Opinion
NO. COA11-35 No. 10 SP 129
08-16-2011
IN THE MATTER OF THE ESTATE OF JAMES A. PREST, II, Deceased, JANE PREST & PAT FISHBACK Co-Executors of the Estate of James A. Prest, II, Petitioners, v. LIZZETT ROMERO-JIMINEZ PREST, the NORTH CAROLINA COASTAL FEDERATION, INC., & CRYSTAL COAST HABITAT FOR HUMANITY, Inc., Respondents.
Wheatly, Wheatly, Weeks & Lupton, P.A., by Claud R. Wheatly, III, for petitioner-appellees. Harvell and Collins, P.A., by Wesley A. Collins and Russell C. Alexander, for respondent-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Carteret County
Appeal by respondent from order entered 8 September 2010 by Judge Paul L. Jones in Carteret County Superior Court. Heard in the Court of Appeals 25 May 2011.
Wheatly, Wheatly, Weeks & Lupton, P.A., by Claud R. Wheatly, III, for petitioner-appellees.
Harvell and Collins, P.A., by Wesley A. Collins and Russell C. Alexander, for respondent-appellant.
BRYANT, Judge.
Because respondent's notice of appeal satisfied the criteria for entry of notice of appeal by a party aggrieved by an order of a clerk that finally disposed of a special proceeding under N.C.G.S. § 1-301.2(e), we reverse the superior court order dismissing respondent's appeal.
On 8 April 2008, James A. Prest, II, (decedent) died. His last will and testament, admitted to probate on 15 April 2008, named Jane Prest, decedent's sister, and Pat Fishback (petitioners) as co-executors of his estate. Petitioner Prest and Respondent Lizzett Romero-Jiminez Prest, decedent's spouse, (Respondent) were beneficiaries of certain personal property. The North Carolina Coastal Federation, Inc., and Crystal Coast Habitat for Humanity, Inc., were beneficiaries of pecuniary bequests. Petitioners were each ten percent residuary beneficiaries of decedent's estate, with Lizzett Romero-Jiminez (Respondent) to receive the remaining eighty percent.
On 22 March 2010, in a petition filed with the Carteret County Clerk of Superior Court (hereafter Clerk of Court or Clerk) for possession, custody, and control of real property, as well as for the sale of said property, petitioners alleged that decedent's estate had less than $1,000.00 of cash available, personal property valued at $39,000.00, and administrative expenses amounting to $140,000.00, excluding attorney's fees and future expenses. The petition identified real property located at 135 Craven Street, Beaufort, Carteret County. The property, respondent's residence, that she operated as a bed and breakfast, was the only real property solely owned by decedent; the property was encumbered by a home equity line mortgage valued at $86,000.00; and, as residuary legatees, the title to the property was vested in the names of both petitioners and respondent. Petitioners believed it was in the best interest of the estate to offer the property for private sale. Petitioners alleged that they had authority to take possession, custody and control of the property pursuant to N.C. Gen. Stat. § 28A-15-1(c), and pursuant to the administrative powers conferred upon the executors per decedent's will. Petitioners requested that the Clerk enter an order allowing petitioners to sell the property subject to the provisions of N.C. Gen. Stat. § 1-339.
On 7 April 2010, respondent filed a response to the petition seeking to avoid the sale of the property. A hearing was conducted before the Clerk on 15 July 2010. Respondents North Carolina Coastal Federation, Inc., and Crystal Coast Habitat for Humanity did not appear. On 16 July 2010, the Clerk notified the parties that the petition would be granted: petitioners would be authorized to sell certain real property. The Clerk directed petitioners' attorneys to prepare an order.
On 21 July 2010, a written order was entered concluding that pursuant to the provisions of N.C. Gen. Stat. §§ 28A-17-7 and 1-401, the sale of the real property was in the best interests of the estate, and the co-executors were authorized to conduct a private sale of the real property. Respondent was allowed to maintain possession of the real property until the property was sold. That same day, respondent entered a notice of appeal to the Superior Court of Carteret County.
On 2 August 2010, the Clerk of Superior Court entered an amended order, drawing the same conclusions as the order previously entered and signed it nunc pro tunc 15 July 2010.
On 13 August 2010, petitioners filed a motion to dismiss respondent's appeal of the Clerk's order for failure to comply with the statutory requirements of N.C. Gen. Stat. § 1-301.3.
On 16 August 2010, respondent filed an amended notice of appeal asserting that "(1) the sale of the real property described in the Amended Order is not in the best interest of the Estate pursuant to N.C. Gen. Stat. § 28A-17-7, and (2) the sale of the real property is contrary to the Decedent's expressed intent . . . ."
On 8 September 2010, the Carteret County Superior Court entered an order dismissing respondent's appeal. Citing In re Estate of Whitaker, 179 N.C. App. 375, 633 S.E.2d 849 (2006), the Superior Court concluded that respondent's initial notice of appeal was defective as it failed to state a basis for her appeal in violation of N.C.G.S. § 1-303.3(c), and the amended notice of appeal was ineffective because it was entered fourteen days after entry of the amended order. Respondent now appeals to this Court.
On appeal, respondent argues that the superior court abused its discretion in dismissing her appeal. We agree.
A motion to dismiss an appeal is a matter within the discretion of the trial court. Harvey v. Stokes, 137 N.C. App. 119, 124, 527 S.E.2d 336, 339 (2000). "It is well established that where matters are left to the discretion of the trial court, appellate review is limited to a determination of whether there was a clear abuse of discretion." White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985) (citation omitted).Lawrence v. Sullivan, 192 N.C. App. 608, 614-15, 666 S.E.2d 175, 179 (2008).
A trial court may be reversed for abuse of discretion only upon a showing that its actions are manifestly unsupported by reason. A ruling committed to a trial court's discretion is to be accorded great deference and will be upset only upon aSquires v. Squires, 178 N.C. App. 251, 256, 631 S.E.2d 156, 159 (2006) (quoting White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985)).
showing that it was so arbitrary that it could not have been the result of a reasoned decision.
Pursuant to North Carolina General Statutes, section 28A-17-1, an executor of a decedent's estate may "apply to the clerk of superior court of the county where the decedent's real property or some part thereof is situated, by petition, to sell such real property for the payment of debts and other claims against the decedent's estate." N.C. Gen. Stat. 28A-17-1 (2009). "[T]he proceeding to sell land under this section is a special proceeding before the clerk . . . ." Holcomb v. Hemric, 56 N.C. App. 688, 690, 289 S.E.2d 620, 622 (1982); e.g., Thompson v. Watkins, 285 N.C. 616, 630, 207 S.E.2d 740, 749 (1974) ("had the property been sold in a special proceeding brought by the executrix to make assets . . . the widow could have purchased the property with leave of court . . . .").
Appeals and transfers from a clerk of superior court regarding matters arising in the administration of the estate of a decedent are controlled by N.C. Gen. Stat. § 1-301.3. However, " G.S. 1-301.2 applies in the conduct of a special proceeding when a special proceeding is required in a matter relating to the administration of an estate." N.C. Gen. Stat. § 1-301.3(a) (2009); N.C.G.S. § 1-301.2(a) (2009) ("This section applies to special proceedings heard by the clerk of superior court in the exercise of the judicial powers of that office.") .
Pursuant to § 1-301.2(e),
a party aggrieved by an order or judgment of a clerk that finally disposed of a special proceeding, may, within 10 days of entry of the order or judgment, appeal to the appropriate court for a hearing de novo. Notice of appeal shall be in writing and shall be filed with the clerk.N.C.G.S. § 1-301.2(e) (2009) (emphasis added); compare N.C.G.S. § 1-301.3(c) (2009) ("A party aggrieved by an order or judgment of the clerk may appeal to the superior court by filing a written notice of the appeal with the clerk within 10 days of entry of the order or judgment. The notice of appeal shall specify the basis for the appeal." (emphasis added)). Appeals arising pursuant to N.C.G.S. § 1-301.2, do not require that the notice of appeal specify the basis for the appeal.
On 15 April 2008, decedent's will was probated. On 22 March 2010, petitioners, as executors of decedent's estate, filed a petition and issued a summons for a special proceeding to determine whether petitioners had the right to sell decedent's real property in order to satisfy decedent's debts, administrative expenses, and other claims against decedent's estate. A hearing before the Clerk of Court was held on 15 July 2010. On 16 July 2010, the Clerk notified the legal counsel of each party that petitioner's petition would be granted. On 21 July 2010, the Clerk's written order was entered as well as respondent's notice of appeal to the Superior Court of Carteret County. On 2 August 2010, the Clerk of Court entered an amended order, drawing the same conclusions as the order previously entered, effective nunc pro tunc 15 July 2010. On 16 August 2010, respondent filed an amended notice of appeal.
Because petitioners, as executors of decedent's estate, applied to the Carteret County Clerk of Superior Court by petition to sell decedent's real property in order to create assets to satisfy the debts of decedent's estate, the hearing before the Clerk of Court was a special proceeding. See N.C.G.S. 28A-17-1; Holcomb, 56 N.C. App. at 690, 289 S.E.2d at 622 ("[T]he proceeding to sell land under this section is a special proceeding before the clerk . . . ."); Watkins, 285 N.C. at 630, 207 S.E.2d at 749. As such, N.C.G.S. § 1-301.2 establishes the criteria for respondent's notice of appeal to superior court from the Clerk's order. See N.C.G.S. §§ 1- 301.3(a), -301.2(e). Because appeals arising pursuant to section 1-301.2 do not require that the notice of appeal seeking a de novo hearing before the superior court specify the basis for the appeal, respondent's "Notice of Appeal to the Superior Court of Carteret County, of the Order issued in the Special Proceedings Division of Carteret County Civil Superior Court, on July 15, 2010, . . . which granted the relief sought by the Petitioners in their Petition for Private Sale of Real property in [file number 10 SP 129,]" satisfied the content requirements for notice of appeal set forth in section 1-301.2. See N.C.G.S. § 1-302.1(e) ("Notice of appeal shall be in writing and shall be filed with the clerk.").
We note that in its order dismissing respondent's appeal, the Superior Court found that respondent's notice of appeal was filed prior to entry of the Clerk's order. However, the record does not support this finding. The Clerk's order was entered 21 July 2010 at 4:45 p.m. Within ten days following the entry of the Clerk's order, on 21 July 2010 at 4:50 p.m., respondent's notice of appeal was filed, and, thus, was timely filed. See N.C.G.S. § 1-301.2(e). Accordingly, we reverse the order of the Superior Court dismissing respondent's appeal and remand for further proceedings in accordance with this opinion.
Reversed.
Judges GEER and BEASLEY concur.
Report per Rule 30(e).