Dixon v. Hill

• Decision Date: 01 November 2005
• Docket Number: No. COA04-86.,COA04-86.
• Citation: 620 S.E.2d 715
• Parties: Freddie Lee DIXON, Sr., and Mabel Dixon, Plaintiffs, v. Thomas L. HILL, Administrator of the Estate of John Barber, and Palmetto Born Again Church of Christ (Apostolic), Inc., a/k/a Palmetto Deliverance Church, Defendants.
• Court: North Carolina Supreme Court

620 S.E.2d 715

Freddie Lee DIXON, Sr., and Mabel Dixon, Plaintiffs, v. Thomas L. HILL, Administrator of the Estate of John Barber, and Palmetto Born Again Church of Christ (Apostolic), Inc., a/k/a Palmetto Deliverance Church, Defendants.

No. COA04-86.

Court of Appeals of North Carolina.

November 1, 2005.

Appeal by defendants from order entered 15 September 2003 by Judge Gary L. Locklear in Robeson County Superior Court. Heard in the Court of Appeals 6 December 2004.

R. Clark Speaks, Wilmington, for plaintiff-appellee Freddie Lee Dixon, Sr.

Scott T. Slusser, Wilmington, for plaintiff-appellee Mabel Dixon.

William L. Davis, III, Lumberton, for defendants-appellants.

GEER, Judge.

On 1 April 1999, plaintiffs Freddie Lee Dixon, Sr. and Mabel Dixon filed suit against John Barber and defendant Palmetto Born Again Church of Christ (Apostolic), Inc. ("the Church"). On 15 September 2003, the Robeson County Superior Court entered two orders: (1) an order substituting as defendant Thomas L. Hill, administrator of the estate of John Barber, for the deceased defendant Barber and modifying the name of the Church to indicate that it was also known as Palmetto Deliverance Church; and (2) an order entering summary judgment in favor of plaintiffs. Defendants Hill and the Church contend on appeal that they did not receive proper notice of the motion to substitute and the motion for summary judgment, that the motion to substitute was improperly allowed, and that genuine issues of material fact exist precluding summary judgment.

We hold that defendants failed to properly appeal from the order of substitution and, accordingly, dismiss that portion of defendants' appeal. Because Hill was substituted as a party on the same day as the court entered summary judgment, we hold that Hill was not provided with notice of the motion for summary judgment as mandated by N.C.R. Civ. P. 56. We, therefore, reverse the grant of summary judgment as to Hill. With respect to the Church, however, we hold that it had proper notice of the motion for summary judgment and that none of the arguments advanced by the Church on appeal warrant reversal of the summary judgment order as to the Church.

Facts

On 20 June 1993, plaintiffs' son, Freddie Lee Dixon, Jr., died in an accident when a tractor-trailer collided with the van in which he was riding. Plaintiffs filed a wrongful death action against the company that owned the truck and eventually settled their claim for $111,192.99.

John Barber was bishop of the defendant Church. During the settlement negotiations in the wrongful death action, Barber acted as a spokesperson for plaintiffs and, according to plaintiffs, told them not to talk to their attorneys. Defendants, in their answer,¹ admitted that on 14 June 1994, the same day that plaintiffs received the settlement, plaintiffs gave the $111,192.99 settlement check to Barber. Barber in turn gave them a receipt reciting that the $111,192.99 was "for down payment on stock and on house $35,000.00." Plaintiff Mabel Dixon stated in her affidavit that Barber promised plaintiffs that he "would purchase $75,000.00 worth of orange juice stock which would yield a 10% return per year" and that "he would buy a house for [plaintiffs] with $35,000.00 down payment and $600.00/month for eight (8) years." Defendants' answer "admitted that the Defendant, Bishop John Barber, agreed to arrange for the Plaintiffs to purchase the house located at 3524 Pine Log Road, Lumberton, North Carolina for the sum of $89,000.00 with a down payment of $35,000.00," while defendants' responses to plaintiffs' First Request for Admissions "admitted that John Barber told Plaintiffs that their $75,000.00 would earn 10% interest per year."

Ms. Dixon states in her affidavit that Barber told plaintiffs that he had bought the house, but put it in the name of the Church. According to defendants' answer, the house was "to be held in the name of the church since the Plaintiffs were unable to qualify for financing...." Ms. Dixon explained that plaintiffs moved into the house and began paying the $600.00 per month directly to Barber. Barber never gave plaintiffs a real estate contract for the home and defendants have "admitted that legal title is not owned by Plaintiffs."

Ms. Dixon's affidavit states that after a year, plaintiffs asked Barber about the interest being earned on the orange juice stock. According to Ms. Dixon, Barber answered "that he waited too long to get the interest and that it rolled over into the principal amount for next year." The following year, plaintiffs again asked about the annual return, and Barber gave them a similar response. Defendants have admitted that Barber did not invest the settlement funds in any "orange juice stock" and that none of plaintiffs' money has ever been returned to them.

With respect to the Pine Log Road residence, Ms. Dixon stated that after the plaintiffs had lived in the house for approximately two years, the home — which the Church stated in their answer was "to be held in the name of the Church" — was deeded to Benny and Geneva Abraham. According to Ms. Dixon's affidavit, the Abrahams' lender foreclosed on the house, and plaintiffs were evicted from their home.

On 1 April 1999, plaintiffs brought suit against Barber and the Church, asserting causes of action for (1) breach of contract, (2) fraud and/or constructive fraud, (3) negligent misrepresentation, (4) conversion, (5) unfair and deceptive trade practices, (6) restitution and/or unjust enrichment, and (7) punitive damages. Defendants filed a joint answer to the complaint on 4 June 1999, admitting some of plaintiffs' allegations and denying others.

On 12 January 2000, Barber died. His will named Fred L. Musselwhite as the executor of his estate. Mr. Musselwhite formally renounced his duties as executor on 20 January 2000. Four days after Musselwhite's renunciation, plaintiffs filed a motion "to substitute the Estate of John Barber and John Barber's personal representative or collector for the Defendant John Barber. Said substitution is made necessary by the death of Defendant John Barber on or about January 12, 2000." The trial court allowed plaintiffs' motion on 14 February 2000. At this time, no person had yet been appointed to replace Musselwhite in the capacity of executor.

Almost two years later, on 7 February 2003, Bishop Thomas L. Hill was appointed as administrator of Barber's estate. On 11 August 2003, plaintiffs filed a motion to substitute Hill, as administrator of the estate of John Barber, as a defendant. In addition, the motion indicated that plaintiffs had learned that the Church also conducted business under the name of Palmetto Deliverance Church. Plaintiffs' motion, therefore, asked to change the identification of the Church from "Palmetto Born Again Church of Christ (Apostolic), Inc." to "Palmetto Born Again Church of Christ (Apostolic), Inc., a/k/a Palmetto Deliverance Church." On the same day, plaintiffs filed a motion for summary judgment, attaching an affidavit of plaintiff Mabel Dixon and plaintiffs' Second Request for Admissions to which the Church had not responded.²

Following a hearing on 15 September 2003, the trial court entered an order on the same date allowing the motion to substitute, including the substitution of Hill as administrator of Barber's estate. Also on 15 September 2003, the trial court entered summary judgment in favor of plaintiffs on all seven causes of action asserted in the complaint. The court determined that plaintiffs' damages equaled $127,992.00: the original sum of $111,192.99 given by plaintiffs to Barber plus 28 monthly house payments of $600.00 each (a total of $16,800.00). After concluding that defendants' acts constituted unfair and deceptive trade practices, the court trebled the damages and entered judgment in the amount of $383,976.00. Defendants have appealed.

The Order of Substitution

Defendants contend that they were not properly served with the motion for substitution. We first note that the notice of appeal states only: "The Defendants hereby gives [sic] Notice of Appeal to the North Carolina Court of Appeals from a final judgment entered on September 15, 2003 by the Honorable Gary Locklear granting Summary Judgment in favor of Plaintiff[s]." The notice of appeal thus does not specifically appeal the order allowing substitution.

Proper notice of appeal requires that the appealing party "designate the judgment or order from which appeal is taken and the court to which appeal is taken...." N.C.R.App. P. 3(d). "Without proper notice of appeal, this Court acquires no jurisdiction." Brooks v. Gooden, 69 N.C.App. 701, 707, 318 S.E.2d 348, 352 (1984). N.C. Gen.Stat. § 1-278 (2003), however, provides a means by which an appellate court may obtain jurisdiction to review an order not included in a notice on appeal. It states: "Upon an appeal from a judgment, the court may review any intermediate order involving the merits and necessarily affecting the judgment." Id.

This Court has held that appellate review pursuant to N.C. Gen.Stat. § 1-278 is proper under the following circumstances: (1) the appellant must have timely objected to the order; (2) the order must be interlocutory and not immediately appealable; and (3) the order must have involved the merits and necessarily affected the judgment. Brooks v. Wal-Mart Stores, Inc., 139 N.C.App. 637, 641, 535 S.E.2d 55, 59 (2000), appeal dismissed and disc. review denied, 353 N.C. 370, 547 S.E.2d 2, 547 S.E.2d 1 (N.C.2001). All three conditions must be met. Id. at 642, 535 S.E.2d at 59.

In this case, defendants have failed to meet the first requirement. Nothing in the record establishes that either defendant timely objected to the order of substitution. Rule 46(b) of the Rules of Civil Procedure provides, as to interlocutory orders not directed to the admissibility of evidence, that "formal objections and exceptions are unnecessary." Instead,

[i]n order to preserve an...