Whitaker v. Whitaker, No. COA06-465 (N.C. App. 2/6/2007)
| Decision Date | 06 February 2007 |
| Docket Number | No. COA06-465,COA06-465 |
| Court | North Carolina Court of Appeals |
| Parties | LOUISA B. WHITAKER, Plaintiff, v. JOHN C. WHITAKER, JR., ELIZABETH N. WHITAKER, II, and WILLIAM A. WHITAKER, Defendants. |
Ross Law Firm, by C. Thomas Ross, for plaintiff-appellant.
Bell, Davis & Pitt, P.A., by William K. Davis and Alan M. Ruley, for defendants-appellees.
In 2003, plaintiff Louisa B. Whitaker and her siblings, defendants John C. Whitaker, Jr., Elizabeth N. Whitaker, II, and William A. Whitaker, settled four years of ongoing litigation regarding the administration of their deceased mother's estate. The resulting settlement judgment (the "Settlement Judgment") was affirmed by this Court following an appeal by plaintiff. Whitaker v. Whitaker, 169 N.C. App. 256, 611 S.E.2d 899, 2005 N.C. App. LEXIS 579, 2005 WL 589482 (2005) (unpublished) (hereinafter "Whitaker I"). Plaintiff now appeals from two orders of the superior court relating to the enforcement of the Settlement Judgment's provision that allowed plaintiff to remove one-fourth of the "fixtures" from the family home.
On appeal, plaintiff argues that the first of the trial court's orders erred by concluding that the term "fixtures," as used in the Settlement Judgment, did not include the entire house located on the property as well as the living room flooring and paneling. Plaintiff also contends that the trial court's first order improperly concluded that plaintiff had waived her right to seek additional fixtures beyond those she identified at a hearing to construe the Settlement Judgment. As to the second order, plaintiff argues that it erred by holding her in civil contempt of the first order.
We conclude that the trial court, in the first order, properly determined that the house and the living room flooring and paneling were not fixtures, and we agree with the trial court that plaintiff is precluded from seeking additional fixtures beyond those that she specified in the hearing. Moreover, we find no error in the trial court's decision to hold plaintiff in contempt of the first order based on her removal of fixtures from the house without authorization. The orders below are, therefore, affirmed.
In 1991, the parties' mother named defendant John Whitaker and plaintiff as her attorneys-in-fact. In 1999, defendants filed a petition alleging various acts of misfeasance by plaintiff and sought to have her removed as an attorney-in-fact (the "Special Proceeding"). The parties' mother died before this dispute was resolved.
An estate file was opened, and the mother's will was admitted to probate (the "Estate Proceeding"). When the parties could not agree on the administration of their mother's estate, they participated in mediation with a retired superior court judge that resulted in a handwritten Memorandum of Mediated Settlement Agreement (the "Memorandum"). Plaintiff later refused to execute any formalized version of the Memorandum.
Krispy Kreme Doughnut Corporation approached the parties about the possibility of building Krispy Kreme's corporate headquarters on a portion of real estate plaintiff and defendants had inherited under their mother's will (the "Homesite"). Defendants and plaintiff executed an Amendment to the Memorandum (the "Amendment"), which provided that defendant John Whitaker would be the sole spokesperson and negotiator for the family with Krispy Kreme and that a vote of three out of the four siblings would be binding on the entire group. Additionally, the Amendment provided that defendants would voluntarily dismiss the Special Proceeding, and the parties would "[t]ake such steps as are necessary" to begin administration of their mother's estate, including appointing both defendant John Whitaker and plaintiff as co-executors.
After extensive negotiations, a tentative agreement was reached between defendant John Whitaker and Krispy Kreme, and defendants executed the necessary documents for the sale of the Home site. Despite the Amendment's requirement that plaintiff do the same, she refused, and the sale to Krispy Kreme fell through.
Plaintiff instituted this action in superior court against defendants, asserting three claims for relief: (1) breach of contract, alleging that defendants had breached the Memorandum and the Amendment; (2) breach of a separate trust agreement relating to their mother's estate; and (3) a request for a declaratory judgment that plaintiff was not bound by the terms of the Amendment. Defendants counterclaimed for breach of contract, interference with contract, unfair and deceptive trade practices, fraud, and punitive damages.
The parties filed cross-motions for partial summary judgment that were granted in part and denied in part, and the case proceeded to trial. At the close of plaintiff's evidence, the trial court granted a directed verdict for defendants on all but one of plaintiff's claims. With defendants' counterclaims remaining to be tried, the parties negotiated a settlement in which plaintiff agreed to convey her interest in the Homesite to defendants. The trial court thereafter convened a hearing at which the attorneys read into the record the terms of the settlement, which, among other things, included an agreement that: (1) defendants would pay plaintiff $1.35 million; (2) plaintiff would execute deeds prepared by defendants' counsel; and (3) within 60 days of the closing, plaintiff could remove from the Homesite one-quarter of the "fixtures" and any shrubs or plants within a 500-foot radius of the house. Plaintiff, however, ultimately refused to sign a written settlement agreement. On 3 July 2003, defendants moved the trial court for entry of a judgment consistent with the terms of the settlement as stated on the record. The trial court granted the motion, and, on 14 July 2003, Judge Russell G. Walker, Jr. entered the Settlement Judgment, which set forth the terms of the settlement and provided that the closing of the real estate transaction would occur prior to 4 January 2004 unless otherwise agreed. Plaintiff appealed, and this Court affirmed the Settlement Judgment in Whitaker I.
The parties waited for this Court's March 2005 decision in Whitaker I before closing and, as a result, missed the 4 January 2004 closing date provided for in the Settlement Judgment. Even following Whitaker I, however, plaintiff would still not agree to a closing date for the sale of the Homesite. Instead, plaintiff filed a "Motion to Construe" the Settlement Judgment, requesting an interpretation of the term "fixtures." In response, defendants filed a motion seeking to compel plaintiff to close, to hold her in contempt, and for sanctions.1 A hearing before Judge Joseph R. John was held on both motions on 23 September 2005. At the hearing, Judge John asked plaintiff's counsel if he could "identify specifically what items may be in controversy." Although plaintiff's counsel broadly argued that "the house itself was a fixture," he specifically stated that plaintiff was really only seeking "light fixtures and things like that," as well as the "[f]looring, paneling, cabinets, [and] doors" from the home's living room so plaintiff could "try to recreate that room where she lives now," and "[s]ome cabinets from the kitchen," "doors to the cabinets in the butler's pantry," and two light fixtures in the dining room. Judge John asked whether there was "[a]nything else" and plaintiff's counsel responded, "That is all, Your Honor." Defendants, in turn, argued that there was no ambiguity in the Settlement Judgment and requested that the trial court set a closing date and sanction plaintiff for delaying the process.
On 4 October 2005, Judge John filed an order concluding that plaintiff's counsel's argument at the hearing had limited the court's inquiry to a determination whether the following items were fixtures: (1) the living room flooring, paneling, cabinets, doors, and windows; (2) kitchen cabinets; (3) doors to the cabinets in the butler's pantry; and (4) two light fixtures in the dining room. As to these items, Judge John concluded that the living room flooring and paneling were not fixtures, but he was unable to decide whether the remaining items were fixtures without an evidentiary hearing. Judge John specified in his order that either party could request such a hearing. Judge John also determined that plaintiff was precluded from removing any additional fixtures other than those she had identified at the hearing, set the closing on the Homesite for 31 October 2005, and declined to impose any sanctions upon plaintiff.
Neither party requested an evidentiary hearing prior to the 31 October 2005 closing date. Nevertheless, on 31 October 2005, plaintiff declined to close unless defendants provided her with "acknowledgments" that, following delivery of the deeds, plaintiff would retain her rights to obtain property and fixtures from the Homesite under the Settlement Judgment. Defendants declined to do so, and the closing did not occur as scheduled. Plaintiff thereafter appealed Judge John's order and delivered the required deeds to the clerk of superior court "to be held in safe keeping . . . until a final decision by an Appellate Court in North Carolina."
On 2 November 2005, defendants filed a motion seeking delivery of the deeds, an order holding plaintiff in contempt of both the Settlement Judgment and Judge John's order, and the imposition of sanctions. In response to defendants' notice of hearing, plaintiff filed a written objection, arguing that the trial court lacked jurisdiction as a result of plaintiff's appeal of Judge John's order. At the 10 November 2005 hearing on defendants' motion before Judge ...
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