Lowder v. All Star Mills, Inc. , 45 N.C. App. 348 ( 1980 )

263 S.E.2d 624 (1980)

Malcolm M. LOWDER, Mark T. Lowder and Dean A. Lowder
v.
ALL STAR MILLS, INC., Lowder Farms, Inc., Carolina Feed Mills, Inc., All Star Foods, Inc., All Star Hatcheries, Inc., All Star Industries, Inc., Tanglewood Farms, Inc., Consolidated Industries, Inc., Airglide, Inc., and W. Horace Lowder.

No. 7920SC387.

Court of Appeals of North Carolina.

March 4, 1980.

Moore & Van Allen by John T. Allred and Jeffrey J. Davis, Charlotte, for plaintiffs and receivers.

DeLaney, Millette, DeArmon & McKnight by Ernest S. DeLaney, Jr., Charlotte, for defendant-appellant.

ERWIN, Judge.

The foremost question presented is whether the trial court had jurisdiction to adjudge defendant in contempt on 21 February 1979.

G.S. 5A-11 provides in pertinent part:

"§ 5A-11. Criminal contempt.—(a) Except as provided in subsection (b), each of the following is criminal contempt:

* * * * * *

(3) Willful disobedience of, resistance to, or interference with a court's lawful process, order, directive, or instruction or its execution."

While G.S. 5A-21(a) provides:

"§ 5A-21. Civil contempt; imprisonment to compel compliance.—(a) Failure to comply with an order of a court is a continuing civil contempt as long as:

(1) The order remains in force;

(2) The purpose of the order may still be served by compliance with the order; and

(3) The person to whom the order is directed is able to comply with the order or is able to take reasonable measures that would enable him to comply with the order."

As recognized in G.S. 5A-12(d) and G.S. 5A-21(c), a person may be found to be in both criminal and civil contempt, although only a single act was committed. Thus, defendant's acts, i. e., his failure to comply with the court's order to refrain from interfering with the receivers as they carried out their duties and his failure to furnish copies of his income tax returns could possibly be acts of civil as well as criminal contempt.

Two means are available to institute proceedings for civil contempt. One means is the issuance of an order of a judicial official directing the alleged contemnor to appear at a specified reasonable time and show cause why he should not be held in civil contempt, and the other is issuance of notice by a judicial official that the alleged contemnor will be held in contempt unless he appears at a specified reasonable time and shows cause why he should not be held in contempt. G.S. 5A-23. In either case, G.S. 5A-23 provides that "[t]he order or notice may be issued on the motion and sworn statement or affidavit of one with an interest in enforcing the order, including a judge, and a finding by the judicial official of probable cause to believe there is civil contempt." Although the language used in the statute seems to be permissive in nature, prior case law under the antecedent statute established that in cases of civil contempt, previously denominated as cases as for contempt, a petition, affidavit, or other proper verification charging a willful violation of an order of court was necessary in order for an order to show cause to issue. Rose's Stores v. Tarrytown Center, 270 N.C. 206, 154 S.E.2d 313 (1967); In re Deaton, 105 N.C. 59, 11 S.E. 244 (1890). We do not believe the Legislature has altered this requirement. See G.S. 5A-23; Billings, Contempt, Order in the Courtroom, Mistrials, 14 Wake Forest L.R. 909, 917 (1978). In the instant case, no petition, affidavit, or other proper verification served as a basis for the issuance of the order to show cause. To the contrary, the order was issued on the basis of the receiver's unsworn testimony given ex parte to the court. Thus, the order to show cause could not lawfully have been one based on civil contempt.

G.S. 5A-13 provides:

"§ 5A-13. Direct and indirect criminal contempt; proceedings required.—(a) Criminal contempt is direct criminal contempt when the act:

(1) Is committed within the sight or hearing of a presiding judicial official; and

(2) Is committed in, or in immediate proximity to, the room where proceedings are being held before the court; and

(3) Is likely to interrupt or interfere with matters then before the court."

Under prior statutory case law, failure to comply with a prior court order would amount to an act of indirect contempt when the act was committed outside the presence of the court, at a distance from it, even though the act was one which tended to degrade, interrupt, prevent, or impede the administration of justice as here. G.S. 5-7 (since repealed); Blue Jeans Corp. v. Clothing Workers, 275 N.C. 503, 169 S.E.2d 867 (1969); Galyon v. Stutts, 241 N.C. 120, 84 S.E.2d 822 (1954); Ingle v. Ingle, 18 N.C. App. 455, 197 S.E.2d 61 (1973). This was so, even though the act fell within the confines of G.S. 5-1(4) (since repealed). Accordingly, we hold that defendant's acts were not acts of direct contempt within the meaning of G.S. 5A-13(a)(3).

G.S. 5A-13(b) provides that "[a]ny criminal contempt other than direct criminal contempt is indirect criminal contempt and is punishable only after proceedings in accordance with the procedure required by G.S. 5A-15." G.S. 5A-15(a) provides that in cases of indirect contempt, a judicial officer "may proceed by an order directing the person to appear before a judge at a reasonable time specified in the order and show cause why he should not be held in contempt of court." The language of G.S. 5A-15(a) is substantially the same as that contained in its predecessor statute, G.S. 5-7. Where an order to show cause was based on an act of indirect contempt, the filing of a petition, an affidavit, or other proper verification was not required as a prerequisite to issuance of the order under G.S. 5-7, see In re Deaton, 105 N.C. 59, 11 S.E. 244 (1890), although they may be a proper basis for issuance of the show cause order. See Rose's Stores v. Tarrytown Center, supra. We do not believe that G.S. 5A-15(a) imposes such a limitation, and, thus, we hold that the trial court had jurisdiction to determine whether or not defendant had violated its 9 February order on 21 February 1979. Nevertheless, we hold that the trial court erred in holding defendant in contempt.

The trial court's basis for holding defendant in contempt was twofold: (1) an affidavit had been submitted by John M. Bahner, Jr., relating defendant's alleged contemptuous acts; and (2) defendant's refusal in open court to furnish complete copies of his income tax returns and his refusal to furnish a list, schedule, of his personal assets. The affiant did not testify at the hearing and was not present, nor did defendant testify at the hearing.

In Cotton Mills v. Local 578, 251 N.C. 218, 111 S.E.2d 457 (1959), cert. denied, 362 U.S. 941, 80 S. Ct. 806, 4 L. Ed. 2d 770 (1960), our Supreme Court held that a person denying his asserted violation of a restraining order in contempt proceedings has the right under the provisions of Article I, Section 17 (now enacted as Article I, Section 19) of the Constitution of North Carolina, synonymous with due process of law under the United States Constitution, to confront and cross-examine witnesses by whose testimony the asserted violation is to be established, but the right was waivable. Here, no waiver has occurred. Defendant, through his counsel, adamantly objected to the use of the affidavit as a basis for holding him in contempt. By doing so, he preserved his right to confront and cross-examine the witnesses against him, and inasmuch as the contempt adjudication was based on the affidavit, it was invalid.

Under the Fifth Amendment of the United States Constitution, an individual may not be compelled in any criminal case to be a witness against himself. The privilege applies in any proceeding, civil or criminal, where the evidence supplied may serve as a link in a chain leading to a criminal conviction. Maness v. Meyers, 419 U.S. 449, 95 S. Ct. 584, 42 L. Ed. 2d 574 (1975), accord, Allred v. Graves, 261 N.C. 31, 134 S.E.2d 186 (1964). Defendant has timely asserted the federal privilege, and, thus, we must determine its applicability.

The leading federal case determining whether or not an individual may be compelled to produce his federal income tax returns without violating his privilege to be free from self-incrimination is Fisher v. United States, 425 U.S. 391, 96 S. Ct. 1569, 48 L. Ed. 2d 39 (1976). In Fisher, the Supreme Court was called upon to decide whether enforcement of summonses served by the Internal Revenue Service on taxpayers' attorneys in investigations of possible civil or criminal liability under the federal income tax laws, which directed the attorneys to produce relevant documents of the taxpayers' accountants that had been given to the attorneys by the taxpayers for the purpose of obtaining legal advice in the tax investigation, violated the taxpayers' Fifth Amendment privilege against self-incrimination. In order to decide the propriety of the summonses, as they related to the assertion of the attorney-client privilege, the Court stated that it was necessary to decide the question now before us, but refused to do so on the grounds that the papers were not "private" ones; i. e., they were not prepared by the taxpayer. Nevertheless, the Court stated:

"The act of producing evidence in response to a subpoena nevertheless has communicative aspects of its own, wholly aside from the contents of the papers produced. Compliance with the subpoena tacitly concedes the existence of the papers demanded and their possession or control by the taxpayer. It also would indicate the taxpayer's belief that the papers are those described in the subpoena. Curcio v. United States, 354 U.S. 118, 125, 77 S. Ct. 1145, 1150, 1 L. Ed. 2d 1225, 1231 (1957). The elements of compulsion are clearly present, but the more difficult issues are whether the tacit averments of the taxpayer are both ``testimonial' and ``incriminating' for purposes of applying the Fifth Amendment. These questions perhaps do not lend themselves to categorical answers; their resolution may instead depend on the facts and circumstances of particular cases or classes thereof."

425 U.S. at 410, 96 S.Ct. at 1581, 48 L.Ed.2d at 56. What Fisher reaffirms is that compulsion, incrimination, and testimonial communication must all exist before a claimant can invoke the protection of the Fifth Amendment privilege. That the filing of an income tax return is testimonial was established in Garner v. United States, 424 U.S. 648, 656, 96 S. Ct. 1178, 1183, 47 L. Ed. 2d 370, 378 (1976), wherein the Court stated: "The information revealed in the preparation and filing of an income tax return is, for purposes of Fifth Amendment analysis, the testimony of a ``witness,' as that term is used herein." There can be no serious doubt that an order to produce is compulsory. Fisher v. United States, supra; see also Rey v. Means, In & For Tulsa Cty., 575 P.2d 116 (Okl.1978). Thus, the essential inquiry becomes whether the information sought is incriminating. Here, defendant has been accused of diverting, converting, and misusing corporate assets. The diversion and conversion are surely susceptible to criminal punishment. Submission of the tax returns would surely furnish a link on the chain leading down the road to criminal prosecution. The privilege against self-incrimination does not protect defendant from prosecution, but it does protect him from being a witness against himself. Inasmuch as Boyd v. United States, 116 U.S. 616, 6 S. Ct. 524, 29 L. Ed. 746 (1886), protects against such disclosures, it is still the law of the land, and defendant could not be held in contempt for failure to furnish copies of his federal and state income tax returns. Furthermore, he could not be required to write out a list of his personal assets, see Marchetti v. United States, 390 U.S. 39, 88 S. Ct. 697, 19 L. Ed. 2d 889 (1968), and the contempt citation could not be upheld on that ground. Counsel for the plaintiffs and the receivers contend that defendant has waived the privilege against self-incrimination pointing to Garner v. United States, supra. We hold that he has not. Garner did not present a situation where defendant was forced to produce the disputed tax returns. In Garner, the government already had the tax return.

We need not decide the propriety of the 28 February 1979 order, since in light of our foregoing text, it could not stand. We are compelled, however, to address defendant's contentions that the trial court erred in appointing the receivers, in not considering his motion to alter and amend the findings of fact, and conclusions of law in the 9 February order, and in not hearing his motion to vacate.

In denying to hear defendant's motions at the show cause hearing, the trial court stated:

"COURT: We can't conduct a very full hearing on those things, Mr. DeLaney, I have not got copies of those, I don't have the files here. They were not scheduled for a hearing at this time.

MR. DELANEY: Judge, I'm in this position, I know—I feel that these are matters which should be reviewed."

In refusing to hear these matters, the trial court did not commit error. The sole question before him to be adjudicated at a hearing of an order to show cause why defendant should not be held in contempt for violation of the court's decree was whether the decree had been violated, and the court correctly disregarded hearing anything else. Rose's Stores v. Tarrytown Center, supra; Williamson v. High Point, 214 N.C. 693, 200 S.E. 388 (1939). Since defendant's motions are still pending, they may be scheduled for hearing on remand. Other questions presented need not be decided in light of our foregoing text.

The orders adjudging defendant in contempt are

Reversed.

CLARK and ARNOLD, JJ., concur.