                           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.
                                       -2-
      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,
                                         -3-
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).
                                -4-



                            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
                     -5-
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.
                              -6-
         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
                                     -7-
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.
