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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.
LAMARR GARLAND FORBIS, Co-Executor of the Estate of Bonnie S.
Newell; LAMARR GARLAND FORBIS, Attorney-in-Fact For Augusta Lee
Sustare, Plaintiff, v. BEVERLY LEE NEAL, Defendant
Filed: 17 January 2006
Fiduciary Relationship--attorney-in-fact--co-executor of estate--joint accounts with right of
survivorship_-payable on death beneficiary--rebuttable presumption of fraud--dead man's
The trial court did not err by granting summary judgment in favor of defendant and by
denying the same to plaintiff in an action alleging that defendant fraudulently diverted property
while acting as his aunt's attorney-in-fact and also after her death as co-executor of her estate,
because: (1) although a presumption of fraud on the part of defendant arose in the establishment
of various joint accounts with right of survivorship or payable on death beneficiary status
between defendant and his aunt when defendant was a fiduciary who benefitted from his
transactions with his two aunts, defendant's affidavit rebuts any presumption of fraud or undue
influence to the other accounts which left plaintiff to shoulder the burden of producing actual
evidence of fraud; (2) no genuine issues of fact remained since plaintiff failed to forecast any
evidence of fraud; and (3) contrary to plaintiff's assertion, defendant's affidavit did not violate
the dead man's statute under N.C.G.S. § 8C-1, Rule 601(c), and in any event, the trial judge is
presumed to disregard incompetent evidence in making decisions.
Judge STEELMAN concurring in part and dissenting in part.
Appeal by plaintiff from order entered 5 August 2004 by Judge
David S. Cayer in Mecklenburg County Superior Court. Heard in the
Court of Appeals 9 June 2005.
Eugene C. Hicks, III, for plaintiff-appellant.
Baucom, Claytor, Benton, Morgan & Wood, P.A, by James F. Wood,
III, for defendant-appellee.
On 18 December 2002, plaintiffs LaMarr Garland Forbis and
Augusta (Gussie) Lee Sustare instituted this action seeking to
recover property from defendant Beverly Lee Neal, contending that
defendant fraudulently diverted property belonging to his aunt
Bonnie Sustare Newell (Bonnie) while acting as her attorney-in-fact, and after her death on 19 December 1999, as her co-executor
along with plaintiff Forbis. Defendant answered and moved to
dismiss, which motions the court denied on 28 August 2003. On 11
June 2004, following discovery, defendant moved for summary
judgment; plaintiffs filed for summary judgment on 15 June 2004.
The court granted summary judgment to defendant and denied
plaintiff's motion by order entered 5 August 2004. Plaintiff
appeals. As discussed below, we affirm.
Defendant served as attorney-in-fact for his two elderly
aunts, sisters Bonnie and Gussie Sustare. A number of Gussie's and
Bonnie's assets were placed into bank and stock accounts, including
a Paine Webber account, owned jointly by Bonnie and defendant with
right of survivorship or with defendant named as a payable on
death (POD) beneficiary. The sisters executed similar wills in
1995, each leaving the majority of their estates for the care of
the other. Following Bonnie's death on 19 December 1999 at age
ninety, plaintiff, Bonnie's niece, and defendant, Bonnie's nephew,
were appointed co-executors. After her death, the property in
Bonnie's joint accounts became the sole property of defendant, not
passing through her estate. The parties filed the inventory on 8
May 2000 and the final account on 15 February 2001, closing the
On 17 October 2002, Gussie revoked her prior power-of-attorney
naming defendant her attorney-in-fact and appointed plaintiff as
her attorney-in-fact, executed a new will and cancelled her joint
accounts with defendant. On 17 December 2002, plaintiff reopenedBonnie's estate and instituted this suit the following day seeking
recovery of the property from Bonnie's joint accounts from
defendant, individually, rather than as co-executor. The majority
of the recovery would go to the estate of Gussie, who died on 8
December 2004 subsequent to the filing of this action.
Plaintiff first argues that the court erred in granting
summary judgment to defendant and denying same to plaintiff. We
On appeal from summary judgment, our standard of review is
whether there is any genuine issue of material
fact and whether the moving party is entitled
to a judgment as a matter of law. Wilmington
Star News v. New Hanover Regional Medical
Center, 125 N.C. App. 174, 178, 480 S.E.2d 53,
55, appeal dismissed, 346 N.C. 557, 488 S.E.2d
826 (1997). Further, the evidence presented
by the parties must be viewed in the light
most favorable to the non-movant. Id. The
court should grant summary judgment when 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. Gen.
Stat. § 1A-1, Rule 56(c)(1990).
Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504
S.E.2d 574, 577 (1998). Issues of credibility are usually for the
jury, and not properly decided on summary judgment. Lewis v.
Blackman, 116 N.C. App. 414, 418-19, 448 S.E.2d 133, 136 (1994).
An attorney-in-fact serves as an agent to his principal.
Honeycutt v. Farmers & Merchants Bank, 126 N.C. App. 816, 818, 487
S.E.2d 166, 167 (1997).
An agent is a fiduciary with respect to
matters within the scope of his agency. In anagency relationship, at least in the case of
an agent with the power to manage all the
principal's property, it is sufficient to
raise a presumption of fraud when the
principal transfers property to the agent.
Self dealing by the agent is prohibited.
Id. at 820, 487 S.E.2d at 168 (internal citations omitted). When
circumstances establish a presumption of fraud, the burden is upon
the fiduciary to show that the transaction was open, fair, honest
and a voluntary act by the principal. McNeill v. McNeill, 223 N.C.
178, 181, 25 S.E.2d 615, 616-17 (1943).
When a fiduciary relation exists between
parties to a transaction, equity raises a
presumption of fraud when the superior party
obtains a possible benefit. 37 Am. Jur. 2d
Fraud and Deceit § 442, at 602 (1968). This
presumption arises not so much because [the
fiduciary] has committed a fraud, but
[because] he may have done so. Atkins v.
Withers, 94 N.C. 581, 590 (1886). The
superior party may rebut the presumption by
showing, for example, that the confidence
reposed in him was not abused, but that the
other party acted on independent advice. 37
Am. Jur. 2d Fraud and Deceit § 442, at 603.
Once rebutted, the presumption evaporates, and
the accusing party must shoulder the burden of
producing actual evidence of fraud.
Watts v. Cumberland County Hospital System, Inc., 317 N.C. 110,
116, 343 S.E.2d 879, 884 (1986) (emphasis supplied). In Watts,
the history of plaintiff's seeking and
acquiring numerous second opinions from
several other specialists dispel[ed] the
presumption of reliance and intentional deceit
that arises from the fiduciary relation
Id. The Court then held that the plaintiff had failed to produce
a sufficient forecast of evidence to support a claim based upon
constructive fraud. Id. Here, plaintiff alleged that a presumption of fraud and undue
influence on the part of defendant arose in the establishment of
various joint accounts with right of survivorship or POD between
defendant and Bonnie. Because defendant was a fiduciary who
benefitted from his transactions with Bessie and Gussie, a
presumption of fraud does arise. However, defendant's affidavit
rebuts any presumption of fraud or undue influence to the other
accounts. In his affidavit, defendant avers that he never took
any action on behalf of [the sisters] without their knowledge and
consent, and that he never converted any assets to his own benefit
or engaged in inappropriate conduct as attorney-in-fact for Bonnie
and Gussie. Defendant's averment makes no exceptions and denies
fraud in any action taken on the sisters' behalf. This statement
covers defendant's actions with regard to Bonnie's Paine Webber
account along with all other financial dealings. The dissent notes
that while defendant's affidavit states that defendant discussed
the survivorship feature of the Paine Webber account with Gussie,
nowhere does it mention that this was discussed with Bonnie.
However, this omission does not contradict or outweigh defendant's
blanket statement quoted above. The defendant's affidavit rebutted
the presumption of fraud, which evaporate[d], leaving plaintiff
to shoulder the burden of producing actual evidence of fraud.
Plaintiff here has failed to forecast any evidence of fraud. Thus,
no genuine issue of fact remains and the court properly granted
summary judgment to defendant and denied same to plaintiff. Plaintiff also argues that the court erred in considering
defendant's affidavit because it violates the dead man's statute.
Dead man's statutes exclude evidence of the acts or
statements of deceased persons, since those persons are not
available to respond. Culler v. Watts, 67 N.C. App. 735, 737, 313
S.E.2d 917, 919 (1984) (referring to N.C. Gen. Stat. § 8-51, the
predecessor to N.C. Gen. Stat. § 8C-1, Rule 601(c), the current
dead man's statute). We conclude that defendant's affidavit does
not violate N.C. Gen. Stat. § 8C-1, Rule 601 (2001). In any event,
the trial judge is presumed to disregard incompetent evidence in
making decisions. City of Statesville v. Bowles, 278 N.C. 497,
502, 180 S.E.2d 111, 114-15 (1971). Plaintiff does not explain
what portions of defendant's affidavit supposedly violate the dead
man's statute nor does she show that the court improperly
considered incompetent evidence. This assignment of error is
Judge JACKSON concurs.
Judge STEELMAN concurs in part and dissents in part.
Judge, concurring in part and dissenting in part.
I concur with the majority opinion's holding that plaintiff
has failed to show how defendant's affidavit violates N.C. Gen.
Stat. § 8C-1, Rule 601 (dead man's statute). I respectfully
dissent from the portion of the majority opinion holding thatsummary judgment was properly granted in favor of defendant as to
the Paine Webber account. I concur in the granting of summary
judgment as to the remaining accounts.
Bonnie Sustare Newell (Bonnie) and Gussie Lee Sustare (Gussie)
were elderly sisters. Defendant was the nephew of the two sisters.
On 5 November 1991 both Bonnie and Gussie executed powers of
attorney naming defendant as their attorney in fact. Defendant
managed the financial affairs of Bonnie until her death on 19
December 1999. Defendant managed the financial affairs of Gussie
until she revoked the power of attorney on 17 October 2002. She
subsequently died on 8 December 2002. Neither power of attorney
contained a provision authorizing the power of attorney to make
gifts on behalf of the principal. Bonnie and Gussie had wills that
made a number of specific bequests, but which left the bulk of
their estates to the other through residuary clauses.
On 26 June 1998, defendant established an account with Paine
Webber with Bonnie shown as the primary account holder. Bonnie
executed none of the paperwork establishing this account, defendant
signing her name in his capacity as a power of attorney. The
account was set up with Bonnie and defendant as joint tenants with
rights of survivorship. At Bonnie's death, the proceeds of this
account, amounting to $175,204.00, passed outside of Bonnie's will
to the defendant by operation of law under the survivorship
feature. In addition, $17,130.88 in dividends from the stocks held
in this account inured to the benefit of defendant through the endof 2003. Defendant also established an account at Paine Webber for
Gussie, which also had a survivorship feature. Gussie assumed
control of this account at the time she revoked the power of
attorney, and no assets from the account passed to defendant at her
Did the trial court err in granting summary judgment in favor
of defendant as to the Paine Webber account.
Standard of Review
Summary judgment is proper 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. The moving party bears the
burden of showing that no triable issue of
fact exists. . . . Once the moving party has
met its burden, the non-moving party must
forecast evidence that demonstrates the
existence of a prima facie case. In reviewing
the evidence at summary judgment, all
inferences of fact from the proofs offered at
the hearing must be drawn against the movant
and in favor of the party opposing the
Southeastern Shelter Corp. v. BTU, Inc., 154 N.C. App. 321, 326,
572 S.E.2d 200, 204 (2002). Issues of credibility are usually
issues for the jury, and not properly decided on summary judgment.
Lewis v. Blackman, 116 N.C. App. 414, 418-19, 448 S.E.2d 133, 136
(1994). Our review of the trial court's grant or rejection of
summary judgment is de novo. Moody v. Able Outdoor, Inc., 169 N.C.
App. 80, 83, 609 S.E.2d 259, 261 (2005).
Fiduciary Relationship and Presumption of Fraud
A power of attorney stands in a fiduciary relationship with
his or her principal, and has an obligation to act in the best
interests of the principal. Estate of Graham v. Morrison, 168 N.C.
App. 63, 73, 607 S.E.2d 295, 302 (2005).
This fiduciary relationship gives rise to a presumption of
When a party, complaining of a particular
transaction, such as a gift, sale, or
contract, has shown to the Court the existence
of a fiduciary or a confidential relation
between himself and the defendant, and that
the defendant occupied the position of trust
or confidence therein, the law raises a . . .
presumption, arising as matter of law, that
the transaction brought to the notice of the
Court was effected through fraud or, what
comes to much the same thing, undue influence
by reason of his occupying a position
affording him peculiar opportunities for
taking advantage of the complaining party.
Having special facilities for committing fraud
upon the party whose interests have been
intrusted to him, the law, looking to the
frailty of human nature, requires the party in
the superior situation to show that his action
has been honest and honorable. This
presumption is raised where there have been
dealings between the parties, because of the
advantage which the situation of the parties
respectively gives to one over the other. The
doctrine rests on the idea, not that there
actually was, but that there may have been
fraud, and an artificial effect is given to
the fiduciary relation beyond its natural
tendency to produce belief of the fact that
fraud really existed.
Smith v. Moore, 142 N.C. 277, 296, 55 S.E. 275, 281 (1906).
When circumstances establish a presumption of fraud, the
burden is upon the fiduciary to show that the transaction was open,
fair, honest and a voluntary act by the principal. McNeill v.
McNeill, 223 N.C. 178, 181, 25 S.E.2d 615, 616-17 (1943). In the instant case, defendant stood in a fiduciary
relationship with Bonnie. The evidence before the court on summary
judgment showed that the Paine Webber account was established in
order to allow defendant, as power of attorney, to sell stocks
owned by Bonnie to pay for her living expenses in a nursing home.
Setting up this account as a joint tenancy with rights of
survivorship inuring to the benefit of defendant was not required
to fulfill this purpose. This designation was in fact a gift of a
valuable interest in the property of Bonnie to defendant by the
defendant, acting as power of attorney. These facts are sufficient
to raise a presumption of fraud before the trial court.
Affidavit of Defendant
The majority asserts that defendant's affidavit rebutted the
presumption of fraud and that it was proper for the trial court to
enter summary judgment in favor of defendant. This analysis is
untenable for two reasons. First, it improperly resolves issues of
credibility at the summary judgment stage of the proceedings.
Second, it confuses the manner in which presumptions are to be
handled at trial under Rule of Evidence 301 with the applicable
standard for granting summary judgment under Rule 56 of the Rules
of Civil Procedure.
The majority relies upon the blanket assertion in defendant's
affidavit that he never took any action on behalf of [the sisters]
without their knowledge and consent. and that he never converted
any assets to his own benefit or engaged in inappropriate conduct
as attorney in fact for Bonnie and Gussie. Based upon theseassertions the majority concludes that defendant rebutted the
presumption of fraud.
It is not the role of the trial court to resolve issues of
credibility on a motion for summary judgment. Lewis, 116 N.C. App.
at 418-19, 448 S.E.2d at 136. A close examination of defendant's
affidavit reveals questions concerning the opening of the Paine
Webber account for Bonnie:
31. On June 26, 1998, an account was opened
for Bonnie with Paine Webber (hereinafter
PW), that named me as the joint account
32. This PW account was opened to facilitate
the periodic sale of BB&T stock owned by
Bonnie so that the proceeds of those sales
could be used to pay her living expenses.
34. Guss instructed me to establish a Paine
Webber account for her that was identical to
Bonnie's PW account. I discussed with her the
fact that Bonnie's account was a joint account
with a right of survivorship, and again
explained what that meant.
While the affidavit states that defendant discussed the
survivorship feature of the Paine Webber account with Gussie,
nowhere does it mention that this was discussed with Bonnie.
I would hold that the trial court resolved issues of the
defendant's credibility and improperly granted summary judgment as
to the Paine Webber account.
Even assuming arguendo that defendant has successfully
rebutted the presumption of fraud, that does not provide a basis
for upholding the trial court's granting of summary judgment on
this issue. Because defendant was acting in a fiduciary capacity
when he was made a joint owner with right of survivorship on thePaine Webber account, he had an additional burden to succeed on
summary judgment, not an entirely different burden, and certainly
not a reduced burden. According to Rule 301: When the burden of
producing evidence to meet a presumption is satisfied, the court
must instruct the jury that it may, but is not required to, infer
the existence of the presumed fact from the proved fact. N.C. Gen.
Stat. § 8C-1, Rule 301. Defendant does not prevail on this issue
simply because he rebuts the presumption of fraud; the presumption
merely evaporates. Watts v. Cumberland County Hospital System,
Inc., 317 N.C. 110, 116, 343 S.E.2d 879, 884 (1986); Estate of
Smith by & Through Smith v. Underwood, 127 N.C. App. 1, 9-10, 487
S.E.2d 807, 812-13 (1997) (rebuttal of presumption is not an
affirmative defense to constructive fraud). Once the presumption
evaporates, the trial court must still determine if the evidence
establishes a prima facie case, and must consider all the
presented evidence 'in a light most favorable to the nonmoving
party,' and 'all inferences of fact must be drawn against the
movant and in favor of the nonmovant[.]' DeWitt v. Eveready
Battery Co., 355 N.C. 672, 682, 565 S.E.2d 140, 146 (2002).
I believe plaintiffs have alleged facts and circumstances
establishing a prima facie case of constructive fraud, in that
viewing the foregoing evidence in the light
most favorable to plaintiffs, [the trial
court] could not properly conclude as a matter
of law that plaintiffs have not shown the
slightest trace of undue influence or unfair
advantage . . . by defendant in the
[transaction]. Plaintiffs have alleged and
established sufficient facts and circumstances
to satisfy the . . . requirements for
maintaining an action for constructive fraudbased on breach of a confidential
Brisson v. Williams, 82 N.C. App. 53, 59, 345 S.E.2d 432, 436
Were we to allow defendant to succeed on summary judgment
simply because he rebutted the presumption of fraud, we would in
effect be reducing defendant's burden on summary judgment from the
established burden of proving no genuine issue of material fact,
viewing all evidence in the light most favorable to the non-moving
party, N.C. Gen. Stat. § 1A-1, Rule 56(c), to the much less
demanding burden of presenting evidence in rebuttal equal in weight
to that of plaintiffs, In re Will of Campbell, 155 N.C. App. 441,
451-52, 573 S.E.2d 550, 558 (2002). Under this scheme,
fiduciaries accused of defrauding their principals would be
required to make a much lesser showing to succeed on summary
judgment than those who have no fiduciary obligation. I am not
prepared to endorse this outcome.
Further, the power of attorney did not specifically grant
defendant the authority to make gifts of Bonnie's property, and he
was therefore prohibited from doing so. Whitford v. Pittman, 345
N.C. 475, 480 S.E.2d 690 (1997); Honeycutt v. Farmers & Merchants
Bank, 126 N.C. App. 816, 820, 487 S.E.2d 166, 168 (1997). He was
certainly not authorized to make gifts to himself. It is
undisputed that Bonnie did not sign the application for the Paine
Webber account, and defendant signed it as her attorney in fact.
If defendant made gifts of Bonnie's property, he was in breach of
his fiduciary duty, and thus committed constructive fraud. Comptonv. Kirby, 157 N.C. App. 1, 16, 577 S.E.2d 905, 914-15 (2003). I
believe these issues need to be decided by the trier of fact, and
that summary judgment was improperly granted.
I have thoroughly reviewed defendant's additional arguments in
support of summary judgment on this issue, and find them
unconvincing. I would hold that the trial court erred in granting
summary judgment as to the Paine Webber account, and would remand
for further proceedings.
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