An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1449


Filed: 3 August 2004

IN THE MATTER OF:                Orange County
                            No. 77 E 229

    Appeal by former administrator from order entered 17 January 2002 by Judge John R. Jolly, Jr. in Orange County Superior Court. Heard in the Court of Appeals 28 August 2003.

    Robert R. Chambers, for Charles M. Best, appellant.
    Coleman, Gledhill & Hargrave, P.C., by Douglas Hargrave, for the Estate of Theodore E. Best, appellee.


    GEER, Judge.

    Appellant Charles M. Best ("Best") appeals from the clerk of court's order directing that Best reimburse an estate for losses that he caused while administering the estate. He argues on appeal that the clerk's findings of fact are not supported by the evidence and are insufficient to support the clerk's order; that the clerk failed to forward to the trial court a summary of the evidence before her in violation of N.C. Gen. Stat. § 1-301.3 (2003); and that the clerk failed to include conclusions of law in her order as mandated by N.C. Gen. Stat. § 1-301.3. After a careful review of the record, we affirm.

    Factual Background
    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.

    Judges McGEE and BRYANT concur.
    Report per Rule 30(e).

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