Barrington v. Dyer, COA19-640

• Docket Nº: No. COA19-640
• Citation: 840 S.E.2d 540
• Case Date: April 21, 2020
• Court: Court of Appeal of North Carolina (US)

840 S.E.2d 540 (Table)

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

No. COA19-640

Court of Appeals of North Carolina.

Filed: April 21, 2020

James R. Barrington, pro se.

Schulz Stephenson Law, by Bradley N. Schulz, for the Defendant-Appellee.

BROOK, Judge.

James R. Barrington ("Plaintiff") appeals from the trial court’s order granting a motion to dismiss for failure to state a claim upon which relief can be granted in favor of Jean Candy Dyer ("Defendant") as executor of the estate of William D. Barrington, Jr., the late father of Plaintiff and Defendant. We are unable to evaluate Plaintiff’s arguments in this appeal because the record on appeal does not include "so much of the litigation ... as is necessary for an understanding of all issues presented on appeal," as Rule 9 of the North Carolina Rules of Appellate Procedure requires. See N.C. R. App. P. 9(a)(1)(e). We therefore dismiss the appeal.

I. Factual and Procedural Background

Because this appeal is from the grant of a motion to dismiss pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure, our recitation of the facts is based on the allegations made by Plaintiff’s complaint.

The appeal originates from the dismissal of the third in a series of related complaints filed by Plaintiff against the estate of his late father, William D. Barrington, Jr., the lawyer representing his father’s estate, Janna M. Wallace, and his sister as the executor of their father’s estate. All three complaints involve several transactions in 2015 between William D. Barrington, Jr., and The William D. Barrington and Barbara L. Barrington Revocable Trust ("the Trust"), which was executed by William D. Barrington, Jr., and his wife, Barbara L. Barrington, on 8 June 2011. Plaintiff claims in all three complaints that this transaction constituted a breach of trust because (1) he was the beneficiary of the trust at the time of disputed transactions; (2) the trust had become irrevocable as to his mother upon her death; and (3) the terms of the trust required trust property to be conveyed for fair market value. No copy of the trust agreement is included in the record on appeal.

Plaintiff filed the first complaint in this trilogy on 6 February 2018. He voluntarily dismissed this complaint without prejudice on 26 February 2018. He filed the second complaint that same day, which added the lawyer representing his father’s estate as a defendant and removed Defendant as a defendant. A motion to dismiss the second complaint came on for hearing before the Honorable Albert D. Kirby in Carteret County Superior Court on 23 July 2018, which the trial court granted in an order entered 14 August 2018. Plaintiff entered untimely written notice of appeal from that order on 27 September 2018 and the trial court granted a motion withdrawing the motion and dismissing the appeal on 18 April 2019.

In the meantime, Plaintiff filed a third complaint, the...