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NO. COA04-1585-2
2. Wills_caveat proceeding--subject matter jurisdiction--standing
The trial court did not err in a will caveat proceeding by denying propounder's motion to
dismiss based on lack of subject matter jurisdiction, because caveators had standing to initiate the
caveat pursuant to N.C.G.S. § 31-32 since: (1) caveators presented evidence that testator executed
a will on 15 February 2002 in which they were listed as devisees, and that they were not included
as devisees in testator's 1995 will which was admitted to probate as testator's last will and testament;
and (2) caveators thus presented sufficient evidence to demonstrate that they would be affected
detrimentally by the probate of testator's 1995 will.
3. Appeal and Error--preservation of issues--failure to cite authority
Caveators' third argument in a will caveat proceeding is dismissed because caveators failed
to cite authority supporting this argument as required by N.C. R. App. P. 28(b)(6).
4. Wills_caveat proceeding--motion to trifurcate and sever issues--abuse of discretion
standard
The trial court did not abuse its discretion in a will caveat proceeding by granting
propounder's motion to trifurcate and sever the issues as presented to the jury, because: (1) the issues
concerning the validity of a 1995 will and the revocation of a 2002 will were separate, distinct, and
compartmentalized; (2) the resolution of the validity of one will would not be determinative of the
validity of the other, and thus, it was not manifestly unreasonable to try the 1995 will first; and (3)
the submission of the 1995 will referring to the last will and testament of the deceased was not error
when the only issue decided by the jury was the validity of the 1995 will, and had the jury
subsequently found that the 2002 will was valid, then the determination would have operated as a
matter of law to revoke the 1995 will.
5. Wills--caveat proceeding--directed verdict
The trial court erred in a will caveat proceeding by granting propounder's motion for directed
verdict under N.C.G.S. § 1A-1, Rule 50, because: (1) caveators offered four witnesses regarding a
2002 will to rebut the presumption that testator revoked the 2002 will and to show that testator did
not intend to revoke the 2002 will; (2) there was evidence that someone moved testator's 1995 will
after his death; and (3) the evidence was sufficient to establish facts and circumstances that show
testator did not intend to lose or destroy the 2002 will due to his own actions or by any other person
by his direction and consent.
Appeal by caveators, Simon A. Burney and wife, Mary J. Burney
and Mary Elizabeth Sherill, aligned with caveators, from an order
and judgments entered 28 May 2004 by Judge Gregory A. Weeks in
Cumberland County Superior Court. Appeal by propounder of the Last
Will and Testament, Mickey Jackson, from an order entered 25 March
2004 by Judge Knox V. Jenkins, Jr. Appeals heard in the Court of
Appeals 18 August 2005. Opinion filed 1 August 2006. Petition for
rehearing granted in part 3 October 2006, reconsidering issue one
of propounder-appellee's petition without the filing of additional
briefs and without oral argument. The following opinion supersedes
and replaces the opinion filed 1 August 2006.
Anderson, Johnson, Lawrence, Butler & Bock, L.L.P., by Steven
C. Lawrence for caveators-appellants.
McCoy, Weaver, Wiggins & Cleveland, PLLC, by Jim Wade Goodman
for intervenors-appellees.
Ward and Smith, P.A., by George K. Freeman, Jr. and Alexander
C. Dale for propounder-appellee.
JACKSON, Judge.
Simon A. Burney and his wife, Mary J. Burney (“caveators”),
appeal from the trial court's judgments entered 28 May 2004 that
ordered trifurcation of the jury trial of the caveat proceeding and
granted directed verdict in favor of Mickey Jackson (“propounder”).
On 8 August 2003, Hector Cornelius McFayden (“testator”) died
of natural causes at the age of seventy-six. Caveators are
testator's neighbors and propounder is testator's cousin. Mary
Sherrill (“alignor”) is testator's sister and aligns with
caveators. Patricia Hall Nunalee and June Hall Ransbotham
(“intervenors”) are testator's cousins and argue for affirmation of
the trial court's directed verdict.
Two wills are contested here: one, executed on 30 January 1995
(“1995 will”) devises all of testator's property to propounder; and
the other executed on 15 February 2002 (“2002 will”) devises all of
testator's property to caveators. Propounder admitted the original
1995 will to probate. The evidence shows that only a copy of the
2002 will could be found.
Caveators initiated the present action to set aside testator's
1995 will. In the caveat, caveators contend that the 1995 will is
not testator's last will and testament, and that testator duly
executed his last will and testament on 15 February 2002 in the lawoffices of MacRae, Perry, Williford, MacRae & Hollers, L.L.P.
Caveators argue that the drafting attorney instructed testator to
place his original 2002 will in a safe deposit box and to destroy
the 1995 will. Upon testator's death and after a diligent search,
the original 2002 will could not be found. Caveators filed an
application for Probate of Lost Will on 19 March 2004.
Propounder answered the caveat and filed motions to dismiss
the caveat proceeding pursuant to North Carolina Rules of Civil
Procedure 12(b)(1), 12(b)(6), and 12(c). Propounder argued that
caveators lacked standing to file the caveat. On 25 March 2004,
the trial court denied propounder's motions.
On 12 April 2004, propounder filed a motion to trifurcate the
caveat proceeding for separate trials. The trial court granted
propounder's motion, and ordered that the jury trial be presented
in three phases as follows:
Phase I: Is the paper-writing, dated January
30, 1995, the Last Will of Hector Cornelius
McFayden?
Phase II: Did Hector Cornelius McFayden
destroy the original of the paper-writing,
dated February 15, 2002?
Phase III: Issue One: Is the paper-writing,
dated February 15, 2002, the Last Will of
Hector Cornelius McFayden? Issue Two: Did
Hector Cornelius McFayden lack sufficient
mental capacity to make and execute a Will at
the time the paper-writing, dated February 15,
2002, was executed? Issue Three: Was theexecution of the paper-writing, dated February
15, 2002, procured by undue influence?
The trial court conducted Phase I of the caveat proceeding on
12 April 2004, during which the jury found that the 1995 will was
testator's last will and testament. During Phase II, at the
conclusion of caveators' evidence, propounder moved for directed
verdict on the grounds that caveators failed to present sufficient
evidence to go to the jury on Phase II. The trial court granted
propounder's motion, and caveators moved the trial court to stop
the trial, release the jury, and certify its directed verdict on
the issue in Phase II for immediate appeal to this Court. On 28
May 2004, the Honorable Gregory A. Weeks entered an order that
caveators did not present sufficient evidence on the issue of
whether testator destroyed the original 2002 will with the
intention of revoking it, and that testator revoked the 2002 will
by destroying the original 2002 will with the intention of revoking
it. Caveators appealed from the trial court's judgments on 24 June
2004, and propounder filed a notice of appeal on 1 July 2004,
appealing the denial of his motions to dismiss.
[1] It is well established in our state's caselaw that a
denial of a party's motion to dismiss made pursuant to Rule
12(b)(6) is not reviewable on appeal following a final judgment on
the merits of the case. See Pierce v. Reichard, 163 N.C. App. 294,297, 593 S.E.2d 787, 789 (2004); Shadow Grp., LLC v. Heather Hills
Home Owners Ass'n, 156 N.C. App. 197, 199, 579 S.E.2d 285, 286
(2003); Berrier v. Thrift, 107 N.C. App. 356, 359, 420 S.E.2d 206,
208 (1992); Shingledecker v. Shingledecker, 103 N.C. App. 783,
786-87, 407 S.E.2d 589, 591 (1991); Drain v. United Services Life
Ins. Co., 85 N.C. App. 174, 176, 354 S.E.2d 269, 271 (1987); Duke
University v. Stainback, 84 N.C. App. 75, 77, 351 S.E.2d 806, 807,
aff'd, 320 N.C. 337, 357 S.E.2d 690 (1987); In re Baby Boy Shamp,
82 N.C. App. 606, 612, 347 S.E.2d 848, 851-52 (1986); Concrete
Service Corp. v. Investors Group, Inc., 79 N.C. App. 678, 682-83,
340 S.E.2d 755, 758-59, cert. denied, 317 N.C. 333, 346 S.E.2d 137
(1986). In Concrete Service Corp., this Court stated that “'[i]t
is an almost universal rule that a verdict will cure defects in the
pleadings unless the substantial rights of the adverse party have
been prejudiced.'” 79 N.C. App. at 682, 340 S.E.2d at 758 (quoting
5 Am. Jur. 2d Appeal & Error § 795 (1962)).
Similarly, the denial of a motion for summary judgment also
is
not reviewable on an appeal from a final judgment on the merits.
Indiana Lumbermen's Mutual Ins. Co. v. Champion, 80 N.C. App. 370,
378, 343 S.E.2d 15, 20 (1986) (quoting Harris v. Walden, 314 N.C.
284, 286, 333 S.E.2d 254, 256 (1985)); see also, Duke University,
84 N.C. App. at 77, 351 S.E.2d at 807. When matters outside the
parties' pleadings are presented to and considered by the trialcourt for a party's motion for judgment on the pleadings, the
motion will be treated as a motion for summary judgment. N.C. Gen.
Stat. § 1A-1, Rule 12(c). Given the similar nature of motions for
judgment on a pleading and for summary judgment, we hold that the
denial of a motion for judgment on the pleadings also is not
reviewable on appeal following the rendering of a final judgment on
the merits. See Duke University, 84 N.C. App. at 77, 351 S.E.2d at
807-08.
In Concrete Service Corp., this Court noted that although the
denial of a Rule 12(b)(6) motion may not be reviewable on appeal of
a final judgment, this holding does not apply to cases in which the
trial court has denied a motion based on jurisdictional grounds.
79 N.C. App. at 682, 340 S.E.2d at 758. The question of subject
matter jurisdiction may be raised at any time, and while the denial
of a motion to dismiss pursuant to Rule 12(b)(1) is interlocutory,
an appeal of the denial is no longer interlocutory once there has
been a final judgment on the merits of the case. Lemmerman v.
Williams Oil Co., 318 N.C. 577, 580, 350 S.E.2d 83, 85 (1986);
Teachy v. Coble Dairies, Inc., 306 N.C. 324, 327, 293 S.E.2d 182,
184 (1982). Thus, propounder's cross-appeal on the denial of his
motion to dismiss for a lack of subject matter jurisdiction is no
longer interlocutory, and may be brought before this Court,
provided that his appeal of the denial is timely. In the instant case, propounder's motions to dismiss the
caveators' action pursuant to Rules 12(b)(1), 12(b)(6), and 12(c)
were denied on 25 March 2004. The denial of the motions was not a
final judgment as to all parties and issues, and was not certified
for immediate appeal pursuant to Rule 54. Thus, an appeal based
upon the denial of the motions would have been interlocutory.
The case went to trial, and a final judgment was entered on 28
May 2004 granting directed verdict in favor of propounder.
Caveators filed their notice of appeal on 24 June 2004. Based upon
Rule 3(c) of our appellate rules, propounder filed notice of
cross-appeal on 1 July 2004, appealing the prior denial of his Rule
12(b)(1), 12(b)(6), and 12(c) motions, as the 28 May 2004 judgment
was a final judgment as to all parties and issues, and his appeal
was no longer interlocutory.
(See footnote 1)
In order to preserve the issue in his appeal, propounder
preserved his appeal by assigning error to and presenting arguments
that the trial court erred in denying his motions to dismiss based
on caveators' lack of standing to bring a Caveat. Therefore,
propounder's appeal of the denial of the Rule 12(b)(1) motion was
timely, properly preserved and argued in his brief, and thus isproperly before this Court.
[2] Propounder's motion to dismiss for lack of subject matter
jurisdiction argues that Caveators lack standing to bring the
Caveat. “If a party does not have standing to bring a claim, a
court has no subject matter jurisdiction to hear the claim.”
Estate of Apple v. Commercial Courier Express, Inc., 168 N.C. App.
175, 177, 607 S.E.2d 14, 16, disc. review denied, 359 N.C. 632, 613
S.E.2d 688 (2005). North Carolina General Statutes, section 31-32
provides that
At the time of application for probate of any
will, and the probate thereof in common form,
or at any time within three years thereafter,
any person entitled under such will, or
interested in the estate, may appear in person
or by attorney before the clerk of the
superior court and enter a caveat to the
probate of such will[.]
N.C. Gen. Stat. § 31-32 (2003). Our caselaw has held that a person
“interested in the estate” “must have some pecuniary or beneficial
interest in the estate that is detrimentally affected by the will.”
In re Calhoun, 47 N.C. App. 472, 475, 267 S.E.2d 385, 386 (1980).
In the Caveat filed 7 October 2003, caveators presented evidence
that testator executed a will on 15 February 2002, in which they
were listed as devisees. However, caveators were not included as
devisees in testator's 1995 will, which was admitted to probate as
testator's last will and testament. As caveators presentedsufficient evidence to demonstrate that they would be affected
detrimentally by the probate of testator's 1995 will, when there
was evidence that testator executed a subsequent will in 2002, we
hold caveators had standing to initiate the Caveat pursuant to
North Carolina General Statutes, section 31-32. Therefore, there
was not a lack of subject matter jurisdiction, and propounder's
motion to dismiss for a lack of subject matter jurisdiction was
properly denied.
On appeal, caveators present three issues: (1) whether the
trial court erred in granting propounder's motion to trifurcate;
(2) whether the trial court erred in granting propounder's directed
verdict; and (3) whether the trial court erred by not allowing
testimony regarding testator's mental capacity.
[3] The scope of review on appeal is confined to a
consideration of those exceptions set out and made the basis of
assignments of error in the record on appeal. N.C. R. App. P. 10
(2006). Exceptions in the record not set out in appellant's brief,
or in support of which no reason or argument is stated or authority
cited, will be taken as abandoned. N.C. R. App. P. 28(b)(6)
(2006). Caveators failed to cite authority supporting their third
argument. For this reason, caveators' third argument is not
properly before us.
[4] The first issue is whether the trial court erred ingranting propounder's motion to trifurcate and sever the issues as
presented to the jury.
The trial court trifurcated the proceedings into separate
phases. In the first phase, the jury decided that the first will,
executed in 1995, was a valid will. Subsequently, the later will,
executed in 2002 was tried before the same jury in the second phase
of the trial.
Pursuant to the provisions of Rule 42(b) of the North Carolina
Rules of Civil Procedure, it was with the trial court's discretion
to trifurcate the proceedings. N.C. Gen. Stat. § 1A-1, Rule 42(b)
(2005). This decision is reviewed under an abuse of discretion
standard. Roberts v. Young, 120 N.C. App. 720, 725, 464 S.E.2d 78,
82 (1995). In this case, it is clear that the issues concerning
the validity of the 1995 will and the revocation of the 2002 will
were separate, distinct and compartmentalized. Therefore, the
trial court did not abuse its discretion in severing these trials.
The decision to try the issues pertaining to the 1995 will
prior to the 2002 will also was within the sound discretion of the
trial court. An abuse of discretion occurs only when the trial
court's ruling is “manifestly unsupported by reason or one so
arbitrary that it could not have been the result of a reasoned
decision.” Briley v. Farabow, 348 N.C. 537, 547, 501 S.E.2d 649,
656 (1998). In this case, the trial court eventually would have todecide the validity of both the 1995 and the 2002 wills. The
resolution of the validity of one will would not be determinative
of the validity of the other. This being the case, it was not
manifestly unreasonable to try the 1995 will first.
The submission of the issue to the jury as to the 1995 will
referring to the last will and testament of the deceased was not
error. The only issue to be decided by the jury was the validity
of the 1995 will. Nothing else was submitted to the jury during
the first phase of the trial. Had the jury subsequently found that
the 2002 will was a valid will, then that determination would have
operated as a matter of law to revoke the 1995 will, rendering the
jury verdict in the first phase of the trial moot.
(See footnote 2)
Accordingly,
we hold that the trial court did not abuse its discretion, and this
assignment of error is overruled.
[5] The second issue on appeal is whether the trial court
erred in granting propounder's directed verdict because caveators
failed to present sufficient evidence to rebut the presumption of
revocation of testator's 2002 will.
“A motion for directed verdict under N.C.G.S. . 1A-1, Rule 50
[(2005)], presents the question whether as a matter of law theevidence is sufficient to entitle the nonmovant to have a jury
decide the issue.” In re Will of Jarvis, 334 N.C. 140, 143, 430
S.E.2d 922, 923 (1993). In ruling on such a motion the trial court
must consider the evidence in the light most favorable to the
nonmovant, resolving all conflicts in the evidence in their favor
and giving them the benefit of all favorable inferences that
reasonably may be deduced from the evidence. Id. “If the evidence
is sufficient to support each element of the nonmovant's case, the
motion for directed verdict should be denied.” Id. “The
credibility of the testimony is [a question] for the jury, not the
court, and a genuine issue of fact must be tried by a jury unless
this right is waived.” Id.
Pursuant to North Carolina General Statutes, section 31-5.1
(2005),
[a] written will, or any part thereof, may be
revoked only (1) [b]y a subsequent written
will or codicil or other revocatory writing
executed in the manner provided herein for the
execution of written wills, or (2) [b]y being
burnt, torn, canceled, obliterated, or
destroyed, with the intent and for the purpose
of revoking it, by the testator himself or by
another person in the presence and by his
direction.
N.C. Gen. Stat. . 31-5.1 (2005). In North Carolina, “[i]t is well
established that when a will last seen in the testator's possession
cannot be found at death a rebuttable presumption arises that thewill was revoked[.]” In re Will of Jolly, 89 N.C. App. 576, 577,
366 S.E.2d 600, 601 (1988). In order to revoke a will by
destroying it, the destructive act must be done with the intent to
revoke the will. Id. (citing In re Will of Wall, 223 N.C. 591, 27
S.E.2d 728 (1943)).
“The presumption, however, that the testator
destroyed the paper with the intent to revoke it as his will is not
one of law but of fact, and may be rebutted by evidence of facts
and circumstances showing that its loss or destruction was not or
could not have been due to the act of the testator or that of any
other person by his direction and consent.” In re Will of Wall,
223 N.C. at 593, 27 S.E.2d at 730.
“[A]s soon as the circumstances
attendant upon the disappearance of the paper are made to appear,
the presumption loses its potency and the issue becomes one for the
jury.” In re Will of Wall, 223 N.C. at 595-96, 27 S.E.2d at 731.
Thus, it is critical to determine whether caveators presented any
competent evidence either that testator did not
destroy the will or
did not intend to revoke it.
Here, caveators offered four witnesses regarding the 2002 will
to rebut the presumption that testator revoked the 2002 will and
that testator did not intend to revoke the 2002 will. First, James
C. McRae, Jr. (“McRae”), testator's attorney, testified that he
gave the original and a copy of the 2002 will to testator in an
envelope on the day testator executed the 2002 will. McRaetestified that testator never mentioned any subsequent desire to
change his will. Second, Mary Sherrill Winks (“Winks”), testator's
niece, testified that propounder had access to testator's house
after testator's death. Third, Glenn Lane (“Lane”), testator's
friend, testified that testator told him that he had made a new
will in 2002, and that the 2002 will “would be a big surprise.”
Finally, propounder testified that he had gone to testator's house
on 12 August 2003 with McRae to find the original 2002 will.
Propounder testified that on the day after testator went to the
hospital, propounder obtained keys to testator's home from Lane,
applied his own lock to the home, and went through the house to
secure the firearms, although he denied going to testator's home to
look for papers. In contrast, Lane testified that propounder had
told him that he needed to get some papers from the home, and was
not able to find the papers in the brown envelope. Furthermore,
Lane testified that propounder stated that he would need to have
his wife return to testator's house to locate the brown envelope.
Lane stated that he saw propounder coming out of testator's house
at around 7:00 a.m. the morning after he obtained testator's house
keys. There also is evidence that someone moved testator's 1995
will after his death.
This evidence is sufficient to establish facts and
circumstances that show testator did not intend to lose or destroythe 2002 will. In viewing the evidence in the light most favorable
to caveators, caveators presented evidence of facts and
circumstances that the loss or destruction of the 2002 will was not
or could not have been due to the act of the testator or that of
any other person by his direction and consent. The four witnesses'
testimony provided circumstances attendant upon the disappearance
of the 2002 will, and their testimony presented facts and
circumstances sufficient to allow the issue to become one for the
jury. Thus, caveators presented a genuine issue of fact to be
presented to the jury. Accordingly, we affirm in part and reverse
and remand in part.
Affirmed in part; Reversed in part and Remanded.
Judges HUDSON and STEELMAN concur.
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