{ "id": 8954254, "name": "IN THE MATTER OF: THE ESTATE OF ROBERT L. MOORE, JR., Incompetent", "name_abbreviation": "In re the Estate of Moore", "decision_date": "2003-08-19", "docket_number": "No. COA02-1248", "first_page": "85", "last_page": "88", "citations": [ { "type": "official", "cite": "160 N.C. App. 85" } ], "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": "501 S.E.2d 109", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "112" } ], "opinion_index": 0 }, { "cite": "129 N.C. App. 818", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11653333 ], "year": 1998, "pin_cites": [ { "page": "822" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0818-01" ] }, { "cite": "147 S.E.2d 231", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1966, "pin_cites": [ { "page": "234" } ], "opinion_index": 0 }, { "cite": "266 N.C. 702", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562841 ], "year": 1966, "pin_cites": [ { "page": "707" } ], "opinion_index": 0, "case_paths": [ "/nc/266/0702-01" ] }, { "cite": "536 S.E.2d 324", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "325", "parenthetical": "quoting In re Simmons, 266 N.C. 702, 707, 147 S.E.2d 231, 234 (1966)" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 225", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12124322 ], "year": 2000, "pin_cites": [ { "page": "227", "parenthetical": "quoting In re Simmons, 266 N.C. 702, 707, 147 S.E.2d 231, 234 (1966)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0225-01" ] }, { "cite": "538 S.E.2d 626", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "627-28" }, { "page": "628" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 767", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12135385 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "769" }, { "page": "769" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0767-01" ] } ], "analysis": { "cardinality": 423, "char_count": 7690, "ocr_confidence": 0.776, "pagerank": { "raw": 2.0446031217563963e-07, "percentile": 0.751312142136472 }, "sha256": "aa2e20882ee65b258d5190b05ba0ff0c9f4606c057a5c84caec47c31a514ddd0", "simhash": "1:7d6b7d93e4ff2c68", "word_count": 1249 }, "last_updated": "2023-07-14T16:12:23.823025+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TIMMONS-GOODSON and STEELMAN concur." ], "parties": [ "IN THE MATTER OF: THE ESTATE OF ROBERT L. MOORE, JR., Incompetent" ], "opinions": [ { "text": "HUDSON, Judge.\nBenjamin S. Moore (\u201cexecutor\u201d), executor of the estate of Robert L. Moore, Jr., deceased (\u201cdecedent\u201d), appeals an award of commissions to Decedent\u2019s guardian. Executor argues (1) that the order violates the statute governing commissions for guardians; and (2) even if the order did not violate the governing statutes, the court should not have allowed the entire commission in the year of sale. We agree that the order is contrary to the statute and reverse.\nBACKGROUND\nMr. Robert L. Moore, Jr. accumulated substantial real estate holdings during his lifetime. In his later years, he suffered from Alzheimer\u2019s disease and required extensive, long-term medical care. During Decedent\u2019s illness, his wife sold or otherwise transferred all of his real estate holdings, by power of attorney, for her own benefit or for the benefit of Decedent\u2019s oldest son, Robert L. Moore III. Mrs. Moore died in 1996, having appointed her son as executor of her estate.\nIn early 1997, Decedent\u2019s daughter asked the clerk of superior court to appoint an interim guardian for Decedent. Robert Monroe (\u201cguardian\u201d) was appointed interim, and then permanent, guardian of Decedent\u2019s estate. Soon after his appointment, the guardian filed a lawsuit against Mrs. Moore\u2019s estate and against Decedent\u2019s son. Under the terms of the settlement of the lawsuit, Mrs. Moore\u2019s estate and trust transferred several parcels of real estate back to Decedent. Also as part of the settlement, the guardian received a fund of $272,000 to be used only to pay for Decedent\u2019s medical care and that was projected to cover the cost of the care for two years. In addition, the guardian received an unrestricted fund containing another $262,800 that could be used for any purpose, including the payment of attorney\u2019s fees.\nOn 17 August 1998, the guardian petitioned the clerk of superior court to sell three tracts of real estate to pay the legal fees associated with the litigation and to cover the increasing costs of Decedent\u2019s care. The clerk approved the petitions on the grounds that they were \u201cnecessary to create assets to pay the costs of administration and debts necessarily incurred in maintaining the said ward.\u201d The guardian sold the real estate, thereby garnering more than three million dollars for Decedent\u2019s estate.\nAfter the real estate sales, the clerk approved commissions of five percent of the full amount of the proceeds received by the sales. Specifically, \u201c[t]he commissions were not limited to the amount of the proceeds used to pay debts of the ward or the costs of administration of the Estate.\u201d\nMr. Moore died on 1 October 2000. The following month, Benjamin S. Moore was appointed to be Decedent\u2019s executor and personal representative. Executor filed a Motion to Vacate Orders Fixing Commissions & To Set a Reasonable Commission and a Motion to Reopen the Guardianship for the purpose of determining whether the approved commissions were valid as a matter of law. The clerk denied both motions, and Executor appealed to the superior court. The superior court entered a judgment affirming the clerk\u2019s order, and Executor appeals.\nANALYSIS\n\u201cThe Clerk of Superior Court has original jurisdiction over matters involving the management by a guardian of her ward\u2019s estate.\u201d Caddell v. Johnson, 140 N.C. App. 767, 769, 538 S.E.2d 626, 627-28 (2000). An appeal to the superior court from an order of the clerk \u201c \u2018presents] for review only errors of law committed by the clerk.\u2019 \u201d In re Flowers, 140 N.C. App. 225, 227, 536 S.E.2d 324, 325 (2000) (quoting In re Simmons, 266 N.C. 702, 707, 147 S.E.2d 231, 234 (1966)). The reviewing judge conducts a hearing \u201con the record rather than de novo,\" with the objective of correcting any error of law. Id. In guardianship matters, this Court's standard of review is the same as the superior court\u2019s. Caddell, 140 N.C. App. at 769, 538 S.E.2d at 628.\nExecutor contends that the clerk erred by awarding the guardian a commission of five percent of the full amount of the proceeds received from the sales of the three tracts of land. Executor argues that the commission should have been limited to the amount used to pay administrative costs and Decedent\u2019s debts. We agree and conclude that the clerk and the court erred as a matter of law.\nWe find no common law in our jurisdiction that directly addresses this issue. However, we conclude that the statute governing the payment of commissions to guardians does. G.S. \u00a7 35A-1269 provides that \u201c[t]he clerk shall allow commissions to the guardian for his time and trouble in the management of the ward\u2019s estate, in the same manner and under the same rules and restrictions as allowances are made to executors, administrators and collectors under the provisions of G.S. 28A-23-3 and G.S. 28A-23-4.\u201d Section 28A-23-3, in turn, governs commissions allowed to personal representatives and provides that \u201c[w]here real property is sold to pay debts or legacies, the commission shall be computed only on the proceeds actually applied in the payment of debts or legacies.\u201d N.C. Gen. Stat. \u00a7 28A-23-3(b) (emphasis added).\nHere, the guardian\u2019s petitions to sell Decedent\u2019s real estate were premised on the guardian\u2019s need to pay the debts and administrative costs of Decedent\u2019s estate. Similarly, the clerk\u2019s orders that allowed the sale of the real estate were granted for the purpose of paying the debts and administrative costs of the estate. Because the real estate was sold to pay the debts of Decedent, we conclude that the statutory limitation of \u00a7 28A-23-3(b) applied. Therefore, the clerk erred by computing the guardian\u2019s commission on the full proceeds of the real estate sale rather than limiting his computation to those proceeds actually applied to Decedent\u2019s debts.\nRespondent Robert E. Monroe argues that, as a policy matter, the commissions allowed to guardians should be treated differently than those allowed to other personal representatives such as executors. If a statute is clear and unambiguous, and no constitutional challenge is made, we are bound to apply the plain language of the statute. Orange County ex rel. Byrd v. Byrd, 129 N.C. App. 818, 822, 501 S.E.2d 109, 112 (1998). We find no ambiguity in the statutes governing commissions for guardians and personal representatives and thus apply the statute as written. Respondent\u2019s policy argument is more appropriately addressed to the General Assembly.\nCONCLUSION\nFor the reasons discussed above, we reverse the superior court and remand for computation of the guardian\u2019s commissions consistent with this opinion.\nReversed and Remanded.\nJudges TIMMONS-GOODSON and STEELMAN concur.", "type": "majority", "author": "HUDSON, Judge." } ], "attorneys": [ "Law Office of Michael W. Patrick, by Michael W. Patrick, for executor-appellant.", "Bailey & Dixon, L.L.P, by Gary S. Parsons and Jennifer D. Maldonado, for respondent-appellee." ], "corrections": "", "head_matter": "IN THE MATTER OF: THE ESTATE OF ROBERT L. MOORE, JR., Incompetent\nNo. COA02-1248\n(Filed 19 August 2003)\nGuardian and Ward\u2014 commissions \u2014 proceeds actually applied in payment of debts or legacies\nThe trial court erred in a case concerning an award of commissions to decedent\u2019s guardian and the case is remanded for computation of the guardian\u2019s commissions consistent with this opinion because the clerk awarded the guardian a commission of five percent of the full amount of the proceeds received from the sales of three tracts of land, and the commission should have been limited to the amount used to pay administrative costs and decedent\u2019s debts as provided under N.C.G.S. \u00a7 28A-23-3(B).\nAppeal by Executor of the Estate of Robert L. Moore, Jr. from judgment entered 7 June 2002 by Judge Howard E. Manning, Jr. in Wake County Superior Court. Heard in the Court of Appeals 4 June 2003.\nLaw Office of Michael W. Patrick, by Michael W. Patrick, for executor-appellant.\nBailey & Dixon, L.L.P, by Gary S. Parsons and Jennifer D. Maldonado, for respondent-appellee." }, "file_name": "0085-01", "first_page_order": 115, "last_page_order": 118 }