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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
ESTATE OF CHRISTIAN E. CARLSEN, Plaintiff, v. ROBERTA C. CARLSEN,
Trustee, ROBERTA C. CARLSEN, Individually, SHIRLEY C. HART,
ROBERTA JANE CARLSEN, and CHRISTIAN EDWARD CARLSEN, Defendants
IN THE MATTER OF THE WILL OF CHRISTIAN ELMER CARLSEN, Deceased
Filed: 3 August 2004
Declaratory Judgments; Estates_-caveat proceeding_-Rule 60 motion--validity of
The trial court did not abuse its discretion in a declaratory judgment action and caveat
proceeding by denying appellants' Rule 60 motion to set aside judgment based on their attorney's
alleged gross negligence in urging them to sign a stipulation which invalidated a 1999 will, the
revocation of a trust, and a promissory note, because: (1) the language of the stipulation was
sufficiently definite and certain as to its impact and the parties were present and aware of their
actions; (2) evidence that one of the parties was distraught when she signed the stipulation is
insufficient to establish that either she or her sister did not assent to the stipulation; (3) while the
trial court found that appellants established mere negligence on the part of their counsel, the trial
court also found that appellants' counsel was not grossly negligent and did not engage in any
intentional misconduct or any conduct that would merit relief under Rule 60(b); and (4)
appellants did not show a meritorious position since the stipulation decided the case against
them, ratification was not necessary for the stipulation to be found valid, and appellants admitted
that stipulations are judicial admissions.
Appeal by defendants Roberta Jane Carlsen and Shirley C. Hart
from order entered 27 June 2002 by Judge J. B. Allen, Jr. in
Alamance County Superior Court. Heard in the Court of Appeals 14
Adams Kleemeier Hagan Hannah & Fouts, P.L.L.C., by Gary L.
Beaver for defendant-appellants Roberta Jane Carlsen and
Shirley C. Hart.
Vernon, Vernon, Wooten, Brown, Andrews & Garrett, P.A., by
Benjamin D. Overby and Thomas R. Peake, II for defendant-
The facts of the case were previously recorded in the
unpublished opinion Estate of Carlsen v. Carlsen, COA02-463 (filed
6 May 2003). Christian Elmer Carlsen (decedent) married Roberta C. Carlsen
(Mrs. Carlsen) on 3 December 1932. The couple lived together in
Fort Lauderdale, Florida until 1997. Decedent and Mrs. Carlsen had
three children during their marriage, including Christian Edward
Carlsen (Christian), Shirley Hart (Shirley) and Roberta Jane
Carlsen (Roberta Jane). Decedent moved in with his daughter,
Roberta Jane, in 1997. Decedent lived with Roberta Jane until his
Decedent executed a will in 1994. This will appointed Mrs.
Carlsen as the personal representative and referred to a
simultaneously created trust for the benefit of Mrs. Carlsen,
Christian, Shirley and Roberta Jane. On 18 November 1999, eleven
days before his death, decedent executed a document titled
Revocation of Trust that terminated this trust. Decedent
executed a promissory note to Roberta Jane in the amount of
$200,000.00 on 18 November 1999. Decedent also executed a will on
18 November 1999. The division of decedent's property according to
the 1999 will differed significantly from the terms of the 1994
will. The 1999 will divided the estate equally among the children
with a gift to Mrs. Carlsen. The 1999 will also appointed Roberta
Jane as personal representative of decedent's estate. Decedent
passed away on 29 November 1999.
Decedent's estate requested a declaratory judgment on 28
February 2000. The purpose of this action was to determine and
declare the legal rights of the parties to the personal property
held in the trust created in 1994. Mrs. Carlsen and Christian
counterclaimed for declaratory judgment against the estate. Mrs.Carlsen also filed a caveat to the 1999 will on 22 December 2000.
The caveat alleged that the 1999 will was invalid because decedent
lacked testamentary capacity to execute it, that Roberta Jane
exerted undue influence over decedent, that decedent executed the
will as a result of duress from Roberta Jane and that the will was
a product of fraud on the part of Roberta Jane. The declaratory
judgment action and the caveat proceeding were consolidated by a
consent order dated 8 February 2001.
After depositions were taken from two doctors who both agreed
that decedent lacked capacity to execute the 1999 documents,
Roberta Jane and Shirley, upon the advice of their then counsel
Robert Johnston (Johnston), signed a stipulation admitting that
decedent lacked the testamentary capacity to execute the 1999
will and the trust revocation and promissory note, and that each of
the purported documents was invalid and null and void. The trial
court entered a judgment based on the stipulation which invalidated
the 1999 will and the revocation of trust and promissory note.
Johnston apparently committed suicide in October of 2001.
Appellants filed a motion praying the court to vacate the judgment
under Rule of Civil Procedure 60, arguing that attorney Johnston
had committed gross negligence in urging them to sign the
stipulation. From the denial of that motion appellants bring this
In determining whether to grant relief under Rule 60(b), the
trial court has sound discretion which will be disturbed only upona showing that the trial court abused its discretion. Briley v.
, 348 N.C. 537, 547, 501 S.E.2d 649, 655 (1998).
Rule 60(b) provides relief from a judgment for:
(b) Mistakes; inadvertence; excusable
neglect; newly discovered evidence; fraud,
etc. -- On motion and upon such terms as are
just, the court may relieve a party or his
legal representative from a final judgment,
order, or proceeding for the following
(1) Mistake, inadvertence, surprise, or
(2) Newly discovered evidence which by
due diligence could not have been discovered
in time to move for a new trial under Rule
(3) Fraud (whether heretofore denominated
intrinsic or extrinsic), misrepresentation, or
other misconduct of an adverse party;
(4) The judgment is void;
(5) The judgment has been satisfied,
released, or discharged, or a prior judgment
upon which it is based has been reversed or
otherwise vacated, or it is no longer
equitable that the judgment should have
prospective application; or
(6) Any other reason justifying relief
from the operation of the judgment.
N.C. Gen. Stat. § 1A-1, Rule 60(b) (2003).
Appellants argue that the trial court erred by denying the
Rule 60(b) motion. In support of this, appellants have asserted in
their brief one assignment of error with multiple sub-parts, ten of
these sub-parts appearing in their brief on appeal. Four of the
arguments are not supported by any authority in their brief, and
are therefore deemed abandoned under Rule of Appellate Procedure
28(b)(6). The matter of attorney's fees was resolved by the
companion appeal captioned COA02-463, cited above, which was
decided by this Court in an opinion filed 6 May 2003. Theremaining arguments are as follows: that the trial court erred in
finding that attorney Johnston's acts were not grossly negligent;
that the trial court erred in finding that the appellants did not
show a meritorious position on the merits; that the trial court
erred in treating Mrs. Carlsen's evidence as a sworn statement;
that the ratification of the judgment by appellants' attorney was
not effective; and that the trial court erred in finding that the
stipulation was binding as a judicial admission. All of these
arguments are brought to support the assignment of error to the
denial of the Rule 60 Motion.
The dispositive basis for the appeal is essentially the effect
of the stipulation, which was signed by the appellants. If the
stipulation is valid, then the other errors assigned by the
appellants threaten no prejudice, the appeal in its entirety has no
merit, and the denial of the Rule 60 Motion by the trial court was
appropriate. After considering the arguments on appeal, the
record, and the transcripts, we hold that the stipulation was
indeed valid and we affirm the trial court's denial of the Rule 60
Any material fact that has been in controversy between the
parties may be established by stipulation. Thomas v. Poole
N.C. App. 239, 241, 282 S.E.2d 515, 517 (1981), disc. review
, 304 N.C. 733, 287 S.E.2d 902 (1982). A stipulation need
not follow any particular form, but its terms must be sufficiently
definite and certain as to form a basis for judicial decision, and
it is essential that the parties or those representing them assent
to the stipulation. 83 C.J.S. Stipulations § 13 (2000). A factorto consider in determining whether a stipulation was entered into
properly is whether the party had competent representation of
The effect of a stipulation by the parties withdraws a
particular fact from the realm of dispute. Despathy v. Despathy
149 N.C. App. 660, 662, 562 S.E.2d 289, 291 (2002). In order to
set aside a stipulation, one of the parties to the stipulation may
make a motion to set aside the stipulation in the court where the
action is pending. See R. R. Co. v. Horton and R. R. Co. v.
, 3 N.C. App. 383, 389, 165 S.E.2d 6, 10 (1969). See also
Sharp v. Sharp
, 116 N.C. App. 513, 521, 449 S.E.2d 39, 43 (1994).
It is within the discretion of the court to set aside a
stipulation of the parties relating to the conduct of a pending
cause, where enforcement would result in injury to one of the
parties and the other party would not be materially prejudiced by
its being set aside. See Lowery v. Locklear Constr.
, 132 N.C. App.
510, 514, 512 S.E.2d 477, 479 (1999) (citing
73 Am. Jur. 2d
Stipulations § 13 (1974)). A stipulation entered into under a
mistake as to a material fact concerning the ascertainment of which
there has been reasonable diligence exercised is the proper subject
for relief. Id.
73 Am. Jur. 2d Stipulations § 14 (1974)).
Other proper justifications for setting aside a stipulation
include: misrepresentations as to material facts, undue influence,
collusion, duress, fraud, and inadvertence. Lowery
, 132 N.C. App.
at 514, 512 S.E.2d at 479; see also Thomas
, 54 N.C. App. at 242,
282 S.E.2d at 517 (just cause for setting aside a stipulationincludes mistake, inadvertence, and stipulations made by counsel
In the present case, the trial court made thorough findings of
fact in the order denying the Rule 60(b) motion. The trial court
found that a deposition was taken of Dr. Kenneth Fath in which he
testified that the decedent lacked testamentary capacity to execute
the 1999 will and documents. The trial court also found that the
deposition of Dr. Bruce B. Hughes was taken at appellant Roberta
Jane's request, in which Dr. Hughes also testified that he believed
that the decedent lacked testamentary capacity. The trial court
included in the order the exact language of the stipulation in its
entirety, which ended with the statement that the 1999 will and
documents are invalid and null and void. We conclude that the
language of the stipulation was sufficiently definite and certain
to form a basis for a judicial decision.
Appellants' claim that Roberta Jane was distraught when she
signed the stipulation is insufficient to establish that either
Roberta Jane or Shirley did not assent to the stipulation.
Furthermore, while the trial court found that appellants
established mere negligence on the part of their counsel, the
trial court also found that appellants' counsel was not grossly
negligent and did not engage in any intentional misconduct or any
conduct that would merit relief under Rule 60(b). This finding and
the trial court's resulting conclusion are consistent with case
law, which holds that although attorney error may qualify as a
reason for granting relief from judgment under certain conditions,
neither ignorance nor carelessness on the part of an attorney willprovide grounds for such relief. Briley v. Farabow
, 348 N.C. 537,
546-47, 501 S.E.2d 649, 655 (1998).
In such a case where the testimony is in agreement, the
stipulation is clear as to its impact, and the parties were present
and aware of their actions, the stipulation is valid, and the trial
court does not abuse its discretion to decline to set aside such a
stipulation. Moreover, for the same reason, the trial court here
did not abuse its discretion in denying the Rule 60 Motion.
The trial court also did not err in finding that appellants
did not show a meritorious position, since the stipulation decided
the case against them. The trial court's consideration of Mrs.
Carlsen's amended response was not prejudicial in light of the
stipulation. The trial court did not err in finding that
appellants had ratified the stipulation since no ratification was
necessary for the stipulation to be found valid. Finally, the
trial court did not err in finding that the stipulation was binding
as a judicial admission, and the appellants admit in their brief
that stipulations are judicial admissions. We therefore hold that
the trial court did not err in denying the Rule 60 Motion. The
order of the trial court is
Judges WYNN and TIMMONS-GOODSON concur.
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