An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-194


Filed: 3 February 2004


v .                         Ashe County
                            No. 02 CVS 225

    Appeal by plaintiff from order entered 22 October 2002 by Judge Michael E. Helms in Ashe County Superior Court. Heard in the Court of Appeals 18 November 2003.

    E.K. MORLEY, PLLC, by E.K. Morley, for plaintiff appellant.

    J. Gary Vannoy; VANNOY, COLVARD, TRIPLETT & VANNOY, P.L.L.C., by Chad F. Brown; and KILBY & HURLEY, by John T. Kilby, for defendant appellee.


    Elizabeth Miller Reid (“plaintiff”) appeals from an order of the trial court granting summary judgment to Linda Sue Phillips (“defendant”).
    The evidence presented at the summary judgment hearing tended to show the following. Fielding V. Miller (“Miller”) died on 2 September 2001. Defendant was married to Miller's nephew and maintained a close familial relationship with Miller, much of the time living just a few miles from him and visiting with him almost daily. When defendant's husband died, defendant continued to maintain a close relationship with Miller until Miller's death. Miller had no children.    In 1998, Miller appointed defendant as his power of attorney. The document granting defendant power of attorney was kept in Miller's safe deposit box until his death. Although defendant knew that she was the executor of Miller's will, she was unaware she had been appointed as his power of attorney and thus never acted in that capacity.
    Prior to Miller's death, he had approximately $90,000 invested in Southern Community Bank (“Community Bank”). Unhappy with the services at Community Bank, Miller withdrew the money and placed it in a checking account. Decedent then called several banks, including First Charter Bank (“Charter Bank”), to inquire about their Certificate of Deposit (“CD”) accounts. Because Miller was confined to a nursing home, defendant met with a Charter Bank representative on Miller's behalf to open a joint CD account with rights of survivorship. Vickie Yearick (“Yearick”), the bank representative, telephoned Miller at his nursing home to question him specifically about the account and the terms provided therein. The following day, Yearick met with Miller and defendant at the nursing home and again questioned Miller regarding the account. Yearick, Miller and defendant signed the necessary papers to open a joint CD account with the right of survivorship. Miller died 44 days later.
    Plaintiff, Miller's niece, filed a complaint alleging that the account at Charter Bank was created under undue influence by defendant, and as such, defendant was not entitled to the money therein. Defendant presented an affidavit prepared by Yearick andmoved the trial court for summary judgment in her favor. Plaintiff submitted her own affidavit in opposition to summary judgment. The trial court granted summary judgment to defendant and dismissed plaintiff's complaint. Plaintiff appeals.

    Plaintiff argues that the trial court erred by granting defendant's summary judgment motion because there are genuine issues of material facts regarding (1) whether Miller created the joint account under undue influence, and (2) whether Miller created the joint account because of constructive fraud. We affirm the order of the trial court.
    Before we assess the merits of plaintiff's claim, we note that plaintiff would like us to review the order of the trial court under the legal doctrine of constructive fraud, which was not argued in either plaintiff's complaint or at the summary judgment hearing. Plaintiff's complaint is entitled “Complaint For Rescission Of Written Instrument Based Upon Undue Influence.” At the summary judgment hearing, plaintiff failed to argue constructive fraud. Although this Court may consider the pleadings amended to conform with the evidence raised at the summary judgment hearing, constructive fraud was never raised at the summary judgment hearing and thus will not be so raised here. See Stephenson v. Warren, 136 N.C. App. 768, 771, 525 S.E.2d 809, 811 (2000). The law on changing legal theories on appeal is clear that “parties [may not] swap horses between courts in order to get a better mount in the Supreme Court, nor is [the Court ofAppeals] a remount station.” Horton v. New South Ins. Co., 122 N.C. App. 265, 270, 468 S.E.2d 856, 859 (1996) (citations omitted).
    The dispositive issue on appeal is whether there are genuine issues of material fact regarding plaintiff's undue influence claim.
    Summary judgment is appropriate where there are no genuine issues of material fact and where the movant is entitled to judgment as a matter of law. Hummer v. Pulley, Watson, King & Lischer, P.A., 140 N.C. App. 270, 278, 536 S.E.2d 349, 354 (2000), disc. review denied, 357 N.C. 459, 585 S.E.2d 758 (2003); In re Estate of Whitaker, 144 N.C. App. 295, 297-98, 547 S.E.2d 853, 856 (2001). Rule 56(c) of the North Carolina Rules of Civil Procedure provides that summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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.” N.C.G.S. § 1A-1, Rule 56(c) (2001). Mere allegations and denials in a party's pleadings will not survive a summary judgment motion. In re Will of McCauley, 356 N.C. 91, 101, 565 S.E.2d 88, 95 (2002). The nonmoving party “must by affidavit, or other means provided in the Rules, set forth specific facts showing a genuine issue of fact for the jury; otherwise, 'summary judgment, if appropriate, shall be entered against [the nonmoving party].'” McCauley, 356 N.C. at 101, 565 S.E.2d at 95 (quoting N.C.G.S. §1A-1, Rule 56(e)).
    In the instant appeal, plaintiff argues that the trial court erred by granting defendant's summary judgment motion as to plaintiff's undue influence claim. We disagree.
    Undue influence is more than “mere persuasion, because a person may be influenced to do an act which is nevertheless his voluntary action.” Whitaker, 144 N.C. App. at 300, 547 S.E.2d at 857 (quoting In re Sechrest, 140 N.C. App 464, 468, 537 S.E.2d 511, 515 (2000)). “The influence necessary to nullify a testamentary instrument is the 'fraudulent influence over the mind and will of another to the extent that the professed action is not freely done but is in truth the act of the one who procures the result.'” Whitaker, 144 N.C. App. at 300, 547 S.E.2d at 857-58 (quoting Sechrest, 140 N.C. App. at 468-69, 537 S.E.2d at 515).
    This case is analogous to In re Whitaker, 144 N.C. App. 295, 547 S.E.2d 853. In Whitaker, the decedent left her estate to one daughter (“Oma”), to the exclusion of her two remaining daughters (“Lucy and Verlie”). 144 N.C. App. at 296, 547 S.E.2d at 855. Lucy and Verlie challenged the decedent's will, arguing that Oma exerted undue influence over the decedent and thus the decedent's will was created as a result of that influence. Id. Oma moved for summary judgment. Id. Lucy and Verlie submitted a joint affidavit in opposition of summary judgment, alleging that decedent was “easily swayed” by Oma, Oma saw decedent daily, and that Oma controlled all of decedent's activities. 144 N.C. 301, 547 S.E.2d at 858. In support of her summary judgment motion, Oma submitted the affidavit of an employee of the law office which drafted the decedent's will. 144 N.C. App. at 296, 547 S.E.2d at 855. The employee testified that she spoke with the decedent several times to verify that decedent intended her will to exclude Lucy and Verlie. Id. The employee further testified that decedent's intent was clear. 144 N.C. App. at 297, 547 S.E.2d at 855. Oma also submitted her own affidavit stating that the decedent had made all of her own financial decisions until her death. 144 N.C. App. at 297, 547 S.E.2d at 856.
    In concluding that summary judgment was proper in Whitaker, this Court noted that Lucy and Verlie failed to present specific evidence that the decedent's will was the result of the overpowering and fraudulent influence exerted by Oma. 144 N.C. App. at 302, 547 S.E.2d at 859. In particular, this Court noted that the decedent's will was not executed in Oma's home and subject to Oma's constant supervision. 144 N.C. App. at 302, 547 S.E.2d at 858. Lucy and Verlie failed to present evidence to rebut the law office employee's testimony that she and the decedent were alone when she explained the will provisions to the decedent. Id. Lucy and Verlie further failed to present evidence that they had little, if any, opportunity to speak with the decedent. Id. In fact, Lucy and Verlie stated that they visited with the decedent on a weekly basis up until her death. 144 N.C. App. at 302, 547 S.E.2d at 859.    Similar to the facts presented in Whitaker, defendant herein submitted an affidavit of Yearick, a bank representative, stating that Miller agreed with the terms of the account and was “completely lucid and clear of mind.” Yearick verified that Miller had made personal calls to Charter Bank to inquire about opening a CD account. Yearick's affidavit further stated that she explained the terms of the account in detail to Miller on two occasions. Yearick telephoned Miller at his nursing home while defendant was in her office to confirm Miller's intentions. Yearick subsequently met with Miller and defendant to further discuss the provisions of the account. Yearick stated in her affidavit “I [did] not recall [defendant] saying anything to [Miller] while I was there. From what I directly observed in talking to [Miller] on the phone and in person; I did not see any behavior of [defendant] that I would consider coercive or undue influence exercised on [Miller].” Plaintiff did not present any evidence to rebut Yearick's affidavit.
    Furthermore, although Miller was 78 years old when he created the account, all the evidence shows that he controlled his finances until the day he died, including the creation of the CD account in question. Miller did not live with defendant, nor was he under her constant supervision. Plaintiff does not allege that defendant prevented her from seeing Miller and in fact concedes that she saw him a few days before his death.
    We conclude that plaintiff has failed to meet her burden to present specific facts showing that the CD account was executedsolely as a result of defendant's fraudulent and overpowering influence over Miller. See Whitaker, 144 N.C. App. at 302, 547 S.E.2d at 859. As such, we affirm the trial court's entry of summary judgment in favor of defendant.
    Judges WYNN and ELMORE concur.
    Report per Rule 30(e).

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