IN THE COURT OF APPEALS OF NORTH CAROLINA

Nos. COA19-326, 19-327

Filed: 7 January 2020

Buncombe County, Nos. 16-E-1030, 18-SP-758

IN THE MATTER OF THE ESTATE OF JOHNNIE EDWARD HARPER

Appeal by respondent from orders entered 4 December 2018 and 18 December 

2018 by Judge Marvin P. Pope, Jr., in Buncombe County Superior Court. Heard in 

the Court of Appeals 2 October 2019.

Respondent-appellant Kim L. Harper, pro se.

Stone & Christy, P.A., by James M. Ellis, for petitioner-appellee.

ZACHARY, Judge.

In COA19-326, the Buncombe County Clerk of Superior Court ordered, inter 

alia, the removal of Respondent Kim L. Harper as administratrix of the Estate of 

Johnnie Edward Harper. Harper appealed the clerk’s order to the superior court. 

The superior court dismissed Harper’s case, and she appealed to this Court. In 

COA19-327, the Buncombe County Clerk of Superior Court entered an order 

authorizing the public administrator to sell the real property of the decedent Johnnie 

Edward Harper to make assets to pay debts of his estate. Again, Harper appealed 

the clerk’s order to the superior court. The superior court dismissed Harper’s case, 

and she appealed to this Court. On 16 April 2019, the cases were consolidated for 

hearing pursuant to the provisions of N.C.R. App. P. 40 by this Court.
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On appeal, Harper argues that the superior court utilized the incorrect 

standard of review in both of these cases. After careful review, we affirm the order of 

the superior court in COA19-326, and vacate the order of the superior court in 

COA19-327 and remand this matter to the superior court for further proceedings.

Background

Johnnie Edward Harper (“the Decedent”) died intestate on 1 June 2015. He 

was survived by four children: Harper, Beth, Sonya, and Rochelle. Harper qualified 

as administratrix of her father’s estate on 28 June 2016. 

On 7 August 2018, the assistant clerk of superior court issued an order 

directing Harper to file an account for the estate, and on 15 August 2018, a deputy 

sheriff personally served Harper with a copy of the clerk’s order. The order provided, 

inter alia, that Harper could be removed as fiduciary for failure to comply with the 

terms of the order. Harper failed to file the account. As a result, on 5 September 

2018, the assistant clerk of superior court sua sponte issued and personally served 

Harper with an “Order to Appear and Show Cause for Failure to File 

Inventory/Account,” due to her failure to file an accounting of estate assets during the 

two years following her qualification as administratrix. The Order to Appear and 

Show Cause noted that Harper could be held in contempt or removed as fiduciary, 

and provided a hearing date of 27 September 2018. 
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At the hearing of this matter, Harper produced an account for filing, but did 

not file a proper account: the account did not balance, and she provided no supporting 

documentation of the listed disbursements or the balance held. On the date of the 

hearing, the estate had $139.30, no saleable personal property, and numerous debts. 

Harper had also moved into the decedent’s house, and admitted that she had spent 

money belonging to the estate on her personal expenses.

On 4 October 2018, the clerk removed Harper as administratrix of the estate, 

and appointed James Ellis, the public administrator of Buncombe County, to serve 

as successor administrator of the estate. Harper timely appealed this order to 

superior court, and on 4 December 2018, this matter came on for hearing before the 

Honorable Marvin P. Pope, Jr. After reviewing the case file and hearing arguments 

from both parties, Judge Pope entered an order dismissing the appeal. Harper timely 

appealed to this Court, and this appeal was designated as COA19-326. 

On 19 November 2018, the public administrator petitioned the clerk of superior 

court to sell the real property owned by the Decedent at the time of his death. The 

public administrator asserted that it was necessary to sell the real property in order 

to make assets to pay debts of the estate, and thus it would be in the best interest of 

the estate to sell the real property. On 6 December 2018, the clerk entered an order 

granting the public administrator (1) possession, custody, and control of the 
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Decedent’s real property; (2) the authority to remove Harper from the Decedent’s 

house; and (3) the authority to sell the real property. 

Harper appealed the clerk’s order to the superior court, and on 18 December 

2018, this matter came on for hearing before Judge Pope. After hearing arguments 

and examining the court file, Judge Pope entered an order dismissing the appeal. 

Harper timely appealed to this Court, and this appeal was designated as COA19-327. 

Discussion

I. Standard of Review

“On appeal to the [s]uperior [c]ourt of an order of the [c]lerk in matters of 

probate, the trial court judge sits as an appellate court.” In re Estate of Pate, 119 N.C.

App. 400, 402, 459 S.E.2d 1, 2, disc. review denied, 341 N.C. 649, 462 S.E.2d 515

(1995). Unchallenged findings of fact “are presumed to be supported by competent

evidence and are binding on appeal.” In re Estate of Warren, 81 N.C. App. 634, 636,

344 S.E.2d 795, 796 (1986).

II. COA19-326

Harper contends that the superior court erred by failing to conduct a hearing 

de novo upon her appeal of the clerk’s order removing her as fiduciary of her father’s 

estate. After careful review, we disagree. 

The clerk of superior court has “jurisdiction of the administration, settlement, 

and distribution of estates of decedents[.]” N.C. Gen. Stat. § 28A-2-1 (2017). 
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Moreover, the clerk has “original jurisdiction of estate proceedings[,]” id. § 28A-2-4(a), 

as well as “jurisdiction over special proceedings[.]” Id. § 28A-2-5.

The personal representative of an estate “has the power to perform in a 

reasonable and prudent manner every act which a reasonable and prudent person 

would perform incident to the collection, preservation, liquidation or distribution of a 

decedent’s estate,” with the purpose and goal of “settling and distributing the 

decedent’s estate in a safe, orderly, accurate and expeditious manner as provided by 

law[.]” Id. § 28A-13-3(a). One significant duty of a personal representative is to file 

with the clerk of superior court a final account of estate receipts, disbursements, and 

distributions. The final account must be filed within one year following the personal 

representative’s qualification, unless the clerk extends the filing period. Id. § 28A21-2(a). The personal representative must provide supporting documentation for all 

receipts, disbursements, and distributions listed on the account. Id. § 28A-21-1. 

“If any personal representative or collector fails to account . . . or renders an 

unsatisfactory account, the clerk of superior court shall . . . promptly order such 

personal representative or collector to render a full satisfactory account within 20 

days after service of the order.” Id. § 28A-21-4. Upon failure to submit a proper 

account in compliance with the order, “the clerk may remove the personal 

representative or collector from office or may issue an attachment against the 
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personal representative or collector for a contempt[.]” Id. This is in contrast to 

revocation of the letters of a personal representative pursuant to section 28A-9-1.

The first consideration in determining the standard of review on appeal to 

superior court is whether an appeal from a proceeding pursuant to section 28A-21-4 

is to be conducted as a special proceeding or an estate proceeding. The clerk of 

superior court has “original jurisdiction of estate proceedings.” Id. § 28A-2-4(a). 

“Estate proceedings” are defined as “matter[s] initiated by petition related to the 

administration, distribution, or settlement of an estate, other than a special 

proceeding.” Id. § 28A-1-1(1b). Certain matters are designated by statute as special 

proceedings, such as those initiated against the unknown heirs of a decedent, id. § 

28A-22-3; others are initially heard before the clerk of superior court as estate 

proceedings, but then appealed to superior court as special proceedings, such as the 

resignation of a personal representative, see id. §§ 28A-10-1 – 28A-10-8.

Although similar in some ways, proceedings to remove a personal 

representative pursuant to section 28A-21-4 and proceedings to revoke letters of a 

personal representative pursuant to section 28A-9-1 are not subject to the same 

standard of review on appeal to superior court. The revocation of letters issued to a 

personal representative pursuant to section 28A-9-1 is appealed as a special 

proceeding. Id. § 28A-9-4. On appeal, the superior court shall conduct a “hearing de 

novo.” Id. § 1-301.2(e). By contrast, our statutes do not provide that the removal of 
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a personal representative pursuant to section 28A-21-4 shall be appealed as a special 

proceeding. Hence, removal of a personal representative pursuant to section 28A-21-

4 is an estate proceeding. On appeal, the superior court shall review the matter “on 

the record.” See In re Estate of Lowther, 271 N.C. 345, 355, 156 S.E.2d 693, 701 

(1967).

In the instant case, it is evident that the proceeding instituted by the clerk 

pursuant to section 28A-21-4 that culminated in Harper’s removal as administratrix 

was an estate proceeding, which should have been reviewed on the record on appeal 

to superior court. 

The superior court’s order dismissing Harper’s appeal states, in pertinent part:

The Court, having reviewed the Order of the Clerk of 

Court, and upon further examination of the file and 

arguments of counsel, and based thereon, the Court makes 

the following CONCLUSIONS OF LAW:

1. The findings of fact in the Clerk of Court’s October 

4, 2018 Order are supported by the evidence. 

2. The conclusions of law in the Clerk of Court’s 

October 4, 2018 Order are supported by the findings 

of fact.

3. The October 4, 2018 Order of the Clerk of Court is 

consistent with the conclusions of law and applicable 

law.

The superior court’s order clearly follows the language of N.C. Gen. Stat. § 1-

301.3(d), which provides:
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Upon appeal, the judge of the superior court shall review 

the order or judgment of the clerk for the purpose of 

determining only the following:

(1) Whether the findings of fact are supported by the 

evidence. 

(2) Whether the conclusions of law are supported by 

the findings of fact.

(3) Whether the order or judgment is consistent with 

the conclusions of law and applicable law.

In that section 1-301.3(d) applies to estate proceedings, and the instant appeal 

is an estate proceeding, the superior court applied the correct standard of review to 

Harper’s appeal of the clerk’s order in COA19-326.

The superior court properly reviewed the clerk’s order removing Harper as 

administratrix of this estate pursuant to section 28A-21-4 consistent with the “on the 

record” standard. However, the superior court’s order indicates that it dismissed 

Harper’s case rather than affirming the clerk’s order. Accordingly, this matter is 

affirmed and remanded for the limited purpose of allowing the superior court to 

correct the disposition.

III. COA19-327

Harper also contends that the superior court erred by failing to conduct a 

hearing de novo upon Harper’s appeal from the clerk’s order allowing the public 

administrator to sell the Decedent’s real property to make assets to pay debts of the 

estate. We agree. 
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It is well settled that “[t]he title to [non-survivorship] real property of a 

decedent is vested in the decedent’s heirs as of the time of the decedent’s death[.]” Id. 

§ 28A-15-2(b); Swindell v. Lewis, 82 N.C. App. 423, 426, 346 S.E.2d 237, 239 (1986). 

However, “[a]ll of the real and personal property, both legal and equitable, of a 

decedent shall be assets available for the discharge of debts and other claims against 

the decedent’s estate in the absence of a statute expressly excluding any such 

property.” N.C. Gen. Stat. § 28A-15-1(a). 

If the personal representative of the estate determines that “it is in the best 

interest of the administration of the estate to sell . . . real estate . . . to obtain money 

for the payment of debts and other claims against the decedent’s estate, the personal 

representative shall institute a special proceeding before the clerk of superior 

court[.]” Id. § 28A-15-1(c); see also id. § 28A-17-1; Badger v. Jones, 66 N.C. 305, 307 

(1872); Hyman v. Jarnigan, 65 N.C. 96, 97 (1871) (per curiam); Holcomb v. Hemric, 

56 N.C. App. 688, 690, 289 S.E.2d 620, 622 (1982).

An aggrieved party may appeal the clerk’s order permitting the sale of the 

decedent’s real property to superior court as a special proceeding for a trial de novo. 

“Appeals in special proceedings shall be as provided in [N.C. Gen. Stat. §] 1-301.2.” 

N.C. Gen. Stat. § 28A-2-9(b). Section 1-301.2(e) provides, in relevant part, that “a 

party aggrieved by an order or judgment of a clerk that finally disposed of a special 
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proceeding, may, within 10 days of entry of the order or judgment, appeal . . . for a 

hearing de novo.” (Italics added).

This Court recently considered the meaning of a “hearing de novo” in the 

context of section 1-301.2(e). In re Estate of Johnson, __ N.C. App. __, __, 824 S.E.2d 

857, 863, disc. review denied, 372 N.C. 292, 826 S.E.2d 701 (2019). We determined 

that this statute “expressly provides for a hearing de novo on appeal to the superior 

court, and not just de novo or whole record review.” Id. at ___, 824 S.E.2d at 863 

(internal quotation marks omitted). Consequently, when sitting as an appellate 

court, the superior court shall proceed “as if no hearing had been held by the clerk 

and without any presumption in favor of the clerk’s decision.” Id. at ___, 824 S.E.2d 

at 863 (brackets and quotation marks omitted).

Here, the public administrator’s action before the clerk to sell the Decedent’s 

real property to make assets to pay debts was a special proceeding, and therefore, 

should have received a hearing de novo on appeal to superior court. The superior 

court’s order dismissing Harper’s appeal states, in pertinent part:

The Court, having reviewed the Order of the Clerk of 

Court, and upon further examination of the file and 

arguments of counsel, and based thereon, the Court makes 

the following CONCLUSIONS OF LAW:

1. The findings of fact in the Clerk of Court’s December 

6, 2018 Order are supported by the evidence. 
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2. The conclusions of law in the Clerk of Court’s 

December 6, 2018 Order are supported by the 

findings of fact. 

3. The December 6, 2018 Order of the Clerk of Court is 

consistent with the conclusions of law and applicable 

law.

As in Johnson, the superior court’s order “tracks the language of N.C. Gen. Stat. 

Section 1-301.3(d).” Id. at ___, 824 S.E.2d at 862.

N.C. Gen. Stat. § 1-301.3(d) provides, in relevant part: 

Upon appeal, the judge of the superior court shall review 

the order or judgment of the clerk for the purpose of 

determining only the following:

(1) Whether the findings of fact are supported by the 

evidence. 

(2) Whether the conclusions of law are supported by 

the findings of fact. 

(3) Whether the order or judgment is consistent with 

the conclusions of law and applicable law.

In that section 1-301.3(d) does not apply to special proceedings that are 

“required in a matter relating to the administration of an estate,” id. § 1-301.3(a), the 

superior court applied the incorrect standard of review.

On appeal of the clerk’s order in this special proceeding, the superior court was 

required to conduct a hearing de novo, which it failed to do. Instead, the court appears 

to have mistakenly adopted the standard of review delineated in section 1-301.3(d), 

above. Although N.C. Gen. Stat. § 1-301.3(d) generally governs the trial court’s 
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review of “matters arising in the administration of trusts and of estates of decedents, 

incompetents, and minors[,]” subsection (a) explicitly provides that section 1-301.2 

shall apply “in the conduct of a special proceeding when a special proceeding is 

required in a matter relating to the administration of an estate.” Id. § 1-301.3(a).

“Ordinarily when a superior court applies the wrong standard of review . . . this Court 

vacates the superior court judgment and remands for proper application of the correct 

standard.” Johnson, ___ N.C. App. at ___, 824 S.E.2d at 862 (quoting Thompson v. 

Town of White Lake, 252 N.C. App. 237, 246, 797 S.E.2d 346, 353 (2017)).

The superior court erred in failing to conduct a hearing de novo upon Harper’s 

appeal of the clerk’s order authorizing the public administrator to sell the Decedent’s 

real property to make assets to pay debts of his estate. Accordingly, we vacate the 

trial court’s order in COA19-327 and remand this matter to the superior court with 

instructions to conduct a de novo hearing.

COA19-326: AFFIRMED; REMANDED FOR CORRECTION OF CLERICAL 

ERROR.

COA19-327: VACATED AND REMANDED.

Judges MURPHY and ARROWOOD concur.