{ "id": 8520576, "name": "IN RE ESTATE OF SHIRLEY ALLRED TUCCI", "name_abbreviation": "In re Estate of Tucci", "decision_date": "1991-10-01", "docket_number": "No. 9021SC1010", "first_page": "142", "last_page": "156", "citations": [ { "type": "official", "cite": "104 N.C. App. 142" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "369 S.E.2d 104", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "105" } ], "opinion_index": 0 }, { "cite": "90 N.C. App. 597", "category": "reporters:state", "reporter": "N.C. 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App.", "case_ids": [ 8527363 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc-app/94/0428-01" ] }, { "cite": "275 S.E.2d 424", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "302 N.C. 375", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565783 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/302/0375-01" ] }, { "cite": "266 S.E.2d 766", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "47 N.C. App. 183", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548797 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/47/0183-01" ] }, { "cite": "273 S.E.2d 712", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "716" } ], "opinion_index": 0 }, { "cite": "302 N.C. 164", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564204 ], "year": 1981, "pin_cites": [ { "page": "169" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0164-01" ] }, { "cite": "373 S.E.2d 443", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "92 N.C. App. 99", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526441 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc-app/92/0099-01" ] }, { "cite": "368 S.E.2d 875", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "322 N.C. 330", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2518600, 2513230 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/322/0330-02", "/nc/322/0330-01" ] }, { "cite": "364 S.E.2d 706", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "709" } ], "opinion_index": 0 }, { "cite": "88 N.C. App. 634", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358847 ], "year": 1988, "pin_cites": [ { "page": "638" } ], "opinion_index": 0, "case_paths": [ "/nc-app/88/0634-01" ] }, { "cite": "344 S.E.2d 100", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "81 N.C. App. 159", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522057 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc-app/81/0159-01" ] }, { "cite": "332 S.E.2d 703", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "717" } ], "opinion_index": 0 }, { "cite": "76 N.C. App. 165", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526887 ], "year": 1985, "pin_cites": [ { "page": "179" } ], "opinion_index": 0, "case_paths": [ "/nc-app/76/0165-01" ] }, { "cite": "127 S.E.2d 762", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "pin_cites": [ { "page": "763" } ], "opinion_index": 0 }, { "cite": "258 N.C. 23", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559300 ], "year": 1962, "pin_cites": [ { "page": "24" } ], "opinion_index": 0, "case_paths": [ "/nc/258/0023-01" ] }, { "cite": "340 S.E.2d 408", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "417", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "315 N.C. 523", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4713937 ], "year": 1986, "pin_cites": [ { "page": "538", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0523-01" ] }, { "cite": "252 S.E.2d 799", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "297 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566321 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/297/0001-01" ] }, { "cite": "246 S.E.2d 549", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1978, "pin_cites": [ { "page": "552" }, { "page": "552" } ], "opinion_index": 0 }, { "cite": "37 N.C. App. 570", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554093 ], "year": 1978, "pin_cites": [ { "page": "574-75" } ], "opinion_index": 0, "case_paths": [ "/nc-app/37/0570-01" ] }, { "cite": "394 S.E.2d 803", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "807" } ], "opinion_index": 0 }, { "cite": "327 N.C. 397", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498586 ], "year": 1990, "pin_cites": [ { "page": "404" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0397-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 1-272", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 6-21", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 6, "pin_cites": [ { "page": "(2)" }, { "page": "(2)" }, { "page": "(2)" }, { "page": "(2)" }, { "page": "(2)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 998, "char_count": 33463, "ocr_confidence": 0.77, "pagerank": { "raw": 5.63148564926442e-07, "percentile": 0.9485052989575841 }, "sha256": "48435ab88146f899ff3894823c082922bee7bc5fecc1f346a3284953dbb37c1e", "simhash": "1:a6eae76c753e8d64", "word_count": 5631 }, "last_updated": "2023-07-14T22:39:04.224888+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Arnold and Johnson concur." ], "parties": [ "IN RE ESTATE OF SHIRLEY ALLRED TUCCI" ], "opinions": [ { "text": "WYNN,.. Judge.\nAppellant, the Estate of Shirley Allred Tucci (\u201cEstate\u201d), appeals from an order of the Forsyth County Superior Court taxing the Estate with the payment of attorney\u2019s fees, as part of the cost's! incurred in an unsuccessful attempt by James Michael Tucci (\u201cTucci\u201d) to dissent from the will of his wife, Shirley Allred Tucci.\nOn 25 May 1990, following his unsuccessful bid to dissent, Tucci filed a petition pursuant to N.C. Gen. Stat. \u00a7 6-21(2) requesting the Forsyth County Clerk of Superior Court to tax the attorney\u2019s fees which he incurred in undertaking the dissent against the Estate. Attached to and tendered in support of the petition was \u201ca statement for professional services rendered and costs advanced on behalf of James Michael Tucci by the law firm of Harrison, North, Cooke & Landreth\u201d (\u201cthe Harrison firm\u201d). Neither a copy of the petition, nor a notice of hearing was served upon the Estate. After reviewing the petition, the clerk found as fact that Tucci\u2019s dissent had substantial merit, and that the attorney\u2019s fees incurred were fair and reasonable in every respect. Thereafter, the clerk entered an order requiring the Estate to pay \u201cthe attorney\u2019s fees and costs of James Michael Tucci, ... to the law firm of Harrison, North, Cooke & Landreth.\u201d\nPursuant to the provisions of N.C. Gen. Stat. \u00a7\u00a7 1-272 and 7A-251, the Estate appealed to the Superior Court of Forsyth County on 29 May 1990 for a de novo review of the clerk\u2019s order. In its notice of appeal, the Estate asserted that it had been denied due process of law because it had not been afforded an opportunity to respond to the petition for attorney\u2019s fees. The Estate also objected to the Clerk\u2019s findings of fact and conclusions of law, and alleged that the Clerk had abused her discretion in taxing Tucci\u2019s attorney\u2019s fees against it. Also on 29 May 1990, in an effort to discover the factual basis for Tucci\u2019s petition, the Estate served on Tucci\u2019s counsel a notice to take Tucci\u2019s deposition and a request for the production of documents. The deposition and the date by which the documents were to be returned was 27 June 1990.\nOn 30 May 1990, Tucci\u2019s counsel sent a request to the court that the Estate\u2019s appeal be calendared for 25 June 1990, two days prior to the time Tucci was to respond to discovery. Notwithstanding the Estate\u2019s objection to this request, the appeal was calendared for 25 June 1990 before Judge Julius A. Rousseau, Jr. Upon receiving this information, the Estate served a subpoena duces tecum on Tucci and his attorneys to appear, to testify, and to produce documents at the June 25th hearing. The Estate also filed a motion to continue the hearing from June 25th.\nOn 15 June 1990, counsel for Tucci filed a response to the Estate\u2019s notice of deposition and request for documents, and indicated that Tucci would refuse to appear and testify at the deposition and that there would be no further production of documents.\nOn 18 June 1990, the Estate filed a motion to compel discovery, and its motion to continue was heard by Judge Judson D. DeRamus, Jr. via telephone. As a result of the hearing, Judge DeRamus entered an order allowing the Estate\u2019s motion to continue, and setting the Estate\u2019s motion to compel discovery for hearing on 25 June 1990 before Judge Rousseau. In light of the granting of its continuance, the Estate agreed to withdraw its subpoena duces tecum.\nAt the June 25th hearing of its motion to compel discovery, the Estate explained to Judge Rousseau that the reasons for its discovery requests were threefold: (1) To uncover the factual basis underlying the petition for attorney\u2019s fees; (2) To uncover the factual basis for the descriptive entries, time estimates and hourly fees shown on the statement for professional services which was attached to the petition; and (3) To uncover the factual basis for the contention that Tucci\u2019s dissent had \u201csubstantial merit.\u201d\nJudge Rousseau concluded that the issues of whether Tucci\u2019s dissent had substantial merit and whether his attorney\u2019s fees were reasonable were to be decided solely upon the existing record of the case and upon affidavits relating to the reasonableness of attorney\u2019s fees. Over the Estate\u2019s objection, Judge Rousseau also set a hearing on the merits of the Estate\u2019s appeal for 29 June 1990. Judge Rousseau\u2019s written order was entered 29 June 1990.\nPrior to the hearing on the Estate\u2019s appeal, counsel for the Estate offered to settle Tucci\u2019s petition for attorney\u2019s fees by letter dated 26 June 1990. The terms of the offer were that in exchange for Tucci\u2019s withdrawing and dismissing his petition for attorney\u2019s fees and his filing of a statement that the Clerk\u2019s order had been satisfied, the Estate would purchase a house in which both Tucci and his minor son could live and would dismiss its appeal of the clerk\u2019s order. On 27 June 1990, Tucci\u2019s counsel responded to the Estate\u2019s offer with a letter indicating that Tucci desired to settle, but that the Harrison firm would no longer represent Tucci.\nTucci\u2019s new counsel and the Estate subsequently filed their respective notices of withdrawal and informed Judge Rousseau that because the matter had been resolved, there was no need for a hearing on the Estate\u2019s appeal. In spite of these events, Judge Rousseau proceeded to conduct a hearing on 29 June 1990. At the hearing, Judge Rousseau ruled, ex mero motu, that the documents filed by Tucci and the Estate were ineffective insofar as they attempted to deprive the court of its jurisdiction to review the clerk\u2019s order taxing costs against the Estate. Following the hearing, Judge Rousseau entered a written order dated 24 July 1990 which, based upon his findings of fact, concluded that Tucci\u2019s dissent had substantial merit, and that attorney\u2019s fees in the amount of $128,199.21 (representing the previously awarded amount, less $1,500 which Tucci had paid) were reasonable and should, in the court\u2019s discretion, be taxed as costs against the Estate. From Judge Rousseau\u2019s 29 June 1990 and 24 July 1990 orders denying the Estate\u2019s motion to compel discovery and ordering the payment of attorney\u2019s fees, respectively, the Estate now appeals.\nWe note initially that in spite of the fact that Tucci and the Estate purport to have settled their differences, and in spite of the fact that Tucci is no longer represented by attorneys A. Wayland Cooke and Michael C. Landreth of the Harrison firm, Cooke and Landreth have filed a brief opposing the appellant titled \u201cAppellee\u2019s Brief.\u201d Because the North Carolina Rules of Appellate Procedure generally speak in terms of actions which a \u201cparty\u201d to a proceeding must take on appeal, it is implicit that any appellate brief must be filed on behalf of one of those parties.\nIn the interests of justice, and as a matter of appellate grace, we hereby vary the Rules of Appellate Procedure\u2019s implicit requirement that a brief be filed on behalf of a party to a proceeding. Appellate Rule 2 provides:\nTo prevent manifest injustice to a party, or to expedite decision in the public interest, either court of the appellate division may, except as otherwise expressly provided by these rules, suspend or vary the requirements or provisions of any of these rules in a case pending before it upon application of a party or upon its own initiative, and may order proceedings in accordance with its directions.\nN.C.R. App. P. 2. Rule 28(i) of the Rules of Appellate Procedure allows the filing of an amicus curiae brief in response to a request by the appellate court on its own motion. See N.C.R. App. P. 28(i). Although this court did not officially request Messrs. Cooke and Landreth to file an amicus curiae brief, we nonetheless elect to use N.C.R. App. P. 2 to treat their brief as such. See State v. Sanderson, 327 N.C. 397, 404, 394 S.E.2d 803, 807 (1990). We wish to make it clear, however, that but for the extraordinary procedural posture of this case, we would not be inclined to do so. We now turn to address appellant\u2019s several assignments of error.\nI\nIn its first assignment of error, the Estate contends that the trial court erred in hearing the merits of the Estate\u2019s appeal because of Tucci\u2019s voluntary dismissal of his petition for attorney\u2019s fees, Tucci\u2019s stipulation that the clerk\u2019s order had been satisfied, and the Estate\u2019s withdrawal of its appeal. The Estate asserts that each of these acts obviated the need for a hearing on the merits of its appeal. We disagree.\nFirst, a voluntary dismissal under Rule 41 is proper only when made prior to the entry of final judgment. Wood v. Wood, 37 N.C. App. 570, 574-75, 246 S.E.2d 549, 552 (1978), rov\u2019d on other grounds, 297 N.C. 1, 252 S.E.2d 799 (1979). After final judgment, any correction, modification, amendment, or setting aside of the judgment can be done only by the court. Id. at 575, 246 S.E.2d at 552. In the instant case, Tucci\u2019s notice of voluntary dismissal came after the clerk entered a final order on Tucci\u2019s petition for attorney\u2019s fees. Tucci\u2019s purported voluntary dismissal of the petition for attorney\u2019s fees was, therefore, of no legal efficacy. See id.\nSecond, Tucci did not have the capacity to stipulate that the clerk\u2019s order had been satisfied. As noted by our Supreme Court:\nThere is a clear difference between including attorney\u2019s fees in the costs taxed against a party to a lawsuit and in ordering the payment of attorney\u2019s fees. When costs are taxed, they establish a liability for payment thereof, and if a fund exists which is the subject matter of the litigation, costs may be ordered paid out of the fund prior to distribution of the balance thereof to the persons entitled. If no such fund exists, the satisfaction of the judgment for costs may be obtained by methods as for the enforcement of any other civil judgment.\nSmith v. Price, 315 N.C. 523, 538, 340 S.E.2d 408, 417 (1986) (citations omitted).\nIn contrast, when a court orders the payment of attorney\u2019s fees to an interested party, the award of attorney\u2019s fees becomes an order of the court, rather than a civil judgment, and is enforceable by contempt for disobedience. Id.\nHere, the Estate was taxed with the payment of Tucci\u2019s attorney\u2019s fees pursuant to N.C. Gen. Stat. \u00a7 6-21(2). As such, the attorney\u2019s fees are considered to be an item of costs. Since the clerk\u2019s order indicated that the attorney\u2019s fees should be paid directly \u201cto the law firm of Harrison, North, Cooke & Landreth,\u201d and not to Tucci, it is clear that only the law firm of Harrison, North, Cooke & Landreth could stipulate that the clerk\u2019s order had been satisfied. Indeed, since the order for costs, if not paid, can be satisfied by the clerk\u2019s issuance of an execution, the Harrison firm would be the proper party to institute proceedings for such an execution. It follows, therefore, that Tucci did not have the capacity to stipulate to the satisfaction of the clerk\u2019s order.\nFinally, the Estate\u2019s withdrawal of its appeal of the clerk\u2019s order was also ineffective. It is well established that \u201c[w]hen an appeal has been perfected, [an] appellant cannot withdraw it without first obtaining the consent of the appellate court. That court may allow or deny the motion in the exercise of its sound discretion.\u201d Town of Davidson v. Stough, 258 N.C. 23, 24, 127 S.E.2d 762, 763 (1962). Since \u201cthe act of the clerk in taxing the costs is ministerial and is subject to revision by the trial judge,\u201d Leary v. Nantahala Power and Light Co., 76 N.C. App. 165, 179, 332 S.E.2d 703, 717 (1985), we conclude that there was no abuse of discretion in the trial court\u2019s refusal to allow the Estate to withdraw its appeal. Appellant\u2019s assignment of error on each of the above points is overruled.\nII\nAppellant next contends that the trial court committed reversible error in voiding essential terms of the settlement between the Estate and Tucci. The Estate claims that by nullifying the settlement terms, the trial court erroneously interfered with the parties\u2019 right to settle their dispute. We disagree.\nNeither the Estate nor Tucci filed a settlement agreement with the court. The only documents which were filed were Tucci\u2019s voluntary dismissal and stipulation, along with the Estate\u2019s withdrawal of its appeal. Since there was no written settlement agreement filed with the court, the trial court could not and did not nullify the terms of their agreement. Instead, the trial court merely ruled that \u201cthe \u2018Notice of Withdrawal of Petition and Satisfaction of the Order\u2019, and the \u2018Notice of Withdrawal of Appeal,\u2019 were null and void and of no effect insofar as they attempted] to defeat the attorneys\u2019 right to an attorney fee.\u201d In sum, the court concluded that the filing of the documents could not deprive it of the authority to order costs paid to the persons entitled thereto. Since N.C. Gen. Stat. \u00a7 1-272 gives the superior court jurisdiction to review the clerk\u2019s order on appeal, the parties could not, through the terms of their purported settlement agreement, deprive the court of that jurisdiction. Appellant\u2019s assignment of error is without merit and is, therefore, overruled.\nIll\nIn its next assignment of error, appellant contends that the Estate was denied due process of law in several respects:\n(1) The Estate was not given notice or an opportunity to be heard at the hearing before the clerk;\n(2) There was no motion pending before the court when it abrogated terms of the settlement agreement;\n(3) The Estate was denied five days\u2019 notice of the hearing on the merits of its appeal, in violation of N.C.R. Civ. P. 6(d);\n(4) The Estate was denied the opportunity to conduct discovery; and\n(5) By denying the Estate\u2019s motion to continue the hearing of the merits of its appeal, the trial court denied the Estate an opportunity to effectively prepare for the hearing.\nFor the reasons which follow, we find each of these contentions to be without merit.\nFirst, we do not believe that the Estate suffered any prejudice by reason of the ex parte hearing before the clerk. When Judge Rousseau conducted a de novo review of the clerk\u2019s order, the Estate was given not only notice of the proceedings, but also an opportunity to be heard and to present evidence. A party asserting error on appeal must show from the record that the trial court committed error, and that he was prejudiced as a result. Lawing v. Lawing, 81 N.C. App. 159, 344 S.E.2d 100 (1986). Because the appellant had an opportunity to oppose the petition for attorney\u2019s fees in superior court, we conclude that it was not prejudiced as a result of the entry of the clerk\u2019s order.\nSecond, a motion was not required in order for the court to rule that the parties\u2019 settlement could not negate the clerk\u2019s order. Since the trial court was free to disallow the Estate\u2019s withdrawal of appeal, it necessarily had to consider the impact of the settlement agreement on the proceedings before the court. It is important to keep in mind that the trial court did not alter the settlement agreement as between the parties; rather, the court ruled that regardless of what the parties may have agreed to do as between themselves, their agreement could not interfere with or vitiate the clerk\u2019s order. We conclude that the trial court made a proper ruling on its own motion.\nThird, the Estate was not entitled to five days\u2019 notice of the hearing on the merits of its appeal pursuant to the provisions of N.C.R. Civ. P. 6(d). Rule 6(d) relates only to the hearing of motions. The hearing of the Estate\u2019s appeal of the clerk\u2019s order, held on 29 June 1990, was not pursuant to a motion. Moreover, the Estate knew that Judge Rousseau originally intended to hear the merits of its appeal on 25 June 1990. But for Judge DeRamus\u2019 granting the Estate\u2019s motion for a continuance on 18 June 1990, such hearing would have been held on the 25th. Under the circumstances of this case, the Estate had an adequate opportunity to prepare its case for appeal and was not entitled to five days\u2019 notice of the hearing of its appeal.\nFourth, the trial court was not required to grant the Estate\u2019s motion to compel discovery. \u201c[OJrders regarding matters of discovery are within the trial court\u2019s discretion and are reviewable only for abuse of that discretion.\u201d Weaver v. Weaver, 88 N.C. App. 634, 638, 364 S.E.2d 706, 709, disc. rev. denied, 322 N.C. 330, 368 S.E.2d 875 (1988).\nThe evidence in this case indicates that the facts underlying the petition for attorney\u2019s fees, the descriptive entries, time estimates and hourly fees shown on the statement for professional services rendered, and the contention that Tucci\u2019s dissent had substantial merit were already available or could have been made available during the hearing through affidavits and statements of counsel. The affidavits filed by attorneys Cooke and Landreth, together with the existing record in the case, provided sufficient information from which the trial court could make a sound determination regarding attorney\u2019s fees. We conclude that the trial court properly exercised its discretion in denying the appellant\u2019s motion to compel discovery.\nFinally, the Estate contends that the trial court erred in denying its motion to continue the hearing of the Estate\u2019s appeal beyond 29 June 1990. The refusal of a continuance is also within the sound discretion of the trial court. Freeman v. Monroe, 92 N.C. App. 99, 373 S.E.2d 443 (1988). We agree with the statement in the trial court\u2019s order of 29 June 1990 that the instant case \u201chas been a protracted one and should be disposed of as soon as practically possible, upon adequate notice to all the parties.\u201d This appeal arises out of dissent proceedings instituted more than five years ago. The issues which were before the trial court were relatively simple, and we conclude that there was no abuse of discretion in the denial of the Estate\u2019s motion to continue.\nIV\nIn its next assignment of error, the Estate contends that the trial court erred in concluding that attorney\u2019s fees could properly be taxed in dissent proceedings, that Tucci\u2019s dissent had substantial merit, and that the attorney\u2019s fees were reasonable in amount.\nThe relevant statute, N.C. Gen. Stat. \u00a7 6-21, provides,\nCosts in the following matters shall be taxed against either party, or apportioned among the parties, in the discretion of the court:\n(2) Caveats to wills and any action or proceeding which may require the construction of any will or trust agreement, or fix the rights and duties of parties thereunder; provided, that in any caveat proceeding under this subdivision, the court shall allow attorneys\u2019 fees for the attorneys of the caveators only if it finds that the proceeding has substantial merit.\nN.C. Gen. Stat. \u00a7 6-21(2) (1986).\nAppellant\u2019s first argument is entirely without merit. Our Supreme Court squarely addressed this issue with the following statement:\nWhere a surviving spouse is forced to engage in litigation to determine whether a right of dissent exists, we hold that the discretionary power given the trial judge under G.S. 6-21(2) includes the power to award attorneys\u2019 fees for the surviving spouse when, in the opinion of the trial court, the proceeding was one with substantial merit.\nIn re Kirkman, 302 N.C. 164, 169, 273 S.E.2d 712, 716 (1981). Thus, as long as a dissent has substantial merit, the court may exercise its discretion in awarding reasonable attorney\u2019s fees.\nUpon careful review of the record in this case, we are also of the opinion that Tucci\u2019s dissent indeed had substantial merit.\nThe substantial merit requirement does not mean success on the merits; in its sound discretion, the trial court may award attorney\u2019s fees even to unsuccessful caveators. See In re Will of Ridge, 47 N.C. App. 183, 266 S.E.2d 766 (1980), rev\u2019d on other grounds, 302 N.C. 375, 275 S.E.2d 424 (1981). In the underlying dissent, Mr. Tucci contended that a reconciliation between him and his wife following their separation manifested an intent to rescind their separation agreement. The Clerk of Superior Court agreed that the separation agreement had been rescinded and concluded that the provisions of the agreement which were executory at the time of the Tuccis\u2019 reconciliation, of which Mr. Tucci agreed to relinquish the statutory right to dissent, were terminated upon reconciliation. As a result, the clerk determined that Mr. Tucci had regained his statutory right to dissent. The Estate appealed the clerk\u2019s decision to the superior court, which held that the clerk\u2019s findings of fact were supported by competent evidence and supported the conclusions of law.\nThe Estate then appealed the superior court\u2019s decisions to this court. In an opinion authored by Judge Greene and reported at 94 N.C. App. 428, 380 S.E.2d 782 (1989), a majority of the panel stated that because the statutory right to dissent was a property right, reconciliation between Mr. Tucci and his wife would rescind Mr. Tucci\u2019s agreement to release that right only if the Tuccis\u2019 continued separation was a part of the consideration for, or was an implied condition of, Mr. Tucci\u2019s agreement to release the right. The court also noted that if the continued separation of the Tuccis was not a part of the consideration for Mr. Tucci\u2019s agreement to release his right to dissent, it was immaterial whether Mr. Tucci\u2019s release was executory at the time of the Tuccis\u2019 reconciliation. Upon concluding that the Tuccis\u2019 continued separation was not consideration for Mr. Tucci\u2019s release of the right to dissent, the majority held that Mr. Tucci\u2019s statutory right of dissent was barred by their separation agreement. In a per curiam opinion, the Supreme Court affirmed the decision the Court of Appeals. 326 N.C. 359, 388 S.E.2d 768, reh\u2019g denied, 326 N.C. 602, 393 S.E.2d 879 (1990).\nJudge Eagles filed a dissenting opinion in Tucci. He disagreed with the majority\u2019s conclusion that Mr. Tucci\u2019s release was a part of a property settlement. Judge Eagles was of the opinion that Mr. Tucci\u2019s release was part and parcel of a \u201cpure\u201d separation agreement. As such, he would have concluded that the executory nature of Mr. Tucci\u2019s release required a finding that the Tuccis\u2019 reconciliation rescinded the release provision.\nIn Stegall v. Stegall, 100 N.C. App. 398, 397 S.E.2d 306 (1990), disc. rev. denied, 328 N.C. 274, 400 S.E.2d 461 (1991), a unanimous Court of Appeals criticized the Tucci Court for making a distinction between the property provisions of a separation agreement and the rest of the agreement, and for disregarding the executory nature of Tucci\u2019s agreement to release his right of dissent.\nMr. Tucci obviously advanced a good faith legal argument which has led to considerable disagreement. Since substantial merit under N.C. Gen. Stat. \u00a7 6-21(2) does not require success on the merits, we conclude that the trial court did not abuse its discretion in awarding attorney\u2019s fees.\nWe next consider the Estate\u2019s contention that the attorney\u2019s fees awarded by the trial court were unreasonable. In this regard, the Estate contends that there was no proof of the actual work performed, and that a contingency fee agreement between Tucci and his attorneys should have barred the award of attorney\u2019s fees.\nAn award of attorney\u2019s fees must be supported by evidence and findings of fact showing the reasonableness of the award. Barker v. Agee, 93 N.C. App. 537, 378 S.E.2d 566 (1989), aff\u2019d in part, rev\u2019d in part, 326 N.C. 470, 389 S.E.2d 803 (1990). In the instant case, Tucci\u2019s attorneys filed detailed, itemized statements showing the hours which they expended on Tucci\u2019s dissent, including summary descriptions of the actual work performed. Along with these itemized statements, Tucci\u2019s attorneys filed sworn affidavits, attesting to the accuracy of the entries contained on the statements. Finally, four attorneys practicing in the same area as Tucci\u2019s attorneys supplied affidavits which attested to the reasonableness of Tucci\u2019s attorney\u2019s hourly fees. We would also note that counsel for the Estate did not dispute that their firm had billed the Estate over $287,000. We conclud\u00e9 that there was ample proof of the actual work performed by Tucci\u2019s attorneys.\nThe presence of Tucci\u2019s contingency fee arrangement with his attorneys does not prevent the discretionary award of statutory attorney\u2019s fees. Epps v. Ewers, 90 N.C. App. 597, 369 S.E.2d 104 (1988). While a trial court may consider the customary fee for similar work and whether the fee is fixed or contingent, a contingent fee contract does not control the trial court\u2019s determination. Id. at 600, 369 S.E.2d at 105. Attorney\u2019s fees under N.C. Gen. Stat. \u00a7 6-21(2) are discretionary. In the instant case, the trial court made findings of fact as to the reasonable amount of time required for Tucci\u2019s attorney\u2019s services and the reasonableness of the hourly rates. We conclude that due to the complex nature of the services provided by Tucci\u2019s attorneys and due to the amount of time expended, the trial court\u2019s award of attorney\u2019s fees in this case was proper. See Barker, 93 N.C. App. at 544, 378 S.E.2d at 571.\nV\nIn its final assignment of error, appellant contends that its right to due process of law was violated by the trial court\u2019s refusal to allow it to present evidence during the hearing of its appeal. This assignment of error is without merit.\nIndeed, the Estate failed to avail itself of its opportunity to present evidence. During the hearing on 25 June 1990, Judge Rousseau made the following statement to counsel for the Estate:\n[I]f you have some witnesses, I\u2019ll let you stand up and state for the record, to make a showing for the record what they would say if they were here.\nNot only did the Estate fail to make a showing at the 29 June 1990 hearing, but it also failed to offer any affidavit or evidence to contradict the affidavits supplied by Tuc\u2019ci\u2019s attorneys. We hold that the Estate was given an ample opportunity to present its side of the case. Appellant\u2019s assignment of error, therefore, is overruled.\nWe have examined appellant\u2019s remaining assignments of error and find them to be without merit. For the reasons discussed above, the order of the superior court taxing attorney\u2019s fees against the Estate as costs is,\nAffirmed.\nJudges Arnold and Johnson concur.", "type": "majority", "author": "WYNN,.. Judge." } ], "attorneys": [ "Womble, Carlyle, Sandridge & Rice, by Michael E. Ray and Kurt C. Stakeman, for appellant-estate.", "A. Wayland Cooke and Michael C. Landreth have filed a brief in response to the estate\u2019s appeal." ], "corrections": "", "head_matter": "IN RE ESTATE OF SHIRLEY ALLRED TUCCI\nNo. 9021SC1010\n(Filed 1 October 1991)\n1. Appeal and Error \u00a7 257 (NCI4th)\u2014 dissent from will \u2014 attorney fees \u2014appeal from clerk\nThe trial court did not err by hearing the merits of an estate\u2019s appeal from an order of the Clerk of Superior Court taxing the estate with attorney fees as part of the costs incurred in an unsuccessful attempt to dissent from the will where the dissenter, Tucci, filed a voluntary dismissal of his petition for attorney fees, Tucci stipulated that the Clerk\u2019s order had been satisfied, and the estate withdrew its appeal. Tucci\u2019s purported voluntary dismissal of the petition for attorney fees came after the Clerk had entered a final order on the petition and was therefore of no legal efficacy; Tucci did not have the capacity to stipulate that the Clerk\u2019s order had been satisfied because the Clerk\u2019s order indicated that the fees should be paid directly to the law firm; and the estate\u2019s withdrawal of its appeal was ineffective because an appellant cannot withdraw an appeal which has been perfected without first obtaining the consent of the appellate court.\nAm Jur 2d, Appeal and Error \u00a7 922.\n2. Compromise and Settlement \u00a7 3 (NCI4th)\u2014 dissent from will-attorney fees \u2014 order from clerk \u2014 settlement by parties \u2014 not allowed to negate order\nThe trial court did not void the essential terms of a settlement agreement involving attorney fees between an estate and a spouse who had unsuccessfully dissented from the will where the Clerk had previously entered a final order requiring payment of attorney fees by the estate directly to the law firm as a part of the costs of the dissent, and the only documents filed with the court were a voluntary dismissal, a stipulation, and a withdrawal of the appeal to superior court. Since there was no written settlement agreement filed with the trial court, the court could not and did not nullify the terms of the agreement. The court instead merely ruled that the documents filed could not deprive it of the authority to order the costs paid.\nAm Jur 2d, Compromise and Settlement \u00a7 327.\n3. Clerks of Court \u00a7 11 (NCI4th) \u2014 dissent from will \u2014 hearing on attorney fees \u2014ex parte \u2014 no prejudice\nAn estate did not suffer prejudice by reason of an ex parte hearing before the Clerk to determine whether the estate should pay attorney fees for an unsuccessful dissent where the estate had the opportunity to oppose the petition for attorney fees at a de novo review in superior court.\nAm Jur 2d, Wills \u00a7\u00a7 1094, 1095.\n4. Compromise and Settlement \u00a7 3 (NCI4th)\u2014 dissent from will\u2014 attorney fees \u2014 ruling that settlement not allowed to negate clerk\u2019s order \u2014no motion required\nThe trial court made a proper ruling on its own motion in a proceeding to determine whether an estate should pay attorney fees for an unsuccessful dissent where the Clerk had ordered the estate to pay the fees, the estate appealed for a de novo review in superior court, and the court ruled that the parties\u2019 settlement could not negate the Clerk\u2019s order.\nAm Jur 2d, Wills \u00a7\u00a7 1094, 1095.\n5. Rules of Civil Procedure \u00a7 6 (NCI3d)\u2014 dissent from will\u2014 hearing on attorney fees \u2014notice\nAn estate was not entitled to five days\u2019 notice of a hearing on the merits of its appeal to superior court under N.C.6.S. \u00a7 1A-1, Rule 6(d) where the Clerk had entered a final order that the estate pay the attorney fees for an unsuccessful dissent from the will. Rule 6(d) relates only to the hearing of motions and the hearing of the estate\u2019s appeal was not pursuant to a motion. Moreover, the estate knew that the hearing was originally scheduled for 25 June and would have been held on that date, rather than 29 June, but for the estate\u2019s motion for continuance on 18 June.\nAm Jur 2d, Wills \u00a7\u00a7 1094, 1095.\n6. Discovery and Depositions \u00a7 55 (NCI4th)\u2014 dissent from will\u2014 superior court hearing on attorney fees \u2014motion for discovery \u2014 denied\nThe trial court properly exercised its discretion in denying a motion to compel discovery in a proceeding to determine whether an estate should pay attorney fees for an unsuccessful dissent where the underlying facts were already available or could have been made available during the hearing through affidavits and statements of counsel.\nAm Jur 2d, Wills \u00a7\u00a7 949, 1095.\n7. Trial \u00a7 3.1 (NCI3d)\u2014 continuance \u2014 denied\u2014no abuse of discretion\nThe trial court did not err by denying a motion to continue a hearing concerning the award of attorney fees arising from an estate. The refusal of a continuance was within the sound discretion of the.trial court. This appeal arises out of dissent proceedings instituted more than five years ago, the issues before the court were relatively simple, and there was no abuse of discretion.\nAm Jur 2d, Wills \u00a7\u00a7 1094, 1095.\n8. Wills \u00a7 61 (NCI3d)\u2014 dissent from will \u2014 unsuccessful\u2014attorney fees\nThe trial court did not err in awarding attorney fees for an unsuccessful dissent from a will where the dissenting husband contended that a reconciliation with his wife manifested an intent to rescind their separation agreement; the clerk agreed that the agreement had been rescinded and determined that the husband had regained his right to dissent; the superior court held that the Clerk\u2019s findings were supported by competent evidence and that the evidence supported the conclusions of law; the majority of the Court of Appeals panel stated that the statutory right to dissent was barred by the separation agreement; and one judge filed a dissenting opinion. The husband obviously advanced a good faith legal argument which led to considerable disagreement; since substantial merit under N.C.G.S. \u00a7 6-21(2) does not require success on the merits, there was no abuse of discretion.\nAm Jur 2d, Wills \u00a7\u00a7 1094, 1095.\n9. Attorneys at Law \u00a7 55 (NCI4th)\u2014 dissent from will \u2014 attorney fees \u2014 reasonableness\nThe attorney fees awarded by the trial court in an unsuccessful dissent from a will were proper where the dissenting spouse\u2019s attorneys filed detailed, itemized statements showing the hours they had expended, including summary descriptions of the actual work performed, and sworn affidavits attesting to the accuracy of the entries contained on the statements; four attorneys practicing in the same area supplied affidavits attesting to the reasonableness of the hourly fees; and the presence of the husband\u2019s contingency fee arrangement with his attorneys does not prevent the discretionary award of statutory attorney\u2019s fees.\nAm Jur 2d, Wills \u00a7\u00a7 1094, 1095.\n10. Constitutional Law \u00a7 108 (NCI4th)\u2014 hearing \u2014 right to present evidence\nAn estate\u2019s contention that its right to due process of law was violated by the trial court\u2019s refusal to allow it to present evidence during the hearing of its appeal from the Clerk of Superior Court was without merit where the estate failed to avail itself of its opportunity to present evidence.\nAm Jur 2d, Wills \u00a7 948.\nAPPEAL by Estate of Shirley Allred Tucci from Orders entered 29 June 1990 and 24 July 1990 in FORSYTH County Superior Court by Judge Julius A. Rousseau, Jr. Heard in the Court of Appeals 10 April' 1991.\nWomble, Carlyle, Sandridge & Rice, by Michael E. Ray and Kurt C. Stakeman, for appellant-estate.\nA. Wayland Cooke and Michael C. Landreth have filed a brief in response to the estate\u2019s appeal." }, "file_name": "0142-01", "first_page_order": 170, "last_page_order": 184 }