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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the
print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
GILBERT HEMRIC and VANN HEMRIC, Plaintiffs, v. DONALD GROCE and
BETTY GROCE, Defendants
Filed: 15 March 2005
1. Appeal and Error_bench trial_standard of review
In reviewing the findings from a bench trial, the Court of Appeals reviews matters of law
de novo and reviews matters of fact for any competent supporting evidence, whether or not there
is contradictory evidence of any one fact.
2. Agriculture_lease of farm and tobacco allotments_duration
There was testimony in a bench trial supporting the trial court's finding that a consent
judgment reflected the agreement of the parties that a lease of two farms and tobacco allotments
would terminate by 1 December 1999 and not extend into 2000.
3. Agriculture_lease of farms and tobacco allotments_overproduction of tobacco
In a bench trial involving the lease of two farms and tobacco allotments, there was
evidence supporting a finding that plaintiffs had overproduced 11,500 pounds of tobacco on one
of the farms. Defendant did not take exception to that finding and it is binding on appeal.
4. Agriculture_lease of farms and tobacco allotments_marketing cards_expiration of
The trial court erred by concluding that defendants breached their contract arising out of
the consent judgment regarding the lease of two farms and tobacco allotments by not delivering
the year 2000 marketing cards. Although these parties clearly contemplated the possible sale of
tobacco grown on defendants' lands after 1 December 1999, nothing in the consent judgment or
lease agreement suggests an intention of the parties to agree that defendants accepted any
responsibility or obligation to turn over their 2000 marketing cards to plaintiffs to procure the
sale of the overproduced tobacco after expiration of the lease in 1999.
5. False Imprisonment_contempt to enforce consent judgment_insufficient
The findings supported the trial court's conclusion that defendants failed to prove a cause
of action for false imprisonment arising from a show cause order to enforce a consent judgment
concerning farm leases and tobacco allotments. The trial court's finding that defendant Donald
Groce consented to his imprisonment by failing to deliver to plaintiffs the year 2000 tobacco
marketing cards, unsupported by the evidence, was not necessary to support the trial court's
conclusion that defendants failed to prove an intentional or unlawful detention by
6. Abuse of Process_evidence not sufficient_false imprisonment claim
The trial court did not err by concluding that plaintiffs did not commit an abuse of
process in an action concerning the lease of two farms and tobacco allotments where defendants
did not identify any evidence that plaintiffs maliciously abused the legal process.
Appeal by defendants from order and judgment entered 29
September 2003 and order entered 26 November 2003 by Judge Russell
G. Walker, Jr., in Yadkin County Superior Court. Heard in the
Court of Appeals 21 October 2004.
Finger, Parker, Avram & Roemer, L.L.P., by Raymond A. Parker
and Andrew G. Brown, for plaintiffs-appellees.
Hendrick & Bryant, L.L.P., by Matthew H. Bryant, for
Donald Groce and Betty Groce (collectively, defendants)
appeal from an order and judgment entered following a bench trial
finding defendants breached their contract with Gilbert Hemric and
Vann Hemric (collectively, plaintiffs). The trial court also
denied defendants' claims for abuse of process and false
imprisonment. We affirm in part, reverse in part, and remand.
The uncontroverted findings of fact show that in 1997,
plaintiffs leased two Yadkin County farms, one owned by Donald
Groce and one owned by Betty Groce, together with their
corresponding tobacco allotments to raise and harvest a tobacco
crop. The written agreement originally expired on 15 November
1997. The parties orally agreed to extend it for the 1998
agricultural year. After the end of the 1998 crop year, plaintiffs
expended time, labor, and money to prepare defendants' farms for
planting a third crop of tobacco in 1999. Defendants, however,
refused to lease their farms to plaintiffs for the 1999
Plaintiffs instituted an action in Yadkin County District
Court, which resulted in a settlement evidenced by a memorandum of
judgment and subsequent consent judgment entered. These judgements
allowed plaintiffs to plant and harvest a tobacco crop during the
1999 agricultural year for a rent of 52.5 cents per pound of
tobacco sold payable to defendants. The consent judgment, signedby all parties, stated, If some tobacco grown on the property of
the defendants by the plaintiffs in the year 1999 is not sold
before November 15, 1999, plaintiffs shall pay defendants their
52.5 cents ($0.525) per pound when said tobacco is sold.
Plaintiffs overproduced their tobacco allotment in 1999. In
August 2000, plaintiffs sought to obtain defendants' tobacco
marketing cards for 2000 (2000 marketing cards) in order to sell
the surplus. Following a hearing, the Yadkin County Farm Service
Agency refused to issue defendants' marketing cards to plaintiffs
because regulations required the marketing cards to be issued
separately to the operator of [the farms].
Plaintiffs subsequently filed a motion to show cause against
defendants. The trial court entered an order requiring defendants
to appear before the trial court and to show cause why you should
not be held in civil and/or criminal contempt for willful refusal
to comply with the [memorandum of judgment and consent order] filed
in this action . . . . Following the hearing, the trial court
entered an order concluding that
the tobacco grown by plaintiffs on
defendants['] farm could not be sold without
the sales cards of the defendants . . . .
[and] any refusal by the defendants to allow
the plaintiffs to use the tobacco sales cards
for tobacco grown by the plaintiffs on
defendants' lands in the year 1999 would
violate a clear and reasonable intent of the
consent judgment signed by the parties . . . .
The trial court ordered defendants to turn over [the tobacco
cards] to the plaintiffs . . . to sell the tobacco . . . . Betty
Groce allowed plaintiffs to use her 2000 marketing card to sell
2,500 pounds of the excess 1999 production from her farm. Defendants appeared before the trial court on 9 October 2000.
The trial court ordered Donald Groce to make available to the
plaintiffs his tobacco sales cards . . . on or before Noon on
November 1, 2000 or to report to the Yadkin County Jail . . . .
The trial court ordered Betty Groce to turn over to the plaintiffs
on or before November 1, 2000 tobacco sales cards necessary for the
plaintiffs to sell a total of 3,200 pounds of tobacco. . . [or] her
inaction could be subject to further hearings in this matter . . .
. Betty Groce was not held in civil contempt because she had
complied with the trial court's earlier order to the extent she
authorized plaintiffs to sell 2,500 pounds of tobacco on her 2000
marketing card. Donald Groce refused to allow plaintiff to use his
2000 marketing card and presented himself to the Yadkin County
Sheriff on 1 November 2000. He was incarcerated in the county jail
for thirteen days.
Plaintiffs were unable to sell the over allotment tobacco.
Plaintiffs filed a complaint in Yadkin County Superior Court on 10
January 2001 seeking compensatory and punitive damages caused by
defendants' failure to relinquish their 2000 marketing cards.
Defendants answered and asserted several defenses, along with a
counterclaim for abuse of process and false arrest. On 2 August
2001, defendants moved for relief from judgment regarding the 9
October 2000 order arising out of the consent judgment action and
for summary judgment with respect to plaintiffs' action to recover
damages. The trial court denied both motions, and defendants
We addressed defendants' initial appeal in Hemric v. Groce,
154 N.C. App. 393, 572 S.E.2d 254 (2002) (Hemric I). In HemricI, this Court affirmed the trial court's denial of defendants'
motion for summary judgment and reversed the trial court's denial
of defendants' motion for relief from the judgment. Id. We held
the trial court did not possess the authority to enforce the
parties' consent judgment through a finding of contempt and
remanded the case to vacate the contempt orders. Id.
Following a trial without a jury, the trial court entered an
order and judgment awarding plaintiffs $15,122.50 plus interest and
denying defendants claims for false imprisonment and abuse of
process. Defendants appeal.
The issues are whether the trial court erred by: (1) entering
findings of fact numbered 4, 5, 7, 8, and 13, which defendants
argue are not supported by the evidence; (2) concluding defendants
breached their contract with plaintiffs by failing to deliver their
2000 marketing card to plaintiffs when the memorandum of judgment
does not provide any rights to defendants' marketing cards; (3)
failing to find the memorandum of judgment is ambiguous and
ignoring undisputed extrinsic evidence of the parties' intent; (4)
failing to consider the extrinsic evidence regarding the
negotiation of the memorandum of judgment and the undisputed
purpose of the parties' agreement; (5) concluding that Betty Groce
breached her contract when plaintiffs did not plead her liability
for the pounds from Donald Groce's farm and the trial court found
that Betty Groce permitted plaintiffs to sell 2,500 pounds of
tobacco on her 2000 marketing card; (6) concluding Donald Groce was
unlawfully detained by plaintiffs; and (7) concluding plaintiffs
did not commit an abuse of process.
III. Findings of Fact
Defendants contend no evidence supports the trial court's
findings of fact number 4, 5, 7, 8, and 13. At the outset, we note
that defendants failed to present any argument or authority to
support its assignment of error regarding findings number 4, 5, and
7 and they are deemed abandoned. N.C.R. App. P. 28(b)(6) (2004).
 As to findings in a bench trial, we review matters of law
de novo; we review matters of fact for any competent evidence of
record to support the trial court's findings of fact and
conclusions of law, whether or not contradictory evidence as to any
one fact exists. State Farm Fire & Cas. Co. v. Darsie, 161 N.C.
App. 542, 548-49, 589 S.E.2d 391, 397 (2003) (citing Graham v.
Martin, 149 N.C. App. 831, 561 S.E.2d 583 (2002)), disc. rev.
denied and rev. dismissed, 358 N.C. 241, 594 S.E.2d 194 (2004).
Findings of fact numbers 8 and 13 are matters of fact and must be
supported by competent evidence admitted before the trial court.
 In finding number 8, the trial court found:
8. The Consent Judgment clearly reflects the
agreement of the parties that there would
be no lease of Defendants' lands by the
Plaintiffs for the 2000 crop year[,]
which began on December 1, 1999
The consent judgment, signed by the parties and their attorneys,
Both parties acknowledge that any and all
lease agreements shall upon the signing of
this Judgment terminate not later than
November 15, 1999 and shall not extend into a
new agricultural year beginning December 1,
1999 and there shall be no extension of the
present lease beyond December 1, 1999.
At trial, Gilbert Hemric admitted on cross-examination that he
understood [his] lease was over with . . . Mr. Groce - at the endof November 15, 1999. Vann Hemric was asked whether he
understood that [his] tobacco - [his] farm and tobacco lease with
the Groces was over in 1999? He responded, I understood that the
farm lease was over and tobacco [sic] I think I could see what I
had left over. Further, Donald Groce acknowledged on direct
examination, we had a contract for November 15 at the end of the
15th, the contract was over. This testimony supports the trial
court's finding that the consent judgment reflects that the
parties' lease would terminate by 1 December 1999 and not extend
 Defendants also contend the trial court's finding number
13 is unsupported by the evidence. It states:
13. That Plaintiffs could have sold the
11,500 pounds of tobacco which was over-
produced on Donald Groce's farm in 1999,
had Donald Groce allowed Plaintiffs to
use his 2000 marketing card and could
have done so for a price substantially
equivalent to the price obtained upon the
sale of the excess poundage from Betty
Groce's farm . . .
Defendants argue that because plaintiffs overproduced 182,081
pounds from all the farms they leased and the tobacco was stored in
barns in unmarked bales, there was no way to determine what amount,
if any, was overproduced on defendants' farm. Defendants, however,
failed to take exception to finding of fact number 14, which
states, the 11,500 pounds of excess production on the Donald Groce
farm has deteriorated . . . .
Where no exceptions have been taken to the findings of fact,
the findings are presumed to be supported by competent evidence and
are binding on appeal. K&S Enters. v. Kennedy Office Supply Co.,
135 N.C. App. 260, 267, 520 S.E.2d 122, 127 (1999) (citationomitted), aff'd, 351 N.C. 470, 527 S.E.2d 644 (2000). Finding
number 14, which is binding, supports that portion of the trial
court's finding in number 13 that plaintiffs overproduced 11,500
pounds of tobacco on Donald Groce's farm.
The challenged findings are supported by the evidence. This
assignment of error is overruled.
IV. Consent Judgment
 Defendants contend the trial court erred by concluding
they breached their contract arising out of the consent judgment
with plaintiffs by failing to deliver the 2000 marketing cards. We
A. Standard of Review
The general rule is that a consent judgment is the contract
of the parties entered upon the record with the sanction of the
court. Crane v. Green, 114 N.C. App. 105, 106, 441 S.E.2d 144-45
(1994) (citing Armstrong v. Insurance Co., 249 N.C. 352, 106 S.E.2d
The consent judgment is a contractual
agreement and its meaning is to be gathered
from the terms used therein, and the judgment
should not be extended beyond the clear import
of such terms. However, to interpret the
nature and import of the consent judgment more
precisely, courts are not bound by the four
corners of the instrument itself. The
agreement, usually reflecting the intricate
course of events surrounding the particular
litigation, also should be interpreted in the
light of the controversy and the purposes
intended to be accomplished by it.
Price v. Horn, 30 N.C. App. 10, 16, 226 S.E.2d 165, 168-69
(internal citations and quotations omitted), cert. denied, 290 N.C.
663, 228 S.E.2d 450 (1976). Our review of an appeal from a trial court's order finding a
breach of a contract through a violation of a consent judgment is
Where the plain language of a consent judgment
is clear, the original intention of the
parties is inferred from its words. The trial
court's determination of original intent is a
question of fact. On appeal, a trial court's
findings of fact have the force of a jury
verdict and are conclusive if supported by
competent evidence. The trial court's
determination of whether the language in a
consent judgment is ambiguous, however, is a
question of law and therefore our review of
that determination is de novo.
Potter v. Hilemn Labs., Inc., 150 N.C. App. 326, 331, 564 S.E.2d
259, 263 (2002) (internal citations and quotation omitted).
Following a bench trial, the trial court found that the
Consent Judgment clearly reflects that the parties contemplated
the possibility that all the tobacco raised might not be sold by
November 15, 1999, and also clearly states their mutual agreement
that the agreed upon price would be paid on any unsold tobacco when
that tobacco was eventually sold. Usage of the term clearly
states indicates the trial court's ruling that the consent
judgment was not ambiguous as to this issue. We review this
finding de novo. Potter, 150 N.C. App. at 331, 564 S.E.2d at 263.
B. Plain Language
'An ambiguity exists where the language of a contract is
fairly and reasonably susceptible to either of the constructions
asserted by the parties.' Id
. (quoting Glover v. First Union
, 109 N.C. App. 451, 456, 428 S.E.2d 206, 209 (1993)).
Where the language of a contract is plain and
unambiguous, the construction of the agreement
is a matter of law; and the court may notignore or delete any of its provisions, nor
insert words into it, but must construe the
contract as written, in the light of the
undisputed evidence as to the custom, usage,
and meaning of its terms.
Martin v. Martin, 26 N.C. App. 506, 508, 216 S.E.2d 456, 457-58
(1975) (citation omitted). 'If the plain language of a contract
is clear, the intention of the parties is inferred from the words
of the contract.' Potter, 150 N.C. App. at 334, 564 S.E.2d at 264
(citations omitted) (quoting Walton v. City of Raleigh, 342 N.C.
879, 881, 467 S.E.2d 410, 411 (1996)).
The consent judgment, signed by all parties, provided:
1. Plaintiffs shall pay to the defendants on
or before the 15th day of November, 1999
the sum of 52.5 cents ($0.525) per pound
for all tobacco raised on defendants'
properties and sold in 1999. If some
tobacco grown on the property of the
defendants by the plaintiffs in the year
1999 is not sold before November 15,
1999, plaintiffs shall pay defendants
their 52.5 ($0.525) per pound when said
tobacco is sold.
The plain language of the Consent Judgment supports the trial
court's finding that the parties clearly . . . contemplated the
possibility that all the tobacco raised might not be sold by
November 15, 1999, and . . . that the agreed upon price would be
paid . . . when that tobacco was eventually sold . . . . See
Potter, 150 N.C. App. at 334, 564 S.E.2d at 264.
The consent judgment reflects the parties intended the lease
to terminate no later than 1 December 1999 and states:
4. Both parties acknowledge that any and all
lease agreements shall upon the signing
of this Judgement terminate not later
than November 15, 1999 and shall not
extend into a new agricultural year
beginning December 1, 1999 and there
shall be no extension of the present
lease beyond December 1, 1999.
The plain language supports the trial court's finding that the
Consent Judgment clearly reflects the agreement of the parties
that there would be no lease of Defendants' lands by the Plaintiffs
for the 2000 crop year which began on December 1, 1999 . . . .
C. Breach of Contract
In proving a breach of contract, the plaintiff must show:
(1) existence of a valid contract and (2) breach of that
contract. Poor v. Hill, 138 N.C. App. 19, 29, 530 S.E.2d 838, 845
(2000). The parties here do not dispute the validity of the
The trial court concluded defendants' refusal to turn over the
2000 marketing cards constituted a breach of contract. This
conclusion of law is not supported by the trial court's findings.
The trial court found the lease was to expire on 1 December
1999, based on the consent judgment's provision that any and all
lease agreements would terminate no later than 1 December 1999.
The trial court made no findings that the parties agreed or
intended that defendants would provide their marketing cards to
plaintiffs for any year following expiration of the lease on 1
December 1999. Further, the lease agreement is silent on and makes
no provision regarding plaintiffs' permission or entitlement to use
the marketing cards following termination of the lease.
Were we to presume an ambiguity in the Consent Judgment, the
trial court's findings are still inadequate to support its
conclusion. Where an ambiguity exists, [t]he object of contract
construction is to ascertain the intention of the parties 'from the
expressions used, the subject matter, the end in view, the purposesought, and the situation of the parties at the time.' Silver v.
Board of Transportation, 47 N.C. App. 261, 268, 267 S.E.2d 49, 55
(1980) (quoting Electric Co. v. Insurance Co., 229 N.C. 518, 520,
50 S.E.2d 295, 297 (1948)).
Although the parties clearly contemplated the possible sale
of tobacco grown on defendants' lands after 1 December 1999,
nothing in the consent judgment or lease agreement suggests the
intention of the parties to agree that defendants accepted any
responsibility or obligation to turn over their 2000 marketing
cards to plaintiff to procure the sale of the overproduced tobacco
after expiration of the lease in 1999. Silver, 47 N.C. App. at
268, 267 S.E.2d at 55. No findings were made regarding whether
plaintiffs were entitled to the 2000 marketing cards as a result of
the lease agreement or consent judgment.
The trial court found and competent evidence shows the parties
intended the lease to extend no further than 1 December 1999. The
trial court's order purports to extend this lease into the year
2000 by concluding defendants breached a contract by failing to
turn over the 2000 marketing cards. This conclusions is
unsupported by the findings of fact or any evidence in the record.
To the extent the trial court's order finds defendants breached the
contract with plaintiffs and awards damages thereon, it is
V. False Imprisonment
 Defendants contend the trial court erred by concluding
plaintiffs did not falsely imprison Donald Groce as a matter of
law. We disagree. 'False imprisonment' has been defined as 'the illegal
restraint of a person against his will.' Moore v. Evans
, 124 N.C.
App. 35, 42, 476 S.E.2d 415, 421 (1996) (quoting Marlowe v. Piner
119 N.C. App. 125, 129, 458 S.E.2d 220, 223 (1995) (citing Fowler
, 334 N.C. 345, 348, 435 S.E.2d 530, 532 (1993))).
'Illegal' or 'unlawful' [restraint] necessarily implies
in [the alleged wrongdoer's] actions. Emory v.
, 154 N.C. App. 181, 185, 571 S.E.2d 845, 848 (2002)
(emphasis supplied); see also Harwood v. Johnson
, 326 N.C. 231, 388
S.E.2d 439, reh'g denied
, 326 N.C. 488, 392 S.E.2d 90 (1990).
Plaintiffs argue Donald Groce voluntarily imprisoned himself
and failed to avoid imprisonment by turning over the 2000 marketing
cards. We held above that neither the consent judgment nor the
lease agreement required defendants to release to plaintiffs the
2000 marketing cards after 1 December 1999. This argument is
without merit. The trial court's finding of fact that Donald Groce
consented to his imprisonment by failing to deliver to plaintiffs
the 2000 marketing cards is unsupported by the evidence. However,
this finding of fact is not necessary to support the trial court's
conclusion that defendants failed to prove an intentional
detention by Plaintiffs or a detention which was unlawful.
The trial court found Plaintiffs' use of a Motion to Show
Cause was done for the direct, obvious and plain purpose of
bringing about Defendants' compliance with specific terms of the
Consent Judgment. The record contains evidence to support this
finding. After plaintiffs filed their motion to show cause, a
summons was issued and the trial court conducted a hearing in which
defendants were represented by counsel. Following the hearing on25 September 2000, the trial court ordered defendants to cooperate
with the plaintiffs to the end that the unsold tobacco raised and
harvested by the plaintiffs on the defendants' land . . . can be
sold on the sales cards of the defendants. The trial court did
not hold defendants in contempt in the 25 September 2000 order and
continued the hearing until 9 October 2000. Following the hearing
on 9 October 2000, the trial court ordered Donald Groce in contempt
for his failure to comply with the 25 September 2000 order.
The trial court, as fact finder, concluded defendants did not
prove deliberateness on the part of plaintiffs to unlawfully
imprison Donald Groce after a full trial on the merits. We do not
address the question of whether a subsequent
contempt was not initially
a viable legal vehicle for enforcement
of a court order can trigger a prima facie claim for false
imprisonment, to survive a motion for judgment on the pleadings,
summary judgment, or directed verdict.
The trial court's finding that plaintiffs intended to use the
motion to show cause to bring about defendants' compliance with the
consent judgment is supported by evidence in the record. This
finding of fact supports the trial court's conclusion that
defendants failed to prove a cause of action for false
imprisonment. This assignment of error is overruled.
VI. Abuse of Process
 Defendants contend the trial court erred by concluding
plaintiffs did not commit an abuse of process. We disagree.
Our Supreme Court has explained the requirements to prevail on
a claim for abuse of process. [A]buse of process is the misuse of legal
process for an ulterior purpose. It consists
in the malicious misuse or misapplication of
that process after issuance to accomplish some
purpose not warranted or commanded by the
writ. It is the malicious perversion of a
legally issued process whereby a result not
lawfully or properly obtainable under it is
attended to be secured.
Fowle v. Fowle, 263 N.C. 724, 728, 140 S.E.2d 398, 401 (1965).
Defendants fail to identify any evidence that plaintiffs
maliciously abused the legal process. False imprisonment, alone,
is insufficient to support allegations of abuse of process. See
Fowle, 263 N.C. at 727-28, 140 S.E.2d at 401. This assignment of
error is overruled.
The trial court erred by concluding defendants breached their
contractual obligations to plaintiffs and awarding damages for the
breach. That portion of the trial court's order and judgement is
reversed. The trial court did not err in concluding defendants
failed to show false imprisonment and that defendants presented
insufficient evidence to establish their counterclaim for abuse of
process. The trial court's order and judgement is affirmed in
part, reversed in part, and remanded.
Affirmed in part; Reversed in part; and Remanded.
Judges BRYANT and LEVINSON concur.
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