Anderson v. Seascape at Holden Plantation, LLC ( 2014 )

NO. COA13-799
NORTH CAROLINA COURT OF APPEALS
Filed: 21 January 2014
JOHN WILTON ANDERSON, SR., Trustee
for the JOHN WILTON ANDERSON, SR.
REVOCABLE TRUST Dated May 1990;
ROBERT D. ANDERSON and wife,
PATRICIA A. ANDERSON; AL ARTALE and
wife, DEBBIE ARTALE; BALD EAGLE
VENTURES, LLC, a Delaware limited
liability company; ROBERT W.
BARBOUR and wife, KATHERINE G.
BARBOUR; DOUGLAS R. BARR and wife,
KAREN W. BARR; DANIEL T. BARTELL
and wife, BARBARA J. BARTELL;
MITCHELL W. BECKER; GEORGE D.
BEECHAM and wife, JACQUELINE J.
BEECHAM; KAREN H. BEIGER; GARY E.
BLAIR and wife, KATHLEEN P. BLAIR;
ANN M. BOILEAU and husband, PAUL
BOILEAU; GERARD C. BRADLEY and
wife, SUSAN M. BRADLEY; ROBERT
WILLIAM BRICKER and wife, PATRICIA
ANNE BRICKER; TOBY J. BRONSTEIN;
JAMES W. BURNS and wife, CAROL J.
BURNS; JOHN T. BUTLER; JOSEPH R.
CAPKA and wife, SUSAN J. CAPKA.;
JOSEPH S. CAPOBIANCO and wife, Brunswick County
BARBARA K. CAPOBIANCO; ISAAC H. No. 12 CVS 2063
CHAPPELL and JEAN M. HANEY as Co-
Trustees of the ISAAC H. CHAPPELL
TRUST dated October 10, 2000;
KENNETH A. CLAGETT and wife, MARY
ELLEN CLAGETT; EDWARD EARL CLAY and
wife, CHARLENE HOUGH CLAY; GARY E.
COLEMAN and wife, HOLLY H. COLEMAN;
WALTER N. COLEY and wife, CARROLL
M. COLEY; HARRY W. CONE and wife,
ELENORE W. CONE; MAURICE C.
CONNOLLY and wife, MADELINE S.
CONNOLLY; JERRY W. CRIDER and wife,
BELINDA W. CRIDER; RICHARD S.
CROMLISH, JR. and wife, SANDRA K.
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CROMLISH; LAURA DEATKINE and
husband, MICHAEL J. WARMACK;
NORVELL B. DEATKINE and wife,
THERESA M. DEATKINE; ROBERT E.
DEMERS and wife, DONNA L. FOOTE;
JAN S. DENEROFF and KAREN GILL
DENEROFF, as Co-Trustees of the
DENEROFF FAMILY TRUST dated
November 2, 2006; PAUL A. DENETT
and wife, LUCY Q. DENETT; JEROME V.
DIEKEMPER and wife, KAREN M.
DIEKEMPER; MARK W. DORSET and wife,
DEBORAH M. DORSET; MICHAEL R.
DuPRE, SR. and wife, MOLLY H.
DuPRE; DONALD D. EDWARDS and BETTY
M. EDWARDS as Trustees of the
EDWARDS FAMILY TRUST dated December
21, 1992; TROY D. ELLINGTON and
wife, BETTY S. ELLINGTON; PETER W.
FASTNACHT and wife, CAROLE ANN
FASTNACHT; RICK D. FAUTEUX and
wife, BRENDA S. FAUTEUX; WILLIAM H.
FOERTSCH and wife, PAMELA G.
FOERTSCH; LOUIS J. FRATTO, JR. and
wife, EILEEN M. FRATTO; ROBERT A.
FUNK and wife, BEATRIZ B. FUNK;
ROBERT A. MINK and wife, BEATRIZ B.
FUNK, as Trustees of the FUNK
LIVING TRUST dated March 22, 1999;
JOLANTA T. GAL; JOSEPH GARBARINO
and wife, BETTY GARBARINO; ROBERT
J. GETTTNGS and wife, KATHERINE
ANNE GETTINGS; TIM GIBBLE and wife,
SUSAN GIBBLE; ROCKLIN E. GMEINER,
JR. and MARSHA A. GMEINER, Trustees
under THE GMEINER FAMILY TRUST,
dated August 21, 2008; HARRY J.
GRAHAM and wife, MARYANNE S.
GRAHAM; RICHARD A. GRANO and wife,
ANGELA M. GRANO; RODNEY LAVERNE
GROW and wife, JO ELAINE GROW;
RONALD E. GUAY and wife, DORIS M.
GUAY; LEON J. HARRISON and wife,
MARGARET A. HARRISON; GLEN A.
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HATZAI and wife, BARBARA A. HATZAI;
KJELL HESTVEDT and wife, ANNE T.
HESTVEDT; LARRY H. HITES and wife,
KARI F. HITES; DENNIS E. HOFFACKER
and SUE E. HOFFACKER as Trustees of
the SUE E. HOFFACKER REVOCABLE
LIVING TRUST dated February 9,
1998; JOHN E. HOWARD and wife,
MARYE C. HOWARD; JAMES S. HUTCHISON
and wife, PAMELA E. HUTCHISON;
CHARLES L. INGRAM and wife, RHONDA
M. INGRAM; THOMAS M. INMAN and
wife, DIANE M. INMAN; WILLIAM R.
JONAS and wife, DIAN M. JONAS;
MICHAEL G. KIDD and wife, VIRGINIA
G. KIDD; H. WILLIAM KUCHLER and
wife, PATRICIA A. KUCHLER; SCOTT C.
LEE and wife, CYNTHIA A. LEE; PETER
J. LEWIS and wife, JANET L. LEWIS;
JAMES R. LITTLE and wife, BONITA S.
LITTLE; PATRICK M. LOONAM and wife,
PATRICIA E. LOONAM; DONALD G. LUFF
and wife, JUDITH A. LUFF; MARK E.
MAINARDI and FRANCES B. MAINARDI,
as Trustees of the MAINARDI LIVING
TRUST dated January 23, 1997;
ANTHONY MARGLIANO and wife, ERIN
MARGLIANO; JOSEPH E. McDERMOTT and
wife, MARY M. McDERMOTT; JOHN 0.
McELROY and wife, KETHLEEN A.
McELROY; GEORGE J. McQUILLEN and
wife, BARBARA J. McQUILLEN; STEVEN
J. MEADOW and BRENDA K. MEADOW,
trustees of the MEADOW REVOCABLE
TRUST dated January 12, 2010;
GEORGE EDWARD MERTENS, III and
wife, NANCY MERTENS; MICHAEL A.
MICKIEWICZ, Trustee of the MICHAEL
A. MICKIEWICZ TRUST dated April 21,
2011; JACQUELINE A. MICKIEWICZ,
Trustee of the JACQUELINE A.
MICKIEWICZ TRUST dated April 21,
2011; TERRY LEE MILLER and wife,
JOAN C. MILLER; TERRY STEPHEN
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MOLNAR; MARIAN E. CARLUCCI; MICHAEL
R. MONETTI and wife, IRENE A.
MONETTI; MIMA S. NEDELCOVYCH and
wife, SALLY NEDELCOVYCH; WILLIAM W.
NIGHTINGALE and wife, BONNIE
NIGHTINGALE; KEITH OKOLICHANY and
wife, LINDA A. OKOLICHANY; RICHARD
L. PASTORIUS and wife, BONNIE L.
PASTORIUS; JOHN J. PATRONE and
wife, LINDA D. PATRONE; LOUIS M.
PACELLI and wife, MARLEEN S.
PACELLI; LAURENCE F. PIAZZA and
wife, CHERYL ANN PIAZZA; JACK L.
RAIDIGER and wife, JUDY K.
RAIDIGER; FRANK RINALDI and wife,
ROSEMARIE RINALDI; TIMOTHY T.
ROSEBERRY and wife, SUZANNE
ROSEBERRY; EILEEN ROSENFELD and
ROBERT W. ROSENFELD, as Trustees
under the EILEEN ROSENFELD LIVING
TRUST dated August 9, 2000; GEORGE
M. SAVELL and wife, MARIA VIOLET
SAVELL; DENNIS J. SCHARF and wife,
CHERYL H. SCHARF; FRANCIS G.
SCHAROUN and wife, DEBORAH M.
SCHAROUN; ROBERT L. SCHORR; JOHN
FRANCIS SEELY and wife, JANET CAVE
SEELY; ERNEST J. SEWELL and wife,
ROWENA P. SEWELL; WILLIAM M. SHOOK
and wife, SUSAN M. SHOOK; CRAIG A.
SKAJA and wife, CHRISTINE C. SKAJA;
CHARLES M. SMITH and wife, LOIS S.
SMITH; HELGA SMITH; THOMAS W. SMITH
and wife, MARTHA B. SMITH; ALAN H.
SPIRO and wife, RHONDA B. SPIRO;
KENNETH STEEPLES and wife, EILEEN
P. STEEPLES; RICHARD L. STEINBERG
and wife, BARBARA J. STEINBERG;
THOMAS STURGILL and wife, LINDA
STURGILL; SCOTT SULLIVAN and wife,
LORETTA F. SULLIVAN; JOHN M.
SWOBODA as Trustee of the JOHN M.
SWOBODA REVOCABLE LIVING TRUST
dated November 29, 2002; CAROL L.
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SWOBODA as Trustee of the CAROL L.
SWOBODA REVOCABLE LIVING TRUST
dated October 28, 2002; ROBERT C.
THERRIEN and wife, JANE A.
THERRIEN; HARVEY L. THOMPSON and
wife, ROSALYN THOMPSON; PAULINE
TOMPKINS; DERRAIL TURNER and wife,
PANSEY TURNER; WILLIAM E. WILKINSON
and wife, BETTY R. WILKINSON; JAMES
M. WILLIAMS and wife, PATRICIA E.
WILLIAMS; THOMAS P. WOLFE and wife,
JULIA T. WOLFE; JAMES J. YORIO and
wife, DEBORAH L. YORIO; JOSEPH
ZALMAN and wife, VALERIE ZALMAN;
EUGENE E. ZIELINSKI and wife,
REBECCA R. ZIELINSKI,
Plaintiffs,
v.
SEASCAPE AT HOLDEN PLANTATION, LLC,
a North Carolina limited liability
company, f/k/a SEASCAPE AT HOLDEN
PLANTATION, INC.; THE COASTAL
COMPANIES, LLC, a North Carolina
limited liability company, d/b/a
MARK SAUNDERS LUXURY HOMES; EASTERN
CAROLINAS’ CONSTRUCTION &
DEVELOPMENT LLC, a North Carolina
limited liability company, f/k/a
EASTERN CAROLINAS’ CONSTRUCTION &
DEVELOPMENT CORPORATION; COASTAL
CONSTRUCTION OF EASTERN NC, LLC, a
North Carolina limited liability
company, f/k/a COASTAL DEVELOPMENT
& REALTY BUILDER, INC.; MAS
PROPERTIES, LLC, a North Carolina
limited liability company; MARK A.
SAUNDERS, CAPE FEAR ENGINEERING,
INC., a North Carolina corporation;
EXECUTIVE BOARD OF SEASCAPE AT
HOLDEN PLANTATION PROPERTY OWNERS
ASSOCIATION, INC.; ERIC JOHNSON;
CURT BOLDEN; HELEN STEAD; TONY
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BRADFORD CHEERS; CARROLL
LIPSCOMBE; SEAN D. SCANLON; DANIEL
H. WEEKS; RICHARD GENOVA; SUSAN
LAWING; DEAN SATRAPE; GRACE
WRIGLEY; BRUNSWICK COUNTY;
BRUNSWICK COUNTY INSPECTION
DEPARTMENT; ELMER DELANEY AYCOCK;
HAROLD DOUGLAS MORRISON; ANTHONY
SION WICKER; DAVID MEACHAM STANLEY,
Defendants.
Appeal by Intervenor SeaScape at Holden Plantation Property
Owners Association, Inc. from Order entered 24 January 2013 by
Judge Thomas H. Lock in Superior Court, Brunswick County. Heard
in the Court of Appeals 19 November 2013.
Whitfield Bryson & Mason, LLP, by Daniel K. Bryson, for
plaintiffs-appellees.
Young Moore and Henderson, P.A., by Robert C. deRosset, and
Graebe Hanna & Sullivan, PLLC, by Christopher T. Graebe, for
defendants Mark A. Saunders and MAS Properties, LLC.
Hamlet & Associates, PLLC, by H. Mark Hamlet, for Coastal
Construction of Eastern NC, LLC.
Wall Templeton & Haldrup, PA, by Mark Langdon, for Seascape
at Holden Plantation LLC, The Coastal Companies LLC, Eastern
Carolinas Construction and Development LLC.
Cranfill Sumner & Hartzog, LLP, by Patrick Mincey, for Cape
Fear Engineering, Inc.
Teague Campbell Dennis & Gorham, LLP, by Henry W. Gorham, for
Elmer Delany Aycock, Harold Douglas Morrison, Anthony Sion
Wicker, and David Meacham Stanley.
Chestnutt, Clemmons & Peacock, P.A., by Gary H. Clemmons, for
defendants Eric Johnson, Curt Bolden, Tony Bradford Cheers,
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Carroll Lipscombe, Grace Wrigley, Helen Stead, Susan Lawing,
Dan Weeks, Richard Genova, Dean Satrape, Sean D. Scanlon, and
The Executive Board of Seascape at Holden Plantation Property
Owners Association, Inc.
Ward and Smith, P.A., by Ryal W. Tayloe and Allen N. Trask,
III, for Intervenor-Appellant Seascape at Holden Plantation
Property Owners Association, Inc.
STROUD, Judge.
The SeaScape at Holden Plantation Property Owners
Association, Inc. appeals from an order entered 24 January 2013
denying its motion to intervene. We reverse and remand.
I. Background
This action concerns a planned community in Brunswick County
called SeaScape at Holden Plantation (“SeaScape Community”). The
SeaScape Community was developed by SeaScape at Holden Plantation,
LLC (“SeaScape LLC”), and its member-manager, Mark Saunders, both
defendants here. Plaintiffs claim that the SeaScape Community
“derives much of its value from the substantial common elements
available for the owners’ use, including a marina, a clubhouse,
and ponds and natural areas throughout the property.” Plaintiffs’
claims arise from the construction of some of these common areas,
including a marina and two ponds as well as the “failure to
construct promised amenities, including without limitation, tennis
courts, walking and biking trails, harbormaster house,
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intracoastal pier with gazebo, and observation towers” and failure
to properly construct and maintain roadways and drainage. The
developer had some of these common areas constructed and then
conveyed them to the SeaScape Property Owners’ Association, Inc.
(POA), a non-profit corporation. Plaintiffs are property owners
within the SeaScape Community and members of the POA. Under the
POA’s articles of incorporation, the developer has the unilateral
authority to appoint and remove members of the POA Board of
Directors.
On 5 October 2012, plaintiffs filed a verified complaint,
motion for temporary restraining order, and motion for preliminary
injunction. This initial complaint listed the POA as a defendant.
The complaint alleged that two of the common ponds, the marina,
and some of the roads had various construction defects resulting
in excessive repair costs and diminution of property value, among
other damages. Plaintiffs have alleged that the common areas at
issue were defectively constructed by several LLCs operated by Mr.
Saunders.
The complaint raised claims for breach of contract, breach of
implied warranties, unfair and deceptive business practices, and
constructive fraud against SeaScape LLC and the construction LLCs
allegedly operated by Mr. Saunders, as well as piercing the
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corporate veil to impose liability on Mr. Saunders individually.
Plaintiffs also alleged breach of fiduciary duty, negligence,
unfair and deceptive business practices against Mr. Saunders
individually. The complaint also raised negligence and breach of
contract claims against Cape Fear Engineering, Inc. for its designs
of several common elements. Plaintiffs further claimed that the
POA Board of Directors and the individual board members had
breached their fiduciary duties to plaintiffs and engaged in a
civil conspiracy with the developer. Finally, plaintiffs claimed
that Brunswick County and several individual inspectors were
negligent in their inspections, had engaged in a civil conspiracy
with the developer, and acted in a manner that constituted unfair
and deceptive business practices.
Before the POA filed an answer, plaintiffs filed an amended
complaint on 26 October 2012, which included essentially the same
claims but did not include the POA as a defendant. On 27 November
2012, the POA filed a motion to intervene “as a party Plaintiff.”
It claimed that it was the owner of the property that plaintiffs
have alleged was defectively constructed. It contended that some
of the interests asserted by plaintiffs were actually interests
owned by the POA. It attached a draft complaint, largely copying
plaintiffs’ claims against the developer, the construction
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companies, Cape Fear, and the Brunswick County defendants. The
superior court denied the POA’s motion to intervene by order
entered 24 January 2013. The POA filed written notice of appeal to
this Court on 13 February 2013.
II. Appellate Jurisdiction
We must first address the issue of appellate jurisdiction. We
conclude that the appeal is interlocutory, but that the appealed
order affects a substantial right and is therefore immediately
appealable. Further, we deny plaintiffs’ motion to dismiss the
appeal for lack of subject matter jurisdiction.
The trial court’s order denying the POA’s motion to intervene
is interlocutory, as it does not dispose of the entire case. See
High Rock Lake Partners, LLC v. North Carolina Dept. of Transp.,
204 N.C. App. 55, 60, 693 S.E.2d 361, 366 (“An interlocutory order
is one made during the pendency of an action which does not dispose
of the case, but leaves it for further action by the trial court
in order to settle and determine the entire controversy.”
(citation, quotation marks, and ellipses omitted)), disc. rev.
denied, 364 N.C. 325, 700 S.E.2d 753 (2010). “Normally,
interlocutory orders are not immediately appealable.” Highland
Paving Co., LLC v. First Bank, ___ N.C. App. ___, ___, 742 S.E.2d
287, 290 (2013) (citation omitted). Nevertheless,
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an interlocutory order may be immediately
appealed (1) if the order is final as to some
but not all of the claims or parties and the
trial court certifies there is no just reason
to delay the appeal pursuant to N.C. R. Civ.
P. 54(b) or (2) if the trial court’s decision
deprives the appellant of a substantial right
which would be lost absent immediate review.
Stinchcomb v. Presbyterian Medical Care Corp., 211 N.C. App. 556,
560, 710 S.E.2d 320, 323, disc. rev. denied, 365 N.C. 338, 717
S.E.2d 376 (2011).
The POA argues that the trial court’s denial of its motion to
intervene affects a substantial right. “Whether a party may appeal
an interlocutory order pursuant to the substantial right exception
is determined by a two-step test. The right itself must be
substantial and the deprivation of that substantial right must
potentially work injury to [appellant] if not corrected before
appeal from final judgment.” Wood v. McDonald’s Corp., 166 N.C.
App. 48, 55, 603 S.E.2d 539, 544 (2004) (citations, quotation
marks, and brackets omitted).
Under the facts presented here, we conclude that the trial
court’s order affects a substantial right of the POA. Cf. United
Services Auto. Ass’n v. Simpson, 126 N.C. App. 393, 395, 485 S.E.2d
337, 339 (concluding that an order denying the appellants’ motion
to intervene affected a substantial right), disc. rev. denied, 347
N.C. 141, 492 S.E.2d 37 (1997); Alford v. Davis, 131 N.C. App.
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214, 216, 505 S.E.2d 917, 919 (1998) (concluding that the denial
of a motion to intervene affected a substantial right). This action
concerns property owned by the POA. To the extent that the parties
contend that there are derivative claims at issue, they were
derivative of rights possessed by the POA. Unless it is brought
into the action, the POA would lose its ability to challenge
plaintiffs’ standing to bring an action on its behalf, which is a
major issue in contention here. See Swenson v. Thibaut, 39 N.C.
App. 77, 100, 250 S.E.2d 279, 294 (1978) (observing that “certain
defenses which are properly asserted before trial on the merits of
the action are peculiar to the corporation alone, and may be
properly raised only by the nominal defendant who, for purposes of
those matters, ceases to be a nominal defendant and becomes an
actual party defendant.”), app. dismissed and disc. rev. denied,
296 N.C. 740, 740, 254 S.E.2d 181, 181-83 (1979). We conclude
that the order denying the POA’s motion to intervene affects a
substantial right and is immediately appealable.
Plaintiffs have also filed a motion to dismiss the appeal for
lack of subject matter jurisdiction on the basis that the POA lacks
authority, and therefore standing, to pursue the appeal. This
argument is misplaced. The only action currently pending and the
action into which the POA moved to intervene is that filed by
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plaintiffs. The parties stipulated that the trial court had subject
matter jurisdiction over the present action—the action filed by
plaintiffs—and we see no reason to conclude otherwise. Therefore,
we deny plaintiffs’ motion to dismiss the appeal.
III. Motion to Intervene
The POA argues that the trial court erred in denying its
motion to intervene because it had a right to intervene under N.C.
Gen. Stat. § 1A-1, Rule 24(a) (2011), and, alternatively, the trial
court abused its discretion in denying the POA’s motion to
intervene permissively under Rule 24(b). We hold that the POA had
a right to intervene as a necessary party under Rule 24(a)(2).
Because we conclude that the POA has a right to intervene under
Rule 24 (a)(2), we do not address the issue of a statutory right
to intervene or permissive intervention.
A. Standard of Review
“We review de novo the trial court’s decision denying
intervention under Rule 24(a)(2).” Charles Schwab & Co., Inc. v.
McEntee, ___ N.C. App. ___, ___, 739 S.E.2d 863, 867 (2013)
(citation omitted). “Under a de novo review, [this] [C]ourt
considers the matter anew and freely substitutes its own judgment
for that of the trial court.” Johns v. Welker, ___ N.C. App. ___,
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___, 744 S.E.2d 486, 488 (2013) (citation, quotation marks, and
brackets omitted).
B. Analysis
“Rule 24 of the North Carolina Rules of Civil Procedure
determines when a third party may intervene as of right or
permissively.” Virmani v. Presbyterian Health Services Corp., 350
N.C. 449, 458, 515 S.E.2d 675, 682 (1999), cert. denied, 529 U.S.
1033, 146 L.Ed. 2d 337 (2000). Under Rule 24, a person has a right
to intervene in two circumstances:
(1) When a statute confers an unconditional
right to intervene; or (2) When the applicant
claims an interest relating to the property or
transaction which is the subject of the action
and he is so situated that the disposition of
the action may as a practical matter impair or
impede his ability to protect that interest,
unless the applicant’s interest is adequately
represented by existing parties.
N.C. Gen. Stat. § 1A-1, Rule 24(a) (2011).
“The prospective intervenor seeking such intervention as a
matter of right under Rule 24(a)(2) must show that (1) it has a
direct and immediate interest relating to the property or
transaction, (2) denying intervention would result in a practical
impairment of the protection of that interest, and (3) there is
inadequate representation of that interest by existing parties.”
Virmani, 350 N.C. at 459, 515 S.E.2d at 683.
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When a complete determination of the
controversy cannot be made without the
presence of a party, the court must cause it
to be brought in because such party is a
necessary party and has an absolute right to
intervene in a pending action. Hence, refusal
to permit a necessary party to intervene is
error.
Strickland v. Hughes, 273 N.C. 481, 485, 160 S.E.2d 313, 316 (1968)
(emphasis added). Our Supreme Court held under the prior N.C. Gen.
Stat. § 1-73 that a trial court erred in denying the owner of
property at issue, a necessary party, the opportunity to
participate. Griffin & Vose v. Non-Metallic Minerals Corp., 225
N.C. 434, 436, 35 S.E.2d 247, 249 (1945).1 Moreover, to the extent
that plaintiffs’ claims are derivative, the POA is a necessary
party because the derivative claims are brought in its name.
Swenson, 39 N.C. App. at 98, 250 S.E.2d at 293.
“A necessary party is one who is so vitally interested in
the controversy that a valid judgment cannot be rendered in the
action completely and finally determining the controversy without
his presence.” Moore Printing, Inc. v. Automated Print Solutions,
LLC, ___ N.C. App. ___, ___, 718 S.E.2d 167, 172 (2011). The POA
1 Both of these cases were decided before the Rules of Civil
Procedure came into effect. However, our Supreme Court has noted
that “[t]he rules of intervention as set out in N.C.G.S. § 1A-1
make no substantive change in the rules as previously set out in
N.C.G.S. § 1-73.” River Birch Associates v. City of Raleigh, 326
N.C. 100, 128 n.10, 388 S.E.2d 538, 554 n.10 (1990).
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is the owner of the property that plaintiffs have alleged was
defectively constructed and is in need of repair. Plaintiffs have
specifically requested an injunction prohibiting the POA from
expending its funds to repair the marina, as plaintiffs assert
that the other defendants should be held responsible for these
expenses. Plaintiffs assert that several of their claims are
derivative claims brought on behalf of the POA. No valid judgment
can be entered without the participation of the POA. See Karner v.
Roy White Flowers, Inc., 351 N.C. 433, 440, 527 S.E.2d 40, 44
(2000) (concluding that “[a]n adjudication that extinguishes
property rights without giving the property owner an opportunity
to be heard cannot yield a “valid judgment.”); Swenson, 39 N.C.
App. at 98, 250 S.E.2d at 293. Therefore, regardless of whether
plaintiffs’ claims are derivative or individual, valid or
inadequate, as a necessary party, the POA has a right to intervene
under Rule 24. See Virmani, 350 N.C. at 459, 515 S.E.2d at 683;
Strickland, 273 N.C. at 485, 160 S.E.2d at 316; Swenson, 39 N.C.
App. at 98, 250 S.E.2d at 293.
We also note that the parties all seem to assume in their
briefs that the plaintiffs’ claims at issue are derivative claims
brought on behalf of the POA. The only issue which the trial court
has ruled upon and which is raised by this appeal is the POA’s
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right to intervene, and we have addressed only that issue. We
express no opinion on the legal sufficiency of plaintiff’s claims
or of the POA’s complaint, the assertion that the claims are
actually derivative and pled as such, or the POA’s argument that
derivative claims were not properly brought. These other legal
issues and the proper role of the POA in the action may be addressed
by the trial court on remand if and when they are raised by the
parties.
IV. Conclusion
For the foregoing reasons, we hold that the POA is entitled
to intervene as a matter of right under Rule 24. Therefore, we
reverse the trial court’s order denying the POA’s motion to
intervene and remand for further proceedings.
REVERSED and REMANDED.
Judges MCGEE and BRYANT concur.