An unpublished opinion of the North Carolina Court of Appeals does not constitute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
A   p   p    e   l   l   a    t   e       P   r    o   c   e   d    u   r   e   .




                                  NO. COA14-135

                      NORTH CAROLINA COURT OF APPEALS

                            Filed: 19 August 2014


BOBBY P. BRAWLEY and BETTY M.
BRAWLEY,
     Plaintiffs,

      v.                                    Iredell County
                                            No. 13 CVS 01289
ELIZABETH TOWNES HOMEOWNERS
ASSOCIATION, INC., LADONNA
CONSTANCE WALDEN and PATRICIA
HEDRICK, individually and as
members of THE BOARD OF DIRECTORS
OF ELIZABETH TOWNES HOMEOWNERS
ASSOCIATION, INC.,
     Defendants.


      Appeal by plaintiffs from order entered 8 November 2013 by

Judge W. David Lee in Iredell County Superior Court.                  Heard in

the Court of Appeals 21 May 2014.


      Kenneth T. Davies for plaintiff-appellants.

      McAngus, Goudelock & Courie, PLLC, by Garry T. Davis and
      Jeffrey B. Kuykendal, for defendant-appellees.


      PER CURIAM.
                                            -2-
    Where           plaintiffs’      claims       were     barred       by     collateral

estoppel, defendants’ motions to dismiss were properly granted

by the trial court.

    Plaintiffs Bobby P. Brawley and Betty M. Brawley own                                   a

townhome       in    the     Elizabeth      Townes       community       in    Charlotte.

Defendant      Elizabeth       Townes    Homeowners       Association         (“Elizabeth

Townes HOA”) manages the Elizabeth Townes community, of which

plaintiffs are mandatory members.                 Individual defendants LaDonna

Constance Walden and Patricia Hedrick are members of the board

of directors of the Elizabeth Townes HOA.

    Plaintiffs’ daughter, Jane Brawley Jordan, resides at the

Elizabeth Townes’ townhome.              Plaintiffs granted Jordan a limited

power of attorney permitting Jordan to act on plaintiffs’ behalf

regarding      all     Elizabeth      Townes      HOA     matters,       including        the

ability    “to      request    financial      records,      to   vote     [plaintiffs’]

proxy     in     [Elizabeth       Townes      HOA]      matters,     and       to   attend

[Elizabeth Townes HOA] meetings on [plaintiffs’] behalf.”

    Beginning          in    2005,    the     relationship        between       Elizabeth

Townes HOA, Walden, and Hedrick (“defendants”), and Jordan began

to deteriorate.         Jordan sent numerous emails, text messages, and

phone calls to defendants regarding alleged mismanagement of the

Elizabeth      Townes       community.       Jordan      also    filed       four   pro    se
                                      -3-
lawsuits    against   Elizabeth    Townes      HOA,   all   of    which    were

subsequently   dismissed     either    voluntarily     by   Jordan    or   with

prejudice by order of the trial court.

     In 2010, Jordan filed claims with the North Carolina Real

Estate Commission and the State Bureau of Investigations against

Elizabeth   Townes    HOA,   alleging       that   Elizabeth     Townes    HOA’s

former management company had committed fraud.                 The resulting

investigations found no evidence of fraud, and Elizabeth Townes

HOA invoiced Jordan and plaintiffs for the loss of business

caused by the investigations.

     In March 2011, defendants filed a complaint and request for

permanent injunction against Jordan for “continuous and repeated

harassment.”    Defendants also filed claims against plaintiffs,

alleging that by failing to revoke Jordan’s limited power of

attorney, plaintiffs had enabled Jordan’s continued harassment

of   defendants.1     Plaintiffs      transferred     ownership      of    their




1
  After a hearing on defendants’ motion for injunctive relief
before the trial court in March 2011 during which Jordan and
plaintiffs appeared “disoriented, distracted, and unresponsive
to the Court’s inquiries,” Jordan was ordered to undergo a
mental evaluation.   Following Jordan’s refusal to submit to a
forensic screening, in May 2012 the trial court entered an order
finding Jordan to be in contempt of court.      On appeal, this
Court, by per curiam opinion, upheld the order of the trial
court.   See State v. Jordan, No. COA12-1264, 2013 N.C. App.
LEXIS 736 (July 16, 2013).
                                         -4-
Elizabeth Townes townhome to Jordan,2 and defendants subsequently

dismissed their claims against plaintiffs, leaving Jordan as the

sole opposing party to the litigation.                  On 4 February 2013, the

trial court entered an order for default judgment against Jordan

and   awarded    compensatory         and    punitive    damages     to     Elizabeth

Townes HOA in the amount of “$34,929.59 for increased insurance

premiums, increased property management fees, [and] direct legal

costs,” finding that “Jordan engaged in malicious prosecution

and abuse of process as to [Elizabeth Townes HOA] and defamed

[Elizabeth Townes HOA].”

      On   3   June   2013,       plaintiffs     filed    a     complaint    against

defendants      alleging        claims   for    breach     of    fiduciary     duty,

constructive fraud, abuse of process, and unfair and deceptive

trade   practices.         On    7   August,    defendants      filed     motions   to

dismiss and to change venue.                The trial court, by order entered

2
  We note that, based on the record, it is somewhat unclear as to
whether plaintiffs have resumed ownership of their Elizabeth
Townes townhome and, thus, have standing to bring this appeal.
In an August 2012 motion to amend one of her four pro se
lawsuits, Jordan described plaintiff Bobby Brawley as the
“previous owner” of the townhome.      However, in their instant
complaint, plaintiffs indicate that they are currently the
owners of the townhome, and in their answers, defendants treat
plaintiffs as the current owners of the townhome as well,
stating   that   “Plaintiffs   herein   subsequently  transferred
ownership of said property to Jane Jordan for a brief period of
time.” As such, plaintiffs are viewed in the instant matter as
being the current owners of the Elizabeth Townes townhome and,
therefore, have standing.
                                        -5-
8 November, granted defendants’ motions to dismiss. Plaintiffs

appeal.

                        _________________________________

      On    appeal,    plaintiffs      contend   the    trial   court   erred    in

granting     defendants’        motions     to   dismiss.         Specifically,

plaintiffs     argue     that    the    trial    court    erred    in   granting

defendants’ motions to dismiss pursuant to Rule 12(b)(6) and

based on collateral estoppel.             We disagree.        Assuming arguendo

that plaintiffs’ complaint is technically sufficient to survive

a   Rule    12(b)(6)    motion    to    dismiss,    plaintiffs’       claims    are

nonetheless barred by collateral estoppel.

                                 Collateral Estoppel

      Plaintiffs argue that the trial court erred in granting

defendants’     motions    to     dismiss     because    plaintiffs     are     not

collaterally estopped from asserting their claims.

      Res    judicata     and     collateral       estoppel     are     companion

doctrines created “for the dual purposes of protecting litigants

from the burden of relitigating previously decided matters and

promoting judicial economy by preventing needless litigation.”

Bockweg v. Anderson, 333 N.C. 486, 491—92, 428 S.E.2d 157, 161

(1993) (citations omitted).            Under the doctrine of res judicata,

or “claim preclusion,” “a final judgment on the merits in a
                                    -6-
prior action will prevent a second suit based on the same cause

of action between the same parties or those in privity with

them.”     Thomas M. McInnis & Assocs., Inc. v. Hall, 318 N.C. 421,

428,   349   S.E.2d   552,   556   (1986).       Under   the    doctrine    of

collateral estoppel, or “issue preclusion,” “parties and parties

in privity with them — even in unrelated causes of action — are

precluded from retrying fully litigated issues that were decided

in   any   prior   determination   and    were   necessary     to   the   prior

determination.”       King v. Grindstaff, 284 N.C. 348, 356, 200

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

       “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.”         Goins v. Cone Mills Corp., 90

N.C. App. 90, 93, 367 S.E.2d 335, 337 (1988) (citing King, 284

N.C. at 356, 200 S.E.2d at 805) (emphasis added).

             A judgment operates as an estoppel not only
             as to all matters actually determined or
             litigated in the proceeding, but also as to
             all relevant and material matters within the
             scope of the proceeding which the parties,
             in the exercise of reasonable diligence,
             could and should have brought forward for
             determination.

Moody v. Able Outdoor, Inc., 169 N.C. App. 80, 84, 609 S.E.2d

259, 261 (2005) (citation and quotation omitted).               “In general,

privity involves a person so identified in interest with another
                                      -7-
that he represents the same legal right previously represented

at trial.” State v. Summers, 351 N.C. 620, 623, 528 S.E.2d 17,

20 (2000) (citations and quotation omitted).                 In determining

whether a privity relationship exists, “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.”       Whitacre    P'ship    v.

Biosignia, Inc., 358 N.C. 1, 36, 591 S.E.2d 870, 893 (2004)

(citations and quotation omitted).

       Plaintiffs allowed their daughter, Jane Brawley Jordan, to

reside in their Elizabeth Townes townhome and granted Jordan a

limited power of attorney “to request financial records, to vote

[plaintiffs’] proxy in [Elizabeth Townes HOA] matters, and to

attend [Elizabeth Townes HOA] meetings on [plaintiffs’] behalf.”

Plaintiffs further acknowledge in their brief that Jordan “was

deemed to be an agent of [plaintiffs] through a limited power of

attorney, granting her the same right as [plaintiffs.]”                     Such

evidence indicates that a privity relationship exists between

Jordan and plaintiffs.

       Further evidence of a privity relationship can be seen in

plaintiffs’ current complaint.          After Jordan filed four pro se

complaints      against   Elizabeth    Townes   HOA,   as   well   as   filing
                                              -8-
allegations of fraud against Elizabeth Townes HOA with the North

Carolina     Real      Estate     Commission          and    the      State       Bureau    of

Investigations,            defendants    filed       claims        against    Jordan       and

plaintiffs      in    2011.      Plaintiffs          then    temporarily      transferred

their ownership of the Elizabeth Townes property to Jordan, and

defendants dismissed            their claims against               plaintiffs, leaving

Jordan as the sole opposing party in the litigation.                               The trial

court, in its order granting default judgment to defendants,

assessed     compensatory         and     punitive          damages       against     Jordan

because “Jordan engaged in malicious prosecution and abuse of

process    as   to     [Elizabeth       Townes       HOA]    and    defamed       [Elizabeth

Townes HOA].”                Jordan     did    not    appeal       from    this    award     of

compensatory         and    punitive    damages.            Rather,       plaintiffs       then

filed the instant complaint, alleging that defendants commenced

the 2011 litigation “to intimidate the Plaintiffs into silence

and acceptance of the authority of the Defendants” and that the

“asserted claims in the 2011 litigation against the Plaintiffs

were entirely frivolous and without merit.”

    In its order granting defendants’ motions to dismiss, the

trial court noted that:

            [I]t   also  appearing   that  the   amended
            complaint filed in the [2011 litigation] was
            voluntarily dismissed as to [plaintiffs] on
            January 14, 2013, approximately thirteen
                                     -9-
            months after it was asserted against them
            (and    twenty-two     months     after    the
            commencement of the [2011 litigation] and
            that [plaintiffs] were in a position in that
            action to assert the claims now being
            asserted in this action. The claims asserted
            by [plaintiffs] herein are claims based upon
            matters that were relevant and material
            within the scope of the earlier [2011
            litigation]    and   [plaintiffs],    in   the
            exercise of reasonable diligence, could and
            should have brought those claims forward for
            determination.    [Plaintiffs] should not be
            permitted to reopen the subject of the prior
            [2011] litigation with respect to matters
            which might have been brought forward in
            that proceeding. . . .       [Plaintiffs] are
            collaterally estopped from now asserting
            claims   for   breach   of   fiduciary   duty,
            constructive fraud, abuse of process and
            unfair and deceptive trade practices in this
            action and these claims should be dismissed
            . . . .

    We      agree     with   the   trial    court’s   determination    that

plaintiffs are now estopped from bringing their claims, as the

“successive or mutual relationship in the same rights in [the

Elizabeth    Townes    townhome]   establishes    that   the   interests   of

both [Jordan] and plaintiff[s] are so intertwined that privity

exists between them.”         Cline v. McCullen, 148 N.C. App. 147,

150, 557 S.E.2d 588, 591 (2001).           Moreover, “privity also exists

where one not actually a party to the previous action . . . had

a proprietary interest in the judgment or in the determination
                                           -10-
of a question of law or facts on the same subject matter.”                               Id.

(citation omitted).

      Jordan, in her four pro se complaints against defendants,

alleged a variety of claims including, but not limited to: abuse

of   process,       malicious        prosecution,            slander,       retaliation,

defamation,       extortion,    wrongful          prosecution,         libel     per     se,

willful    negligence,       malfeasance,          federal         mail    fraud,      legal

malpractice,       alienation        of    affection,         breach       of   contract,

criminal intent, fraud, and contributory negligence.                             Although

Jordan did not make specific claims for breach of fiduciary

duty,     constructive       fraud,       or      unfair     and     deceptive         trade

practices,    a    reading     of    her       complaints      indicates        that    such

claims were all-but asserted.                  In her first complaint, Jordan

alleged    that    defendants       failed        to   act    in    good    faith      while

conducting Elizabeth Townes HOA business, and that defendants’

acts amounted to a “breech [sic] of monies;” such allegations

could support a claim for breach of fiduciary duty. Similar

statements in Jordan’s first complaint could also support claims

for constructive fraud and unfair and deceptive trade practices,

as   Jordan   made    numerous       allegations        of    fraud,       embezzlement,

deception, mismanagement, and negligence by defendants regarding

defendants’       handling      of        Elizabeth        Townes         HOA   business.
                                            -11-
Moreover,       similar      allegations       and       statements      can     be     found

throughout Jordan’s three other complaints.                            All of Jordan’s

allegations      and     claims      in    each     complaint         stemmed    from      her

ongoing    disputes       with      defendants.          Further,       in    addition       to

Jordan’s    claims      which       are    intertwined         with    plaintiffs       as   a

matter of privity, plaintiffs were also directly involved in

litigation       with        defendants       and     had       the     opportunity          to

counterclaim      as    to    all    claims    that      are    now    asserted       in   the

instant case.

       Here, plaintiffs have brought claims against defendants for

breach of fiduciary duty, constructive fraud, abuse of process,

and unfair and deceptive trade practices.                             Although the only

claim directly asserted by both Jordan and plaintiffs was a

claim     for    abuse       of     process,       all    of     plaintiffs’          instant

allegations and claims arise from Jordan’s ongoing disputes with

defendants.       Indeed, plaintiffs’ complaint indicates plaintiffs

were    aware     of    and       involved     in    the       ongoing       disputes      and

litigation       between          Jordan     and     defendants,         as     plaintiffs

reference these disputes and allege that defendants “began a

campaign of propaganda against [Jordan]” that caused plaintiffs

to   “publically       defend[]       themselves”        against       defendants.           As

such, although plaintiffs appear to bring three “new” claims not
                                        -12-
previously asserted by Jordan, it is clear that these claims

were   essentially      alleged   and    brought     by    Jordan    in   her   four

earlier    pro     se   complaints.            Moreover,    plaintiffs      had   a

substantial interest in their townhome to create a proprietary

interest in the litigation between Jordan and defendants and,

therefore, this interest supports our earlier determination that

privity exists between plaintiffs and Jordan.

       Accordingly,     the   trial     court’s     granting    of    defendants’

motions to dismiss is affirmed.

       Affirmed.

       Report per Rule 30(e).
