                            NO. COA13-880

                    NORTH CAROLINA COURT OF APPEALS

                          Filed: 20 May 2014


IN THE MATTER OF

INVESTIGATION REGARDING THE          North Carolina
APPROVAL AND CLOSING OF THE          Utilities Commission
BUSINESS COMBINATION OF DUKE         No. E-7, SUB 1017
ENERGY CORPORATION AND PROGRESS
ENERGY, INC.


     Appeal by proposed intervenor from orders entered 13 July

2012, 12 December 2012, and 29 April 2013 by the North Carolina

Utilities Commission.    Heard in the Court of Appeals 11 December

2013.


     No brief filed on behalf of appellee         State     of   North
     Carolina ex rel. Utilities Commission.

     Chief Counsel Antoinette R. Wike for appellee Public Staff
     -- North Carolina Utilities Commission.

     Law Offices of F. Bryan Brice, Jr., by Matthew D. Quinn;
     and John D. Runkle, for proposed intervenor-appellant North
     Carolina Waste Awareness and Reduction Network, Inc.

     Womble Carlyle Sandridge & Rice, LLP, by James P. Cooney
     III; Allen Law Offices, PLLC, by Dwight W. Allen; and Duke
     Energy Corporation, by Deputy General Counsel Lawrence B.
     Somers, for appellees Duke Energy Corporation, Duke Energy
     Carolinas, LLC, and Duke Energy Progress, Inc. (formerly
     Carolina Power & Light Company d/b/a Progress Energy
     Carolinas, Inc.).


     GEER, Judge.
                                           -2-
       Proposed     intervenor       North    Carolina         Waste      Awareness     and

Reduction Network, Inc. ("NC WARN") appealed two orders of the

North Carolina Utilities Commission (1) denying NC WARN's motion

to intervene in an investigation conducted by the Commission and

(2)    approving    a     settlement       agreement      by   the     parties     to   the

investigation       and    closing    the    investigation.             The   Commission

entered an order dismissing that appeal on the grounds that NC

WARN    lacked     standing    to    appeal.         NC    WARN     has    appealed     the

dismissal order.

       We   hold    that    the      Commission      acted        in   excess    of     its

jurisdictional authority in dismissing NC WARN's appeal for lack

of standing, and we, therefore, vacate that order as void ab

initio and address the merits of NC WARN's first appeal.                                 We

hold that the Commission properly denied NC WARN's motion to

intervene and, therefore, affirm the order denying intervention.

Since NC WARN was not a party to the Commission's investigation

and had no standing to appeal from the settlement order, we also

affirm that order.

                                           Facts

       On   4   April     2011,     Duke    Energy     Corporation         and   Progress

Energy, Inc. filed an application requesting that the Commission

approve     their    proposed       merger    (the        "merger      docket").        The

companies indicated in the application that William D. Johnson
                                             -3-
would be named president and CEO of the merged company ("Duke")

for a three-year term.               Mr. Johnson filed written testimony in

the merger docket stating he would be president and CEO of Duke,

and   James     Rogers       filed    testimony      stating     he     would       be    the

executive chairman of Duke's board of directors.                             On 29 June

2012,    the    Commission       entered      an   order   approving          the    merger

subject to regulatory conditions and code of conduct.                                    Duke

closed the merger on 2 July 2012.                  The next day, on 3 July 2012,

Duke announced that Mr. Rogers would replace Mr. Johnson as

president and CEO of the company.

      On 6 July 2012, the Commission opened an investigation,

pursuant to N.C. Gen. Stat. § 62-37 (2011), into the change in

leadership immediately following the merger.                          NC WARN filed a

motion    to    intervene       in    the    investigation       on    10     July   2012,

alleging   it    was     a    non-profit      corporation,       with       approximately

1,000    individual          members,       established    for        the    purpose       of

"reduc[ing] hazards to public health and the environment from

nuclear power and other polluting electricity production through

energy efficiency and renewable energy resources."

      The motion alleged that most of NC WARN's members resided

in North Carolina and were customers of Duke, and its members

were "concerned about the merger's potential impacts on the cost

of their electricity."           NC WARN stated that it had intervened in
                                                   -4-
the   merger        docket,         and    that     if    allowed       to    intervene      in   the

investigation,           it    would       "assist        and    support      the    Commission."

Attached       to    the      intervention          motion       were    NC    WARN's       "initial

scoping    comments            to    assist        the     Commission         in    defining      the

investigation."

      On 13 July 2012, the Commission entered an order denying NC

WARN's    motion         to    intervene.            The        order    explained         that   the

proceeding was "an investigation pursuant to the Commission's

supervisory authority under Article 3 of Chapter 62                                         [of the

General Statutes], rather than an application or rate case being

conducted pursuant to the Commission's authority under Article

4."     The Commission also found that "NC WARN is not a party

affected       within         the     meaning        of    G.S.     62-37,         requiring      the

Commission          to   'make       no     order    without        affording        the    parties

affected thereby notice and a hearing.'"

      Relying on State ex rel. Utils. Comm'n v. Carolina Util.

Customers       Ass'n,         163        N.C.    App.     1,     592    S.E.2d       277     (2004)

(hereinafter         "CUCA"),         the        Commission       further      found       that   its

"order in this proceeding will have only a generalized effect on

NC WARN's members, no more and no less than it will have on all

of Duke's and Progress' ratepayers."                              In addition, the Public

Staff     of    the       North       Carolina           Utilities      Commission          ("Public

Staff")        and       the     Attorney          General        were        parties       to    the
                                               -5-
investigation,         and      the    Commission         found     that    those     parties

"represent the interest of all consumers who will be affected by

the Commission's investigation."

       On     29    November     2012,       the     Staff    of    the    North    Carolina

Utilities Commission, the Public Staff, and Duke entered into a

settlement agreement regarding the investigation.                            The agreement

provided that Mr. Rogers, Mr. Johnson, and other individuals had

testified before the Commission during the investigation; that

Duke    had        filed    thousands        of    pages     of    documents       with   the

Commission pursuant to orders during the investigation; and that

the parties desired to resolve "all matters and issues . . .

without further litigation and expense and to move forward in a

positive       manner."          The    terms        of    the     settlement       agreement

included that: (1) Duke maintain certain staff in Raleigh; (2)

Duke create a board committee for regulatory compliance; (3)

Duke provide retail ratepayers an "additional $25 million in

fuel    and        fuel-related         cost       savings"        and     contribute     "an

additional $5 million to workforce development and low-income

assistance," each on top of amounts provided for in the merger

order; (4) Duke make certain executive-level staffing changes;

(5)    Duke    bring       in   two    new   outside       board    members     and    retire

current board members in a certain manner; (6) Mr. Rogers retire

in December 2013 and the new top executive be hired from outside
                                          -6-
the company; and (7) Duke "issue a statement of acknowledgement

to the Commission that its activities have fallen short of the

Commission's       understanding        of   Duke's         obligations    under       its

regulatory compact that frame the duties for a regulated utility

in this state."

      Although      denied     intervention,      NC    WARN      continued      to    file

comments in the investigation docket during the investigation,

and NC WARN filed a motion opposing the settlement agreement on

3 December 2012.          The Commission entered an order approving the

settlement        agreement     and     closing       the    investigation        on    12

December 2012.        The order provided that the "integrity of the

Commission to carry out its statutory mandate relies on the

openness and honesty of the regulated public utilities . . . ."

The   order       further     provided,      however,        that    the    settlement

agreement "restore[d] the balance between legacy Duke and legacy

Progress     in     the     merged     company    .     .    .,     reaffirm[ed]       the

regulatory     compact        and     continued   public          confidence     in    the

integrity     of     utility        regulation,   and        allow[ed]     the    merged

company to focus on its mission to provide affordable, reliable

electric service to North Carolina consumers."

      On 9 January 2013, NC WARN timely appealed the intervention

order and the settlement order.                 Prior to NC WARN's service of

the proposed record on appeal, Duke filed a motion to dismiss NC
                                       -7-
WARN's   appeal    with    the     Commission    on    7    March    2013.     The

Commission entered an order dismissing NC WARN's appeal for lack

of standing on 29 April 2013.

      The majority of the Commission concluded that NC WARN had

no right to intervene in the investigation under CUCA, and, as a

non-party, NC WARN had no right to appeal.                 The majority further

determined that it had jurisdiction to dismiss NC WARN's appeal

for lack of standing.           It reasoned that under N.C. Gen. Stat. §

62-90(c) (2011) and Farm Credit Bank of Columbia v. Edwards, 121

N.C. App. 72, 464 S.E.2d 305 (1995), the Commission retained

certain jurisdiction over appealed orders until the appeal is

docketed    in   the    appellate     court,    including      jurisdiction     to

dismiss an appeal by a non-party.

      Commissioner ToNola D. Brown-Bland concurred in the result.

Commissioner Brown-Bland reasoned that because the investigation

was pursuant to the Commission's Article 3 powers and was wholly

separate from the Commission's Article 4 judicial function, the

only party affected by the investigation was necessarily Duke,

the party investigated, since there was no assertion by any

party during the investigation that the public's interests were

not adequately protected.           Accordingly, only Duke could appeal

the   settlement       order.      Commissioner       Brown-Bland,     like     the

majority,    believed      the    Commission    could      dismiss    NC     WARN's
                                             -8-
appeal, an appeal by an unaffected non-party, as a nullity,

although she additionally concluded that the Commission could

dismiss    the      appeal     under    Rule    25   of     the    Rules    of    Appellate

Procedure.

      Commissioner Bryan E. Beatty dissented because, while he

agreed     that        the      Commission         properly        denied      NC        WARN's

intervention motion, he disagreed that the Commission had the

authority      to     dismiss    NC    WARN's      appeal     from   the    intervention

order.     Commissioner Beatty reasoned that N.C. Gen. Stat. § 62-

90(a) did not limit NC WARN, a non-party, from appealing since

that statute was limited to a "'final order or decision'" and

the intervention order was an interlocutory procedural order.

He   further     reasoned       that    Rule    25   of     the    Rules    of    Appellate

Procedure did not give the Commission authority to dismiss the

appeal for lack of standing because that rule was limited to

dismissals for failure to take timely action, and there was no

allegation       NC    WARN     had    not   timely       taken    and     perfected       its

appeal.

      Commissioner           Beatty    noted    that,      although      the     Commission

properly       exercised         its     discretion         in     denying          NC     WARN

intervention,         "the    majority's       decision       to    dismiss      NC      WARN's

appeal of that ruling on that same basis gives the appearance

that the majority is acting as an appellate court in affirming
                                         -9-
its   own   exercise    of     discretion."        Since     Duke   had    cited   no

authority    directly        stating    the    Commission    had    the    power   to

dismiss     NC      WARN's     appeal     from     the     intervention         order,

Commissioner Beatty "would follow the more cautious route and

leave th[e] question to the appellate court."

      On    16   May    2013,     NC    WARN     timely     appealed      the    order

dismissing its first appeal and, in the same notice of appeal,

again appealed the intervention order and settlement order.                        On

the same day, 16 May 2013, NC WARN filed a petition for writ of

certiorari in this Court seeking review of the order dismissing

its first appeal.       This Court entered an order denying NC WARN's

petition on 4 June 2013.               Duke filed a motion to dismiss NC

WARN's second appeal in this Court on 7 August 2013.

                                          I

      We    first    address     the    Commission's       order    dismissing     NC

WARN's first appeal, including its appeal from the intervention

order, for lack of standing.             NC WARN argues, both in its brief

and in response to Duke's motion to dismiss filed in this Court,

that the Commission did not have jurisdiction to dismiss its

first appeal for lack of standing.               We agree.

      In reviewing an order by the Commission, this Court "may

affirm or reverse the decision of the Commission, declare the

same null and void, or remand the case for further proceedings;
                                        -10-
or it may reverse or modify the decision if the substantial

rights    of    the   appellants    have       been    prejudiced   because     the

Commission's findings, inferences, conclusions or decisions are:

(1) [i]n violation of constitutional provisions, or (2) [i]n

excess of statutory authority or jurisdiction of the Commission,

or (3) [m]ade upon unlawful proceedings, or (4) [a]ffected by

other errors of law, or (5) [u]nsupported by competent, material

and    substantial     evidence    in    view     of    the   entire   record    as

submitted, or (6) [a]rbitrary or capricious."                 N.C. Gen. Stat. §

62-94(b) (2013).

       "The general rule is that an appeal takes the case out of

the jurisdiction of the trial court.                    Thereafter, pending the

appeal, the trial judge is functus officio."                  Estrada v. Jaques,

70 N.C. App. 627, 637, 321 S.E.2d 240, 247 (1984).                  This general

rule     is,     however,     "subject     to     two     exceptions    and     one

qualification[.]"       Id.

               "The exceptions are that notwithstanding the
               pendency of an appeal the trial judge
               retains jurisdiction over the cause (1)
               during the session in which the judgment
               appealed from was rendered and (2) for the
               purpose of settling the case on appeal. The
               qualification to the general rule is that
               the trial judge, after notice and on proper
               showing, may adjudge the appeal has been
               abandoned and thereby regain jurisdiction of
               the cause."
                              -11-
Id. at 637-38, 321 S.E.2d at 247 (quoting Bowen v. Hodge Motor

Co., 292 N.C. 633, 635-36, 234 S.E.2d 748, 749 (1977)).

    While it retains jurisdiction over an appealed matter, a

trial tribunal may dismiss an appeal under the circumstances

provided for in Rule 25 of the Rules of Appellate Procedure.

Rule 25 provides in relevant part:

              (a) Failure of appellant to take timely
         action.   If after giving notice of appeal
         from any court, commission, or commissioner
         the appellant shall fail within the times
         allowed by these rules or by order of court
         to take any action required to present the
         appeal for decision, the appeal may on
         motion of any other party be dismissed.
         Prior to the filing of an appeal in an
         appellate court motions to dismiss are made
         to the court, commission, or commissioner
         from which appeal has been taken; after an
         appeal has been filed in an appellate court
         motions to dismiss are made to that court.
         Motions to dismiss shall be supported by
         affidavits or certified copies of docket
         entries which show the failure to take
         timely action or otherwise perfect the
         appeal,   and   shall    be allowed   unless
         compliance or a waiver thereof is shown on
         the record, or unless the appellee shall
         consent to action out of time, or unless the
         court for good cause shall permit the action
         to be taken out of time.

    This Court interpreted the scope of Rule 25 in Estrada,

where the trial court dismissed an appeal on the grounds that

the appealed order was interlocutory.   70 N.C. App. at 639, 321

S.E.2d at 248.   The Court explained: "Taken out of context, the

second sentence of the Rule might provide the trial court with
                                                  -12-
authority to dismiss interlocutory appeals.                           However, elementary

principles of construction require that words and phrases be

interpreted         contextually        and        in    harmony    with     the    underlying

purposes of the whole."                Id.        The Court reasoned: "The title and

first    and    third      sentences         clearly       indicate       that     the    motions

described in the second sentence are only those for failure to

comply    with      the    Rules       of    Appellate          Procedure    or     with    court

orders requiring action to perfect the appeal."                             Id.

      In Estrada, the plaintiff appealed "various orders" prior

to final judgment being entered as to all claims and parties,

and     the    trial      court     dismissed             the     plaintiff's       appeal      as

interlocutory.         Id. at 637, 321 S.E.2d at 247.                       This Court then

reviewed on appeal whether the trial court had jurisdiction to

dismiss the plaintiff's appeal.                          Id.    This Court laid out the

above rules for a trial court's continued jurisdiction over an

appealed       matter       and    determined              that     the     exceptions          and

qualification did not apply.                       Id. at 638, 321 S.E.2d at 248.

The Court concluded that, given its interpretation of Rule 25,

the   trial     court      did    not       have    jurisdiction          under    Rule    25    to

dismiss       the    appeal       on        the     grounds       that     the     appeal       was

interlocutory.            Id. at 639, 321 S.E.2d at 248.                          Consequently,

the Court held, the trial court "acted beyond [its] authority in

dismissing the appeal."                Id.
                                                -13-
    Here,        there       is    similarly            no        contention         that    NC     WARN

abandoned      its     first      appeal      or       that        the    order      dismissing         NC

WARN's    first       appeal      was    in     any     way        related      to    settling          the

record on appeal.            However, with respect to the "exception" in

which    a    trial    court       maintains           jurisdiction            over    an    appealed

matter       during    the     session        in       which       the     appealed         order       was

rendered, the Commission's order provided that "[i]n contrast to

a Superior Court judge, the Utilities Commission never loses

jurisdiction over its cases before appeals are docketed in the

appellate court due to termination of a term of court."                                                 The

order    cited    N.C.       Gen.       Stat.      §    62-90(c)          in   support        of    that

distinction.           See id. ("The Commission may on motion of any

party to the proceeding or on its own motion set the exceptions

to the final order upon which such appeal is based for further

hearing       before     the      Commission.").                    The    Commission            further

reasoned that its jurisdiction over appealed orders was "more

pervasive than the General Court of Justice, especially in its

investigation determinations under Article 3."

    The        Commission's             order      additionally                provided:          "North

Carolina       recognizes         an    exception            to    the     rule      that    a     lower

tribunal      loses     jurisdiction            upon     notice           of   appeal       so     as    to

permit the lower tribunal to modify its judgment thereby also

permitting      it     to    retain      jurisdiction               to    dismiss      an    appeal."
                                           -14-
(Emphasis added.)           In support of this latter proposition, the

Commission cited Farm Credit Bank as support for its position

that     "[e]ven     where      the    retention         by    the    trial        court    of

jurisdiction after notice of appeal may be circumscribed for

settling the record on appeal, the courts have permitted the use

of this limited jurisdiction to dismiss an appeal."

       However,      Farm       Credit     Bank      does      not     stand       for     the

proposition        that     simply     because       a    trial       tribunal       retains

jurisdiction over a matter in order to settle the record on

appeal, the trial tribunal is empowered to dismiss the appeal

for reasons unrelated to settling the record during that time.

Rather, the Farm Credit Bank Court held that the trial court had

jurisdiction       over     a   motion     to     dismiss      an     appeal       as    being

unauthorized       because      (1)    that     issue     was       expressly       made   an

objection to the proposed record on appeal, (2) the plaintiff

consented to the trial court addressing the matter, and (3) the

plaintiff waived any objection to the jurisdictional issue by

requesting     affirmative        relief      from   the      trial    court       on    other

matters.     121 N.C. App. at 77, 464 S.E.2d at 307-08.

       We   note    that     Farm     Credit    Bank's        reasoning       is    directly

contrary      to    the     well-established         principle         that     "[s]ubject

matter      jurisdiction        'cannot    be     conferred          upon   a      court   by

consent, waiver or estoppel, and therefore failure to . . .
                                         -15-
object to the jurisdiction is immaterial.'"                        In re T.R.P., 360

N.C. 588, 595, 636 S.E.2d 787, 793 (2006) (quoting In re Sauls,

270 N.C. 180, 187, 154 S.E.2d 327, 333 (1967)).                           Nevertheless,

the validity of the Farm Credit Bank Court's reasoning aside,

that opinion's holding simply does not support the Commission's

assertion      that   the    Commission's       continuing         jurisdiction        over

certain matters, such as jurisdiction to hold a further hearing

on exceptions set out in a notice of appeal under N.C. Gen.

Stat. § 62-90(c), necessarily gives the Commission the authority

to   dismiss    an    appeal   for     reasons    unrelated         to    the    specific

nature of that continued jurisdiction.

      Moreover,       the   Commission's       broad    reading      of    Farm    Credit

Bank conflicts with the analysis in Estrada.                         In Estrada, the

Court    explained     that    since     the    session       of   the    term    of    the

appealed order had ended and there was no allegation that the

plaintiff had abandoned the appeal or failed to timely take

action   with    respect      to   the   appeal,       "the    Superior      Court     had

jurisdiction on [the day the defendants moved to dismiss the

appeal] only for the purpose of settling the case on appeal."

70 N.C. App. at 638, 321 S.E.2d at 248.

      The Court went on to hold that because the trial court's

order dismissing the appeal as interlocutory had nothing to do

with settling the record on appeal, the order went beyond the
                                        -16-
court's authority.          Id. at 638, 639, 321 S.E.2d at 248.              Since

Farm Credit Bank could not overrule Estrada, see In re Civil

Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989), we do not

read Farm Credit Bank as providing a trial tribunal jurisdiction

to dismiss an appeal during a time of continued jurisdiction for

a reason unrelated to that continued jurisdiction apart from the

trial tribunal's limited power to dismiss appeals as provided in

Rule 25.

       Thus, the Commission was correct that it had some continued

jurisdiction over the orders at issue in NC WARN's first appeal,

N.C.    Gen.        Stat.   §   62-90(c).        However,        that    continued

jurisdiction allowed the Commission to dismiss NC WARN's appeal

only based on the grounds specified in Rule 25.

       We initially observe that because NC WARN's first appeal

had not yet been docketed with this Court, Duke's motion to

dismiss the appeal was properly made to the Commission.                    N.C.R.

App. P. 25(a).          Estrada held that Rule 25 gives a trial court

authority      to    dismiss    an   appeal,   prior    to     docketing   in   the

appellate court, "only . . . for failure to comply with the

Rules   of   Appellate      Procedure    or    with    court    orders   requiring

action to perfect the appeal."            70 N.C. App. at 639, 321 S.E.2d

at 248.      There is no dispute in this case that NC WARN's first

notice of appeal was timely filed, that NC WARN timely complied
                                        -17-
with all appellate rules concerning its appeal, and that NC WARN

properly perfected its appeal.                Consequently, the Commission's

order dismissing NC WARN's first appeal was not properly based

upon Rule 25.

    The Commission determined, however, that it nonetheless had

jurisdiction to dismiss NC WARN's appeal under the rule stated

by our Supreme Court in State ex rel. Utils. Comm'n v. Edmisten,

291 N.C. 361, 365, 230 S.E.2d 671, 674 (1976) that "an attempted

appeal from a nonappealable order is a nullity and does not

deprive      the   tribunal     from    which        the     appeal       is   taken    of

jurisdiction."        That     rule    does    not    support       the    Commission's

order, however, because the authority to ignore an appeal from a

nonappealable order and proceed as if no appeal had been taken

is not equivalent to authority to dismiss the appeal itself.                           In

Edmisten, the Supreme Court held that the intervenor's appeal

from a nonappealable order did not divest the Commission of

jurisdiction       over   the    appealed      order,        and,     therefore,       the

Commission "was not deprived of authority later to modify this

order."      Id.    Notably, however, the Commission in Edmisten did

not attempt to dismiss the appeal, and it was this Court that

held,   in    a    different    opinion,      that     the    appealed         order   was

interlocutory and, therefore, nonappealable.                    Id. at 363-64, 230

S.E.2d at 673.
                                           -18-
       Finally, the Commission's order was based on the reasoning

that   it   could     dismiss     the      appeal    of    any   non-party     to    the

proceeding,     including        NC     WARN,      since    a    non-party    has     no

statutory right to appeal.              This Court has, however, recognized

a non-party's right to appeal from an order denying the non-

party's motion to intervene, despite the fact that the non-party

is, by virtue of the appealed order, not a party to the case.

See Procter v. City of Raleigh Bd. of Adjustment, 133 N.C. App.

181,    184,    514     S.E.2d     745,      747     (1999)      (holding    proposed

intervenors     had     standing      to    appeal       order   denying    motion   to

intervene under Rule 24 of Rules of Civil Procedure, reversing

intervention order, and remanding for entry of order allowing

intervention).        See also State ex rel. Easley v. Philip Morris

Inc., 144 N.C. App. 329, 334-35, 548 S.E.2d 781, 784 (2001)

(reviewing     merits    of   proposed       intervenor's        appeal    from   order

denying     motion       to     intervene          and     affirming       denial     of

intervention).

       If sustained, the Commission's position that it should be

permitted to dismiss NC WARN's appeal from its order denying NC

WARN's motion to intervene since NC WARN was a non-party would

deprive NC WARN of appellate review of the denial of its motion

to intervene.       The Commission's decision would be insulated from

review.     We do not believe the General Assembly intended that
                                           -19-
result.      We, therefore, hold that the Commission exceeded its

authority in dismissing NC WARN's appeal for lack of standing.

       In   Estrada,    after    holding      that   the    trial     court    had   no

authority to dismiss the plaintiff's appeal as interlocutory,

the Court noted: "Depending on our interpretation of the legal

basis of the order [dismissing the plaintiff's appeal], we could

either: (1) treat [the plaintiff's] appeal as an application for

certiorari, grant same, and consider the merits; or (2) treat

the order as in excess of authority and void ab initio, and

consider the purported appeal, assuming the substantial right

doctrine     applies    [to     the   interlocutory        appeal],    as     properly

before us."         70 N.C. App. at 640, 321 S.E.2d at 249 (internal

citations omitted).

       The Court held, however, that it was unable to treat the

plaintiff's appeal as a petition for writ of certiorari because

the plaintiff had already petitioned the Court for a writ of

certiorari to review the order dismissing his appeal, a separate

panel of the Court had previously denied that petition, and the

Estrada     Court    was   bound      by   the    prior    decision    denying       the

petition to review the same order.                Id. at 640-41, 321 S.E.2d at

249.    The Court further held that although it could treat the

order dismissing the appeal as void ab initio and consider the

merits of the appeal, the appeal at issue was interlocutory and,
                                   -20-
since a prior panel of the Court had also denied the plaintiff's

separate petition for writ of certiorari to review the orders

underlying the first appeal, the Estrada Court was unable to

conclude that the appeal affected a substantial right.            Id. at

641, 321 S.E.2d at 249.        Consequently, the Court dismissed the

plaintiff's appeal of the interlocutory orders.        Id.

    In this case, as in Estrada, NC WARN has already filed a

petition for writ of certiorari in this Court seeking review of

the Commission's order dismissing its first appeal.           A separate

panel of this Court has denied that petition.                We may not,

therefore, treat NC WARN's appeal as a petition for writ of

certiorari and allow it in order to reach the merits of NC

WARN's   appeal   from   the    underlying   orders.     There    is   no

impediment, however, to our treating the Commission's order "as

in excess of authority and void ab initio, and consider[ing] the

purported appeal . . . as properly before us."         Id. at 640, 321

S.E.2d at 249.

    We, therefore, hold that the Commission's order dismissing

NC WARN's first appeal is void ab initio and we treat NC WARN's

first appeal, from the intervention order and settlement order,

as properly before us.         In light of our holding, we need not

address the sufficiency of        NC WARN's second appeal from the

intervention order and the settlement order.
                                    -21-
                                     II

    We next address NC WARN's appeal from the order denying its

motion to intervene.      We initially observe that NC WARN does not

substantively challenge, in its brief, the Commission's order

denying NC WARN's motion to intervene as of the time the order

was entered.     Although NC WARN makes an unsupported assertion

that "the Commission's denial of NC WARN's Motion to Intervene

was improper because NC WARN had standing to participate in this

case," that bare contention, without any supporting authority or

argument, is insufficient to raise the issue of the merits of

the intervention order at the time it was entered.                N.C.R. App.

P. 28(b)(6).

    Rather     than   arguing      that    the   intervention      order   was

erroneous when entered, NC WARN contends that the Commission's

subsequent   settlement    order    affected     NC   WARN,    thereby   giving

rise to NC WARN's standing to intervene in this investigation

docket.   Since NC WARN has abandoned its right to substantively

challenge the intervention order, we affirm that order.

    We now turn to NC WARN's argument that it had standing to

intervene after entry of the settlement order.                The Commission's

investigation in this case was an investigation pursuant to N.C.

Gen. Stat. § 62-37, which provides:

               (a) The Commission may, on its own
          motion and whenever it may be necessary in
                                       -22-
            the performance of its duties, investigate
            and examine the condition and management of
            public utilities or of any particular public
            utility.   In conducting such investigation
            the Commission may proceed either with or
            without a hearing as it may deem best, but
            shall make no order without affording the
            parties affected thereby notice and hearing.

(Emphasis added.)

      NC WARN contends that it was a "party affected" by the

Commission's      settlement    order      because      the     settlement     order

"directly modified the underlying merger order in the merger

docket" since it "goes outside the scope of investigation and

attempts to . . . resolve matters in the merger dockets."                         NC

WARN was a party to the merger docket, and it contends that it

"cannot be a party affected in the merger dockets and somehow no

longer affected when the merger order is modified in another

docket."

      We   note   that   NC    WARN    never    filed     a    second    motion   to

intervene with the Commission, after entry of the settlement

order,     presenting    the    argument       it   now       raises    on   appeal.

However, NC WARN did argue in its first notice of appeal that

the settlement order "approved a settlement agreement that had

the   intent      and    effect       of   significantly          modifying       the

Commission's [merger order] in the other dockets relating to the

merger of the two electric utilities . . . in which NC WARN was

an intervening party."         This is essentially the same basis upon
                                               -23-
which NC WARN now contends that it had standing to intervene in

this investigation.

       In     its    order       dismissing          NC        WARN's     first       appeal,          the

Commission          determined       that           NC        WARN    was      properly         denied

intervention and that "the Commission's order in this docket

does   not       modify    its     order       in    the       merger     docket      as     NC    WARN

alleges."            We    assume,     without                deciding,        that     NC      WARN's

assertions in its first notice of appeal, and the Commission's

ruling      in      its    order     dismissing                that     appeal,       sufficiently

preserve for appeal NC WARN's standing argument.

       This      Court     addressed       a    similar          standing       issue      in     CUCA.

There, the Commission and a South Carolina agency initiated a

joint investigation of Duke Power under N.C. Gen. Stat. § 62-37

regarding        accounting        irregularities                at     Duke     alleged          by     a

whistleblower.            CUCA, 163 N.C. App. at 2, 592 S.E.2d at 278.

Carolina         Utility     Customers          Association,             Inc.     ("CUCA"),             an

association         representing       many              of     North    Carolina's          largest

industrial manufacturers, sought permission to "participate in"

the investigation "to insure that the interests of its rate-

paying manufacturers who may have suffered disproportionately

from any excessive charges for electrical power were protected."

Id.
                                         -24-
    The Commission denied CUCA's request to participate, and

during    the    investigation      it    was       determined         that    Duke     had,

through    accounting       practices,        "'inappropriately          reduced'"       its

"'pre-tax       utility    operating      income'"         for    several       years     by

millions    of    dollars.      Id.      at    3,   592     S.E.2d      at     279.      The

Commission Staff and Duke then negotiated a settlement agreement

whereby Duke would be required, among other things, to correct

erroneous    accounting       entries,        "'make   a    one-time          $25    million

credit in 2002 to its deferred fuel amounts in North Carolina

and South Carolina . . . to be incorporated into the next fuel

cost proceedings in the respective states[,]" implement certain

remedial        actions,      and       "'acknowledge            and        regret      that

communications       with     the   two        State      Commissions          failed     to

adequately       detail     significant        changes      to     prior       accounting

practices[.]'"      Id. at 4, 592 S.E.2d at 279.

    The     Commission       held   a    staff      conference         to     discuss   the

settlement agreement, and CUCA presented the Commission, at the

conference, with a "motion requesting further investigation and

hearing."       Id. at 5, 592 S.E.2d at 279.                The Commission denied

CUCA's motion and voted unanimously to approve the settlement

agreement, but the vote did not constitute a final order since

the South Carolina agency had not yet approved the agreement.

Id., 592 S.E.2d at 279-80.
                                              -25-
       Prior to entry of a final order, CUCA and an individual

ratepayer,       Wells       Eddleman,       filed    petitions    to    intervene    and

motions for further investigation and hearing.                       Id. at 2, 5, 592

S.E.2d at 278, 280.              The Commission subsequently entered a final

order granting CUCA and Eddleman's motions to intervene after

concluding that "'as ratepayers, CUCA [and] Eddleman . . . are

affected by the level of Duke's rates and have an interest in

this matter.'"             Id. at 5, 592 S.E.2d at 280.              The Commission's

order,      however,        denied     the    motions    for    further    hearing    and

formally approved the settlement agreement.                         Id.     On appeal,

CUCA and Eddleman "raise[d] issues regarding the investigation

of   Duke      and    the    Commission's       subsequent      order    approving    the

settlement agreement resulting from that investigation."                         Id. at

6, 592 S.E.2d at 280.                Duke, in turn, cross-appealed and argued

that     the    Commission         erred      in     granting     CUCA    and   Eddleman

intervention since they were not "'parties affected'" by the

investigation.             Id.

       This Court in CUCA held that CUCA and Eddleman were not

"'parties       affected'"        by    the     order    and,     therefore,    had    no

standing to appeal the Commission's approval of the settlement

agreement.           Id.     The Court first noted that "the investigation

of Duke was conducted by the Commission pursuant to its powers

and duties defined under Article 3 of our General Statutes,
                                      -26-
particularly Section 62-37, and not pursuant to the Commission's

judicial    functions    outlined     in   Article    4."     Id.   The     Court

observed that intervention under the Commission Procedural Rules

was permitted as follows: "'Any person having an interest in the

subject matter of any hearing or investigation pending before

the Commission may become a party thereto and have the right to

call and examine witnesses, cross-examine opposing witnesses,

and be heard on all matters relative to the issues involved . .

. .'"     Id. at 7-8, 592 S.E.2d at 281 (quoting N.C.U.C. Rule R1-

19(a)).    The Commission had, therefore, "concluded that CUCA and

Eddleman not only had an 'interest in the subject matter' but

were also 'parties affected' by the order . . . ."                  Id. at 8,

592 S.E.2d at 281.

      With respect to whether CUCA and Eddleman were "parties" to

the investigation, the Court held that CUCA and Eddleman were

not     "parties"   under      N.C.   Gen.    Stat.    §    62-37   until    the

Commission's final order granted their motion to intervene.                   163

N.C. App. at 9, 592 S.E.2d at 282.               The Court then addressed

whether CUCA and Eddleman were parties "affected" by the order,

and   looked   to   a   case   interpreting    the    prior   version   of   the

statute providing a right to appeal the Commission's orders for

"'any party affected thereby.'"            Id. (quoting In re Hous. Auth.

of City of Charlotte, 233 N.C. 649, 657, 65 S.E.2d 761, 767
                                      -27-
(1951)).    The Court observed that "'party affected'" had been

defined, under that statute, as follows: "'[A] party is not

affected by a ruling of the Utilities                  Commission unless the

decision affects or purports to affect some right or interest of

a party to the controversy and [is] in some way determinative of

some material question involved.'"              Id. (quoting In re Hous.

Auth., 233 N.C. at 657, 65 S.E.2d at 767).

      Further, with respect to whether a party is "affected," the

Court explained that the current appeals statute, which replaced

the   statute   construed   in   In    re    Housing    Authority,   used   the

phrase "'party aggrieved'" instead of "'party affected.'"                   163

N.C. App. at 10, 592 S.E.2d at 282 (quoting N.C. Gen. Stat. §

62-90(a) (2003)).      The Court observed that, generally, "'[a]

"party aggrieved" is one whose rights have been directly and

injuriously affected by the judgment entered . . . .'"                      Id.

(quoting Hoisington v. ZT-Winston-Salem Assocs., 133 N.C. App.

485, 496, 516 S.E.2d 176, 184 (1999)).                  In addition, "[t]his

Court's interpretation of 'party aggrieved' as it relates to an

appeal of an order by the Commission also suggests that more

than a generalized interest in the subject matter is required."

Id.
                                         -28-
       Applying those interpretations of "'party affected'" and

"'party aggrieved'" to the facts before it, the Court in CUCA

reasoned:

            Duke was the only party recognized by the
            Commission throughout the investigation, as
            well   as   the  only   party   directly   and
            substantially affected by any subsequent
            order   arising   therefrom   in   the   sense
            envisioned by the statute.      As such, only
            Duke was entitled to receive notice and
            hearing pursuant to Section 62-37 to protect
            its due process rights.       While CUCA and
            Eddleman may have had an interest in the
            matter, their interest was only generalized
            and unsubstantial -- not specific to them as
            individual Duke customers.

Id., 592 S.E.2d at 283 (emphasis added).

       The Court also rejected CUCA and Eddleman's argument that

there     was   no    party       in   the    investigation       that   adequately

protected their interests.              Id. at 11, 592 S.E.2d at 283.             In

fact, the Court pointed out, the Public Staff participated in

the     investigation       and    recommended      approving      the   settlement

agreement,      and   the     Public     Staff    acts    independently     of   the

Commission and was created "'to represent [the interests of] the

using and consuming public' in matters before the Commission."

Id. (quoting N.C. Gen. Stat. § 62-15(b) (2003)).

       The Court in CUCA concluded that while CUCA and Eddleman

"may     have   had   an      interest       in   the    matter    sufficient    for

intervention in a hearing or investigation pending before the
                                             -29-
Commission     pursuant       to      Article        4,        Article        3     requires      the

prospective interveners to also be 'parties affected' pursuant

to Section 62-37."         Id. at 11-12, 592 S.E.2d at 283-84.                                   Since

"approval of the settlement agreement only had a generalized and

unsubstantial      affect       on        CUCA     and     Eddleman,              they   were     not

'parties affected[,]'" and the Commission abused its discretion

in granting their petitions to intervene.                          Id. at 12, 592 S.E.2d

at 284.       Further, since CUCA and Eddleman had no standing to

appeal from the Commission's final order, the Court affirmed the

order.    Id. at 6, 12, 592 S.E.2d at 280, 284.

      Here,      Duke   was        the      only     party        investigated             by     the

Commission and, as in CUCA, the investigation was pursuant to

the Commission's Article 3 powers and not its Article 4 judicial

power.     Like    CUCA,      NC     WARN    is     an     organization             of    ratepayer

members    and    sought      to      intervene           in     order        to     protect      the

financial interests of its members.                        In other words, NC WARN's

interest was "only generalized and unsubstantial -- not specific

to [it] as [an] individual Duke customer[]."                                  Id. at 10, 592

S.E.2d at 283.          And, as in CUCA, the Public Staff, the party

protecting the interest of the consuming public, participated in

the   investigation       and      recommended            the     Commission             adopt    the

settlement     agreement.            NC    WARN's        interest        in       this    case    is,
                                                  -30-
therefore, materially indistinguishable from the interests of

the intervenors in CUCA.

       NC   WARN        nonetheless          tries    to    distinguish          CUCA    from      the

present      case        by     arguing       that        here,    unlike        in     CUCA,      the

settlement order modified the merger order and NC WARN, having

already      been       a     party     to    the     merger       docket,       was     therefore

necessarily        a     party     affected          by    the    settlement          order.        In

support      of    its        argument,      NC    WARN     relies       upon    the     following

specific provisions of the settlement agreement:

              C.        Duke will guarantee that Duke's North
                        Carolina retail ratepayers will receive
                        an additional $25 million in fuel and
                        fuel-related cost savings over and
                        above the amount Duke is obligated to
                        provide pursuant to the Merger Order.

              D.        Duke will contribute an additional $5
                        million to workforce development and
                        low-income assistance in North Carolina
                        on top of the amount provided in the
                        Merger Order.

       NC WARN also points to the settlement agreement's statement

that   the    parties          "desire       to    resolve        all    matters       and    issues

involved      in        the     Commission's          investigation         and       the     Merger

Dockets      without          further     litigation         and    expense       and       to    move

forward      in     a       positive      manner."           These       provisions          of    the

settlement         agreement          were        summarized        in     the        Commission's

settlement order.
                                               -31-
      Based on the provisions highlighted by NC WARN, however, we

believe that the settlement agreement does not modify the merger

order    but,    by       its    own    terms,      requires      Duke     to     comply    with

provisions that are "over and above" obligations placed on Duke

in the merger order.                   While we acknowledge that the parties'

assertion       in    the       settlement         agreement     that      they    wanted     to

resolve "all matters and issues involved in the . . . Merger

Dockets" unnecessarily blurred the otherwise clear distinction

between the two proceedings, the parties' loose statement does

not     serve    to       alter    the     material        terms      of   the     settlement

agreement highlighted by NC WARN.                          Based on the face of the

agreement       as    to    those       terms,      we     cannot     conclude      that     the

settlement order modified the merger order.

      Further, even assuming that the settlement order dealt with

some of the same matters at issue in the merger order, CUCA

makes     clear       that        there     are       different         requirements         for

intervention         in    an    Article       4   judicial      proceeding        before    the

Commission and intervention in an Article 3 investigation before

the     Commission.             While     it       appears     that      the     Commission's

Procedural Rules permit intervention by "'[a]ny person having an

interest    in       the    subject      matter       of   any   hearing'"         before    the

Commission, id. at 7, 592 S.E.2d at 281 (quoting N.C.U.C. Rule

R1-19(a)), the "party affected" standard under N.C. Gen. Stat. §
                                    -32-
62-37(a) is higher and does not permit intervention by a party

that merely has a "generalized and unsubstantial" interest in

the matter, CUCA, 163 N.C. App. at 10, 592 S.E.2d at 283.              Thus,

under CUCA, even assuming NC WARN had an interest sufficient to

intervene in the merger docket, a non-Article 3 proceeding, NC

WARN's intervention in the merger docket does not show that it

was a party affected for purposes of the investigation docket.

    Under   CUCA,   we    hold    that   NC   WARN   was   properly   denied

intervention by the Commission and that the subsequent entry of

the settlement order did not change NC WARN's status and make NC

WARN a "party affected."         Consequently, as in CUCA, NC WARN has

no standing to appeal from the settlement order, and we affirm

that order as well.      In light of our disposition, we deny Duke's

motion to dismiss the appeal.


    Vacated in part; affirmed in part.

    Judges BRYANT and CALABRIA concur.
