WS Chronicle

Above: Susan Frye, Forsyth County Clerk of Superior Court

By Cash Michaels
For The Chronicle
Copyright © 2015 by The Chronicle

In a recent story published in a local newspaper, Susan Frye, Forsyth County Clerk of Superior Court, maintained that her office “.. did nothing illegal” regarding an Oct. 20 lawsuit that alleges the $1.4 million estate of Mary Ellen Thompson, an African-American retired nurse also known as “the ward,” was fraudulently squandered when an assistant clerk illegally appointed an attorney as her estate guardian before declaring her incompetent.

This was an act the N.C. Court of Appeals later ruled was legally “invalid” because the process was corrupted, and none of the orders were properly file stamped (or “entered” into the court record), making them official.
“Everything was handled in a professional manner,” Frye insisted to the local newspaper, “… and all laws have been followed. There was no fraud.”

But as The Chronicle, which exclusively broke this story online Oct. 23, first reported, that is not what Susan Frye stated in an April 9, 2014 court order titled “Findings of Fact”…. “In the Matter of the Estate of Mary Ellen Brannon Thompson,” filed in Forsyth Superior Court.

Frye’s order was not only responding to a series of motions from Reginald D. Alston, Mary Thompson’s estate attorney, about the alleged fraud in the case, but also the earlier Feb. 4, 2014 ruling from the N.C. Court of Appeals, which declared that the May 1, 2007 order appointing attorney Bryan C. Thompson (no relation to Mary) as guardian of the estate, and the subsequent May 3, 2007 order declaring the ward incompetent, were, “… invalid because judgment was never entered…”

According to North Carolina law, no judgment or order by a judge or the Clerk of Court becomes “the law of the case” until it is put in writing, signed by the judge or appropriate court official, and then properly filed stamped with the date and time, along with a signature, to conclusively document when that order became effective. The order is then filed with the county Clerk of Court for future reference.

Without that file stamp, the order is legally determined to be, according to the N.C. appellate court ruling, “… not entered,” and therefore, “… cannot be the law of the case.”

Therefore the May 1, 2007 appointment of Bryan Thompson as guardian was legally invalid, and the subsequent May 3, 2007 order finding Mary Thompson incompetent was illegal as well, not only because it was improperly entered, but because it was issued after attorney Thompson was appointed the estate guardian.

Legally, a ward has to be determined incompetent first, in order to justify why a guardian to assist in managing that person’s affairs is needed. That did not happen in Mary Thompson’s case.

The Oct. 20 lawsuit alleges that the assistant clerk who issued both legally invalid orders in 2007, Theresa Hinshaw (who has since retired) “… was without legal authority to appoint a guardian …” for Mary Thompson.
In her April 9, 2014 “Findings of Fact” in the case, Clerk of Court Frye acknowledges that the orders issued by assistant clerk Hinshaw in May 2007 “… were not file stamped,” “… were not properly entered,” later also admitting, “… through inadvertent error…”

In her “Conclusions of Law,” Frye further confirms the problem, this time calling it “… an inadvertent defect in the entry of judgment on the orders.” She thus recommends that, “the court can make corrections to a defect in the entry of judgment anytime …” by simply having the clerk now re-enter the orders after the fact, using the legal principle of nunc pro tunc, a Latin term meaning “now for then.”

Frye then ordered the re-entry be done, but attorney Alston, representing Mary Thompson’s estate, opposed it, stating that Frye was trying to “… legitimize the fraudulent actions of Bryan Thompson and [assistant clerk] Theresa Hinshaw and protect the interests of the Court, as opposed to those of Mary Ellen Brannon Thompson.”

Frye’s Order was later appealed in Superior Court in August 2014, and ruled to be “procedurally improper” because she failed to appoint a guardian ad litem, or legal representative specifically for Mary Thompson, as was done in 2007. The matter was sent back to the Clerk’s Office to determine the ward’s current competence, in contrast to 2007.

But Mary Thompson was very ill at the time, and subsequently died that October 2014 prior to a hearing on the matter being held. Per state statute, her death immediately terminated any guardianship arrangements – alleged or otherwise – but Frye had a Rockingham County clerk go ahead with the hearing that December.

The Rockingham clerk ruled in favor of the Forsyth Clerk’s Office, but attorney Alston, Mary Thompson’s estate attorney, later successfully challenged that ruling in Superior Court, which agreed with the Court of Appeals that the 2007 orders were indeed legally invalid.

Clerk Susan Frye’s own words from April 9, 2014 – ironically file stamped and entered into the Forsyth Superior Court record – stating that what happened in the Mary Thompson case was “…an inadvertent error” that needed to be corrected, clearly contradicts her pronouncements to that local newspaper that the Clerk of Court’s Office “…did nothing illegal,” followed all of the laws, and handled “everything … in a professional manner.”
Frye did try to hang her hat in that article on a Feb. 5, 2015 Forsyth County Superior Court order in the case which stated, “In 2007, it was standard practice of the Forsyth County Clerk of Superior Court not to file stamp Orders that had been prepared and executed by representatives of the Clerk of Superior Court …,” going on to say that this was the ”understanding of instructions” assistant clerk Hinshaw had from “the Administrative Office of the Court.”

But not only were Frye’s words an admission that not file stamping some orders was a “pattern and practice” in the Clerk’s office in 2007 – as first alleged in the Oct. 20 lawsuit by Mary Thompson’s estate – but they also contradict several Clerk Office orders The Chronicle has discovered with Hinshaw’s signature, going back to 2005, that were properly file stamped and entered.

Indeed, one of Hinshaw’s first orders appointing Mary Thompson a guardian ad litem was file stamped April 4, 2007.

If there were “instructions” from the Administrative Office of the Court, they were apparently haphazardly followed, a legal observer says, even though the state Court of Appeals, in its ruling a year earlier, made it clear that according to the longstanding N.C. Rules of Civil Procedure, Rule 58, which governs judicial procedure in the state, “… a judgment [or order] is entered (legally valid) when it is reduced to writing, signed by the judge, and filed by the clerk of court.”

In essence, there could never be a legal order from the Clerk’s Office that is not properly entered, according to established North Carolina legal procedure.

An attorney representing attorney Bryan Thompson, whom Clerk Susan Frye maintains was properly appointed as estate guardian in the case though the state Court of Appeals later ruled otherwise, told that local newspaper that “all” of his actions “… were accounted for and approved by the court, and Ms. Thompson’s funds were appropriately used for her care and to pay expenses associated with the guardianship.”

The lawsuit, however, alleges that attorney Thompson has used funds from Mary Thompson’s $1.4 million estate to hire his own attorneys to represent him in this matter.