Opinion
No. COA14–649.
03-03-2015
Maria Nell PILOS–NARRON, Plaintiff, v. Gregory H. NARRON, Defendant.
Wyrick Robbins Yates & Ponton LLP, by Michelle D. Connell, for Plaintiff–Appellee. Emily Sutton Dezio, for Defendant–Appellant.
Wyrick Robbins Yates & Ponton LLP, by Michelle D. Connell, for Plaintiff–Appellee.
Emily Sutton Dezio, for Defendant–Appellant.
McGEE, Chief Judge.
Gregory H. Narron (“Defendant”) appeals from orders of the trial court granting partial summary judgment in favor of Maria Nell Pilos–Narron (“Plaintiff”), Defendant's former wife, and denying Defendant's motion for a new trial. Defendant contends that summary judgment was improper because there were material questions of fact regarding the validity of the separation agreement entered into by the parties. We agree.
I. Standard of Review
Summary judgment should be granted only when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” N.C. Gen.Stat. § 1A–1, Rule 56(c) (2013). “[I]n passing upon a motion for summary judgment ... [the facts] must be viewed in the light most favorable to the party opposing the motion, and such party is entitled to the benefit of all inferences in [the party's] favor which may be reasonably drawn from such material.” Whitley v. Cubberly, 24 N.C.App. 204, 206–07, 210 S.E.2d 289, 291 (1974). The party moving for summary judgment has the burden of establishing the absence of any triable issue of fact in the record. Thomco Realty, Inc. v. Helms, 107 N.C.App. 224, 226, 418 S.E.2d 834, 835–36 (1992) (citation omitted).
The movant can meet this burden in one of two ways: (1) by showing that an essential element of the opposing party's claim is nonexistent; or (2) demonstrating that the opposing party cannot produce evidence sufficient to support an essential element of the claim or overcome an affirmative defense which would work to bar his claim.... Once the moving party has met its burden, the opposing party must challenge the motion by forecasting sufficient evidence to illustrate the existence of a prima facie case for trial. However, it is improper for the trial court to consider whether the non-moving party offered evidence to support their claim when the moving party has failed to offer sufficient evidence to defeat the claim in its entirety and demonstrate that it is entitled to judgment as a matter of law.
Wilhelm v. City of Fayetteville, 121 N.C.App. 87, 89, 464 S.E.2d 299, 300 (1995) (citations omitted).
II. Background
Because this is an appeal by Defendant from a grant of summary judgment against him, we must consider the facts in the light most favorable to Defendant. See Whitley, 24 N.C.App. at 206–07, 210 S.E.2d at 291. The parties were married on 13 September 1986. They executed a separation agreement on 27 January 2012 (“the separation agreement”) and separated shortly thereafter. Plaintiff filed an action against Defendant for absolute divorce, child custody, and specific performance under the separation agreement on 12 June 2013. Defendant's amended answer, in part, requested that the trial court rescind the separation agreement and raised a counterclaim of equitable distribution of the parties' marital assets. Specifically, Defendant asserted that the separation agreement was invalid because he entered into the agreement under duress. Defendant alleged that Plaintiff threatened to “out” him as a “gay, narcissistic therapist who was leading a double life,” and that Plaintiff procured Defendant's signature on the separation agreement only after Plaintiff indicated:
a. That she had proof that Defendant was a homosexual;
b. That her dramatic revelation to the parties['] children and the public that Defendant was a homosexual and an unethical professional would ruin him, his relationship with his children, and his reputation in the professional and general community; [and]
c. That if Defendant complied with her demands, that she would cease to further harm and or damage him by discontinuing to spread rumors to others about the Defendant's sexuality and his professional prowess[.]
Defendant also alleged that Plaintiff made “continual threats” along these lines to compel his ongoing compliance with the terms of the separation agreement.
Plaintiff moved for summary judgment with respect to Defendant's challenge to the validity of the separation agreement on 4 November 2013. In response, Defendant filed an affidavit in opposition to Plaintiff's motion and reiterated the factual bases for his challenge to the validity of the separation agreement, described above. The trial court granted Plaintiff's motion for partial summary judgment by order dated 2 January 2014. Defendant then moved for a new trial on 10 January 2014, pursuant to N.C. Gen.Stat. § 1A–1, Rule 59. The trial court denied this motion as well. From both denials, Defendant appeals.
III. Summary Judgment
A. Interlocutory Appeal
Before addressing the merits of Defendant's appeal, we must examine whether the orders of the trial court are immediately appealable. Both parties agree that Defendant's appeal is interlocutory.
An interlocutory order ... is immediately appealable in only two instances. The first is when the trial court enters a final judgment with respect to one or more, but less than all[,] of the parties or claims and certifies the judgment for immediate review under Rule 54(b) of the Rules of Civil Procedure. The second instance is when the order affects a substantial right and will work injury to the appellant[ ] if not corrected before final judgment.
Lambe Realty Inv., Inc. v. Allstate Ins. Co., 137 N.C.App. 1, 3, 527 S.E.2d 328, 330 (2000) (citations and internal quotation marks omitted). Regarding an appeal under the substantial right prong,
[when] [t]he trial court in granting summary judgment concluded that [a] separation agreement was valid[,] ... [t]he separation agreement [became] a bar to the counterclaim for equitable distribution.... [Therefore, the] trial court's conclusion completely dispose[d] of the issue of equitable distribution, thereby affecting a substantial right of the defendant rendering the appeal reviewable.
Case v. Case, 73 N.C.App. 76, 78–79, 325 S.E.2d 661, 663 (1985). In the present case, the trial court granted summary judgment against Defendant's challenge to the separation agreement, thereby validating the separation agreement. This action acted as a bar to Defendant's counterclaim of equitable distribution. See id .As such, we find that Defendant's interlocutory appeal affects a substantial right and is reviewable by this Court.
For similar reasons, we deny Plaintiff's referred Motion to Dismiss Defendant's Appeal, filed with this Court on 3 September 2014.
B. Analysis
Defendant contends that he has raised material questions of fact as to whether he entered into the separation agreement under duress and whether Plaintiff allegedly making “continual threats” compelled his ongoing compliance therewith. In her brief, Plaintiff does not expressly argue that Defendant entered into the separation agreement free from undue influence. Instead, she contends (1) that Defendant did not sufficiently plead duress in his amended answer, (2) that he did not adequately forecast “new information” in his affidavit opposing summary judgment, and (3) that he ratified the separation agreement after its execution as a matter of law.
1. Sufficiency of Pleadings
Regarding the sufficiency of Defendant's pleading of duress, Plaintiff asserts that “Defendant did not plead duress in his amended counterclaims at all” and that “the words ‘free will’ never appear in his counterclaims.” While these statements are technically true, we note that Defendant pleaded duress as an affirmative defensein his amended answer, pursuant to N.C. Gen.Stat. § 1A–1, Rule 8(c) (2013) (defining “duress” as an affirmative defense). We also note that Defendant included a “counterclaim” for rescission of the separation agreement, which was based on the same specific facts, discussed above, that Defendant alleged induced his ongoing compliance with the separation agreement. These alleged facts clearly implicated Defendant's “free will”—even if Defendant did not use that specific term—and Plaintiff has not provided this Court with any authority indicating that North Carolina's “liberal” notice pleading requirements demand anything more specific. See Sutton v. Duke, 277 N.C. 94, 102, 176 S.E.2d 161, 165 (1970) (“Under the notice theory of pleading [,] a statement of claim is adequate if it gives sufficient notice of the claim asserted to enable the adverse party to answer and prepare for trial, to allow for the application of the doctrine of res judicata,and to show the type of case brought[.]”) (citation and internal quotation marks omitted)). Instead, Defendant's amended answer contained “short and plain statement[s]” regarding his allegedly being induced to execute, and perform under, the separation agreement that were “sufficiently particular to give the court and the parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved” at trial. SeeN.C.G.S. § 1A–1, Rule 8(c) ; see alsoN.C. Gen.Stat. § 1A–1, Rule 9(b) (2013) (“In all averments of fraud, duress or mistake, the circumstances ... shall be stated with particularity.”).
Although Defendant's “counterclaim” for rescission of the separation agreement may more correctly be viewed as an “avoidance or affirmative defense” under N.C.G.S. § 1A–1, Rule 8(c), regardless of whether a party has “designated a defense as a counterclaim or a counterclaim as a defense, the court, on terms, if justice so requires, shall treat the pleading as if there had been a proper designation.” Id.
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2. Forecast of “New Information”
Plaintiff also contends that summary judgment was proper because Defendant's affidavit in opposition to Plaintiff's motion for summary judgment “simply echoed the allegations [in] his counterclaim ... [and] is devoid of new informationthat would warrant invalidating the negotiated separation agreement.” (emphasis added). In support of this position, Plaintiff relies largely on Widener v. Widener, 159 N.C.App. 469, 583 S.E.2d 427 (2003) (unpublished). In Widener,the Court held that summary judgment was proper as to a defendant's challenge to the validity of her separation agreement where her “affidavit [in opposition to summary judgment] simply restate[d] the allegations of her counterclaim [for fraud] and fail[ed] to set forth specific facts demonstrating an injury for which she [was] entitled to relief.” Id.,slip op. at 4.
It was not the lack of “new information” in the Widenerdefendant's affidavit that was dispositive of her counterclaim, but rather that neither the defendant's pleadings nor her affidavit set out the specific facts necessary to survive summary judgment. See id.Rule 56(c) of the North Carolina Rules of Civil Procedure provides only that summary judgment is proper when “the pleadings, depositions, answers to interrogatories, andadmissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” N.C.G.S. § 1A–1, Rule 56(c) (emphasis added). The rule does not specify that genuine issues of material fact must be established in any one particular kind of document.
Plaintiff's argument on this point also relies on a specific portion of Rule 56(e) of the North Carolina Rules of Civil Procedure, which provides that “an adverse party [to a motion for summary judgment] may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits ... must set forth specific facts showing that there is a genuine issue for trial .” N.C. Gen.Stat. § 1A–1, Rule 56(e) (2013). However, viewing this rule in its entirety is instructive. Rule 56(e), in relevant part, states:
When a motion for summary judgment is made and supported as provided in this rule,an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.
Id.(emphasis added). Thus, the applicability of Rule 56(e), to the extent that it requires the non-moving party to forecast additional evidence to survive summary judgment, is predicated on the moving party having supported its motion by establishing that there are no material questions of fact in the record and that the party is entitled to summary judgment as a matter of law. See Wilhelm, 121 N.C.App. at 89, 464 S.E.2d at 301 (“Once the moving party has met its burden[of establishing the absence of any triable issue of fact in the record], the opposing party must challenge the motion [for summary judgment] by forecasting sufficient evidence to illustrate the existence of a prima facie case for trial.” (emphasis added) (citation omitted)).
In the present case, Defendant did not rest on “mere allegations or denials” in his amended answer; he set out a number of specific facts along with his allegations, which could establish that he entered into, and continued to operate under, the separation agreement against his will. Because Defendant appeals as the non-moving party to summary judgment, we must take these alleged facts “in the light most favorable” to Defendant. See Whitley, 24 N.C.App. at 206–07, 210 S.E.2d at 291. As such, Plaintiff did not meet her burden of establishing the absence of any triable issue of fact in the record, and therefore Defendant's challenge to the separation agreement should have survived summary judgment based on his pleadings. Cf. Wilhelm, 121 N.C.App. at 89, 464 S.E.2d at 301 (“[I]t is improper for the trial court to consider whether the non-moving party offered evidence to support their claim when the moving party has failed to offer sufficient evidence to defeat the claim in its entirety and demonstrate that it is entitled to judgment as a matter of law.”). Whether or not Defendant's affidavit provided any “new information” here is immaterial.
3. Ratification
Plaintiff lastly contends that Defendant ratified the separation agreement by continuing to operate under the agreement for almost a year and a half. This Court has consistently held that, even where a separation agreement was entered into under duress, an aggrieved party can “ratif[y][the] agreement by retroactively authorizing or otherwise approving it, either expressly or by implication. Thus, ratification can occur where a party accepts benefits and performs under [the] agreement.” Honeycutt v. Honeycutt, 208 N.C.App. 70, 80, 701 S.E.2d 689, 695 (2010). However,
an act of the [aggrieved party] ... will not constitute ratification ... unless, at the time of such act, the [party] ... was then capable of acting freely.Thus, even if payments were made over an extended period of time, there would be no ratification so long as the duress continued. This rule is a sound one. So long as the conditions which gave rise to the duress continue, the wrongdoer can continue to control the actions of the [aggrieved party]. Indeed, it may be easier to control the [aggrieved party] after the initial hurdle is crossed. Where, as here, the whole contract has been induced by duress, it is undoubtedly easier to induce a single payment if the duress continues. If the duress continues, there is no ratification.
Housing, Inc. v. Weaver, 37 N.C.App. 284, 300, 246 S.E.2d 219, 228 (1978), affirmed per curiam,296 N.C. 581, 251 S.E.2d 457 (1979) (citation and internal quotation marks omitted).
Plaintiff directs this Court to a number of cases wherein the parties challenging their separation agreements had ratified those agreements as a matter of law, even if the parties initially executed their separation agreements under duress or while incapacitated. However, each of the cases cited by Plaintiff is distinguishable from the present one.
In Goodwin v. Webb, 152 N.C.App. 650, 651, 568 S.E.2d 311, 312 (2002), reversed per curiam for the reasons stated in the dissent, 357 N.C. 40, 577 S.E.2d 621 (2003), the plaintiff alleged that she agreed to the terms of her separation agreement with her former husband under the threat of physical and mental abuse. However, even assuming arguendothat this was true, before challenging the agreement in court, the plaintiff continued to operate under the agreement for a year and a half after her former husband's death—at which point any “threat” from him ceased. Id.at 658, 577 S.E.2d 621, 568 S.E.2d at 316 (Greene, J., dissenting). Therefore, the plaintiff ratified the agreement during that intervening time and summary judgment against her was proper. Id.
In Ridings v. Ridings, 55 N.C.App. 630, 630–31, 286 S.E.2d 614, 615 (1982), the plaintiff alleged that he signed a separation agreement with his former wife while he was incapacitated due to mental illness. However, he continued to operate under the agreement for six months before challenging it in court, and the plaintiff forecast no evidence that his alleged incapacity continued throughout this time. Id.at 634, 286 S.E.2d 614, 286 S.E.2d at 617. Therefore, the plaintiff ratified the agreement and summary judgment was proper. Id.
Finally, in Honeycutt, 208 N.C.App. at 78–79, 701 S.E.2d at 694–95, the plaintiff alleged that she signed an unfavorable separation agreement under duress because she believed that signing the agreement was the only way to save her marriage. However, the plaintiff continued to operate under the agreement for over two years after the dissolution of her marriage before challenging it in court. Id.at 79–80, 701 S.E.2d at 695. Again, we found that the plaintiff had ratified the agreement and that summary judgment was proper. Id.84, 701 S.E.2d at 697.
By contrast, in the present case, Defendant did not simply allege that he entered into the separation agreement under duress. He also alleged that this duress was ongoing, based on Plaintiff threatening him throughout the ensuing year and a half. Again, because Defendant appeals as the non-moving party to summary judgment, we must take these alleged facts “in the light most favorable” to Defendant. See Whitley, 24 N.C.App. at 206–07, 210 S.E.2d at 291. If Plaintiff did repeatedly threaten Defendant, and if those threats induced Defendant to continue operating under the separation agreement against his will, then Defendant did not ratify the separation agreement. See Housing, Inc., 37 N.C.App. at 300, 246 S.E.2d at 228. (“If the duress continues, there is no ratification.”) Therefore, we cannot conclude, as a matter of law, that Defendant ratified the separation agreement.
IV. Conclusion
In review, Defendant has established material questions of fact regarding whether he entered into, and continued to operate under, the separation agreement against his will. As such, the trial court erred by entering summary judgment against Defendant's challenge to the validity of the separation agreement. Because we reverse on these grounds, we need not consider Defendant's other challenges on appeal.
Reversed and remanded.
Judges CALABRIA and McCULLOUGH concur.
Report per Rule 30(e).
Opinion
Appeal by Defendant from orders dated 2 January and 10 March 2014 by Judge Ward D. Scott in District Court, Buncombe County. Heard in the Court of Appeals 5 January 2015.