IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-139
Filed: 15 September 2015
Burke County, No. 13 CVS 1299
JAMES GEORGE BRITTIAN, by and through Executrix of the Estate Deborah
Hildebran, Plaintiff,
v.
MICHAEL TODD BRITTIAN, JAMES KEVIN BRITTIAN, BRETT TYLER
BRITTIAN and CHANTÉ FARE BRITTIAN, Defendants.
Appeal by Plaintiff from order entered 22 September 2014 by Judge Robert T.
Sumner in Burke County Superior Court. Heard in the Court of Appeals 12 August
2015.
Patrick, Harper & Dixon, LLP, by Thomas Filopoulos and David W. Hood, for
the Plaintiff-Appellant.
LeCroy Law Firm, PLLC, by M. Alan LeCroy, for the Defendant-Appellant,
Chanté Fare Brittian.
DILLON, Judge.
Deborah Brittian Hildebran (“Plaintiff”), on behalf of the Estate of James
George Hildebran (the “Estate”), appeals from an order dismissing her action for a
declaratory judgment and denying her motion for summary judgment. For the
following reasons, we reverse that portion of the order dismissing her declaratory
judgment action and vacate that portion of the order denying her motion for summary
judgment.
BRITTIAN V. BRITTIAN
Opinion of the Court
I. Background
This proceeding is a declaratory judgment action filed in superior court
concerning the rights of the parties under a will (the “Will”) executed by James
George Brittian (“Testator”), now deceased – a will that has been accepted for probate
in a separate proceeding before the clerk.
Prior to Testator’s death, he executed the Will, naming his daughter (Plaintiff)
as executrix, and gave the Will to her for safekeeping. The Will left the property in
his estate to various beneficiaries. The Will contained a number of markings, one of
which struck through the name of Testator’s granddaughter, Chanté Fare Brittian
(the “Granddaughter”).
The Will was probated in common form before the clerk and letters
testamentary were issued appointing Plaintiff as executrix. However, an assistant
clerk in the Estates Division wrote a letter to Plaintiff to inform her that personnel
in the Estates Division had been able “to read the blacked out sections on the original
version [of the Will] and ha[d] typed up the sections from the original Will,” and that
“any modification by strike-outs, additions to and/or interlineations [were] not valid
for purposes of probate,” essentially taking the position that the apparent partial
revocation of the Will disinheriting the Granddaughter was ineffective. Attached to
this letter was a document typed up by personnel in the clerk’s office which
reproduced the language in the Will which had been marked through.
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Opinion of the Court
Plaintiff responded by letter through counsel, stating her position that the
partial revocation was effective. However, in response to Plaintiff’s letter, the
assistant clerk wrote to Plaintiff advising her that it was in her best interest to file
an action for a declaratory judgment, stating that “[a] ruling on this issue from a
Superior Court Judge would clarify the matter.”
Thereafter, Plaintiff instituted the present action for a declaratory judgment.
The Granddaughter answered, moving to dismiss the action pursuant to Rule 12(b)(6)
of our Rules of Civil Procedure for failure to state a claim upon which relief can be
granted, or, in the alternative, asserting that the partial revocation of the Will was
ineffective.
Plaintiff then moved for summary judgment. The Granddaughter responded
to Plaintiff’s summary judgment motion, asserting, inter alia, that Plaintiff was
objecting to a duly admitted will in probate and that, therefore, Plaintiff was required
to file a caveat in the probate proceeding before the clerk rather than through a
declaratory judgment action in superior court.
After a hearing on the matter, the superior court entered an order granting the
Granddaughter’s Rule 12(b)(6) motion, and further denying Plaintiff’s motion for
summary judgment. Plaintiff entered timely notice of appeal.
II. Analysis
A. Granddaughter’s Rule 12(b)(6) Motion
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Opinion of the Court
Plaintiff first argues that the trial court erred in granting the Granddaughter’s
Rule 12(b)(6) motion to dismiss. Specifically, Plaintiff contends that where the
construction – rather than the validity – of a will is contested, the appropriate
procedure for obtaining a declaration of the rights of the parties under that will is an
action for a declaratory judgment, not a caveat proceeding. We agree.
Our Supreme Court has held that the construction of a will presents “a proper
justiciable question . . . under the provisions of the North Carolina Declaratory
Judgment Act.” Johnson v. Wagner, 219 N.C. 235, 238, 13 S.E.2d 419, 421 (1941).
That Act, as codified in relevant part in N.C. Gen. Stat. § 1-254, provides that “[a]ny
person interested under a . . . will . . . may have determined any question of
construction . . . arising under the instrument . . . and obtain a declaration of rights,
status, or other legal relations thereunder.” N.C. Gen. Stat. § 1-254 (2014). Thus,
any interested party under a will may bring an action for a declaratory judgment, see
Taylor v. Taylor, 301 N.C. 357, 364, 271 S.E.2d 506, 511 (1980), including the executor
of the estate, see First Sec. Trust Co. v. Henderson, 226 N.C. 649, 651, 39 S.E.2d 804,
805 (1946).
By contrast, a caveat proceeding is the method by which a writing offered for
probate and purporting to be a will is challenged. Rogel v. Johnson, 114 N.C. App.
239, 241, 441 S.E.2d 558, 560 (1994). As our Supreme Court has explained,
[w]hen a paper writing purporting to be a will is presented
to the Judge of Probate he takes proof with respect to its
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Opinion of the Court
execution. If found in order the script is admitted to
probate in common form as a will. . . . It stands as the
testator’s will, and his only will, until challenged and
reversed in a proper proceeding before a competent
tribunal. The challenge must be by caveat and be heard in
the Superior Court.
In re Charles’s Will, 263 N.C. 411, 415, 139 S.E.2d 588, 591 (1965) (emphasis in
original) (internal citation omitted). See also N.C. Gen. Stat. § 31-32(a) (2014) (“At
the time of application for probate of any will, . . . any party interested in the estate,
may . . . enter a caveat to the probate of such will”). Unlike a declaratory judgment
action, “[t]he purpose of a caveat is to determine whether the paperwriting purporting
to be a will is in fact the last will and testament of the person for whom it is
propounded.” In re Spinks’s Will, 7 N.C. App. 417, 423, 173 S.E.2d 1, 5 (1970). Thus,
while the issue of whether a contested writing is the valid will of the testator may
only be challenged by caveat, where the construction of an unchallenged will1 is
contested, an action for a declaratory judgment is the appropriate procedure for
determining the rights of the parties under that will. Compare id. with Taylor, 301
N.C. at 364, 271 S.E.2d at 511.
The trial court in the present case, however, appears to have mistakenly
concluded that Plaintiff was challenging the Will itself rather than seeking a judicial
1We note that a photocopy of the Will was found among the Testator’s personal effects and that
this photocopy did not contain a marking striking through the Granddaughter’s name. However, there
has been no caveat filed in the estate proceeding claiming that the original Will in Plaintiff’s possession
was not valid or that the photocopy should be probated.
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resolution of the rights of the parties under the terms of the Will and the effect of the
markings thereon on these parties’ rights. Therefore, the court’s dismissal of
Plaintiff’s action on this basis was error.
B. Plaintiff’s Summary Judgment Motion
The trial court, after granting the Granddaughter’s Rule 12(b)(6) motion,
purported in its order to deny Plaintiff’s summary judgment motion, which Plaintiff
also argues was erroneous. Specifically, Plaintiff points out that the trial court’s basis
for denying her summary judgment motion is unclear, as it was denied rather than
dismissed as moot, and there is no indication in the order whether the court
considered evidence outside the pleadings in reaching the conclusion that the motion
should be denied. However, upon concluding, albeit erroneously, that Plaintiff had
failed to state a claim upon which relief could be granted, the trial court no longer
had any claim before it with respect to which it could conclude whether summary
judgment was or was not appropriate. Therefore, the trial court’s purported denial
of Plaintiff’s motion for summary judgment after it dismissed Plaintiff’s only claim as
legally insufficient was void ab initio.
Our Supreme Court has long recognized that “[t]he only purpose of a Rule
12(b)(6) motion is to test the legal sufficiency of the pleading against which it is
directed.” White v. White, 296 N.C. 661, 667, 252 S.E.2d 698, 702 (1979). Therefore,
where “a trial court dismisses a claim under Rule 12(b)(6) for failure to state a claim
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Opinion of the Court
for relief, that dismissal operates as an adjudication on the merits unless the court
specifies that the dismissal is without prejudice.” Cnty. of Durham v. Daye, 195 N.C.
App. 527, 532, 673 S.E.2d 683, 687 (2009) (internal marks omitted).
However, unlike a motion to dismiss under Rule 12(b)(6), the purpose of
summary judgment under Rule 56 is not to test the legal sufficiency of the pleadings,
but rather, in reviewing evidentiary material from outside the pleadings, “to provide
an efficient method for determining whether a material issue of fact actually exists.”
Southerland v. Kapp, 59 N.C. App. 94, 95, 295 S.E.2d 602, 603 (1982). Thus, “[t]he
distinction between a Rule 12(b)(6) motion to dismiss and a motion for summary
judgment is [] more than a mere technicality.” Locus v. Fayetteville State Univ., 102
N.C. App. 522, 527, 402 S.E.2d 862, 866 (1991). Accordingly, the denial of a motion
to dismiss under Rule 12(b)(6) does not subsequently prevent a court from granting
summary judgment under Rule 56. Barbour v. Little, 37 N.C. App. 686, 692, 247
S.E.2d 252, 255-56 (1978).
However, the converse does not hold. That is, once a court grants a motion
under Rule 12(b)(6), dismissing the claim with prejudice, “the dismissal operates as
an adjudication on the merits[.]” Daye, 195 N.C. App. at 532, 673 S.E.2d at 687. After
concluding that the pleadings are legally insufficient to state a valid claim for relief,
a court cannot then adjudicate whether there is a genuine issue of material fact and
the movant is entitled to judgment as a matter of law on that very same claim because
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Opinion of the Court
the court has already concluded the asserted claim, as a matter of law, is no claim at
all. See id. Therefore, on remand, the trial court must disregard the purported denial
of Plaintiff’s motion for summary judgment because this denial was and is a nullity.2
III. Conclusion
We reverse the portion of the trial court’s order dismissing Plaintiff’s claim for
a declaratory judgment pursuant to Rule 12(b)(6). Furthermore, we vacate that
portion of the trial court’s order denying Plaintiff’s motion for summary judgment.
On remand, the trial court must determine the rights of the parties under the terms
of the Will, including the effect of any partial revocations thereof on the parties’ rights
under the Will.
REVERSED AND REMANDED IN PART, AND VACATED IN PART.
Judges CALABRIA and ELMORE concur.
2We are mindful that a trial court’s ruling on a motion under Rule 12(b)(6) must be regarded
as one for summary judgment under Rule 56 “[w]here matters outside the pleadings are presented to
and not excluded by the court,” see DeArmon v. B. Mears Corp., 312 N.C. 749, 758, 325 S.E.2d 223, 229
(1985). However, in the present case, the trial court neither heard evidence nor based its ruling on
any evidentiary materials. Instead, the court simply dismissed the claim with prejudice and then went
on to deny Plaintiff’s motion for summary judgment on that same claim without stating the basis for
this ruling.
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