Appealing from the Clerk of Court – The “Legalese” Matters
In North Carolina, the Clerk of Superior Court – usually known simply as the Clerk of Court – isn’t merely the keeper of the courthouse records. While the Clerk’s office handles many administrative tasks, the Clerk is also responsible for deciding various disputes in a judicial capacity. Indeed, the Clerk can decide substantial and complex legal issues or, as often occurs in large counties, delegate these decisions to an Assistant Clerk. Many Clerks are either lawyers or have significant on-the-job legal training. However, there is no guarantee that the Clerk will be well-versed in the law and, like decision-makers at every level of court, Clerks can make mistakes. Accordingly, it’s important to remember that decisions made by the Clerk can be appealed.
Clerks, as ex officio judges of probate, have extensive ability to decide issues in “estate proceedings” such as determining the “elective share” of a surviving spouse or ascertaining the heirs of a deceased person when there is a dispute. They also preside over various “special proceedings” such as cases to appoint a guardian for an incompetent person or cases for partition of real property between co-owners. Furthermore, they play key roles in certain “civil actions” – for instance, deciding whether a creditor can “attach” an alleged debtor’s property or repossess collateral through “claim and delivery.”
Notably, rules about appealing a Clerk’s decision differ, depending on the type of case involved – and potentially confusing legal nomenclature can be very important in determining your appeal rights. For example, whether a matter is an “estate proceeding” or a “special proceeding” can determine whether an appealing party is entitled to re-do their evidence in an entirely new hearing before a judge, or only to a limited hearing in which the judge reviews the Clerk’s decision for legal errors. This same distinction could also dictate whether the appealing party needs to identify the basis for their appeal when they file their “notice of appeal.” And since it is possible to have a “special proceeding” in a matter relating to the administration of an estate, the distinction is not always obvious.
When appealing a Clerk’s decision, correctly locating and interpreting the relevant procedural statute is critical to ensure that the appeal is duly taken and to appropriately prepare for the appeal hearing before a judge.
Elliot Fus has practiced law for over 25 years and is a member of the Federal, North Carolina and Forsyth County bar associations. He is an experienced litigator with major case experience in state and federal courts and in private arbitrations.