Rose's Stores, Inc. v. Tarrytown Center, Inc. , 270 N.C. 206 ( 1967 )

154 S.E.2d 313 (1967) 270 N.C. 206

ROSE'S STORES, INC.
v.
TARRYTOWN CENTER, INC., and Tarrytown Development Company.

No. 439.

Supreme Court of North Carolina.

May 3, 1967.

Perry, Kittrell, Blackburn & Blackburn, Henderson, for appellee, Rose's Stores, Inc.

Battle, Winslow, Scott & Wiley, Rocky Mount, Simpson, Thacher & Bartlett, New York City, for defendants; Robert M. Wiley, Rocky Mount, John A. Guzzetta, and Daniel R. Solin, New York City, of counsel.

BRANCH, Justice.

The questions presented by this appeal are:

1. Was there evidence to support the finding that the temporary restraining order was violated?

2. Was there evidence to support the finding that the appellants wilfully violated the terms of the temporary restraining order?

3. Was the court's order punishing defendants for contempt and requiring them to perform certain affirmative acts properly entered?

4. Did the court err in finding as a fact that defendants violated the temporary restraining order by building a canopy at a height less than 14 feet 6 inches?

The temporary restraining order entered by Judge Braswell on 27 May 1966 was not void. Neither appellants nor appellee appealed from the order, and they are thus bound to respect its terms. Nobles v. Roberson, 212 N.C. 334, 193 S.E. 420.

The findings of fact by the judge in contempt proceedings are conclusive on appeal when supported by any competent evidence, Royal Cotton Mill Co. v. Textile Workers Union, 234 N.C. 545, 67 S.E.2d 755, and are reviewable only for the purpose of passing on their sufficiency to warrant the judgment. In re Adams, 218 N.C. 379, 11 S.E.2d 163.

Plaintiff offered evidence tending to show that sliding doors were hung so as to give the appearance that the driveway was closed to through traffic, and which in fact did impede through traffic in that a watchman was required to open the doors when an automobile approached and then precede the car through the mall to open and close the second door. On occasion the watchman detained operators of vehicles for the purpose of asking questions. It also appears that during the process of construction the driveway was broken up and covered with dirt; trucks, ladders and building materials were left in the driveway; and for a period of time, strings were put across the driveway. Thus, there was plenary competent evidence for the trial judge to find facts sufficient to warrant the finding that the acts "interfered with, obstructed, delayed and prevented the free flow of vehicular and pedestrian traffic along said driveway."

Defendants' contention that there was not sufficient evidence to support the finding they wilfully violated the terms of the temporary restraining order cannot be sustained.

In the case of Weston v. John L. Roper Lumber Co., 158 N.C. 270, 73 S.E. 799, defendants were enjoined from cutting timber on land, the title to which was in dispute. Defendants, upon their own survey and without acquiescence of the court or plaintiff, cut timber in the disputed territory. Finding no error in the trial judge's judgment ruling defendants in contempt, this Court held:

"We have high authority for saying that a party enjoined must not do the prohibited thing, nor permit it to be done by his connivance, nor effect it by trick or evasion. He must do nothing, directly or indirectly, that will render the order ineffectual, either wholly or partially so. The order of the court must be obeyed implicitly, according to its spirit and in good faith Rapalje on Contempt, sec. 40.

The motive for violating the order is not considered in passing upon the question of contempt, and the respondent cannot purge himself by a disavowal of any wrong intent. It is the fact of his obedience that alone will be considered."

The Court, considering the same question in Hart Cotton Mills v. Abrams, 231 N.C. 431, 57 S.E.2d 803, held:

"The oath of a contemner is no longer a bar to a prosecution for contempt. ``The question is not whether the respondent intended to show his contempt for the court, but whether he intentionally did the acts which were a contempt of the court.' In re Fountain, 182 N.C. 49, 108 S.E. 342, 18 A.L.R. 208; In re Parker, 177 N.C. 463, 99 S.E. 342; Herring v. Pugh, 126 N.C. 852, 36 S.E. 287; In re Young, 137 N.C. 552, 50 S.E. 220; In re Gorham, 129 N.C. 481, 40 S.E. 311.

"``The violation of a judicial mandate stands upon different ground, and the only inquiry is, whether its requirements have been wilfully disregarded. If the act is intentional, and violates the order, the penalty is incurred, whether an indignity to the Court or a contempt of its authority was or was not the motive for it.' Green v. Griffin, 95 N.C. 50; Nobles v. Roberson, 212 N.C. 334, 193 S.E. 420.

"The respondents having sought to purge themselves, the burden was on them to establish facts sufficient for that purpose."

See also Herring v. Pugh, 126 N.C. 852, 36 S.E. 287; In re Parker, 177 N.C. 463, 99 S.E. 342.

Here the defendants committed acts which clearly violated the terms of Judge Braswell's order when they had it in their power to obey its terms. They have failed to show facts sufficient to purge themselves.

Appellants contend that the court's order punishing them for contempt and requiring them to perform certain affirmative acts was improperly entered. In order to determine this question, we must consider the law governing contempt in this jurisdiction.

Luther v. Luther, 234 N.C. 429, 67 S.E.2d 345, holds:

"A person guilty of any of the acts or omissions enumerated in the eight subsections of G.S. § 5-1 may be punished for contempt because such acts or omissions have a direct tendency to interrupt the proceedings of the court or to impair the respect due to its authority. A person guilty of any of the acts or neglects catalogued in the seven subdivisions of G.S. § 5-8 is punishable as for contempt because such acts or neglects tend to defeat, impair, impede, or prejudice the rights or remedies of a party to an action pending in court.

"It is essential to the due administration of justice in this field of the law that the fundamental distinction between a proceeding for contempt under G.S. § 5-1 and a proceeding as for contempt under G.S. § 5-8 be recognized and enforced. The importance of the distinction lies in differences in the procedure, the punishment, and the right of review established by law for the two proceedings."

The procedure to punish as for contempt is by order to show cause based upon a petition, affidavit or other proper verification charging a wilful violation of an order of court. G.S. § 5-7 and G.S. § 5-9. Contempt committed in the actual or constructive presence of the court may be punished summarily. G.S. § 5-5.

In Erwin Mills, Inc. v. Textile Workers Union, 234 N.C. 321, 67 S.E.2d 372, this Court stated:

"* * * And whether the movant uses a petition or other document to obtain an order to show cause in such proceeding, it is the affidavit or verification that imports the verity to the charge of violating the judgment or order of the court, which is required upon which to base an order to show cause in such instances. G.S. § 5-7; Safie Manufacturing Co. v. Arnold, 228 N.C. 375, 45 S.E.2d 577; In re Deaton, 105 N.C. 59, 11 S.E. 244."

The court must specify the particulars of the offense on the record by stating the words, acts or gestures amounting to direct contempt, and when the record contains only conclusions that contemnor was contemptuous, contemnor is entitled to his discharge. In Re Burton, 257 N.C. 534, 126 S.E.2d 581.

The punishment as to matters punishable for contempt is limited to a fine not to exceed $250 or imprisonment not to exceed thirty days, or both, in the discretion of the court. G.S. § 5-4. However, punishment as for contempt is not limited by the terms of this statute.

The right of review in proceedings for contempt is regulated by G.S. § 5-2, which denies to persons adjudged guilty of contempt in the Superior Court the right of appeal to the Supreme Court except in cases arising under subsections 4 and 5 of G.S. § 5-1, where the contempt is not committed in the presence of the court. G.S. § 5-2 has no application, however, to proceedings as for contempt under G.S. § 5-8, and as a result a person who is penalized as for contempt may obtain a review of the judgment entered against him by a direct appeal to the Supreme Court. Luther v. Luther, supra.

In the instant case there is a violation of a temporary restraining order in a civil action, and the proceeding was properly before the court on the petition of plaintiff seeking to coerce defendants into compliance with the court's order. The procedure for punishment as for contempt has been followed and the appeal is properly before us.

Criminal contempt or punishment for contempt is applied where the judgment is in punishment of an act already accomplished, tending to interfere with the administration of justice. Civil contempt or punishment as for contempt is applied to a continuing act, and the proceeding is had "``to preserve and enforce the rights of private parties to suits and to compel obedience to orders and decrees made for the benefit of such parties.'" Dyer v. Dyer, 213 N.C. 634, 197 S.E. 157.

There are certain instances where contemnors may be punished for both criminal contempt, i. e., for contempt, and for civil contempt, i. e., as for contempt. Gaylon v. Stutts, 241 N.C. 120, 84 S.E.2d 822. Such appears to be the case here. Since the only limitation as to punishment relates to G.S. § 5-1, and is within those bounds, we conclude that the imposition of fine and the amount thereof was proper. Defendants' completed acts, such as temporarily placing a string across the driveway and temporarily leaving trucks in the driveway, were acts which tended to impair the respect due to the court's authority and were punishable for contempt; whereas, the acts which existed and continued at the time of the order, such as the placing of sliding doors across the driveway, were punishable as for contempt, because such acts impeded, impaired, or prejudiced the rights of plaintiff in the pending action. Galyon v. Stutts, supra.

In this connection, there was competent evidence that the defendants did not build the canopy exactly to the height of 14 feet 6 inches as required by Judge Braswell's order. Concededly this variation might permit punishment for contempt, but there is no competent evidence to support the finding by the court that the variance in the height of the canopy has interfered with, obstructed, delayed and prevented free flow of vehicular and pedestrian traffic along said driveway, contrary to the provisions of the temporary restraining order. Moreover, the record reveals that plaintiff did not contend the height of the canopy interfered with, obstructed, delayed and prevented the free flow of vehicular and pedestrian traffic along said driveway. This was indicated by the following statement of plaintiff's counsel: "Now, your Honor, while we are not going to abandon our contention that the canopy is lower than it should be, which is a violation of Judge Braswell's order, we are not going to ask necessarily to ask that they raise the roof or make them raise the roof, or anything of that sort." Thus, that part of the order which held the defendants in continuous contempt and imposed a fine of $250 per day on each defendant for continuous contempt was not proper for violation of the order relative to the height of the canopy. The entry of judgment as for contempt as to other violations of Judge Braswell's order was proper, except such parts of the order as required defendants to do affirmative acts beyond those required in the order of Judge Braswell. The sole question before Judge Hobgood was whether the order entered by Judge Braswell had been violated. He had no authority to modify the order. Williamson v. City of High Point, 214 N.C. 693, 200 S.E. 388. Nor did he have the authority to exercise affirmative injunctive powers. He could only punish for contempt or as for contempt.

The order of Hobgood, J., is vacated and the cause remanded to the Superior Court of Vance County for entry of judgment in accord with this opinion.

Error and remanded.