MG Newell Co., Inc. v. Wyrick

370 S.E.2d 431 (1988)

M.G. NEWELL COMPANY, INC. v. Conrad WYRICK.

No. 8718SC544.

Court of Appeals of North Carolina.

August 2, 1988.

*433 Adams Kleemeier Hagan Hannah & Fouts by Joseph W. Moss and George W. Jarecke, Greensboro, for plaintiff-appellee.

Greeson, Allen and Floyd by Harold F. Greeson, Greensboro, for defendant-appellant.

PHILLIPS, Judge.

Of defendant's numerous contentions one is moot, as well as fanciful and far-fetchedthat his constitutional rights were abridged by being required to state in purging himself of civil contempt that he understood the consent judgment he had signed and the nature and extent of plaintiff's business which he used to run. And three morethat the trial court never had jurisdiction over him, consequently the consent judgment is void, and the contempt findings are invalid in any event because they are based just on "past acts"are groundless on the face of the record. For even if the court had not already obtained jurisdiction over defendant by serving him with process by registered mail in compliance with Rule 4, as the record plainly indicates was done, by contesting both the *434 notice to take his deposition and the show cause motion on grounds other than the court's lack of jurisdiction over him, defendant made a general appearance in the proceeding and thus submitted himself to the jurisdiction of the court, Rule 12(h)(1), N.C. Rules of Civil Procedure; Blackwell v. Massey, 69 N.C.App. 240, 316 S.E.2d 350 (1984); and the court's findings of contempt, instead of being based just on past acts, as defendant argues, are explicitly based upon his continuing violation of the judgment to the day of the hearing, as his own testimony established.

Two more contentionsthat both contempt adjudications are invalid because he had only five hours notice of the hearing for civil contempt, rather than five days as G.S. 5A-23(a) requires, and had no notice at all that his criminal contempt would be consideredare likewise without merit. As to civil contempt, G.S. 5A-23(a) in pertinent part provides:

The order or notice must be given at least five days in advance of the hearing unless good cause is shown. (Emphasis supplied).

Thus, the judge was authorized to shorten the notice period for good cause, which he found upon undisputed facts to the effect that defendant had known for several months of the particular charges pending against him, had had ample opportunity to prepare to meet them, and all the witnesses, some of whom had been in court on earlier occasions, were present, along with the parties. Indeed, defendant's lawyer then, but not now, acknowledged to the court that he had had ample opportunity to discuss the charges with defendant and his argument for delaying the hearing was based, not upon any unreadiness to proceed, but upon his mistaken impression that a hearing upon less than five days notice was automatically invalid. Not only did the court have good cause for shortening the notice period but defendant could not have been prejudiced by it, since the purpose of notice is to enable the one charged to prepare his defense, O'Briant v. O'Briant, 313 N.C. 432, 329 S.E.2d 370 (1985), and defendant's own testimony, in which he admitted that he had been violating the judgment terms for months, showed that he had no defense. And as to the criminal contempt, under the circumstances defendant was entitled to no notice, as G.S. 5A-23(g) expressly authorizes a judge conducting a hearing to determine civil contempt to "find the person in criminal contempt for the same conduct" upon making the required findings.

But defendant's contentions that three conditions the court required him to meet in order to purge himself of the contempts are invalid do have merit. First, the provision in the criminal contempt adjudication requiring defendant to pay $3,150 in damages to plaintiff is invalid, because G.S. 5A-12 limits the punishment that can be imposed for criminal contempts of this type to a fine of $500 and 30 days in jail; and in Glesner v. Dembrosky, 73 N.C.App. 594, 327 S.E.2d 60 (1985), it was held that damages may not be awarded to a private party because of any contempt, which is an offense against the State. Though plaintiff argued otherwise in the brief it cited no authority for its position. Second, the provision in the criminal contempt adjudication requiring defendant to pay plaintiff's attorney's fees is also invalid; because under our law attorney's fees are taxable against a party only when authorized by statute, United Artists Records, Inc., et al v. Eastern Tape Corp., 18 N.C.App. 183, 196 S.E.2d 598, cert. denied, 283 N.C. 666, 197 S.E.2d 880 (1973), and no statute authorizes the taxing of attorney's fees under the circumstances recorded here. Nor for that matter are we aware of any North Carolina Court decision that might authorize the award. Conrad v. Conrad, 82 N.C.App. 758, 348 S.E.2d 349 (1986), relied upon by plaintiff, does not apply as that case involved the enforcement of an equitable distribution award by civil contempt. Third, the provisions in both contempt adjudications suspending the jail sentences imposed upon the condition that defendant not compete with plaintiff before 31 December 1988 are also invalid. Since the consent judgment provided for the non-competition term to end on 31 January 1988 the court's authority was only to enforce that provision; *435 it had no authority to extend the period beyond that agreed to and ordered. Masterclean of North Carolina v. Guy, 82 N.C.App. 45, 345 S.E.2d 692 (1986). Though plaintiff again argued otherwise in the brief, no authority for its position was cited.

The judgment provisions held to be invalid are vacated and the rest of the judgment is affirmed.

Vacated in part; affirmed in part.

WELLS and PARKER, JJ., concur.