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  "name": "CREEK POINTE HOMEOWNER'S ASSOCIATION, INC. and KENNETH C. KREMER, Plaintiffs v. RICHARD HAPP, Defendant and Third-Party Plaintiff v. WEYERHAEUSER REAL ESTATE COMPANY, INC., Third-Party Defendant",
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  "docket_number": "No. COA00-556",
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      "CREEK POINTE HOMEOWNER\u2019S ASSOCIATION, INC. and KENNETH C. KREMER, Plaintiffs v. RICHARD HAPP, Defendant and Third-Party Plaintiff v. WEYERHAEUSER REAL ESTATE COMPANY, INC., Third-Party Defendant"
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      {
        "text": "BIGGS, Judge.\nPlaintiff, Creek Pointe Homeowner\u2019s Association, Inc., appeals from the trial court\u2019s dismissal of its claims for lack of standing, pursuant to N.C.R. Civ. P. 12(b)(6). This matter arises out of a dispute over a fence that Richard Happ (defendant), a resident of the Creek Pointe subdivision, placed across Deep Creek Road, in Creek Pointe. We reverse the decision of the trial court.\nThe pertinent facts are as follows: Defendant owns lots 27 through 31 in Creek Pointe, which is located in Pamlico County, about sixteen miles from New Bern, North Carolina. His lots comprise over 200 acres, and lie on either side of Deep Creek Road. This land includes the entire eastern portion of Creek Pointe subdivision. His lots are contiguous; they are bordered by Deep Creek Road, by Goose Creek, and by a small triangular portion of lot 22. Defendant purchased the lots in 1994, and erected the fence shortly thereafter.\nIn November, 1999, the Creek Pointe Homeowner\u2019s Association (association) and individual plaintiff Kenneth C. Kremer (Kremer), one of the owners of lot 22, brought suit against defendant, seeking an injunction to require the defendant to remove the fence across Deep Creek Road, and to bar him from replacing it with another fence. The plaintiffs asked for compensatory and punitive damages and for attorneys\u2019 fees. In their complaint, plaintiffs alleged that the fence violated a restrictive covenant granting an easement in favor of all Creek Pointe residents and entitling them to the use of all roads in Creek Pointe, including Deep Creek Road. Defendant\u2019s answer asserted that permission to erect a fence had been a condition of his contract of sale with Weyerhaeuser Real Estate Co., Inc. (developer), and also that the Creek Pointe Homeowner\u2019s Association previously had consented to the fence.\nIn addition, defendant filed a motion under N.C.R. Civ. P. 19, \u201cNecessary Joinder of Parties,\u201d seeking dismissal for failure to join all individual homeowners as necessary parties, and a motion under Rule 12(b)(6), seeking dismissal of all claims of the association for lack of standing or interest. Defendant also filed a third party complaint against the developer. In January, 2000, the defendant filed a motion for summary judgment against both plaintiffs. This was followed by the developer\u2019s February, 2000, motion for summary judgment, and by the association\u2019s motion of 15 February 2000 seeking an injunction to prohibit defendant from harassing its members.\nAll motions were heard on 25 February 2000, at which time the trial judge issued the following orders:\n1. Granted defendant\u2019s 12(b)(6) motion, dismissing all claims as to the association based on lack of standing or interest.\n2. Ordered that plaintiff Kremer\u2019s wife, all other Creek Pointe homeowners, and the developer, all must be joined as necessary parties to the suit.\n3. Ordered the fence moved so that it did not block any part of lot 22.\n4. Denied the injunction regarding harassment of association members.\n5. Denied the developer\u2019s motion for summary judgment.\n6. Denied defendant\u2019s motion for summary judgment.\nOn 27 March 2000, the association filed notice of appeal from the dismissal of their claims for lack of standing or interest. It is this appeal that is presently before this Court. The other orders entered by the trial court in this matter are not before this Court.\nWe first note that the trial court did not dismiss the case as to plaintiff Kremer. Thus, its ruling that the association lacked standing is an interlocutory order. See Jenkins v. Wheeler, 69 N.C. App. 140, 316 S.E.2d 354, disc. review denied, 311 N.C. 758, 321 S.E.2d 136 (1984) (order dismissing claims against one defendant is interlocutory where other defendants remain in suit). Interlocutory orders generally are not immediately appealable. Bailey v. Gooding, 301 N.C. 205, 270 S.E.2d 431 (1980); Mabrey v. Smith, 144 N.C. App. 119, 548 S.E.2d 183 (2001). However, an interlocutory order may be appealed before final judgment under two circumstances: (1) there is a certification by the trial court that there is no just reason to delay the appeal, or (2) the ruling affects a substantial right. Evans v. United Servs. Auto. Ass\u2019n, 142 N.C. App. 18, 541 S.E.2d 782, cert. denied, 353 N.C. 371, 547 S.E.2d 810 (2001); Smith v. Young Moving & Storage, Inc., 141 N.C. App. 469, 540 S.E.2d 383 (2000), aff'd, 353 N.C. 521, 546 S.E.2d 87 (2001); Norris v. Sattler, 139 N.C. App. 409, 533 S.E.2d 483 (2000).\nThe determination of whether a substantial right is affected is made on a case by case basis. Collins v. Talley, 135 N.C. App. 758, 522 S.E.2d 794 (1999); Stafford v. Stafford, 133 N.C. App. 163, 515 S.E.2d 43, aff'd, 351 N.C. 94, 520 S.E.2d 785 (1999). The reviewing court must determine whether denial of immediate review exposes a party to multiple trials with the possibility of inconsistent verdicts. Murphy v. Coastal Physician Grp., Inc., 139 N.C. App. 290, 533 S.E.2d 817 (2000); Moose v. Nissan of Statesville, 115 N.C. App. 423, 444 S.E.2d 694 (1994). In the present case we find that, although there was no certification by the trial judge, the order dismissing all claims as to the association affects a substantial right of appellants and is, therefore, appealable. See Jenkins, 69 N.C. App. 140, 316 S.E.2d 354 (substantial right affected where order dismissed claims against one of several defendants, thus raising the possibility of multiple trials against different members of the same group). See also Bernick v. Jurden, 306 N.C. 435, 293 S.E.2d 405 (1982).\nThe issue before this Court is whether the trial court erred in its conclusion that the Creek Pointe Homeowner\u2019s Association lacked standing to join Kremer as a plaintiff in this action. The pertinent features of the association are as follows: The creation of the association was contemplated by the developer, who stated in the Declaration of Covenants, Conditions, and Restrictions that, upon the sale of 75% of the lots in Creek Pointe, \u201c[t]here shall be created, . . . The Creek Pointe Homeowner\u2019s Association.\u201d The association was incorporated in November, 1989. Its membership consists of the owners of all lots in Creek Pointe. Its Articles of Incorporation state that \u201cthe specific purposes for which it is formed are to provide for maintenance, preservation and architectural control of the residence lots and roads within [Creek Pointe.]\u201d The Articles also state that the association has \u201cany and all powers, rights, and privileges which a corporation organized under the Non-Profit Corporation Law of the State of North Carolina by law may now or hereafter have or exercise.\u201d\nIn North Carolina, homeowners\u2019 associations historically have enjoyed the general right to participate in litigation. Our appellate courts have considered suits brought by homeowners\u2019 associations on a case-by-case basis, and have permitted such associations, when appropriate, to pursue their claims in court. See, e.g., Village Creek Prop. Owners\u2019 Ass\u2019n, Inc. v. Town of Edenton, 135 N.C. App. 482, 520 S.E.2d 793 (1999) (property owners\u2019 association held to have standing to challenge rezoning of neighboring property); McGinnis Point Owners Ass\u2019n v. Joyner, 135 N.C. App. 752, 522 S.E.2d 317 (1999) (homeowners\u2019 association successfully sues to enforce restrictive covenant requiring property owners to pay annual assessment).\nThe association asserts standing under the North Carolina Planned Community Act (NCPCA), N.C.G.S. Chapter 47F. Their argument is based primarily upon the following provision of the statute:\nSubject to the provisions of the articles of incorporation or the declaration and the declarant\u2019s rights therein, the [homeowners\u2019] association may: . . .\n(4) Institute, defend, or intervene in litigation or administrative proceedings on matters affecting the planned community[.]\nN.C.G.S. 47F-3-102 (1999), Powers of owners\u2019 association, 102(4). The association\u2019s argument is that this is a matter \u201caffecting the planned community,\u201d and thus that the statute assures them of standing to bring suit. However, we do not read the NCPCA as conferring an automatic right upon homeowners\u2019 associations, but rather as reiterating the common law rule that, when otherwise proper, a homeowners\u2019 association may participate in a lawsuit. Moreover, the statute makes no further attempt to resolve questions of jurisdiction or standing. It does not define the phrase \u201caffecting the planned community,\u201d or otherwise restrict the potential range of litigation. The statute does not employ the term \u2018standing\u2019 in its recitation of an association\u2019s rights; nor does it address issues of standing in any of its other provisions. We conclude that, although the NCPCA clearly authorizes homeowners\u2019 associations as a general class to institute, defend, or intervene in litigation, this statute does not diminish our judicial responsibility to evaluate whether the association has standing to bring this suit under the specific fact situation presented. In this regard, we note another relevant provision of NCPCA, N.C.G.S. \u00a7 47F-1-108 (1999), \u201cSupplemental general principles of law applicable,\u201d which states:\nThe principles of law and equity as well as other North Carolina statutes . . . supplement the provisions of this Chapter, except to the extent inconsistent with this Chapter. When these principles or statutes are inconsistent or conflict with this Chapter, the provisions of this Chapter will control.\nWe find nothing in the NCPCA that is inconsistent with our common and statutory law regarding issues of jurisdiction and standing. Therefore, we hold that the NCPCA does not automatically confer standing upon homeowners\u2019 associations in every case, and that questions of standing should be resolved by our courts in the context of the specific factual circumstances presented and with reference to the \u201cprinciples of law and equity as well as other North Carolina statutes\u201d that supplement the NCPCA. Accordingly, we will examine the case sub judice in this manner.\nJurisdiction in North Carolina depends on the existence of a justiciable case or controversy. Town of Ayden v. Town of Winterville, 143 N.C. App. 136, 544 S.E.2d 821 (2001); Town of Pine Knoll Shores v. Carolina Water Service, 128 N.C. App. 321, 494 S.E.2d 618 (1998). Standing is a necessary prerequisite to the court\u2019s proper exercise of subject matter jurisdiction. Peacock v. Shinn, 139 N.C. App. 487, 533 S.E.2d 842, disc. review denied, 353 N.C. 267, 546 S.E.2d 110 (2000); Transcontinental Gas Pipe Line Corp. v. Calco Enter., 132 N.C. App. 237, 511 S.E.2d 671, disc, review denied, 351 N.C. 121, 540 S.E.2d 751 (1999). \u201cStanding\u201d refers to the issue of whether a party has a sufficient stake in an otherwise justiciable controversy that he or she may properly seek adjudication of the matter. Sierra Club v. Morton, 405 U.S. 727, 31 L. Ed. 2d 636 (1972). The relationship between standing and the requirement of a justiciable controversy has been expressed as follows: \u201cJudicial intervention in a dispute is normally contingent upon the presence of a justiciable controversy. Standing is that aspect of justiciability focusing on the party seeking a forum rather than on the issue he wants adjudicated.\u201d Bremner v. City & County of Honolulu, 96 Haw. App. 134, 28 P.3d 350 (2001). \u201cThe gist of standing is whether there is a justiciable controversy being litigated among adverse parties with substantial interest affected so as to bring forth a clear articulation of the issues before the court.\u201d Texfi Industries v. City of Fayetteville, 44 N.C. App. 268, 269-70, 261 S.E.2d 21, 23 (1979), aff\u2019d, 301 N.C. 1, 269 S.E.2d 142 (1980).\nAn association may have standing to bring suit either as a plaintiff, to redress injury to the organization itself, or as a representative of injured members of the organization. The leading case on the authority of an association to bring suit on behalf of its members is Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 53 L. Ed. 2d 383 (1977). In Hunt, the United States Supreme Court established three prerequisites for an association to sue in a representative capacity:\n[A]n association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization\u2019s purpose; and (c) neither the claim asserted, nor the relief requested, requires the participation of individual members in the lawsuit.\nHunt, 432 U.S. at 343, 53 L. Ed. 2d at 394. The Court expanded on the third requirement, addressing the significance of the type of relief sought as follows:\n[Wjhether an association has standing to invoke the court\u2019s remedial powers on behalf of its members depends in substantial measure on the nature of the relief sought. If in a proper case the association seeks a declaration, injunction, or some other form of prospective relief, it can reasonably be supposed that the remedy, if granted, will inure to the benefit of those members of the association actually injured. Indeed, in all cases in which we have expressly recognized standing in associations to represent their members, the relief sought has been of this kind.\nId. The criteria articulated in Hunt v. Washington State have been applied several times by our appellate courts. See, e.g., River Birch Associates v. City of Raleigh, 326 N.C. 100, 388 S.E.2d 538 (1990) (applying Hunt to issue of whether homeowners\u2019 association had standing); Northeast Concerned Citizens, Inc. v. City of Hickory, 143 N.C. App. 272, 545 S.E.2d 768, disc. review denied, 353 N.C. 526, 549 S.E.2d 220 (2001) (citizens\u2019 association lacked standing to challenge zoning ordinance where not all members had individual standing to sue); Landfall Group v. Landfall Club, Inc., 117 N.C. App. 270, 450 S.E.2d 513 (1994) (association lacked standing to bring suit because one of its members would not have had standing as an individual to bring action). Therefore, this Court will consider the trial court\u2019s ruling in the context of the requirements for standing to sue in a representative capacity articulated in Hunt v. Washington State, as these criteria have been interpreted by our state courts.\nWe find that the association meets the first prong of the Hunt test, in that the individual members of the Creek Pointe Homeowner\u2019s Association would have standing to bring suit as individuals. The suit alleges violation of the \u201cDeclaration of Covenants and Restrictions\u201d filed by the developer with the Pamlico County Register of Deeds. The declaration was filed in 1989, and was incorporated by reference as part of the \u201cArticles of Incorporation\u201d of the Creek Pointe Homeowner\u2019s Association. The pertinent restriction establishes an easement granting access to subdivision roads in favor of all landowners in Creek Pointe. \u201c[Generally, grantees in a subdivision are beneficiaries of any and all restrictive covenants imposed upon the subdivision so as to give them standing to challenge alleged violations of the restrictive covenants.\u201d Taylor v. Kenton, 105 N.C. App. 396, 401, 413 S.E.2d 576, 579 (1992) (plaintiffs had standing to enforce covenant, although the document setting out covenants did not specifically grant this right). See also Hawthorne v. Realty Syndicate, Inc., 300 N.C. 660, 268 S.E.2d 494 (1980) (affirming Court of Appeals\u2019 holding that plaintiff landowners in subdivision had standing to enforce restrictive covenant applicable to neighborhood).\nThis Court finds also that the association meets the second criteria enunciated in Hunt for standing: that the alleged injury be \u201cgermane to the organization\u2019s purpose.\u201d The stated purpose of the Creek Pointe Homeowner\u2019s Association is to \u201cprovide for maintenance, preservation and architectural control of the residence lots and roads within [Creek Pointe].\u201d Plaintiffs suit seeks to regain access to one of the private roads within Creek Pointe. The controversy over defendant\u2019s fence is one that implicates the core functions of the association.\nThe third prerequisite for representational standing is that \u201cneither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.\u201d We will evaluate the plaintiffs\u2019 claims and the remedies sought, to determine whether any of the association\u2019s members are necessary parties to the suit. The complaint seeks \u201cjust compensation for their property rights\u201d for Creek Pointe residents, asking specifically for \u201cdamages in an amount in excess of [$10,000,]\u201d as well as \u201cpunitive damages against Happ in a sum in excess of [$10,000,]\u201d and attorney\u2019s fees. Thus, the suit seeks both compensatory and punitive money damages, while Hunt contemplated situations in which only injunctive or declarative relief was sought. The calculation of damages would require consideration of the homeowners\u2019 individual circumstances. Plaintiff Kremer alleged that the fence actually prevents access to part of his land; another homeowner might assert that the fence reduced the value of his property, spoiled the view from the front porch, or prevented the use of the road itself.\nAn organization generally lacks standing to sue for money damages on behalf of its members if the damage claims are not common to the entire membership, nor shared equally, so that the fact and extent of injury would require individualized proof. Warth v. Seldin, 422 U.S. 490, 45 L. Ed. 2d 343 (1975). \u201c[W]here an association seeks to recover damages on behalf of its members, the extent of injury to individual members and the burden of supervising the distribution of any recovery mitigates against finding standing in the association.\u201d River Birch Associates v. City of Raleigh, 326 N.C. 100, 130, 388 S.E.2d 538, 555 (1990) (citing Hunt for its holding that homeowners\u2019 association lacked standing where it sought money damages for some of its members). Indeed, \u201cdamages claims usually require significant individual participation, which fatally undercuts a request for associational standing.\u201d Pennsylvania Psychiatric Society v. Green Springs Health Services, Inc., 280 F.3d 278, 284 (2000). In the case sub judice, any monetary damages owed to plaintiffs would call for \u201cindividualized proof,\u201d and would not necessarily be common to all. The financial impact of the fence upon various members of the association could vary from significant to minimal. Therefore, we find that the participation of individual homeowners is necessary to the suit.\nIf plaintiffs had sought only declarative or injunctive relief, the association may have had standing to sue in its representative capacity. The assertion by Creek Pointe homeowners of a right to unfettered access to all roads within the subdivision rests upon their ownership of a lot in Creek Pointe and their membership in the association. Thus, \u201c[t]he interest of [individual homeowners] in the [Creek Pointe roads] is indirect. Any interest the home owners have in [the roads] derives through their membership in the Homeowners\u2019 Association. . . . [which can] adequately represent] such interest[.]\u201d River Birch, 326 N.C. at 128-29, 388 S.E.2d at 554. However, having determined that this suit\u2019s pursuit of monetary damages requires the participation of individual homeowners, we necessarily find that the association does not meet the third criteria for standing under Hunt v. Washington State to bring suit as the representative of its members. Consequently, we hold that the homeowners\u2019 association lacked standing, under the criteria articulated in Hunt and followed in subsequent cases, to bring suit as the representative of individual members of the association.\nWe next consider whether the association has standing to join Kremer as a separate plaintiff, rather than as the representative of homeowners. To bring suit on its own behalf, an association need only meet the \u201cirreducible constitutional minimum\u201d of a sufficient stake in a justiciable case or controversy. Lujan v. Defenders of Wildlife, 504 U.S. 555, 119 L. Ed. 2d 351 (1992) (the \u201cirreducible constitutional minimum\u201d of Article III of the U.S. Constitution requires plaintiff who wishes to pursue claim in federal court to demonstrate (1) injury in fact, (2) causal relationship between injury and conduct complained of, and (3) likelihood that injury would be redressed by favorable verdict); Transcontinental Gas Pipe Line, 132 N.C. App. 237, 511 S.E.2d 671, (reiterating holding of Lujan in concurring opinion).\nIn the instant case, the Declaration of Covenants, Conditions, and Restrictions, and the By-laws of the association, state that the association has a duty to maintain the private roads within Creek Pointe. Clearly, the presence of a fence across one of the subdivision\u2019s roads injures the association in its ability to carry out this duty. The injury is causally connected to the defendant\u2019s alleged behavior, and likely would be redressed by a favorable verdict in this action. Therefore, we hold that on the facts of this case, the association had standing to bring this suit on its own behalf. See District Council 20, American Federation of State, County and Municipal Employees, 150 F.Supp.2d 136 (U.S. Dist. Ct., D.C., 2001) (court finds that Hunt precludes plaintiff organization from suing in representative capacity, but allows association to remain in suit for purpose of litigating claims for declaratory and injunctive relief). Accordingly, we reverse the trial court\u2019s ruling that the Creek Pointe Homeowner\u2019s Association lacks standing to participate in this action, and hold that the association has standing to pursue claims alleging injury to the association itself.\nThe association also argues that the trial court erred in considering the defendant\u2019s motion to dismiss the association\u2019s claims for lack of standing \u201cafter\u201d it had entered an order joining other homeowners as necessary parties. We disagree. Both rulings were part of the orders issued at the conclusion of the hearing on 25 February 2000. Further, the cases cited by plaintiff for the proposition that after ordering necessary parties joined, no actions may be taken that are \u201cdeterminative of a claim arising in the action,\u201d all address situations in which substantive matters were determined in the absence of necessary parties. In the case sub judice, the court took no actions affecting the resolution of the issues to be tried.\nThe parties raise several other issues in their briefs, including arguments about whether it is significant that the appellant is Creek Pointe Homeowner\u2019s Association Inc., while the original declaration referred to the Creek Pointe Homeowner\u2019s Association (emphasis added). We do not find it necessary to resolve these questions.\nFor the reasons discussed above, we hold that the trial court erred by dismissing all claims as to the Creek Pointe Homeowner\u2019s Association, and hold that the association has standing to pursue claims against this defendant on its own behalf. Accordingly, we reverse its order dismissing all claims of the Creek Pointe Homeowner\u2019s Association.\nReversed.\nJudge SMITH concurs.\nJudge WALKER concurring in part and dissenting in part.",
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        "text": "WALKER, Judge,\nconcurring in part and dissenting in part.\nI respectfully dissent from that part of the majority opinion which holds that while the North Carolina Planned Community Act (NCPCA) authorizes homeowners\u2019 associations as a general class to institute, defend or intervene in litigation, the statute does not abrogate the common law by advancing \u201ca new right upon homeowners\u2019 associations\u201d to representative standing. I agree with the position taken by both plaintiffs and third-party defendant Weyerhaeuser Real Estate Company, Inc. (Weyerhaeuser) that the NCPCA confers representative standing upon the Creek Pointe Homeowner\u2019s Association (Creek Pointe) to enforce the easement right of lot owners to Deep Creek Road consistent with its declaration, articles of incorporation and bylaws. See N.C. Gen. Stat. \u00a7 47F-3-102(4) (1999).\nThe NCPCA provides that homeowners\u2019 associations may \u201c[institute, defend, or intervene in litigation or administrative proceedings on matters affecting the planned community.\u201d Id. This section applies retroactively to homeowners\u2019 associations formed prior to the NCPCA\u2019s effective date of 1 January 1999. See N.C. Gen. Stat. \u00a7 47F-3-102(4), commentary (1999); see also Patrick K. Hetrick, Of \u201cPrivate Governments\u201d and the Regulation of Neighborhoods: The North Carolina Planned Community Act, 22 Campbell L. Rev. 1, 18 (1999). The majority concludes that this language \u201csimply reiterates\u201d the common law rule regarding homeowners\u2019 association standing. However, the language of N.C. Gen. Stat. \u00a7 47F-3-102(4) must be considered in conjunction with the overall scheme of planned communities and the objectives of the NCPCA. Admittedly, the statute does not automatically confer representative standing upon a homeowners\u2019 association in every case. Nevertheless, I construe the NCPCA to allow a homeowners\u2019 association, both as a real party in interest and in a representative capacity, to pursue litigation in matters affecting the common areas within the planned community; provided such actions are consistent with its declaration, articles of incorporation and bylaws.\nPractically speaking, a homeowners\u2019 association assures lot owners that basic needs such as ground care and street maintenance are fulfilled. However, the association also provides its lot owners with common emotional, psychological, and social advantages. See Harvey Rishikof and Alexander Wohl, Private Communities or Public Gov- emments: \u201cThe State Will Mark the Call,\u201d 30 Val. U. L. Rev. 509, 513 (1996). Agreed to rules regarding the use of common areas and restrictions on what the lot owners are allowed to display or include in their individual units provide a feeling of conformity that many find reassuring. Id. The creation of this sense of commonality requires lot owners, in forming a planned community, to make a collective assignment to the homeowners\u2019 association of certain interests enabling the lot owners to collectively take action in matters affecting the common areas. I believe that, upon the formation of a planned community, the NCPCA envisions that the lot owners collectively assign to the homeowners\u2019 association their real property interests in the common areas. Thus, when a matter arises, as in the case sub judice, affecting the use and control of a common area, the homeowners\u2019 association, in accordance with N.C. Gen. Stat. \u00a7 47F-3-102(4) is conferred with representative standing to institute litigation on behalf of the lot owners.\nMy reading of N.C. Gen. Stat. \u00a7 47F-3-102(4) is compatible with other statutory language dealing with real property interests found elsewhere in the NCPCA. For example, under N.C. Gen. Stat. \u00a7 47F-3-112, a homeowners\u2019 association, upon approval of eighty percent (80%) of the lot owners, may convey, encumber or otherwise voluntarily transfer portions of any common area within the planned community. See N.C. Gen. Stat. \u00a7 47F-3-112(a) (1999). Such transfers become \u201cfree and clear of any interest of any lot owner or the association in or to the common [area] conveyed or encumbered, including the power to execute deeds or other instruments.\u201d N.C. Gen. Stat. \u00a7 47F-3-112(b) (1999) (emphasis added). The NCPCA\u2019s official commentary notes this section was included to \u201cclarify that if conveyance or encumbrance is authorized by the required percentage of owners, common [areas] may be conveyed or encumbered free and clear of any easements, rights of way or claims which might be asserted by individual lot owners in or to that common area by virtue of their ownership of lots.\u201d N.C. Gen. Stat. \u00a7 47F-3-112, commentary (1999).\nOther provisions within the NCPCA demonstrate that upon formation the lot owners assign to the homeowners\u2019 association their real property interest in common areas. In an eminent domain proceeding affecting a common area, the NCPCA requires that the portion of an award attributable to the common area taken is to be paid to the association, rather than distributed pro rata to the lot owners. See N.C. Gen. Stat. \u00a7 47F-1-107 (1999). This statutory requirement ensures that all the lot owners in a planned community receive compensation for the taking. Consequently, if a body with eminent domain authority seeks to acquire a common area the court would be required to disperse any monetary compensation to the homeowners\u2019 association regardless of the disparate impact the eminent domain might have on the individual lot owners. Therefore, in an eminent domain proceeding, only the homeowners\u2019 association need be named as a party defendant. In such a case the homeowners\u2019 association\u2019s evidence establishing the damages may include testimony from individual lot owners.\nThe same rationale applies to the case sub judice. In order to receive compensatory or punitive damages, Creek Pointe would have to present evidence demonstrating how Happ\u2019s erection of a fence has damaged the planned community; including all the individual lot owners. Thus, permitting Creek Pointe representative standing ensures the protection of all the lot owners\u2019 interests.\nThe NCPCA\u2019s recognition of representative standing is also reflected in the statutory language dealing with the termination of a homeowners\u2019 association. In the event the lot owners decide to terminate the planned community, the NCPCA requires that upon termination the remaining common areas vest in the lot owners as tenants in common. See N.C. Gen. Stat. \u00a7 47F-2-118(e) (1999). This vesting of remaining common areas results in the return to the lot owners of the real property interest assigned to the homeowner\u2019s association at its inception.\nBased on my analysis of the NCPCA, I must disagree with the majority\u2019s conclusion that the third prong of Hunt has not been satisfied. I conclude that neither the claim asserted nor the relief requested requires the participation of the individual lot owners in this lawsuit. See Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 343, 53 L. Ed. 2d 384, 394 (1977). Weyerhaeuser as a third-party defendant supports the position of the plaintiffs in this action. Additionally, Weyerhaeuser created this subdivision and formed the homeowners\u2019 association. Obviously, evidence from Weyerhaeuser will be crucial in establishing the common areas within Creek Pointe, including Deep Creek Road. Notwithstanding defendant Happ\u2019s contention as to standing, he elected to assert a counterclaim against the homeowners\u2019 association alleging a superior right to this road which enables him to close it. Therefore, the individual lot owners are not pursuing a claim or relief for which their participation would be required.\nI concur with the majority opinion that the homeowners\u2019 association has standing to pursue claims for declaratory and injunctive relief.\n. For example, a homeowners\u2019 association would not have representative standing to initiate litigation on behalf of a lot owner whose sole cause of action is one for the breach of a contract with a builder.",
        "type": "concurring-in-part-and-dissenting-in-part",
        "author": "WALKER, Judge,"
      }
    ],
    "attorneys": [
      "Harris, Shields, Creech and Ward, P.A., by C. David Creech, for plaintiff-appellant.",
      "McCotter, McAfee, & Ashton, PLLC, by Charles K. McCotter, Jr., for defendant-appellee.",
      "Chesnutt, Clemmons, Thomas & Peacock, P.A., by Gary H. Clemmons for third party defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "CREEK POINTE HOMEOWNER\u2019S ASSOCIATION, INC. and KENNETH C. KREMER, Plaintiffs v. RICHARD HAPP, Defendant and Third-Party Plaintiff v. WEYERHAEUSER REAL ESTATE COMPANY, INC., Third-Party Defendant\nNo. COA00-556\n(Filed 18 September 2001)\n1. Appeal and Error\u2014 appealability \u2014 homeowner\u2019s association dismissed from suit \u2014 substantial right affected\nAn order dismissing a homeowner\u2019s association but not an individual from an action involving a fence across a road was interlocutory but appealable because a substantial right was affected.\n2. Standing\u2014 homeowner\u2019s association \u2014 case by case analysis\nThe North Carolina Planned Community Act (NCPCA), N.C.G.S. Chapter 47F, does not automatically confer standing upon homeowners\u2019 associations in every case, and questions of standing should be resolved by the courts in the context of the specific factual circumstances presented and with reference to the principles of law and equity as well as other North Carolina statutes that supplement the NCPCA.\n3. Standing\u2014 homeowner\u2019s association \u2014 representative capacity\nA homeowner\u2019s association lacked standing to bring suit as the representative of individual members of the association in an action arising from a fence placed across a road where, under Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, individual members would have standing to bring individual suits and the alleged injury was germane to the organization\u2019s purpose, but the participation of individual members was necessary because the financial impact of the fence upon individuals could vary from minimal to substantial. The association may have had standing in its representative capacity if it had sought only declarative or injunction relief and not monetary damages.\n4. Standing\u2014 homeowner\u2019s association \u2014 injury to the association\nA homeowner\u2019s association had standing to pursue claims alleging injury to the association itself from a fence placed across a road where the covenants stated that it had a duty to maintain the private roads within the development. The presence of a fence across a subdivision road clearly injures the association\u2019s ability to carry out this duty, the injury is causally connected to defendant\u2019s alleged behavior, and the injury likely would be redressed by a favorable verdict.\n5. Parties\u2014 joinder motions granted \u2014 additional motions considered\nThe trial court did not err in an action arising from the placement of a fence across a road by considering a motion to dismiss the homeowner\u2019s association\u2019s claims \u201cafter\u201d joining other homeowners as necessary parties. Both rulings were part of orders issued at the conclusion of a hearing and the court took no actions affecting the resolution of the issues to be tried. The cases cited by the association all addressed situations in which substantive matters were determined in the absence of necessary parties.\nJudge Walker concurring in part and dissenting in part.\nAppeal by plaintiff from order entered 21 March 2000 by Judge Arnold O. Jones in Pamlico County Superior Court. Heard in the Court of Appeals 14 March 2001.\nHarris, Shields, Creech and Ward, P.A., by C. David Creech, for plaintiff-appellant.\nMcCotter, McAfee, & Ashton, PLLC, by Charles K. McCotter, Jr., for defendant-appellee.\nChesnutt, Clemmons, Thomas & Peacock, P.A., by Gary H. Clemmons for third party defendant-appellee."
  },
  "file_name": "0159-01",
  "first_page_order": 191,
  "last_page_order": 205
}
