Appeal by petitioner from an order entered 2 June 2005 by
Judge Ronald E. Spivey in Forsyth County Superior Court. Heard in
the Court of Appeals 12 April 2006.
Ross Law Firm, by C. Thomas Ross, for petitioner-appellant.
Bell, Davis & Pitt, P.A., by William K. Davis, Alan M. Ruley,
and Edward B. Davis, for respondents-appellees.
In an apparent attempt to avoid this Court's decision in
Whitaker v. Whitaker, 169 N.C. App. 256, 611 S.E.2d 899, 2005 N.C.
App. LEXIS 550, 2005 WL 589482 (Mar. 15, 2005) (unpublished)(hereinafter "Whitaker I"), affirming the trial court's enforcement
of a settlement entered into by petitioner Louisa B. Whitaker and
respondents, petitioner requested in this action that the clerk of
superior court and the superior court declare as void for lack of
subject matter jurisdiction Whitaker I and its underlying orders.
Petitioner appeals from the superior court's order affirming the
clerk's order, asserting that both the superior court and the clerk
erred in rejecting her subject matter jurisdiction argument. Even
assuming that petitioner's argument was properly raised in this
proceeding, because the lawsuit in Whitaker I was a breach of
contract action brought by petitioner to enforce various settlement
agreements entered into by the parties and did not involve issues
within the exclusive jurisdiction of the clerk, we affirm.
Respondents (John C. Whitaker, Elizabeth N. Whitaker, II, and
William A. Whitaker) and petitioner, who are all siblings, have
been involved in a series of legal disputes relating to their
mother and the administration of her estate for the past seven
years. In 1991, the parties' mother named respondent John Whitaker
and petitioner as her attorneys-in-fact. In 1999, respondents
filed a petition alleging various acts of misfeasance by petitioner
and sought to have her removed as attorney-in-fact (the "Special
Before the Special Proceeding was resolved, the parties'
mother died, an estate file was opened (the "Estate Proceeding"),
and the mother's will was admitted to probate. When the partiescould not agree on the administration of their mother's estate,
they participated in mediation with Judge James M. Long, a retired
superior court judge. That mediation resulted in a handwritten
Memorandum of Mediated Settlement Agreement (the "Memorandum").
Subsequently, petitioner refused to execute any formalized version
of the Memorandum.
Under their mother's will, petitioner and respondents
inherited, among other things, multiple pieces of real property as
joint tenants. Krispy Kreme Doughnut Corporation approached the
parties about the possibility of building Krispy Kreme's corporate
headquarters on a portion of this real estate. Respondents and
petitioner then executed an Amendment to Memorandum of Mediated
Settlement Agreement (the "Amendment"). The Amendment provided
that respondent John Whitaker would be the sole spokesperson and
negotiator for the family with Krispy Kreme and that a vote of
three out of the four siblings would be binding on the entire
group. Additionally, the Amendment provided that respondents would
voluntarily dismiss the Special Proceeding and the parties would
"[t]ake such steps as are necessary" to begin administration of
their mother's estate, including appointing both respondent John
Whitaker and petitioner as co-executors.
After extensive negotiations, a tentative agreement was
reached between respondent John Whitaker and Krispy Kreme.
Respondents thereafter executed the necessary documents for the
sale of the property. Although the Amendment required petitioner
to do the same, when she was asked to execute the documentsnecessary to finalize the sale, she refused, and the sale to Krispy
Kreme fell through.
Petitioner then sued respondents in superior court (civil
action number 02 CVS 1327), asserting three claims for relief: (1)
breach of contract, alleging that respondents had breached the
Memorandum and the Amendment; (2) breach of a trust agreement
relating to their mother's estate; and (3) a request for a
declaratory judgment that petitioner was not bound by the terms of
the Amendment. Respondents counterclaimed for breach of contract,
interference with contract, unfair and deceptive trade practices,
fraud, and punitive damages.
The parties filed cross-motions for partial summary judgment,
which were granted in part and denied in part by Judge Clarence E.
Horton, Jr. With respect to petitioner's claim that defendants had
breached the Memorandum and the Amendment by refusing to approve
payment of $40,937.50 in executor's fees, Judge Horton observed
that the parties were in agreement on the issue and ordered that
petitioner was entitled to executor's fees of $40,937.50, and
respondent John Whitaker was entitled to executor's fees of
$59,062.50. Judge Horton's order further provided that "summary
judgment is granted in favor of [respondents] on [petitioner's]
claim for reimbursement for estate expenses," but that "this ruling
is without prejudice to the right of [petitioner] . . . to seek
reimbursement of alleged estate expenses in the pending estate
proceeding before the Clerk." Additionally, Judge Horton's order
concluded that, under the terms of the Memorandum and theAmendment, "the attorneys for each side may
be paid fees and
expenses by or on behalf of the estate to a maximum of $35,000.00"
and, therefore, ordered that "each side's attorney's fees and
be paid by or on behalf of the Estate, up to a
maximum of $35,000.00." (Emphasis added.) Judge Horton made
various other rulings regarding petitioner's claims that are not
pertinent to this appeal.
The case proceeded to trial before Judge Russell G. Walker,
and, at the close of petitioner's evidence, Judge Walker granted a
directed verdict for respondents on all but one of petitioner's
remaining claims. At that point, with respondents' counterclaims
remaining to be tried, the parties negotiated a settlement in which
petitioner agreed to convey her interest in the disputed real
estate to respondents. Judge Walker thereafter convened a hearing
at which the attorneys read the terms of the settlement into the
record, which included: (1) respondents would pay petitioner $1.35
million; (2) petitioner would "execute deeds prepared by
[respondents'] counsel"; (3) petitioner could remove a portion of
the fixtures attached to the real estate; (4) executors'
commissions and attorneys' fees were to be paid in accordance with
Judge Horton's order; (5) the amounts remaining in the estate,
after payment of the applicable attorneys', executors', and
mediator fees, would be divided equally among the parties; (6) the
parties would execute "[c]omplete mutual general releases"; and (7)
any further disputes would be subject to binding arbitration.
When counsel for petitioner asked whether the agreement wouldbe reduced to writing, counsel for respondents stated: "I hope we
have more success than we did [previously], but if we don't, we
have a judge who can help us because we're stating this on the
record in the presence of the Court so that the Court can then
enforce the settlement agreement." Judge Walker then asked each of
the parties, "Do you agree and accept this settlement agreement and
will you sign, execute and do whatever else is necessary _ the
documents that are necessary to bring this about?" Petitioner and
each of the respondents stated their assent on the record.
Petitioner ultimately refused to sign a written settlement
agreement. Consequently, on 3 July 2003, respondents moved the
trial court for entry of a judgment consistent with the terms of
the settlement as stated on the record. Judge Walker granted the
motion, and, on 14 July 2003, entered judgment setting forth the
terms of the settlement. Petitioner appealed, and this Court
affirmed the trial court's judgment in Whitaker I
Following this Court's decision in Whitaker I
filed a petition in the Estate Proceeding seeking, among other
things, reimbursement for expenses and attorneys' fees she claimed
she incurred as co-executor of her mother's estate. On 18 February
2005, after holding a hearing on the matter, the clerk entered
findings of fact and conclusions of law in a 21-page document that
included 66 findings of fact and concluded that petitioner's
request for reimbursement should be granted in part and denied in
On the same date, the clerk entered an order setting forth herprecise rulings on each request. She denied the request for
reimbursement for flowers, for grave lot cleaning, in part for rug
cleaning, for mileage and other expenses, and for additional legal
fees above the $35,000.00 already paid to the attorneys for each
side. She granted the request for reimbursement for a grave
marker, for a real estate appraisal, in part for rug cleaning, and
for moving expenses and repair costs. Petitioner appealed to the
After holding a hearing on petitioner's appeal, Judge Ronald
E. Spivey entered an order on 2 June 2005. In his order, he noted
that petitioner, in addition to asking the court to vacate the
clerk's order, "sought to have this Court declare as null and void,
for lack of subject matter jurisdiction, (1) the Order of The
Honorable Clarence E. Horton, Jr., filed on May 15, 2003, in Civil
Action No. 02 CVS 1327, in Forsyth County Superior Court; (2) the
Judgment signed by The Honorable Russell G. Walker, Jr., and filed
on July 14, 2003, in 02 CVS 1327; and (3) the Order of the North
Carolina Court of Appeals, filed on March 15, 2005, No. COA 04-10,
which affirmed the Judgment of Judge Walker in 02 CVS 1327 in its
entirety." Judge Spivey concluded that the clerk's findings of
fact were supported by the evidence and that the conclusions of law
were supported by the findings of fact. He, therefore, affirmed
the clerk's findings of fact, conclusions of law, and order in
their entirety. Judge Spivey further ruled that the arguments
regarding the orders and Court of Appeals opinion in Whitaker I
constituted "an impermissible collateral attack . . . and thatestoppel applies to prevent such an attack." Petitioner timely
appealed to this Court from Judge Spivey's order.
 All but one of petitioner's 10 assignments of error are
based upon petitioner's contention that Judge Horton's order and
Judge Walker's judgment in 02 CVS 1327 (which was affirmed in
) are void because of a lack of subject matter
jurisdiction. We need not address the specifics of each assignment
of error or whether Judge Spivey properly concluded this argument
constituted an impermissible collateral attack since we hold that
the superior court did not lack subject matter jurisdiction.
"[O]riginal general jurisdiction of all justiciable matters of
a civil nature cognizable in the General Court of Justice is vested
in the aggregate in the superior court division and the district
court division . . . ." N.C. Gen. Stat. § 7A-240 (2005). "It is,
therefore, evident that except for areas specifically placing
jurisdiction elsewhere (such as claims under the Workers'
Compensation Act) the trial courts of North Carolina have subject
matter jurisdiction over all justiciable matters of a civil
nature." Harris v. Pembaur
, 84 N.C. App. 666, 668, 353 S.E.2d 673,
675 (1987) (internal quotation marks omitted).
Petitioner contends that Whitaker I
did not involve a general
civil matter, but rather resolved issues within the original and
exclusive jurisdiction of the clerk of superior court. Under N.C.
Gen. Stat. § 7A-241 (2005), "[e]xclusive original jurisdiction for
the probate of wills and the administration of decedents' estatesis vested in the superior court division, and is exercised by the
superior courts and by the clerks of superior court as ex officio
judges of probate according to the practice and procedure provided
by law." Thus, it is "[t]he clerk of superior court of each county
. . . [that has] jurisdiction of the administration, settlement,
and distribution of estates of decedents . . . ." N.C. Gen. Stat.
§ 28A-2-1 (2005). See also In re Estate of Adamee
, 291 N.C. 386,
395, 230 S.E.2d 541, 548 (1976) ("These statutes . . . clearly give
the clerk exclusive original probate jurisdiction.").
Nevertheless, contrary to petitioner's contentions, the order
and judgment in Whitaker I
did not address "the administration,
settlement, and distribution of estates of decedents . . . ." N.C.
Gen. Stat. § 28A-2-1. Rather, the Whitaker I
petitioner's claims that respondents were not complying with the
parties' prior settlement agreements arising out of a mediation.
In his partial summary judgment order, Judge Horton was determining
whether there were issues of fact regarding the terms of the
parties' agreement following the mediation. There can be no doubt
that the superior court has subject matter jurisdiction over such
claims. See, e.g.
, Chappell v. Roth
, 353 N.C. 690, 692, 548 S.E.2d
499, 500 (2001) ("This Court has previously stated that compromise
agreements, such as the mediated settlement agreement reached by
the parties in this case, are governed by general principles of
contract law."); DeGree v. DeGree
, 72 N.C. App. 668, 670, 325
S.E.2d 36, 37 ("ordinary contract[s]" are enforceable by trial
courts), disc. review denied
, 313 N.C. 598, 330 S.E.2d 607 (1985). Subsequently, petitioner's lawsuit went to trial as to the
issues relating to the Memorandum, the Amendment, and the trust
agreement not resolved by Judge Horton. After the parties reached
an oral settlement of those remaining issues, Judge Walker's
judgment merely enforced the settlement entered on the record.
Again, the superior court undoubtedly had jurisdiction. See, e.g.
Few v. Hammack Enters., Inc.
, 132 N.C. App. 291, 299, 511 S.E.2d
665, 671 (1999) (trial court may order specific performance of the
terms of a mediated settlement agreement).
Consequently, petitioner's contention that the superior court
lacked subject matter jurisdiction in the Whitaker I
without merit. The nine assignments of error that rely upon that
contention are, therefore, overruled.
 Petitioner contends in her remaining assignment of error
that the trial court erred when it stated that petitioner's notice
of appeal made only a "general objection" to the clerk's order.
Petitioner has, however, failed to demonstrate any harm from Judge
Judge Spivey's order specifies:
The Court has reviewed, paragraph-by-
paragraph, the Clerk's Findings of Fact,
Conclusions of Law and Order. The Court has
also reviewed portions of the transcript of
the hearing before the Clerk held on January
18, 2005, together with an Affidavit of a
witness at that hearing relating to matters
that were alleged not to be contained in the
record. . . .
The Court concludes, as a matter of law,
pursuant to N.C.G.S. § 1-301.3, that theClerk's Findings of Fact are supported by the
evidence; the Clerk's Conclusions of Law are
supported by the Findings of Fact; and the
Clerk's Order is consistent with the
Conclusions of Law and the applicable law in
the State of North Carolina.
In short, despite his belief that petitioner's notice of appeal was
inadequate as a general objection, Judge Spivey conducted a full
review of the Clerk's order.
Moreover, we agree with Judge Spivey that petitioner's notice
of appeal constituted only a general objection under N.C. Gen.
Stat. § 1-301.3 (2005). On appeal of estate matters determined by
the clerk, the superior court reviews an order of the clerk for
purposes of determining: (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 or
judgment is consistent with the conclusions of law and applicable
law. N.C. Gen. Stat. § 1-301.3(d). The superior court, however,
only reviews those "findings of fact which the appellant has
properly challenged by specific exceptions
." In re Estate of
, 271 N.C. 345, 354, 156 S.E.2d 693, 700-01 (1967) (emphasis
added). See also In re Estate of Longest
, 74 N.C. App. 386, 390,
328 S.E.2d 804, 807 ("Thus, in an appeal from an order of the Clerk
in a probate matter, the Superior Court is not required to conduct
a de novo
hearing. Rather, . . . when a finding of fact by the
Clerk of Court is properly challenged by specific exception
Superior Court judge will review those findings, and either affirm,
reverse, or modify them." (internal citation and quotation marks
omitted) (emphasis added)), appeal dismissed and disc. reviewdenied
, 314 N.C. 330, 330 S.E.2d 488 (1985).
In the present case, petitioner's appeal to the superior court
did not refer specifically to any of the clerk's 66 findings of
fact. Instead, petitioner's appeal states only:
[T]he findings of fact are not supported by
evidence, the conclusions of law are not
supported by the findings of fact, and the
order is inconsistent with the conclusions of
law, prior court orders and applicable law.
This statement constitutes only a broadside attack on the findings
of fact and thus the trial court did not err by concluding that
petitioner had only made a "general objection." See, e.g.
, Wade v.
, 72 N.C. App. 372, 375-76, 325 S.E.2d 260, 266 (1985) ("A
single assignment generally challenging the sufficiency of the
evidence to support numerous findings of fact, as here, is
broadside and ineffective."), disc. review denied
, 313 N.C. 612,
330 S.E.2d 616 (1985).
Judges TYSON and JACKSON concur.
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