E_T_T_S1. O I G

2. E A S

3. E A M

4. I I N

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Number of Appeals From Clerks You’ve Handled

1. 0

2. 1-9

3. 10-25

4. More than 25

Standard of Review in Civil Matters Appealed from Clerk...

1. De novo

2. On the record

3. Abuse of discretion

Preferred Actions in Special Proceedings Transferred from Clerk

1. Hear only matter transferred

2. Hear entire matter

3. Hear matters requested by parties, remand others

Standard of Review in Estate Matters

1. De novo

2. Abuse of discretion

3. Record review of findings and conclusions

Can you consolidate a civil action against an executor with an appeal of a clerk’s order declining to remove

him/her?

1. Yes

2. No

Can you appoint an executor if one is removed in a proceeding you

hear?

1. Yes

2. No

Can you remove a trustee if you find the clerk erred in not finding a

ground for removal?1. Yes

2. No

Appeals from the Clerk-2000 Revision

• Many individual, unique rules

• Conflicting rules

• Redundant rules

• Predates uniform court system

Appeals from the Clerk

• Goals of statutory revision– Provide clarity and reduce ambiguity– Promote uniformity and equal results– Provide guidance to those who don’t already

know– Change the law as little as possible

Appeals from the Clerk—Policy and Drafting Issues

• Retention of unique special proceeding rules

• Extent to which estate evidentiary rulings must be objected to before clerk

• Retention of appellate standard in estate cases

Appeals from the Clerk

• Civil (Pretrial and Post-trial) GS 1-301.1

• Special Proceedings GS 1-301.2

• Estate GS 1-301.3

Appeals from the Clerk

• Each section spells out procedure for handing appeals, and by implication, procedure for clerk to follow

• When clerk hears and when they transfer

• Effect of clerk’s decision

• Standard of review of decision in trial courts

Appeals from Clerk—Civil GS 1-301.1

• No transfer, but may appeal

• In most instances, judge has concurrent authority

• Standard on appeal is de novo

• Service of clerk’s orders not required by Rule 58

• Judge or clerk may issue stay

Appeals from Clerk—CivilGS 1-301.1

• If matter appealed, judge has discretion to hear all matters or decide appeal and remand to clerk

• If matter must be heard by clerk, must be remanded after appeal

Appeals from the Clerk-Special Proceedings—GS 1-301.2

• Transferred for issue of fact, equitable defenses or equitable relief in pleadings--otherwise heard to conclusion by clerk

• De novo review by trial court

• No transfer of incompetency proceedings, foreclosure, partitions, even if issues raised in pleadings

Appeals from the Clerk-Special Proceedings--GS 1-301.2

• Clerk or judge may issue stay

• Any matter previously transferred and determined by the court may not be relitigated under de novo appeal from clerk of same matter

Incompetency

• Must be heard by clerk

• Similar procedure to restore competency

• On appeal, standard is de novo– 2nd jury trial

• Appeal rules in GS 35A apply

Foreclosure

• Not transferred if issues of fact or equitable defenses are pleaded

• Must be heard by clerk

• Equitable defenses raised by superior court injunctive relief

Adoptions

•Appeals are to district court, not superior court, unlike most other special proceedings

Partition Proceedings GS 46-19

• If exception to report of commissioners, clerk must– Confirm report– Recommit report for further review– Vacate report and direct commissioners to submit

new report– Vacate report, appoint new commissioner

• On appeal, judge may only take actions clerk could have taken

Clerk’s Estates Jurisdiction GS 1-301.3

• Clerk has exclusive jurisdiction– Trusts– Estates of decedents

• Wills, intestate succession, administration of the estate property

– Guardianships of minors and incompetents, but not incompetency

• No transfer and trial judge has appellate jurisdiction only

Clerk’s Estate Procedures• Clerk hears and decides all estate matters

• Order--findings of fact and conclusions of law

• Recording on request of party or in clerk’s discretion, by electronic means– If no recording, clerk must prepare summary

for appeal

Estates on Appeal• On appeal judge to determine if

– Evidence supports findings

– Findings support conclusions

– Law supports order/judgment– Abuse of discretion?

– Elective Share exception

• Grounds for appeal must be stated– Evidentiary issues—no objection needed

– Judge decides if evidentiary matter is prejudicial; if so may hear matter or remand

• After appeal decided, must send back to clerk for any further administration

Grounds for Revoking Letters After Hearing

• Person disqualified under law

• Issuance of letters obtained by false representation or mistake

• Person violated fiduciary duty through default or misconduct in office

• Person has private interest that might tend to hinder or be adverse to proper administration of estate

Grounds for Revoking Letters After Hearing

• Person disqualified under law– under 18– adjudicated incompetent in formal proceeding– convicted felon– nonresident with no resident agent– corporation not authorized to act as PR– lost rights under GS Chapter 31A

Grounds for Removing a Trustee

• Trustee committed a serious breach of trust• Lack of cooperation among co-trustees

substantially impairs administration of the trust• Because of unfitness, unwillingness, or persistent

failure to administer trust effectively, removal is in best interest of beneficiaries

• Substantial change of circumstances, removal of trustee bests serves interests of beneficiaries and is consistent with material purpose of trust, and suitable successor is available

Jurisdiction of Trust Proceedings

• Before 2002 clerk’s jurisdiction to remove/ appoint successor trustee was through a special proceeding

• 1/1/2002 clerk has original and exclusive jurisdiction to– appoint or remove a trustee– permit trustee to renounce or resign– review fees and settle accountings– require bond

Jurisdiction of Trust Proceedings

• Clerk has original but not exclusive jurisdiction in a proceeding to – ascertain beneficiaries– determine question arising in administration or distribution

of trust– determine existence of trust

• Clerk may determine that superior court judge should hear these matters and transfer to judge

• Party may file declaratory action in superior court or remove to superior court trust matter filed before clerk that seeks declaratory relief

Jurisdiction of Trust Proceedings

• Judge, not clerk, has jurisdiction over actions – to reform, terminate or modify a trust– by or against creditors or debtors of trust– involving claims for monetary damages– to enforce a charitable trust– to amend or reform a charitable trust

Lawyers Have It Both Ways

• Trust proceeding before clerk and civil action before judge involving common question of fact or law—judge may order consolidation of cases and jurisdiction for all matters pending in superior court

• Civil action pending in superior court, party may join claims against another party even if otherwise within clerk’s exclusive jurisdiction

How would you proceed?

1. Consolidate all matters into one proceeding

2. Dispose of clerks appeal, then civil matter

3. Dispose of civil matter, then hear appeal

Who has burden of going forward?

33% 33%33%1. Slyly and then Job on his issue

2. Slyly on both cases

3. Job on both cases

Would you affirm the clerk’s order?

1. Yes

2. No

Executor objects to affidavits in your court. Do you sustain objection?

1. Yes

2. No

You sustain objections, and must decide if it is prejudicial error.

Prejudicial error means...1. Different result would

likely have occurred

2. A high probability of a different result

3. A reasonable possibility of a different result

4. Other

You rule affidavits inadmissible and prejudicial. Would you?

1. Remand the case for a new hearing

2. Hear additional evidence and make new findings of fact

3. Rule on the clerk’s order after excluding the improper evidence

If you find a reasonable basis for clerk’s findings, but you would have

reached a different conclusion, would you …

1. Remand for a new hearing

2. Affirm the order

3. Reverse the order and remand

If the facts support removal of a trustee, would you appoint a new

trustee?

1. Yes

2. No

None of the cases have been heard by the clerk but are before you and Job’s attorney

asks you to consolidate and hear all of them , would you

1. Hear breach of fiduciary duty and send others back to clerk

2. Consolidate and hear all

3. Consolidate removal of trustee and breach of fiduciary duty and send revocation of letters of PR back to clerk

These cases causeC_N_U_I_N

1. W U U Q

2. W O U J

3. C A E X

4. S F O O