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Collateral Estoppel and Res Judicata_failure to make devise_not raised in prior caveat
Plaintiff's complaint for fraud and undue influence was correctly dismissed for res
judicata where plaintiff had an adequate remedy in a prior caveat which he did not pursue.
Plaintiff's claim here involved an alleged promise of a devise by the decedent in return for
assistance; the only admissible evidence was a prior will; and plaintiff did not produce that will
during the prior caveat.
Frank Cherry for plaintiff-appellant.
No brief for defendant-appellees.
HUNTER, Judge.
Samuel L. Wilder (“plaintiff”) appeals from judgment of the
trial court dismissing his complaint against Evelyn D. Hill
(“Hill”) and the estate of Willie V. Davis (collectively,
“defendants”) on the basis of res judicata. Plaintiff contends he
is entitled to proceed with his civil suit. We affirm the judgment
of the trial court.
On 23 November 2003, plaintiff filed a complaint against
defendants in New Hanover County Superior Court alleging claims of
fraud and undue influence regarding the will of plaintiff's
stepfather, Willie Davis (“Davis”). According to the complaint,
Davis executed a will in 1964 which named his wife (plaintiff'smother) as primary beneficiary, and named plaintiff as a secondary
beneficiary to his estate. Davis's estate included a family
residence located at 1101 Chestnut Street in Wilmington, North
Carolina. After plaintiff's mother died in 1998, plaintiff gave
Davis monies for maintenance of the Chestnut Street residence.
Plaintiff alleged he did so upon the understanding that he would,
along with Hill, who was Davis's daughter, inherit the residence
upon Davis's death. Unbeknownst to plaintiff, Davis executed a new
will in 1998 devising the property to Hill and her children and
excluding plaintiff as a beneficiary. Plaintiff alleged in his
complaint that Hill induced Davis to revoke the 1964 will and “by
unlawful threats and intimidation coerced Willie V. Davis to
exclude the plaintiff from his [1998] Will[.]” The complaint noted
that when Davis died, plaintiff executed a successful caveat
proceeding challenging the 1998 will. Plaintiff contended in his
complaint he was entitled to money damages equal to “one-half of
the value of the property at 1101 Chestnut Street or $35,000 . . .
or . . . all funds advanced to [Davis] from 1995 to 2000 for taxes
and upkeep of the property . . . .”
Plaintiff's first cause of action, that of fraud, was
dismissed by order of the trial court dated 11 January 2005. The
order found that:
1. Plaintiff's claim in essence is that the
decedent, Willie V. Davis, promised him
that he would devise him a one-half
interest in his home place at 1101
Chestnut Street in return for him
providing financial assistance for the
upkeep and taxes on the home.
2. Plaintiff concedes that the only evidence
of this agreement other than the alleged
statements of the decedent, Willie V.
Davis, which are barred by the Statute of
Frauds, is a prior will made by Willie V.
Davis in 1964.
3. The parties agree that the said previous
will gave no direct statement of a
promise to make the bequest in return for
help in paying taxes or expenses and that
prior case law prohibits the admission of
prior Wills without such specific
promises or agreements.
The trial court therefore dismissed plaintiff's first cause of
action. Plaintiff did not appeal from this order.
Defendants' motion to dismiss plaintiff's second cause of
action, that of undue influence, was heard by the trial court on 14
March 2005. Upon review of the case, the trial court made the
following pertinent findings:
3. The Second Cause of Action alleged undue
influence by the Defendant Evelyn D. Hill
to cause Willie V. Davis to alter his
will to omit Plaintiff from his will.
4. Plaintiff had previously filed a Caveat
against the will of Willie V. Davis which
was tendered for probate by Evelyn D.
Hill that matter being in file 00E1070 in
New Hanover County. The Caveat was
successful and the will tendered for
probate was disallowed.
5. The issue of undue influence of Evelyn D.
Hill as to the preparation of the will of
Willie V. Davis was one of the issues
presented to the Jury at the Caveat
proceeding.
6. The Plaintiff presented no further claims
in the Caveat action nor did he present
any other will for probate or otherclaims which he alleges in this action
that he had against the parties.
7. The Estate of Willie V. Davis, following
the voidance of the will by the caveat,
was to be distributed by intestate
succession, pursuant to which Plaintiff
took nothing.
Based on these findings, the trial court concluded that
plaintiff's claim against defendants was barred by res judicata and
collateral estoppel “in that the same issue was determined by the
Jury in the Caveat proceeding even though this action is premised
upon a different claim.” The trial court entered an order
dismissing plaintiff's claim against defendants. Plaintiff
appeals.
Plaintiff argues the trial court erred in dismissing his claim
on the basis of res judicata and collateral estoppel. Plaintiff
contends he could not have raised the issue of damages in the
former caveat proceeding, and therefore the fact that the jury
found undue influence in the caveat proceeding does not bar
plaintiff from the present action against defendants.
“In general, '[t]he purpose of a caveat is to determine
whether the paperwriting purporting to be a will is in fact the
last will and testament of the person for whom it is propounded.'”
Baars v. Campbell Univ., Inc., 148 N.C. App. 408, 419, 558 S.E.2d
871, 878 (quoting In re Spinks, 7 N.C. App. 417, 423, 173 S.E.2d 1,
5 (1970)), disc. review denied, 355 N.C. 490, 563 S.E.2d 563
(2002). “'The filing of a caveat is the customary and statutory
procedure for an attack upon the testamentary value of apaperwriting which has been admitted by the clerk of superior court
to probate in common form.'” Id. (citation omitted).
The Clerk of Superior Court as ex officio
Judge of Probate has jurisdiction to take
proof of wills and issue letters testamentary
or of administration thereon. As Judge of
Probate he has the sole power in the first
instance to determine whether a decedent died
testate or intestate and whether a script
offered for probate is his will.
In re Will of Charles, 263 N.C. 411, 415, 139 S.E.2d 588, 591
(1965). “When a caveat is filed the Superior Court acquires
jurisdiction of the whole matter in controversy. Any other script
purporting to be the decedent's will should be offered and its
validity determined in the caveat proceeding.” Id. at 416, 139
S.E.2d at 591-92 (citations omitted).
Plaintiff contends that, as the purpose of the caveat
proceeding is limited to a determination of whether the challenged
will is valid or not, he could not have brought the action for
damages, and the trial court therefore erred in dismissing his
complaint on the ground of res judicata. Plaintiff is correct in
asserting that the purpose of a caveat proceeding is limited and
that where adequate remedy cannot be obtained in a caveat
proceeding, the plaintiff is entitled to proceed with a tort claim.
See Murrow v. Henson, 172 N.C. App. 792, 800, 616 S.E.2d 664, 669
(2005). Where a plaintiff may gain adequate relief in a caveat
proceeding, however, “a direct attack by caveat [is] a complete and
adequate remedy at law, such that a plaintiff is not entitled to
equitable relief.” Baars, 148 N.C. App. at 419, 558 S.E.2d at 878. In this case, plaintiff's complaint alleged the existence of
an earlier 1964 will which named him as a beneficiary. Plaintiff
never presented this will during the caveat proceeding, however,
and Davis's estate was distributed by intestate succession,
pursuant to which plaintiff took nothing. Plaintiff's claim to
inherit lay in the alleged 1964 will, the existence and validity of
which he failed to establish during the caveat proceeding. As
plaintiff had adequate remedy in the caveat proceeding, he may not
now seek a civil remedy. The trial court therefore properly
dismissed plaintiff's complaint.
The judgment of the trial court is affirmed.
Affirmed.
Judges WYNN and JACKSON concur.
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