Exum v. Exum

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-704

NORTH CAROLINA COURT OF APPEALS

Filed: 1 April 2014

OUIDA JANE EXUM,

Plaintiff

Wake County

v.

No. 11 CVS 3353

GEORGE C. EXUM, JR. and

ANNETTE HENRIETTA EXUM,

Defendants

Appeal by defendants from an order entered 22 October 2012

by Judge Lucy Inman in Wake County Superior Court. Heard in the

Court of Appeals 7 November 2013.

Emanuel & Dunn, PLLC, by Stephen A. Dunn, for Plaintiff.

Everett Gaskins Hancock LLP, by E.D. Gaskins, Jr., and

Stevens Martin Vaughn & Tadych, PLLC, by Michael J. Tadych,

for Defendants.

ERVIN, Judge.

Defendants George C. Exum, Jr., and Annette Henrietta Exum

appeal from an order entered by the trial court reflecting a

decision to grant a motion for a new trial filed by Plaintiff

Ouida Jane Exum and construing a will executed by George C.

Exum, Sr., in a manner consistent with the contentions advanced

by Plaintiff and contrary to the construction adopted in the

trial court’s initial decision, which construed the will in a

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manner consistent with the contentions advanced by Defendants.

On appeal, Defendants contend that the trial court correctly

interpreted the will in its initial decision, that the competent

evidence admitted during the second trial supported the trial

court’s initial decision, and that the trial court abused its

discretion by granting Plaintiff’s motion for a new trial.

After careful consideration of Defendants’ challenges to the

trial court’s order in light of the record and the applicable

law, we conclude that the trial court did not abuse its

discretion in the course of granting Plaintiff’s motion for a

new trial and that the remainder of Defendants’ challenges to

the trial court’s order should be dismissed on the grounds that

those arguments result from an effort to seek appellate review

of an unappealable interlocutory order.

I. Factual Background

A. Substantive Facts

On or about 24 September 2010, Mr. Exum, Sr. died leaving

three living children: Plaintiff; George C. Exum, Jr.; and

Annette Henrietta Exum. The disposition of Mr. Exum, Sr.’s,

estate was governed by a will that was executed on or about 6

October 2009, admitted to probate on or about 12 October 2010,

and of unquestioned validity. The portions of the will relevant

to the matter in dispute in this case provide that:

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B. Gift of Residuary Estate. I give

my residuary estate, being all my real and

personal property, wherever located, not

otherwise effectively disposed of, to my

descendants as follows:

a. To my daughter Annette

Henrietta Exum, she is to receive:

1. A fifty percent share (1/2)

of the property/building known as 808

Rock [Quarry] Road, Raleigh, NC

27610[.]

2. A one thirds (1/3) share of

the property known as 814 Rock Quarry

Road, Raleigh, NC 27610.

3. A one thirds (1/3) share of

property known as 517 S. Person Street,

Raleigh, NC 27601.

b. To my Daughter Ouida Jane

Exum, I would like her to receive:

1. The property known as 810

Rock Quarry Road, Raleigh, NC 27610.

2. A one thirds (1/3) share of

the property known as 814 Rock [Quarry]

Road, Raleigh, NC 27610.

3. A one thirds (1/3) share of

property known as 517 S. Person Street,

Raleigh, NC 27601.

c. To My son George Clifton

Exum, Jr, he is to receive[:]

1. A fifty percent share (1/2)

of the property/building known as 808

Rock [Quarry] Road, Raleigh, NC

27610[.]

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2. A one thirds (1/3) share of

the property known as 814 Rock [Quarry]

Road, Raleigh, NC 27610.

3. A one thirds (1/3) share of

property known as 517 S. Person Street,

Raleigh, NC 27601.

In the years between 1973 and 2004, Mr. Exum, Sr.,

constructed two commercial buildings on the Rock Quarry Road

property, one of which was designated 808 Rock Quarry Road and

the other of which was designated 810 Rock Quarry Road.

According to the property tax records maintained by Wake County,

the two structures and the surrounding 4.29 acres of land

currently have a street address of 814 Rock Quarry Road. In

addition, Mr. Exum, Sr., owned a 40 foot wide vacant strip of

land that was located on Rock Quarry Road. From 2001 through

2007 and in 2010, this vacant strip of land was identified in

the Wake County tax records as having a street address of 810

Rock Quarry Road; from 2008 to 2009, the vacant tract was

identified as having a street address of 808 Rock Quarry Road;

and from 2011 to the present, the 40 foot strip of property was

identified as having a street address of 732 Rock Quarry Road.

The dispute between the parties in this case stems from

conflicting interpretations of the devise of “the property known

as 810 Rock Quarry Road” that Mr. Exum, Sr., made to Plaintiff.

On the one hand, Defendants assert that the property referenced

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in this provision of the will was the vacant lot. On the other

hand, Plaintiff contends that the reference in question was to

the building designated “810 Rock Quarry Road” and the

surrounding land.

B. Procedural History

On 1 March 2011, Plaintiff filed a complaint seeking, among

other things, a declaration identifying the real property

ownership rights stemming from the devises contained in the will

executed by Mr. Exum, Sr. On 12 May 2011 and 6 June 2011,

respectively, Mr. Exum, Jr., and Annette Henrietta Exum filed

responsive pleadings denying the material allegations set out in

the complaint and asserting counterclaims requesting, among

other things, that the will be construed in accordance with

their contentions.

On 8 May 2012, Plaintiff filed a motion seeking the entry

of summary judgment in her favor with respect to certain claims

and defenses asserted in the responsive pleadings filed by

Defendants. On 12 June 2012, Plaintiff filed a motion seeking

summary judgment in her favor with respect to all claims. On 13

July 2012, the trial court entered an order granting summary

judgment with respect to certain of the claims and defenses

asserted in Plaintiff’s complaint and the responsive pleading

filed by Defendant Annette Henrietta Exum. On 3 August 2012,

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Defendants filed a motion seeking the entry of an order

clarifying and correcting the 13 July 2012 order. On 15 August

2012, Defendants filed an amended motion seeking correction and

clarification of the 13 July 2012 order. On 20 August 2012, the

trial court entered an amended order granting summary judgment

with respect to a number of claims and defenses asserted in

Plaintiff’s complaint and the responsive pleading filed by

Defendant Annette Henrietta Exum. As a result, the only

remaining matter at issue between the parties stemmed from the

parties’ dispute over the meaning of Mr. Exum, Sr.’s, decision

to devise “the property known as 810 Rock Quarry Road” to

Plaintiff.

After the parties waived their right to a trial by jury,

this case came on for hearing before the trial court at the 10

September 2012 term of the Wake County Superior Court. In

advance of trial, Plaintiff had obtained the service of

subpoenas upon Andrew LeLiever, the attorney who had drafted Mr.

Exum, Sr.’s, will, and Wayne Brewer, an employee of the Wake

County Tax Department. However, neither Plaintiff nor

Defendants presented any live testimony before the trial court.

As a result, the evidentiary record developed before the trial

court consisted exclusively of certain stipulations into which

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the parties entered and various exhibits proffered for the trial

court’s consideration.

At the conclusion of the trial, the trial court announced a

ruling that adopted Defendants’ construction of the devise

relating to “the property known as 810 Rock Quarry Road” and

instructed Defendants’ counsel to draft a written order for its

consideration, which draft order was to be shared with

Plaintiff’s counsel prior to being transmitted to the trial

court. The trial court reached this decision based, in large

part, upon the contents of the relevant tax records and the

absence of any reference to a “building” in the devise in

question.

Prior to the entry of a written judgment incorporating the

decision that the trial court had announced from the bench,

Plaintiff filed a motion seeking the entry of an order awarding

a new trial or, in the alternative, for the entry of an order

“open[ing] the judgment if one has been entered, tak[ing]

additional testimony, amend[ing] findings of fact and

conclusions of law or mak[ing] new findings and conclusions, and

direct[ing] the entry of a new judgment.” On 5 October 2012,

Defendants filed a response in which they urged the trial court

to deny Plaintiff’s motion.

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In the course of a hearing held on 8 October 2012, the

trial court orally granted Plaintiff’s motion for a new trial

and, over Defendants’ objection, reopened the matter for the

taking of additional evidence. At the ensuing evidentiary

hearing, the trial court heard testimony from Mr. LeLiever, who

stated that, during his meetings with Mr. Exum, Sr., Mr. Exum,

Sr., had referred to “810 Rock Quarry Road” as the building in

which a convenience store at which Plaintiff worked and at which

a sign indicating that the building had a street address of “810

Rock Quarry Road” was located. According to Mr. LeLiever, Mr.

Exum, Sr., referred in his will to the “property/building known

as 808 Rock Quarry Road” in order to reflect that only the

property covered by the building situated at that location was

being devised and that the reference to “the property known as

810 Rock Quarry Road” was intended to be a more “substantial”

devise that encompassed both a building and the surrounding

land.

On 22 October 2012, the trial court entered an order that

reversed its earlier bench ruling by construing the disputed

devise in favor of Plaintiff. However, the trial court

specifically stated that, “[b]ecause issues related to the

devised property remain open,” “the Court does not at this time

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enter Judgment.” Defendants noted an appeal to this Court from

the trial court’s order.1

II. Substantive Legal Analysis

A. Appealability

As an initial matter, we must address Plaintiff’s argument

that this Court lacks jurisdiction to hear Defendants’ appeal on

the grounds that Defendants have attempted to appeal from an

unappealable interlocutory order. In the course of analyzing

the validity of the dispute between the parties concerning this

issue, we are constrained to keep in mind that Defendants are,

in actuality, attempting to challenge two different decisions by

the trial court, the first of which is the trial court’s

decision to award a new trial and the second of which is the

trial court’s decision to decide the substantive matters at

issue between the parties in favor of Plaintiff.

“Judicial judgments, orders and decrees are either

‘interlocutory or the final determination of the rights of the

parties.’” Bailey v. Gooding, 301 N.C. 205, 208, 270 S.E.2d

1

On 26 February 2014, Defendants filed a motion to amend the

record on appeal by including a “Motion to Dismiss,

Counterclaim, and Crossclaim” filed by Mr. LeLiever in a

separate legal malpractice action that had been filed against

him by Plaintiff. As a result of the fact that this document

does not appear to have ever been presented to the trial court

for its consideration and has no bearing on the result that we

have reached in this opinion, we conclude that this motion

should be, and hereby is, denied.

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431, 433 (1980) (citing N.C. Gen. Stat. § 1A–1, Rule 54(a)). “A

final judgment is one which disposes of the cause as to all the

parties, leaving nothing to be judicially determined between

them in the trial court,” while “[a]n interlocutory order is one

made during the pendency of an action, which does not dispose of

the case, but leaves it for further action by the trial court in

order to settle and determine the entire controversy.” Veazey

v. City of Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381

(1950) (citations omitted). As both parties acknowledge, the

order at issue in this case is not a final judgment given its

recitation that “the Court does not at this time enter Judgment”

and given that several issues related to the devised property

remain open. As a result, since “further action by the trial

court is necessary to settle and determine the entire

controversy between the parties,” Banner v. Hatcher, 124 N.C.

App. 439, 441, 477 S.E.2d 249, 250 (1996) (quoting First

American Savings & Loan Assoc. v. Satterfield, 87 N.C. App. 160,

162, 359 S.E.2d 812, 813 (1987)), Defendants’ appeal has been

taken from an interlocutory order.

“Generally, there is no right of immediate appeal from

interlocutory orders and judgments.” Goldston v. Am. Motors

Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). The well-

established rule sharply curtailing the ability of disappointed

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litigants from seeking and obtaining appellate review of

interlocutory orders is intended “to prevent fragmentary and

premature appeals that unnecessarily delay the administration of

justice and to ensure that the trial divisions fully and finally

dispose of the case before an appeal can be heard.” Bailey, 301

N.C. at 209, 270 S.E.2d at 434 (citing Waters v. Qualified

Personnel, Inc., 294 N.C. 200, 207, 240 S.E.2d 338, 343 (1978),

and City of Raleigh v. Edwards, 234 N.C. 528, 529, 67 S.E.2d

669, 671 (1951)). An interlocutory order is, however, subject

to an immediate appeal in two instances. First, a trial court

may, pursuant to N.C. Gen. Stat. § 1A–1, Rule 54(b), upon

entering an order that finally disposes of an entire claim or

all the claims asserted by one or more parties to an action,

certify that there is no just reason for delay in commencing the

appellate process. Dep’t of Transp. v. Rowe, 351 N.C. 172, 174-

75, 521 S.E.2d 707, 709 (1999). In addition, “an interlocutory

order not appealable under [N.C. Gen. Stat. § 1A–1,] Rule 54(b)

may nevertheless be appealed pursuant to [N.C. Gen. Stat.] § 1-

277 and [N.C. Gen. Stat.] § 7A-27[(b)(3),] which permit an

appeal of an interlocutory order which (1) affects a substantial

right, or (2) in effect determines the action and prevents a

judgment from which appeal might be taken, or (3) discontinues

the action, or (4) grants or refuses a new trial.” Dalton Moran

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Shook Inc. v. Pitt Dev. Co., 113 N.C. App. 707, 710, 440 S.E.2d

585, 588 (1994). As a result of the fact that the trial court

did not certify the order that Defendants seek to challenge on

appeal for immediate review pursuant to N.C. Gen. Stat. § 1A–1,

Rule 54(b), and could not have properly done so given that the

challenged order did not represent a final judgment as to either

a claim or a party, we lack the authority to reach the merits of

Defendants’ challenges to the trial court’s order unless the

challenged order falls within one of the exceptions of N.C. Gen.

Stat. § 1-277 and N.C. Gen. Stat. § 7A-27(b)(3).

In their brief, Defendants contend that they are entitled

to an immediate appeal from the trial court’s order pursuant to

N.C. Gen. Stat. § 1-277 and N.C. Gen. Stat. § 7A-27(b)(3) on the

grounds that the challenged order grants a new trial and affects

a substantial right. We will address each of these contentions

in turn.

1. Substantial Right

The extent to which an interlocutory appeal affects a

substantial right must be determined on a case-by-case basis.

Embler v. Embler, 143 N.C. App. 162, 166, 545 S.E.2d 259, 262

(2001). A substantial right is “one which will clearly be lost

or irremediably adversely affected if the order is not

reviewable before final judgment.” Blackwelder v. Dept. of

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Human Resources, 60 N.C. App. 331, 335, 299 S.E.2d 777, 780

(1983). “[T]he appellant has the burden of showing this Court

that the order deprives the appellant of a substantial right

which would be jeopardized absent a review prior to a final

determination on the merits.” Jeffreys v. Raleigh Oaks Joint

Venture, 115 N.C. App. 377, 380, 444 S.E.2d 252, 254 (1994). As

a general proposition, this Court has taken a restrictive view

of the substantial right exception. Embler, 143 N.C. App. at

166, 545 S.E.2d at 262 (quoting Blackwelder, 60 N.C. App. at

334, 299 S.E.2d at 780).

According to Defendants, the order that they wish to

challenge on appeal affects a substantial right because, in the

absence of immediate review, they would lose the ability to

prevent Plaintiff from disposing of or encumbering the property

that is in dispute between the parties. However, this Court has

previously held that the existence of a risk that a tract or

items of property may be sold or encumbered does not suffice to

support an interlocutory appeal on “substantial right” grounds.

Brown v. Brown, 77 N.C. App. 206, 208, 334 S.E.2d 506, 508

(1985) (stating that, with regards to property, the chance of

waste or encumbrance “is not enough to establish the loss of a

substantial right,” and that, in order to establish the

existence of a substantial right, a “definite loss” must be

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established), disc review denied, 315 N.C. 389, 338 S.E.2d 878

(1986). As a result, we conclude that Defendants have failed to

establish that a substantial right will be lost in the absence

of immediate appellate review of the trial court’s interlocutory

order, a determination that requires us to dismiss that portion

of Defendants’ appeal which seeks immediate review of the trial

court’s determination with respect to the proper construction of

the relevant provision of Mr. Exum, Sr.’s, will.

2. Appeal from Grant of New Trial

In support of their request for immediate review of the

trial court’s decision to grant Plaintiff’s new trial motion,

Defendants point to the language in N.C. Gen. Stat. § 1-277 and

N.C. Gen. Stat. § 7A-27(b)(3) allowing an immediate appeal from

the entry of an order allowing or denying a motion for a new

trial. As a result of the fact that neither party addressed

this aspect of Plaintiff’s appealability argument in any detail

and the fact that the relevant statutory language has not been

definitively construed in many years, we will assume, without in

any way deciding, that Defendants’ challenge to the trial

court’s decision to grant Plaintiff’s motion for a new trial is

immediately appealable and address it on the merits.2

2

An examination of the decisions of this Court and the

Supreme Court reveals the existence of a line of decisions from

the 19th century that suggest that an interlocutory appeal from

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B. Order Granting New Trial

“[A]n appellate court’s review of a trial judge’s

discretionary ruling either granting or denying a motion to set

aside a verdict and order a new trial is strictly limited to the

determination of whether the record affirmatively demonstrates a

manifest abuse of discretion by the judge.” Worthington v.

Bynum, 305 N.C. 478, 482, 290 S.E.2d 599, 602 (1982). “[I]t is

plain that a trial judge’s discretionary order pursuant to [N.C.

Gen. Stat. §] 1A-1, Rule 59 for or against a new trial upon any

ground may be reversed on appeal only in those exceptional cases

where an abuse of discretion is clearly shown.” Id. at 484, 290

an order granting a party’s motion for a new trial predicated on

discretionary rather than strictly legal grounds does not come

within the reach of the statutory language upon which Plaintiff

relies. See Braid v. Lukins, 95 N.C. 123, 125 (1886) (stating

that “[n]o appeal lies when the new trial is granted or refused

in the discretion of the Court”); Thomas v. Myers, 87 N.C. 31,

33 (1882) (stating that “the granting or refusing a motion for a

new trial, not involving the determination of a question of law

. . . is not subject to review on appeal.”) However, these

cases antedate the statutory provisions that resulted in the

creation of the General Court of Justice and have not been cited

in nearly a century, so their current validity may be subject to

question. In addition, a number of more recent decisions hold

that the relevant language in N.C. Gen. Stat. § 1-277 and N.C.

Gen. Stat. § 7A-27 does not apply to an order granting a

partial, rather than a complete, new trial. E.g. Burgess v.

Vestal, 99 N.C. App. 545, 548, 393 S.E.2d 324, 326 (1990).

Although the trial court had previously addressed and resolved

other claims, the unusual procedural posture present here makes

us reluctant to rely on these decisions as a basis for

concluding that Defendants’ challenge to the trial court’s order

is not immediately appealable on the basis of these decisions

either.

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S.E.2d at 603. An abuse of discretion has occurred in the event

that a trial court’s discretionary decision is “manifestly

unsupported by reason;” for that reason, such a discretionary

decision will not be overturned absent “a showing that it was so

arbitrary that it could not have been the result of a reasoned

decision.” White v. White, 312 N.C. 770, 777, 324 S.E.2d 829,

833 (1985). As a result, we are not entitled to disturb the

trial court’s discretionary ruling granting Plaintiff’s motion

for new trial unless the record affirmatively demonstrates that

the decision is “manifestly unsupported by reason.” Id.

According to Defendants, the trial court abused its

discretion by granting Plaintiff’s motion for new trial because

the record establishes the complete absence of any legal or

factual grounds for granting the requested new trial other than

Plaintiff’s decision to refrain from calling live witnesses to

testify at the first trial. However, as we read the record,

Plaintiff’s request for a new trial appears to have rested upon

the availability of evidence in the form of information from Mr.

LeLiever concerning the validity of the trial court’s grounds

for ruling in Defendants’ favor at the conclusion of the first

trial. As a result of the fact that the parties could not have

known the basis for the trial court’s initial decision until the

time that it was announced, the importance of the information

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that Mr. LeLiever possessed would not have been fully apparent

until that time. In addition, the record establishes that the

trial court reviewed Plaintiff’s motion for new trial and

Defendants’ response to that motion, heard arguments from

counsel for both parties, and received written memoranda before

determining, in its discretion, that Plaintiff’s motion should

be granted and the evidentiary record reopened. Although

nothing in N.C. Gen. Stat. § 1A-1, Rule 59, requires a trial

judge to delineate the grounds upon which he or she decided to

grant a requested new trial in its order, Philco Finance Corp.

v. Mitchell, 26 N.C. App. 264, 267, 215 S.E.2d 823, 824-25

(1975), the trial court stated in granting Plaintiff’s motion

for a new trial that, given “the fundamental nature of some of

the evidence that has been forecast in Mr. LeLiever’s second

affidavit . . . particularly in light of the paucity of any

evidence about how Mr. Exum[, Sr.] referred to his property,” “I

believe that it would have been manifestly unjust for The Court

not to hear additional proffered evidence.” As a result, we are

unable to conclude based upon our review of the record that the

trial court’s decision to grant Plaintiff’s request for a new

trial was “so arbitrary that it could not have been the result

of a reasoned decision.” White, 312 N.C. at 777, 324 S.E.2d at

833.

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III. Conclusion

Thus, for the reasons set forth above, we conclude that the

trial court did not abuse its discretion by granting Plaintiff’s

motion for a new trial and that Defendants’ challenges to the

substance of the trial court’s order are not properly before us.

As a result, the trial court’s decision to grant Plaintiff’s

motion for a new trial should be, and hereby is, affirmed, and

Defendants’ appeal from that portion of the trial court’s order

that addressed the manner in which Mr. Exum, Sr.’s, will should

be construed should be, and hereby is, dismissed.

DISMISSED IN PART; AFFIRMED IN PART.

Judges GEER and STEPHENS concur.

Report per Rule 30(e).