Hedgepeth v. Parkers Landing Prop. Owners Ass'n, Inc. ( 2014 )

NO. COA13-914
NORTH CAROLINA COURT OF APPEALS
Filed: 2 September 2014
ALLEN TOBY HEDGEPETH, et al.,
Plaintiff,
v. Currituck County
No. 09 CVS 338
PARKER’S LANDING PROPERTY OWNERS
ASSOCIATION, INC., et al.,
Defendants.
ALLEN TOBY HEDGEPETH, et al.,
Plaintiff,
v. Currituck County
No. 10 CVS 223
SHARON M. TAYLOR,
Defendant.
ALLEN TOBY HEDGEPETH, et al.,
Plaintiff,
v. Currituck County
No. 10 CVS 225
MARION R. CRANK, JR., and wife
JENNIFER R. CRANK,
Defendants.
BETTY P. LEWIS,
Plaintiff,
v. Currituck County
No. 10 CVS 275
ALLEN TOBY HEDGEPETH, et al.,
Defendant.
MAXINE A. EASTON,
Plaintiff,
v. Currituck County
No. 10 CVS 288
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ALLEN TOBY HEDGEPETH, et al.,
Defendant.
ALLEN TOBY HEDGEPETH, et al.,
Plaintiff,
v. Currituck County
No. 10 CVS 362
WAYNE DERRELL CRANK, and wife
SANDRA R. CRANK,
Defendants.
ALLEN TOBY HEDGEPETH, et al.,
Plaintiff,
v. Currituck County
No. 11 CVS 49
PARKER’S LANDING PROPERTY OWNERS
ASSOCIATION, INC.,
Defendants.
ALLEN TOBY HEDGEPETH, et al.,
Plaintiff,
v. Currituck County
No. 11 CVS 54
GLADYS P. MIDGETTE,
Defendant.
ALLEN TOBY HEDGEPETH, et al.,
Plaintiff,
v. Currituck County
No. 11 CVS 62
JODY E. MIDGETTE,
Defendant.
Appeal by plaintiff Hedgepeth from order entered 19
December 2012 by Judge Marvin K. Blount, III in Currituck County
Superior Court. Heard in the Court of Appeals 22 January 2014.
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Vandeventer Black LLP, by Norman W. Shearin and Ashley P.
Holmes, for plaintiff-appellant Allen Toby Hedgepeth.
Thompson & Pureza, P.A., by C. Everett Thompson, II, and
David R. Pureza, for defendant-appellees Parker’s Landing
Property Owners Association, Inc., Forrest E. Midgette,
Jody E. Midgette, and Sunny’s Partnership.
Ward and Smith, P.A., by Eric J. Remington, for defendant-
appellee Betty P. Lewis.
Gregory E. Wills, P.C., by Gregory E. Wills, for defendant-
appellee Sandra K. Parker.
Brumsey & Brumsey, PLLC, by William Brumsey, IV, for
defendant-appellees Sharon M. Taylor, Marion R. Crank, Jr.,
Jennifer R. Crank, Wayne Derrell Crank, and Sandra R.
Crank.
Dan L. Merrell and Glenn R. Weiser, for defendant-appellees
Peter F. LoFaso and Kelly M. LoFaso.
Boxley, Bolton, Garber & Haywood, L.L.P., by Ronald H.
Garber, for defendant-appellee Maxine A. Easton.
STEELMAN, Judge.
The Parker’s Landing Property Owners’ Association, Inc.
(POA) is bound by the ruling in a prior federal court order
under the principle of res judicata as to the 25-foot easement
that crosses a lot owned by POA. We reverse the ruling of the
trial court on this specific issue. As to the other claims
against POA, the principles of res judicata are not applicable,
and we affirm the ruling of the trial court denying the motions
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of Allen Toby Hedgepeth (Hedgepeth) for summary judgment. The
federal court order does not constitute res judicata or
collateral estoppel with respect to the claims against
individual subdivision lot owners, and we affirm the ruling of
the trial court denying Hedgepeth’s motions for summary
judgment. The appeals of issues not based upon res judicata or
collateral estoppel are dismissed. Any appeals not based upon
the denial of Hedgepeth’s motions for summary judgment in cases
09 CVS 338, 10 CVS 275, or 10 CVS 288 are also dismissed.
I. Factual and Procedural Background
The lands owned by the parties to the multiple lawsuits at
issue in this appeal lie on a peninsula located in Currituck
County and bounded on the east by Currituck Sound, and on the
west by the North River. The peninsula runs in a generally
north-south direction, and is bisected by U.S. Highway 158,
which also runs in a generally north-south direction.
Hedgepeth, as Trustee under the Allen Toby Hedgepeth Declaration
of Trust dated 30 May 2011, owns a tract of land bounded on the
east by Currituck Sound, and on the south and west by Parker’s
Landing Subdivision, as shown on an amended plat filed in Plat
Cabinet E, pages 116 and 117, in the Currituck County Registry.
(See Exhibit B attached to this opinion.) This subdivision lies
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to the west and south of the Hedgepeth property, and to the east
of U.S. Highway 158. The final plat states that all streets in
the subdivision are private and maintained by POA.1 The lots as
shown on the amended plat run to the edge of a 50-foot road
right-of-way.
Hedgepeth purchased the property at a foreclosure sale
without procuring a title examination. He sought to develop the
property, but was unable to do so without a 50-foot right-of-way
leading from his property to U.S. Highway 158. These cases are
the second round of litigation brought by Hedgepeth seeking to
procure the necessary 50-foot right-of-way to U.S. Highway 158.
The first action was filed in 2007 in the United States
District Court for the Eastern District of North Carolina,
styled as Allen Toby Hedgepeth, as Trustee under the Allen Toby
Hedgepeth Declaration of Trust, dated 30 May 2001, plaintiff v.
Parker’s Landing Property Owners’ Association, Inc., defendant,
case number 2:07-CV-55-F3. On 5 June 2009, Judge Fox entered an
order in that case. That order characterized the case as
follows:
This is a purely state-law-based action in
1
The final plat was recorded in Plat Cabinet D, pages 99 and
100, of the Currituck County Registry on 22 June 1989, prior to
the recordation of the amended plat, which was recorded on 30
August 1993 and is attached to this opinion as Exhibit B.
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which the plaintiff, Allen Toby Hedgepeth,
Trustee under the Allen Toby Hedgepeth
Declaration of Trust ("Hedgepeth"), seeks a
declaratory judgment that he has a right of
ingress and egress to his property by virtue
of an easement across the defendant
subdivision along a private road belonging
to the defendant. Hedgepeth offers several
theories under which his claim of an
easement may be declared.
The order of the federal court held that Hedgepeth’s
theories of express easement, easement by necessity, and
easement by equitable estoppel were all without merit. The
substantive ruling of the federal court was as follows:
Regardless of the angle from which this case
is viewed, or with which party a shifting-
burdens inquiry begins, Hedgepeth, who
ultimately must prove he is entitled to
judgment as a matter of law, unequivocally
has demonstrated that he cannot do so
insofar as he seeks declaration of an
easement for use of Parker's Landing Drive
to subdivide and develop the Hedgepeth
tract.
However, the court finds that no genuine
issue of material fact exists, the
resolution of which could result in Parker's
Landing Drive being subject to an easement
benefitting the Hedgepeth Tract as depicted
on the Smith Heirs Plat, Map Book 2A, Page
119, Currituck Registry. Therefore,
Hedgepeth's Motion for Summary Judgment [DE-
21] is DENIED.
However, the court concludes that the record
demonstrates, and the defendant does not
dispute, that an implied easement exists
such that he has reasonable access to his
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property over the 25-foot right-of-way
(Doris Lane) as shown on the plat of the
heirs of Capitolia [sic] Smith, Plat Book
2A, Page 119, Currituck County Registry.
Therefore, it hereby is DECLARED that the
Parker's Landing tract, as shown on the
August 30, 1993, Amended Final Plat, see DE-
21, Exhibit C, is subject to a 10-foot
easement and a 25-foot right-of-way (Doris
Lane) as shown on the plat of the heirs of
Capitolla Smith, Plat Book 2A, Page 119,
Currituck County Registry, the scope of
which may not exceed that necessary to the
farming or cultivation of the Hedgepeth
tract, consistent with the use to which
those paths were put when the common title
to the two tracts was severed in 1894.
On 14 September 2009, Hedgepeth appealed Judge Fox’s
decision to the United States Court of Appeals for the Fourth
Circuit. On 2 July 2010, the Fourth Circuit issued its opinion
in that case, affirming Judge Fox’s order. Hedgepeth v.
Parker’s Landing Property Owners Ass’n, 388 Fed.Appx. 242 (4th
Cir. 2010) (unpublished).2 Applying North Carolina law, the
Fourth Circuit held that “the Final plat does not clearly show
the intention to give an easement.” Id. at 246 (citations and
quotations omitted). Further, the Fourth Circuit held that
Hedgepeth could present no evidence to support his argument that
POA was precluded by quasi-estoppel from denying the existence
2
This opinion was not selected for publication in the Federal
Reporter. We note that while the record contains Hedgepeth’s
notice of appeal, it fails to include or reference the decision
of the Fourth Circuit Court of Appeals in that matter.
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of an easement over Parker’s Landing Drive. Id. at 247. We
also agree with the Fourth Circuit that Hedgepeth’s “arguments
lack some clarity[.]” Id. at 245.
Neither of these easements runs along any of the Parker’s
Landing subdivision streets. However, the 10-foot easement does
cross Parker’s Landing Drive, the principal street in the
subdivision.
On 18 June 2009, Hedgepeth filed the complaint in case 09
CVS 338, Superior Court of Currituck County, against POA and
Gladys P. Midgette (Midgette), an individual lot owner in the
Parker’s Landing Subdivision. On 10 July 2009, Hedgepeth filed
an amended complaint naming POA, Midgette, Pamela J. Bell,
Forrest E. Midgette and wife Cynthia S. Midgette, Betty P.
Lewis, Maxine A. Easton, Carl J. Kreigline and wife Barbara
Lento Kreigline, Edward C. Konrad, Jr., and wife Nancy K.
Konrad, Dale L. Kreigline and wife Marlena M. Kreigline, Robert
W. Donoghue and wife Patricia A. Donoghue, Sandra P. Brinkley,
and Sunny's Partnership as defendants. The amended complaint
alleged that a portion of Parker’s Landing Drive overlaps with
the south boundary of the Hedgepeth property, and that the true
boundary lines are set forth in a deed recorded in Deed Book 71
at page 449 of the Currituck County Registry. The complaint
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also referenced the two easements discussed in the federal court
order as shown in Map Book 2A, at page 119 of the Currituck
County Registry. (See Exhibit A attached to this opinion.)
Hedgepeth alleged that Parker’s Landing Drive crosses one of the
easements (the 10-foot easement) and “burdens and unreasonably
interferes with Hedgepeth’s said rights of use.” The amended
complaint sought a declaration from the trial court of the
rights of the parties, to quiet title to Hedgepeth’s property,
and to enjoin defendants from interfering with Hedgepeth’s right
of access.
On 11 May 2010, Hedgepeth voluntarily dismissed his state
law claims against Lewis and Easton, without prejudice. On 9
December 2010, Hedgepeth voluntarily dismissed his claim for
boundary overlap, without prejudice. Also on 9 December 2010,
Hedgepeth voluntarily dismissed the claims against Midgette,
without prejudice.
On 10 May 2011, Hedgepeth filed complaints against Sharon
M. Taylor (case 10 CVS 223), and Marian R. Crank, Jr., and wife
Jennifer R. Crank (case 10 CVS 225), seeking a declaration of
rights to the easements and for an injunction to prohibit
defendants from interfering with his access.
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On 5 June 2010, Betty Lewis filed a complaint against
Hedgepeth (case 10 CVS 275), seeking an injunction prohibiting
him from clearing a roadway across her property, and from
trespassing on her property, and for a declaration that any
easement had been terminated. On 16 May 2011, Hedgepeth filed
an answer, denying the allegations of the complaint, and
asserting numerous defenses. No counterclaims were filed.
On 11 June 2010, Maxine Easton filed a complaint against
Hedgepeth (case 10 CVS 288), seeking the same relief sought by
Lewis in her complaint. On 16 May 2011, Hedgepeth filed an
answer and counterclaim to Easton’s complaint, asserting that
the Easton property overlapped the western boundary of the
Hedgepeth property and requesting that the court determine the
boundary between the two tracts.
On 23 July 2010, Hedgepeth filed a complaint against Wayne
Derrell Crank and wife Sandra R. Crank (case 10 CVS 362),
seeking the same relief as in case 10 CVS 225. On 2 February
2011, Hedgepeth filed a second complaint against POA (case 11
CVS 49), seeking the same relief as in the amended complaint in
case 09 CVS 338, including a claim seeking resolution of a
boundary dispute. On 2 February 2011, Hedgepeth also filed a
complaint against Gladys P. Midgette (11 CVS 54), seeking the
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same relief as in case 11 CVS 49, as to the 10-foot easement,
and seeking exclusive rights of access. On 7 February 2011,
Hedgepeth filed a complaint against Jody E. Midgette (case 11
CVS 62), seeking the same relief as in case 10 CVS 223, and also
seeking a declaration of the location of the southern boundary
of the Hedgepeth property.
On 14 June 2011, Hedgepeth filed a motion for leave to
amend his complaint and a motion to certify a class, consisting
of POA and the individual subdivision lot owners, in case 11 CVS
49. On 17 December 2012, a hearing was held on Hedgepeth’s
motion to certify a class. On 17 January 2013, the trial court
entered an order denying Hedgepeth’s motion to certify a class
or to declare that POA represented its members. Hedgepeth
appealed from the denial of this motion. That appeal is the
case of Hedgepeth v. Parker’s Landing (COA 13-809).
On 18 September 2012, Hedgepeth filed a motion in case 10
CVS 288 pursuant to Rule 19(a) of the North Carolina Rules of
Civil Procedure to join Ronald E. Evans and wife Rebecca D.
Evans, Sunny’s Partnership, POA, Robert W. Donoghue and wife
Patricia A. Donoghue, Sandra K. Parker, Betty P. Lewis and
Midgette Development Enterprises, Inc., as necessary parties to
case 10 CVS 288. On 18 September 2012, Hedgepeth also filed a
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motion in case 10 CVS 275 pursuant to Rule 19(a) of the North
Carolina Rules of Civil Procedure to join the Evanses, Sunny’s
Partnership, POA, the Donoghues, Sandra K. Parker, Maxine Easton
and Midgette Development Enterprises, Inc., as necessary
parties.
On 21 September 2012, Hedgepeth filed a motion for summary
judgment in cases 09 CVS 338, 10 CVS 275, and 10 CVS 288. On 4
December 2012, Hedgepeth filed an amendment to the complaints in
cases 10 CVS 223, 225 and 362, seeking to add Peter F. LoFaso
and wife Kelly M. LoFaso as defendants.
On 19 December 2012, Judge Blount entered an order in all
nine cases. This order contained the following rulings
pertinent to this appeal: the motions to consolidate the cases
for trial and other purposes were granted; by virtue of the
consolidation of cases, Sandra Parker’s motion to dismiss for
failure to join necessary parties was rendered moot; Hedgepeth’s
motions to join necessary parties were denied; Hedgepeth’s
motions for summary judgment were also denied; defendants’
motions to dismiss for failure to join necessary parties in
cases 10 CVS 223, 225 and 362 were denied, and Hedgepeth was
given thirty days to amend his complaints in those cases to
include Peter and Kelly LoFaso.
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Hedgepeth appeals.
III. Issues Properly Before This Court on Appeal
As a preliminary matter, we must sort through the quagmire
that the parties have thrown before this Court and determine
what is properly before us on appeal. The chaos in this case is
primarily due to Hedgepeth filing an initial complaint (09 CVS
338), then dismissing certain parties and claims, then having
some of the dismissed parties file suit against Hedgepeth (10
CVS 275, 10 CVS 288), and then Hedgepeth refiling a previously
dismissed claim against POA in a later suit (11 CVS 49). In
addition, Hedgepeth has filed multiple motions to amend his
pleadings, to add parties, and to certify a class. Finally, it
appears that Hedgepeth’s theory of the case has been constantly
shifting over the three years that these cases have been before
the trial court.
Hedgepeth only filed motions for summary judgment in three
cases: Hedgepeth v. POA, case 09 CVS 338; Lewis v. Hedgepeth,
case 10 CVS 275; and Easton v. Hedgepeth, case 10 CVS 288. In
each of these cases, the summary judgment motion identifies the
movant as “the Plaintiff, Allen Toby Hedgepeth as Trustee. . .”,
even though Hedgepeth is the defendant, and not the plaintiff,
in both the Lewis and Easton cases. Even though a motion for
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summary judgment was filed in only three of the nine cases
before the trial court, the order of the court denied
Hedgepeth’s motion for summary judgment in those cases, and then
added:
Plaintiff’s Motions for Summary Judgment in
all other cases listed in the caption of
this case also are DENIED to the extent they
are based on the doctrines of res judicata
or collateral estoppel, and any individual
or entity that was not a named party in Case
No. 2:07-CV-55-F3, which was filed in the
United States District Court for the Eastern
District of North Carolina, is not bound by
the Order entered by the Honorable James C.
Fox on June 5, 2009, in that case;
Finally, Hedgepeth’s notice of appeal in these cases states
that:
Plaintiff Allen Toby Hedgepeth, as Trustee
under the Allen Toby Hedgepeth Declaration
of Trust, Dated May 30, 2011, pursuant to
Rule 3 of the North Carolina Rules of
Appellate Procedure, hereby gives Notice of
Appeal to the North Carolina Court of
Appeals from the Order denying Plaintiff's
Motion for Summary Judgment signed by the
Honorable Marvin K. Blount, III on 17
December 2012, filed on 19 December 2012,
and served on 25 January 2013 and attached
hereto.
The notice of appeal is directed to the denial of
“Plaintiff’s Motion for Summary Judgment[,]” even though in two
of the three cases in which a motion for summary judgment was
filed, Hedgepeth was the defendant, and not the plaintiff.
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After culling through the 534 pages of the record in these
cases, 248 pages of Rule 9(d) supplement, and the voluminous
Rule 9(b)(5) and Rule 11(c) supplements to the record, we are
able to find only the three summary judgment motions filed by
Hedgepeth in cases 09 CVS 338, 10 CVS 275, and 10 CVS 288.
Since Hedgepeth’s notice of appeal is directed only to the
denial of Hedgepeth’s motion for summary judgment, we limit our
review to those three cases. In our discretion, we construe
Hedgepeth’s notice of appeal to encompass cases 10 CVS 275 and
10 CVS 288, even though Hedgepeth was a defendant and not a
plaintiff in each of those cases.
As to any appeal by Hedgepeth in the remaining six cases
captioned in this appeal, they are dismissed. See Dogwood Dev.
& Mgmt. Co., LLC v. White Oak Transp. Co., Inc., 362 N.C. 191,
195-96, 657 S.E.2d 361, 364 (2008) (holding that “a party's
failure to properly preserve an issue for appellate review
ordinarily justifies the appellate court's refusal to consider
the issue on appeal”).
IV. Substantial Right
The denial of summary judgment is not a
final judgment, but rather is interlocutory
in nature. We do not review interlocutory
orders as a matter of course. If, however,
the trial court's decision deprives the
appellant of a substantial right which would
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be lost absent immediate review[,] we may
review the appeal.... The moving party must
show that the affected right is a
substantial one, and that deprivation of
that right, if not corrected before appeal
from final judgment, will potentially injure
the moving party. Whether a substantial
right is affected is determined on a case-
by-case basis.
Barfield v. N.C. Dep't of Crime Control & Pub. Safety, 202 N.C.
App. 114, 117, 688 S.E.2d 467, 469 (2010) (citations and
quotations omitted).
Under the doctrine of res judicata, a final
judgment on the merits in a prior action in
a court of competent jurisdiction precludes
a second suit involving the same claim
between the same parties or those in privity
with them. Thus, a motion for summary
judgment based on res judicata is directed
at preventing the possibility that a
successful defendant, or one in privity with
that defendant, will twice have to defend
against the same claim by the same
plaintiff, or one in privity with that
plaintiff. Denial of the motion could lead
to a second trial in frustration of the
underlying principles of the doctrine of res
judicata. Therefore, we hold that the denial
of a motion for summary judgment based on
the defense of res judicata may affect a
substantial right, making the order
immediately appealable.
Bockweg v. Anderson, 333 N.C. 486, 491, 428 S.E.2d 157, 161
(1993) (citations omitted).
Like res judicata, collateral estoppel
(issue preclusion) is designed to prevent
repetitious lawsuits over matters which have
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once been decided and which have remained
substantially static, factually and legally.
Under collateral estoppel, parties are
precluded from retrying fully litigated
issues that were decided in any prior
determination, even where the claims
asserted are not the same. The denial of
summary judgment based on collateral
estoppel, like res judicata, may expose a
successful defendant to repetitious and
unnecessary lawsuits. Accordingly, we hold
that the denial of a motion for summary
judgment based on the defense of collateral
estoppel may affect a substantial right, and
that defendants' appeal, although
interlocutory, is properly before us.
McCallum v. N.C. Coop. Extension Serv., 142 N.C. App. 48, 51,
542 S.E.2d 227, 231 (2001) (citations and quotations omitted).
Because Hedgepeth’s motions for summary judgment were based
upon res judicata or collateral estoppel, we hold that, on these
facts, the denial of these motions affected a substantial right,
and that they are properly before us on appeal. Any other
matters not arising from that ruling, however, are
interlocutory, and will not be reviewed by this Court.
V. Standard of Review
“Under the doctrine of res judicata or
‘claim preclusion,’ a final judgment on the
merits in one action precludes a second suit
based on the same cause of action between
the same parties or their privies.” Whitacre
P'ship v. Biosignia, Inc., 358 N.C. 1, 15,
591 S.E.2d 870, 880 (2004) (citation
omitted). “For res judicata to apply, a
party must show that the previous suit
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resulted in a final judgment on the merits,
that the same cause of action is involved,
and that both the party asserting res
judicata and the party against whom res
judicata is asserted were either parties or
stand in privity with parties.” State ex
rel. Tucker v. Frinzi, 344 N.C. 411, 413–14,
474 S.E.2d 127, 128 (1996) (quotation
omitted). “The doctrine prevents the
relitigation of all matters ... that were or
should have been adjudicated in the prior
action.” Whitacre P'ship, 358 N.C. at 15,
591 S.E.2d at 880 (quotation omitted).
Under the doctrine of collateral estoppel,
or issue preclusion, “a final judgment on
the merits prevents relitigation of issues
actually litigated and necessary to the
outcome of the prior action in a later suit
involving a different cause of action
between the parties or their privies.”
Frinzi, 344 N.C. at 414, 474 S.E.2d at 128.
A party asserting collateral estoppel is
required to show that “the earlier suit
resulted in a final judgment on the merits,
that the issue in question was identical to
an issue actually litigated and necessary to
the judgment, and that both the party
asserting collateral estoppel and the party
against whom collateral estoppel is asserted
were either parties to the earlier suit or
were in privity with parties.” Id. at 414,
474 S.E.2d at 128–29.
Williams v. Peabody, ___ N.C. App. ___, ___, 719 S.E.2d 88, 92-
93 (2011).
[A]n issue is actually litigated, for
purposes of collateral estoppel or issue
preclusion, if it is properly raised in the
pleadings or otherwise submitted for
determination and [is] in fact determined.
A very close examination of matters actually
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litigated must be made in order to determine
if the underlying issues are in fact
identical[;] [i]f they are not identical,
then the doctrine of collateral estoppel
does not apply.
Id. at ___, 719 S.E.2d at 93 (citations and quotations omitted).
The plea of res adjudicata [sic] applies,
... not only to the points upon which the
court was required by the parties to form an
opinion and pronounce a judgment, but to
every point which properly belonged to the
subject in litigation and which the parties,
exercising reasonable diligence, might have
brought forward at the time and determined
respecting it.
Id. at ___, 719 S.E.2d at 94. (quoting Edwards v. Edwards, 118
N.C. App. 464, 472, 456 S.E.2d 126, 131 (1995)).
“Our standard of review of an appeal from summary judgment
is de novo; such judgment is appropriate only when the record
shows that ‘there is no genuine issue as to any material fact
and that any party is entitled to a judgment as a matter of
law.’” In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572,
576 (2008) (quoting Forbis v. Neal, 361 N.C. 519, 524, 649
S.E.2d 382, 385 (2007)).
IV. Res Judicata and Collateral Estoppel
Hedgepeth contends that POA, Lewis and Easton are bound by
the federal court order under the doctrines of res judicata and
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collateral estoppel as to the 25-foot easement and the 10-foot
easement found by the federal court.
We first note that, pursuant to Williams v. Peabody, our
review for res judicata and collateral estoppel is based upon
the federal court order, and upon the pleadings and complaint in
that action. In his complaint, Hedgepeth asserted that he was
entitled to the use of the subdivision roads in Parker’s Landing
Subdivision to access his property. Because the federal court
order adjudicated more legal theories than were asserted in
Hedgepeth’s complaint, we look primarily to that order.
The federal court order stated that Hedgepeth’s complaint
in that court “[sought] judicial declaration of an easement
benefitting the Hedgepeth Tract across the Parker's Landing
tract via Parker's Landing Drive.” As a preliminary matter, we
hold that the sole issue actually litigated before the United
States District Court for the Eastern District of North Carolina
was the existence and location of any easements that crossed the
Parker’s Landing Subdivision property, providing access to a
public road for the Hedgepeth Tract.
B. The Property Owners Association
In his first argument, Hedgepeth contends that POA is
estopped by the federal court order to relitigate the existence
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and location of the 25-foot and 10-foot easements found by the
federal court. We agree in part and disagree in part.
It is clear from the federal court order that Hedgepeth was
denied the right to use Parker’s Landing Drive to access the
Hedgepeth tract under a number of different theories. It is
also abundantly clear that the federal court held that Hedgepeth
had a very limited right to use two easements shown on a plat
recorded in Plat Book 2A, page 119 of the Currituck County
Registry. The federal court order recited that POA did not
dispute these easements before Judge Fox. However, neither of
these easements runs along or with the principal subdivision
street, Parker’s Landing Drive. The 25-foot easement (Doris
Lane) runs along the northern boundary of the Parker’s Landing
Subdivision, to the westernmost corner of the Hedgepeth tract.3
The 10-foot easement runs in a southerly direction from the
southernmost corner of the Hedgepeth tract across the eastern
portion of the Parker’s Landing Subdivision tract.
Hedgepeth’s amended complaint against POA in case 09 CVS
338, filed 18 June 2009, requested
3
It is not clear from the record whether the actual roadway runs
over the Parker’s Landing Subdivision property or upon the
adjoining tract to the north. The Capitolla Smith plat shows it
to be entirely on what is now the Parker’s Landing Subdivision
property. (See Exhibit A attached to this opinion.)
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the Court to declare the rights of the
parties under the Plats, Declaration, deeds
and the Order and Judgment, to quiet title
to the Parker Tract and his rights of access
in and to the Parker Tract over the
Historical Easements, and enjoin the
Defendants from interfering with those said
rights, and for such other and further
relief as the Court may deem appropriate.
Similarly, in his complaint in case 11 CVS 49, filed 2
February 2011, Hedgepeth requested
the Court to declare the rights of the
parties under the Amended Plat, Declaration,
and the deeds, to quiet title to the Parker
Tract, determine the true boundary between
the Parker Tract and the lands of the POA,
and enjoin the POA from interfering with
those said rights, and for such other and
further relief as the Court may deem
appropriate.4
With respect to POA, in cases 09 CVS 338 and 11 CVS 49,
Hedgepeth has asserted the following claims: (1) for a
determination of the boundary between the Parker’s Landing
Subdivision tract and the Hedgepeth tract; (2) to enforce
Hedgepeth’s right of access in and to the Hedgepeth tract; and
(3) to enjoin POA from interfering with his right of access.
Neither of these two complaints expressly refer to the existence
or the location of the two easements that were ruled upon by the
4
In these complaints, Hedgepeth refers to the Hedgepeth tract as
the “Parker Tract.” To avoid confusion, this opinion
consistently refers to this tract, containing approximately
21.765 acres, as the Hedgepeth tract.
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federal court. As a preliminary matter, we hold that only those
portions of Hedgepeth’s complaint concerning the two easements
found by the federal court could possibly be the subject of res
judicata based upon the federal court order.
Neither the 25-foot easement nor the 10-foot easement runs
along a common boundary of the Parker’s Landing Subdivision
tract and the Hedgepeth tract. Therefore, the easements
adjudicated by the federal court cannot be determinative of
Hedgepeth’s boundary claims in 11 CVS 49.5 In fact, it is clear
from the complaint in 11 CVS 49 that the boundary dispute
concerns a portion of Parker’s Landing Drive in the eastern
portion of the subdivision where it abuts the southern boundary
of the Hedgepeth tract. “For res judicata to apply, a party
must show that . . . the same cause of action is involved[.]”
State ex rel. Tucker v. Frinzi, 344 N.C. 411, 413–14, 474 S.E.2d
127, 128 (1996) (quotation omitted). Since the federal court
order expressly held that Hedgepeth had no right of access over
Parker’s Landing Drive, it cannot control the boundary dispute
based upon res judicata as to Parker’s Landing Drive.
Next, as to the second claim by Hedgepeth to enforce his
right of access, we again note that the extent of the federal
5
Hedgepeth’s boundary claim in 09 CVS 338 had previously been
voluntarily dismissed.
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court order was to declare that Hedgepeth had limited rights of
access over the 25-foot easement and the 10-foot easement. The
amended plat of Parker’s Landing Subdivision filed in Plat
Cabinet E, pages 116 and 117 (see Exhibit B attached to this
opinion), shows that POA was the owner of a lot along the
northern boundary of the Parker’s Landing Subdivision tract.
The 25-foot easement declared in the federal court order does
run across the northern boundary of that lot. Because the
parties are the same, the issue was the same, and Judge Fox’s
order constituted a final ruling on the merits, the legal theory
of res judicata is implicated. Under res judicata, as discussed
above, Hedgepeth has a 25-foot right of way over the property of
POA as shown on the above-referenced plat.
Finally, as to the third claim by Hedgepeth to enjoin POA
from interfering with his rights of access, this deals solely
with the fact that Parker’s Landing Drive crosses the 10-foot
easement just below the southern corner of the Hedgepeth tract.
Paragraph 35 of Hedgepeth’s amended complaint states:
Parker's Landing Drive crosses one of the
Historical Easements. Unfettered access on
Parker's Landing Drive across one of the
Historical Easements has been granted to
every lot owner in Parker's Landing. As a
result, Parker's Landing Drive as shown on
the Amended Plat crosses, burdens and
unreasonably interferes with Hedgepeth's
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said rights of access.
Hedgepeth’s assertion that the lot owners’ use of Parker’s
Landing Drive “burdens and unreasonably interferes” with his
access to the 10-foot easement is effectively an assertion that
the federal court ruling gives him exclusive rights to the 10-
foot easement, and that the lot owners in Parker’s Landing
cannot use Parker’s Landing Drive to cross it. This is an
absurd claim. The federal court order did not grant any sort of
exclusive rights to Hedgepeth to use the 10-foot easement. In
fact, the right to use the easement was sharply restricted as
follows:
. . . the scope of which may not exceed that
necessary to the farming or cultivation of
the Hedgepeth tract, consistent with the use
to which those paths were put when the
common title to the two tracts was severed
in 1894.
We further note that the owner of the servient tract of
land (in this case, POA) may use the land how he pleases,
provided that he does not interfere with the dominant tract’s
use of the easement. See Webster’s Real Estate Law in North
Carolina, § 15.23 (Patrick K. Hetrick and James B. McLaughlin
eds., 6th ed. 2013). Since the ruling of the federal court did
not deal with the issue of exclusivity, it does not constitute
res judicata as to the rights of Hedgepeth to use the 10-foot
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easement to the exclusion of those having rights to use Parker’s
Landing Drive.
Thus, with the exception of the 25-foot easement where it
crosses the lot owned by POA, res judicata is not applicable to
the claims brought by Hedgepeth against POA.
This argument is without merit.
C. The Individual Lot Owners
In his remaining arguments, Hedgepeth contends that the
various individual lot owners6 whose property is impacted by the
25-foot easement or the 10-foot easement declared in the federal
court order are estopped from relitigating the existence of the
historical easements. We disagree.
The federal court action was between only two parties,
Hedgepeth and POA. Hedgepeth contends nonetheless that the
interests of the individual lot owners were adequately
represented by POA before the federal court. As stated above,
for the doctrines of res judicata and collateral estoppel to be
applicable, parties must either have been parties to the
6
We note that two parcels that abut the 25-foot right of way
from the south are not part of the Parker’s Landing Subdivision.
See Exhibit B attached to this opinion. The owner of these
tracts, Sandra P. Brinkley (referred to by Hedgepeth as Sandra
Parker), is one of the defendants named in Hedgepeth’s amended
complaint in case 09 CVS 338.
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original suit, or have been in privity with those parties.
Williams, ___ N.C. App. at ___, 719 S.E.2d at 92-93.
Hedgepeth contends that the individual lot owners were in
privity with POA, arguing that POA represented their interests.
Hedgepeth claims that individual lot owners were notified of the
litigation, and that they had the opportunity to participate;
Hedgepeth further contends that they were not only represented
by POA, but that they actively participated in the litigation.
We are not persuaded by Hedgepeth’s arguments. We have
previously held that:
We believe that a dispute as to the
extinguishment of a subdivision easement by
abandonment or adverse possession cannot be
resolved without the joinder of the grantor,
or his heirs, who retain fee title to the
soil, and the record owners of lots in the
subdivision, who have user rights in the
easement. Those owners of interests in the
easement have a material interest in the
subject matter of the controversy, and their
interest will be directly affected by the
court's decision. Furthermore, proof of
abandonment by one lot owner, or proof of
possession adverse to one lot owner for the
prescribed statutory period, does not
extinguish an easement dedicated per plat
and expressly granted to owners of lots in a
subdivision.
Rice v. Randolph, 96 N.C. App. 112, 114, 384 S.E.2d 295, 297
(1989) (citations omitted).
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Pursuant to Rule 19(a)(1) of the Federal Rules of Civil
Procedure:
A person who is subject to service of
process and whose joinder will not deprive
the court of subject-matter jurisdiction
must be joined as a party if:
(A) in that person’s absence, the court
cannot accord complete relief among existing
parties; or
(B) that person claims an interest relating
to the subject of the action and is so
situated that disposing of the action in the
person’s absence may:
(i) as a practical matter impair or impede
the person’s ability to protect the
interest; or
(ii) leave an existing party subject to a
substantial risk of incurring double,
multiple, or otherwise inconsistent
obligations because of the interest.
F.R. Civ. P. 19(a)(1). “A judgment which is determinative of a
claim arising in an action in which necessary parties have not
been joined is null and void.” Rice, 96 N.C. App. at 113, 384
S.E.2d at 297.
It is clear that when real estate claims are adjudicated,
in order for the owners of property affected by the easement to
be bound by a judicial decision, they must be made parties to
the litigation. In the federal court action, none of the
individual lot owners were made a party to the proceeding,
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presumably because Hedgepeth’s objective was to affirm the right
to use the 50-foot right of way of Parker’s Landing Drive. When
the focus of the federal proceeding shifted to the 25-foot and
10-foot easements, the owners of the properties over which these
easements run were required to be added as parties before they
could be bound by the federal judgment.
This argument is without merit.
V. Other Arguments
Hedgepeth raises other arguments on appeal. However, those
arguments address the substance of the case before the trial
court, and are interlocutory. As we have held that the trial
court did not err in denying Hedgepeth’s motion for summary
judgment, these issues are not properly before us on appeal.
VI. Conclusion
We hold that the federal court order is res judicata with
respect to the portion of the 25-foot easement that crosses the
lot owned by POA on the northern boundary of the subdivision
property. To this extent, the order of the trial court is
reversed, and this matter is remanded for entry of an order
granting Hedgepeth’s motion for summary judgment. With respect
to the other claims of Hedgepeth against POA, the federal court
order does not constitute res judicata, and we affirm the ruling
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of the trial court. With respect to Hedgepeth’s claims against
individual lot owners based upon res judicata and collateral
estoppel in cases 09 CVS 338, 10 CVS 275, and 10 CVS 288, we
affirm the ruling of the trial court denying Hedgepeth’s motion
for summary judgment. We dismiss Hedgepeth’s appeal as to any
other issues not based upon res judicata or collateral estoppel
in cases 09 CVS 338, 10 CVS 275, and 10 CVS 288. Any appeals of
Hedgepeth not arising from the denial of his motions for summary
judgment in cases 09 CVS 338, 10 CVS 275, or 10 CVS 288 are also
dismissed.
AFFIRMED IN PART, REVERSED IN PART, AND DISMISSED IN PART.
Judges STEPHENS and DAVIS concur.
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Exhibit A: Capitolla Smith Heirs Map
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Exhibit B: Amended Plat of Parker’s Landing Subdivision