               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA14-1413

                              Filed: 1 September 2015

New Hanover County, No. 08 CVS 883

JULIE LANCASTER and BRANNON LANCASTER, Plaintiffs,

             v.

HAROLD K. JORDAN AND CO., INC., WITHERS & RAVENEL, INC., ARTHUR R.
COGSWELL, and LIGHTHOUSE ENGINEERING, PA, Defendants.


      Appeal by plaintiffs from order entered 23 June 2014 by Judge John R. Jolly,

Jr. in New Hanover County Superior Court.           Heard in the Court of Appeals

21 May 2015.


      Shipman & Wright, LLP, by W. Cory Reiss, for plaintiff-appellants.

      Hedrick Gardner Kincheloe & Garofalo, LLP, by Thomas M. Buckley, and Bugg
      & Wolfe, P.A., by William J. Wolf, for defendant-appellee Harold K. Jordan and
      Co., Inc.


      McCULLOUGH, Judge.


      Plaintiffs Julie and Brannon Lancaster appeal from a summary judgment

order entered in favor of defendant Harold K. Jordan and Co., Inc. Based on the

reasons stated herein, we affirm the order of the trial court.

                                  I.    Background

      On 26 February 2008, plaintiffs Julie Lancaster and Brannon Lancaster (“Mrs.

Lancaster” and “Mr. Lancaster”) filed a complaint against defendants Harold K.

Jordan and Co., Inc. (“HKJ”), Withers & Ravenel, Inc. (“W&R”), Arthur R. Cogswell,
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and Lighthouse Engineering, P.A. Plaintiffs advanced the following claims: Unfair

and Deceptive Trade Practices (“UDTP”) by HKJ; fraud by HKJ; negligent

misrepresentation by HKJ, Mr. Cogswell and W&R; and, negligence by all

defendants. It was designated as a complex business case on 31 March 2008.

      On 15 December 2009, plaintiffs filed an amended complaint. Plaintiffs alleged

that in 1997, they purchased a tract of land located in Brunswick County (“the

property”).   In 2003, they formed a limited liability company known as Village

Landing, LLC (“Village Landing”) and transferred the property to Village Landing.

In 2005, plaintiffs met with Harold K. Jordan and John Zabriskie, both agents of

HKJ, at HKJ’s offices in Wilmington, North Carolina. HKJ was a builder specializing

in the construction and renovation of multi-family housing. HKJ recommended that

plaintiffs construct apartments on the property and referred plaintiffs to Mr.

Cogswell, an architect. Prior to 27 October 2005, Mr. Cogswell prepared preliminary

sketch designs for an apartment complex, to be constructed by HKJ.         Plaintiffs

decided they did not want to own or manage an apartment complex, and on or about

27 October 2005, Mrs. Lancaster requested that Mr. Cogswell prepare plans for the

construction of townhomes.

      In the Fall of 2005, plaintiffs engaged W&R, a civil and environmental

consulting engineering firm, to assist them in developing the property as a townhouse

project, designing the utility and storm water management system, and obtaining



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requisite governmental approvals. In November 2005, W&R prepared and delivered

to plaintiffs and HKJ a preliminary site layout for “Village Landing Townhomes.” In

February 2006, W&R petitioned the Town of Leland council for allocation of sanitary

sewer capacity for 60 townhome residences and submitted a “Commercial Zoning

Compliance Permit Application” for the proposed use as townhomes.

      On 14 February 2006, plaintiffs and Mr. Jordan incorporated Shady Grove

(“Shady Grove”) with the intention that Shady Grove would purchase the property

and plaintiffs and Mr. Jordan would each own 50% interest. On 21 February 2006,

HKJ prepared and submitted to Mrs. Lancaster a “proposal for the construction of 60

condos.” Plaintiffs allege that Mrs. Lancaster inquired of Mr. Zabriskie the use of the

term “condos” and was informed that “the terms condominiums and townhomes were

one and the same.”

      On 26 February 2006, Shady Grove and HKJ executed a contract for “the new

construction of 60 condos in Leland, NC” and provided the contract to Cooperative

Bank in order to receive financing. HKJ had prepared the contract. Once again,

plaintiffs allege they asked Mr. Zabriskie about the term “condos” in the contract and

Mr. Zabriskie informed Mrs. Lancaster that for purposes of the contract, “condos” and

townhouses were the same. By the end of March 2006, plaintiffs and Mr. Jordan

decided to abandon the idea of proceeding with the project in the name of Shady Grove

and Shady Grove never conducted any business.            Thereafter, Mrs. Lancaster



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requested that Mr. Zabriskie prepare a new contract between HKJ and Village

Landing, but no such contract was ever prepared.

       During March and April of 2006, W&R, the Town of Leland, and the North

Carolina Department of Environmental and Natural Resources proceeded to obtain

approvals for townhomes. Plaintiff alleges that by April 2006, HKJ was well aware

that it was to build townhouses under the residential building code. On 8 May 2006,

Mr. Cogswell “sealed” the final construction drawings for “Grove Landing” (“the

project”) which indicated the building of townhouse units. Plaintiffs, relying on the

representations of HKJ, were billed for and became personally liable for all of the

substantial “soft costs” for the project.

       During a meeting with Cooperative Bank in May 2006 to discuss funding for

the project, Mr. Zabriskie confirmed that the project was for the construction of

townhomes. Cooperative Bank proposed to fund the project in phases, with the first

loan from the bank to be in the amount of over $2 million.        On 16 May 2006,

Cooperative Bank issued commitment letters to fund the project, “conditioned

specifically on the Plaintiffs personally guaranteeing each loan.”        Based on

defendants’ representations, plaintiffs accepted the commitment from Cooperative

Bank and were induced to personally guarantee millions of dollars of debt of Village

Landing for the development of the project. On 22 May 2006, plaintiffs personally

guaranteed the debt to Cooperative Bank.



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      Plaintiffs further alleged as follows: In June and July of 2006, HKJ provided

the project plans to the Town of Leland for building permits to build townhouses. The

Town of Leland’s Building Inspector informed HKJ that the project plans prepared

by Mr. Cogswell could not be permitted for construction under the Residential

Building Code because the project plans appeared to be for the construction of

“apartments” or “condominiums.” The Building Inspector also informed HKJ that

the project had not been approved for the construction of townhomes and that the

Town of Leland could issue only one building permit per building in which three units

or apartments would be contained as opposed to three separate building permits

which would be required for the construction of townhomes. HKJ did not inform

plaintiffs of the conversations it had with the Building Inspector nor of any

deficiencies in Mr. Cogswell’s project plants. Instead, HKJ remained silent and began

construction although they had a duty to notify plaintiffs, Mr. Cogswell, and W&R of

the issues with the Town of Leland.

      During the course of construction, plaintiffs alleged Mr. Zabriskie informed

Mrs. Lancaster that the townhouse units would be available in October or November

2006. In December 2006, HKJ told plaintiffs that the Town of Leland would not issue

certificates of occupancy for the units as townhomes but failed to inform plaintiffs

that it had known since building permits were issued that the units could not be

issued certificates of occupancy as townhomes. Between December 2006 and March



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2007, plaintiffs were informed by HKJ that HKJ continued to attempt to get

certificates of occupancy for the units as townhouses. On 30 March 2007, the Town

of Leland issued certificates of occupancy for the completed units as condominiums.

      Plaintiffs alleged that had W&R submitted the project under the Town of

Leland’s subdivision ordinance; had Mr. Cogswell prepared the project plans for the

construction of townhomes under the Residential Building Code; and, had HKJ

constructed the project as townhomes pursuant to the Residential Building Code, the

first twelve units of the project would have been sold and closed by March 2007.

Instead, Village Landing was unable to pay off much of its loan from Cooperative

Bank and unable to generate a profit of approximately $350,000.00. In addition,

Cooperative Bank would not fund the completion of the project because of the

inability to sell the units. Mrs. Lancaster was forced to cash in her IRA in order to

obtain the money necessary to continue to fund the interest payments to Cooperative

Bank. Plaintiffs alleged that as a result of defendants’ negligence and fraudulent

representations, plaintiffs suffered personal injury, separate and distinct from

Village Landing to support plaintiffs’ personal liability to various lenders, including

Cooperative Bank, and Village Landing did not have the assets, separate and distinct

from Village Landing, to pay any of that liability.

      On 19 January 2010, HKJ filed an answer to plaintiffs’ amended complaint

and included counterclaims. HKJ argued that an arbitration award in Harold K.



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                                   Opinion of the Court



Jordan v. Village Landing, LLC and Shady Grove Development, Inc. (American

Arbitration Association Case No.: 31 110 Y 00204 07) constituted a full and proper

adjudication of all the purported rights of plaintiffs’ claims against Mr. Jordan,

therefore, plaintiffs were barred by the arbitration award. HKJ raised the following

defenses: res judicata; abatement; collateral estoppel; illegality; waiver; contributory

negligence; intervening acts and negligence; credit or set-off; impossibility; economic

loss rule; real party and interest; estoppel; laches; release; assumption of risk; failure

to mitigate damages; breach of implied warrant of plans and specifications; and,

reservation of rights.    HKJ presented the following counterclaims: piercing the

corporate veil; breach of contract; fraudulent conveyances; and, UDTP.

      On 26 May 2011, plaintiffs filed notice of voluntary dismissal with prejudice as

to its claims against Mr. Cogswell.      On 2 May 2012, plaintiffs filed a notice of

voluntary dismissal with prejudice as to its claims against W&R. The only defendant

remaining was HKJ.

      On 29 April 2013, HKJ moved for summary judgment based upon res judicata

and collateral estoppel. On 23 July 2014, the trial court entered an order granting

summary judgment in favor of HKJ.

      The trial court noted that earlier, in July 2007, HKJ filed an action against

Shady Grove and Village Landing alleging breach of the construction contract. Shady

Grove and Village Landing filed an answer and counterclaim which sought to submit



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HKJ’s claims against Shady Grove alone to arbitration based on an arbitration clause

in the written contract between HKJ and Shady Grove. HKJ successfully moved to

compel arbitration to all claims between HKJ and Village Landing as well, based on

a ruling by a trial court judge that the contract at issue was effectively assigned from

Shady Grove to Village Landing. In a 19 November 2007 order by the trial court,

HKJ, Shady Grove, and Village Landing were ordered to “arbitrate all their pending

claims in this action” including “all counterclaims of Village Landing” in the pending

arbitration between HKJ and Shady Grove.                  Village Landing’s arbitration

counterclaims “were substantially similar if not substantively identical to the Claims

asserted in Plaintiffs’ Amended Complaint in the instant action.” Village Landing

alleged that HKJ had “failed to construct townhouse units on the subject property[,]”

causing Village Landing “great financial harm and damage.” The arbitration hearing

took place in March 2008. Plaintiffs were not named in their individual capacities as

parties to the arbitration action, but were present and testified at the arbitration.

Plaintiffs, through Village Landing, called an additional 16 witnesses to testify. The

arbitrator rendered his judgment in April 2008 and found that Village Landing’s

counterclaims failed. In June 2008, a judgment confirming the arbitration award was

entered in Wake County Superior Court. Village Landing’s appeal of the trial court’s

order compelling arbitration was dismissed by the North Carolina Court of Appeals

and a petition to the North Carolina Supreme Court for writ of certiorari was denied.



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Meanwhile, plaintiffs filed the current action in their individual capacities less than

20 days prior to the March 2008 arbitration hearing.

      In its summary judgment order in favor of HKJ, the trial court concluded that

plaintiffs are the same party as Village Landing for purposes of collateral estoppel,

plaintiffs raised and litigated the same issues in the present case during the

arbitration, and that the arbitrator’s final judgment actually determined the

propriety of HKJ’s conduct. Based on the foregoing, the trial court concluded that

plaintiffs were collaterally estopped “from relitigating the issue of whether HKJ made

negligent or intentional misrepresentations during the construction process” and that

there was “no triable fact that would serve as a basis for liability against HKJ.”

      On 3 July 2014, plaintiffs filed notice of appeal.

                              II.     Standard of Review

      “Our standard of review of an appeal from summary judgment is de novo; such

judgment is appropriate only when the record shows that there is no genuine issue

as to any material fact and that any party is entitled to a judgment as a matter of

law.” Peter v. Vullo, __ N.C. App. __, __, 758 S.E.2d 431, 434 (2014) (citation omitted).

“When considering a motion for summary judgment, the trial judge must view the

presented evidence in a light most favorable to the nonmoving party.”           Sims v.

Graystone Ophthalmology Assocs., P.A., __ N.C. App. __, __, 757 S.E.2d 925, 926

(2014) (citation omitted).



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                                   III.   Discussion

      Plaintiffs argue that the trial court erred by granting HKJ’s motion for

summary judgment based on the doctrine of collateral estoppel.               Specifically,

plaintiffs argue that the trial court erred by relying on an exception recognized in

Thompson v. Lassiter, 246 N.C. 34, 97 S.E.2d 492 (1957). Plaintiffs also assert that

the trial court’s summary judgment order deprived them of their constitutional right

to a jury trial. After careful review, we find plaintiffs’ arguments unconvincing.

      “Under the collateral estoppel doctrine, parties and parties in privity with

them . . . are precluded from retrying fully litigated issues that were decided in any

prior determination and were necessary to the prior determination.”            Turner v.

Hammocks Beach Corp., 363 N.C. 555, 558, 681 S.E.2d 770, 773 (2009) (citation and

quotation marks omitted). “[Collateral estoppel] is designed to prevent repetitious

lawsuits overs matters which have once been decided and which have remained

substantially static, factually and legally.” King v. Grindstaff, 284 N.C. 348, 356, 200

S.E.2d 799, 805 (1973) (citation omitted).

             To successfully assert collateral estoppel as a bar to
             plaintiffs’ claims, defendant would need to show [(1)] that
             the earlier suit resulted in a final judgment on the merits,
             [(2)] that the issue in question was identical to an issue
             actually litigated and necessary to the judgment, and [(3)]
             that both [defendant] and [plaintiffs] were either parties to
             the earlier suit or were in privity with parties.




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Turner, 363 N.C. at 558-59, 681 S.E.2d at 773-74 (citing Thomas M. McInnis &

Assocs. v. Hall, 318 N.C. 421, 429, 349 S.E.2d 552, 557 (1986)).

             Whether or not a person was a party to a prior suit must
             be determined as a matter of substance and not of mere
             form. The courts will look beyond the nominal party whose
             name appears on the record as plaintiff and consider the
             legal questions raised as they may affect the real party or
             parties in interest.

King, 284 N.C. at 357, 200 S.E.2d at 806 (citations and quotation marks omitted).

      Here, plaintiffs conceded before the trial court that the arbitration award was

a final judgment on the merits as to claims against HKJ, Village Landing, and Shady

Grove. The trial court also held that there was an identity of issues: “at the very

heart of Plaintiffs’ Claims against HKJ in this matter is the allegation that HKJ

negligently or purposely misled Plaintiffs in constructing ‘condominiums, rather than

townhouses.’ This exact issue was extensively litigated during the Arbitration.” The

arbitration award “plainly spells out the arbitrator’s findings, in which he specifically

absolved HKJ of any responsibility on the issues underlying Plaintiff’s Claims here.”

The trial court held that because Village Landing’s arbitration counterclaims “rested

almost entirely on the underlying allegation that HKJ either negligently or purposely

misled Plaintiffs and their LLC[,] [d]etermining whether HKJ was guilty of such

misrepresentations was absolutely essential to the Arbitration Action’s ‘purpose’ and

the rendering of the Arbitration Award.” The portion of the trial court’s order that

plaintiffs now challenge is its holding as to the identity of parties:


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             Taken as a whole, the North Carolina case law is
             inconclusive as to whether the facts in this matter
             unequivocally support a conclusion that Plaintiffs in
             substance were parties to the Arbitration Action or were in
             privity with Village Landing. As such, this court declines
             to reach a conclusion on either proposition. Instead, the
             court relies on the related “Lassiter exception” because it
             most clearly resolves this issue.

      In Lassiter, the plaintiff filed an action against the defendant to recover

damages suffered by him after a collision between a car driven by the defendant and

a car owned by the plaintiff, but being driven by the plaintiff’s minor son. Lassiter,

246 N.C. at 35, 97 S.E.2d at 493. A few days prior to the institution of the plaintiff’s

action, a third party instituted an action against the defendant. Id. The third party

was a passenger in a third automobile that collided with the defendant’s car after the

collision between the plaintiff and the defendant’s car. Id. at 35, 97 S.E.2d at 493-94.

In the third party’s action, the defendant set up a cross-action against the plaintiff’s

son and the driver of the third automobile, arguing that they were concurrently

negligent with the defendant. The plaintiff was appointed as guardian ad litem for

his son and filed an answer for and on behalf of his son, arguing that the negligence

was solely on behalf of the defendant. Id. at 36, 97 S.E.2d at 494. A jury found the

defendant guilty of negligence and that the negligence of the plaintiff’s son and the

driver of the third automobile concurred with the negligence of the defendant in

causing the third party’s injuries. A judgment was entered in accordance with the

jury’s verdict and the defendant was permitted to amend his answer to allege that


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the judgment in the third party’s case “as a plea in bar or res judicata 1 with respect

to the present action.” Id. at 36, 97 S.E.2d at 494. The trial court held that the prior

action constituted a bar to the plaintiff’s present action. Id.

        On appeal, the sole issue before the North Carolina Supreme Court was as

follows:

                Does the fact that a father acted as guardian ad litem for
                his minor son in defending a cross-action against the son
                (who was driving a family purpose automobile owned by
                the father), in an action in which a passenger in a third
                automobile was the plaintiff, and the defendant in this
                action was also the original defendant in the former action,
                make the decision on the cross-action in the former
                litigation binding on the father in an action to recover in
                his individual capacity for medical expenses and loss of
                earnings and services of the son and damage to his
                automobile?

Id. The Lassiter Court noted that although “[o]rdinarily, the plea of res judicata may

be sustained only when there is an identity of parties, of subject matter, and of

issues[,]” there was a well-established exception to the general rule:

                A person who is not a party but who controls an action,
                individually or in cooperation with others, is bound by the
                adjudications of litigated matters as if he were a party if he
                has a proprietary interest or financial interest in the
                judgment or in the determination of a question of fact or a
                question of law with reference to the same subject matter, or


        1 “The doctrines of res judicata and collateral estoppel are companion doctrines developed by
the courts ‘for the dual purposes of protecting litigants from the burden of relitigating previously
decided matters and promoting judicial economy by preventing needless litigation. . . . Like res
judicata, collateral estoppel only applies if the prior action involved the same parties or those in privity
with the parties and the same issues.” Cline v. McCullen, 148 N.C. App. 147, 149-50, 557 S.E.2d 588,
591(2001) (citations omitted).

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              transactions; if the other party has notice of his
              participation, the other party is equally bound.

Id. at 39, 97 S.E.2d at 496 (citation omitted) (emphasis in original). “Likewise, with

respect to the rule ordinarily requiring identity of parties, . . . ‘[t]hese rules have been

denied application, however, where a party to one action in his individual capacity

and to another action in his representative capacity, is in each case asserting or

protecting his individual rights.’ ” Id. The Lassiter Court, affirming the trial court’s

holding, reasoned that the plaintiff, acting as guardian ad litem for his son, took every

action he could have taken as if he had been a defendant himself. The plaintiff

exercised complete control over his son’s defense and in doing so, “he necessarily was

defending the cross-action as much for his own protection as for that of his son.” Id.

at 40, 97 S.E.2d at 497.

       We will first consider plaintiffs’ “control” of the prior arbitration and the

present action, “the threshold requirement of the exception to the rule requiring

privity of identities.” Williams v. Peabody, 217 N.C. App. 1, 10, 719 S.E.2d 88, 95

(2011). The parties to the arbitration included HKJ, Village Landing, and Shady

Grove. It is undisputed that Mr. and Mrs. Lancaster were the sole member-managers

of Village Landing. At the arbitration hearing, Village Landing presented a total of

18 witnesses and plaintiffs themselves testified at the hearing. In the present action,

Mr. and Mrs. Lancaster are the plaintiffs. Therefore, we hold that this is sufficient

to satisfy the control element of the Lassiter exception.


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      The second requirement of the Lassiter exception requires that plaintiffs have

“a proprietary interest or financial interest in the judgment[.]” Lassiter, 246 N.C. at

39, 97 S.E.2d at 496. As the trial court properly found, Village Landing set forth

counterclaims in the arbitration action against HKJ “for damages allegedly resulting

from [HKJ’s] construction of Condominiums instead of Townhomes, and defects in

construction of the sewer system.”        Because plaintiffs were the sole member-

managers of Village Landing, it necessarily follows that plaintiffs had a proprietary

or financial interest in the outcome of the arbitration and any judgment affecting

Village Landing. Plaintiffs were equally concerned in defending Village Landing and

advancing its counterclaims in the arbitration action as plaintiffs are concerned with

advancing their claims in the present action.

      The third requirement of the Lassiter exception is whether plaintiffs have an

interest “in the determination of a question of fact or a question of law with reference

to the same subject matter, or transactions[.]” Id. In the present action, plaintiffs

are bringing forth claims such as fraud and negligent misrepresentation against HKJ

for intentionally and negligently misleading plaintiffs by constructing condominiums

instead of townhomes. In the arbitration action, plaintiffs, through Village Landing,

alleged that HKJ intentionally and negligently made false representations to Village

Landing that the units being constructed were townhomes. We agree with the trial

court that “[n]ot only did Plaintiffs have an ‘interest’ in the Arbitrator’s



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determination” of these issues, but that “it was central” to Village Landing’s case

against HKJ in the arbitration action, “as it is in their individual action here. As

such, this element of the Lassiter exception is plainly met.”

         The last requirement of the Lassiter exception is that “if the other party has

notice of his participation, the other party is equally bound.”        Id. Under these

circumstances, it is clear that plaintiffs had notice of the arbitration.

         Based on the foregoing analysis, we hold that the trial court did not err by

relying on the Lassiter exception to the rule requiring an identity of parties.

Accordingly, an identity of parties existed between plaintiffs and Village Landing for

purposes of the collateral estoppel doctrine and we affirm the trial court’s grant of

summary judgment in favor of HKJ.

         Lastly, we note that our case law demonstrates that “summary judgment does

not deprive [plaintiffs] of their right to a jury trial. The right to a jury trial accrues

only when there is a genuine issue of fact to be decided at trial.” State ex rel. Albright

v. Arellano, 165 N.C. App. 609, 618, 599 S.E.2d 415, 421 (2004). Because we hold

that the trial court did not err by granting summary judgment in favor of HKJ,

plaintiffs’ argument that they were deprived of the right to a jury trial necessarily

fails.

                                   IV.     Conclusion




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      The order of the trial court, granting summary judgment in favor of HKJ, is

affirmed.

      AFFIRMED.

      Judges STROUD and INMAN concur.




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