Barrett v. Coston , 261 N.C. App. 311 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-16
Filed: 18 September 2018
Carteret County, No. 17 CVS 343
PAMELA C. BARRETT, individually and as executor of the Estate of Donald Collins
Clements, Jr., Plaintiff,
v.
NANCY COSTON, Defendant.
Appeal by Plaintiff from an order entered 21 September 2017, as amended 25
September 2017, by Judge Benjamin G. Alford in Carteret County Superior Court.
Heard in the Court of Appeals 8 August 2018.
Harvell and Collins, P.A., by Russell C. Alexander and Wesley A. Collins, for
the Plaintiff-Appellant.
Sumrell, Sugg, Carmichael, Hicks and Hart, P.A., by Ross T. Hardeman, for
the Defendant-Appellee.
DILLON, Judge.
Pamela C. Barrett (“Plaintiff”) appeals from an order granting Nancy Coston’s
(“Defendant”) motion to dismiss and denying Plaintiff’s motion for summary
judgment as moot. After careful review, we affirm the decision of the trial court.
I. Background
BARRETT V. COSTON
Opinion of the Court
This case concerns two pieces of real property, (1) a house in Atlantic Beach
(“the House”) and (2) a condominium unit in Indian Beach (“the Condo”), each
formerly owned by Donald C. Clements, Jr. (the “Decedent”), who died in 2016.
Plaintiff is the Decedent’s sister. Defendant is the Decedent’s wife’s sister.
The Decedent and his wife did not have children. They owned the House and
the Condo. At some point, the Decedent’s wife died, at which point the Decedent
became the sole owner of the House and the Condo.
In 2012, the Decedent executed a will (the “2012 will”) which expressly left the
House to Defendant (his wife’s sister) and which left the residue of his estate (which,
as of 2012, would have included the Condo) to Plaintiff (his sister).
There was evidence that sometime after 2012, but prior to the Decedent’s death
in 2016, the Decedent had verbal communications with Plaintiff and Defendant to
change who would ultimately receive the House and who would receive the Condo.
There was evidence that the Decedent gave Defendant the choice between the House
and the Condo and that Defendant told the Decedent that she preferred the Condo.
There was evidence of an oral agreement or understanding that Defendant would
receive the Condo and Plaintiff would receive the House, contrary to the terms of the
Decedent’s 2012 will.
In any event, in June 2016, five months before his death, the Decedent
executed and delivered a deed conveying the Condo to Defendant (the “2016 deed”).
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BARRETT V. COSTON
Opinion of the Court
But the Decedent never executed a deed conveying the House to Plaintiff nor did he
ever amend his will to leave the House to Plaintiff rather than to Defendant.
In December 2016, the Decedent died. Therefore, as a result of the 2012 will,
Defendant received the House. And as a result of the deed, Defendant also received
the Condo. Plaintiff only received the property that remained in the residue of the
Decedent’s estate.
Plaintiff commenced this action claiming that she is entitled to the House, as
this was the Decedent’s intent.
Defendant moved to dismiss Plaintiff’s action, and Plaintiff moved for partial
summary judgment. After a hearing on the matter, the trial court entered an order
granting Defendant’s motion to dismiss and denying Plaintiff’s motion for partial
summary judgment. Plaintiff timely appealed.
II. Discussion
On appeal, Plaintiff challenges the trial court’s order dismissing her claims.
At the outset, we note that the trial court, in its order, stated that it considered not
only the pleadings, but also other materials presented by the parties, which included
a number of affidavits. Accordingly, Defendant’s Rule 12(b)(6) motion to dismiss is
more properly characterized as a Rule 56 motion for summary judgment. See N.C.
R. Civ. P. 12(b) (stating that if “matters outside the pleadings” are presented and not
excluded by the court, the motion [to dismiss] shall be treated as one for summary
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BARRETT V. COSTON
Opinion of the Court
judgment and disposed of as provided in Rule 56”). Our standard of review of an
appeal from summary judgment “is de novo; [and that] such judgment is appropriate
only when the record shows that there is no genuine issue of material fact and that
any party is entitled to judgment as a matter of law.” In re Will of Jones, 362 N.C.
569, 573, 669 S.E.2d 572, 576 (2008) (internal marks omitted).
Plaintiff argues that there is an issue of fact that she is entitled to the House,
notwithstanding the 2012 will where the Decedent left the House to Defendant.
Plaintiff bases her argument on three separate legal theories discussed below.
However, all three theories are based on parol evidence, namely, oral communications
among Plaintiff, Defendant, and the Decedent in which there was allegedly some
agreement or understanding among the three that Plaintiff would receive the House
and Defendant would receive the Condo. It may be quite probable that the Decedent
intended for Plaintiff (his sister) to receive the House and Defendant (his wife’s sister)
to receive the Condo, and not for Defendant to receive both. But, for the following
reasons, we must affirm the order of the trial court, which concluded that Defendant
is the lawful owner of both properties.
First, we conclude that Plaintiff’s arguments all run counter to our Statute of
Frauds, codified in N.C. Gen. Stat. § 22-2. Defendant’s title to the Condo and title to
the House are based on written instruments signed by the Decedent; namely, her title
to the Condo is based on the 2016 deed, and her title to the House is based on the
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BARRETT V. COSTON
Opinion of the Court
2012 will. However, Plaintiff’s title to the House, according to her complaint, is based
entirely on parol evidence. Our Statute of Frauds, though, requires that “[a]ll
contracts to sell or convey any lands, tenements or hereditaments, or any interest in
or concerning them . . . shall be void unless said contract, or some memorandum or
note thereof, be put in writing and signed by the party to be charged therewith, or by
some other person by him thereto lawfully authorized.” N.C. Gen. State § 22-2 (2015).
As it has been said:
There is no stake for which men will play so desperately.
In men and nations there is an insatiable appetite for
lands, for the defence or acquisition of which money, and
even blood, sometimes are poured out like water. The
evidence of land title ought to be as sure as human
ingenuity can make it. But if left to parol, nothing is more
uncertain, whilst the temptations to perjury are
proportioned to the magnitude of the interest. The
infirmity of memory, the honest mistakes of witnesses, and
the misunderstanding of parties, these are the elements of
confusion and discord which ought to be excluded.
James A. Webster, Jr. et al., Webster's Real Estate Law in North Carolina § 9.06
(2018), (quoting Moore v. Small, 19 Pa. 461, 465 (1852))
Our Supreme Court has held that an agreement to devise real property falls
within the Statute of Frauds. Jamerson v. Logan, 228 N.C. 540, 542, 46 S.E.2d 561,
563 (1948). As such, as our Supreme Court has held, “an oral contract to convey or
to devise real property is void by reason of the statute of frauds.” Pickelsimer v.
Pickelsimer, 257 N.C. 696, 698, 127 S.E.2d 557, 559 (1962).
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BARRETT V. COSTON
Opinion of the Court
Plaintiff claims she should receive the House based on a theory that Defendant
has been unjustly enriched. Our Supreme Court has held that “a person who has
been unjustly enriched at the expense of another is required to make restitution to
the other.” Booe v. Shadrick, 322 N.C. 567, 570, 369 S.E.2d 554, 555-56 (1988).
Plaintiff contends that Defendant has been unjustly enriched at her expense because
Defendant received the House which should have been left to Plaintiff.
Our Supreme Court, though, has held that to make out a claim for unjust
enrichment, the plaintiff must show that she conferred a benefit on the other party.
Id. But, here, all the evidence showed that Plaintiff did not confer any benefit on
Defendant. Plaintiff did not own the House. She had no legal right to the House
based on some oral promise by the Decedent that he would leave it to her. Rather,
the benefit was allegedly conferred upon Defendant by the Decedent.
We therefore conclude that Plaintiff’s claim based on unjust enrichment fails
as a matter law.
Plaintiff next claims that Defendant merely holds the House in constructive
trust for her. Generally, a constructive trust is “imposed by courts of equity to prevent
the unjust enrichment of the holder of title to, or of an interest in, property which
such holder acquired through fraud, breach of duty or some other circumstance
making it inequitable for [her] to retain it against the claim of the beneficiary of the
constructive trust.” Roper v. Edwards, 323 N.C. 461, 464, 373 S.E.2d 423, 424-25
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BARRETT V. COSTON
Opinion of the Court
(1988) (emphasis added) (citation omitted). But a constructive trust cannot be based
upon an unenforceable oral agreement. Walker v. Walker, 231 N.C. 54, 56, 55 S.E.2d
801, 802 (1949). Here, Plaintiff’s evidence failed to show that Defendant acquired the
House through fraud, breach of duty, or other wrongdoing. Rather, she received it
through a legacy in the Decedent’s 2012 will. When the Decedent executed the 2016
deed, conveying the Condo to Defendant, the Decedent still owned the House. The
House was his to do with as he pleased. He could have given it or left it to Plaintiff.
He chose not to deed it to Plaintiff during his lifetime, and he chose not to modify his
2012 will. We, therefore, conclude that the trial court correctly determined that there
was no constructive trust imposed through the 2012 will as a matter of law.
Finally, Plaintiff argues that the 2016 deed should be reformed based on
mutual mistake. We have held that “[m]istake as a ground for relief should be alleged
with certainty, by stating the facts showing mistake.” Van Keuren v. Little, 165 N.C.
App. 244, 249, 598 S.E.2d 168, 171 (2004). Our Supreme Court has held that:
The party asking for relief, by reformation of a deed or
written instrument, must allege and prove, first, that a
material stipulation, as alleged, was agreed upon by the
parties to be incorporated in the deed or instrument as
written; and, second, that such stipulation was omitted
from the deed or instrument as written by mistake, either
of both parties, or of one party, induced by the fraud of the
other, or by the mistake of the draftsman. Equity will give
relief by reformation only when a mistake has been made,
and the deed or written instrument, because of the
mistake, does not express the true intent of both parties.
The mistake of one party to the deed or instrument alone,
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BARRETT V. COSTON
Opinion of the Court
not induced by the fraud of the other, affords no ground for
relief
Matthews v. Shamrock., 264 N.C. 722, 725, 142 S.E.2d 665, 668 (1965).
Here, Plaintiff does not allege that the Decedent had intended to include in the
2016 deed a stipulation conveying the House to Plaintiff and that such stipulation
was left out by mistake. Indeed, only Defendant is listed as a grantee. She only
alleges that the Decedent was somehow mistaken that executing the 2016 deed was
all he needed to do to carry out the entirety of the purported agreement between the
parties.
We conclude that the evidence raises no genuine issue of fact to rebut the
presumption that the Decedent knew that the 2016 deed was only effective to convey
the Condo to Defendant and that it did not convey the House to Plaintiff. All the
evidence shows that he intended to convey the Condo to Defendant and that this
conveyance was not a mistake. Rather, the “mistake” might have been that the
Decedent thought his 2012 will already left the House to Plaintiff; or the mistake
might have been that the Decedent never got around to amending his 2012 will.
Maybe the Decedent made no mistake at all, but that he simply changed his mind
and decided to leave both the House and the Condo to Defendant. In any case,
Plaintiff has failed to create an issue regarding her claim based on mutual mistake.1
1Plaintiff also made a claim for punitive damages. But as she has failed to prove compensatory
or nominal damages, her claim for punitive damages must fail. N.C. Gen. Stat. § 1D-15(a).
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BARRETT V. COSTON
Opinion of the Court
III. Conclusion
We are certainly sympathetic to Plaintiff’s position. It seems likely that the
Decedent meant to leave Plaintiff the House but that he simply never got around to
change his will or execute a deed to carry out this intent. It may be that her brother
thought that he already had taken care of it. But, under the facts of this case, there
is simply no remedy available to Plaintiff. Through the 2016 deed, Defendant became
the legal owner of the Condo, as was the clear intent of the Decedent. And when the
Decedent died later in 2016, Defendant became the legal owner of the House, by
virtue of the Decedent’s 2012 will. There is no evidence that Defendant, otherwise,
acquired the House through fraud or the breach of some duty. Our law and strong
public policy demand that we enforce the 2012 will and the 2016 deed as written,
notwithstanding parol evidence suggesting that the Decedent, at some point late in
his life, had expressed an intention that Plaintiff would receive his House at his
death.
AFFIRMED.
Judges DAVIS and INMAN concur.
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