Appeal by caveator from an order entered 29 June 2006 by Judge
Abraham Penn Jones, and cross-appeal by propounder from an order
entered 12 May 2004 by Judge Ronald L. Stephens in Durham County
Superior Court. Heard in the Court of Appeals 18 September 2007.
Nick Galifianakis & Associates, by Nick Galifianakis and David
Krall for caveator-appellant.
Everett & Everett, by Sandra Herring, for propounder-
This appeal is the latest installment in the twelve years of
litigation over the will of Robert Lee Dunn. Mr. Dunn died in
1995, and his six children have been litigating ever since as to
which of several documents is Mr. Dunn's actual last will and
testament. The full background and facts can be found at In re
Will of Dunn, 129 N.C. App. 321, 500 S.E.2d 99 (1998). We note in
this opinion only the facts and procedural history relevant to our
Both the caveator and the propounder appeal in this instance.
After careful consideration, we affirm the court's grant of themotion to vacate the order of dismissal with prejudice but reverse
the court's order granting summary judgment.
Three papers are at issue here: A will executed on 29 August
1994 (August will); a will executed on 20 September 1994
(September will); and a codicil executed on 26 October 1995
(October codicil). The August will was filed with the Clerk of
Court in Durham County shortly after its execution, but retrieved
and destroyed by Mr. Dunn in early October 1994.
(See footnote 1)
He was taken to
the Clerk of Court's office by daughter Virginia and son Joe. The
August will names only daughter Betty and son Bill as legatees.
The September will leaves everything in equal shares to his six
children. The October codicil disinherited daughter Betty and son
These conflicting documents were presented to a jury in 1996.
The jury found that the September will and October codicil were
procured by undue influence, but not submitted to them was the
question of whether the August will was validly revoked. In re
Will of Dunn
, 129 N.C. App. at 324-25, 500 S.E.2d at 101-02. In
entering the judgment on this verdict, the trial court then made
its own findings pursuant to North Carolina Rule of Civil Procedure
49(c) that the August will was validly revoked and, thus, Mr. Dunndied intestate. Id
. at 324-25, 500 S.E.2d at 102. On appeal, in
April 1998, this Court reversed the portion of the judgment holding
that the will was validly revoked, holding that the issue should
have been submitted to a jury. Id
. at 329, 500 S.E.2d at 104.
This Court remanded the case to the superior court for further
proceedings as to both (1) whether the August will was validly
revoked and (2) whether it was procured under undue influence. Id
at 330, 500 S.E.2d at 105.
Instead of submitting the issue to a jury, however, on 22
October 1998 the superior court entered a revised judgment
restating the jury verdicts that the September will and October
codicil were not Mr. Dunn's last will and testament, and stating
that any interested person may submit the [August will] to the
Clerk of Superior Court to be probated. The August will was
presented by Bill Dunn (propounder), and on 21 March 2002 Joseph
Dunn filed a caveat opposing that will.
On 23 February 2004, the superior court found that two persons
deemed necessary parties had not been properly noticed of the
proceedings and thus dismissed the action with prejudice. The
caveator filed a motion for relief pursuant to North Carolina Rule
of Civil Procedure 60(b) from that order, and the trial court
granted the motion and ordered that the case be set for trial on
the issues of whether the August will was validly executed without
undue influence and whether it was revoked without undue influence.
In that order, the court correctly noted that this Court in In re
Will of Dunn
, 129 N.C. App. at 327-29, 500 S.E.2d at 103-04, hadordered that these two issues be put before a jury. Propounder
appeals from this order.
On 29 June 2006, the superior court heard two motions from
propounder asking for partial summary judgment on two issues: (1)
undue influence in the execution of the September will and October
codicil, and (2) undue influence in the revocation of the August
will. The court granted both motions, holding that the August will
was valid and not procured by undue influence, and that the August
will was never validly revoked because its revocation was obtained
by undue influence. The court ordered that the August will be
submitted for probate. Caveator appeals from this order.
We first address propounder's appeal from the court's May 2004
grant of caveator's motion for relief from the February 2004 order
of dismissal with prejudice. We uphold the trial court's granting
of the motion.
In its order dismissing the case with prejudice, the court
found that two particular parties that the court deemed necessary
parties were not properly noticed of the proceedings by the
caveator. Caveator's motion for relief was made pursuant to Rule
60(b) of the North Carolina Rules of Civil Procedure on the
following three bases:
On motion and upon such terms as are just, the
court may relieve a party or his legal
representative from a final judgment, order,
or proceeding for the following reasons:
(1) Mistake, inadvertence, surprise, or
. . .
(4) The judgment is void;
. . .
(6) Any other reason justifying relief
from the operation of the judgment.
N.C. Gen. Stat. § 1A-1, Rule 60(b) (2005). Though the court does
not specify which of the three grounds underpins its holding, we
hold that the court properly granted the motion for relief based on
As the court noted in its order, the test by which relief can
be given under subsection (6) is whether '(1) extraordinary
circumstances exist and (2) there is a showing that justice demands
it[,]' along with whether the movant has demonstrated a
meritorious defense. In the Matter of Oxford Plastics v. Goodson
74 N.C. App. 256, 259, 328 S.E.2d 7, 9 (1985) (citation omitted).
Among the extraordinary circumstances that the court noted in
support of this holding was the fact that after the action was
dismissed, the court discovered in the record evidence that the two
parties concerned had in fact been noticed prior to the hearing.
The court also held that justice demanded this relief be granted so
as to allow the heirs of Robert Lee Dunn the opportunity to present
arguments to a jury. Finally, the court held that caveator had a
meritorious defense, defined as his 'show[ing] facts which raise
an issue sufficient to defeat his adversary, if it be found in his
favor[.]' This Court had already ordered that the issue of undue
influence should have been submitted to a jury, and as such both
parties clearly had facts supporting both sides of the argument. Bank v. Finance Co
., 25 N.C. App. 211, 212, 212 S.E.2d 552, 553
(1975) (citations omitted).
Thus, the court did not err in granting propounder's motion to
vacate the order of dismissal with prejudice. As such, we must now
consider caveator's arguments as to the validity of the ensuing
order granting summary judgment.
Caveator argues that the court improperly granted summary
judgment on the two issues of undue influence. We agree.
A decision of this Court on a prior appeal constitutes the
law of the case, both in subsequent proceedings in the trial court
and on a subsequent appeal. '[O]ur mandate is binding upon [the
trial court] and must be strictly followed without variation or
departure.' Lea Co. v. N.C. Board of Transportation
, 323 N.C.
697, 699, 374 S.E.2d 866, 868 (1989) (citation omitted)
(alterations in original) (quoting D & W, Inc. v. Charlotte
N.C. 720, 722, 152 S.E.2d 199, 202 (1966)). Though this statement
was made by our Supreme Court, it holds true for this Court as
well. See, e.g., Epps v. Duke University
, 122 N.C. App. 198, 201,
468 S.E.2d 846, 849 (1996) (holding that where a previous appeal in
the same case had resolved the same issues as were presented on
present appeal, previous resolution was the law of the case).
Further, a trial court does not have authority to modify parts of
its own order which are affirmed by an appellate court and cannot
go beyond the mandate of the reviewing appellate court. Middletonv. Russell Grp., Ltd
., 132 N.C. App. 792, 794, 514 S.E.2d 94, 96
Our previous opinion in this case explicitly held that the
issues of undue influence as to the creation and revocation of the
August will were issues for the jury, not the trial court:
Our Supreme Court has held that once a
caveat to a will is filed and the proceeding
is transferred to the superior court for
trial, there can be no probate except by a
. The trial court may not, at
least where there are any factual issues,
resolve those issues even by consent . . . .
We interpret this holding to mean that in a
caveat proceeding the parties may not waive,
either by consent or by implication, jury
resolution of an issue upon which the evidence
is in conflict and material facts are in
controversy. . . .
[W]here the facts are in dispute, issues with
respect to the testator's capacity to revoke a
will and whether the revocation occurred as a
result of undue influence may not be decided
by the trial judge, but must be decided by a
. . .
[W]e believe the foregoing circumstances are
sufficient to raise jury issues
as to whether
the 29 August 1994 script was Mr. Dunn's last
will and testament, including the issues of
whether its execution or revocation were
procured by undue influence.
In re Will of Dunn
, 129 N.C. App. at 327-29, 500 S.E.2d at 103-04
(emphasis added; internal citations omitted). After affirming the
only other issue -- an order awarding attorneys' fees to one party
-- the Court held that the order was [a]ffirmed in part, reversed
in part, and remanded
. at 330, 500 S.E.2d at 105 (emphasis
added). Here, then, where this Court explicitly held that the issues
of undue influence as to the creation and revocation of the August
will were issues for the jury, not the trial court, the court's
grant of summary judgment on both issues was an impermissible
deviation from this Court's opinion, which had become the law of
the case. As such, we reverse the grant of the motions and remand
the case with repeated instructions to put before a jury the
following two issues: (1) whether the August will was validly
revoked and (2) whether it was procured under undue influence.
Affirmed in part, reversed in part, and remanded.
Judges WYNN and JACKSON concur.
Report per Rule 30(e).