An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                               NO. COA13-1440
                       NORTH CAROLINA COURT OF APPEALS

                             Filed: 2 September 2014


IN THE MATTER OF THE ESTATE OF:
                                              Cabarrus County
HAROLD LUTHER MILLS                           No. 08 E 169


      Appeal by respondent from order entered 9 May 2013 by Judge

Richard L. Doughton in Cabarrus County Superior Court.                    Heard in

the Court of Appeals 23 April 2014.


      Weaver, Bennett & Bland, P.A., by Michael David Bland; and
      William L. Mills, III, for petitioner-appellee.

      Orsbon & Fenninger             LLP,   by    R.    Anthony     Orsbon,     for
      respondent-appellant.


      GEER, Judge.


      Respondent E. Thomas Hartsell ("respondent") appeals from

the trial court's order affirming the clerk of superior court's

removal    of   respondent      as   executor     of    Harold    Luther    Mill's

estate.      Respondent argues that the trial court should have

conducted a de novo review of the clerk's decision and that its

factual    findings     were   insufficient      to    support    its   conclusion

that respondent has a private interest that may be adverse to

the fair and proper administration of the estate.                   However, the
                                      -2-
statute upon which respondent relies in arguing for de novo

review had not come into effect as of the date of Harold Luther

Mills' death and, therefore, cannot be applied in this case.               We

hold that the trial court applied the proper standard of review

and   correctly   concluded    that     the   clerk's   findings   of     fact

regarding   respondent's      private    interests    were   sufficient    to

justify respondent's removal as executor under N.C. Gen. Stat. §

28A-9-1(a)(4) (2009).      Accordingly, we affirm.

                                  Facts

      Decedent Harold L. Mills ("decedent") was married to Audree

S. Mills.   The couple owned a substantial amount of property and

did not have any children.         Mrs. Mills suffered three strokes

between 1996 and 2002, rendering her physically and mentally

impaired and in need of a full-time caretaker.

      On 8 September 2005, William L. Mills, III ("Mr. Mills,

III"), decedent's nephew, filed a special proceeding seeking a

declaration that both decedent and his wife were incompetent and

requesting the appointment of guardians.             Respondent's brother,

Fletcher Hartsell ("Mr. Hartsell"), was decedent's attorney and

represented decedent and his wife in those proceedings.

      Evidence before the clerk indicated that in early 2006,

while the incompetency proceedings were ongoing, Mr. Hartsell

suggested that David Piatt, a long-time friend, employee, and
                                                   -3-
care-giver for decedent and his wife, persuade decedent to hire

respondent            to    do     the     Mills'        estate      planning.           Mr.    Piatt

introduced respondent to decedent in March 2006, and respondent

began assisting decedent in financial planning around that time.

Additionally, respondent, decedent, and Mr. Piatt, who were all

members of McGill Baptist Church, began sitting together during

church.

       On     29      June        2006,    decedent       executed         his   last     will      and

testament naming respondent as the personal representative of

his estate.            On 16 November 2006, decedent formed H & A Mills

Properties, LLC with decedent and his wife each owning a 50%

share    of      the       LLC.      Decedent         then     entered      into    an    operating

agreement        under           which    both   he      and    respondent       served        as    co-

managers         of        the    LLC.       Decedent          and    his    wife     transferred

substantially all of their real and personal property to the

LLC.

       On 9 February 2007, Mr. Hartsell prepared the Harold L. and

Audree      S.     Mills         Charitable      Remainder        Unitrust       Agreement          (the

"Trust").          Decedent and Mrs. Mills were named as the grantors of

the Trust, and Mr. Hartsell was designated its trustee.                                             The

initial       corpus         of     the    Trust      consisted       of    a    100%     ownership

interest         in        the    LLC,     and     the     Trust's      terms       provided        for

quarterly distributions to both decedent and Mrs. Mills in an
                                      -4-
"amount equal to six and one-half percent (6.5%) of the net fair

market value of the assets of [the Trust]" for the remainder of

their lives.         The Trust's terms further provided that upon the

death of the survivor of decedent and Mrs. Mills, the entire

balance   of    the    Trust's   assets   would    pass   to    McGill    Baptist

Church.

     On 19 February 2008, decedent died, and the incompetency

proceeding relating to him was subsequently dismissed.                          Upon

decedent's death, respondent became the sole manager of the LLC.

On 20 February 2008, respondent, as the personal representative

named in decedent's will, was issued letters testamentary.

     On 1 May 2008, Mrs. Mills was adjudicated incompetent, and

Ray White was appointed as the guardian of her estate.                          On 9

September 2008, Mr. White filed suit ("White v. Hartsell") on

behalf of Mrs. Mills against the Trust, Mr. Hartsell in his

capacity as trustee of the Trust, the LLC, decedent's estate,

respondent      in    his    individual   capacity   and       as    executor     of

decedent's estate, and McGill Baptist Church.                       The complaint

included causes of action, among others, for breach of fiduciary

duty,   undue    influence,      conversion   of   personal         property,    and

unjust enrichment.          As one of the remedies sought, the complaint

asked the trial court to invalidate the Trust, which would have

the effect of divesting McGill Baptist Church of its remainder
                                         -5-
interest in the real estate held by the Trust and of returning

ownership     of    that    real    estate   to   Mrs.    Mills    and      decedent's

estate.

     Mrs. Mills died on 29 January 2010.                       On 17 June 2011,

Michael   David      Bland    was    appointed    collector       of   Mrs.    Mills'

estate.

     On   8      February    2010,     Mr.   Mills,      III   filed     a    Verified

Complaint for Removal of Personal Representative in the estate

proceedings below.           The complaint was voluntarily dismissed on

16 March 2012 for failure to serve respondent.                    On the same day,

Mr. Mills, III filed a second complaint to remove respondent as

executor of decedent's estate alleging (1) conflict of interest

due to respondent's status as manager of the LLC, (2) lack of

jurisdiction, and (3) breach of fiduciary duty.                    In response, on

9 May 2012, respondent filed a declaratory judgment action in

superior court seeking a declaration whether the grounds alleged

in the complaint existed and whether those grounds justified

respondent's removal as executor under N.C. Gen. Stat. § 28A-9-

1.

     Additionally, respondent moved pursuant to N.C. Gen. Stat.

§ 28A-2-4(b) (2013) to transfer the removal proceedings to the

superior court.       On the same day, 9 May 2012, the clerk of court

entered     an     order    granting    respondent's       motion      to     transfer
                                        -6-
pursuant to N.C. Gen. Stat. § 28A-2-4(b).               Apparently, the clerk

orally    rescinded     the   transfer    order,    although      the    record   on

appeal does not include any written order.

    On 13 July 2012, the Chief Justice of the North Carolina

Supreme Court designated the estate proceedings of decedent, the

estate     proceedings    of    Mrs.     Mills,    respondent's         declaratory

judgment action, and a separate civil action against decedent's

estate as exceptional cases under Rule 2.1 of the General Rules

of Practice for the Superior and District Courts.                        The order

assigned Special Superior Court Judge Richard L. Doughton to the

cases designated as exceptional.

    Assistant Clerk Jonathan Watson, on his own motion, held a

hearing on 21 August 2012 for the purpose of addressing whether

respondent should be removed as executor of decedent's estate.

In an order entered 23 August 2012, the clerk concluded that

respondent "has a private interest that hinders and is adverse

to his being able to fairly and properly carry out his duties as

executor     of   Mr.    Mills'      estate"      and   revoked     the    letters

testamentary issued to respondent.

    Respondent appealed the clerk's order, and, on 26 September

2012, Judge Doughton entered an order reversing the Assistant

Clerk's    decision     based   on     his    determination    that       alternate

executors named in decedent's will had not been served and that
                                         -7-
the   record   did    not     contain    evidence      to     support    the   clerk's

findings.      Judge     Doughton       remanded    to      the   clerk    "for     such

proceedings as the Clerk deems just and proper."                        On 11 October

2012, Mr. Bland, acting as collector for Mrs. Mills' estate,

filed a verified complaint also seeking removal of respondent as

executor of decedent's estate.

      On 26 October 2012, 7 November 2012, and 16 November 2012

the Assistant Clerk held an evidentiary hearings regarding the

removal   of    respondent       as    executor.         At    the     close   of    the

hearings, the Assistant Clerk orally rendered his decision.                           He

noted that     he would not           address   questions of fiduciary duty

because that issue would be addressed in White v. Hartsell.                           On

19 November 2012, the Assistant Clerk entered an order revoking

the letters testamentary issued to respondent based again upon

the   conclusion      that,    under    N.C.    Gen.     Stat.    §    28A-9-1(a)(4),

respondent     "has    private    interests,       direct      or     indirect,     that

might tend to hinder or to be adverse to a fair and proper

administration of the Estate of Harold L. Mills . . . ."

      Respondent appealed to the Superior Court.                      After a hearing

on 14 and 15 January 2013, the trial court entered an order on 9

May 2013 affirming the Assistant Clerk's 19 November 2012 order.

The order stated that the trial court had reviewed the Assistant

Clerk's order and the record as required by N.C. Gen. Stat. § 1-
                                            -8-
301.3 (2013) and had determined that the findings of fact in the

19 November 2012 order were supported by the evidence in the

record and that those findings of fact supported the conclusions

of law.    Respondent timely appealed to this Court.

                                  Statutory Framework

    N.C.        Gen.    Stat.     §    28A-9-1    (2009),   the     version    of   the

statute applicable to this case, sets forth the procedure by

which     the     clerk      of       superior    court     may     revoke    letters

testamentary and remove an executor in an estate proceeding.

Pursuant to N.C. Gen. Stat. § 28A-9-1(b), "[w]hen it appears to

the clerk of superior court, on his own motion or upon verified

complaint made to him by any person interested in the estate"

that grounds exist for revocation of letters testamentary, the

clerk     "shall         issue        citation     requiring        such      personal

representative          or   collector,      within    10    days    after     service

thereof, to show cause why his letters should not be revoked."

Upon return of a duly executed citation, the clerk "shall set

the date for a hearing."              Id.

    The clerk must revoke the letters issued to the executor if

at the hearing he or she determines that any of the following

grounds exist:

            (1)        The    person     to    whom     [letters
                       testamentary]     were     issued     was
                       originally    disqualified   under    the
                       provisions of G.S. 28A-4-2 or has
                                     -9-
                 become disqualified since the issuance
                 of letters.

           (2)   The issuance of letters was obtained by
                 false representation or mistake.

           (3)   The person to whom they were issued has
                 violated   a  fiduciary    duty   through
                 default or misconduct in the execution
                 of   his   office,   other    than   acts
                 specified in G.S. 28A-9-2.

           (4)   The person to whom they were issued has
                 a private interest, whether direct or
                 indirect, that might tend to hinder or
                 be adverse to a fair and proper
                 administration. The relationship upon
                 which the appointment was predicated
                 shall not, in and of itself, constitute
                 such an interest.

N.C. Gen. Stat. § 28A-9-1(a).

    Under N.C. Gen. Stat. § 28A-9-4 (2009), "[a]ny interested

person may appeal from the order of the clerk of superior court

granting or denying revocation."           In matters arising out of the

administration   of   an   estate,   "the    clerk   shall   determine     all

issues of fact and law" and enter an order "containing findings

of fact and conclusions of law supporting the order[.]"                    N.C.

Gen. Stat. § 1-301.3 (2013).         On appeal of the clerk's order to

superior   court,   the    judge   reviews   the   order    solely   for   the

purpose of determining:

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

           (2)   Whether the conclusions of law               are
                 supported by the findings of facts.
                                         -10-


            (3)     Whether   the  order  or  judgment  is
                    consistent with the conclusions of law
                    and applicable law.

N.C. Gen. Stat. § 1-301.3(d).

                                       Discussion

    Respondent first argues that the trial court should have

considered de novo whether there existed grounds for removing

respondent as executor of decedent's estate because the clerk

lacked subject matter jurisdiction over the removal proceedings.

Specifically, respondent argues that the clerk was divested of

jurisdiction over the removal proceedings (1) by respondent's

filing of a declaratory judgment action and request for transfer

pursuant to N.C. Gen. Stat. § 28A-2-4(b), and (2) by the Chief

Justice's     designation         of     the    case    as    "exceptional"      and

appointment    of      Special    Superior      Court     Judge    Doughton.       We

disagree.

    The      General      Assembly       amended       the   jurisdictional      and

procedural provisions of the probate code in 2011 and added N.C.

Gen. Stat. § 28A-2-4 -- a new section and the section upon which

respondent    relies      --     which    now   governs      the   subject     matter

jurisdiction      of    the      clerk     of    superior     court    in      estate

proceedings for        decedents dying on or after 1 January 2012.

2011 N.C. Sess. Laws ch. 344 § 14.                     Because decedent died in

2008, N.C. Gen. Stat. § 28A-2-4 does not apply to this case.
                                         -11-
      Instead, N.C. Gen. Stat. § 28A-2-1 (2009) governs the clerk

of superior court's jurisdiction over the estate proceedings in

this case.      N.C. Gen. Stat. § 28A-2-1 provides:

                 The clerk of superior court of each
            county, ex officio judge of probate, shall
            have jurisdiction of the administration,
            settlement, and distribution of estates of
            decedents including, but not limited to, the
            following:

                    (1)    Probate of wills;

                    (2)    Granting of letters testamentary
                           and of administration, or other
                           proper letters of authority for
                           the administration of estates.

"It is well-settled that the clerk of court is 'given exclusive

original     jurisdiction        in     the    administration      of   decedents'

estates    except    in    cases      where   the   clerk   is   disqualified    to

act.'"     Livesay v. Carolina First Bank, 200 N.C. App. 306, 309,

683 S.E.2d 453, 455 (2009) (quoting In re Estate of Longest, 74

N.C. App. 386, 390, 328 S.E.2d 804, 807 (1985)).

      This Court has held that proceedings to remove an executor

involve an estate matter over which the clerk has exclusive

original jurisdiction.            See In re Estate of Parrish, 143 N.C.

App. 244, 251, 547 S.E.2d 74, 78 (2001).                See also In re Estate

of   Lowther,    271      N.C.   345,   354,    156   S.E.2d     693,   700   (1967)

(holding that proceedings to revoke letters of administration

"must be commenced before the clerk who issued them in the first
                                        -12-
instance"      and     "the   judge     of     the   Superior     Court    has    no

jurisdiction      to    appoint    or    remove      an   administrator      or    a

guardian"); Porth v. Porth, 3 N.C. App. 485, 497-98, 165 S.E.2d

508, 517 (1969) (holding superior court judge in declaratory

judgment action properly denied motion to remove administrator

of   estate    because    such    motion     "must   be   presented   by    direct

proceedings before the Clerk of Superior Court, who, as probate

judge, has exclusive original jurisdiction to hear and decide"

the motion).

      Consequently, this Court has applied the standard of review

applicable to appeals from estate matters to an appeal from a

clerk's order revoking letters testamentary.                    See In re Estate

of Monk, 146 N.C. App. 695, 697, 554 S.E.2d 370, 371 (2001).                      As

explained by this Court in In re Estate of Pate, 119 N.C. App.

400, 402-03, 459 S.E.2d 1, 2 (1995):

              On appeal to the Superior Court of an order
              of the Clerk in matters of probate, the
              trial court judge sits as an appellate
              court.   When the order or judgment appealed
              from does contain specific findings of fact
              or conclusions to which an appropriate
              exception has been taken, the role of the
              trial judge on appeal is to apply the whole
              record test.   In doing so, the trial judge
              reviews the Clerk's findings and may either
              affirm, reverse, or modify them.    If there
              is evidence to support the findings of the
              Clerk, the judge must affirm.      Moreover,
              even though the Clerk may have made an
              erroneous finding which is not supported by
              the evidence, the Clerk's order will not be
                                              -13-
                  disturbed if the legal conclusions upon
                  which it is based are supported by other
                  proper findings.

(Internal citations and quotation marks omitted.)                              In this case,

the    trial       court,    therefore,       properly     declined           to    review     the

clerk's order de novo.

       Respondent contends, nonetheless, that "the complaints and

evidence presented were based upon purported breach of fiduciary

duty"       and    "[s]uch     matters    are        clearly    not       a    part       of   the

administration of an estate."                   However, as explained in In re

Estate of Parrish, although "an action for damages resulting

from a fiduciary's breach of duty in the administration of a

decedent's estate is not a claim under the original jurisdiction

of    the    clerk     of    court[,]"    a    proceeding       to    remove         an    estate

administrator based upon a breach of fiduciary duties is "not a

civil       action,    but    a    proceeding        concerning      an       estate      matter,

which       [is]    exclusively       within     the     purview          of       the    Clerk's

jurisdiction,          and    over    which      the    Superior          Court          retain[s]

appellate, not original, jurisdiction."                        143 N.C. App. at 251,

547 S.E.2d at 78.

       Accordingly, we conclude that the clerk had subject matter

jurisdiction          over   the     revocation       hearing.        Furthermore,             the

clerk did not have authority to transfer the removal proceedings

to the superior court pursuant to N.C. Gen. Stat. § 28-2-4(b)
                                          -14-
because      that     statute       was    inapplicable        to     these     estate

proceedings.        Therefore, the transfer order was invalid and did

not divest subject matter jurisdiction from the clerk.1                       Finally,

the trial court applied the proper standard of review.

      Respondent       next     contends         that    the    Supreme       Court's

designation of the estate proceedings as "exceptional" and the

appointment of Special Superior Court Judge Doughton divested

the   clerk    of    subject    matter      jurisdiction       over    the    removal

proceedings.        We disagree.

      Rule    2.1(a)    of    the    General     Rules    of   Practice       for   the

Superior      and    District   Courts      allows       the   Chief    Justice     to

"designate any case or group of cases as (a) 'exceptional' or

(b) 'complex business'" and to appoint a specific superior court

judge to the case.        The Rule explains:

              Factors   which    may   be   considered   in
              determining     whether    to    make    such
              designations include: the number and diverse
              interest of the parties; the amount and
              nature of anticipated pretrial discovery and
              motions; whether the parties voluntarily
              agree to waive venue for hearing pretrial
              motions; the complexity of the evidentiary
              matters and legal issues involved; whether
              it will promote the efficient administration
              of justice; and such other matters as the
              Chief Justice shall deem appropriate.

      1
      We express no opinion on whether the clerk has authority to
grant a N.C. Gen. Stat. § 28-2-4(b) transfer over matters that
are    otherwise   within   the    clerk's   exclusive   original
jurisdiction.
                                                -15-
Gen. R. Pract. 2.1(d).

      Where,    as   here,       a    group       of   cases     requires   substantial

judicial expertise and involves multiple claims regarding the

same subject matter and parties, the appointment of one judge to

preside     over     each    case          is     intended     to     promote   judicial

efficiency and prevent inconsistent rulings.                          Beroth Oil Co. v.

N.C. Dep't of Transp., ___ N.C. ___, ___, 757 S.E.2d 466, 476

(2014).     The appointment of a specific superior court judge in

this case simply meant that any matters for the superior court

to decide would be decided by Judge Doughton.                           Nothing in the

General Rules of Practice suggests that the appointment of a

specific superior court judge divests a clerk of superior court

of   jurisdiction     over       matters         within    its    statutory     exclusive

original jurisdiction.           Respondent cites no authority suggesting

that Rule 2.1 designations are intended to -- or legally could -

- alter the allocation of subject matter jurisdiction decided

upon by the General Assembly.

      Accordingly, we conclude that the trial court invoked the

proper standard of review in reviewing the clerk's order.                            The

question remains whether the trial court applied that standard

of review properly.

      The      Assistant         Clerk           revoked       respondent's      letters

testamentary       based    on       his        conclusion     that    respondent    "has
                                    -16-
private interests, direct or indirect, that might tend to hinder

or to be adverse to a fair and proper administration of the

Estate of Harold L. Mills in violation of N.C.G.S. § 28A-9-

1(a)(4)."         "[T]he   determination     of   whether    to     revoke   an

executor's Letters should be guided by consideration of whether

the Estate is harmed or threatened with harm."               In re Estate of

Monk, 146 N.C. App. at 698, 554 S.E.2d at 371.                    There exist

grounds for removal under N.C. Gen. Stat. § 28A-9-1(a)(4) "when

it   appears   that    the   personal   interests     of    the   prospective

executor are so antagonistic to the interests of the estate and

those entitled to its distribution that the same person cannot

fairly represent both[.]"          In re Moore, 292 N.C. 58, 65, 231

S.E.2d 849, 854 (1977).          However, "it is not necessary to show

an actual conflict of interest to justify a refusal to issue

letters of administration; it is sufficient that the likelihood

of a conflict is shown."         In re Moore, 25 N.C. App. 36, 40, 212

S.E.2d 184, 187 (1975)2.

      In   this    case,   the   Assistant    Clerk   made    the     following

pertinent findings of fact in support of his conclusion that

respondent has a personal interest.           Prior to decedent's death,

respondent     and    decedent   were   co-managers    of     H   &   A   Mills
      2
      Although the Court of Appeals case in In re Moore involved
the same parties as the Supreme Court case, the two opinions
related to separate appeals, and the Supreme Court decision did
not disturb the Court of Appeals' holding in In re Moore.
                                         -17-
Properties, LLC, and respondent continued to be manager of the

LLC until August 2012.              As a manager, respondent "exercised a

great deal of control" over decedent's property and transferred

a   large    amount    of    decedent's       and   Mrs.    Mills'        assets    to   a

Charitable     Remainder          Unitrust    created      by    his     brother,     Mr.

Hartsell, with Mr. Hartsell serving as trustee.                         Respondent was

paid in excess of $150,000.00 by the LLC for his services as

manager.

       The Assistant Clerk found that as executor of decedent's

estate, respondent was tasked with determining how the estate

should proceed in litigation.                  Specifically, respondent would

have to decide whether the estate would join the Estate of Mrs.

Mills in White v. Hartsell.             That lawsuit "raised issues of both

extrinsic and intrinsic fraud" by respondent                       relating to the

creation and implementation of the Trust.                   In a separate matter,

respondent     was     responsible      for     deciding        whether    the     estate

should   sue    Wachovia      Bank     for    mismanagement        of     the   estate's

funds.      At the time respondent decided that the estate would not

pursue a lawsuit, respondent's wife was employed by Wachovia.

       Additionally,        the    Assistant    Clerk    found      that    respondent

"has   control    of    the       attorney-client       privilege        which     exists

between the Estate of Harold L. Mills and Attorneys William L.

Mills, III, Tony Orsbon, Jerry Parnell, Fletcher L. Hartsell,
                                                    -18-
Jr.,    Michael          Burgner         and        others        who     may          have     relevant

information and testimony which is adverse to the interests of

[respondent] but necessary for a proper and just administration

of the Estate of Harold L. Mills."

       As   this       Court   explained             in     In    re    Moore,         "[o]ne       cannot

represent his own interest and at the same time represent those

of another which are in conflict with his own with fairness and

impartiality to either."                      Id.     In In re Moore, this Court held

that the executor could not act impartially when one of his

duties as executor would require him to decide whether to sue

his    former      employer,         for       whom        he    had     performed            accounting

services for approximately 19 years.                              Id.     The Court explained

that "[e]specially when a decision to bring suit might endanger

respondent's        chances         of    future          employment          by    the       firm,     the

possibility that his decision to bring suit will be influenced

by    his   own    personal         interests              is    great.       .    .    .       Even     if

respondent actually brings suit on behalf of the estate, his

position would be such as to make him amenable to suggestions of

failure     to         prosecute         the        action        fully           because          of   his

relationship with [his former employer]."                               Id.

       Here,      as     in    In        re     Moore,          the     findings         establish        a

likelihood        that    respondent            cannot          act    impartially            in    making

decisions involving litigation on behalf of decedent's estate.
                                        -19-
With respect to the alleged mishandling of the estate's funds by

Wachovia, respondent faced a choice of (1) filing suit against

Wachovia      and    potentially        adversely       affecting        his    wife's

employment there or (2) not vigorously pursuing the recovery of

funds owed to the estate.

     Even more significant, however, is the potential conflict

arising    with     respect    to    the    estate's     position    in     White    v.

Hartsell.      If the allegations of fraud raised in that lawsuit

are proven true, the Trust would be voided and the property

respondent     transferred      from       the   LLC   to   the    Trust    would    be

distributed to decedent's and Mrs. Mills' estates.                       The estate,

therefore, would benefit by recovering a significant amount of

assets.      On the other hand, respondent has a personal interest

in   establishing       that    he     committed       no   wrongdoing         and   in

vindicating his and his brother's actions.

     Even if respondent is not a party, the pending litigation

would confront him with a decision related to                        the attorney-

client privilege that would place his personal interests at odds

with those of the estate.              On the one hand, as the manager of

the LLC and the brother of the Trust's creator and trustee,

respondent would have an interest in enforcing the privilege in

order   to    protect    his    own     personal       interests    by     concealing

harmful information.          In doing so, however, respondent could be
                                             -20-
preventing decedent's estate from recovering assets of which it

may have been fraudulently deprived.

       Although it may be that respondent did not in fact commit

any wrongdoing, under In re Moore, the findings need not show an

actual conflict of interest, but rather "it is sufficient that

the likelihood of a conflict is shown."                           Id.      The Assistant

Clerk's      findings,        in   this   case,       are    sufficient      to    show    a

likelihood of a conflict of interest and, therefore, support the

conclusion that respondent has a private interest "that might

tend    to       hinder       or    be    adverse      to     a     fair    and     proper

administration."             N.C. Gen. Stat. § 28A-9-1(a)(4).

       Respondent's arguments on appeal                     regarding the         Assistant

Clerk's findings of fact amount to factual arguments that he did

not in fact engage in any misconduct or breach of a fiduciary

duty.        The      Assistant     Clerk,    however,       made    no    determination

regarding whether respondent engaged in misconduct.                               Instead,

the Assistant Clerk's findings simply recognize that evidence

exists to support the allegations of misconduct and that this

created      a     potential       conflict     of    interest      with     respect      to

respondent's personal interests and the best interests of the

estate.      Because the Assistant Clerk's findings are supported by

evidence         in    the     record,    and       those    findings       support    the

conclusion that respondent has a private interest that might
                              -21-
tend to hinder or be adverse to a fair and proper administration

of decedent's estate, we affirm.


    Affirmed.

    Judges STEPHENS and ERVIN concur.

    Report per Rule 30(e).
