               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA15-139

                              Filed: 15 September 2015

Burke County, No. 13 CVS 1299

JAMES GEORGE BRITTIAN, by and through Executrix of the Estate Deborah
Hildebran, Plaintiff,

              v.

MICHAEL TODD BRITTIAN, JAMES KEVIN BRITTIAN, BRETT TYLER
BRITTIAN and CHANTÉ FARE BRITTIAN, Defendants.


        Appeal by Plaintiff from order entered 22 September 2014 by Judge Robert T.

Sumner in Burke County Superior Court. Heard in the Court of Appeals 12 August

2015.


        Patrick, Harper & Dixon, LLP, by Thomas Filopoulos and David W. Hood, for
        the Plaintiff-Appellant.

        LeCroy Law Firm, PLLC, by M. Alan LeCroy, for the Defendant-Appellant,
        Chanté Fare Brittian.


        DILLON, Judge.


        Deborah Brittian Hildebran (“Plaintiff”), on behalf of the Estate of James

George Hildebran (the “Estate”), appeals from an order dismissing her action for a

declaratory judgment and denying her motion for summary judgment.          For the

following reasons, we reverse that portion of the order dismissing her declaratory

judgment action and vacate that portion of the order denying her motion for summary

judgment.
                                BRITTIAN V. BRITTIAN

                                  Opinion of the Court



                                    I. Background

      This proceeding is a declaratory judgment action filed in superior court

concerning the rights of the parties under a will (the “Will”) executed by James

George Brittian (“Testator”), now deceased – a will that has been accepted for probate

in a separate proceeding before the clerk.

      Prior to Testator’s death, he executed the Will, naming his daughter (Plaintiff)

as executrix, and gave the Will to her for safekeeping. The Will left the property in

his estate to various beneficiaries. The Will contained a number of markings, one of

which struck through the name of Testator’s granddaughter, Chanté Fare Brittian

(the “Granddaughter”).

      The Will was probated in common form before the clerk and letters

testamentary were issued appointing Plaintiff as executrix. However, an assistant

clerk in the Estates Division wrote a letter to Plaintiff to inform her that personnel

in the Estates Division had been able “to read the blacked out sections on the original

version [of the Will] and ha[d] typed up the sections from the original Will,” and that

“any modification by strike-outs, additions to and/or interlineations [were] not valid

for purposes of probate,” essentially taking the position that the apparent partial

revocation of the Will disinheriting the Granddaughter was ineffective. Attached to

this letter was a document typed up by personnel in the clerk’s office which

reproduced the language in the Will which had been marked through.



                                         -2-
                                 BRITTIAN V. BRITTIAN

                                    Opinion of the Court



       Plaintiff responded by letter through counsel, stating her position that the

partial revocation was effective.     However, in response to Plaintiff’s letter, the

assistant clerk wrote to Plaintiff advising her that it was in her best interest to file

an action for a declaratory judgment, stating that “[a] ruling on this issue from a

Superior Court Judge would clarify the matter.”

       Thereafter, Plaintiff instituted the present action for a declaratory judgment.

The Granddaughter answered, moving to dismiss the action pursuant to Rule 12(b)(6)

of our Rules of Civil Procedure for failure to state a claim upon which relief can be

granted, or, in the alternative, asserting that the partial revocation of the Will was

ineffective.

       Plaintiff then moved for summary judgment. The Granddaughter responded

to Plaintiff’s summary judgment motion, asserting, inter alia, that Plaintiff was

objecting to a duly admitted will in probate and that, therefore, Plaintiff was required

to file a caveat in the probate proceeding before the clerk rather than through a

declaratory judgment action in superior court.

       After a hearing on the matter, the superior court entered an order granting the

Granddaughter’s Rule 12(b)(6) motion, and further denying Plaintiff’s motion for

summary judgment. Plaintiff entered timely notice of appeal.

                                       II. Analysis

                      A. Granddaughter’s Rule 12(b)(6) Motion



                                           -3-
                                 BRITTIAN V. BRITTIAN

                                   Opinion of the Court



      Plaintiff first argues that the trial court erred in granting the Granddaughter’s

Rule 12(b)(6) motion to dismiss.      Specifically, Plaintiff contends that where the

construction – rather than the validity – of a will is contested, the appropriate

procedure for obtaining a declaration of the rights of the parties under that will is an

action for a declaratory judgment, not a caveat proceeding. We agree.

      Our Supreme Court has held that the construction of a will presents “a proper

justiciable question . . . under the provisions of the North Carolina Declaratory

Judgment Act.” Johnson v. Wagner, 219 N.C. 235, 238, 13 S.E.2d 419, 421 (1941).

That Act, as codified in relevant part in N.C. Gen. Stat. § 1-254, provides that “[a]ny

person interested under a . . . will . . . may have determined any question of

construction . . . arising under the instrument . . . and obtain a declaration of rights,

status, or other legal relations thereunder.” N.C. Gen. Stat. § 1-254 (2014). Thus,

any interested party under a will may bring an action for a declaratory judgment, see

Taylor v. Taylor, 301 N.C. 357, 364, 271 S.E.2d 506, 511 (1980), including the executor

of the estate, see First Sec. Trust Co. v. Henderson, 226 N.C. 649, 651, 39 S.E.2d 804,

805 (1946).

      By contrast, a caveat proceeding is the method by which a writing offered for

probate and purporting to be a will is challenged. Rogel v. Johnson, 114 N.C. App.

239, 241, 441 S.E.2d 558, 560 (1994). As our Supreme Court has explained,

              [w]hen a paper writing purporting to be a will is presented
              to the Judge of Probate he takes proof with respect to its


                                          -4-
                                        BRITTIAN V. BRITTIAN

                                          Opinion of the Court



                execution. If found in order the script is admitted to
                probate in common form as a will. . . . It stands as the
                testator’s will, and his only will, until challenged and
                reversed in a proper proceeding before a competent
                tribunal. The challenge must be by caveat and be heard in
                the Superior Court.

In re Charles’s Will, 263 N.C. 411, 415, 139 S.E.2d 588, 591 (1965) (emphasis in

original) (internal citation omitted). See also N.C. Gen. Stat. § 31-32(a) (2014) (“At

the time of application for probate of any will, . . . any party interested in the estate,

may . . . enter a caveat to the probate of such will”). Unlike a declaratory judgment

action, “[t]he purpose of a caveat is to determine whether the paperwriting purporting

to be a will is in fact the last will and testament of the person for whom it is

propounded.” In re Spinks’s Will, 7 N.C. App. 417, 423, 173 S.E.2d 1, 5 (1970). Thus,

while the issue of whether a contested writing is the valid will of the testator may

only be challenged by caveat, where the construction of an unchallenged will1 is

contested, an action for a declaratory judgment is the appropriate procedure for

determining the rights of the parties under that will. Compare id. with Taylor, 301

N.C. at 364, 271 S.E.2d at 511.

        The trial court in the present case, however, appears to have mistakenly

concluded that Plaintiff was challenging the Will itself rather than seeking a judicial




        1We note that a photocopy of the Will was found among the Testator’s personal effects and that
this photocopy did not contain a marking striking through the Granddaughter’s name. However, there
has been no caveat filed in the estate proceeding claiming that the original Will in Plaintiff’s possession
was not valid or that the photocopy should be probated.

                                                   -5-
                                  BRITTIAN V. BRITTIAN

                                    Opinion of the Court



resolution of the rights of the parties under the terms of the Will and the effect of the

markings thereon on these parties’ rights.          Therefore, the court’s dismissal of

Plaintiff’s action on this basis was error.

                       B. Plaintiff’s Summary Judgment Motion

      The trial court, after granting the Granddaughter’s Rule 12(b)(6) motion,

purported in its order to deny Plaintiff’s summary judgment motion, which Plaintiff

also argues was erroneous. Specifically, Plaintiff points out that the trial court’s basis

for denying her summary judgment motion is unclear, as it was denied rather than

dismissed as moot, and there is no indication in the order whether the court

considered evidence outside the pleadings in reaching the conclusion that the motion

should be denied. However, upon concluding, albeit erroneously, that Plaintiff had

failed to state a claim upon which relief could be granted, the trial court no longer

had any claim before it with respect to which it could conclude whether summary

judgment was or was not appropriate. Therefore, the trial court’s purported denial

of Plaintiff’s motion for summary judgment after it dismissed Plaintiff’s only claim as

legally insufficient was void ab initio.

      Our Supreme Court has long recognized that “[t]he only purpose of a Rule

12(b)(6) motion is to test the legal sufficiency of the pleading against which it is

directed.” White v. White, 296 N.C. 661, 667, 252 S.E.2d 698, 702 (1979). Therefore,

where “a trial court dismisses a claim under Rule 12(b)(6) for failure to state a claim



                                           -6-
                                 BRITTIAN V. BRITTIAN

                                   Opinion of the Court



for relief, that dismissal operates as an adjudication on the merits unless the court

specifies that the dismissal is without prejudice.” Cnty. of Durham v. Daye, 195 N.C.

App. 527, 532, 673 S.E.2d 683, 687 (2009) (internal marks omitted).

      However, unlike a motion to dismiss under Rule 12(b)(6), the purpose of

summary judgment under Rule 56 is not to test the legal sufficiency of the pleadings,

but rather, in reviewing evidentiary material from outside the pleadings, “to provide

an efficient method for determining whether a material issue of fact actually exists.”

Southerland v. Kapp, 59 N.C. App. 94, 95, 295 S.E.2d 602, 603 (1982). Thus, “[t]he

distinction between a Rule 12(b)(6) motion to dismiss and a motion for summary

judgment is [] more than a mere technicality.” Locus v. Fayetteville State Univ., 102

N.C. App. 522, 527, 402 S.E.2d 862, 866 (1991). Accordingly, the denial of a motion

to dismiss under Rule 12(b)(6) does not subsequently prevent a court from granting

summary judgment under Rule 56. Barbour v. Little, 37 N.C. App. 686, 692, 247

S.E.2d 252, 255-56 (1978).

      However, the converse does not hold. That is, once a court grants a motion

under Rule 12(b)(6), dismissing the claim with prejudice, “the dismissal operates as

an adjudication on the merits[.]” Daye, 195 N.C. App. at 532, 673 S.E.2d at 687. After

concluding that the pleadings are legally insufficient to state a valid claim for relief,

a court cannot then adjudicate whether there is a genuine issue of material fact and

the movant is entitled to judgment as a matter of law on that very same claim because



                                          -7-
                                     BRITTIAN V. BRITTIAN

                                        Opinion of the Court



the court has already concluded the asserted claim, as a matter of law, is no claim at

all. See id. Therefore, on remand, the trial court must disregard the purported denial

of Plaintiff’s motion for summary judgment because this denial was and is a nullity.2

                                         III. Conclusion

       We reverse the portion of the trial court’s order dismissing Plaintiff’s claim for

a declaratory judgment pursuant to Rule 12(b)(6). Furthermore, we vacate that

portion of the trial court’s order denying Plaintiff’s motion for summary judgment.

On remand, the trial court must determine the rights of the parties under the terms

of the Will, including the effect of any partial revocations thereof on the parties’ rights

under the Will.

       REVERSED AND REMANDED IN PART, AND VACATED IN PART.

       Judges CALABRIA and ELMORE concur.




       2We   are mindful that a trial court’s ruling on a motion under Rule 12(b)(6) must be regarded
as one for summary judgment under Rule 56 “[w]here matters outside the pleadings are presented to
and not excluded by the court,” see DeArmon v. B. Mears Corp., 312 N.C. 749, 758, 325 S.E.2d 223, 229
(1985). However, in the present case, the trial court neither heard evidence nor based its ruling on
any evidentiary materials. Instead, the court simply dismissed the claim with prejudice and then went
on to deny Plaintiff’s motion for summary judgment on that same claim without stating the basis for
this ruling.

                                                -8-
