In re Thompson

754 S.E.2d 168

In the Matter of Mary Ellen Brannon THOMPSON.

No. COA13–564.

Court of Appeals of North Carolina.

Feb. 4, 2014.

Appeal by Calvin Brannon from order entered 20 November 2012 by Judge Anderson D. Cromer in Forsyth County Superior Court. Heard in the Court of Appeals 20 November 2013.

Attorney Reginald D. Alston, Winston–Salem, for Calvin Brannon, appellant.

Crumpler, Freedman, Parker & Witt, Winston–Salem, by Dudley A. Witt, for Bryan C. Thompson, appellee.

ELMORE, Judge.

On 20 November 2012, Judge Anderson D. Cromer (Judge Cromer) entered an order that denied all four of Calvin Brannon's (appellant) motions, dismissed them with prejudice, and issued sanctions against appellant. Each of appellant's motions hinged on the argument that an incompetency order dated 3 May 2007 declaring Mary Ellen Brannon Thompson (respondent) incompetent was never entered. After careful consideration, we reverse and remand the trial court's order.

I. Facts

On 4 April 2007, a Petition for Adjudication of Incompetence and Application for Appointment of Guardian or Limited Guardian was filed by Leslie Poe Parker in Forsyth County Superior Court. The petition alleged that respondent lacked the capacity to manage her own affairs or to make important decisions concerning her “person, family [sic] or property[.]” The same day, a notice of “Hearing on Incompetence and Order Appointing Guardian Ad Litem” was filed. A hearing was conducted on 26 April 2007 by Theresa Hinshaw, assistant clerk of Forsyth County Superior Court (clerk Hinshaw). Numerous individuals were present at the hearing, including appellant, who is the brother of respondent. After the hearing, clerk Hinshaw announced in open court that she found respondent to be incompetent, and she orally appointed Bryan Thompson (Mr. Thompson) as guardian of the estate. On 3 May 2007, clerk Hinshaw signed and dated an order (incompetency order) finding “by clear, cogent, and convincing evidence that the respondent [was] incompetent.” Additionally, clerk Hinshaw signed and dated an order authorizing issuance of letters appointing Mr. Thompson guardian of the estate.

Thereafter, appellant filed a “Petition for Removal of Guardianship of the Person” and a “Motion to Set Aside the Adjudication of Incompetence Order and Ask For a Rehearing[.]” Lawrence G. Gordon, Jr., Forsyth County Superior Court Clerk (clerk Gordon), signed and dated an order on 8 December 2009 denying the motions and concluded that the matters were time barred because appellant failed to timely appeal clerk Hinshaw's incompetency order. Appellant then appealed clerk Gordon's order to superior court. In an order entered 6 April 2010, Forsyth County Superior Court Judge James M. Webb (Judge Webb) dismissed both motions with prejudice.

On 27 March 2012, appellant filed four motions giving rise to this appeal. These motions were:

(a) for relief in the cause from a guardianship granted to Mr. Thompson dated May 1, 2007;

(b) to declare that Leslie Parker did not have the capacity to represent respondent in the filings of motions and petitions on April 4, 2007;

(c) to declare that Mr. Thompson was not appointed the guardian of respondent after an adjudication of incompetence under G.S. 35A 1112(e) and G.S. 35A–1120.

(d) to declare Mr. Thompson's act of filing a voluntary bankruptcy petition under 11 U.S.C. 301 as a state court guardian of the estate of respondent invalid.

These motions were heard before Susan Frye (clerk Frye), Forsyth Superior Court Clerk, and she entered an order on 4 May 2012 denying appellant's motions. She also granted Mr. Thompson's motion for sanctions. In her order, clerk Frye denied motions (a), (b), and (c) because clerk Gordon and Judge Webb had previously “clearly ruled” on appellant's motions, “no appeals were ever entered[,]” “no new evidence was presented[,]” and “[t]he pleadings filed ... [were] repetitious[.]” Clerk Frye declined to rule on motion (d) because she “[did] not have jurisdiction to hear this matter as the jurisdiction is presently under the Federal Bankruptcy Court.” Appellant appealed clerk Frye's order to Forsyth County Superior Court. For the same reasons decreed by clerk Frye, Judge Cromer entered an order on 20 November 2012 denying and dismissing with prejudice appellant's motions (a), (b), and (c). Judge Cromer denied appellant's motion (d) with prejudice because it was “baseless.” He also granted Mr. Thompson's motion for sanctions.

II. Analysis

a.) Law of the Case

Appellant first argues that the incompetency order was invalid because judgment was never entered, and therefore the trial court erred in concluding that the incompetency order was the law of the case. We agree.

“Conclusions of law are reviewed de novo and are subject to full review.” State v. Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011); see also Carolina Power & Light Co. v. City of Asheville, 358 N.C. 512, 517, 597 S.E.2d 717, 721 (2004) (“Conclusions of law drawn by the trial court from its findings of fact are reviewable de novo on appeal.”). “In reviewing a trial judge's findings of fact, we are ‘strictly limited to determining whether the trial judge's underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge's ultimate conclusions of law.’ ” State v. Williams, 362 N.C. 628, 632, 669 S.E.2d 290, 294 (2008) (quoting State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)); see also Sisk v. Transylvania Cmty. Hosp., Inc., 364 N.C. 172, 179, 695 S.E.2d 429, 434 (2010) (“ ‘[F]indings of fact made by the trial judge are conclusive on appeal if supported by competent evidence, even if ... there is evidence to the contrary.’ ” (quoting Tillman v. Commercial Credit Loans, Inc., 362 N.C. 93, 100–01, 655 S.E.2d 362, 369 (2008))). “Appeal from an order adjudicating incompetence shall be to the superior court for hearing de novo and thence to the Court of Appeals.” N.C. Gen.Stat. § 35A–1115 (2013).

N.C. Gen.Stat. § 35A–1112 provides a superior court clerk with the authority to find that an individual is incompetent. N.C. Gen.Stat. § 35A–1112 (2013). After such a finding is made, “the clerk shall enter an order adjudicating the respondent incompetent.” Id. (emphasis added). When such an order is entered, “a guardian or guardians shall be appointed[.]” N.C. Gen.Stat. § 35A–1120 (2013). A party seeking to appeal an incompetency order entered by a clerk must

within 10 days of entry of the order or judgment, appeal to the appropriate court for a trial or hearing de novo. The order or judgment of the clerk remains in effect until it is modified or replaced by an order or judgment of a judge. Notice of appeal shall be filed with the clerk in writing. Notwithstanding the service requirement of G.S. 1A–1, Rule 58, orders of the clerk shall be served on other parties only if otherwise required by law.

N.C. Gen.Stat. § 1–301.1 (2013) (emphasis added).

The North Carolina Rules of Civil Procedure “are applicable to special proceedings, except as otherwise provided.” N.C. Gen.Stat. § 1–393 (2013). Rule 58 of the North Carolina Rules of Civil Procedure governs the entry of judgments and orders. N.C.R. Civ. P. § 1A–1, Rule 58 (2013). Under Rule 58, “a judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk of court.” Id. We have also held that “Rule 58 applies to orders, as well as judgments, such that an order is likewise entered when it is reduced to writing, signed by the judge, and filed with the clerk of court.” Watson v. Price, 211 N.C.App. 369, 370, 712 S.E.2d 154, 155review denied,365 N.C. 356, 718 S.E.2d 398 (2011) (citation omitted). Thus, an oral ruling announced in open court is “not enforceable until it is entered [.]” West v. Marko, 130 N.C.App. 751, 756, 504 S.E.2d 571, 574 (1998) (internal quotation mark omitted). Accordingly, a party cannot appeal an order until entry occurs. Mastin v. Griffith, 133 N.C.App. 345, 346, 515 S.E.2d 494, 495 (1999). After entry, a clerk's order that is not timely appealed “will stand as a judgment of the court[.]” In re Atkinson–Clark Canal Co., 234 N.C. 374, 377, 67 S.E.2d 276, 278 (1951). This legal proposition stems from the law of the case doctrine, which provides that “when a party fails to appeal from a tribunal's decision that is not interlocutory, the decision below becomes the law of the case and cannot be challenged in subsequent proceedings in the same case.” Boje v. D.W.I.T., 195 N.C.App. 118, 122, 670 S.E.2d 910, 912 (2009) (internal quotation mark omitted).

Here, both parties agree that the hearing on the Petition for Adjudication of Incompetence was a special proceeding, and thus the Rules of Civil Procedure applied. Clerk Hinshaw orally rendered her decision finding respondent incompetent on 26 April 2007 in open court. Thereafter, she reduced the order to writing and dated it. However, nothing in the record indicates that the order was filed with the clerk of court. The order is devoid of any stamp-file or other marking necessary to indicate a filing date, and therefore it was not entered. See Huebner v. Triangle Research Collaborative, 193 N.C.App. 420, 422, 667 S.E.2d 309, 310 (2008) (asserting that a filing date is to be determined by the date indicated on the file-stamp); see also Watson, 211 N.C.App. at 373, 712 S.E.2d at 157 (standing for the proposition that a signed and dated order is insufficient to be considered filed).

Because the order was not filed, it was not entered. Accordingly, the time period to file notice of appeal of clerk Hinshaw's order has not yet commenced. See Darcy v. Osborne, 101 N.C.App. 546, 549, 400 S.E.2d 95, 96 (1991) (holding that where judgment was not entered, the appeals period neither triggered nor expired). Furthermore, because clerk Hinshaw's incompetency order is effective only after its entry, the order cannot be the law...