee-specific basis. Even under Plaintiff's theory of the case, First American may have acted as MIS's principal, conspired with MIS, or otherwise assisted MIS with respect to one fee without having acted in the same manner with respect to another. For that reason, a finding that First American is liable to Plaintiff with respect to the title binder fee would not necessarily be inconsistent with a finding that First American is not liable as to one or more of the other fees. As a result, we do not find Plaintiff's "inconsistent verdict" argument relating to First American's liability for the charging of different allegedly unreasonable fees to be persuasive.
In addition, Plaintiff argues that its challenges to the reasonableness of the fees described in its complaint should not be considered separately because "the fees charged by MIS are alleged to be unreasonable in consideration of the totality of fees charged." We do not find this aspect of Plaintiff's argument persuasive either, since all of the "unreasonable fee" claims that Plaintiff has lodged against MIS survived Defendants' dismissal motions. As a result, the "aggregate reasonableness" of those fees will be determined by a single jury, with any subsequent claims against First American relating to these fees still requiring a fee-by-fee determination of the nature that we have outlined above. Simply put, Plaintiff has not demonstrated the existence of a substantial right to have the fee-based claims that she has asserted against First American litigated in the same proceeding in which MIS's liability for the charging of those fees is addressed. Long v. Giles, 123 N.C. App. 150, 152-53, 472 S.E.2d 374, 375-76 (1996) (holding that no substantial right is affected when a plaintiff's claims based on derivative liability are litigated separately from the claims that the plaintiff has asserted based on a direct liability theory because no possibility of inconsistent verdicts exists). Thus, Plaintiff has not established that there is a risk of inconsistent verdicts based upon her "cumulative unreasonableness" theory.
Next, Plaintiff appears to contend that separately litigating her claims alleging the charging of unreasonable fees and her claims alleging that the work performed in exchange for the payment of those fees was unlawfully performed by non-lawyers creates a risk of inconsistent verdicts. In support of this argument, Plaintiff points out that, in order to resolve both categories of claims, the jury must consider facts relating to the "scope of the work performed" in return for the payment of the challenged fees. There is, however, a clear difference in the manner in which these facts will be viewed during the jury's consideration of each class of claims. In evaluating the reasonableness of the challenged fees, "the scope of the work performed" is relevant for the purpose of examining the appropriateness of the amount charged in light of the nature and extent of
As a result, we do not find the arguments advanced in Plaintiff's brief and response to Defendants' dismissal motions with respect to the appealability issue persuasive.
Generally speaking, an interlocutory order denying a request for class certification is immediately appealable on the theory that it affects a substantial right. Stetser v. TAP Pharm. Prods., Inc., 165 N.C. App. 1, 10-11, 598 S.E.2d 570, 577-78 (2004) (citations omitted); Perry v. Cullipher, 69 N.C. App. 761, 762, 318 S.E.2d 354, 356 (1984). However, as we explained in Stetser, the "general rule[][is] not dispositive," so that "each interlocutory order must be analyzed
Although Plaintiff argues that, "[i]f a denial of certification is immediately appealable because it eliminates all class members' claims, then a partial denial of class certification that eliminates some members' claims must likewise be appealable," we do not find this argument persuasive. In cases, such as this one, in which a request for class certification is partially granted, a class is defined and certain issues are designated for consideration on a class-wide basis. In light of the fact that an order, such as that at issue here, does involve a refusal to certify certain issues for consideration in the context of a class action, the class representative may, after final judgment, seek appellate review of that portion of the trial court's order refusing class certification on behalf of the proposed class. Based upon these considerations, we believe that an order partially denying class certification does not affect a substantial right to the same extent and in the same manner that an order refusing to certify any issue for consideration on a class-wide basis does. As a result, the trial court's decision to partially deny Plaintiff's motion for class certification, like the trial court's order partially granting Defendants' motions to dismiss, is not appealable at this time.
Thus, for the reasons set forth above, we conclude that Plaintiff has, in this case, attempted to appeal from an unappealable interlocutory order. In light of that fact, we lack jurisdiction over Plaintiff's appeal and must dismiss it. Furthermore, we decline Plaintiff's invitation to treat its appeal as a petition for certiorari based on our determination that the general policy principles counseling against entertaining interlocutory appeals outweigh the "public interest" considerations upon which Plaintiff relies in urging us to grant certiorari in this case. As a result, Plaintiff's appeal should be, and hereby is, dismissed.
APPEAL DISMISSED.
Judges BRYANT and STEELMAN concur.