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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.
IN THE MATTER OF THE WILL OF ROBERT L. KERSEY, Deceased
Filed: 21 March 2006
1. Wills--caveat proceeding--statute of limitations_-notice
Where, as here, a caveator enters a caveat to the probate of a will within three years after
the application for the probate of such will and complies with the bond requirements of N.C.G.S.
§ 31-33, the proceeding has been properly filed within the limitations period of N.C.G.S. § 31-
2. Wills--caveat proceeding--failure to prosecute
The trial court erred by dismissing under N.C.G.S. § 1A-1, Rule 41(b) a caveat
proceeding on the basis of failure to prosecute, because: (1) the trial court's dismissal on the
basis of failure to prosecute within the statute of limitations period improperly conflates the time
in which a party may provide notice in a caveat with the time in which a party may commence a
caveat; (2) provided a plaintiff has not been lacking in diligence, the mere passage of time does
not justify dismissal for failure to prosecute as our courts are primarily concerned with the trial of
cases on their merits; and (3) nothing in the record indicates caveator attempted to thwart
progress or implemented a delay tactic that would otherwise justify the trial court's dismissal
under Rule 41(b).
Appeal by caveator from judgment entered 15 April 2005 by
Judge Orlando F. Hudson, Jr. in Durham County Superior Court.
Heard in the Court of Appeals 20 February 2006.
Hedrick, Murray, & Cheek, P.L.L.C., by Josiah S. Murray, III,
and John C. Rogers, III, for propounder-appellee.
Nick Galifianakis & Associates, by Nick Galifianakis and David
Krall, for caveator-appellant.
MARTIN, Chief Judge.
Katherine Ann Crowder Kersey (caveator) appeals from summary
judgment entered in favor of Mary DeBlanc Norfleet (propounder),
dismissing a caveat proceeding involving the will of Robert L.
Kersey (decedent) on the grounds of the statute of limitations
and a failure to prosecute. We reverse and remand. Caveator and decedent were married sometime in or before 1953.
They lived together until the mid-1980's, when caveator moved out
of the home and established a separate residence. Caveator lived
separate and apart from decedent until decedent's death on 19
August 2001; however, they never divorced, and the record indicates
they communicated by telephone with great frequency. Prior to his
death, decedent executed both a document purporting to be his last
will and testament and a codicil.
Propounder worked as decedent's long-term executive secretary
and assisted in managing his contract consulting engagements and
personal business affairs. Decedent named propounder as his
executrix in his purported will, and she was issued letters
testamentary as the executrix of decedent's estate following his
death. In the will document, decedent made various monetary
bequests, devised certain real property to propounder, and left the
remainder of his estate to caveator.
On 19 July 2002, caveator filed a caveat to the will,
asserting (1) it was obtained by [propounder] through undue and
improper influence and (2) decedent by reason of both physical
and mental weakness and infirmity [was] not capable of executing
a will. That same day, the clerk of superior court ordered the
cause transferred to superior court for trial. In October 2002,
caveator moved to compel the production of decedent's medical
records, which the trial court subsequently ordered on 15 November
2002. In a verified response filed 8 September 2004, propounderasserted, in relevant part, defenses of the statute of limitations
and failure to prosecute.
On 7 March 2005, propounder moved for summary judgment. In
its order, the trial court stated the following:
[T]he statutory requirement imposed upon
Caveator pursuant to N.C. Gen. Stat. § 31-33
mandating that Such Caveator shall cause
notice [citation] of the Caveat proceeding to
be given to all devisees, legatees, or other
persons in interest in the manner provided for
service of process by G.S. 1A-1, Rule 4(j) and
(k) requires, as a corollary, that such
notice be given contemporaneously in time with
the transfer of the cause by the Clerk [of]
Superior Court to the Superior Court for
trial, or within a reasonable time thereafter,
but in no event later than the expiration of
the three-year time limitation period provided
for by N.C. Gen. Stat. § 31-32[.]
The trial court, accordingly, allowed propounder's motion for
summary judgment for either or both of the reasons of the statute
of limitations and failure to prosecute. Caveator appeals.
In reviewing an appeal from summary judgment, we must
determine whether there exists any genuine issue as to any
material fact and whether the moving party is entitled to a
judgment as a matter of law. N.C. Gen. Stat. § 1A-1, Rule 56(c)
(2005); In re Will of Campbell, 155 N.C. App. 441, 450, 573 S.E.2d
550, 557 (2002), disc. review denied, 357 N.C. 63, 579 S.E.2d 385
(2003). In ruling on a motion for summary judgment, the court may
consider 'the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits[.]' In re
Will of Priddy, 171 N.C. App. 395, 396-97, 614 S.E.2d 454, 456
(2005) (quoting N.C. Gen. Stat. § 1A-1, Rule 56(c)). All suchevidence must be considered in the light most favorable to the
non-moving party. Id. We examine the two bases of the trial
court's summary disposition in turn.
I. Statute of Limitations
 The relevant statute of limitations for a will caveat
proceeding is set forth in N.C. Gen. Stat. § 31-32 (2005):
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[.]
In addition, a caveator must comply with the bond requirement under
N.C. Gen. Stat. § 31-33 (2005) within the statute of limitations in
order for a valid caveat to arise. In re Will of Winborne, 231
N.C. 463, 57 S.E.2d 795 (1950). When the statute of limitations is
properly pleaded and the facts of the case are not disputed[,]
resolution of the question becomes a matter of law and summary
judgment may be appropriate. Marshburn v. Associated Indemnity
Corp., 84 N.C. App. 365, 369, 353 S.E.2d 123, 126, disc. review
denied, 319 N.C. 673, 356 S.E.2d 779 (1987).
In the instant case, decedent's will and accompanying codicil
were admitted to probate in common form on 29 August 2001.
Caveator filed the caveat on 19 July 2002, well within the three-
year period. In addition, the record contains an order entered by
the clerk of the Durham County Superior Court on 19 July 2002 that
caveator has given the bond required by law. Despite caveator's
compliance with the statutory requirements, propounder asserts thetrial court correctly granted summary judgment on the grounds of
the statute of limitations because caveator failed to provide the
notice required by N.C. Gen. Stat. § 31-33. Propounder argues such
notice, like the bond requirement, must be complied with within the
period of the statute of limitations. The error in this argument
is manifest: N.C. Gen. Stat. § 31-33 requires a caveator to give
an appropriate bond prior to the clerk transferring the cause to
the superior court; by way of contrast, notice necessarily comes
after the cause is transferred. We hold that where, as here, a
caveator enters a caveat to the probate of a will within three
years after the application for probate of such will and complies
with the bond requirements of N.C. Gen. Stat. § 31-33, the
proceeding has been properly filed within the limitations period of
N.C. Gen. Stat. § 31-32. Accordingly, we turn to the second basis
of the trial court's order.
II. Failure to Prosecute
 Our Rules of Civil Procedure authorize a court to dismiss
an action or . . . any claim therein against a defendant where a
plaintiff fails to prosecute a claim. N.C. Gen. Stat. § 1A-1, Rule
41(b). In the instant case, the trial court dismissed the caveat
on this ground upon observing that the notice required by N.C. Gen.
Stat. § 31-33 should be given contemporaneously in time with the
transfer of the cause by the Clerk [of] Superior Court . . . for
trial, or within a reasonable time thereafter, but in no event
later than the expiration of the three-year statute of limitationsas provided in N.C. Gen. Stat. § 31-32. We disavow the trial
court's order based on the following reasons.
First, the trial court's dismissal on the basis of failure to
prosecute within the statute of limitations improperly conflates
the time in which a party may provide notice in a caveat with the
time in which a party may commence a caveat. Second, provided a
plaintiff has not been lacking in diligence, the mere passage of
time does not justify dismissal for failure to prosecute as our
courts are primarily concerned with the trial of cases on their
merits. Butler Service Co. v. Butler Service Group
, 66 N.C. App.
132, 136, 310 S.E.2d 406, 408 (1984). Dismissal for failure to
prosecute is proper only where the plaintiff manifests an intention
to thwart the progress of the action to its conclusion, or by some
delaying tactic plaintiff fails to progress the action toward its
conclusion. Green v. Eure, Secretary of State
, 18 N.C. App. 671,
672, 197 S.E.2d 599, 601 (1973) (citing 5 Moore's Federal Practice,
para. 41.11(2)) (reversing dismissal under Rule 41(b) where over
two years elapsed between the time the plaintiff filed the
complaint and the hearing on the motion to dismiss, and the
plaintiff neither took steps to prosecute his action nor requested
the Calendar Committee to place the case on the calendar). See
also Simmons v. Tuttle
, 70 N.C. App. 101, 318 S.E.2d 847 (1984)
(holding dismissal for failure to prosecute was improper where a
plaintiff's counsel was negligent in failing to stay abreast of the
calendar as such neglect was not imputable to the plaintiff). In the instant case, propounder argues dismissal under Rule
41(b) was appropriate because (1) caveator failed to provide
appropriate notice within the statute of limitations and (2)
caveator failed to proceed in a timely manner, irrespective of the
production of medical records, by failing to advance the litigation
after the Clerk failed to designate a session of court for the
caveat hearing. We have already dismissed as erroneous
propounder's reliance on caveator's failure to provide notice.
Propounder's second ground is likewise unavailing. Nothing in the
record indicates caveator attempted to thwart progress or
implemented a delaying tactic that would otherwise justify the
trial court's dismissal under Rule 41(b). We hold the trial court
erred in dismissing the caveat proceeding on the basis of failure
to prosecute under Rule 41(b).
Our resolution of the summary judgment issue renders it
unnecessary to address the remaining arguments presented on appeal.
We remand for further proceedings not inconsistent with this
Reversed and remanded.
Judges WYNN and STEPHENS concur.
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