Summary
stating that it was error for the trial court to consider affirmative defenses in certification question, as "defense to claims asserted by some members of the proposed class relates to the merits of individual plaintiff's claims and should not be considered at the certification stage of the proceedings"
Summary of this case from Blitz v. Xpress Image, Inc.Opinion
No. 369PA01
Filed 4 October 2002
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision of the Court of Appeals, 144 N.C. App. 1, 550 S.E.2d 179 (2001), reversing in part, vacating in part, and remanding an order and opinion entered by Tennille, J., on 7 February 2000 in Superior Court, Pitt County. Heard in the Supreme Court 9 September 2002.
The Blount Law Firm, P.L.L.C., by Marvin K. Blount, Jr., for plaintiff-appellee. Smith, Anderson, Blount, Dorsett, Mitchell Jernigan, L.L.P., by Carl N. Patterson, Jr., and Donald H. Tucker, Jr., for defendant-appellants American Security Insurance Company and Standard Guaranty Insurance Company. Womble Carlyle Sandridge Rice, by Burley B. Mitchell, Jr., Hada V. Haulsee, and Reid C. Adams, Jr., for defendant-appellant Wachovia Bank of North Carolina, N.A. Bell, Davis Pitt, P.A., by William K. Davis and Stephen M. Russell, on behalf of the National Association of Manufacturers, the Chamber of Commerce of the United States, and United Services Automobile Association, amici curiae. North Carolina Justice Center, by Carlene McNulty, on behalf of AARP, CRA-NC, Financial Protection Law Center, North Carolina Consumer's Council, North Carolina Justice and Community Development Center, and N.C. PIRG, amici curiae; and Financial Protection Law Center, by Mallam J. Maynard, amicus curiae. Brooks, Pierce, McLendon, Humphrey Leonard, L.L.P., by Edward C. Winslow III and Clinton R. Pinyan, on behalf of North Carolina Bankers Association, amicus curiae. Rhoda Billings; and Robinson, Bradshaw Hinson, P.A., by John M. Conley, on behalf of North Carolina Citizens for Business and Industry, amicus curiae. Lewis Roberts, PLLC, by Gary W. Jackson, on behalf of the North Carolina Academy of Trial Lawyers and the American Civil Liberties Union of North Carolina Legal Foundation, Inc., amici curiae.
Justices ORR, WAINWRIGHT, and EDMUNDS did not participate in the consideration or decision of this case. The remaining members of the Court were equally divided, with two members voting to affirm the decision of the Court of Appeals and two members voting to reverse. Therefore, the decision of the Court of Appeals is left undisturbed and stands without precedential value. See Reese v. Barbee, 350 N.C. 60, 510 S.E.2d 374 (1999); Nesbit v. Howard, 333 N.C. 782, 429 S.E.2d 730 (1993).
AFFIRMED.