              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA18-16

                             Filed: 18 September 2018

Carteret County, No. 17 CVS 343

PAMELA C. BARRETT, individually and as executor of the Estate of Donald Collins
Clements, Jr., Plaintiff,

             v.

NANCY COSTON, Defendant.


      Appeal by Plaintiff from an order entered 21 September 2017, as amended 25

September 2017, by Judge Benjamin G. Alford in Carteret County Superior Court.

Heard in the Court of Appeals 8 August 2018.


      Harvell and Collins, P.A., by Russell C. Alexander and Wesley A. Collins, for
      the Plaintiff-Appellant.

      Sumrell, Sugg, Carmichael, Hicks and Hart, P.A., by Ross T. Hardeman, for
      the Defendant-Appellee.


      DILLON, Judge.


      Pamela C. Barrett (“Plaintiff”) appeals from an order granting Nancy Coston’s

(“Defendant”) motion to dismiss and denying Plaintiff’s motion for summary

judgment as moot. After careful review, we affirm the decision of the trial court.

                                   I. Background
                                 BARRETT V. COSTON

                                  Opinion of the Court



      This case concerns two pieces of real property, (1) a house in Atlantic Beach

(“the House”) and (2) a condominium unit in Indian Beach (“the Condo”), each

formerly owned by Donald C. Clements, Jr. (the “Decedent”), who died in 2016.

      Plaintiff is the Decedent’s sister. Defendant is the Decedent’s wife’s sister.

      The Decedent and his wife did not have children. They owned the House and

the Condo. At some point, the Decedent’s wife died, at which point the Decedent

became the sole owner of the House and the Condo.

      In 2012, the Decedent executed a will (the “2012 will”) which expressly left the

House to Defendant (his wife’s sister) and which left the residue of his estate (which,

as of 2012, would have included the Condo) to Plaintiff (his sister).

      There was evidence that sometime after 2012, but prior to the Decedent’s death

in 2016, the Decedent had verbal communications with Plaintiff and Defendant to

change who would ultimately receive the House and who would receive the Condo.

There was evidence that the Decedent gave Defendant the choice between the House

and the Condo and that Defendant told the Decedent that she preferred the Condo.

There was evidence of an oral agreement or understanding that Defendant would

receive the Condo and Plaintiff would receive the House, contrary to the terms of the

Decedent’s 2012 will.

      In any event, in June 2016, five months before his death, the Decedent

executed and delivered a deed conveying the Condo to Defendant (the “2016 deed”).



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                                   Opinion of the Court



But the Decedent never executed a deed conveying the House to Plaintiff nor did he

ever amend his will to leave the House to Plaintiff rather than to Defendant.

      In December 2016, the Decedent died. Therefore, as a result of the 2012 will,

Defendant received the House. And as a result of the deed, Defendant also received

the Condo. Plaintiff only received the property that remained in the residue of the

Decedent’s estate.

      Plaintiff commenced this action claiming that she is entitled to the House, as

this was the Decedent’s intent.

      Defendant moved to dismiss Plaintiff’s action, and Plaintiff moved for partial

summary judgment. After a hearing on the matter, the trial court entered an order

granting Defendant’s motion to dismiss and denying Plaintiff’s motion for partial

summary judgment. Plaintiff timely appealed.

                                    II. Discussion

      On appeal, Plaintiff challenges the trial court’s order dismissing her claims.

At the outset, we note that the trial court, in its order, stated that it considered not

only the pleadings, but also other materials presented by the parties, which included

a number of affidavits. Accordingly, Defendant’s Rule 12(b)(6) motion to dismiss is

more properly characterized as a Rule 56 motion for summary judgment. See N.C.

R. Civ. P. 12(b) (stating that if “matters outside the pleadings” are presented and not

excluded by the court, the motion [to dismiss] shall be treated as one for summary



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                                   Opinion of the Court



judgment and disposed of as provided in Rule 56”). Our standard of review of an

appeal from summary judgment “is de novo; [and that] such judgment is appropriate

only when the record shows that there is no genuine issue of material fact and that

any party is entitled to judgment as a matter of law.” In re Will of Jones, 362 N.C.

569, 573, 669 S.E.2d 572, 576 (2008) (internal marks omitted).

      Plaintiff argues that there is an issue of fact that she is entitled to the House,

notwithstanding the 2012 will where the Decedent left the House to Defendant.

Plaintiff bases her argument on three separate legal theories discussed below.

However, all three theories are based on parol evidence, namely, oral communications

among Plaintiff, Defendant, and the Decedent in which there was allegedly some

agreement or understanding among the three that Plaintiff would receive the House

and Defendant would receive the Condo. It may be quite probable that the Decedent

intended for Plaintiff (his sister) to receive the House and Defendant (his wife’s sister)

to receive the Condo, and not for Defendant to receive both. But, for the following

reasons, we must affirm the order of the trial court, which concluded that Defendant

is the lawful owner of both properties.

      First, we conclude that Plaintiff’s arguments all run counter to our Statute of

Frauds, codified in N.C. Gen. Stat. § 22-2. Defendant’s title to the Condo and title to

the House are based on written instruments signed by the Decedent; namely, her title

to the Condo is based on the 2016 deed, and her title to the House is based on the



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                                   Opinion of the Court



2012 will. However, Plaintiff’s title to the House, according to her complaint, is based

entirely on parol evidence.    Our Statute of Frauds, though, requires that “[a]ll

contracts to sell or convey any lands, tenements or hereditaments, or any interest in

or concerning them . . . shall be void unless said contract, or some memorandum or

note thereof, be put in writing and signed by the party to be charged therewith, or by

some other person by him thereto lawfully authorized.” N.C. Gen. State § 22-2 (2015).

As it has been said:

             There is no stake for which men will play so desperately.
             In men and nations there is an insatiable appetite for
             lands, for the defence or acquisition of which money, and
             even blood, sometimes are poured out like water. The
             evidence of land title ought to be as sure as human
             ingenuity can make it. But if left to parol, nothing is more
             uncertain, whilst the temptations to perjury are
             proportioned to the magnitude of the interest. The
             infirmity of memory, the honest mistakes of witnesses, and
             the misunderstanding of parties, these are the elements of
             confusion and discord which ought to be excluded.

James A. Webster, Jr. et al., Webster's Real Estate Law in North Carolina § 9.06

(2018), (quoting Moore v. Small, 19 Pa. 461, 465 (1852))

      Our Supreme Court has held that an agreement to devise real property falls

within the Statute of Frauds. Jamerson v. Logan, 228 N.C. 540, 542, 46 S.E.2d 561,

563 (1948). As such, as our Supreme Court has held, “an oral contract to convey or

to devise real property is void by reason of the statute of frauds.” Pickelsimer v.

Pickelsimer, 257 N.C. 696, 698, 127 S.E.2d 557, 559 (1962).



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                                  BARRETT V. COSTON

                                   Opinion of the Court



      Plaintiff claims she should receive the House based on a theory that Defendant

has been unjustly enriched. Our Supreme Court has held that “a person who has

been unjustly enriched at the expense of another is required to make restitution to

the other.” Booe v. Shadrick, 322 N.C. 567, 570, 369 S.E.2d 554, 555-56 (1988).

Plaintiff contends that Defendant has been unjustly enriched at her expense because

Defendant received the House which should have been left to Plaintiff.

      Our Supreme Court, though, has held that to make out a claim for unjust

enrichment, the plaintiff must show that she conferred a benefit on the other party.

Id. But, here, all the evidence showed that Plaintiff did not confer any benefit on

Defendant. Plaintiff did not own the House. She had no legal right to the House

based on some oral promise by the Decedent that he would leave it to her. Rather,

the benefit was allegedly conferred upon Defendant by the Decedent.

      We therefore conclude that Plaintiff’s claim based on unjust enrichment fails

as a matter law.

      Plaintiff next claims that Defendant merely holds the House in constructive

trust for her. Generally, a constructive trust is “imposed by courts of equity to prevent

the unjust enrichment of the holder of title to, or of an interest in, property which

such holder acquired through fraud, breach of duty or some other circumstance

making it inequitable for [her] to retain it against the claim of the beneficiary of the

constructive trust.” Roper v. Edwards, 323 N.C. 461, 464, 373 S.E.2d 423, 424-25



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                                   Opinion of the Court



(1988) (emphasis added) (citation omitted). But a constructive trust cannot be based

upon an unenforceable oral agreement. Walker v. Walker, 231 N.C. 54, 56, 55 S.E.2d

801, 802 (1949). Here, Plaintiff’s evidence failed to show that Defendant acquired the

House through fraud, breach of duty, or other wrongdoing. Rather, she received it

through a legacy in the Decedent’s 2012 will. When the Decedent executed the 2016

deed, conveying the Condo to Defendant, the Decedent still owned the House. The

House was his to do with as he pleased. He could have given it or left it to Plaintiff.

He chose not to deed it to Plaintiff during his lifetime, and he chose not to modify his

2012 will. We, therefore, conclude that the trial court correctly determined that there

was no constructive trust imposed through the 2012 will as a matter of law.

      Finally, Plaintiff argues that the 2016 deed should be reformed based on

mutual mistake. We have held that “[m]istake as a ground for relief should be alleged

with certainty, by stating the facts showing mistake.” Van Keuren v. Little, 165 N.C.

App. 244, 249, 598 S.E.2d 168, 171 (2004). Our Supreme Court has held that:

             The party asking for relief, by reformation of a deed or
             written instrument, must allege and prove, first, that a
             material stipulation, as alleged, was agreed upon by the
             parties to be incorporated in the deed or instrument as
             written; and, second, that such stipulation was omitted
             from the deed or instrument as written by mistake, either
             of both parties, or of one party, induced by the fraud of the
             other, or by the mistake of the draftsman. Equity will give
             relief by reformation only when a mistake has been made,
             and the deed or written instrument, because of the
             mistake, does not express the true intent of both parties.
             The mistake of one party to the deed or instrument alone,


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                                      BARRETT V. COSTON

                                        Opinion of the Court



               not induced by the fraud of the other, affords no ground for
               relief

Matthews v. Shamrock., 264 N.C. 722, 725, 142 S.E.2d 665, 668 (1965).

       Here, Plaintiff does not allege that the Decedent had intended to include in the

2016 deed a stipulation conveying the House to Plaintiff and that such stipulation

was left out by mistake. Indeed, only Defendant is listed as a grantee. She only

alleges that the Decedent was somehow mistaken that executing the 2016 deed was

all he needed to do to carry out the entirety of the purported agreement between the

parties.

       We conclude that the evidence raises no genuine issue of fact to rebut the

presumption that the Decedent knew that the 2016 deed was only effective to convey

the Condo to Defendant and that it did not convey the House to Plaintiff. All the

evidence shows that he intended to convey the Condo to Defendant and that this

conveyance was not a mistake. Rather, the “mistake” might have been that the

Decedent thought his 2012 will already left the House to Plaintiff; or the mistake

might have been that the Decedent never got around to amending his 2012 will.

Maybe the Decedent made no mistake at all, but that he simply changed his mind

and decided to leave both the House and the Condo to Defendant. In any case,

Plaintiff has failed to create an issue regarding her claim based on mutual mistake.1



       1Plaintiff also made a claim for punitive damages. But as she has failed to prove compensatory
or nominal damages, her claim for punitive damages must fail. N.C. Gen. Stat. § 1D-15(a).

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                                   BARRETT V. COSTON

                                    Opinion of the Court



                                     III. Conclusion

         We are certainly sympathetic to Plaintiff’s position. It seems likely that the

Decedent meant to leave Plaintiff the House but that he simply never got around to

change his will or execute a deed to carry out this intent. It may be that her brother

thought that he already had taken care of it. But, under the facts of this case, there

is simply no remedy available to Plaintiff. Through the 2016 deed, Defendant became

the legal owner of the Condo, as was the clear intent of the Decedent. And when the

Decedent died later in 2016, Defendant became the legal owner of the House, by

virtue of the Decedent’s 2012 will. There is no evidence that Defendant, otherwise,

acquired the House through fraud or the breach of some duty. Our law and strong

public policy demand that we enforce the 2012 will and the 2016 deed as written,

notwithstanding parol evidence suggesting that the Decedent, at some point late in

his life, had expressed an intention that Plaintiff would receive his House at his

death.

         AFFIRMED.

         Judges DAVIS and INMAN concur.




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