In re: Lyle Dippell

791 S.E.2d 684, 249 N.C. App. 610, 2016 N.C. App. LEXIS 1024
CourtCourt of Appeals of North Carolina
DecidedSeptember 20, 2016
Docket16-54
StatusPublished
Cited by3 cases

This text of 791 S.E.2d 684 (In re: Lyle Dippell) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In re: Lyle Dippell, 791 S.E.2d 684, 249 N.C. App. 610, 2016 N.C. App. LEXIS 1024 (N.C. Ct. App. 2016).

Opinion

ZACHARY, Judge.

*610 Kenneth Dippel (petitioner) appeals from the trial court's order dismissing his appeal from an order of the Clerk of Superior Court for Columbus County. The clerk ruled that respondent Lyle Dippel, petitioner's father, was not incompetent and dismissed the proceeding initiated by petitioner seeking an adjudication that respondent was incompetent and the appointment of a guardian for respondent. The trial court dismissed petitioner's appeal from the clerk's order on the grounds that under N.C. Gen. Stat. § 35A-1115 (2015) petitioner lacked standing to appeal and the trial court lacked jurisdiction to *685 entertain the appeal. For the reasons that follow, we reverse.

I. Factual and Procedural Background

On 8 June 2015, petitioner filed a petition seeking an adjudication that respondent was incompetent and applying for appointment of a general guardian for respondent and of an interim guardian ad litem . Petitioner alleged that respondent was classified as totally disabled by the United States Department of Veterans Affairs due to complications of diabetes, and that respondent had granted a durable power of attorney to petitioner's brother, Michael Dippel, although respondent was *611 "unable to fully understand the full consequences of executing a power of attorney[.]"

On 18 June 2015, Attorney John Alan High was appointed as interim guardian ad litem (GAL) for respondent. On 16 July 2015, petitioner filed a motion for recusal of the Columbus County Clerk of Court and transfer of the case to Robeson County. Petitioner asserted that the Clerk had a "conflict of interest" due to his friendship with Michael Dippel's wife. The record does not include an order on petitioner's motion; however it is clear from Columbus County's continued exercise of jurisdiction over the case that the motion was denied.

On 12 August 2015, an assistant clerk of court entered an order on petitioner's petition, using Administrative Office of the Courts form No. AOC-SP-202 for this purpose. The order stated that "[a] hearing was held before the Clerk of Superior Court and, after hearing the evidence, the Court does not find by clear, cogent, and convincing evidence that the respondent is incompetent[,]" and that "[i]t is adjudged that Respondent is not incompetent and the proceeding is dismissed." On 17 August 2015, petitioner appealed the clerk's order to the Superior Court of Columbus County. On 22 September 2015, respondent and Michael Dippel filed motions to dismiss petitioner's appeal, asserting that petitioner lacked standing to appeal the clerk's order and the superior court lacked jurisdiction to entertain petitioner's appeal, because "there was no order adjudicating the Respondent to be incompetent."

On 7 October 2015, the trial court filed an order dismissing petitioner's appeal. The court stated that its order was "based upon N.C. Gen. Stat. § 35A-1115 and applicable caselaw," that the "Petitioner lacks standing to appeal the dismissal of the Petition for Adjudication of Incompetence by the Assistant Clerk of Superior Court," and that the trial court "lacks jurisdiction to hear any such appeal[.]" Petitioner noted a timely appeal to this Court from the trial court's dismissal of his appeal from the order of the assistant clerk of court adjudging that respondent was not incompetent and dismissing petitioner's petition.

II. Standard of Review

The trial court dismissed petitioner's appeal from the order entered by the assistant clerk of court based upon the court's interpretation of N.C. Gen. Stat. § 35A-1115, which governs the right of appeal from an order of the clerk of court on a petition seeking an adjudication that an individual is incompetent. Thus, "the issue before the appellate court is one of statutory construction, which is subject to de novo review."

*612 Lassiter ex rel. Baize v. N.C. Baptist Hosps., Inc ., 368 N.C. 367 , 375, 778 S.E.2d 68 , 73 (2015) (citing In re D.S. , 364 N.C. 184 , 187, 694 S.E.2d 758 , 760 (2010) ).

"The primary objective of statutory interpretation is to give effect to the intent of the legislature." First Bank v. S & R Grandview, L.L.C ., 232 N.C.App. 544 , 546, 755 S.E.2d 393 , 394 (2014) (citations omitted). "If the statutory language is clear and unambiguous, the court eschews statutory construction in favor of giving the words their plain and definite meaning. When, however, 'a statute is ambiguous, judicial construction must be used to ascertain the legislative will.' " State v. Beck , 359 N.C. 611 , 614, 614 S.E.2d 274 , 277 (2005) (quoting Burgess v. Your House of Raleigh, 326 N.C.205, 209, 388 S.E.2d 134 , 136-37 (1990) ) (other citation omitted). The language of a statute is ambiguous when it is "fairly susceptible of two or more meanings." State v. Sherrod , 191 N.C.App. 776 , 778, 663 S.E.2d 470 , 472 (2008) (citation omitted).

*686 III. Discussion

The clerk of court has exclusive jurisdiction over the initial determination of whether an individual is incompetent. N.C. Gen. Stat.

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Bluebook (online)
791 S.E.2d 684, 249 N.C. App. 610, 2016 N.C. App. LEXIS 1024, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-lyle-dippell-ncctapp-2016.