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NO. COA09-478 NORTH CAROLINA COURT OF APPEALS Filed: 1 June 2010 THOMAS DUNN, Plaintiff, v. ALFRED W. COOK, JR., Individually; and ALFRED W. COOK, JR., TRUSTEE OF THE LAVOLA CARENDER LIVING TRUST, Defendants. Durham County No. 08 CVS 3502

Appeal by plaintiff from order entered on or about 5 December 2008 by Judge Kenneth Titus in Superior Court, Durham County. Heard in the Court of Appeals 15 October 2009.

Thomas, Ferguson & Mullins, L.L.P., by Jay H. Ferguson, for plaintiff-appellant. Hemphill Law Firm, PLLC, defendants-appellees. STROUD, Judge. Thomas Dunn ("plaintiff") appeals from an order granting the motion of Alfred W. Cook, Jr., individually and as trustee of the Lavola Carender Living Trust (referred to collectively as by Kathryn G. Hemphill, for

"defendants"), to remove this action from Durham County to Watauga County. As the remainder beneficiaries of the trust are necessary

parties to this action, we reverse the order of the trial court allowing the change of venue and remand to the Superior Court of Durham County for further proceedings.

-2I. Background

Lavola Carender established the Lavola Carender Living Trust ("the trust") in 1994 and transferred all of her real and personal property to the trust. On 21 December 2004, Ms. Carender executed

a restatement of the Trust ("2004 Restatement"), which appointed Alfred W. Cook, Jr. as co-trustee. The 2004 Restatement, in

Article 8, Section 8.01, provided that the trust property remaining after the Grantor's death would be distributed as follows: a. I direct my Trustee to distribute my home and 24.11 acres, being Tax Parcel #1869-99-2662-000 [referred to hereinafter as `the Watuaga County land'] to THOMAS DUNN of Elizabeth City, NC. In the event THOMAS DUNN is not living, then my home and 24.11 acres shall be distributed to ALFRED W. COOK, JR. b. The remaining trust property shall be distributed as follows: 1. 35% to the Lavola and Mary Launa Carender Scholarship Fund at Appalachian State University, Boone, NC. 2. 35% to the Lavola and Mary Launa Carender Scholarship Fund at Lees-McRae College, Banner Elk, NC. 3. 10% to the North Baptist Foundation, Inc. Carolina

4. 10% to The Baptist Children[`]s Homes of North Carolina. 5. 10% to The Cannon Hospital Foundation of Banner Elk, NC. We will refer to the charitable beneficiaries listed under

paragraph (b) above as the "remainder beneficiaries." On 4 August 2005, defendants and Ms. Carender executed a "First Amendment of the Lavola Carender Living Trust" ("2005

-3Amendment") which modified the 2004 Restatement. The modifications relevant to this appeal changed Article 8, Section 8.01 of the 2004 Restatement, dealing with the distribution of the remaining trust property, as follows: a. Prior to conveying any interest in real property to the beneficiaries set forth below,1 I direct that the Trustee take all necessary steps to convey a conservation easement to a reputable organization which shall effectively preserve the property as farmland and prevent any commercial development and any residential development of more than three (3) homes. b. I direct that Thomas Dunn of Elizabeth City, NC be given the right of first refusal to purchase any and all interest in my home and 24.11 acres, subject to a conservation easement as described above, being Tax Parcel #1869-99-2662-000, at fair market value, said right of first refusal to expire thirty (30) days from date notice is given to Mr. Dunn. In the event Thomas Dunn does not exercise his right of first refusal to purchase said property at fair market value, or he is not living, then I direct my Trustee to distribute my home and 24.11 acres to Alfred W. Cook, Jr. The percentage interests in the trust estate to be distributed to the remainder beneficiaries under the 2005 Amendment remained the same as under the 2004 Restatement. Ms. Carender passed away in 2007. Plaintiff, a resident of

Durham County, filed a complaint against defendants seeking to

The "beneficiaries set forth below" include Thomas Dunn and Alfred W. Cook, Jr., as stated in subparagraph (b). However, the remainder beneficiaries are all set forth in the next subparagraph, which is the original subparagraph (b) in the 2004 Restatement quoted herein above. The 2005 Amendment eliminates "subparagraph a. of Article 8 [of the 2004 Restatement] in its entirety" and substitutes subparagraphs (a) and (b) quoted here "in lieu thereof."

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-4rescind the 2005 Amendment on 30 May 2008. defendant Cook procured execution of Plaintiff alleged that 2005 Amendment by

the

constructive fraud, breach of fiduciary duty, breach of duty of loyalty, and undue influence. The complaint alleged that venue was proper in Durham County. Plaintiff requested the following relief: 1. For an order rescinding and setting aside the First Amendment of the Lavola Carender Living Trust; 2. For an order directing Alfred W. Cook, Jr., trustee, to comply with Section 8.01 of the Restatement of Trust Agreement; 3. In the alternative, to enter judgment against Alfred W. Cook, Jr., individually, in an amount in excess of $10,000; 4. For costs, interest, attorney fees and for such other relief as the Court deems just and proper; and 5. For a trial by jury.

Before defendants filed an answer, they filed a motion to remove the action for improper venue ("motion to remove") pursuant to Rule 12(b) of the North Carolina Rules of Civil Procedure and N.C. Gen. Stat.

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