e_t_t_s 1.o i g 2.e a s 3.e a m 4.i i n. pancake : griddle :: hamburger : 1.lettuce 2.bun 3.ketchup...
Post on 17-Dec-2015
219 Views
Preview:
TRANSCRIPT
E_T_T_S1. O I G
2. E A S
3. E A M
4. I I N
pancake : griddle :: hamburger : 1. lettuce
2. bun
3. ketchup
4. grill
Number of Appeals From Clerks You’ve Handled
1. 0
2. 1-9
3. 10-25
4. More than 25
Standard of Review in Civil Matters Appealed from Clerk...
1. De novo
2. On the record
3. Abuse of discretion
Preferred Actions in Special Proceedings Transferred from Clerk
1. Hear only matter transferred
2. Hear entire matter
3. Hear matters requested by parties, remand others
Standard of Review in Estate Matters
1. De novo
2. Abuse of discretion
3. Record review of findings and conclusions
Can you consolidate a civil action against an executor with an appeal of a clerk’s order declining to remove
him/her?
1. Yes
2. No
Can you appoint an executor if one is removed in a proceeding you
hear?
1. Yes
2. No
Can you remove a trustee if you find the clerk erred in not finding a
ground for removal?1. Yes
2. No
Appeals from the Clerk-2000 Revision
• Many individual, unique rules
• Conflicting rules
• Redundant rules
• Predates uniform court system
Appeals from the Clerk
• Goals of statutory revision– Provide clarity and reduce ambiguity– Promote uniformity and equal results– Provide guidance to those who don’t already
know– Change the law as little as possible
Appeals from the Clerk—Policy and Drafting Issues
• Retention of unique special proceeding rules
• Extent to which estate evidentiary rulings must be objected to before clerk
• Retention of appellate standard in estate cases
Appeals from the Clerk
• Civil (Pretrial and Post-trial) GS 1-301.1
• Special Proceedings GS 1-301.2
• Estate GS 1-301.3
Appeals from the Clerk
• Each section spells out procedure for handing appeals, and by implication, procedure for clerk to follow
• When clerk hears and when they transfer
• Effect of clerk’s decision
• Standard of review of decision in trial courts
Appeals from Clerk—Civil GS 1-301.1
• No transfer, but may appeal
• In most instances, judge has concurrent authority
• Standard on appeal is de novo
• Service of clerk’s orders not required by Rule 58
• Judge or clerk may issue stay
Appeals from Clerk—CivilGS 1-301.1
• If matter appealed, judge has discretion to hear all matters or decide appeal and remand to clerk
• If matter must be heard by clerk, must be remanded after appeal
Appeals from the Clerk-Special Proceedings—GS 1-301.2
• Transferred for issue of fact, equitable defenses or equitable relief in pleadings--otherwise heard to conclusion by clerk
• De novo review by trial court
• No transfer of incompetency proceedings, foreclosure, partitions, even if issues raised in pleadings
Appeals from the Clerk-Special Proceedings--GS 1-301.2
• Clerk or judge may issue stay
• Any matter previously transferred and determined by the court may not be relitigated under de novo appeal from clerk of same matter
Incompetency
• Must be heard by clerk
• Similar procedure to restore competency
• On appeal, standard is de novo– 2nd jury trial
• Appeal rules in GS 35A apply
Foreclosure
• Not transferred if issues of fact or equitable defenses are pleaded
• Must be heard by clerk
• Equitable defenses raised by superior court injunctive relief
Adoptions
•Appeals are to district court, not superior court, unlike most other special proceedings
Partition Proceedings GS 46-19
• If exception to report of commissioners, clerk must– Confirm report– Recommit report for further review– Vacate report and direct commissioners to submit
new report– Vacate report, appoint new commissioner
• On appeal, judge may only take actions clerk could have taken
Clerk’s Estates Jurisdiction GS 1-301.3
• Clerk has exclusive jurisdiction– Trusts– Estates of decedents
• Wills, intestate succession, administration of the estate property
– Guardianships of minors and incompetents, but not incompetency
• No transfer and trial judge has appellate jurisdiction only
Clerk’s Estate Procedures• Clerk hears and decides all estate matters
• Order--findings of fact and conclusions of law
• Recording on request of party or in clerk’s discretion, by electronic means– If no recording, clerk must prepare summary
for appeal
Estates on Appeal• On appeal judge to determine if
– Evidence supports findings
– Findings support conclusions
– Law supports order/judgment– Abuse of discretion?
– Elective Share exception
• Grounds for appeal must be stated– Evidentiary issues—no objection needed
– Judge decides if evidentiary matter is prejudicial; if so may hear matter or remand
• After appeal decided, must send back to clerk for any further administration
Grounds for Revoking Letters After Hearing
• Person disqualified under law
• Issuance of letters obtained by false representation or mistake
• Person violated fiduciary duty through default or misconduct in office
• Person has private interest that might tend to hinder or be adverse to proper administration of estate
Grounds for Revoking Letters After Hearing
• Person disqualified under law– under 18– adjudicated incompetent in formal proceeding– convicted felon– nonresident with no resident agent– corporation not authorized to act as PR– lost rights under GS Chapter 31A
Grounds for Removing a Trustee
• Trustee committed a serious breach of trust• Lack of cooperation among co-trustees
substantially impairs administration of the trust• Because of unfitness, unwillingness, or persistent
failure to administer trust effectively, removal is in best interest of beneficiaries
• Substantial change of circumstances, removal of trustee bests serves interests of beneficiaries and is consistent with material purpose of trust, and suitable successor is available
Jurisdiction of Trust Proceedings
• Before 2002 clerk’s jurisdiction to remove/ appoint successor trustee was through a special proceeding
• 1/1/2002 clerk has original and exclusive jurisdiction to– appoint or remove a trustee– permit trustee to renounce or resign– review fees and settle accountings– require bond
Jurisdiction of Trust Proceedings
• Clerk has original but not exclusive jurisdiction in a proceeding to – ascertain beneficiaries– determine question arising in administration or distribution
of trust– determine existence of trust
• Clerk may determine that superior court judge should hear these matters and transfer to judge
• Party may file declaratory action in superior court or remove to superior court trust matter filed before clerk that seeks declaratory relief
Jurisdiction of Trust Proceedings
• Judge, not clerk, has jurisdiction over actions – to reform, terminate or modify a trust– by or against creditors or debtors of trust– involving claims for monetary damages– to enforce a charitable trust– to amend or reform a charitable trust
Lawyers Have It Both Ways
• Trust proceeding before clerk and civil action before judge involving common question of fact or law—judge may order consolidation of cases and jurisdiction for all matters pending in superior court
• Civil action pending in superior court, party may join claims against another party even if otherwise within clerk’s exclusive jurisdiction
How would you proceed?
1. Consolidate all matters into one proceeding
2. Dispose of clerks appeal, then civil matter
3. Dispose of civil matter, then hear appeal
Who has burden of going forward?
33% 33%33%1. Slyly and then Job on his issue
2. Slyly on both cases
3. Job on both cases
Would you affirm the clerk’s order?
1. Yes
2. No
Executor objects to affidavits in your court. Do you sustain objection?
1. Yes
2. No
You sustain objections, and must decide if it is prejudicial error.
Prejudicial error means...1. Different result would
likely have occurred
2. A high probability of a different result
3. A reasonable possibility of a different result
4. Other
You rule affidavits inadmissible and prejudicial. Would you?
1. Remand the case for a new hearing
2. Hear additional evidence and make new findings of fact
3. Rule on the clerk’s order after excluding the improper evidence
If you find a reasonable basis for clerk’s findings, but you would have
reached a different conclusion, would you …
1. Remand for a new hearing
2. Affirm the order
3. Reverse the order and remand
If the facts support removal of a trustee, would you appoint a new
trustee?
1. Yes
2. No
None of the cases have been heard by the clerk but are before you and Job’s attorney
asks you to consolidate and hear all of them , would you
1. Hear breach of fiduciary duty and send others back to clerk
2. Consolidate and hear all
3. Consolidate removal of trustee and breach of fiduciary duty and send revocation of letters of PR back to clerk
These cases causeC_N_U_I_N
1. W U U Q
2. W O U J
3. C A E X
4. S F O O
top related