{ "id": 9497329, "name": "TIMOTHY L. PEACHES and DIERDRE R. PEACHES, Plaintiffs v. SEAN A. PAYNE and BRANDY FOLSON, Defendants", "name_abbreviation": "Peaches v. Payne", "decision_date": "2000-08-15", "docket_number": "No. COA99-821", "first_page": "580", "last_page": "587", "citations": [ { "type": "official", "cite": "139 N.C. App. 580" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "517 S.E.2d 605", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "350 N.C. 656", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132127 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/350/0656-01" ] }, { "cite": "496 S.E.2d 592", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1998, "pin_cites": [ { "page": "594" }, { "page": "595" }, { "page": "594" }, { "page": "594" } ], "opinion_index": 0 }, { "cite": "128 N.C. App. 577", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11656056 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "581" }, { "page": "581" } ], "opinion_index": 0, "case_paths": [ "/nc-app/128/0577-01" ] }, { "cite": "254 S.E.2d 794", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1979, "pin_cites": [ { "page": "795" } ], "opinion_index": 0 }, { "cite": "41 N.C. App. 306", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549203 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc-app/41/0306-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90-157.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1999, "pin_cites": [ { "parenthetical": "\"Chiropractor as expert witness\"" } ], "opinion_index": 0 }, { "cite": "268 S.E.2d 452", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "300 N.C. 678", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564413 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/300/0678-01" ] } ], "analysis": { "cardinality": 762, "char_count": 15473, "ocr_confidence": 0.768, "pagerank": { "raw": 8.724443257361318e-08, "percentile": 0.49415467851600614 }, "sha256": "064580ab9b8405174bbea9169b1db966706c1febba6c502e11696cfac8417c85", "simhash": "1:a4e5138e665e5e18", "word_count": 2619 }, "last_updated": "2023-07-14T19:40:43.899160+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and McGEE concur." ], "parties": [ "TIMOTHY L. PEACHES and DIERDRE R. PEACHES, Plaintiffs v. SEAN A. PAYNE and BRANDY FOLSON, Defendants" ], "opinions": [ { "text": "EDMUNDS, Judge.\nContemnor William E. Moore, Jr., appeals the trial court\u2019s finding of criminal contempt and order that he pay the costs of the underlying action as a sanction. We reverse.\nThe contemnor\u2019s actions and resulting court rulings that are the subject of this appeal occurred during a personal injury trial that began 8 March 1999. The trial court initially instructed the attorneys for both parties to select the jury using the procedure approved in State v. Phillips, 300 N.C. 678, 268 S.E.2d 452 (1980) and warned them: \u201c[I]f you don\u2019t select that jury, in accordance with State Vs. Phillips. you\u2019re going to hear from me.\u201d (In Phillips, the court stated that counsel should not attempt to indoctrinate jurors, stake them out or establish rapport with them during voir dire, and that when possible, questions should be asked collectively of the entire panel.) The next day, after jury selection had been completed, the trial court chided both attorneys:\nYou took too long selecting a jury yesterday. Ought to be done in about two hours.\n. . . You were [too] verbose, as lawyers tend to be. And, you didn\u2019t follow State Vs. Phillivs. So, the reason I\u2019m bringing this to your attention is the next time I have a case with either one of ' you, you\u2019re on notice.\nContemnor called plaintiff Timothy L. Peaches (Mr. Peaches) as his first witness. He established on direct examination that Mr. Peaches saw defendants\u2019 automobile \u201cfrom [his] left, careen into \u2014 on Independence Boulevard, . . . [go] off into the grass, into the other lane, [spin] around; continue[] up in front of [plaintiffs] and on-going traffic, turned sideways.\u201d Contemnor then asked Mr. Peaches\u2019 opinion of the speed of defendants\u2019 car. When defense counsel objected on the grounds of improper foundation, the trial court sustained the objection. Contemnor asked additional questions in an attempt to lay a proper foundation, then asked Mr. Peaches\u2019 opinion of the speed of defendants\u2019 car four more times. Each time, the trial court sustained defendants\u2019 objections. Contemnor requested a bench conference, which was not recorded. The jury remained in the courtroom during the bench conference. When contemnor resumed his direct examination, the trial court interrupted him and excused the jury. The following exchange ensued:\nThe Court: Now Mr. Moore, if you want to be, in the future, sure of what the law is before you come up here to argue with the Court about it. What you stated the law to be is not the law. I can cite you any number of cases that would so indicate. You should have been prepared to handle [] that before you began trial of this case.\nMr. Moore: Well, Your Honor, I am sure of what I know of the law. I don\u2019t have a cite because it\u2019s a pretty basic principle with my 18 years of practice.\nThe Court: It\u2019s not.\nMr. Moore: I have tried many cases where that question has been asked and answered and the objection has been overruled.\nNow Judge, I may be wrong on the law and what I remember of it. But if I brought in every case authority for every basic principle, I would be able to fill the courtroom up with my library.\nThe Court: Well, the Objection Has Been Sustained because you have not laid the proper foundation.\nMr. Moore: I understand that.\nThe Court: You have still not laid a proper foundation.\nMr. Moore: Obviously, Your Honor, I have overlooked the part of the foundation that the Court is relying upon.\nThe Court: I\u2019m relying on the law.\nMr. Moore: Well, Your Honor, I understand that. I certainly respect your ruling. But, I disagree with you. And, I will certainly do my best to figure out what it is I\u2019ve left out of the foundation and do my best to represent these folks and get the evidence in.\nThe Court: I don\u2019t want to waste a lot more time with bench conferences.\nMr. Moore: Nor do I, Your Honor. But, I certainly\u2014\nThe Court: I want to make it clear to you, now. I don\u2019t want any questions raised about my rulings because if you do, you\u2019re going to be in [the baliffj\u2019s custody for a while. And, I wanted to make that clear to you, while the jury was out.\nMr. Moore: I understand, Your Honor. However, I also have a duty to zealously represent my clients and I will do what I have to do to try to get the evidence in.\nThe Court: Well, you just continue on, at your own peril.\nMr. Moore: Judge, the reason I asked for a conference, I understood your ruling is based on foundation. I thought I had laid a foundation. Obviously, I have not. I will attempt to do so, Your Honor.\nHowever, I will say that I find it, if the point is for us to move on and not take up a lot of time with bench conferences, a basic question of\u2014\nThe Court: That is the point.\nMr. Moore: \u2014a basic question of the lay witness\u2019 opinion of the speed of the vehicle that he saw, once it passed him, and that he observed it traveling at some speed, has been admitted in every court I\u2019ve practiced in, in these types of cases. I might be missing something.\nThe Court: I don\u2019t believe that\u2019s the case, Mr. Moore.\nMr. Moore: Well, Judge,\u2014\nThe Court: If it has, it\u2019s erroneous.\nMr. Moore: Your Honor, that\u2019s certainly \u2014 well, all right, sir. Let me see if I can\u2019t find another way to present the evidence for these folks and we\u2019ll go to the next one.\nContemnor made two more unsuccessful attempts on direct examination to elicit Mr. Peaches\u2019 estimate of defendants\u2019 speed. However, on re-direct, when contemnor established that Mr. Peaches observed defendants\u2019 automobile for approximately 150 yards and about six to seven seconds, the trial court allowed him to answer contemnor\u2019s question about speed.\nLater that morning, after the trial court excused the jurors for their lunch break, the court had the following conversation with the attorneys:\nThe Court: All right. Mr. Bolster, Mr. Moore finally got his question right. You ou[gh]t to read the case of Beaman Vs. Sheppard.\nMe. Mooee: Okay.\nThe Court: 35N.C.Ap.73 [sic], which says, among other things, that 80 feet is enough time to have an opportunity to observe to give an opinion as to speed.\nMe. Moore: Your Honor, I would like to apologize, for not having my case cites better prepared on that issue. I didn\u2019t anticipate a problem.\nThe Couet: I\u2019m looking at some books here that I started keeping when I started practicing law in 1960. And, they\u2019re up to date, to the last advance sheet. No reason why y\u2019all can\u2019t.\nMr. Moore: I did have a trial notebook, Your Honor. I picked up the wrong one. I appreciate the Court\u2019s patience.\nThe rest of 9 March 1999 consisted of the direct examination and part of the cross-examination of plaintiffs\u2019 expert chiropractic witness. Although contemnor made occasional objections, we see nothing in the transcript to suggest antagonism between con-temnor and the trial court. The trial court sustained one of contem-nor\u2019s objections and held a thorough voir dire before overruling another.\nThe trial resumed the next morning. Again, although contemnor raised occasional objections, we see no indication in the transcript of tension between contemnor and the trial court. However, during redirect examination of plaintiffs\u2019 chiropractor, on request of contem-nor, the court took judicial notice of N.C. Gen. Stat. \u00a7 90-157.2 (1999) (\u201cChiropractor as expert witness\u201d), which sets forth matters to which a properly qualified chiropractor may testify. Contemnor then asked the chiropractor his understanding of the meaning of the terms \u201cetiology,\u201d \u201cdiagnosis,\u201d and \u201cdisability.\u201d Although defense counsel did not object to this testimony, the trial court sua sponte instructed the jury \u201cnot to consider the answers that this witness gave with respect to the last statute,\u201d and contemnor objected \u201cfor the record.\u201d\nAfter contemnor\u2019s re-direct examination of the chiropractor, defendants\u2019 attorney conducted a re-cross examination. When con-temnor then sought an opportunity for re-re-direct examination, the following exchange occurred:\nMr. Moore: Very briefly, may I, Your Honor?\nThe Court: No, sir.\nMr. Moore: OBJECTION, FOR THE RECORD.\nThe Court: All right. Let the record show that this witness has been examined and cross-examined and direct examined and re-direct examined. The Court, in its discretion and in [its] supervisory power to conduct the trial of the case ... is not allowing any further questions by counsel for either side.\nMr. Moore: Yes, Your Honor. Let the record also reflect new matters were raised on cross-examination, to which plaintiffs counsel has not been given an opportunity to examine this witness. And, that\u2019s the basis of my objection.\nThe Court: Take the jury out, please sir.\n{The following proceedings take place in open court, outside the presence of the jury.}\nThe Court: Come down, Doctor.\nMr. Moore, on several occasions this morning, you have questioned the rulings of the Court. And, one of those occasions was when you were asking the doctor about his interpretation of a statute, which clearly, he was not qualified to do. And, you objected to that.\nAnd, so, we\u2019re going to continue this case until in the morning at 9:30. And, in the meantime, you\u2019re in the custody of the sheriff, for your disrespect toward this Court.\nWe will be in recess until 9:30 in the morning. Take him into custody, Mr. Sheriff.\nContemnor was incarcerated until 5:00 p.m. that day. The next morning, contemnor made a handsome apology to the trial court and to the parties for any action or conduct that the court perceived as being disrespectful, and the court graciously accepted the apology. However, when contemnor advised that his clients hoped the trial would continue, the trial court instead declared a mistrial and issued an order that was both recorded in the transcript and later drawn up in writing by the clerk of court. Although the court made findings of fact as to contemnor\u2019s behavior, neither the oral nor the written order included a finding that contemnor had been given an opportunity to be heard nor a summary of any response contemnor made. In light of our holding, we need not address the court\u2019s findings of fact in its order.\nThe controlling issue before us is whether the trial court fully complied with statutory requirements before holding contemnor in contempt. Except under circumstances not pertinent to the case at bar, punishment may not be imposed for criminal contempt unless \u201cthe act or omission was preceded by a clear warning by the court that the conduct is improper.\u201d N.C. Gen. Stat. \u00a7 5A-12(b)(2) (1999). In addition, where the imposition of a penalty for contempt is, as here, summary (i.e., \u201cimmediate,\u201d Black\u2019s Law Dictionary 1449 (7th ed. 1999)), \u201c[b]efore imposing measures ... the judicial official must give the person charged with contempt summary notice of the charges and a summary opportunity to respond and must find facts supporting the summary imposition of measures in response to contempt.\u201d N.C. Gen. Stat. \u00a7 5A-14(b) (1999) (emphasis added).\nThese pertinent statutory requirements have been interpreted in two apposite opinions of this Court. In State v. Verbal, 41 N.C. App. 306, 254 S.E.2d 794 (1979), we reversed a trial court\u2019s determination that an attorney was in contempt for being eighteen minutes late in returning to court after a lunch recess. We held:\n[I]t is implicit in [N.C. Gen. Stat. \u00a7 5A-14(b)] that the judicial official\u2019s findings in a summary contempt proceeding should clearly, reflect that the contemnor was given an opportunity to be heard, along with a summary of whatever response was made and that judicial official\u2019s finding that the excuse or explanation proffered was inadequate or disbelieved.\nId. at 307, 254 S.E.2d at 795. Because the attorney in Verbal was not given an opportunity to be heard, and because the trial court\u2019s findings did not \u201cindicate what, if any, standard of proof was applied,\u201d we reversed the contempt finding. Id.\nMore recently, in In re Owens, a news reporter was subpoenaed to testify at a motion in limine, which was being conducted to determine the admissibility of statements made by a defendant to the reporter. 128 N.C. App. 577, 496 S.E.2d 592 (1998), aff\u2019d per curiam, 350 N.C. 656, 517 S.E.2d 605 (1999). The reporter refused to testify, claiming a qualified privilege, and was held in contempt. The reporter appealed, arguing in part, that she had not received a hearing before she was held in contempt. We noted that \u201cthe official comments to N.C. Gen. Stat. \u00a7 5A-14 state that its provisions are not intended to require a hearing, or anything approaching a hearing. Instead, the requirements of the statute are meant to ensure that the individual has an opportunity to present reasons not to impose a sanction.\u201d Id. at 580-81, 496 S.E.2d at 594. We held that the contemnor in Owens had ample opportunity during her testimony at the hearing on the motion in limine to present on the record her reasons for declining to comply with the court\u2019s order and affirmed the finding of contempt.\nApplying these holdings to the case at bar, we conclude that the trial court failed to comply with all the statutory requirements by failing to give contemnor a \u201csummary opportunity to respond.\u201d N.C. Gen. Stat. \u00a7 5A-14(b). Although this Court held in Owens that \u201c[n]otice and a formal hearing are not required when the trial court promptly punishes acts of contempt in its presence,\u201d Owens, 128 N.C. App. at 581, 496 S.E.2d at 595, we also held that the statute does guarantee a potential contemnor a chance to respond to the charges, id. at 580-81, 496 S.E.2d at 594. This holding is consistent with the mandatory language of the statute. See N.C. Gen. Stat. \u00a7 5A-14(b).\nThe transcript reveals that the court advised contemnor that, because he had questioned the rulings of the court and shown disrespect for the court, he was in the bailiffs custody. Court was immediately recessed without contemnor having been given \u201can opportunity to present reasons not to impose a sanction.\u201d Owens, 128 N.C. App. at 581, 496 S.E.2d at 594; see also 1 North Carolina Trial Judges\u2019 Bench Book for Superior Court sec. I, ch. 2, pt. D(2)(a)-(b) (3d ed. 1999).\nTrial judges must have the ability to control their courts. However, because a finding of contempt against a practitioner may have significant repercussions for that lawyer, judges must also be punctilious about following statutory requirements. Because the trial court failed to follow the procedure mandated by N.C. Gen. Stat. \u00a7 5A-14(b), we reverse the finding of contempt.\nReversed.\nJudges GREENE and McGEE concur.", "type": "majority", "author": "EDMUNDS, Judge." } ], "attorneys": [ "Michael F Easley, Attorney General, by Daniel P. O\u2019Brien, Assistant Attorney General, for the State.", "Maxwell Freeman and Bowman, P.A., by James B. Maxwell, for contemnor-appellant." ], "corrections": "", "head_matter": "TIMOTHY L. PEACHES and DIERDRE R. PEACHES, Plaintiffs v. SEAN A. PAYNE and BRANDY FOLSON, Defendants\nNo. COA99-821\n(Filed 15 August 2000)\nContempt\u2014 criminal \u2014 attorney\u2014no opportunity to respond to charges\nThe trial court erred by holding plaintiffs trial attorney in criminal contempt based on contemnor\u2019s questioning of the rulings of the court and allegedly showing disrespect for the court, because the trial court did not comply with the statutory requirements when it failed to give contemnor a summary opportunity to respond to the charges and to present reasons not to impose a sanction as required by N.C.G.S. \u00a7 5A-14(b).\nAppeal by contemnor William E. Moore, Jr., from order entered 11 March 1999 by Judge Marvin K. Gray in Mecklenburg County Superior Court. Heard in the Court of Appeals 18 April 2000.\nMichael F Easley, Attorney General, by Daniel P. O\u2019Brien, Assistant Attorney General, for the State.\nMaxwell Freeman and Bowman, P.A., by James B. Maxwell, for contemnor-appellant." }, "file_name": "0580-01", "first_page_order": 612, "last_page_order": 619 }