Hill v. Cox

424 S.E.2d 201, 108 N.C. App. 454, 1993 N.C. App. LEXIS 87

• Court: Court of Appeals of North Carolina
• Decided: January 5, 1993
• Docket: 9118SC1041, 9218SC152
• Status: Published

Opinion

WALKER, Judge.

I.

In the first action before this Court, the law firm, on behalf of those caveators it represented, alleges that the trial court abused its discretion by denying their petition for approval and award of legal expenses filed on 26 April 1991. They argue that the caveat proceeding had substantial merit, and the trial court’s decision to deny them reasonable fees was arbitrary and unreasonable. We agree.

N.C.G.S. § 6-21(2) authorizes the trial court, in its discretion, to allow attorney fees to counsel for unsuccessful caveators where the proceeding has substantial merit. The purpose of this statute is to insure that parties with meritorious challenges to a will or trust agreement are not discouraged from bringing those claims by the prospect of incurring legal fees. In re Kirkman, 302 N.C. 164, 273 S.E.2d 712 (1981). In the absence of abuse or arbitrariness, a discretionary order of the trial court in this regard is conclusive on appeal. State Highway Commission v. Hemphill, 269 N.C. 535, 153 S.E.2d 22 (1967).

At the outset, we conclude that the trial court implicitly found that the caveat proceeding had substantial merit in allowing and awarding Mr. Crumley’s application for attorney fees. The trial court also recognized the merit of the claims asserted in stating: “I know that they [the jury] could have gone one way or they could have gone the other based upon the evidence that was presented and whichever way they went in this case they had a good reason to go whichever way they went.”

Additionally, there was evidence that the law firm performed substantial services on behalf of the caveators it represented. Mr. Hundley was introduced to the jury as counsel for caveators and actively participated as such throughout trial. He cross-examined seven witnesses for the propounders, and conducted the examination of nine of the fourteen witnesses, as well as two of the three rebuttal witnesses, called by all of the caveators. He attended and participated in the jury charge conference and made a closing argument on behalf of caveators. He also argued several motions to the court. At the conclusion of the trial, the court recognized the parties were competently represented by the three attorneys and acknowledged that the case was extremely difficult but had been exceptionally well tried. The court praised the attorneys for their knowledge of the case, the law, and the manner in which they participated in the trial.

As previously noted from the record, the trial court permitted Mr. Crumley to withdraw as counsel of record for certain caveators on 29 October 1990. Implicit in that decision was permission for these caveators to retain their own counsel. Therefore, if at the outset of the trial of this cause, the court determined that there was duplicity on the part of all counsel in its representation of the caveators, then the caveators should have been apprised that such a determination by the trial court might result in the denial of attorney fees pursuant to N.C.G.S. § 6-21(2), rather than for the trial court to summarily deny the law firm’s request for fees at the conclusion of this matter.

For the aforementioned reasons, we find that the trial court was correct in its decision to award attorney fees pursuant to N.C.G.S. § 6-21(2). However, the trial court manifested an abuse of discretion in summarily denying caveators’ petition for approval and award of legal expenses by Mr. Hundley and the law firm. We therefore reverse the trial court’s denial of the law firm’s petition for attorney fees and expenses entered 29 April 1991 and remand this case to the trial court for further hearing on the issue of caveators’ attorney fees and expenses.

II.

By their second action, caveators contend: (1) the trial court violated the First Amendment by praying upon the opening of each morning session of court; (2) the trial court’s daily prayer was an improper expression of opinion which violated Rule 51(a); (3) the trial court erred in denying caveators’ motion for a directed verdict and judgment notwithstanding the verdict based upon the failure of the propounders to present sufficient evidence to rebut the presumption of undue influence raised by the fiduciary relation ship; (4) the trial court erred in failing to instruct the jury that they could find that the testator’s disposition was fair, reasonable and just, but could fail for lack of testamentary capacity; and (5) the trial court abused its discretion by ruling peremptorily that no attorneys’ fees would be awarded to the caveators in the event they chose to appeal. Caveators thereby assert that they are entitled to a new trial.

In their first and second assignments of error, caveators take exception to the daily prayer offered by the trial court at the beginning of each court session. Specifically, the trial court asked all individuals in the courtroom to join him “as we invoke the blessing of the Almighty that what we do this date might be guided by his hand and further that what we do might be equitable to our fellow man.” Caveators argue that the prayer violated the First Amendment and the Establishment Clause of the United States Constitution because the purpose of the prayer was religious, it advanced religion, and it fostered excessive government entanglement with religion, thereby failing the three-part test set forth in Lemon v. Kurtzman, 403 U.S. 602, 29 L.Ed.2d 745, reh’g denied, 404 U.S. 876, 30 L.Ed.2d 123 (1971). Additionally, they claim this prayer violated Article I, Section 13 of the North Carolina Constitution and the constitutional mandate of “secular neutrality toward religion.” Heritage Village Church and Missionary Fellowship, Inc. v. State, 299 N.C. 399, 406, 263 S.E.2d 726, 730 (1980). Caveators also contend this prayer was an impermissible expression of opinion, in violation of Rule 51(a), which unduly emphasized the jury’s need to render an equitable judgment to the exclusion of applicable legal principles.

The Establishment Clause of the First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” As applied to the states through the Fourteenth Amendment, the First Amendment “also restricts action by state governments and the servants, agents and agencies, of state governments.” North Carolina Civil Liberties Union v. Constangy, 751 F.Supp. 552, 553 (W.D.N.C. 1990), aff’d, 947 F.2d 1145 (4th Cir. 1991). (Emphasis omitted.) We decline to discuss the merits of caveators’ argument, however, on the ground that “[e]very violation of a constitutional right is not prejudicial. Some constitutional errors are deemed harmless in the setting of a particular case, . . . where the appellate court can declare a belief that it was harmless beyond a reasonable doubt.” State v. Taylor, 280 N.C. 273, 280, 185 S.E.2d 677, 682 (1972); State v. Payne, 320 N.C. 138, 357 S.E.2d 612 (1987).

From a review of the record, we cannot conclude that the daily prayer prejudiced the caveators such that a different result would likely have been reached absent the prayer. Glenn v. City of Raleigh, 248 N.C. 378, 103 S.E.2d 482 (1958); First-Citizens Bank & Trust Company v. Carr, 10 N.C.App. 610,179 S.E.2d 838, modified on other grounds, 279 N.C. 539, 184 S.E.2d 268 (1971). There is no evidence that the jury was present at the time the trial court recited the prayer. Assuming arguendo that the jury was present, we do not construe the trial court’s prayer “that what we do might be equitable to our fellow man” as an implicit directive to the jurors to disregard legal principles and the explicit instructions of the trial court. Instead, the trial court instructed the jury that it had no opinion as to how the case should be decided. N.C.P.I. 150.20. It is our opinion, therefore, that any error which may have occurred within the context of the court’s prayer would have been cured by the trial court’s instructions, and there is no indication that the integrity of the verdict was compromised. Having found no prejudice, we conclude that any constitutional violation which might have occurred was harmless beyond a reasonable doubt. Furthermore, absent caveators’ showing of prejudice, we cannot conclude that the trial court’s prayer amounted to an impermissible expression of opinion in violation of Rule 51(a).

Caveators next contend that the trial court erred in denying their motion for a directed verdict and judgment notwithstanding the verdict on the grounds that there was insufficient evidence to rebut the presumption of undue influence raised by the fiduciary relationship between the testator and Hobert Largen, the testator’s stepfather and beneficiary under testator’s will. A motion for judgment notwithstanding the verdict is technically a renewal of the directed verdict motion, such that our standard of review is the same for both. Dotson v. Payne, 71 N.C.App. 691, 323 S.E.2d 362 (1984). In re Andrews, 299 N.C. 52, 261 S.E.2d 198 (1980). We must therefore determine whether the evidence, taken in the light most favorable to the propounders, was sufficient for submission of the case to the jury. Id. Having reviewed the record and the transcripts covering ten days of trial, numerous exhibits, and the testimony of more than thirty-five witnesses, we find that there was sufficient evidence to support the trial court’s determination and therefore find no error.

Additionally, caveators argue that the trial court erred in failing to instruct the jury that they could find that the testator’s disposition was fair, reasonable and just, but could fail for lack of testamentary capacity. In instructing the jury on the issue of testamentary capacity, the trial court followed the pattern jury instructions and stated:

[I]f you find that the testator made an unreasonable or unfair or unjust disposition, but are satisfied that he had testamentary capacity, then you would disregard the unreasonableness or unfairness or injustice of the disposition.

Caveators except to this charge on the ground that the jury could have concluded that the disposition in the testator’s will was reasonable based upon the evidentiary showing of the extremely close, confidential relationship which existed between the testator and his stepfather. The reasonableness and fairness of his disposition would be irrelevant, however, if the testator lacked testamentary capacity. Caveators thereby contend that the evidence in this case required the trial court to submit the following instruction:

If you find that the testator made a reasonable or fair or just disposition, but are satisfied that he lacked testamentary capacity, then you would disregard the reasonableness or fairness or justice of the disposition.

Clearly, it is incumbent upon the trial court to instruct the jury on the law as it applies to the substantive features of the case arising from the evidence. Millis Construction Co. v. Fairfield Sapphire Valley, Inc., 86 N.C.App. 506, 358 S.E.2d 566 (1987). While we do not disagree with caveators that their requested charge is a preferred instruction on this aspect of the law, we cannot conclude that prejudicial error resulted from the instruction given. The trial court’s instructions to the jury, when challenged for error, must be considered contextually. In re Worrell, 35 N.C.App. 278, 241 S.E.2d 343, disc. review denied, 295 N.C. 90, 244 S.E.2d 263 (1978). In the instant case, the trial court charged that evidence of the reasonableness of the property disposition was relevant only to the extent that it related to the testator’s testamentary capacity. The court stated:

Now, in passing upon testamentary capacity, you may, in the light of all the evidence as to his circumstances, consider the reasonableness or unreasonableness, the fairness or unfair ness, and the justice or injustice of the disposition of the property disposed of in the paper writing. But you may consider these things only as they bear upon the question of his mental condition.

Thus, when considered as a whole, we find that the court’s charge was supported by the evidence and fairly presented the law applicable to the case.

By caveators’ final assignment of error, they allege that the trial court abused its discretion by ruling peremptorily that no attorney fees would be awarded to the caveators in the event they chose to appeal. Specifically, caveators object to the court’s comments following its ruling on post-verdict motions that:

If any appeals are filed in this case, there will be no attorney’s fees provided for anybody. Anybody that appeals the case, there will be no fees paid from the estate. They will be paid by those people who may appeal.

Now, from this point on there will be no attorney’s fees paid from the estate. Only from the people who hire you to appeal, if in fact you do appeal. And I think that needs to be known at this particular point and not some point down the line.

Caveators argue that the trial court’s refusal to exercise its discretionary power to award attorney fees pursuant to N.C.G.S. § 6-21(2) was arbitrary, unreasonable, and constituted an abuse of discretion. They submit that these statements implied that the court found no substantial merit to any of caveators’ grounds for appeal, and may also have had a coercive effect on the parties’ exercise of their rights to appeal.

As to this assignment of error, we cannot conclude that caveators were prejudiced. These remarks were made subsequent to the verdict and the court’s ruling on post-verdict motions. Furthermore, it does not appear that the court’s comments had a chilling effect in light of the appeal now before this Court. The trial court will not be precluded, upon remand, from considering further requests for fees incurred by the parties as a result of this appeal.

As to the trial of this caveat to the will of Bynum Hill, we find No Error in the judgment of the trial court. REVERSED and REMANDED for further proceedings as to attorneys’ fees in this case including the appeal.

Judges COZORT and GREENE concur.