Estate of Redden ex rel. Morley v. Redden

• Decision Date: 01 August 2006
• Docket Number: No. COA05-1202.,COA05-1202.
• Citation: 632 S.E.2d 794
• Parties: ESTATE OF Monroe M. REDDEN, Jr. deceased, by E.K. MORLEY, Administrator CTA, Plaintiff, v. Barbara Jean REDDEN, Defendant.
• Court: North Carolina Court of Appeals

632 S.E.2d 794

ESTATE OF Monroe M. REDDEN, Jr. deceased, by E.K. MORLEY, Administrator CTA, Plaintiff, v. Barbara Jean REDDEN, Defendant.

No. COA05-1202.

Court of Appeals of North Carolina.

August 1, 2006.

COPYRIGHT MATERIAL OMITTED

Appeal by defendant from order entered 27 June 2005 by Judge Laura J. Bridges in Henderson County Superior Court. Heard in the Court of Appeals 29 March 2006.

Law Offices of E.K. Morley, by E.K. Morley, Hendersonville, for plaintiff-appellee.

Long, Parker, Warren & Jones, P.A., by Philip S. Anderson, Asheville, for defendant-appellant.

JACKSON, Judge.

Barbara Jean Redden ("defendant") appeals from the trial court's order, entered 27 June 2005, granting partial summary judgment in favor of the Estate of Monroe M. Redden, Jr. ("plaintiff"), and ordering defendant to pay plaintiff the sum of one-hundred-fifty thousand dollars ($150,000.00) and costs.

Record evidence establishes the following: Monroe M. Redden Jr. ("decedent") maintained various bank accounts at First Union National Bank, including money market account number 1010044300784 ("Account 784") that was held only in decedent's name. In June 2000, decedent executed a Power of Attorney in favor of defendant, decedent's wife. On 16 May 2001, decedent designated defendant as the payable-on-death beneficiary ("POD beneficiary") of Account 784. Decedent never revoked or changed the POD beneficiary designation in favor of defendant on Account 784.

In September 2001, decedent was admitted to the hospital for health problems that eventually led to his death on 11 January 2002. On 21 September 2001, defendant established a bank account in her name only at First Union National Bank, account number 1010052958801 ("Account 801"). Also on the same day, defendant used her power of attorney to transfer $237,778.71 from Account 784 to Account 801. Defendant testified in her deposition that decedent had instructed her to transfer $237,778.71 from Account 784 to Account 801 in order for defendant to proceed with office work on decedent's behalf. Defendant stated that although decedent did not reduce his instructions to writing, he communicated his intention to her verbally. Subsequently, between 21 September 2001 and decedent's death on 11 January 2002, defendant returned approximately $87,000.00 from her Account 801 to a separate account held solely in decedent's name. On the date of defendant's deposition, she stated that Account 801 had been closed since the money ran out, but she did not provide a specific date on which the account had closed or any accounting of the money.

On 20 October 2003, the clerk of Henderson County Superior Court admitted for probate decedent's Last Will and Testament. On 30 October 2003, the clerk issued letters of Administration CTA to E.K. Morley ("the Administrator"). On 12 February 2004, plaintiff filed a complaint on behalf of the Estate of Monroe M. Redden, Jr. against defendant. The complaint alleged that defendant had committed conversion, constructive fraud, and breach of fiduciary duty in connection with certain banking transactions.

On 16 April 2004, defendant filed her answer and counterclaim. On 4 May 2004, plaintiff filed a reply to defendant's counterclaim.

On 20 September 2004, plaintiff filed a motion for partial summary judgment alleging that there was no genuine issue of material fact relating to the ownership of $237,778.71 taken by defendant from Account 784 on 21 September 2001. In support of the motion, plaintiff offered defendant's deposition that she transferred $237,778.71 from Account 784 to Account 801. After a hearing on the motion, on 27 June 2005, the trial court entered partial summary judgment in favor of plaintiff and ordered defendant to pay plaintiff the sum of $150,000.00 plus costs. Defendant appeals to this Court.

Because the trial court granted only partial summary judgment, its order did not dispose of the entire case, and the appeal is interlocutory. Johnson v. Lucas, 168 N.C.App. 515, 518, 608 S.E.2d 336, 338 (2005) (the order granting partial summary judgment is interlocutory), aff'd, 360 N.C. 53, 619 S.E.2d 502 (2005); see Ratchford v. C.C. Mangum, Inc., 150 N.C.App. 197, 199, 564 S.E.2d 245, 247 (2002) ("A final judgment is one that determines the entire controversy between the parties, leaving nothing to be decided in the trial court."). An interlocutory order may be appealed immediately if: (1) it is final to a party or issue and the trial court certifies it for appeal under N.C. Gen. Stat. § 1A-1, Rule 54(b), or (2) it affects a substantial right of the parties. N.C. Gen. Stat. § 1-277 (2005); Bailey v. Gooding, 301 N.C. 205, 209, 270 S.E.2d 431, 433-34 (1980). Here, the trial court did not certify the partial summary judgment order for appeal pursuant to North Carolina General Statutes, Section 1A-1, Rule 54(b).

"`Ordinarily, an appeal from an interlocutory order will be dismissed as fragmentary and premature unless the order affects some substantial right and will work injury to appellant if not corrected before appeal from final judgment.'" Wachovia Realty Inv. v. Housing, Inc., 292 N.C. 93, 100, 232 S.E.2d 667, 672 (1977) (quoting Stanback v. Stanback, 287 N.C. 448, 453, 215 S.E.2d 30 (1975)). Appellants bear the burden of showing that the appeal is proper. Johnson, 168 N.C.App. at 518, 608 S.E.2d at 338. When an appeal is interlocutory, the appellant must include in its statement of grounds for appellate review "sufficient facts and argument to support appellate review on the ground that the challenged order affects a substantial right." N.C.R. App. P., Rule 28(b)(4) (2006). In addition, appellant must carry the burden of showing to this Court why the appeal affects a substantial right. Johnson, 168 N.C.App. at 518, 608 S.E.2d at 338 ("it is the appellant's burden to present appropriate grounds for this Court's acceptance of an interlocutory appeal, ... and not the duty of this Court to construct arguments for or find support for appellant's right to appeal"). "Where the appellant fails to carry the burden of making such a showing to the court, the appeal will be dismissed." Id.

In determining whether a substantial right is affected a two-part test has developed—"the right itself must be substantial and the deprivation of that substantial right must potentially work injury to [appellant] if not corrected before appeal from final judgment." Goldston v. American Motors Corp., 326 N.C. 723, 726, 392 S.E.2d 735, 736 (1990). A substantial right is a "`legal right affecting or involving a matter of substance as distinguished from matters of form: a right materially affecting those interests which a man is entitled to have preserved and protected by law: a material right.'" Oestreicher v. American Nat'l Stores, Inc., 290 N.C. 118, 130, 225 S.E.2d 797, 805 (1976) (quoting Webster's Third New International Dictionary at 2280 (1971)).

Here, defendant asserts in her statement of grounds for appellate review that:

This appeal is taken from the Order, entered June 27, 2005, granting the Plaintiff partial summary judgment and ordering Defendant Barbara Redden "to pay to the Estate of MONROE M. REDDEN, JR., deceased, the sum of one hundred fifty thousand dollars ($150,000.00) and costs." The Order appealed affects a substantial right of Defendant Barbara Redden by ordering her to make immediate payment of a significant amount of money; therefore, this Court has jurisdiction over the Defendant's appeal pursuant to N.C. Gen. Stat. § 1-277 and N.C. Gen.Stat. § 7A-27(d). Wachovia Realty Investments v. Housing, Inc., 292 N.C. 93, 232 S.E.2d 667 (1977); Beck v. Am. Bankers Life Assurance Co., 36 N.C.App. 218, 243 S.E.2d 414 (1978); Atkins v. Mitchell, 91 N.C.App. 730, 373 S.E.2d 152 (1988).

Defendant has sufficiently established, under the controlling authority, that the order below affects a substantial right and that interlocutory review is, therefore, appropriate. Defendant has identified the basis for jurisdiction over this interlocutory appeal—a substantial right—and specified the controlling statutory and case law authority. See Wachovia Realty, 292 N.C. 93, 99, 232 S.E.2d 667, 671 (1977) ("[i]t is equally clear that the entry of the judgment that the plaintiff have and recover of Housing, Inc., $204,603.55 affects a substantial right of Housing, Inc."); Atkins v. Mitchell, 91 N.C.App. 730, 731-32, 373 S.E.2d 152, 153 (1988) ("Although the trial court's judgment did not dispose of all claims between all parties and did not provide that there was no just reason for delay, N.C. Gen.Stat. § 1A-1, Rule 54(b) of the Rules of Civil Procedure, the entry of a money judgment against defendant involves a substantial right under N.C. Gen.Stat. §§ 1-277(a) (1983) and 7A-27(d)(1) (1986) entitling defendant to appeal.") (citing Wachovia Realty Invs. v. Housing, Inc., 292 N.C. 93, 232 S.E.2d 667 (1977)); Beck v. American Bankers Life Assurance Co., 36 N.C.App. 218, 220, 243 S.E.2d 414, 416 (1978) (interlocutory appeal allowed when a judgment for commissions "appear[s] to contemplate that defendant must make immediate payment to plaintiff of a substantial sum of money...."). Therefore, we may allow this appeal and determine whether the trial court erred in granting summary judgment in favor of plaintiff, and holding that defendant must pay plaintiff the sum of $150,000.00.

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law." N.C. Gen.Stat. § 1A-1, Rule 56(c) (2005). In deciding a motion for summary judgment, a trial court must consider the evidence in the light most favorable to the non-moving party. See Summey v. Barker, 357 N.C. 492, 496, 586 S.E.2d 247, 249 (2003). If there is any evidence of a genuine issue of material fact, a motion for...