Hamilton v. Mortgage Info. Serv. Inc.

• Decision Date: 17 May 2011
• Docket Number: No. COA10–45.,COA10–45.
• Citation: 711 S.E.2d 185
• Parties: Kay R. HAMILTON, on behalf of herself and all other similarly situated, Plaintiffv.MORTGAGE INFORMATION SERVICES, INC., and First American Title Insurance Company, Defendants.
• Court: North Carolina Court of Appeals

711 S.E.2d 185

Kay R. HAMILTON, on behalf of herself and all other similarly situated, Plaintiff

v.MORTGAGE INFORMATION SERVICES, INC., and First American Title Insurance Company, Defendants.

No. COA10–45.

Court of Appeals of North Carolina.

May 17, 2011.

OPINION TEXT STARTS HERE

Appeal by Plaintiff from order entered 10 November 2009 by Judge Ripley E. Rand in Wake County Superior Court. Heard in the Court of Appeals 29 September 2010.

Hartzell & Whiteman, L.L.P., Raleigh, by J. Jerome Hartzell; Financial Protection Law Center, Wilmington, by Mallam J. Maynard, Maria D. McIntyre, and Andrea B. Young; North Carolina Justice Center, by Carlene McNulty, Raleigh; Puryear & Lingle, PLLC, Greensboro, by David B. Puryear, Jr., for Plaintiff–Appellant.

Bailey & Dixon, L.L.P., by Dayatra T. Matthews, G. Lawrence Reeves, Jr., Raleigh, and Jeffrey D. McKinney, for Defendant–Appellee Mortgage Information Services, Inc.Ellis & Winters, LLP, Raleigh, by Matthew W. Sawchak, and Stephen D. Feldman; Sonnenschein Nath & Rosenthal, LLP, by Charles A. Newman and Jason Maschmann, for Defendant–Appellee First American Title Insurance Co.

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 partially denied Plaintiff's request for class certification. After careful consideration of the record in light of the applicable law, we conclude that Plaintiff's appeal has been taken from an unappealable interlocutory order and must, for that reason, be dismissed.

I. Factual Background

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.¹ In her complaint, Plaintiff alleged that the charging of certain fees associated with her loan constituted an unfair and deceptive trade practice, actionable pursuant to N.C. Gen.Stat. § 75–1.1, and that Defendants “charged numerous other North Carolina borrowers similarly inappropriate fees in connection with their mortgages, thereby giving rise to a class action.” More specifically, Plaintiff challenged the following seven fees:

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. ² On 27 February 2009, Plaintiff filed a Motion for Class Certification. The trial court heard Defendants' dismissal motions on 8 May 2009 and Plaintiff's class certification motion on 4 June 2009.

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:

1. The “closing fee” as it relates to the unreasonableness of the fee under N.C. Gen.Stat. § 24–8(d). This allegation survives as to Defendant MIS only.

2. The “title search” fee as it relates to the unreasonableness of the fee under N.C. Gen.Stat. § 24–8(d). This allegation survives as to Defendant MIS only.

3. The “title clearing” fee as it relates to the unreasonableness of the fee under N.C. Gen.Stat. § 24–8(d). This allegation survives as to Defendant MIS only.

4. The “title binder” fee as it relates to the unreasonableness of the fee under N.C. Gen.Stat. § 24–8(d). This allegation survives as to both Defendant MIS and First American.

5. The “signing fee” as it relates to the unreasonableness of the fee under N.C. Gen.Stat. § 24–8(d), the amount that it was in excess of that set forth in the Notary Public Act, and the failure of Defendant MIS to provide the services associated with it under N.C. Gen.Stat. § 24–8(d). These allegations survive as to Defendant MIS only.

6. The “title insurance” fee as it relates to the conduct of Defendant MIS and Defendant First American in failing to offer the “reissue” rate set forth in First American's rate filing at the North Carolina Department of Insurance. These allegations survive as to both Defendant MIS and Defendant First American.

7. The “courier fee” as to the unreasonableness of the fee under N.C. Gen.Stat. § 24–8(d) and the failure of Defendant MIS to provide the services associated with it under N.C. Gen.Stat. § 24–8(d). These allegations survive as to Defendant MIS only.

In addition, the trial court granted class certification ³ with respect to the following issues:

... (a) whether the “signing fee” imposed by Defendant MIS was in excess of that prescribed by the Notary Public Act; (b) whether Defendants MIS and First American failed to provide the services associated with the “signing fee” imposed by Defendant MIS; (c) whether the failure of Defendants MIS and First American to offer the “reissue rate” for a title insurance policy in the imposition of the “title insurance fee” violate[d] the filed rate doctrine; and (d) whether Defendant MIS failed to provide the services associated with the “courier fee” imposed by Defendant MIS.Plaintiff noted an appeal to this Court on 25 November 2009. Subsequently, Defendants moved for dismissal of Plaintiff's appeal.

II. Legal Analysis

A. Interlocutory 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:

“if (1) the order is final as to some claims or parties, and the trial court certifies pursuant to [N.C. Gen.Stat.] § 1A–1, Rule 54(b) that there is no just reason to delay the appeal, or (2) the order deprives the appellant of a substantial right that would be lost unless immediately reviewed.”Currin & Currin Constr., Inc. v. Lingerfelt, 158 N.C.App. 711, 713, 582 S.E.2d 321, 323 (2003) (quoting Myers v. Mutton, 155 N.C.App. 213, 215, 574 S.E.2d 73, 75 (2002), disc. review denied, 357 N.C. 63, 579 S.E.2d 390 (2003)). The appealing party bears the burden of demonstrating that the order from which he or she seeks to appeal is appealable despite its interlocutory nature. Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C.App. 377, 379, 444 S.E.2d 252, 253 (1994). If a party attempts to appeal from an interlocutory order without showing that the order in question is immediately appealable, we are required to dismiss that party's appeal on jurisdictional grounds. Pasour v. Pierce, 46 N.C.App. 636, 639, 265 S.E.2d 652, 653 (1980) (citing Waters v. Qualified Personnel, Inc., 294 N.C. 200, 210, 240 S.E.2d 338, 344 (1978)). As a result, given the interlocutory nature of the order from which Plaintiff appeals, we are required to determine, before considering the merits of Plaintiff's challenges to the trial court's order, whether Plaintiff's appeal is properly before this Court at this time.

B. Substantial Right

Since the order which Plaintiff appeals was not certified for immediate review pursuant to N.C. Gen.Stat. § 1A–1, Rule 54(b),⁴ Plaintiff is only entitled to interlocutory review of the trial court's order in the event...