An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1322


Filed: 2 August 2005

Administratrix of the Estate
of Helen O. Lanning, deceased,

v .                             Stanly County
                                No. 02 CVS 1017

    Appeal by defendant from judgments entered 10 June 2004 by Judge Steve A. Balog in Stanly County Superior Court. Heard in the Court of Appeals 18 May 2005.

    James A. Phillips, Jr., for plaintiff-appellee.

    Hartsell & Williams, P.A., by Samuel F. Davis, Jr., for defendant-appellant.

    CALABRIA, Judge.

    Debra S. Valentine (“defendant”) appeals the grant of partial summary judgment to Sondra O. Shuping (“plaintiff”), in her capacity as administratrix of the estate of Helen O. Lanning (the “estate”), with respect to (1) plaintiff's claims for the return of certain bank account proceeds to the estate and (2) defendant's defense and counterclaim for reimbursement of funds expended on behalf of the estate. We dismiss defendant's appeal as interlocutory.
    Defendant is the great-niece of Helen O. Lanning (the “decedent”), a widow who died intestate on 10 October 1999. On 9February 1999, the decedent, accompanied by defendant, opened a CAP Account with First Union National Bank (the “CAP Account”) in order to consolidate various banking and investment accounts. The decedent established the CAP Account as a joint account with right of survivorship in the names of herself and defendant and consolidated $14,010.75 in the CAP Account by closing two First Union accounts. From February 1999 until her death in October, the decedent deposited her Social Security and retirement benefits into the CAP Account and paid her monthly bills from the account. In April 1999, the decedent added a mutual fund investment of $10,757.41 to the CAP Account.
    On 21 June 1999, the decedent executed a Financial Power of Attorney designating defendant her attorney-in-fact. Also on that date, the decedent executed a revocable trust as grantor and trustee entitled “The Helen O. Lanning Living Trust.” (the “trust”). In the trust, defendant was named successor trustee and one of three residuary beneficiaries. The decedent expressed an intent to fund the trust with the following: a Wachovia certificate of deposit, a Branch Banking & Trust certificate of deposit, a numbered bank account, a First Union brokerage account, and the household furnishings and personal possessions located at her residence. On 28 July 1999, the decedent transferred a BB&T account and an Edward Jones investment account into the trust after which she made no further transfers into the trust.
    On 2 August 1999, the date the power-of-attorney was filed with the Stanly County Register of Deeds, defendant transferred theproceeds of six certificates of deposit (five from Home Savings Bank and one from First Citizens Bank) totaling $66,405.23 into the CAP Account. Defendant also transferred a $30,552.82 Wachovia certificate of deposit (the “Wachovia CD”), with an account number different than that referenced in the trust, from the decedent's name into the trust. On 10 September 1999, the decedent transferred $25,000.00 from the CAP Account to purchase an annuity with defendant as the named beneficiary.
    On 30 July 2002, plaintiff filed a complaint alleging defendant converted to her own use the $66,405.23 and the Wachovia CD and also alleging defendant breached her fiduciary duty to the decedent under the power-of-attorney. Defendant raised the defenses of authorization under the power-of-attorney, authorization by decedent, and ratification by decedent. Defendant counterclaimed for reimbursement or, in the alternative, a setoff of $15,408.44 paid from the CAP account for the decedent's funeral expenses, debts, administrative expenses, and maintenance of real property. Defendant also counterclaimed for the transfer of the furnishings and personal items located at the decedent's residence for distribution under the trust.
    Both parties moved for summary judgment on all claims. In support of her motion, plaintiff submitted a testamentary document purportedly handwritten and signed by decedent days before her death but not offered for probate, which attempted to divide the CAP Account among her several nieces. On 10 June 2004, the trial court ruled on the parties' summary judgment motions as follows:(1) in favor of the plaintiff on the claims related to the Wachovia CD and defendant's counterclaim for reimbursement; (2) in favor of defendant on the counterclaim regarding the decedent's furnishings and personal effects; and (3) against both parties' motions with respect to the $66,405.23 transfer into the CAP Account. Regarding the denial of summary judgment, the trial court commented that the power-of-attorney did not give defendant authority to transfer $66,405.23 into the CAP account as a gift to herself. However, the trial court stated there was a question of fact regarding whether the decedent ratified the transfer based on the evidence that she regularly dealt with the CAP account after the transfer. Defendant appeals the trial court's summary judgment in favor of plaintiff with regard to the Wachovia CD and defendant's counterclaim for reimbursement.
    The dispositive issue is whether we must dismiss defendant's appeal as interlocutory.     Interlocutory orders or judgments “are those made during the pendency of an action which do not dispose of the case, but instead leave it for further action by the trial court in order to settle and determine the entire controversy.” Carriker v. Carriker, 350 N.C. 71, 73, 511 S.E.2d 2, 4 (1999). Generally, the appeal of an interlocutory judgment “is fragmentary and premature and will be dismissed.” Hoots v. Pryor, 106 N.C. App. 397, 400, 417 S.E.2d 269, 272 (1992). Nevertheless, a party may appeal an interlocutory order under two circumstances:
        (1) the order is final as to some claims or parties, and the trial court certifies pursuant to [N.C. Gen. Stat.] § 1A-1, Rule 54(b) that there is no just reason to delaythe appeal, or (2) the order deprives the appellant of a substantial right that would be lost unless immediately reviewed.

Currin & Currin Constr., Inc. v. Lingerfelt, 158 N.C. App. 711, 713, 582 S.E.2d 321, 323 (2003). See also N.C. Gen. Stat. §§ 1- 277(a), 7A-27(d) (2003) (establishing the right to appeal an interlocutory order or determination where a substantial right would be lost absent immediate review). In the instant case, a determination of plaintiff's claims with respect to the $66,405.23 transfer into the CAP Account is still pending before the trial court. Accordingly, defendant's appeal is interlocutory in that further action by the trial court is required to determine the entire controversy between the parties.
    In support of her interlocutory appeal, defendant asserts a substantial right to have all of her factually related claims tried before the same judge and jury. Defendant argues the possibility of undergoing two trials on the same issues of fact could prejudice her by resulting in inconsistent verdicts. “Whether a substantial right will be prejudiced by delaying appeal must be determined on a case by case basis.” Stafford v. Stafford, 133 N.C. App. 163, 165, 515 S.E.2d 43, 45 (1999). To determine whether a substantial right exists, “a two-part test has developed - the right itself must be substantial and the deprivation of that substantial right must potentially work injury if not corrected before appeal from final judgment.” Goldston v. American Motors Corp., 326 N.C. 723, 726, 392 S.E.2d 735, 736 (1990).     “[T]he possibility of undergoing a second trial affects a substantial right . . . when the same issues [of fact] are present in both trials, creating the possibility that a party will be prejudiced by different juries in separate trials rendering inconsistent verdicts on the same factual issue.” Green v. Duke Power Co., 305 N.C. 603, 606, 290 S.E.2d 593, 595 (1982). Therefore, “the right to avoid the possibility of two trials on the same issues [of fact] is a substantial right that may support immediate appeal.” Alexander Hamilton Life Ins. v. J&H Marsh & McClennan, 142 N.C. App. 699, 701, 543 S.E.2d 898, 900 (2001). However, “[i]f the appellant's rights 'would be fully and adequately protected by an exception to the order that could then be assigned as error on appeal after final judgment,' there is no right to an immediate appeal.” Horne v. Nobility Homes, Inc., 88 N.C. App. 476, 477, 363 S.E.2d 642, 643 (1988) (quoting Bailey v. Gooding, 301 N.C. 205, 210, 270 S.E.2d 431, 434 (1980)).
    Accordingly, we must determine whether inconsistent verdicts could occur absent immediate appeal of the trial court's grant of partial summary judgment to plaintiff. Regarding the Wachovia CD, there are three circumstances under which the defendant could have properly made the transfer: (1) the decedent gave defendant authorization under the power-of-attorney; (2) the decedent gave defendant authorization particular to the Wachovia CD; or (3) the decedent ratified the transfer.
    Whether defendant had authorization under the power-of- attorney is a question of law for the courts. See Hutchins v.Dowell, 138 N.C. App. 673, 676-77, 531 S.E.2d 900, 902-03 (2000) (interpreting whether a power-of-attorney met the requirements of N.C. Gen. Stat. § 32A-14.1 (2003) to determine if an attorney-in- fact had authority to deed real property to herself under the power-of-attorney). Therefore, if the first circumstance were at issue, the partial summary judgment regarding the Wachovia CD transfer could be addressed on appeal after a verdict on the $66,405.23 transfer without raising the possibility of inconsistent jury verdicts. Concerning the second and third circumstances, the issues of whether the decedent authorized or ratified the Wachovia CD transfer are factual issues separate from whether the decedent authorized or ratified the $66,405.23 transfer. The six certificates of deposit that constituted the $66,405.23 transfer were from banks other than Wachovia and therefore the $66,405.23 transfer was totally unrelated to the Wachovia CD transfer. Moreover, the $66,405.23 transfer was into the CAP Account, which was used by the decedent after the $66,405.23 transfer, whereas no evidence indicates the Wachovia CD transfer might have been ratified in that the decedent did not deal with the trust after the Wachovia CD transfer.
    In sum, reversal of the partial summary judgment regarding the Wachovia CD transfer and a subsequent factual finding that the transfer was or was not ratified or authorized would not be inconsistent with a finding that the $66,405.23 transfer was or was not authorized or ratified. Similarly, the factual issues surrounding whether defendant is entitled to reimbursement orsetoff are separate from those surrounding the two transfers. Therefore, the reversal of the partial summary judgment regarding defendant's reimbursement or setoff claim and a subsequent factual finding that defendant was or was not entitled to a reimbursement or setoff would not be inconsistent with any combination of outcomes concerning the Wachovia CD transfer and $66,405.23 transfer.
    For the foregoing reasons, we hold defendant's rights would be fully and adequately protected in an appeal of the partial summary judgments after a final judgment resolving the entire controversy between the parties. Accordingly, defendant has failed to establish a substantial right, and we dismiss defendant's appeal as premature.
    Judges McGEE and ELMORE concur.
    Report per Rule 30(e).

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