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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
IN THE MATTER OF THE ESTATE OF PHILLIP A. MULLINS, III
Filed: 17 April 2007
A clerk of superior court complied with N.C.G.S. § 1-301.3(b) and made a specific
finding on the ultimate fact in issue (whether a testator's estate would remain closed) by finding
that an assistant clerk's order reopening the estate was improvidently and inappropriately entered,
that the order be set aside, and that the estate remain closed.
2. Estates_reopening_claims not filed--personal notice
The superior court did not err by affirming an order from the clerk of court that set aside
the reopening of an estate. Nothing in the record indicates that petitioners filed a claim against
the estate prior to its closing. Petitioners failed to show that they were entitled to personal notice
pursuant to N.C.G.S. § 28-14-1(b).
Judge GEER concurring in the result.
Appeal by petitioners Diane and Jacques Geitner from order
entered 2 November 2005 by Judge Timothy S. Kincaid in Catawba
County Superior Court. Heard in the Court of Appeals 7 February
McDaniel & Anderson, LLP, by L. Bruce McDaniel, for
respondent-appellees the Estate of Phillip A. Mullins, III,
Martha Mullins, Virginia Shehan, and Peter Menzies.
Robert J. King, III, and Janice L. Kopec, for petitioners-
Diane and Jacques Geitner (collectively, petitioners) appeal
from order entered affirming the Clerk of Superior Court's order
setting aside an Assistant Clerk's prior order reopening the Estate
of Phillip A. Mullins, III. We affirm.
Balfour Menzies (Menzies), P.G. Menzies, and W.B. Shuford
founded Southern Hosiery Mills, Inc. (SHM) in approximately 1945.
Menzies obtained ownership of virtually all of SHM's stock.
Menzies had two daughters, Diane Geitner (Diane) and Martha
Mullins (Martha). Menzies transferred most of his stock in SHM,
in equal parts, to Diane and Martha.
Diane married Jacques Geitner. Diane is the Secretary, a
director, and a shareholder of SHM. Jacques Geitner is a director
and shareholder of SHM. Petitioners own, or are the beneficiaries
of, approximately 49% of SHM's common stock.
Martha (respondent) married Phillip A. Mullins, III
(testator) and bore two children, Virginia Shehan and Peter
Menzies (the children). Respondent and her children are also
shareholders and directors of SHM. Testator served as a director
of SHM until Charles Snipes (Snipes) replaced him in 2003.
Testator also served as President and General Manager of SHM until
his death on 25 May 2004. Respondent qualified as executrix of
In December 2000, petitioners filed suit against several
defendants including testator and SHM. Petitioners asserted claims
for: (1) judicial dissolution; (2) breach of fiduciary duty; (3)
conversion and misappropriation; (4) usurpation of a corporate
opportunity; (5) civil conspiracy; (6) unjust enrichment; (7)
unfair and deceptive trade practices; (8) accounting; (9) judicial
removal of testator as director; and (10) breach of shareholders'agreement. The complaint included individual claims for monetary
relief against testator.
On 1 June 2002, the parties to that lawsuit entered into an
interim settlement agreement. Petitioners agreed to voluntarily
dismiss all claims without prejudice. The parties also entered
into an agreement which purported to toll the statute of
limitation's period applicable to petitioners' claims.
The parties attempted but were unable to resolve their
disputes. On 21 May 2004, petitioners' attorney wrote a demand
letter to SHM's attorney:
Over the course of an unknown number of years,
[testator], President of [SHM], has received
various moneys from [SHM], including salary,
bonuses, and benefits. As an officer of
[SHM], any compensation or other payment to
[testator] must be approved by a majority of
disinterested directors of [SHM]. No such
approval has been provided as to an unknown
number of payments, including but not limited
to a bonus paid to [testator] in 2003 and pay
increases and bonuses paid for at least the
ten years preceding 2003. [Petitioners] demand
that [SHM] take immediate steps to recover all
payments and benefits provided to [testator]
that were not approved by a majority of the
disinterested directors of [SHM].
This letter also stated: In the event this demand is not met,
[petitioners] will institute an action on behalf of [SHM] to
recover all amounts improperly paid to [testator]. A copy of this
demand letter was sent to Richard Vinroot, Esq. (Attorney
Vinroot) who represented testator, respondent, and SHM. Four days
later, on 25 May 2004, testator died.
On 26 May 2004, petitioners filed a declaratory judgment
action against testator, respondent, and the children. Petitionerssought a declaratory ruling that the votes of the Mullins
Shareholders do not count in determining matters related to
[testator] or members of his immediate family, and that the votes
of [petitioners] do count regarding such matters. This action did
not assert monetary claims against testator or the Estate.
Petitioners never served this complaint on testator, testator's
estate, respondent, or the children.
Respondent qualified as executrix of testator's estate and
opened the Estate in the Office of the Catawba County Clerk of
Superior Court. The Clerk issued letters testamentary. Beginning
on 18 June 2004, respondent published in the Hickory Daily Record
a statutory general notice to all creditors once a week for four
consecutive weeks. This statutory general notice notified all
existing and potential creditors to present any claim against
testator's estate on or before 18 September 2004. Petitioners did
not file a claim against testator's estate at any time on or before
18 September 2004. On 12 January 2005, the Clerk of Superior Court
ordered testator's estate closed.
On 13 January 2005, petitioners filed an amended complaint and
sought monetary relief against testator's estate in addition to
petitioners' declaratory judgment claim. An alias and pluries
summons was issued on 13 January 2005.
On 4 May 2005, petitioners petitioned the Catawba County Clerk
of Superior Court to reopen testator's estate. On petitioners' ex
parte motion, an Assistant Clerk initially reopened the Estate and
found that [n]ecessary act(s) remain unperformed by the PersonalRepresentative. Respondent requested a hearing before the Clerk
of Superior Court and objected to testator's estate being reopened.
On 9 June 2005, the Clerk conducted a formal hearing to
determine whether testator's estate would remain closed. The Clerk
heard arguments from both parties and considered the briefs and
record evidence. In an order filed on 16 June 2005, the Clerk
found that the order that reopened testator's estate was
improvidently and inappropriately entered and entered an order
setting aside the reopening the Estate.
On 21 June 2005, petitioners appealed the Clerk's order to the
Catawba County Superior Court. Petitioners alleged: (1) the
Clerk's order did not meet the procedural requirements of N.C. Gen.
Stat. § 1-301.3(b) and (2) respondent had knowledge of petitioners'
claim against testator's estate, but failed to provide them
The superior court heard petitioners' appeal on 10 October
2005 and entered an order on 2 November 2005 affirming the Clerk of
Superior Court's order setting aside the reopening of the estate.
Petitioners contend the Superior Court erred in affirming the
Clerk of Superior Court's order that set aside the reopening the
Estate and argue: (1) the Clerk's order did not contain findings
of fact or conclusions of law required by N.C. Gen. Stat. §
1-301.3(b) and (2) not reopening the Estate is contrary to theevidence presented and North Carolina General Statutes, Chapter
III. Standard of Review
This Court has stated both the Superior Court's standard of
review and this Court's standard of review on probate proceedings:
On appeal to the Superior Court of an order of
the Clerk in matters of probate, the trial
court judge sits as an appellate court. When
the order or judgment appealed from does
contain specific findings of fact or
conclusions to which an appropriate exception
has been taken, the role of the trial judge on
appeal is to apply the whole record test. In
doing so, the trial judge reviews the Clerk's
findings and may either affirm, reverse, or
modify them. If there is evidence to support
the findings of the Clerk, the judge must
affirm. Moreover, even though the Clerk may
have made an erroneous finding which is not
supported by the evidence, the Clerk's order
will not be disturbed if the legal conclusions
upon which it is based are supported by other
proper findings. In a non-jury trial, where
there are sufficient findings of fact based on
competent evidence to support the trial
court's conclusions of law, the judgment will
not be disturbed because of other erroneous
findings which do not affect the conclusions.
The standard of review in this Court is the
same as in the Superior Court.
In re Estate of Pate, 119 N.C. App. 400, 402-03, 459 S.E.2d 1, 2-3,
disc. rev. denied, 341 N.C. 649, 462 S.E.2d 515 (1995) (internal
quotations and citations omitted). Errors of law are reviewed de
novo. Overton v. Camden Cty., 155 N.C. App. 391, 393, 574 S.E.2d
157, 160 (2002).
IV. N.C. Gen. Stat. § 1-301.3(b)
 Petitioners contend the trial court erred in affirming the
Clerk of Superior Court's order setting aside the reopening of theestate without the clerk entering findings of fact or conclusions
of law required by N.C. Gen. Stat. § 1-301.3(b). We disagree.
N.C. Gen. Stat. § 1-301.3(b) states, [T]he clerk shall
determine all issues of fact and law. The clerk shall enter an
order or judgment, as appropriate, containing findings of fact and
conclusions of law supporting the order or judgment. (emphasis
supplied). 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. Mitchell v. Lowery, 90 N.C. App. 177,
184, 368 S.E.2d 7, 11, disc. rev. denied, 323 N.C. 365, 373 S.E.2d
547 (1988) (emphasis supplied). Ultimate facts are the final
facts required to establish the plaintiff's cause of action or the
defendant's defense. Woodard v. Mordecai, 234 N.C. 463, 470, 67
S.E.2d 639, 644 (1951).
The Clerk's order entered on 16 June 2005 made a specific
finding on the ultimate fact at issue. Petitioners asserted only
one ground to reopen testator's estate under N.C. Gen. Stat. § 28A-
23-5, Necessary act(s) remain(s) unperformed by the Personal
Representative. The Assistant Clerk found that [n]ecessary
act(s) remain unperformed by the Personal Representative and
initially reopened testator's estate. The ultimate fact before the
Clerk was whether testator's estate would remain closed.
The Clerk's order on 16 June 2005 made a specific finding on
this ultimate fact by stating, the order reopening the subjectestate was improvidently and inappropriately entered, and that the
same should be and is therefore set aside . . . and the estate
shall remain closed. The Clerk's order complied with the
requirements of N.C. Gen. Stat. § 1-301.3(b).
V. Reopening the Estate
 Petitioners also assert the Superior Court erred in
affirming the Clerk of Superior Court's order that set aside the
reopening of the Estate. Petitioner argues the evidence presented
and Chapter 28A of the North Carolina General Statute require
reopening the estate because: (1) there was a pending claim when
the Clerk closed the Estate; (2) petitioner was entitled to
personal notice; and (3) the Superior Court's conclusion that only
monetary claims pending against and owed by the Estate are entitled
to personal notice is contrary to the law.
A. Pending Claims
Petitioners contend the Clerk closed the Estate when a claim
was pending. Petitioners filed an Affidavit of Claim on 8 June
2005 after the Assistant Clerk reopened the estate on 5 May 2005
and before the Clerk set aside the reopening of testator's estate
on 16 June 2005. The Clerk's order that set aside the reopening of
the Estate and the trial court's order that affirmed the Clerk's
order did not address petitioners' 8 June 2005 claim. Petitioners
argue the 8 June 2005 claim is entitled to the same procedures as
a claim filed in the original administration pursuant to N.C. Gen.
Stat. § 28A-23-5. We disagree. N.C. Gen. Stat. § 28A-19-3 (2005) states, All claims against
a decedent's estate . . . which are not presented . . . by the date
specified in the general notice . . . are forever barred against
the estate . . . . N.C. Gen. Stat. § 28A-23-5 states, in relevant
part, no claim which is already barred can be asserted in the
A Notice to Creditors was published in the Hickory Daily
Record demanding any creditors of testator's estate submit their
claims on or before 18 September 2004. Petitioners did not file a
claim against the Estate with the executrix on or before 18
September 2004 or at any time prior to the closing of the Estate.
[N]o claim which is already barred can be asserted in the reopened
administration. N.C. Gen. Stat. § 28A-23-5. Petitioners' claim
was forever barred against the estate. N.C. Gen. Stat. § 28A-19-
3. This assignment of error is overruled.
B. Personal Notice
Petitioners also argue they were entitled to personal notice
pursuant to N.C. Gen. Stat. § 28A-14-1(b) because respondent had
knowledge of petitioners' claim against testator's estate. We
N.C. Gen. Stat. § 28A-14-1(b) mandates, [E]very personal
representative and collector shall personally deliver . . . to all
persons, firms, and corporations having unsatisfied claims against
the decedent who are actually known or can be reasonably
ascertained by the personal representative or collector within 75
days after the granting of letters. Petitioners argue respondent had knowledge of unsatisfied
claims asserted against testator and testator's estate by: (1)
petitioners' lawsuit against testator in 2000; (2) the tolling
agreement entered into by testator, respondent, and petitioners;
(3) petitioners' attorney allegedly telling respondent and testator
on 12 May 2004 that they would be sued for SHM paying cash bonuses
to testator without board approval; (4) petitioners' demand letter
sent 21 May 2004; (5) petitioners' declaratory judgment action
filed on 26 May 2004 against testator, respondent, and the
children; (6) petitioners informing Attorney Vinroot that they
would delay serving the 26 May 2004 lawsuit; and (7) petitioners'
settlement discussions with Attorney Vinroot in late 2004.
The record is clear that respondent did not have knowledge of
any unsatisfied claim against testator or the Estate. Petitioners
had settled and dismissed their December 2000 lawsuit against
testator without prejudice. Petitioners never served the 26 May
2004 lawsuit. Nothing in the record indicates petitioners filed a
claim against the Estate prior to its closing on 12 January 2005.
Nothing in the record before us indicates respondent was on notice
of any unsatisfied claim by petitioners. N.C. Gen. Stat. § 28A-
14-1(b). Petitioners were not entitled to personal notice under
N.C. Gen. Stat. § 28A-14-1(b). This assignment of error is
C. Nature of Petitioners' Claims
Petitioners contend the Superior Court's conclusion that only
monetary claims pending against and owed by the Estate are entitledto personal notice is contrary to the law. Petitioners argue the
Superior Court erred by limiting statutorily required personal
notice to purely monetary claims. We disagree.
The Superior Court did not conclude as a matter of law that
petitioners were entitled to personal notice only if their claim
was monetary. The Superior Court's conclusion of law states: At
the time [testator's] estate was closed on January 12, 2005,
[petitioners] had not filed any claims against the Estate and no
claims existed that could be administered by the Estate, i.e., no
monetary claims against the Estate had been asserted.
Petitioners have failed to argue or show the Superior Court
limited personal notice from respondent to solely monetary
claimants. This assignment of error is overruled.
The Clerk's order complied with the requirements of N.C. Gen.
Stat. § 1-301.3(b). The Clerk of Superior Court's order properly
set aside the Assistant Clerk's order reopening of the Estate.
Petitioners have failed to show they were entitled to personal
notice pursuant to N.C. Gen. Stat. § 28A-14-1(b) or the trial court
limited personal notice from respondent to solely monetary claims.
The trial court's order is affirmed.
Judge ELMORE concurs.
Judge GEER concurs in the result only by separate opinion.
GEER, Judge, concurring in the result.
Contrary to the majority opinion, I am not convinced that the
Clerk of Court made sufficient findings of fact in re-closing the
estate. Nevertheless, for the reasons stated in my concurrence in
the companion case, Geitner v. Mullins, 182 N.C. App. __, __ S.E.2d
__ (Apr. 17, 2007) (No. 06-547), I believe that plaintiffs have no
viable claim against the estate and, therefore, any error by the
Clerk was not prejudicial.
In plaintiffs' Affidavit of Claim Against the Decedent, they
The Geitners have an action pending in
Catawba County and styled as Diane Geitner,
individually and derivatively on behalf of
Southern Hoisery [sic] Mills, Inc., and
Jacques Geitner, individually and derivatively
on behalf of Southern Hosiery Mills, Inc. v.
Martha Mullins, Virginia Shehan, Peter
Menzies, Martha Mullins as Administratrix of
the Estate of Philip A. Mullins III and
Southern Hosiery Mills, Inc., 04 CvS 1632 (the
"Action"). The Action brings both a
derivative claim on behalf of Southern Hosiery
Mills, Inc. and a declaratory judgment claim
against the Estate of Philip A. Mullins.
Judgment in favor of the Geitners would result
in the Estate of Philip A. Mullins having to
return substantial funds to Southern Hosiery
The Affidavit contains no basis for a claim against the estate
other than the declaratory judgment and shareholder derivative
action. Because I would affirm the trial court's grant of summary
judgment as to both of the claims, plaintiffs are left with no
claim against the estate. Accordingly, they are not harmed by the
Clerk's order re-closing the estate. Alternatively, the appeal
from that order is moot.
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