{ "id": 8234535, "name": "ESTATE OF MONROE M. REDDEN, JR. deceased, by E.K. MORLEY, ADMINISTRATOR CTA, Plaintiff v. BARBARA JEAN REDDEN, Defendant", "name_abbreviation": "Estate of Redden v. Redden", "decision_date": "2006-08-01", "docket_number": "No. COA05-1202", "first_page": "113", "last_page": "120", "citations": [ { "type": "official", "cite": "179 N.C. App. 113" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "624 S.E.2d 401", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634839 ], "year": 2006, "pin_cites": [ { "page": "406", "parenthetical": "\"Accordingly, the trial court properly granted the motion for summary judgment where no admissible materials were produced to show that there was a genuine issue of material fact.\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/624/0401-01" ] }, { "cite": "619 S.E.2d 502", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633957, 12633958, 12633959 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/619/0502-01", "/se2d/619/0502-02", "/se2d/619/0502-03" ] }, { "cite": "N.C. Gen. Stat. \u00a7 53-146.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2005, "pin_cites": [ { "page": "(a)(6)" }, { "page": "(a)(6)" } ], "opinion_index": 0 }, { "cite": "533 S.E.2d 466", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "350 N.C. 96", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132166, 132135, 132142, 132120, 132316 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/350/0096-03", "/nc/350/0096-04", "/nc/350/0096-05", "/nc/350/0096-01", "/nc/350/0096-02" ] }, { "cite": "509 S.E.2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1998, "pin_cites": [ { "page": "246" }, { "page": "246" }, { "page": "246", "parenthetical": "holding that the settlor of a POD account retains \"total control\" over the account with the result that \"it is fully reachable by creditors\" of the settlor" } ], "opinion_index": 0 }, { "cite": "131 N.C. App. 818", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11206134 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "824" }, { "page": "825" } ], "opinion_index": 0, "case_paths": [ "/nc-app/131/0818-01" ] }, { "cite": "175 N.C. App. 535", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8352632 ], "year": 2006, "pin_cites": [ { "page": "542", "parenthetical": "\"Accordingly, the trial court properly granted the motion for summary judgment where no admissible materials were produced to show that there was a genuine issue of material fact.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/175/0535-01" ] }, { "cite": "278 S.E.2d 501", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "506" } ], "opinion_index": 0 }, { "cite": "303 N.C. 256", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572768 ], "year": 1981, "pin_cites": [ { "page": "264" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0256-01" ] }, { "cite": "331 S.E.2d 703", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "704", "parenthetical": "quoting Spinks v. Taylor, 303 N.C. 256, 264, 278 S.E.2d 501, 506 (1981)" } ], "opinion_index": 0 }, { "cite": "76 N.C. App. 127", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526749 ], "year": 1985, "pin_cites": [ { "page": "129", "parenthetical": "quoting Spinks v. Taylor, 303 N.C. 256, 264, 278 S.E.2d 501, 506 (1981)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/76/0127-01" ] }, { "cite": "597 S.E.2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "694" }, { "page": "693" } ], "opinion_index": 0 }, { "cite": "358 N.C. 440", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986682 ], "year": 2004, "pin_cites": [ { "page": "471" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0440-01" ] }, { "cite": "586 S.E.2d 247", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "249" } ], "opinion_index": 0 }, { "cite": "357 N.C. 492", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491872 ], "year": 2003, "pin_cites": [ { "page": "496" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0492-01" ] }, { "cite": "373 S.E.2d 152", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "153", "parenthetical": "\"Although the trial court's judgment did not dispose of all claims between all parties and did not provide that there was no just reason for delay, N.C. Gen. Stat. \u00a7 1A-1, Rule 54(b" } ], "opinion_index": 0 }, { "cite": "91 N.C. App. 730", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526533 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "731-32", "parenthetical": "\"Although the trial court's judgment did not dispose of all claims between all parties and did not provide that there was no just reason for delay, N.C. Gen. Stat. \u00a7 1A-1, Rule 54(b" } ], "opinion_index": 0, "case_paths": [ "/nc-app/91/0730-01" ] }, { "cite": "243 S.E.2d 414", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "416", "parenthetical": "interlocutory appeal allowed when a judgment for commissions \"appear[s] to contemplate that defendant must make immediate payment to plaintiff of a substantial sum of money . . . .\"" } ], "opinion_index": 0 }, { "cite": "36 N.C. App. 218", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552327 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "220", "parenthetical": "interlocutory appeal allowed when a judgment for commissions \"appear[s] to contemplate that defendant must make immediate payment to plaintiff of a substantial sum of money . . . .\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/36/0218-01" ] }, { "cite": "225 S.E.2d 797", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "805", "parenthetical": "quoting Webster's Third New International Dictionary at 2280 (1971)" } ], "opinion_index": 0 }, { "cite": "290 N.C. 118", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560682 ], "year": 1976, "pin_cites": [ { "page": "130", "parenthetical": "quoting Webster's Third New International Dictionary at 2280 (1971)" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0118-01" ] }, { "cite": "392 S.E.2d 735", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "736" } ], "opinion_index": 0 }, { "cite": "326 N.C. 723", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5307026 ], "year": 1990, "pin_cites": [ { "page": "726" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0723-01" ] }, { "cite": "215 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "287 N.C. 448", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563081 ], "year": 1975, "pin_cites": [ { "page": "453" } ], "opinion_index": 0, "case_paths": [ "/nc/287/0448-01" ] }, { "cite": "232 S.E.2d 667", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1977, "pin_cites": [ { "page": "672", "parenthetical": "quoting Stanback v. Stanback, 287 N.C. 448, 453, 215 S.E.2d 30 (1975)" }, { "page": "671", "parenthetical": "\"[i]t is equally clear that the entry of the judgment that the plaintiff have and recover of Housing, Inc., $204,603.55 affects a substantial right of Housing, Inc.\"" } ], "opinion_index": 0 }, { "cite": "292 N.C. 93", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567512 ], "weight": 4, "year": 1977, "pin_cites": [ { "page": "100", "parenthetical": "quoting Stanback v. Stanback, 287 N.C. 448, 453, 215 S.E.2d 30 (1975)" }, { "page": "99", "parenthetical": "\"[i]t is equally clear that the entry of the judgment that the plaintiff have and recover of Housing, Inc., $204,603.55 affects a substantial right of Housing, Inc.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0093-01" ] }, { "cite": "270 S.E.2d 431", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "433-34" } ], "opinion_index": 0 }, { "cite": "301 N.C. 205", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564716 ], "year": 1980, "pin_cites": [ { "page": "209" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0205-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-277", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2005, "opinion_index": 0 }, { "cite": "564 S.E.2d 245", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "247", "parenthetical": "\"A final judgment is one that determines the entire controversy between the parties, leaving nothing to be decided in the trial court.\"" } ], "opinion_index": 0 }, { "cite": "150 N.C. App. 197", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9080608 ], "year": 2002, "pin_cites": [ { "page": "199", "parenthetical": "\"A final judgment is one that determines the entire controversy between the parties, leaving nothing to be decided in the trial court.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/150/0197-01" ] }, { "cite": "360 N.C. 53", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3788265 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/360/0053-01" ] }, { "cite": "608 S.E.2d 336", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2005, "pin_cites": [ { "page": "338", "parenthetical": "the order granting partial summary judgment is interlocutory" }, { "page": "338" }, { "page": "338", "parenthetical": "\"it is the appellant's burden to present appropriate grounds for this Court's acceptance of an interlocutory appeal, . . . and not the duty of this Court to construct arguments for or find support for appellant's right to appeal\"" } ], "opinion_index": 0 }, { "cite": "168 N.C. App. 515", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8470441 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "518", "parenthetical": "the order granting partial summary judgment is interlocutory" }, { "page": "518" }, { "page": "518" } ], "opinion_index": 0, "case_paths": [ "/nc-app/168/0515-01" ] } ], "analysis": { "cardinality": 802, "char_count": 18039, "ocr_confidence": 0.756, "pagerank": { "raw": 3.8775210508444106e-07, "percentile": 0.9007573414511811 }, "sha256": "dfec13aefc0f7ac1c4e50f4547c7718157fb00da1a96bb31a80012f085a83ad6", "simhash": "1:db994d6d84bb4a37", "word_count": 2904 }, "last_updated": "2023-07-14T22:27:33.869735+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TYSON and GEER concur." ], "parties": [ "ESTATE OF MONROE M. REDDEN, JR. deceased, by E.K. MORLEY, ADMINISTRATOR CTA, Plaintiff v. BARBARA JEAN REDDEN, Defendant" ], "opinions": [ { "text": "JACKSON, Judge.\nBarbara Jean Redden (\u201cdefendant\u201d) appeals from the trial court\u2019s order, entered 27 June 2005, granting partial summary judgment in favor of the Estate of Monroe M. Redden, Jr. (\u201cplaintiff\u201d), and ordering defendant to pay plaintiff the sum of one-hundred-fifty thousand dollars ($150,000.00) and costs.\nRecord evidence establishes the following: Monroe M. Redden Jr. (\u201cdecedent\u201d) maintained various bank accounts at First Union National Bank, including money market account number 1010044300784 (\u201cAccount 784\u201d) that was held only in decedent\u2019s name. In June 2000, decedent executed a Power of Attorney in favor of defendant, decedent\u2019s wife. On 16 May 2001, decedent designated defendant as the payable-on-death beneficiary (\u201cPOD beneficiary\u201d) of Account 784. Decedent never revoked or changed the POD beneficiary designation in favor of defendant on Account 784.\nIn September 2001, decedent was admitted to the hospital for health problems that eventually led to his death on 11 January 2002. On 21 September 2001, defendant established a bank account in her name only at First Union National Bank, account number 1010052958801 (\u201cAccount 801\u201d). Also on the same day, defendant used her power of attorney to transfer $237,778.71 from Account 784 to Account 801. Defendant testified in her deposition that decedent had instructed her to transfer $237,778.71 from Account 784 to Account 801 in order for defendant to proceed with office work on decedent\u2019s behalf. Defendant stated that although decedent did not reduce his instructions to writing, he communicated his intention to her verbally. Subsequently, between 21 September 2001 and decedent\u2019s death on 11 January 2002, defendant returned approximately $87,000.00 from her Account 801 to a separate account held solely in decedent\u2019s name. On the date of defendant\u2019s deposition, she stated that Account 801 had been closed since the money ran out, but she did not provide a specific date on which the account had closed or any accounting of the money.\nOn 20 October 2003, the clerk of Henderson County Superior Court admitted for probate decedent\u2019s Last Will and Testament. On 30 October 2003, the clerk issued letters of Administration CTA to E.K. Morley (\u201cthe Administrator\u201d). On 12 February 2004, plaintiff filed a complaint on behalf of the Estate of Monroe M. Redden, Jr. against defendant. The complaint alleged that defendant had committed conversion, constructive fraud, and breach of fiduciary duty in connection with certain banking transactions.\nOn 16 April 2004, defendant filed her answer and counterclaim.On 4 May 2004, plaintiff filed a reply to defendant\u2019s counterclaim.\nOn 20 September 2004, plaintiff filed a motion for partial summary judgment alleging that there was no genuine issue of material fact relating to the ownership of $237,778.71 taken by defendant from Account 784 on 21 September 2001. In support of the motion, plaintiff offered defendant\u2019s deposition that she transferred $237,778.71 from Account 784 to Account 801. After a hearing on the motion, on 27 June 2005, the trial court entered partial summary judgment in favor of plaintiff and ordered defendant to pay plaintiff the sum of $150,000.00 plus costs. Defendant appeals to this Court.\nBecause the trial court granted only partial summary judgment, its order did not dispose of the entire case, and the appeal is interlocutory. Johnson v. Lucas, 168 N.C. App. 515, 518, 608 S.E.2d 336, 338 (2005) (the order granting partial summary judgment is interlocutory), aff\u2019d, 360 N.C. 53, 619 S.E.2d 502 (2005); see Ratchford v. C.C. Mangum, Inc., 150 N.C. App. 197, 199, 564 S.E.2d 245, 247 (2002) (\u201cA final judgment is one that determines the entire controversy between the parties, leaving nothing to be decided in the trial court.\u201d). An interlocutory order may be appealed immediately if: (1) it is final to a party or issue and the trial court certifies it for appeal under N.C. Gen. Stat. \u00a7 1A-1, Rule 54(b), or (2) it affects a substantial right of the parties. N.C. Gen. Stat. \u00a7 1-277 (2005); Bailey v. Gooding, 301 N.C. 205, 209, 270 S.E.2d 431, 433-34 (1980). Here, the trial court did not certify the partial summary judgment order for appeal pursuant to North Carolina General Statutes, Section 1A-1, Rule 54(b).\n\u201c \u2018Ordinarily, an appeal from an interlocutory order will be dismissed as fragmentary and premature unless the order affects some substantial right and will work injury to appellant if not corrected before appeal from final judgment.\u2019 \u201d Wachovia Realty Inv. v. Housing, Inc., 292 N.C. 93, 100, 232 S.E.2d 667, 672 (1977) (quoting Stanback v. Stanback, 287 N.C. 448, 453, 215 S.E.2d 30 (1975)). Appellants bear the burden of showing that the appeal is proper. Johnson, 168 N.C. App. at 518, 608 S.E.2d at 338. When an appeal is interlocutory, the appellant must include in its statement of grounds for appellate review \u201csufficient facts and argument to support appellate review on the ground that the challenged order affects a substantial right.\u201d N.C. R. App. R, Rule 28(b)(4) (2006). In addition, appellant must carry the burden of showing to this Court why the appeal affects a substantial right. Johnson, 168 N.C. App. at 518, 608 S.E.2d at 338 (\u201cit is the appellant\u2019s burden to present appropriate grounds for this Court\u2019s acceptance of an interlocutory appeal, . . . and not the duty of this Court to construct arguments for or find support for appellant\u2019s right to appeal\u201d). \u201cWhere the appellant fails to carry the burden of making such a showing to the court, the appeal will be dismissed.\u201d Id.\nIn determining whether a substantial right is affected a two-part test has developed \u2014 \u201cthe right itself must be substantial and the deprivation of that substantial right must potentially work injury to [appellant] if not corrected before appeal from final judgment.\u201d Goldston v. American Motors Corp., 326 N.C. 723, 726, 392 S.E.2d 735, 736 (1990). A substantial right is a \u201c \u2018legal right affecting or involving a matter of substance as distinguished from matters of form: a right materially affecting those interests which a man is entitled to have preserved and protected by law: a material right.\u2019 \u201d Oestreicher v. American Nat\u2019l Stores, Inc., 290 N.C. 118, 130, 225 S.E.2d 797, 805 (1976) (quoting Webster\u2019s Third New International Dictionary at 2280 (1971)).\nHere, defendant asserts in her statement of grounds for appellate review that:\nThis appeal is taken from the Order, entered June 27, 2005, granting the Plaintiff partial summary judgment and ordering Defendant Barbara Redden \u201cto pay to the Estate of MONROE M. REDDEN, JR., deceased, the sum of one hundred fifty thousand dollars ($150,000.00) and costs.\u201d The Order appealed affects a substantial right of Defendant Barbara Redden by ordering her to make immediate payment of a significant amount of money; therefore, this Court has jurisdiction over the Defendant\u2019s appeal pursuant to N.C. Gen. Stat. \u00a7 1-277 and N.C. Gen. Stat. \u00a7 7A-27(d). Wachovia Realty Investments v. Housing, Inc., 292 N.C. 93, 232 S.E.2d 667 (1977); Beck v. Am. Bankers Life Assurance Co., 36 N.C. App. 218, 243 S.E.2d 414 (1978); Atkins v. Mitchell, 91 N.C. App. 730, 373 S.E.2d 152 (1988).\nDefendant has sufficiently established, under the controlling authority, that the order below affects a substantial right and that interlocutory review is, therefore, appropriate. Defendant has identified the basis for jurisdiction over this interlocutory appeal \u2014 a substantial right \u2014 and specified the controlling statutory and case law authority. See Wachovia Realty, 292 N.C. 93, 99, 232 S.E.2d 667, 671 (1977) (\u201c[i]t is equally clear that the entry of the judgment that the plaintiff have and recover of Housing, Inc., $204,603.55 affects a substantial right of Housing, Inc.\u201d); Atkins v. Mitchell, 91 N.C. App. 730, 731-32, 373 S.E.2d 152, 153 (1988) (\u201cAlthough the trial court\u2019s judgment did not dispose of all claims between all parties and did not provide that there was no just reason for delay, N.C. Gen. Stat. \u00a7 1A-1, Rule 54(b) of the Rules of Civil Procedure, the entry of a money judgment against defendant involves a substantial right under N.C. Gen. Stat. \u00a7\u00a7 l-277(a) (1983) and 7A-27(d)(l) (1986) entitling defendant to appeal.\u201d) (citing Wachovia Realty Invs. v. Housing, Inc., 292 N.C. 93, 232 S.E.2d 667 (1977)); Beck v. American Bankers Life Assurance Co., 36 N.C. App. 218, 220, 243 S.E.2d 414, 416 (1978) (interlocutory appeal allowed when a judgment for commissions \u201cappear[s] to contemplate that defendant must make immediate payment to plaintiff of a substantial sum of money . . . .\u201d). Therefore, we may allow this appeal and determine whether the trial court erred in granting summary judgment in favor of plaintiff, and holding that defendant must pay plaintiff the sum of $150,000.00.\nSummary judgment is appropriate \u201cif the 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 judgment as a matter of law.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (2005). In deciding a motion for summary judgment, a trial court must consider the evidence in the light most favorable to the non-moving party. See Summey v. Barker, 357 N.C. 492, 496, 586 S.E.2d 247, 249 (2003). If there is any evidence of a genuine issue of material fact, a motion for summary judgment should be denied. Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 471, 597 S.E.2d 674, 694 (2004). We review an order allowing summary judgment de novo. Id. at 470, 597 S.E.2d at 693.\nOn appeal, defendant contends that genuine issues of material fact exist as to whether: (1) decedent directed and authorized the transfer of $237,778.71 from the deceased\u2019s account to defendant\u2019s account; (2) the estate ratified that transfer by accepting the benefits of the transfer; and (3) defendant\u2019s transfer of the funds constituted a revocation of the trust imposed on the deceased\u2019s account.\nPlaintiff has asserted a claim for conversion. Conversion is \u201c \u2018the unauthorized assumption and exercise of the right of ownership over the goods or personal chattels belonging to another, to the alteration of their condition or the exclusion of an owner\u2019s rights.\u2019 \u201d White v. White, 76 N.C. App. 127, 129, 331 S.E.2d 703, 704 (1985) (quoting Spinks v. Taylor, 303 N.C. 256, 264, 278 S.E.2d 501, 506 (1981)). For the reasons stated below, we hold that no issue of fact exists as to defendant\u2019s liability for conversion of the funds in the POD account.\nDefendant acknowledges that Rule 601 of the Rules of Evidence, North Carolina\u2019s Dead Man\u2019s Statute, precludes the admission of any testimony by defendant regarding oral communications of the deceased. Defendant argues, however, that defendant\u2019s testimony in her deposition suggesting that the decedent had orally directed defendant to use her power of attorney to transfer the funds creates an issue of fact. Defendant contends that this testimony is admissible because plaintiff\u2019s counsel, who was taking the discovery deposition, did not object to or move to strike the testimony. Pursuant to North Carolina Rule of Civil Procedure 32(d)(3)(a), however, plaintiff\u2019s counsel was not required to make the objection at the deposition: \u201cObjections to . . . the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time.\u201d Since an objection based on Rule 601 would not \u201chave been obviated or removed if presented\u201d during the deposition, plaintiff has not waived the objection by failing to make it at the deposition.\nDefendant has made no argument and cited no authority other than this waiver argument that would support admission of her testimony regarding decedent\u2019s oral directions. Since defendant has not established the admissibility of this evidence pursuant to Rule 601(c), she cannot defeat plaintiff\u2019s motion for partial summary judgment. See Van Reypen Assocs., Inc. v. Teeter, 175 N.C. App. 535, 542, 624 S.E.2d 401, 406 (2006) (\u201cAccordingly, the trial court properly granted the motion for summary judgment where no admissible materials were produced to show that there was a genuine issue of material fact.\u201d).\nDefendant\u2019s final two arguments assume that plaintiff is not entitled to recover unless defendant\u2019s transfer of funds constituted a revocation of the trust arising from the payable on death account (\u201cthe POD account\u201d) established pursuant to North Carolina General Statutes, Section 53-146.2 (2005). This assumption is incorrect. An account established pursuant to North Carolina General Statutes, Section 53-146.2 \u201cis a tentative trust, better known as a \u2018Totten Trust.\u2019 \u201d Jimenez v. Brown, 131 N.C. App. 818, 824, 509 S.E.2d 241, 246 (1998), disc. review denied, 350 N.C. 96, 533 S.E.2d 466 (1999). \u201cWith this type of account the depositor retains complete control over the funds until his death, the trust is fully revocable, and is revoked in part each time the settlor withdraws funds from the account. Id. at 824-25, 509 S.E.2d at 246.\nIt is undisputed that the deceased was the sole owner of the POD account and that defendant was merely the designated beneficiary of the account. North Carolina General Statutes, Section 53-146.2(a)(6) provides: \u201cPrior to the death of the last surviving owner, no beneficiary shall have any ownership interest in a Payable on Death account.\u201d N.C. Gen. Stat. \u00a7 53-146.2(a)(6) (2005). Instead, \u201c[f]unds in a Payable on Death account established pursuant to this subsection shall belong to the beneficiary or beneficiaries upon the death of the last surviving owner . . . .\u201d N.C. Gen. Stat. \u00a7 53-146.2(a)(6). Accordingly, since the transfer took place while the deceased was still alive, defendant had no ownership interest in the funds in the POD account at the time that she transferred the funds. See Jimenez, 131 N.C. App. at 825, 509 S.E.2d at 246 (holding that the settlor of a POD account retains \u201ctotal control\u201d over the account with the result that \u201cit is fully reachable by creditors\u201d of the settlor).\nThe evidence is undisputed that defendant transferred the funds into an account in which she retained sole ownership and then spent $150,778.71 of those funds. In other words, she exercised the right of ownership over the funds. It also is undisputed that defendant\u2019s power of attorney only authorized her to make gifts to herself in an amount not to exceed $10,000.00. Finally, defendant has pointed to no admissible evidence that her transfer and expenditure of the funds in excess of $10,000.00 was authorized by the deceased, the owner of the funds. Accordingly, the trial court properly entered partial summary judgment against defendant on the claim of conversion with respect to the POD account.\nWe, however, remand for further proceedings regarding the amount of damages. The trial court\u2019s order does not explain the basis for awarding the flat amount of $150,000.00 when the evidence seems to suggest that the missing amount was $778.71 greater. Further, the parties appear to agree that defendant was authorized to make a gift to herself of $10,000.00, which would seem to support damages of $140,778.71. Because the parties have not fully addressed this issue on appeal, we remand to the trial court to revisit the issue of damages.\nAFFIRMED IN PART; REVERSED AND REMANDED IN PART.\nJudges TYSON and GEER concur.", "type": "majority", "author": "JACKSON, Judge." } ], "attorneys": [ "Law Offices of E.K. Morley, by E.K. Morley, for plaintiff-appellee.", "Long, Parker, Warren & Jones, P.A., by Philip S. Anderson, for defendant-appellant." ], "corrections": "", "head_matter": "ESTATE OF MONROE M. REDDEN, JR. deceased, by E.K. MORLEY, ADMINISTRATOR CTA, Plaintiff v. BARBARA JEAN REDDEN, Defendant\nNo. COA05-1202\n(Filed 1 August 2006)\n1. Appeal and Error\u2014 appealability \u2014 partial summary judgment \u2014 immediate payment of subst\u00e1ntial sum of money\u2014 substantial right\nAlthough defendant\u2019s appeal from the trial court\u2019s grant of partial summary judgment is generally an appeal from an interlocutory order, this appeal is immediately appealable because the entry of a money judgment against defendant involves a substantial right when defendant must make immediate payment of a substantial sum of money.\n2. Conversion\u2014 payable-on-death account \u2014 summary judgment\nThe trial court did not err by granting partial summary judgment in favor of plaintiff estate on a conversion claim, because: (1) no issue of fact exists as to defendant\u2019s liability for conversion of the funds in a payable-on-death (POD) account, and plaintiff has not waived the objection to defendant\u2019s testimony regarding oral communications of the deceased based on the Dead Man\u2019s Statute under N.C.G.S. \u00a7 8C-1, Rule 601 by failing to make it at the deposition since the objection would not have been obviated or removed if presented during the deposition; (2) the deceased was the sole owner of the POD account, defendant was merely the designated beneficiary of the account, and defendant has no ownership interest in the funds in the POD account at the time she transferred the funds since it took place while the deceased was still alive; and (3) defendant has pointed to no admissible evidence that her transfer and expenditure of the funds in excess of $10,000 was authorized by the deceased who was the owner of the funds.\n3. Damages and Remedies\u2014 amount of damages \u2014 gift\nThe trial court\u2019s order awarding the flat amount of $150,000 for damages is reversed and remanded for further proceedings regarding the amount of the award, because: (1) the evidence seems to suggest that the missing amount was $778.71 greater; and (2) the parties appear to agree that defendant was authorized to make a gift to herself of $10,000 which would seem to support damages of $140,778.71.\nAppeal by defendant from order entered 27 June 2005 by Judge Laura J. Bridges in Henderson County Superior Court. Heard in the Court of Appeals 29 March 2006.\nLaw Offices of E.K. Morley, by E.K. Morley, for plaintiff-appellee.\nLong, Parker, Warren & Jones, P.A., by Philip S. Anderson, for defendant-appellant." }, "file_name": "0113-01", "first_page_order": 145, "last_page_order": 152 }