An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-189
                        NORTH CAROLINA COURT OF APPEALS

                             Filed: 2 September 2014


SYLVIA SMITH,
     Plaintiff,

      v.                                        Cumberland County
                                                No. 11 CVS 10470
FANNIE MCKINNON,
JERRY DANIELS and
JAMES F. DANIELS,
     Defendants.


      Appeal by defendant Jerry Daniels from order entered 18

November 2013 by Judge C. Winston Gilchrist in Cumberland County

Superior Court.       Heard in the Court of Appeals 11 August 2014.


      Attorney Mark A. Key, for plaintiff.

      Lewis, Deese, Nance, Briggs & Hardin, by James R. Nance,
      Jr. for defendant.


      ELMORE, Judge.

      Jerry    Daniels     (defendant)     timely    appeals     from     an   order

entered on 18 November 2013 following a bench trial ordering

that a deed transacting a tract of property located at 4524

Tonric     Drive   be     set   aside    because     defendant     procured     the

execution     of   that    deed   by    undue    influence.       After    careful

consideration, we affirm.
                                             -2-
                                             I. Facts

      On 24 March 1998, Fannie Powell (Mrs. Powell) executed her

last will and testament through which she devised real property

located on 4524 Tonric Drive                  (the Tonric Drive property)                    in

Cumberland County to her niece, Sylvia Smith (plaintiff).                                    In

the same will, she also devised other real property to Fannie

McKinnon, and to her nephew, defendant.

      In December 2004, Mrs. Powell’s husband passed away.                               After

her   husband’s        death,    Mrs.   Powell,       then    eighty-six-years             old,

exhibited physical and mental infirmities such that she needed

daily care.            As a result, she went to live with plaintiff.

Approximately one week prior to 14 February 2005, defendant,

without     plaintiff’s          permission,       removed          Mrs.        Powell     from

plaintiff’s home.           On 14 February 2005, defendant drove Mrs.

Powell     to    Truet      Cannady’s        (Attorney       Cannady)           law   office.

Defendant       was    present    for   at    least     a    part    of     Mrs.      Powell’s

meeting with Attorney Cannady, in which Mrs. Powell signed a

revocation of plaintiff’s power of attorney and instead named

defendant as her attorney in fact.                    She also deeded the Tonric

Drive property to defendant.

      On    13        December    2011,      plaintiff       filed         an     action    in

Cumberland County Superior Court to have the deed transferring
                                         -3-
the Tonric Drive property to defendant set aside due to alleged

fraud, undue influence, unjust enrichment, and lack of mental

capacity.     During a bench trial held on 20 May 2013 before the

Honorable C. Winston Gilchrist, defendant made an oral motion

for a directed verdict, arguing that plaintiff’s evidence was

insufficient    to    establish    undue       influence.           The    trial   court

denied the motion and ultimately concluded that plaintiff had

proven by the greater weight of the evidence that defendant

procured the execution of the deed for the Tonric Drive property

by exercising undue influence over Mrs. Powell.                           As a result,

the   trial   court     ordered   that    the       deed    for    the    Tonric   Drive

property be set aside.

                                    II. Analysis

a.) Findings of Fact

      Defendant first argues that the trial court erred in making

findings of fact that were not supported by the evidence.                             We

disagree.

      “In reviewing a trial judge’s findings of fact, we are

‘strictly     limited    to   determining           whether       the    trial   judge’s

underlying findings of fact are supported by competent evidence,

in which event they are conclusively binding on appeal, and

whether   those   factual     findings         in    turn     support      the   judge’s
                                          -4-
ultimate conclusions of law.’”             State v. Williams, 362 N.C. 628,

632, 669 S.E.2d 290, 294 (2008) (quoting State v. Cooke, 306

N.C. 132, 134, 291 S.E.2d 618, 619 (1982)); see also Sisk v.

Transylvania Cmty. Hosp., Inc., 364 N.C. 172, 179, 695 S.E.2d

429, 434 (2010) (“‘[F]indings of fact made by the trial judge

are conclusive on appeal if supported by competent evidence,

even if . . . there is evidence to the contrary.’” (quoting

Tillman v. Commercial Credit Loans, Inc., 362 N.C. 93, 100-01,

655 S.E.2d 362, 369 (2008))).

    First, defendant contends that the record does not support

a finding that Mrs. Powell “would follow [defendant’s] advice”

(finding of fact #10).            At trial, however, defendant testified

that Mrs. Powell would not follow his advice “blindly,” but she

would follow his advice “[i]f she thought it was good advice[.]”

Defendant’s own statements, combined with testimony by plaintiff

that defendant and Mrs. Powell had a close relationship, clearly

support this finding.

    Second, defendant argues that the record does not support a

finding that approximately one week prior to 14 February 2005,

defendant    removed       Mrs.     Powell       from   plaintiff’s    residence

(finding    of    fact    #20),    that   Mrs.    Powell   began   staying   with

defendant    as    soon    as     she   was     taken   from   plaintiff’s   home
                                        -5-
(finding of fact #22), and that Mrs. Powell was staying with

defendant    at   the    time    she    executed    the    Tonric     Drive    deed

(finding of fact #49).            However, defendant testified that he

took Mrs. Powell from plaintiff’s home and she stayed with him

for   “approximately      a     week”   before     they    met     with    Attorney

Cannady.     In another portion of defendant’s testimony, he stated

that he kept Mrs. Powell for “[m]aybe eight, ten” days before he

drove her to Attorney Cannady’s office.                    Moreover, plaintiff

picked Mrs. Powell up from defendant’s home a few days after 14

February 2005.        Again, the evidence in the record supports the

trial court’s findings.

      Third, defendant argues that the record does not support a

finding that defendant may have been present during some, but

not   all,   of   Attorney       Cannady’s    meetings      with    Mrs.    Powell

(finding of fact #23).            However, Attorney Cannady’s testimony

clearly    supports     this    finding.      At   trial    he   testified     that

defendant and Mrs. Powell came to his office on 14 February

2005, that he “had some conversations with both of them,” and

that he then asked defendant to leave the room so that he could

discuss some matters with Mrs. Powell privately.

      Fourth, defendant argues that the record does not support

the trial court’s finding of fact #43, which states that the
                                        -6-
trial   court     did    not   find     certain       portions      of     defendant’s

testimony   to    be    credible.       As    it   is    well     within       the   trial

court’s discretion to weigh and determine the credibility of a

witness, the trial court did not err in finding that certain

parts defendant’s testimony were not credible.                           See Ingle v.

Ingle, 42 N.C. App. 365, 368, 256 S.E.2d 532, 534 (1979) (“It is

the function of the trial judge, in trials without a jury, to

weigh and determine the credibility of a witness.”); see also

Garrett v. Burris, ____ N.C. App. ____, ____, 735 S.E.2d 414,

418   (2012),    aff'd   per     curiam,     366   N.C.    551,     742    S.E.2d      803

(2013) (“It is not the function of this Court to reweigh the

evidence on appeal.”).

      Fifth,     defendant     argues      that    the    trial    court       erred   in

finding that defendant procured the execution of the deed by

removing Mrs. Powell from plaintiff’s home and taking her to

Attorney Cannady’s office to have the deed prepared and executed

(finding    of   fact    #51).      However,       plaintiff       and     defendant’s

testimony show that: defendant knew Mrs. Powell could not read

well;   defendant       removed     Mrs.     Powell      from     plaintiff’s        home

without any notice to plaintiff; according to defendant, it “may

very well could have been” him who set up the appointment with

Attorney    Cannady;      defendant        drove    Mrs.    Powell        to    Attorney
                                    -7-
Cannady’s office without notifying any other family members; no

one   else   accompanied    defendant     and   Mrs.   Powell      to   Attorney

Cannady’s office; defendant may have been present during part,

but not all, of Attorney Cannady’s meeting with Mrs. Powell;

defendant had known Attorney Cannady for at least eight to ten

years before the date of trial; after Attorney Cannady prepared

the deed, defendant invited him to go horseback riding; and Mrs.

Powell was staying in defendant’s home at the time the deed was

executed and was subject to defendant’s supervision immediately

before and after its execution.           This evidence supports a valid

inference that defendant procured the execution of the deed.

      Sixth, and lastly, defendant argues the trial court erred

in    finding    that   credible   evidence     did    not   establish     that

plaintiff misused any of Mrs. Powell’s funds (finding of fact

#40).    At trial, however, plaintiff testified that all of the

funds she withdrew from Mrs. Powell’s bank accounts were used to

pay for Mrs. Powell’s taxes, utilities, and nursing care.                    She

also testified that she made transfers to other accounts owned

by Mrs. Powell.         As with the other trial court’s findings of

fact previously discussed, this finding is also supported by

competent       evidence.    Accordingly,       each   of    the    challenged

findings are binding on appeal.
                                   -8-
b.) Defendant’s Motion for a Directed Verdict

    Next,    defendant    argues   that       the   trial   court     erred   in

denying   defendant’s     motion   for    a    directed     verdict     because

plaintiff did not offer sufficient evidence to support a finding

of undue influence.      We disagree.

    “The standard of review of directed verdict is whether the

evidence, taken in the light most favorable to the non-moving

party, is sufficient as a matter of law to be submitted to the

jury.” Davis v. Dennis Lilly Co., 330 N.C. 314, 322, 411 S.E.2d

133, 138 (1991) (citing Kelly v. Int’l Harvester Co., 278 N.C.

153, 179 S.E.2d 396 (1971)).

            In   determining  the   sufficiency  of   the
            evidence to withstand a motion for a
            directed verdict, all of the evidence which
            supports the non-movant’s claim must be
            taken as true and considered in the light
            most favorable to the non-movant, giving the
            non-movant the benefit of every reasonable
            inference which may legitimately be drawn
            therefrom   and   resolving   contradictions,
            conflicts, and inconsistencies in the non-
            movant’s favor.

Turner v. Duke Univ., 325 N.C. 152, 158, 381 S.E.2d 706, 710

(1989).   To survive a motion for a directed verdict with respect

to the claim of undue influence, the burden of proof “is on the

[plaintiff] and he must present sufficient evidence to make out

a prima facie case in order to take the case to the jury.”
                                      -9-
Seagraves v. Seagraves, 206 N.C. App. 333, 343, 698 S.E.2d 155,

164 (2010) (citation and quotation marks omitted).

    “Undue influence is defined as a fraudulent influence over

the mind and will of another to the extent that the professed

action is not freely done but is in truth the act of the one who

procures the result.”         In re Will of Dunn, 129 N.C. App. 321,

328, 500 S.E.2d 99, 103–04, disc. review denied, 348 N.C. 693,

511 S.E.2d 645 (1998) (citation and quotation marks omitted).

    “There are four general elements of undue influence: (1) a

person who is subject to influence; (2) an opportunity to exert

influence;   (3)   a   disposition     to    exert   influence;    and   (4)   a

result indicating undue influence.”            Id. at 328, 500 S.E.2d at

104 (citation omitted).       A finding of undue influence involves a

“heavily fact-specific inquiry.”            In re Will of Jones, 362 N.C.

569, 575, 669 S.E.2d 572, 577 (2008).                Our Supreme Court has

enumerated seven factors as being probative with respect to the

issue of undue influence:

         1.   Old       age     and    physical      and    mental
         weakness;

         2.   that the person signing the paper is in
         the home of the beneficiary and subject to
         his constant association and supervision;

         3.   that   others   have             little      or     no
         opportunity to see him;
                                   -10-
           4.   that the [deed] is different from and
           revokes a prior will;

           5.   that it is made in favor of one with
           whom there are no ties of blood;

           6.   that it disinherits the natural objects
           of his bounty;

           7.   that the beneficiary has procured its
           execution.

In re Will of Andrews, 299 N.C. 52, 55, 261 S.E.2d 198, 200

(1980)   (citation    and   quotation     marks   omitted).      However,    a

litigant need not demonstrate every factor named in Andrews to

prove undue influence.        In re Estate of Forrest, 66 N.C. App.

222, 225, 311 S.E.2d 341, 343, aff’d per curiam, 311 N.C. 298,

316 S.E.2d 55 (1984).         Instead, there is a “need to apply and

weigh each factor in light of the differing factual setting of

each case.”   In re Will of Jones, 362 N.C. at 575, 669 S.E.2d at

578.     Accordingly,   any    evidence    showing   “an    opportunity   and

disposition    to     exert     undue     influence,       the   degree      of

susceptibility   of   [the]    [grantor]    to    undue   influence,   and   a

result which indicates that undue influence has been exerted”

are relevant considerations.        In re Will of Thompson, 248 N.C.

588, 593, 104 S.E.2d 280, 285 (1958) (citation and internal

quotation marks omitted).
                                          -11-
    After    applying       the    evidence          in    the    case    at   bar    to   the

Andrews factors (discussed below), it is clear that plaintiff

presented    sufficient      evidence          of    undue       influence     to    survive

defendant’s motion for a directed verdict at trial.

    We first note that plaintiff provided ample evidence of

Andrews factor #7, “[t]hat the beneficiary has procured [the

deed’s]   execution[,]”       as    we    have        already      concluded        that   the

trial court’s finding of fact #51 that “defendant procured the

execution of the deed” is supported by competent evidence.                                  We

now address the remaining Andrews factors.

  1. Old age and physical and mental weakness

    Mrs. Powell was eighty-seven years old when she executed

the deed transferring the Tonric Drive property to defendant and

showed    signs     of   physical        and        mental       weakness.         Plaintiff

testified    that    Mrs.   Powell       was    not       able     to    conduct     her   own

business, and it was well understood that Mrs. Powell could not

read well.     After her husband passed away, Mrs. Powell was not

able to live by herself.            She had a home health nurse who was

responsible for taking care of her.                       Plaintiff’s account of the

period when Mrs. Powell lived with her indicates Mrs. Powell did

not understand that her husband had passed away.                                   Plaintiff
                                     -12-
stated   that   Mrs.    Powell   frequently   asked   about   her   husband,

including where he was, and not everything she said made sense.

      Additionally, Ms. McKinnon testified that when she visited

with Mrs. Powell in 2005, her mind wandered and she would “say

stuff that [is] confusing[.]”          During her visits, Ms. McKinnon

explained that she would typically have to just sit and listen

to Mrs. Powell talk: “I will just go along with what she’s

saying because I know she’s not in her right mind[.]”                    Ms.

McKinnon further testified that when she spoke to Mrs. Powell on

the phone, Mrs. Powell sounded distant and confused, and slurred

her words.      Even after Ms. McKinnon identified herself, Mrs.

Powell also had trouble remembering who Ms. McKinnon was when

the   two   spoke      over   the   phone.     Furthermore,    plaintiff’s

testimony indicates that Mrs. Powell was without her arthritis

and nerve medications during the week prior to the execution of

the Tonric Drive deed.         Mrs. Powell’s medical records also list

Alzheimer’s dementia as a secondary diagnosis on the discharge

summary from her hospital visit on 12 May 2005.

  2. The grantor is in the home of the beneficiary and subject

      to his constant association and supervision.

      The record reveals that approximately one week prior to 14

February 2005, defendant removed Mrs. Powell from plaintiff’s
                                        -13-
home without any advance notice to plaintiff.                     By defendant’s

own admission, Mrs. Powell stayed with him for approximately one

week prior to the day on which the deed was executed.                       Another

portion   of     defendant’s    testimony       indicates     that   Mrs.   Powell

stayed with him for eight to ten days before defendant took her

to Attorney Cannady’s office.            The record therefore supports an

inference that Mrs. Powell was in defendant’s home and subject

to his constant association and supervision.

  3. Others have little or no opportunity to see the grantor.

    The evidence also supports the inference that during the

time period leading up to the execution of the deed, others had

little    opportunity      to   see    Mrs.    Powell,      and   that   defendant

attempted to control access to her.                Plaintiff testified that

defendant told her he would return Mrs. Powell on 14 February

2005,    but    instead,   drove      Mrs.    Powell   to    Attorney    Cannady’s

office.        Plaintiff also testified that she did not see Mrs.

Powell again until after 14 February 2005, when Mrs. Powell and

her sisters drove to defendant’s home to take Mrs. Powell back

to plaintiff’s house.

  4. That the deed is different from and revokes a prior will

    In Mrs. Powell’s last will and testament, executed in March

1998, she devised the Tonric Drive property to plaintiff.                      The
                                        -14-
deed executed after the meeting at Attorney Cannady’s office

conveyed    the    same   property      to     defendant.      Thus,    the   deed

executed by Mrs. Powell on 14 February 2005 effectively changed

part of her prior will.

  5. That it is made in favor of one with whom there are no ties

       of blood

       The Tonric Drive deed was made in favor of one with whom

Mrs. Powell has blood ties.             Defendant is Mrs. Powell’s nephew,

and    defendant   was    close    to    both    Mrs.    Powell   and   her   late

husband.    This factor weighs in favor of defendant’s position.

  6. That it disinherits the natural objects of her bounty

       To the extent the deed improved the position of defendant,

it disinherited plaintiff, Mrs. Powell’s niece—a natural object

of Mrs. Powell’s bounty.             While it is true that defendant is

also    a   natural   object      of    Mrs.    Powell’s     bounty,    defendant

received other property bequeathed to other relatives in Mrs.

Powell’s will as the result of the conveyances in which he was

involved.

       As plaintiff presented evidence that supports six of the

seven   Andrews    factors,    she      set    forth    sufficient   evidence   to

establish a claim of undue influence.              Thus, the trial court did

not err in denying defendant’s motion for a directed verdict.
                                     -15-
c.) Plaintiff’s Burden of Proof

    Next, defendant argues that the trial court failed to apply

the appropriate burden of proof in analyzing evidence in the

case. Specifically, defendant maintains that based on several

specific findings of fact made by the trial court, plaintiff

necessarily failed to satisfy her burden of proof to show that

defendant procured the execution of the deed by undue influence.

We disagree.

    “The standard of review on appeal from a judgment entered

after a non-jury trial is ‘whether there is competent evidence

to support the trial court’s findings of fact and whether the

findings support the conclusions of law and ensuing judgment.’”

Cartin v. Harrison, 151 N.C. App. 697, 699, 567 S.E.2d 174, 176

(quoting Sessler v. Marsh, 144 N.C. App. 623, 628, 551 S.E.2d

160, 163 (2001)), disc. review denied, 356 N.C. 434, 572 S.E.2d

428 (2002).

    Defendant directs our attention to seven findings of fact

made by the trial court, most of which were also challenged by

defendant   as   unsupported    by    the   evidence.    He   argues   that

because the trial court made these specific findings, the trial

court could not have drawn the legal conclusion that defendant

exercised   undue   influence   over    Mrs.   Powell.    However,     after
                                       -16-
review of these findings discussed by defendant, we conclude

that none of them preclude the trial court from ruling that

undue influence existed as a matter of law or show a failure to

utilize the appropriate burden of proof.                   Instead, the trial

court’s      other   findings   of    fact    reflect    an    analysis    of     the

Andrews factors in light of the applicable burden of proof, such

that   the    findings   support      the    trial   court’s    conclusion       that

defendant exercised undue influence on Mrs. Powell.

d.) Findings of Fact Not Made by the Trial Court

       Finally, defendant argues that the trial court erred by

ignoring competent testimony.               Specifically, defendant asserts

that    the    trial   court    did    not    properly     consider:      1.)     the

testimony      of    Attorney   Cannady,       his     secretary,    and        Colin

Summerall because it failed to make findings of fact related to

their testimony about the reasons that Mrs. Powell might have

disinherited plaintiff by executing the Tonric Drive deed, and

2.) plaintiff’s conduct as explaining Mrs. Powell’s actions.                       We

disagree.

       In a bench trial, the trial court must “consider and weigh

all competent evidence before him[.]”                Bank of N. Carolina, N.A.

v. Investors Title Ins. Co., 42 N.C. App. 616, 621, 257 S.E.2d

453, 457 (1979) (emphasis added).
                                           -17-
      Here, the trial court found that “[a]fter an opportunity to

hear the testimony and observe the demeanor of the witnesses,

the   court    finds   that        the    testimony      of    [defendant]         was    not

credible with respect to how the signature of Ms. Powell on the

deed . . . was obtained.”                This finding reasonably suggests that

the trial court considered the testimony of                          Attorney Cannady,

his    secretary,      and         Summerall,      in        making     its        ultimate

determination concerning the reason that Mrs. Powell signed the

Tonric Drive deed.        Moreover, the trial court found that “[t]he

credible evidence did not establish that plaintiff’s conduct was

inconsistent with her position at trial that the deed for 4524

Tonric     Drive    signed    by     Fannie       Powell       for    the       benefit   of

defendant Jerry Daniels . . . was the product of the undue

influence of defendant[.]”                 Thus, the trial court, within its

discretion,     weighed      the    testimony      and       found    that      defendant’s

undue influence caused Mrs. Powell’s actions, not plaintiff’s

conduct.      Accordingly, defendant’s argument is without merit.

                                   III. Conclusion

      The trial court did not err with respect to any of the

issues defendant raises on appeal.                    The trial court’s findings

of    fact    are   supported        by     competent         evidence.           Moreover,

plaintiff’s     evidence      was        sufficient     to    support       a    denial   of
                                     -18-
defendant’s motion for a directed verdict and the trial court’s

determination     that   defendant    procured   the   execution   of   the

Tonric    Drive   deed   by   exercising    undue   influence   over    Mrs.

Powell.    Accordingly, we affirm the trial court’s order.

    Affirmed.

    Judges ERVIN and McCULLOUGH concur.

    Report per Rule 30(e).
