Appeal by plaintiff from order entered 17 September 2004 by
Judge Christopher M. Collier in Davidson County Superior Court.
Heard in the Court of Appeals 15 June 2005.
Brinkley Walser, P.L.L.C., by Walter F. Brinkley and April D.
Craft, for plaintiff-appellant.
Law Offices of J. Calvin Cunningham, by J. Calvin Cunningham
and R. Flint Crump, for defendant-appellee.
This litigation arises out of a family dispute over the
ownership of land in Davidson County. Plaintiff Evelyn Barton Beck
("Mrs. Beck") and her husband, Avery Edward Beck ("Mr. Beck"),
deeded land to their son, defendant Larry Eugene Beck, in January
1998. Mrs. Beck subsequently sued to invalidate the deed, claiming
that Mr. Beck _ now deceased _ was incompetent at the time he
signed the deed. At the conclusion of plaintiff's evidence, the
trial court entered an order granting the son's motion to dismiss
under N.C.R. Civ. P. 41(b), which this Court subsequently vacated
and remanded for further findings of fact. On remand, the trial
court, after making additional findings of fact, again granted the
son's motion to dismiss on the grounds that plaintiff's evidence
established that her claims were precluded under the theories of
quasi-estoppel, estoppel by deed, and equitable estoppel. Based
upon our review of the record, we have concluded that certain
findings of fact are not supported by competent evidence and thatthe remaining findings do not support the conclusions of law and
the trial court's granting of the motion to dismiss. We,
therefore, reverse and remand for further proceedings, including
the presentation of defendant's evidence.
A full statement of the facts in this case is set forth in
this Court's earlier opinion, Beck v. Beck
, 163 N.C. App. 311, 593
S.E.2d 445 (2004) ("Beck I
"). We summarize here only the facts
needed for an understanding of this opinion. On 19 January 1998,
Mr. and Mrs. Beck executed a number of documents, including (1) a
power of attorney and health care power of attorney by which Mr.
Beck appointed Mrs. Beck as his attorney in fact and (2) a deed
conveying two tracts of land owned by Mr. and Mrs. Beck to their
son, Larry Beck. On the same date, Mr. Beck also executed a will
naming Mrs. Beck as his executor and sole devisee.
On 19 February 2000, Mrs. Beck, using her power of attorney,
filed this lawsuit against Larry Beck on her own behalf and Mr.
Beck's behalf. Mrs. Beck claimed that the deed to Larry Beck was
invalid because Mr. Beck lacked the capacity to execute a deed on
the date it was signed, 19 January 1998. Defendant answered the
complaint on 8 May 2000.
On 22 September 2000, Mr. Beck died. Soon thereafter, the
parties entered into a stipulation that "[r]ather than subject the
estate to the expense which would be involved in determining the
validity of [Mr. Beck's] 1998 will, the parties have agreed to
stipulate that, if Evelyn Barton Beck qualifies as the executor ofAvery Edward Beck under the 1998 will, evidence of this fact will
not be admissible in the present action for the purpose of proving
that Avery Edward Beck was competent on January 19, 1998." In this
action, Mrs. Beck, in her capacity as executrix for the estate, was
then substituted to represent her husband's estate as a party
The case was heard by Judge Christopher M. Collier in a bench
trial beginning on 3 September 2003. At the conclusion of Mrs.
Beck's evidence, defendant moved to dismiss pursuant to N.C.R. Civ.
P. 41(b). Judge Collier granted the motion, concluding that Mrs.
Beck was "estopped" from challenging the mental capacity of Mr.
Beck as of 19 January 1998.
Upon plaintiff's appeal, this Court in Beck I
first noted that
the trial court had not specified what theory of estoppel it was
relying upon in dismissing plaintiff's claim. 163 N.C. App. at
315, 593 S.E.2d at 448. The Court then identified three potential
estoppel theories by which defendant might prevail: (1) quasi-
estoppel, (2) estoppel by deed, and (3) equitable estoppel. Id.
315-17, 593 S.E.2d at 448-49. After concluding that the trial
court's findings of fact were insufficient to support a conclusion
that plaintiff was estopped from contesting her husband's
competence under any of the three theories, the Court vacated the
trial court's order and remanded for additional findings of fact.
at 317, 593 S.E.2d at 449.
On remand, the trial court entered an "Order Supplementing
Court's Order Granting Defendant's Motion to Dismiss." This ordercontained additional findings of fact and concluded that plaintiff
was estopped from challenging the mental capacity of Mr. Beck to
execute the deed under all three theories: quasi-estoppel,
equitable estoppel, and estoppel by deed. Plaintiff again timely
appealed to this Court.
We observe initially that this case comes to us upon the
relatively unusual procedural posture of a dismissal under N.C.R.
Civ. P. 41(b). That rule provides in pertinent part:
After the plaintiff, in an action tried by the
court without a jury, has completed the
presentation of his evidence, the defendant,
without waiving his right to offer evidence in
the event the motion is not granted, may move
for a dismissal on the ground that upon the
facts and the law the plaintiff has shown no
right to relief. The court as trier of the
facts may then determine them and render
judgment against the plaintiff or may decline
to render any judgment until the close of all
the evidence. If the court renders judgment
on the merits against the plaintiff, the court
shall make findings as provided in Rule 52(a).
Unless the court in its order for dismissal
otherwise specifies, a dismissal under this
section . . . operates as an adjudication upon
"Dismissal under [Rule 41(b)] is left to the sound discretion of
the trial court." In re Oghenekevebe, 123 N.C. App. 434, 437, 473
S.E.2d 393, 396 (1996). In a Rule 41(b) context, "the trial judge
may 'decline to render any judgment until the close of all the
evidence, and except in the clearest cases, he should defer
judgment until the close of all the evidence.'" Id. (quoting In re
Becker, 111 N.C. App. 85, 92, 431 S.E.2d 820, 825 (1993)). On appeal of a Rule 41(b) dismissal, this Court determines
whether any evidence supports the findings of the trial judge,
notwithstanding the existence of evidence to the contrary. Lumbee
River Elec. Membership Corp. v. City of Fayetteville, 309 N.C. 726,
741, 309 S.E.2d 209, 218 (1983) ("[T]he judge can give judgment
against plaintiff not only because his proof has failed in some
essential aspect to make out a case but also on the basis of facts
as he may then determine them to be from the evidence then before
him."). If the findings of fact are supported by the evidence and
those findings support the conclusions of law, they are binding on
appeal. Id. at 741_42, 309 S.E.2d at 219. "The trial court's
conclusions [of law], however, are completely reviewable." Baker
v. Showalter, 151 N.C. App. 546, 549, 566 S.E.2d 172, 174 (2002).
We address each of the estoppel theories relied upon by the trial
court in turn.
 "Quasi-estoppel is based on a party's acceptance of the
benefits of a transaction, and provides where one having the right
to accept or reject a transaction or instrument takes and retains
benefits thereunder, he ratifies it, and cannot avoid its
obligation or effect by taking a position inconsistent with it."
Parkersmith Props. v. Johnson
, 136 N.C. App. 626, 632, 525 S.E.2d
491, 495 (2000) (internal quotation marks omitted). The "essential
purpose" of the quasi-estoppel theory is to prevent a party from
benefitting by taking two clearly inconsistent positions. B & F
Slosman v. Sonopress, Inc.
, 148 N.C. App. 81, 88, 557 S.E.2d 176,181 (2001), disc. review denied
, 355 N.C. 283, 560 S.E.2d 795
In Beck I
, this Court instructed the trial court that, in
conducting its quasi-estoppel analysis, it should "determine
whether plaintiff ratified the deed and other instruments executed
19 January 1998 by accepting benefit [sic] under them, such that
she may not now take an inconsistent position." Beck I
, 163 N.C.
App. at 315, 593 S.E.2d at 448. On remand, the trial court found
that Mrs. Beck received five benefits under the documents executed
on 19 January 1998.
The first "benefit" found by the trial court was: "She avoided
the possibility of her and her husband, Avery Edward Beck, being
ineligible for Medicaid because of owning their marital residence
and other real property." The record, however, contains no
evidence that Mrs. Beck and/or Mr. Beck ever applied for or
actually received Medicaid or that, without deeding the property to
Larry Beck, Mr. and Mrs. Beck would in fact have been ineligible
for Medicaid. Indeed, most of the testimony referencing Medicaid
was struck on defendant's motion. Without such evidence, there can
be no finding that Mrs. Beck received any actual benefit. There is
only the hypothetical possibility of a benefit. This Court has
previously held that an analogous absence of evidence precluded
application of the theory of quasi-estoppel:
Plaintiff claims in its brief to this Court
Defendant received a "monetary and
psychological benefit" from [one of the
Defendants'] assignment to Plaintiff because
the assignment "relieved [Defendants] of their
need to find another buyer." The record,however, does not contain any evidence
Defendants actually received any benefits as a
result of the assignment. There is no
evidence Defendants were in need of finding a
buyer at the time [of] the assignment, and
Defendants never accepted any funds from
Plaintiff under the assignment.
, 136 N.C. App. at 632-33, 525 S.E.2d at 495. The
evidence in this record thus does not support a finding that Mrs.
Beck's challenge to the validity of the deed is "clearly
inconsistent" with anything she may or may not have received with
respect to Medicaid. B & F Slosman
, 148 N.C. App. at 88, 557
S.E.2d at 181.
The trial court next found: (1) "[Mrs. Beck] received the
ability and benefit of filing this very lawsuit as the Attorney-in-
Fact for her husband, Avery Edward Beck, prior to his death, by
relying upon the Power of Attorney signed by Avery Edward Beck on
January 19, 1998"; and (2) "[Mrs. Beck] received the benefit of
making health care decisions for her husband, Avery Edward Beck."
It is, however, well-settled in this State that a power of attorney
is for the benefit of the principal and not the agent. Whitford v.
, 345 N.C. 475, 478, 480 S.E.2d 690, 692 ("[A]n attorney-in-
fact is presumed to act in the best interests of the principal."),
modified on other grounds
, 345 N.C. 762, 489 S.E.2d 177 (1997);
Estate of Graham v. Morrison
, 168 N.C. App. 63, 68, 607 S.E.2d 295,
299 (2005) ("[O]ur Supreme Court has indicated that an attorney-in-
fact has an obligation to act in the best interests of the
principal."). The powers of attorney that Mr. Beck signed in favorof Mrs. Beck, therefore, cannot be considered a "benefit" to her
for purposes of quasi-estoppel.
We next turn to the fourth "benefit" listed by the trial
court: "She received the benefit of being able to file a Complaint
. . . for wrongful death against Southern Assisted Living as
Personal Representative of the Estate of Avery Edward Beck." While
it is true that North Carolina's wrongful death statute provides
that the decedent's personal representative or collector is the
proper person to bring a wrongful death action, N.C. Gen. Stat. §
28A_18_2(a) (2003), it is also well-settled that, in a wrongful
death action, "the real party in interest is not the estate but the
beneficiary of the recovery." Evans v. Diaz
, 333 N.C. 774, 776,
430 S.E.2d 244, 245 (1993). The beneficiaries as defined by the
Wrongful Death Act are the persons who would take from decedent
under the Intestate Succession Act. Locust v. Pitt County Mem'l
, 358 N.C. 113, 117, 591 S.E.2d 543, 545 (2004). See
N.C. Gen. Stat. § 28A-18-2(a) (providing that any wrongful
death recovery "shall be disposed of as provided in the Intestate
Succession Act"). Any benefit that Mrs. Beck would receive from
the wrongful death action would, therefore, be by virtue of her
status as Mr. Beck's lawful wife and not because she was his
personal representative. "One cannot be estopped by accepting that
which he would be legally entitled to receive in any event." In re
Will of Peacock
, 18 N.C. App. 554, 556, 197 S.E.2d 254, 255 (1973).
Fifth, the trial court found: "[Mrs. Beck] received the
benefit of being appointed the Personal Representative of herhusband, Avery Edward Beck's Estate by relying upon the Will signed
by her husband, Mr. Beck . . . . If she were unable to rely upon
this Will to be appointed Personal Representative, she could
possibly have been subject to a prolonged dispute in an action
before the Davidson County Clerk of Court regarding who would be
appointed Personal Representative of the Estate." The record,
however, contains no evidence that she would not have been the
personal representative in the absence of the new will, of any
benefits _ as opposed to responsibilities _ that she received by
virtue of being named the executrix, or that there was anything
other than a theoretical possibility of a dispute over the identity
of the personal representative. Like the first "benefit," avoiding
the possibility of Medicaid ineligibility, we cannot conclude that
a mere theoretical possibility of avoiding litigation _ which might
or might not be costly and time-consuming _ is a benefit such that
Mrs. Beck "may not now take an inconsistent position." Beck I
N.C. App. at 315, 593 S.E.2d at 448.
In sum, the trial court's first and fifth "benefits" are not
supported by competent evidence, while the second, third, and
fourth "benefits" do not constitute sufficient benefits to support
a conclusion that Mrs. Beck is estopped from challenging the deed
to Larry Beck under a quasi-estoppel theory.
Estoppel by Deed
 The seminal estoppel by deed case in North Carolina is
Baker v. Austin
, 174 N.C. 433, 93 S.E. 949 (1917). That opinion
states: Where a deed is sufficient in form to convey
the grantor's whole interest, an interest
afterwards acquired passes by way of estoppel
to the grantee. . . . If a grantor having no
title, a defective title, or an estate less
than that which he assumed to grant, conveys
with warranty or covenants of like import, and
subsequently acquires the title or estate
which he purported to convey, or perfects his
title, such after-acquired or perfected title
will inure to the grantee or to his benefit by
way of estoppel.
at 434-35, 93 S.E. at 950 (internal quotation marks omitted).
In 1963, the Supreme Court also held, at least with respect to a
deed from a mother to a child, that estoppel by deed is
inapplicable when the underlying deed was not conveyed in exchange
for valuable consideration. Cruthis v. Steele
, 259 N.C. 701, 704,
131 S.E.2d 344, 347 (1963).
In this case, the record contains no evidence of any
consideration being conveyed by defendant in exchange for the deed.
Further, on 19 January 1998, Mrs. Beck purported to grant precisely
what she in fact owned: her share of the property she owned with
her husband in a tenancy by the entirety. That estate is precisely
what she did convey. The dispute in this case concerns the
property interest Mr. Beck granted (or failed to grant) to Larry
Beck and not the property interest that Mrs. Beck granted. At
least from plaintiff's evidence, which is the only evidence before
us, there is no indication that when Mrs. Beck joined with her
husband in signing the deed to Larry Beck that she had (1) no
title, (2) a defective title, or (3) an estate less than that which
she assumed to grant. Therefore, estoppel by deed is inapplicable,
at least on the current record.
 Although this Court in Beck I
did not analyze the theory
of equitable estoppel as it related to the facts of this case, the
trial court concluded as an alternative basis for its ruling that
equitable estoppel barred Mrs. Beck from contesting the issue of
Mr. Beck's competence. Parkersmith
describes the elements of
equitable estoppel as follows:
A party invoking the doctrine of
equitable estoppel has the burden of proving
the following elements:
(1) The conduct to be estopped must
amount to false representation or concealment
of material fact or at least which is
reasonably calculated to convey the impression
that the facts are other than and inconsistent
with those which the party afterwards
attempted to assert;
(2) Intention or expectation on the party
being estopped that such conduct shall be
acted upon by the other party or conduct which
at least is calculated to induce a reasonably
prudent person to believe such conduct was
intended or expected to be relied and acted
(3) Knowledge, actual or constructive, of
the real facts by the party being estopped;
(4) Lack of knowledge of the truth as to
the facts in question by the party claiming
(5) Reliance on the part of the party
claiming estoppel upon the conduct of the
party being sought to be estopped
(6) Action based thereon of such a
character as to change his position
, 136 N.C. App. at 633, 525 S.E.2d at 495_96 (emphasis
added) (internal quotation marks omitted). The trial court found that defendant relied upon the
representation that Mr. Beck was competent and that the deed was
valid by occupying, maintaining, and improving the property and by
making property tax and insurance payments on that property. The
evidence to date, however, indicates that defendant has occupied
the property since 1985 rent-free under an agreement with Mr. Beck
that defendant would pay the insurance and property taxes and
maintain and restore the house. The record does not yet indicate
that defendant in any way changed his position prejudicially as a
result of any representation by Mrs. Beck regarding Mr. Beck's
competence to sign the deed.
There being inadequate support in the record as it stands for
the trial court's conclusion that the doctrines of quasi-estoppel,
estoppel by deed, or equitable estoppel operate to bar Mrs. Beck's
challenge to the deed to Larry Beck, we reverse the trial court's
order dismissing this action under Rule 41 and remand for further
Reversed and remanded.
Judges CALABRIA and ELMORE concur.
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