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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.
NORMAN CARTER and SOPHY CARTER, Plaintiffs, v. JAMIE HILL AKA
FRANK HILL) and STACY HILL, Defendants
Filed: 16 October 2007
1. Contempt--civil contempt--no underlying order or judgment--failure to give
adequate notice--failure to make appropriate findings of fact
The trial court erred by holding defendants in civil contempt for failure to pay $2,480 in a
summary ejectment case, because: (1) the contempt order was not based on any underlying order
or judgment since no judgment was reduced to writing as required by N.C.G.S. § 1A-1, Rule 58;
(2) even if the trial court's underlying judgment had been properly entered, defendants had not
been given adequate notice of the contempt proceeding when defendants were notified at the end
of trial that they would be held in contempt until the debt was paid and they were taken
immediately to jail with no good cause shown in violation of N.C.G.S. § 5A-23(a); and (3) the
trial court failed to make the appropriate findings of fact including willfulness and the ability to
comply, and to the contrary the court found defendants were not able to pay the court ordered
2. Appeal and Error--appealability--outside scope of order
Although defendant's remaining arguments concern errors that allegedly occurred during
trial relating to the admission of evidence and rulings on defendants' defenses and counterclaims,
these assignments of error are dismissed because: (1) they are not properly before the Court of
Appeals since they are outside the scope of the order being appealed; and (2) the notice of appeal
references the order entered on 6 September 2006 which found defendant in civil contempt, and
thus defendants have properly appealed only from the court's determination of civil contempt.
Appeal by defendants from order entered 6 September 2006 by
Judge Victoria Roemer in Forsyth County District Court. Heard in
the Court of Appeals 20 August 2007.
No brief filed for plaintiffs-appellees.
Legal Aid of North Carolina, Inc., by Jamiah Waterman, Liza
Baron, and Will Corbett, for defendants-appellants.
MARTIN, Chief Judge.
On 21 July 2006 plaintiffs filed a Complaint in Summary
Ejectment against defendants, alleging that defendants failed to
pay $990 in rent and owed $500 for damage to plaintiffs' property. The magistrate found that defendants owed $840 in past-due rent but
also that plaintiffs had breached the warranty of habitability and
owed defendants $175 per month rent abatement for the fourteen
months defendants lived in the house. Defendants appealed the
magistrate's judgment to the district court and filed an Answer and
Counterclaims in response to the Complaint for Summary Ejectment.
Upon trial de novo, the parties appeared pro se. The evidence
tended to show plaintiffs agreed to lease a home to defendants for
one year, beginning 1 May 2005, at a rent of $575 per month. When
defendants moved into the home, they found leaking pipes, flooding
in the basement, excessive water bills, slow drains, broken doors,
and unfinished walls. Despite defendants' numerous requests to
plaintiffs, no repairs were made. During the fourteen months that
defendants lived in the house, they paid $6,125 in rent. After
defendants rested their case, the trial court entered, in open
court, an oral judgment for plaintiffs in the amount of $2,480 and
made no rulings on defendants' counterclaims. The judge sua sponte
notified defendants that they would be held in civil contempt of
court until they paid $2,480 to plaintiffs. Defendants were held
in jail until later that day when they were able to pay the amount.
According to the record before this Court, at the end of trial, the
trial court entered only an Order of Commitment upon finding
defendants in Civil contempt . . . due to the following:
Defendants not able to pay the Court Ordered $2480.00 and entered
no other order or judgment. Defendants appeal from the order
finding them in contempt.
 Defendants contend that the trial court erred in holding
them in civil contempt because the contempt order is not based on
any underlying order or judgment, it was made after a hearing
without proper notice to defendants, and it was not based upon
proper findings. On all of these points, we agree.
N.C.G.S. § 5A-21 defines civil contempt as [f]ailure to
comply with an order of a court. The trial court purported to
conform to this definition where it based its finding of contempt
upon defendants' inability to pay the Court Ordered $2480.00. An
examination of the record, however, reveals that the court had not
ordered that amount because no judgment was entered. [A] judgment
is entered when it is reduced to writing, signed by the judge, and
filed with the clerk of court. N.C. Gen. Stat. § 1A-1, Rule 58
(2005). Since no judgment was reduced to writing, defendants could
not have failed to comply with an order of the court to pay $2,480
at the time the trial court found defendants in civil contempt.
Even if the trial court's underlying judgment had been
properly entered, the trial court still erred in finding defendants
in civil contempt when they had not been given adequate notice of
the contempt proceeding.
Proceedings for civil contempt are by
motion [of an aggrieved party], by the order
of a judicial official directing the alleged
contemnor to appear at a specified reasonable
time and show cause why he should not be held
in civil contempt, or by the notice of a
judicial official that the alleged contemnor
will be held in contempt unless he appears at
a specified reasonable time and shows cause
why he should not be held in contempt. Theorder or notice must be given at least five
days in advance of the hearing unless good
cause is shown
N.C. Gen. Stat. § 5A-23(a) (2005) (emphasis added). In the case
before us, defendants were notified at the end of the trial that
they would be held in contempt until the debt was paid, and they
were taken immediately to jail. No good cause was shown.
Therefore, the hearing was clearly in violation of N.C.G.S. § 5A-
In absence of the preceding two defects, the court also erred
by failing to make appropriate findings of fact to support the
entry of a civil contempt order. If civil contempt is found, the
judicial official must enter an order finding the facts
constituting contempt and specifying the action which the contemnor
must take to purge himself or herself of the contempt. N.C. Gen.
Stat. § 5A-23(e) (2005). Failure to comply with an order of the
court is civil contempt only when the noncompliance is willful and
[t]he 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(2a)-
(3) (2005). Findings of fact on these particular elements are
conspicuously absent from the trial court's contempt order in this
case. Quite to the contrary, the court found Defendants not
to pay the Court Ordered $2480.00. (emphasis added).
Each of the errors we have discussed would alone be sufficient
to reverse the trial court's entry of the contempt order. Because
we reverse the trial court on this issue, we need not considerdefendants' next arguments that the entry of the contempt order
violated the prohibition against debtors' prison in Article 1, §
28, of the North Carolina Constitution, violated their rights to
exempt property from execution as provided in Article X, § 1, of
the North Carolina Constitution, and that the order deprived
defendants of their property without due process of law in
violation of the Fourteenth Amendment to the United States
 Defendants' remaining arguments concern errors that
occurred during trial, related to the admission of evidence and
rulings on defendants' defenses and counterclaims. These errors
are not properly before us because they are outside the scope of
the order being appealed in this case. Any party entitled by law
to appeal from a judgment or order
of a superior or district court
rendered in a civil action or special proceeding may take appeal by
filing notice of appeal . . . . N.C. R. App. P. 3(a) (2006)
(emphasis added). The notice of appeal in the case before us
references the order entered on September 6, 2006, in the District
Court of Forsyth County, which found Defendants to be in civil
contempt, and committed them to confinement until they paid $2,480
to Plaintiffs. Thus, defendants have properly appealed only from
the court's determination of civil contempt.
Judges McCULLOUGH and TYSON concur.
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