In The Matter Of The Will Of Lewis Manly Durham.

• Decision Date: 03 August 2010
• Docket Number: No. COA09-274.,COA09-274.
• Citation: 698 S.E.2d 112
• Parties: In the Matter of the WILL OF Lewis Manly DURHAM.
• Court: North Carolina Court of Appeals

698 S.E.2d 112

In the Matter of the WILL OF Lewis Manly DURHAM.

No. COA09-274.

Court of Appeals of North Carolina.

Aug. 3, 2010.

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Appeal by petitioner and caveator from order entered 10 March 2008 by Judge Donald W. Stephens in Chatham County Superior Court and judgment entered 6 November 2008 by Judge Carl R. Fox in Chatham County Superior Court. Heard in the Court of Appeals 16 September 2009.

Stark Law Group, PLLC, Chapel Hill, by Thomas H. Stark and Seth A. Neyhart, for Petitioner/Caveator-Appellant.

Levine & Stewart, Chapel Hill, by James E. Tanner, III, for Respondent/Propounders-Appellees.

ERVIN, Judge.

Petitioner and Caveator Gary Dixon ¹ appeals from an order imposing sanctions pursuant to N.C. Gen.Stat. § 1A-1, Rule 11 stemming from the filing of a Verified Complaint for Revocation of Letters Testamentary following the appointment of Ida Pharr and Frank Durham as executors ² of the estate of Lewis M. Durham. In addition, Caveator appeals the trial court's order granting summary judgment in favor of Executors concerning the validity of Decedent's will. After careful consideration of the record in light of the applicable law, we conclude that the trial court's orders should be affirmed.

I. Factual Background

On 27 July 1983, Decedent and his wife, Ona Mae Durham, executed mutual and reciprocal wills which provided that, upon the death of either spouse, his or her estate would pass to the surviving spouse. Both wills also provided that, in the event that either spouse died before the other spouse's will became effective, 50% of “any cash on hand,” “any cash on deposit,” and “any amounts due under any promissory note receivable” would pass to Aldersgate Methodist Church and all remaining real and personal property would pass to Caveator, who was Decedent's adopted grandson.

Caveator claimed that, after Mrs. Durham was diagnosed with cancer, he assisted the couple with dressing, transportation and financial management issues on a daily basis. On 17 February 2006, Mrs. Durham died. According to Caveator, Decedent became very depressed, expressed suicidal thoughts, and became highly susceptible to third party influences following his wife's death. Executors concede that Caveator had a longstanding relationship with the couple and that the same had not been true of them.

On 18 February 2006, Griffin Funeral Home contacted Clarice Jones, sister of Executors and Decedent's niece, to inform her that Caveator had missed several appointments that day regarding Mrs. Durham's funeral arrangements. In response, Ms. Jones telephoned Decedent to apprise him of the situation. During the call, she heard him call out “Help me!” On the following morning, Executors went to investigate the situation, only to discover that Caveator had locked himself in Mrs. Durham's bedroom. Upon entering the residence, Executors found Decedent sitting in his own dried urine. Decedent told Executors that he had not eaten in two days, that he had given Caveator $10,000 to pay for Mrs. Durham's funeral, and that Caveator had failed to make the necessary payment.

After leaving Decedent's residence on 19 February 2006, Propounders initially took Decedent to the hospital. At the hospital, Decedent was described as being oriented and alert despite being in a weak and dehydrated condition. A hospital social worker recommended that Decedent contact an attorney to work out certain power of attorney issues.

On 20 February 2006, Executors took Decedent to his attorney's office. Due to the press of other business, Decedent's attorney referred him to the firm of Levine & Stewart for preparation of a power of attorney and a will. According to the drafting attorney, who met with Decedent out of Executors' presence, Decedent “stated quite adamantly that he wanted to draw up a new Will in order to take his [Caveator] out of his Will.” After consulting with the drafting attorney, Decedent executed a new will on 20 February 2006 which revoked all of his prior wills, designated Executors to administer his estate, and bequeathed his estate in equal shares to his eight living nieces and nephews, including Executors.

After Executors took Decedent to the funeral home on 19 February 2006, he never lived in his home again. Instead, he resided in Cambridge Hills in Pittsboro. Caveator was not allowed to see Decedent after 19 February 2006. On 21 September 2007, Decedent died.

On 28 September 2007, Executors successfully presented the 20 February 2006 Will for admission to probate to the Clerk of Superior Court of Chatham County. On 1 October 2007, Caveator filed a petition seeking to have the letters testamentary that had been issued to Executors revoked. On 11 October 2007, Executors filed an Answer to Show Cause and Motion for Sanctions pursuant to N.C. Gen.Stat. § 1A-1, Rule 11. On 18 October 2007, Caveator filed a Response in Opposition to Motion.

On 13 November 2007, Caveator filed a Caveat to Purported Will Dated February 20, 2006 in which he alleged that the 20 February 2006 will was invalid because Decedent lacked sufficient testamentary capacity to execute a valid will on 20 February 2006 and because the 20 February 2006 will resulted from undue influence on the part of Executors. A few minutes prior to the filing of the Caveat, the parties filed a Memorandum of Judgment/Order in which they stipulated that, given the filing of the Caveat, the revocation petition should be dismissed as moot. On 16 November 2007, the Clerk entered an order suspending the administration of Decedent's estate and issued a citation directing all interested parties to appear at the 14 January 2008 session of the Chatham County Superior Court. On 27 February 2008, Caveator filed a Motion for Rule 11 Sanctions seeking sanctions against counsel for Executors due to their failure to withdraw their original sanctions motion.

On 10 March 2008, Judge Stephens entered an Order for Sanctions Pursuant to Rule 11 granting Executors' motion for sanctions against Caveator and denying Caveator's motion for sanctions against Executors' counsel. On 19 September 2008, Executors filed a summary judgment motion directed to the Caveat. On 13 October 2008, Caveator filed a response to Executors' summary judgment motion. On 6 November 2008, Judge Fox entered an order granting Executors' summary judgment motion. On 8 December 2008, Caveator noted an appeal to this Court from both the 10 March 2008 order imposing sanctions and the 6 November 2008 order granting Executors' summary judgment motion.

II. Legal Analysis

A. Sanctions Order

1. Standard of Review

N.C. Gen.Stat. § 1A-1, Rule 11 provides, in pertinent part, that:

The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information and belief formed after reasonable inquiry that it is well grounded in fact and is warranted by existing law ...; and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

“There are three parts to a Rule 11 analysis: (1) factual sufficiency, (2) legal sufficiency, and (3) improper purpose.” Dodd v. Steele, 114 N.C.App. 632, 635, 442 S.E.2d 363, 365 disc. review denied, 337 N.C. 691, 448 S.E.2d 521 (1994) (citing Bryson v. Sullivan, 330 N.C. 644, 655, 412 S.E.2d 327, 332 (1992)).

“In analyzing whether the [filing] meets the factual certification requirement, the court must make the following determinations: (1) whether the [party] undertook a reasonable inquiry into the facts and (2) whether the [party], after reviewing the results of his inquiry, reasonably believed that his position was well-grounded in fact.” McClerin v. R-M Industries, Inc., 118 N.C.App. 640, 644, 456 S.E.2d 352, 355 (1995) (citing Higgins v. Patton, 102 N.C.App. 301, 306, 401 S.E.2d 854, 857 (1991) overruled on other grounds,

Bryson, 330 N.C. 644, 412 S.E.2d 327). “The text of [N.C. Gen.Stat. § 1A-1, Rule 11] requires that whether the document complies with the legal sufficiency prong of the Rule is determined as of the time it was signed.” Bryson, 330 N.C. at 657, 412 S.E.2d at 334. “To satisfy the legal sufficiency requirement, the disputed action must be warranted by existing law or a good faith argument for the extension, modification or reversal of existing law.” Dodd, 114 N.C.App. at 635, 442 S.E.2d at 365 (citing N.C. Gen.Stat. § 1A-1, Rule 11(a), and Bryson, 330 N.C. at 656, 412 S.E.2d at 332). Finally, “[t]he improper purpose prong of [N.C. Gen.Stat. § 1A-1,] Rule 11 is separate and distinct from the factual and legal sufficiency requirements.” Bryson, 330 N.C. at 663, 412 S.E.2d at 337. “An improper purpose is ‘any purpose other than one to vindicate rights ... or to put claims of right to a proper test.’ ” Mack v. Moore, 107 N.C.App. 87, 93, 418 S.E.2d 685, 689 (1992) (quoting G.P. Joseph Sanctions: The Federal Law of Litigation Abuse § 13(C) (Supp.1992)). “Thus, even if a paper is well grounded in fact and in law, it may still violate [N.C. Gen.Stat. § 1A-1,] Rule 11 if it is served or filed for an improper purpose.” Brooks v. Giesey, 334 N.C. 303, 315, 432 S.E.2d 339, 345-46 (1993) (citing Bryson, 330 N.C. at 663, 412 S.E.2d at 337). The determination of whether a filing was made for an improper purpose “must be reviewed under an objective standard,” Id. (citing Turner v. Duke University, 325 N.C. 152, 164, 381 S.E.2d 706, 713 (1989) disc. review denied, 329 N.C. 505, 407 S.E.2d 552 (1991)), with “the relevant inquiry [being] whether the existence of an improper purpose may be inferred from the alleged offender's objective behavior.” Mack, 107 N.C.App. at 93, 418 S.E.2d at 689 (citing Joseph Sanctions § 13(A) (1989)). “A violation of any one of these requirements mandates the imposition of sanctions under” N.C. Gen.Stat. § 1A-1, Rule 11. Dodd, 114 N.C.App....