In the Matter of Estate of Lindley, No. COA06-1281 (N.C. App. 8/7/2007)

Decision Date07 August 2007
Docket NumberNo. COA06-1281,COA06-1281
CourtNorth Carolina Court of Appeals

Barron & Berry, L.L.P., by Vance Barron, Jr., for petitioner-appellant Nexsen Pruet Adams Kleemeier, P.L.L.C.

Stam, Fordham & Danchi, P.A., by Paul Stam for respondent-appellant Virginia L. Livingston.

Robertson & Medlin, PLLC, by W. Eric Medlin for respondent-appellant Virginia L. Simpson.

Wyatt Early Harris Wheeler LLP, by William E. Wheeler for respondent-appellee Walter L. Hannah.


When an heir to an estate initially disputes counsel fees awarded by the clerk of court, but subsequently stops the dispute, induces the law firm to continue its representation, and approximately nine years later challenges the orders awarding counsel fees, the doctrine of laches is properly applied to deny the heir's challenge. When neither the clerk nor the trial court's ruling was adverse to an appellant, this Court does not reach the appellant's assignment of error. N.C. Gen. Stat. . 28A-15-1(c) provides that executors may institute a special proceeding to sell the real property of a decedent to satisfy claims for payments of counsel fees and costs of administration, and the debts of creditors are subordinate to the costs of administration of the estate. The notice requirements of N.C. Gen. Stat. . 28A-17-4 are not applicable to heirs having only a contingent remainder interest in property. Where the trial court held that findings of fact made by the clerk of court were supported by the evidence, its review is limited to whether the findings support the conclusions of law. In such a situation, the trial court may not make additional findings to support a different result. An award of counsel fees pursuant to N.C. Gen. Stat. . 28A-23-4 and commissions pursuant to N.C. Gen. Stat. § 28A-23-3(a) is in the sound discretion of the clerk of court.


John Van Lindley ("decedent") died in Guilford County on 20 October 1990. A codicil to decedent's last will and testament, dated 23 June 1978, named decedent's son, John Van Lindley, Jr. ("John Lindley") and his attorney, Walter L. Hannah ("Hannah") co-executors of his estate. John Lindley and Hannah were qualified as executors on 25 October 1990. Hannah was then a senior partner in the law firm, Adams Kleemeier Hagan Hannah and Fouts, L.L.P., which later became Nexsen Pruet Adams Kleemeier, P.L.L.C. (both hereinafter, "Adams Kleemeier"). On 8 October 1991, Hannah and John Lindley ("co-executors") petitioned the court for payment of $140,000.00 counsel fees and $1,486.17 expenses. On that same day, an order was entered approving the payment of the fees and expenses. On 12 March 1992, executors petitioned the court for payment of an additional $220,000.00 counsel fees and $3,115.28 expenses, and an order was entered on that same day approving the payment of the fees and expenses. On 22 December 1992, executors again petitioned the court for payment of $99,811.41 counsel fees and $2,273.74 expenses. On 8 January 1993, an order was entered approving the payment of the fees and expenses. The total counsel fees allowed in these orders was $459,811.41, together with $6,875.19 in expenses.

Decedent was survived by his two children, Virginia L. Livingston ("Livingston") and John Lindley. Virginia L. Simpson ("Simpson"), Carter J. Martin, Elizabeth B. Johnson, Karen Carter Martin, and Elizabeth Broderick Johnson are grandchildren of decedent, who would be income beneficiaries of a testamentary trust created by decedent in his will, provided that they survive Livingston and John Lindley.

On 29 May 2002, over nine years after the entry of the last order approving counsel fees, Hannah, in his capacity of as co-executor of decedent's estate, petitioned the court for an additional payment of counsel fees and expenses for services rendered since 30 September 1992. The requested amount was $ 211,087.51 for counsel fees and $12,776.57 for expenses. Subsequently, Hannah tendered a voluntary reduction in the amount of counsel fees sought to $175,000.00. The last day of service performed with respect to this petition was 18 April 1997. The co-executor, John Lindley, did not sign the petition.

On 2 August 2002, Livingston filed an objection to the May 2002 petition. On 19 September 2003, Livingston filed a restated and amended supplemental objection to the petition, and also requested modification of the 1991, 1992 and 1993 orders, alleging the fees awarded were "grossly excessive[.]" On 18 January 2005, Livingston filed a further supplemental objection, requesting that the estate be credited with $43,961.20 on the amount of unpaid counsel fees. Adams Kleemeier had received $ 43,961.20 on 2 July 1992 from the proceeds of the sale of a tract of land located at Roaring Gap, titled to Lindley Nurseries, Inc . The $43,961.20 was payment on an outstanding bill for counsel fees owed to Adams Kleemeier by Lindley Nurseries, Inc.

In an order entered 16 March 2005, the Clerk of Superior Court of Guilford County concluded that Livingston's request for modification of the 8 October 1991, 12 March 1992, and 8 January 1993 orders was untimely as a matter of law, and that Livingston was equitably estopped from seeking modification. The clerk also concluded that N.C. Gen. Stat. . 1-52(1) (2005) was not applicable to Hannah's 29 May 2002 petition for counsel fees; therefore, the petition was not barred by the three year statute of limitations.

On 8 April 2005, the clerk entered an order authorizing the co-executors to file a special proceeding to sell real property to pay the expenses of administration of the estate, including counsel fees.

On 2 June 2005, the clerk entered an order denying approval for the additional $175,000 in counsel fees and costs. On the same day, the clerk entered an order denying Livingston's request that the estate be credited $43,961.20 by virtue of the payment by Lindley Nurseries, Inc., to Adams Kleemeier.

Livingston appealed to the superior court the order entered 16 March 2005, 8 April 2005, and the two orders entered 2 June 2005. Decedent's grandchildren, Simpson, Carter J. Martin and Elizabeth B. Johnson, also appealed the same orders. Adams Kleemeier appealed the order entered 2 June 2005, which denied approval of the additional $175,000 in attorneys fees.

On 9 March 2006, the superior court heard arguments regarding the appeals from orders entered by the clerk of court.

In an order entered 29 March 2006, the superior court modified and affirmed the three orders entered on 16 March 2005, 8 April 2005 and 2 June 2005. However, the court reversed and remanded the clerk's order, entered 2 June 2005, denying Livingston's request that the estate be credited $43,961.20 on payments of counsel fees. The superior court ordered that the estate be "credited with the sum of $43,961.20."

From this order, Adams Kleemeier and certain of the heirs of decedent's estate appeal.

Appellants Virginia Livingston and Virginia Simpson
I: Laches

Appellants Livingston and Simpson first contend that the trial court erred in applying the doctrine of laches or equitable estoppel to appellants' motions to reconsider orders entered 1991, 1992 and 1993. We disagree.

N.C. Gen. Stat. . 28A-2-1 provides 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[.]" This Court has stated that "the Clerk is given exclusive original jurisdiction of the administration, settlement and distribution of estates except in cases where the Clerk is disqualified to act." In re Snipes, 45 N.C. App. 79, 81, 262 S.E.2d 292 (1980), 294; see also N.C. Gen. Stat. . 28A-2-1; In re Estate of Adamee, 291 N.C. 386, 230 S.E.2d 541 (1976). N.C. Gen. Stat. . 1-301.3(b) states that, "[i]n matters covered by this section, the clerk shall determine all issues of fact and law[,] [and] . . . enter an order or judgment, as appropriate, containing findings of fact and conclusions of law supporting the order or judgment."

On appeal to the Superior Court of an order of the clerk in matters of probate, the judge sits as an appellate court.In re Estate of Pate, 119 N.C. App. 400, 402, 459 S.E.2d 1, 2 (1995) (citing In re Estate of Swinson, 62 N.C. App. 412, 303 S.E.2d 361 (1983)). The role of a superior court judge on appeal of estate matters from the Clerk of Superior Court is set forth in N.C. Gen. Stat. . 1-301.3(d):

(d) Duty of Judge on Appeal. — Upon appeal, the judge of the superior 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 law are supported by the findings of facts.

(3) Whether the order or judgment is consistent with the conclusions of law and applicable law.

Id. "The superior court, however, only reviews those `findings of fact which the appellant has properly challenged by specific exceptions.'" In re Whitaker, ___ N.C. App. ___, ___, 633 S.E.2d 849, 854 (2006) (quotation omitted) (emphasis in original).

In the instant case, t he Clerk of Superior Court denied Livingston's motion to modify the 18 October 1991, 12 March 1992 and 18 January 1993 orders based on N.C. Gen. Stat. . 1-2721 and equitable estoppel. The clerk ruled that no appeal was taken from the 18 October 1991, 12 March 1992 and 18 January 1993 orders approving counsel fees and expenses within ten days of entry of the orders or at any time.


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