An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA14-189 NORTH CAROLINA COURT OF APPEALS
Filed: 2 September 2014
SYLVIA SMITH, Plaintiff,
v. Cumberland County No. 11 CVS 10470 FANNIE MCKINNON, JERRY DANIELS and JAMES F. DANIELS, Defendants.
Appeal by defendant Jerry Daniels from order entered 18
November 2013 by Judge C. Winston Gilchrist in Cumberland County
Superior Court. Heard in the Court of Appeals 11 August 2014.
Attorney Mark A. Key, for plaintiff.
Lewis, Deese, Nance, Briggs & Hardin, by James R. Nance, Jr. for defendant.
ELMORE, Judge.
Jerry Daniels (defendant) timely appeals from an order
entered on 18 November 2013 following a bench trial ordering
that a deed transacting a tract of property located at 4524
Tonric Drive be set aside because defendant procured the
execution of that deed by undue influence. After careful
consideration, we affirm. -2- I. Facts
On 24 March 1998, Fannie Powell (Mrs. Powell) executed her
last will and testament through which she devised real property
located on 4524 Tonric Drive (the Tonric Drive property) in
Cumberland County to her niece, Sylvia Smith (plaintiff). In
the same will, she also devised other real property to Fannie
McKinnon, and to her nephew, defendant.
In December 2004, Mrs. Powell’s husband passed away. After
her husband’s death, Mrs. Powell, then eighty-six-years old,
exhibited physical and mental infirmities such that she needed
daily care. As a result, she went to live with plaintiff.
Approximately one week prior to 14 February 2005, defendant,
without plaintiff’s permission, removed Mrs. Powell from
plaintiff’s home. On 14 February 2005, defendant drove Mrs.
Powell to Truet Cannady’s (Attorney Cannady) law office.
Defendant was present for at least a part of Mrs. Powell’s
meeting with Attorney Cannady, in which Mrs. Powell signed a
revocation of plaintiff’s power of attorney and instead named
defendant as her attorney in fact. She also deeded the Tonric
Drive property to defendant.
On 13 December 2011, plaintiff filed an action in
Cumberland County Superior Court to have the deed transferring -3- the Tonric Drive property to defendant set aside due to alleged
fraud, undue influence, unjust enrichment, and lack of mental
capacity. During a bench trial held on 20 May 2013 before the
Honorable C. Winston Gilchrist, defendant made an oral motion
for a directed verdict, arguing that plaintiff’s evidence was
insufficient to establish undue influence. The trial court
denied the motion and ultimately concluded that plaintiff had
proven by the greater weight of the evidence that defendant
procured the execution of the deed for the Tonric Drive property
by exercising undue influence over Mrs. Powell. As a result,
the trial court ordered that the deed for the Tonric Drive
property be set aside.
II. Analysis
a.) Findings of Fact
Defendant first argues that the trial court erred in making
findings of fact that were not supported by the evidence. We
disagree.
“In reviewing a trial judge’s findings of fact, we are
‘strictly limited to determining whether the trial judge’s
underlying findings of fact are supported by competent evidence,
in which event they are conclusively binding on appeal, and
whether those factual findings in turn support the judge’s -4- ultimate conclusions of law.’” State v. Williams, 362 N.C. 628,
632, 669 S.E.2d 290, 294 (2008) (quoting State v. Cooke, 306
N.C. 132, 134, 291 S.E.2d 618, 619 (1982)); see also Sisk v.
Transylvania Cmty. Hosp., Inc., 364 N.C. 172, 179, 695 S.E.2d
429, 434 (2010) (“‘[F]indings of fact made by the trial judge
are conclusive on appeal if supported by competent evidence,
even if . . . there is evidence to the contrary.’” (quoting
Tillman v. Commercial Credit Loans, Inc., 362 N.C. 93, 100-01,
655 S.E.2d 362, 369 (2008))).
First, defendant contends that the record does not support
a finding that Mrs. Powell “would follow [defendant’s] advice”
(finding of fact #10). At trial, however, defendant testified
that Mrs. Powell would not follow his advice “blindly,” but she
would follow his advice “[i]f she thought it was good advice[.]”
Defendant’s own statements, combined with testimony by plaintiff
that defendant and Mrs. Powell had a close relationship, clearly
support this finding.
Second, defendant argues that the record does not support a
finding that approximately one week prior to 14 February 2005,
defendant removed Mrs. Powell from plaintiff’s residence
(finding of fact #20), that Mrs. Powell began staying with
defendant as soon as she was taken from plaintiff’s home -5- (finding of fact #22), and that Mrs. Powell was staying with
defendant at the time she executed the Tonric Drive deed
(finding of fact #49). However, defendant testified that he
took Mrs. Powell from plaintiff’s home and she stayed with him
for “approximately a week” before they met with Attorney
Cannady. In another portion of defendant’s testimony, he stated
that he kept Mrs. Powell for “[m]aybe eight, ten” days before he
drove her to Attorney Cannady’s office. Moreover, plaintiff
picked Mrs. Powell up from defendant’s home a few days after 14
February 2005. Again, the evidence in the record supports the
trial court’s findings.
Third, defendant argues that the record does not support a
finding that defendant may have been present during some, but
not all, of Attorney Cannady’s meetings with Mrs. Powell
(finding of fact #23). However, Attorney Cannady’s testimony
clearly supports this finding. At trial he testified that
defendant and Mrs. Powell came to his office on 14 February
2005, that he “had some conversations with both of them,” and
that he then asked defendant to leave the room so that he could
discuss some matters with Mrs. Powell privately.
Fourth, defendant argues that the record does not support
the trial court’s finding of fact #43, which states that the -6- trial court did not find certain portions of defendant’s
testimony to be credible. As it is well within the trial
court’s discretion to weigh and determine the credibility of a
witness, the trial court did not err in finding that certain
parts defendant’s testimony were not credible. See Ingle v.
Ingle, 42 N.C. App. 365, 368, 256 S.E.2d 532, 534 (1979) (“It is
the function of the trial judge, in trials without a jury, to
weigh and determine the credibility of a witness.”); see also
Garrett v. Burris, ____ N.C. App. ____, ____, 735 S.E.2d 414,
418 (2012), aff'd per curiam, 366 N.C. 551, 742 S.E.2d 803
(2013) (“It is not the function of this Court to reweigh the
evidence on appeal.”).
Fifth, defendant argues that the trial court erred in
finding that defendant procured the execution of the deed by
removing Mrs. Powell from plaintiff’s home and taking her to
Attorney Cannady’s office to have the deed prepared and executed
(finding of fact #51). However, plaintiff and defendant’s
testimony show that: defendant knew Mrs. Powell could not read
well; defendant removed Mrs. Powell from plaintiff’s home
without any notice to plaintiff; according to defendant, it “may
very well could have been” him who set up the appointment with
Attorney Cannady; defendant drove Mrs. Powell to Attorney -7- Cannady’s office without notifying any other family members; no
one else accompanied defendant and Mrs. Powell to Attorney
Cannady’s office; defendant may have been present during part,
but not all, of Attorney Cannady’s meeting with Mrs. Powell;
defendant had known Attorney Cannady for at least eight to ten
years before the date of trial; after Attorney Cannady prepared
the deed, defendant invited him to go horseback riding; and Mrs.
Powell was staying in defendant’s home at the time the deed was
executed and was subject to defendant’s supervision immediately
before and after its execution. This evidence supports a valid
inference that defendant procured the execution of the deed.
Sixth, and lastly, defendant argues the trial court erred
in finding that credible evidence did not establish that
plaintiff misused any of Mrs. Powell’s funds (finding of fact
#40). At trial, however, plaintiff testified that all of the
funds she withdrew from Mrs. Powell’s bank accounts were used to
pay for Mrs. Powell’s taxes, utilities, and nursing care. She
also testified that she made transfers to other accounts owned
by Mrs. Powell. As with the other trial court’s findings of
fact previously discussed, this finding is also supported by
competent evidence. Accordingly, each of the challenged
findings are binding on appeal. -8- b.) Defendant’s Motion for a Directed Verdict
Next, defendant argues that the trial court erred in
denying defendant’s motion for a directed verdict because
plaintiff did not offer sufficient evidence to support a finding
of undue influence. We disagree.
“The standard of review of directed verdict is whether the
evidence, taken in the light most favorable to the non-moving
party, is sufficient as a matter of law to be submitted to the
jury.” Davis v. Dennis Lilly Co., 330 N.C. 314, 322, 411 S.E.2d
133, 138 (1991) (citing Kelly v. Int’l Harvester Co., 278 N.C.
153, 179 S.E.2d 396 (1971)).
In determining the sufficiency of the evidence to withstand a motion for a directed verdict, all of the evidence which supports the non-movant’s claim must be taken as true and considered in the light most favorable to the non-movant, giving the non-movant the benefit of every reasonable inference which may legitimately be drawn therefrom and resolving contradictions, conflicts, and inconsistencies in the non- movant’s favor.
Turner v. Duke Univ., 325 N.C. 152, 158, 381 S.E.2d 706, 710
(1989). To survive a motion for a directed verdict with respect
to the claim of undue influence, the burden of proof “is on the
[plaintiff] and he must present sufficient evidence to make out
a prima facie case in order to take the case to the jury.” -9- Seagraves v. Seagraves, 206 N.C. App. 333, 343, 698 S.E.2d 155,
164 (2010) (citation and quotation marks omitted).
“Undue influence is defined as a fraudulent influence over
the mind and will of another to the extent that the professed
action is not freely done but is in truth the act of the one who
procures the result.” In re Will of Dunn, 129 N.C. App. 321,
328, 500 S.E.2d 99, 103–04, disc. review denied, 348 N.C. 693,
511 S.E.2d 645 (1998) (citation and quotation marks omitted).
“There are four general elements of undue influence: (1) a
person who is subject to influence; (2) an opportunity to exert
influence; (3) a disposition to exert influence; and (4) a
result indicating undue influence.” Id. at 328, 500 S.E.2d at
104 (citation omitted). A finding of undue influence involves a
“heavily fact-specific inquiry.” In re Will of Jones, 362 N.C.
569, 575, 669 S.E.2d 572, 577 (2008). Our Supreme Court has
enumerated seven factors as being probative with respect to the
issue of undue influence:
1. Old age and physical and mental weakness;
2. that the person signing the paper is in the home of the beneficiary and subject to his constant association and supervision;
3. that others have little or no opportunity to see him; -10- 4. that the [deed] is different from and revokes a prior will;
5. that it is made in favor of one with whom there are no ties of blood;
6. that it disinherits the natural objects of his bounty;
7. that the beneficiary has procured its execution.
In re Will of Andrews, 299 N.C. 52, 55, 261 S.E.2d 198, 200
(1980) (citation and quotation marks omitted). However, a
litigant need not demonstrate every factor named in Andrews to
prove undue influence. In re Estate of Forrest, 66 N.C. App.
222, 225, 311 S.E.2d 341, 343, aff’d per curiam, 311 N.C. 298,
316 S.E.2d 55 (1984). Instead, there is a “need to apply and
weigh each factor in light of the differing factual setting of
each case.” In re Will of Jones, 362 N.C. at 575, 669 S.E.2d at
578. Accordingly, any evidence showing “an opportunity and
disposition to exert undue influence, the degree of
susceptibility of [the] [grantor] to undue influence, and a
result which indicates that undue influence has been exerted”
are relevant considerations. In re Will of Thompson, 248 N.C.
588, 593, 104 S.E.2d 280, 285 (1958) (citation and internal
quotation marks omitted). -11- After applying the evidence in the case at bar to the
Andrews factors (discussed below), it is clear that plaintiff
presented sufficient evidence of undue influence to survive
defendant’s motion for a directed verdict at trial.
We first note that plaintiff provided ample evidence of
Andrews factor #7, “[t]hat the beneficiary has procured [the
deed’s] execution[,]” as we have already concluded that the
trial court’s finding of fact #51 that “defendant procured the
execution of the deed” is supported by competent evidence. We
now address the remaining Andrews factors.
1. Old age and physical and mental weakness
Mrs. Powell was eighty-seven years old when she executed
the deed transferring the Tonric Drive property to defendant and
showed signs of physical and mental weakness. Plaintiff
testified that Mrs. Powell was not able to conduct her own
business, and it was well understood that Mrs. Powell could not
read well. After her husband passed away, Mrs. Powell was not
able to live by herself. She had a home health nurse who was
responsible for taking care of her. Plaintiff’s account of the
period when Mrs. Powell lived with her indicates Mrs. Powell did
not understand that her husband had passed away. Plaintiff -12- stated that Mrs. Powell frequently asked about her husband,
including where he was, and not everything she said made sense.
Additionally, Ms. McKinnon testified that when she visited
with Mrs. Powell in 2005, her mind wandered and she would “say
stuff that [is] confusing[.]” During her visits, Ms. McKinnon
explained that she would typically have to just sit and listen
to Mrs. Powell talk: “I will just go along with what she’s
saying because I know she’s not in her right mind[.]” Ms.
McKinnon further testified that when she spoke to Mrs. Powell on
the phone, Mrs. Powell sounded distant and confused, and slurred
her words. Even after Ms. McKinnon identified herself, Mrs.
Powell also had trouble remembering who Ms. McKinnon was when
the two spoke over the phone. Furthermore, plaintiff’s
testimony indicates that Mrs. Powell was without her arthritis
and nerve medications during the week prior to the execution of
the Tonric Drive deed. Mrs. Powell’s medical records also list
Alzheimer’s dementia as a secondary diagnosis on the discharge
summary from her hospital visit on 12 May 2005.
2. The grantor is in the home of the beneficiary and subject
to his constant association and supervision.
The record reveals that approximately one week prior to 14
February 2005, defendant removed Mrs. Powell from plaintiff’s -13- home without any advance notice to plaintiff. By defendant’s
own admission, Mrs. Powell stayed with him for approximately one
week prior to the day on which the deed was executed. Another
portion of defendant’s testimony indicates that Mrs. Powell
stayed with him for eight to ten days before defendant took her
to Attorney Cannady’s office. The record therefore supports an
inference that Mrs. Powell was in defendant’s home and subject
3. Others have little or no opportunity to see the grantor.
The evidence also supports the inference that during the
time period leading up to the execution of the deed, others had
little opportunity to see Mrs. Powell, and that defendant
attempted to control access to her. Plaintiff testified that
defendant told her he would return Mrs. Powell on 14 February
2005, but instead, drove Mrs. Powell to Attorney Cannady’s
office. Plaintiff also testified that she did not see Mrs.
Powell again until after 14 February 2005, when Mrs. Powell and
her sisters drove to defendant’s home to take Mrs. Powell back
to plaintiff’s house.
4. That the deed is different from and revokes a prior will
In Mrs. Powell’s last will and testament, executed in March
1998, she devised the Tonric Drive property to plaintiff. The -14- deed executed after the meeting at Attorney Cannady’s office
conveyed the same property to defendant. Thus, the deed
executed by Mrs. Powell on 14 February 2005 effectively changed
part of her prior will.
5. That it is made in favor of one with whom there are no ties
of blood
The Tonric Drive deed was made in favor of one with whom
Mrs. Powell has blood ties. Defendant is Mrs. Powell’s nephew,
and defendant was close to both Mrs. Powell and her late
husband. This factor weighs in favor of defendant’s position.
6. That it disinherits the natural objects of her bounty
To the extent the deed improved the position of defendant,
it disinherited plaintiff, Mrs. Powell’s niece—a natural object
of Mrs. Powell’s bounty. While it is true that defendant is
also a natural object of Mrs. Powell’s bounty, defendant
received other property bequeathed to other relatives in Mrs.
Powell’s will as the result of the conveyances in which he was
involved.
As plaintiff presented evidence that supports six of the
seven Andrews factors, she set forth sufficient evidence to
establish a claim of undue influence. Thus, the trial court did
not err in denying defendant’s motion for a directed verdict. -15- c.) Plaintiff’s Burden of Proof
Next, defendant argues that the trial court failed to apply
the appropriate burden of proof in analyzing evidence in the
case. Specifically, defendant maintains that based on several
specific findings of fact made by the trial court, plaintiff
necessarily failed to satisfy her burden of proof to show that
defendant procured the execution of the deed by undue influence.
We disagree.
“The standard of review on appeal from a judgment entered
after a non-jury trial is ‘whether there is competent evidence
to support the trial court’s findings of fact and whether the
findings support the conclusions of law and ensuing judgment.’”
Cartin v. Harrison, 151 N.C. App. 697, 699, 567 S.E.2d 174, 176
(quoting Sessler v. Marsh, 144 N.C. App. 623, 628, 551 S.E.2d
160, 163 (2001)), disc. review denied, 356 N.C. 434, 572 S.E.2d
428 (2002).
Defendant directs our attention to seven findings of fact
made by the trial court, most of which were also challenged by
defendant as unsupported by the evidence. He argues that
because the trial court made these specific findings, the trial
court could not have drawn the legal conclusion that defendant
exercised undue influence over Mrs. Powell. However, after -16- review of these findings discussed by defendant, we conclude
that none of them preclude the trial court from ruling that
undue influence existed as a matter of law or show a failure to
utilize the appropriate burden of proof. Instead, the trial
court’s other findings of fact reflect an analysis of the
Andrews factors in light of the applicable burden of proof, such
that the findings support the trial court’s conclusion that
defendant exercised undue influence on Mrs. Powell.
d.) Findings of Fact Not Made by the Trial Court
Finally, defendant argues that the trial court erred by
ignoring competent testimony. Specifically, defendant asserts
that the trial court did not properly consider: 1.) the
testimony of Attorney Cannady, his secretary, and Colin
Summerall because it failed to make findings of fact related to
their testimony about the reasons that Mrs. Powell might have
disinherited plaintiff by executing the Tonric Drive deed, and
2.) plaintiff’s conduct as explaining Mrs. Powell’s actions. We
In a bench trial, the trial court must “consider and weigh
all competent evidence before him[.]” Bank of N. Carolina, N.A.
v. Investors Title Ins. Co., 42 N.C. App. 616, 621, 257 S.E.2d
453, 457 (1979) (emphasis added). -17- Here, the trial court found that “[a]fter an opportunity to
hear the testimony and observe the demeanor of the witnesses,
the court finds that the testimony of [defendant] was not
credible with respect to how the signature of Ms. Powell on the
deed . . . was obtained.” This finding reasonably suggests that
the trial court considered the testimony of Attorney Cannady,
his secretary, and Summerall, in making its ultimate
determination concerning the reason that Mrs. Powell signed the
Tonric Drive deed. Moreover, the trial court found that “[t]he
credible evidence did not establish that plaintiff’s conduct was
inconsistent with her position at trial that the deed for 4524
Tonric Drive signed by Fannie Powell for the benefit of
defendant Jerry Daniels . . . was the product of the undue
influence of defendant[.]” Thus, the trial court, within its
discretion, weighed the testimony and found that defendant’s
undue influence caused Mrs. Powell’s actions, not plaintiff’s
conduct. Accordingly, defendant’s argument is without merit.
III. Conclusion
The trial court did not err with respect to any of the
issues defendant raises on appeal. The trial court’s findings
of fact are supported by competent evidence. Moreover,
plaintiff’s evidence was sufficient to support a denial of -18- defendant’s motion for a directed verdict and the trial court’s
determination that defendant procured the execution of the
Tonric Drive deed by exercising undue influence over Mrs.
Powell. Accordingly, we affirm the trial court’s order.
Affirmed.
Judges ERVIN and McCULLOUGH concur.
Report per Rule 30(e).