{
  "id": 11915831,
  "name": "BETTY M. HELBEIN v. SOUTHERN METALS COMPANY, INC. and ROBERT HELBEIN",
  "name_abbreviation": "Helbein v. Southern Metals Co.",
  "decision_date": "1995-07-05",
  "docket_number": "No. COA94-1101",
  "first_page": "431",
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  "casebody": {
    "judges": [
      "Judges JOHNSON and MARTIN, JOHN C., concur."
    ],
    "parties": [
      "BETTY M. HELBEIN v. SOUTHERN METALS COMPANY, INC. and ROBERT HELBEIN"
    ],
    "opinions": [
      {
        "text": "GREENE, Judge.\nBetty M. Helbein (plaintiff) and non-party Richard Helbein (movant) appeal from an order of the trial court denying their motion to set aside an earlier order which restricted the right of movant to attend \u201cany further proceedings in this action.\u201d\nThe record shows that, following a court proceeding in this matter and \u201cwhile in the hallway immediately outside the courtroom,\u201d movant \u201ccommunicat[ed] threats regarding his intention to harm Robert Helbein and others.\u201d After that incident, the trial court, on 3 September 1992, without any notice to the movant, entered the following order:\n1. Richard Helbein shall not:\n(a) Contact, go about, harass or bother his brother, Robert Helbein, or any member of Robert Helbein\u2019s family, or any employee of Southern Metals Company.\n(b) Possess any firearms except in his own home.\n(c) Contact, go about, harass or bother counsel for Southern Metals, Mr. Jeffrey Davis, or members or employees of his firm, nor is Richard Helbein to go about his residence or place of business.\n(d) Communicate to any person, directly or indirectly, any threat involving Robert Helbein or any member of his family, any Southern Metals employee or member of their family, Jeffrey Davis, or any member of his family, or any other person in any way connected with this action.\n(e) Go about the premises of Southern Metals, Moore & VanAllen, or the residence of any person described above.\n2. Richard Helbein is further hereby prohibited from attending any further proceedings in this action unless he is under subpoena.\nDefendant subsequently made a motion that movant be held in contempt for violating this 3 September order. After a hearing on defendant\u2019s motion, the trial court entered an order, on 24 February 1994, which included the court\u2019s conclusion that movant\u2019s actions, as alleged by defendant\u2019s motion, did not constitute a violation of the 3 September order.\nOn 7 March 1994, movant and plaintiff made a motion, pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 60, which requested that the trial court set aside the 3 September order \u201con the grounds that the order is jurisdictionally defective and therefore void.\u201d- This motion argued that movant received no notice of the proceedings which resulted in the 3 September order and that the court thus lacked personal jurisdiction rendering its order void. In an order entered 24 May 1994, the trial court denied the 7 March motion.\nThe issue is whether the 3 September order is void for want of personal jurisdiction.\nAbsent a general appearance, due process requires that a person who will be subject to a court\u2019s order be given \u201creasonable notice and opportunity to be heard\u201d before any proceeding which results in such order being entered against him. Harris v. Harris, 104 N.C. App. 574, 577, 410 S.E.2d 527, 530 (1991); see also First Union Nat\u2019l Bank v. Rolfe, 83 N.C. App. 625, 628, 351 S.E.2d 117, 119 (1986) (general statutes and North Carolina Constitution mandate that person be given \u201cnotice and an opportunity to be heard before he can be deprived of\u2019 a right). Moreover, the 3 September order is, in effect, an injunction and North Carolina law requires that persons affected by injunctions be given notice before the issue of an injunction, unless the injunction is a \u201ctemporary restraining order,\u201d limited in duration. N.C.G.S. \u00a7 1A-1, Rule 65 (1990). There is no dispute that movant received no notice and was not given an opportunity to be heard before the 3 September order was entered. There being no notice to movant, the court lacked personal jurisdiction over movant and the 3 September order is void. See Allred v. Tucci, 85 N.C. App. 138, 142, 354 S.E.2d 291, 294 (judgments entered without personal jurisdiction are void), disc rev. denied, 320 N.C. 166, 358 S.E.2d 47 (1987).\nA party who is subject to an order by a trial court which is void, may attack that order at any time, pursuant to Rule 60(b)(4) of the Rules of Civil Procedure. N.C.G.S. \u00a7 1A-1, Rule 60(b) (1990); Allred, 85 N.C. App. at 141, 354 S.E.2d at 294 (void judgment is legal nullity which may be attacked at any time). Therefore, the trial court erred in failing to grant the 7 March motion for relief pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 60(b) and the matter is remanded for entry of an order vacating the 3 September 1992 order.\nReversed and remanded.\nJudges JOHNSON and MARTIN, JOHN C., concur.",
        "type": "majority",
        "author": "GREENE, Judge."
      }
    ],
    "attorneys": [
      "A. Marshall Basinger, II, for plaintiff-appellant and non-party Richard Helbein.",
      "Moore & Van Allen, PLLC, by Jeffrey J. Davis, Gregory J. Murphy, and Karin M. McGinnis, for defendant-appellees."
    ],
    "corrections": "",
    "head_matter": "BETTY M. HELBEIN v. SOUTHERN METALS COMPANY, INC. and ROBERT HELBEIN\nNo. COA94-1101\n(Filed 5 July 1995)\nInjunctions \u00a7 33 (NCI4th)\u2014 no notice before order entered\u2014 order void\nWhere a nonparty received no notice and was not given an opportunity to be heard before entry of the trial court\u2019s order prohibiting him from harassing or contacting defendants, their employees and attorneys, communicating threats, possessing firearms, or attending any further proceedings in this action, the trial court lacked personal jurisdiction over the nonparty, and the order was therefore void.\nAm Jur 2d, Injunctions \u00a7\u00a7 249 et seq.\nAppeal by plaintiff and non-party Richard Helbein from order entered 24 May 1994 in Mecklenburg County Superior Court by Judge Charles C. Lamm, Jr. Heard in the Court of Appeals 7 June 1995.\nA. Marshall Basinger, II, for plaintiff-appellant and non-party Richard Helbein.\nMoore & Van Allen, PLLC, by Jeffrey J. Davis, Gregory J. Murphy, and Karin M. McGinnis, for defendant-appellees."
  },
  "file_name": "0431-01",
  "first_page_order": 465,
  "last_page_order": 467
}
