{ "id": 12124322, "name": "IN THE MATTER OF WILLIAM C. FLOWERS", "name_abbreviation": "In re Flowers", "decision_date": "2000-10-03", "docket_number": "No. COA99-1187", "first_page": "225", "last_page": "232", "citations": [ { "type": "official", "cite": "140 N.C. App. 225" } ], "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": "459 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "2-3", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 400", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915470 ], "year": 1995, "pin_cites": [ { "page": "403", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0400-01" ] }, { "cite": "285 S.E.2d 304", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "305", "parenthetical": "\"The clerk's appointment of a guardian for an incompetent's estate therefore involves a determination too routine to justify saddling a superior court judge with a review any more extensive than a review of the record.\"" } ], "opinion_index": 0 }, { "cite": "55 N.C. App. 394", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527396 ], "year": 1982, "pin_cites": [ { "page": "396", "parenthetical": "\"The clerk's appointment of a guardian for an incompetent's estate therefore involves a determination too routine to justify saddling a superior court judge with a review any more extensive than a review of the record.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/55/0394-01" ] }, { "cite": "147 S.E.2d 231", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "234", "parenthetical": "internal citations omitted" } ], "opinion_index": 0 }, { "cite": "266 N.C. 702", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562841 ], "year": 1966, "pin_cites": [ { "page": "707", "parenthetical": "internal citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/266/0702-01" ] } ], "analysis": { "cardinality": 643, "char_count": 15302, "ocr_confidence": 0.746, "pagerank": { "raw": 1.0873401050065135e-07, "percentile": 0.5644838753147384 }, "sha256": "8795e3294801466e61c1187b5ee03ac0de066245586048ed3682b0103b1e8402", "simhash": "1:4fbfc9ca07e45299", "word_count": 2586 }, "last_updated": "2023-07-14T16:18:32.795698+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and EDMUNDS concur." ], "parties": [ "IN THE MATTER OF WILLIAM C. FLOWERS" ], "opinions": [ { "text": "SMITH, Judge.\nOn 9 June 1999, petitioner Patricia Flowers Piner (Patricia) filed in Carteret County Superior Court a \u201cPetition for Adjudication of Incompetence and Application for Appointment of Guardian.\u201d She sought to have her father, William C. Flowers (Mr. Flowers), declared incompetent and a \u201cPublic Guardian\u201d appointed to handle Mr. Flowers\u2019 affairs. On 24 June 1999, the Clerk of Superior Court of Carteret County conducted a hearing on the matter. During the hearing, L. Patten Mason, attorney for Richard Cass Flowers (Cass), who is a son of Mr. Flowers, moved that Cass be appointed guardian. His motion was \u201cpredicated upon the alleged powers of attorney appointing him as such and also to the effect that he was the only one who really understood the properties owned by [Mr. Flowers], and that he would be capable of managing the so called estate.\u201d\nBy order filed 25 June 1999, the court allowed petitioners Joseph M. Flowers (Joseph) and William C. Flowers, Jr. (William), sons of Mr. Flowers, to be made parties to the action. On 29 June 1999, the clerk entered an order finding \u201cclear, cogent, and convincing evidence that [Mr. Flowers] is incompetent\u201d and appointing Cass guardian for Mr. Flowers. Petitioners appealed to the superior court, which, in an order entered 17 August 1999, concluded:\n1. The clerk\u2019s findings of fact in her June 29, 1999 order are supported by the evidence and testimony received during the June 24, 1999 hearing.\n2. The clerk\u2019s conclusions of law are supported by her findings of fact contained in the above order.\n3. The clerk has not abused her discretion in the appointment of Richard Cass Flowers as general guardian.\nFrom this order, petitioners now appeal.\nI.\nWe first point out the superior court\u2019s standard of review in a proceeding to appoint a guardian for an incompetent:\nIn the appointment and removal of guardians, the appellate jurisdiction of the Superior Court is derivative and appeals present for review only errors of law committed by the clerk. In exercising the power of review, the judge is confined to the correction of errors of law. The hearing is on the record rather than de novo.\nIn re Simmons, 266 N.C. 702, 707, 147 S.E.2d 231, 234 (1966) (internal citations omitted); see also In re Bidstrup, 55 N.C. App. 394, 396, 285 S.E.2d 304, 305 (1982) (\u201cThe clerk\u2019s appointment of a guardian for an incompetent\u2019s estate therefore involves a determination too routine to justify saddling a superior court judge with a review any more extensive than a review of the record.\u201d). Likewise, when the superior court sits as an appellate court, \u201c[t]he standard of review in this Court is the same as in the Superior Court.\u201d In re Estate of Pate, 119 N.C. App. 400, 403, 459 S.E.2d 1, 2-3 (1995) (citation omitted).\nII.\nPetitioners first contend the clerk of court erred in appointing Cass as guardian for Mr. Flowers. They argue that the evidence before the clerk substantiated their claim that Cass \u201chad already obtained over three and one-half million dollars from [Mr. Flowers] by the use of a power of attorney that was fraudulently obtained and was holding said sum for his own use and benefit.\u201d Accordingly, petitioners contend, the clerk\u2019s appointment of Cass was contrary to law and reversible error. We disagree.\nLooking to the record as it was submitted to us, the evidence of Mr. Flowers\u2019 incompetence was uncontested and not challenged on appeal. Mr. Flowers\u2019 decline began in the early 1990\u2019s; his communication skills had greatly declined by the end of 1995 and had ceased by 1998.\nOther evidence before the clerk was that Mr. and Mrs. Flowers resided in the motel they owned and ran in Atlantic Beach. William, a resident of Kannapolis, testified that he visited several times a year. He testified that when the motel burned down in early 1996, Cass took Mr. and Mrs. Flowers in and helped rebuild the motel. The Flowers\u2019 returned to the motel upon completion of the renovation. When Mrs. Flowers died, Cass assumed the care-taking of Mr. Flowers.\nThe middle son, Joseph, also testified. Joseph lives in Florida and testified that he had visited several times since Mr. Flowers got sick and that recently Mr. Flowers was unable to acknowledge Joseph was his son. He testified that Cass seemed to be responsible for the ongoing care of Mr. Flowers; Mr. Flowers\u2019 physical care was good.\nPatricia testified she has had a good relationship with her father. However, when she inquired in July 1995 about his hygiene, Mr. Flowers asked her to leave. Her next visit to her parents was after the motel burned. From January to mid-October 1998, Patricia ran the motel for her father. She testified she did not visit her parents when they were with Cass. Patricia further testified that Cass has provided for Mr. and Mrs. Flowers, but contended that he received expense checks from the motel.\nAlso testifying was Robert Cummings (Cummings), the attorney who drafted Mr. Flowers\u2019 will and power of attorney in 1995. After counseling Mr. and Mrs. Flowers, he formed the opinion that Mr. Flowers was competent. Accordingly, he prepared the documents and sent them to Mr. and Mrs. Flowers for their review. The couple made a few changes and came to Cummings\u2019 office to sign the will. Cummings went over the details of the will with Mr. Flowers. They conversed about family and politics. Cummings testified that Mr. Flowers gave good answers but seemed a bit hard of hearing. Mr. Flowers signed the documents in the presence of witnesses. Cummings spoke again with Mr. and Mrs. Flowers on two or three occasions after the motel burned. On 8 August 1997, he prepared an affidavit regarding Mr. Flowers\u2019 competence.\nCecil Harvell (Harvell), an attorney hired by Cass in 1998, prepared an irrevocable trust, which was signed by Mr. Flowers and was for the benefit of Mr. Flowers during his lifetime and, upon the death of Mr. Flowers, for the benefit of Cass\u2019s children. Harvell testified that the purpose of the trust was to give relief from federal estate and inheritance taxes.\nSeveral documents were entered in evidence: (1) Mr. Flowers\u2019 1995 will left all of his tangible property to his wife if surviving, otherwise to Cass. It gave $100.00 to each of the four children; it provided that, of Mr. Flowers\u2019 shares of stock in Flowers Development Corporation, Inc., one-half each would be distributed to Mrs. Flowers and Cass. Mr. Flowers\u2019 residuary estate was bequeathed to his wife, if surviving, otherwise to Cass. Cass and Mrs. Flowers were appointed co-executors of his estate. (2) Mr. Flowers\u2019 1995 general power of attorney appointed Mrs. Flowers and Cass as attomeys-in-fact. (3) Mr. Flowers\u2019 1995 health care power of attorney appointed Mrs. Flowers and Cass as health care attorneys-in-fact. (4) Cummings\u2019 affidavit detailed the correspondence involved in drafting the 1995 documents and attested to the competence of Mr. Flowers at the time of execution. (5) An Amendment and Restatement of Power of Attorney, signed by Mr. Flowers in December 1998, again appointed Cass as attorney-in-fact and Sylvia M. Flowers as successor attorney-in-fact.\nBased on the foregoing evidence, the clerk made the following findings of fact:\n1. On the 11th day of May, 1995, William C. Flowers signed a general power of attorney as well as a health care power of attorney, both of which documents provided that in the event it became necessary for a court to appoint a guardian of W.C. Flowers\u2019 property, he nominated his agents (Richard Cass Flowers and Grace L. Flowers) to be guardian of his property and to serve without bond or security. Grace L. Flowers is now deceased.\n2. The general power of attorney and health care power of attorney above referenced both provided that if one of the agents or attorneys in fact was unable to serve, then William C. Flowers appointed the remaining agent to act as his successor agent and to be vested with the same powers and duties.\n3. At the time William C. Flowers signed the general power of attorney and the health care power of attorney, he was competent and had the legal capacity to sign said documents.\n4. The guardian ad litem recommended to the Clerk that Richard Cass Flowers be appointed general guardian for his father, William C. Flowers.\n5. Richard Cass Flowers has cared for his father and been responsible for his father\u2019s estate exclusively since the time of his mother\u2019s death in August of 1998.\n6. Richard Cass Flowers\u2019 performance of his duties in caring for the personal and estate interests of William C. Flowers has been pursuant to the 1995 power of attorney and health care power of attorney.\n7. Richard Cass Flowers has kept accurate records of the receipts and expenditures that he has handled [o]n behalf of his father.\n8. The petitioner has requested the Clerk to appoint the public guardian to serve as general guardian for William C. Flowers.\n9. The estate of William C. Flowers consists of a motel, rental property and other assets which require extensive time and knowledge to manage. The public guardian does not have the time, personnel or resources to be guardian of the estate of William C. Flowers.\nBased on these findings, the clerk concluded:\n2. At the time William C. Flowers signed the general power of attorney and the health care power of attorney, he was competent and had the legal capacity to sign said documents.\n3. Richard Cass Flowers is not disqualified from being general guardian of his father\u2019s estate and person.\n4. No good cause has been shown as to why Richard Cass Flowers should not serve as general guardian for his father.\n5. The appointment of Richard Cass Flowers as guardian for his father, William C. Flowers, is in the best interest of William C. Flowers[.]\nOur review of the record shows plenary evidence to support the clerk\u2019s findings, and we discern no error of law in appointing Cass as guardian. The clerk aptly reviewed the evidence and applied the law to the evidence presented. This assignment of error is overruled.\nIII.\nPetitioners next contend \u201cthere was insufficient evidence offered at the hearing to justify the clerk to find that a will of William C. Flowers would be probated that would devise the bulk of the estate of William C. Flowers to Richard Cass Flowers.\u201d This argument is without merit.\nFirst, the phraseology of petitioners\u2019 argument would lead one to believe that the clerk made a \u201cfinding of fact\u201d that Mr. Flowers\u2019 will would devise the bulk of his estate to Cass. However, no such finding exists. The only language resembling that offered by petitioners is found in a document entitled \u201cStatment [sic] by Clerk on Appeal,\u201d which was submitted to the superior court on petitioners\u2019 appeal. The statement reads in pertinent part:\nThe Court notes that if it appears that [Cass] has been presumptuous with indicating how property in the Trust should be directed upon the death of his father, it does follow the direction of the Last Will and Testament. Taking all matters in consideration, it is reasonable to believe that the copy of the Last Will and Testament could be probated, at the proper time.\nThe clerk never made a \u201cfinding\u201d in this regard; indeed, such a finding would have been beyond the scope of the clerk\u2019s authority.\nSecond, in making this argument, petitioners\u2019 brief refers this Court to its Assignment of Error #2, which reads: \u201cThe appointment of the guardian was made on the basis of a false representation or a mistake by the Clerk in considering alleged copies of a will, health care power of attorney, and general power of attorney, the originals of which were destroyed.\u201d The argument made in their brief, while referencing Assignment of Error #2, is at best minimally related to the assigned error. The case law cited and argued on appeal relates solely to issues surrounding the validity or invalidity of a will. The issue presented to the clerk, and now on appeal to this Court, is the proper or improper appointment of a guardian. Mr. Flowers\u2019 will, power of attorney, and health care power of attorney merely evidenced Mr. Flowers\u2019 trust in and reliance on Cass and his desire to provide for a child who had provided care and support for him. The potential invalidity of the documents was a fact to be considered by the clerk in weighing the credibility of the evidence. Accordingly, this assignment of error is overruled.\nAs a final matter, we note that petitioners\u2019 assignments of error set forth in the record on appeal fail to make \u201cclear and specific\u201d references to the record or transcript. N.C. R. App. P. 10(c)(1). While this alone subjects an appeal to dismissal, we have thoroughly considered the arguments raised on this appeal and found them meritless. The order of the superior court is affirmed.\nAffirmed.\nJudges GREENE and EDMUNDS concur.\n. We note that no transcript of the hearing before the clerk was included in the record on appeal. Accordingly, our review is limited to the clerk\u2019s notes and statement and exhibits, all of which were included in the record.", "type": "majority", "author": "SMITH, Judge." } ], "attorneys": [ "Wheatly, Wheatly, Nobles & Weeks, P.A., by C.R. Wheatly, Jr., for petitioner-appellants Patricia Flowers Piner, Joseph M. Flowers, and William C. Flowers, Jr.", "Mason & Mason, P.A., by L. Patten Mason, for appellee Richard C. Flowers." ], "corrections": "", "head_matter": "IN THE MATTER OF WILLIAM C. FLOWERS\nNo. COA99-1187\n(Filed 3 October 2000)\n1. Guardian and Ward\u2014 incompetency \u2014 superior court\u2019s standard of review\nThe superior court\u2019s standard of review in a proceeding to appoint a guardian for a person declared to be incompetent is confined to the correction of errors of law based on the record rather than a de novo review.\n2. Guardian and Ward\u2014 incompetency \u2014 appointment of guardian\nThe clerk of court did not err by appointing one of the incompetent father\u2019s sons as guardian for the father, because there was plenary evidence to support the clerk\u2019s findings that: (1) the father had the legal capacity to sign documents and was competent at the time he signed the general power of attorney and the health care power of attorney nominating his wife or his son to be guardian; (2) no good cause was shown why the son should not serve as general guardian for his father; and (3) the appointment of the son as guardian is in the best interest of the father.\n3. Appeal and Error\u2014 appealability \u2014 no finding \u2014 argument minimally related to assignment of error\nAlthough petitioners contend there was insufficient evidence in a guardianship proceeding to justify the clerk of court\u2019s finding that a will of the incompetent father would be probated that would devise the bulk of his estate to one of his sons, this argument is without merit because: (1) the clerk never made a finding in this regard; (2) petitioners\u2019 argument is minimally related to its assignment of error when the issue presented is the proper or improper appointment of a guardian, and the case law cited and argued relates to the validity or invalidity of a will; and (3) the potential invalidity of the father\u2019s will, power of attorney, and health care power of attorney showing the father\u2019s reliance on his son was a fact to be considered by the clerk in weighing the credibility of the evidence.\nAppeal by petitioners from order entered 17 August 1999 by Judge Charles H. Henry in Carteret County Superior Court. Heard in the Court of Appeals 22 August 2000.\nWheatly, Wheatly, Nobles & Weeks, P.A., by C.R. Wheatly, Jr., for petitioner-appellants Patricia Flowers Piner, Joseph M. Flowers, and William C. Flowers, Jr.\nMason & Mason, P.A., by L. Patten Mason, for appellee Richard C. Flowers." }, "file_name": "0225-01", "first_page_order": 257, "last_page_order": 264 }