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

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
 -2-
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.
 -3-

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
 -4-
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
 -5-
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.
 -6-
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
 -7-
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.
 -8-
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
 -9-
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.
 -10-
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
 -11-
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
 -12-
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.
 -13-
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
 -14-
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.
 -15-
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
 -16-
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
 -17-
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
 -18-
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
 -19-
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
 -20-
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
 -21-
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.)
 -22-
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.
 -23-
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.
 -24-
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
 -25-
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
 -26-
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.
 -27-
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).
 -28-
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,
 -29-
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
 -30-
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.
 -31-

Exhibit A: Capitolla Smith Heirs Map
-32-
 -33-

Exhibit B: Amended Plat of Parker’s Landing Subdivision