E_T_T_S

E_T_T_S • O I G • E A S • E A M • I I N

pancake : griddle :: hamburger : • lettuce • bun • ketchup • grill

Number of Appeals From Clerks You’ve Handled • 0 • 1-9 • 10-25 • More than 25

Standard of Review in Civil Matters Appealed from Clerk... • De novo • On the record • Abuse of discretion

Preferred Actions in Special Proceedings Transferred from Clerk • Hear only matter transferred • Hear entire matter • Hear matters requested by parties, remand others

Standard of Review in Estate Matters • De novo • Abuse of discretion • 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? • Yes • No

Can you appoint an executor if one is removed in a proceeding you hear? • Yes • No

Can you remove a trustee if you find the clerk erred in not finding a ground for removal? • Yes • 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? • Consolidate all matters into one proceeding • Dispose of clerks appeal, then civil matter • Dispose of civil matter, then hear appeal

Who has burden of going forward? • Slyly and then Job on his issue • Slyly on both cases • Job on both cases

Would you affirm the clerk’s order? • Yes • No

Executor objects to affidavits in your court. Do you sustain objection? • Yes • No

You sustain objections, and must decide if it is prejudicial error. Prejudicial error means... • Different result would likely have occurred • A high probability of a different result • A reasonable possibility of a different result • Other

You rule affidavits inadmissible and prejudicial. Would you? • Remand the case for a new hearing • Hear additional evidence and make new findings of fact • 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 … • Remand for a new hearing • Affirm the order • Reverse the order and remand

If the facts support removal of a trustee, would you appoint a new trustee? • Yes • 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 • Hear breach of fiduciary duty and send others back to clerk • Consolidate and hear all • 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 • W U U Q • W O U J • C A E X • S F O O

E_T_T_S

E_T_T_S

Presentation Transcript