Forbis v. Neal, COA04-1495.

CourtUnited States State Supreme Court of North Carolina
Citation624 S.E.2d 387
Docket NumberNo. COA04-1495.,COA04-1495.
PartiesLamarr Garland FORBIS, Co-Executor of the Estate of Bonnie S. Newell; Lamarr Garland Forbis, Attorney-in-Fact for Augusta Lee Sustare, Plaintiff, v. Beverly Lee NEAL, Defendant.
Decision Date17 January 2006

Eugene C. Hicks, III, Charlotte, for plaintiff-appellant.

Baucom, Claytor, Benton, Morgan & Wood, P.A, by James F. Wood, III, Charlotte, for defendant-appellee.

HUDSON, Judge.

On 18 December 2002, plaintiffs LaMarr Garland Forbis and Augusta ("Gussie") Lee Sustare instituted this action seeking to recover property from defendant Beverly Lee Neal, contending that defendant fraudulently diverted property belonging to his aunt Bonnie Sustare Newell ("Bonnie") while acting as her attorney-in-fact, and after her death on 19 December 1999, as her co-executor along with plaintiff Forbis. Defendant answered and moved to dismiss, which motions the court denied on 28 August 2003. On 11 June 2004, following discovery, defendant moved for summary judgment; plaintiffs filed for summary judgment on 15 June 2004. The court granted summary judgment to defendant and denied plaintiff's motion by order entered 5 August 2004. Plaintiff appeals. As discussed below, we affirm.

Defendant served as attorney-in-fact for his two elderly aunts, sisters Bonnie and Gussie Sustare. A number of Gussie's and Bonnie's assets were placed into bank and stock accounts, including a Paine Webber account, owned jointly by Bonnie and defendant with right of survivorship or with defendant named as a "payable on death" (POD) beneficiary. The sisters executed similar wills in 1995, each leaving the majority of their estates for the care of the other. Following Bonnie's death on 19 December 1999 at age ninety, plaintiff, Bonnie's niece, and defendant, Bonnie's nephew, were appointed co-executors. After her death, the property in Bonnie's joint accounts became the sole property of defendant, not passing through her estate. The parties filed the inventory on 8 May 2000 and the final account on 15 February 2001, closing the estate.

On 17 October 2002, Gussie revoked her prior power-of-attorney naming defendant her attorney-in-fact and appointed plaintiff as her attorney-in-fact, executed a new will and cancelled her joint accounts with defendant. On 17 December 2002, plaintiff reopened Bonnie's estate and instituted this suit the following day seeking recovery of the property from Bonnie's joint accounts from defendant, individually, rather than as co-executor. The majority of the recovery would go to the estate of Gussie, who died on 8 December 2004 subsequent to the filing of this action.

Plaintiff first argues that the court erred in granting summary judgment to defendant and denying same to plaintiff. We disagree.

On appeal from summary judgment, our standard of review is whether there is any genuine issue of material fact and whether the moving party is entitled to a judgment as a matter of law. Wilmington Star-News v. New Hanover Regional Medical Center, 125 N.C.App. 174, 178, 480 S.E.2d 53, 55, appeal dismissed, 346 N.C. 557, 488 S.E.2d 826 (1997). Further, the evidence presented by the parties must be viewed in the light most favorable to the non-movant. Id. The court should grant summary judgment when "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 a judgment as a matter of law." N.C. Gen.Stat. § 1A-1, Rule 56(c)(1990).

Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C.App. 729, 733, 504 S.E.2d 574, 577 (1998). Issues of credibility are usually for the jury, and not properly decided on summary judgment. Lewis v. Blackman, 116 N.C.App. 414, 418-19, 448 S.E.2d 133, 136 (1994).

An attorney-in-fact serves as an agent to his principal. Honeycutt v. Farmers & Merchants Bank, 126 N.C.App. 816, 818, 487 S.E.2d 166, 167 (1997).

An agent is a fiduciary with respect to matters within the scope of his agency. In an agency relationship, at least in the case of an agent with the power to manage all the principal's property, it is sufficient to raise a presumption of fraud when the principal transfers property to the agent. Self dealing by the agent is prohibited.

Id. at 820, 487 S.E.2d at 168 (internal citations omitted). When circumstances establish a presumption of fraud, the burden is upon the fiduciary to show that the transaction was open, fair, honest and a voluntary act by the principal. McNeill v. McNeill, 223 N.C. 178, 181, 25 S.E.2d 615, 616-17 (1943).

When a fiduciary relation exists between parties to a transaction, equity raises a presumption of fraud when the superior party obtains a possible benefit. 37 Am.Jur.2d Fraud and Deceit § 442, at 602 (1968). "This presumption arises not so much because [the fiduciary] has committed a fraud, but [because] he may have done so." Atkins v. Withers, 94 N.C. 581, 590 (1886). The superior party may rebut the presumption by showing, for example, "that the confidence reposed in him was not abused, but that the other party acted on independent advice." 37 Am.Jur.2d Fraud and Deceit § 442, at 603. Once rebutted, the presumption evaporates, and the accusing party must shoulder the burden of producing actual evidence of fraud.

Watts v. Cumberland County Hospital System, Inc., 317 N.C. 110, 116, 343 S.E.2d 879, 884 (1986) (emphasis supplied). In Watts,

the history of plaintiff's seeking and acquiring numerous second opinions from several other specialists dispel[ed] the presumption of reliance and intentional deceit that arises from the fiduciary relation itself.

Id. The Court then held that the plaintiff had "failed to produce a sufficient forecast of evidence to support a claim based upon constructive fraud." Id.

Here, plaintiff alleged that a presumption of fraud and undue influence on the part of defendant arose in the establishment of various joint accounts with right of survivorship or POD between defendant and Bonnie. Because defendant was a fiduciary who benefitted from his transactions with Bonnie and Gussie, a presumption of fraud does arise. However, defendant's affidavit rebuts any presumption of fraud or undue influence to the other accounts. In his affidavit, defendant avers that he "never took any action on behalf of [the sisters] without their knowledge and consent," and that he never converted any assets to his own benefit or engaged in inappropriate conduct as attorney-in-fact for Bonnie and Gussie. Defendant's averment makes no exceptions and denies fraud in "any action" taken on the sisters' behalf. This statement covers defendant's actions with regard to Bonnie's Paine Webber account along with all other financial dealings. The dissent notes that while defendant's affidavit states that defendant discussed the survivorship feature of the Paine Webber account with Gussie, nowhere does it mention that this was discussed with Bonnie. However, this omission does not contradict or outweigh defendant's blanket statement quoted above. The defendant's affidavit rebutted the presumption of fraud, which "evaporate[d]", leaving plaintiff to shoulder the burden of producing actual evidence of fraud. Plaintiff here has failed to forecast any evidence of fraud. Thus, no genuine issue of fact remains and the court properly granted summary judgment to defendant and denied same to plaintiff.

Plaintiff also argues that the court erred in considering defendant's affidavit because it violates the dead man's statute. We disagree.

Dead man's statutes "exclude evidence of the acts or statements of deceased persons, since those persons are not available to respond." Culler v. Watts, 67 N.C.App. 735, 737, 313 S.E.2d 917, 919 (1984) (referring to N.C. Gen.Stat. § 8-51, the predecessor to N.C. Gen.Stat. § 8C-1, Rule 601(c), the current dead man's statute). We conclude that defendant's affidavit does not violate N.C. Gen.Stat. § 8C-1, Rule 601 (2001). In any event, the trial judge is presumed to disregard incompetent evidence in making decisions. City of Statesville v. Bowles, 278 N.C. 497, 502, 180 S.E.2d 111, 114-15 (1971). Plaintiff does not explain what portions of defendant's affidavit supposedly violate the dead man's statute nor does she show that the court improperly considered incompetent evidence. This assignment of error is overruled.


Judge JACKSON concurs.

Judge STEELMAN concurs in part and dissents in part.

STEELMAN, Judge, concurring in part and dissenting in part.

I concur with the majority opinion's holding that plaintiff has failed to show how defendant's affidavit violates N.C. Gen.Stat. § 8C-1, Rule 601 (dead man's statute). I respectfully dissent from the portion of the majority opinion holding that summary judgment was properly granted in favor of defendant as to the Paine Webber account. I concur in the granting of summary judgment as to the remaining accounts.

Factual Background

Bonnie Sustare Newell (Bonnie) and Gussie Lee Sustare (Gussie) were elderly sisters. Defendant was the nephew of the two sisters. On 5 November 1991 both Bonnie and Gussie executed powers of attorney naming defendant as their attorney in fact. Defendant managed the financial affairs of Bonnie until her death on 19 December 1999. Defendant managed the financial affairs of Gussie until she revoked the power of attorney on 17 October 2002. She subsequently died on 8 December 2002. Neither power of attorney contained a provision authorizing the power of attorney to make gifts on behalf of the principal. Bonnie and Gussie had wills that made a number of specific bequests, but which left the bulk of their estates to the other through residuary clauses.

On 26 June 1998, defendant established an account with Paine...

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2 cases
  • Forbis v. Neal
    • United States
    • North Carolina Supreme Court
    • August 24, 2007
    ...for summary judgment. Plaintiffs appealed, and the Court of Appeals affirmed the trial court in a divided opinion. Forbis v. Neal, 175 N.C.App. 455, 624 S.E.2d 387 (2006). Judge Steelman wrote separately, agreeing that summary judgment in favor of defendant was appropriate as to the POD and......
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    • United States
    • North Carolina Court of Appeals
    • August 7, 2012

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