An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-238

NORTH CAROLINA COURT OF APPEALS

Filed: 20 January 2004

CLARA S. WIGGINS, (now
CLARA A. STALLINGS),
    Plaintiff                                Wake County
                                        No. 94 CVD 4728
v.

CHARLES TIMOTHY WIGGINS,
    Defendant

    Appeal by plaintiff from an order entered 23 May 2002 by Judge Jennifer M. Green in Wake County District Court. Heard in the Court of Appeals 19 November 2003.

    McFarlane Law Office, P.A., by Steven H. McFarlane, for plaintiff-appellant.

    Marshall Dubree & Taylor, by William E. Marshall; Brady, Nordgren, Klym & Morton, P.L.L.C., by Travis K. Morton, for defendant-appellee.

    HUNTER, Judge.

    Clara S. Wiggins (now Clara A. Stallings) (“plaintiff”) appeals from an order filed 23 May 2002 finding her in civil contempt of court. Because (1) there is sufficient evidence to support the trial court's findings and those findings support the conclusions of law, and (2) neither res judicata nor collateral estoppel bars defendant from enforcing an equitable distribution order, we affirm.
    Plaintiff and Charles Timothy Wiggins (“defendant”) were married on 17 June 1978, separated on 3 April 1995, and divorced on 1 November 1996. During their marriage, plaintiff and defendantowned and developed real property known as Summerfield Subdivision (“the subdivision”) located in Franklin County, North Carolina. On 10 June 1999, plaintiff and defendant entered into a consent order/judgment (“the judgment”) to equitably distribute their marital estate. Under the judgment, plaintiff received six lots in the subdivision as follows:
        The Plaintiff shall receive Lots 27 - 32 of [the subdivision]. The Defendant shall convey to the Plaintiff all his right, title and interest in said lots by North Carolina Special Warranty Deeds . . . . Plaintiff shall assume all responsibility for the subdivision, including, but not limited to, financial, paving and maintaining the roads, restrictive covenants, or any other obligations set out in any agreements signed by the Plaintiff and the Defendant with any homeowners. The document regarding the paving of the roads may have only been signed by the Defendant, however, Plaintiff agrees to be responsible for this obligation. The Plaintiff covenants to save the Defendant harmless on any liability for this subdivision. . . .

    By 13 April 2000, the roads in the subdivision had not been paved and a lawsuit was filed by the subdivision homeowners' association against defendant as the developer of the subdivision. An affidavit by plaintiff, dated 9 April 2000, and attached to the homeowners' association's complaint stated that plaintiff's “sole involvement in this endeavor [developing the subdivision] was in signing away my rights in the relevant properties to sign over the deed.” Defendant filed an answer and third party complaint against plaintiff based upon the provision in the judgment in which plaintiff covenanted to hold defendant harmless for any liability for the subdivision.    On 16 April 2001, the homeowners' association, plaintiff, and defendant entered into a consent order pursuant to a mediated settlement agreement. Under this settlement agreement, defendant and plaintiff were each given the option of purchasing outright from each other a separate parcel of real property that remained jointly held by them. If defendant purchased the land, plaintiff was required to use the proceeds towards paving the roads in the subdivision. If plaintiff purchased the land, the homeowners' association was to be given the right to an attachment against the land to fund the paving of the roads. In the event the roads were not suitably paved by 4 October 2001, the parcel of land would be granted to the homeowners' association.
    Defendant exercised his option to purchase the land outright for $75,000.00. This amount was insufficient to pay for the subdivision roads to be paved, and pursuant to the settlement agreement the parcel of land was granted to the homeowners' association. Defendant received his $75,000.00 back from plaintiff and ultimately repurchased the parcel of land from the homeowners' association for $150,000.00. Defendant subsequently filed a motion seeking an order for plaintiff to show cause why she should not be held in contempt of court for failing to comply with the judgment, in which she agreed to assume responsibility for paving the roads in the subdivision and to hold defendant harmless for any liability for the subdivision. An order to show cause was entered on 30 January 2002.    A hearing was held on 26 February 2002, at which plaintiff was not present but was represented by counsel. At this hearing, defendant testified that in addition to the $75,000.00 he had paid to re-acquire his portion of the parcel of land from the homeowners' association, he had also incurred other expenses, costs and attorneys' fees in defending himself as a result of plaintiff's failure to pave the roads and hold defendant harmless for any liability. Defendant testified that if sewer lines were attached to the six lots in the subdivision owned by plaintiff, the value of those lots would be $150,000.00 and if sewer lines were not attached the value of the lots would be $50,000.00 to $55,000.00. Following the hearing, the trial court entered the order filed 23 May 2002, from which plaintiff now appeals, finding plaintiff in civil contempt. In this order the trial court found:
        6.    A Consent Order/Judgment . . . was entered . . . on [10 June 1999], which, [remained] in force . . . .

        . . . .

        8.    The purpose of the [judgment] may still be served by compliance with the [judgment].

        . . . .

        10.    Plaintiff did not comply with paving the roads as required by the prior [judgment].

        11.    Pursuant to the prior [judgment], Plaintiff is responsible to hold Defendant harmless for any liability for the subdivision.

        12.    Plaintiff is able to take reasonable measures that would enable her to comply with the [judgment].
        13.    Defendant has incurred costs, expenses and attorney's fees in the total amount of Eighty-Five Thousand Five Hundred Two Dollars and Seventy-Seven Cents ($85,502.77) as a result of Plaintiff's inaction and should be fully indemnified.

        14.    The acts of Plaintiff have been willful and without legal justification or excuse and have been contemptuous of the prior [judgment] of this Court.

The trial court then concluded as a matter of law: “2. That Plaintiff's failure to comply with the [judgment] is willful and she is in civil contempt of [the trial court].” Consequently, the trial court ordered plaintiff to serve thirty days in the Wake County Jail, which was to be suspended upon plaintiff either paying defendant $85,502.77 or transferring property of equal value to defendant within forty-five days of the order.
    The issues are whether: (I) there is sufficient evidence to support the trial court's findings and those findings support the trial court's conclusion of law that plaintiff was in civil contempt, and (II) defendant is barred from enforcing the “save harmless” provisions of the judgment by res judicata and/or issue preclusion as a result of the consent order and mediated settlement agreement in the homeowners' association litigation.   (See footnote 1) 

I.
    “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.” Sharpe v. Nobles, 127 N.C. App. 705, 709, 493 S.E.2d 288, 291 (1997). N.C. Gen. Stat. § 5A-21(a) provides:
            (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.

N.C. Gen. Stat. § 5A-21(a) (2003).
    Plaintiff contends there is insufficient evidence to support the trial court's findings of fact. At the outset, we note that although plaintiff invites us to review finding of fact number 6 that the judgment remained in force, plaintiff failed to assign error to that finding; thus it is deemed supported by competent evidence and is binding on appeal. See Patterson v. Patterson, 137 N.C. App. 653, 662, 529 S.E.2d 484, 489 (2000).
A.

    Plaintiff first assigns error to the trial court's finding of fact number 8 that the purpose of the judgment would be served bycompliance with that judgment. The judgment provides that in return for plaintiff being granted sole ownership over the six subdivision lots she would assume all responsibility for the subdivision, including paving the roads, and hold defendant harmless for any liability resulting therefrom.
    The purpose of this agreement was thus to clearly delineate that the ownership and responsibilities of the subdivision and the six lots would be vested in plaintiff and, in return, defendant would be indemnified for any liability he incurred as a result of plaintiff's ownership. Thus, enforcing compliance with the “save harmless” clause of the judgment by requiring plaintiff to indemnify defendant would serve the purpose of the judgment.   (See footnote 2) 
B.

    Plaintiff also assigns error to the trial court's finding of fact number 12 that plaintiff was able to take reasonable measures to comply with the judgment.
    Holding a party in civil contempt requires that “a person have the present ability to comply with the conditions for purging the contempt before that person may be imprisoned for civil contempt.” McMiller v. McMiller, 77 N.C. App. 808, 809, 336 S.E.2d 134, 135 (1985). “[T]o satisfy the 'present ability' test defendant mustpossess some amount of cash, or asset readily converted to cash.” Id.
    The evidence in this case shows that plaintiff owned the six subdivision lots, which were worth up to $150,000.00, and in addition had other assets, including her interest in a retirement plan. Furthermore, plaintiff had the opportunity to present evidence but did not personally appear at the hearing, and instead was represented only by her attorney, and presented no direct evidence as to the value of the lots or her ability to otherwise comply with the order. Nevertheless, the trial court found that plaintiff's attorney stated that the subdivision lots had been mortgaged for $60,000.00. While acknowledging this is not evidence, plaintiff requests this Court, as she did the trial court, to take note of this assertion.
    Plaintiff's assertion, however, is of no aid to her position as, if anything, the fact that the lots had been pledged for $60,000.00 indicates the lots were valued at more than the approximately $50,000.00 - $55,000.00 figure put forth by plaintiff. The only other valuation of the lots that was in evidence before the trial court was that they would be worth as much as $150,000.00 as a result of the installation of the sewer lines to the property. As such, there is competent evidence to support the trial court's finding that plaintiff “is able to take reasonable measures . . . to comply with the Order.” Although it would have been preferable to make specific findings regarding plaintiff's present ability to pay, “the finding regarding 'presentmeans to comply' is minimally sufficient to satisfy the statutory requirement for civil contempt.” Adkins v. Adkins, 82 N.C. App. 289, 292, 346 S.E.2d 220, 222 (1986).
C.

    Plaintiff also challenges the trial court's finding of fact number 14 that her acts were willful, without legal justification or excuse and contemptuous of the judgment.
            “Willful” has been defined as “disobedience 'which imports knowledge and a stubborn resistance,' and as 'something more than an intention to do a thing. It implies doing the act purposely and deliberately, indicating a purpose to do it, without authority -- careless whether [the contemnor] has the right or not -- in violation of law . . . .'” Willfulness “involves more than deliberation or conscious choice; it also imports a bad faith disregard for authority and the law.”

Hancock v. Hancock, 122 N.C. App. 518, 523, 471 S.E.2d 415, 418 (1996) (citations omitted).
    The record in this case shows that after plaintiff was given ownership of the six lots in the subdivision she took no action to pave the roads. Subsequently, when the homeowners' association brought suit, plaintiff provided them with an affidavit stating under oath that her “sole involvement” in the subdivision was signing away her rights to the property as it was deeded to individual purchasers. This affidavit was dated almost a year after the entry of the judgment granting her the six lots and full responsibility over the subdivision. Plaintiff's affidavit inducing the homeowners' association to bring suit solely against defendant, her failure to take steps towards paving the roads, andfailure to indemnify or hold defendant harmless for her failure to pave the roads of the subdivision is all evidence of her willful failure to comply with the judgment. As such, there is competent evidence in the record to support the trial court's finding.
D.

    Plaintiff finally challenges the trial court's evidentiary findings contained in findings of fact numbers 10, 11 and 13 that plaintiff did not comply with paving the roads of the subdivision, that plaintiff was required to hold defendant harmless for any liability arising out of the subdivision, and that defendant incurred costs and expenses as a result of plaintiff's inaction and was entitled to indemnification.
    We note that it is clear that plaintiff failed to pave the roads in the subdivision and this is what led to the lawsuit filed by the homeowners' association. Furthermore, plaintiff claims that the mediated settlement in that lawsuit constituted a modification of the judgment, and thus the provisions of the judgment were no longer in force. As we have already noted, however, plaintiff has not assigned error to the trial court's finding that the judgment remained in force, and thus it is deemed supported by competent evidence on appeal. Therefore, the trial court did not err in finding that plaintiff was required to indemnify defendant under the judgment. Consequently, we conclude the trial court's findings are sufficient to meet the statutory requirements and accordingly support its conclusion of law that plaintiff was in civil contempt of court.
II.

    Plaintiff also argues that defendant is barred from enforcing the judgment through civil contempt proceedings based on res judicata and collateral estoppel, because of the resolution of the lawsuit filed by the homeowners' association against defendant, to which plaintiff was made a party. We disagree.
    In order for plaintiff to establish that defendant's present motion seeking an order for plaintiff to be held in civil contempt
is barred by res judicata, plaintiff must establish: “(1) the previous suit resulted in a final judgment on the merits, (2) the same cause of action is involved, and (3) both [s]he and [defendant] were either parties or are in privity with the parties of the prior action.” Beall v. Beall, 156 N.C. App. 542, 545, 577 S.E.2d 356, 359, appeal dismissed, 357 N.C. 249, 585 S.E.2d 754 (2003). In this case, defendant's third party complaint against plaintiff in the homeowners' association lawsuit sought indemnification from plaintiff for liability arising out of plaintiff's failure to pave the roads in the subdivision. In the subsequent motion to show cause filed by defendant in the equitable distribution proceeding, defendant was seeking to have plaintiff held in civil contempt for a willful failure to comply with the judgment. These separate cases involved two different causes of action and principles of res judicata do not apply. The third party complaint simply alleged a contractual right to indemnification, without any regard to whether plaintiff willfully failed to comply with the judgment or that she had the presentmeans to comply with the judgment. These two elements, as discussed above, are central to civil contempt and had not previously been litigated. Thus, defendant was not barred by principles of res judicata from seeking to have plaintiff held in civil contempt.
    Plaintiff further asserts that defendant is precluded from re- litigating the issue of whether he is entitled to indemnification from the suit by the homeowners' association by the consent order pursuant to the mediated settlement agreement in that case. In order to establish collateral estoppel, plaintiff is required to show:
        (1) the earlier action resulted in a final judgment on the merits, (2) the issue in question is identical to an issue actually litigated in the earlier suit, (3) the judgment on the earlier issue was necessary to that case, and (4) both parties are either identical to or in privity with a party or the parties from the prior suit.

Id.
    In this case, there is no indication that the issue of whether defendant was entitled to indemnification from plaintiff was an issue that was actually litigated. The mediated settlement agreement only resolved the homeowners' association's claims against plaintiff and defendant. It did not purport to resolve the claims and issues that existed between plaintiff and defendant. Instead, the homeowners' association, plaintiff, and defendant reached a settlement agreement that made the resolution of the indemnification issue unnecessary in that action. Thus, the contempt proceedings against plaintiff were not barred by eitherres judicata or collateral estoppel. Accordingly, the trial court did not err in holding plaintiff in civil contempt.
    Affirmed.
    Judges McGEE and GEER concur.
    Report per Rule 30(e).


Footnote: 1
     Although, the parties settled their equitable distribution actions through a “Consent Order/Judgment,” that consent order provided that it was binding on the parties as if it had been entered by a judge in open court and was enforceable by the trial court's contempt powers. Furthermore, plaintiff does not contend the trial court was without authority to use its contempt powers to enforce the judgment.
Footnote: 2
     Plaintiff argues that the judgment does not require indemnification, but instead only that plaintiff “save the Defendant harmless.” We fail to see how these terms are distinguishable. See Black's Law Dictionary, 737 (7th ed. 1999) (defining “hold harmless” as “[t]o absolve (another party) from any responsibility for damage or other liability arising from the transaction; INDEMNIFY. -- Also termed save harmless”).

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