Hamilton v. MORTGAGE INFORMATION SERVICES, INC.
212 N.C. App. 73
| N.C. Ct. App. | 2011Background
- Hamilton sued MIS and First American for unfair and deceptive trade practices under N.C. Gen.Stat. § 75-1.1 over seven fees charged in her 2005 Ameriquest loan closing.
- Fees charged included: closing fee to MIS $325, title search $225, title clearing $75, title binder $50, signing fee $250, title insurance $371.60, and courier fee $60.
- Plaintiff alleged the fees violated multiple statutes and that many North Carolina borrowers were similarly charged.
- The case was designated an Exceptional Case and proceeded with separate dismissal motions and a motion for class certification.
- On November 10, 2009, the trial court dismissed most claims, leaving some against MIS (and some against First American) and granted class certification in part for certain issues.
- Hamilton appealed the interlocutory order, but the Court of Appeals dismissed for lack of jurisdiction because the order was not final or certified for immediate review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the interlocutory order appealable as a substantial-right exception? | Hamilton contends immediate review is needed to avoid inconsistent verdicts and preserve substantial rights in derivative liability. | MIS and First American argue no substantial right is affected and no basis for immediate appeal. | No; not appealable under substantial-right doctrine. |
| Does partial denial of class certification justify immediate appeal? | Partial denial eliminates some class claims, potentially affecting a substantial right. | Partial denial is not equivalent to a total denial and does not establish a substantial right. | No; partial denial not appealable at this time. |
| Do derivative liability theories create risk of inconsistent verdicts if tried separately? | Different fee-specific liability theories against First American depend on agency/conspiracy findings with MIS, risking inconsistent verdicts if heard separately. | Liability can be fee-specific; separate trials do not necessarily yield inconsistent verdicts. | No; no substantial risk of inconsistent verdicts from separate proceedings. |
| Can aggregating 'unreasonable fee' claims and non-lawyer performance claims create a substantial-right issue? | Aggregate challenges depend on same operating facts and could prejudice if split. | The factual inquiries differ enough to permit separate adjudication without prejudice. | No; not a substantial-right basis to permit interlocutory appeal. |
Key Cases Cited
- Veazey v. City of Durham, 231 N.C. 357, 57 S.E.2d 377 (1950) (defines interlocutory vs final judgments and appealability framework)
- Pratt v. Staton, 147 N.C.App. 771, 556 S.E.2d 621 (2001) (interlocutory orders disposing of some claims are not final)
- Goldston v. American Motors Corp., 326 N.C. 723, 392 S.E.2d 735 (1990) (final judgments vs interlocutory orders; general rule against immediate appeals)
- Currin & Currin Constr., Inc. v. Lingerfelt, 158 N.C.App. 711, 582 S.E.2d 321 (2003) (test for appealability under substantial-right exception)
- Embler v. Embler, 143 N.C.App. 162, 545 S.E.2d 259 (2001) (two-part test for substantial right; delay would prejudice)
- Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C.App. 377, 444 S.E.2d 252 (1994) (appellate review burden on showing substantial right)
- Stetser v. TAP Pharm. Prods., Inc., 165 N.C.App. 1, 598 S.E.2d 570 (2004) (interlocutory review of class certification; substantial-right inquiry)
- Nguyen v. Taylor, 200 N.C.App. 387, 684 S.E.2d 470 (2009) (aggregate-fee theories and multiple claims; no automatic consolidation)