Kustra v. Griffing

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA26-60
Filed 21 October 2026
Gaston County, No. 23CVS003647-350
KRISTA DEDMON KUSTRA, individually and as Co-Trustee of the Betty S. Dedmon
Living Trust FBO Daughters and beneficiary of the Betty S. Dedmon Revocable Trust
Agreement executed February 23, 2006, as amended; and JANE DEDMON ELDER,
individually and as Co-Trustee of the Betty S. Dedmon Living Trust FBO Daughters
and beneficiary of the Betty S. Dedmon Revocable Trust Agreement executed
February 23, 2006, as amended, Plaintiffs,
v.
JOHN GRIFFING, individually and in his representative capacities, and as Trustee
of the Betty S. Dedmon Revocable Trust Agreement executed February 23, 2006, as
Amended, Trustee of Don’s Trust FBO Donald Gene Dedmon, Sr. and Donald Gene
Dedmon, Jr; DONALD GENE DEDMON, SR.; and DONALD GENE DEDMON, JR.,
Defendants.
Appeal by plaintiffs from orders entered 21 March 2024 by Judge Sally Kirby-
Turner in Gaston County Superior Court and 17 July 2025 by Judge Craig R. Collins
in Gaston County Superior Court. Cross-appeal by defendants from order entered 21
March 2024 by Judge Sally Kirby-Turner in Gaston County Superior Court. Heard in
the Court of Appeals 12 August 2026.
David C. Boggs and Maynard Nexsen PC, by Kevin Y. Zhao and James C.
Smith, for plaintiffs-appellants/cross-appellees Krista Dedmon Kustra and
Jane Dedmon Elder.
Johnston, Allison & Hord, P.A., by Kimberly J. Kirk and Arya V. Koneru, for
defendants-appellees/cross-appellants Donald Gene Dedmon, Sr., and Donald
Gene Dedmon, Jr.
Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., by Shameka C.
Rolla and J. Mitchell Armbruster, for defendant-appellee John Griffing.

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FLOOD, Judge.
Plaintiffs Krista Dedmon Kustra and Jane Dedmon Elder appeal from two
orders of the trial court: one order, entered 21 March 2024, dismissed their claim to
set aside a deed, and the second order, entered 17 July 2025, granted summary
judgment in favor of Defendant Donald Gene Dedmon, Sr. (“Don Sr.”), Defendant
Donald Gene Dedmon, Jr. (“Don Jr.”), and Defendant John Griffing (collectively,
“Defendants”). On appeal, Plaintiffs argue that the trial court erred in dismissing
their claim to set aside a deed on the basis that an error on the face of the deed was
more than a mere scrivener’s error. Plaintiffs also argue that the trial court erred by
granting Defendants’ motions for summary judgment because N.C.G.S. § 36C-6-604
did not time-bar Plaintiffs’ undue influence claim and because Defendant Griffing did
not provide any evidence to support summary judgment on the merits of Plaintiffs’
breach of fiduciary duty claim. Defendants Don Sr. and Don Jr. cross-appeal from the
21 March 2024 order, arguing that the trial court should have dismissed Plaintiffs’
undue influence claim for failure to state a claim. After careful review, we affirm the
21 March 2024 order setting aside the deed. We also affirm in part and reverse in
part the order of the trial court granting summary judgment in favor of Defendants.
I. Factual and Procedural Background
Plaintiffs are the daughters of Betty S. Dedmon (“Ms. Dedmon”), who passed
away on 22 July 2018. Defendant Don Sr. is Ms. Dedmon’s son, and Defendant Don

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Jr. is Ms. Dedmon’s grandson (collectively, the “Dedmon Defendants”).
During her lifetime, Ms. Dedmon created three trusts. Sometime prior to 2003,
Ms. Dedmon created the “Betty S. Dedmon Living Trust FBO Daughters” for the
benefit of Plaintiffs (the “Daughters’ Trust”). A condominium unit located in
Cleveland County (the “Condominium”) was subsequently conveyed to the Daughters’
Trust in 2003. On 23 February 2006, Ms. Dedmon executed “the Betty S. Dedmon
Revocable Trust Agreement” (as amended, the “Revocable Trust”). The third trust,
entitled “Don’s Trust[,]” was created under the Revocable Trust for the benefit of the
Dedmon Defendants. Ms. Dedmon was the initial trustee for all three trusts. The
Daughters’ Trust did not identify a successor trustee; however, by unanimous consent
of the qualified beneficiaries, Plaintiffs serve as co-trustees of the Daughters’ Trust.
Defendant Griffing, Ms. Dedmon’s personal attorney, was appointed as successor
trustee of the Revocable Trust and Don’s Trust.
The Revocable Trust was amended on 19 December 2007 (the “First
Amendment”), on 3 July 2014 (the “Second Amendment”), and, for a third and final
time, on 18 July 2015 (the “Third Amendment”). The Second Amendment provided
for a distribution of a one-third interest in a family farm (the “Farm”)—which was
previously allocated to Plaintiffs in equal shares—to the Dedmon Defendants. The
Third Amendment provided for the Farm to be distributed outright to Defendant Don
Jr. and provided for distribution of the Condominium to Don’s Trust. On the same
day the Third Amendment was executed, Ms. Dedmon executed a deed purportedly

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transferring the Condominium from the Daughters’ Trust to the Revocable Trust. All
three amendments were prepared by Defendant Griffing.
After Ms. Dedmon passed away, Defendant Griffing served as the duly
appointed executor of her Estate. The Estate administration concluded around
October of 2020. Upon its conclusion, Defendant Griffing, in his capacity as executor,
distributed Estate assets to the Trustee for the Revocable Trust.
On 29 June 2022, Plaintiffs filed a lawsuit seeking to challenge the validity of
the Revocable Trust, but Plaintiffs voluntarily dismissed their lawsuit on 31 July
2023. On 25 October 2023, Plaintiffs filed a new complaint bringing three claims of
relief—without specifically identifying or labeling any of the causes of actions—
against the Dedmon Defendants and Defendant Griffing, individually and in his
capacity as trustee of the Revocable Trust and Don’s Trust.
The First Claim of Relief involved the validity of the deed conveying the
Condominium from the Daughters’ Trust to the Revocable Trust. Plaintiffs alleged
the deed was invalid because, although the notary block certified that Ms. Dedmon
was executing the deed as Trustee of the Daughters’ Trust, Ms. Dedmon actually
executed the deed in her capacity as Trustee of the Revocable Trust, the Grantee, not
as Trustee of the Daughters’ Trust, the Grantor.
The Second Claim of Relief concerned Defendant Griffing’s changes and
transactions regarding the Revocable Trust and Ms. Dedmon’s property, and
Plaintiffs’ request for disclosure, accounting, and distribution.

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The Third Claim of Relief concerns Ms. Dedmon’s progressive cognitive decline
between 2010 and 2014. According to Plaintiffs, in 2013 and 2014, three physicians
opined that Ms. Dedmon, who was living in an assisted care facility in South Carolina
at the time, had “dementia (Alzheimer’s) and/or lacked sufficient cognitive ability to
handle her affairs, specifically including financial affairs[.]” Plaintiffs and the
Dedmon Defendants met at various times in 2013 and early 2014 with Defendant
Griffing, who had been appointed as Ms. Dedmon’s General Power of Attorney in
2007, to discuss Ms. Dedmon’s medical reports. Ultimately, all parties agreed Ms.
Dedmon “was incompetent or incapacitated to handle her personal, financial or
business affairs.” Plaintiffs alleged that Defendant Don Sr. then took Ms. Dedmon
out of her assisted care living facility in May 2014; moved her to Cleveland County,
North Carolina, where she would be closer to him; and thereafter “unilaterally took
over [Ms.] Dedmon’s medical and personal care . . . .” Plaintiffs further claimed that
Defendants exerted undue influence and improper pressure on Ms. Dedmon to
procure the Second Amendment and the Third Amendment.
In their prayer for relief, Plaintiffs requested the following:
(1) For a judgment and recovery from or as to [Defendant]
Griffing, individually, and as Trustee or fiduciary in any
capacity for (a) an accounting of the (i) assets of and
disbursements from, for or to the [Revocable] Trust or any
account held or controlled by him at any time and (ii) the
investments of securities and monies in the cash and
investment accounts . . . . (d) damages for such losses due
to [Defendant Griffing]’s failure to (i) manage or distribute
accounts, assets or property in timely fashion; (ii) recognize

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Plaintiffs’ rights in the Condominium; and (iii) collect
assets due Plaintiffs or the [Revocable] Trust and rents and
charges due; and (e) breach of fiduciary duty.
(2) For a judgment or Order of specific performance for
conveyance or transfer of the Residuary estate interest to
each Plaintiff.
(3) For a judgment against Defendants Dedmon Sr. and Jr.,
individually, jointly and severally, for (a) damages
resulting from the undue influence of said Defendants; (b)
immediate possession of the Condominium and collection
of rents; and (c) damages to the Condominium.
(4) For a jury trial on all issues so triable.
(5) For costs and attorneys’ fees as by law allowed.
(6) For such other and further relief as the Court may deem
just and proper.
All Defendants moved to dismiss Plaintiffs’ complaint. In their motions to
dismiss, Defendants argued that Plaintiffs’ complaint should be dismissed for failure
to state a claim because “the alleged defect in the [Condominium deed] consists of a
mere scrivener’s error and does not materially change the rights of the parties to the
[d]eed or the effect thereof” and because the Third Claim of Relief was time-barred
pursuant to N.C.G.S. § 36C-6-604. On 21 March 2024, the trial court entered an order
granting the Dedmon Defendants’ motion to dismiss as to the First Claim of Relief,
ruling the alleged defect was a mere “scrivener’s error” that did not materially alter
the rights of the parties. The trial court also dismissed all claims against Defendant
Griffing in his individual capacity, but not in his capacity as trustee. Defendants’
motions were denied in all other respects. Plaintiffs appealed the trial court’s order;

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however, on 16 April 2025, this Court dismissed Plaintiffs’ appeal as interlocutory.
On 11 June 2025, the Dedmon Defendants filed a motion for summary
judgment, arguing that the Third Claim of Relief was time-barred under N.C.G.S. §
36C-6-604. Defendant Griffing subsequently filed a motion for summary judgment,
joining the Dedmon Defendants’ motion for summary judgment and asserting that
any remaining claims against the Trustee were barred, among other reasons, by
N.C.G.S. § 36C-6-604.
This matter came on for hearing on 14 July 2025. At the outset of the hearing,
the parties agreed that the only issue before the trial court was whether Plaintiffs’
claims were time-barred by the three-year statute of limitations set forth in N.C.G.S.
§ 36C-6-604. Throughout the hearing, Plaintiffs repeatedly stated that the Third
Claim of Relief was solely against the Dedmon Defendants and that they were not
seeking to invalidate the Revocable Trust, but rather, they were only seeking
damages against the Dedmon Defendants for undue influence. When asked by the
trial court what the basis was for Defendant Griffing as Trustee still being a party to
this action, Plaintiffs’ counsel responded that Defendant Griffing owes an accounting
but conceded that Defendant Griffing had provided an accounting several months
prior, and Plaintiffs were in the midst of analyzing the accounting to determine
whether Defendant Griffing provided complete and accurate accounting. After
hearing the parties’ arguments, the trial court stated:
It seems, having reviewed the file and hearing contentions

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of the attorneys, every bit of this challenge is to say that
this trust was not valid. Whether it was based off of
competency, undue influence, any issue, it all comes back
to, was this a valid trust. And the arguments of why it may
have been an invalid trust was -- [are] the issues of undue
influence, competency, et cetera.
But in the end, the only way the Plaintiffs receive the
benefit from this case would be if that trust shouldn’t have
been entered. And if the claim—I understand the wording
by counsel on the Complaint, which reminded [me] of the
idea that if a—walks like a duck and talks like a duck,
that’s going to be a duck.
This seems to be a challenge on the trust. There [are]
different avenues that the Plaintiff[s are] using to attack
the trust, but at the end of the day, the relief sought
requires the Court to find that the trust was not valid. 36C-
6-604 does limit the timeline for challenging . . . that trust.
Again, I think any claim by the Plaintiffs is attacking the
validity of that trust, and there is no other claim.
Three days after the hearing, the trial court entered an order granting
summary judgment in Defendants’ favor. The trial concluded that, “[r]egardless of
Plaintiffs’ arguments to the contrary, Plaintiffs’ Third Claim for Relief implicates the
validity of the [Revocable] Trust, and in essence, challenges the validity of the
[Revocable] Trust” and was therefore time-barred under N.C.G.S. § 36C-6-604. The
trial court also concluded that “there are no substantive claims left in the action with
the dismissal of Plaintiff[s’] Third Claim for Relief, and as all claims against
Defendant Griffing in his individual capacity have already been dismissed, summary
judgment should also be granted to Defendant Griffing as Trustee . . . .”
Less than a month later, on 11 August 2025, Plaintiffs filed their notice of

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appeal from the 21 March 2024 order and the 17 July 2025 order. The Dedmon
Defendants timely filed notice of cross-appeal, appealing the trial court’s 21 March
2024 order denying their motion to dismiss the Third Claim of Relief.
II. Jurisdiction
This Court has jurisdiction to hear Plaintiffs’ appeal of the 17 July 2025 order
granting summary judgment for Defendants because it is a final judgment of a
superior court. N.C.G.S. § 7A-27(b) (2025). This Court also has jurisdiction pursuant
to N.C.G.S. § 1-278 (2025) to consider any intermediate orders, such as the 21 March
2024 order, necessarily affecting the final judgment. Moreover, because the Dedmon
Defendants timely filed their cross-appeal from the 21 March 2024 order, we have
jurisdiction to hear the Dedmon Defendants’ cross-appeal. See Slaughter v.
Slaughter, 254 N.C. App. 430, 444 (2017) (“In a matter in which multiple, separate
orders issue, and one party appeals from some, but not all, of those orders, a cross-
appellant who files [his] cross-appeal outside of the 30-day window contemplated by
Rule 3(c), but within the 10-day window for cross-appeals, shall be limited to appeal
from only those orders challenged in the original appeal.”); see also Miller v. Carolina
Coast Emergency Physicians, LLC, 277 N.C. App. 449, 461 (2021) (holding this Court
had jurisdiction to review the defendants’ cross-appeals from interlocutory orders not
appealed by the plaintiff “because the [interlocutory o]rders did not dispose of the
case and were not individually, immediately appealable”).
III. Analysis

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A. Plaintiffs’ Appeal from Order Dismissing First Claim of Relief
Plaintiffs argue that the trial court erred in dismissing their First Claim of
Relief and holding the error on the face of the Condominium deed was a mere
scrivener’s error. We disagree.
“On appeal of a 12(b)(6) motion to dismiss, this Court conducts a de novo review
of the pleadings to determine their legal sufficiency and to determine whether the
trial court’s ruling on the motion to dismiss was correct.” Burgin v. Owen, 181 N.C.
App. 511, 512 (2007) (citation and internal quotation marks omitted). When
reviewing a 12(b)(6) motion to dismiss, a trial court must determine “whether, as a
matter of law, the allegations of the complaint, treated as true, are sufficient to state
a claim upon which relief may be granted under some legal theory, whether properly
labeled or not.” Gouch v. Rotunno, 291 N.C. App. 7, 10 (2023) (citation omitted).
Dismissal pursuant to Rule 12(b)(6) is proper in any of the following circumstances:
“(1) the complaint on its face reveals that no law supports the plaintiff’s claim; (2) the
complaint on its face reveals the absence of facts sufficient to make a good claim; or
(3) the complaint discloses some fact that necessarily defeats the plaintiff’s claim.”
Wood v. Guilford Cty., 355 N.C. 161, 166 (2002) (citation omitted).
To be valid, a deed “must be signed by the grantor.” Matter of Mills, 68 N.C.
App. 694, 695 (1984) (citing New Home Building Supply Co. v. Nations, 259 N.C. 681
(1963)). Under N.C.G.S. § 39-6.7, a deed “that purports to convey, devise, or otherwise
transfer any ownership or security interest in real or personal property to a trust shall

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be deemed to be a transfer to the trustee or trustees of that trust.” N.C.G.S. § 39-6.7(a)
(2025) (emphasis added). Similarly, a deed transferring any ownership or security
interest in real property by a trust is construed as being a transfer by the trustee of
that trust even if the deed “is signed by the trustee or trustees as such, or by the
trustee or trustees purportedly for or on behalf of the trust” or “the instrument by
which the trustee or trustees acquired title transferred that title to the trustee or
trustees as such, or purportedly to the trust.” N.C.G.S. § 39-6.7(b) (2025).
In the instant case, there is no dispute that Ms. Dedmon signed the
Condominium deed in her capacity as a trustee. Plaintiffs, in their First Claim of
Relief, sought to invalidate the deed because the signature block indicates that Ms.
Dedmon was signing the deed in her capacity as the trustee for the Revocable Trust,
the Grantee, not in her capacity as trustee of the Daughters’ Trust, the Grantor. The
signature block, however, comes after the testimonium clause, where the “Grantor
has hereunto set Grantor’s hand and seal . . . has caused this instrument to be signed
. . . .” Moreover, the notary certified that Ms. Dedmon, as Trustee of the Daughters’
Trust, executed the deed on behalf of the Daughters’ Trust. Thus, it is clear to this
Court that the signature block contains a misnomer. See Pierce v. Johnson, 154 N.C.
App. 34, 39 (2002) (“A misnomer is a ‘mistake in name; giving an incorrect name to
the person in accusation, indictment, pleading, deed, or other instrument.’” (quoting

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Misnomer, BLACK’S LAW DICTIONARY (6th ed. 1990))).1
North Carolina appellate courts have not yet addressed whether a misnomer
in the grantor’s signature block on a deed invalidates the deed, though North
Carolina appellate courts have held that a misnomer of a grantee on a deed is
ordinarily immaterial and does not vitiate the deed if the intended grantee’s identity
is apparent. See Asheville Div. No. 15 v. Aston, 92 N.C. 578, 583 (1885); Troy & N.C.
Gold Mining Co. v. Snow Lumber Co., 170 N.C. 273, 277 (1915); Tomika Invs., Inc. v.
Macedonia True Vine Pentecostal Holiness Church of God, Inc., 136 N.C. App. 493,
496 (2000). In each of these cases, our courts determined the intent of the parties
based on the written language they used in the deed and construed the deed in a way
to effectuate the parties’ intent. See Asheville Div. No. 15, 92 N.C. at 583 (“A
misnomer does not vitiate, provided the identity of the corporation with that intended
by the parties is apparent.” (emphasis added)); N.C. Gold Mining Co., 170 N.C. at
277–78 (“A corporate name is essential, but the inadvertent or mistaken use of the
name is ordinarily not material if the parties really intended the corporation by its
proper name. If the name is expressed in the written instrument, so that the real
name can be ascertained from it, this is sufficient; but, if necessary, other evidence
1 We assume for the purposes of this appeal that a misnomer, such as the one in this case,
could be categorized as a “scrivener’s error” in the sense that the misnomer was an inadvertent
typographical error. See Scrivener’s Error, BLACK’S LAW DICTIONARY (10th ed. 2014) (“A clerical error,
esp. in a legal document”); see also Clerical Error, BLACK’S LAW DICTIONARY (10th ed. 2014) (“An error
resulting from a minor mistake or inadvertence and not from judicial reasoning or determination; esp.,
a drafter’s or typist’s technical error that can be rectified without serious doubt about the correct
reading”).

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may be produced to establish what corporation was intended. . . . A misnomer of a
corporation has the same legal effect as a misnomer of an individual.” (emphasis
added) (citation omitted)); Tomika Invs., Inc., 136 N.C. App. at 496 (relying on the
reasoning in N.C. Gold Mining Co.). These cases are in accordance with this State’s
jurisprudence that, when construing a deed, the court’s paramount goal should be
effectuating the intent of the parties:
Whatever the technicalities of the law may formerly have
required in the construction of deeds, the modern doctrine
does not favor the application of such technical rules as will
defeat the obvious intention of the grantor––not the
unexpressed purpose which may have existed in his mind,
of course, but his intention as expressed in the language he
has employed; for it is an elementary rule of construction
that the intention of the parties shall prevail unless it is in
conflict with some unyielding canon of construction or
settled rule of property or is repugnant to the terms of the
grant. Such intention, as a general rule, must be sought in
the terms of the instrument; but if the words used leave the
intention in doubt, resort may be had to the circumstances
attending the execution of the instrument and the
situation of the parties at that time––the tendency of
modern decisions being to treat all uncertainties in a
conveyance as ambiguities to be explained by ascertaining
in the manner indicated the intention of the parties.
Seawell v. Hall, 185 N.C. 80, 82 (1923). “We must, if possible[,] without resorting to
parol evidence, determine the grantors’ intent based on the four corners of the deed.”
Rutledge v. Feher, 255 N.C. App. 356, 361 (2017) (citation omitted).
Utilizing the above cases as guidance, we conclude that the misnomer in the
Condominium deed does not render the deed void because it appears Ms. Dedmon

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intended to sign the deed in her capacity as the Trustee of the Daughters’ Trust.
Although the signature block states Ms. Dedmon was signing on behalf of the
Revocable Trust, the deed correctly stated the Grantor, and the notary certified that
Ms. Dedmon was signing in her capacity as Trustee of the Daughters’ Trust. Thus,
based on the four corners of the deed, Ms. Dedmon, as trustee, intended to convey the
Condominium to the Revocable Trust. Plaintiffs failed to allege sufficient facts in
their Complaint to support invalidating the deed based on said misnomer.2
Accordingly, we conclude the trial court did not err by dismissing Plaintiffs’ First
Claim of Relief for failure to state a claim upon which relief may be granted under
some legal theory. See Wood, 355 N.C. at 166.
B. Plaintiffs’ Appeal from Summary Judgment
Plaintiffs also appeal from the trial court’s order granting summary judgment
2 Plaintiffs also argue that Defendants cannot seek reformation of the Condominium deed
because Defendants “did not raise the scrivener’s error issue” before the three-year statute of
limitations under N.C.G.S. § 1-52(9) ran and the trial court erred by allowing reformation of the deed
“well after the statute of limitations had run.” “Reformation is a well-established equitable remedy
used to reframe written instruments where, through mutual mistake or the unilateral mistake of one
party induced by fraud of the other, the written instrument fails to embody the parties’ actual, original
agreement.” Wells Fargo Bank, N.A. v. Coleman, 239 N.C. App. 239, 248 (2015). The trial court in the
instant case did not order reformation of the deed, and in fact, none of Defendants instituted an action,
or asserted a counterclaim, for reformation of the deed. The question before the trial court was whether
Plaintiffs’ First Claim of Relief stated a claim upon which relief may be granted under some legal
theory, not whether the deed should be reformed. As such, our review is limited to whether the trial
court’s ruling on Defendants’ motions to dismiss was correct. The Dedmon Defendants also argue that,
even if the Condominium deed contained a material defect, it was cured as a matter of law under
N.C.G.S. § 47-108.28. This statute, however, is inapplicable because the Condominium deed was
executed in 2015, and N.C.G.S. § 47-108.28, according to the Editor’s and Revisor’s Notes, became
“effective August 31, 2018, and applies to instruments filed on or after that date.” N.C.G.S. § 47-108.28
(2025).

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in Defendants’ favor. Plaintiffs argue that the trial court erred by granting summary
judgment on (1) the Third Claim of Relief in the Dedmon Defendants’ favor, because
N.C.G.S. § 36C-6-604 does not time-bar an undue influence claim that seeks
monetary damages, and (2) the Second Claim of Relief in Defendant Griffing’s favor,
because a breach of fiduciary duty claim remained pending. In the instant case, the
trial court addressed and ruled on the Third Claim of Relief before addressing the
Second Claim of Relief. Since the trial court’s ruling on the Second Claim of Relief is
dependent on the outcome of the trial court’s ruling on the Third Claim of Relief, we
first address whether N.C.G.S. § 36C-6-604 time-bars Plaintiffs’ Third Claim of Relief
and then address whether a breach of fiduciary duty claim remained pending.
“On appeal from an order granting summary judgment, our standard of review
is de novo, and we view the evidence in the light most favorable to the non-movant.”
Baum v. John R. Poore Builder, Inc., 183 N.C. App. 75, 80 (2007) (citation omitted).
In motions for summary judgment, “[t]he burden is on the moving party to show the
absence of any genuine issue of fact and his entitlement to judgment as a matter of
law.” In re Will of Smith, 158 N.C. App. 722, 724 (2003) (citation omitted). “A
defendant may satisfy [this] burden by showing that the party asserting the claim
cannot overcome an affirmative defense which would bar the action.” Id.
“When the affirmative defense of the statute of limitations has been pled, the
burden is on the plaintiff to show that his cause of action accrued within the
limitations period.” Lycaste, LLC v. Newsome, 300 N.C. App. 507, 511 (2025) (citation

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omitted). Summary judgment entered in favor of a defendant based on the statute of
limitations “is proper when, and only when, all the facts necessary to establish the
limitation are alleged or admitted, construing the non-movant’s pleadings liberally
in his favor and giving him the benefit of all relevant inferences of fact to be drawn
therefrom.” Ward v. Fogel, 237 N.C. App. 570, 578 (2014) (quoting Huss v. Huss, 31
N.C. App. 463, 468 (1976)); Pembee Mfg. Corp. v. Cape Fear Const. Co., 313 N.C. 488,
491 (1985) (“[W]hen the bar [of an applicable statute of limitations] is properly
pleaded and the facts are admitted or are not in conflict, the question of whether the
action is barred becomes one of law and summary judgment is appropriate.” (citations
omitted)).
1. Third Claim of Relief
Plaintiffs and Defendants disagree as to the nature of the Third Claim of Relief
and whether N.C.G.S. § 36C-6-604 time-bars Plaintiffs’ Third Claim of Relief.
Although not labeled as such in their complaint, Plaintiffs assert that the Third Claim
of Relief is an “undue influence claim[,]” which seeks monetary damages “for
interference with an inheritance or gift by way of undue influence.” Plaintiffs further
assert that N.C.G.S. § 36C-6-604 does not time-bar an undue influence claim that
seeks monetary damages. On the other hand, the Dedmon Defendants argue that
Plaintiffs’ Third Claim of Relief is actually a claim seeking to invalidate the Revocable
Trust and is time-barred pursuant to N.C.G.S. § 36C-6-604. We agree with the
Dedmon Defendants.

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Similar to a will, a trust can be contested on the grounds “that its creation was
induced by fraud, duress, or undue influence[,]” see N.C.G.S. § 36C-4-406 (2025), or
the settlor lacked the requisite mental capacity when creating the trust, see N.C.G.S.
§ 36C-4-402 (2025).3 Section 36C-6-604(a)(1) provides that a person seeking to
challenge a revocable trust must bring a contest within three years after the settlor’s
death. N.C.G.S. § 36C-6-604(a)(1) (2025). According to the official comment, the three-
year statute of limitations set forth in N.C.G.S. § 36C-6-604(a) “is derived from
Section 3-108 of the Uniform Probate Code[,]” which provides a three-year time limit
for contesting a nonprobated will; was “designed to allow an adequate time in which
to bring a contest while at the same time permitting the expeditious distribution of
the trust property following the settlor’s death”; and “should provide potential
contestants with ample time in which to determine whether they have an interest
that will be affected by the trust, even if formal notice of the trust is lacking.” N.C.G.S.
§ 36C-6-604 off. cmt. The official comment also clearly states that the time limit set
forth in N.C.G.S. § 36C-6-604(a) applies to a contest, which is “an action to invalidate
all or part of the terms of the trust or of property transfers to the trustee”; it does not
apply in “[a]n action against a beneficiary or other person for intentional interference
3 As the Official Commentary to N.C.G.S. § 36C-6-604 acknowledges, “only a small minority of
trusts are actually contested[.]” N.C.G.S. § 36C-6-604 off. cmt. Wills, however, are often contested by
filing a caveat to the probate of such will with the Clerk of Superior Court. N.C.G.S. § 31-32 (2025).
Although trusts are not probated like wills, the grounds to contest a trust and a will are very similar.
Since there is little caselaw discussing trust contests in this jurisdiction, but an abundance of caselaw
discussing will contests, this opinion often relies on caselaw discussing the nature of a contest, not the
procedures of probate.

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Opinion of the Court
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with an inheritance or gift, not being a contest[.]” N.C.G.S. § 36C-6-604 off. cmt.
North Carolina recognizes “the tort of malicious and wrongful interference”
with an expected inheritance. Griffin v. Baucom, 74 N.C. App. 282, 285 (1985) (citing
Bohannon v. Wachovia Bank & Tr. Co., 210 N.C. 679 (1936)); Hauser v. Hauser, 252
N.C. App. 10, 13 (2017). In North Carolina, therefore, “[i]f one maliciously interferes
with the making of a will, or maliciously induces one by means of undue influence to
revoke a will, to the injury of another, the party injured can maintain an action
against the wrongdoer.” Griffin, 74 N.C. App. at 285–86. Undue influence, which “is
frequently employed surreptitiously, and is chiefly shown by its results[,]” In re
Thompson’s Will, 248 N.C. 588, 593 (1958), has been defined as “a fraudulent
influence over the mind and will of another to the extent that the professed action is
not freely done but is in truth the act of the one who procures the result[,]” In re Estate
of Loftin, 285 N.C. 717, 722 (1974) (citations omitted). Before proceeding with a tort
action for malicious interference with an inheritance, however, a plaintiff must either
exhaust all probate remedies or demonstrate their inadequacy. Compare Finks v.
Middleton, 251 N.C. App. 401, 409 (2016) (“[O]ur case law recognizes that the purpose
of a caveat proceeding is limited and where adequate remedy cannot be obtained in a
caveat proceeding, the plaintiff is entitled to proceed with a tort claim.” (citation
modified)) with Shoaf v. Shoaf, 219 N.C. App. 471, 477 (2012) (holding that a pending
caveat proceeding did not bar the plaintiff’s separate civil claim for constructive fraud
because the latter action did not challenge the validity of the decedent’s “will or

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Opinion of the Court
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require either a determination of [the decedent’s] capacity to execute a will as of 18
October 2006 or the extent to which [the d]efendant procured the contested will by
undue influence”).
Plaintiffs assert that N.C.G.S. § 36C-6-604(a)’s time-bar is inapplicable in this
case on the basis that Plaintiffs sought monetary damages for “interference with an
inheritance or gift by way of undue influence.” In determining whether Plaintiffs’
Third Claim of Relief is time-barred pursuant to N.C.G.S. § 36C-6-604(a), however,
“we are guided by the principle that the statute of limitations is not determined by
the remedy sought, but by the substantive right asserted by plaintiffs.” Baars v.
Campbell Univ., Inc., 148 N.C. App. 408, 414 (2002); but see Hayes v. Ricard, 244 N.C.
313, 320 (1956) (“The nature of the action is not determined by what either party calls
it, but by the issues arising on the pleadings and by the relief sought.”). In Fox v. Fox,
for example, after reviewing the plaintiff’s breach of fiduciary claim as alleged in her
complaint, this Court determined that her claim was essentially two separate claims:
one claim challenging the validity of the trust and the other a claim for breach of trust
against the defendants as trustees. 283 N.C. App. 336, 343–44 (2022). The claim
challenging the trust’s validity was against the defendants individually and was
based on the defendants’ “scheme” to have the settlor change his trust for the benefit
of the defendants and their children, at the expense of the plaintiff. Id. at 344. The
plaintiff, however, did not initiate the action until six years after the settlor’s death;
thus, her claim contesting the validity of the revocable trust was time-barred

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Opinion of the Court
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pursuant to N.C.G.S. § 36C-6-604(a). Id.
Plaintiffs in the instant case claim they are not contesting the Revocable Trust.
In fact, Plaintiffs concede the Revocable Trust is valid. By the same stroke, however,
Plaintiffs assert that the Third Claim of Relief “arises from actions Defendants took
in secret after the creation of the Trust, after Ms. Dedmon became incapacitated in
2013, to interfere with Plaintiffs’ inheritance,” such as “procuring the Second and
Third Amendments though undue influence . . . .”
Similar to Fox, careful examination of Plaintiffs’ complaint in the instant case
shows the Third Claim of Relief, in essence, challenges the validity of the terms of the
Revocable Trust. Plaintiffs made the following, relevant averments under the Third
Claim of Relief in their complaint:
55. Starting in 2010, progression of [Ms. Dedmon’s]
cognitive decline was noted by the caretakers at the
assisted living facility . . . where she was a resident from
2010 through May 2014 until she was withdrawn from that
facility by Defendant Griffing. Plaintiffs and Defendants
also noted her progressive cognitive decline over this
period.
56. In or about January 2013, September 2013, January
2014, and May 2014, three physicians submitted reports,
opinions or otherwise noted in writing that [Ms.] Dedmon
had dementia (Alzheimer’s) and/or lacked sufficient
cognitive ability to handle her affairs, specifically including
financial affairs, which information was then timely
distributed to and known by Defendants.
57. In 2013, under the express terms and definitions of the
[Revocable] Trust via First Amendment, Betty S. Dedmon
was deemed to be incapacitated or incompetent within the

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Opinion of the Court
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meaning thereof, and was not thereafter restored to
competency during her lifetime, within the meaning
thereof.
. . . .
66. On or about July 3, 2014, Betty S. Dedmon executed the
Second Amendment prepared by Defendant Griffing, upon
the improper insistence of and under the undue influence
of [Don] Sr. and [Don] Jr., during the period of her
incompetency or incapacity as defined in each of the First
Amendment and Second Amendment. This fact of
incompetency or incapacity at that time was known by
Defendants.
. . . .
68. The Second Amendment secured at the improper
insistence of [Don] Sr. and [Don] Jr. provided for
distribution to [Don] Sr. a one-third interest in the [F]arm
. . . and upon [Don] Sr.’s death before that of Betty S.
Dedmon, the [Farm] was to pass to [Don] Jr. Each of [Don]
Sr. and [Don] Jr. retained a conditional first right of refusal
to purchase each Plaintiff’s one-third interest in the
[Farm]. The [Revocable] Trust prior to the Second
Amendment had distribution of entire [Farm] to the
Plaintiffs in equal shares. This change was known and
intended by [Don] Sr. and [Don] Jr.
69. In or about March of 2015, [Plaintiff Elder] met with
Defendant Griffing and expressed her grave concerns over
the issues of the incapacitation and dementia of Betty S.
Dedmon, safety concerns for Betty S. Dedmon, the
exclusion of Plaintiffs from her care and affairs, and the
interfering and overwhelming influence of [Don] Sr. and
[Don] Jr. over Betty S. Dedmon.
70. On or about June 18, 2015 Betty S. Dedmon executed
the Third Amendment prepared by Defendant Griffing,
Betty S. Dedmon executed the Second [sic] Amendment
prepared by Defendant Griffing, upon the improper
insistence of and under the undue influence of [Don] Sr.

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Opinion of the Court
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and [Don] Jr., during the period of her incompetency or
incapacity as defined by each of the First, Second and Third
Amendments. This fact of incompetency or incapacity at
that time was known by Defendants.
. . . .
72. The Third Amendment secured at the improper
insistence of [Don] Sr. and [Don] Jr. provided for
distribution of the [Farm] outright to [Don] Sr. and upon
[Don] Sr.’s death prior to that of Betty S. Dedmon, the
[Farm] was to be distributed outright to [Don] Jr. [Don] Sr.
has disclaimed his interest, if any, in the [Farm] to [Don]
Jr. Also, the Third Amendment purported to provide for
distribution of the Condominium to Don’s Trust. These
changes were known and intended by [Don] Sr. and [Don]
Jr.
. . . .
75. The Second Amendment and Third Amendment as
prepared by Defendant Griffing were executed by Betty S.
Dedmon at the improper insistence of and undue influence
of [Don] Sr. and [Don] Jr. during her period of her
incapacity or incompetency as set forth and defined in each
Amendment, which continued thereafter until her death.
In furtherance of this improper influence, [Don] Sr.
suggested, coordinated and arranged the meetings for
Betty S. Dedmon with Defendant Griffing to have executed
the Second Amendment and Third Amendment while
[Don] Sr. was present.
. . . .
77. The effect of the Second Amendment and Third
Amendment is to change or attempt to change the
distribution, the devises and bequests to each Plaintiff in
the First Amendment and [the Daughters’ Trust] to the
sole benefit of [Don] Sr., [Don] Jr., and Don’s Trust, as to
the [Farm], certain equipment and personal property, and
the Condominium. [Don] Sr. and [Don] Jr. wrongfully
secured the execution of the Second Amendment, [d]eed . .

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Opinion of the Court
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. and Third Amendment to benefit themselves through
their undue influence and malicious and improper motives.
78. Betty S. Dedmon had no contractual or legal
competency or capacity to execute the Second Amendment
or Third Amendment at the time of each’s execution or to
ratify the same thereafter, which fact of incompetency or
incapacity was known by Defendants prior to the execution
of each such document or transaction and thereafter.
79. By corrupt design [Don] Sr. and [Don] Jr. secured the
execution of the [d]eed . . . Second Amendment and Third
Amendment to have the distribution of Estate assets and
the Condominium changed to their benefit. Neither
Defendant Griffing, [Don] Sr. nor [Don] Jr. advised the
Plaintiffs of changes in the Second Amendment and Third
Amendment or of the [d]eed . . . They surreptitiously had
Betty S. Dedmon make those changes to the [Revocable]
Trust and to execute the [d]eed . . . By doing so, they
corruptly changed the receipts of the [Revocable] Trust
beneficiaries and attempted to change the beneficiary of
the Condominium to their benefit. Each Plaintiff was
intentionally not made aware of the attempted [d]eed . . .
transfer and changes to the [Revocable] Trust by way of the
Second Amendment and Third Amendment. This discovery
of such actions and documents by Plaintiffs was well after
the death of Betty S. Dedmon and the undue influence
exercised by [Don] Sr. and [Don] Jr. until 2021 and
thereafter.
. . . .
86. Each of [Don] Sr. and [Don] Jr. exercised undue
influence over Betty S. Dedmon from 2013 to her death in
2018 during her period of defined incompetence or
incapacity, resulting in substantial gifts to them and the
execution of the Second Amendment, Third Amendment,
and [d]eed . . . which undue influence became known to
Plaintiffs only in 2021 and thereafter.
. . . .

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Opinion of the Court
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95. Defendants [Don] Sr. and [Don] Jr. had the selfish
motive to have Betty S. Dedmon execute the Second
Amendment, Third Amendment, and [d]eed . . . to
distribute or attempt to distribute real estate and other
residuary properties otherwise passing to each Plaintiff
under the [Daughters’ Trust] and First Amendment then
pass to or for the benefit of [Don] Sr., [Don] Jr. or Don’s
Trust. [Don] Sr. was aware of and angry at the fact that the
First Amendment distributed certain [Revocable] Trust
assets such as the [Farm] to each Plaintiff and that the
Condominium was held for the benefit of Plaintiffs.
These allegations essentially challenge the validity of the Revocable Trust because
they challenge the validity of the Second and Third Amendments. Critically,
underlying the Third Claim of Relief is a requisite determination that the Dedmon
Defendants procured the Second and Third Amendments by way of undue influence.
See Shoaf, 219 N.C. App. at 477. The practical effect of the Third Claim of Relief
would, therefore, invalidate part of the terms of the Revocable Trust, i.e., the Second
and Third Amendments. A challenge to the validity of the Second and Third
Amendments, as part of the Revocable Trust, should have been initiated before the
statutorily prescribed time period for bringing a trust contest expired in July of 2021.
And even if Plaintiffs lacked formal notice of the Second and Third Amendments until
2021, as alleged in paragraph 79, Plaintiffs nevertheless had three years “to
determine whether they have an interest that [would] be affected by the trust[.]” See
N.C.G.S. § 36C-6-604 off. cmt. (“The maximum possible time for bringing a contest is
three years from the settlor’s death. This should provide potential contestants with
ample time in which to determine whether they have an interest that will be affected

KUSTRA V. GRIFFING
Opinion of the Court
- 25 -
by the trust, even if formal notice of the trust is lacking.”). By allowing Plaintiffs’
“undue influence claim” to proceed, this Court would be permitting the issue of undue
influence, which would have been grounds to contest the Revocable Trust, to be
litigated after the maximum statutorily prescribed time period for bringing a trust
contest expired. Moreover, Plaintiffs’ allegations do not establish that they were
entitled to proceed with a tort claim due to the inadequacy of relief in a trust contest.
See Wilder v. Hill, 175 N.C. App. 769, 772 (2006). Although Plaintiffs sought
monetary damages, it is the substantive right asserted by Plaintiffs, not the relief
sought, that determines which statute of limitations should be applied. See Baars,
148 N.C. App. at 414. To allow Plaintiffs to proceed on the Third Claim of Relief solely
based on the relief Plaintiffs sought would be to permit Plaintiffs to circumvent the
well-established procedures for contesting a trust.
As such, we conclude that the Third Claim of Relief is a claim challenging the
validity of the Revocable Trust that was filed more than three years after Ms.
Dedmon’s death. Therefore, the Third Claim of Relief is time-barred pursuant to
N.C.G.S. § 36C-6-604(a). See Fox, 283 N.C. App. at 344.
2. Second Claim of Relief
Next, Plaintiffs argue that the trial court erred by granting summary judgment
in Defendant Griffing’s favor. Specifically, Plaintiffs assert that the trial court erred
by holding “there are no substantive claims left in the action with the dismissal of the
Undue Influence Claim[,]” because, in Plaintiffs’ words, “there was a remaining

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Opinion of the Court
- 26 -
substantive breach of fiduciary duty claim against [Defendant] Griffing in his
capacity as trustee of the [Revocable] Trust and his abuses of the General Power of
Attorney.” In response, Defendant Griffing argues that he, in his capacity as trustee,
could not have distributed the Revocable Trust’s assets while there was a “pending
judicial proceeding contesting the validity of the trust”;4 but, since the trial court
dismissed the Third Claim of Relief as time-barred, the challenges to the Revocable
Trust were finally resolved, and therefore, the trial court properly dismissed the
Second Claim of Relief to allow an orderly distribution of the Revocable Trust assets.
“A successful claim for breach of fiduciary duty requires proof that ‘(1) the
defendant[] owed the plaintiff a fiduciary duty; (2) the defendant breached that
fiduciary duty; and (3) the breach of fiduciary duty was a proximate cause of injury
to the plaintiff.’” Chisum v. Campagna, 376 N.C. 680, 706 (2021) (citation omitted).
A trustee under any trust is a fiduciary, see N.C.G.S. § 32-2 (2025), who owes certain
duties to the beneficiaries of that trust, see N.C.G.S. § 36C-8-801 (2025). Some of these
duties include the duty to “[p]rovide reasonably complete and accurate information
as to the nature and amount of the trust property” to a qualified beneficiary, N.C.G.S.
4 Defendant Griffing concedes that Plaintiffs are entitled to the Residuary from the Revocable
Trust; however, he did not distribute the Residuary to Plaintiffs because, pursuant to N.C.G.S. § 36C-
6-604, he could have faced liability for distribution of the Revocable Trust property while this case was
pending. Under N.C.G.S. § 36C-6-604(b)(1), a “trustee shall not distribute trust property to any
beneficiary in contravention of the rights of any person who may be affected by the outcome of a
pending or possible judicial proceeding if, at the time the distribution is made,” the “trustee knows of
a pending judicial proceeding contesting the validity of all or part of the terms of the trust or contesting
the identity of the beneficiaries eligible to receive distributions therefrom.” N.C.G.S. § 36C-6-604(b)(1)
(2025).

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Opinion of the Court
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§ 36C-8-813 (2025), and the duty to “administer the trust in good faith, in accordance
with its terms and purposes and the interests of the beneficiaries, and in accordance
with this Chapter[,]” N.C.G.S. § 36C-8-801.
Here, in viewing the evidence in the light most favorable to Plaintiffs, there
are genuine issues of material fact regarding Plaintiffs’ Second Claim of Relief.
Notably, none of the parties submitted affidavits or depositions on this issue because
all parties had agreed that the only issue before the trial court was whether N.C.G.S.
§ 36C-6-604’s time-bar applied in this case. In fact, Plaintiffs’ counsel told the trial
court that he had “agreed to take all three of their depositions after this hearing
because it was solely limited to . . . the application of 36C-6-604[.]” Plaintiffs’ counsel
did acknowledge that Defendant Griffing had previously given them accounting;
critically, there was still a question as to whether that accounting was complete and
accurate. Defendant Griffing, who had the burden of proving he was entitled to
judgment as a matter of law, however, did not present any evidence that this
accounting was complete and accurate. Rather, Defendant Griffing’s “sole summary
judgment argument” was that, “if Codefendant’s summary judgment motion is
granted, there’s nothing substantive left in the case. Because we’ve understood this
to involve the trust throughout this case.” Based on our review of the Record, it is too
early in this proceeding for summary judgment on this issue. Consequently, the trial
court’s grant of summary judgment in Defendant Griffing’s favor is reversed.
C. Dedmon Defendants’ Cross-Appeal

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Opinion of the Court
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On cross-appeal, Dedmon Defendants assert that the trial court erred by
denying their motions to dismiss because Plaintiffs’ claims were barred by the
applicable statute of limitations.
Based on our conclusion that Plaintiffs’ Third Claim of Relief is barred by
N.C.G.S. § 36C-6-604, Dedmon Defendants’ cross-appeal is moot. “A case is ‘moot’
when a determination is sought on a matter which, when rendered, cannot have any
practical effect on the existing controversy.” Roberts v. Madison Cty. Realtors Ass’n,
Inc., 344 N.C. 394, 398–99 (1996) (citation omitted). “The general rule is that an
appeal presenting a question which has become moot will be dismissed.” Thomas v.
N.C. Dep’t of Hum. Res., 124 N.C. App. 698, 705 (1996) (citation omitted).
As discussed, Plaintiffs’ Third Claim of Relief was time-barred pursuant to
N.C.G.S. § 36C-6-604(a). Because we affirm the trial court’s order granting summary
judgment in the Dedmon Defendants’ favor, however, further determination of the
Dedmon Defendants’ cross-appeal would not have “any practical effect on the existing
controversy.” See Roberts, 344 N.C. at 398–99. As such, we dismiss the Dedmon
Defendants’ cross-appeal as moot. See Thomas, 124 N.C. App. at 705.
IV. Conclusion
For the forgoing reasons, we affirm the trial court’s order dismissing Plaintiffs’
First Claim of Relief. Additionally, because we conclude that Defendants were
entitled to judgment as a matter of law with respect to the Third Claim of Relief, but
not entitled to summary judgment on the Second Claim of Relief, we affirm the trial

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Opinion of the Court
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court’s order in part, reverse in part, and remand for further proceedings.
AFFIRMED IN PART; REVERSED IN PART AND REMANDED; CROSS-
APPEAL DISMISSED.
Chief Judge DILLON and Judge MURRY concur.