DOROTHY P. VOLIVA, Plaintiff,
CHARLES DUDLEY and WENDY CHLOE GREWE, Defendants.
in the Court of Appeals 9 May 2019.
by Defendants from order entered 6 September 2018 by Judge
Robert P. Trivette in Currituck County No. 18-CVD-93 District
& Nash, LLP, by John G. Trimpi, for Plaintiff-Appellee.
Graham, Baker & Varnell, LLP, by Casey C. Varnell, for
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.
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.
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.
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.
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.
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.
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."
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 ...