in the Court of Appeals 6 September 2017.
by defendants from order entered 13 June 2016 by Judge
Benjamin G. Alford in Carteret County Superior Court No. 02
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
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.
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
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.
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.
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.
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.
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.
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
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).
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.
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.
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).
Alleged Statutory Errors
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
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
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).
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.
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.
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. ...