In re Thompson

NO. COA13-564

NORTH CAROLINA COURT OF APPEALS

Filed: 4 February 2014

IN THE MATTER OF:
MARY ELLEN BRANNON THOMPSON

Forsyth County
No. 07 SP 691

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 for Calvin Brannon, appellant.

CRUMPLER, FREEDMAN, PARKER & WITT, 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.
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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[.]”
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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
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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
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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
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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, 155 review denied, 365 N.C. 356, 718
 -7-
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
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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 of

the case. See Worsham v. Richbourg’s Sales & Rentals, Inc., 124

N.C. App. 782, 784, 478 S.E.2d 649, 650 (1996) (“[A] judgment is

. . . not enforceable between the parties until it is entered.”).

b.) Guardian of the Estate

Next, appellant argues that since the incompetency order was

never entered, clerk Hinshaw had no jurisdiction to appoint Mr.

Thompson as guardian of the estate. We agree.
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“The question of subject matter jurisdiction may be raised at

any time, even in the Supreme Court.” Lemmerman v. A.T. Williams

Oil Co., 318 N.C. 577, 580, 350 S.E.2d 83, 85 (1986). “Whether a

trial court has subject-matter jurisdiction is a question of law,

reviewed de novo on appeal.” McKoy v. McKoy, 202 N.C. App. 509,

511, 689 S.E.2d 590, 592 (2010).

As mentioned above, N.C. Gen. Stat. § 35A-1112 requires the

clerk to enter an order adjudicating incompetency. See N.C. Gen.

Stat. § 35A-1112. Only once the order is entered shall “a guardian

or guardians . . . be appointed[.]” N.C. Gen. Stat. § 35A-1120.

Since the order was never entered, the clerk’s appointment of Mr.

Thompson as guardian of respondent’s estate immediately thereafter

was without legal authority.1

c.) Res Judicata
Appellant also argues that the trial court erred in concluding

that the issues raised in his appeal to the trial court were barred

by the doctrine of res judicata. Specifically, appellant avers

that the other orders relied upon by the trial court in determining

res judicata were invalid. We agree.

1 We also note that the Order Authorizing Issuance of Letters
purporting to appoint Mr. Thompson as guardian of the estate was
never filed with the clerk’s office as it was merely signed and
dated by clerk Hinshaw.
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N.C. Gen. Stat. § 7A-251 (2013) states that “[i]n all matters

properly cognizable in the superior court division which are heard

originally before the clerk of superior court, appeals lie to the

judge of superior court having jurisdiction from all orders and

judgments of the clerk[.]” A court acting in an appellate capacity

is “without authority to entertain an appeal where there has been

no entry of judgment” because entry of judgment is jurisdictional.

Searles v. Searles, 100 N.C. App. 723, 725, 398 S.E.2d 55, 56

(1990) (citation omitted). Under the doctrine of res judicata, “a

final judgment on the merits in a prior action will prevent a

second suit based on the same cause of action between the same

parties or those in privity with them.” Thomas M. McInnis &

Assoc., Inc. v. Hall, 318 N.C. 421, 428, 349 S.E.2d 552, 556

(1986).

Here, appellant appealed clerk Frye’s decision de novo to

superior court. Judge Cromer declined to rule on the merits of

appellant’s motions and concluded that “[a]ll the previous

[m]otions were denied by the [c]lerk and/or another [s]uperior

[c]ourt [j]udge or the Bankruptcy Court and, other than the

Bankruptcy Order, said Orders were never appealed to the North

Carolina Court of Appeals. Based upon the previous [o]rders

entered in this matter, the issues raised in the appeal are barred
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by the doctrine of res judicata[.]” The “previous orders” referred

to superior court Judge Webb’s order entered 6 April 2010, which

was appealed from clerk Lawrence Gordon’s order dated 8 December

2009. According to Judge Cromer, he “[could not] reverse Judge

Webb” on “a case that [Judge Webb] already ruled on.” However,

Judge Cromer’s conclusion assumed that Judge Webb had jurisdiction

to rule on appellant’s appeal of clerk Gordon’s order to superior

court. It is clear from the record that clerk Gordon’s order was

never entered as it was merely signed and dated, but devoid of a

filing date. See Watson, supra. The entry of clerk Gordon’s order

was necessary to vest Judge Webb with jurisdiction to hear

appellant’s appeal in superior court. See Searles, supra.

Accordingly, no entry of final judgment on the merits of

appellant’s prior motions occurred such that the issues before

Judge Cromer were barred by res judicata.

d.) Sanctions
Appellant further argues that the trial court erred in imposing

sanctions pursuant to Rule 11 of the North Carolina Rules of Civil

Procedure. We agree.

The trial court’s decision to impose or not to
impose mandatory sanctions under N.C.G.S. §
1A-1, Rule 11(a) is reviewable de novo as a
legal issue. In the de novo review, the
appellate court will determine (1) whether the
trial court’s conclusions of law support its
judgment or determination, (2) whether the
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trial court’s conclusions of law are supported
by its findings of fact, and (3) whether the
findings of fact are supported by a
sufficiency of the evidence. If the appellate
court makes these three determinations in the
affirmative, it must uphold the trial court’s
decision to impose or deny the imposition of
mandatory sanctions under N.C.G.S. § 1A-1,
Rule 11(a).

Turner v. Duke Univ., 325 N.C. 152, 165, 381 S.E.2d 706, 714 (1989).

An analysis of sanctions under Rule 11 consists of a three-pronged

analysis: “(1) factual sufficiency, (2) legal sufficiency, and (3)

improper purpose.” Peters v. Pennington, 210 N.C. App. 1, 27, 707

S.E.2d 724, 742 (2011) (citation and quotation omitted). A violation

of any of these prongs requires the imposition of sanctions. Id.

(citation omitted). In determining factual sufficiency, we must

decide “(1) whether the plaintiff undertook a reasonable inquiry into

the facts and (2) whether the plaintiff, after reviewing the results

of his inquiry, reasonably believed that his position was well

grounded in fact.” Id. (citation and quotation omitted). Whether a

motion is legally sufficient requires this Court to look at “the

facial plausibility of the pleading and only then, if the pleading

is implausible under existing law, to the issue of whether to the

best of the signer’s knowledge, information, and belief formed after

reasonable inquiry, the complaint was warranted by the existing law.”

Polygenex Int'l, Inc. v. Polyzen, Inc., 133 N.C. App. 245, 249, 515

S.E.2d 457, 460 (1999) (citation and quotation omitted). “An
 -13-
objective standard is used to determine whether a paper has been

interposed for an improper purpose, with the burden on the movant to

prove such improper purpose.” Coventry Woods Neighborhood Ass'n Inc.

v. City of Charlotte, 213 N.C. App. 236, 241, 713 S.E.2d 162, 166

(2011) (citation and quotation omitted). A signer’s purpose is

heavily influenced by “whether or not a pleading has a foundation in

fact or is well grounded in law[.]” Id. at 242, 713 S.E.2d at 166

(citation and quotation omitted).

Here, appellant appealed the order from clerk Frye to Judge

Cromer in superior court based on motions:

(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.

Judge Cromer made findings of fact in support of his

conclusion to allow Mr. Thompson’s motion to sanction appellant

pursuant to Rule 11. The pertinent findings stated:
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1.) The matters presently before this Court
have already been heard by the Clerk of the
Forsyth County Superior Court and denied,
thereafter they have been appealed to the
Forsyth County Superior Court and the court
has previously ruled on these matters. None of
these rulings were appealed to the North
Carolina Court of Appeals.

2.) [T]hese matters [had] been raised, heard
and conclusively established by previous court
orders. . . . [Clerk Gordon] [has] found that
the underlying decisions related to these
issues have not been appealed. Issues raised
in the first three motions have been
conclusively established in this matter
contrary to [appellant] and he is bound by the
previous adverse rulings.

3.) [Motion (d)] is false and any reasonable
attorney would have known this to be the case
if he reviewed the file prior to filing a
pleading asserting this claim.

In sum, Judge Cromer sanctioned appellant after finding that

his motions were: 1.) time barred from appellate review; 2.)

repetitious; 3.) without any factual or legal basis; and 4.)

previously ruled on. However, the genesis of appellant’s motions

was that “the [o]rder dated May 3, 2007 declaring [respondent]

incompetent was not file stamped thereby negating its validity.”

Rooted in our analysis above, it is clear that motions (a), (b),

and (c) were never properly ruled on by previous court orders

because clerks Hinshaw and Gordon never entered their orders.

Moreover, the failed entry of clerk Hinshaw’s incompetency order
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prevented appellant from filing timely written notice of appeal of

that order. Appellant also had a proper purpose, factual basis,

and legal basis to file motion (d) requesting that Mr. Thompson’s

voluntary bankruptcy petition be declared invalid based on the

incompetency order’s invalidity. Thus, the trial court erred in

sanctioning appellant under Rule 11.

III. Conclusion
The trial court erred in concluding that: 1.) the incompetency

order was the law of the case; 2.) the issues raised in appellant’s

appeal to superior court were barred by the doctrine of res

judicata; and 3.) sanctions were appropriate pursuant to Rule 11.

Accordingly, we reverse the trial court on each of these issues

and remand to the superior court for further proceedings.

Reversed and Remanded.

Judges McCULLOUGH and DAVIS concur.