Davis v. Wrenn

Decision Date19 December 1995
Docket NumberNo. COA95-181,COA95-181
PartiesBobby Rex DAVIS, Plaintiff, v. Sally Davis WRENN, Individually, and as "Trustee-Administrator of the Will of Mary Alice Davis," Defendant.
CourtNorth Carolina Court of Appeals

Martin & Martin, P.A. by J. Matthew Martin, Hillsborough, for plaintiff-appellant.

Randolph L. Worth, Raleigh, for defendant-appellee.

WALKER, Judge.

This appeal arises from a dispute over the administration of the estate of Mary Alice Davis. Ms. Davis, plaintiff's aunt, died on 9 July 1989, leaving a handwritten (holographic) will. In the will, Ms. Davis named her sister, defendant Sally Davis Wrenn, as executrix of the estate. The will's residuary clause provided that "everything (money and property) be settled and divided equally" among her nieces and nephews, including plaintiff. Defendant submitted Ms. Davis' will to the Clerk of Superior Court of Wake County on 10 July 1989, and it was duly probated.

Included in Ms. Davis' estate were various accounts and certificates of deposit (CDs), all of which were joint accounts with the right of survivorship established pursuant to N.C.Gen.Stat. § 41-2.1 naming defendant as the joint owner. In carrying out her duties as executrix of her sister's estate, defendant filed a 90 Day Inventory on 22 September 1989, properly listing only one-half of the value of the various accounts and CDs.

After the estate had been closed and defendant had been discharged, fourteen of Ms. Davis' nieces and nephews, including plaintiff, filed a "Petition" alleging that the terms of Ms. Davis' will had not been carried out properly. This "Petition" was apparently filed without aid of counsel. In April 1990, plaintiff filed a Motion for Default. The record does not reflect any disposition of this purported action although there is some indication that a hearing had been requested for 6 June 1990.

Thereafter, with aid of counsel, thirteen of Ms. Davis' nieces and nephews, including plaintiff, successfully petitioned the Clerk to reopen the estate for the purpose of verifying that all of Ms. Davis' accounts and CDs were joint accounts with the right of survivorship. As requested by the petitioners, defendant provided to their attorney the bank signature cards for all of Ms. Davis' accounts, copies of all CDs, and bank statements showing the account balances as of 9 July 1989. These documents verified that the accounts were joint accounts with the right of survivorship. The estate was ordered reclosed by order filed 7 December 1990. In the interim, on 31 October 1990, plaintiff filed another pro se "Motion" alleging the applicability of N.C.Gen.Stat. § 53-146.1, effective 1 July 1989, which permitted the establishment of different types of joint accounts. The record does not indicate any further action or disposition regarding this "Motion."

In late 1991, six of Ms. Davis' nieces and nephews (not including plaintiff herein) filed, through counsel, a lawsuit contending that they were entitled to the proceeds of the joint accounts and CDs, despite the fact that all of the accounts and CDs had been verified as joint accounts with the right of survivorship. That action was settled in October 1993.

On 6 December 1993, plaintiff, on his behalf and purportedly on behalf of the other nieces and nephews of Ms. Davis as a class, filed a pro se complaint alleging irregularities in defendant's administration of Ms. Davis' estate. These alleged irregularities included underreporting of the value of the estate, filling out false forms with the Clerk, lying about Ms. Davis' accounts and CDs, and otherwise attempting to defeat the desires of Ms. Davis. Plaintiff's theories of relief included fraud, conversion, breach of fiduciary duty, and constructive trust. Defendant answered through counsel, moved to dismiss on various grounds, moved for sanctions, and counterclaimed. Thereafter, plaintiff made numerous other responses and demands on defendant, all of which required defendant to respond through counsel. On 25 April 1994, the trial court entered an order granting defendant's Rule 12(b)(6) motion to dismiss and imposing sanctions against plaintiff. Following plaintiff's timely notice of appeal, the trial court determined that plaintiff was the only party plaintiff to this action.

We first address plaintiff's argument that the trial court erred in dismissing his action. A dismissal pursuant to Rule 12(b)(6) should be granted when (1) the complaint on its face reveals that no law supports the plaintiff's claim; (2) the complaint reveals on its face the absence of fact sufficient to make a valid claim; or (3) 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). The trial court apparently based its order of dismissal on the third ground, concluding that "[p]laintiff's action is barred by the three year statute of limitations pursuant to N.C.G.S. § 1-52."

For purposes of this appeal, the parties agree that plaintiff's complaint, liberally construed, attempts to allege four separate causes of action: fraud, breach of fiduciary duty, and conversion (which have a three-year statute of limitations pursuant to N.C.Gen.Stat. § 1-52); and constructive trust (which has a ten-year statute of limitations pursuant to N.C.Gen.Stat. § 1-56).

As for the claims of fraud, conversion, and breach of fiduciary duty, we hold that the trial court correctly determined they were barred by the three-year statute of limitations. "Ordinarily, the period of the statute of limitations begins to run when the plaintiff's right to maintain an action for the wrong alleged accrues. The cause of action accrues when the wrong is complete, even though the injured party did not then know the wrong had been committed." Wilson v. Development Co., 276 N.C. 198, 214, 171 S.E.2d 873, 884 (1970); see also Bolick v. American Barmag Corp., 54 N.C.App. 589, 594, 284 S.E.2d 188, 191 (1981), modified on other grounds and affirmed, 306 N.C. 364, 293...

To continue reading

Request your trial
18 cases
  • Dunn v. Canoy
    • United States
    • North Carolina Court of Appeals
    • November 7, 2006
    ...explain why the particular award is appropriate and how the court arrived at the particular amount. See, e.g., Davis v. Wrenn, 121 N.C.App. 156, 160, 464 S.E.2d 708, 711 (1995) (reviewing an award of fees under Rule 11), cert. denied, 343 N.C. 305, 471 S.E.2d 69 (1996). Specifically, "an aw......
  • Shepard v. Ocwen Federal Bank, Fsb
    • United States
    • North Carolina Supreme Court
    • August 16, 2005
    ...when the wrong is complete, even though the injured party did not then know the wrong had been committed." Davis v. Wrenn, 121 N.C.App. 156, 158-59, 464 S.E.2d 708, 710 (1995) (quotation omitted), cert. denied, 343 N.C. 305, 471 S.E.2d 69 (1996). Generally, the question of when a cause of a......
  • Baars v. Campbell University, Inc., COA01-60.
    • United States
    • North Carolina Court of Appeals
    • February 5, 2002
    ...the extent that plaintiffs' lawsuit is construed as a breach of fiduciary duty by defendants to Mrs. Campbell. See Davis v. Wrenn, 121 N.C.App. 156, 464 S.E.2d 708 (1995), cert. denied, 343 N.C. 305, 471 S.E.2d 69 (1996) (breach of fiduciary duty by executor is governed by the three-year st......
  • Forbis v. Neal
    • United States
    • North Carolina Supreme Court
    • August 24, 2007
    ...is, on the dates the various accounts were opened. In support of his contention, defendant relies on Davis v. Wrenn, 121 N.C.App. 156, 158-59, 464 S.E.2d 708, 710-11 (1995), which held that the statutory limitations period begins to run when the fraud occurs, regardless of when the aggrieve......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT