{ "id": 4162614, "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": "2009-01-06", "docket_number": "No. COA05-1202-2", "first_page": "806", "last_page": "811", "citations": [ { "type": "official", "cite": "194 N.C. App. 806" } ], "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": "632 S.E.2d 794", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636399 ], "year": 2006, "opinion_index": -1, "case_paths": [ "/se2d/632/0794-01" ] }, { "cite": "179 N.C. App. 113", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8234535 ], "year": 2006, "opinion_index": -1, "case_paths": [ "/nc-app/179/0113-01" ] }, { "cite": "632 S.E.2d 794", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636399 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "799" } ], "opinion_index": 0, "case_paths": [ "/se2d/632/0794-01" ] }, { "cite": "180 S.E.2d 111", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "114-15", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "278 N.C. 497", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560771 ], "year": 1971, "pin_cites": [ { "page": "502", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/278/0497-01" ] }, { "cite": "161 S.E.2d 630", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "632" } ], "opinion_index": 0 }, { "cite": "1 N.C. App. 387", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553113 ], "year": 1968, "pin_cites": [ { "page": "390" } ], "opinion_index": 0, "case_paths": [ "/nc-app/1/0387-01" ] }, { "cite": "272 S.E.2d 911", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "50 N.C. App. 112", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2677519 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/50/0112-01" ] }, { "cite": "553 S.E.2d 101", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "102", "parenthetical": "citing Tucker v. Telephone Co., 50 N.C. App. 112, 272 S.E.2d 911 (1980)" } ], "opinion_index": 0 }, { "cite": "146 N.C. App. 600", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11361641 ], "year": 2001, "pin_cites": [ { "page": "603", "parenthetical": "citing Tucker v. Telephone Co., 50 N.C. App. 112, 272 S.E.2d 911 (1980)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/146/0600-01" ] }, { "cite": "295 S.E.2d 764", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "306 N.C. 752", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574939, 8574900, 8574909, 8574924 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/306/0752-04", "/nc/306/0752-01", "/nc/306/0752-02", "/nc/306/0752-03" ] }, { "cite": "294 S.E.2d 230", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1982, "pin_cites": [ { "page": "231", "parenthetical": "holding that party waived protection of the Dead Man's Statute by eliciting incompetent evidence through interrogatories" }, { "page": "231" } ], "opinion_index": 0 }, { "cite": "58 N.C. App. 624", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525842 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc-app/58/0624-01" ] }, { "cite": "313 S.E.2d 917", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "919" } ], "opinion_index": 0 }, { "cite": "67 N.C. App. 735", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527195 ], "year": 1984, "pin_cites": [ { "page": "737" } ], "opinion_index": 0, "case_paths": [ "/nc-app/67/0735-01" ] }, { "cite": "131 S.E.2d 456", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "pin_cites": [ { "page": "462" } ], "opinion_index": 0 }, { "cite": "259 N.C. 520", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561317 ], "year": 1963, "pin_cites": [ { "page": "528" } ], "opinion_index": 0, "case_paths": [ "/nc/259/0520-01" ] }, { "cite": "360 S.E.2d 801", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "parenthetical": "citing Godwin v. Trust Co., 259 N.C. 520, 528, 131 S.E.2d 456, 462 (1963)" } ], "opinion_index": 0 }, { "cite": "320 N.C. 738", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4727132 ], "year": 1987, "pin_cites": [ { "parenthetical": "citing Godwin v. Trust Co., 259 N.C. 520, 528, 131 S.E.2d 456, 462 (1963)" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0738-01" ] }, { "cite": "353 S.E.2d 643", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "650-51", "parenthetical": "citing Godwin v. Trust Co., 259 N.C. 520, 528, 131 S.E.2d 456, 462 (1963)" } ], "opinion_index": 0 }, { "cite": "84 N.C. App. 585", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169021 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "595", "parenthetical": "citing Godwin v. Trust Co., 259 N.C. 520, 528, 131 S.E.2d 456, 462 (1963)" }, { "page": "595" } ], "opinion_index": 0, "case_paths": [ "/nc-app/84/0585-01" ] }, { "cite": "179 N.C. App. 113", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8234535 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "118" } ], "opinion_index": 0, "case_paths": [ "/nc-app/179/0113-01" ] } ], "analysis": { "cardinality": 567, "char_count": 10267, "ocr_confidence": 0.757, "pagerank": { "raw": 7.317852702137001e-08, "percentile": 0.4376610373809438 }, "sha256": "82751a535b8762a68ab8c059d84bf27e7ca5a3d32e4759c5be67ba1f5bb2affc", "simhash": "1:e7be4470343eae63", "word_count": 1681 }, "last_updated": "2023-07-14T16:50:43.594733+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TYSON and GEER concur.", "Judge TYSON concurred in this opinion prior to 31 December 2008." ], "parties": [ "ESTATE OF MONROE M. REDDEN, JR. deceased, by E.K. MORLEY, ADMINISTRATOR CTA, Plaintiff v. BARBARA JEAN REDDEN, Defendant" ], "opinions": [ { "text": "JACKSON, Judge.\nThis case is heard on remand from the Supreme Court. A more complete recitation of the facts may be found in the original opinion, Estate of Redden v. Redden, 179 N.C. App. 113, 632 S.E.2d 794 (2006); however, for the convenience of the reader, a summary of the facts is set forth below.\nBarbara Jean Redden (\u201cdefendant\u201d) was married .to Monroe M. Redden, Jr. (\u201cdecedent\u201d), who 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. 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.\nOn 21 September 2001, defendant established a bank account in her name only at First Union National Bank, account number 1010052958801 (\u201cAccount 801\u201d). That same day, defendant used her Power of Attorney to transfer $237,778.71 from Account 784 to Account 801.\nAfter decedent\u2019s death, E.K. Morley (\u201cthe Administrator\u201d) was named as the administrator of the Estate of Monroe M. Redden, Jr. (\u201cplaintiff\u2019). On 12 February 2004, plaintiff filed a complaint alleging that defendant had committed conversion, constructive fraud, and breach of fiduciary duty in connection with certain banking transactions related to Accounts 784 and'801.\nAs to the issue for our consideration, defendant argued that the Dead Man\u2019s Statute was inapplicable because defendant\u2019s deposition was offered by the Estate, not against the Estate. Defendant also argued that the Statute was waived by a failure to object to the deposition testimony either at the time of deposition or at the partial summary judgment hearing. This Court held that defendant had not established the admissibility of defendant\u2019s testimony regarding decedent\u2019s oral directions pursuant to Rule 601(c), thus she could not defeat plaintiff\u2019s motion for partial summary judgment. Redden, 179 N.C. App. at 118, 632 S.E.2d at 799.\nUpon consideration, we hold that decedent\u2019s oral communications with defendant were offered by defendant in her deposition, not by the Estate, and that the Estate timely objected to these communications and moved to strike the incompetent portions, thus preserving the protections of the Dead Man\u2019s Statute.\nWitness testimony is incompetent pursuant to Rule 601(c) if the witness is a party or is interested in the event; her testimony relates to an oral communication with the decedent; the testimony is against a personal representative of the decedent; or the witness is testifying in his own behalf. See N.C. Gen. Stat. \u00a7 8C-1, Rule 601(c); In re Will of Hester, 84 N.C. App. 585, 595, 353 S.E.2d 643, 650-51, rev\u2019d on other grounds, 320 N.C. 738, 360 S.E.2d 801 (1987) (citing Godwin v. Trust Co., 259 N.C. 520, 528, 131 S.E.2d 456, 462 (1963)). The purpose of this rule is to exclude evidence of statements made by deceased persons, \u201csince those persons are not available to respond.\u201d Hester, 84 N.C. App. at 595, 353 S.E.2d at 651 (citing Culler v. Watts, 67 N.C. App. 735, 737, 313 S.E.2d 917, 919 (1984)).\nIn Wilkie v. Wilkie, 58 N.C. App. 624, 294 S.E.2d 230, disc. rev. denied, 306 N.C. 752, 295 S.E.2d 764 (1982), this Court held that when a party elicits incompetent evidence under the Dead Man\u2019s Statute, the party then waives any protection afforded by the Statute. Id. at 627, 294 S.E.2d at 231 (holding that party waived protection of the Dead Man\u2019s Statute by eliciting incompetent evidence through interrogatories). In that case, the plaintiff answered interrogatories implicating the Dead Man\u2019s Statute. There were no objections made by either party to the interrogatories themselves or the answers given. Id. at 626, 294 S.E.2d at 231. That is not the situation we confront in the instant case.\nHere, the Estate deposed defendant and offered the deposition testimony into evidence at the partial summary judgment hearing; however, at-the time defendant was deposed, the Estate asked no questions soliciting evidence of oral communications between the decedent and defendant. In addition, answers by defendant relating to such oral communications were promptly objected to by the Estate, with appropriate motions to strike.\nQ. You opened, if we could refer to this as account 8801, you opened that personally?\nA. Yes.\nQ. Okay. Monroe did not open the account?\nA. No, he wasn\u2019t there.\nQ. He was in the hospital or in the nursing home?\nMR. ANDERSON: Objection to form.\nTHE WITNESS: He just instructed me to do it.\nMR. MORLEY: Objection and a motion to strike as to an oral communication.\nBY MR. MORLEY:\nQ. My question was, did Monroe participate to any extent in the opening of account 8801?\nMR. ANDERSON: Other than oral communications?\nBY MR. MORLEY:\nQ. Other than oral communications.\nQ. Now, with regard to that account, the assets in that account, 8801, Monroe never had any interest in that account, did he?\nMR. ANDERSON: Objection to form.\nTHE WITNESS: As far as I was concerned, yes, he did.\nBY MR. MORLEY:\nQ. To what extent?\nA. That he told me everything to do.\nMR. MORLEY: Objection. Motion to strike.\nThe incompetent testimony was not elicited by the Estate for its own benefit, but offered by defendant, of her own volition, against the Estate. These are precisely the types of statements the Dead Man\u2019s Statute seeks to disqualify as incompetent.\nDefendant points to an exchange within this line of questioning in which defendant testified that while Account 801 was set up in her name alone, she never considered herself owner of the account until decedent\u2019s death.\nQ. Who did you consider to be the owner?\nA. Monroe.\nQ. Monroe exclusively?\nA. With me as power of attorney doing what he directed.\nThe attorney for the Estate did not object or move to strike this last statement. It is not clear that \u201cdoing what he directed\u201d refers to decedent\u2019s oral communications. \u201cWhat he directed\u201d could mean the directives included in the terms of the written Power of Attorney. Absent clear evidence of an oral communication, there is no need to object to this statement.\nThis Power of Attorney is not included in the Record on Appeal for our consideration. Pursuant to the North Carolina Rules of Appellate Procedure, our review is limited to what appears in the record on appeal. N.C. R. App. P. 9(a) (2007) (\u201creview is solely upon the record on appeal, the verbatim transcript of proceedings, if one is designated, constituted in accordance with this Rule 9, and any items filed with the record on appeal pursuant to Rule 9(c) and 9(d)). It is appellant\u2019s duty to ensure that the record is complete. Collins v. Talley, 146 N.C. App. 600, 603, 553 S.E.2d 101, 102 (2001) (citing Tucker v. Telephone Co., 50 N.C. App. 112, 272 S.E.2d 911 (1980)). This Court will not consider matters discussed in a brief but not appearing in the record. In re Sale of Land of Warrick, 1 N.C. App. 387, 390, 161 S.E.2d 630, 632 (1968).\nDefendant also argues that the deposition was offered in its entirety into evidence at the partial summary judgment hearing, without objection or motion to strike incompetent portions. Defendant notes that counsel for the Estate quoted sections of this line of questioning in its argument on the motion. Defendant does not state specifically what was quoted from the deposition. No transcript of the hearing appears in the Record on Appeal. In fact, the parties stipulated to the fact that the hearing was neither transcribed nor recorded. We therefore have no way of knowing whether the Estate offered the transcript \u201cin its entirety\u201d or precisely what sections of the deposition were quoted.\nAs this Court previously has held, \u201c[i]n a nonjury trial, in the absence of words or conduct indicating otherwise, the presumption is that the judge disregarded incompetent evidence in making his decision.\u201d City of Statesville v. Bowles, 278 N.C. 497, 502, 180 S.E.2d 111, 114-15 (1971) (citations omitted). Because the deposition transcript showed the Estate\u2019s objections to the incompetent portions of defendant\u2019s deposition testimony, we presume the trial judge relied only on the competent portions of the deposition to render her decision.\nHaving considered the issue remanded by the Supreme Court, except as herein supplemented, the opinion filed by this Court on 1 August 2006 remains in full force and effect.\nAFFIRMED IN PART; REVERSED AND REMANDED IN PART.\nJudges TYSON and GEER concur.\nJudge TYSON concurred in this opinion prior to 31 December 2008.", "type": "majority", "author": "JACKSON, Judge." } ], "attorneys": [ "Law Offices of E.K Morley, by E.K. Morley, for plaintiffappellee.", "Long, Parker, Warren & Jones, P.A., by Philip S. Anderson, 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. COA05-1202-2\n(Filed 6 January 2009)\nEvidence\u2014 Dead Man\u2019s Statute \u2014 applicability\u2014evidence offered by defendant\nConsidered on remand from the North Carolina Supreme Court, the protections of the Dead Man\u2019s Statute applied to an action by an estate against a spouse who opened a bank account in her name and used her power of attorney to transfer funds to that account from another account held only by decedent, who was then hospitalized, allegedly pursuant to decedent\u2019s oral instructions. Decedent\u2019s oral communications with defendant were offered by defendant in her deposition, not by the estate, and the estate timely objected and moved to strike.\nOn remand to the Court of Appeals from an order of the Supreme Court of North Carolina remanding the decision of this Court in Estate of Redden v. Redden, 179 N.C. App. 113, 632 S.E.2d 794 (2006) for consideration of whether plaintiff\u2019s admission of defendant\u2019s deposition and failure to object to incompetent portions of said deposition evidence, during the partial summary judgment hearing, constituted a waiver of the protections of the North Carolina Dead Man\u2019s Statute, North Carolina General Statutes, section 8C-1, Rule 601(c). Appeal by defendant from an order entered 27 June 2005 by Judge Laura J. Bridges in Henderson County Superior Court. Originally heard in the Court of Appeals on 29 March 2006.\nLaw Offices of E.K Morley, by E.K. Morley, for plaintiffappellee.\nLong, Parker, Warren & Jones, P.A., by Philip S. Anderson, defendant-appellant." }, "file_name": "0806-01", "first_page_order": 838, "last_page_order": 843 }