Heard in the Court of Appeals November 7, 2013.
Orange County. No. 12 CVD 755. Joseph M. Buckner, Judge.
No brief filed on behalf of plaintiffs-appellees.
Mary McCullers Reece for defendant-appellant (appeal from contempt order).
Joey Berry, defendant-appellant (appeal from order dismissing notice of appeal), Pro se.
For Tyll, Jennifer, et al, Appellee: Ann M. Vosburg, Leigh A. Peek, Attorney at Law, Hillsborough, NC.
GEER, Judge. Judges STEPHENS and ERVIN concur.
Appeal by defendant from orders entered 18 December
2012 by Judge Joseph M. Buckner in Orange County District Court.
Defendant Joey Berry appeals from the trial court's order holding him in contempt for violating a civil no-contact order entered pursuant to Chapter 50C of the General Statutes (the " 50C order" ) and from the trial court's order dismissing his notice of appeal from the 50C order. With respect to the order dismissing defendant's notice of appeal from the 50C order, defendant contends that the paper he filed was not actually a notice of appeal, but only a " notice of intent to appeal," such that it was not untimely filed
under the Rules of Appellate Procedure. We hold that whether the filing was a notice of appeal or a notice of intent to appeal, the trial court properly dismissed the filing as either untimely or a nullity.
With respect to the contempt order, defendant primarily argues that the trial court improperly ordered him to pay a fine to plaintiffs in order to purge himself of contempt. We hold that precedent authorizes a purge condition consisting of a fine payable to the complaining party. However, because the trial court failed to make findings that defendant had the present ability to comply with the purge condition, we reverse the fine and remand for further proceedings.
On 11 May 2012, plaintiffs Jennifer and David Tyll filed a verified complaint against defendant seeking a 50C order. David and Jennifer Tyll are husband and wife, and David Tyll is the brother of defendant's domestic partner, Michelle Willets.
The complaint alleged that defendant was disrespectful to Jennifer Tyll, David Tyll, and Michelle Willets' mother, Sharon Tyll, and as a result, plaintiffs told Ms. Willets that defendant was not welcome at " upcoming family events." Defendant then sent angry emails to plaintiffs and demanded that they come to South Carolina where defendant and Ms. Willets lived. When plaintiffs refused, defendant sent an email to David Tyll's employer " suggesting horrible defamatory things." Defendant told David Tyll over the phone that the email to David Tyll's employer was the " 'tip of the ice-berg.'" An email from Ms. Willets to Sharon Tyll stated that defendant, when " 'forced into a fight,'" believed in " 'total war'" and would not " 'back down . . . until [his] opponent [was] completely defeated.'"
On 23 May 2012, the trial court entered an order pursuant to N.C. Gen. Stat. § 50C-7 (2011) in which it found that plaintiffs " suffered unlawful conduct by the defendant" in that defendant sent " numerous emails to family members" and to David Tyll's employer that contained " references to war, death and never stopping, not following rules until your opponent is fully defeated," and that made " references to worst case scenarios." Based upon its findings, the court ordered defendant to, among other things, " not visit, assault, molest, or otherwise interfere with the plaintiffs or plaintiffs [sic] family." The order was effective until 23 May 2013.
On 7 September 2012, defendant, acting pro se, filed a document captioned " NOTICE OF APPEAL In Forma Pauperis." The filing stated that defendant " hereby gives notice of intent to appeal to the Court of Appeals of North Carolina" from the 50C order. The filing further stated: " The time for filing an appeal allowed by the NORTH CAROLINA RULES OF APPELLATE PROCEDURE having expired, the Defendant in this matter is preparing to petition the Honorable Court of Appeals of North Carolina for the writ of CERTIORARI in accordance with RULE 21 at the soonest point practical." Plaintiffs moved to dismiss defendant's notice of appeal under the Rules of Appellate Procedure, and the trial court entered an order dismissing defendant's notice of appeal as untimely on 18 December 2012.
On 11 October 2012, plaintiffs filed a verified motion to hold defendant in contempt of the 50C order. The motion alleged that defendant willfully violated the 50C order on 23 June 2012 by emailing plaintiffs' family member, Sharon Tyll. On 22 October 2012, defendant filed a " MOTION FOR PROCEEDING/APPEAL IN FORMA PAUPERIS," with an attached affidavit, requesting that the court " issue an order allowing the Defendant to proceed as an indigent" and appoint him counsel.
It appears that the Orange County Clerk of Superior Court summarily denied the motion on 23 October 2012 by handwriting " Motion is denied" on the motion itself and signing and refiling the motion. On 29 October 2012, defendant timely appealed the denial of his motion to proceed as an indigent to the district court pursuant to N.C. Gen. Stat. § § 7A-251(b) (2011) and 1-301.1(b) (2011).
On 2 November 2012, defendant filed a response to the contempt motion in which he admitted sending the email to Sharon Tyll, but disputed that the email was harassing and that the 50C order was specific enough to bar communication with Sharon Tyll. Defendant's
response also argued that the denial of his motion to proceed as an indigent, which forced him to file his response without the assistance of appointed counsel, violated his due process rights under the United States and North Carolina Constitutions.
Following an 11 December 2012 hearing on the contempt motion, at which defendant was not present, the trial court entered an order on 18 December 2012 holding defendant in contempt. The trial court found that defendant violated the 50C order by sending Sharon Tyll, a family member of plaintiffs, an email on 23 June 2012; that " the lawful purpose [of the 50C order] would still be served with compliance with same, i.e. the Defendant should continue to be restrained from any contact with Plaintiffs or their family" ; and that " Defendant is in willful contempt of said order, as he has the ability to comply with same and refrain from sending the email."
The court ordered that " [t]o purge himself of [the] contempt, Defendant shall pay to the Plaintiffs $2500.00 on or before January 11, 2013" and that " each individual violation of the May 23, 2012 [order] shall result in at least another $2500.00 purge for each violation." In addition, the order " further restrain[ed]" defendant by (1) preventing defendant from contacting plaintiffs, their employers, or their family members, other than Michelle Willets, by any means; (2) preventing defendant from posting any information about plaintiffs or their family members, other than Michelle Willets, on the internet; and (3) ordering defendant to remove any internet posts about plaintiffs or their family members, other than Michelle Willets, within seven days from entry of the order. Defendant timely appealed the contempt order to this Court.
On 22 January 2013, defendant, still acting pro se, filed a second " MOTION FOR PROCEEDING/APPEAL IN FORMA PAUPERIS," along with the same affidavit attached to his first motion to proceed as an indigent, again requesting that the trial court " issue an order allowing the Defendant to proceed as an indigent." On 23 January 2013, the Orange County Clerk of Superior Court entered an order allowing defendant to proceed as an indigent " [i]n accordance with NCGS § 1-288 and solely for the purposes stated therein."
Defendant filed a motion for appointment of appellate counsel on 11 April 2013. On 14 June 2013, the trial court entered an order appointing appellate counsel for defendant " with regards to any contempt motion or contempt orders." On 29 July 2013, defendant filed a pro se brief addressing his appeal from the dismissal of his notice of appeal from the 50C order, and defendant's appointed counsel filed a brief addressing his appeal from the contempt order.
We first address defendant's appeal from the dismissal of his " notice of appeal" from the 50C order. Defendant argues on appeal that the trial court erred in dismissing his notice of appeal as untimely under the Rules of Appellate Procedure because the filing was not actually a notice of appeal but was, rather, only a " notice of intent to appeal" that was not subject to the Rules of Appellate Procedure. Defendant further argues that since the trial court's order dismissing the notice of appeal relied upon the Rules of Appellate Procedure as grounds for dismissing the appeal, the court was without jurisdiction to dismiss the filing that, he argues, did not create a valid appeal and was not, therefore, subject to the appellate rules.
Defendant's " NOTICE OF APPEAL" purported to give " notice of intent to appeal" the 23 May 2012 50C order, but recognized that the time for taking an appeal had already expired. The notice, therefore, stated defendant was " preparing" to petition this Court for a writ of certiorari to review the 50C order.
Given that defendant's filing was captioned a " NOTICE OF APPEAL" and stated that defendant gave " notice of intent to appeal to the Court of Appeals of North Carolina," the trial court reasonably treated the filing as a notice of appeal. Assuming the filing was a notice of appeal, defendant admitted in the filing itself, and again recognizes on appeal, that the notice was untimely. See N.C.R. App. P. 3.
Although defendant argues that plaintiffs' motion to dismiss the appeal was improper since it was not supported by affidavits or certified copies of docket entries showing defendant took untimely action as required by Rule 25 of the Rules of Appellate Procedure, we believe that Rule 25's requirements for proof of the appellant's untimely action is satisfied when, as here, the notice of appeal itself expressly states that the appeal is untimely. The ...