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  "last_updated": "2023-07-14T14:40:03.287783+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judge GREENE dissents.",
      "Judge HUDSON concurs."
    ],
    "parties": [
      "KATHY F. GOODWIN, Plaintiff-appellant v. WILLIAM R. WEBB, JR., as Executor of the Estate of Claudius Kress Goodwin, Deceased, Defendant-appellee"
    ],
    "opinions": [
      {
        "text": "BIGGS, Judge.\nPlaintiff (Kathy Goodwin) appeals from an order granting summary judgment in favor of defendant (William Webb), Executor of Estate of Claudius Goodwin (Goodwin), deceased. For the reasons that follow, we reverse.\nPlaintiff and Goodwin were married in 1974. They separated in 1999, executed a \u201cSeparation and Property Settlement Agreement\u201d (the agreement) on 10 February, 1999, and were separated at the time of Goodwin\u2019s death in December, 1999. On 1 May 2001, plaintiff filed a complaint against defendant, seeking to set aside the agreement. Plaintiff alleged that her execution of the agreement was procured by coercion, duress, threats of physical abuse, mental abuse, and undue influence by Goodwin. She sought a dissenting spouse\u2019s share, and a year\u2019s allowance from Goodwin\u2019s estate. In his answer, defendant denied plaintiff\u2019s allegations and raised the defenses of laches, ratification, and estoppel. On 14 May 2001, defendant filed a motion seeking summary judgment, on the grounds that due to plaintiff\u2019s ratification of the agreement, she was estopped from challenging its validity. On 4 June 2001, the trial court granted defendant\u2019s motion for summary judgment. Plaintiff appeals from this order.\nStandard of Review\nSummary judgment is only proper if \u201cthe pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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.\u201d N.C.G.S. \u00a7 1A-1, 56(c) (2001); Department of Transp. v. Idol, 114 N.C. App. 98, 100, 440 S.E.2d 863, 864 (1994). \u201cSummary judgment is a drastic remedy. Its purpose is not to provide a quick and easy method for clearing the docket, but is to permit the disposition of cases in which there is no genuine controversy concerning any fact, material to issues raised by the pleadings, so that the litigation involves questions of law only.\u201d Savings & Loan Assoc. v. Trust Co., 282 N.C. 44, 51, 191 S.E.2d 683, 688 (1972). Summary judgment should therefore \u201cbe cautiously used so that no one will be deprived of a trial on a genuine, disputed issue of fact. The moving party has the burden of clearly establishing the lack of triable issue, and his papers are carefully scrutinized and those of the opposing party are indulgently regarded.\u201d Koontz v. City of Winston-Salem, 280 N.C. 513, 518, 186 S.E.2d 897, 901 (1972). Moreover, \u201cRule 56 does not authorize the court to decide an issue of fact, but rather to determine whether a genuine issue of fact exists.\u201d Caldwell v. Deese, 288 N.C. 375, 378, 218 S.E.2d 379, 381 (1975). If issues of material fact are in controversy, summary judgment is not appropriate. Dockery v. Quality Plastic Custom Molding, Inc., 144 N.C. App. 419, 547 S.E.2d 850 (2001).\nOn appeal, this Court\u2019s standard of review involves a two-step determination of whether (1) the relevant evidence establishes the absence of a genuine issue as to any material fact, and (2) either party is entitled to judgment as a matter of law. Von Viczay v. Thoms, 140 N.C. App. 737, 738, 538 S.E.2d 629, 630 (2000), aff\u2019d, 353 N.C. 445, 545 S.E.2d 210 (2001) (citations omitted). Further, \u201cthe evidence presented by the parties must be viewed in the light most favorable to the non-movant.\u201d Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998).\nPlaintiff argues that the evidence presented genuine issues of material fact with respect to her ratification of the agreement, and, therefore, that the trial court erred by granting defendant\u2019s summary judgment motion. We agree.\nPlaintiff alleged that her execution of the agreement was obtained under duress. A separation agreement executed while a party is acting under duress is invalid and can be set aside. Cox v. Cox, 75 N.C. App. 354, 356, 330 S.E.2d 506, 508 (1984). Duress occurs when a party is induced to perform or forego some act under circumstances depriving her of the exercise of her free will. Link v. Link, 278 N.C. 181, 194, 179 S.E.2d 697, 704-05 (1971).\nIn the instant case, plaintiff offered the following evidence in support of her contention that she signed the agreement under duress and that the duress continued until Goodwin\u2019s death: Forrest Hildebrand, a friend of both plaintiff and Goodwin, testified by deposition that Goodwin told him that he forced Plaintiff to sign the Agreement by threatening that \u201cif she didn\u2019t sign the papers he was going to beat the hell out of her.\u201d In addition, plaintiff testified by deposition that Goodwin threatened plaintiff throughout their marriage, that he had frequently beaten her, and that during the weeks before she signed the Agreement, Goodwin told plaintiff if she did not sign the Agreement, he would \u201cbeat the hell out of [her].\u201d Plaintiff also filed an affidavit stating that even after signing the Agreement, and until the time of Goodwin\u2019s death, she \u201cstill feared that . . . Goodwin would physically harm [her] or have someone physically harm [her] if [she] did not comply with the . . . Agreement or did something to legally affect the . . . Agreement.\u201d\nIn addition, plaintiff submitted the affidavit of Faye E. Sultan, Ph.D. (Dr. Sultan) who had performed a clinical evaluation of plaintiff. Dr. Sultan opined \u201cto a reasonable degree of psychological certainty that [Plaintiff] was convinced that she had no choice but to sign the . . . Agreement ... or risk physical assault and abuse from [Goodwin].\u201d She also stated that the \u201cphysical and mental abuse which [plaintiff] had endured during her 25-year marriage left her unable to contest the provisions of the ... Agreement even after it had been signed,\u201d as she was \u201cfearful of repercussions from [Goodwin] if she contested the [Agreement, even during the time that he was sick and in the hospital and up until the time of his death.\u201d We conclude that there was evidence presented from which a jury could find that plaintiff signed the agreement under duress, which continued until Goodwin\u2019s death.\n\u201c[A] transaction procured by duress may be ratified by the victim so as to preclude a subsequent suit to set [it] aside.\u201d Link v. Link, 278 N.C. 181, 197, 179 S.E.2d 697, 706 (1971). A party ratifies an agreement by retroactively \u201cauthoriz[ing] or otherwise approving] [of it],. . . either expressly or by implication.\u201d Black\u2019s Law Dictionary 1262 (6th ed. 1990). However, \u201cthere [can] be no ratification so long as the duress continue[s].\u201d Housing, Inc. v. Weaver, 37 N.C. App. 284, 300, 246 S.E.2d 219, 228 (1978).\nMoreover, \u201can act of the victim . . . will not constitute a ratification of the transaction . . . unless, at the time of such act, the victim had full knowledge of the facts and was then capable of acting freely.\u201d Neugent v. Beroth Oil Co., 149 N.C. App. 38, 55, 560 S.E.2d 829, 840 (2002) (quoting Link, id.) (summary judgment based on ratification improper where \u201c[v]iewing the evidence in the light most favorable to plaintiff, plaintiff did not have full knowledge of all material facts\u201d). See also Fallston Finishing, Inc. v. First Union Nat. Bank, 76 N.C. App. 347, 363, 333 S.E.2d 321, 330 (1985), (directed verdict improper where there was \u201csufficient evidence from which the jury could find that. .. [plaintiff] did not have the mental capacity to understand the consequences of his actions\u201d). Thus, a party cannot ratify an agreement unless he possesses the requisite mental abilities:\n[A] person has mental capacity sufficient to contract if he . . . [has] the ability to understand the nature of the act in which he is engaged and its scope and effect, or its nature and consequences, . . . [and is] in such possession of his faculties as to enable him to know at least what he is doing and to contract understandingly.\nRidings v. Ridings, 55 N.C. App. 630, 633, 286 S.E.2d 614, 616 (1982) (summary judgment appropriate on issue of ratification where plaintiff, although presenting evidence of mental incompetence at the time the agreement was executed, failed to show \u201ccontinued incompetence\u201d). See also Lowry v. Lowry, 99 N.C. App. 246, 253, 393 S.E.2d 141, 145 (1990) (upholding summary judgment based upon plaintiff\u2019s ratification, where she was \u201can educated woman and ... a licensed realtor . . . [and] the error she alleges required no legal explanation\u201d).\nIn the case sub judice, plaintiff responded to defendant\u2019s motion for summary judgment by offering her own affidavit and that of Dr. Sultan, a clinical psychologist. Dr. Sultan performed a clinical evaluation of the plaintiff, and subjected her to psychological testing, in addition to reviewing the Separation Agreement and other relevant documents. Her affidavit stated in part that:\n1. [Plaintiff] did not have the mental or emotional capacity to understand or appreciate the contents of the Separation Agreement.\n2. [Plaintiff\u2019s] history and clinical testing are all consistent with a woman who has been abused and battered, mentally and physically, her entire life[.]\n3. [Plaintiff\u2019s] verbal IQ and ability to understand written materials is in the low 70\u2019s. It is extremely unlikely that she understood the Separation Agreement, and it is my clinical opinion that she still does not fully understand the document.\nDr. Sultan\u2019s affidavit, if believed, could lead a fact finder to conclude that plaintiff lacked a full understanding of the separation agreement, and thus was incapable of ratifying it. Dr. Sultan found plaintiffs overall IQ in the range of 75 to 85, but her \u201cverbal IQ and ability to understand written materials\u201d in the \u201clow 70\u2019s.\u201d See In re LaRue, 113 N.C. App. 807, 811, 440 S.E.2d 301, 304 (1994) (\u201cIQ scores of 71 and 72, . . . can represent sub-average general intellectual functioning\u201d and relevant DSM definition \u201cpermits inclusion in the Mental Retardation category of people with IQs somewhat higher than 70\u201d). See also State v. Brewington, 352 N.C. 489, 518, 532 S.E.2d 496, 513 (2000) (\u201cdefendant\u2019s full scale IQ was 76, a level just above that of mental retardation\u201d). Significantly, the issue in the present case was not plaintiffs general intellectual functioning, but her ability to understand the implications of a detailed legal document. Dr. Sultan stated that, based on her evaluations, plaintiff \u201cdid not have the mental or emotional capacity to understand or appreciate the contents of the Separation Agreement,\u201d and that \u201c[i]t is extremely unlikely that she understood the Separation Agreement, and it is my clinical opinion that she still does not fully understand the document[.]\u201d\nMoreover, plaintiff\u2019s deposition testimony was equivocal regarding her understanding of the separation agreement. Although she acknowledged understanding that she would receive certain property under the agreement, plaintiff also testified that \u201cI read [the agreement], but I didn\u2019t understand it\u201d; that she \u201cdidn\u2019t understand\u201d the waiver of an alimony claim; that she believed she would inherit half of her husband\u2019s estate in addition to the property in the agreement; that she did not understand the meaning of the word \u2018contend\u2019 or what a \u201cdomestic violence proceeding\u201d was; and that she believed the separation was only temporary. She also testified that she left school after the seventh grade, never had a personal bank account or a joint account during her marriage, and had not applied for social security benefits for certain physical conditions because she \u201cdidn\u2019t want to admit that I\u2019m disabled.\u201d\nWe recognize that other evidence in the record, that plaintiff engaged in several transactions involving property transferred pursuant to the separation agreement, was certainly sufficient to raise the defense of ratification. However, for the trial court to determine that ratification had been conclusively established as a matter of law, it necessarily must have weighed the strength and credibility of defendant\u2019s evidence regarding those transactions against plaintiff\u2019s testimony and Dr. Sultan\u2019s affidavit, indicating that plaintiff acted under ongoing duress, and did not have a \u201cfull understanding\u201d of the separation agreement. Yet, \u201c[i]t is for the trier of fact to resolve issues of credibility and to determine the relative strength of competing evidence.\u201d Upchurch v. Upchurch, 128 N.C. App. 461, 464, 495 S.E.2d 738, 740, disc. review denied, 348 N.C. 291, 501 S.E.2d 925 (1998).\nWe conclude that the evidence raised genuine issues of material fact regarding duress, and plaintiff\u2019s understanding of the separation agreement, thus calling into question her ability to ratify it. Accordingly, the trial court\u2019s grant of summary judgment is\nReversed.\nJudge GREENE dissents.\nJudge HUDSON concurs.",
        "type": "majority",
        "author": "BIGGS, Judge."
      },
      {
        "text": "GREENE, Judge,\ndissenting.\nBecause I do not believe a genuine issue of fact exists with respect to plaintiff\u2019s ratification of the agreement, I dissent.\nRatification\nDefendant contends that because plaintiff accepted all the benefits under the agreement and was not under duress at the time she accepted those benefits, she ratified the agreement and cannot now challenge it. I agree.\nDuress occurs when a party is induced to perform or forego some act under circumstances depriving her of the exercise of her free will. Link v. Link, 278 N.C. 181, 194, 179 S.E.2d 697, 704-05 (1971). A separation agreement executed while a party is acting under duress is invalid and can be set aside. Cox v. Cox, 75 N.C. App. 354, 356, 330 S.E.2d 506, 508 (1985). An agreement, however, even if procured by duress, \u201cmay be ratified by the victim so as to preclude a subsequent suit to set [it] aside.\u201d Link, 278 N.C. at 197, 179 S.E.2d at 706. A party ratifies an agreement by retroactively \u201cauthorizing] or otherwise approving] [it], . . . either expressly or by implication.\u201d Black's Law Dictionary 1262 (6th ed. 1990). Thus, ratification can occur where a party accepts benefits and performs under an agreement. See Lowry v. Lowry, 99 N.C. App. 246, 254, 393 S.E.2d 141, 146 (1990) (wife ratified agreement by signing it, incorporating it into consent judgment, and receiving benefits for three years); see also Hill v. Hill, 94 N.C. App. 474, 479, 380 S.E.2d 540, 544 (1989) (wife ratified agreement by monthly accepting from the husband $1,000.00 and other benefits under an agreement even after she became aware of alleged wrongdoing); Ridings v. Ridings, 55 N.C. App. 630, 632-33, 286 S.E.2d 614, 616 (husband ratified agreement by paying alimony for four months and accepting title and possession of property transferred under an agreement), disc. review denied, 305 N.C. 586, 292 S.E.2d 571 (1982). The act only constitutes ratification if it is done with full knowledge that the acceptance of benefits or the performance arises pursuant to the agreement and is done so without any duress. See Link, 278 N.C. at 197, 179 S.E.2d at 706-07; see also Housing, Inc. v. Weaver, 37 N.C. App. 284, 300, 246 S.E.2d 219, 228 (1978) (there can be no ratification so long as the duress continues), aff'd, 296 N.C. 581, 251 S.E.2d 457 (1979).\nA\nFull Knowledge\nIn this case, viewing the evidence in the light most favorable to plaintiff, plaintiff was aware that the $160,000.00, the various tracts of land, and the truck, all of which she used, were benefits she received under the agreement. Immediately after receiving a check in the amount of $160,000.00 directly from defendant\u2019s firm, plaintiff negotiated the check and invested it into mutual funds. With respect to the various tracts of land she has leased or otherwise encumbered, plaintiff testified in her deposition that she was aware she would be receiving those pursuant to the agreement. There is no evidence in the record that at the time plaintiff encumbered those tracts, she was unaware she possessed them by reason of the agreement. Plaintiff has failed to come forward with any evidence or specific facts showing she did not have full knowledge that the benefits she acquired were by virtue of the agreement. Indeed, the evidence shows plaintiff was using the $160,000.00 and the tracts of land with full knowledge they were benefits arising under the agreement. While the majority states plaintiff did not understand the agreement, plaintiff testified in her deposition that: she understood what Goodwin meant when he told her he would not pay her alimony; she understood she could have taken the agreement to an attorney for review prior to signing it; and she understood everything she would be receiving and forfeiting under the agreement. Accordingly, I do not believe that Dr. Sultan\u2019s affidavit, in light of plaintiff\u2019s deposition testimony, creates a genuine issue of fact as to whether plaintiff acted with full knowledge. See Mortgage Co. v. Real Estate, Inc., 39 N.C. App. 1, 9, 249 S.E.2d 727, 732 (1978) (a party cannot file an affidavit contradicting her prior sworn statement in order to create a genuine issue of fact for trial), aff'd, 297 N.C. 696, 256 S.E.2d 688 (1979).\nB\nDuress\nPlaintiff next argues that even if she acted with full knowledge, she was under duress at the time she accepted the benefits under the agreement. I disagree.\nIn this case, there is no evidence plaintiff accepted the benefits of the agreement while acting under duress. Plaintiff willingly accepted and negotiated the check in the amount of $160,000.00 and encumbered some of the property acquired under the agreement by using it to secure loans. All of this occurred without any threat or coercion from Goodwin. Even more notable is the fact that after Goodwin\u2019s death plaintiff began renting the 117-acre farm, continued to lease the Faulkner tract and the office building, and had the marital home and the 117-acre farm appraised to purchase a home for her daughter. Thus, even if I were to assume plaintiff may have acted under duress at the time she signed the agreement and up until Goodwin\u2019s death, there is no evidence in the record to this Court supporting plaintiff\u2019s duress after Goodwin\u2019s death. Accordingly, I do not believe there is a genuine issue of fact as to whether plaintiff acted under duress while accepting the benefits and performing under the agreement. Therefore, because plaintiff accepted the benefits under the agreement with full knowledge and without duress, she ratified the agreement and thus is precluded from challenging it. I would affirm the trial court\u2019s order.\n. I note the affidavits of plaintiff and Dr. Sultan state that plaintiff was afraid to contest the agreement up until Goodwin\u2019s death. Plaintiff, in her own deposition, however, stated she told Goodwin she would contest the agreement, she met with a lawyer concerning contesting the agreement, and was in the process of filing a lawsuit to contest the agreement at the time Goodwin died; hence there is no evidence whatsoever that plaintiff was coerced into accepting and using the benefits of the agreement.",
        "type": "dissent",
        "author": "GREENE, Judge,"
      }
    ],
    "attorneys": [
      "Baucom, Clay tor, Benton, Morgan & Wood, P.A., by Rex C. Morgan, for plaintiff-appellant.",
      "Etheridge, Moser, Gamer, Bruner & Wansker, P.A., by Terry R. Gamer, for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "KATHY F. GOODWIN, Plaintiff-appellant v. WILLIAM R. WEBB, JR., as Executor of the Estate of Claudius Kress Goodwin, Deceased, Defendant-appellee\nNo. COA01-1063\n(Filed 3 September 2002)\nDivorce\u2014 separation agreement \u2014 ratification\nThe trial court erred by granting summary judgment for defendant as to plaintiff\u2019s ratification of a separation agreement where there was evidence from which a jury could find that plaintiff signed the agreement under duress which continued until her husband\u2019s death, an affidavit from a psychologist could lead to the conclusion that plaintiff lacked full understanding of the agreement and was thus incapable of ratifying it, and plaintiff\u2019s deposition testimony was equivocal regarding her understanding of the agreement.\nJudge Greene dissenting.\nAppeal by plaintiff from order entered 4 June 2001 by Judge C. Preston Cornelius in Anson County Superior Court. Heard in the Court of Appeals 4 June 2002.\nBaucom, Clay tor, Benton, Morgan & Wood, P.A., by Rex C. Morgan, for plaintiff-appellant.\nEtheridge, Moser, Gamer, Bruner & Wansker, P.A., by Terry R. Gamer, for defendant-appellee."
  },
  "file_name": "0650-01",
  "first_page_order": 678,
  "last_page_order": 686
}
