                                      NO. COA13-1094

                        NORTH CAROLINA COURT OF APPEALS

                                     Filed: 1 July 2014


GERALDINE GRIER HOUSTON,
          Plaintiff,

      v.                                        Mecklenburg County
                                                No. 12 CVS 11029
JUANITA TILLMAN and THE ESTATE
OF CLIFFORD MEDLIN, JR.,
          Defendants.


      Appeal by defendants from judgment entered 14 May 2013 by

Judge Hugh B. Lewis in Mecklenburg County Superior Court.                           Heard

in the Court of Appeals 5 February 2014.


      Paul Whitfield, P.A., by Paul L. Whitfield, for plaintiff-
      appellee.

      John F. Hanzel, P.A., by John F. Hanzel, for defendants-
      appellants.


      GEER, Judge.


      The     trial    court    entered     judgment      in    favor     of    plaintiff

Geraldine Grier Houston and against defendants Juanita Tillman

and     the   Estate     of     Clifford     Medlin,      Jr.       for   the    sum    of

$120,000.00.          On appeal, defendants primarily argue that the

trial    court    erred       when    it   imposed    a   constructive          trust   on

certain property in the absence of defendants' engaging in any

wrongdoing.       Because       "wrongdoing"         is   not   a    requirement        for
                                          -2-
imposing a constructive trust and because the record contains

sufficient evidence to support the trial court's imposition of a

constructive trust, we find no error.

                                         Facts

       In    about   1989,     plaintiff,        who    was    married,    met     the

decedent, Clifford Medlin.           Mr. Medlin lived on Miller Avenue in

Charlotte, North Carolina (the "Miller Avenue residence").                         In

1997, plaintiff's husband moved out of their home on                            Coburg

Avenue in Charlotte (the "Coburg residence"), leaving plaintiff,

plaintiff's      daughter,     and       plaintiff's     two    grandchildren       to

support themselves.          Plaintiff began working, but was forced to

stop sometime in 2000 due to a back injury she suffered on the

job.        Although disabled,       plaintiff        was able to maintain         the

mortgage on the Coburg residence for some time with rent paid by

her daughter who continued to live with her.

       After her husband had left, plaintiff's relationship with

Mr. Medlin became romantic.              Plaintiff and Mr. Medlin sometimes

stayed the night at the other's house, and starting in 2001,

when    Mr.     Medlin   began       a    seven-year      regimen    of    dialysis

treatments, plaintiff started providing caretaking and in-home

nursing services for Mr. Medlin.

       In 2004, plaintiff fell behind on her mortgage payments for

the    Coburg    residence,    and       the   bank    foreclosed   on    her    home.
                                           -3-
However, Mr. Medlin acquired title to the Coburg residence in

his own name and plaintiff and her family then resumed living at

the   Coburg       residence.       Mr.   Medlin     paid      the   mortgage     on   the

Coburg      residence       while   plaintiff       paid       for   groceries.         In

addition, in 2005, Mr. Medlin purchased a new Dodge Stratus and

gave it to plaintiff for Mother's Day.                    While title to the Dodge

remained in Mr. Medlin's name, plaintiff was responsible for the

car's maintenance.

      Mr.     Medlin        underwent     a      kidney     transplant       in     2008.

Plaintiff stayed at the hospital for a month with Mr. Medlin

while    he   was    recovering.          After     Mr.   Medlin     was    discharged,

plaintiff continued to provide caretaking and in-home nursing

services      for    him.       Over    the    course     of    their    relationship,

plaintiff also helped Mr. Medlin when he suffered from gout, a

back condition, and problems associated with asbestos in his

lungs.      Plaintiff also managed Mr. Medlin's finances.                      Plaintiff

estimated that she spent six to seven hours per day for 11 years

taking      care     of   Mr.    Medlin       and   providing        in-home      nursing

services.

      Mr. Medlin died unexpectedly of a heart attack in early

2012.    The day Mr. Medlin died, Mr. Medlin's sister -- defendant

Tillman -- whom plaintiff had never met, arrived at the Miller

Avenue   residence        and   declared,      "I   am    in    charge     here."      Ms.
                                        -4-
Tillman demanded keys to the Miller Avenue residence and the

Coburg residence.      Being one of Mr. Medlin's heirs, Ms. Tillman

applied for and was appointed as the personal representative of

Mr.   Medlin's     estate    shortly    after    his   death.    Ms.      Tillman

repossessed the Dodge from plaintiff with the assistance of a

uniformed police officer and evicted plaintiff from the Coburg

residence, letting the house go into foreclosure.                 Ms. Tillman

also sold the Dodge and placed the proceeds into the estate.

      On 8 June 2012, plaintiff filed suit against Ms. Tillman

and Mr. Medlin's estate, asserting causes of action for (1) a

claim     for   personal    services,    (2)    constructive    trust,    parole

trust, and (3) parole gift.             The complaint sought the sum of

$582,400.00 for personal services rendered to Mr. Medlin and the

declaration of a constructive or resulting trust with respect to

the Coburg residence.

      On 16 August 2012, defendants filed a combined motion to

dismiss     pursuant   to    Rule   12(b)(6)      of   the   Rules   of    Civil

Procedure, motion for summary judgment, and motion for sanctions

and attorneys' fees.        Plaintiff responded with a motion to amend

and restate her complaint.1            On 2 October 2012, the trial court

entered an order deferring ruling on the Rule 12(b)(6) motion,
      1
      Although the record does not explicitly disclose whether or
when such a motion was made, we infer from the trial court's 2
October 2012 order that such a motion was made prior to that
date.
                                          -5-
allowing     plaintiff      leave    to     file   an    amended   and   restated

complaint,     and    declining      to     rule   on    defendants'     remaining

motions.       After       plaintiff      filed    an   amended    and   restated

complaint on 2 October 2012, defendants, on 30 October 2012,

again filed a combined Rule 12(b)(6) motion to dismiss, motion

for summary judgment, and motion for sanctions and attorneys'

fees.   On 10 December 2012, the trial court entered an order

denying defendants' motions.

    At trial, the trial court instructed the jury solely on

plaintiff's request for a constructive trust, submitting three

issues to the jury.          The jury answered "[y]es" as to the issue

whether the Coburg Avenue residence and the Dodge were "subject

to a constructive trust in favor of the Plaintiff[.]"                    The jury

also found that "the conduct of the Defendants, Juanita Tillman

and The Estate Of Clifford Medlin, Jr., deprived the Plaintiff

of a beneficial interest in [the Coburg residence] and the 2005

Dodge Stratus to which the Plaintiff is entitled[.]"                     Finally,

with respect to "[w]hat amount is the Plaintiff . . . entitled

to recover from the Defendants . . .[,]" the jury answered:

$120,000.00.         The   trial    court    denied     defendants'    motion   for

judgment notwithstanding the verdict and entered judgment on 14

May 2013     in accordance with the verdict.                 Defendants timely

appealed to this Court.
                                           -6-
                                           I

       Defendants first contend that the trial court erred when it

granted plaintiff leave to amend her complaint, when it denied

defendants' motions to dismiss pursuant to Rule 12(b)(6), and

when    it    denied      defendants'          motion    for      summary     judgment.

However, with respect to the trial court's decision to grant

plaintiff's motion for leave to amend her complaint, defendants

merely asserted their contention in a heading and presented no

specific argument why that ruling was in error.                          We, therefore,

will not address that ruling.              See N.C.R. App. P. 28(b)(6).

       With respect to defendants' argument that the trial court

erred in denying their motion to dismiss the original complaint,

plaintiff's        amendment     and    restatement        of     the    complaint    has

rendered     any    argument     regarding       the    original        complaint    moot.

See Ass'n for Home & Hospice Care of N.C., Inc. v. Div. of Med.

Assistance,        214   N.C.    App.   522,     525,    715    S.E.2d     285,     287-88

(2011) ("'A case is moot when a determination is sought on a

matter which, when rendered, cannot have any practical effect on

the existing controversy.'" (quoting Roberts v. Madison Cnty.

Realtors     Ass'n,      344    N.C.    394,     398-99,    474     S.E.2d    783,    787

(1996)));     Hyder      v.    Dergance,    76    N.C.     App.    317,    319-20,     332

S.E.2d 713, 714 (1985) (noting that "an amended complaint has

the effect of superseding the original complaint").                            See also
                                             -7-
Coastal Chem. Corp. v. Guardian Indus., Inc., 63 N.C. App. 176,

178,    303    S.E.2d     642,       644    (1983)       (noting    trial     court    found

defendant's        motion      to    dismiss    plaintiff's         original     complaint

presented "'moot question'" when trial court granted plaintiff's

motion to amend).

       With respect to defendants' motion to dismiss the amended

complaint, defendants cannot show any prejudice from the denial

of    their    motion    as     to    the   first     claim     for    relief    based      on

quantum meruit since the trial court did not submit the quantum

meruit claim to the jury.                    With respect to the constructive

trust claim, defendants argue that the trial court erred in

failing       to   dismiss     the     claim    because       the     amended    complaint

failed "to allege wrongdoing on the part of Defendants in the

acquisition of the property in question which would allow the

imposition of a constructive trust."                        As we explain below, in

discussing         defendants'       arguments       regarding      its     motion    for   a

directed verdict and motion for JNOV, defendants have mistaken

the    law.         Because         plaintiff      was    not      required     to    allege

wrongdoing and defendants have made no other argument regarding

the sufficiency of the amended complaint, defendants have failed

to    demonstrate       that    the     trial    court      erred     in   denying     their

motion to dismiss.
                                             -8-
    Defendants       also       contend      that     the    trial    court        erred    in

denying    their     motion       for       summary       judgment    as      to    all     of

plaintiff's       claims     in       the     amended        complaint.            However,

"[i]mproper   denial       of     a   motion       for    summary     judgment       is    not

reversible error when the case has proceeded to trial and has

been determined on the merits by the trier of the facts . . . ."

Harris v. Walden, 314 N.C. 284, 286, 333 S.E.2d 254, 256 (1985).

Because    this    case    was    tried       on    the     merits    after    denial       of

defendants'       motion        for     summary          judgment,     under        Harris,

defendants'       arguments       regarding        the      summary    judgment       order

cannot amount to reversible error, and we, therefore, do not

address them.

                                             II

    Defendants       next       contend      that     the    trial    court        erred    in

denying their motion for a directed verdict and motion for JNOV

as to plaintiff's quantum meruit and constructive trust claims.

However,    although        defendants            argue     in   their        brief       that

plaintiff's evidence in support of her claim based on quantum

meruit was insufficient, plaintiff's quantum meruit claim was

not submitted to the jury.              The sole issue before the jury was

plaintiff's entitlement to a constructive trust.                           As a result,

defendants' arguments regarding the quantum meruit claim cannot

be a basis for reversal of the judgment below.                          This aspect of
                                            -9-
defendants' argument is beside the point.                        See Dodd v. Wilson,

46    N.C.    App.    601,    602,   265    S.E.2d      449,     450   (1980)       (holding

verdict      on    issues     submitted      to    jury     rendered         moot    court's

refusal to submit another issue to jury where refusal did not

result in harm to defendant-appellant).

       The    sole     remaining     question      is     whether      the    trial      court

erred in denying defendants' motion for a directed verdict and

motion for JNOV as to plaintiff's request for a constructive

trust.       "'The standard of review of the denial of a motion for a

directed verdict and of the denial of a motion for JNOV are

identical.         We must determine whether, upon examination of all

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

party,       and     that    party   being        given    the    benefit       of       every

reasonable inference drawn therefrom and resolving all conflicts

of any evidence in favor of the non-movant, the evidence is

sufficient to be submitted to the jury.'"                         Springs v. City of

Charlotte, 209 N.C. App. 271, 274-75, 704 S.E.2d 319, 322-23

(2011) (quoting Shelton v. Steelcase, Inc., 197 N.C. App. 404,

410, 677 S.E.2d 485, 491 (2009)).

       Defendants'           only    contention           with     respect          to     the

constructive trust claim is that "for a constructive trust to be

imposed, the owner of title has to acquire the property through

some sort of wrongdoing" and that, here, "[s]uch wrongdoing was
                                          -10-
neither alleged nor proven."               Defendants argue that since they

acquired    title     to     the   Coburg        residence    and     the   Dodge    by

operation    of     intestacy      law,    they     could     not   have    committed

wrongdoing because they took no affirmative action to acquire

title.

      Our Supreme Court's decision in Variety Wholesalers, Inc.

v. Salem Logistics Servs., LLC, 365 N.C. 520, 723 S.E.2d 744

(2012),     sets     out     the    controlling         law    with      respect    to

constructive trusts.          In rejecting this Court's conclusion that

the existence of a fiduciary relationship was a requirement for

imposition of a constructive trust, the Supreme Court explained:

                 "A constructive trust is a duty, or
            relationship, 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 him to retain it
            against the claim of the beneficiary of the
            constructive trust."

Id. at 530, 723 S.E.2d at 751 (emphasis added) (quoting Wilson

v. Crab Orchard Dev. Co., 276 N.C. 198, 211, 171 S.E.2d 873, 882

(1970)).     The Court noted further that it had "also used the

phrase,     'any     other    unconscientious          manner,'     in      describing

situations in which a constructive trust may be imposed without

a   fiduciary      relationship."         Id.     at   531,   723   S.E.2d     at   752
                                        -11-
(quoting Speight v. Branch Banking & Trust Co., 209 N.C. 563,

566, 183 S.E. 734, 736 (1936)).

      Accordingly, Variety Wholesalers holds that a trial court

may impose a constructive trust, even in the absence of fraud or

a breach of fiduciary duty, upon the showing of either (1) some

other circumstance making it inequitable for the defendant to

retain the funds against the claim of the beneficiary of the

constructive trust, or (2) that the defendant acquired the funds

in an unconscientious manner.            Id. at 530-31, 723 S.E.2d at 751-

52.       See also id., 723 S.E.2d at 752 (noting that "[i]n the

absence     of   [a   fiduciary]   relationship,        [plaintiff]       faces    the

difficult task of proving 'some other circumstance making it

inequitable'      for     [defendant]    to    possess    the     funds    .   .    ."

(quoting Wilson, 276 N.C. at 211, 171 S.E.2d at 882)).

      Although defendants cite Variety Wholesalers and Sara Lee

Corp. v. Carter, 351 N.C. 27, 519 S.E.2d 308 (1999), in support

of    their       claim     that     "some      other      circumstance"           and

"unconscientious        manner"    are    synonymous       with     "wrongdoing,"

defendants have not pointed to any language in either case to

support      their    contention.2         Indeed,       the    Supreme     Court's



      2
      Sara Lee addressed the interaction of the constructive
trust doctrine with the Workers' Compensation Act, and it is,
therefore, irrelevant to our discussion here except insofar as
it recites the same general test for imposition of a
                                            -12-
application      of    the     constructive         trust     doctrine   in    Variety

Wholesalers establishes that actual wrongdoing, such as fraud or

breach of fiduciary duty, is not necessary for imposition of a

constructive trust.

       In Variety Wholesalers, the plaintiff had contracted with a

provider of bill-payment and auditing services.                          365 N.C. at

522,   723    S.E.2d    at    746.      When       notified   by   the   bill-payment

provider of the amounts the plaintiff owed to freight carriers,

the    plaintiff,      at    the   provider's       request,    would    forward   the

amounts due to a lock-box bank account that, unbeknownst to the

plaintiff, was actually owned by the defendant, the provider's

lender.      Id., 723 S.E.2d at 746-47.               The plaintiff claimed that

the amounts deposited by the plaintiff were supposed to be paid

to the freight carriers.             Id., 723 S.E.2d at 747.             However, the

defendant applied the funds deposited in the lock-box account --

which, according to the defendant, were supposed to be funds

payable to the provider -- towards the principal and interest

due on the provider's line of credit.                  Id.

       In    holding    that       issues    of     fact    existed   regarding    the

availability of a constructive trust, the Supreme Court did not

require proof of actual wrongdoing, but instead held that if the

defendant had "constructive notice that [the provider] did not

constructive trust articulated in Variety Wholesalers.                        351 N.C.
at 35, 519 S.E.2d at 313.
                                       -13-
have ownership of the funds deposited in the [lock-box] account,

[the defendant's] continued acceptance of those funds could be

considered unconscientious or inequitable and could thus permit

the imposition of a constructive trust."                Id. at 531, 723 S.E.2d

at 752 (emphasis added).            See also Weatherford v. Keenan, 128

N.C.   App.    178,   179,    493    S.E.2d    812,    813     (1997)    (upholding

constructive trust in equitable distribution action even absent

any mention of fraud, breach of fiduciary duty, or wrongdoing).

       In   this   case,     defendants       have    argued    only    that     "the

standard for imposing a constructive trust is that [the] holder

of legal title acquired the property through some wrongdoing.

Such wrongdoing was neither alleged nor proven" in this case.

Since under Variety Wholesalers, proof of wrongdoing is not a

necessary      prerequisite    for     a   constructive        trust     and     since

defendants have made no argument that plaintiff's evidence was

insufficient to prove, as allowed in Variety Wholesalers, some

other circumstance making it inequitable for defendants to have

retained the Coburg residence and the Dodge, defendants have

failed to demonstrate         that the trial court erred in denying

their motion for a directed verdict and their motion for JNOV.

See also Rape v. Lyerly, 287 N.C. 601, 615, 215 S.E.2d 737, 746

(1975) (holding constructive trust may be imposed on property

received      by   beneficiaries      of   decedent's        estate     to     enforce
                                        -14-
unfulfilled personal services agreement for decedent to devise

land to plaintiff); Rhue v. Rhue, 189 N.C. App. 299, 307-08, 658

S.E.2d 52, 59 (2008) (upholding constructive trust on certain

land    parcels     when      parties   had     confidential          and       cohabiting

relationship;       plaintiff        assisted      defendant         with       day-to-day

living,      managed   defendant's       finances,         cared     for       defendant's

grandson,     helped     operate     defendant's      business,          and    relied    on

defendant's     promise       that   parcels       would    be     for     their    mutual

benefit; and defendant subsequently denied plaintiff's interest

in parcels).

       Defendants      have    not    challenged      the     trial       court's       jury

instructions or the issues submitted to the jury and have made

no   other    argument     for   reversal     of    the    judgment        below.        We,

therefore,      hold    that     defendants        received      a    trial      free    of

prejudicial error.


       No error.

       Judges ROBERT C. HUNTER and McCULLOUGH concur.
