Tyson v. North Carolina National Bank

ARNOLD, Judge. Plaintiffs only assignment of error is that, the trial court erred in granting defendant’s motion for summary judgment. In general, summary judgment is appropriate where the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact, and the movant is entitled to judgment as a matter of law. G.S. 1A-1, Rule 56(c); Thomasville v. Lease-Afex, Inc., 300 N.C. 651, 268 S.E. 2d 190 (1980); Durham v. Vine, 40 N.C. App. 564, 253 S.E. 2d 316 (1979). The initial question before the Court is whether plaintiffs cause of action is barred by the running of the statute of limitations. The pleadings show that plaintiffs husband died 28 September 1968, and defendant submitted its final account as executor on 14 September 1972. The defendant argues that the three-year statute of limitations provided in G.S. 1-52 (1) applies to this action rather than the ten-year catch-all statute of limitations urged by plaintiff. We disagree. The claim involved herein for damages for breach of fiduciary duty in the administration of plaintiffs deceased husband’s estate is distinguishable from the claims involved in the cases cited by defendant. We find therefore that, as no other statute limits an action of this nature, the ten-year statute provided in G.S. 1-56 applies, and plaintiffs action is timely. As to the substantive issues involved in this appeal, it is well-established that on a motion for summary judgment, the burden of establishing the absence of any genuine issue of material fact is on the moving party. This burden can be met by showing the nonexistence of an essential element of plaintiffs [192] cause of action, or by showing through discovery that plaintiff cannot provide evidence to support an essential element of his claim. Thomasville v. Lease-Afex, Inc., supra; Durham v. Vine, supra. If the moving party meets this burden, the non-moving party must in turn either show that a genuine issue of material fact exists for trial, or must provide an excuse for not making such a showing. Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 251 S.E. 2d 419 (1979). A review of the record reveals that certain facts are not in dispute. The parties agree that defendant stood in a fiduciary relationship to plaintiff while serving as executor of her late husband’s estate, and that the family residence was not included in the estate until late 1970 because the defendant believed it had been held by plaintiff and her husband as tenants by the entirety. Plaintiff does not dispute that her husband’s will provided that his debts be paid out of the principal of his estate, that his debts, not including taxes and expenses of administration, totalled eighty-two thousand two hundred sixty-eight dollars ($82,268.00), that upon appraisal in February 1969 the residence and lot were valued at $52,500, the Cotanche Street property was valued at $8,500, and the tobacco farm was valued at $74,940. Further, plaintiff does not dispute that no other real property in the estate was readily marketable. With permission of the court, defendant sold the tobacco farm and the Cotanche Street property to. pay the estate’s debts in December 1969. Plaintiff purchased the tobacco farm as guardian for her children. In late 1970, when plaintiff attempted to sell the homeplace, it was discovered that decedent had owned the house individually. The house was then sold for $60,000. Conceding defendant’s negligence in failing to include the homeplace, the parties disagree only as to whether the homeplace would have been sold rather than the tobacco farm if the residence had been included in the estate. Plaintiff argues that summary judgment in favor of defendant was improper since defendant’s evidence that the homeplace would not have been sold in any event because it was occupied by the widow and three minor children is not competent, and even if properly considered, it merely raises a material factual issue and the need to test the credibility of defendant’s witness on cross193 examination. Plaintiff further argues that an inference must be drawn that the sale of the house and a small mortgage on the tobacco farm would have satisfied all creditors and prevented the damage to plaintiff from the sale of the tobacco farm. Therefore, in plaintiffs view, the question of the reasonableness of defendant’s actions was a question for the jury. Defendant argues that it met its burden in regard to its summary judgment motion. It presented the affidavit of Mr. B. B. Suggs, a trust officer whose duties included supervising the trust officer who administered the estate of James Harvey Ward, Jr., concerning defendant’s practices with regard to selling family homes, and, since eight months passed between the filing of defendant’s motion and the entering of the court order thereon, defendant argues plaintiff had ample time in which to conduct discovery to test Mr. Suggs’ credibility. Defendant further argues that the uncontradicted evidence shows that the will directed payment of debts out of principal; that the debts totalled more than the combined value of all readily marketable property other than the tobacco farm; and that plaintiffs failure to introduce any contradictory evidence warranted the entry of summary judgment in its favor. Disregarding the question of whether it would have been reasonable for defendant Bank not to sell the homeplace because of the widow and children, and the question of Mr. Suggs’ credibility, the undisputed facts show that the debts of the estate, not including taxes and expenses of administration, totalled slightly more than $82,000. The decedent’s will directed that these debts be paid out of the principal of the estate. The residence appraised at $52,500, the Cotanche Street property appraised at $8,500, and the tobacco farm appraised at $74,940, were the only readily marketable properties in the estate. Simple mathematics indicates that the sale of the residence and the Cotanche Street property would have raised only $61,000. Plaintiffs argument that she is entitled to an inference that defendant could have avoided selling the farm by mortgaging it to raise the difference is without merit. Decedent’s will had directed defendant to pay the debts out of the principal of the estate. While in an unusual case an executor might be required to disregard such a direction in the proper performance of its duties, the facts of this [194] case do not warrant such an inference. The alternative of mortgaging the farm, therefore, as well as the other alternatives suggested by plaintiff, were not reasonably available to the defendant. Under these facts, the defendant’s negligence, if any, in failing to initially include the residence in the estate, was not the proximate cause of the injuries of which plaintiff complains. Defendant has, therefore, met its burden of proving that an essential element of plaintiffs claim is nonexistent and, therefore, we find that granting summary judgment for the defendant on the negligence claim was proper. Plaintiffs first and second alternative claims for relief are that defendant breached its fiduciary duty by not settling the estate with as little sacrifice as was reasonable under the circumstances, and by failing to take reasonable action to retain income-producing property. Plaintiff argues that summary judgment was improper because it was for the jury to decide whether defendant, had it included the residence in the estate, breached its duty by selling the tobacco farm. We disagree. As previously pointed out, selling the house rather than the farm would not have raised sufficient funds to pay off the debts of the estate. There is no evidence in the record to support an inference that selling the farm was unreasonable and, therefore, summary judgment was appropriate on these two claims. Plaintiffs third alternative claim for relief is that defendant breached its fiduciary obligation of loyalty by selling the tobacco farm. The undisputed facts pertinent to this claim are as follows: The decedent was substantially indebted to defendant prior to the execution of the will naming the defendant as executor, and this indebtedness was disclosed by defendant in the petition to sell the farm, to which the plaintiff, as guardian of her children, filed a verified answer. No conflict of interest is created by the mere fact that the executor of the estate also occupied the status of creditor. See G.S. 28A-4-1 (b)(4). Furthermore, a review of the record reveals no evidence of any use by defendant of its powers as executor that would constitute a breach of its fiduciary duty of loyalty. [195] Accordingly, we find that the trial court properly granted defendant’s motion for summary judgment as to all of plaintiffs claims and the judgment is therefore Affirmed. Judge MARTIN (Harry C.) concurs. Judge CLARK dissents.