{ "id": 8520814, "name": "IN THE MATTER OF MORGAN SAMUEL WARD, III", "name_abbreviation": "In re Ward", "decision_date": "1993-10-05", "docket_number": "No. 9214SC1015", "first_page": "202", "last_page": "208", "citations": [ { "type": "official", "cite": "112 N.C. App. 202" } ], "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": "94 S.E.2d 640", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "pin_cites": [ { "page": "645", "parenthetical": "\"Defendant could not, by consent, confer on the court the power to hear a controversy not within the authority given it by the Legislature . . . .\"" } ], "opinion_index": 0 }, { "cite": "244 N.C. 540", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219559 ], "year": 1956, "pin_cites": [ { "page": "548", "parenthetical": "\"Defendant could not, by consent, confer on the court the power to hear a controversy not within the authority given it by the Legislature . . . .\"" } ], "opinion_index": 0, "case_paths": [ "/nc/244/0540-01" ] }, { "cite": "154 S.E.2d 327", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "333", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "270 N.C. 180", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566436 ], "year": 1967, "pin_cites": [ { "page": "187", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/270/0180-01" ] }, { "cite": "70 S.E.2d 204", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1952, "pin_cites": [ { "page": "209", "parenthetical": "the clerk of superior court may only exercise jurisdiction in civil cases as provided by statute" } ], "opinion_index": 0 }, { "cite": "235 N.C. 396", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625008 ], "year": 1952, "pin_cites": [ { "page": "403", "parenthetical": "the clerk of superior court may only exercise jurisdiction in civil cases as provided by statute" } ], "opinion_index": 0, "case_paths": [ "/nc/235/0396-01" ] }, { "cite": "239 S.E.2d 566", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "571", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "293 N.C. 688", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566967 ], "year": 1977, "pin_cites": [ { "page": "696", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/293/0688-01" ] } ], "analysis": { "cardinality": 478, "char_count": 12979, "ocr_confidence": 0.738, "pagerank": { "raw": 3.6856254361847664e-07, "percentile": 0.891836358027051 }, "sha256": "aebd90d6c0d60c3ada0b02096686e29ca8dea01d8d40917728208f8a8a75389a", "simhash": "1:2a2f744473edc557", "word_count": 2125 }, "last_updated": "2023-07-14T15:48:17.524906+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges EAGLES and GREENE concur." ], "parties": [ "IN THE MATTER OF MORGAN SAMUEL WARD, III" ], "opinions": [ { "text": "ORR, Judge.\nThe historical background for this appeal arises out of an automobile accident on 23 December 1987 in which respondent Morgan Samuel Ward, III was injured near Winnie, Texas by a vehicle owned by Imperial Trucking Company, Inc. In January 1990, Ward filed a suit against Imperial and Charles H. Black, the driver of the vehicle owned by Imperial, in the United States District Court for the Middle District of North Carolina. Imperial filed a motion to dismiss for lack of personal jurisdiction, and Ward moved for a change of venue. An order was entered granting Imperial\u2019s motion to dismiss and Ward\u2019s motion to change venue to the Southern District of Texas. On 13 November 1990, Ward filed a voluntary dismissal in this action.\nDuring the pendency of this suit, on 16 August 1990, Ward\u2019s attorney, John Constantinou, filed a petition with the Durham County Clerk of Superior Court to adjudicate Ward incompetent. On 11 October 1990, an order was entered by the Durham County Clerk of Superior Court finding that Ward had been incompetent since the date of the accident, appointing Constantinou as Ward\u2019s general guardian, and concluding that the \u201c[g]eneral [gjuardian shall be allowed to file a personal injury action for the ward without further permission from this Court\u201d.\nOn 14 November 1990, Ward, through his guardian Constantinou, instituted a personal injury action against Imperial and Black in Brazoria County District Court, Texas for the injuries sustained in the automobile accident of 23 December 1987. According to Imperial\u2019s brief, it was alleged in this action that Ward\u2019s incompetency tolled the statute of limitations.\nUpon learning that Ward had been adjudicated incompetent, Imperial filed a Motion in the Cause under N.C. Gen. Stat. \u00a7 35A-1207 to reopen the incompetency adjudication of Ward in Durham County Superior Court. On 10 October 1991, the Clerk of Durham County Superior Court signed an order stating that Constantinou, as Ward\u2019s guardian, agreed to reopen the proceeding, and based on this consent, the Clerk reopened the incompetency adjudication of Morgan Samuel Ward, III.\nAfter a hearing, on 12 June 1992, the Clerk of Court entered an order modifying the previous order. In this order, the Clerk of Court found that Ward has been an incompetent adult since 23 December 1987, but that the court did not have the authority to declare a respondent incompetent prior to the institution of an incompetency determination proceeding. Thus, the Clerk concluded as a matter of law that Ward has been an incompetent adult since 16 August 1990, the date Constantinou filed the petition for adjudication of incompetence in this action. Further, the order affirmed the appointment of Constantinou as Ward\u2019s general guardian.\nOn 19 June 1992, Imperial filed a notice of appeal from this order in Durham County Superior Court requesting a trial de novo. On 1 July 1992, Constantinou filed a motion to dismiss this appeal, which motion the trial court granted in an order signed 11 August 1992 by Judge Jack Thompson.\nThe sole issue on appeal is whether Imperial had a right to appeal the Clerk\u2019s order of 12 June 1992 that adjudicated Ward an incompetent adult and to a trial de novo in this matter in the superior court. Chapter 35A of the North Carolina General Statutes governs incompetency proceedings. Article 1 of Chapter 35A, entitled \u201cDetermination of Incompetence\u201d, \u201cestablishes the exclusive procedure for adjudicating a person to be an incompetent adult or an incompetent child.\u201d N.C. Gen. Stat. \u00a7 35A-1102 (1987). Further, \u201c[t]he clerk in each county shall have original jurisdiction over proceedings under this Subchapter.\u201d N.C. Gen. Stat. \u00a7 35A-1103(a) (1987).\nUnder N.C. Gen. Stat. \u00a7 35A-1105 (Cum. Supp. 1992),\n[a] verified petition for the adjudication of incompetence of an adult, or of a minor who is within six months of reaching majority, may be filed with the clerk by any person, including any State or local human resources agency through its authorized representative.\n\u201cWithin five days after filing of the petition, the clerk shall issue a written notice of the date, time, and place for a hearing on the petition . . . .\u201d N.C. Gen. Stat. \u00a7 35A-1108(a) (1987). After such hearing,\n[i]f the finder of fact, whether the clerk or the jury, finds by clear, cogent, and convincing evidence that the respondent is incompetent, the clerk shall enter an order adjudicating the respondent incompetent. The clerk may include in the order findings on the nature and extent of the ward\u2019s incompetence.\nN.C. Gen. Stat. \u00a7 35A-1112(d) (1987). \u201cAppeal from an order adjudicating incompetence shall be to the superior court for hearing de novo and thence to the Court of Appeals.\u201d N.C. Gen. Stat. \u00a7 35A-1115 (1987). Thus, N.C. Gen. Stat. \u00a7 35A-1115 grants the right of appeal and trial de novo from an order adjudicating incompetence under Article 1 of Chapter 35A to the superior court.\nIn the present case, after Constantinou followed the proper procedures outlined under Article 1 of Chapter 35A for adjudicating an incompetent adult, the Clerk of Court entered an order adjudicating Morgan Samuel Ward, III incompetent, from which no appeal was taken. Subsequently, Imperial filed a Motion in the Cause pursuant to N.C. Gen. Stat. \u00a7 35A-1207 (1987) to \u201creopen\u201d Ward\u2019s adjudication proceeding.\nN.C. Gen. Stat. \u00a7 35A-1207 is found in Subchapter II, Article 4 of Chapter 35A. Subchapter II deals solely with issues of guardianship. N.C. Gen. Stat. \u00a7 35A-1207(a) states:\nAny interested person may file a motion in the cause with the clerk in the county where a guardianship is docketed to request modification of the order appointing a guardian or guardians or consideration of any matter pertaining to the guardianship.\n(Emphasis added.) N.C. Gen. Stat. \u00a7 35A-1207 does not provide for reopening an incompetency hearing. Thus, the Clerk of Court did not have the authority to base his reopening and subsequent rehearing of this case on this statute. Instead, the Clerk reopened the case and held a rehearing on the merits of Ward\u2019s adjudication of incompetence based on the consent of the parties. However, our review of Chapter 35A shows no authority under which the Clerk of Court can rehear an adjudication of incompetency based on the consent of the parties.\nArticle 1 of Chapter 35A gives the Clerk of Court the authority to enter an order adjudicating a person incompetent upon a petition and after a hearing pursuant to Article 1. From this order, an appeal lies to the superior court for a trial de novo. N.C. Gen. Stat. \u00a7 35A-1115 (1987). Therefore, jurisdiction over an adjudication of incompetency lies with the Clerk of Court under Article 1, and jurisdiction over an appeal from an order entered by the Clerk pursuant to Article 1 lies with the superior court. No statute in Chapter 35A gives the Clerk the authority to rehear an adjudication of incompetency once he has entered this order; thus the Clerk has no jurisdiction for such a rehearing. See Ridge Community Investors, Inc. v. Berry, 293 N.C. 688, 696, 239 S.E.2d 566, 571 (1977) (citations omitted) (\u201c \u2018The clerk of the superior court has no common law or equitable jurisdiction. . . . The clerk is a court \u201cof very limited jurisdiction \u2014 having only such jurisdiction as is given by statute.\u201d \u2019 \u201d); See also Boone v. Sparrow, 235 N.C. 396, 403, 70 S.E.2d 204, 209 (1952) (the clerk of superior court may only exercise jurisdiction in civil cases as provided by statute).\nThe only other provision in Chapter 35A which provides for the Clerk holding a hearing on the merits of a person\u2019s incompetency is found in Article 3, which Article is entitled \u201cRestoration to Competency.\u201d N.C. Gen. Stat. \u00a7 35A-1130 (1987) of Article 3 states:\n(a) The guardian, ward, or any other interested person may petition for restoration of the ward to competency by filing a motion in the cause of the incompetency proceeding with the clerk who is exercising jurisdiction therein. The motion shall be verified and shall set forth facts tending to show that the ward is competent.\n(b) Upon receipt of the motion, the clerk shall set a date, time, and place for a hearing ....\n(d) If the clerk or jury finds by a preponderance of the evidence that the ward is competent, the clerk shall enter an order adjudicating that the ward is restored to competency. . . .\n(f) If the clerk or jury fails to find that the ward should be restored to competency, the clerk shall enter an order denying the petition. The ward may appeal from the clerk\u2019s order to the superior court for trial de novo.\nThis statute does not, however, provide for modifying a previous order adjudicating a person incompetent. It merely provides for a hearing to determine if the incompetent ward should be restored to competency, and, if it is found that the ward should not be restored to competency, it gives the Clerk the authority to enter an order \u201cdenying the petition.\u201d This statute does not give the Clerk the authority to enter an order modifying a previous order of incompetency. Thus, the Clerk does not have jurisdiction under this statute to reopen an incompetency proceeding, hold a rehearing, and enter an order modifying the previous order of incompetency. Further, under this statute, only the ward may appeal from the Clerk\u2019s order, and in the present case, Imperial is the appellant.\nThus, we conclude that the Clerk did not have the authority, and therefore, the jurisdiction to rehear Ward\u2019s adjudication of incompetency under Chapter 35A based on the consent of the parties. We therefore conclude that the Clerk\u2019s order of 12 June 1992 is null and void. See In re Custody of Sauls, 270 N.C. 180, 187, 154 S.E.2d 327, 333 (1967) (citation omitted) (\u201c \u2018Jurisdiction over the subject matter cannot be conferred upon a court by consent . . . .\u2019 \u201d); See also Waters v. McBee, 244 N.C. 540, 548, 94 S.E.2d 640, 645 (1956) (\u201cDefendant could not, by consent, confer on the court the power to hear a controversy not within the authority given it by the Legislature . . . .\u201d). Accordingly, we affirm the trial court\u2019s dismissal of petitioner\u2019s appeal.\nAffirmed.\nJudges EAGLES and GREENE concur.", "type": "majority", "author": "ORR, Judge." } ], "attorneys": [ "Haywood, Denny, Miller, Johnson, Sessoms & Patrick, by George W. Miller, Jr. and Robert E. Levin, for petitioner-appellant.", "John M. Constantinou for respondent-appellee." ], "corrections": "", "head_matter": "IN THE MATTER OF MORGAN SAMUEL WARD, III\nNo. 9214SC1015\n(Filed 5 October 1993)\nIncompetent Persons \u00a7 14 (NCI4th)\u2014 incompetency hearing \u2014 no authority of clerk to reopen \u2014order null and void\nThe clerk of superior court does not have authority to rehear an adjudication of incompetency based on the consent of the parties; therefore the clerk\u2019s order entered after reopening the incompetency proceeding was null and void, and the trial court properly dismissed petitioner\u2019s appeal therefrom. N.C.G.S. \u00a7\u00a7 35A-1207, 35A-1130.\nAm Jur 2d, Incompetent Persons \u00a7\u00a7 8-25.\nAppeal by petitioner Imperial Trucking Company, Inc. from order signed 11 August 1992 and filed 12 August 1992 by Judge Jack Thompson in Durham County Superior Court dismissing petitioner\u2019s appeal. Heard in the Court of Appeals 17 September 1993.\nOn 16 August 1990, John Constantinou, as respondent Morgan Samuel Ward, Ill\u2019s \u201cAttorney [and] Best Friend\u201d filed a petition with the Clerk of Durham County Superior Court to adjudicate Ward incompetent. This matter came before the Clerk of Court on 13 September 1990. On 11 October 1990, the Clerk of Court entered an order finding that Ward had \u201ccontinuously and without interruption been an incompetent adult since December 23, 1987\u201d and that Ward continued to be incompetent and in need of a guardian at the time of the hearing. Based on this finding, the Clerk appointed Constantinou as Ward\u2019s general guardian.\nSubsequently, in September 1991, Petitioner Imperial Trucking Company, Inc. (\u201cImperial\u201d) filed a \u201cMotion in the Cause\u201d pursuant to N.C. Gen. Stat. \u00a7 35A-1207 to reopen the incompetency proceeding and give all parties an opportunity to be heard in the matter. Constantinou, as Ward\u2019s guardian, consented to reopen the proceeding so that all interested parties could have the right to be heard and to contest the proceeding as it related to the alleged incompetency and date of onset of incompetency. On 10 October 1991, based on this consent, the Clerk of Court reopened the incompetency proceeding.\nOn 12 June 1992, after a hearing, the Clerk of Court signed an order concluding that Ward has been an incompetent adult since 16 August 1990, the date Constantinou filed the petition for adjudication of incompetence. Further, the order affirmed the appointment of Constantinou as Ward\u2019s general guardian.\nOn 19 June 1992, Imperial filed an appeal from this order in Durham County Superior Court. Subsequently, on 1 July 1992, Constantinou, as Ward\u2019s guardian, filed a motion to dismiss this appeal. Judge Jack Thompson entered an order granting this motion on 11 August 1992. From this order, Imperial appeals.\nHaywood, Denny, Miller, Johnson, Sessoms & Patrick, by George W. Miller, Jr. and Robert E. Levin, for petitioner-appellant.\nJohn M. Constantinou for respondent-appellee." }, "file_name": "0202-01", "first_page_order": 232, "last_page_order": 238 }