IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA23-927

Filed 7 May 2024

Henderson County, No. 19 CVS 1432

KAREN JONES, JONATHAN WAYNE CORN, 

JAN FRANKLIN CORN, and JESSICA CORN 

as mother and guardian ad litem of V.E.C.

and J.R.C. (minors), Plaintiffs,

v. 

ALBERT HOGAN CORN, JOYCE A. CORN,

KENNETH GREGORY CORN, and

GLENDA SUE CORN, Defendants.

Cross appeals by Plaintiffs and Defendants from order entered 6 June 2023 by 

Judge William H. Coward in Henderson County Superior Court. Heard in the Court 

of Appeals 14 March 2024. 

James W. Lee, III, for Plaintiffs-Appellants-Appellees.

Barbour, Searson, Jones & Cash, PLLC, by W. Scott Jones & W. Bradford 

Searson, for Defendants-Appellees-Appellants.

CARPENTER, Judge.

Both parties appeal from the trial court’s order denying Defendants’ motion for 

judgment notwithstanding the verdict (“JNOV”) and granting Defendants’ motion for 

a new trial. After careful review, we affirm the trial court’s order. 

I. Factual & Procedural Background

This appeal is about siblings disputing their parents’ estate. On 15 August 
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2019, brothers Albert Corn and Kenneth Corn sued their siblings, Karen Jones, 

Jonathan Corn, and Jan Corn, as well as V.E.C. and J.R.C.,

1 the grandchildren of 

their deceased brother, Chris Corn, for reformation of a deed. On 16 August 2019, in 

a separate case, Karen, Jonathan, Jan, V.E.C., and J.R.C. sued Albert and Kenneth 

for “lack of capacity/undue influence,” “distribution of trust property,” conversion, and 

breach of fiduciary duty. On 4 March 2022, the trial court consolidated the cases for 

trial.

Trial evidence tended to show the following. Albert Corn (“Father”) and 

Jeanette Corn (“Mother”) were married and had six children: Albert and Kenneth 

(“Defendants”), Karen, Jonathan, Jan, and Chris (“Plaintiffs”).2 On 14 March 2008, 

Father and Mother executed two trusts (the “Trusts”). Father was the grantor of one 

Trust, and Mother was the grantor of the other. Upon the death of Father and 

Mother, both Trusts named Defendants as co-trustees, and both Trusts mandated an 

equal distribution of Trust assets among Plaintiffs and Defendants. 

Also on 14 March 2008, Father and Mother executed two wills (the “Wills”). 

Under both Wills, Father and Mother bequeathed their property to each other. Under 

both Wills, the surviving spouse bequeathed his or her “tangible personal property” 

to Plaintiffs and Defendants. And under both Wills, the surviving spouse bequeathed 

1 V.E.C. and J.R.C. are minors. 

2 The trial court referred to Albert and Kenneth as the defendants and Karen, Jonathan, 

Jan, V.E.C., and J.R.C. as the plaintiffs. For consistency, we will do the same. 
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his or her residuary estate, meaning all undisposed “real and personal property,” to 

his or her Trust. 

Father died 31 August 2015; Mother died 19 August 2016. But before their 

death, in 2014, Father and Mother hired attorney Nicole Engel to further advise them 

about estate planning and property ownership. Attorney Engel is a certified elderlaw specialist. Defendants accompanied Mother and Father to their initial meeting 

with attorney Engel. After meeting with Father, Mother, and Defendants, attorney 

Engel instructed attorney Margaret Toms to prepare deeds (the “Deeds”) for Father 

and Mother concerning their home (the “Home”) and a separate tract of land (the 

“Tract”). Attorney Toms prepared the deeds. 

In the Home Deed, Father and Mother granted themselves a 99% share of the 

Home, and they granted each Defendant a .5% share of the Home. Father, Mother,

and Defendants held the Home as joint tenants with right of survivorship. In other 

words, if Defendants outlived Father and Mother, Defendants would own the Home 

upon the death of Father and Mother. 

In the Tract Deed, on the other hand, Father and Mother granted each of their 

Trusts a 49.5% share of the Tract, and they granted each Defendant a .5% share of 

the Tract. Like the Home, the Tract was held in joint tenancy with right of 

survivorship. But unlike the Home, Father and Mother’s deaths would not change 

the Tract’s ownership: The Tract would remain titled 49.5% to Father’s Trust, 49.5% 

to Mother’s Trust, and 1% to Defendants. In other words, the Tract would not become 
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the exclusive property of Defendants upon Father and Mother’s deaths. 

After executing the Deeds, attorney Engel sent a “follow-up” letter to Father 

and Mother. In the letter, attorney Engel stated the following: “Thus, because you 

individually and as trustees of your revocable trusts have retained majority 

ownership interest in your real property, the [United States Department of Veterans 

Affairs] will consider that you have resources equal to the tax value of your ownership 

interest in your real property.” 

Unhappy with the results of the Tract Deed, Defendants asked for reformation 

because the Tract Deed did not match Father and Mother’s intent. Defendants 

sought to reform the Tract Deed to reflect Father and Mother, individually, as 

grantees, rather than their Trusts as grantees. Put differently, Defendants sought 

to reform the Tract Deed to reflect Father and Mother’s intention for the Tract to be 

owned exclusively by Defendants after Father and Mother’s deaths. 

On the other hand, unhappy with both Deeds, Plaintiffs contended that the 

Deeds were invalid because (1) Father and Mother lacked capacity to consent to the 

Deeds, and (2) Defendants procured the Deeds through undue influence. And because 

the Home Deed was invalid, Plaintiffs argued that Defendants necessarily converted 

rental income from the Home after the death of Father and Mother. 

Attorney Engel testified that Father and Mother intended for the Tract to pass 

to Defendants after Father and Mother passed. Attorney Engel also testified that 

Father and Mother “probably would not have known, you know, the fact that if [the 
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Tract] stayed in the trust[, it] would not accomplish that goal.” Attorney Engel 

continued: “between Margaret and I, Margaret Toms, we did make a mistake in that 

deed. And that didn’t accomplish what the Corns’ intention was.” 

Dr. MaryShell Zaffino, Father’s primary-care provider from 2014 through 

2015, never noted concerns about Father’s mental health. Dr. Jennifer Wilhelm was 

Mother’s primary-care provider from 2012 through 2015, and she noted that Mother 

had anxiety and depression. 

Plaintiff Jan stated that Father was more depressed towards the end of his 

life. Further, she stated that Father experienced hallucinations after his 2014 heart 

surgery. But Plaintiff Jan also stated that, until his death, Father knew what 

property he owned, where his property was, and who his relatives were. Plaintiff Jan 

stated that Mother suffered from anxiety. 

Plaintiff John stated that Father lacked capacity to execute the Deeds, and he 

said that Mother had “a lot of depression.” Plaintiff Karen also thought Father lacked 

capacity to execute the Deeds; she also said that Father sometimes hallucinated. But 

Plaintiff Karen stated that, until his death, Father knew what property he owned, 

where his property was, and who his relatives were. Plaintiff Karen said Mother was 

depressed, and that Mother took several medications, which could disorient her. 

Plaintiffs could visit Father and Mother until their deaths; their access to 

Father and Mother was unmitigated. Attorney Engel did not suspect that Father and 

Mother were unduly influenced by anyone. 
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In addition to the Home and the Tract, the parties also disputed the contents 

of a lockbox (the “Lockbox”). Plaintiff Jonathan purchased the Lockbox for Father 

and Mother. Plaintiff Jonathan said that he put approximately $80,000 of Father 

and Mother’s cash into the Lockbox, and he never saw the Lockbox again. Defendant 

Kenneth said that Father, before his death, gifted him the Lockbox, so Defendant 

Kenneth did not report the Lockbox to Father’s estate. 

On 8 March 2022, at the close of Plaintiffs’ case, Defendants moved for directed 

verdicts concerning all of Plaintiffs’ claims. The trial court denied the motion. At the 

close of their case, Defendants renewed their directed-verdict motions concerning 

Plaintiffs’ claims and moved for directed verdict concerning their reformation claim. 

The trial court denied Defendants’ motions. 

On 10 March 2022, the jury found the following: Father and Mother lacked 

capacity to execute the Deeds; Defendants unduly influenced Father and Mother to 

execute the Deeds; the Tract Deed did not require reformation; Defendants converted 

rental income from the Home; Defendant Kenneth, but not Defendant Albert, 

converted the Lockbox and its contents; and Defendants owed punitive damages to 

Plaintiffs. 

On 16 March 2022, Defendants moved for JNOV “as to all claims and issues, 

except the issues of [Defendant Albert] and the [Lockbox], and, in the alternative, for 

a new trial.” On 6 June 2023, the trial court denied Defendants’ motion for JNOV 

and granted Defendants’ motion for a new trial. 
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Orders granting or denying either JNOV or a new trial do not require the trial 

court to make findings of fact. See Williams v. Allen, 383 N.C. 664, 670–72, 881 S.E.2d 

117, 121–22 (2022); N.C. Gen. Stat. §§ 1A-1, Rules 50, 59 (2023). Nonetheless, in its 

order denying JNOV and granting a new trial, the trial court found there was 

insufficient evidence to support the following jury verdicts: that Father lacked mental 

capacity to sign the Deeds; that Mother lacked mental capacity to sign the Deeds; 

that the Deeds were procured by Defendants’ undue influence; and that Defendants 

converted property from Plaintiffs. 

On 3 July 2023, Plaintiffs filed notice of appeal. On 11 July 2023, Defendants 

filed notice of appeal. 

II. Jurisdiction

This Court has jurisdiction under N.C. Gen. Stat. § 7A-27(b)(3)(d) (2023) 

(providing this Court jurisdiction over appeals from orders in which a superior court 

“[g]rants or refuses a new trial”). 

III. Issues

The issues on appeal are whether the trial court erred by: (1) denying 

Defendants’ motion for JNOV; or (2) granting Defendants’ motion for a new trial. 

IV. Analysis

A. Motion for JNOV

On appeal, Defendants argue that the trial court erred by denying its motion 

for JNOV. We disagree. 
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We review JNOV rulings de novo. Hewitt v. Hewitt, 252 N.C. App. 437, 441, 

798 S.E.2d 796, 799 (2017). Under a de novo review, this Court “‘considers the matter 

anew and freely substitutes its own judgment’ for that of the lower tribunal.” State 

v. Williams, 362 N.C. 628, 632–33, 669 S.E.2d 290, 294 (2008) (quoting In re Greens 

of Pine Glen, Ltd. P’ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)).

“The jury is a central foundation of our justice system and our democracy. 

Whatever its imperfections in a particular case, the jury is a necessary check on 

governmental power.” Pena-Rodriguez v. Colorado, 580 U.S. 206, 210, 137 S. Ct. 855, 

860, 197 L. Ed. 2d 107, 115 (2017). The jury’s role is to “weigh the evidence, determine 

the credibility of the witnesses, the probative force to be given to their testimony and 

determine what the evidence proved or did not prove. It [is] the province of the jury 

to believe any part or none of the evidence.” Daniels v. Hetrick, 164 N.C. App. 197, 

204, 595 S.E.2d 700, 704–05 (2004). 

But under certain circumstances, a trial court may usurp the jury’s role via 

JNOV. See N.C. Gen. Stat. § 1A-1, Rule 50(b)(1). A party can request JNOV by 

“mov[ing] to have the verdict and any judgment entered thereon set aside and to have 

judgment entered in accordance with his motion for a directed verdict . . . .” Id. JNOV 

“shall be granted if it appears that the motion for directed verdict could properly have 

been granted.” Id. 

A motion for JNOV “is essentially a renewal of an earlier motion for directed 

verdict.” Bryant v. Nationwide Mut. Fire Ins. Co., 313 N.C. 362, 368–69, 329 S.E.2d 
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333, 337 (1985) (citing Dickinson v. Pake, 284 N.C. 576, 583, 201 S.E.2d 897, 902 

(1974)). “Accordingly, if the motion for directed verdict could have been properly 

granted, then the subsequent motion for judgment notwithstanding the verdict 

should also be granted.” Id. at 369, 329 S.E.2d at 337 (citing Manganello v. 

Permastone, Inc., 291 N.C. 666, 670, 231 S.E.2d 678, 680 (1977)). 

A directed verdict, and thus JNOV, “is appropriate only when the issue 

submitted presents a question of law based on admitted facts where no other 

conclusion can reasonably be reached.” Ferguson v. Williams, 101 N.C. App. 265, 271, 

399 S.E.2d 389, 393 (1991) (citing Seaman v. McQueen, 51 N.C. App. 500, 503, 277 

S.E.2d 118, 120 (1981)). JNOV is a high hurdle:

the trial court must view all the evidence that supports the 

non-movant’s claim as being true and that evidence must 

be considered in the light most favorable to the nonmovant, giving to the non-movant the benefit of every 

reasonable inference that may legitimately be drawn from 

the evidence with contradictions, conflicts, and 

inconsistencies being resolved in the non-movant’s favor. 

Bryant, 313 N.C. at 369, 329 S.E.2d at 337–38 (citing Farmer v. Chaney, 292 N.C. 

451, 452–53, 233 S.E.2d 582, 584 (1977)). 

Here, the trial court denied Defendants’ JNOV motion concerning their claim 

for reformation and concerning Plaintiffs’ claims for lack of capacity, undue influence, 

and conversion. We will address each claim in that order. 

1. Reformation

There are “three circumstances under which reformation could be available as 
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a remedy: (1) mutual mistake of the parties; (2) mistake of one party induced by fraud 

of the other; and (3) mistake of the draftsman.” Janice D. Willis Revocable Tr. v. 

Willis, 365 N.C. 454, 457, 722 S.E.2d 505, 507 (2012) (citing Crawford v. Willoughby, 

192 N.C. 269, 271, 134 S.E. 494, 495 (1926)). Mistake of law is not a basis for 

reformation. See Mims v. Mims, 305 N.C. 41, 61, 286 S.E.2d 779, 792 (1982).

Here, Defendants asserted that the draftsman of the Tract Deed, attorney 

Toms, made a scrivener’s error in drafting the Tract Deed by listing the Trusts as 

grantees. Rather than their Trusts, Father and Mother should have been listed as 

grantees. To support this assertion, Defendants offered testimony from attorney 

Engel, who stated that “between Margaret and I, Margaret Toms, we did make a 

mistake in that deed. And that didn’t accomplish what the Corns’ intention was.” 

Viewing the evidence in the light most favorable to Plaintiffs, however, 

attorney Toms’ error can also be reasonably construed as a legal error. In her followup letter, attorney Engel stated that Father and Mother retained a majority 

ownership in the Home and the Tract, “individually and as trustees of [their] revocable 

trusts.” In fact, the text of the Trust Deed lists the Trusts as grantees. Attorney 

Engel’s letter, coupled with the text of the Trust Deed, signal that attorney Toms 

understood who she listed as grantees—but she, and attorney Engel, misunderstood 

the legal consequences of doing so. 

Therefore, resolving inconsistencies in Plaintiffs’ favor, see Bryant, 313 N.C. at 

369, 329 S.E.2d at 337–38, it is reasonable to conclude that attorney Toms made a 
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legal error, see Ferguson, 101 N.C. App. at 271, 399 S.E.2d at 393, which does not 

support reformation, see Mims, 305 N.C. at 61, 286 S.E.2d at 792. Accordingly, the 

trial court did not err by denying Defendants’ motion for JNOV concerning 

reformation because it is reasonable to conclude that reformation of the Tract Deed 

is inappropriate. See N.C. Gen. Stat. § 1A-1, Rule 50(b)(1). 

2. Lack of Capacity

A grantor of property must have capacity, and a grantor’s capacity requirement 

is the same as a testator’s. See Gilliken v. Norcom, 197 N.C. 8, 9, 147 S.E. 433, 433 

(1929) (“The law recognizes the same standard of mental capacity for testing the 

validity of both deeds and wills, although it is suggested that perhaps a court would 

scrutinize a deed more closely than a will.”); In re Will of Jarvis, 334 N.C. 140, 145, 

430 S.E.2d 922, 925 (1993) (stating the capacity standard for wills).3 

3 At oral argument, Plaintiffs pointed to Woody v. Vickrey, 276 N.C. App. 427, 857 S.E.2d 734

(2021) and asserted that grantors require a higher level of capacity than testators. They do not. 

We recognize that we used slightly different language to define grantor capacity in Woody. See 

id. at 441, 857 S.E.2d at 744 (citing Hendricks v. Hendricks, 273 N.C. 733, 734, 161 S.E.2d 97, 98 

(1968)) (“The capacity required to execute a deed includes: (1) understanding the nature and 

consequences of making a deed; (2) comprehending its scope and effect; and (3) knowing what land he 

is disposing of and to whom and how.”). But in Woody, we merely paraphrased the applicable rule and 

applied it to a deed–grantor scenario. See id. at 441, 857 S.E.2d at 744. 

We did not create a new rule; the rule for grantor capacity remains the same as the rule for 

testator capacity. See Gilliken, 197 N.C. at 9, 147 S.E. at 433. Understanding “the nature and 

consequences of making a deed” and the deed’s “scope and effect,” see Woody, 276 N.C. App. at 441, 

857 S.E.2d at 744, is no different than “know[ing] the manner in which [the testator] desires his act to 

take effect” and “realiz[ing] the effect his act will have upon his estate,” see In re Will of Jarvis, 334 

N.C. at 145, 430 S.E.2d at 925; and “knowing what land he is disposing of and to whom and how,” see 

Woody, 276 N.C. App. at 441, 857 S.E.2d at 744, is no different than “comprehend[ing] the natural 

objects of his bounty” and “understand[ing] the kind, nature and extent of his property,” see In re Will 

of Jarvis, 334 N.C. at 145, 430 S.E.2d at 925.
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A grantor has capacity if he: “(1) comprehends the natural objects of his bounty, 

(2) understands the kind, nature and extent of his property, (3) knows the manner in 

which he desires his act to take effect, and (4) realizes the effect his act will have upon 

his estate.” See id. at 145, 430 S.E.2d at 925 (citing In re Will of Shute, 251 N.C. 697, 

699, 111 S.E.2d 851, 853 (1960)). A lack of any element creates a lack of capacity, see

In re Will of Shute, 251 N.C. at 699, 111 S.E.2d at 853, but grantors are presumed to 

have capacity, see In re Will of Buck, 130 N.C. App. 408, 412–13, 503 S.E.2d 126, 130 

(1998). 

A challenger cannot establish lack of capacity without evidence concerning the 

grantor’s capacity when the grantor executed the deed. In re Est. of Whitaker v. 

Holyfield, 144 N.C. App. 295, 298, 547 S.E.2d 853, 856 (2001) (quoting In re Will of 

Buck, 130 N.C. App. at 413, 503 S.E.2d at 130). General statements about a grantor’s 

deteriorating health, alone, are insufficient to show a lack of capacity. In re Will of 

Buck, 130 N.C. App. at 412–13, 503 S.E.2d at 130. 

First, we must dispense with Plaintiffs’ contention that Father and Mother 

misunderstood the result of signing the Deeds; a misunderstanding of legal 

consequences does not create a lack of capacity. See In re Will of Farr, 277 N.C. 86, 

Although our state Supreme Court hinted that “a court would scrutinize a deed more closely 

than a will,” that scrutiny is in pursuit of “the same standard of mental capacity.” See Gilliken, 197 

N.C. at 9, 147 S.E. at 433. Our paraphrasing of an applicable rule should not be read as creating a 

new one. See Dunn v. Pate, 334 N.C. 115, 118, 431 S.E.2d 178, 180 (1993) (noting that we cannot 

overrule our state Supreme Court). 
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92, 175 S.E.2d 578, 582 (1970). 

Next, we must wrestle with two competing presumptions: (1) the presumption 

of capacity, see In re Will of Buck, 130 N.C. App. at 412–13, 503 S.E.2d at 130; and 

(2) the presumption that the jury got the capacity question correct, see Bryant, 313 

N.C. at 369, 329 S.E.2d at 337–38. To be sure, without more, Plaintiffs’ statements 

concerning Father and Mother’s deteriorating health do not refute the presumption 

of capacity. See In re Will of Buck, 130 N.C. App. at 412–13, 503 S.E.2d at 130. But 

Plaintiffs offered more: They testified that Father and Mother suffered from 

hallucinations. 

Defendants and Plaintiffs both offered evidence that undermined the premise 

that Father and Mother hallucinated when they executed the Deeds. For example, 

Plaintiff Karen stated that until his death, Father knew what property he owned, 

where his property was, and who his relatives were. And as another example, 

Father’s primary-care provider from 2014 through 2015 never noted any concerns 

about Father’s mental health, and Mother’s primary-care provider from 2012 through 

2015 only noted that Mother had anxiety and depression. 

Indeed, based on the evidence, the likelihood that Father and Mother both 

lacked capacity via hallucination seems slim. But we are reviewing a denial of JNOV; 

it was the jury’s role to weigh the evidence—not ours. See Daniels, 164 N.C. App. at 

204, 595 S.E.2d at 704–05 (noting that it is the jury’s role to “weigh the evidence, 

determine the credibility of the witnesses, the probative force to be given to their 
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testimony and determine what the evidence proved or did not prove”). 

Resolving every contradiction in Plaintiffs’ favor, evidence of Father and 

Mother’s declining health—coupled with evidence that they suffered from 

hallucinations—supports the trial court’s denial of JNOV concerning capacity. See

Bryant, 313 N.C. at 369, 329 S.E.2d at 337–38. In other words, the jury could have 

reasonably concluded that the parents hallucinated when they executed the Deeds, 

and the trial court was therefore correct in denying Defendants’ motion for JNOV

concerning capacity. See N.C. Gen. Stat. § 1A-1, Rule 50(b)(1).

3. Undue Influence 

“There are four general elements of undue influence: (1) a person who is subject 

to influence; (2) an opportunity to exert influence; (3) a disposition to exert influence; 

and (4) a result indicating undue influence.” In re Will of McNeil, 230 N.C. App. 241, 

245, 749 S.E.2d 499, 503 (2013) (quoting In re Sechrest, 140 N.C. App. 464, 469, 537 

S.E. 2d 511, 515 (2000)). Undue influence is a high standard. See In re Will of Jones, 

362 N.C. 569, 574, 669 S.E.2d 572, 577 (2008). It is:

a fraudulent influence, or such an overpowering influence 

as amounts to a legal wrong. It is close akin to coercion 

produced by importunity, or by a silent, resistless power, 

exercised by the strong over the weak, which could not be 

resisted, so that the end reached is tantamount to the effect 

produced by the use of fear or force.

Id. at 574, 669 S.E.2d at 577 (quoting In re Will of Turnage, 208 N.C. 130, 131–32, 

179 S.E. 332, 333 (1935)).
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There is no bright-line test to spot undue influence. In re Will of Andrews, 299 

N.C. 52, 54–55, 261 S.E.2d 198, 200 (1980). But the North Carolina Supreme Court 

has listed seven factors to consider when determining whether a person was unduly 

influenced:

1. Old age and physical and mental weakness.

2. That the person signing the paper is in the home of the 

beneficiary and subject to his constant association and 

supervision.

3. That others have little or no opportunity to see him.

4. That the will is different from and revokes a prior will.

5. That it is made in favor of one with whom there are no 

ties of blood.

6. That it disinherits the natural objects of his bounty.

7. That the beneficiary has procured its execution.

Id. at 55, 261 S.E.2d at 200 (quoting In re Will of Mueller, 170 N.C. 28, 30, 86 S.E. 

719, 720 (1915)). 

Here, similar to our capacity analysis, we must consider competing high 

standards: (1) the high standard for undue influence, see id. at 55, 261 S.E.2d at 200; 

and (2) the high standard for granting JNOV, see Bryant, 313 N.C. at 369, 329 S.E.2d 

at 337–38. Plaintiffs could visit Father and Mother until their deaths, and attorney 

Engel did not suspect that Father and Mother were unduly influenced. Plaintiffs, 

however, offered evidence concerning other Andrews factors. Concerning the first 

factor, Father and Mother were elderly and mentally weak. Concerning the sixth 

factor, both Deeds favored Defendants over Plaintiffs. And concerning the seventh 

factor, Defendants accompanied Father and Mother to their initial meeting with 
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attorney Engel. 

As we must give Plaintiffs the “benefit of every reasonable inference that may 

legitimately be drawn from the evidence,” see Bryant, 313 N.C. at 369, 329 S.E.2d at 

337–38, a jury could reasonably conclude that Defendants unduly influenced Father 

and Mother, and that Defendants benefitted from such influence, see In re Will of 

McNeil, 230 N.C. App. at 245, 749 S.E.2d at 503. Accordingly, the trial court did not 

err by denying Defendants’ motion for JNOV concerning undue influence. See N.C. 

Gen. Stat. § 1A-1, Rule 50(b)(1). 

4. Conversion 

Conversion requires “(1) an unauthorized assumption and exercise of right of 

ownership over property belonging to another and (2) a wrongful deprivation of it by 

the owner, regardless of the subsequent application of the converted property.” N.C. 

State Bar v. Gilbert, 189 N.C. App. 320, 324, 663 S.E.2d 1, 4 (2008). In short, 

conversion requires “(1) ownership in the plaintiff, and (2) a wrongful conversion by 

the defendant.” Bartlett Milling Co., L.P. v. Walnut Grove Auction & Realty Co., 192 

N.C. App. 74, 86, 665 S.E.2d 478, 489 (2008).

a. The Lockbox

Here, under both Wills, Father and Mother bequeathed their property to each 

other. Under both Wills, the surviving spouse bequeathed his or her “tangible 

personal property” to Plaintiffs and Defendants. And under both Wills, the surviving 

spouse bequeathed his or her residuary estate, meaning all undisposed “real and 
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personal property,” to his or her Trust. Both Trusts provided for equal distribution 

of Trust assets among Plaintiffs and Defendants. 

Plaintiffs offered no evidence that they owned the Lockbox before Father’s 

death. If Father owned the Lockbox at his death, however, Plaintiffs were ultimately 

entitled to an equal distribution of the Lockbox and its contents after Mother’s death. 

Arguing that Plaintiffs were not entitled to a portion of the Lockbox, Defendant 

Kenneth said that Father gifted him the Lockbox before Father died. So taking 

Defendant Kenneth’s testimony as true, he could not convert the Lockbox from 

Plaintiffs because Plaintiffs never owned the Lockbox. See Bartlett Milling, 192 N.C. 

App. at 86, 665 S.E.2d at 489. 

But in reviewing a JNOV denial, we do not take Defendants’ testimony as true. 

See Ferguson, 101 N.C. App. at 271, 399 S.E.2d at 393. Rather, we must look to see 

if another “conclusion can reasonably be reached.” See id. at 271, 399 S.E.2d at 393. 

Here, there was another reasonable conclusion: Defendant Kenneth lied; Father did 

not gift him the Lockbox. And that conclusion was for the jury to reach—not us. See 

Daniels, 164 N.C. App. at 204, 595 S.E.2d at 704–05. 

Thus, giving Plaintiffs the “benefit of every reasonable inference that may 

legitimately be drawn from the evidence,” see Bryant, 313 N.C. at 369, 329 S.E.2d at 

337–38, a reasonable jury could conclude that Father did not gift the Lockbox to 

Defendant Kenneth, and thus the Lockbox, and its contents, should have been equally 

distributed among Plaintiffs and Defendants after Father and Mother’s death. 
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Accordingly, the trial court did not err by denying Defendants’ motion for JNOV 

concerning conversion of the Lockbox. See N.C. Gen. Stat. § 1A-1, Rule 50(b)(1);

Bryant, 313 N.C. at 369, 329 S.E.2d at 337–38. 

b. Rental Income from the Home 

As detailed above, the jury concluded the Home Deed was invalid due to lack 

of capacity and undue influence, and the trial court correctly upheld that conclusion. 

The jury also concluded that Defendants converted rental income from the Home 

after the death of Father and Mother. The trial court upheld that conclusion, too.

Because it was correct for the trial court to uphold the jury’s conclusion on the Home 

Deed, it was necessarily correct for the trial court to uphold the jury’s conclusion 

concerning conversion of income from the Home. 

In the Home Deed, Father and Mother ostensibly granted themselves, 

individually, a 99% share of the Home, and they granted each Defendant a .5% share 

of the Home. In their Wills, Father and Mother bequeathed their property to each 

other, with the surviving spouse bequeathing his or her residuary estate, meaning all 

undisposed “real and personal property,” to his or her Trust. And both Trusts 

provided for equal distribution of Trust assets among Plaintiffs and Defendants. 

Father died 31 August 2015, and Mother died 19 August 2016. 

With an invalid Home Deed, the Home therefore remained in the grantors’ 

name, i.e., with Father and Mother. Thus, after Father and Mother died, the Home 

eventually passed equally to Plaintiffs and Defendants: First, the Home passed to 
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Mother after Father’s death; second, the Home passed to Mother’s Trust after 

Mother’s death; third, and finally, the assets in Mother’s Trust, including the Home, 

were to be equally distributed among Plaintiffs and Defendants. 

Therefore, because there was enough evidence for the jury to invalidate the 

Home Deed, there was enough evidence for the jury to find that Defendants converted 

the Home income. See Bryant, 313 N.C. at 369, 329 S.E.2d at 337–38. More 

specifically, there was enough evidence to show that (1) Plaintiffs were entitled to a 

portion of the Home, including income from the Home, and (2) Defendants deprived 

Plaintiffs their share of the Home income. See Bartlett Milling, 192 N.C. App. at 86, 

665 S.E.2d at 489. Accordingly, the trial court did not err by denying Defendants’ 

motion for JNOV concerning conversion of the Home income. See N.C. Gen. Stat. § 

1A-1, Rule 50(b)(1); Bryant, 313 N.C. at 369, 329 S.E.2d at 337–38. 

B. Motion for New Trial 

We now move to Plaintiffs’ argument on appeal. Plaintiffs contend that the 

trial court erred by granting Defendants’ motion for a new trial. We disagree. 

“It is impractical and would be almost impossible to have legislation or rules 

governing all questions that may arise on the trial of a case.” Shute v. Fisher, 270 

N.C. 247, 253, 154 S.E.2d 75, 79 (1967). Accordingly, unless bound by statutory 

obligation, “the presiding judge is empowered to exercise his discretion in the interest 

of efficiency, practicality and justice.” Id. at 253, 154 S.E.2d at 79. Following these

principles, Rule 59 of the North Carolina Rules of Civil Procedure allows a trial court
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to grant a new trial when the evidence is insufficient “to justify the verdict.” N.C. 

Gen. Stat. § 1A-1, Rule 59(a)(7) (2023). 

Unlike the usurping nature of JNOV, see id. § 1A-1, Rule 50(b)(1), a new trial 

gives the parties another chance to present their case—and it gives the jury another 

chance to resolve the case, see id. § 1A-1, Rule 59(a)(7). Thus, a new trial does not 

raise the same concerns as JNOV. See Pena-Rodriguez, 580 U.S. at 210, 137 S. Ct. 

at 860, 197 L. Ed. 2d at 115. 

“Where no question of law or legal inference is involved,” we review a trial 

court’s decision to grant a new trial for abuse of discretion. In re Will of Herring, 19 

N.C. App. 357, 359, 198 S.E.2d 737, 739 (1973); see also In re Will of Buck, 350 N.C. 

621, 629, 516 S.E.2d 858, 863 (1999) (reaffirming that “the uniform standard for 

appellate review of rulings on Rule 59(a)(7) motions for a new trial for insufficiency 

of the evidence” is abuse of discretion). 

Here, the trial court granted Defendants’ motion for a new trial because it 

found there was insufficient evidence to support the jury verdicts. Therefore, we will 

review the trial court’s order for abuse of discretion. See In re Will of Herring, 19 N.C. 

App. at 359, 198 S.E.2d at 739. 

“An abuse of discretion occurs when the trial court’s ruling is so arbitrary that 

it could not have been the result of a reasoned decision.” In re J.R., 250 N.C. App. 

195, 201, 791 S.E.2d 922, 926 (2016) (quoting In re Robinson, 151 N.C. App. 733, 737, 

567 S.E.2d 227, 229 (2002)). Indeed, “it is plain that a trial judge’s discretionary order 
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pursuant to [N.C. Gen. Stat. §] 1A-1, Rule 59 . . . may be reversed on appeal only in 

those exceptional cases where an abuse of discretion is clearly shown.” Worthington 

v. Bynum, 305 N.C. 478, 484, 290 S.E.2d 599, 603 (1982). 

A trial court’s decision to grant a new trial on all issues, rather than a portion 

of the issues, is also discretionary. Table Rock Lumber Co. v. Branch, 158 N.C. 251, 

253, 73 S.E. 164, 165 (1911). A trial court will typically grant a partial new trial 

“when the error, or reason for the new trial, is confined to one issue, which is entirely 

separable from the others, and it is perfectly clear that there is no danger of 

complication.” Id. at 253, 73 S.E. at 165. 

Here, in its order granting a new trial, the trial court found that there was 

insufficient evidence to support the following jury verdicts: that Father lacked mental 

capacity to sign the Deeds; that Mother lacked mental capacity to sign the Deeds; 

that the Deeds were procured by undue influence by Defendants; and that Defendants 

converted property from Plaintiffs. 

Given the detailed de-novo analysis required to discern whether Defendants

cleared the high JNOV hurdle, we cannot say that it was an abuse of discretion—that 

it was arbitrary—for the trial court to grant a new trial due to insufficient evidence. 

See In re J.R., 250 N.C. App. at 201, 791 S.E.2d at 926; N.C. Gen. Stat. § 1A-1, Rule 

59(a)(7). Our review of the record indicates a dearth of evidence supporting lack of 

capacity, undue influence, and conversion. Thus, the trial court’s decision to grant a 

new trial was the result of a reasoned decision and, therefore, not an abuse of
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discretion. See In re J.R., 250 N.C. App. at 201, 791 S.E.2d at 926. And because 

capacity, undue influence, and conversion are not “entirely separable” from the other 

issues in this case, the trial court did not abuse its discretion by granting a new trial 

on all issues. See Table Rock Lumber, 158 N.C. at 253, 73 S.E. at 165. 

Therefore, the trial court did not abuse its discretion by granting Defendants’ 

motion for a new trial because this is not the “exceptional case[] where an abuse of 

discretion is clearly shown.” See Worthington, 305 N.C. at 484, 290 S.E.2d at 603. 

V. Conclusion

We conclude that the trial did not err by denying Defendants’ motion for JNOV

or by granting Defendants’ motion for a new trial. 

AFFIRMED. 

Judges STROUD and COLLINS concur.