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Issue  186  Article  319
Published:  3/1/2011

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Necessary Parties Really Are Necessary
Chris Burti, Vice President and Senior Legal Counsel

Several common title issues tend to evoke a common question when the title issues must be corrected: Who needs to sign a corrective instrument or who must be made a party to corrective litigation? This question commonly arises in situations where termination of restrictive convent enforcement rights are desired, where an unopened road is sought to be closed or where a purported or actual easement needs to be terminated. The obvious answer is "Everyone who has an interest or an enforcement right." That answer, while obvious, is seldom the one practitioners wish to hear and the discussion often turns to one of "Who can we get by with?"

Boone v. Rogers, COA10-426, filed in the North Carolina Court of Appeals on March 1, 2011 reinforces the fact that the answer to the latter query is no different than the answer to the initial query. In Boone, the Court of Appeals determined that the trial court entered a summary Judgment order in favor of the defendant without all of the necessary parties, vacated the order and remanded the case to the trial court "'so that a new trial may be had upon joinder of all necessary parties.'"

The procedural background, as agreed by the parties and stated by the Court as follows (emphasis in the original):

At the time of the institution of this action, the Plaintiffs-Appellees owned a tract of land in the Cheoah Township of Graham County. The Defendant-Appellant and his wife, who was not made a party to this action, owned an adjoining tract or parcel of land. A dispute arose as to the correct dividing line between the lands of the Plaintiffs-Appellees and the Defendant-Appellant and the Plaintiffs-Appellees sued to establish ownership of their land and for trespass, punitive damages and attorney fees.

The Defendant-Appellant answered the Plaintiffs-Appellees' Complaint and counterclaimed for title to the land claimed by the Defendant-Appellant and his wife, for trespass and for a declaratory judgment that the Plaintiffs-Appellees had no right or title to a road crossing the lands of the Defendant-Appellant and his wife. This appeal involves only the issues concerning the Defendant-Appellant's Counterclaim for declaratory judgment that the Plaintiff-Appellees own no easement for a road across the land of the Defendant-Appellant and his wife.


At trial, the Plaintiff-Appellees contended that the evidence presented established that they owned an easement by necessity and, at the close of all the evidence, the Plaintiffs-Appellees moved for a directed verdict, which motion was denied. (emphasis added) (citations omitted).

The jury, after hearing the evidence, determined that the plaintiffs were not entitled to the claimed easement and the trial court granted the plaintiffs' motion for JNOV.

The opinion states that the defendant alleged in his counterclaim that he owns the property with his wife in fee simple absolute and that "the Plaintiffs claim to own some road right or easement over and across the lands[.]" The defendant alleged the facts substantiating his source of title and the Court affirmed that "deeds included in the record on appeal confirm that defendant and his wife, Wanda Rogers, own the real property as tenants by the entirety, and this real property is the land upon which plaintiffs claim the right to an easement."

The Court of Appeals, citing Rice v. Randolph, 96 N.C. App. 112, 113, 384 S.E.2d 295, 296 (1989), on its own imitative raised the issue of necessary parties because Ms. Rogers, one of the owners of an undivided interest in the real property which is the subject of the dispute in this case, was not included as a party. The Court's explication of the opinion in Rice is worth setting out in its entirety as it illustrates the necessity of involving all properly interested parties in corrective measures.

Rule 19 of the North Carolina Rules of Civil Procedure requires that those who are united in interest must be joined as plaintiffs or defendants. A person is united in interest with a party when that person's presence is necessary for the court to determine the claim before it without prejudicing the rights of a party or the rights of another who is not before the court. Necessary parties are those who have or claim material interests in the subject matter of a controversy, and those interests will be directly affected by an adjudication of the controversy. When there is an absence of necessary parties, the trial court should correct the defect ex mero motu upon failure of a competent person to make a proper motion. A judgment which is determinative of a claim arising in an action in which necessary parties have not been joined is null and void. Id. at 113, 384 S.E.2d at 296-97 (citation and quotation marks omitted).

In Rice, [p]laintiffs brought suit to enjoin defendants from interfering with plaintiffs' user rights in an easement or right of way created by deeds referencing a recorded plat of a subdivision in which the parties' land is located. Defendants raised abandonment of the easement as a defense and also counterclaimed for a declaration of their rights to the land described in their deed, which purported to convey fee ownership to a tract of land consisting of a portion of lot 1 in the subdivision as well as a portion of the easement. Defendants claimed ownership of that portion of the easement by virtue of seven years' adverse possession under color of title and, alternatively, by twenty years' adverse possession.

A jury answered the questions of abandonment and adverse possession in favor of defendants, and the trial court entered judgment decreeing defendants owners of the property described in their deed free and clear of any claims of plaintiffs to the right of way shown on the subdivision plat and further enjoining plaintiffs from interfering with or going upon defendants' property.

Id. at 112-13, 384 S.E.2d at 296.

The plaintiffs in Rice appealed, but this Court determined it need not consider plaintiffs' issues

as "the verdict and judgment must be vacated because necessary parties were absent from the action." Id. at 113, 384 S.E.2d at 296. This Court vacated and remanded the action for the joinder of necessary parties because

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. Id. at 114, 384 S.E.2d at 297.

In the case under current discussion, the defendant and his wife owned the subject real property as tenants by the entireties. Citing Davis v. Bass, 124 S.E. 566, 567-68 (N.C. 1924) the opinion to court recognized that one spouse cannot convey the interest separately and that Ms. Rogers, "'interests will be directly affected by an adjudication of the controversy.' Rice at 113, 384 S.E.2d at 297."

Ludwig v. Hart, 40 N.C.App. 188, 190, 252 S.E.2d 270, 272, disc. review denied, 297 N.C. 454, 256 S.E.2d 807 (1979) makes it clear that N.C.G.S. Section 1A-1, Rule 19(a) "requires that a person must be joined as a party to an action if that person is 'united in interest' with another party to the action." And a person is united in interest with another party "when that person's presence is necessary in order for the court to determine the claim before it without prejudicing the rights of a party before it or the rights of others not before the court." "A judgment which is determinative of a claim arising in an action to which one who is 'united in interest' with one of the parties has not been joined is void." This is so because joinder is necessary to jurisdiction and jurisdiction is essential to the validity of the judgment. See: Page v. Miller, 252 N.C. 23, 113 S.E.2d 52 (N.C. 1960).

These cases make absolutely clear that if a necessary party is not properly involved in a curative title measure, it will not be effective as to such a party. The cases also point up the problem that arises when litigation affecting property is commenced and there is a failure to serve a necessary party. In such cases, failing to properly serve a party has the same effect as failing to join them and for the same reasons. Proceed with caution if taking shortcuts in curative measures is being urged by the owners in the interest of time and convenience.

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