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Adams Creek Associates v. Davis

Court of Appeals of North Carolina

January 16, 2018

ADAMS CREEK ASSOCIATES, Plaintiff,
v.
MELVIN DAVIS & LICURTIS REELS, Defendants.

          Heard in the Court of Appeals 6 September 2017.

         Appeal by defendants from order entered 13 June 2016 by Judge Benjamin G. Alford in Carteret County Superior Court No. 02 CVS 1270.

          The Armstrong Law Firm, P.A., by L. Lamar Armstrong, Jr. and L. Lamar Armstrong, III, for plaintiff-appellee.

          Hairston Lane, P.A., by James E. Hairston, Jr., for defendant-appellants.

          ELMORE, JUDGE.

         Brothers, Melvis Davis and Licurtis Reels (defendants), appeal from an order denying their motions for release from conditional incarceration for civil contempt. Defendants have been previously before this Court twice, unsuccessfully disputing an adjudication that Adams Creek Associates (plaintiff), not defendants, are the rightful owners of 13.25 acres of property along Adams Creek in Carteret County, and have unsuccessfully challenged two orders entered in 2006 and 2011 finding them in contempt of court. See Adams Creek Assocs. v. Davis, 186 N.C.App. 512, 652 S.E.2d 677 (2007), writ denied, disc. rev. denied, temp. stay dissolved, appeal dismissed, 362 N.C. 354, 662 S.E.2d 900 (2008) ("Adams Creek I"); Adams Creek Assocs. v. Davis, 227 N.C.App. 457, 459, 746 S.E.2d 1, 3, disc. rev. denied, 367 N.C. 234, 748 S.E.2d 322 (2013) ("Adams Creek II"). Defendants have been imprisoned for civil contempt since March 2011, after entry of the second contempt order, for failing to comply with court orders requiring them to remove their structures and equipment from Adams Creek Associates' property, and to cease trespassing upon it. In its 2011 contempt order, the superior court afforded defendants the opportunity to purge their contempt by (1) removing their structures and equipment from the property, and (2) attesting in writing to never again trespass. In this appeal, defendants challenge a 2016 order denying their motions for custodial release.

         In 2016, defendants moved for custodial release on the grounds that they were financially unable to comply with the contempt order and that their continued incarceration has become punitive and violates due process. But at the hearing on their motions, defendants testified that even if they were financially able to comply with the property-removal purge condition, they would not do so, and defendants again refused to comply with the attestation purge condition. Defendants' counsel also argued that because defendants were unable to comply with the order, their continued imprisonment has become a punitive contempt sanction. The trial court denied the motions. In its order, the trial court acknowledged that defendants presented evidence regarding their financial situation and the costs associated with removing the structures and equipment from the property, but refused to make findings on the matter in light of defendants' refusals to comply with either purge condition. The trial court also concluded that continued incarceration has not become punitive because defendants wield the power to purge their contempt but have recalcitrantly refused.

         On appeal, defendants contend the trial court erred by (1) failing to consider their alleged inability to comply with the contempt order, (2) failing to consider whether the purpose of the underlying order could still be served by defendants' continued incarceration, and (3) improperly concluding that their continued incarceration has not become a punitive criminal contempt. Because defendants were already ordered to be indefinitely committed until they purged their civil contempt when they filed their motions for release, the only issue properly before the trial court was whether defendants were subject to custodial release. Because defendants willfully refused to perform the attestation and admitted they would not perform the property-removal purge condition, even if they could, defendants failed to prove they purged their contempt or satisfy their burden of producing evidence to support their alleged inability-to-comply defense. We hold the trial court did not err in refusing to make futile findings on their alleged inability to comply with the prior order due to defendants' outright refusals to purge their contempt. Additionally, because the character of relief ordered by the contempt order was incarceration until compliance, and defendants were afforded the opportunity to avoid imprisonment by performing affirmative acts, we hold that the trial court properly concluded their continued incarceration has not become punitive. Accordingly, we affirm.

         I. Background

         The litigation relevant to this appeal started in 1982, when Shedrick Reels filed a trespass action against defendant Melvin Davis and Gertrude Reels, the mother of defendant Licurtis Reels. See Adams Creek I, 186 N.C.App. at 516, 652 S.E.2d at 680. In 1984, the trial court entered a summary judgment order adjudicating Shedrick to be the owner of the property and ordering Davis and Reels' mother not to trespass. See Adams Creek II, 227 N.C.App. at 459, 746 S.E.2d at 3. In 1985, Davis was held in contempt and incarcerated for his refusal to comply with that order, but he was released upon satisfying the purge condition of executing a document acknowledging the property belonged to Shedrick and agreeing not to trespass. Id. In 1985, Shedrick sold the property to Adams Creek Development, which then conveyed the property to plaintiff, Adams Creek Associates, in 1986. Id. at 459-60, 746 S.E.2d at 3.

         In 2002, plaintiff filed an action against defendants Davis and Reels, alleging they continued to claim an interest in the property and to trespass upon it. Id. at 460, 746 S.E.2d at 3-4. In 2004, the trial court entered a partial summary judgment order in plaintiff's favor, enjoining defendants from further trespassing and ordering them to remove their structures and equipment from the property ("2004 Summary Judgment Order"). Id. After defendants refused to comply, plaintiff moved to hold them in contempt. Id. After a show cause hearing, the trial court entered an order on 10 August 2006 finding defendants in civil contempt for failing to comply with the 2004 Summary Judgment Order, and in criminal contempt for testifying under oath that they did not intend to obey future orders to stay off the property ("2006 Contempt Order"). Adams Creek I, 512 N.C.App. at 520, 652 S.E.2d at 683.

         In 2006, defendants appealed the 2006 Contempt Order. Id. Defendants argued they were improperly found to be in both civil and criminal contempt for the same behavior. Id. at 526-27, 652 S.E.2d at 686-87. We disagreed and held that the trial court properly found defendants to be in both civil and criminal contempt for different acts. Id. at 527, 652 S.E.2d at 687 ("[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."). Defendants also attempted to challenge the 2004 Summary Judgment Order, but because their appeal from that order was not properly before us, we refused to address their challenges. Id. at 523, 652 S.E.2d at 684.

         In January 2011, plaintiff filed another motion to hold defendants in contempt for continuing to occupy the property and refusing to comply with court orders directing them not to trespass. Adams Creek II, 227 N.C.App. at 461, 746 S.E.2d at 4. After a hearing, the trial court entered an order on 31 March 2011 finding defendants in civil contempt for failing to comply with prior court orders, and ordering that defendants be incarcerated until they purged their contempt, see id., by (1) presenting evidence they removed their structures and equipment from the property, and (2) attesting in writing to never again trespass ("2011 Contempt Order"). Defendants have remained incarcerated since March 2011.

         In 2012, defendants appealed, among other orders, the 2011 Contempt Order and the 2004 Summary Judgment Order. See Adams Creek II, 227 N.C.App. at 462, 746 S.E.2d at 5. On appeal, defendants raised several challenges to the 2004 Summary Judgment Order that awarded plaintiff title to the property, and we affirmed that order. Id. at 462-67, 746 S.E.2d at 5-8. Defendants also challenged the 2011 Contempt Order on the basis that "it relied on the erroneous conclusion that Adams Creek is the rightful owner of the Waterfront Property." Id. at 470, 746 S.E.2d at 10 (footnote omitted). We ascertained that the actual issue presented was whether defendants were improperly found in civil contempt in 2011 for failing to comply with the 2004 Summary Judgment Order, id. at 470, 746 S.E.2d at 10, and concluded that "[b]ased on the evidence presented, the trial court properly found that defendants were able to comply with the 2004 Summary Judgment Order" and "[h]ence, defendants' noncompliance was willful." Id. at 471, 746 S.E.2d at 11. Accordingly, having affirmed the 2004 Summary Judgment Order and having determined that defendants remained in noncompliance with that order, we affirmed the 2011 Contempt Order. Id.

         On 1 June 2015, after having been incarcerated for four and a half years, defendants petitioned our Supreme Court for a writ of habeas corpus for their custodial release, which was denied three days later on 4 June 2015. See Davis v. Buck, ___ N.C. ___, 772 S.E.2d 707 (2015).

         On 4 May 2016, defendants filed the instant motions in the cause, seeking custodial release based upon their alleged inability to comply with the 2011 Contempt Order, and on the basis that their continued incarceration has become punitive and violates their due process rights. After a hearing at which defendants again refused to perform the attestation purge condition and admitted they would refuse to comply with the property-removal purge condition even if they were able, the trial court entered an order on 13 June 2016 denying their motions. Defendants now appeal from this 2016 order and have been in prison since entry of the 2011 Contempt Order.

         II. Analysis

         On appeal, defendants contend the trial court erred in denying their motions for custodial release by (1) failing to consider their alleged inability to comply with the 2011 Contempt Order, (2) failing to consider whether the purpose of the 2004 Summary Judgment Order could still be served by compliance, and (3) improperly concluding that their continued incarceration has not become punitive.

         A. Review Standard

         "The standard of review for contempt proceedings is limited to determining whether there is competent evidence to support the findings of fact and whether the findings support the conclusions of law." Gandhi v. Gandhi, ___ N.C.App. ___, ___, 779 S.E.2d 185, 188 (2015) (citation and quotation marks omitted). "Findings of fact made by the judge in contempt proceedings are conclusive on appeal when supported by any competent evidence and are reviewable only for the purpose of passing upon their sufficiency to warrant the judgment." Id. (citations and quotation marks omitted). Legal conclusions are reviewed de novo. Tucker v. Tucker, 197 N.C.App. 592, 594, 679 S.E.2d 141, 143 (2009) (citation omitted).

         B. Alleged Statutory Errors

         Defendants first contend the trial court erred by denying their motions for release on the ground that it failed adequately to consider their alleged inability to comply with the 2011 Contempt Order and, additionally, by failing to consider whether the purpose of the underlying order may still be served by compliance. Defendants' arguments miss the mark.

          N.C. Gen. Stat. § 5A-21(a) (2015) 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;
(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.

(Emphasis added.) "A person who is found in civil contempt may be imprisoned as long as the civil contempt continues, subject to . . . limitations" inapplicable here. N.C. Gen. Stat. § 5A-21(b) (2015) (emphasis added).

         "The purpose of civil contempt is not to punish but to coerce the defendant to comply with a court order." Spears v. Spears, ___ N.C.App. ___, ___, 784 S.E.2d 485, 494-95 (2016) (citation and quotation marks omitted). Thus, generally, before a trial court may impose punishment for civil contempt, it must determine that a defendant "ha[s] the present ability to comply, or the present ability to take reasonable measure that would enable him [or her] to comply, with the order." Id. at ___, 784 S.E.2d at 494 (citation and quotation marks omitted). However, "if a person is found in civil contempt for failure . . . to comply with a court order to perform an act that does not require the payment of a monetary judgment, the person may be imprisoned as long as the civil contempt continues without further hearing." N.C. Gen. Stat. § 5A-21(b) (emphasis added).

         In the 2011 Contempt Order, defendants were ordered to be confined indefinitely until they purged their contempt by (1) "presenting evidence . . . that [certain structures they own have] been removed completely from the property, " and (2) "confirm[ing] in writing [their] agreement to never again go onto the property." Because these acts do not require defendants to pay a monetary judgment, they may be subject to remain in prison "without further hearing." N.C. Gen. Stat. § 5A-21(b). Since defendants were already serving an indefinite, conditional prison sentence for civil contempt at the time their motions for release were filed, the trial court was not adjudicating an initial or continuing contempt, and thus had no inherent statutory obligation to consider any of N.C. Gen. Stat. § 5A-21(a)'s enumerations; rather, the issue for the trial court, which is the subject of our review, is whether defendants satisfied their burden of showing they were subject to release.

          N.C. Gen. Stat. § 5A-22(a) (2015) provides that "[a] person imprisoned for civil contempt must be released when his civil contempt no longer continues." Upon an incarcerated contemnor's motion, "the court must determine if he is subject to release and, on an affirmative determination, order his release." N.C. Gen. Stat. § 5A-22(b) (2015). Absent a showing that a contemnor purged their contempt, he or she may move for release based upon "a present inability to comply with the order . . . ." United States v. Rylander, 460 U.S. 752, 757, 103 S.Ct. 1548, 1552, 75 L.Ed.2d 521 (1983) (citations omitted); Turner v. Rogers, 564 U.S. 431, 442, 131 S.Ct. 2507, 2516, 180 L.Ed.2d 452 (2011) ("A court may not impose punishment in a civil contempt proceeding when it is clearly established that the alleged contemnor is unable to comply with the terms of the order." (citation and internal quotation marks omitted)). But "[i]t is settled, . . . that in raising this defense, the [contemnor] has a burden of production." Rylander, 460 U.S. at 757, 103 S.Ct. at 1552 (citations omitted). It follows that a contemnor cannot satisfy this burden by testifying that, even if they could comply with the order, they would not. Such a showing would vitiate the inability-to-comply defense.

         Here, defendants alleged in their motions that they were financially unable to comply with the 2011 Contempt Order. However, at the hearing, defendants readily admitted that they would not perform the property-removal purge condition, even if they could. ...


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