NO. COA13-1429
NORTH CAROLINA COURT OF APPEALS
Filed: 5 August 2014
CHARLES R. CARMICHAEL,
Petitioner,
v. Mecklenburg County
No. 09 SP 10403
DAVID LIVELY,
Respondent.
Appeal by respondent from order entered 25 July 2013 by
Judge James W. Morgan in Mecklenburg County Superior Court.
Heard in the Court of Appeals 23 April 2014.
Thurman, Wilson, Boutwell & Galvin, P.A., by James P.
Galvin and Alexander W. Warner, for respondent-appellant.
Winfred R. Ervin, Jr. for petitioner-appellee.
McCULLOUGH, Judge.
Respondent David Lively appeals from an award of summary
judgment in favor of petitioner Charles R. Carmichael. After
careful and thoughtful review, we affirm the order of the trial
court.
I. Background
The evidence in the record indicates that on 28 May 2004,
Edna Frank Ward Lively’s (“Edna Lively”) Last Will and Testament
was probated in Mecklenburg County Superior Court. Edna
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Lively’s Last Will and Testament devised her home, located at
1446 Townes Road, Charlotte, North Carolina (“Townes Road
Property”) equally to her daughter Katherine Carmichael and her
step-grandson, respondent David L. Lively, “if they survive me.”
On 4 March 2004, Edna Lively died. Both Katherine Carmichael
and respondent survived Edna Lively.
On 11 June 2004, Katherine Carmichael signed a “Notice of
Renunciation and Qualified Disclaimer” (“Renunciation”) stating
that she was “renouncing her interest in the [Townes Road
Property].” On 4 November 2004, the Renunciation was filed in
the Office of the Clerk of Mecklenburg County Superior Court.
On 24 November 2004, respondent filed an Executor Deed in
the Mecklenburg County Register of Deeds. The Executor Deed
provided that respondent was the sole beneficiary of the Townes
Road Property “because Katherine G. Carmichael executed and
filed a qualified disclaimer and renunciation[.]” It also
provided that respondent, serving as executor of the estate of
Edna Lively, “does grant, bargain, sell and release to”
respondent, in his individual capacity, the Townes Road Property
“TO HAVE AND TO HOLD all in singular, the aforesaid undivided
interest[.]”
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On 28 December 2004, Katherine Carmichael signed a “Notice
of Revocation/Rescission of Notice of Renunciation and Qualified
Disclaimer.” (“Rescission”) In the Rescission, Katherine
Carmichael stated the following:
3. The undersigned . . . has been suffering
from significant health problems for
several years that have been the subject
of medical evaluation and diagnosis. Due
to those problems, the undersigned has
for approximately the past two years been
unable to handle her affairs without
assistance. For approximately the past
two years, the undersigned has attended
to her financial affairs and other
personal matters with substantial
assistance from her husband, [petitioner]
Charles Carmichael.
4. Due to the undersigned’s medical problems
she felt unable to assume the role of
Executrix of [Edna Lively’s estate], and
for that reason renounced her right to
serve as Executrix of the Estate on April
27, 2004 and did so with [petitioner]’s
assistance.
5. In late May of 2004 [respondent],
Executor of the [Edna Lively estate] told
the undersigned that she needed to appear
at an attorney’s office to meet with him
and the Estate attorney to sign some
papers concerning this Estate. On or
about June 8, 2004, [petitioner] drove
the undersigned to the law office of
Elizabeth Blake, an attorney then
representing [respondent]. Ms. Blake at
that time did not represent the
undersigned, nor did the undersigned
consult with or retain the services of
counsel concerning the document(s)
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presented to her in Ms. Blake’s office.
6. On or about June 8, 2004 (in the law
offices of Ms. Blake) the undersigned was
presented an unsigned copy of the
[Renunciation] . . . to sign, and she did
so. The undersigned did meet in private
with Ms. Blake for some period of time
before she left Ms. Blake’s law office,
but cannot now recall what was discussed.
In fact the undersigned does remember
that she signed a document in Ms. Blake’s
office, but does not independently recall
the terms or nature of that document and
only now remembers the document signing
and some of those surrounding
circumstances after having been provided
a copy of [the Renunciation] that was
filed with the Clerk of Superior Court in
November of 2004.
7. After now reading [the Renunciation], the
undersigned now realizes (because she has
now been advised as to the nature of the
document) that the effect of that
document, if valid and subsisting, is to
divest the undersigned of any interest in
[Edna Lively’s estate]. The undersigned
does not now, nor has she ever intended
that to occur, contrary to the wishes of
[Edna Lively].
. . . .
10. The undersigned hereby confirms her
interest in the [Townes Road Property].
The Rescission was filed in the Register of Deeds on 29 December
2004.
Also on 29 December 2004, Katherine Carmichael filed a
Quitclaim Deed with the Register of Deeds (“Quitclaim Deed”),
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wherein she conveyed her interest in the Townes Road Property to
herself and petitioner as tenants by the entireties.
Subsequently, on 15 June 2006, a copy of the Renunciation
was filed in the Mecklenburg County Register of Deeds.
Katherine Carmichael died on 11 March 2009.
On 23 November 2009, petitioner filed a “Petition (To
Partition Real Property)” against respondent. The petition
alleged that petitioner and respondent each owned a one-half
undivided interest in the Townes Road Property. It also
provided the following, in pertinent part:
8. The Towne[s] Road Property is a single
residential subdivision lot upon which is
situated a detached single family
residence[.] . . . [T]he current single
family residential usage of the Towne[s]
Road Property is its highest and best
allowable use.
9. An actual partition of the Towne[s] Road
Property . . . would result in rendering
the respective interest(s) of each of the
parties in said property to be of
substantially less monetary value than
their respective monetary interests
resulting from a Partition Sale of that
property as sought by Petitioner herein;
an actual partition of the Towne[s] Road
Property cannot be made without injury to
all of the parties interested (the
Petitioner and the Respondent).
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As such, petitioner argued that it was entitled to an order of
sale of the Townes Road Property pursuant to Article II of
Chapter 46 of the North Carolina General Statutes.
On 6 January 2010, respondent filed a “Response to Petition
to Partition Real Property” denying that petitioner and
respondent owned the Townes Road Property as tenants-in-common
and asserting that respondent was the sole owner of the Townes
Road Property. Respondent argued that he was the sole owner
pursuant to the Renunciation and the Executor Deed. Respondent
requested that the court dismiss with prejudice the petition to
partition real property or, in the alternative, transfer the
matter to Mecklenburg County Superior Court.
On 20 April 2011, respondent filed a “Memorandum and
Motions to Dismiss, Motion In Limine, and/or Motion for Summary
Judgment.” Following a hearing held on 10 May 2011, the trial
court entered an order on 29 August 2011 denying respondent’s
motion to dismiss. The trial court also transferred the special
proceeding to Mecklenburg Superior Court for the determination
of the following issue:
As of the recording of Katherine
Carmichael’s [Quitclaim Deed] dated December
29 2004 (and recorded in MCPR book 18183, at
page 559) did Katherine Carmichael and
[petitioner] own a ½ undivided interest in
the real property that was the subject of
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that deed, or did the renunciation document
effectively divest Katherine Carmichael of
any interest in said real property?
On 22 July 2013, petitioner filed a motion for summary
judgment. The trial court held a hearing at the 22 July 2013
term of Mecklenburg County Superior Court, for the determination
of respondent’s motion to dismiss and cross motions for summary
judgment. On 25 July 2013 the trial court entered an order,
making the following findings of fact:
1. Edna Frank Ward Lively died testate on
March 4, 2004.
2. At the time of her death, Decedent owned
[the Townes Road Property].
3. Decedent by will signed January 22, 1992
devised her residence to [Katherine
Carmichael and respondent].
4. Katherine Carmichael signed a notice of
renunciation of her interest in said real
property by document signed June 11, 2004
which was recorded in the office of the
Clerk of Court of Mecklenburg County on
November 4, 2004.
5. Katherine Carmichael filed a rescission of
said renunciation by document filed with
the Clerk of Court on December 28, 2004
and recorded in the Register of Deeds on
December 29, 2004.
6. Katherine Carmichael executed a quitclaim
deed December 29, 2004 to [petitioner] in
said real property, said deed being
recorded December 29, 2004 in the office
of the Register of Deeds.
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7. The renunciation dated June 11, 2004 was
recorded in the office of the Register of
Deeds June 15, 2006.
8. N.C.G.S. 31B-2(c) in 2004 provided in
part, “The renunciation shall be filed
with the clerk of court of the county in
which the proceedings have been commenced.
. . .”
9. N.C.G.S. 31B-2(d) in 2004 provided in
part, “If real property or an interest
therein is renounced, a copy of the
renunciation shall also be filed for
recording in the office of the register of
deeds of all counties wherein any part of
the . . . interest renounced is situated.
. . . The renunciation of an interest, or
a part thereof, in real property shall not
be effective to renounce such interest
until a copy of the renunciation is filed
for recording in the office of the
register of deeds. . . .”
The trial court then concluded that
1. The renunciation dated June 11, 2004, and
filed with the Clerk of Court November 4,
2004 did not take effect until filed with
the Register of Deeds on June 15, 2006.
2. The rescission of renunciation executed by
Katherine Carmichael on December 28, 2004
and filed with the Clerk of Court and
Register of Deeds on December 29, 2004
rescinded and revoked the June 11, 2004
renunciation as to the real property owned
by the decedent.
Based on the foregoing, the trial court effectively granted
petitioner’s motion for summary judgment and held that as of the
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recording of Katherine Carmichael’s 29 December 2004 quitclaim
deed, Katherine Carmichael and petitioner owned a one-half
undivided interest in the Townes Road Property.
From the 25 July 2013 order, respondent appeals.
II. Standard of Review
The standard of review for an order granting summary
judgment is de novo. Bumpers v. Cmty. Bank of N. Va., 367 N.C.
81, 87, 747 S.E.2d 220, 225-26 (2013). Summary judgment is
proper if “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits . . . show that there is no genuine issue as to any
material fact and that any party is entitled to a judgment as a
matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2013). “In
ruling on a motion for summary judgment the evidence is viewed
in the light most favorable to the non-moving party.” Vulcan
Materials Co. v. Iredell Cnty., 103 N.C. App. 779, 781, 407
S.E.2d 283, 285 (1991) (citation omitted).
III. Discussion
On appeal, respondent argues that the trial court erred by
effectively granting petitioner’s motion for summary judgment.
Respondent argues that the trial court erred by: (A) failing to
enter any findings of fact regarding Katherine Carmichael’s
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capacity at the time she was signing the documents at issue; (B)
concluding that the Renunciation did not take effect until it
was filed with the Register of Deeds; (C) concluding that the
Rescission rescinded and revoked the Renunciation; and (D)
concluding that as of the recording of the Quitclaim Deed,
petitioner and Katherine Carmichael owned a one-half undivided
interest in the Townes Road Property.
A. Katherine Carmichael’s Capacity
First, respondent argues that the trial court erred by
failing to enter a finding of fact regarding Katherine
Carmichael’s capacity in 2004 to execute various relevant
documents.
“We note that ordinarily, findings of fact and conclusions
of law are not required in the determination of a motion for
summary judgment, and if these are made, they are disregarded on
appeal.” Sunamerica Financial Corp. v. Bonham, 328 N.C. 254,
261, 400 S.E.2d 435, 440 (1991). “However, such findings and
conclusions do not render a summary judgment void or voidable
and may be helpful, if the facts are not at issue and support
the judgment.” Vulcan Materials Co., 103 N.C. App. at 781, 407
S.E.2d at 285 (citation omitted).
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In the case sub judice, the trial court entered nine
findings of fact and two conclusions of law. Although the trial
court did not enter any findings of fact regarding Katherine
Carmichael’s capacity to execute documents in 2004, we do not
believe that the trial court was required to do so because this
issue was not properly before the court. The only issue before
the trial court at the summary judgment hearing was whether as
of the recording of the Quitclaim Deed on 29 December 2004,
Katherine Carmichael and petitioner owned a one-half undivided
interest in the Townes Road Property or whether the Renunciation
effectively divested Katherine Carmichael of any interest in the
Townes Road Property.
At the beginning of the summary judgment hearing,
respondent’s counsel conceded that “[t]he only issue is whether
or not the Petitioner owns an interest in the real estate,
Judge. They have raised [the capacity] issue in the past; that
has been addressed, but it’s not before – [the capacity issue
is] not properly before the Court.” See Byrd v. Hancock, 86
N.C. App. 564, 568, 358 S.E.2d 557, 559 (1987) (where the
defendant’s “forecast of proof [at the summary judgment hearing]
did not call into question” the defendant’s argument on appeal,
the “plaintiff was not obliged to make any showing whatever with
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respect to these matters” and the argument was irrelevant to the
issues raised at the hearing). Furthermore, respondent’s motion
for summary judgment, as well as respondent’s response to the
petition for partition, fails to raise the issue of Katherine
Carmichael’s lack of capacity. See N.C. R. App. P. 10(a)(1)
(2014) (stating that “[i]n order to preserve an issue for
appellate review, a party must have presented to the trial court
a timely request, objection, or motion, stating the specific
grounds for the ruling the party desired the court to make if
the specific grounds were not apparent from the context”).
Based on the foregoing reasons, we reject respondent’s argument
that the trial court erred by failing to make a finding about
Katherine Carmichael’s capacity.
B. The Renunciation
In his next argument, respondent asserts that the trial
court erred by making the following conclusion:
1. The renunciation dated June 11, 2004, and
filed with the Clerk of Court November 4,
2004 did not take effect until filed with
the Register of Deeds on June 15, 2006.
As previously stated, we re-emphasize that the trial court was
not required to enter any conclusions of law in its summary
judgment order and generally, they are disregarded on appeal.
See Sunamerica Financial Corp., 328 N.C. at 261, 400 S.E.2d at
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440. However, we find that the challenged conclusion of law
sheds light on our review of the trial court’s reasoning to
render summary judgment for petitioner.
Specifically, respondent argues that the statutory method
of renunciation outlined in Chapter 31B of the North Carolina
General Statutes is not an exclusive method of accomplishing a
renunciation. Respondent also contends that in light of the
“very specific timing requirements for a renunciation filing
under § 31B-2(a)1 and § 31B-2(b)2, . . . it would appear that the
General Assembly did not intend for there to be a similar
requirement” applicable to N.C. Gen. Stat. § 31B-2(d) (2004).
1
N.C. Gen. Stat. § 31B-2(a) (2004) provided that “[t]o be a
qualified disclaimer for federal and State inheritance, estate,
and gift tax purposes, an instrument renouncing a present
interest shall be filed within the time period required under
the applicable federal statute for a renunciation to be given
effect as a disclaimer for federal estate and gift tax purposes.
If there is no such federal statute the instrument shall be
filed not later than nine months after the date the transfer of
the renounced interest to the renouncer was complete for the
purpose of such taxes.” N.C.G.S. § 31B-2(a) (2004) (emphasis
added).
2
N.C. Gen. Stat. § 31B-2(b) (2004) provided that “[a]n instrument
renouncing a future interest shall be filed not later than six
months after the event by which the taker of the property or
interest is finally ascertained and his interest indefeasibly
vested and he is entitled to possession even though such
renunciation may not be recognized as a disclaimer for federal
estate tax purposes.” N.C.G.S. § 31B-2(b) (2004) (emphasis
added).
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“[W]hen construing statutes, this Court first determines
whether the statutory language is clear and unambiguous. If the
statute is clear and unambiguous, we will apply the plain
meaning of the words, with no need to resort to judicial
construction.” In re Estate of Mangum, 212 N.C. App. 211, 213,
713 S.E.2d 18, 20 (2011) (citation omitted). “However, when the
language of a statute is ambiguous, this Court will determine
the purpose of the statute and the intent of the legislature in
its enactment.” Wiggs v. Edgecombe Cnty., 361 N.C. 318, 322,
643 S.E.2d 904, 907 (2007) (citation omitted).
Chapter 31B of the North Carolina General Statutes is
entitled “Renunciation of Property and Renunciation of Fiduciary
Powers Act.” Section 31B-2 (2004), in effect at the time the
Renunciation was executed, was entitled, “Time and place of
filing renunciation.” The 25 July 2013 order directed our
attention to N.C. Gen. Stat. § 31B-2, subsections (c) and (d),
in its findings of fact. Subsection (c) of section 31B-2 stated
that “[t]he renunciation shall be filed with the clerk of court
of the county in which proceedings have been commenced for the
administration of the estate of the deceased owner[.]” N.C.G.S.
§ 31B-2(c) (2004). Subsection (d) of section 31B-2 provided, as
follows:
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(d) If real property or an interest therein
is renounced, a copy of the renunciation
shall also be filed for recording in the
office of the register of deeds of all
counties wherein any part of the interest
renounced is situated. . . . The
renunciation of an interest, or a part
thereof, in real property shall not be
effective to renounce such interest until a
copy of the renunciation is filed for
recording in the office of the register of
deeds in the county wherein such interest or
part thereof is situated.
N.C. Gen. Stat. § 31B-2(d) (2004) (emphasis added).
An examination of N.C. Gen. Stat. § 31B-2(d) reveals that
the language used by the General Assembly is clear and
unambiguous. The mandatory language of subsection 31B-2(d)
demonstrates that the legislature intended that a renunciation
of an interest in real property shall not be effective until a
copy of the renunciation is filed in the office of the register
of deeds in the county where such interest in situated. “As
used in statutes, the word ‘shall’ is generally imperative or
mandatory.” State v. Johnson, 298 N.C. 355, 361, 259 S.E.2d 752,
757 (1979) (citation omitted).
Giving effect to the plain meaning of the words used, we
are compelled to agree with the trial court that although the
Renunciation was dated 11 June 2004 and filed with the Clerk of
Clerk on 4 November 2004, it was not effective to renounce
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Katherine Carmichael’s interest in the Townes Road Property
until a copy of the Renunciation was filed in the Register of
Deeds. Because a copy of the Renunciation was not filed with
the Mecklenburg County Register of Deeds until 15 June 2006, an
undisputed fact, the language used in subsection 31B-2(d)
mandates that the Renunciation would not have taken effect until
15 June 2006. Accordingly, we hold that the trial court did not
err by making this conclusion and find respondent’s arguments
unpersuasive.
C. The Rescission
Next, respondent argues that the trial court erred by
concluding the following:
2. The rescission of renunciation executed by
Katherine Carmichael on December 28, 2004
and filed with the Clerk of Court and
Register of Deeds on December 29, 2004
rescinded and revoked the June 11, 2004
renunciation as to the real property owned
by the decedent.
Respondent first argues that the Rescission was ineffective
because the Renunciation was irrevocable based on the following
language contained within the Renunciation: “WHEREFORE, the
undersigned does hereby completely, irrevocably and without
qualification renounce and disclaim his rights in the [Townes
Road Property[.]” Respondent then asserts that the Executor
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Deed effectively transferred the Townes Road Property to
respondent, making him the sole owner, prior to the filing of
the Quitclaim Deed.
It is important to note that the merit of both of
respondent’s arguments rests on the assumption that the
Renunciation was in effect prior to the 24 November 2004
Executor Deed and the 29 December 2004 Rescission. Because we
have previously held that the Renunciation would not have been
effective in renouncing Katherine Carmichael’s interest in the
Townes Road Property until it was filed in the Register of Deeds
on 15 June 2006, respondent’s arguments necessarily fail.
D. Quitclaim Deed
In his last argument, respondent contends that the trial
court erred by concluding that as of the date of the Quitclaim
Deed, Katherine Carmichael and petitioner owned a one-half
undivided interest in the Townes Road Property.
The record establishes that the Quitclaim Deed, filed in
the Mecklenburg County Register of Deeds on 29 December 2004,
conveyed Katherine Carmichael’s one-half undivided interest
devised to her by Edna Lively’s Last Will and Testament in the
Townes Road Property, to Katherine Carmichael and petitioner as
tenants by the entireties. Because a copy of the Renunciation
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was not filed with the Register of Deeds until 15 June 2006,
subsequent to the filing of the Quitclaim Deed, it had no effect
on the interests of petitioner and Katherine Carmichael in the
Townes Road Property. Therefore, we reject respondent’s
argument that the trial court erred by reaching this conclusion
and entering summary judgment in favor of petitioner.
IV. Conclusion
For the reasons discussed above, we affirm the 25 July 2013
order of the trial court, granting summary judgment in favor of
petitioner.
Affirmed.
Judges ELMORE and DAVIS concur.