Opinion
NO. COA10-1408
08-16-2011
DIANNE MICHELE CARTER Plaintiff, v. NOAH MAXIMOV Defendant. and IN THE MATTER OF THE PROPOSED FORECLOSURE OF CLAIM OF LIEN FILED AGAINST ERICA LAUREN CARTER BENTLY LIVING TRUST MOORISH HOLY TEMPLY OF SCIENCE/MOORISH SCIENCE TEMPLE South Carolina Republic Temple No. 3A BY SYCAMORE GROVE HOMEOWNERS ASSOCIATION, INC. DATED February 24, 2010 RECORDED IN DOCKET #10-M-2730 IN THE OFFICE OF THE CLERK OF SUPERIOR COURT FOR MECKLENBURG COUNTY
Dianne Michele Carter pro se. Bolster Rogers & McKeown, LLP, by Jeffrey S. Bolster, for defendant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Mecklenburg County No. 09 CVS 30047
Mecklenburg County No. 10 SP 3378
Appeal by plaintiff from orders entered 28 May 2010 by Judge Forrest D. Bridges in Mecklenburg County Superior Court and 6 August 2010 by Judge Albert Diaz in Mecklenburg County Superior Court. Heard in the Court of Appeals 14 April 2011.
Dianne Michele Carter pro se.
Bolster Rogers & McKeown, LLP, by Jeffrey S. Bolster, for defendant.
THIGPEN, Judge.
Sycamore Grove Homeowners Association, Inc. ("the Association") filed a claim of lien and subsequent foreclosure proceedings against two property owners for failing to pay their homeowners dues. Dianne Michele Carter did not own either property, but became involved in both cases. The trial court dismissed both actions. In the first case, we must decide whether the trial court erred when it dismissed Ms. Carter's complaint pursuant to Rule 8(a)(2) and Rule 41(b) of the North Carolina Rules of Civil Procedure. In the second case, we must decide whether the trial court erred when it dismissed Ms. Carter's appeal because she lacked standing. After a complete review of the record on appeal, we affirm the decisions of the trial court.
First Case: 09-CVS-30047
On or about 7 May 2009, the Association filed a claim of lien for unpaid homeowners dues against the lot owned by Charles Johnson located at 7026 Sycamore Grove Court, Charlotte, North Carolina (case number 09-SP-4737). In response to the foreclosure action, on 7 August 2009 Mr. Johnson and Ms. Carter filed an "Affidavit of Negative Averment, Opportunity to Cure, and Counterclaim," naming Mr. Johnson and Ms. Carter as third party plaintiffs, and various individuals and entities, including the Association, its attorney, and the attorney's law firm, as third party defendants. On 7 December 2009, the trial court entered an order dismissing Mr. Johnson and Ms. Carter's appeal and counterclaims for various reasons, including that "equitable defenses and counterclaims in foreclosure proceedings must be brought by a separate civil action[.]"
On 17 December 2009, Ms. Carter filed the first action (09-CVS-30047) against Noah Maximov, the president of the Association, alleging breach of contract and seeking injunctive relief and civil and criminal penalties. Following Mr. Maximov's motion to dismiss, the court entered an order giving Ms. Carter 20 days to amend her complaint to show standing. In her amended complaints filed on 26 February 2010 and 5 March 2010, Ms. Carter argued she had standing to file the lawsuit because of her position as a trustee and administrator for the Erica Lauren Bentley Carter Living Trust ("the Trust"), the owner of property located at 7042 Sycamore Grove Court, Charlotte, North Carolina. On 25 March 2010, Mr. Maximov filed a motion to dismiss and a motion for sanctions. On the same day, Ms. Carter filed a motion for summary judgment.
Following a hearing on the motions, on 26 May 2010 the trial court entered an order granting Mr. Maximov's motion to dismiss and awarding sanctions against Ms. Carter. The court made the following findings: Ms. Carter lacked standing; although Ms. Carter argued she had standing by virtue of her position as a trustee and administrator for the Trust, the property located at 7042 Sycamore Grove Court was conveyed by quit claim deed to the Moorish Holy Temple of Science/Moorish Science Temple ("Moorish Holy Temple") on 25 December 2009, with the Trust agreeing to release all right, title, and interest in the property; Ms. Carter was not authorized to appear on behalf of the Moorish Holy Temple because she is not a licensed attorney; the dismissal with prejudice of the prior claim (case number 09-SP-4737) filed on 7 December 2009 bars the lawsuit pursuant to the doctrine of res judicata; because Ms. Carter "flagrantly violated Rule 8 of the North Carolina Rules of Civil Procedure," her complaint should be dismissed with prejudice pursuant to Rule 8(a)(2) and Rule 41(b) of the North Carolina Rules of Civil Procedure; and the UCC Financing Statement filed by Ms. Carter against Mr. Maximov and the law firm of Horack, Talley, Pharr & Lowndes, P.A. claiming a lien in the amount of $17,547,524 is "a sham document . . . [and] a legal nullity with no legal effect." The court also ordered that within five days of the entry of its order, Ms. Carter "shall take all necessary actions with the Register of Deeds office in Mecklenburg County to strike this Financing Statement." Ms. Carter appeals pro se from this order.
On 27 May 2010, the trial court entered a preliminary injunction against Ms. Carter in response to a complaint filed by the North Carolina State Bar. The court found that Ms. Carter "has provided or offered to provide legal services, including the preparation of documents . . . and the attempted representation of others in legal disputes with third parties" and that Ms. Carter "is harming or potentially harming both of the parties whom she purports to represent and the public by clouding the public record with frivolous documents[.]" Ms. Carter was ordered not to appear before a court on behalf of any other person, firm, or corporation; not to prepare or assist in the preparation of any legal documents; and not to provide any advice or counsel to others with respect to a legal matter before the courts, including foreclosure proceedings.
On appeal, Ms. Carter argues the trial court (I) violated the North Carolina Constitution by ruling that she could not appear on behalf of the Moorish Holy Temple; (II) erred by finding that the lawsuit was barred by res judicata; and (III) improperly allowed ex parte communications.
"The proper standard of review for a motion for an involuntary dismissal under Rule 41 is (1) whether the findings of fact by the trial court are supported by competent evidence, and (2) whether the findings of fact support the trial court's conclusions of law and its judgment." Dean v. Hill, 171 N.C. App. 479, 483, 615 S.E.2d 699, 701 (2005) (citation omitted). "Unchallenged findings of fact are presumed to be supported by competent evidence, and are binding on appeal." Cohen v. McLawhorn, ____ N.C. App. ____, ____, 704 S.E.2d 519, 524 (2010) (quotation marks and citations omitted).
Ms. Carter does not cite the correct standard of review in her brief and does not specifically challenge the trial court's findings of fact as unsupported by the evidence. In accordance with her pro se status, however, we will construe her arguments liberally and will review them to the extent that they challenge the trial court's findings of fact. See Javurek v. Tax Review Bd. Dept. of State Treasurer, 165 N.C. App. 834, 840, 605 S.E.2d 1, 5 (2004), appeal dismissed, 359 N.C. 411, 612 S.E.2d 321 (2005) ("When construed liberally, in accordance with his pro se status, Javurek's petition could be viewed as a request for an order requiring the Board to act on his petition.").
Ms. Carter first appears to challenge finding of fact number 1, in which the trial court found that she "lacks standing to file this lawsuit." Ms. Carter contends she has standing because she "has maintained continuous power of attorney over said property" since 2006. However, Ms. Carter does not challenge the trial court's finding that:
Although the trial court found as fact that Ms. Carter lacks standing, the court did not dismiss her complaint for lack of standing. Rather the trial court dismissed her complaint with prejudice pursuant to Rule 8(a)(2) and Rule 41(b) based on "the flagrant and repeated" violations of Rule 8 of the North Carolina Rules of Civil Procedure. Accordingly, we review the trial court's dismissal on that basis.
[Ms. Carter] is not a property owner, and was not a property owner at any time pertinent to this lawsuit, and to the extent that [Ms. Carter] contends that she was or may have been a Trustee in this Living Trust [and therefore has standing], such interests were conveyed to the Mo[o]rish Holy Temple of Science on or about December 25, 2009.This unchallenged finding of fact is presumed to be supported by competent evidence and is binding on appeal. See Cohen, ____ N.C. App. at ____, 704 S.E.2d at 524. Accordingly, we hold the trial court did not err in making finding of fact number 1.
Ms. Carter next appears to contend the trial court incorrectly found in finding of fact number 2 that she "is not authorized to appear on behalf of [the Moorish Holy Temple]." However, this Court has held that "in North Carolina a corporation must be represented by a duly admitted and licensed attorney-at-law and cannot proceed pro se unless doing so in accordance with the exceptions set forth in this opinion." Lexis-Nexis, Div. of Reed Elsevier, Inc. v. Travishan Corp. , 155 N.C. App. 205, 209, 573 S.E.2d 547, 549 (2002) (noting the following three exceptions: (1) a corporate employee, who is not an attorney, can prepare legal documents; (2) a corporation can represent itself in a small claims action; and (3) a corporation may make an appearance in court through its vice-president to avoid default) (citations omitted). Ms. Carter does not challenge the trial court's finding that the Moorish Holy Temple is a corporation; thus this finding is binding on appeal. See Cohen, ____ N.C. App. at ____, 704 S.E.2d at 524. Furthermore, Ms. Carter does not dispute that she is not a licensed attorney. Following our holding in Lexis-Nexis, the trial court did not err in finding that Ms. Carter is not authorized to appear on behalf of the Moorish Holy Temple.
In finding of fact number 3, the trial court found:
there is an identity of the parties or their privies in the instant lawsuit, and the previous action, 09-SP-4737, that was dismissed by the Honorable W. Robert Bell by Order filed on December 7, 2009, and that there is an identity of the causes of action alleged in these two lawsuits, and that Judge Bell's dismissal with prejudice on December 7, 2009, precludes re-litigation in this action, under the doctrine of Res Judicata. In the previous action dismissed by Judge Bell, the Plaintiff submitted toMs. Carter further appears to contend the trial court erred in applying res judicata because the doctrine applies only to the parties to the action, and her attempts to be a party to case 09-SP-4737 were disallowed.
the Court's jurisdiction, attempted to avail herself of such jurisdiction, and labeled herself as a third-party Plaintiff in a counterclaim against Noah Maximov and others, alleging the same claims that are contained in the lawsuit before this Court.
For res judicata to apply, "it is not necessary that precisely the same parties were plaintiffs and defendants in the two suits; provided the same subject in controversy, between two or more of the parties has been directly in issue in the former suit, and decided." Green v. Dixon, 137 N.C. App. 305, 309, 528 S.E.2d 51, 54-55 (citation and quotation marks omitted), aff'd, 352 N.C. 666, 535 S.E.2d 356 (2000) . Here, Ms. Carter included herself as a third party plaintiff in the previous counterclaim against numerous third party defendants, including Mr. Maximov. Furthermore, the record does not contain any evidence that Ms. Carter's "attempts to be a party to the Charles E. Johnson case 09-SP-4737 were disallowed." Accordingly, we conclude the trial court did not err in finding that there is an identity of the parties or their privies in the instant lawsuit and the previous action, 09-SP-4737.
Ms. Carter next appears to challenge the trial court's finding of fact number 7, that the UCC Financing Statement filed by Ms. Carter on behalf of Carter Realty Sensible Tax Service, LLC, against Mr. Maximov and the law firm of Horack, Talley, Pharr & Lowndes, P.A., claiming a lien in the amount of $17,547,524 is "a sham document, that it is a legal nullity with no legal effect." Ms. Carter argues this finding is "directly contradictory to the definition of a 'perfected' lien."
Regardless of whether Ms. Carter "perfected" her lien by filing a claim of lien pursuant to N.C. Gen. Stat. § 44A-12 (2009) (providing instructions for the filing of a claim of lien on real property), there is no evidence in the record that Mr. Maximov and Horack, Talley, Pharr & Lowndes, P.A., owed $17,547,524 to Carter Realty Sensible Tax Service, LLC or Ms. Carter. Rather, the record reveals Ms. Carter filed the claim of lien for $17,547,524 after the court dismissed her previous counterclaim seeking damages in the amount of $17,547,524 against Mr. Maximov, Horack, Talley, Pharr & Lowndes, P.A., and others (09-SP-4737) . Thus, the trial court did not err in finding the UCC Financing Statement "is a sham document[.]"
We have reviewed Ms. Carter's remaining arguments, including her argument that the trial court improperly allowed
ex parte communications and ignored the Association's violations of N.C. Gen. Stat. § 47F-3-118 (2009). However, our standard of review is limited to "whether the findings of fact by the trial court are supported by competent evidence, and . . . whether the findings of fact support the trial court's conclusions of law and its judgment." Dean, 171 N.C. App. at 483, 615 S.E.2d at 701 (citation omitted) . Ms. Carter's remaining arguments do not fall within the standard of review set forth above and therefore are outside this Court's limited review. Accordingly, we dismiss Ms. Carter's remaining arguments.
We note that Ms. Carter does not challenge the trial court's findings of fact regarding her violations of the Rules of Civil Procedure or its conclusion of law dismissing her complaint pursuant to Rule 8(a)(2) and Rule 41(b). Even if Ms. Carter had challenged the dismissal of her complaint, after a thorough review of the record on appeal, we conclude the trial court's findings of fact support its dismissal pursuant to Rule 8(a)(2) and Rule 41(b).
Second Case: 10-SP-3378
On or about 24 February 2010, the Association served a claim of lien for unpaid homeowners dues against Erica Lauren Carter Bentley Living Trust ("the Trust") and the Moorish Holy Temple. The subject of this lien was property located at 7042 Sycamore Grove Court in Charlotte, North Carolina. In response to the claim of lien, Ms. Carter sent a letter to the Association's attorney disputing the debt, and the debt was not paid. On 9 April 2010, the Association served a Notice of Hearing Prior to Foreclosure of the Claim of Lien, and a Notice of Sale of Real Estate was entered. After a hearing on 3 June 2010, the Assistant Clerk of Superior Court entered an Amended Order Allowing Foreclosure to Proceed ("Amended Order") on 10 June 2010.
On 19 July 2010, Ms. Carter filed a Notice of Appeal and Objections to the Amended Order. After a hearing on 3 August 2010, at which Ms. Carter appeared pro se, the trial court entered an order on 6 August 2010 dismissing Ms. Carter's appeal because she lacked standing. The court found that the Moorish Holy Temple was the present record owner of the Property; the Trust had no standing to contest the foreclosure; Ms. Carter could not represent the Moorish Holy Temple at the hearing and therefore the Moorish Holy Temple had failed to appear; and Ms. Carter had no standing to contest the foreclosure order. Ms. Carter appeals pro se from the 6 August 2010 order.
On appeal, Ms. Carter argues the trial court (I) improperly allowed ex parte communications and (II) erred by ignoring the perfected lien and the absence of a valid debt. However, "it is elementary that the substantive issues cannot be considered unless the party raising them has the capacity to do so." Beech Mountain Property Owners' Ass'n v. Current, 35 N.C. App. 135, 136, 240 S.E.2d 503, 505 (1978) (citation omitted).
"Standing refers to whether a party has a sufficient stake in an otherwise justiciable controversy so as to properly seek adjudication of the matter." Woodring v. Swieter, 180 N.C. App. 362, 366, 637 S.E.2d 269, 274 (2006) (citation and quotation marks omitted). "If a party does not have standing to bring a claim, a court has no subject matter jurisdiction to hear the claim." Id. (citations and quotation marks omitted) . Regarding a party's standing to challenge a foreclosure action, our Supreme Court has held:
Plaintiff was not aggrieved by the two judicial orders . . . because he had no rights at that time in the property described in the deed of trust set forth in the complaint, a foreclosure of which he seeks to enjoin. For a party to be aggrieved he must have rights which were substantially affected by a judicial order. Where a party is not aggrieved by the judicial order entered, as in the present case, his appeal will be dismissed.Gaskins v. Blount Fertilizer Co., 260 N.C. 191, 195, 132 S.E.2d 345, 347 (1963) (citations omitted).
Here, after the Superior Court filed the Amended Order Allowing Foreclosure to Proceed against the property located at 7042 Sycamore Grove Court, Ms. Carter filed a "Notice of Appeal Hearing and Objections to Amended Order Allowing Foreclosure to Proceed" to challenge the Amended Order and purporting to include a third party claim by Ms. Carter against various third party defendants. Ms. Carter, however, did not own the property located at 7042 Sycamore Grove Court. Furthermore, because Ms. Carter is not a licensed attorney, she could not represent the record owner of the property, the Moorish Holy Temple. See Lexis-Nexis, 155 N.C. App. at 209, 573 S.E.2d at 549. Because Ms. Carter had no rights in the property and was therefore not aggrieved by the Amended Order Allowing Foreclosure, she lacked standing to contest the foreclosure action, and her appeal was properly dismissed.
AFFIRMED.
Judges CALABRIA and ERVIN concur.
Report per Rule 30(e).