State v. RevelsÂ

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-318
Filed: 6 December 2016
Cleveland County, No. 15 CRS 2159
STATE OF NORTH CAROLINA
v.
BARRY RANDALL REVELS, Defendant.
Appeal by defendant from order entered 23 September 2015 by Judge Lisa C.
Bell in Cleveland County Superior Court. Heard in the Court of Appeals 7 September
2016.
Attorney General Roy Cooper, by Special Deputy Attorney General Keith
Clayton, for the State.
Amanda S. Zimmer for defendant-appellant.
ENOCHS, Judge.
Barry Randall Revels (“Defendant”) appeals from the trial court’s order finding
him in criminal contempt of court. On appeal, Defendant contends that the trial court
erred by (1) finding him in both civil and criminal contempt based on the same
conduct; (2) finding him in criminal contempt of court; (3) relying upon a fatally
defective show cause order thereby depriving it of jurisdiction; and (4) failing to enter
a finding of guilty with regard to its determination that Defendant was in criminal
contempt of court. Defendant also asserts that he received ineffective assistance of
counsel. After careful review, we affirm.
Factual Background
STATE V. REVELS
Opinion of the Court
RST Global Communications, LLC (“RST”) is a company located in Cleveland
County, North Carolina which is in the business of installing and maintaining fiber
optic networks and offering network communication services to third parties.
Defendant is a 30% member and former head of day-to-day operations of RST.
Defendant ran the company’s daily operations from his home address located at 335
Magness Road in Shelby, North Carolina.
In early 2014, RST became aware that Defendant was improperly using
company funds from RST’s bank accounts for personal debts and expenditures. As a
result, a meeting of RST’s members was called by RST’s Chief Executive Officer, Dan
Limerick (“Limerick”). A series of unanimous resolutions were approved at the
meeting including that (1) RST operations would be transferred to the company’s
headquarters at 1300 South Dekalb Street in Shelby, North Carolina; (2) Doug Brown
(“Brown”) would assume responsibility for RST’s day-to-day operations; (3) Defendant
would no longer be paid a salary; and (4) all company-issued credit and debit cards
would be turned in and no longer used without the express authorization of RST’s
members.
Defendant refused to comply with these resolutions and retained RST records,
data, and property at his personal residence. He also continued to communicate with
other business entities on RST’s behalf and refused to turn over his company issued
credit and debit cards.
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Opinion of the Court
After several “actions without meetings” issued by Limerick and Brown
demanding that Defendant (1) return items of RST’s property including checkbooks,
credit and debit cards, keys, lock combinations, account login and password
information; (2) have all company mail being sent to his residence rerouted to the
South Dekalb Street Office; and (3) remove himself from all company bank accounts,
Defendant still refused to comply. As a result, RST filed a verified complaint and
motion for a temporary restraining order (“TRO”) against Defendant in Cleveland
County Superior Court on 30 April 2015.
A hearing on RST’s motion for a TRO was held before the Honorable Forrest
Donald Bridges on 4 May 2015, and on 5 May 2015, Judge Bridges granted RST’s
motion and entered a TRO against Defendant.
Judge Bridges continued the matter until 6 May 2015 in order to give
Defendant the opportunity to obtain counsel. Defendant did not attend the 6 May
2015 hearing, and the court issued a second TRO on 8 May 2015 incorporating the
terms of the 5 May 2015 TRO and adding several additional provisions thereto.
At a subsequent hearing on 18 May 2015, RST moved for a preliminary
injunction and submitted the sworn affidavit of Brown delineating Defendant’s
failure to return RST’s property or otherwise cooperate with Judge Bridges’ TRO.
The court entered an order for Defendant to show cause and a preliminary injunction
that same day.
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STATE V. REVELS
Opinion of the Court
On 8 June 2015, a hearing on the show cause order was held before the
Honorable Lisa C. Bell. At the outset of the proceedings, Judge Bell informed
Defendant that the hearing would determine whether he would be found in criminal
or civil contempt. The case was ultimately continued several times until 23
September 2015.
At the 23 September 2015 hearing, RST presented evidence that Defendant
had not complied with the TRO or the preliminary injunction. As a result, Judge Bell
found Defendant in both civil and criminal contempt of court and entered
corresponding orders on that same day. On 23 October 2015, Judge Bell entered a
detailed order of criminal and civil contempt laying out findings of fact supporting
her conclusion that Defendant was in both civil and criminal contempt of court.
Defendant gave oral notice of appeal of the 23 September 2015 criminal contempt
order in open court.
Analysis
I. Finding Both Civil and Criminal Contempt Based Upon the Same Conduct
Defendant first contends on appeal that the trial court found him to be in both
civil and criminal contempt based upon the same conduct in violation of N.C. Gen.
Stat. § 5A-12(d) (2015) and N.C. Gen. Stat. § 5A-21(c) (2015). We disagree.
At the outset we note that contempt in this
jurisdiction may be of two kinds, civil or criminal, although
we have stated that the demarcation between the two may
be hazy at best. Criminal contempt is generally applied
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Opinion of the Court
where the judgment is in punishment of an act already
accomplished, tending to interfere with the administration
of justice. Civil contempt is a term applied where the
proceeding is had to preserve the rights of private parties
and to compel obedience to orders and decrees made for the
benefit of such parties.
A major factor in determining whether contempt is
civil or criminal is the purpose for which the power is
exercised. Where the punishment is to preserve the court’s
authority and to punish disobedience of its orders, it is
criminal contempt. Where the purpose is to provide a
remedy for an injured suitor and to coerce compliance with
an order, the contempt is civil. The importance in
distinguishing between criminal and civil contempt lies in
the difference in procedure, punishment, and right of
review.
O’Briant v. O’Briant, 313 N.C. 432, 434, 329 S.E.2d 370, 372 (1985) (internal citations
omitted).
Defendant is correct as a general proposition that a person cannot be found in
both civil and criminal contempt for the same conduct. See N.C. Gen. Stat. § 5A-12(d)
(“A person held in criminal contempt under this Article shall not, for the same
conduct, be found in civil contempt under Article 2 of this Chapter, Civil Contempt.”);
N.C. Gen. Stat. § 5A-21(c) (“A person who is found in civil contempt under this Article
shall not, for the same conduct, be found in criminal contempt under Article 1 of this
Chapter.”). However, where divergent and distinct conduct arising from the same
underlying nucleus of facts would give rise to independent findings of both civil and
criminal contempt, a trial court does not err by finding a person in criminal contempt
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Opinion of the Court
for certain conduct while also finding him in civil contempt for other separate and
discrete conduct. See, e.g., Adams Creek Assocs. v. Davis, 186 N.C. App. 512, 527, 652
S.E.2d 677, 687 (2007) (“Defendants argue that they were found in civil and criminal
contempt for the same behavior, in violation of N.C. Gen. Stat. § 5A-21(c) and 5A-
23(g), which prohibit finding a defendant in both civil and criminal contempt for the
same behavior. . . . [D]efendants were found in civil contempt for failing to comply
with the court’s 2004 order, and were found in criminal contempt for their testimony
threatening to disobey future orders of the court. Thus, defendants were found in
civil and criminal contempt on the basis of different acts.”).
Indeed, in Adams Creek Assocs., the defendants were found in criminal
contempt for continuing to trespass upon the plaintiff’s property in defiance of the
trial court’s order. They then testified at trial that they intended to continue to
trespass on the property in the future because they erroneously believed that the
property was theirs. Id. Despite the overlapping nucleus of facts — to wit, trespass
on the plaintiff’s real property — the trial court also found them in civil contempt.
Id. On appeal, the defendants argued “that they were found in civil and criminal
contempt for the same behavior, in violation of N.C. Gen. Stat. § 5A-21(c) and 5A-
23(g), which prohibit finding a defendant in both civil and criminal contempt for the
same behavior.” Id. In rejecting this argument, this Court emphasized that
“defendants were found in civil contempt for failing to comply with the court’s 2004
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Opinion of the Court
order, and were found in criminal contempt for their testimony threatening to disobey
future orders of the court.” Id. Therefore, both the civil and criminal contempt orders
were based upon the defendants’ trespass on the exact same piece of land, but were
deemed distinguishable based on the diverging conduct and intent of the defendants
— that is the disobedience of a past trial court order on the one hand accounting for
one type of conduct, and the intention to continue to disobey the court’s orders in the
future as a separate type of conduct. Id.
This is in line with the O’Briant line of cases which emphasize that “ ‘[a] major
factor in determining whether contempt is criminal or civil is the purpose for which
the power is exercised.’ ” Watson v. Watson, 187 N.C. App. 55, 61, 652 S.E.2d 310,
315 (2007) (quoting Bishop v. Bishop, 90 N.C. App. 499, 503, 369 S.E.2d 106, 108
(1988)).
Criminal contempt is imposed in order to preserve
the court’s authority and to punish disobedience of its
orders. Criminal contempt is a crime, and constitutional
safeguards are triggered accordingly. On the other hand,
when the court seeks to compel obedience with court
orders, and a party may avoid the contempt sentence or
fine by performing the acts required in the court order, the
contempt is best characterized as civil.
Id. (internal citations omitted).
In the present case, the trial court’s 23 October 2015 order of criminal and civil
contempt was divided into two parts. In the first section, the trial court, applying the
beyond a reasonable doubt standard, found that Defendant failed to (1) cause RST’s
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Opinion of the Court
mail to be delivered to the Dekalb Street address in violation of the TRO; (2) deliver
all of RST’s equipment to the Dekalb Street address including but not limited to at
least two phones as required by the TRO; (3) provide account login and password
information in violation of the TRO; and (4) relinquish RST’s credit and debit cards
in violation of the TRO and preliminary injunction.
In the second section of the order, the trial court, applying the greater weight
of the evidence standard, found Defendant in civil contempt for (1) instructing third-
parties to break RST’s fiber optic cables and not to repair them until he got a new
contract; (2) using RST’s equipment and business connections to continue to
appropriate business opportunities for his newly formed business; and (3) retaining
RST’s equipment detailed in the TRO and preliminary injunction.
Here, it is readily apparent that, in accord with Adams Creek Assocs., the trial
court found Defendant in civil contempt based on his continued conduct in violation
of the TRO and preliminarily injunction in attempting to frustrate RST’s business
interests while simultaneously attempting to further his own at their expense, and
found him in criminal contempt based upon his past conduct, that is, his refusal to
obey the trial court’s TRO and preliminary injunction in failing to adhere to their
terms including the return of various company assets of RST. As a result, the trial
court did not find Defendant in civil and criminal contempt for the same conduct, but
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STATE V. REVELS
Opinion of the Court
instead for distinctly separate and discrete conduct based on a partially overlapping
nucleus of facts. Therefore, Defendant’s argument on this issue is overruled.
II. Criminal Contempt
In a related argument, Defendant asserts that the trial court erred in finding
him in criminal contempt because the punishment imposed upon him was civil in
nature as opposed to the type of punitive punishment reserved for those found to be
in criminal contempt. We disagree.
As noted above, the trial court is fully authorized to impose both civil and
criminal contempt in the same proceeding as long as they are not imposed for the
same conduct. Therefore, the trial court was within its authority to impose upon
Defendant both (1) criminal contempt to punish Defendant’s past conduct in failing
to adhere to the TRO and preliminary injunction; and (2) civil contempt designed to
compel Defendant to comply with its directives.
In the present case, the trial court ordered, in pertinent part, as follows:
Effective immediately, Defendant will serve a 7-day active
sentence in the Cleveland County jail of a total sentence of
30 days in jail for his willful criminal contempt of this
Court. The remaining 23 days will be suspended, and
Defendant will be on unsupervised probation for a period
of 12 months.
This sentence was clearly punitive in nature and was imposed as punishment for
Defendant’s criminal contempt of court.
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STATE V. REVELS
Opinion of the Court
The trial court then further separately ordered the following: “Defendant will
be and is indefinitely incarcerated in the Cleveland County jail for his willful civil
contempt of this Court, which will begin immediately upon the conclusion, release, or
other cessation of his 7-day active sentence until he complies with the following purge
conditions . . . .” The trial court then imposed conditions that Defendant return RST’s
assets, complete a change of address causing RST’s business mail to be sent to the
Dekalb Street address instead of to his house, and surrender his company debit and
credit cards to RST.
The latter portion of the trial court’s order clearly imposes conditions for
Defendant’s release from imprisonment after the conclusion of his criminal contempt
sentence. The punishment is indefinite and remedial in nature and designed to
ensure compliance with the court’s orders as opposed to a punishment for past
violations of the TRO and preliminary injunction. As a result, both the sentence
imposed for criminal contempt and the sentence imposed for civil contempt are
consecutive in nature and do not overlap in the manner Defendant suggests.
Consequently, Defendant’s argument on this issue is without merit.
III. Jurisdiction
Defendant next argues that the trial court’s show cause order failed to
adequately allege that he was subject to being found in criminal contempt of court
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Opinion of the Court
with sufficient specificity so as to confer jurisdiction upon the trial court. We
disagree.
N.C. Gen. Stat. § 5A-13(b) (2015) 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.” N.C.
Gen. Stat. § 5A-15(a) (2015) in turn provides, in pertinent part, that “[w]hen a judicial
official chooses not to proceed summarily against a person charged with direct
criminal contempt or when he may not proceed summarily, he 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.” See State
v. Coleman, 188 N.C. App. 144, 149, 655 S.E.2d 450, 453 (2008) (“For indirect criminal
contempt proceedings in which a trial court is not allowed to proceed summarily, a
show cause order is analogous to a criminal indictment and is the means by which
the defendant is afforded the constitutional safeguard of notice.” (internal footnote
omitted)). That is precisely what occurred in the present case.
Moreover, our caselaw has consistently held that a show cause order is
sufficient to confer jurisdiction on a trial court for finding a defendant in indirect
criminal contempt where it incorporates by reference a prior court order that a
defendant has failed to comply with.
When issuing a criminal contempt citation, the
presiding judge need only enter an order directing the
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Opinion of the Court
person to appear before a judge and show cause why he
should not be held in contempt of court. Unlike a citation
for civil contempt, which requires the judge’s order be
accompanied by a sworn affidavit and a finding of probable
cause, there is no requirement that the judge make a
finding of improper conduct upon the issuance of a criminal
contempt citation.
In this case, [the trial court judge’s] order directed
[d]efendant to appear and show cause why he should not
be punished for contempt. This language has been
construed to have reference to criminal contempt. Indeed,
[d]efendant refers to the order as one for criminal contempt
in his own motion to dismiss. Furthermore, the order seeks
to punish [d]efendant for interfering with the
administration of justice, a function of criminal contempt,
rather than compel obedience to an order entered to benefit
a private party, a function of civil contempt. Accordingly,
[the judge] was not required to make a specific finding of
improper conduct, and [the court] properly denied
[d]efendant’s motion to dismiss.
State v. Pierce, 134 N.C. App. 148, 151, 516 S.E.2d 916, 919 (1999) (internal citations,
quotation marks, and ellipses omitted); see also Bennett v. Bennett, 71 N.C. App. 424,
322 S.E.2d 439 (1984) (outstanding show cause order upon which no action had been
taken satisfied statutory requirement of N.C. Gen. Stat. § 5A-15 that a contempt
hearing be held on a show cause order).
Consequently, because the trial court entered a show cause order requiring
Defendant to appear in court and explain why he had failed to comply with the TRO
and preliminary injunction, it was fully authorized to find him in criminal contempt
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STATE V. REVELS
Opinion of the Court
of court. Defendant’s argument that the trial court never gained jurisdiction over the
criminal contempt proceedings should, as a result, be overruled.1
IV. Guilty Mandate
Defendant next argues that because the trial court never expressly used the
term “guilty” in finding him in contempt of court, his conviction must be overturned.
We disagree.
It is apparent in the present case that the trial court found Defendant guilty
of both civil and criminal contempt. Its order clearly stated that “Defendant is in civil
and criminal contempt of this Court[.]” The trial court based this conclusion upon
application of the beyond a reasonable doubt standard to the evidence before it, which
is supported by the record.
Our Supreme Court has held that “insubstantial technical errors which could
not have affected the result will not be held prejudicial. The judge’s words may not
be detached from the context and the incidents of the trial and then critically
examined for an interpretation from which erroneous expressions may be inferred.”
State v. Alexander, 279 N.C. 527, 538, 184 S.E.2d 274, 282 (1971) (internal citation
omitted); see State v. Keyes, 56 N.C. App. 75, 79, 286 S.E.2d 861, 863-64 (1982) (“Mere
1Defendant also makes a brief argument that we should impute the requirements for a larceny
indictment onto a show cause order alleging criminal contempt. Defendant has cited to no case law in
support of this proposition and our research has revealed none. Consequently, this argument is
without merit.
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STATE V. REVELS
Opinion of the Court
technical error is not sufficient to require the granting of a new trial. The error must
be so prejudicial as to affect the result.”).
Defendant’s attempt to rely on this Court’s decision in State v. Phillips, 230
N.C. App. 382, 750 S.E.2d 43 (2013), in arguing that the trial court’s failure to state
Defendant was “guilty” is misplaced. In that case, this Court found that the trial
court’s order was fatally defective because the trial court had failed to indicate that
it had applied the beyond a reasonable doubt standard, thereby precluding this Court
on appeal from being able to discern that it had actually done so in accordance with
the law. Id. at 385, 750 S.E.2d at 45. Such is not the case here where the trial court
— as set forth in the plain language of its order — correctly applied the beyond a
reasonable doubt standard to the evidence before it and unambiguously determined
that Defendant was, in fact, in criminal contempt of court. Defendant was then
sentenced accordingly.
The fact that the trial court did not use the talismanic term “guilty” here does
not affect the outcome of Defendant being found in criminal contempt of court.
Defendant cannot show that “but for” the omission of such language, the trial court
would have reached a contrary result. Consequently, Defendant cannot establish
that he was prejudiced and his argument on this issue is overruled.
V. Ineffective Assistance of Counsel
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STATE V. REVELS
Opinion of the Court
Defendant’s final argument on appeal is that he received ineffective assistance
of counsel due to his trial counsel’s failure to object to the criminal contempt
proceedings. Defendant’s argument is without merit.
In order to prevail on an ineffective assistance of counsel
claim, a defendant must show that (1) counsel’s
performance was deficient and (2) the deficient
performance prejudiced the defense.
Deficient performance may be established by
showing that counsel’s representation fell
below an objective standard of
reasonableness. Generally, to establish
prejudice, a defendant must show that there
is a reasonable probability that, but for
counsel’s unprofessional errors, the result of
the proceeding would have been different. A
reasonable probability is a probability
sufficient to undermine confidence in the
outcome.
State v. Edgar, ___ N.C. App. ___, ___, 777 S.E.2d 766, 770-71 (2015) (internal
citations and quotation marks omitted) (quoting State v. Allen, 360 N.C. 297, 316, 626
S.E.2d 271, 286 (2006)).
Because, for the reasons stated above, Defendant cannot show that the trial
court erred procedurally in finding him in civil and criminal contempt of court, it
logically follows that he cannot demonstrate that his trial counsel’s failure to object
to the proceedings affected the outcome. Therefore, he cannot successfully establish
an ineffective assistance of counsel claim.
Conclusion
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STATE V. REVELS
Opinion of the Court
For the reasons stated above, we affirm the trial court’s criminal contempt
order.
AFFIRMED.
Judge ZACHARY concurs.
Judge ELMORE dissents in a separate opinion.
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No. COA16-318 – State v. Revels
ELMORE, Judge, dissenting.
I respectfully disagree with the majority’s conclusion that the trial court found
defendant in both civil and criminal contempt for “distinctly separate and discrete
conduct.” Defendant’s same conduct—failing to return company property in willful
violation of its orders—underlies both contempt adjudications, in direct violation of
our general statutes. Accordingly, I respectfully dissent.
Because “ ‘[d]efendant alleges a violation of a statutory mandate, and ‘[a]lleged
statutory errors are questions of law[,]’ ” State v. Reeves, 218 N.C. App. 570, 576, 721
S.E.2d 317, 322 (2012) (quoting State v. Mackey, 209 N.C. App. 116, 120, 708 S.E.2d
719, 721 (2011)), we employ de novo review of defendant’s challenge. Id.
Chapter 5A of our general statutes grants a court the power to punish a party
for certain conduct by finding him or her in contempt of court, which comes in two
forms: criminal contempt, governed by Article 1, see N.C. Gen. Stat. §§ 5A-11 to -17
(2105), and civil contempt, governed by Article 2, see N.C. Gen. Stat. §§ 5A-21 to -25
(2105). Under Article 1, N.C. Gen. Stat. § 5A-11(a)(1)–(10) enumerates conduct
constituting criminal contempt, including “[w]illful disobedience of . . . a court’s . . .
order.” Id. § 5A-11(a)(3). Under Article 2, N.C. Gen. Stat. § 5A-21(a) describes
conduct constituting civil contempt and provides, in pertinent part:
(a) Failure to comply with an order of a court is a
continuing civil contempt as long as:
(1) The order remains in force;
STATE V. REVELS
Elmore, J., dissenting
(2) The purpose of the order may still be served by
compliance with the order;
(2a) The noncompliance by the person to whom the
order is directed is willful; 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 the person to comply
with the order.
Generally, a trial court imposes criminal contempt to “ ‘punish[ ] for acts
already committed that have impeded the administration of justice,’ ” and civil
contempt “ ‘to coerce disobedient defendants into complying with orders of court.’ ”
Ruth v. Ruth, 158 N.C. App. 123, 126, 579 S.E.2d 909, 912 (2003) (quoting Brower v.
Brower, 70 N.C. App. 131, 133, 318 S.E.2d 542, 544 (1984)). However, by statute, a
court cannot punish a party twice by imposing both criminal and civil contempt for
the same conduct. Compare N.C. Gen. Stat. § 5A-12(d) (“A person held in criminal
contempt under this Article shall not, for the same conduct, be found in civil contempt
under Article 2 of this Chapter, Civil Contempt.” (emphasis added)), with N.C. Gen.
Stat. § 5A-21(c) (“A person who is found in civil contempt under this Article shall not,
for the same conduct, be found in criminal contempt under Article 1 of this Chapter.”
(emphasis added)). Yet the trial court here did just this when it found defendant in
civil and criminal contempt based in large part upon the same conduct—his failing to
return company property in willful violation of its TRO and preliminary injunction
orders.
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STATE V. REVELS
Elmore, J., dissenting
The relevant provisions of both orders are identical except for paragraph
subheadings. The relevant paragraphs of the TRO provide:
h. Defendant shall . . . take the following actions . . . as
stated below:
....
v. That all company-issued credit cards will be
turned in and will not be used until and unless
authorized by the Managers.
i. Defendant shall . . . tak[e] the following actions within 24
hours of the entry of this order:
i. . . .[R]eturn to Company Headquarters . . . any and
all [company] property, including . . . the items listed
below:
1. All office and other equipment purchased
by or for the use of the Companies, including
computers, tablets, phones, drones,
audiovisual equipment, etc.;
2. All hardcopy and electronic Company files;
3. Keys and lock combinations to access
Company property and equipment, including
the Shelby Headend, Kings Mountain
Headend, Simulsat, all runs completed or in
progress (such as Ballantyne, Wake Forest,
etc.), and other assets;
4. All Company vehicles along with keys or
fobs;
5. All checkbooks, credit cards, and debit
cards; and
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STATE V. REVELS
Elmore, J., dissenting
6. All account, login and password access
information.
....
iii. . . . [H]ave all mail currently being delivered to
[defendant’s] residential address or UPS or USPS
boxes now be delivered to Company Headquarters[.]
After the contempt proceeding, the trial court entered an order finding
defendant in both civil and criminal contempt simultaneously for his willful
noncompliance with its orders. In the criminal contempt section of its order, the trial
court made the following findings regarding defendant’s conduct:
a. Defendant failed to cause the Plaintiffs’ mail to be
delivered to Plaintiffs’ headquarters . . . as required by
paragraph (i)(iii) of the TRO and [an identical paragraph]
of the Preliminary Injunction;
b. Defendant failed to deliver . . . equipment to Plaintiffs’
headquarters . . . including but not limited to at least two
phone devices . . . as required by paragraph (i)(i)(1) of the
TRO and [an identical paragraph] of the Preliminary
Injunction;
c. Defendant failed to provide all account, login and
password access information . . . as required by paragraph
(i)(i)(6) of the TRO and [an identical paragraph] of the
Preliminary Injunction; and,
d. Defendant failed to relinquish the Plaintiffs’ credit card
and debit cards as required by paragraphs (i)(i)(5) and
(h)(v) of the TRO and [identical paragraphs] of the
Preliminary Injunction.
(Emphasis added.) Based upon these findings, the trial court held defendant in
criminal contempt for willful noncompliance with the TRO and preliminary
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Elmore, J., dissenting
injunction:
At all times relevant to this proceeding Defendant had the
ability to comply with these provisions of the TRO and
Preliminary Injunction and has willfully failed to do so in
criminal contempt of this Court as set forth in N.C.G.S. §
5A-11(a).
In the civil contempt section of its order, the trial court made the following
findings regarding defendant’s conduct:
a. Defendant’s instruction to third parties to break
Plaintiffs’ fiber optic cables and re-splicing them upon
renewal of a contract as illustrated in Plaintiffs’ Exhibit 12;
b. Defendant’s actions in establishing through the North
Carolina Secretary of State an LLC known as RST Wireless
without the Plaintiffs’ knowledge and the engaging in both
the purchase of equipment as well as exploration of
utilizing Plaintiffs’ existing networks in Wake Forest,
North Carolina in order to provide wireless communication
services; and,
c. Defendant’s failure to return certain of Plaintiffs’
equipment (as listed in Plaintiffs’ Exhibit 12) as required by
paragraphs (i)(i) of the TRO and (j)(i) of the Preliminary
Injunction.
(Emphasis added.) Based upon these findings, the trial court held defendant in civil
contempt for willful noncompliance with the TRO and preliminary injunction:
At all times relevant to this proceeding Defendant had the
ability to comply with these provisions of the TRO and
Preliminary Injunction and has willfully failed to do so in
civil contempt of this Court as set forth in N.C.G.S. § 5A-
21 . . . .
As shown, the trial court’s order establishes that it found defendant in civil
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Elmore, J., dissenting
and criminal contempt for willful noncompliance with its orders based upon, in large
part, defendant’s same exact conduct—failing to return company property. Yet the
trial court punished defendant twice by imposing both civil and criminal contempt
sanctions. Although willful noncompliance with a court order may constitute either
criminal contempt under section 5A-11(a)(3), or civil contempt under section 5A-
21(a), a contemnor shall not be punished under both statutes based upon the same
conduct. See N.C. Gen. Stat. §§ 5A-12(d), -21(c). Accordingly, I agree with defendant
that, in violation of sections 5A-12(d) and 5A-21(c), the trial court improperly found
him in both criminal and civil contempt, and I would vacate the entire order.
The majority, however, relies on our decision in Adams Creek Associates v.
Davis, 186 N.C. App. 512, 652 S.E.2d 677 (2007), to hold that the trial court here
properly punished defendant twice by imposing both forms of contempt for “distinctly
separate and discrete conduct.” I disagree with the majority’s expansive reading of
our holding in Adams Creek Assocs. and its application of the reasoning in that case
to support its holding in this case. The majority attaches significance to the fact in
that case that the contempt orders were “based upon the defendants’ trespass on the
exact same piece of land,” rather than the more relevant fact that the orders were
based upon separate, contemptible acts.
In Adams Creek Assocs., we affirmed a trial court’s simultaneous civil and
criminal contempt adjudications against two trespassers over the exact same piece of
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Elmore, J., dissenting
land only because the defendants committed independently contemptible acts: (1)
willfully violating the court’s orders by continuing to live and otherwise trespass on
the property; and (2) displaying disparaging behavior during the contempt proceeding
by testifying that they intended to continue trespassing regardless of court orders
directing them otherwise. Adams Creek Assocs., 186 N.C. App. at 527, 652 S.E.2d at
687. In that case, the defendants were “charged with contempt of court for their
continued trespass on [particular] property following the entry of several court orders
directing them not to trespass thereon,” id., and, after the contempt proceeding, the
trial court entered two orders finding them in both civil and criminal contempt. Id.
at 520, 652 S.E.2d at 683.
On appeal, we rejected the defendants’ argument that the trial court erred by
finding them in civil and criminal contempt for the same behavior because, in fact,
the sanctions were based upon separate, contemptible conduct. Id. at 526–27, 652
S.E.2d at 686–87. We observed that, during the contempt proceeding, the defendants
testified they “had in fact been living on the subject property or otherwise trespassing
on it” and “would not follow future court orders directing them to vacate the property.”
Id. at 527, 652 S.E.2d at 687. Thus, we explained, the “defendants were found in civil
contempt for failing to comply with the court’s [previous] order, and were found in
criminal contempt for their testimony threatening to disobey future orders of the
court.” Id. (emphasis added). Because the defendants “were found in civil and
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Elmore, J., dissenting
criminal contempt on the basis of different acts,” we rejected the defendant’s
argument and affirmed the trial court’s contempt adjudications. Id.
To be sure, although the Adams Creek Assocs. decision does not specify which
criminal contempt ground enumerated in N.C. Gen. Stat. § 5A-11(a) applied to the
defendants, we can glean insight from the Adams Creek Assocs. Court’s discussion
addressing the trial court’s “misnomer” in finding the defendants in indirect, rather
than direct, criminal contempt:
In the instant case, defendants testified in the trial court’s
presence, constituting direct criminal contempt. However,
the trial court mistakenly held them in indirect criminal
contempt:
The testimony of the Defendants stating that they
are not going to obey the orders of the court is
disrespectful and disparages the respect due to the
court and its orders.
Id. at 528, 652 S.E.2d at 687; see also N.C. Gen. Stat. § 5A-11(a)(2) (“Willful behavior
committed during the sitting of a court in its immediate view and presence and
directly tending to impair the respect due its authority.”). Based on this discussion,
it is apparent that the defendants in Adams Creek Assocs. were being held in criminal
contempt not for willful noncompliance with a court order, as here, but for their
disparaging testimony. Thus, the contempt adjudications were based upon two
independently contemptible acts.
Yet the majority relies on Adams Creek Assocs. to support its conclusion that
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Elmore, J., dissenting
defendant here was found in criminal and civil contempt for “distinctly separate and
discrete conduct based on a partially overlapping nucleus of facts.” In reaching this
conclusion, the majority points out that “both the civil and criminal contempt orders
were based upon the defendants’ trespass on the exact same piece of land” and
reasons that the defendants’ conduct differed in that one act was “the[ir] disobedience
of a past . . . order” and another act was “th[eir] intention to continue to disobey the
court’s orders.” Thus, in applying Adams Creek Assocs., the majority concludes:
Here, it is readily apparent that, in accord with Adams
Creek Assocs., the trial court found Defendant in civil
contempt based on his continued conduct in violation of the
TRO and preliminary injunction in attempting to frustrate
RST’s business interests while simultaneously attempting
to further his own at RST’s expense, and found him in
criminal contempt based upon his past conduct, that is, his
refusal to obey the trial court’s TRO and preliminary
injunction in failing to adhere to their terms including the
return of various company assets of RST.
(Emphasis added.) I disagree with this expansive reading of Adams Creek Assocs.
Adams Creek Assocs. held that a contemnor simultaneously may be found in civil and
criminal contempt at the same proceeding, provided he or she is punished for different
conduct. In my view, the emphasis should not be that both orders were “based upon
the defendants’ trespass on the exact same piece of land,” but that both orders were
based upon independently contemptible conduct—willful disobedience with a court
order and disparaging testimony threatening to disobey future court orders.
Here, unlike the defendants in Adams Creek Assocs., defendant neither
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Elmore, J., dissenting
testified that he intended to retain plaintiffs’ property nor that he would disobey
future orders of the court. Unlike in Adams Creek Assocs., the record here does not
reveal two forms of contemptible conduct. Rather, the trial court’s order indicates
that it imposed both forms of contempt against defendant for willful noncompliance
with its orders, basing its decision, in large part, upon defendant’s failure to return
company property, see N.C. Gen. Stat. § 5A-11(a)(3) (“Willful disobedience of,
resistance to, or interference with a court’s lawful process, order, directive, or
instruction or its execution.”), which I believe runs afoul of our general statutes.
Furthermore, the majority’s holding effectively nullifies the statutory
mandates that a party “shall not, for the same conduct” be punished for both civil and
criminal contempt, see N.C. Gen. Stat. §§ 5A-12(d), -21(c), as every party charged with
willful noncompliance of a court order whose only conduct was leaving uncorrected a
single directive in that order would nonetheless be subject to both criminal and civil
contempt, on the basis that past and continued violations of that order constitute
separate, contemptible conduct.
Because the trial court here punished defendant twice by imposing both civil
and criminal contempt sanctions against him based, in large part, upon the same
exact conduct—violating its orders by failing to return company property—I believe
the trial court violated the statutory mandates prohibiting it from finding a party in
both forms of contempt for the same conduct. Therefore, I respectfully dissent.
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