Opinion
No. 04-337.
Filed 4 October 2005.
Wake County No. 97 CVS 11839.
Appeal by additional party defendant and third-party plaintiff from judgment entered 16 January 2004 and orders entered 2 April 2003 and 8 August 2003 by Judge Howard E. Manning, Jr. in Wake County Superior Court. Heard in the Court of Appeals 2 December 2004.
McDaniel Anderson, L.L.P., by L. Bruce McDaniel, for additional party defendant and third-party plaintiff-appellant.
Additional party defendant/third-party plaintiff John R. Gamble, III appeals orders of the trial court related to the award of compensation and attorneys' fees to the receiver of The Leeds Group, L.L.C. Gamble primarily argues on appeal that the trialcourt erred (1) in concluding that Gamble could not challenge previous applications for payment by the receiver that had already been approved by the court, (2) in failing to require the receiver to repay previously-awarded fees and compensation, and (3) in awarding additional compensation and fees that Gamble contends were excessive and not supported by the evidence. We hold that the trial court properly determined that Gamble could not challenge the previously-awarded receivership fees based on the principle that one superior court judge may not overrule another superior court judge. Further, Gamble has not properly appealed to this Court from those prior orders allowing the receiver's application for fees. Finally, the amount awarded in the properly-appealed orders is not clearly excessive and is supported by competent evidence. Because we also find Gamble's remaining assignments of error to be without merit, we affirm.
Facts
This appeal arises from the receivership of a failed mobile home construction business. Plaintiff Garland B. Kincheloe, Jr., a licensed North Carolina attorney with a Masters in Business Administration, and Gamble, a licensed certified public accountant, were the sole member-managers of defendant The Leeds Group, a limited liability company organized under the laws of North Carolina. On 17 October 1997, Kincheloe filed a complaint against The Leeds Group, alleging that Kincheloe and Gamble were deadlocked in the management of The Leeds Group and asking that The Leeds Group be dissolved and a receiver appointed to wind up and liquidate the company. On 17 October 1997, the superior court appointed Brent E. Wood of Wood Francis, P.A. as receiver for the company pursuant to N.C. Gen. Stat. § 55-14-32 (2003).
On 19 November 1997, Gamble moved to intervene, which the trial court allowed on 7 January 1998. Gamble subsequently filed a motion to vacate the order appointing the receiver and for appointment of a new receiver. That motion was denied on 30 January 1998. Gamble proceeded to file counter claims against Kincheloe and cross-claims against Liberty Ridge Homes, L.L.C., a company whose sole member and manager was Kincheloe.
From 13 May 1998 through 9 February 2001, the receiver filed applications for fees and expenses, attaching detailed invoices. Each of these applications was served on counsel for Gamble. Gamble made no objections to those applications and the superior court entered orders allowing each application on 22 May 1998, 31 December 1998, 29 January 1999, 3 March 1999, 31 March 1999, 28 May 1999, 6 July 1999, 2 August 1999, 22 September 1999, 22 December 1999, 21 March 2000, 29 May 2000, 18 September 2000, 20 November 2000, 30 November 2000, and 20 February 2001. Gamble did not appeal from any of those orders at the time they were entered.
On 6 March 2001, the receiver filed an application for reimbursement of time and expenses incurred during the month of February 2001. On 13 March 2001, Gamble filed an objection to the receiver's application for February 2001 and moved for an order requiring calculation of previous over payments and reimbursement of over payments to the estate. On 6 April 2001, Judge Donald W. Stephens entered an order (1) finding that the receiver was entitled to receive $4,006.00 for services rendered between 1 February 2001 and 28 February 2001; (2) providing that because the court anticipated that the receiver would be performing fewer services as a result of the pending trial of the parties' claims, the court would not entertain additional applications for compensation until after the trial; and (3) after the trial, "the Court [would] determine the form of all bills from the Receiver, paid and unpaid, and upon hearing, make a determination as to any final accounting on all charges made by the Receiver."
The trial was, however, delayed for a year until 5 August 2002 because of a bankruptcy petition filed by Kincheloe on 4 June 2001. On 3 December 2001, the United States Bankruptcy Court for the Eastern District of North Carolina entered an order modifying the automatic stay to permit the action below to proceed. On 5 September 2002, following a bench trial, Judge Howard E. Manning, Jr. entered judgment resolving all of the claims with respect to Kincheloe, Gamble, The Leeds Group, and Liberty Ridge Homes. Judge Manning concluded that Gamble's claim against the receivership assets in the amount of $320,894.80 was superior to any claim of Kincheloe; that The Leeds Group was entitled to a set off against Kincheloe in the amount of $26,686.42 because of his negligence; and that The Leeds Group was entitled to a set off against Kincheloe in the amount of $8,478.94 for use of The Leeds Group property for Kincheloe and Liberty Ridge Homes' benefit. Judge Manning then concluded that because the remaining receivership assets totaled $262,000.00 plus personal property, Kincheloe would not be entitled to any portion of those assets. Instead, after payment of the creditors of the receivership, the expenses of closing out the receivership, and the receiver's compensation, the remaining amounts would be paid to Gamble. Judge Manning provided, however, that the receiver should not disburse any funds to Gamble until a hearing was held on his objections to the receiver's fee applications or until any objections had been withdrawn or resolved. Judge Manning retained jurisdiction over the receivership estate to determine the final receivership fees and expenses, to enter final orders dissolving and winding up the receivership, and to enforce the 5 September 2002 judgment. The parties did not appeal from that judgment.
At a hearing on 25 September 2002, the receiver presented to the court his prior fee applications and previous orders that approved payment of those applications. Gamble presented charts and testimony in support of his objections to all of the previous applications for payment that had been approved by other judges in Wake County Superior Court over the prior five years. Following the hearing, the receiver continued to apply for payment of fees and expenses while Gamble continued to file objections to each application.
On 2 April 2003, Judge Manning issued an order (the "April 2003 order") addressing "whether or not Gamble is entitled at this point in the proceedings, to object to and thereby litigate objections and claims relating to the Receiver's previous Applications for Payment that the Superior Court allowed and permitted the Receiver to disburse from the assets of the Receivership." Judge Manning identified the period of time at issue as "from the inception of the Receivership in 1997 through the end of February, 2001." In the April 2003 order, Judge Manning concluded that Gamble was "judicially estopped and barred from objecting to" the receiver's applications for fees and expenses from the beginning of the receivership to and including 28 February 2001. The order explained:
Now that the underlying case is over and Gamble, per the Court's Final Judgement is to receive all of the remaining assets, in excess of $200,000, he wants to have a second trial and try to make the Receiver pay back fees and expenses that were previously paid without objection and after notice. This conduct constitutes a waiver on the one hand and a change of previously given assent to objection, after reliance by the Court on the lack of objection. The elements of reliance and prejudice are present here with respect to the Court and to the administration of justice. Gamble is judicially estopped and has waived his right to complain or object, or to litigate claims against the Receiver for any work or matter done during the periods covered by the Court Orders through the end of February, 2001.
To permit Gamble to reverse course and now engage in a second "lawsuit" against the Receiver, would be to reward him for being silent and essentially lie in wait as the Court and the Receivership progressed on without notice of his objections or claims in a timely manner. Gamble may not now assert an objection or claim as to those matters. For the Court to countenance such a proceeding would be to permit an inconsistent position in the same litigation and matter and thereby reward conduct which this Court can only characterize as "playing fast and loose" with the Court, prejudicial to the integrity of the Court and detrimental to the judicial process.
The order concluded: "The Court's prior orders not objected to, not appealed nor the subject of timely motions in the cause, are final and not subject to being re-opened or their subject matter litigated at this stage of the proceedings."
Following a hearing on 1 July 2003, Judge Manning, in an order filed 8 August 2003 (the "August 2003 order") addressed the receiver's applications for payment for work done from 1 March 2001 through 30 June 2003. After reviewing the applications, Gamble's objections, the total amount of receipts and disbursements from the receivership estate, and the total amounts paid previously, Judge Manning authorized payment of $8,588.10 in additional receiver compensation and $14,108.00 in attorneys' fees under N.C. Gen. Stat. § 1-507.9 (2003). On 5 September 2003, Gamble filed a notice of appeal of this August 2003 order, as well as the April 2003 order.
On 16 January 2004, Judge Manning entered a Final Judgment, providing for payment of final amounts to creditors and directing distribution of all remaining cash assets to Gamble. Judge Manning further ordered, once the final disbursements were made, that the receivership be terminated, the receiver discharged, and The Leeds Group dissolved in accordance with law. The judgment specified that "Brent E. Wood, as receiver or individually, is not a party to any appeal which may be pending and docketed in the Court of Appeals." On 20 January 2004, Gamble filed a "Final Notice of Appeal and Amended Notice of Appeal," in which he appealed from the Final Judgment entered on 16 January 2004, the August 2003 order, and the April 2003 order.
Orders Allowing Applications for Payment for Services Rendered Prior to 1 March 2001
Gamble argues that the trial court erred in concluding in the April 2003 order that he was judicially estopped from challenging the payment applications filed by the receiver prior to 1 March 2001. Gamble contends that judicial estoppel does not apply in this case because the evidence does not meet the requirements of Whitacre P'ship v. Biosignia, Inc., 358 N.C. 1, 591 S.E.2d 870 (2004). We need not reach the question whether the doctrine of judicial estoppel is applicable because we conclude that Judge Manning was barred from reviewing and reconsidering the decisions of other superior court judges approving the receiver's applications for payment. The trial court, therefore, properly declined in its April 2003 order and again in its August 2003 order to address the applications for payment filed prior to 1 March 2001.
"The well established rule in North Carolina is that no appeal lies from one Superior Court judge to another; that one Superior Court judge may not correct another's errors of law; and that ordinarily one judge may not modify, overrule, or change the judgment of another Superior Court judge previously made in the same action." Calloway v. Ford Motor Co., 281 N.C. 496, 501, 189 S.E.2d 484, 488 (1972). See also Able Outdoor, Inc. v. Harrelson, 341 N.C. 167, 170-71, 459 S.E.2d 626, 628 (1995) (even if one superior court judge "may have erred by allowing attorney's fees, . . . it was error for another superior court judge to overrule his order"). Interlocutory orders are the exception to this rule: "[I]n an appropriate context a superior court judge has the power to modify an interlocutory order entered by another superior court judge. . . . [I]nterlocutory orders are modifiable for changed circumstances." Dublin v. UCR, Inc., 115 N.C. App. 209, 219-20, 444 S.E.2d 455, 461 (internal citations omitted), appeal dismissed and disc. review denied, 337 N.C. 800, 449 S.E.2d 569 (1994).
Our Supreme Court has determined that orders approving compensation for receivers are final orders. Battery Park Bank v. Western Carolina Bank, 126 N.C. 531, 533, 36 S.E. 39, 40 (1900) (holding that an award of fees and expenses by the superior court to the receiver "was a final one because it appropriated a part of the assets, affecting thereby a substantial right of the plaintiffs"). Under Battery Park Bank, Gamble could, therefore, have appealed from those orders. Id. See also King v. Premo King, Inc., 258 N.C. 701, 711, 129 S.E.2d 493, 500 (1963) ("The allowance of the costs of administration of a receivership of an insolvent corporation made by a court affects a substantial right of the creditors, in that it disposes of a part of the assets of the insolvent corporation, and is a reduction to that extent of the amounts to which the creditors are entitled under their claims against it."). Accordingly, because the orders approving compensation and fees were not interlocutory, another superior court judge could not "modify, overrule, or change" the already-entered orders. Calloway, 281 N.C. at 501, 189 S.E.2d at 488.
Gamble asked Judge Manning to revisit all of the receiver's prior applications for payment and hold that the amounts sought were excessive or otherwise improper. Those applications had been, however, allowed in 17 different orders by various superior court judges. Once one superior court judge had approved an application, Judge Manning could not then rule that the same application sought excessive or inappropriate compensation.
Other than by appealing, the only way in which Gamble could have sought reconsideration of the 17 prior orders was through a timely motion under either Rule 59 or Rule 60 of the North Carolina Rules of Civil Procedure. See N.C. Gen. Stat. § 1A-1, Rules 59 60 (2003). As Judge Manning observed in his April 2003 order, however, Gamble did not file either a Rule 59 or Rule 60 motion. Gamble's objections did not expressly move for relief under either rule and did not refer to the considerations pertinent to a Rule 59 or Rule 60 motion. See Hieb v. Lowery, 344 N.C. 403, 407, 474 S.E.2d 323, 325-26 (1996) (holding that even though the plaintiff's motion referenced Rule 60(b), it was not in fact based on that rule and the trial court was barred from revisiting a prior superior court order setting a workers' compensation lien).
Gamble urges that Judge Stephens' 6 April 2001 order had already determined that, following the trial of the parties' claims, the trial court would reconsider the orders allowing payment to the receiver. Under the foregoing principles, however, Judge Stephens, like Judge Manning, was precluded from revisiting the orders prior to 6 April 2001. In any event, we do not construe the 6 April 2001 order in the same manner as Gamble argues. The order provided that "[a]t or after the time of trial of the above-captioned matter, the Court will determine the form of all bills from the Receiver, paid and unpaid, and upon hearing, make a determination as to any final accounting on all charges made by the Receiver." (Emphasis added.) The court's reference to "the form" rather than the substance of the bills suggests an intent not to reconsider the prior payments, but to take them into account when determining any final amounts to be paid to the receiver at the end of the case. That is precisely what Judge Manning did. We hold, therefore, that Judge Manning properly declined to reconsider the amounts awarded to the receiver for services through February 2001.
In addition, this Court may not in this appeal review the merits of Gamble's arguments regarding the compensation allowed prior to March 2001 because Gamble has not appealed from those orders. Since the 17 orders do not fall within the scope of Gamble's notice of appeal, we need not decide whether Gamble was required to appeal each order awarding compensation upon entry of the order or whether Gamble could wait until the conclusion of the case to appeal all of the orders at one time.
Gamble's notice of appeal states in its entirety:
Additional party defendant/third-party plaintiff John R. Gamble, III, pursuant to N.C.R. App. Proc. 3, hereby gives notice of appeal from the Final Judgment entered on December 22, 2003 and filed on January 16, 2004, and amends his previous Notice of Appealfiled on September 5, 2003 from the Order entered and filed on August 8, 2003, and from the Order entered and filed on April 2, 2003, all relating to receivership fees, which Judgment and all of which Orders were signed by the Honorable Howard E. Manning, Jr.
The notice of appeal thus failed to specifically appeal from the 17 orders filed from 22 May 1998 through 6 April 2001 allowing the applications for compensation for services rendered from the beginning of the receivership through February 2001.
Proper notice of appeal requires that the appealing party "designate the judgment or order from which appeal is taken and the court to which appeal is taken. . . ." N.C.R. App. P. 3(d). "Without proper notice of appeal, this Court acquires no jurisdiction." Brooks v. Gooden, 69 N.C. App. 701, 707, 318 S.E.2d 348, 352 (1984). Our Court has held that a mistake in designating the judgment or in designating the part appealed from, if only a portion is designated, should not result in loss of the appeal, so long as the court is able fairly to infer an intent to appeal from a specific judgment and the appellee is not misled by the mistake. Von Ramm v. Von Ramm, 99 N.C. App. 153, 156-57, 392 S.E.2d 422, 424 (1990). Here, even if we construe Gamble's notice of appeal liberally, it does not give rise to any inference of an intent to appeal the 17 orders entered from 22 May 1998 through 6 April 2001.
N.C. Gen. Stat. § 1-278 (2003) provides another means by which an appellate court may obtain jurisdiction to review an order not included in a notice on appeal. It states: "Upon an appeal from a judgment, the court may review any intermediate order involving the merits and necessarily affecting the judgment." Id. This Court has held that appellate review pursuant to N.C. Gen. Stat. § 1-278 is proper under the following conditions: (1) the appellant must have timely objected to the order; (2) the order must be interlocutory and not immediately appealable; and (3) the order must have involved the merits and necessarily affected the judgment. Brooks v. Wal-Mart Stores, Inc., 139 N.C. App. 637, 641, 535 S.E.2d 55, 59 (2000), disc. review denied, 353 N.C. 370, 547 S.E.2d 2 (2001). All three conditions must be met. Id. at 642, 535 S.E.2d at 59.
In this case, Gamble cannot meet either of the first two requirements. As already indicated, the orders were not interlocutory, but rather were subject to immediate appeal. Even if that were not the case, Gamble did not timely object to any of the orders. Rule 46(b) of the Rules of Civil Procedure provides, as to interlocutory orders not directed to the admissibility of evidence, that "formal objections and exceptions are unnecessary." Instead,
[i]n order to preserve an exception to any such ruling or order or to the court's failure to make any such ruling or order, it shall be sufficient if a party, at the time the ruling or order is made or sought, makes known to the court the party's objection to the action of the court or makes known the action that the party desires the court to take and the party's grounds for its position.
Id. This Court has held that this requirement may be fulfilled through the filing of an opposition to the motion at issue. Gaunt v. Pittaway, 139 N.C. App. 778, 782, 534 S.E.2d 660, 662-63, appeal dismissed and disc. review denied, 353 N.C. 262, 546 S.E.2d 401 (2000), cert. denied, 353 N.C. 371, 547 S.E.2d 810, cert. denied, 534 U.S. 950, 151 L. Ed. 2d 261, 122 S. Ct. 345 (2001). This opposition must, however, specify "what action [the non-movant] wanted the trial court to take and the grounds for that action." Inman v. Inman, 136 N.C. App. 707, 712, 525 S.E.2d 820, 823, cert. denied, 351 N.C. 641, 543 S.E.2d 870 (2000). In this case, Gamble did not file any opposition to the applications for payment and did not at the time of the entry of the orders make known his objections, if any, to the orders.
Further, even if the orders fell properly within the scope of Gamble's appeal, we would be precluded from reviewing the merits of those orders. N.C.R. App. P. 10(b)(1) provides: "In order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context." Because Gamble did not object to the applications filed prior to February 2001, he may not now challenge them on appeal.
Accordingly, we hold that Judge Manning did not err in holding that Gamble was barred from relitigating the merits of the applications for payment approved by the orders entered from 22 May 1998 through 6 April 2001. Further, we hold that we do not have jurisdiction on this appeal to review the merits of Gamble's arguments regarding the propriety of those orders. See Talbot v. Tyson, 147 N.C. 273, 274, 60 S.E. 1125, 1126 (1908) (noting that when considering an order awarding fees to a receiver, the appellate court could not consider a previous order appointing a receiver because the court "cannot at this stage of the case review the former order of the judge appointing the receiver, as there was no appeal from that order at the time it was made").
Receiver's Applications for Fees and Expenses for Services after 1 March 2001
The remaining assignments of error pertain to the awarding of receivership compensation and attorneys' fees for work done after 1 March 2001. In its April 2003 order, the trial court ruled that objections to the receiver's applications for payment for work performed after 1 March 2001 were properly before the trial court. Gamble has made numerous assignments of error to the August 2003 order's award of $8,588.10 in additional receiver compensation and $14,108.00 in attorneys' fees, although all the assignments of error focus essentially on whether the trial court properly determined the amount of fees and expenses that should be awarded to the receiver.
We note that Gamble's primary assignment of error on this issue does not comply with Rule 10(c)(1) of the Rules of Appellate Procedure: "Each assignment of error shall, as far as practicable, be confined to a single issue of law; and shall state plainly, concisely and without argumentation the legal basis upon which error is assigned." Gamble's third assignment of error uses the "kitchen sink" approach, including a multitude of legal and factual contentions. Although we could decline to review this assignment of error and the contentions it encompasses, most of the arguments also appear in other proper assignments of error.
With respect to the applicable standard of review, our Supreme Court has held: "[T]he allowance of commissions and counsel fees to a receiver by the superior court is prima facie correct, and the [appellate court] will not alter or modify the same unless based on the wrong principle, or clearly inadequate or excessive." King, 258 N.C. at 712, 129 S.E.2d at 500 (emphasis added). The Court explained further:
"While the [trial] court is vested with discretion in the matter, and its action is presumptively correct, nevertheless its discretion must be properly exercised and not abused, and the matter is discretionary only in the sense that there are no fixed rules for determining the proper amount, and not in the sense that the court is at liberty to award more than fair and reasonable compensation, nor less than such compensation."
Id. (quoting 75 C.J.S. Receivers § 384a, at 1049). We thus review the trial court's allowance of fees and expenses for an abuse of discretion with a focus on whether the amount allowed was clearly inadequate or excessive. Id. at 715-16, 129 S.E.2d at 503 (reversing order because the allowance of counsel fees was found to be "clearly excessive"). See also Lowder v. All Star Mills, Inc., 309 N.C. 695, 709, 309 S.E.2d 193, 203 (1983) ("The trial judge did not abuse his discretion in awarding the counsel fees [for the receiver's attorney]."). Unless the amount awarded to the receiver is "based upon a wrong principle or is clearly excessive," an order of the trial court regarding receiver compensation should be upheld. Talbot, 147 N.C. at 274, 60 S.E. at 1126.
In North Carolina, a receiver is entitled to reasonable compensation for his services. As N.C. Gen. Stat. § 1-507.9 (2003) explains:
Before distribution of the assets of an insolvent corporation among the creditors or stockholders, the court shall allow a reasonable compensation to the receiver for his services, not to exceed five percent upon receipts and disbursements, and the costs and expenses of administration of his trust and of the proceedings in said court, to be first paid out of said assets. The court is authorized and empowered to allow counsel fees to an attorney serving as a receiver (in addition to the commissions allowed him as receiver as herein provided) where such attorney in behalf of the receivership renders professional services, as an attorney, which are beyond the ordinary routine of a receivership and of a type which would reasonably justify the retention of legal counsel by any such receiver not himself licensed to practice law.
(Emphasis added.) The fees and expenses of the receiver are part of the costs and expenses of the receivership, and these payments should be paid as a cost and expense and not like a debt to a creditor. See Wilson Cotton Mills v. C.C. Randleman Cott on Mills, 115 N.C. 475, 485, 20 S.E. 770, 773 (1894). N.C. Gen. Stat. § 1-507.1 (2003) limits the compensation for receivers to five percent of receipts and five percent of disbursements. Battery Bank, 126 N.C. at 539, 36 S.E. at 42. The receiver is also entitled to receive, in addition to reasonable compensation, attorneys' fees for tasks that require special legal skill and ability. King, 258 N.C. at 714, 129 S.E.2d at 502. Counsel fees should not be awarded for duties that do not require special legal skill, such as collecting assets of an estate. Id. at 715, 129 S.E.2d at 502.
In the August 2003 order, the trial court first determined the maximum amount available to the receiver as reasonable compensation for work done during the entire receivership, an amount equal to five percent of total receipts plus five percent of total disbursements (less the amount of $89,843.80 already paid to the receiver in receiver compensation and attorneys' fees). The trial court then reviewed the receiver's applications for payment of fees and expenses for work done from 1 March 2001 through June 2003, Gamble's respective objections to those motions, and an exhibit itemizing the receiver's time and expenses from March 2001 to September 2002. The trial court reviewed each individual time entry and marked on the applications and exhibit (1) whether it approved or disapproved the entry and (2) whether the entry represented receivership work, legal services, or work done in preparing fee applications or defending against Gamble's objections. Approved entries for receivership work totaled $8,558.10, while approved entries for legal services totaled $14,108.00. These amounts were substantially less than requested by the receiver.
The court specified that "no fees were approved during this time period for preparation of applications or defending against the objections."
As its next step, the trial court returned to calculation of the maximum eligible compensation for the receiver. In the first step, above, the court had subtracted from the total disbursements of $565,822.48 the amount paid to the receiver in compensation and legal fees through 1 March 2001 ($89,843.80). The trial court then subtracted $22,656.10 (the total of $8,558.10 and $14,108.00 for compensation and legal fees from 1 March 2001 through June 2003), leaving total disbursements of $453,322.58. Five percent of that total equaled $22,666.12. By adding the five percent maximum for receipts ($26,251.12) and the five percent maximum for disbursements ($22,666.12), the court determined that the receiver was eligible to receive a maximum of $48,957.24.
The court found that the receiver had already been paid $37,198.39 in receiver compensation pursuant to the prior court orders. When $8,588.10 (the amount found by the court to be reasonable compensation for 1 March 2001 through June 2003) was added to the amount previously paid to the receiver ($37,198.39), the total ($45,786.49) was less than the five percent cap. The court, therefore, ordered the payment of (1) the "additional sum of $8,588.10, as a reasonable compensation to the Receiver for his services rendered since March 1, 2001 to and including June 30, 2003" and (2) "the additional sum of $14,108.00 (in addition to the commissions allowed as receiver) as legal fees for professional services which are beyond the ordinary routine of a receivership as permitted by G.S. 1-507.9." The court also ruled that any fees and expenses not specifically approved by the court were denied, and Gamble's objections to the receiver's applications for payment were overruled and denied.
Gamble argues first that the trial court erred in making its ruling without requiring the receiver to submit a final accounting and report regarding his compensation and attorneys' fees. The receiver, however, submitted a 21-page table covering the period 5 November 1997 through 30 September 2002 (Exhibit B to the receiver's 22 October 2002 application), setting out the dates of each invoice, the dates of each time entry, the legal fees incurred on each date, the receiver's compensation requested for each date, the expenses incurred on each date, and the amounts paid to the receiver. The table also itemized receipts of the receivership estate and attached supporting documents, including bank statements and Internal Revenue Service Forms 1065 ("Partnership Return of Income"). Following 30 September 2002, the receiver submitted additional invoices with itemizations of time spent and services rendered for the period through June 2003. Judge Manning viewed these materials as adequate evidence, when considered in conjunction with Gamble's objections, to reach his decision. After reviewing the record, we agree that any further report by the receiver would likely be duplicative and unnecessary. Gamble had an opportunity to demonstrate any inaccuracies or inadequacies in those materials.
Gamble next argues that Judge Manning erred in failing to reduce the amounts awarded for the receiver's having made unlawful payments, having committed waste and errors in handling the estate, and having breached his fiduciary duty. Specifically, Gamble contends that the receiver should be required to repay all amounts paid to him. This argument attempts to achieve indirectly what Gamble could not achieve directly: relitigation of the amounts paid pursuant to the prior orders. Judge Manning properly restricted his focus to the amounts sought for services from 1 March 2001 through 30 June 2003. Moreover, the evidence was conflicting regarding whether the receiver acted improperly. Judge Manning had responsibility for resolving that conflict, and this Court may not substitute a different view. Gamble next challenges the factual bases for Judge Manning's calculations. He claims that (1) the findings of fact are incomprehensible, (2) the figures for the total receipts and disbursements are inaccurate, (3) the judge erred in allocating only $37,198.39 of the past-paid amounts to receiver compensation, (4) the judge erred in his determination of legal fees following 1 March 2001, and (5) the judge should have given a credit for amounts the receiver paid others to perform professional duties he should have assumed. Gamble made these arguments below, and Judge Manning disagreed.
After reviewing the record and applying the proper standard of review, we hold that Gamble has failed to demonstrate that the trial judge abused his discretion or that the amounts awarded were clearly excessive. Specifically, Gamble has not challenged the trial court's methodology. The receiver's itemized statements together with Exhibit B to the receiver's 22 October 2002 application for payment are sufficiently detailed to provide an evidentiary basis for the trial court's determinations. Further, the trial judge's handwritten notations on those documents when combined with his written order are sufficient to allow appellate review. The trial court conducted a careful analysis of the evidence, disapproved various entries, and made adjustments reallocating some entries as properly receiver compensation rather than legal fees. Even though Gamble may disagree with the findings, the trial court's findings are supported by evidence, including the receiver's exhibits and invoices. See Lowder, 309 N.C. at 709, 309 S.E.2d at 203 (because the evidence supported the trial court's finding, "[t]he trial judge did not abuse his discretion in awarding the counsel fees"); see also Matthews v. Watkins, 91 N.C. App. 640, 646, 373 S.E.2d 133, 137 (1988) ("On appeal, this Court may not substitute its findings for those of the judge if there is evidence to support the findings of the judge."), aff'd per curiam, 324 N.C. 541, 379 S.E.2d 857 (1989). The amounts awarded are not "clearly excessive," and we can perceive no abuse of discretion. Accordingly, we affirm.
Gamble also assigned error to the trial court's direction that the receiver was not a party to this appeal. Gamble argues only that this aspect of the order was an attempt "to thwart Gamble's right to appeal" and that "[i]nsulating receiver Wood from Gamble's right to appeal would otherwise also abrogate Gamble's rights to due process." Gamble has not, however, been precluded from appealing, and, in light of our resolution of his appeal, we have been unable to identify any prejudice to Gamble from this ruling. We, therefore, do not address this issue.
Affirmed.
Judges TIMMONS-GOODSON and TYSON concur.
Report per Rule 30(e).