{
  "id": 12170206,
  "name": "ARCHIE A. GASKINS, Guardian Ad Litem for Lossie V. Gaskins, Plaintiff v. D. C. McCOTTER, JR., TRUSTEE and WEYERHAEUSER COMPANY, Defendants and D. C. McCOTTER, JR., TRUSTEE, Third Party Plaintiff v. DURWOOD B. ARANT, Third Party Defendant",
  "name_abbreviation": "Gaskins v. McCotter",
  "decision_date": "1981-06-02",
  "docket_number": "No. 803SC987",
  "first_page": "322",
  "last_page": "326",
  "citations": [
    {
      "type": "official",
      "cite": "52 N.C. App. 322"
    }
  ],
  "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": [],
  "analysis": {
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    "char_count": 10645,
    "ocr_confidence": 0.858,
    "sha256": "9e1e67e7b019e2d8901dd254398306efa1df56a65f92e11bb5d27e5bf75f8308",
    "simhash": "1:baa0c1820ba4e677",
    "word_count": 1770
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  "last_updated": "2023-07-14T23:00:28.379499+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges Arnold and Webb concur."
    ],
    "parties": [
      "ARCHIE A. GASKINS, Guardian Ad Litem for Lossie V. Gaskins, Plaintiff v. D. C. McCOTTER, JR., TRUSTEE and WEYERHAEUSER COMPANY, Defendants and D. C. McCOTTER, JR., TRUSTEE, Third Party Plaintiff v. DURWOOD B. ARANT, Third Party Defendant"
    ],
    "opinions": [
      {
        "text": "HEDRICK, Judge.\nPlaintiffs sole assignment of error is set out in the record as follows:\nThat the Court committed error in granting the Motion to substitute B. Hunt Baxter, Jr., Trustee for Lossie V. Gaskins, as plaintiff in the place of Archie A. Gaskins, Guardian ad Litem for Lossie V. Gaskins.\nThis assignment of error is based upon a single exception to the entry of the order substituting B. Hunt Baxter, Jr., Trustee, as party plaintiff.\nG.S. \u00a7 1A-1, Rule 17(b)(1) in pertinent part provides:\nIn actions or special proceedings when any of the parties plaintiff are infants or incompetent persons, whether residents or non-residents of this State, they must appear by general or testamentary guardian, if they have any within the State or by guardian ad litem appointed as hereinafter provided; but if . . . there is no such known guardian, then such persons may appear by guardian ad litem.\nG.S. \u00a7 1A-1, Rule 17(b)(3) provides:\nNotwithstanding the provisions of subsections (b)(1) and (b)(2), a guardian ad litem for an infant or incompetent may be appointed in any case when it is deemed by the court in which the action is pending expedient to have the infant, or insane or incompetent person so represented, notwithstanding such person may have a general or testamentary guardian.\nG.S. \u00a7 33-1 in pertinent part provides:\n[W]here any adult person is . . . found to be incompetent from want of understanding to manage his affairs by reason of physical and mental weakness on account of old age, disease, or other like infirmities, the clerk may appoint a trustee in lieu of a guardian for said persons. The trustee so appointed shall be subject to the laws now or which hereafter may be enacted for the control and handling of estates by guardians.\nSee also G.S. \u00a7 35-2.\nThe record before us discloses that Lossie V. Gaskins was declared incompetent by a jury on 20 October 1977, and on 26 October 1977, plaintiff Archie Gaskins petitioned the Clerk of Superior Court in Craven County to be appointed her general guardian. Thereafter, on 16 December 1977, before the clerk had ruled on plaintiffs petition, plaintiff, as guardian ad litem, initiated the present proceeding by filing a complaint in Carteret County. At that point in time, since Lossie Gaskins had no guardian within the State, plaintiff could be appointed as guardian ad litem and could maintain an action in that capacity under the statutes cited above. Thereafter, the clerk in Craven County, acting on plaintiffs petition, filed an order finding that plaintiff would not be a fit and proper person to be appointed general guardian or trustee for Lossie Gaskins, but that B. Hunt Baxter, Jr., would be such a person, and directed that Baxter be appointed as trustee of the estate of Lossie Gaskins effective 4 January 1978. As of 4 January 1978 Baxter, as trustee, became the proper person to maintain the action under G.S. \u00a7 1A-1, Rule 17(b)(1), and Archie Gaskins could maintain the action as guardian ad litem only as long as the court \u201cdeemed\u201d it to be \u201cexpedient.\u201d Since the court clearly had authority to determine whether it was expedient for the guardian ad litem to bring and maintain the action when the incompetent had a general guardian or trustee in this State, it manifestly had authority to substitute the general guardian or trustee as party plaintiff for the guardian ad litem.\nThe order appealed from is\nAffirmed.\nJudges Arnold and Webb concur.",
        "type": "majority",
        "author": "HEDRICK, Judge."
      }
    ],
    "attorneys": [
      "Darris W. Koonce and Bruce H. Robinson, Jr., for the plaintiff appellant.",
      "Stith and Stith, by Lawrence A. Stith, for defendant appellee D. C. McCotter, Jr.",
      "No counsel for the remaining defendant appellees."
    ],
    "corrections": "",
    "head_matter": "ARCHIE A. GASKINS, Guardian Ad Litem for Lossie V. Gaskins, Plaintiff v. D. C. McCOTTER, JR., TRUSTEE and WEYERHAEUSER COMPANY, Defendants and D. C. McCOTTER, JR., TRUSTEE, Third Party Plaintiff v. DURWOOD B. ARANT, Third Party Defendant\nNo. 803SC987\n(Filed 2 June 1981)\nRules of Civil Procedure \u00a7 17\u2014 substitution of trustee for guardian ad litem\nSince the trial court clearly had authority under G.S. 1A-1, Rule 17(b)(1) to determine whether it was expedient for a guardian ad litem to bring and maintain an action for an incompetent when the incompetent had a general guardian or trustee in the State, the trial court manifestly had authority to substitute the general guardian or trustee as party plaintiff for the guardian ad litem in an action brought on behalf of the incompetent.\nAPPEAL by plaintiff from Rouse, Judge. Order entered 17 June 1980 in Superior Court, CRAVEN County. Heard in the Court of Appeals 28 April 1981.\nThis civil proceeding was commenced by plaintiff Archie A. Gaskins as guardian ad litem for Lossie V. Gaskins in a complaint filed in Carteret County on 16 December 1977. In his complaint, plaintiff alleged that Lossie V. Gaskins, who had been adjudged incompetent by a jury in Craven County on 20 October 1977, had entered into a \u201cpurported contract\u201d with defendant D. C. McCot-ter, Jr., for the sale of certain size timber located on a tract in Carteret County owned by Lossie V, Gaskins on 3 February 1969, and that Lossie V. Gaskins was incompetent and unable to \u201cunderstand the nature, importance and consequences of her acts\u201d at the time said contract was entered. The complaint further alleged that a deed conveying the timber was executed, but Lossie V. Gaskins never received any money for the land; that defendant McCotter, knowing of her incapacity, assigned the contract to defendant Weyerhaeuser Company on 2 June 1969; and that thereafter the Carteret County tract was \u201cvirtually stripped of all timbers ... to the extent that it is virtually worthless today. ...\u201d Averring that the property in question had a \u201creasonable value of $150,000.00,\u201d and that the deed conveying the timber was \u201cabsolutely void\u201d due to Lossie Gaskins\u2019 \u201cinfirmities,\u201d plaintiff prayed for the sum of $150,000 or in the alternative, \u201csuch sum as is necessary to place plaintiffs ward\u2019s property in a status quo state as of February 3, 1969,\u201d plus costs.\nDefendant McCotter thereafter filed a third party complaint against Durwood B. Arant, alleging that Arant was the real party in interest in the timber transaction with Lossie Gaskins, since McCotter merely conducted an investigation into the title to the Carteret County tract and prepared the timber deed designating McCotter as trustee to hold title thereto for the benefit of Arant. McCotter further alleged that he had no dealings with Lossie Gaskins, that the conveyance was made at the request of Arant, and that he received no part of the purchase price or any other moneys in connection with the transaction. McCotter demanded judgment against Arant for all sums adjudged against McCotter in favor of plaintiff.\nOn 14 February 1978, Arant answered plaintiffs complaint, admitting the contract with Lossie Gaskins and the deed, but denying the other material allegations. Arant further averred, among other things, that Carteret County was an improper venue for the action, that the complaint failed to state a claim upon which relief can be granted, that plaintiff was not a proper party to maintain the action since a trustee had been appointed for Lossie Gaskins\u2019 estate, and that the action was barred by the three year statute of limitations (G.S. \u00a7 1-52). Arant also answered the third party complaint on 14 February 1978, denying liability to McCotter, but admitting that McCotter conducted the title investigation and prepared the timber deed, that McCotter as trustee conveyed the property at Arant\u2019s request, and that Mc-Cotter received no moneys in connection with the transaction. Arant also averred that the complaint failed to state a claim upon which relief could be granted.\nDefendant Weyerhaeuser answered plaintiffs complaint on 8 June 1978, admitting the assignment of the timber contract, but denying the other material allegations. Weyerhaeuser pleaded the statute of limitations as a bar to the action, and also alleged that Carteret County was not the proper venue for the action, and that plaintiff was not the proper person to bring and maintain the action. The same day, Weyerhaeuser answered a cross action filed against it by McCotter, raising defenses similar to those in its answer to plaintiff\u2019s complaint.\nOn 6 September 1978, after a hearing, Judge Reid ordered that the venue for plaintiffs action be changed to Craven County, and in two separate orders filed 8 September 1978, denied defendant\u2019s motions to dismiss the complaint on the grounds of insufficiency of process, and for failure to state a claim pursuant to Rule 12(b)(6) and \u201cfailure to make a necessary party.\u201d\nOn 21 January 1980, defendant McCotter filed a motion seeking to have B. Hunt Baxter, Jr., substituted for plaintiff in the action. In the motion, McCotter alleged that on or about 26 October 1977, plaintiff petitioned the Clerk of the Superior Court in Craven County to be appointed general guardian of Lossie Gaskins, and after a hearing, the Clerk made an order finding that plaintiff \u201cdid not possess the financial discretion and other qualifications to entitle him to be appointed guardian.\u201d McCotter further alleged that B. Hunt Baxter, Jr., was found by the Clerk to be a \u201cfit and suitable person\u201d and in an order dated 8 January 1978, effective 4 January 1978, Baxter was appointed \u201cTrustee of the Estate of Lossie V. Gaskins.\u201d McCotter then alleged that since Baxter \u201chas all the powers and authorities which are conferred upon a general guardian, he should now be substituted as plaintiff in this action . . . .\u201d In support of his motion, McCotter offered an order of the Clerk of the Superior Court in Craven County dated 12 January 1978 appointing B. Hunt Baxter, Jr., as trustee of the estate of Lossie Gaskins, effective 4 January 1978.\nPlaintiff made a countermotion to McCotter\u2019s 21 January 1980 motion, alleging that the issues raised in McCotter\u2019s motion were res judicata, since the trial judge on 14 November 1979 had denied a previous motion seeking to dismiss the action on the grounds that plaintiff \u201cis not a proper person to have brought this action and for Summary Judgment.\u201d After a hearing on Mc-Cotter\u2019s 21 January 1980 motion, the court concluded that B. Hunt Baxter, Jr., was duly appointed trustee pursuant to G.S. \u00a7 33-1 and vested with all the powers conferred under G.S. \u00a7 35-2, such that Baxter was \u201centitled to handle all of the affairs of the said Lossie V. Gaskins, including the prosecution of this civil action;\u201d and the court ordered that Baxter be substituted as party plaintiff in the place of Archie Gaskins. Plaintiff Archie Gaskins, guardian ad litem, appealed.\nDarris W. Koonce and Bruce H. Robinson, Jr., for the plaintiff appellant.\nStith and Stith, by Lawrence A. Stith, for defendant appellee D. C. McCotter, Jr.\nNo counsel for the remaining defendant appellees."
  },
  "file_name": "0322-01",
  "first_page_order": 350,
  "last_page_order": 354
}