Barrington v. Dyer, COA21-269

• Docket Nº: COA21-269
• Citation: 872 S.E.2d 88
• Case Date: April 05, 2022
• Court: Court of Appeal of North Carolina (US)

872 S.E.2d 88

James R. BARRINGTON, Plaintiff,
v.
Jean Candy DYER, Executrix for the Estate of William D. Barrington, Jr., Defendant.

No. COA21-269

Court of Appeals of North Carolina.

Filed April 5, 2022

White & Allen, P.A., Kinston, by E. Wyles Johnson, Jr., for plaintiff-appellant.

Schulz Stephenson Law, Beaufort, by Bradley N. Schulz, for defendant-appellee.

TYSON, Judge.

¶ 1 James R. Barrington ("Plaintiff") appeals from an order which granted the executrix of William D. Barrington, Jr's estate, Jean Candy Dyer's ("Defendant") Rule 12(b)(6) motion to dismiss, a gatekeeping order against Plaintiff, and an award of attorney's fees. We affirm in part, vacate in part, and remand.

I. Background

¶ 2 William D. Barrington, Jr. ("Decedent") and wife, Barbara L. Barrington ("Barrington"), owned two parcels of real property located in Carteret County and real property located in Massachusetts. Decedent and Barrington are the parents of three children, including Plaintiff and Defendant.

¶ 3 On 8 June 2011, Decedent and Barrington executed the William D. Barrington and Barbara L. Barrington Revocable Trust ("Revocable Trust") and the William D. Barrington and Barbara L. Barrington Irrevocable Trust ("Irrevocable Trust"). Under the terms of both Revocable and Irrevocable Trusts, all of the trust property was to be distributed to Plaintiff per stirpes.

¶ 4 Decedent and Barrington executed a quit-claim deed conveying a 99.99% remainder interest in real property into the Revocable Trust, which was recorded in the Carteret County Registry at Book 1379, Page 265 on 29 June 2011. Decedent and Barrington reserved a life estate for themselves.

¶ 5 Barrington died 28 March 2012. Three years later, Decedent terminated the remainder interest in the revocable trust and conveyed the property to himself in fee simple absolute on 9 February 2015. This conveyance was recorded in the Carteret County Registry in Book 1501, Pages 267-268.

¶ 6 Decedent died two years later on 23 March 2017. Decedent's will was probated with the Carteret County Clerk of Superior Court on 25 April 2017. Plaintiff did not assert or file any claim against Decedent's estate during the statutory period.

¶ 7 Plaintiff filed an action for breach of trust and breach of fiduciary duty relating to the 2015 transfers of real estate against Decedent's estate on 9 February 2018 in Carteret County Superior Court. Plaintiff voluntarily dismissed the action on 26 February 2018. That same day Plaintiff filed another action in Carteret County Superior Court alleging similar claims against Decedent's estate. Plaintiff also pleaded claims against attorney Jana Wallace ("Wallace"), who had prepared the deeds at issue. Plaintiff voluntarily dismissed the claims against Wallace. Following a hearing, the trial court granted the estate's motion to dismiss on 14 August 2018.

¶ 8 Plaintiff filed a notice of appeal to this Court, which was voluntarily dismissed following Plaintiff's failure to comply with the Rules of Appellate Procedure. Plaintiff filed another action with nearly identical claims related to the same real property on 27 July 2018. Following a hearing, the trial court entered an order dismissing Plaintiff's action on 16 April 2019.

¶ 9 Plaintiff appealed to this Court, which dismissed Plaintiff's appeal by opinion dated 21 April 2020. See Barrington v. Dyer , 271 N.C. App. 179, 840 S.E.2d 540 (2020) (unpublished).

¶ 10 Plaintiff filed the underlying action on 13 January 2020 alleging similar claims as

872 S.E.2d 92

were asserted in his prior three actions. Defendant filed a motion to dismiss, motion to stay, motion for gatekeeper order, and motion for attorney's fees on 16 March 2020.

¶ 11 The trial court entered an order allowing Defendant's Rule 12(b)(6) motion to dismiss, based upon res judicata. The trial court also entered a gatekeeping order against Plaintiff and awarded attorney's fees to Defendant on 3 December 2020. Plaintiff appeals.

II. Jurisdiction

¶ 12 Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. § 7A-27(b)(1) (2021).

III. Issues

¶ 13 Plaintiff argues the trial court erred by: (1) allowing Defendant's motion to dismiss; (2) entering the gatekeeper order against him; and, (3) awarding Defendant attorney's fees.

IV. Motion to Dismiss

A. Standard of Review

¶ 14 "A Rule 12(b)(6) motion tests the legal sufficiency of the pleading." Kemp v. Spivey, 166 N.C. App. 456, 461, 602 S.E.2d 686, 690 (2004) (citation and quotation marks omitted). "When considering a [Rule] 12(b)(6) motion to dismiss, the trial court need only look to the face of the complaint to determine whether it reveals an insurmountable bar to plaintiff's recovery." Carlisle v. Keith , 169 N.C. App. 674, 681, 614 S.E.2d 542, 547 (2005) (citation and quotation marks omitted).

¶ 15 This Court, on appeal from an order allowing a motion to dismiss under Rule 12(b)(6), reviews de novo "whether, as a matter of law, the allegations of the complaint ... are sufficient to state a claim upon which relief may be granted[.]" Christmas v. Cabarrus Cty. , 192 N.C. App. 227, 231, 664 S.E.2d 649, 652 (2008) (ellipses original) (citation and quotation marks omitted). This Court also "consider[s] the allegations in the complaint true, construe[s] the complaint liberally, and only reverse[s] the trial court's denial of a motion to dismiss if plaintiff is entitled to no relief under any set of facts which could be proven in support of the claim." Id. (citation omitted).

B. Res Judicata

¶ 16 Plaintiff asserts the trial court erred in dismissing his complaint for res judicata. Dismissal of a complaint under Rule 12(b)(6) for failure to state a claim is proper when one of the following conditions is met: "(1) when the complaint on its face reveals that no law supports plaintiff's claim; (2) when the complaint reveals on its face the absence of fact sufficient to make a good claim; [or] (3) when some fact disclosed in the complaint necessarily defeats the plaintiff's claim." Oates v. JAG, Inc. , 314 N.C. 276, 278, 333 S.E.2d 222, 224 (1985).

¶ 17 "The doctrine of res judicata provides that a final judgment on the merits in a prior action precludes a second suit based on the same cause of action between the same parties or those in privity with them." Holly Farm Foods, Inc. v. Kuykendall , 114 N.C. App. 412, 416, 442 S.E.2d 94, 97 (1994). Res judicata not only bars "the relitigation of matters determined in the prior proceeding but also all material and relevant matters within the scope of the pleadings, which the parties, in the...