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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

NO. COA06-526

NORTH CAROLINA COURT OF APPEALS

Filed: 07 August 2007

CLEON CURRIE,
Executor of the estate
Of Della Brown,
    Plaintiff,

v .                         Caswell County
                            No. 04 CVS 336
ISAAC POTEAT, JR., and wife,
ROSETTA POTEAT,
    Defendants.

    Appeal by defendants from judgment entered 24 October 2005 by Judge Evelyn W. Hill in Caswell County Superior Court. Heard in the Court of Appeals 9 January 2007.

    Gable, Glidewell & Klinedinst, by Powell W. Glidewell for plaintiff-appellee.

    George B. Daniel, P.A., by George B. Daniel and Julie C. Boyer for defendants-appellants.

    STEELMAN, Judge.

    Defendants appeal a jury verdict awarding plaintiff $75,000.00 in damages for constructive fraud and conversion. We hold defendants did not properly preserve for appeal their affirmative defense that the action was barred by the statute of limitations, and we further hold Judge Hill's conduct during the trial did not prejudice defendants and deprive them of a fair trial. For the reasons stated herein, we affirm.
    Della Brown (decedent), was defendant Isaac Poteat's aunt. In the 1970's decedent lived near Mr. Poteat and his wife, RosettaPoteat (“defendants”) in New Jersey. On 2 December 1993, following her retirement, decedent, then in her late seventies, was admitted to a nursing facility due to malnourishment and an apparent inability to properly care for herself. Defendants visited decedent in the nursing facility on a regular basis. Mr. Poteat, upon his own initiative and not at decedent's request, began to assist decedent with her financial affairs. Mr. Poteat testified at trial that he believed decedent to be “senile” at the time she resided in the nursing facility in New Jersey. Ms. Poteat testified at trial that she did not believe decedent to have been competent to handle her affairs during this period of time.
    Subsequent to decedent's placement in the facility, defendants cleared out her apartment, distributing her possessions among their grandchildren. While cleaning out her apartment, defendants also took possession of a tackle box containing decedent's important papers. These included her will, which did not name defendants as primary beneficiaries, and bank statements from Hudson City Savings Bank indicating decedent had approximately $92,000.00 in one savings account.
    In late 1993 or early 1994, while she was still residing in the nursing facility, defendants took decedent to her bank, whereupon she transferred approximately $92,000.00 from her account to one solely owned by Mr. Poteat. Mr. Poteat testified that decedent told him she wanted him to have the money, because she knew he would take care of her. Defendants moved decedent and themselves to Caswell County, North Carolina in May of 1994. Defendants used $75,000.00 of the $92,000.00 obtained from decedent to purchase a home in Caswell County. This home was titled to defendants, not decedent. While residing in Caswell County, decedent initially lived with defendants for about three months, and was then transferred to one nursing facility, then another. Sometime in 2001, decedent moved back in with defendants, where she resided until her death 13 March 2002.
    On 14 March 1997, Mr. Poteat filed a guardianship action in Rockingham County to have decedent deemed incompetent, and have himself appointed guardian of her person. A 7 April 1997 order signed by the Clerk of Rockingham County did, in fact, find decedent incompetent and appoint Mr. Poteat as her guardian. As a result of his appointment as guardian, Mr. Poteat was required to keep an accounting of decedent's assets and his expenditures on her behalf. At some point, Mr. Poteat discovered that decedent had an additional $35,000.00 in a different Hudson City Savings Bank account, and that amount was transferred to an account controlled by Mr. Poteat.
    From these assets, and social security and pension benefits, Mr. Poteat paid for decedent's expenses and care. From these assets Mr. Poteat also paid his wife $14,400.00, ostensibly as compensation in the amount of $1,200.00 per month for her care of decedent. When asked about this payment at trial, Ms. Poteat testified that Mr. Poteat told her “he had to give account of the money, so he paid me to look after her.” And “because he said he had to give account ..., he says, I might as well pay you.” Defendants did not pay any of decedent's expenses from the $92,000.00 transferred directly to Mr. Poteat.
    Decedent died in defendants' home 13 March 2002. Cleon Currie, a great nephew of decedent, was named as executor of decedent's estate (“plaintiff”) in her will.
    Plaintiff filed a complaint in Caswell County Superior Court alleging fraud, constructive fraud, trover and conversion, and undue influence in September of 2003. The complaint was voluntarily dismissed without prejudice in September of 2004 once it was learned that decedent's estate had been closed. Plaintiff filed a second complaint containing the same allegations on 22 September 2004 after decedent's estate was reopened on that same date.
    On 6 September 2005, Defendants made an oral motion to dismiss the action on the basis that the statute of limitations banned the claims. This motion was denied. At the close of plaintiff's evidence, defendants moved for a directed verdict on plaintiff's claims. The motion was granted by the trial court as to plaintiff's claims for fraud and undue influence. Defendants did not raise the affirmative defense of the statute of limitations at the close of plaintiff's evidence, and they put on no evidence after the close of plaintiff's evidence. The jury returned verdicts in favor of plaintiff on the issues of constructive fraud and conversion on 12 September 2005 and awarded decedent's estate damages in the amount of $75,000.00.         In defendants' first argument, they contend that the trial court erred in denying their motion to dismiss due to the statute of limitations. Because this argument is not properly before us, we dismiss it.
     “ Whether a cause of action is barred by the statute of limitations is a mixed question of law and fact. Ordinarily it will be for the jury. Where the facts are admitted or established, the question becomes one of law for the court.” Georgia-Pacific Corp. v. Bondurant, 81 N.C. App. 362, 364, 344 S.E.2d 302, 304 (1986) (citations omitted) .
    Before trial, Defendants made an oral motion to dismiss the action pursuant to N.C. R. Civ. P. 12(b)(6), arguing it was barred by the applicable statute of limitations. It is well-settled that the denial of a motion to dismiss made pursuant to N.C. R. Civ. P. 12(b)(6) is not appealable when the case proceeded to a judgment on the merits (except when involving issues of jurisdiction). See, e.g., In re Will of McFayden, __ N.C. App. __, __, 635 S.E.2d 65, 68 (2006); Concrete Serv. 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).
    Defendants did not move for a directed verdict based upon the statute of limitations at the close of plaintiff's evidence or at the close of all the evidence. Further, they did not request that the court submit the issue of whether the statute of limitations had expired to the jury. The jury returned a verdict in the case. The denial of defendants' motion to dismiss is therefore notproperly before this Court. McFayden, __ N.C. App. at __, 635 S.E.2d at 68. This argument is dismissed.
    In their second argument, defendants contend that the trial judge's conduct during the questioning of defendants prejudiced the jury against them. We disagree.
    A trial judge occupies a respected position, and must take care to avoid comments or conduct that could discredit or prejudice any party. State v. Brinkley, 159 N.C. App. 446, 447, 583 S.E.2d 335, 337 (2003).
        “When considering an improper remark in light of the circumstances under which it was made, the underlying result may manifest mere harmless error.” In other words, “whether the accused was deprived of a fair trial by the challenged remarks [of the court] must be determined by what was said and its probable effect upon the jury in light of all attendant circumstances, the burden of showing prejudice being upon the appellant.”

Brinkley, 159 N.C. App. at 448, 583 S.E.2d at 337; see also Russell v. Morehead City, 90 N.C. App. 675, 680, 370 S.E.2d 56, 59 (1988).
    In the case at bar, defendants complain of several instances in which they contend Judge Hill's comments were prejudicial and deprived them of a fair trial. While plaintiff's counsel was questioning Ms. Poteat, she answered a question with details of what a third party had said to her. Because her response was inadmissible hearsay, Judge Hill stopped her and explained she could not testify as to what this third party had said. When Ms. Poteat attempted to repeat the same statement, Judge Hill asked the witness “Ma'am, are you hard of hearing?” Ms. Poteat respondedthat she did have difficulty hearing at times. Judge Hill then said “I'm going to speak up loudly so you can hear me.”
    Defendants contend Judge Hill's inquiry into the state of Ms. Poteat's hearing was an effort to belittle or reprimand her. Our reading of the transcript evinces nothing more than the trial judge attempting to determine if the witness was having difficulty understanding her instructions.
    Later in the cross-examination of Ms. Poteat, Judge Hill excused the jury, then explained to Ms. Poteat that she was only to answer the questions posed to her by the attorney questioning her. The trial judge noted to the witness that she had similarly instructed plaintiff's witness, Cleon Currie, when he was testifying.
    Plaintiff's counsel then called defendant, Mr. Poteat. On direct examination, Mr. Poteat was repeatedly instructed by Judge Hill to only respond to the question asked of him, and not to provide extraneous information. When Mr. Poteat continued to stray outside the boundaries of the questions asked, Judge Hill excused the jury, admonished Mr. Poteat in much stronger terms to limit his answers to the questions asked, and made multiple findings of fact concerning Mr. Poteat's attitude and demeanor on the witness stand.
    The vast majority of the remarks of which defendants complain were made outside the presence of the jury. These remarks could not, therefore, have had any effect upon the jury. Brinkley, 159 N.C. App. at 448, 583 S.E.2d at 337. After thoroughly reviewing the transcript of the trial, we find no remarks which, singly ortaken together, demonstrate prejudice to defendants depriving them of a fair trial. Defendants have failed to meet their burden of proving otherwise. Id. This argument is without merit.    
    Assignments of error listed in the record but not argued in defendants' brief are deemed abandoned. N.C. R. App. P. 28(b)(6) (2007).
    AFFIRMED.
    Judges WYNN and HUNTER concur.
    Report per Rule 30(e).

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