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Voliva v. Dudley

Court of Appeals of North Carolina

August 20, 2019

DOROTHY P. VOLIVA, Plaintiff,
v.
CHARLES DUDLEY and WENDY CHLOE GREWE, Defendants.

          Heard in the Court of Appeals 9 May 2019.

          Appeal by Defendants from order entered 6 September 2018 by Judge Robert P. Trivette in Currituck County No. 18-CVD-93 District Court.

          Trimpi & Nash, LLP, by John G. Trimpi, for Plaintiff-Appellee.

          Sharp, Graham, Baker & Varnell, LLP, by Casey C. Varnell, for Defendants-Appellants.

          Collins, Judge.

         Defendants Charles Dudley and Wendy Chloe Grewe appeal from an order denying their motion to dismiss and motion for judgment on the pleadings made pursuant to North Carolina Rules of Civil Procedure 12 and 56, and granting Plaintiff's motion for summary judgment made pursuant to Rule 56 on Plaintiff's cause of action alleging breach of contract. Defendants contend that the trial court erred by granting Plaintiff's motion for summary judgment because genuine issues of material fact exist that preclude summary judgment in Plaintiff's favor, and that the trial court erred by denying Defendants' motion for judgment on the pleadings because the purported contract was illegally procured and unenforceable as a matter of law. We reverse and remand in part and affirm in part.

         I. Background

         Amy Cassandra Dudley Payne died testate in April 2013, naming Plaintiff as the desired executrix of her estate. On 7 May 2013, Plaintiff filed an application for probate and letters testamentary with the Clerk of Superior Court. The Clerk probated the Payne will and issued Plaintiff letters testamentary the same day.

         The Payne will provided, in relevant part, that Plaintiff was to sell certain real property owned by the decedent and to distribute the net proceeds of the sale equally amongst the three beneficiaries: Tony Voliva, Defendant Dudley, and Defendant Grewe (collectively, the "Beneficiaries"). On 11 March 2014, pursuant to the desires of the Beneficiaries, Plaintiff and the Beneficiaries filed a verified petition in the Superior Court seeking the court's permission to allow Plaintiff to deviate from the terms of the will by foregoing the contemplated sale and conveying the real property to the Beneficiaries instead. The Superior Court entered an order on 12 March 2014 allowing the deviation and the conveyance. Plaintiff had the real property surveyed and divided into three parcels, and conveyed one parcel to each of the Beneficiaries.

         On 2 December 2014, Plaintiff filed an application in the Superior Court seeking an executor's commission of $4, 504.38, which amounted to five percent of the total receipts and disbursements of the Payne estate. The Clerk entered an order the same day granting Plaintiff the commission she sought. On 7 February 2018, Plaintiff filed a final account in the Superior Court, and the Clerk approved the final account on 12 February 2018.

         On 7 March 2018, Plaintiff filed a complaint in the District Court (the "trial court") seeking to enforce the terms of a promissory note executed by the Beneficiaries on 24 January 2014 (the "Note"), which Plaintiff attached as an exhibit to her complaint. Per the terms of the Note, the Beneficiaries became jointly and severally liable to Plaintiff in the amount of $15, 000 "FOR VALUE RECEIVED." The Note does not reference the Payne will or otherwise describe what value was provided in exchange for the Beneficiaries' promise to pay. In the complaint, Plaintiff alleges that Tony Voliva, who is her son, is the only beneficiary who has paid her anything under the Note. Plaintiff seeks to enforce the Note against Defendants only, and seeks the balance of the principal due on the Note plus interest, attorney's fees, and costs.

         On 15 May 2018, Defendants filed a motion to dismiss pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6), and answered the complaint, raising the defenses of lack of consideration; fraud, duress, and undue influence; and unclean hands. Defendants' motion to dismiss and answer included a number of factual allegations, including that "[t]he entire claim of the Plaintiff and alleged consideration for the subject promissory note stems directly from" the probate of the Payne will, and that after Defendants "suggested" to Plaintiff that they preferred the partition and conveyance of the real property to the sale, "Plaintiff informed the Defendants that [Plaintiff] would not agree to or allow an in-kind partition of the Property unless and until the Defendants executed" the Note. On 13 July 2018, Defendants filed a motion for judgment on the pleadings pursuant to N.C. Gen. Stat. § 1A-1, Rules 12(c) and 56, arguing that there exist no genuine issues of material fact and that Defendants were entitled to judgment as a matter of law.

         On 31 July 2010, Plaintiff filed a motion for summary judgment under Rule 56, arguing that there exist no genuine issues of material fact and that Plaintiff was entitled to judgment as a matter of law. Plaintiff attached to her motion for summary judgment two affidavits: one of her own, and one executed by William Brumsey, III, the attorney who both helped Plaintiff administer the Payne estate and drafted the Note on behalf of the Beneficiaries. In her own affidavit, Plaintiff states that she "never spoke to or had any conversation with either of the defendants pertaining to the transaction in question or the [Note]," and that the Note was "the result of a negotiated settlement arrangement between [Tony Voliva] and the two defendants in this action."

         On 13 August 2018, Defendants filed verifications in which they stated that the 15 May 2018 motion to dismiss and answer "is true of [their] own knowledge, except as to those matters and things stated on information and ...


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