Theodore Best, Jr. died in 1977 and appellant Best qualified
in April 1978 to serve as administrator of Theodore Best's estate("the estate"). Best filed accounts and an inventory through 1982.
After 5 August 1982, Best filed no accountings. The Orange County
Superior Court Clerk's Office sent Best notices to file annual or
final accounts on 24 April 1980, 29 April 1982, 9 February 1984, 21
June 1991, 7 October 1991, 4 February 1993, and 9 March 1993.
In March 1999, the clerk entered an order to appear and show
cause for failure to file an inventory/account. The hearing was
set for 2:00 p.m. on 7 April 1999. At 1:07 p.m., Best submitted
proposed annual accountings for the period from July 1982 through
April 1999. In the clerk's order dated 9 April 1999, she accepted
Best's resignation as administrator tendered orally in open court,
but also "order[ed] that he be removed as Administrator of the
above-entitled estate, effective[] immediately." The clerk allowed
Best until 21 April 1999 to file his final account as administrator
and to serve copies of his proposed final account on all the heirs.
The clerk noted that the "heirs were agreeable that the Court not
find Charles M. Best in contempt of the Court[.]" Linda Harris,
Pat Simons, and Ted Best were ultimately appointed as successor co-
administrators.
On 21 April 1999, Best filed a petition for payment of
commissions in the amount of $31,171.00 for serving as
administrator of the estate. On 2 June 1999, the heirs of the
estate filed notice of their objection to that petition.
On 10 August 1999, co-administrator Simons moved the court for
an order compelling Best to deliver to the co-administrators all
documents in his possession related to the estate, to transfer theestate funds to the co-administrators, and to appear and be
examined by the co-administrators and their attorney. On 10 August
1999, the clerk granted the motion and ordered Best to appear in
order to be examined concerning the property of the estate. The
clerk also ordered that Best bring with him all documentation
related to his administration of the estate. As a result, Best was
deposed on 8 September 1999 and 20 October 1999.
In August 2000, the clerk held a hearing on Best's April 1999
petition for payment of commissions. In an order signed 9 October
2000, but filed 28 December 2000, the clerk found that (1) Best had
commingled property and assets of the estate with property not a
part of the estate and with his own personal funds; (2) the estate
should have been reasonably closed years ago and the petitioner had
failed to provide any justifiable, reasonable explanation for the
delay in the administration of the estate; (3) the petitioner had
exhibited a pattern of refusal to obey orders of the court to file
annual accountings and the final account; and (4) Best "as
Administrator has been guilty of misconduct in the due execution of
his office by, among other things, failing to timely respond to
orders issued by the clerk of superior court to file Accountings
and by commingling his personal funds with the funds of the
estate." Based on the finding that Best "was guilty of misconduct
in the due execution of his office," the clerk denied Best's
petition for payment of commissions, ordering that he receive no
commission other than the $1,000.00 paid to him on 19 June 1979.
Best has not appealed from this order. On 12 February 2001, the co-administrators filed a "Motion to
Surcharge and Falsify Accounts of Former Administrator," seeking a
determination by the clerk of any amount due from Best "to the
estate for failure to account for funds received by him in the
estate or commingled by him with his personal funds." The clerk
held a hearing on this motion on 20 March 2001. The clerk signed
an order 16 April 2001 directing that the estate have and recover
from Best the sum of $38,635.89 for losses he caused to the estate.
Best appealed to the superior court, which heard the matter on
15 October 2001. In an order filed 17 January 2002, the superior
court reduced the principal amount for which Best was indebted to
the estate by $2,808.25, so that Best was ordered to pay the estate
$35,827.64. The clerk's order of 16 April 2001 was otherwise
affirmed. Best has appealed from the superior court's order.
The clerk heard this matter pursuant to N.C. Gen. Stat. § 1-
301.3 governing "matters arising in the administration of
testamentary trusts and of estates of decedents[.]" Under this
statute, a "party aggrieved" by an order of a clerk may appeal to
the superior court. N.C. Gen. Stat. § 1-301.3(c). On appeal, the
superior court judge's duty is to review the clerk's order to
determine only: (1) whether the findings of fact are supported by
the evidence; (2) whether the conclusions of law are supported by
the findings of fact; and (3) whether the order is consistent with
the conclusions of law and applicable law. N.C. Gen. Stat. § 1-
301.3(d). On further appeal, this Court's duty mirrors that of thesuperior court.
In re Estate of Monk, 146 N.C. App. 695, 697, 554
S.E.2d 370, 371 (2001),
disc. review denied, 355 N.C. 212, 559
S.E.2d 805 (2002).
Best first assigns error to the trial court's failure to
remand for a new hearing before the clerk or hold its own hearing
because the clerk's findings of fact were not supported by the
evidence. Best has not assigned error to any of the clerk's
specific findings of fact. It is well-established that "[a] single
assignment [of error] generally challenging the sufficiency of the
evidence to support numerous findings of fact, as here, is
broadside and ineffective."
Wade v. Wade, 72 N.C. App. 372, 375-
76, 325 S.E.2d 260, 266,
disc. review denied, 313 N.C. 612, 330
S.E.2d 616 (1985).
See also Okwara v. Dillard Dep't Stores, Inc.,
136 N.C. App. 587, 591, 525 S.E.2d 481, 484 (2000) ("Where findings
of fact are challenged on appeal, each contested finding of fact
must be separately assigned as error, and the failure to do so
results in a waiver of the right to challenge the sufficiency of
the evidence to support the finding."). Since Best did not
specifically assign error to any of the clerk's many findings of
fact, those findings are binding on appeal.
Koufman v. Koufman,
330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991).
We have nonetheless reviewed the clerk's findings of fact and
the arguments contained in Best's brief. Best contends that (1)
the clerk's order is inadequate for not discussing Best's evidence
and making no attempt to set forth his "side of the story"; (2) theevidence does not support certain findings of fact; and (3) the
order contains no ultimate facts. We disagree.
First, under N.C. Gen. Stat. § 1-301.3(b), "the clerk shall
determine all issues of fact and law." Accordingly, it is the
clerk's responsibility to weigh the evidence, make credibility
determinations, and find facts.
See Cartin v. Harrison, 151 N.C.
App. 697, 703, 567 S.E.2d 174, 178 (in a bench trial, questions of
weight and credibility are for the trial court),
disc. review
denied, 356 N.C. 434, 572 S.E.2d 428 (2002). The clerk is not
required to recite all of the evidence or set out all of each
party's factual contentions.
See Mitchell v. Lowery, 90 N.C. App.
177, 184, 368 S.E.2d 7, 11 ("The trial court need not recite in its
order every evidentiary fact presented at hearing, but only must
make specific findings on the ultimate facts . . . that are
determinative of the questions raised in the action and essential
to support the conclusions of law reached."),
disc. review denied,
323 N.C. 365, 373 S.E.2d 547 (1988). As Judge Jolly stated in the
15 October 2001 hearing, the clerk, "as a finder of fact, she
doesn't have to accept your proffer [of evidence in support of your
position]. She just has to make findings of fact. She can believe
or not believe anything you or they say."
Second, many of the findings that Best contends are
unsupported by evidence relate to misconduct by Best. Those
findings were previously made in the clerk's 28 December 2000
order. Since Best has not appealed that order, those findings are
binding.
Johnson v. Johnson, 7 N.C. App. 310, 313, 172 S.E.2d 264,266 (1970) ("The defendant did not appeal from this order. It
became, therefore, the law of the case[.]"). As for the remaining
findings challenged in Best's brief, the superior court determined
that they were supported by evidence with one exception that he
corrected. We have reviewed the record and agree with the superior
court.
Finally, our review of the clerk's order reveals that the
findings are adequate in form and, contrary to Best's contention,
logical. The order contains detailed findings, including both
evidentiary and ultimate facts.
Woodard v. Mordecai, 234 N.C. 463,
470, 67 S.E.2d 639, 644 (1951) ("Ultimate facts are the final facts
required to establish the plaintiff's cause of action or the
defendant's defense; and evidentiary facts are those subsidiary
facts required to prove the ultimate facts."). The clerk was not
obligated to do more.
To the extent Best has objected to the trial court's failure
to hold its own evidentiary hearing, such a hearing is not provided
for by N.C. Gen. Stat. § 1-301.3. That statute permits a superior
court to conduct an evidentiary hearing only if necessary to
determine whether prejudicial error occurred with respect to "the
admission or exclusion of evidence" before the clerk. N.C. Gen.
Stat. § 1-301.3(d). Best has not, however, challenged any
evidentiary ruling by the clerk.
Best's second assignment of error argues that the decisions
below should be reversed because the clerk failed to forward asummary of the evidence to the superior court as required by N.C.
Gen. Stat. § 1-301.3(f). That portion of the statute provides:
(f) Recording of Estate Matters. _ In the
discretion of the clerk or upon request by a
party, all hearings and other matters covered
by this section shall be recorded by an
electronic recording device. A transcript of
the proceedings may be ordered by a party, by
the clerk, or by the presiding judge. If a
recordation is not made, the clerk shall
submit to the superior court a summary of the
evidence presented to the clerk.
The parties apparently all believed that the hearing before the
clerk on 20 March 2001 was recorded; each of the prior hearings had
been recorded. The parties have not, however, been able to locate
any tapes of that hearing.
Best contends that the absence of a recording required the
clerk to submit a summary of the evidence to the superior court.
Best did not make this argument before the superior court. Rule
10(b)(1) of the Rules of Appellate Procedure provides: "In order
to preserve a question for appellate review, a party must have
presented to the trial court a timely request, objection or motion
. . . ." Because Best failed to object to the lack of a summary at
the superior court level, that question is not properly before us.
See Cody v. Hovey, 219 N.C. 369, 374, 14 S.E.2d 30, 32 (1941) (in
an appeal from the clerk to superior court in which the appellant
failed to raise a procedural irregularity, "[i]f there was any
irregularity in the procedure by which the appeal came on to be
heard by the judge, manifestly defendant has waived any right now
to object"). Finally, Best's third assignment of error contends that the
clerk's Order contains no conclusions of law although they are
mandated by N.C. Gen. Stat. § 1-301.3(b). Best is correct that
none of the numbered paragraphs in the clerk's order are
denominated conclusions of law and we agree that the better
practice would be for the clerk to have specifically identified her
conclusions of law. The superior court found "that although the
form of the Clerk's Order does not contain Conclusions of Law
separately denominated as such that the Conclusions of Law
appearing throughout the Order are sufficiently stated and are
sufficient to support the Findings of Fact . . . ." We agree.
Affirmed.
Judges McGEE and BRYANT concur.
Report per Rule 30(e).
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