{ "id": 8436029, "name": "SYLVIA YOUSE, Plaintiff-Appellant v. DUKE ENERGY CORPORATION, Defendant-Appellee", "name_abbreviation": "Youse v. Duke Energy Corp.", "decision_date": "2005-07-05", "docket_number": "No. COA04-797", "first_page": "187", "last_page": "201", "citations": [ { "type": "official", "cite": "171 N.C. App. 187" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "2 S.E.2d 570", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1939, "pin_cites": [ { "page": "575" } ], "opinion_index": 0 }, { "cite": "215 N.C. 501", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630490 ], "year": 1939, "pin_cites": [ { "page": "510" } ], "opinion_index": 0, "case_paths": [ "/nc/215/0501-01" ] }, { "cite": "89 S.E.2d 860", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1955, "pin_cites": [ { "page": "863" } ], "opinion_index": 0 }, { "cite": "243 N.C. 92", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621383 ], "year": 1955, "pin_cites": [ { "page": "95" } ], "opinion_index": 0, "case_paths": [ "/nc/243/0092-01" ] }, { "cite": "502 S.E.2d 659", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1998, "pin_cites": [ { "page": "661" }, { "page": "662" } ], "opinion_index": 0 }, { "cite": "130 N.C. 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Hall, 318 N.C. 421, 429-30, 349 S.E.2d 552, 557-58 (1986)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/152/0228-01" ] }, { "cite": "548 S.E.2d 527", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "353 N.C. 452", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135974, 135980, 135596, 135797, 135800 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/353/0452-02", "/nc/353/0452-03", "/nc/353/0452-01", "/nc/353/0452-05", "/nc/353/0452-04" ] }, { "cite": "542 S.E.2d 227", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "231" } ], "opinion_index": 0 }, { "cite": "142 N.C. App. 48", "category": "reporters:state", "reporter": "N.C. 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Gen. Stat. \u00a7 95-25.1-95", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "332 S.E.2d 511", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "513" } ], "opinion_index": 1 }, { "cite": "76 N.C. App. 338", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527230 ], "year": 1985, "pin_cites": [ { "page": "340" } ], "opinion_index": 1, "case_paths": [ "/nc-app/76/0338-01" ] }, { "cite": "595 S.E.2d 224", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "227", "parenthetical": "quoting Sessoms v. Sessoms, 76 N.C. App. 338, 340, 332 S.E.2d 511, 513 (1985)" } ], "opinion_index": 1 }, { "cite": "164 N.C. App. 218", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8896631 ], "year": 2004, "pin_cites": [ { "page": "222", "parenthetical": "quoting Sessoms v. Sessoms, 76 N.C. 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App.", "case_ids": [ 11916022 ], "year": 1996, "pin_cites": [ { "page": "147-48" } ], "opinion_index": 1, "case_paths": [ "/nc-app/122/0143-01" ] }, { "cite": "177 S.E. 184", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1934, "pin_cites": [ { "page": "187" } ], "opinion_index": 1 }, { "cite": "207 N.C. 323", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625752 ], "year": 1934, "pin_cites": [ { "page": "329" } ], "opinion_index": 1, "case_paths": [ "/nc/207/0323-01" ] }, { "cite": "511 S.E.2d 298", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1999, "pin_cites": [ { "page": "299-300", "parenthetical": "\"when the appellant's brief does not comply with the rules by properly setting forth exceptions and assignments of error with reference to the transcript and authorities relied on under each assignment, it is difficult if not impossible to properly determine-the appeal\"" }, { "page": "299", "parenthetical": "citation omitted" } ], "opinion_index": 1 }, { "cite": "350 N.C. 64", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 131998 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "65-67" }, { "page": "66" }, { "page": "66" } ], "opinion_index": 1, "case_paths": [ "/nc/350/0064-01" ] }, { "cite": "610 S.E.2d 360", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "page": "361", "parenthetical": "per curiam" } ], "opinion_index": 1 }, { "cite": "359 N.C. 400", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3799435 ], "year": 2005, "pin_cites": [ { "page": "402", "parenthetical": "per curiam" } ], "opinion_index": 1, "case_paths": [ "/nc/359/0400-01" ] } ], "analysis": { "cardinality": 1265, "char_count": 32945, "ocr_confidence": 0.759, "pagerank": { "raw": 2.51633727037402e-07, "percentile": 0.8110596409288727 }, "sha256": "a323a2e95a093c68bd178e79dc4f4688ee2905044b47dcc3c5c5d9ce1cf382db", "simhash": "1:02aa676ae3ff28ce", "word_count": 5257 }, "last_updated": "2023-07-14T21:08:31.744997+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge GEER concurs.", "Judge TYSON dissents with a separate opinion." ], "parties": [ "SYLVIA YOUSE, Plaintiff-Appellant v. DUKE ENERGY CORPORATION, Defendant-Appellee" ], "opinions": [ { "text": "McGEE, Judge.\nSylvia Youse (plaintiff) was employed by Duke Energy Corporation (defendant) from 8 October 1984 to 21 March 2002. Plaintiff became a Quality Assurance Analyst (QAT Analyst) for defendant on 1 June 1999. The QAT Analyst job description contained the following provision:\nI. POSITION PURPOSE\nMonitors and evaluates the quality of inbound telephone calls. Document[s] quality issues and performance measures for management review .... Provide [s] information to assist in the feedback and formal education process of individuals on the phone. Provides subject matter expertise regarding call segment processes and call criteria. Informal feedback and auditing of non-call work is also summarized and audited to assure quality issues are addressed.\nII. MAJOR ACCOUNTABILITIES/ESSENTIAL DUTIES\n2. . . .\nB. Maintains appropriate relationships and credibility-needed to assure that quality scores are used effectively to improve performance of Customer Service Specialists.\nPlaintiff and her husband owned a house in Mebane, North Carolina (the Mebane house), which they leased to their son and daughter-in-law. Defendant provided electrical service to the Mebane house. Plaintiffs son and daughter-in-law arranged to move out of the Mebane house in February 2002. Electrical service was scheduled to be changed from plaintiffs daughter-in-law\u2019s name to plaintiffs name on 18 February 2002. However, the electrical service was disconnected on 11 February 2002.\nPlaintiff telephoned defendant on 11 February 2002 and inquired as to why the electrical service was not working. Plaintiff spoke with customer service representative Demishie Grier (Grier), who informed plaintiff that the electrical service had been disconnected for non-payment. Plaintiff and Grier began to disagree as to whether the electrical service should be turned back on. When plaintiff asked to speak with a supervisor, Grier stated that Grier could not transfer the call but would have a supervisor call plaintiff. Plaintiff stated that she could not be called back since she was on a cell phone and had an unreliable connection. Plaintiff and Grier thereafter ended their telephone conversation.\nPlaintiff then telephoned call service response and spoke with Billy Kingry (Kingry), a service response specialist. Plaintiff had originally hired Kingry to work for defendant and was Kingry\u2019s former supervisor. Plaintiff asked Kingry to look at the Mebane house account and told him that she needed electrical service at the Mebane house. Kingry then arranged to have the electrical service turned back on at the Mebane house. This reconnection of the electrical service was in violation of defendant\u2019s \u201cnon-pay reconnect\u201d guidelines, which provide that a reconnect of an account is only available once payment has been made on the account. Kingry told Yolanda Peterson (Peterson), a HR Consultant for defendant, that he did \u201cma[k]e an exception for [plaintiff] because of [Kingry and plaintiff\u2019s] previous relationship and [plaintiff\u2019s] knowledge of how things work.\u201d\nThe following day, on 12 February 2002, defendant determined that the electrical service at the Mebane house had been erroneously reconnected. The account was scheduled for another non-pay disconnect, and a disconnect notice was delivered to the Mebane house.\nPeterson received an email on 18 February 2002 from Dawn Morrison (Morrison), plaintiffs supervisor. The email stated that plaintiff may have engaged in \u201cvery inappropriate conduct.\u201d The email also recommended that an investigation take place. Peterson began an investigation into plaintiff\u2019s conduct, during which Peterson interviewed numerous individuals and reviewed the history of the Mebane house account. Plaintiff was removed from defendant\u2019s employment on 8 March 2002 pending the completion of Peterson\u2019s investigation.\nDuring the course of the investigation, Peterson learned that in January 2002, plaintiff had accessed her daughter-in-law\u2019s account at the Mebane house. This activity was in violation of defendant\u2019s procedures which prohibit employees from working on their own, their co-workers,\u2019 or their family members\u2019 electrical service accounts. Peterson also determined that plaintiff\u2019s conduct, when plaintiff spoke with Grier, included \u201chostile and intimidating statements\u201d and an \u201cattempt to persuade . . . Grier to circumvent established call procedures.\u201d Finally, Peterson found that plaintiff \u201ccircumvent[ed] . . . customer service processes\u201d when she called Kingry directly in an effort to restore the electrical service, and that she made false statements to Kingry about the Mebane house account. Due to this conduct, Peterson determined that plaintiff was unable to satisfy the requirements of her position as a QAT Analyst. Peterson found that plaintiff\ncompromised her credibility and her relationship with [defendant\u2019s] employees when she completely disregarded the very same customer service procedures that she was charged with administering, made intimidating statements to a customer service specialist and service response employee, and abused her position [with defendant] to achieve her own personal objectives.\nPeterson recommended to Lynetta Chisolm (Chisolm), General Manager of Customer Contact Services, that plaintiff be discharged. Chisolm agreed, and plaintiffs employment with defendant was terminated on 21 March 2002.\nPlaintiff filed a complaint against defendant on 20 September 2002, alleging wrongful termination in violation of public policy based on age and handicap discrimination, negligent infliction of emotional distress, a violation under the Wage and Hour Act, N.C. Gen. Stat. \u00a7 95-25.1-95-25.25, and punitive and special damages. That same day, plaintiff filed a complaint in the United States District Court for the Middle District of North Carolina (Middle District) alleging identical facts to those in the state court complaint. The complaint filed in the Middle District alleged violations of the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. \u00a7 621-634, the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. \u00a7 12101-12213, and the Employment Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. \u00a7 1001-1461. Defendant filed a motion for summary judgment in the Middle District case on 24 October 2003. In an order and recommendation dated 15 December 2003, a magistrate judge recommended that defendant\u2019s motion for summary judgment be granted. Youse v. Duke Energy Corporation, 1:02CV00808 (M.D.N.C. 2003). Plaintiff objected to the recommendation, and a district court judge made a de novo determination of the magistrate judge\u2019s recommendation. See 28 U.S.C. \u00a7 636 (b)(1) (2004). The district court judge adopted the magistrate judge\u2019s recommendation and ordered that defendant\u2019s motion for summary judgment be granted as to all claims on 23 January 2004.\nDefendant filed a motion for summary judgment in state court on 21 January 2004. The trial court granted defendant\u2019s motion in an order entered 11 February 2004. Plaintiff appeals.\nI.\nWe first address defendant\u2019s argument that plaintiff\u2019s appeal should be dismissed due to plaintiffs violations of the North Carolina Rules of Appellate Procedure. Defendant specifies that plaintiff has violated the Rules by: (1) failing to reference the record page numbers on which her assignments of error appear, see N.C. R. App. P. 28(b)(6); (2) referencing the incorrect assignment of error in support of Argument D in her brief, see id.; (3) using argumentative language when summarizing the facts of the case, see N.C. R. App. P. 28(b)(5); (4) failing to reference pages of the transcript or record on appeal in connection with her factual assertions, see id.; (5) failing to include relevant portions of statutes in the Appendix to her brief, see N.C. R. App. P. 28(d)(1)(c); (6) using the incorrect font size for the footnotes in her brief, see N.C. R. App. P. 26(g); (7) providing the improper citations for several of the authorities on which plaintiff\u2019s brief relies, see N.C. R. App. P. 28(b)(6); and (8) filing her Appeal Information Statement two weeks after the date her brief was due to be filed, see N.C. R. App. P. 41(b)(2).\nAlthough we recognize that plaintiff failed to comply with several of our Rules of Appellate Procedure, we do not find that dismissal of the appeal is proper in this case. Despite the Rules violations, we are able to determine the issues in this case on appeal. Furthermore, we note that defendant, in filing a brief that thoroughly responds to plaintiffs arguments on appeal, was put on sufficient notice of the issues on appeal. See Viar v. N.C. Dep\u2019t of Transportation, 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005). Since plaintiffs Rules violations are not \u201cso egregious as to invoke dismissal^]\u201d Symons Corp. v. Insurance Co. of North America, 94 N.C. App. 541, 543, 380 S.E.2d 550, 552 (1989), we elect to review the significant issues of this appeal pursuant to N.C. R. App. P. 2. See Symons, 94 N.C. App. at 543, 380 S.E.2d at 552.\nII.\nPlaintiff\u2019s first assignment of error, contends that the trial court erred in granting summary judgment in favor of defendant on plaintiffs claim of wrongful discharge against public policy. The trial court\u2019s order stated the following:\n1. Defendant is entitled to summary judgment on plaintiff\u2019s claim of wrongful discharge against public policy. . . . The same issues that are dispositive of plaintiff\u2019s claim of wrongful discharge against public policy already have been litigated to final judgment by the [Middle District] in plaintiff\u2019s companion lawsuit against defendant.... Therefore, plaintiff\u2019s claims in this state court proceeding are barred by the doctrine of collateral estoppel.\nSummary judgment is appropriate when \u201cthe pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (2003). The moving party to a summary judgment motion can prevail by showing that \u201cthe other party cannot overcome an affirmative defense which would bar the claim.\u201d Caswell Realty Assoc. v. Andrews Co., 128 N.C. App. 716, 720, 496 S.E.2d 607, 610 (1998). Collateral estoppel is an affirmative defense. See N.C. Gen. Stat. \u00a7 1A-1, Rule 8 (2003); Johnson v. Smith, 97 N.C. App. 450, 453, 388 S.E.2d 582, 584, disc. review denied, 326 N.C. 596, 393 S.E.2d 878 (1990).\nCollateral estoppel prevents \u201cthe subsequent adjudication of a previously determined issue, even if the subsequent action is based on an entirely different claim.\u201d Whitacre P\u2019ship v. Biosignia, Inc., 358 N.C. 1, 15, 591 S.E.2d 870, 880 (2004). An action is barred under the doctrine of collateral estoppel \u201ceven if the first adjudication is' conducted in federal court and the second in state court.\u201d McCallum v. N.C. Coop. Extension Serv., 142 N.C. App. 48, 52, 542 S.E.2d 227, 231, disc. review denied, 353 N.C. 452, 548 S.E.2d 527 (2001). Collateral estoppel will apply when: \u201c(1) a prior suit resulted] in a final judgment on the merits; (2) identical issues [were] involved; (3) the issue was actually litigated in the prior suit and necessary to the judgment; and (4) the issue was actually determined.\u201d McDonald v. Skeen, 152 N.C. App. 228, 230, 567 S.E.2d 209, 211, disc. review denied, 356 N.C. 437, 571 S.E.2d 222 (2002) (citing Thomas M. McInnis & Assoc., Inc. v. Hall, 318 N.C. 421, 429-30, 349 S.E.2d 552, 557-58 (1986)). In determining what issues were actually litigated or decided by the earlier judgment, the court in the second proceeding is \u201c \u2018free to go beyond the judgment roll, and may examine the pleadings and the evidence [if any] in the prior action.\u2019 \u201d Miller Building Corp. v. NBBJ North Carolina, Inc., 129 N.C. App. 97, 100, 497 S.E.2d 433, 435 (1998) (alteration in original) (quoting 18 James W. Moore et al., Moore\u2019s Federal Practice \u00a7 132.03 [4] [i] (3rd ed. 1997)).\nAlthough plaintiffs companion Middle District case was based on different legal claims than the case before us, the state court and Middle District cases involved identical underlying factual issues. \u201cTo the extent the U.S.-District Court ruled on these issues, plaintiff is barred from relitigating the issues in state court.\u201d Williams v. City of Jacksonville Police Dep\u2019t, 165 N.C. App. 587, 594, 599 S.E.2d 422, 429 (2004). We conclude that plaintiffs state law claim that she was discriminated against on the basis of her age and disability in violation of North Carolina\u2019s public policy is barred by collateral estoppel.\nN.C. Gen. Stat. \u00a7 143-422.2 (2003) states: \u201cIt is the public policy of this State to protect and safeguard the right and opportunity of all persons to seek, obtain and hold employment without discrimination ... on account of race, religion, color, national origin, age, sex or handicap by employers which regularly employ 15 or more employees.\u201d Our Supreme Court has directed that \u201cwe look to federal decisions for guidance in establishing evidentiary standards and principles of law to be applied in discrimination cases.\u201d Dept. of Correction v. Gibson, 308 N.C. 131, 136, 301 S.E.2d 78, 82 (1983); see also Brewer v. Cabarrus Plastics, Inc., 130 N.C. App. 681, 685-86, 504 S.E.2d 580, 584 (1998), disc. review denied, 350 N.C. 91, 527 S.E.2d 662 (1999).\nIn this case, the Middle District considered plaintiff\u2019s claims for both age discrimination under the ADEA, and disability discrimination under the ADA. While plaintiff argues that the Middle District never addressed the issue of whether North Carolina public policy was violated, plaintiff also \u201ccontends that her discharge was motivated by defendant\u2019s discrimination based upon her age and disability,\u201d the same factual issues decided by the Middle District.\nThe Middle District granted summary judgment to defendant on plaintiff\u2019s ADEA claim since, although plaintiff was able to establish a prima facie case of discrimination, defendant \u201cha[d] proffered substantial evidence of a legitimate, nondiscriminatory reason for [p]laintiff\u2019s discharge, and [p]laintiff ha[d] failed to produce sufficient evidence that [defendant's proffered reason [wa]s a pretext for discrimination.\u201d Specifically, the Middle District found that \u201c[d]e-fendant\u2019s evidence demonstrates that [p]laintiff violated [defendant\u2019s] policy against working orders to a relative\u2019s account, engaged in inappropriate behavior with a customer service specialist over the telephone, and abused her status as a QAT analyst and former supervisor to circumvent established company procedures.\u201d -Since the Middle District determined that plaintiff had failed to prove that defendant\u2019s preferred reason for plaintiff\u2019s termination was a pretext for discrimination, plaintiff\u2019s state law claim based on the same factual allegation of age discrimination is collaterally estopped.\nSimilarly, the Middle District granted summary judgment to defendant on plaintiff\u2019s ADA claim. The Middle District found that plaintiff had failed to even establish a prima facie case of disability discrimination:\nPlaintiff has not offered any further evidence of actions by [defendant] which would tend to show resentment of or animus towards [p]laintiff because of her \u201cdisability.\u201d Rather, the record evidence demonstrates a long history of accommodations by [defendant] for [plaintiff\u2019s personal and health needs. Furthermore, [p]laintiff admits that no one at [defendant] ever made any derogatory remarks about her health.\nAgain, since the Middle District determined that plaintiff had failed to prove, under the ADA, that she was discriminated against based on her disability, we find that plaintiff\u2019s state law claim based on the same factual allegation of disability discrimination is collaterally estopped.\nWe also find that collateral estoppel bars plaintiffs claim for negligent infliction of emotional distress. To establish a claim for negligent infliction of emotional distress, a plaintiff must prove that: \u201c(1) the defendant negligently engaged in conduct, (2) it was reasonably foreseeable that such conduct would cause the plaintiff severe emotional distress . . . , and (3) the conduct did in fact cause the plaintiff severe emotional distress.\u201d Johnson v. Ruark Obstetrics, 327 N.C. 283, 304, 395 S.E.2d 85, 97 (1990). To prove that a defendant \u201cnegligently engaged in conduct,\u201d a plaintiff must show: (1) a legal duty; (2) a breach of that duty; and (3) that damages were proximately caused by such breach. Tise v. Yates Construction Co., 345 N.C. 456, 460, 480 S.E.2d 677, 680 (1997).\nIn this case, plaintiff claims that defendant breached its duty to plaintiff to not violate the public policy of North Carolina by discriminating against her on the basis of her age and disability. However, as stated above, the Middle District determined that defendant did not discriminate against plaintiff on either the basis of her age or disability. Assuming arguendo that defendant had a duty to plaintiff to not violate the public policy of North Carolina, the Middle District has already determined that a breach of such duty did not occur. Therefore, plaintiffs claim for negligent infliction of emotional distress is collaterally estopped.\nPlaintiff argues that defendant has waived its right to a collateral estoppel defense because defendant failed to oppose plaintiffs strategy of filing two different lawsuits. Plaintiff contends that defendant, by not objecting to the Middle District action on the grounds of prior pending action, waived a collateral estoppel defense. In support of her argument, plaintiff cites Bockweg v. Anderson, 333 N.C. 486, 428 S.E.2d 157 (1993) and Howerton v. Grace Hospital, 130 N.C. App. 327, 502 S.E.2d 659 (1998). We find Bockweg and Howerton inapplicable to this case. First, neither Bockweg nor Howerton involved the doctrine of collateral estoppel, or issue preclusion, but rather involved the doctrine of res judicata, or claim preclusion. Bockweg, 333 N.C. at 492, 428 S.E.2d at 161; Howerton, 130 N.C. App. at 330, 502 S.E.2d at 661. Second, Bockweg and Howerton did not address whether a defendant waives the right to a collateral estoppel defense, but rather dealt with the issue of whether a party has consented to claim splitting. Bockweg held that \u201c[f]ailure to timely object to the other action pending may be viewed as consent to the claim-splitting.\u201d 333 N.C. at 496, 428 S.E.2d at 164. Similarly, Howerton held that \u201cwhen a party consents to the dismissal without prejudice of one or more (but not all) of several claims, they tacitly consent to claim splitting.\u201d 130 N.C. App. at 331, 502 S.E.2d at 662. In this case, defendant does not challenge plaintiffs claim-splitting. Rather, defendant only argues that plaintiffs claims are barred by collateral estoppel and in fact raised this defense as soon as the defense became available to defendant. Nothing in Bockweg or Howerton suggests that by consenting to claim-splitting, a defendant waives the defense of collateral estoppel. We find that plaintiffs claims for discrimination are barred by collateral estoppel, and thereby serve the purpose of the doctrine: to \u201cprotect[] litigants from the burden of relitigating previously decided matters and promot[e] judicial economy by preventing needless litigation.\u201d Bockweg, 333 N.C. at 491, 428 S.E.2d at 161.\nPlaintiff also argues that her federal action was not a \u201cprior action\u201d but rather a \u201csubsequent\u201d or \u201csimultaneous\u201d action. We disagree. The magistrate judge\u2019s recommendation disposing of the federal action was filed on 15 December 2003, and the recommendation was adopted by the district court judge on 23 January 2004. The hearing on the state court motion for summary judgment did not occur until 9 February 2004. Therefore, at the time the state trial court heard defendant\u2019s motion for summary judgment and considered the issue of collateral estoppel, the Middle District case was complete and the issues common to both cases had already been decided. See Houghton v. Harris, 243 N.C. 92, 95, 89 S.E.2d 860, 863 (1955); and Leary v. Land Bank, 215 N.C. 501, 510, 2 S.E.2d 570, 575 (1939) (\u201c \u2018A prior judgment upon the same cause of action sustains the plea of former recovery, although the judgment is in action commenced subsequently to the one in which it is pleaded. The date is of no consequence; it is the fact of an adjudication between the same parties upon the same subject matter, which gives effect to the former recovery.\u2019 \u201d (citation omitted)).\nSince our determination of the foregoing issues are dispositive of this case on appeal, we need not address plaintiff\u2019s remaining assignments of error. For those assignments of error not addressed in plaintiff\u2019s brief, we deem them abandoned. N.C. R. App. P. 28(b)(6).\nAffirmed.\nJudge GEER concurs.\nJudge TYSON dissents with a separate opinion.", "type": "majority", "author": "McGEE, Judge." }, { "text": "TYSON, Judge\ndissenting.\nThe majority\u2019s opinion recites many of plaintiff\u2019s violations of our appellate rules, yet decides to reach the merits of plaintiff\u2019s appeal and affirms the trial court\u2019s grant of summary judgment in defendant\u2019s favor. Plaintiff egregiously failed to comply with multiple provisions of the North Carolina Rules of Appellate Procedure. This appeal should be dismissed. I respectfully dissent.\nI. Rules of Appellate Procedure\nPlaintiff\u2019s appellate rules violations have impeded comprehension of the issues on appeal and frustrated the appellate process. This appeal is not properly before us and should be dismissed. See Steingress v. Steingress, 350 N.C. 64, 65-67, 511 S.E.2d 298, 299-300 (1999) (\u201cwhen the appellant\u2019s brief does not comply with the rules by properly setting forth exceptions and assignments of error with reference to the transcript and authorities relied on under each assignment, it is difficult if not impossible to properly determine-the appeal\u201d) (citing State v. Newton, 207 N.C. 323, 329, 177 S.E. 184, 187 (1934).\nRule 28(b)(6) of the North Carolina Rules of Appellate Procedure states an appellant\u2019s brief shall contain:\nAn argument, to contain the contentions of the appellant with respect to each question presented. Each question shall be separately stated. Immediately following each question shall be a reference to the assignments of error pertinent to the question, identified by their numbers and by the pages at which they appear in the printed record on appeal. Assignments of error not set out in the appellant\u2019s brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned.\nN.C. R. App. P. 28(b)(6) (2004). Plaintiff failed to comply with these rules.\nN.C. R. App. P. 28(b)(5) (2004) also requires an appellant\u2019s brief contain \u201ca non-argumentative summary of all material facts underlying the matter in controversy. .. supported by references to pages in the transcript of proceedings, the record on appeal, or exhibits, as the case may be.\u201d The Rules further provide \u201crelevant portions of statutes, rules, or regulations, the study of which is required to determine questions presented in the brief\u2019 must be reproduced as appendices to the brief. N.C. R. App. P. 28(d)(1)(c) (2004). N.C. R. App. P. 26(g)(1) (2004) mandates \u201c[a]ll printed matter [in a brief] must appear in at least 12-point type . . . [t]he body of text shall be presented with double spacing between each line of text.\u201d Plaintiff violated or failed to comply with these provisions.\nRule 12 states the record on appeal must be filed within fifteen days after it has been settled. N.C. R. App. P. 12(a) (2004). Rule 28 requires an appellant\u2019s brief contain \u201c [identification of counsel by signature, typed name, office address and telephone number\u201d and \u201c[t]he proof of service required by Rule 26(d).\u201d N.C. R. App. P. 28(b)(8)-(9) (2004). \u201cPapers presented for filing shall contain . . . proof of service . . . certified by the person who made service.\u201d N.C. R. App. P. 26(d) (2004). \u201cThe body of the document shall at its close bear the . . . manuscript signature of counsel of record.\u201d N.C. R. App. P. 26(g)(3) (2004). Finally, each appellant must file an Appeal Information Statement at or before the time appellant\u2019s brief is due and must serve a copy of the statement upon all other parties to the appeal. N.C. R. App. P. 41(b)(2) (2004). Plaintiff also failed to comply with any of these provisions.\nIn order to reach the merits of plaintiff\u2019s argument and reverse the trial court\u2019s decision, this Court is limited to the issues properly presented for appeal. N.C. R. App. P. 10(a) (2004). Plaintiff\u2019s appeal and brief contains at least fourteen violations of the North Carolina Rules of Appellate Procedure.\nAs noted by the majority\u2019s opinion, plaintiff violated the Rules by: (1) failing to reference the record page numbers on which her assignments of error appear, see N.C. R. App. P. 28(b)(6); (2) referencing the incorrect assignment of error in support of argument D in her brief, see id.; (3) using argumentative language when summarizing the facts of the case, see N.C. R. App. P. 28(b)(5); (4) failing to reference pages of the transcript or record on appeal in connection with her factual assertions, see id.; (5) failing to include relevant portions of statutes in the appendix to her brief, see N.C. R. App. P. 28(d)(1)(c); (6) using the incorrect font size for footnotes in her brief, see N.C. R. App. P. 26(g); (7) providing improper citations for several of the authorities on which plaintiff\u2019s brief relies, see N.C. R. App. P. 28(b)(6); and (8) filing her Appeal Information Statement two weeks after the date her brief was due to be filed, see N.C. R. App. P. 41(b)(2).\nFurther review of the record and briefs reveals plaintiff also: (9) presented argument in footnotes, see N.C. R. App. P. 26(g)(1), see also Lewis v. Craven Regional Medical Center, 122 N.C. App. 143, 147-48, 468 S.E.2d 269, 273 (1996); (10) served the record on appeal late (order entered 21 April 2004 extending time to serve record on appeal to 12 May 2004; record on appeal served 15 June 2004), see N.C. R. App. P. 12(a); (11) failed to sign her reply brief, see N.C. R. App. P. 28(b)(8) and N.C. R. App. P. 26(g)(3); (12) failed to sign the certificate of service in her reply brief, see N.C. R. App. P. 28(b)(9) and N.C. R. App. P. 26(d); (13) failed to sign the certificate of filing by first class mail in her reply brief, see N.C. R. App. P. 26(a)(1); and (14) failed to reference any assignment of error in support of Argument E in her brief, see N.C. R. App. P. 28(b)(6). Plaintiffs reply brief should be stricken. See N.C. R. App. P. 25(b) and N.C. R. App. P. 34(b)(3).\nIn Shook v. County of Buncombe, this Court dismissed the appellant\u2019s brief due to numerous violations of the Rules. 125 N.C. App. 284, 284, 480 S.E.2d 706, 706 (1997). The record on appeal in Shook consisted of three volumes containing 767 pages and numerous and complicated issues to be considered on appeal. Id. at 286, 480 S.E.2d at 707. We stated the violations in Shook \u201chighlighted] why our appellate rules are a necessity.\u201d Id.\nWe further stated, \u201c[w]hen we are presented with an appeal such as the instant one, the rules are not merely ritualistic formalisms, but are essential to our ability to ascertain the merits of an appeal.\u201d Id. We concluded by repeating that \u201c[o]ur rules are mandatory, and in fairness to all who come before this Court, they must be enforced uniformly.\u201d Id. at 287, 480 S.E.2d at 708 (citation omitted).\nHere, the record on appeal contains three volumes consisting of 609 pages and appellant\u2019s brief purports to present five questions for review. Appellant\u2019s numerous rules violations have made it \u201cdifficult if not impossible to properly determine the appeal.\u201d Steingress, 350 N.C. at 66, 511 S.E.2d at 299 (citation omitted). Because \u201c[o]ur rules are mandatory, and in fairness to all who come before this Court, they must be enforced uniformly!,] . . . [plaintiff\u2019s] appeal [should be] dismissed.\u201d Shook, 125 N.C. App. at 287, 480 S.E.2d at 708 (internal citation omitted).\nII. Rule 2\nThe majority\u2019s opinion recognizes plaintiff egregiously failed to comply with the appellate rules, yet decides to review the merits of plaintiff\u2019s claims by invoking Rule 2 of the North Carolina Rules of Appellate Procedure.\nRule 2 states:\n[t]o prevent manifest injustice to a party, or to expedite decision in the public interest, either court of the appellate division may, except as otherwise expressly provided by these rules, suspend or vary the requirements or provisions of any of these rules in a case pending before it upon application of a party or upon its own initiative, and may order proceedings in accordance with its directions.\nN.C. R. App. P. 2 (2004) (emphasis supplied).\n\u201cOur Supreme Court stated in Steingress v. Steingress that \u2018Rule 2 relates to the residual power of our appellate courts to consider, in exceptional circumstances, significant issues of importance in the public interest, or to prevent injustice which appears manifest to the Court and only in such instances.\u2019 \u201d Wolfe v. Villines, 171 N.C. App. 483, 492, 610 S.E.2d 754, 761 (2005) (J. Tyson dissenting) (citing Steingress, 350 N.C. at 66, 511 S.E.2d at 299-300 (citing Blumenthal v. Lynch, 315 N.C. 571, 578, 340 S.E.2d 358, 362 (1986)). \u201cThis Court has repeatedly held that \u2018there is no basis under Appellate Rule 2 upon which we should waive plaintiffs violations of Appellate Rules ....\u2019\u201d Wolfe, 171 N.C. App. at 492, 610 S.E.2d at 761 (quoting Holland v. Heavner, 164 N.C. App. 218, 222, 595 S.E.2d 224, 227 (2004) (quoting Sessoms v. Sessoms, 76 N.C. App. 338, 340, 332 S.E.2d 511, 513 (1985))).\nFurther, our Supreme Court recently held in Viar v. N.C. Dep\u2019t of Transp., \u201c[i]t is not the role of the appellate courts ... to create an appeal for an appellant. [T]he rules of Appellate Procedure must be consistently applied; otherwise, the Rules become meaningless, and an appellee is left without notice of the basis upon which an appellate court might rule.\u201d 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005) (per curiam) (\u201c[t]he majority opinion in the Court of Appeals, recognizing the flawed content of plaintiff\u2019s appeal, applied Rule 2 of the Rules of Appellate Procedure to suspend the Rules\u201d).\nHI. Conclusion\nOur Rules are mandatory and in fairness to all parties must be uniformly enforced. Plaintiff\u2019s appeal should be dismissed. See Shook, 125 N.C. App. at 287, 480 S.E.2d at 708. \u201cMy review of the entire record fails to disclose any \u2018exceptional circumstances,\u2019 \u2018significant issues,\u2019 or \u2018manifest injustice\u2019 to warrant suspension of the Appellate Rules.\u201d Wolfe, 171 N.C. App. at 493, 610 S.E.2d at 761. Without a showing of \u201cexceptional circumstances,\u201d \u201csignificant issues,\u201d or \u201cmanifest injustice,\u201d our precedents do not allow invoking Rule 2 to excuse appellant\u2019s rule violations and reach the merits of this appeal. Id. I vote to dismiss plaintiff\u2019s appeal and respectfully dissent.", "type": "dissent", "author": "TYSON, Judge" } ], "attorneys": [ "Hicks McDonald Noecker LLP, by David W. McDonald, for plaintiff-appellant.", "Constangy, Brooks & Smith, LLC, by John J. Doyle, Jr. and Jill Stricklin Cox, for defendant-appellee." ], "corrections": "", "head_matter": "SYLVIA YOUSE, Plaintiff-Appellant v. DUKE ENERGY CORPORATION, Defendant-Appellee\nNo. COA04-797\n(Filed 5 July 2005)\n1. Appeal and Error\u2014 violations of appellate rules \u2014 issues clear \u2014 no dismissal\nViolations of the Rules of Appellate Procedure did not result in dismissal of the appeal where the Court of Appeals was able to determine the issues on appeal and defendant was put on sufficient notice of the issues.\n2. Collateral Estoppel and Res Judicata\u2014 federal and state claims \u2014 identical underlying factual issues\nCollateral estoppel barred plaintiff\u2019s state claims for discrimination in the termination of her employment based on age and disability where her companion federal case had determined identical underlying factual issues.\n3. Collateral Estoppel and Res Judicata\u2014 negligent infliction of emotional distress \u2014 prior federal determination\nCollateral estoppel barred plaintiffs state claim for negligent infliction of emotional distress based on breach of public policy on age and disability discrimination. A federal court had already determined that no age or disability discrimination occurred in her termination.\n4. Collateral Estoppel and Res Judicata\u2014 claim splitting\u2014 collateral estoppel not waived\nA defendant does not waive collateral estoppel by consenting to claim splitting.\n5. Collateral Estoppel and Res Judicata\u2014 federal action \u2014 not simultaneous\nA federal action filed on the same day as a state action was not a subsequent or simultaneous action for collateral estoppel where the federal action was complete by the time the state action was heard.\nJudge Tyson dissenting.\nAppeal by plaintiff from order and judgment entered 11 February 2004 by Judge Anderson Cromer in Superior Court, Guilford County. Heard in the Court of Appeals 2 February 2005.\nHicks McDonald Noecker LLP, by David W. McDonald, for plaintiff-appellant.\nConstangy, Brooks & Smith, LLC, by John J. Doyle, Jr. and Jill Stricklin Cox, for defendant-appellee." }, "file_name": "0187-01", "first_page_order": 217, "last_page_order": 231 }