An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-628
                       NORTH CAROLINA COURT OF APPEALS

                             Filed: 21 January 2014


MICHAEL DAVID BLAND, in his
capacity as Collector of the
Estate of Audree Shore Mills,

                   Plaintiff,

      vs.                                     Cabarrus County
                                              No. 08-CVS-3379
Harold L. and Audree S. Mills
Charitable Remainder Unitrust;
Fletcher L. Hartsell, Jr., in his
capacity as Trustee of the Harold
L. and Audree S. Mills Charitable
Remainder Unitrust and as Manager
of H&A Mills Properties, LLC; H&A
Mills Properties, LLC; The Estate
of Harold L. Mills; Edmond Thomas
Hartsell, individually and his
capacity as Executor of the Estate
of Harold L. Mills; and McGill
Baptist Church of Concord, North
Carolina, Inc.

                   Defendants.


      Appeal by Plaintiff from order entered 26 November 2012 by

Judge Richard L. Doughton in Cabarrus County Superior Court.

Heard in the Court of Appeals 21 October 2013.


      Weaver, Bennett & Bland, P.A., by Michael David Bland, for
      Plaintiff.
                                         -2-
      Poyner Spruill LLP, by Cynthia L. Van Horne and E.
      Fitzgerald Parnell, III, for Fletcher L. Hartsell, Jr., in
      his capacity as Trustee of the Harold L. and Audree S.
      Mills Charitable Remainder Unitrust and as Manager of H&A
      Mills Properties, LLC.

      Orsbon & Fenninger, LLP, by R. Anthony Orsbon, for the
      Estate of Harold L. Mills and Edmond Thomas Hartsell,
      individually and in his capacity as Executor of the Estate
      of Harold L. Mills

      James, McElroy & Diehl, P.A., by John S. Arrowood and
      Edward T. Hinson, Jr., for McGill Baptist Church of
      Concord, North Carolina, Inc.


      DILLON, Judge.


      Michael        David    Bland    (Plaintiff),      in   his    capacity    as

Collector of the Estate of Audree Shore Mills, appeals from the

trial      court’s    order     granting    summary    judgment     in   favor   of

Defendants Harold L. and Audree S. Mills Charitable Remainder

Unitrust; Fletcher L. Hartsell, Jr., in his capacity as Trustee

of   the    Harold     L.    and   Audree   S.   Mills   Charitable      Remainder

Unitrust and as Manager of H&A Mills Properties, LLC; H&A Mills

Properties, LLC; the Estate of Harold L. Mills; Edmond Thomas

Hartsell, individually and in his capacity as Executor of the

Harold L. Mills Estate; and McGill Baptist Church of Concord,

North      Carolina,     Inc.      (collectively,     Defendants).       For     the

following reasons, we reverse and remand for further proceedings

consistent with this opinion.
                                          -3-
                      I. Factual & Procedural Background

         Audree Shore Mills suffered three strokes between 1996 and

2002, rendering her physically and mentally impaired and in need

of   a    full-time     caretaker.        She    executed     a     durable    power   of

attorney      instrument    in    1996    (the        1996   POA),    appointing       her

husband,      Harold    Mills,    as   her      attorney-in-fact1;        however,      as

discussed further infra, the 1996 POA was not recorded until

approximately         thirteen    years    later,       three     hours     before     the

hearing       on    Plaintiff’s    motion       for    summary      judgment    in     the

present action.

         In   2003,     Defendant      Fletcher        Hartsell,      Jr.      (Attorney

Hartsell), began serving as legal counsel to both Mr. and Mrs.

Mills.         Plaintiff    avers      that      friends      and     family    members

expressed their concerns to Attorney Hartsell about Mrs. Mills’

deteriorating physical and mental health on “numerous occasions”

around this time.           In October 2003, Attorney Hartsell helped

Mrs. Mills          execute a power of attorney              instrument       (the 2003

POA), in which Mrs. Mills appointed Ray White as her attorney-

in-fact.           The 2003 POA was properly filed with the Cabarrus

County Register of Deeds on 20 October 2003.

         In September 2005, Mr. Mills’ nephew, William L. Mills,

1
  The 1996 POA also designated Central Carolina Bank and Trust
Company as an alternate attorney-in-fact for Ms. Mills.
                                              -4-
III, filed petitions requesting that both Mr. and Mrs. Mills be

declared incompetent and appointed guardians.                           Attorney Hartsell

filed an answer on behalf of Mr. and Mrs. Mills requesting that

the petitions be dismissed.

    On 28 December 2006, Attorney Hartsell and his brother,

Thomas Hartsell, purportedly helped Mr. and Mrs. Mills form H&A

Mills Properties, LLC (H&A Mills).                         Mr. Mills signed the H&A

Mills    operating            agreement       on     behalf         of      himself       and,

additionally, on behalf of Mrs. Mills as her attorney-in-fact

pursuant to a limited power of attorney executed and recorded on

21 June 2005.             Attorney Hartsell prepared and recorded two deeds

that transferred to H&A Mills interests in numerous tracts of

real property (the Real Estate) owned by Mr. and Mrs. Mills.

    On     9    February       2007,    the    Harold        L.   and    Audree     S.   Mills

Charitable Remainder Unitrust Agreement (the Trust) was created.

Mr. and Mrs. Mills were the named grantors of the Trust and

Attorney       Hartsell       was   designated       its      trustee.        The    initial

corpus   of         the    Trust    consisted       of   a    100       percent   ownership

interest       in    H&A     Mills,    and    the    Trust’s        terms    provided      for

quarterly distributions to each Mr. and Mrs. Mills in an “amount

equal to six and one-half percent (6.5%) of the net fair market

value of the assets of [the Trust]” for the remainder of their
                                       -5-
lives.     The Trust’s terms further provided that upon the death

of the survivor of Mr. and Mrs. Mills, the entire balance of the

Trust’s assets would pass to McGill Baptist Church.

       In February 2008, approximately one year after the Trust

was created, Mr. Mills died.             On 1 May 2008, Mrs. Mills was

adjudicated incompetent by the Cabarrus County Clerk of Superior

Court.      Ray White was appointed Guardian of Mrs. Mills’ estate

and,    acting   in   his   Guardianship     capacity,     filed   a   complaint

commencing the present action against Defendants on 9 September

2008.     In the complaint, Mr. White seeks, inter alia, a judicial

decree invalidating the Trust, the effect of which would divest

McGill Baptist Church of            its remainder interest in the Real

Estate held by the Trust and would return ownership in the Real

Estate to Mrs. Mills and the estate of her deceased husband.

The complaint alleges, inter alia, breach of fiduciary duties,

exercise of undue influence, conversion of personal property,

and unjust enrichment.        Further, the complaint asserts that all

distributions     received     by    Mrs.    Mills    from   the   Trust   were

accepted by her with a reservation of rights to sue for the

Trust’s    contents    in   their    entirety.       Mr.   White   subsequently

moved for summary judgment with respect to six of the ten claims

for relief asserted in the complaint.
                                     -6-
    On 14 December 2009, less than three hours prior to the

hearing   on    Mr.   White’s   partial    motion    for    summary    judgment,

Defendants filed a copy of the 1996 POA with the Cabarrus County

Register of Deeds.          Mr. White objected to this filing at the

summary judgment hearing, and the trial court took the matter

under advisement.

    Mrs. Mills died on 29 January 2010.                    Shortly thereafter,

Defendants moved to dismiss the complaint filed by Mr. White on

grounds that, in light of Mrs. Mills’ death, Mr. White no longer

had standing to maintain this action.

    On 5 March 2010, the court denied Mr. White’s motion for

partial summary judgment and granted summary judgment in favor

of Defendants, effectively dismissing all of the claims brought

by Mr. White on behalf of Mrs. Mills.               In its order, the court

concluded      that   the   1996   POA    had   been   “duly     and    properly

recorded” and that Mr. Mills had acted within the scope of his

authority as Mrs. Mills’ attorney-in-fact when he conveyed the

100 percent ownership interest in H&A Mills to the Trust.

    On 17 June 2011, Attorney Michael David Bland (Attorney

Bland) was appointed collector of Mrs. Mills’ estate.                   Attorney

Bland filed a motion pursuant to Rule 25 of the North Carolina

Rules of Civil Procedure to substitute himself as Plaintiff in
                                        -7-
the present action, and the court granted the motion.

      Attorney Bland appealed the 5 March 2010 summary judgment

order     dismissing    Plaintiff’s     claims     to    this   Court.     Without

reaching      the    merits   of    Plaintiff’s    appeal,      we   vacated   the

summary judgment order on grounds that it had been entered when

Mr.   White    was    no   longer    authorized     to    maintain   Plaintiff’s

lawsuit, and we remanded to the trial court “for the court’s

consideration of those issues, if any, presented by Mr. Bland,

as Collector of Mrs. Mills’ Estate.”                     White v. Harold L. &

Audree S. Mills Charitable Remainder Unitrust, __ N.C. App. __,

__, 730 S.E.2d 213, 217 (2012).

      On    remand,    Defendants      filed   a   new     motion    for   summary

judgment, this time contending that, in light of the fact that

Mrs. Mills had received distributions from the Trust, Plaintiff

was barred from seeking invalidation of the Trust                        under the

doctrine of quasi-estoppel.           The trial court granted Defendants’

motion for summary judgment by order entered 26 November 2012.

From this order, Plaintiff appeals.

                                    II. Analysis

      A    motion    for   summary    judgment     is    appropriately     granted

where “the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any,
                                   -8-
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) (2011).            “The burden is on

the moving party to show the absence of any genuine issue of

fact and his entitlement to judgment as a matter of law.”            In re

Will of Lamanski, 149 N.C. App. 647, 649, 561 S.E.2d 537, 539

(2002).

       Plaintiff contends that the trial court erred in granting

Defendants’    motion   for   summary   judgment   under   the   theory   of

quasi-estoppel.    We agree.

       “Quasi-estoppel is based on a party’s acceptance of the

benefits of a transaction, and provides where one having the

right to accept or reject a transaction or instrument takes and

retains benefits thereunder, he ratifies it, and cannot avoid

its obligation or effect by taking a position inconsistent with

it.”    Parkersmith Props. v. Johnson, 136 N.C. App. 626, 632, 525

S.E.2d 491, 495 (2000) (alteration removed and quotation marks

omitted).     “The ‘essential purpose’ of the quasi-estoppel theory

is to prevent a party from benefitting by taking two clearly

inconsistent positions.”       Beck v. Beck, 175 N.C. App. 519, 523,

624 S.E.2d 411, 414 (2006) (citation omitted).              Nevertheless,

“‘[o]ne cannot be estopped by accepting that which he would be
                                            -9-
legally entitled to receive in any event.’”                       Lamanski, 149 N.C.

App. at 651, 561 S.E.2d at 540 (quoting In re Peacock’s Will, 18

N.C. App. 554, 556, 197 S.E.2d 254, 255 (1973)).

       We find the factual circumstances and this Court’s holding

in Peacock, 18 N.C. App. 554, 197 S.E.2d 254, instructive in our

disposition      of    the    present        appeal.        In     Peacock,     the    son

challenged      his   mother’s       will,    alleging      that      his    sisters   had

exerted       undue     influence          over    the      purportedly         mentally

incapacitated mother.               Id. at 555, 197 S.E.2d at 255.                     The

sisters pointed out that the son had accepted a distribution of

$564.27      under    the    will    and     argued    that      he   was,    therefore,

“estopped to question the validity of said will by virtue of his

participation in the benefits arising to him under said will.”

Id.    The trial court agreed with the sisters and concluded “as a

matter of law that the acceptance and cashing of the check was a

‘ratification, affirmation, and approval’ of the validity of the

will   and    that    [the    son     was]    ‘estopped       from     contesting      the

validity thereof[.]”          Id. at 556, 197 S.E.2d at 255.                  On appeal,

this    Court    reversed      the     trial      court’s        ruling,     holding    as

follows:

              Under certain circumstances, one who accepts
              and retains benefits under a will may
              thereby  become   estopped  to   attack  its
              validity. Such is not the present case. One
                                    -10-
            cannot be estopped by accepting that which
            he would be legally entitled to receive in
            any event. Should the will be set aside in
            the present case, appellant will be entitled
            to a full one-third of his mother’s estate.
            His acceptance of a check for less than that
            amount could in no way prejudice his sisters
            in [the] event probate of the will is
            subsequently set aside. Nothing in the
            circumstances indicates any reason why it
            would by [sic] inequitable for appellant to
            proceed with his caveat. Should he succeed,
            he will ultimately receive no more than the
            law will allot him; should he fail, he will
            receive no more than the trustees in proper
            performance   of  their   duties  under  his
            mother’s will may distribute to him.

Id. at 556, 197 S.E.2d at 255 (internal citations omitted).

    We must determine in the present case whether the trial

court    correctly   concluded    that     Plaintiff   was   estopped   from

contesting the validity of the Trust – and thus barred from

asserting the claims set forth in his complaint – in light of

the quarterly distributions that Mrs. Mills received from the

Trust.    Put another way, Plaintiff’s appeal hinges on whether

the trial court correctly concluded as a matter of law that the

Trust had conferred upon Mrs. Mills a benefit that exceeded that

to which she would have been legally entitled had the Trust

never been created.      See id; Lamanski, 149 N.C. App. at 651, 561

S.E.2d    at   541   (holding    that    beneficiary   was   estopped   from

contesting will where she “had no legal right, outside the will,
                                               -11-
to     the     specific       personal        property      which      she     received       and

retained pursuant to the specific bequest in [the] will”); In re

Will of Smith, 158 N.C. App. 722, 724-25, 582 S.E.2d 356, 358

(2003)       (holding     that    trial        court   erred      in     granting       summary

judgment based on estoppel where caveator received and accepted

decedent’s       vehicle       under   challenged         will,     but,      as   decedent’s

only    child,     would       have    inherited         decedent’s          entire     estate,

including the vehicle, absent the will).

       Here, the evidence presented at trial tended to show that

Mrs. Mills contributed assets to the Trust totaling $541,491.50

in value and that she received distributions from the Trust

totaling        $487,618.63.           The       evidence      also          indicated        that

$25,538.74 was distributed from the Trust to maintain the Trust-

owned residence in which Mrs. Mills resided until her death and

to     cover    expenses       such      as     Mrs.     Mills’        car    insurance       and

transportation for her caretakers, and that, additionally, Mrs.

Mills        enjoyed      a    $28,859.00         benefit         in     living        in     the

aforementioned residence rent-free.                       Defendants aver that when

“[c]omparing these additional payments and direct distributions

to     Mrs.     Mills     with     the        appraised      value       of     Mrs.     Mills’

contributed       assets,        she   received        at    least       $554.87       more    in

distributions from the [Trust] than her contributions to H&A
                                             -12-
Mills Properties, LLC.                   Defendants also assert that the Trust

afforded      Mrs.       Mills     “significant        tax     advantages”     and     that

invalidation of the Trust would result in a tax liability of

$822,330.00.            Finally, Defendants argue that Plaintiff’s failure

to introduce any evidence concerning her legal entitlement to

the Trust’s assets if the Trust were invalidated – aside from

the amounts that she contributed, which Defendants insist she

surpassed by $554.87 – distinguishes this case from those in

which this Court has declined to apply estoppel in light of

evidence presented by the beneficiary indicating that she had

received less than that to which she would otherwise be legally

entitled.

       We    conclude       that    summary    judgment        here   was    improper    in

light of the evidence before the trial court.                           In moving for

summary judgment, it was Defendants burden to prove that quasi-

estoppel applies.           Lamanski, 149 N.C. App. at 649, 561 S.E.2d at

539.        Even    assuming       arguendo     that      Defendants’       evidence    was

sufficient         to    shift     the    burden    onto     Plaintiff,      Williams    v.

Smith,      149    N.C.     App.    855,    857,    561      S.E.2d   921,    923    (2002)

(providing that “[i]f the moving party has established the lack

of a genuine issue of material fact, then the burden shifts to

the non-moving party to present his own forecast of evidence to
                                      -13-
show that a genuine issue of material fact does exist”), there

was uncontested evidence before the court that Mrs. Mills was

Mr. Mills’ spouse at all times relevant to this action.                       As

such, absent the Trust – or a will, or some other means of

altering the      statutorily prescribed consequences triggered by

Mr. Mills’ death – Mrs. Mills would have been entitled to her

elective share of Mr. Mills’ estate under N.C. Gen. Stat. § 30-

3.1(a), which, as applied here, would have entitled Mrs. Mills

to half of Mr. Mills’ estate.                N.C. Gen. Stat. § 30-3.1(a)

(2008) (providing that where “the decedent is not survived by

any lineal descendants, [the surviving spouse is entitled to an

elective    share   of]   “one-half    of    the   [defendant’s]    Total    Net

Assets”).    No will or other evidence was presented to indicate

that Mrs. Mills would not have been entitled to at least her

elective share in Mr. Mills’ estate, which would have easily

surpassed    in   value   any   economic     benefit   conferred    upon    Mrs.

Mills by the Trust.

    With    respect   to   Defendants’       contention   that     the   present

case is distinguishable from those in which we have refused to

apply the quasi-estoppel doctrine in light of Plaintiff’s lack

of evidence concerning her legal entitlement, we note that the

trial   court’s     determination      in     Peacock,    supra,     that    the
                                  -14-
beneficiary was entitled to one-third of his mother’s estate

absent the contested will, 18 N.C. App. at 556, 197 S.E.2d at

255, was readily discernable by reference to the then-existing

intestacy provisions; and there is no indication that the court

made   this   determination   based   on   evidence   presented   by   the

parties themselves.     See id.       We also note that our present

holding is in accord with that of a Florida appellate court

that, citing North Carolina case law, recently           addressed this

precise issue under similar circumstances in Fintak v. Fintak,

120 So.3d 177 (Fla. 2nd DCA 2013).2

       In sum, we conclude that the trial court erred in granting

summary judgment for Defendants in light of Mrs. Mills’ legal

entitlement to at least her elective share of Mr. Mills’ estate.

We instruct the trial court on remand to determine the extent of

2
   We   recognize   that  state   court   decisions from   other
jurisdictions serve as persuasive, but not binding authority on
this Court.   Morton Bldgs., Inc. v. Tolson, 172 N.C. App. 119,
127, 615 S.E.2d 906, 912 (2005).      The trial court in Fintak
granted summary judgment to the defendants on grounds that the
plaintiff was estopped from asserting claims of undue influence
and lack of testamentary capacity relating to the trust in
question because the plaintiff had received and accepted
disbursements from the trust. Id. at 184. Citing this Court’s
decisions in Smith and Peacock, supra, the Fintak court reversed
the trial court’s decision, holding that the doctrine of quasi-
estoppel did not apply because the beneficiary “would have been
legally entitled to the assets of the Trust if the Trust was
never created and in the event the Trust is declared invalid.”
Id. at 185.
                                  -15-
Mrs.    Mills’     entitlement    and    whether,     considering        this

entitlement, the benefits conferred upon Mrs. Mills by the Trust

exceeded    such   entitlement.     Defendants      are   at   liberty    to

introduce rebutting evidence, i.e., evidence demonstrating that

Mrs. Mills was not so entitled, if any such evidence exists.

Accordingly, we reverse the trial court’s 26 November 2012 order

and remand for further proceedings consistent with this opinion.

       REVERSED AND REMANDED.

       Chief Judge MARTIN and Judge BRYANT concur.

       Report per Rule 30(e).
