NO. COA01-459
NORTH CAROLINA COURT OF APPEALS
Filed: 19 March 2002
DAVID A. YOUNG,
Plaintiff,
v
.
MASTROM, INC.,
Defendant.
____________________
JOHN R. BEITH,
Plaintiff,
v.
MASTROM, INC.,
Defendant.
____________________
MASTROM, INC.,
Plaintiff,
v.
C. DAVID CARPENTER,
Defendant.
Appeal by plaintiffs David A. Young and John R. Beith and
defendant C. David Carpenter from order filed 12 January 2001 by
Judge William M. Neely in Moore County District Court. Heard in
the Court of Appeals 12 February 2002.
Cunningham, Dedmond, Petersen & Smith, L.L.P., by Bruce T.
Cunningham, Jr., for appellants, plaintiffs Young and Beith
and defendant Carpenter.
West & Smith, LLP, by Stanley W. West, for appellee,
plaintiff-defendant Mastrom, Inc.
GREENE, Judge.
David A. Young (Young), John R. Beith (Beith), and C. David
Carpenter (Carpenter) (collectively, Appellants) appeal an order
filed 12 January 2001 denying their motion to order G. MonroeWilson (Wilson) to show cause why an order of contempt should not
be issued against him for refusing to comply with previous orders
of the trial court.
In an order filed 21 September 1994, the trial court directed
Mastrom. Inc. (Mastrom) and Wilson to transfer a specified amount
into the accounts of Appellants. After Wilson and Mastrom
repeatedly failed to transfer the amounts, Wilson was found in
contempt on 11 October 1996. On behalf of Wilson, Mastrom appealed
the 11 October 1996 order to this Court. After finding
insufficient evidence to support a finding that Wilson was in
contempt of the 21 September 1994 order, this Court reversed the
trial court. Young v. Mastrom, 129 N.C. App. 425, 502 S.E.2d 437
(1998) (unpublished).
On 19 August 1998 and on 19 February 1999, Appellants filed
motions requesting the trial court to issue an order requiring
Wilson to appear and show cause why an order for contempt should
not be entered against him for failure to comply with the trial
court's previous orders. After allowing the parties time to
conduct additional discovery, the trial court considered all items
of record
(See footnote 1)
and concluded “that there [was] no showing, as required
by N.C.G.S. [§] 5A-21, that [Wilson] ha[d] the present ability to
comply with the order of the [trial] [c]ourt dated September 21,1994.” The trial court denied the motion of Appellants for a show
cause order.
________________________________
The dispositive issue is whether the trial court applied the
correct standard in denying Appellants' motion for a show cause
order.
Appellants argue “the trial court erred in denying [their]
motion for [an] order to show cause due to a failure to satisfy
[N.C.G.S. §] 5A-21.” We agree.
To initiate a proceeding for civil contempt under N.C. Gen.
Stat. § 5A-23(a), an interested party must move the trial court to
issue an order or notice to the alleged contemnor “to appear at a
specified reasonable time and show cause why he should not be held
in civil contempt.”
(See footnote 2)
N.C.G.S. § 5A-23(a) (Supp. 2000). The order
or notice may only “be issued on the motion and sworn statement or
affidavit of one with an interest in enforcing [a previous] order
. . . and a finding by the judicial official of probable cause to
believe there is civil contempt.”
Id. “Probable cause refers to
those facts and circumstances within [the judicial official's]
knowledge and of which he ha[s] reasonably trustworthy information
which are sufficient to warrant a prudent man in believing that”
the alleged contemnor is in civil contempt.
See State v. Williams,
314 N.C. 337, 343, 333 S.E.2d 708, 713 (1985) (defining probablecause in relation to an arrest warrant). Once an order or notice
is issued to show cause, the alleged contemnor can only be held in
contempt upon a showing, among other things, that he has the
present ability to comply with the trial court's order.
McMiller
v. McMiller, 77 N.C. App. 808, 809, 336 S.E.2d 134, 135 (1985);
N.C.G.S. § 5A-21(a)(3) (1999).
In this case, Appellants moved for an order to be issued to
Wilson to appear and show cause why he should not be held in
contempt of the 21 September 1994 order. After a hearing on
Appellants' motion, the trial court concluded no showing had been
made under N.C. Gen. Stat. § 5A-21 and denied Appellants' motion
for a show cause order. The trial court, however, was only
required to determine, pursuant to section 5A-23(a), whether,
considering all the facts and circumstances presented, the
information contained in the motion and the record was sufficient
to warrant a prudent person to believe Wilson had the present
ability to comply with the 21 September 1994 order. Accordingly,
as the trial court used the incorrect standard in denying
Appellants' motion for a show cause order, this case must be
remanded to the trial court to determine, using the standard set
out in section 5A-23(a), whether a show cause order should be
issued to Wilson.
(See footnote 3)
Reversed and remanded.
Judges McGEE and THOMAS concur.
Footnote: 1