{ "id": 4163191, "name": "THELMA GAINEY, Plaintiff v. HERBERT F. GAINEY, Defendant", "name_abbreviation": "Gainey v. Gainey", "decision_date": "2008-12-02", "docket_number": "No. COA07-1573", "first_page": "186", "last_page": "190", "citations": [ { "type": "official", "cite": "194 N.C. App. 186" } ], "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": "665 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641750 ], "year": 2008, "pin_cites": [ { "page": "524", "parenthetical": "\"In order to prevail in [his] action for return of the [property], plaintiff needed to show that [he] was entitled to immediate possession of the property.'' (Emphasis added.)" } ], "opinion_index": 0, "case_paths": [ "/se2d/665/0518-01" ] }, { "cite": "559 S.E.2d 201", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "205" } ], "opinion_index": 0 }, { "cite": "148 N.C. App. 448", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9366530 ], "year": 2002, "pin_cites": [ { "page": "451" } ], "opinion_index": 0, "case_paths": [ "/nc-app/148/0448-01" ] }, { "cite": "151 L. Ed. 2d 240", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2001, "opinion_index": 0 }, { "cite": "534 U.S. 943", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9171522, 9171561, 9171916, 9171597, 9171724, 9171774, 9171633, 9171447, 9171417, 9171674, 9171835, 9171486 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/us/534/0943-04", "/us/534/0943-05", "/us/534/0943-12", "/us/534/0943-06", "/us/534/0943-09", "/us/534/0943-10", "/us/534/0943-07", "/us/534/0943-02", "/us/534/0943-01", "/us/534/0943-08", "/us/534/0943-11", "/us/534/0943-03" ] }, { "cite": "214 F.3d 408", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9961986 ], "year": 2000, "pin_cites": [ { "page": "411", "parenthetical": "\"It is well settled that the Government may seize evidence for use in investigation and trial, but that it must return the property once the criminal proceedings have concluded, unless it is contraband or subject to forfeiture.\" (Emphasis added.)" } ], "opinion_index": 0, "case_paths": [ "/f3d/214/0408-01" ] }, { "cite": "594 S.E.2d 788", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "792", "parenthetical": "affirming the trial court's refusal to return seized firearms to a known drug user because \"the trial court cannot issue an order that would place the court and defendant in violation of federal law\"" } ], "opinion_index": 0 }, { "cite": "163 N.C. App. 719", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8920575 ], "year": 2004, "pin_cites": [ { "page": "725-26", "parenthetical": "affirming the trial court's refusal to return seized firearms to a known drug user because \"the trial court cannot issue an order that would place the court and defendant in violation of federal law\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/163/0719-01" ] }, { "cite": "556 S.E.2d 577", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "354 N.C. 365", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138470, 138323, 138489, 138494, 138495 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/354/0365-03", "/nc/354/0365-04", "/nc/354/0365-02", "/nc/354/0365-01", "/nc/354/0365-05" ] }, { "cite": "551 S.E.2d 160", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "163", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "144 N.C. App. 623", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11436228 ], "year": 2001, "pin_cites": [ { "page": "628", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/144/0623-01" ] }, { "cite": "401 S.E.2d 638", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "644", "parenthetical": "citing N.C. Gen. Stat. \u00a7 1A-1, Rule 52" } ], "opinion_index": 0 }, { "cite": "328 N.C. 276", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2538159 ], "year": 1991, "pin_cites": [ { "page": "285", "parenthetical": "citing N.C. Gen. Stat. \u00a7 1A-1, Rule 52" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0276-01" ] }, { "cite": "18 U.S.C. \u00a7 922", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 3, "pin_cites": [ { "page": "(g)(4)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 530, "char_count": 9773, "ocr_confidence": 0.741, "pagerank": { "raw": 1.224091964542211e-07, "percentile": 0.5989903272352944 }, "sha256": "237656dfdf57603d9ceb07342ff2f747d4626db1a6d3f3b8a2164871b550b2e1", "simhash": "1:aabb7463533e2cc4", "word_count": 1606 }, "last_updated": "2023-07-14T16:50:43.594733+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and McCULLOUGH concur." ], "parties": [ "THELMA GAINEY, Plaintiff v. HERBERT F. GAINEY, Defendant" ], "opinions": [ { "text": "STROUD, Judge.\nThe Guilford County Sheriff (\u201cthe Sheriff\u2019) contends that the trial court erred when it granted defendant\u2019s motion for the return of weapons surrendered pursuant to a domestic violence protective order because defendant is prohibited from owning or possessing any firearm pursuant to 18 U.S.C. \u00a7 922. We reverse and remand. .\nI. Factual Background\nOn 4 December 2006 plaintiff filed a complaint pursuant to Chapter 50B seeking a domestic violence protective order (\u201cDVPO\u201d). The complaint alleged that on 3 December 2006 defendant \u201cgrabbed [plaintiff] by [the] neck and dug into [her] with his fingernails\u201d'and that defendant had physically and emotionally abused plaintiff throughout their forty-eight year marriage. Furthermore, the complaint alleged that defendant had \u201cseveral guns\u201d and had threatened plaintiff with a gun in the past.\nJudge Lawrence C. McSwain found that plaintiff had been \u201cplaced in fear of imminent serious bodily injury\u201d and entered an ex parte DVPO against defendant. The order prohibited defendant, inter alia, from threatening plaintiff, visiting plaintiff\u2019s residence or workplace, and \u201cpossessing, owning, . . . or purchasing a firearm for the effective period of th[e] Order.\" (Emphasis added.) However, the order did not specifically direct that defendant surrender his firearms to the sheriff. Guilford County Deputy Sheriff B. K. Henderson served the DVPO upon defendant on 4 December 2006. At Deputy Henderson\u2019s request, defendant surrendered seven (7) firearms. The ex parte DVPO was dissolved on 13 December 2006.\nOn 5 April 2007, defendant filed a pro se Motion for Return of Weapons Surrendered Under Domestic Violence Protective Order. Defendant filed an amended motion prepared by his counsel, which included a listing of the firearms in the Sheriff\u2019s custody, on 25 April 2007. The motion was heard on 29 August 2007. The Sheriff was represented by counsel at the hearing and opposed the motion, offering evidence that defendant had been committed to a mental institution in 2004 and arguing that he was thus precluded from receiving the firearms. The trial court entered an order on 31 August 2007 directing the Sheriff to return defendant\u2019s firearms. The Sheriff appeals.\nII. Legal Analysis\nOn appeal, the Sheriff argues that the trial court erred by (1) finding that the Sheriff improperly seized defendant\u2019s firearms, (2) failing to conduct an inquiry as required by N.C. Gen. Stat. \u00a7 50B-3.1(f) before ordering return of the firearms, and (3) ordering the return of the firearms to a person who was prohibited by the law from possessing them. We agree.\nThe appeal of an order for the return of firearms pursuant to N.C. Gen. Stat. \u00a7 50B-3.1(f) appears to be one of first impression. Therefore, our first task is to determine the appropriate standard of review.\nWhen the trial court sits as fact-finder without a jury: \u201cit must (1) find the facts on all issues joined in the pleadings; (2) declare the conclusions of law arising from the facts found; and (3) enter judgment accordingly.\u201d Stachlowski v. Stach, 328 N.C. 276, 285, 401 S.E.2d 638, 644 (1991) (citing N.C. Gen. Stat. \u00a7 1A-1, Rule 52).\nThe standard of appellate review for a decision rendered in a non-jury trial is whether there is competent evidence to support the trial court\u2019s findings of fact and whether the findings support the conclusions of law and ensuing judgment. Findings of fact are binding on appeal if there is competent evidence to support them, even if there is evidence to the contrary.\nSessler v. Marsh, 144 N.C. App. 623, 628, 551 S.E.2d 160, 163 (2001) (citations omitted), disc. review denied, 354 N.C. 365, 556 S.E.2d 577 (2001).\nThe trial Court's order contains only one substantive finding:\nThe Ex Parte Domestic Violence Order of Protection signed by the Honorable Lawrence C. McSwain and entered on 12-4-06 did not order defendant to surrender to the Sheriff firearms or other items pursuant to Paragraph 13, page 5 at said Order. Defendant\u2019s property was seized without an order of the court and such seizure was improper. \u25a0\nAccording to the statute, the trial court was required to conduct an inquiry before returning defendant\u2019s firearms and find facts as to the only substantive issue raised by the motion: \u201c[W]hether the defendant [was] subject to any State or federal law or court order that preclude[d] the defendant from owning or possessing a firearm.\u201d N.C. Gen. Stat. \u00a7 50B-3.1(f); see also State v. Oaks, 163 N.C. App. 719, 725-26, 594 S.E.2d 788, 792 (2004) (affirming the trial court\u2019s refusal to return seized firearms to a known drug user because \u201cthe trial court cannot issue an order that would place the court and defendant in violation of federal law\u201d); Fayetteville Publ\u2019g Co. v. Advanced Internet Tech, Inc., 190 N.C. App.--, \u2014, 665 S.E.2d 518, 524 (2008) (\u201cIn order to prevail in [his] action for return of the [property], plaintiff needed to show that [he] was entitled to immediate possession of the property.\u2019\u2019 (Emphasis added.)); accord Fed. R. Crim. P. 41(g) (\u201cA person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property\u2019s return. . . . The court must receive evidence on any factual issue necessary to decide the motion.\u201d); United States v. Bein, 214 F.3d 408, 411 (3rd Cir. 2000) (\u201cIt is well settled that the Government may seize evidence for use in investigation and trial, but that it must return the property once the criminal proceedings have concluded, unless it is contraband or subject to forfeiture.\u201d (Emphasis added.)), cert. denied, 534 U.S. 943, 151 L. Ed. 2d 240 (2001). However, rather than comply with the statute and squarely address the only substantive issue raised by the motion, the trial court made findings on the legality of the Sheriff\u2019s seizure of the firearms, an issue which was not raised by defendant\u2019s motion and on which no relevant evidence was presented. See McDevitt v. Stacy, 148 N.C. App. 448, 451, 559 S.E.2d 201, 205 (2002) (\u201c[A] pleading must give sufficient notice of the events or transactions which produced the claim to enable the adverse party to understand the nature of it and the basis for it, to file a responsive pleading, and to get any additional information he may need to prepare for trial.\u201d (Citation, quotation marks and ellipses omitted.)). Indeed, defendant did not challenge the propriety of the Sheriff\u2019s seizure of his firearms in either of his two motions for return and as best we can tell from the record, he voluntarily turned them over to the deputy.\nThere was highly persuasive evidence in the record that defendant had been committed to a mental institution in 2004, which under federal law would have precluded defendant from receiving a firearm. See 18 U.S.C. \u00a7 922(g)(4) (2006). Furthermore, there was no evidence in the record to indicate that the seizure of defendant\u2019s firearms by the Guilford County Sheriff\u2019s Department was illegal. Because the trial court did not make the findings required by the statute, and because the findings that it did make were not raised in the motion and were not supported by any relevant evidence, we reverse and remand in order for the trial court to conduct a proper inquiry as required by N.C. Gen. Stat. \u00a7 50B-3.1.\nReversed and remanded.\nJudges McGEE and McCULLOUGH concur.\n. The Sheriff filed a motion to dismiss this appeal as moot on 6 August 2008 because defendant died during the pendency of this appeal. However, the trial court must conduct the statutorily required inquiry for return of firearms to either the defendant, N.C. Gen. Stat. \u00a7 50B-3.1(f), or to a third party, N.C. Gen. Stat. \u00a7 50B-3.1(g). The Sheriff must still comply with the provisions of N.C. Gen. Stat. \u00a7 50B-3.1 in either returning the firearms to defendant\u2019s estate or heirs or in obtaining permission of the court for other disposition of the firearms. Thus, because the sheriff continues to hold the firearms, defendant\u2019s death does not moot the issue raised in this appeal.\n. The court shall determine whether the defendant is subject to any State or federal law or court order that precludes the defendant from owning or possessing a firearm. The inquiry shall include:\n(1) Whether the protective order has been renewed.\n(2) Whether the defendant is subject to any other protective orders.\n(3) Whether the defendant is disqualified from owning or possessing a firearm pursuant to 18 U.S.C. \u00a7 922 or any State law.\n(4) Whether the defendant has any pending criminal charges, in either State or federal court, committed against the person that is the subject of the current protective order.\nThe court shall deny the return of firearms, ammunition, or permits if the court finds that the defendant is precluded from owning or possessing a firearm pursuant to State or federal law ....\nN.C. Gen. Stat.-\u00a7 50B-3.1(f) (2007).", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Office of Guilford County Attorney, by Matthew L. Mason, for Guilford County Sheriff, BJ Barnes, appellant.", "No brieffiled on behalf of plaintiff.", "No brief filed on behalf of defendant." ], "corrections": "", "head_matter": "THELMA GAINEY, Plaintiff v. HERBERT F. GAINEY, Defendant\nNo. COA07-1573\n(Filed 2 December 2008)\nFirearms and Other Weapons\u2014 surrendered pursuant to domestic violence protective order \u2014 motion to return\u2014 statutory inquiry not conducted\nAn order for the return of firearms surrendered pursuant to a domestic violence protective order was remanded where the court did not conduct the inquiry required by N.C.G.S. \u00a7 50B-3.1(f), but made findings on the legality of the seizure, which was not raised by the motion and on which no relevant evidence was presented.\nAppeal by Guilford County Sheriff from order entered 31 August 2007 by Judge Linda L. Falls in Guilford County District Court. Heard in the Court of Appeals 26 August 2008.\nOffice of Guilford County Attorney, by Matthew L. Mason, for Guilford County Sheriff, BJ Barnes, appellant.\nNo brieffiled on behalf of plaintiff.\nNo brief filed on behalf of defendant." }, "file_name": "0186-01", "first_page_order": 218, "last_page_order": 222 }