Appeal by plaintiff from order filed 27 February 2003 by Judge
Clarence E. Horton, Jr. in Union County Superior Court. Heard in
the Court of Appeals 17 March 2004.
Harrington Law Firm, by James J. Harrington, for plaintiff-
James, McElroy & Diehl, P.A., by Richard S. Wright, for
Harald Ibele (plaintiff)
(See footnote 1)
appeals an order filed 27 February
2003 denying his motion to find Everette Tate d/b/a That's Wright
Aviation and Carolina Aero Service, L.L.C. (collectively
defendants) in contempt.
In a complaint dated 7 May 2001, plaintiff initiated a lawsuit
against defendants for breach of contract and unfair and deceptive
practices arising out of defendants' attempt to repair plaintiff'sairplane. Following the parties' participation in a mediated
settlement conference, a consent order, signed by the trial court
and the parties, was entered. In reflecting the parties'
agreement, the consent order stated:
1. . . . Defendant(s) shall pay . . .
[p]laintiff the sum of $5,000.00, and . . .
[p]laintiff shall file or cause to be filed a
voluntary dismissal with prejudice.
2. The aforementioned $5,000.00 shall be
paid within 120 days of May 1, 2002 unless
sooner paid by . . . [d]efendant(s), and shall
be paid in four equal monthly installments
commencing May of 2002.
3. Upon 48 hours notice to . . .
[d]efendant(s) or defense counsel by
[p]laintiff or his attorney, employees of
. . . [d]efendant(s) shall collect and assist
[p]laintiff in loading the disputed 1958
Cessna 175 airplane, two fuselages, and
related parts for removal from [d]efendant(s)'
premises. Plaintiff shall be entitled to
retain and dispose of the disputed 1958 Cessna
175 airplane, two fuselages, and related parts
as he sees fit.
. . . .
5. Plaintiff's voluntary dismissal with
prejudice shall be filed within seven days of
the entry of this Order.
. . . .
7. This Order shall be enforceable by the
contempt powers of this Court.
A stipulation of dismissal with prejudice dated 30 May 2002
was thereafter filed by the parties. In January 2003, plaintiff
filed a motion for contempt alleging defendants had failed to meet
all the requirements of the consent order. On 27 February 2003,
the trial court entered an order denying plaintiff's motion for
contempt on the basis that the parties voluntarily dismissed allof their claims with prejudice pursuant to a stipulation of
dismissal entered June 13, 2002.
The dispositive issue on appeal is whether the consent order
was subject to the contempt powers of the court.
Plaintiff argues on appeal that the trial court erred in
denying his motion for contempt based on the court's reasoning that
the parties' voluntary dismissal ended all claims between the
parties. Because we hold that the consent order was not
enforceable by contempt, we need not address this issue.
With respect to non-domestic causes of actions, this Court has
A consent judgment is the contract of the
parties entered upon the record with the
sanction of the court. Thus, it is both an
order of the court and a contract between the
parties. If a consent judgment is merely a
recital of the parties' agreement and not an
adjudication of rights, it is not enforceable
through the contempt powers of the court, but
only through a breach of contract action.
Potter v. Hilemn Labs., Inc.
, 150 N.C. App. 326, 334, 564 S.E.2d
259, 265 (2002) (citing Nohejl v. First Homes of Craven County,
, 120 N.C. App. 188, 190, 461 S.E.2d 10, 12 (1995)
and Crane v.
, 114 N.C. App. 105, 106, 441 S.E.2d 144, 144-45 (1994)); see
also Walton v. City of Raleigh
, 342 N.C. 879, 881, 467 S.E.2d 410,
411 (1996) ([a] consent judgment is a court-approved contract);
In re Will of Smith
, 249 N.C. 563, 568-69, 107 S.E.2d 89, 93-94
(1959) (a consent judgment is nothing more than a contract between
the parties, and [a] breach of contract is not punishable for
contempt). In this case, the consent order contains no findings of fact
or conclusions of law by the trial court and does therefore not
represent an adjudication of the parties' respective rights.
Instead, the trial court merely recited the parties' settlement
agreement. As a result, the consent order is not enforceable
through the contempt powers of the court.
(See footnote 2)
, 150 N.C. App.
at 334, 564 S.E.2d at 265.
We next address whether, in an attempt to overcome the general
law on consent orders, the parties could contract to be bound by
the contempt powers of the court, as paragraph seven of the consent
order specifically provided for enforcement by contempt. Our
Supreme Court has stated that a court's authority to hold a party
in contempt is part of the inherent powers of the court, see In re
Alamance County Court Facilities
, 329 N.C. 84, 94, 405 S.E.2d 125,
129 (1991) ([t]his Court has upheld the application of the
inherent powers doctrine to a wide range of circumstances, from
dealing with its attorneys, to punishing a party for contempt)
(citations omitted), and the exercise of inherent power by courts
of this state has been limited to matters discretely within the
judicial branch, id
. Moreover, [t]he purpose of the contempt
power . . . is to use the court's
power to compel [a] defendant to
comply with an order of the court
. Ferree v. Ferree
, 71 N.C. App.
737, 741, 323 S.E.2d 52, 55 (1984)
(emphasis added). As the
consent order in this case essentially represents a contract
between the parties, the court has no authority to exercise itsinherent contempt power, and the parties have no right to grant or
accept a power held only by the judiciary, which includes the
potential for imprisonment. See id
.; see also
, N.C.G.S. §
5A-11(a)(3), -21(b) (2003) (allowing for the possible application
of criminal contempt or civil contempt coupled with imprisonment to
the facts of this case).
Accordingly, the trial court did not err in denying
plaintiff's motion for contempt. Proper avenues for enforcement of
the consent order entered by the parties include: (1) an action for
breach of contract, (2) a motion in the cause to seek specific
performance of the consent order, and (3) an independent action for
a declaratory judgment on the parties' contract embodied in the
consent order. See Hemric v. Groce
, 154 N.C. App. 393, 397-98, 572
S.E.2d 254, 257 (2002).
Judges McCULLOUGH and ELMORE concur.