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, 

BARBARA K. CAPOBIANCO; ISAAC H. 

CHAPPELL and JEAN M. HANEY as CoTrustees 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. 

Brunswick County

No. 12 CVS 2063
-2-

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. 
-3-

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 
-4-

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. 
-5-

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 
-6-

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, 
-7-

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, 
-8-

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 
-9-

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 
-10-

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,
-11-

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. 
-12-

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 
-13-

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. ___, 
-14-

___, 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.
-15-

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).
-16-

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
-17-

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.