# Anderson v. SeaScape at Holden Plantation, LLC > Court of Appeals of North Carolina · June 2, 2015 · 241 N.C. App. 191 URL: https://www.frixlaw.com/law-library/cases/7397421 ## Case - **Full name:** 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 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. 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. Gettings 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. 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 O. 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 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. 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 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 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 - **Court:** Court of Appeals of North Carolina - **Decided:** June 2, 2015 - **Citations:** 241 N.C. App. 191; 773 S.E.2d 78 - **Precedential status:** Published - **Opinion:** Concurrence by Hunterrobert - **Judges:** Hunter, Inman, Robert - **Cited by:** 16 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7397421 ## Opinion text HUNTER, JR., ROBERT N., Judge, concurring. I join the opinion of the majority because I concur the trial court's decisions were correct *92 under our current statues as discussed in detail in the majority opinion. I write separately to discuss the "exclusive standing" issue. The majority opinion, in its analysis, relies very heavily upon analogies to shareholders and corporate governance of stock companies. In my opinion this metaphor is imperfect. In the corporate world, shareholders invest money and purchase share certificates which may be a voting share and if so, it gives them the right to elect directors to guide their investments. The risk of loss of the initial investment is the limitation of monetary liability. In a homeowner's association, a purchaser buys a home and has a right to participate in the management of the association which has the ability to assess each homeowner with common expenses to cover common areas, maintenance, and litigation costs. The risk of loss is an ongoing concern to the homeowner. Here, unlike the corporate structure, homeowners within the residential subdivision SeaScape at Holden Plantation do not enjoy the right to replace the management. Indeed they are estopped by agreement (the Master Agreement) and our prior precedent from complaining about this issue because they have agreed to these conditions upon purchase. I would hold they have "standing" but cannot meet the preconditions of demand or exhaustion of pre-corporate remedies to bring their derivative actions. I realize that our precedents discuss this issue as a standing issue, however I would not hold that the homeowner's association has "exclusive standing" even if such demand is made. Such a holding may prevent the ability of all parties with interests in a legal dispute to join in and have all claims determined efficiently. In my view, these homeowners have standing as intervenors under N.C. Gen.Stat. § 1A-1, Rule 24, which provides for intervention of right and permissive intervention, *212 should the trial court in its discretion decide that such intervention would be meritorious. N.C. Gen.Stat. § 1A-1, Rule 24 (2013). Relevant to this action, N.C. Gen.Stat. § 1A-1, Rule 24 provides: (a) Intervention of right.-Upon timely application anyone shall be permitted to intervene in an action: .... (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. 6 (b) Permissive intervention.-Upon timely application anyone may be permitted to intervene in an action. .... (2) When an applicant's claim or defense and the main action have a question of law or fact in common. Allowing intervention under N.C. Gen.Stat. § 1A-1, Rule 24 7 and subsequent judicial determination at a fairness hearing on any settlement would, in my opinion, make unnecessary the New Jersey solution to this kind of litigation. In this matter however, I realize my concurrence is merely advisory and not directory. This Court has held that "a party is entitled to intervene pursuant to N.C. Gen.Stat. § 1A-1, Rule 24(a)(2) in the event that he or she can demonstrate (1) an interest relating to the property or transaction, (2) practical impairment of the protection of that interest, and (3) inadequate representation of the interest by existing parties." Bailey & Assoc., Inc. v. Wilmington Bd. of Adjustment, 202 N.C.App. 177 , 185, 689 S.E.2d 576 , 583 (2010). A few federal cases have supported the notion that where the shareholder's interest may not be adequately represented, the shareholders can intervene under a "watchdog principle." See Shareholder Intervention in Corporate Litigation., 63 Harv. L. Rev. 1426 , 1431 (1950) ; see also Park & Tilford, Inc. v. Schulte, 160 F.2d 984 , 988-89 (2d Cir.1947) ; Twentieth Century-Fox Film Corp. v. Jenkins, 7 F.R.D. 197 (S.D.N.Y.1947). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7397421. Public record. Not legal advice.