Opinion
No. COA15-963
05-03-2016
PHILIP ROBINSON, RICHARD MAURICE ROBINSON, and GWENDOLYN ROBINSON McKEOWN, Plaintiffs, v. GRACE MANEY SPIRES, Individually and as Trustee under the W.N. Horton and E.L. Horton Trust dated May 5, 1951, and MARGARET MANEY CLARKE, Individually and as acting Trustee under the W.N. Horton and E.L. Horton Trust dated May 5, 1951; and WILLIAM W. CLARKE, Individually and as acting Trustee under the W.N. Horton and E.L. Horton Trust dated May 5, 1951, Defendants.
Long, Parker, Warren, Anderson & Payne, P.A., by Robert B. Long, Jr. and Philip S. Anderson, for Plaintiffs-Appellants. McGuire, Wood & Bissette, P.A., by Mary E. Euler, for Defendants-Appellees.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Yancey County, No. 14 CVS 182 Appeal by Plaintiffs from order entered 12 June 2015 by Judge Marvin P. Pope, Jr. in Superior Court, Yancey County. Heard in the Court of Appeals 25 January 2016. Long, Parker, Warren, Anderson & Payne, P.A., by Robert B. Long, Jr. and Philip S. Anderson, for Plaintiffs-Appellants. McGuire, Wood & Bissette, P.A., by Mary E. Euler, for Defendants-Appellees. McGEE, Chief Judge.
Philip Robinson, Richard Maurice Robinson, and Gwendolyn Robinson McKeown ("Plaintiffs") appeal from an order of the trial court granting partial summary judgment in favor of Grace Maney Spires, Margaret Maney Clarke, and William W. Clarke ("Defendants"). Plaintiffs contend the trial court erred in its interpretation of the status and purposes of the W.N. Horton and E.L. Horton Trust. We affirm.
I. Background
W.N. Horton and E.L. Horton ("the Hortons") had seven grandchildren ("the Horton grandchildren"). The Hortons executed a trust deed in 1951 ("the Trust Deed" or "the Trust") for a thirty-seven acre tract of real property in Yancey County, and for a house, garden, and outbuildings on that property ("the homeplace"). The Trust Deed contained the following language:
FIRST: Whereas Annice Maney, Lee Maney, Jack Maney, Grace Maney, Mafra Maney Robinson, Mary Alice Maney and Margaret Maney are the grandchildren of [the Hortons], the dwelling house, garden and outbuildings known as the W.N. Horton homeplace shall be hel[d] by the said trustees as a home for any one or more of said grandchildren being unmarried, but when all of said grandchildren shall be married and/or deceased, then and in that event this first provision under this deed shall terminate, it being one of the purposes of this deed to provide a home for the said grandchildren or any one of them remaining unmarried.
SECOND: Subject to the above reserved life estate, the said trustees, upon written consent of a majority of said seven grandchildren, shall have full power and authority to sell and convey the above said tract of land or any part thereof and the proceeds from such sale or sales shall be divided equally among said grandchildren, except that part above referred to as the homeplace shall not be sold or conveyed during the time that any one of said grandchildren remains unmarried unless each and every one of said grandchildren being unmarried consents in writing to such sale or conveyance, but in the event that all of said grandchildren should be married then the above
described lands or any part thereof may be sold and conveyed by said trustees upon the written consent of the majority of said grandchildren. The said trustees shall have no power of sale of said lands or any part thereof except upon the written consent of said grandchildren as above stated.
THIRD: [I]n the event that the above described lands, or any part thereof, should be sold by said trustees pursuant to the power and authority hereinabove granted to them, said trustees, during the continuance of this trust, shall first give said grandchildren and each of them the option to purchase said property to be sold and if neither one of said grandchildren desires to purchase said property at a price offered, then the said trustees may sell and convey it to a stranger to this deed.
FOURTH: Th[e] said trustees shall have the power and authority to lease or rent said lands or any part thereof from year to year and receive the income and profits therefrom and out of such proceeds shall pay the taxes and the necessary repairs and upkeep for said property and the remaining proceeds shall be disbursed to the grandchild or grandchildren living on and managing said lands, but no one of said grandchildren being unmarried shall be required to pay any rent on the dwelling, garden and outbuildings above mentioned as a home, subject to said life estate and the item numbered "First" above.
FIFTH: Upon the death of either one of the above named trustees during the continuance of this trust, the two surviving trustees shall appoint a successor for such deceased.
SIXTH: In the event that any one or more of said grandchildren should die during the continuance of this trust, then and in that event the said grandchildren then living shall stand in the place of such deceased grandchild for the purpose of this trust and the ownership of said property.
SEVENTH: This trust shall continue and be in full force and effect until all of the above described lands have been conveyed by the said trustees pursuant to the power and authority hereinabove granted and when all of said property is thereby conveyed, this trust shall terminate.The Trust Deed also named three of the Horton grandchildren, Annice Maney ("Annice"), Grace Maney (now Spires) ("Grace"), and Mary Alice Maney ("Mary") as trustees of the Trust.
Mary died in 2008, before the present action commenced.
Annice, the only Horton granddaughter who never married, lived at the homeplace from at least the time the Trust Deed was executed in 1951 until sometime in 2009. Mafra Maney Robinson ("Mafra") lived with Annice at the homeplace from 1968 to 2009. Both Annice and Mafra moved from the homeplace to a skilled nursing facility in 2009. Annice died in February 2012. After Annice's death, Mafra, Grace, and Margaret Maney Clarke were the only surviving Horton grandchildren. They were all widowed and never remarried.
One other Horton grandchild, Jack Maney, never married and died in the mid-1950s.
Mafra and her son, Philip Robinson ("Philip"), filed an amended complaint, dated 22 August 2014, against Defendants, both individually and as trustees of the Trust. The amended complaint asked the trial court to modify or terminate the Trust and sought declaratory judgment as to the status and purpose of the Trust. Specifically, it asked the trial court to declare that "the Trust['s] use and purpose of providing a home for any grandchild who never married was terminated no later than February 2012 and [that] there ha[d] been no remaining Trust use or purpose other than the sale of the Property at any time from and since February 2012[.]" (emphasis added). The amended complaint also raised claims of breach of fiduciary duty, constructive fraud, breach of trust, and unjust enrichment. The first three of those claims arose out of Defendants' alleged failure to sell the homeplace. The unjust enrichment claim arose out of Philip's allegedly making "substantial expenditures for necessary maintenance, upkeep, and repairs of the [homeplace] and for improvement" of the homeplace without being compensated by Defendants.
After Mafra's death in 2014, Mafra was removed as a plaintiff from the action through an "Order Allowing Substitution of Parties[,]" entered 13 December 2014. In that same order, Richard Maurice Robinson and Gwendolyn Robinson McKeown were added as plaintiffs in the present action, as they, along with Philip, were "the sole devisees and beneficiaries" named in Mafra's last will and testament.
Defendants filed an answer, dated 24 October 2014, and sought, inter alia, declaratory judgment that the Trust was still in force and did not require the sale of the homeplace. Defendants also raised counterclaims based on Philip's allegedly trespassing upon the homeplace "with the intent to occupy" it and making "unnecessary and harmful alteration[s]" to the property without the permission of Defendants.
Plaintiffs and Defendants each moved for summary judgment in the spring of 2015. In an order entered 12 June 2015 ("the order"), the trial court concluded (1) "as a matter of law that the definition of 'unmarried' in the Trust Deed . . . encompasses within its meaning both those who never marr[ied] as well as those who are widowed or divorced[;]" (2) "that the Trustees continue to hold the [homeplace] . . . for any [so defined] unmarried Horton grandchildren[;]" and (3) "that a material purpose of the Trust is to own the Trust Property either until it is conveyed or until the last surviving Horton grandchild dies." The trial court further concluded that "[t]he Trust Deed does not require that the Horton grandchildren consent to a sale of the Trust Property."
This conclusion is designated as a finding of fact in the order. However, "[w]here findings of fact should have been more properly designated conclusions of law[,] this Court will treat them as such for the purposes of . . . appeal." Sheffer v. Rardin, 208 N.C. App. 620, 624, 704 S.E.2d 32, 35 (2010) (quotation marks omitted).
Accordingly, the order resolved all of Plaintiffs' claims in favor of Defendants, except for the claim that Defendants were unjustly enriched by Philip's allegedly making improvements to the homeplace - that claim was left unresolved. The order also favorably resolved Defendants' counterclaim for declaratory judgment, but it left unresolved Defendants' counterclaims regarding Philip's allegedly trespassing on and modifying the homeplace. The trial court further concluded that there was "no just reason for delaying" final judgment on the claims resolved through the order, and it certified the order as immediately appealable, pursuant to N.C. Gen. Stat. § 1A-1, Rule 54(b). Plaintiffs appeal.
II. Motion to Dismiss the Appeal
As a preliminary matter, this Court must address Defendants' motion to dismiss the present appeal as interlocutory. Specifically, Defendants urge this Court to dismiss Plaintiffs' appeal in spite of the trial court's Rule 54(b) certification of the order. Defendants' motion is denied.
"Interlocutory orders are ordinarily not directly appealable[.]" First Atl. Mgmt. Corp. v. Dunlea Realty Co., 131 N.C. App. 242, 246, 507 S.E.2d 56, 60 (1998). However, they may be appealable
when a trial court enters a final judgment and certifies that there is no just reason for delay of the appeal as to one or more — but fewer than all — claims or parties and when an interlocutory order or judgment affects a substantial right. Although not binding on this Court, we afford a trial court's Rule 54(b) certification great deference on appeal.Albert v. Cowart, 200 N.C. App. 57, 61, 682 S.E.2d 773, 777 (2009) (citations and quotation marks omitted); see N.C.G.S. § 1A-1, Rule 54(b). Moreover, Rule 54(b) certification may be appropriate where "the claims that have been dismissed and those that remain are 'factually and legally intertwined' such that proceeding to trial could result in verdicts inconsistent with the earlier dismissals." Kinesis Adver., Inc. v. Hill, 187 N.C. App. 1, 9, 652 S.E.2d 284, 291 (2007).
In Albert, 200 N.C. App. at 59, 682 S.E.2d at 775-76, one of the defendants allegedly opened a bank account with a dying family member's money, under both of their names, and used the funds for his personal expenses. After the family member's death, the plaintiff, as administratrix of the decedent's estate, brought claims against the defendant and the financial companies involved for breach of fiduciary duty, unjust enrichment, constructive fraud, conversion, negligence, and constructive trust. Id. at 59, 682 S.E.2d at 776. The trial court granted partial summary judgment in favor of the plaintiff and resolved the question of whether the account was held with a right of survivorship by the defendant. Id. at 60, 682 S.E.2d at 776. However, the trial court left unresolved other claims involving issues such as whether the bank had acted in bad faith. Id. at 61, 682 S.E.2d at 777. The trial court also certified its judgment for immediate appeal pursuant to Rule 54(b). Id. On appeal, this Court held that this certification was proper because the issue of survivorship was "central and determinative to the controversy between [the] parties[,] [ ] limited to a question of law[,]" and because a "number of [remaining] claims and counterclaims in [the] matter [were] dependent upon the survivorship issue." Id. at 62, 682 S.E.2d at 777.
The present case is largely analogous to Albert. The trial court entered an order resolving the status and purpose of the Trust, but it left unresolved claims regarding Philip's alleged use and improvement of the homeplace. The issue of the status and purpose of the Trust is "central and determinative to the controversy between [the] parties[,]" see id., and the remaining claims and counterclaims between Philip and Defendants turn on (a) whether the Trust was still in force during the relevant time period and (b) the underlying purpose of the Trust itself - at least, to the extent that those claims may implicate equitable principles. See id. Also, as in Albert, the issue of the status and purpose of the Trust is "limited to a question of law[.]" See id. "Given the number of claims and counterclaims in this matter that are dependent upon" the determination of the status and purpose of the Trust, we agree with the trial court's certification that there is no just reason to delay an appeal of the order. See id. Accordingly, Defendants' motion to dismiss is denied.
III. Purpose and Status of the Trust
Plaintiffs contend the trial court erred by granting partial summary judgment in favor of Defendants. Specifically, Plaintiffs argue that the trial court erred by concluding (1) "as a matter of law that the definition of 'unmarried' in the Trust Deed . . . encompasses within its meaning both those who never marr[ied] as well as those who are widowed or divorced[;]" (2) "that the Trustees continue to hold the [homeplace] for any [so defined] unmarried Horton grandchildren[;]" and (3) "that a material purpose of the Trust is to own the Trust Property either until it is conveyed or until the last surviving Horton grandchild dies." Plaintiffs maintain that the term "unmarried" in the Trust was meant to apply only to those grandchildren who never married and that, after the death of Annice in 2012, "the only material trust purpose remaining was to benefit the living Horton grandchildren by an equal distribution of the proceeds created by a sale of the [homeplace]." We disagree.
"Our standard of review of an appeal from summary judgment is de novo[.]" Legacy Vulcan Corp. v. Garren, 222 N.C. App. 445, 448, 731 S.E.2d 223, 226 (2012) (quotation marks omitted). "Before entry of summary judgment[,] the court must determine by the record that no genuine issue of material fact exists and that a party is entitled to judgment as a matter of law." Laughter v. Southern Pump & Tank Co., Inc., 75 N.C. App. 185, 186, 330 S.E.2d 51, 52 (1985).
Regardless of whether there were any "unmarried" Horton grandchildren at the time the order was entered, the Trust Deed clearly contemplates the continuation of the Trust after there are no more "unmarried" grandchildren and while remaining grandchildren are still alive. For instance, the Trust Deed expressly provides that the trustees "shall have no power of sale of said lands or any part thereof except" where either (a) "a majority of [the] seven grandchildren" provide "written consent" for the sale and "each and every one of [the] grandchildren being unmarried consents in writing to such sale or conveyance, [or (b)] in the event that all of said grandchildren should be married then the above described lands or any part thereof may be sold and conveyed by said trustees upon the written consent of the majority of said grandchildren." (emphasis added). The Trust Deed further provides that "[t]his [T]rust shall continue and be in full force and effect until all of the above described lands have been conveyed by the said trustees pursuant to the power and authority hereinabove granted[.]" (emphasis added). Moreover, the only express indication in the Trust Deed of when the Trust itself "shall terminate" is "when all of said property is thereby conveyed[.]" Accordingly, even assuming arguendo that the remaining Horton grandchildren were not "unmarried" for the purposes of the Trust when Annice died, and notwithstanding the limited termination clause in the first provision of the Trust Deed, the language of the Trust Deed clearly contemplates the continuation of the Trust after there are no more "unmarried" grandchildren and while remaining grandchildren are still alive. Therefore, the trial court did not err by concluding that the Trust remained in force and had a purpose beyond selling the homeplace after Annice died.
Although Plaintiffs also argue on appeal that the Trust Deed required Defendants to sell the homeplace, Plaintiffs ignore the Trust's clearly permissive language as to the sale of the property.
The remainder of Plaintiffs' arguments on appeal rely on faulty assumptions that the Trust was no longer in effect or that the Trust Deed compelled the Defendants to sell the homeplace. The order of the trial court is affirmed.
AFFIRMED.
Judges GEER and McCULLOUGH concurs.
Report per Rule 30(e).