An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-1034

Filed: 3 August 2004


        v.                             Mecklenburg County
                                     No. 92 CVD 9547
(now FLYNN),

(formerly REYNOLDS),

     v .                               Mecklenburg County
                                     No. 93 CVD 13114

    Appeal by David P. Reynolds from order entered 18 February 2003 by Judge Jane V. Harper in Mecklenburg County District Court. Heard in the Court of Appeals 28 April 2004.

    Horack, Talley, Pharr & Lowndes, P.A., by Thomas R. Cannon and Kary C. Watson, for Reynolds appellant.

    James, McElroy & Diehl, P.A., by William K. Diehl, Jr., and Preston O. Odom, III, for Flynn appellee.

    McCULLOUGH, Judge.

    David P. Reynolds (“Reynolds”) appeals from an order which found him in civil contempt, and called for his arrest and incarceration pending the payment of past due child support and attorney fees to his opponent's counsel.
    This is the second time this case is before us. A detailedsummary of the facts giving rise to this appeal is set forth in our first opinion, Reynolds v. Reynolds, 147 N.C. App. 566, 557 S.E.2d 126 (2001), rev'd per curiam, 356 N.C. 287, 569 S.E.2d 645 (2002). However, a brief summary of the pertinent facts is necessary to provide context for the issues now on appeal.
    This litigation began after the marriage, separation, and divorce of Reynolds and Cynthia Flynn (“Flynn”). On 30 August 1999, the trial court issued an order finding Reynolds in criminal contempt for failing to pay child support. The trial court also ordered Reynolds to pay $65,000.00 in attorney fees to Flynn's counsel. Both parties stipulated that of this award, “$10,000.00 represents time related to the contempt portion of this case and the remaining $55,000.00 to other issues (custody and visitation).”     Reynolds appealed the August 1999 order to this Court, and while that appeal was pending, Flynn obtained two additional orders finding him in continuing civil contempt for failing to pay child support.
    In ruling on Reynolds' appeal, Judge John wrote a dissent that our Supreme Court later adopted. Reynolds, 147 N.C. App. at 576- 81, 557 S.E.2d at 132-35. Judge John explained that this Court lacked jurisdiction to consider Reynolds' appeal from the criminal contempt portion of the August 1999 order. Id. at 581, 557 S.E.2d at 135. Judge John also upheld the $10,000.00 fee award. Id. at 580, 557 S.E.2d at 135. He cited the May 1999 order's prevailing party attorney fee provision and a consent order in which the parties agreed “that if a contempt citation is successfully broughtby either party against the other, the losing party shall be required to pay the reasonable counsel fees of the prevailing party.” Id. at 580, 557 S.E.2d at 135.
    On 12 November 2002, one month after our Supreme Court issued its opinion, Flynn filed another motion for contempt. Flynn's motion alleged that Reynolds was in contempt of several court orders.
    The trial court held a hearing on 7 January 2003; Reynolds did not personally attend, but was represented by his counsel. During the hearing, the trial court considered testimonial and documentary evidence. On 18 February 2003, the trial court entered an order holding Reynolds in “civil contempt.” The February 2003 order noted that the August 1999 order remained in effect; this included the provisions requiring Reynolds to pay “legal fees of $65,000 plus interest to Mr. Diehl.”
    With regard to attorney fees, the February 2003 order determined that the value of Flynn's counsel's services “for the period of time from July 1999 to the current dates is no less than $100,000[,]” including services performed during the appellate proceedings directly related to the August 1999 order. The trial court ordered Reynolds to pay Flynn $94,000.00 as a condition to purge his civil contempt.
    Reynolds appeals. On appeal, Reynolds argues that the trial court erred in ordering him to reimburse Flynn for attorney fees. Flynn has responded by filing a motion for sanctions against Reynolds and his counsel. We affirm the decision of the trialcourt and deny the motion for sanctions.

I. Reynolds' Assignment of Error
    “According to the doctrine of the law of the case, once an appellate court has ruled on a question, that decision becomes the law of the case and governs the question both in subsequent proceedings in a trial court and on subsequent appeal.” Weston v. Carolina Medicorp, Inc., 113 N.C. App. 415, 417, 438 S.E.2d 751, 753 (1994). “Furthermore, under general rules of estoppel by judgment, plaintiff is similarly precluded from relitigating an issue adversely determined against him.” Id. at 418, 438 S.E.2d at 753. In at least one case, our Supreme Court has noted that a prior decision of the Court of Appeals was res judicata and the law of the case, even though it had been overturned later. Save Our Rivers, Inc. v. Town of Highlands, 341 N.C. 635, 638, 461 S.E.2d 333, 335 (1995).
    Throughout his brief, Reynolds argues that awarding attorney fees was improper because no statute authorized the taxing of such fees. In making his argument, Reynolds relies heavily on M.G. Newell Co. v. Wyrick, 91 N.C. App. 98, 370 S.E.2d 431 (1988). This case determined that attorney fees were permitted “only when authorized by statute.” Id. at 102, 370 S.E.2d at 434.
    However, Judge John and our Supreme Court expressly rejected this position in the first appeal. Their decision was based on this Court's ruling in a case that was decided after Wyrick. In PCI Energy Services v. Wachs Technical Services, 122 N.C. App. 436, 442, 470 S.E.2d 565, 568 (1996), attorney fees were properlyawarded in a contempt proceeding where an earlier consent judgment contained an express provision allowing for the recovery of costs associated with enforcing the judgment. As was the case in PCI, “the parties [in the first Reynolds appeal] had previously agreed in the 5 May 1999 consent order that if a contempt citation is successfully brought by either party against the other, the losing party shall be required to pay the reasonable counsel fees of the prevailing party.” Reynolds, 147 N.C. App. at 580, 557 S.E.2d at 135.
    We reject Reynolds' argument that Wyrick controls the outcome of this case, because our appellate courts have already ruled that PCI, not Wyrick, is controlling. Therefore, under the law of the case doctrine, that decision is the law of the case and governs the question in this subsequent appeal. For these reasons, we dismiss this assignment of error and turn to consider Flynn's motion for sanctions against Reynolds and his counsel.
II. Motion for Sanctions    
    Flynn has made a motion for sanctions requesting that Reynolds and his counsel be held jointly and severally liable for reasonable costs and attorney fees. Pursuant to N.C.R. App. P. 34(a) (2004), this Court may impose sanctions “against a party or attorney or both when the court determines that an appeal or any proceeding in an appeal was frivolous[.]” There are three possible justifications for imposing sanctions:
            (1) the appeal was not well grounded in fact and warranted by existing law or a good faith argument for the extension,modification, or reversal of existing law;

            (2) the appeal was taken or continued for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;

            (3) a petition, motion, brief, record or other paper filed in the appeal was so grossly lacking in the requirements of propriety, grossly violated appellate court rules, or grossly disregarded the requirements of a fair presentation of the issues to the appellate court.

    We decline to impose sanctions in this case because our review of the appeal leads us to believe that it was not brought for an improper purpose. Reynolds' actions in failing to pay child support must be distinguished from the issues related to this appeal. While we agree that failing to pay child support is reprehensible, the parties were not debating whether Reynolds should pay child support. Instead, the parties' dispute dealt with attorney fees and the law of contempt.
    Our Supreme Court has described the law of contempt as “hazy at best.” O'Briant v. O'Briant, 313 N.C. 432, 434, 329 S.E.2d 370, 372 (1985). Moreover, the fact that there was a divided panel in the first Reynolds appeal reveals that this area of the law has generated confusion and disagreement. In this case, counsel for Reynolds engaged in zealous representation and presented a good faith argument to the Court. Although this argument was ultimately rejected, counsel was not prohibited from offering it. Accordingly, the motion for sanctions is denied.    After carefully reviewing the record, briefs, and arguments of the parties, we conclude that the trial court did not err in ordering Reynolds to reimburse Flynn for attorney fees. Furthermore, since we are not persuaded that the appeal was frivolous, the motion for sanctions is denied.
    Judges McGEE and TIMMONS-GOODSON concur.
    Report per Rule 30(e).    

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