Rose's Stores, Inc. v. Tarrytown Center, Inc., 439

• Decision Date: 03 May 1967
• Docket Number: No. 439,439
• Citation: 270 N.C. 206,154 S.E.2d 313
• Parties: ROSE'S STORES, INC. v. TARRYTOWN CENTER, INC., and Tarrytown Development Company.
• Court: North Carolina Supreme Court

Page 313

154 S.E.2d 313

270 N.C. 206

ROSE'S STORES, INC. v. TARRYTOWN CENTER, INC., and Tarrytown Development Company.

No. 439.

Supreme Court of North Carolina.

May 3, 1967.

Perry, Kittrell, Blackburn & Blackburn, Henderson, for appellee, Rose's Stores, Inc.

Battle, Winslow, Scott & Wiley, Rocky Mount, Simpson, Thacher & Bartlett, New York City, for defendants; Robert M. Wiley, Rocky Mount, John A. Guzzetta, and Daniel R. Solin, New York City, of counsel.

BRANCH, Justice.

The questions presented by this appeal are:

1. Was there evidence to support the finding that the temporary restraining order was violated?

2. Was there evidence to support the finding that the appellants Wilfully violated the terms of the temporary restraining order?

3. Was the court's order punishing defendants for contempt and requiring them to perform certain affirmative acts properly entered?

4. Did the court err in finding as a fact that defendants violated the temporary restraining order by building a canopy at a height less than 14 feet 6 inches?

The temporary restraining order entered by Judge Braswell on 27 May 1966 was not void. Neither appellants nor appellee appealed from the order, and they are thus bound to respect its terms. Nobles v. Roberson, 212 N.C. 334, 193 S.E. 420.

The findings of fact by the judge in contempt proceedings are conclusive on appeal when supported by any competent evidence, Royal Cotton Mill Co. v. Textile Workers Union, 234 N.C. 545, 67 S.E.2d 755, and are reviewable only for the purpose of passing on their sufficiency to warrant the judgment. In re Adams, 218 N.C. 379, 11 S.E.2d 163.

Plaintiff offered evidence tending to show that sliding doors were hung so as to give the appearance that the driveway was closed to through traffic, and which in fact did impede through traffic in that a watchman was required to open the doors when an automobile approached and then precede the car through the mall to open and close the second door. On occasion the watchman detained operators of vehicles for the purpose of asking questions. It also appears that during the process of construction the driveway was broken up and covered with dirt; trucks, ladders and building materials were left in the driveway; and for a period of time, strings were put across the driveway. Thus, there was plenary competent evidence for the trial judge to find facts sufficient to warrant the finding that the acts 'interfered with, obstructed, delayed and prevented the free flow of vehicular and pedestrian traffic along said driveway.'

Defendants' contention that there was not sufficient evidence to support the finding they wilfully violated the terms of the temporary restraining order cannot be sustained.

In the case of Western v. John L. Roper Lumber Co., 158 N.C. 270, 73 S.E. 799, defendants were enjoined from cutting timber on land, the title to which was in dispute. Defendants, upon their own survey and without acquiescence of the court or plaintiff, cut timber in the disputed territory. Finding no error in the trial judge's judgment ruling defendants in contempt, this Court held:

'We have high authority for saying that a party enjoined must not do the prohibited thing, nor permit it to be done by his connivance, nor effect it by trick or evasion. He must do nothing, directly or indirectly, that will render the order ineffectual, either wholly or partially so. The order of the court must be obeyed implicitly, according to its spirit and in good faith Rapalje on Contempt, sec. 40.

The motive for violating the order is not considered in passing upon the question of contempt, and the respondent cannot purge himself by a disavowal of any wrong intent. It is the fact of his obedience that alone will be considered.'

The Court, considering the same question in Hart Cotton Mills v. Abrams, 231 N.C. 431, 57 S.E.2d 803, held:

'The oath of a contemner is no longer a bar to a prosecution for contempt. 'The question is not whether the respondent intended to show his contempt for the court, but whether he intentionally did the acts which were a contempt of the court.' In re Fountain, 182 N.C. 49, 108 S.E. 342, 18 A.L.R. 208; In re Parker, 177 N.C. 463, 99 S.E. 342; Herring v. Pugh, 126 N.C. 852, 36 S.E. 287; In re Young, 137 N.C. 552, 50 S.E. 220; In re Gorham, 129 N.C. 481, 40 S.E. 311.

"The violation of a judicial mandate stands upon different ground, and the only inquiry is, whether its requirements have been wilfully disregarded. If the act is intentional, and violates the order, the penalty is incurred, whether an indignity to the Court or a contempt of its authority was or was not the motive for it.' Green v. Griffin, 95 N.C. 50; Nobles v. Roberson, 212 N.C. 334, 193 S.E. 420.

'The respondents having sought to purge themselves, the burden was on them to establish facts sufficient for that purpose.'

See also Herring v. Pugh, 126 N.C. 852, 36 S.E. 287; In re Parker, 177 N.C. 463, 99 S.E. 342.

Here the defendants committed acts which clearly violated the terms of Judge Braswell's order when they had it in their power to obey its terms. They have failed to show facts sufficient to purge themselves.

Appellants contend that the court's order punishing them for contempt and requiring them to perform certain affirmative acts was improperly entered. In order to determine this question, we must consider the law governing contempt in this jurisdiction.

Luther v. Luther, 234 N.C. 429, 67 S.E.2d 345, holds:

'A person guilty of any of the acts or omissions enumerated in the eight subsections of G.S. § 5--1 may be punished for contempt because such acts or omissions have a direct tendency to interrupt the proceedings of the court or to impair the respect due to its authority. A person guilty of any of the acts or neglects catalogued in the seven subdivisions of G.S. § 5--8 is punishable as for contempt because such acts or neglects tend to defeat, impair, impede, or prejudice the rights or remedies of a party to an action pending in court.

'It is essential to the due administration of justice in this field of the law that the fundamental distinction between a proceeding for contempt under G.S. § 5--1 and a proceeding as for contempt under G.S. § 5--8 be recognized and enforced. The importance of the distinction lies in differences in the procedure, the punishment, and the right of review established by law for the two proceedings.'

The procedure to punish As for contempt is by order to show cause based upon a petition, affidavit or other proper verification charging a wilful violation of an order of court. G.S. § 5--7 and G.S. § 5--9. Contempt committed in the actual or constructive presence of the court may be punished summarily. G.S. § 5--5.

In Erwin Mills, Inc. v. Textile Workers Union, 234 N.C. 321, 67 S.E.2d 372, this Court stated:

'* * * And whether the movant uses a petition or other document to obtain an order to show cause in such proceeding, it is the affidavit or verification that imports the verity to the charge of violating the judgment or order of the court, which is required upon which to base an order to show cause in such instances. G.S. § 5--7; Safie Manufacturing Co. v. Arnold, 228 N.C. 375, 45 S.E.2d 577; In re Deaton, 105 N.C. 59, 11 S.E. 244.'

The court must specify the particulars of the offense on the record by stating the words, acts or gestures amounting to direct...