NO. COA13-564

NORTH CAROLINA COURT OF APPEALS

Filed: 4 February 2014

IN THE MATTER OF:

 MARY ELLEN BRANNON THOMPSON

Forsyth County

No. 07 SP 691

Appeal by Calvin Brannon from order entered 20 November 2012

by Judge Anderson D. Cromer in Forsyth County Superior Court. 

Heard in the Court of Appeals 20 November 2013.

Attorney Reginald D. Alston for Calvin Brannon, appellant.

CRUMPLER, FREEDMAN, PARKER & WITT, by Dudley A. Witt, for 

Bryan C. Thompson, appellee. 

ELMORE, Judge.

On 20 November 2012, Judge Anderson D. Cromer (Judge Cromer) 

entered an order that denied all four of Calvin Brannon’s 

(appellant) motions, dismissed them with prejudice, and issued

sanctions against appellant. Each of appellant’s motions hinged 

on the argument that an incompetency order dated 3 May 2007 

declaring Mary Ellen Brannon Thompson (respondent) incompetent was 

never entered. After careful consideration, we reverse and remand 

the trial court’s order. 
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I. Facts

On 4 April 2007, a Petition for Adjudication of Incompetence 

and Application for Appointment of Guardian or Limited Guardian 

was filed by Leslie Poe Parker in Forsyth County Superior Court. 

The petition alleged that respondent lacked the capacity to manage 

her own affairs or to make important decisions concerning her 

“person, family [sic] or property[.]” The same day, a notice of 

“Hearing on Incompetence and Order Appointing Guardian Ad Litem” 

was filed. A hearing was conducted on 26 April 2007 by Theresa 

Hinshaw, assistant clerk of Forsyth County Superior Court (clerk 

Hinshaw). Numerous individuals were present at the hearing, 

including appellant, who is the brother of respondent. After the 

hearing, clerk Hinshaw announced in open court that she found 

respondent to be incompetent, and she orally appointed Bryan 

Thompson (Mr. Thompson) as guardian of the estate. On 3 May 2007, 

clerk Hinshaw signed and dated an order (incompetency order) 

finding “by clear, cogent, and convincing evidence that the 

respondent [was] incompetent.” Additionally, clerk Hinshaw signed 

and dated an order authorizing issuance of letters appointing Mr. 

Thompson guardian of the estate.

Thereafter, appellant filed a “Petition for Removal of 

Guardianship of the Person” and a “Motion to Set Aside the 

Adjudication of Incompetence Order and Ask For a Rehearing[.]” 
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Lawrence G. Gordon, Jr., Forsyth County Superior Court Clerk (clerk 

Gordon), signed and dated an order on 8 December 2009 denying the 

motions and concluded that the matters were time barred because 

appellant failed to timely appeal clerk Hinshaw’s incompetency 

order. Appellant then appealed clerk Gordon’s order to superior 

court. In an order entered 6 April 2010, Forsyth County Superior 

Court Judge James M. Webb (Judge Webb) dismissed both motions with 

prejudice.

On 27 March 2012, appellant filed four motions giving rise to 

this appeal. These motions were: 

(a) for relief in the cause from a 

guardianship granted to Mr. Thompson dated May 

1, 2007; 

(b) to declare that Leslie Parker did not have 

the capacity to represent respondent in the 

filings of motions and petitions on April 4, 

2007;

(c) to declare that Mr. Thompson was not 

appointed the guardian of respondent after an 

adjudication of incompetence under G.S. 35A 

1112(e) and G.S. 35A-1120.

(d) to declare Mr. Thompson’s act of filing a 

voluntary bankruptcy petition under 11 U.S.C.

301 as a state court guardian of the estate of 

respondent invalid.

These motions were heard before Susan Frye (clerk Frye), 

Forsyth Superior Court Clerk, and she entered an order on 4 May 

2012 denying appellant’s motions. She also granted Mr. Thompson’s 
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motion for sanctions. In her order, clerk Frye denied motions 

(a), (b), and (c) because clerk Gordon and Judge Webb had 

previously “clearly ruled” on appellant’s motions, “no appeals 

were ever entered[,]” “no new evidence was presented[,]” and “[t]he 

pleadings filed . . . [were] repetitious[.]” Clerk Frye declined 

to rule on motion (d) because she “[did] not have jurisdiction to 

hear this matter as the jurisdiction is presently under the Federal 

Bankruptcy Court.” Appellant appealed clerk Frye’s order to 

Forsyth County Superior Court. For the same reasons decreed by 

clerk Frye, Judge Cromer entered an order on 20 November 2012

denying and dismissing with prejudice appellant’s motions (a), 

(b), and (c). Judge Cromer denied appellant’s motion (d) with 

prejudice because it was “baseless.” He also granted Mr. 

Thompson’s motion for sanctions.

II. Analysis

a.) Law of the Case

Appellant first argues that the incompetency order was 

invalid because judgment was never entered, and therefore the trial 

court erred in concluding that the incompetency order was the law 

of the case. We agree. 

“Conclusions of law are reviewed de novo and are subject to 

full review.” State v. Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 

878 (2011); see also Carolina Power & Light Co. v. City of 
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Asheville, 358 N.C. 512, 517, 597 S.E.2d 717, 721 (2004) 

(“Conclusions of law drawn by the trial court from its findings of 

fact are reviewable de novo on appeal.”). “In reviewing a trial 

judge’s findings of fact, we are ‘strictly limited to determining 

whether the trial judge’s underlying findings of fact are supported 

by competent evidence, in which event they are conclusively binding 

on appeal, and whether those factual findings in turn support the 

judge’s ultimate conclusions of law.’” State v. Williams, 362 

N.C. 628, 632, 669 S.E.2d 290, 294 (2008) (quoting State v. Cooke, 

306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)); see also Sisk v.

Transylvania Cmty. Hosp., Inc., 364 N.C. 172, 179, 695 S.E.2d 429, 

434 (2010) (“‘[F]indings of fact made by the trial judge are 

conclusive on appeal if supported by competent evidence, even if 

. . . there is evidence to the contrary.’” (quoting Tillman v.

Commercial Credit Loans, Inc., 362 N.C. 93, 100-01, 655 S.E.2d 

362, 369 (2008))). “Appeal from an order adjudicating incompetence 

shall be to the superior court for hearing de novo and thence to 

the Court of Appeals.” N.C. Gen. Stat. § 35A-1115 (2013). 

N.C. Gen. Stat. § 35A-1112 provides a superior court clerk 

with the authority to find that an individual is incompetent. N.C. 

Gen. Stat. § 35A-1112 (2013). After such a finding is made, “the 

clerk shall enter an order adjudicating the respondent 
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incompetent.” Id. (emphasis added). When such an order is 

entered, “a guardian or guardians shall be appointed[.]” N.C. 

Gen. Stat. § 35A-1120 (2013). A party seeking to appeal an 

incompetency order entered by a clerk must 

within 10 days of entry of the order or 

judgment, appeal to the appropriate court for 

a trial or hearing de novo. The order or 

judgment of the clerk remains in effect until 

it is modified or replaced by an order or 

judgment of a judge. Notice of appeal shall 

be filed with the clerk in writing. 

Notwithstanding the service requirement of 

G.S. 1A-1, Rule 58, orders of the clerk shall 

be served on other parties only if otherwise 

required by law. 

N.C. Gen. Stat. § 1-301.1 (2013) (emphasis added). 

The North Carolina Rules of Civil Procedure “are applicable 

to special proceedings, except as otherwise provided.” N.C. Gen. 

Stat. § 1-393 (2013). Rule 58 of the North Carolina Rules of Civil 

Procedure governs the entry of judgments and orders. N.C.R. Civ. 

P. § 1A-1, Rule 58 (2013). Under Rule 58, “a judgment is entered 

when it is reduced to writing, signed by the judge, and filed with 

the clerk of court.” Id. We have also held that “Rule 58 applies 

to orders, as well as judgments, such that an order is likewise 

entered when it is reduced to writing, signed by the judge, and 

filed with the clerk of court.” Watson v. Price, 211 N.C. App. 

369, 370, 712 S.E.2d 154, 155 review denied, 365 N.C. 356, 718 
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S.E.2d 398 (2011) (citation omitted). Thus, an oral ruling

announced in open court is “not enforceable until it is entered[.]” 

West v. Marko, 130 N.C. App. 751, 756, 504 S.E.2d 571, 574 (1998) 

(internal quotation mark omitted). Accordingly, a party cannot 

appeal an order until entry occurs. Mastin v. Griffith, 133 N.C. 

App. 345, 346, 515 S.E.2d 494, 495 (1999). After entry, a clerk’s 

order that is not timely appealed “will stand as a judgment of the 

court[.]” In re Atkinson-Clark Canal Co., 234 N.C. 374, 377, 67 

S.E.2d 276, 278 (1951). This legal proposition stems from the law 

of the case doctrine, which provides that “when a party fails to 

appeal from a tribunal’s decision that is not interlocutory, the 

decision below becomes the law of the case and cannot be challenged 

in subsequent proceedings in the same case.” Boje v. D.W.I.T., 

195 N.C. App. 118, 122, 670 S.E.2d 910, 912 (2009) (internal 

quotation mark omitted). 

Here, both parties agree that the hearing on the Petition for 

Adjudication of Incompetence was a special proceeding, and thus 

the Rules of Civil Procedure applied. Clerk Hinshaw orally 

rendered her decision finding respondent incompetent on 26 April 

2007 in open court. Thereafter, she reduced the order to writing 

and dated it. However, nothing in the record indicates that the 

order was filed with the clerk of court. The order is devoid of 
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any stamp-file or other marking necessary to indicate a filing 

date, and therefore it was not entered. See Huebner v. Triangle 

Research Collaborative, 193 N.C. App. 420, 422, 667 S.E.2d 309, 

310 (2008) (asserting that a filing date is to be determined by 

the date indicated on the file-stamp); see also Watson, 211 N.C. 

App. at 373, 712 S.E.2d at 157 (standing for the proposition that 

a signed and dated order is insufficient to be considered filed). 

Because the order was not filed, it was not entered. 

Accordingly, the time period to file notice of appeal of clerk 

Hinshaw’s order has not yet commenced. See Darcy v. Osborne, 101 

N.C. App. 546, 549, 400 S.E.2d 95, 96 (1991) (holding that where 

judgment was not entered, the appeals period neither triggered nor 

expired). Furthermore, because clerk Hinshaw’s incompetency order 

is effective only after its entry, the order cannot be the law of 

the case. See Worsham v. Richbourg’s Sales & Rentals, Inc., 124 

N.C. App. 782, 784, 478 S.E.2d 649, 650 (1996) (“[A] judgment is 

. . . not enforceable between the parties until it is entered.”). 

b.) Guardian of the Estate

Next, appellant argues that since the incompetency order was 

never entered, clerk Hinshaw had no jurisdiction to appoint Mr. 

Thompson as guardian of the estate. We agree. 
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“The question of subject matter jurisdiction may be raised at 

any time, even in the Supreme Court.” Lemmerman v. A.T. Williams 

Oil Co., 318 N.C. 577, 580, 350 S.E.2d 83, 85 (1986). “Whether a 

trial court has subject-matter jurisdiction is a question of law, 

reviewed de novo on appeal.” McKoy v. McKoy, 202 N.C. App. 509, 

511, 689 S.E.2d 590, 592 (2010). 

As mentioned above, N.C. Gen. Stat. § 35A-1112 requires the 

clerk to enter an order adjudicating incompetency. See N.C. Gen. 

Stat. § 35A-1112. Only once the order is entered shall “a guardian 

or guardians . . . be appointed[.]” N.C. Gen. Stat. § 35A-1120. 

Since the order was never entered, the clerk’s appointment of Mr. 

Thompson as guardian of respondent’s estate immediately thereafter 

was without legal authority.1

c.) Res Judicata

Appellant also argues that the trial court erred in concluding 

that the issues raised in his appeal to the trial court were barred 

by the doctrine of res judicata. Specifically, appellant avers 

that the other orders relied upon by the trial court in determining 

res judicata were invalid. We agree. 

 

1 We also note that the Order Authorizing Issuance of Letters 

purporting to appoint Mr. Thompson as guardian of the estate was 

never filed with the clerk’s office as it was merely signed and 

dated by clerk Hinshaw. 
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N.C. Gen. Stat. § 7A-251 (2013) states that “[i]n all matters 

properly cognizable in the superior court division which are heard 

originally before the clerk of superior court, appeals lie to the 

judge of superior court having jurisdiction from all orders and 

judgments of the clerk[.]” A court acting in an appellate capacity 

is “without authority to entertain an appeal where there has been 

no entry of judgment” because entry of judgment is jurisdictional. 

Searles v. Searles, 100 N.C. App. 723, 725, 398 S.E.2d 55, 56 

(1990) (citation omitted). Under the doctrine of res judicata, “a 

final judgment on the merits in a prior action will prevent a 

second suit based on the same cause of action between the same 

parties or those in privity with them.” Thomas M. McInnis & 

Assoc., Inc. v. Hall, 318 N.C. 421, 428, 349 S.E.2d 552, 556 

(1986). 

Here, appellant appealed clerk Frye’s decision de novo to 

superior court. Judge Cromer declined to rule on the merits of 

appellant’s motions and concluded that “[a]ll the previous 

[m]otions were denied by the [c]lerk and/or another [s]uperior 

[c]ourt [j]udge or the Bankruptcy Court and, other than the 

Bankruptcy Order, said Orders were never appealed to the North 

Carolina Court of Appeals. Based upon the previous [o]rders 

entered in this matter, the issues raised in the appeal are barred 
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by the doctrine of res judicata[.]” The “previous orders” referred 

to superior court Judge Webb’s order entered 6 April 2010, which 

was appealed from clerk Lawrence Gordon’s order dated 8 December 

2009. According to Judge Cromer, he “[could not] reverse Judge 

Webb” on “a case that [Judge Webb] already ruled on.” However, 

Judge Cromer’s conclusion assumed that Judge Webb had jurisdiction 

to rule on appellant’s appeal of clerk Gordon’s order to superior 

court. It is clear from the record that clerk Gordon’s order was 

never entered as it was merely signed and dated, but devoid of a 

filing date. See Watson, supra. The entry of clerk Gordon’s order 

was necessary to vest Judge Webb with jurisdiction to hear 

appellant’s appeal in superior court. See Searles, supra. 

Accordingly, no entry of final judgment on the merits of 

appellant’s prior motions occurred such that the issues before 

Judge Cromer were barred by res judicata. 

d.) Sanctions

Appellant further argues that the trial court erred in imposing 

sanctions pursuant to Rule 11 of the North Carolina Rules of Civil 

Procedure. We agree. 

The trial court’s decision to impose or not to 

impose mandatory sanctions under N.C.G.S. § 

1A-1, Rule 11(a) is reviewable de novo as a 

legal issue. In the de novo review, the 

appellate court will determine (1) whether the 

trial court’s conclusions of law support its 

judgment or determination, (2) whether the 
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trial court’s conclusions of law are supported 

by its findings of fact, and (3) whether the 

findings of fact are supported by a 

sufficiency of the evidence. If the appellate 

court makes these three determinations in the 

affirmative, it must uphold the trial court’s 

decision to impose or deny the imposition of 

mandatory sanctions under N.C.G.S. § 1A-1, 

Rule 11(a). 

Turner v. Duke Univ., 325 N.C. 152, 165, 381 S.E.2d 706, 714 (1989). 

An analysis of sanctions under Rule 11 consists of a three-pronged 

analysis: “(1) factual sufficiency, (2) legal sufficiency, and (3) 

improper purpose.” Peters v. Pennington, 210 N.C. App. 1, 27, 707 

S.E.2d 724, 742 (2011) (citation and quotation omitted). A violation 

of any of these prongs requires the imposition of sanctions. Id.

(citation omitted). In determining factual sufficiency, we must 

decide “(1) whether the plaintiff undertook a reasonable inquiry into 

the facts and (2) whether the plaintiff, after reviewing the results 

of his inquiry, reasonably believed that his position was well 

grounded in fact.” Id. (citation and quotation omitted). Whether a 

motion is legally sufficient requires this Court to look at “the 

facial plausibility of the pleading and only then, if the pleading 

is implausible under existing law, to the issue of whether to the 

best of the signer’s knowledge, information, and belief formed after 

reasonable inquiry, the complaint was warranted by the existing law.” 

Polygenex Int'l, Inc. v. Polyzen, Inc., 133 N.C. App. 245, 249, 515 

S.E.2d 457, 460 (1999) (citation and quotation omitted). “An 
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objective standard is used to determine whether a paper has been 

interposed for an improper purpose, with the burden on the movant to 

prove such improper purpose.” Coventry Woods Neighborhood Ass'n Inc.

v. City of Charlotte, 213 N.C. App. 236, 241, 713 S.E.2d 162, 166 

(2011) (citation and quotation omitted). A signer’s purpose is 

heavily influenced by “whether or not a pleading has a foundation in 

fact or is well grounded in law[.]” Id. at 242, 713 S.E.2d at 166 

(citation and quotation omitted). 

Here, appellant appealed the order from clerk Frye to Judge 

Cromer in superior court based on motions: 

(a) for relief in the cause from a 

guardianship granted to Mr. Thompson dated May 

1, 2007; 

(b) to declare that Leslie Parker did not have 

the capacity to represent respondent in the 

filings of motions and petitions on April 4, 

2007;

(c) to declare that Mr. Thompson was not 

appointed the guardian of respondent after an 

adjudication of incompetence under G.S. 35A 

1112(e) and G.S. 35A-1120.

(d) to declare Mr. Thompson’s act of filing a 

voluntary bankruptcy petition under 11 U.S.C.

301 as a state court guardian of the estate of 

respondent invalid.

Judge Cromer made findings of fact in support of his 

conclusion to allow Mr. Thompson’s motion to sanction appellant 

pursuant to Rule 11. The pertinent findings stated: 
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1.) The matters presently before this Court 

have already been heard by the Clerk of the 

Forsyth County Superior Court and denied, 

thereafter they have been appealed to the 

Forsyth County Superior Court and the court 

has previously ruled on these matters. None of 

these rulings were appealed to the North 

Carolina Court of Appeals.

2.) [T]hese matters [had] been raised, heard 

and conclusively established by previous court 

orders. . . . [Clerk Gordon] [has] found that 

the underlying decisions related to these 

issues have not been appealed. Issues raised 

in the first three motions have been 

conclusively established in this matter 

contrary to [appellant] and he is bound by the 

previous adverse rulings. 

3.) [Motion (d)] is false and any reasonable 

attorney would have known this to be the case 

if he reviewed the file prior to filing a 

pleading asserting this claim. 

 In sum, Judge Cromer sanctioned appellant after finding that 

his motions were: 1.) time barred from appellate review; 2.) 

repetitious; 3.) without any factual or legal basis; and 4.) 

previously ruled on. However, the genesis of appellant’s motions 

was that “the [o]rder dated May 3, 2007 declaring [respondent] 

incompetent was not file stamped thereby negating its validity.” 

Rooted in our analysis above, it is clear that motions (a), (b), 

and (c) were never properly ruled on by previous court orders 

because clerks Hinshaw and Gordon never entered their orders. 

Moreover, the failed entry of clerk Hinshaw’s incompetency order 
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prevented appellant from filing timely written notice of appeal of 

that order. Appellant also had a proper purpose, factual basis, 

and legal basis to file motion (d) requesting that Mr. Thompson’s 

voluntary bankruptcy petition be declared invalid based on the 

incompetency order’s invalidity. Thus, the trial court erred in 

sanctioning appellant under Rule 11. 

III. Conclusion

The trial court erred in concluding that: 1.) the incompetency 

order was the law of the case; 2.) the issues raised in appellant’s 

appeal to superior court were barred by the doctrine of res 

judicata; and 3.) sanctions were appropriate pursuant to Rule 11. 

Accordingly, we reverse the trial court on each of these issues 

and remand to the superior court for further proceedings. 

Reversed and Remanded. 

Judges McCULLOUGH and DAVIS concur.