Link to original WordPerfect file
Link to PDF file
How to access the above link?
Return to nccourts.org
Return to the Opinions Page
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 RE: ESTATE OF DANIEL MURRILL RAND
Filed: 5 June 2007
1. Rules of Civil Procedure_applicability_estate matters
The Rules of Civil Procedure applied in a an estate proceeding arising from the final
accounting and the commission paid to the personal representative of an estate. The phrase all
actions and proceedings of a civil nature in N.C.G.S. § 1A-1, Rule 1 is broad and encompasses
different types of legal actions, not just those begun with a compliant. Moreover, the decision to
impose Rule 11 sanctions was well within the Superior Court judge's authority and discretion.
2. Appeal and Error_assignment of error_to the matter underlying sanctions_appeal
to superior court in that matter not timely--no Court of Appeals jurisdiction
An assignment of error was dismissed where the basis of the appeal was a Rule 11
sanctions order, but the assignment of error challenged an underlying reason for that order. The
matter arose from an order closing an estate, appeal from that order was not timely, and the Court
of Appeals lacked jurisdiction.
Appeal by respondents from order entered 29 March 2005 by
Judge W. Allen Cobb, Jr., in Onslow County Superior Court. Heard
in the Court of Appeals 20 February 2007.
Gaylor, Edwards & Vatcher, by Jimmy F. Gaylor, for
White & Allen, P.A., by Thomas J. White, III, for petitioner-
The North Carolina Rules of Civil Procedure apply to all
actions and proceedings of a civil nature.
(See footnote 1)
Here, heirs to the
Estate of Daniel Murrill Rand argue that their challenge to the
administratrix's commission and accounting was not a civil action,
such that the Rules should not apply. Because we find that anestate proceeding is a proceeding of a civil nature, we uphold
the trial court's determination that the Rules of Civil Procedure
apply to this matter.
On 6 April 1999, Daniel Murrill Rand died intestate, leaving
his wife, Respondent Linda Rand, and his seven daughters as the
heirs to his estate. On 30 December 1999, Ms. Rand qualified as
the personal representative of Mr. Rand's estate. Beginning in
2002, five of the daughters, including Melanie Rand Shepard,
challenged Ms. Rand's handling of the estate regarding the
commissions paid for her services as representative and the final
accountings she submitted to the Clerk. A number of those appeals
were filed after the time for doing so had expired, and all were
adversely determined against the daughters in favor of the
administratrix, Ms. Rand.
On 15 April 2004, Ms. Rand filed and had approved a final
accounting of the estate. In response, Ms. Shepard and her sisters
filed a motion and notice of appeal on 27 April 2004, requesting
the court to review the Clerk's order and to conduct an accounting.
On 20 October 2004, Ms. Rand filed a motion to dismiss the appeal
and sought an order for sanctions and attorney's fees under Rule 11
of the North Carolina Rules of Civil Procedure. After a hearing,
the trial court granted Ms. Rand's request and dismissed the appeal
by Ms. Shepard and her sisters on 26 October 2004.
On 29 March 2005, the trial court issued an order imposing
sanctions and attorney's fees on Ms. Shepard, her four sisters, and
her attorney Jimmy F. Gaylor, under Rule 11(a) of the NorthCarolina Rules of Civil Procedure. In that order, the trial court
noted that the 27 April 2004 appeal was not well-grounded in fact
nor was it warranted by existing law or a good faith argument for
the extension, modification, or reversal of existing law, and that
it was signed and filed in violation of Rule 11(a), North Carolina
Rules of Civil Procedure. The trial court stated that the appeal
had not been timely filed and that a direct appeal does not lie to
the Superior Court from the Clerk of Court to review or vacate an
ex parte award of commissions and approval of final accounts.
Moreover, the trial court found no abuse of discretion by the Clerk
and that the pleading had not set forth any facts that would have
served as the grounds for such a finding. The trial court
concluded that Ms. Shepard, her sisters, and Mr. Gaylor should have
known that the appeal was without merit and that the proceeding was
not warranted by law.
Although the order found Ms. Shepard, her four sisters, and
her attorney jointly and severally liable, only Ms. Shepard,
through her attorney Mr. Gaylor, appeals the order of sanctions and
attorney's fees. She argues that the trial court committed
reversible error by (I) granting Rule 11 sanctions and attorney's
fees, and (II) concluding as a matter of law that a direct appeal
does not lie to the Superior Court from the Clerk of Court to
review or vacate an ex parte award of commissions and approval of
 First, Ms. Shepard argues that the trial court committedreversible error by granting Rule 11 sanctions and attorney's fees,
asserting that the North Carolina Rules of Civil Procedure do not
apply in probate cases. We disagree.
The North Carolina Rules of Civil Procedure govern the
procedure . . . in all actions and proceedings of a civil nature
except when a differing procedure is prescribed by statute. N.C.
Gen. Stat. § 1A-1, Rule 1 (2005). In her brief to this Court, Ms.
Shepard suggests that the phrase all actions and proceedings of a
civil nature does not refer to estate proceedings because no
complaint has been filed and, as such, there is no civil action.
Ms. Shepard cites to a number of cases in her brief which
support the longstanding rule in North Carolina that the Clerk of
Superior Court has original jurisdiction in an estate matter, while
the Superior Court Judge has derivative jurisdiction. See, e.g.,
In re Estate of Parrish, 143 N.C. App. 244, 251, 547 S.E.2d 74, 78
(noting that the estate proceeding at issue was not a civil
action, but a proceeding concerning an estate matter, which was
exclusively within the purview of the Clerk's jurisdiction, and
over which the Superior Court retained appellate, not original,
jurisdiction.) (citations omitted), disc. review denied, 354 N.C.
69, 553 S.E.2d 201 (2001); In re Green, 9 N.C. App. 326, 328, 176
S.E.2d 19, 20 (1970) (holding that the amount of a commission to be
awarded to the personal representative requires [the] exercise of
judicial discretion and judgment by the clerk, who has original
jurisdiction in the matter.).
Nevertheless, we find the phrase all actions and proceedingsof a civil nature to be inclusive of, but not exclusive to, civil
actions; the phrase is broad and encompasses different types of
legal actions, not solely those initiated with a complaint.
Indeed, Ms. Shepard recognizes that no authority has been found to
support [her] contention. We decline to create such authority
Moreover, this Court has previously held that certain estate
matters such as proceedings to remove a trustee are not subject to
the Rules of Civil Procedure because the clerks in such matters
hear the matters before them summarily, and are responsible for
determining questions of fact rather than providing judgment in
favor of one party or the other. In re Estate of Newton, 173 N.C.
App. 530, 537, 619 S.E.2d 571, 575, disc. review denied, 360 N.C.
176, 625 S.E.2d 786 (2005). However, in the instant case, it was
a Superior Court judge who made the determination to impose Rule 11
sanctions and attorney's fees on Ms. Shepard, a decision well
within his authority and discretion.
Accordingly, based on the plain language of Rule 1 of the
North Carolina Rules of Civil Procedure, and the lack of any
authority to suggest the Rules do not apply to estate proceedings,
we find this assignment of error to be without merit.
 Next, Ms. Shepard argues that the trial court committed
reversible error in concluding as a matter of law that a direct
appeal does not lie with the Superior Court from an ex parte
of commissions and approval of final accounts. According to her own notice of appeal, the basis of Ms.
Shepard's appeal to this Court is the 29 March 2005 order of
Superior Court Judge W. Allen Cobb, Jr., imposing Rule 11 sanctions
and attorney's fees on Ms. Shepard, her four sisters, and their
This assignment of error, however, challenges a stated
reason for the trial court's 26 October 2004 order dismissing their
earlier appeal, filed 27 April 2004, namely, the lack of
jurisdiction to review or vacate the ex parte
order of commissions
and approval of final accounts. Because Ms. Shepard did not timely
file notice of appeal from that order, we are without jurisdiction
to review its findings and conclusions. See
N.C. R. App. P. 3(c).
We note also that the trial court had other grounds for dismissing
the appeal, as well as for imposing sanctions and attorney's fees.
This assignment of error is without merit and dismissed.
Affirmed in part, dismissed in part.
Judges STEELMAN and JACKSON concur.
N.C. Gen. Stat. § 1A-1, Rule 1 (2005)
*** Converted from WordPerfect ***