Appeal by petitioners from order entered 17 August 1999 by
Judge Charles H. Henry in Carteret County Superior Court. Heard in
the Court of Appeals 22 August 2000.
Wheatly, Wheatly, Nobles & Weeks, P.A., by C.R. Wheatly, Jr.,
for petitioner-appellants Patricia Flowers Piner, Joseph M.
Flowers, and William C. Flowers, Jr.
Mason & Mason, P.A., by L. Patten Mason, for appellee Richard
C. Flowers.
SMITH, Judge.
On 9 June 1999, petitioner Patricia Flowers Piner (Patricia)filed in Carteret County Superior Court a "Petitio
n for
Adjudication of Incompetence and Application for Appointment of
Guardian." She sought to have her father, William C. Flowers (Mr.
Flowers), declared incompetent and a "Public Guardian" appointed to
handle Mr. Flowers' affairs. On 24 June 1999, the Clerk of
Superior Court of Carteret County conducted a hearing on the
matter. During the hearing, L. Patten Mason, attorney for Richard
Cass Flowers (Cass), who is a son of Mr. Flowers, moved that Cass
be appointed guardian. His motion was "predicated upon the alleged
powers of attorney appointing him as such and also to the effect
that he was the only one who really understood the properties owned
by [Mr. Flowers], and that he would be capable of managing the so
called estate."
By order filed 25 June 1999, the court allowed petitioners
Joseph M. Flowers (Joseph) and William C. Flowers, Jr. (William),
sons of Mr. Flowers, to be made parties to the action. On 29 June
1999, the clerk entered an order finding "clear, cogent, and
convincing evidence that [Mr. Flowers] is incompetent" and
appointing Cass guardian for Mr. Flowers. Petitioners appealed to
the superior court, which, in an order entered 17 August 1999,
concluded:
1.
The clerk's findings of fact in her June
29, 1999 order are supported by the
evidence and testimony received during
the June 24, 1999 hearing.
2.
The clerk's conclusions of law are
supported by her findings of fact
contained in the above order.
3.
The clerk has not abused her discretion
in the appointment of Richard Cass
Flowers as general guardian.
From this order, petitioners now appeal.
I.
[1]We first point out the superior court's standard of review
in a proceeding to appoint a guardian for an incompetent:
In the appointment and removal of guardians,
the appellate jurisdiction of the Superior
Court is derivative and appeals present for
review only errors of law committed by the
clerk. In exercising the power of review, the
judge is confined to the correction of errors
of law. The hearing is on the record rather
than
de novo.
In re Simmons, 266 N.C. 702, 707, 147 S.E.2d 231, 234 (1966)
(internal citations omitted);
see also In re Bidstrup, 55 N.C. App.394, 396, 285 S.E.2d 304, 305 (1982) ("The clerk's appointme
nt of
a guardian for an incompetent's estate therefore involves a
determination too routine to justify saddling a superior court
judge with a review any more extensive than a review of the
record."). Likewise, when the superior court sits as an appellate
court, "[t]he standard of review in this Court is the same as in
the Superior Court."
In re Estate of Pate, 119 N.C. App. 400, 403,
459 S.E.2d 1, 2-3 (1995) (citation omitted).
II.
[2]Petitioners first contend the clerk of court erred in
appointing Cass as guardian for Mr. Flowers. They argue that the
evidence before the clerk substantiated their claim that Cass "had
already obtained over three and one-half million dollars from [Mr.
Flowers] by the use of a power of attorney that was fraudulently
obtained and was holding said sum for his own use and benefit."
Accordingly, petitioners contend, the clerk's appointment of Cass
was contrary to law and reversible error. We disagree.
Looking to the record as it was submitted to us,
(See footnote 1)
the evidence
of Mr. Flowers' incompetence was uncontested and not challenged on
appeal. Mr. Flowers' decline began in the early 1990's; his
communication skills had greatly declined by the end of 1995 and
had ceased by 1998. Other evidence before the clerk was that Mr. and Mrs. Flowers
resided in the motel they owned and ran in Atlantic Beach.
William, a resident of Kannapolis, testified that he visited
several times a year. He testified that when the motel burned down
in early 1996, Cass took Mr. and Mrs. Flowers in and helped rebuild
the motel. The Flowers' returned to the motel upon completion of
the renovation. When Mrs. Flowers died, Cass assumed the care-
taking of Mr. Flowers.
The middle son, Joseph, also testified. Joseph lives in
Florida and testified that he had visited several times since Mr.
Flowers got sick and that recently Mr. Flowers was unable to
acknowledge Joseph was his son. He testified that Cass seemed to
be responsible for the ongoing care of Mr. Flowers; Mr. Flowers'
physical care was good.
Patricia testified she has had a good relationship with her
father. However, when she inquired in July 1995 about his hygiene,
Mr. Flowers asked her to leave. Her next visit to her parents was
after the motel burned. From January to mid-October 1998, Patricia
ran the motel for her father. She testified she did not visit her
parents when they were with Cass. Patricia further testified that
Cass has provided for Mr. and Mrs. Flowers, but contended that he
received expense checks from the motel.
Also testifying was Robert Cummings (Cummings), the attorney
who drafted Mr. Flowers' will and power of attorney in 1995. After
counseling Mr. and Mrs. Flowers, he formed the opinion that Mr.
Flowers was competent. Accordingly, he prepared the documents andsent them to Mr. and Mrs. Flowers for their review. The couple
made a few changes and came to Cummings' office to sign the will.
Cummings went over the details of the will with Mr. Flowers. They
conversed about family and politics. Cummings testified that Mr.
Flowers gave good answers but seemed a bit hard of hearing. Mr.
Flowers signed the documents in the presence of witnesses.
Cummings spoke again with Mr. and Mrs. Flowers on two or three
occasions after the motel burned. On 8 August 1997, he prepared an
affidavit regarding Mr. Flowers' competence.
Cecil Harvell (Harvell), an attorney hired by Cass in 1998,
prepared an irrevocable trust, which was signed by Mr. Flowers and
was for the benefit of Mr. Flowers during his lifetime and, upon
the death of Mr. Flowers, for the benefit of Cass's children.
Harvell testified that the purpose of the trust was to give relief
from federal estate and inheritance taxes.
Several documents were entered in evidence: (1) Mr. Flowers'
1995 will left all of his tangible property to his wife if
surviving, otherwise to Cass. It gave $100.00 to each of the four
children; it provided that, of Mr. Flowers' shares of stock in
Flowers Development Corporation, Inc., one-half each would be
distributed to Mrs. Flowers and Cass. Mr. Flowers' residuary
estate was bequeathed to his wife, if surviving, otherwise to Cass.
Cass and Mrs. Flowers were appointed co-executors of his estate.
(2) Mr. Flowers' 1995 general power of attorney appointed Mrs.
Flowers and Cass as attorneys-in-fact. (3) Mr. Flowers' 1995
health care power of attorney appointed Mrs. Flowers and Cass ashealth care attorneys-in-fact. (4) Cummings' affidavit detailed
the correspondence involved in drafting the 1995 documents and
attested to the competence of Mr. Flowers at the time of execution.
(5) An Amendment and Restatement of Power of Attorney, signed by
Mr. Flowers in December 1998, again appointed Cass as attorney-in-
fact and Sylvia M. Flowers as successor attorney-in-fact.
Based on the foregoing evidence, the clerk made the following
findings of fact:
1. On the 11th day of May, 1995,
William C. Flowers signed a general power of
attorney as well as a health care power of
attorney, both of which documents provided
that in the event it became necessary for a
court to appoint a guardian of W.C. Flowers'
property, he nominated his agents (Richard
Cass Flowers and Grace L. Flowers) to be
guardian of his property and to serve without
bond or security. Grace L. Flowers is now
deceased.
2. The general power of attorney and
health care power of attorney above referenced
both provided that if one of the agents or
attorneys in fact was unable to serve, then
William C. Flowers appointed the remaining
agent to act as his successor agent and to be
vested with the same powers and duties.
3. At the time William C. Flowers
signed the general power of attorney and the
health care power of attorney, he was
competent and had the legal capacity to sign
said documents.
4. The guardian ad litem recommended to
the Clerk that Richard Cass Flowers be
appointed general guardian for his father,
William C. Flowers.
5. Richard Cass Flowers has cared for
his father and been responsible for his
father's estate exclusively since the time of
his mother's death in August of 1998.
6. Richard Cass Flowers' performance of
his duties in caring for the personal and
estate interests of William C. Flowers has
been pursuant to the 1995 power of attorney
and health care power of attorney.
7. Richard Cass Flowers has kept
accurate records of the receipts and
expenditures that he has handled [o]n behalf
of his father.
8. The petitioner has requested the
Clerk to appoint the public guardian to serve
as general guardian for William C. Flowers.
9. The estate of William C. Flowers
consists of a motel, rental property and other
assets which require extensive time and
knowledge to manage. The public guardian does
not have the time, personnel or resources to
be guardian of the estate of William C.
Flowers.
Based on these findings, the clerk concluded:
2. At the time William C. Flowers
signed the general power of attorney and the
health care power of attorney, he was
competent and had the legal capacity to sign
said documents.
3. Richard Cass Flowers is not
disqualified from being general guardian of
his father's estate and person.
4. No good cause has been shown as to
why Richard Cass Flowers should not serve as
general guardian for his father.
5. The appointment of Richard Cass
Flowers as guardian for his father, William C.
Flowers, is in the best interest of William C.
Flowers[.]
Our review of the record shows plenary evidence to support the
clerk's findings, and we discern no error of law in appointing Cass
as guardian. The clerk aptly reviewed the evidence and applied thelaw to the evidence presented. This assignment of error is
overruled.
III.
[3]Petitioners next contend "there was insufficient evidence
offered at the hearing to justify the clerk to find that a will of
William C. Flowers would be probated that would devise the bulk of
the estate of William C. Flowers to Richard Cass Flowers." This
argument is without merit.
First, the phraseology of petitioners' argument would lead one
to believe that the clerk made a "finding of fact" that Mr.
Flowers' will would devise the bulk of his estate to Cass.
However, no such finding exists. The only language resembling that
offered by petitioners is found in a document entitled "Statment
[sic] by Clerk on Appeal," which was submitted to the superior
court on petitioners' appeal. The statement reads in pertinent
part:
The Court notes that if it appears that
[Cass] has been presumptuous with indicating
how property in the Trust should be directed
upon the death of his father, it does follow
the direction of the Last Will and Testament.
Taking all matters in consideration, it is
reasonable to believe that the copy of the
Last Will and Testament could be probated, at
the proper time.
The clerk never made a "finding" in this regard; indeed, such a
finding would have been beyond the scope of the clerk's authority.
Second, in making this argument, petitioners' brief refers
this Court to its Assignment of Error #2, which reads: "The
appointment of the guardian was made on the basis of a falserepresentation or a mistake by the Clerk in considering alleged
copies of a will, health care power of attorney, and general power
of attorney, the originals of which were destroyed." The argument
made in their brief, while referencing Assignment of Error #2, is
at best minimally related to the assigned error. The case law
cited and argued on appeal relates solely to issues surrounding the
validity or invalidity of a will. The issue presented to the
clerk, and now on appeal to this Court, is the proper or improper
appointment of a guardian. Mr. Flowers' will, power of attorney,
and health care power of attorney merely evidenced Mr. Flowers'
trust in and reliance on Cass and his desire to provide for a child
who had provided care and support for him. The potential
invalidity of the documents was a fact to be considered by the
clerk in weighing the credibility of the evidence. Accordingly,
this assignment of error is overruled.
As a final matter, we note that petitioners' assignments of
error set forth in the record on appeal fail to make "clear and
specific" references to the record or transcript. N.C. R. App. P.
10(c)(1). While this alone subjects an appeal to dismissal, we
have thoroughly considered the arguments raised on this appeal and
found them meritless. The order of the superior court is affirmed.
Affirmed.
Judges GREENE and EDMUNDS concur.
Footnote: 1