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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
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JAMES WILLIAMS, Plaintiff, v. CHRISTOPHER VONDERAU, Defendant
Filed: 2 January 2007
Appeal and Error_mootness_order expiring before appeal heard
An appeal from a civil no-contact order was dismissed as moot were the appeal was heard
almost five months after the order ceased to be effective.
Judge TYSON dissenting.
Appeal by Defendant from order issued 8 August 2005 by Judge
Shelly S. Holt in District Court, New Hanover County. Heard in the
Court of Appeals 12 September 2006.
James E. Williams, plaintiff-appellee
Bruce A. Mason and Samantha K. Stokes, for defendant-
A case is considered moot when a determination is sought on
a matter which, when rendered, cannot have any practical effect on
the existing controversy.
(See footnote 1)
Here, Defendant appeals from a Chapter
50C Civil No-Contact Order, effective 7 April 2005 for a period of
one year. The appeal was heard before this Court 12 September
2006, almost five months after the order ceased to be effective.
For this reason, we find the issue is moot and accordingly dismiss.
The facts of the case were that at an 8 April 2005 hearing on
this matter, Plaintiff James Williams testified that on 15 February
2005 Defendant Christopher Vonderau and his wife, along withseveral people who lived in the neighborhood, came to the edge of
Williams' property, while Vonderau repeatedly demanded Williams
come out and face him. Vonderau stated,[c]ommit some more
felonies, sell some more drugs, don't you have anything better to
At the hearing, Williams and his wife recited, without
objection, details of the 15 February incident, where Vonderau
stood in front of Williams' house yelling insults, racial slurs and
challenges to confrontation. Williams testified that Vonderau
lived up the street and would come down and harass him and his
family. Williams stated, We're slowly building the house and they
don't want blacks in their neighborhoods and they keep coming down
harassing us. Mrs. Williams also testified, regarding the conduct
of Vonderau and his wife. She stated, it's just been horrible.
They've been stalking and harassing our family for years. . . .
We definitely need an order for them to stay away. I don't even
know why they wouldn't want to stay away. Why would they want to
keep coming around us. The Williamses also testified, at length,
regarding other incidents of confrontation with Vonderau and his
The trial court heard testimony of a 2004 confrontation
between Williams and the Vonderaus' children. Following a
complaint from Mrs. Vonderau, Williams was charged with two counts
of assault and communicating threats. Williams was not convicted
of either charge. Further testimony indicated that Vonderau later
prompted Building Code Enforcement officials to inspect theWilliams' house to determine if the Williamses were occupying the
house before a certificate of occupancy had been issued.
Following the hearing, the trial court issued a civil no-
contact order in favor of Williams which ordered that:
1. The defendant not visit, assault, molest,
or otherwise interfere with plaintiff.
2. The defendant cease stalking the
3. The defendant cease harassment of the
4. The defendant not abuse or injure the
5. The defendant not contact the plaintiff
by telephone, written communication, or
6. The defendant not enter or remain present
at the plaintiff's residence, place of
employment, or other places listed below
at times when the plaintiff is present.
On 18 April 2005, Vonderau filed a Rule 59 motion for a re-
hearing. On 8 August 2005, the trial court heard arguments,
denied the motion, and on 25 August 2005 entered its judgment.
From the trial court's order denying a re-hearing, Vonderau
On appeal, Vonderau raises several arguments regarding the
validity of the underlying civil no-contact order; however, we must
dismiss this matter as moot.
A case is considered moot when a determination is sought on
a matter which, when rendered, cannot have any practical effect on
the existing controversy. Lange v. Lange
, 357 N.C. 645, 647, 588
S.E.2d 877, 879 (quotation and citation omitted). And, if an issue
is determined to be moot at any time during the course of theproceedings, the usual response should be to dismiss the matter.
See N.C. Press Assoc. v. Spangler
, 87 N.C. App. 169, 170-71, 360
S.E.2d 138, 139 (1987).
Vonderau appeals from the civil no-contact order, taking
effect 8 April 2005 and initially effective for a period of one
year [R. 13-14]. We note the case was calendared for hearing
before this Court 10 September 2006, more than five months after
the civil no-contact order ceased to be effective
This raises the
possibility that the issues Vonderau raised are moot; if so, this
Court should dismiss the matter. See Id.
at 171, 360 S.E.2d at
Under Chapter 50C of the North Carolina General Statutes, a
civil no-contact order may be renewed without the requirement an
unlawful act be committed after entry of the current order.
The court may renew an order, including an
order that previously has been renewed, upon a
motion by the complainant filed before the
expiration of the current order. The court may
renew the order for good cause. . . . If the
motion for extension is uncontested and the
complainant seeks no modification of the
order, the order may be extended if the
complainant's motion or affidavit states that
there has been no material change in relevant
circumstances since entry of the order and
states the reason for the requested extension.
N.C. Gen. Stat.
The record before us contains no information the original
order has been extended or that an extension has been sought.
Absent evidence of an extension, the matter appears to no longer be
in controversy. As such, the matter is moot. See State ex rel
Rhodes v. Gaskill
, 325 N.C. 424, 383 S.E.2d 923 (1989).
We conclude the order from which Vonderau appealed is no
longer effective and was not effective at the time the case was
heard before this Court. Accordingly, we dismiss Vonderau's appeal
(See footnote 2)
We note that even if this matter was not considered moot,
Vonderau only gave notice from the denial of his Rule 59 motion to
set aside an underlying order.
See Davis v. Davis
360 N.C. 518,
631 S.E.2d 114
Notwithstanding the mootness of this
appeal, we reviewed Vonderau's claim for a new trial under Rule 59
and determined that his appeal, even if it was properly before us,
is without merit.
Judge HUDSON concurs.
Judge Tyson dissents in a separate opinion.
The judges participated and submitted this opinion for filing
prior to 1 January 2007.
TYSON, Judge, dissenting.
The majority's opinion erroneously: (1) dismisses Christopher
Vonderau's (defendant) appeal as moot; and, (2) concludes that
defendant's appeal, if not moot, is without merit. I vote to reach
the merits of defendant's appeal and to reverse the trial court's
order. I respectfully dissent.
On 7 March 2005, James Williams (plaintiff) filed a
complaint against defendant for a civil no-contact order for
stalking. Plaintiff alleged defendant came to his residence on 15
February 2005 and threatened him with bodily injury. Plaintiff
sought a permanent no-contact order. Plaintiff asked the trial
court to order defendant to: (1) stop stalking him; (2) cease
harassing him; and (3) refrain from entering or remaining present
at his residence, school, or place of employment.
On 8 April 2005, a hearing was held at which both parties
testified and presented evidence. During the hearing, the trial
court expressly stated, the 'or otherwise harassed' [portion of
N.C. Gen. Stat. § 50C-1(6) (2005)], the way it was written, doesn't
require the more than one occasion that the stalking does require.
The trial court issued a civil no-contact order in plaintiff's
On 18 April 2005, defendant moved for a new trial pursuant to
N.C. Gen. Stat. § 1A-1, Rule 59. Defendant based his motion, in
part, upon plaintiff presenting insufficient evidence to justify
entry of the judgment and the judgment is contrary to theprevailing law. On 8 August 2005, the trial court heard and
denied defendant's motion in open court.
Defendant timely appealed the trial court's denial of his
motion for a new trial and argues the trial court's interpretation
of N.C. Gen. Stat. § 50C-1 was erroneous as a matter of law. I
agree, vote to reverse, and respectfully dissent.
The majority's opinion dismisses defendant's appeal as moot on
the grounds: (1) the civil no-contact order became effective on 8
April 2005 and expired on 8 April 2006; (2) this case was not heard
by this Court until 10 September 2006, five months after the civil
no-contact order ceased to be effective; and (3) the record before
us contains no information the order has been extended or that
plaintiff has sought an extension. I disagree.
This Court has not previously addressed when an appeal from a
civil no-contact order for stalking issued pursuant to N.C. Gen.
Stat. § 50C-1 is considered moot. We have addressed the issue of
whether an appeal from an expired domestic violence protective
order issued pursuant to N.C. Gen. Stat. § 50B-1 is moot. This
[W]e note that the domestic violence
protective order in this case [has] expired[.]
Generally, when an issue is no longer in
controversy, the appeal is dismissed as moot.
[A]n appeal should be dismissed as moot when .
. . the underlying controversy . . . cease[s]
to exist. [W]hen the relief sought has been
granted or . . . the questions originally in
controversy between the parties are no longer
at issue, the case should be dismissed, for
courts will not entertain or proceed with a
cause merely to determine abstractpropositions of law[.] However this Court has
held that a defendant's appeal of an expired
domestic violence protective order is not moot
because of the stigma that is likely to attach
to a person judicially determined to have
committed [domestic] abuse and the continued
legal significance of an appeal of an expired
domestic violence protective order. Thus, we
address the merits of . . . [the] appeal.
Wornstaff v. Wornstaff, 179 N.C. App. 516, 518, 634 S.E.2d 567, 568
(2006) (Wynn, J.) (internal citations and quotations omitted).
This Court has also stated another exception to the mootness
[A] case which is capable of repetition, yet
evading review may present an exception to the
There are two elements required for the
exception to apply: (1) the challenged action
[is] in its duration too short to be fully
litigated prior to its cessation or
expiration, and (2) there [is] a reasonable
expectation that the same complaining party
would be subjected to the same action again.
Boney Publishers, Inc. v. Burlington City Council, 151 N.C. App.
651, 654, 566 S.E.2d 701, 703-04, disc. rev. denied, 356 N.C. 297,
571 S.E.2d 221 (2002) (internal quotations and citations omitted).
This Court has found a continuing stigma is likely to attach
to a person who has been judicially determined to have committed
domestic abuse. Wornstaff, 179 N.C. App. at 518, 634 S.E.2d at
568. This same stigma is also likely to attach to a person who has
been judicially found to have stalked or harassed another.
Potential collateral and future consequences exist for a person who
has been judicially determined to have stalked another. This Court
stated: [T]here are numerous non-legal collateral
consequences to entry of a domestic violence
protective order that render expired orders
appealable. For example, a Maryland appellate
court in addressing an appeal of an expired
domestic violence protective order, noted that
a person applying for a job, a professional
license, a government position, admission to
an academic institution, or the like, may be
asked about whether he or she has been the
subject of a[n] [order].
Smith v. Smith, 145 N.C. App. 434, 437, 549 S.E.2d 912, 914 (2001)
(internal citation and quotation omitted). The same rationale
applies to someone who has been judicially determined to have
stalked or harassed by another person. A potential employer or
institution may consider whether a protective order has been
entered against an applicant in evaluating an applicant's fitness
and ability to work in harmony with others. Id.
The majority's opinion erroneously dismisses defendant's
appeal as moot. A permanent civil no-contact order may not exceed
one year in length. N.C. Gen. Stat. § 50C-8(b) (2005). The
majority's opinion effectively bars any appellate review of these
orders. Based solely upon the time elapsed between entry of the
trial court's order and the matter being heard by this Court,
appeals from these orders cannot be reviewed under the majority's
holding. Because the appeal is not moot, I vote to reach the
merits of defendant's appeal.
III. Standard of Review
This Court has stated:
The determination of whether to grant or deny
a motion pursuant to either Rule 59(a) or Rule
59(e) is addressed to the sound discretion of
the trial court. Where errors of law werecommitted, . . . the trial court is required
to grant a new trial. While our standard of
review under Rule 59(e) is abuse of
discretion, under Rule 59(a)(7) our review is
Young v. Lica, 156 N.C. App. 301, 304, 576 S.E.2d 421, 423 (2003)
(internal citations and quotations omitted) (emphasis supplied);
see Kinsey v. Spann, 139 N.C. App. 370, 372, 533 S.E.2d 487, 490
(2000) (Generally, a motion for new trial is addressed to the
sound discretion of the trial court, and its ruling will not be
disturbed absent a manifest abuse of that discretion. However,
where the motion involves a question of law or legal inference, our
standard of review is de novo. (internal citations omitted)).
Defendant's motion for a new trial was based upon plaintiff's
failure to present sufficient evidence to support the judgment and
the judgment [being] contrary to the prevailing law. N.C. Gen.
Stat. § 1A-1, Rule 59(a)(7) provides that a new trial may be
granted when there is insufficie[nt] . . . evidence to justify the
verdict or that . . . verdict is contrary to law.
Defendant moved for a new trial pursuant to N.C. Gen. Stat. §
1A-1, Rule 59(a)(7). [W]e review the trial court's denial of the
motion for a new trial under Rule 59(a)(7) under a de novo
standard. Young, 156 N.C. App. at 304, 576 S.E.2d at 423.
IV. N.C. Gen. Stat. § 50C, et. seq.
Plaintiff filed a complaint against defendant for a civil no-
contact order for stalking. Defendant argues the trial court erred
on a matter of law when it interpreted N.C. Gen. Stat. § 50C-1(6).
Defendant correctly asserts this statute does not allow entry of acivil no-contact order for stalking based upon a single incident of
N.C. Gen. Stat. § 50C-1(6) defines stalking as:
Following on more than one occasion or
otherwise harassing, as defined in G.S.
14-277.3(c), another person without legal
purpose with the intent to do any of the
a. Place the person in reasonable fear either
for the person's safety or the safety of the
person's immediate family or close personal
b. Cause that person to suffer substantial
emotional distress by placing that person in
fear of death, bodily injury, or continued
harassment and that in fact causes that person
substantial emotional distress.
(Emphasis supplied). This Court has not previously interpreted
N.C. Gen. Stat. § 50C-1(6), which became effective on 1 December
2004. However, N.C. Gen. Stat. § 14-277.3(c) is specifically
referred to in N.C. Gen. Stat. § 50C-1(6), which incorporates the
definition of criminal stalking by reference. We have interpreted
and applied N.C. Gen. Stat. § 14-277.3(c) in previous cases.
N.C. Gen. Stat. § 14-277.3 (2005) states a person commits the
[criminal] offense of stalking if the person wilfully on more than
one occasion follows or is in the presence of, or otherwise
harasses another person. (Emphasis supplied). Prior precedent
interpreting N.C. Gen. Stat. § 14-277.3 holds that the on more
than one occasion language applies to the otherwise harasses
language of the statute.
In State v. Watson, this court upheld a stalking conviction
when the defendant became very clingly and possessive, called thevictim multiple times, and accused the victim of making sexual
advances toward her. 169 N.C. App. 331, 338, 610 S.E.2d 472, 477
(2005) (emphasis supplied). This Court held, it is clear the
General Assembly intended to prevent a person from willfully
stalking another at more than one particular time. Id. (emphasis
In State v. Thompson, this Court upheld a stalking conviction
and concluded there was sufficient evidence from which the jury
could find that defendant followed or was in the presence of [the
victim] on more than one occasion without legal purpose and with
the intent to cause her emotional distress by placing her in fear
of death or bodily injury. 157 N.C. App. 638, 643-44, 580 S.E.2d
9, 13, disc. rev. denied, 357 N.C. 469, 587 S.E.2d 72 (2003)
During the hearing on 8 August 2005, the trial court expressly
stated, the 'or otherwise harassed' [portion of N.C. Gen. Stat. §
50C-1(6)], . . . , doesn't (sic) require the more than one occasion
that the stalking does require. Defendant correctly argues the
on more than one occasion language of N.C. Gen. Stat. § 50C-1(6)
applies to the stalking language of the statute and to the
otherwise harassing as defined in G.S. § 14-277.3(c) portion of
the statute. The trial court's entry of order is based upon a
single act and is a misapprehension of law.
The trial court's interpretation of N.C. Gen. Stat. § 50C-1
was erroneous as a matter of law. See Young, 156 N.C. App. at 304,
576 S.E.2d at 423 (Where errors of law [are] committed, . . . thetrial court is required to grant a new trial.). I vote to reverse
the trial court's order denying defendant's motion and remand for
a new trial.
A defendant's appeal of an expired civil no-contact order for
stalking is not moot because the issue before us is capable of
repetition, yet evad[es] review, Boney Publishers, Inc.
, 151 N.C.
App. at 654, 566 S.E.2d at 703, and because of the continuing
stigma that is likely to attach to a person judicially determined
to have stalked another, Wornstaff
, 179 N.C. App. at 518, 634
S.E.2d at 568. The statute expressly limits the duration of these
orders for a fixed period of time not to exceed one year. N.C.
Gen. Stat. § 50C-8(b).
Under de novo
review, the trial court erred as a matter of law
when it interpreted N.C. Gen. Stat. § 50C-1(6) to justify issuance
of a permanent no-contact order based upon a single incident of
harassing. The trial court's order is based upon a
misapprehension of law. I vote to reverse the trial court's order
denying defendant's motion and remand for a new trial. I
Lange v. Lange
, 357 N.C. 645, 647, 588 S.E.2d 877, 879
(citation and quotation omitted).
This Court has previously addressed appeals past the
expiration of the underlying order where the defendant may have
suffered collateral legal consequences from the entry of the court
order - e.g., Smith v. Smith
, 145 N.C. App. 434, 549 S.E.2d 912
(2001) (domestic violence protective order may have been considered
in a child custody action involving the defendant) or the stigma
attached to a judicial determination that subjects a defendant to
a court order is so great the expired court order has continued
legal significance - e.g., Wornstaff v. Wornstaff
, _ N.C. App. _,
634 S.E.2d 567 (2006) ([A] defendant's appeal of an expired
domestic violence protective order is not moot because of the
stigma that is likely to attach to a person judicially determined
to have committed [domestic] abuse and the continued legal
significance of an appeal of an expired domestic violence
protective order.). Here, the Defendant was under a no contact
order that has now expired. Surely, we could speculate that any
court action could
be considered by potential employers as well as
anyone else. That, however, is not a collateral legal consequence
that merits an exception to the doctrine of mootness.
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