                                     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
                                           -2-
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[.]”
                                 -3-
    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)
                                   -4-
                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”),
                                         -5-
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).
                                         -6-
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
                                 -7-
            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.
                               -8-


         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
                                               -9-
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
                                          -10-
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).
                                            -11-
       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
                                     -12-
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
                                    -13-
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).
                                        -14-
    “[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:
                                         -15-
              (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
                                       -16-
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
                                      -17-
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
                                    -18-
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.
