An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 21 November 2006
ROBERT S MINOWICZ, JR.,
THOMAS D. MINOWICZ, and
STEVEN J. MINOWICZ,
DONNA P. STEPHENS,
Appeal by defendant from order entered 28 September 2005 by
Judge C. Preston Cornelius in Cleveland County Superior Court.
Heard in the Court of Appeals 10 October 2006.
Michael M. Lakin for plaintiff appellees.
Cerwin Law Firm, P.C., by Todd R. Cerwin, for defendant
Defendant appeals from order granting plaintiffs' motion for
judgment on the pleadings. We affirm.
Robert S. Minowicz, Jr., Thomas D. Minowicz, and Steven J.
Minowicz (plaintiffs) are the sons of Robert S. Minowicz, Sr.
(testator). Donna P. Stephens (defendant) and testator were
never married, but they lived together prior to his death.
On 11 September 1995, testator executed a last will and
testament. A paragraph in the will at issue in this case states: I will, devise and bequeath to my DONNA
PORTER STEPHENS, a life estate in all real
property owned by me at the time of my death,
with the remainder interest to be held as
tenants in common by my three sons, ROBERT S.
MINOWICZ, JR., THOMAS DAVID MINOWICZ, and
STEVEN JAMES MINOWICZ. During the life of
DONNA PORTER STEPHENS, any debt owed on the
property devised to DONNA PORTER STEPHENS
shall be borne equally by my three sons.
On 3 December 1997, testator died. Testator's will was properly
admitted to probate and the estate administered.
Subsequent to testator's death, a dispute arose regarding who
was obligated for certain expenses on the property. Some of the
expenses at issue included regular maintenance, property taxes, and
insurance coverage. Plaintiffs sued defendant and requested, among
other things, that the trial court answer two questions: (1) who is
obligated to pay taxes on the property, and the expense of ordinary
repairs for the property, and (2) is defendant entitled to make
permanent improvements to the property and be reimbursed by
plaintiffs for those improvements. Defendant counterclaimed
requesting the trial court to determine what debts were intended to
be paid by plaintiffs when testator declared that during the life
of defendant, plaintiffs shall pay any debt owed on the property.
Subsequent to defendant's counterclaim, plaintiffs made a motion
for judgment on the pleadings. Then, defendant made a motion for
judgment on the pleadings. On 28 September 2005, the trial court
granted plaintiffs' motion for judgment on the pleadings stating
that the court construed the words debt on the property contained
in testator's will to refer to two mortgages that were on the
property at the time the testator executed the will. The trialcourt ordered defendant to pay the property taxes, and the cost of
ordinary and necessary maintenance and repairs. The court ordered
that plaintiffs are responsible for permanent and extraordinary
repairs and that defendant is not to have such repairs performed
without first consulting plaintiffs and obtaining their consent.
Defendant contends the trial court committed reversible error
by granting plaintiffs' motion for judgment on the pleadings,
pursuant to Rule 12(c) of the North Carolina Rules of Civil
Procedure. We disagree.
A motion for judgment on the pleadings is authorized by Rule
12(c) of the North Carolina Rules of Civil Procedure. N.C. Gen.
Stat. § 1A-1, Rule 12(c) (2005). The rule's function is to dispose
of baseless claims or defenses when the formal pleadings reveal
their lack of merit. Ragsdale v. Kennedy, 286 N.C. 130, 137, 209
S.E.2d 494, 499 (1974). A motion for judgment on the pleadings
should not be granted unless 'the movant clearly establishes that
no material issue of fact remains to be resolved and that he is
entitled to judgment as a matter of law.' Toomer v. Branch
Banking & Tr. Co., 171 N.C. App. 58, 66, 614 S.E.2d 328, 334, disc.
review denied, 360 N.C. 78, 623 S.E.2d 263 (2005) (citations
omitted). 'In considering a motion for judgment on the pleadings,
the trial court is required to view the facts presented in the
pleadings and the inferences to be drawn therefrom in the light
most favorable to the nonmoving party.' Id. (citations omitted). We review motions made pursuant to Rule 12(c) de novo. Id. at 66,
614 S.E.2d at 335.
In the instant case, both parties agree that no material
issues of fact remain. The only issue is the interpretation of the
provision in testator's will which states that [d]uring the life
of [defendant], any debt owed on the property devised to
[defendant], shall be borne equally by [plaintiffs]. This state's
courts have often stated the intent of the testator is the polar
star that must guide the courts in the interpretation of a will.
Wing v. Trust Co., 301 N.C. 456, 462-63, 272 S.E.2d 90, 95 (1980)
(citations omitted). If the terms of a will are set forth in
clear, unequivocal and unambiguous language, judicial construction
is unnecessary. Pittman v. Thomas, 307 N.C. 485, 492, 299 S.E.2d
207, 211 (1983). 'When doubt exists as to what the testator
intended, resort may be had to the courts for construction of the
will.' Id. (citation omitted). The court looks at every provision
of the will, weighing each statement, and gathering the testator's
intent from the four corners of the instrument. Holland v. Smith,
224 N.C. 255, 257, 29 S.E.2d 888, 889-90 (1944). Our Supreme Court
has emphasized that the court's responsibility is 'to place itself
as nearly as practicable in the position of the testator' at the
time the will was executed. Pittman, 307 N.C. at 492, 299 S.E.2d
Applying the foregoing to the record before us, we conclude
the trial judge correctly construed testator's intention. The
same words, or those nearly similar, used under differentcircumstances and contexts may express different intentions
. . . . Coffield v. Peele, 246 N.C. 661, 664, 100 S.E.2d 45, 47
(1957). Black's Law Dictionary defines debt as a specific sum
of money due by agreement or otherwise. Black's Law Dictionary
432 (8th ed. 2004). We believe testator intended plaintiffs to pay
for the debts owed on the property which were secured by the
property at the time testator executed his will as they were the
specific sums of money that were due by agreement. This is
consistent with the trial court's decision that the words debt on
the property refers to the two mortgages that were on the property
at the time testator executed the will.
Unlike the mortgages, the items defendant wants plaintiffs to
pay for include mowing expenses, maintenance expenses, home
improvements and property taxes. These items are not specific sums
of money that we consider debt on the property. We do not believe
testator intended to give defendant the power to make improvements
on the property and hold plaintiffs responsible for paying for
them. Further, we do not believe testator intended to make
plaintiffs responsible for the property taxes, and the cost of
ordinary and necessary maintenance and repairs.
Accordingly, we disagree with defendant's contention.
Defendant contends the trial court committed reversible error
by denying defendant's motion for judgment on the pleadings,
pursuant to Rule 12(c) of the North Carolina Rules of CivilProcedure. Based on our decision above, we disagree with
Accordingly, we affirm the trial court.
Judges McGEE and WYNN concur.
Report per Rule 30(e).
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