Anderson v. Seascape at Holden Plantation, LLC

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.