City of Brevard v. Ritter ( 1974 )

HIGGINS, Justice.

In this dispute the City of Brevard has sought to enforce its zoning ordinances preventing the enlargement of the private airport facility owned by the defendant. The defendant sought “to organize a Flying Club, and that a portion of the building under construction would be usable as a hangar for a small airplane.” (Stipulation 14.)

After hearing, Judge Falls found the defendant had violated the zoning ordinances by the new construction and by enlargement of existing facilities. He ordered that the partially constructed lounge and auxiliary hangar be removed within ninety days and that further enlargement of the facilities cease. On review, the Court of Appeals affirmed the order.

On May 22, 1972, the defendant Ritter notified the Zoning Board that he was proceeding to convert the partially completed hangar into a two-bedroom dwelling “with an attached garage and hobby-tool shop in the remaining portion.”

The plaintiff, after notice and on motion, obtained a citation requiring the defendant to appear and show cause why he should not be attached as for contempt (G.S. 5-8) in failing to comply with Judge Falls’ order to remove the partially completed building and to cease further enlargement of the airport facilities.

At the hearing on the show cause order, Judge Ervin held that the plaintiff had not carried the burden of showing the defendant Ritter was in violation of Judge Falls’ order and dismissed the proceeding. On review, the Court of Appeals (20 N.C. App. 380, 201 S.E. 2d 534) reversed and remanded the cause for further proceeding. That decision is now before us for review.

The stipulations before Judge Ervin disclosed the defendant’s failure to remove the offending structure. The defendant gave notice that he was converting the building into a two-bedroom, dwelling with an attached garage and hobby-tool shop in the remaining portion. “Stipulations duly made during the course of a trial constitute judicial admissions binding on the parties and dispensing with the necessity of proof . . . for the duration of the controversy.” 7 Strong, N. C. Index 2d, Trial, § 6 Stipulations. R. R. v. Highway Commission, 268 N.C. 92, 150 S.E. 2d 70; Heating Co. v. Construction Co., 268 N.C. 23, 149 S.E. 2d 625; Moore v. Humphrey, 247 N.C. 423, 101 S.E. 2d 460.

The burden, therefore, was on the defendant Ritter to show compliance in order to purge himself of the contempt citation.

Chief Justice Smith in Baker v. Cordon, 86 N.C. 116, states the rule:

“If the act is intentional, and violates the order, the penalty is incurred, whether an indignity to the Court, or contempt of its authority, was or was not the motive for doing it. A party is not at liberty by a strained and narrow construction of thé words, and a disregard of the obvious and essential requirements of the order, to evade the responsibility which attaches to his conduct. In an honest desire to know the meaning and to conform to its directions, a mistaken interpretation of doubtful language would be a defense to the charge, but when its language is plain and the attempt is made to escape the force and defeat the manifest purposes of the order, by indirection, the penalty must be enforced, or the Court would be unable to perform many of its most important functions.”

In Rose’s Stores v. Tarrytown Center, 270 N.C. 206, 154 S.E. 2d 313, this Court, quoting Cotton Mills v. Abrams, 231 N.C. 431, 57 S.E. 2d 803, held: “ ‘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.’ ... ‘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.’ . . . The respondents having sought to purge themselves, the burden was on them to establish facts sufficient for that purpose.”

We conclude that Judge Ervin, having dismissed Judge Anglin’s order to show cause, committed error of law by placing the burden on the movant, the City of Brevard. The burden wag on the defendant, Mr. Ritter, to purge himself of the charge of contempt by showing that he had complied with the court’s mandate that he remove the offending structure. At the hearing, Judge Ervin did not require the defendant to show anything, but held the City had failed to carry its burden. Judge Ervin’s order was based on a mistaken view of the law. His decision was, therefore, erroneous.

The Court of Appeals was correct in reversing the order and in remanding for further proceedings. The superior court will proceed to conduct a hearing on the questions raised by Judge Anglin’s show cause order and otherwise make a final disposition of the controversy.

The decision of the Court of Appeals is

Affirmed.