in the Court of Appeals 20 September 2018.
by Plaintiff from order entered 21 September 2017 by Judge
Ebern T. Watson, III, in New Hanover County, No. 17CVS1145
Office of Susan M. Keelin, PLLC, by Susan M. Keelin for
Cranfill Sumner & Hartzog LLP, by Melody Jewell Jolly for
of an equitable distribution award remains within the
exclusive jurisdiction of the district court, even after one
party subject to the order dies.
Mary Wolf Smith ("Ms. Smith") appeals the superior
court's dismissal of her complaint arising from an
equitable distribution award ordered ("ED Order")
by the district court against her ex-husband, Gerald Wolf,
Jr. ("Mr. Wolf"), prior to his death. Ms. Smith
sued Richard T. Rodgers, Jr., Esq. ("Rodgers") and
Sherman and Rodgers, PLLC, administrators of Mr. Wolf's
estate (collectively "Defendants") for declaratory
relief, breach of fiduciary duty, and conversion. The
superior court agreed with Defendants that Ms. Smith's
complaint was time-barred by a statute governing claims
Smith argues that her complaint does not assert claims
against an estate and is therefore not subject to the
statutory time limitation for bringing such
claims.We agree that Ms. Smith's claim for
declaratory judgment is directly related to enforcement of
the ED Order and is not a claim against the estate and
therefore not time-barred. But we hold that the superior
court lacked jurisdiction to hear it. We are not persuaded
that Ms. Smith's tort claims are likewise directly
related to the ED Order, so we affirm the trial court with
respect to those claims.
Factual and Procedural Background
record,  including Ms. Smith's complaint,
reflects the following:
Facts and Litigation Preceding this Action
Smith and Mr. Wolf married in 1994 and divorced in 2013.
During the marriage, Mr. Wolf was a member in Savings Home,
LLC ("Savings Home"), which owned parcels of real
estate for sale or rental. In December 2012, in an equitable
distribution proceeding in the New Hanover County District
Court, the court entered an ED Order providing for Ms. Smith
to receive fifty percent of the marital estate. The ED Order
identified, valued, and distributed specific marital property
and debt according to a detailed schedule, including a line
item referred to as Savings Home, which allocated half the
value of Mr. Wolf's ownership interest in Savings Home
("LLC interest") to Ms. Smith and the other half of
the value to Mr. Wolf. The district court found that the LLC
interest had a fair market value of $419, 283, and allocated
a value of $209, 642 to Ms. Smith and a value of $209, 641 to
it was not possible to divide the value of specific assets
equally between the parties, the trial court also included a
distributive award requiring Mr. Wolf to pay Ms. Smith $30,
620 over a period of 36 months to make the total distribution
to her equal to half of the value it found in the entire
Order required that "each party shall immediately
execute any and all documents and make all transfers of
property necessary to effectuate the terms and conditions of
Wolf died suddenly on 7 March 2013, three months after the ED
Order but before he had liquidated his LLC interest in
Savings Home or paid to Ms. Smith half the value of the LLC
interest, as required by the ED Order. At the time of Mr.
Wolf's death, Savings Home owned eight parcels of real
estate, all of which were controlled by and in the possession
of the surviving member in Savings Home, David Goldrup
qualified as the personal representative of Mr. Wolf's
estate through letters of administration filed in the Clerk
of New Hanover County Superior Court's estate division on
4 January 2013 (the "Estate Matter"). Mr.
Wolf's only heirs-at-law are his two
August 2013, Ms. Smith, through her then-counsel, filed a
notice of claim in the Estate Matter for $30, 620, the
distributive award provided for in the ED
Order. In July 2016, Defendants, on behalf of Mr.
Wolf's estate, paid Ms. Smith's claim.
Smith did not file a notice of claim for any other aspect of
the equitable distribution award, including the distribution
to her of half the value of Mr. Wolf's LLC interest in
Rodgers became the personal representative of Mr. Wolf's
estate, he and Ms. Smith agreed to coordinate efforts to
recover the value of the LLC interest in Savings Home for the
benefit of Mr. Wolf's estate and Ms. Smith. In August
2014, Rodgers and Ms. Smith filed suit against Savings Home
and Goldrup, the sole surviving member, seeking an accounting
of the limited liability company's affairs and imposition
of a constructive trust on all of its assets ("the
Savings Home Action").
2016, the parties in the Savings Home Action agreed to a
consent order ("the 2016 consent order") for all
real property owned by Savings Home to be sold, and for all
sales proceeds to be placed in a trust controlled by Sherman
and Rodgers, PLLC, the law firm in which Rodgers is a member.
The 2016 consent order also provided for Sherman and Rodgers,
PLLC to be responsible for managing all of the real property,
to provide an accounting for all revenues and expenses for
the real property, and to list each parcel of property for
sale after obtaining the written approval of all parties to
the Savings Home Action to the list price, commission rate,
and sale price for each parcel. The 2016 consent order also
provided that the net proceeds of the sale of each parcel
would be divided by agreement of the parties to the Savings
Home Action "or in accordance with any orders of this
Court." Consistent with the 2016 consent order, Goldrup
then transferred to Sherman and Rodgers, PLLC management and
control of all of the real estate owned by Savings
December 2016, Ms. Smith, through new counsel, Susan Keelin,
sent a letter by e-mail to Mr. Rodgers demanding "excise
of her property from [Mr. Wolf's estate] as set forth in
the [ED Order]." The letter asserted that Ms.
Smith's "right to an equitable distribution of
property from the marital estate vested when she and [Mr.
Wolf] separated" and that it was not, and never had
been, part of Mr. Wolf's estate.That same day, Rodgers, on
behalf of Sherman and Rodgers, PLLC, sent an e-mail response
to the demand letter, telling Keelin that she "[has] no
case" and that she should "[c]ontact [her]
malpractice insurer carrier and have them call [him]."
March 2017, Rodgers filed in the Estate Matter a denial of
Ms. Smith's demand for half the value of Mr. Wolf's
LLC interest in Savings Home, which Rodgers characterized as
a "claim" against Mr. Wolf's estate, for
failure to properly present a claim pursuant to N.C. Gen.
Stat. § 28A-19-1, a statute governing claims against an
This Action and Related Proceedings
March 2017, Ms. Smith filed suit in New Hanover County
Superior Court, alleging claims against Defendants for breach
of fiduciary duty, conversion, and for a declaratory judgment
that she is entitled to her half of the distributive value of
the LLC interest in Savings Home without having to file a
claim against Mr. Wolf's estate. Defendants filed a
motion to dismiss the action pursuant to Rule 12(b)(6) of the
North Carolina Rules of Civil Procedure, arguing that Ms.
Smith's claims were time-barred by statutes governing
claims against a decedent's estate.
August 2017, the remaining parties in the Savings Home Action
agreed to a second consent order ("the 2017 consent
order") which required Sherman and Rodgers, PLLC to pay
to the New Hanover County Clerk of the Superior Court, among
other things, the funds in the law firm's trust account
derived from Savings Home, and provided for the trial court
to appoint a commissioner to manage and sell the remaining
assets of Savings Home. The 2017 ...