NO. COA13-809
NORTH CAROLINA COURT OF APPEALS
Filed: 2 September 2014
ALLEN TOBY HEDGEPETH AS TRUSTEE
UNDER THE ALLEN TOBY HEDGEPETH
DECLARATION OF TRUST, DATED MAY
30, 2001,
Plaintiff,
v. Currituck County
No. 11 CVS 49
PARKER’S LANDING PROPERTY OWNERS
ASSOCIATION, INC.,
Defendant.
Appeal by plaintiff from order entered 17 January 2013 by
Judge Marvin K. Blount, III in Currituck County Superior Court.
Heard in the Court of Appeals 22 January 2014.
Vandeventer Black LLP, by Norman W. Shearin and Ashley P.
Holmes, for plaintiff-appellant.
Thompson & Pureza, P.A., by C. Everett Thompson, II, and
David R. Pureza, for defendant-appellee.
Ward and Smith, P.A., by Eric J. Remington, Amicus Curiae,
for defendant-appellee Betty P. Lewis.
Boxley, Bolton, Garber & Haywood, L.L.P., by Ronald H.
Garber, Amicus Curiae, for defendant-appellee Maxine A.
Easton.
STEELMAN, Judge.
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The trial court did not abuse its discretion in denying the
motion of Allen Toby Hedgepeth (Hedgepeth) for class
certification.
I. Factual and Procedural Background
The facts and procedural background of this case are set
forth in the companion case of Hedgepeth v. Parker’s Landing
(COA 13-914).
II. Interlocutory Appeal
“A final judgment is one which disposes of the cause as to
all the parties, leaving nothing to be judicially determined
between them in the trial court. 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.” Veazey v.
City of Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950)
(citations omitted).
“[W]hen an appeal is interlocutory, the appellant must
include in its statement of grounds for appellate review
‘sufficient facts and argument to support appellate review on
the ground that the challenged order affects a substantial
right.’” Johnson v. Lucas, 168 N.C. App. 515, 518, 608 S.E.2d
336, 338 (quoting N.C.R. App. P. 28(b)(4)), aff’d per curiam,
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360 N.C. 53, 619 S.E.2d 502 (2005). “The denial of class
certification has been held to affect a substantial right
because it determines the action as to the unnamed plaintiffs.”
Frost v. Mazda Motor of Am., Inc., 353 N.C. 188, 193, 540 S.E.2d
324, 327 (2000).
In the instant case, we hold that Hedgepeth’s appeal of the
denial of the motion for class certification is properly before
us.
III. Denial of Class Certification
In his first argument, Hedgepeth contends that the trial
court erred in denying class certification. We disagree.
A. Standard of Review
“The standard of review for class certification is whether
the trial court's decision constitutes an abuse of discretion.”
Peverall v. Cty. of Alamance, 184 N.C. App. 88, 91, 645 S.E.2d
416, 419 (2007). “A trial court may be reversed for abuse of
discretion only upon a showing that its actions are manifestly
unsupported by reason . . . [or] upon a showing that [the trial
court’s decision] was so arbitrary that it could not have been
the result of a reasoned decision.” White v. White, 312 N.C.
770, 777, 324 S.E.2d 829, 833 (1985).
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B. Analysis
Hedgepeth filed a motion and an amended motion to certify a
class of defendants, consisting of the individual lot owners, as
represented by the Parker’s Landing Property Owners’
Association, Inc. (POA). On 17 December 2012, the trial court
conducted a hearing on these motions. On 17 January 2013, the
trial court denied Hedgepeth’s motion to certify a class or, in
the alternative, to find that POA represented its members.
In its order denying Hedgepeth’s motion, the trial court
found that:
3. The individual lot owners do not own
Parker's Landing Drive, but under the
covenants of the subdivision have a right to
utilize Parker's Landing Drive.
4. The Court notes that some lot owners
can access their property without utilizing
the portion of Parker's Landing Drive
claimed by plaintiff, while others could
not.
. . .
6. Based on the evidence before the court,
the court cannot find that the named
defendant (POA) and the unnamed members each
have an interest in either the same issue of
law or of fact.
7. The plaintiff has moved to have the POA
serve as the representative of the members
and/or the class representative. The POA has
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informed the court that it does not consent
to having it be the defendant class
representative or otherwise represent the
individual property owners in this case.
8. The POA is bound by an Order entered on
June 5, 2009 by the U.S. District Court for
the Eastern District of North Carolina in a
case entitled Allen Toby Hedgepeth, as
Trustee under the Allen Toby Hedgepeth
Declaration of Trust, dated May 30, 2001 v.
Parker's Landing Property Owners'
Association, Inc. (the "Federal Court
Order").
9. The individual lot owners are not bound
by the Federal Court Order and they have the
right to assert defenses and raise issues
which may no longer be available to the POA.
10. The attorney for Betty Lewis, owner of
lot #14 and member of the POA, informed the
court that Betty Lewis would not consent to
having the POA be the class representative
for her.
11. The attorney for Maxine Easton, owner
of lot #15 and member of the POA, informed
the court that Maxine Easton would not
consent to having the POA be the class
representative for her.
12. The court finds that based on the
potential conflicts between the POA and the
individual lot owners and members of the
POA, that the POA would not be an adequate
representative of the individual property
owners.
13. Plaintiff alleges that the members of
the class would all be property owners in
Parker's Landing subdivision. Plaintiff
previously has filed actions against at
least fourteen (14) individual lot owners.
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Rather than filing one action and naming all
interested parties in that action, plaintiff
chose to file separate actions against the
POA and each of these lot owners. Plaintiff
was able to obtain service on all of the
individuals named in previous actions. The
court has consolidated all of the pending
lawsuits for trial.
Based upon its findings, the trial court concluded that:
1. The court concludes that the POA cannot
fairly and adequately represent the interest
of the all [sic] members of the potential
class.
2. The court concludes that a conflict of
interest exists between the POA and the
members of the class who are not named
parties so that the interest of the unnamed
class members cannot be adequately and
fairly protected.
3. The court concludes that the plaintiff
has failed to demonstrate substantial
difficulty or inconvenience in joining all
the members of the requested class. Thus,
the plaintiff has failed to show that it
would be impracticable to join all the
members of the class.
4. The Court concludes that the plaintiff
has failed to meet his burden to certify a
class action.
Upon review of the record, we hold that the trial court’s
denial of Hedgepeth’s motion was not “manifestly unsupported by
reason” or “so arbitrary that it could not have been the result
of a reasoned decision.” We hold that the trial court did not
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abuse its discretion in denying Hedgepeth’s motion to certify a
class.
This argument is without merit.
IV. Federal Court Order
In his second argument, Hedgepeth contends that the
individual lot owners are bound by the federal court order. As
we have addressed this issue in the companion case of Hedgepeth
v. Parker’s Landing (COA 13-914), we need not address this
argument here, and incorporate by reference our holdings in that
case.
AFFIRMED.
Judges STEPHENS and DAVIS concur.