Strickland v Strickland, et al

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure. NO. COA09-1103 NORTH CAROLINA COURT OF APPEALS Filed: 7 September 2010 BETTY JEAN STRICKLAND, ADMINISTRATRIX OF THE ESTATE OF JAMES JONES, JR., Petitioner, v. Wilson County No. 06 E 506 BETTY JEAN STRICKLAND, Individually, GLORIA JEAN PETWAY, PRISCILLA D. WILLIAMS, BRENDA DEW, TONY DAVIS ADMINISTRATOR OF THE ESTATE OF LILLIAN LUCAS JONES, deceased, WILLIAM R. SOLOMON, Guardian ad Litem For SHERONDA JONES, minor, and SHANTA JONES, minor, and PHILLIP A. LANE, Guardian ad Litem for UNKNOWN and UNBORN HEIRS, Respondents. Appeal by Khot & Associates, PLLC by its authorized agent, Bobby P. Khot, from order entered 7 May 2009 by Judge Gary E. Trawick in Wilson County Superior Court. Heard in the Court of Appeals 11 March 2010. No brief for petitioner-appellee. Khot & Associates, PLLC, by Bobby P. Khot, for petitionerappellant. No brief for respondents-appellees. -2JACKSON, Judge. Attorney Bobby P. Khot ( petitioner ), on his own behalf and as the authorized agent of Khot & Associates, PLLC, appeals the trial court s affirmation of an order entered by the Honorable Andrew J. Whitley, Wilson County Clerk of Superior Court ( the Clerk ), awarding petitioner $3,500.00 out of $11,250.00 in attorneys fees requested. James Jones, Jr. ( decedent ) died intestate on 23 August 2006. On ( Wilkes), 17 October qualified 2006, as decedent s personal niece, Caretha representative of Wilkes decedent s estate. Attorney Allen G. Thomas ( Thomas ) of Thomas & Farris, PA represented Wilkes. On or about 5 December 2006, Wilkes voluntarily resigned at the request of decedent s heirs. 20 April 2007, decedent s daughter, Betty ( Strickland ), was appointed as administratrix. Jean On Strickland Strickland hired petitioner to represent the estate. On or about 27 February 2007, Thomas filed a petition for attorneys fees in the amount of $2,685.00. On 19 March 2007, the Wilson County Assistant Clerk entered an order awarding attorneys fees to Thomas in the amount requested. Sometime between 1 March 2009 and 26 March 20091, petitioner also filed a petition for attorneys fees in the amount of $11,250.00. 1 On 26 March 2009, the The record is unclear as to the exact date on which the petition was filed. The petition is dated 10 February 2009. The file stamp indicates that it was filed in March 2009 but the specific date is illegible. Both the clerk s and petitioner s testimony indicates that it probably was filed at least two weeks prior to 26 March 2009. -3Clerk entered an order awarding petitioner $3,500.00 in attorneys fees, of which $1,023.00 already had been paid by Strickland, leaving $2,477.00 to be paid out of the estate. On 28 March 2009, petitioner filed an amended petition, which was identical to the first petition, except that it included the removal of the outstanding encumbrance of a mortgage from the title to real property and increased the amount of attorneys fees requested from $11,250.00 to $14,512.50. On 30 March 2009, petitioner filed an affidavit detailing the attorneys fees requested. On 31 March 2009, petitioner gave notice of appeal from the Clerk s 26 March 2009 order awarding $3,500.00 in attorneys fees. The superior court held a hearing to consider the appeal on 20 April 2009. At the hearing, the Clerk testified as to events that had occurred during the two and one-half to three weeks prior to his 26 March 2009 order. Thomas s petition reasonable, the for Clerk The Clerk testified that, although $2,685.00 thought $11,250.00 was unconscionable. in that attorneys petitioner s fees seemed request for The Clerk testified that, in his four years of experience, he had never seen a fee in excess of $4,000.00 for work similar to the work petitioner had done. The Clerk further testified that he had asked petitioner whether he wanted a hearing on the attorneys fees request, and petitioner had declined the opportunity for a hearing. Subsequently, the Clerk asked petitioner to send him a detailed affidavit of attorneys fees. Although the Clerk did not enter an order specifying a date by which the affidavit should be filed, he testified that he made -4numerous phone calls and talked to one of petitioner s employees on numerous occasions to request the affidavit. The Clerk testified that [i]t is customary when a judge asks for the order or asks for information that the attorneys provide that information as expeditiously as possible and three weeks is not expeditious. After waiting approximately three weeks without an affidavit or any communication regarding the Clerk s request for an affidavit from petitioner, the Clerk entered an order awarding $3,500.00 in attorneys fees on 26 March 2009. petitioner When the trial court asked the Clerk why the order was entered at that point in time, the Clerk said, I wanted to make sure the money was disbursed properly. The Clerk testified that while everything was moving in the proper direction with [Thomas], it [s]eemed like when [petitioner] got involved, everything kind of came to a stop. Additionally, the Clerk said that his office gave quite a bit of assistance to petitioner, ben[ding] over backwards to help [petitioner] and [e]ssentially . . . almost on the verge of practicing law to assist [petitioner] in getting [the] estate matter closed out. The Clerk also testified that petitioner still had not filed a list of all creditors with the amounts of their claims, which had been requested for inclusion in the petition for the sale of real estate filed on 6 August 2007. Petitioner admitted that [the Clerk] conveyed to [him] to prepare an affidavit, but they did not discuss a due date for the affidavit. Petitioner testified that he had absolutely . . . no knowledge that the order was going to be entered on 26 March 2009. -5Petitioner testified that, in his experience, he had never ever appeared before a Clerk on [an] attorney s fees issue and that the Clerk could have entered an order for a hearing if he wanted to have petitioner appear. Petitioner denied ignoring the Clerk s office s requests for the affidavit and thought that [he] had communicated it pretty effectively that [he] was working on it to try to get together [the affidavit]. Petitioner conceded that, with the estate valued at approximately $23,000.00, an award of $14,512.50 would leave only approximately $8,000.00. acknowledged that the award amount was up to Petitioner the Clerk s discretion, but argued that $2,000.00 for his work spanning two years was not fair and that the matter should be remanded for further consideration in light of the affidavit. On 7 May 2009, the trial court entered an order affirming the Clerk s order awarding $3,500.00 in attorneys fees. Petitioner appeals. North Carolina General Statutes, section 28A-2-1 states that [t]he clerk of superior court of each county, ex officio judge of probate, shall have jurisdiction of the administration, settlement, and distribution of estates of decedents including, but not limited to . . . probate of wills[.] N.C. Gen. Stat. § 28A-2-1(1) (2007). Pursuant to North Carolina General Statutes, section 1-301.3(b), the clerk shall determine all issues of fact and law. N.C. Gen. Stat. § 1-301.3(b) (2007). On appeal to the Superior Court of an order of the Clerk in matters of probate, the trial court judge sits as an appellate -6court. In re Estate of Pate, 119 N.C. App. 400, 402, 459 S.E.2d 1, 2 (citing In re Estate of Swinson, 62 N.C. App. 412, 303 S.E.2d 361 (1983)), disc. rev. denied, 341 N.C. 649, 462 S.E.2d 515 (1995). North Carolina General Statutes, section 1-301.3(d) states that, when an appeal is taken of a clerk s order in probate matters, the trial court shall review the order or judgment of the clerk for the purpose of determining only the following: (1) Whether the findings of fact are supported by the evidence. (2) Whether the conclusions of supported by the findings of facts. law are (3) Whether the order or judgment is consistent with the conclusions of law and applicable law. . . . . . . . If the record is insufficient, the judge may receive additional evidence on the evidentiary issue in question. N.C. Gen. Stat. § 1-301.3(d) (2007) (emphasis added). The standard of review in this Court is the same as in the Superior Court. In re Estate of Pate, 119 N.C. App. at 403, 459 S.E.2d at 2 3 (citing In re Estate of Outen, 77 N.C. App. 818, 336 S.E.2d 436 (1985), disc. rev. denied, 316 N.C. 377, 342 S.E.2d 896 (1986)). We only review[] those findings of fact which the appellant has properly challenged by specific exceptions. In re Whitaker, 179 N.C. App. 375, 382, 633 S.E.2d 849, 854 (2006) (quoting In re Estate of Lowther, 271 N.C. 345, 354, 156 S.E.2d 693, 700 01 (1967)) (emphasis in original). We note that petitioner s three -7assignments of error challenge findings and conclusions of the Clerk s order. Our review is limited to the trial court s order. We are limited to reviewing whether the trial court s (1) findings of fact are supported by the evidence, (2) conclusions of law are supported by the findings of fact, and (3) order or judgment is consistent with the conclusions of law and applicable law. See N.C. Gen. Stat. § 1-301.3(d) (2007); In re Estate of Pate, 119 N.C. App. at 403, 459 S.E.2d at 2 3. Petitioner first contends that the trial court exceeded its scope of review by making additional findings of fact. We disagree. Petitioner correctly states the applicable statute setting forth the standard of review, North Carolina General Statutes, section 1-301.3(d), yet omits that portion of the statute which directly applies to the case sub judice: If the record is insufficient, the judge may receive additional evidence on the evidentiary issue in question. (2007) (emphasis added). to On the N.C. Gen. Stat. § 1-301.3(d) appeal Clerk s to the finding superior court, of number petitioner objected fact seventeen. Because there was insufficient evidence in the record to support this finding, the trial court did not err in receiving additional evidence and entering its own findings based upon the additional evidence it received pursuant to section 1-301.3(d) of our General Statutes. Petitioner argues that In re Estate of Severt, 194 N.C. App. 508, 512 13, 669 S.E.2d 886, 889 90 (2008), disc. rev. denied and appeal dismissed, 363 N.C. 126, 675 S.E.2d -8362 (2009), controls the issue. In Severt, we held that the superior court erred by exceeding the scope of review set forth by section 1-301.3(d) when it ignored the clerk s challenged findings of fact and substituted its own findings for those of the clerk. Id. Nor did the superior court in Severt receive any additional evidence to support its findings. Id. However, Severt is distinguishable from the case sub judice because, here, the trial court did not ignore the Clerk s findings and substitute its own. Rather, the 1-301.3(d) court and performed properly conclusions, and order. the review considered required the Clerk s by section findings, See N.C. Gen. Stat. § 1-301.3(d) (2007). It is axiomatic that, if the court determines that the record is insufficient in accordance with section 1-301.3(d), the judge may make appropriate findings supported by additional evidence adduced at the hearing. Id. Next, petitioner contends that the trial court erred in finding [t]hat all the findings of fact in the order of the Clerk of Superior Court of Wilson County dated March the 26, 2009 are supported by competent evidence. On appeal to the trial court, the only finding of fact to which petitioner objected was the Clerk s finding of fact number seventeen. That finding states: The [Clerk] requested hearing on the issue of attorney fees which was ignored by [petitioner]; the [Clerk] additionally requested that [petitioner] prepare an affidavit which detailed the hours billed in this matter which was also ignored. -9At the hearing before the trial court, the Clerk testified that petitioner s request for $11,250.00 was unreasonable, unconscionable, and not customary for the work that is typically done in estates. Therefore, the Clerk offered petitioner an opportunity hearing, for a which petitioner did not pursue. Because petitioner did not seek a hearing on the petition for attorneys affidavit fees, the detailing Clerk the asked attorneys petitioner fees to send billed. The him an Clerk testified that, after repeated calls to petitioner about the requested affidavit and having waited approximately three weeks without a response, he entered the order awarding attorneys fees on 26 March 2009. The affidavit detailing petitioner s hours billed was not filed until 30 March 2009. This is competent evidence number to support the Clerk s finding seventeen. Accordingly, we hold that the trial court did not err in finding [t]hat all the findings of fact in the order of the Clerk of Superior Court of Wilson County dated March the 26, 2009 are supported by competent evidence. Petitioner s brief further contends that both the trial court and the Clerk erred in concluding that petitioner was entitled to $3,500.00 in attorneys fees. Again, we note that, pursuant to North Carolina General Statutes, section 1-301.3(d) and our holding in In re Estate of Pate, it is not our province to review the Clerk s order. Our review is limited to whether the trial court appropriately concluded that the Clerk s award of $3,500.00 in -10attorneys fees was supported by the Clerk s findings of fact and consistent with the conclusions of law and applicable law. Based upon a thorough review of the record, we hold that the trial court did not err in affirming the Clerk s award of $3,500.00 in attorneys fees. Contrary to petitioner s argument, the trial court did not rely solely on the size of the estate and the amount of attorney fees requested by Petitioner-Appellant. The record shows that the trial court received testimony as to why the Clerk believed that $3,500.00 was a reasonable award of attorneys fees. The trial court also received testimony from petitioner as to why petitioner believed that $11,250.00 would be a reasonable award. The bulk of petitioner s argument on appeal is directed to the Clerk s alleged abuse of discretion in awarding $3,500.00 in attorneys fees, which is not reviewable by this Court. court received findings. The additional findings evidence support the and entered court s The trial appropriate conclusion that $3,500.00 was a reasonable amount of attorneys fees for the work petitioner performed. Because the trial court did not err (1) in entering additional findings based upon additional evidence, (2) in finding that the Clerk s finding of fact was supported by competent evidence, and (3) in affirming the Clerk s award of $3,500.00 in reasonable attorneys fees, this assignment of error is overruled. Petitioner s next assignment of error states: It is reversible error for the Clerk of Superior Court to issue an order giving preference to creditor[s] that do not have priority over administration expenses (attorney fees) without a review of services performed by the attorney and without taking -11into account if such services were beyond the customary services of Estate Administration with findings as to the difficulty and skill required to render those services. Again, petitioner asks this Court to review the Clerk s order, which we cannot do. Because we hold that the trial court did not err in affirming the Clerk s order awarding $3,500.00 in attorneys fees, this assignment of error is overruled. Petitioner s final assignment of error states: It is reversible error and against public policy for a Clerk of Superior Court to Order the performance of legal services without an objectively reasonable basis and then to use its legal authority to prevent payment for those services. Petitioner s brief does not contain a single case or statute in support of this contention, violating Rule 28(b)(6) of our North Carolina Rules of Appellate Procedure. N.C. R. App. P. 28(b)(6) (2007) ( Assignments of error . . . in support of which no reason or argument is stated or authority cited, will be taken as abandoned. ). Additionally, this argument was not raised to the trial court and is not properly before us. preserve presented See N.C. R. App. P. 10(b)(1) (2007) ( In order to a question to motion[.] ). 2 the for trial appellate court a review, timely a party request, must have objection or Accordingly, this assignment of error is overruled.2 In support of this assignment of error, petitioner claims that [t]o affirm [the Clerk s order] would be a gross injustice and would relegate our legal system more akin to that of a third-world dictatorship. Petitioner also contends that [the Clerk s] actions reek[] of bias and favoritism, and [t]he bias and partiality displayed here has no place in a civilized society and should not be allowed to stand. -12For the foregoing reasons, the trial court s order affirming the Clerk s order awarding attorneys fees is affirmed. Affirmed. Judges ELMORE and STROUD concur. Report per Rule 30(e).

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