                             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
