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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.
NORTH CAROLINA COURT OF APPEALS
Filed: 6 November 2007
ADAMS CREEK ASSOCIATES,
a North Carolina Limited
Partnership with Billy Dean
Brown, General Partner,
MELVIN DAVIS and LICURTIS REELS,
Appeal by defendants from orders entered 10 August 2006 by
Judge Gary E. Trawick in Carteret County Superior Court. Heard in
the Court of Appeals 29 August 2007.
Wheatly, Wheatly, Weeks & Lupton, P.A., by Claud R. Wheatly,
III, for plaintiff-appellee.
UNC Center for Civil Rights, by Julius L. Chambers and Anita
S. Earls, for defendant-appellants.
Annette Hiatt for Amicus Curiae Land Loss Prevention Project.
Defendants, Melvin Davis and Licurtis Reels, appeal from
orders entered in connection with claims for trespass and to remove
cloud from title filed by plaintiff, Adams Creek Associates. The
subject property, upon which defendants admittedly have entered and
lived, consists of some 13 acres of waterfront land in Carteret
County, North Carolina. Defendants appeal from orders denying
their motions to disqualify plaintiff's attorney and to set aside
a 1979 decree of registration for the subject property, and from anorder finding them in contempt of court. Defendants also purport
to appeal from the trial court's refusal to rule on their motion to
set aside an order entered by another Carteret County Superior
Court Judge. We affirm.
The relevant history of this action is summarized as follows:
In 1911 Elijah Reels bought approximately 65 acres in Carteret
County. The record documents do not describe the boundaries of
this 65-acre tract by metes and bounds, but instead by reference to
local landmarks such as Adams Creek; the county road; and the
names of adjoining property owners. In January 1944, this 65-acre
tract was sold to Carteret County for back taxes. In February
1944, Elijah's brother, Mitchell Reels (Mitchell), bought the 65-
acre property by paying the taxes that were owed. Mitchell Reels
died intestate in 1971, survived by his wife Pernella Reels and his
eleven children or their heirs. In 1976, Mitchell's daughter
Gertrude Reels (Gertrude) filed an action pertaining to the
property rights of Mitchell's heirs. The trial court entered
judgment in August 1976, ruling that Mitchell's heirs owned: (1)
the 65 acres that Mitchell bought in 1944 for back taxes; and (2)
another lot comprising 45 acres. This 45- acre tract was also
described by reference to local landmarks, including the Miles
Jones lands; the lands of Elijah Reels; the county road; and
the Fannie Moore and Wright Sutton properties.
In 1978, Shedrick Reels (Shedrick) filed a petition under
N.C. Gen. Stat. § Chapter 43, also known as the Torrens Law, in
which he sought to have the subject property registered in hisname, based on a conveyance of the land from Elijah Reels to him.
The documents in this record describe the subject property in metes
and bounds, unlike the less precise references to adjoining
landowners and the county road used to describe Mitchell's lots.
Accordingly, it is not possible from the record to discern the
relative locations of the three tracts (Mitchell's 65-acre and 45-
acre tract, and the subject property registered by Shedrick), from
Defendants assert that the subject property is located
entirely within Mitchell's 65-acre lot, and that the 1976 judgment
proves that Elijah Reels had no interest in the subject property,
and thus could not have validly conveyed it to Shedrick Reels.
But, the 1976 judgment specifically refers to the Elijah Reels
lands. The question of whether the subject property was
originally part of the Elijah or Mitchell Reels lands is not
answered in the record, which nowhere attempts to synthesize the
disparate styles of description in order to set out the boundaries
of the subject property in relation to Mitchell's and Elijah's
In March 1979, attorney Claud R. Wheatly, III, (Wheatly)
signed a certification on behalf of the present defendants or their
predecessors in interest, certifying that they had no objections to
Shedrick's petition to register the subject property. On 19 March
1979, a decree of registration was filed declaring Shedrick to be
the owner of the subject property. The decree further declared
the Heirs of Mitchell Reels, Deceased, to be the owner of twotracts. The two tracts are set out in a metes and bounds
description, the second tract specifically containing
approximately 3.64 acres all as shown on a survey on file in this
proceeding of Shedrick Reels by James, L. Powell, Surveyor, dated
November 28, 1978[.] Again, the record does not clarify the
relationship or overlap, if any, between these two tracts and the
65- and 45-acre Mitchell tracts described in the earlier documents.
On 25 August 1982, Shedrick filed a trespass action against
Melvin Davis, defendant in the instant case, and Gertrude Reels,
mother of defendant Licurtis Reels. The complaint asserted that
plaintiff Shedrick Reels is the owner of the fee simple estate of
the subject property; that [d]efendants claim some interest in
[the subject property]; and that defendants have committed and
threatened to continue to commit acts of trespass thereon[.] In
an order filed 4 January 1984, Judge Herbert O. Phillips, III
granted summary judgment for Shedrick, stating in pertinent part
IT IS THEREFORE ORDERED . . . that summary
judgment is granted in favor of plaintiff
against the defendant[s] and that the
plaintiff is the owner of the lands described
in the complaint and that defendants have no
right or title to said lands.
IT IS FURTHER ORDERED, ADJUDGED and DECREED
that: 1. The defendants and their agents,
servants, and employees shall not enter upon
or commit any act of trespass upon the lands
described in the complaint. . . .
On 20 September 1985, Judge David E. Reid found Melvin Davis in
contempt of Judge Phillips' order, stating in pertinent part: . . . Melvin Davis, by his own admission, has
been upon the [subject property] on many
occasions since the Order of this Court dated
November 4, 1983[, and filed 4 January 1984,]
ordering him not to do so, that he ordered
concrete to be poured for a boat ramp on the
property since the order, has caused electric
poles to be hooked up on the property to
construct the building, and has otherwise
committed acts of trespass;
. . .
The Court concludes as a matter of law that
the defendant is in willful contempt of the
order of this Court of November 4, 1983.
. . . IT IS ORDERED that the defendant is
placed . . . in the Carteret County jail until
he shall purge himself of contempt by signing
a statement . . . acknowledging that the
[subject property] belongs to plaintiff
Shedrick Reels, and that he will not go upon
the land for any purpose[.]
Pursuant to this order, Davis signed the following statement:
I, Melvin Davis, do hereby acknowledge that
the land described in the complaint in this
action belongs to the plaintiff Shedrick
Reels, and I will not go upon the land for any
Significantly, no appeal was taken from either Judge Phillips'
order filed in January 1984 or from Judge Reid's order finding
defendant in contempt of Judge Phillips' order. In 1985, Shedrick
sold the subject property to buyers, who in turn conveyed the
property to plaintiff in 1986.
On 30 October 2002, plaintiff herein filed the instant action
against defendants. Plaintiff alleged that defendants continued to
claim an interest in and trespass upon the subject property, and
sought removal of the cloud on its title and damages for trespass.
Defendants answered, denying the material allegations of thecomplaint and asserting a counterclaim for title to the subject
property. Defendant Melvin Davis later filed an additional answer
asserting various defenses and seeking dismissal of plaintiff's
action. Plaintiff answered the counterclaim and denied its
allegations. On 14 May 2004, plaintiff filed a motion for summary
judgment. On 16 September 2004, Judge Benjamin G. Alford entered
partial summary judgment for plaintiff, in an order finding in
1. The Plaintiff's title in this matter
originates as a result of a Chapter 43
([T]orrens proceeding) which was filed with
the Clerk of Superior Court of Carteret
County[.] . . . The Petitioner in said action
was Shedrick Reels . . . and the Respondents
consisted of various individuals one of whom
being Gertrude Reels, mother of the
2. A decree of registration was entered on or
about 16 March 1979 and approved by the
resident superior court judge on 19 March 1979
with the decree of registration being recorded
in Book 4A, Page 241, Carteret County
. . .
4. The property in the petition and the
description as contained in the publication
encompasses the property as set forth in the
decree of registration.
5. Pursuant to said decree of registration,
Registered Certificate 79-1 was issued to
Shedrick Reels describing the property which
was set forth in the decree of registration
and the same property as described in the
complaint of the Plaintiff in this matter.
. . .
7. Shedrick Reels and wife, Beatrice Reels,
conveyed to Monroe Johnson and Charles B.
Bissette, Jr., d/b/a Adams Creek Development,by deed dated 27 November 1985, recorded in
Book 529, Page 399, Carteret County Registry.
8. The said Monroe Johnson and Charles B.
Bissette, Jr., d/b/a Adams Creek Development,
by deed dated 8 September 1986 conveyed said
property to Adams Creek Associates[.]
9. The Court further finds the Shedrick Reels
brought an action against Melvin Davis and
Gertrude Reels in the Superior Court of
Carteret County . . . contending that Melvin
Davis and Gertrude Reels were trespassing on
the property of the Plaintiff, Shedrick Reels.
10. Order was entered on or about 4 November 1983
finding that Shedrick Reels was the owner of
said property and that the defendants, their
agents, servants or employees were not to
enter upon or commit acts of trespass upon the
lands described in the complaint.
11. That on or about September 20, 1985, Superior
Court of Carteret County by order signed by
The Honorable David E. Reid found that Melvin
Davis should be held in contempt [for]
violating the court order of November 4, 1983.
12. The Defendant, Melvin Davis, was given the
opportunity to purge himself of the contempt
by signing a statement drawn by Shedrick
13. Melvin Davis executed a statement wherein he
acknowledged that the property belonged to
Shedrick Reels and that he would not go upon
the land for any purpose[.]
14. The Court further finds that Donald B.
Pollock, Attorney at Law, filed a motion to
set aside a Decree of Registration contending
that one of the defendants in the original
Chapter 43 proceeding (Torrens Proceeding) did
not have proper service on Classy Reels
Curley. The said motion is dated 28 October
1983 and nothing else appeared to show that
she had taken any action involving said
15. Melvin Davis has gone upon the property as
described in the complaint in this cause
contending that he had gotten a power ofattorney from his mother in Classy's name to
do what he wanted to do.
16. The Defendants have offered no affidavits from
Licurtis Reels . . . nor introduced any
further documentation other than the
deposition of Melvin Davis.
17. The deed described in the complaint to
Licurtis Reels . . . is within the property as
described in the decree of registration and
the Certificate of Title of Shedrick Reels and
. . . constitutes a cloud on the title of the
Plaintiff and is a nullity and should be
stricken from the records of Carteret County.
18. It appears to the Court there is no genuine
issue to any material fact and that the
Plaintiff is entitled to a partial summary
judgment as a matter of law and is granted
summary judgment against the Defendants and
the Plaintiff is the owner of the lands
described in the complaint and the Defendants
have no right or title to said lands.
IT IS FURTHER ORDERED . . . that the
Defendants . . . will not enter upon or commit
any act of trespass upon the lands described
in said complaint and further, this action
shall be tried by a jury on the issues of
Defendants filed notice of appeal on 13 October 2004, but failed to
file a record on appeal or otherwise perfect the appeal , and on 9
March 2005 plaintiff moved to dismiss defendants' appeal. Attached
to the motion was a certificate of service certifying that it had
been served upon N. Jerome Willingham, defendants' counsel of
record, and also upon each defendant. On 28 March 2005, Judge
Kenneth F. Crow entered an order dismissing defendants' appeal from
Judge Alford's order of 16 September 2004, and finding that:
. . . [the] Motion to Dismiss the Appeal of
the Defendants was . . . served by regular
mail, on attorney N. Jerome Willingham,
attorney for the two (2) defendants, MelvinDavis and Licurtis Reels. . . . In addition
thereto Melvin Davis and Licurtis Reels were
served with a copy of said Motion by the
sheriff of Carteret County on March 16, 2005.
[Neither] the Defendant[']s attorney nor the
Defendants appeared upon the call of this
On 6 May 2006, plaintiff filed a Show Cause motion, seeking to
have defendants held in contempt of Judge Alford's order of
September 2004. The motion asserted that defendants not only
continued to trespass on the subject property, but also had not
removed any of the buildings or personal property stored there.
Plaintiff's motion was granted by Judge Ernest Fullwood on 7 July
2006, in an order directing defendants to appear and show cause why
they should not be held in contempt of court.
On 17 May 2006, defendants filed a motion to set aside the
dismissal of their appeal, a motion to disqualify Mr. Wheatly from
representing plaintiff, and a motion asking the trial court to set
aside the 1979 decree of registration for the subject property. On
7 August 2006, the Show Cause order and defendants' motions were
brought before Judge Gary E. Trawick. Judge Trawick did not
entertain defendants' motion to set aside Judge Crow's dismissal of
their appeal, but invited defendants to file a motion for
reconsideration with Judge Crow. On 10 August 2006, the court
denied defendants' motions to disqualify Mr. Wheatly as plaintiff's
counsel and to set aside the original decree of registration. On
the same date the court entered an order (1) finding defendants in
civil contempt of Judge Alford's 2004 order for continuing to
trespass on the subject property; and (2) finding defendants inindirect criminal contempt of court for testifying under oath that
they did not intend to obey future orders of the trial court to
stay off the subject property. Defendants appealed from the trial
court's denial of their motions to disqualify Mr. Wheatly and to
set aside the decree of registration, and from the court's order
We first consider defendants' argument that the trial court
erred by refusing to rule on its motion to set aside Judge Crow's
dismissal of their appeal from Judge Alford's order of September
2004. We conclude that this issue is not properly before us.
At the hearing, the trial court and defense counsel had the
following dialog about this motion:
[JUDGE TRAWICK]: Now, the court will not
consider the motion to set aside the dismissal
of the appeal which was signed by Judge Crow.
Judge Crow is a local judge and I'm not going
to consider another Superior Court Judge's
order who is still active, on the bench and
local. So you have to take that up directly
with him if you want for that to be
[DEFENSE COUNSEL]: I understand.
Defendants did not object to the trial court's ruling on this
issue. Under N.C. R. App. P. 10(b)(1):
In order to preserve a question for appellate
review, a party must have presented to the
trial court a timely request, objection or
motion, stating the specific grounds for the
ruling the party desired the court to make if
the specific grounds were not apparent from
the context. It is also necessary for the
complaining party to obtain a ruling upon the
party's request, objection or motion.
N.C. R. App. P. 10(b)(1) (2007). 'This subsection of [Rule 10] .
. . . is directed to matters which occur at trial and upon which
the trial court must be given an opportunity to rule in order to
preserve the question for appeal. The purpose of the rule is to
require a party to call the court's attention to a matter upon
which he or she wants a ruling before he or she can assign error to
the matter on appeal.' Reep v. Beck, 360 N.C. 34, 37, 619 S.E.2d
497, 499-400 (2005)(quoting State v. Canady, 330 N.C. 398, 401, 410
S.E.2d 875, 878 (1991)). Defendants did not argue that the trial
court was required to rule on their motion and, thus, did not
preserve this issue for appeal pursuant to N.C. R. App. P.
10(b)(1). Accordingly, this issue is not properly before this
However, even if the issue had been preserved, we conclude the
trial court did not err. The power of one judge of the superior
court is equal to and coordinate with that of another. Michigan
Nat'l Bank v. Hanner, 268 N.C. 668, 670, 151 S.E.2d 579, 580
(1966). Therefore, it is well established in our jurisprudence
that no appeal lies from one Superior Court judge to another; that
one Superior Court judge may not correct another's errors of law;
and that ordinarily one judge may not modify, overrule, or change
the judgment of another Superior Court judge previously made in the
same action. Calloway v. Ford Motor Co., 281 N.C. 496, 501, 189
S.E.2d 484, 488 (1972). Thus, the trial court's refusal to
entertain defendants' motion to set aside the order of another
superior court judge was not error. Defendants argue that the general rule barring one superior
court judge from overruling another does not apply in this case
because their motion is properly construed as having been brought
pursuant to Rule 60(b)(5) or Rule 60(b)(6). However, Defendants'
motion was not brought under N.C. Gen. Stat. § 1A-1, Rule 60;
defendants never sought to amend their motion to cite Rule 60; and
defendants never raised this argument at the trial level.
Furthermore, defendants' motion alleged in relevant part:
1. That on or about March 11, 2005, Judge W.
Donald Stephens . . . issued an Order
forbidding Jerome Willingham, defendants'
attorney at the time, from handling client
funds until further order of the court.
2. Mr. Willingham was scheduled for a hearing
before the State Bar Grievance Committee on
April 22, 2005. He was subsequently
3. . . . [C]ounsel for defendants knew or should
have known that he was facing disciplinary
problems before the State Bar, but never
advised his clients of this fact. In fact,
defendants did not become aware that they were
no longer being represented by Mr. Willingham
until they read it in the newspaper. . . .
4. This patent misrepresentation by Jerome
Willingham, has caused a substantial hardship
to the defendants and we call upon the court
to rectify this inequity by setting aside the
Order of Dismissal.
We note that defendants' motion states that their attorney was not
disbarred until after their appeal was dismissed. Further, a Rule
60 motion shall be made within a reasonable time, and for reasons
(1), (2) and (3) not more than one year after the judgment, order,
or proceeding was entered or taken. N.C. Gen. Stat. § 1A-1, Rule
60(b)(2006). Defendants' motion was filed twenty months afterentry of Judge Alford's order and almost fourteen months after
Judge Crow's dismissal of their appeal, which is neither within a
reasonable time nor within a year of Judge Crow's order.
Accordingly, even if we were to construe defendants' motion as a
Rule 60 motion, it was not timely. This argument is overruled.
We next address defendants' arguments that the trial court
erred by granting summary judgment in favor of plaintiff, on the
grounds that (1) the Torrens Act, as applied in these
circumstances, is an unconstitutional taking of property without
due process and (2) one heir was not served with notice of the
Torrens Act proceeding. We conclude that neither of these issues
is properly before us.
Defendants noticed appeal from Judge Trawick's rulings on a
motion to set aside the 1979 decree of registration; a motion to
disqualify plaintiff's attorney from representing it; and a show
cause order charging defendants with contempt of court. None of
these motions were for summary judgment, and Judge Trawick did not
grant summary judgment for any party.
Judge Alford did grant partial summary judgment for plaintiff
in 2004. However, defendants' appeal from that order was dismissed
in 2005 and defendants neither sought review of the dismissal
before Judge Crow, nor filed a petition for certiorari . In short,
Judge Alford's order remains in effect, is not on appeal, and not
subject to our review. Accordingly, the propriety of Judge
Alford's order granting partial summary judgment is not before us. Presumably, defendants meant to argue that the trial court
erred by denying their motion to set aside the 1979 decree of
registration on the grounds that the application of the Torrens Act
to those 1979 proceedings was improper. The trial court, however,
denied defendants' motion to set aside the decree on the grounds
that the statute of limitations had long expired. We agree.
N.C. Gen. Stat. § 43-26 provides, in part, that:
No decree of registration hereafter entered
and no certificate of title hereafter issued
pursuant thereto shall be adjudged invalid or
revoked or set aside, unless the action or
proceeding in which the validity of such
decree or of the certificate of title issued
pursuant thereto is attacked or called in
question be commenced or the defense alleging
the invalidity thereof be interposed within 12
months from the date of such decree.
N.C. Gen. Stat. § 43-26 (2006). In the instant case, the decree of
registration was entered in 1979, and defendants' motion was not
made until 2006, decades after the statute of limitations expired.
Defendants assert baldly that the one-year statute of
limitations does not apply in this case because the registration
was based on a fraud that the heirs did not discover for several
years. Defendants cite no cases holding that this would
invalidate the relevant statute of limitations. Further, N.C. Gen.
Stat. § 1-52(9) provides that [f]or relief on the ground of fraud
or mistake; the cause of action shall not be deemed to have accrued
until the discovery by the aggrieved party of the facts
constituting the fraud or mistake. N.C. Gen. Stat. § 1-
52(9)(2006). For purposes of N.C.G.S. § 1-52(9), 'discovery'
means either actual discovery or when the fraud should have beendiscovered in the exercise of 'reasonable diligence under the
circumstances.' Forbis v. Neal, __ N.C. __, __, 649 S.E.2d 382,
___(2007)(quoting Bennett v. Anson Bank & Trust Co., 265 N.C. 148,
154, 143 S.E.2d 312, 317 (1965)). The record shows a defense
motion was filed in 1983 seeking to set aside the decree of
registration on the grounds of fraud and failure to notify an heir.
Thus, defendants were aware of these issues by no later than 1983,
yet filed their motion more than 20 years later.
Clearly, the trial court did not err by ruling that the one-
year statute of limitations set out in N.C. Gen. Stat. § 43-26 had
expired when defendants filed their motion. Further, assuming the
existence of fraud that the heirs did not discover for several
years, the three-year statute of limitations for fraud was tolled
well more than three years before their 2006 motion was filed.
Accordingly, not only was defendants' motion late under the one-
year statute of limitations, if we apply the three-year statute of
limitations for fraud set out in N.C. Gen. Stat. § 1-52(9),
defendants' motion was still filed decades too late.
Defendants also argue that an heir, Classie Reels Curley, was
not properly served with notice of the proceeding and, therefore,
the trial court should have set aside the 1979 decree of
registration. Defendants, however, do not cite any cases holding
that the failure to notify another party, not the defendants
themselves, voids a decree of registration that is not being
challenged by the heir who allegedly was not notified. We further
note that by challenging the denial of their motion to set asidethe 1979 decree of registration, defendants are attempting to raise
issues which have already been adjudicated. By orders filed 4
January 1984, Judge Herbert O. Phillips found that Shedrick was the
owner of the subject property, that defendants had no interest in
the subject property, and ordered defendants and others not to
trespass on the land. By order dated 20 September 1985, Judge
David E. Reid found defendant Melvin Davis, who had admitted being
on the subject property, in contempt for violating the previous
order. Finally, by order dated 14 September 2004, Judge Benjamin G.
Alford found that defendants had no right or title to the subject
We have concluded that the trial court did not err by ruling
that defendants' motion was barred by the statute of limitations.
Inasmuch as the trial court denied defendants' motion, it was not
called upon to rule on issues arising from the Torrens Act
proceedings. Accordingly, the substantive merits of the 1979
litigation was neither before the trial court nor preserved for
appellate review. The pertinent assignments of error are
Defendants also argue that the trial court abused its
discretion by failing to disqualify Claud R. Wheatly, III, from
representing plaintiff in this matter. We disagree.
The North Carolina Supreme Court has held that the denial of
a motion to disqualify counsel is an interlocutory order that may
not be appealed until entry of a final judgment. See Travco Hotelsv. Piedmont Natural Gas Co., 332 N.C. 288, 420 S.E.2d 426 (1992).
In Travco, the Court reviewed this Court's holding that a trial
court's order denying [defendant's] motion to disqualify
[plaintiff's counsel] was not appealable and held that the Court
of Appeals was correct. Id. at 291, 420 S.E.2d at 427-428. The
This Court has consistently found that no
appeal lies to an appellate court from an
interlocutory order or ruling of the trial
judge unless such ruling or order deprives the
appellant of a substantial right which he
would lose if the ruling or order is not
reviewed before final judgment. Essentially
a two-part test has developed - the right
itself must be substantial and the deprivation
of that substantial right must potentially
work injury . . . if not corrected before
appeal from final judgment.
Id. at 292, 420 S.E.2d at 428 (internal citations omitted). The
Court further noted that [Defendant] can adequately protect its
right not to have its confidences used against it to its detriment
by appealing any adverse final judgment. Id. at 293, 420 S.E.2d at
In the instant case, the underlying action is plaintiff's 2002
trespass action against defendants. In his 2004 order entered in
the trespass case, Judge Alford granted partial summary judgment,
reserving the issue of damages for jury trial. The entry of
summary judgment was therefore interlocutory and not a final order.
We conclude that the trial court's denial of defendants' motion to
disqualify Mr. Wheatly from representing plaintiff is not subject
to review at this time. Accordingly, this argument is dismissed. Were we to address this issue on its merits, however, it is
clear that the trial court did not err by denying defendants'
motion. Decisions regarding whether to disqualify counsel are
within the discretion of the trial judge and, absent an abuse of
discretion, a trial judge's ruling on a motion to disqualify will
not be disturbed on appeal. Travco, 332 N.C. at 295, 420 S.E.2d
In the instant case, Mr. Wheatly represented at least one
member of the Reels family in 1979, in litigation over the
ownership of the subject property. Consequently, if that issue
were ever to be reopened in the future, there might exist a
conflict of interest between Mr. Wheatly's prior representation of
defendants and his present representation of the plaintiff.
However, neither the 2002 trespass action nor the motions from
which defendants have appealed involved relitigation of this
In 1979, plaintiff was declared the owner of the subject
property, for which he filed a decree of registration. In 1983,
summary judgment was entered on behalf of plaintiff in a trespass
action against defendant Melvin Davis, and in 1985 Davis was found
in contempt of court for violating the 1983 order. Neither the
1979 decree of registration, the 1983 order, nor the 1985 contempt
order were appealed. Thus, the issue of the ownership of the
subject property was resolved long before the present plaintiff
filed its 2002 trespass action, and was not relitigated in the
hearing giving rise to the orders from which defendants appeal. Defendants argue that it was a conflict of interest for Mr.
Wheatly to represent plaintiff when he previously represented one
or more members of defendants' family. Defendants contend that
Wheatly represented plaintiff in what is essentially the
continuation of a single matter regarding the proper ownership of
the Reels family land. However, as discussed above, the issue of
the proper ownership of the subject property was not relitigated
at the trial level, and is not before us on appeal. This
assignment of error is overruled.
Finally, defendants argue that
the trial court erred by
finding them in both civil and criminal contempt, and by ordering
them arrested without further hearing by the court.
This Court has stated:
A contempt hearing is a non-jury proceeding.
The standard of appellate review for a
decision rendered in a non-jury trial is
whether there is competent evidence to support
the trial court's findings of fact and whether
the findings support the conclusions of law
and ensuing judgment. Findings of fact are
binding on appeal if there is competent
evidence to support them, even if there is
evidence to the contrary. The trial court's
conclusions of law drawn from the findings of
fact are reviewable de novo.
State v. Simon
, __ N.C. App. __, __, 648 S.E.2d 853, __ (2007)
(internal citations omitted). '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.' Trivette v. Trivette
162 N.C. App. 55, 60, 590 S.E.2d 298, 302-03 (2004) (quoting Sharpev. Nobles
, 127 N.C. App. 705, 709, 493 S.E.2d 288, 291 (1997)).
N.C. Gen. Stat. § 5A-23 provides in pertinent part that the burden
of proof in a civil contempt hearing shall be on the aggrieved
party and the trial court is the trier of facts at the show cause
hearing. N.C. Gen. Stat. § 5A-23(a1) and (d)(2006).
In the instant case, defendants were charged with contempt of
court for their continued trespass on the subject property
following the entry of several court orders directing them not to
trespass thereon. Both defendants testified in court
that they had
in fact been living on the subject property or otherwise
trespassing on it. On this basis, the trial court found the
defendants guilty of civil contempt, for failing to comply with an
order of the court. In addition, both defendants testified in
court that they intended to return to the subject property, even if
that violated a court order, and that they would not follow future
court orders directing them to vacate the property. On the basis
of this testimony, the trial court found the defendants guilty of
indirect criminal contempt.
Defendants argue that they were found in civil and criminal
contempt for the same behavior, in violation of N.C. Gen. Stat. §
5A-21(c) and 5A-23(g), which prohibit finding a defendant in both
civil and criminal contempt for the same behavior. As discussed
above, defendants were found in civil contempt for failing to
comply with the court's 2004 order, and were found in criminal
contempt for their testimony threatening to disobey future ordersof the court. Thus,
defendants were found in civil and criminal
contempt on the basis of different acts.
Defendants next argue that the trial court erred in imposing
indirect criminal penalties. '[C]riminal [contempt] proceedings
are those brought to preserve the power and to vindicate the
dignity of the court and to punish for disobedience of its
processes or orders.' State v. Reaves
, 142 N.C. App. 629, 633,
544 S.E.2d 253, 256 (2001)(quoting Galyon v. Stutts
, 241 N.C. 120,
123, 84 S.E.2d 822, 825 (1954)). Direct criminal contempt is
'committed within the sight or hearing of a presiding judicial
official[,]' N.C. Gen. Stat. § 5A-13(a)(1) (2005), while indirect
criminal contempt 'arises from matters not occurring in or near the
presence of the court, but which tend to obstruct or defeat the
administration of justice.' State v. Simon
, __ N.C. App. __, __
648 S.E.2d 853, __ (2007)(quoting Atassi v. Atassi
, 122 N.C. App.
356, 361, 470 S.E.2d 59, 62 (1996)).
In the instant case, defendants testified in the trial court's
presence, constituting direct criminal contempt. However, the
trial court mistakenly held them in indirect criminal contempt:
The testimony of the Defendants stating that
they are not going to obey the orders of the
court is disrespectful and disparages the
respect due to the court and its orders.
We conclude that this misnomer is not grounds for reversal. The
penalty is the same for both direct and indirect criminal contempt.
Defendants were afforded the assistance of counsel and the
opportunity to testify and explain why they continued to trespasson the subject property. We conclude that the trial court did not
err by finding defendants in both civil and criminal contempt.
Defendants also argue that the order finding them in contempt
is erroneous in that it provides that if they are again found on
the subject property, they will be taken into custody until the
next session of Superior Court to show cause [why] they shall not
be held in contempt again. Defendants assert that this order
violates N.C. Gen. Stat. § 5A-21(b2), which states that before the
Court may recommit a civil contemnor, the defendant is entitled to
a de novo
hearing. In the order sub judice
, the trial court does
not impose a sentence or recommit the defendants. Rather, the
order provides that, if defendants are again arrested for violation
of the several orders directing them to stay off the subject
property, they must post a $500 bond before being released from
custody. Defendants do not argue that this bond is inappropriate
or excessive, and we find it well within the trial court's
discretion. This assignment of error is overruled. For the
reasons discussed above, we conclude that the trial court did not
err and that its orders should be
Judges McGEE and STEPHENS concur.
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