Barrington v. Dyer

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-198
No. COA21-269
Filed 5 April 2022
Carteret County, No. 20 CVS 042
JAMES R. BARRINGTON, Plaintiff,
v.
JEAN CANDY DYER, Executrix for the Estate of William D. Barrington, Jr.,
Defendant.
Appeal by plaintiff from order entered 3 December 2020 by Judge Paul Quinn
in Carteret County Superior Court. Heard in the Court of Appeals 11 January 2022.
White & Allen, P.A., by E. Wyles Johnson, Jr., for plaintiff-appellant.
Schulz Stephenson Law, by Bradley N. Schulz, for defendant-appellee.
TYSON, Judge.
¶1 James R. Barrington (“Plaintiff”) appeals from an order which granted the
executrix of William D. Barrington, Jr’s estate, Jean Candy Dyer’s (“Defendant”) Rule
12(b)(6) motion to dismiss, a gatekeeping order against Plaintiff, and an award of
attorney’s fees. We affirm in part, vacate in part, and remand.
I. Background
¶2 William D. Barrington, Jr. (“Decedent”) and wife, Barbara L. Barrington
(“Barrington), owned two parcels of real property located in Carteret County and real
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property located in Massachusetts. Decedent and Barrington are the parents of three
children, including Plaintiff and Defendant.
¶3 On 8 June 2011, Decedent and Barrington executed the William D. Barrington
and Barbara L. Barrington Revocable Trust (“Revocable Trust”) and the William D.
Barrington and Barbara L. Barrington Irrevocable Trust (“Irrevocable Trust”).
Under the terms of both Revocable and Irrevocable Trusts, all of the trust property
was to be distributed to Plaintiff per stirpes.
¶4 Decedent and Barrington executed a quit-claim deed conveying a 99.99%
remainder interest in real property into the Revocable Trust, which was recorded in
the Carteret County Registry at Book 1379, Page 265 on 29 June 2011. Decedent and
Barrington reserved a life estate for themselves.
¶5 Barrington died 28 March 2012. Three years later, Decedent terminated the
remainder interest in the revocable trust and conveyed the property to himself in fee
simple absolute on 9 February 2015. This conveyance was recorded in the Carteret
County Registry in Book 1501, Pages 267-268.
¶6 Decedent died two years later on 23 March 2017. Decedent’s will was probated
with the Carteret County Clerk of Superior Court on 25 April 2017. Plaintiff did not
assert or file any claim against Decedent’s estate during the statutory period.
¶7 Plaintiff filed an action for breach of trust and breach of fiduciary duty relating
to the 2015 transfers of real estate against Decedent’s estate on 9 February 2018 in
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Carteret County Superior Court. Plaintiff voluntarily dismissed the action on 26
February 2018. That same day Plaintiff filed another action in Carteret County
Superior Court alleging similar claims against Decedent’s estate. Plaintiff also
pleaded claims against attorney Jana Wallace (“Wallace”), who had prepared the
deeds at issue. Plaintiff voluntarily dismissed the claims against Wallace. Following
a hearing, the trial court granted the estate’s motion to dismiss on 14 August 2018.
¶8 Plaintiff filed a notice of appeal to this Court, which was voluntarily dismissed
following Plaintiff’s failure to comply with the Rules of Appellate Procedure. Plaintiff
filed another action with nearly identical claims related to the same real property on
27 July 2018. Following a hearing, the trial court entered an order dismissing
Plaintiff’s action on 16 April 2019.
¶9 Plaintiff appealed to this Court, which dismissed Plaintiff’s appeal by opinion
dated 21 April 2020. See Barrington v. Dyer, 271 N.C. App. 179, 840 S.E.2d 540 (2020)
(unpublished).
¶ 10 Plaintiff filed the underlying action on 13 January 2020 alleging similar claims
as were asserted in his prior three actions. Defendant filed a motion to dismiss,
motion to stay, motion for gatekeeper order, and motion for attorney’s fees on 16
March 2020.
¶ 11 The trial court entered an order allowing Defendant’s Rule 12(b)(6) motion to
dismiss, based upon res judicata. The trial court also entered a gatekeeping order
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against Plaintiff and awarded attorney’s fees to Defendant on 3 December 2020.
Plaintiff appeals.
II. Jurisdiction
¶ 12 Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. § 7A-27(b)(1) (2021).
III. Issues
¶ 13 Plaintiff argues the trial court erred by: (1) allowing Defendant’s motion to
dismiss; (2) entering the gatekeeper order against him; and, (3) awarding Defendant
attorney’s fees.
IV. Motion to Dismiss
A. Standard of Review
¶ 14 “A Rule 12(b)(6) motion tests the legal sufficiency of the pleading.” Kemp v.
Spivey, 166 N.C. App. 456, 461, 602 S.E.2d 686, 690 (2004) (citation and quotation
marks omitted). “When considering a [Rule] 12(b)(6) motion to dismiss, the trial court
need only look to the face of the complaint to determine whether it reveals an
insurmountable bar to plaintiff’s recovery.” Carlisle v. Keith, 169 N.C. App. 674, 681,
614 S.E.2d 542, 547 (2005) (citation and quotation marks omitted).
¶ 15 This Court, on appeal from an order allowing a motion to dismiss under Rule
12(b)(6), reviews de novo “whether, as a matter of law, the allegations of the complaint
. . . are sufficient to state a claim upon which relief may be granted[.]” Christmas v.
Cabarrus Cty., 192 N.C. App. 227, 231, 664 S.E.2d 649, 652 (2008) (ellipses original)
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(citation and quotation marks omitted). This Court also “consider[s] the allegations
in the complaint true, construe[s] the complaint liberally, and only reverse[s] the trial
court’s denial of a motion to dismiss if plaintiff is entitled to no relief under any set
of facts which could be proven in support of the claim.” Id. (citation omitted).
B. Res Judicata
¶ 16 Plaintiff asserts the trial court erred in dismissing his complaint for res
judicata. Dismissal of a complaint under Rule 12(b)(6) for failure to state a claim is
proper when one of the following conditions is met: “(1) when the complaint on its face
reveals that no law supports plaintiff’s claim; (2) when the complaint reveals on its
face the absence of fact sufficient to make a good claim; [or] (3) when some fact
disclosed in the complaint necessarily defeats the plaintiff’s claim.” Oates v. JAG,
Inc., 314 N.C. 276, 278, 333 S.E.2d 222, 224 (1985).
¶ 17 “The doctrine of res judicata provides that a final judgment on the merits in a
prior action precludes a second suit based on the same cause of action between the
same parties or those in privity with them.” Holly Farm Foods, Inc. v. Kuykendall,
114 N.C. App. 412, 416, 442 S.E.2d 94, 97 (1994). Res judicata not only bars “the
relitigation of matters determined in the prior proceeding but also all material and
relevant matters within the scope of the pleadings, which the parties, in the exercise
of reasonable diligence could and should have brought forward.” Id. (citation and
internal quotation marks omitted). “The defense of res judicata may not be avoided
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by shifting legal theories or asserting a new or different ground for relief[.]” Rodgers
Builders v. McQueen, 76 N.C. App. 16, 30, 331 S.E.2d 726, 735 (1985) (citation
omitted).
¶ 18 Plaintiff’s claims all stem from the same factual basis: Decedent’s conveyances
from the revocable trust and Plaintiff’s claims in the parcels. When Plaintiff did not
pursue an appeal or further review from this Court’s 21 April 2020 opinion, res
judicata precludes Plaintiff from relitigating the same or similar claims in a
subsequent action. Plaintiff’s complaint was properly dismissed for failure to state a
claim upon which relief could be granted for res judicata.
V. Gatekeeper Order
A. Standard of Review
¶ 19 This Court reviews the trial court’s imposition of a sanction, including a
gatekeeper order, under an abuse of discretion standard. See Fatta v. M & M
Properties. Mgmt., Inc., 224 N.C. App. 18, 26, 735 S.E.2d 836, 841 (2012). A trial
court may be reversed for abuse of discretion only upon a showing that its actions are
“manifestly unsupported by reason.” Clark v. Clark, 301 N.C. 123, 129, 271 S.E.2d
58, 63 (1980).
B. Analysis
¶ 20 Plaintiff argues the trial court erred by entering a gatekeeper order against
him. The gatekeeper order prohibits Plaintiff:
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from filing any further complaints, motions or papers in the
courts of Carteret County, North Carolina, related in any
way to the Estate of William Barrington Jr., the real estate
or personal property at issue in this Estate or previously
owned by Mr. Barrington, or claims of Breach of Trust or
Breach of Fiduciary Duty related in any way to the
Revocable Trust of William D. Barrington, Jr., William D.
Barrington Jr., the Estate of William D. Barrington Jr., or
Jean Candy Dyer, Executrix, or individually.
Plaintiff asserts this gatekeeper order is overbroad, based upon improper findings of
fact, and fails to include a method by which he could file legitimate actions in the
future.
¶ 21 In Cromer v. Kraft Foods North America, the United States Court of Appeals
for the Fourth Circuit stated that prior to the imposition of a prefiling injunction the
trial court is required to:
weigh all the relevant circumstances, including (1) the
party’s history of litigation, in particular whether he has
filed vexatious, harassing or duplicative lawsuits; (2)
whether the party had a good faith basis for pursuing the
litigation, or simply intended to harass; (3) the extent of
the burden on the courts and other parties resulting from
the party’s filings; and (4) the adequacy of alternative
sanctions.
Cromer v. Kraft Foods N. Am., Inc., 390 F.3d 812, 818 (4th Cir. 2004).
¶ 22 Here, the trial court’s order contains specific findings of fact, reciting the
history of Plaintiff’s litigation against Defendant and Decedent’s estate, and its
conclusion that no basis exists in law for the underlying complaint. The trial court
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concluded “Plaintiff’s numerous filings were frivolous, amounted to harassment, have
caused the Defendant to incur needless expense, and have placed an undue burden
on the judicial system. The four cases have no merit.”
¶ 23 The trial court further noted Plaintiff never asserted a claim against
Decedent’s estate and the creditor notice and claim period have long expired. Plaintiff
pursued four separate actions in North Carolina, including two prior appeals to this
Court, plus two actions filed in the Commonwealth of Massachusetts. The trial court
properly considered these four factors, and its conclusions are supported by the
record. See id.¶ 24 The Court of Appeals for the Fourth Circuit noted in Cromer that a trial court
must also narrowly tailor a pre-filing injunction “to fit the specific circumstances at
issue.” Id. Plaintiff contends the trial court failed to do so. We disagree.
¶ 25 The trial court limited the scope of the gatekeeper order to those papers filed
in Carteret County, which are solely related to the real and personal property of
Decedent, Decedent’s estate, and the Executrix. Unlike in Cromer, where the
injunction forbade “any and all filings” in the United States District Court for the
Western District of North Carolina, which applied to unrelated litigation, the scope
of the gatekeeping order before us is narrow and focused on Plaintiff’s prior actions
in the same matters. Id. at 819.
¶ 26 Plaintiff has failed to show the trial court abused its discretion by imposing the
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gatekeeper order after it properly considered and applied the factors necessary to
support imposition of the order. The trial court’s findings and conclusions are
supported by the record, and the order is narrowly tailored to address the specific
circumstances and Plaintiff’s actions at issue. Plaintiff’s argument is overruled.
VI. Attorney’s Fees
A. Standard of Review
The trial court’s decision to impose or not to impose
mandatory sanctions under N.C.G.S. § 1A-1, Rule 11(a) is
reviewable de novo as a legal issue. In the de novo review,
the appellate court will determine (1) whether the trial
court’s conclusions of law support its judgment or
determination, (2) whether the trial court’s conclusions of
law are supported by its findings of fact, and (3) whether
the findings of fact are supported by a sufficiency of the
evidence. If the appellate court makes these three
determinations in the affirmative, it must uphold the trial
court’s decision to impose or deny the imposition of
mandatory sanctions under N.C.G.S. § 1A-1, Rule 11(a).
Finally, in reviewing the appropriateness of the particular
sanction imposed, an abuse of discretion standard is proper
because the rule’s provision that the court shall impose
sanctions for motions abuses . . . concentrates the court’s
discretion on the selection of appropriate sanction rather
than on the decision to impose sanctions.
Turner v. Duke Univ., 325 N.C. 152, 165, 381 S.E.2d 706, 714 (1989) (citation and
internal quotation marks omitted).
B. Sanctions
¶ 27 Plaintiff argues the trial court erred in awarding Defendant attorney’s fees
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pursuant to Rule 11. See N.C. Gen. Stat. § 1A-1, Rule 11 (2021).
¶ 28 “According to Rule 11, the signer certifies that three distinct things are true:
the pleading is (1) well grounded in fact; (2) warranted by existing law, or a good faith
argument for the extension, modification, or reversal of existing law (legal
sufficiency); and (3) not interposed for any improper purpose.” Bryson v. Sullivan,
330 N.C. 644, 655, 412 S.E.2d 327, 332 (1992) (internal quotation marks omitted).
Our Supreme Court further held: “[a] breach of the certification to any one of these
three prongs is a violation of the Rule.” Id.¶ 29 The trial court found a lack of factual sufficiency in the pleadings and the
pleadings were made for an improper purpose. Plaintiff’s improper purpose can be
inferred from his repetitive behavior. See Mack v. Moore, 107 N.C. App. 87, 93, 418
S.E.2d 685, 689 (1992). The trial court did not err by sanctioning Plaintiff under Rule
11.
C. Amount
¶ 30 Plaintiff further asserts the trial court erred in awarding attorney’s fees for a
prior appeal to this Court. The trial court held “the time spent on the appeal to the
N.C. Court of Appeals . . . to be fair and reasonable.” The trial court awarded
attorney’s fees totaling $28,833.25 to Defendant, including for the previous appeal to
this Court.
¶ 31 “The authority to sanction frivolous appeals by shifting expenses incurred on
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appeal . . . onto appellants is exclusively granted to the appellate courts under N.C.
R. App. P. 34.” Hill v. Hill, 173 N.C. App. 309, 317, 622 S.E.2d 503, 509 (2005)
(emphasis supplied) (citation and internal quotation marks omitted).
¶ 32 “[A] trial court’s award of attorneys’ fees must be supported by proper findings
considering ‘the time and labor expended, the skill required, the customary fee for
like work, and the experience or ability of the attorney.’” ACC Const., Inc. v. SunTrust
Mortg., Inc., 239 N.C. App. 252, 271, 769 S.E.2d 200, 213 (2015) (citation omitted).
The North Carolina State Bar has issued a conjunctive eight-factor rule concerning
attorney fees:
(a) A lawyer shall not make an agreement for, charge, or
collect an illegal or clearly excessive fee or charge or collect
a clearly excessive amount for expenses. The factors to be
considered in determining whether a fee is clearly
excessive include the following:
(1) the time and labor required, the novelty and
difficulty of the questions involved, and the skill
requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the
acceptance of the particular employment will
preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for
similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by
the circumstances;
(6) the nature and length of the professional
relationship with the client;
(7) the experience, reputation, and ability of the
lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.
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27 N.C. Admin. Code 2.1.05 (Supp. 2021).
¶ 33 We vacate the inclusion of fees awarded for Defendant in the prior appeal, the
amount awarded, and remand to the trial court. “On remand, the trial court shall
rely upon the existing record, but may in its sole discretion receive such further
evidence and further argument from the parties as it deems necessary and
appropriate to comply with the instant opinion.” Heath v. Heath, 132 N.C. App. 36,
38, 509 S.E.2d 804, 805 (1999).
VII. Conclusion
¶ 34 We affirm the trial court’s conclusion to dismiss Plaintiff’s appeal pursuant to
Rule 12(b)(6) based upon res judicata. We also affirm the trial court’s conclusion to
sanction Plaintiff for violations of Rule 11 and the imposition of the gate keeping
order.
¶ 35 We vacate the trial court’s award of attorney’s fees for Plaintiff’s prior appeal
to this Court. We vacate the amounts awarded pursuant to Rule 11 and remand to
the trial court for further hearing. It is so ordered.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
Chief Judge Stroud and Judge Gore concur.