Civil Practice – Contempt – Refusal to Comply – Real Property – Trespass

Adams Creek Associates v. Davis (Lawyers Weekly No. 011-011-18, 28 pp.) (Rick Elmore, J.) (Donna Stroud, J., dissenting) Appealed from Carteret County Superior Court (Benjamin Alford, J.) N.C. App.

Holding: Regardless of whether defendants have the ability to comply with the trial court’s order – requiring them to remove structures from plaintiff’s land and to attest never to trespass on plaintiff’s land again – defendants insist that they will not comply. Consequently, G.S. § 5A-21(a) did not require the trial court to make findings regarding defendants’ ability to comply with the contempt order.

We affirm the trial court’s order denying defendants’ motions for release from conditional incarceration for civil contempt.

Upon an incarcerated contemnor’s motion, “the court must determine if he is subject to release and, on an affirmative determination, order his release.” G.S. § 5A-22(b). Absent a showing that a contemnor purged his contempt, he may move for release based upon “a present inability to comply with the order . . . .”

A contemnor cannot satisfy this burden by testifying that, even if he could comply with the order, he would not. Such a showing would vitiate the inability-to-comply defense.

Here, defendants alleged in their motions that they were financially unable to comply with the 2011 contempt order. However, at the hearing, defendants readily admitted that they would not perform the property-removal purge condition, even if they could.

Since the purge condition acts did not require defendants to pay a monetary judgment, defendants may be imprisoned “without further hearing.” And because the hearing was not an initial or continuing adjudication of contempt, the trial court had no obligation under G.S. § 5A-21(a) to make findings regarding defendants’ ability to comply with the contempt order.

Based on their refusals to perform the attestation purge act, and their admissions that they would refuse to perform the property-removal purge act even if they were able, defendants effectively vitiated their inability defense. Under these circumstances, the trial court did not err in refusing to make findings on defendants’ alleged inability to comply with the contempt order.

Defendants have not removed their structures from plaintiff’s property; thus, the purpose of the 2004 summary judgment order could still be served by compliance.

Finally, defendants may be released by performing affirmative acts required by the court, so the contempt order is coercive and thus civil. Accordingly, continuation of defendants’ incarceration under the contempt order is not punitive.

Affirmed.

Dissent

(Stroud, J.) Willfulness and ability to comply are two different things, and the trial court erred by not considering ability.

Under G.S. § 5A-21(a), the trial court must find both that “[t]he noncompliance . . . is willful;” and that “[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.” § 5A-21(a)(2a),(3).

Defendants’ noncompliance is willful under § 5A-21(a)(2a). They stubbornly refuse to recognize that the land is not theirs, and they refuse to perform the one part of the order they have the ability to perform: signing a piece of paper with their promise not to go on the land. But to be in continuing civil contempt, defendants must also be “able to comply with the order” or “able to take reasonable measures that would enable” them to comply with the order. § 5A21(a)(3).

Logically, they must be able to comply with all of the provisions of the order, or they cannot comply with the order. Being able to comply with a part of the order – signing a promise not to go on the land – is not the same as ability to comply with the entire order. Nor would the primary purpose of the order be served by this symbolic act, since the primary purpose of the order is to make the defendants remove the structures on the land.

Defendants’ evidence shows that, although they once had the ability to demolish the structures on the property themselves, their ability to do the work themselves is gone. Furthermore, defendants do not have the $46,000 they would have to pay someone else to do the demolition work. There is absolutely no reason to believe that their ability to do the demolition themselves will improve with time or that their financial circumstances will improve with continued incarceration.

The scenario before us is a rare situation in which the contemnors maintain their unwillingness to perform, and they are in fact unable to perform, even if they wanted to.

If defendants do not have the ability to perform, or to take reasonable measures to perform, and there is no reason to believe that they ever will have the ability to perform, they should not remain incarcerated forever for “continuing civil contempt” under §§ 5A-21(a) and 5A-22. The U.S. Supreme Court has noted that if compliance is factually impossible, there is no reason for civil contempt.

The trial court is required by § 5A-21(a)(3) to make findings of fact regarding defendants’ actual ability to comply or to take reasonable measure to comply, and the trial court failed to make these findings. I would therefore reverse and remand to the trial court for it to make findings of fact as to defendants’ actual ability to perform all of the purge conditions of the 2011 contempt order, as well as any conclusions of law supported by those findings of fact.

I cannot fathom why plaintiff does not simply bulldoze the structures remaining on the property and proceed with whatever plans for development it may have. This would be far cheaper and more productive that continuing to insist that two destitute and stubborn men do something they are not capable of doing.

If defendants are released from jail and enter the property – and they probably will –Carteret County’s law enforcement can handle the situation. Defendants may end up in jail again after they are arrested for trespassing. But at least defendants’ inability to pay for the removal of structures from the property will be irrelevant in their criminal prosecution. And the penalty for trespassing is not life imprisonment.