{ "id": 4167964, "name": "INSULATION SYSTEMS, INC., Plaintiff v. JAMES FISHER, Defendant", "name_abbreviation": "Insulation Systems, Inc. v. Fisher", "decision_date": "2009-06-02", "docket_number": "No. COA08-915", "first_page": "386", "last_page": "391", "citations": [ { "type": "official", "cite": "197 N.C. App. 386" } ], "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": "453 S.E.2d 165", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "parenthetical": "per curiam" } ], "opinion_index": 0 }, { "cite": "339 N.C. 608", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2559772 ], "year": 1995, "pin_cites": [ { "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0608-01" ] }, { "cite": "437 S.E.2d 884", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "887" } ], "opinion_index": 0 }, { "cite": "113 N.C. App. 226", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521602 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "229" } ], "opinion_index": 0, "case_paths": [ "/nc-app/113/0226-01" ] }, { "cite": "589 S.E.2d 179", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "181", "parenthetical": "internal quotation marks and citations omitted" } ], "opinion_index": 0 }, { "cite": "161 N.C. App. 558", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8959285 ], "year": 2003, "pin_cites": [ { "page": "560", "parenthetical": "internal quotation marks and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/161/0558-01" ] }, { "cite": "464 S.E.2d 409", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "410" } ], "opinion_index": 0 }, { "cite": "342 N.C. 349", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 796111 ], "year": 1995, "pin_cites": [ { "page": "351" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0349-01" ] }, { "cite": "500 S.E.2d 105", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "107", "parenthetical": "citing Poole v. Miller, 342 N.C. 349, 351, 464 S.E.2d 409, 410 (1995)" } ], "opinion_index": 0 }, { "cite": "129 N.C. App. 413", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11650749 ], "year": 1998, "pin_cites": [ { "page": "415-16", "parenthetical": "citing Poole v. Miller, 342 N.C. 349, 351, 464 S.E.2d 409, 410 (1995)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0413-01" ] }, { "cite": "448 S.E.2d 528", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "337 N.C. 694", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2551555, 2551689, 2552697, 2552187, 2550815 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/337/0694-01", "/nc/337/0694-05", "/nc/337/0694-02", "/nc/337/0694-04", "/nc/337/0694-03" ] }, { "cite": "420 S.E.2d 124", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "128" } ], "opinion_index": 0 }, { "cite": "332 N.C. 184", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2505670 ], "year": 1992, "pin_cites": [ { "page": "191" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0184-01" ] }, { "cite": "444 S.E.2d 487", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "490" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 283", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12127010 ], "pin_cites": [ { "page": "288" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0283-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-324.5", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 1-324.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 1-324.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "opinion_index": 0 }, { "cite": "418 S.E.2d 841", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "845" } ], "opinion_index": 0 }, { "cite": "107 N.C. App. 154", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527276 ], "year": 1992, "pin_cites": [ { "page": "160" } ], "opinion_index": 0, "case_paths": [ "/nc-app/107/0154-01" ] }, { "cite": "589 S.E.2d 917", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "919", "parenthetical": "omission in original" } ], "opinion_index": 0 }, { "cite": "162 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8914248 ], "year": 2004, "pin_cites": [ { "page": "4", "parenthetical": "omission in original" } ], "opinion_index": 0, "case_paths": [ "/nc-app/162/0001-01" ] } ], "analysis": { "cardinality": 676, "char_count": 12197, "ocr_confidence": 0.759, "pagerank": { "raw": 6.770845263994211e-08, "percentile": 0.4127703970385918 }, "sha256": "1b5f67e580b6eba820843147a944b6459509f4d72be78c0eac588a3ced1e4e09", "simhash": "1:9b6972b5f04c34ea", "word_count": 1972 }, "last_updated": "2023-07-14T21:19:41.072184+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and Robert N. HUNTER, Jr. concur." ], "parties": [ "INSULATION SYSTEMS, INC., Plaintiff v. JAMES FISHER, Defendant" ], "opinions": [ { "text": "JACKSON, Judge.\nInsulation Systems, Inc. (\u201cplaintiff\u2019) appeals the trial court\u2019s order that it recover nothing in its action against James Fisher (\u201cdefendant\u201d), an officer and director of Fisher Roofs and Decks, Inc. (\u201cFisher Roofs\u201d). For the reasons stated below, we reverse and remand.\nOn or about 31 March 2006, plaintiff obtained a judgment in Rutherford County against Fisher Roofs. The judgment subsequently was transcribed to Catawba County, where Fisher Roofs was located. On or about 18 July 2006, the Deputy Clerk of Rutherford County Superior Court issued a Writ of Execution to Catawba County in the amount of $52,264.26, with interest continuing to accrue thereon at the rate of $9.15 per day until fully paid.\nOn 2 August 2006, Corporal Kerry Hayer (\u201cCorporal Hayer\u201d) of the Catawba County Sheriff\u2019s Office presented defendant with documents designed to ascertain the property of Fisher Roofs from which he could satisfy the outstanding judgment. At that time, defendant informed Coiporal Hayer that he would have the documents ready on 9 August 2006. When Corporal Hayer returned to retrieve the documents on 9 August 2006, they were not completed.\nCorporal Hayer again returned to defendant\u2019s office on 13 September 2006 and defendant informed him that the documents may be ready by 15 September 2006. When Corporal Hayer completed the Return of Execution on 25 September 2006, he noted that he had requested the completed documents from defendant on at least three occasions and that defendant refused to return the completed documents, stating that he needed more time to complete them. The only property Corporal Hayer ultimately was able to collect pursuant to the Writ of Execution was $1,408.38.\nPlaintiff filed its complaint on 22 December 2006, alleging that defendant was personally liable for the full amount of the judgment against Fisher Roofs because defendant had failed to comply with sections 1-324.2 and 1-324.4 of the North Carolina General Statutes. On 12 March 2007, defendant filed his answer admitting many allegations but denying that he had failed to comply with sections 1-324.2 and 1-324.4. He also asserted the affirmative defense of excusable neglect, claiming that his delay in returning the documents was due to significant health problems. Defendant attached the completed documents to his answer. They were signed and dated 25 January 2007.\nThe trial court heard the matter in a bench trial on 7 January 2008. The trial court found as fact that the documents provided to defendant contained no deadline for completion and that defendant did not intend to fail to comply, and that he ultimately did comply, with sections 1-324.2 and 1-324.4. Further, the court concluded as a matter of law that in order to hold defendant liable for his noncompliance, plaintiff was required to show that defendant acted intentionally or willfully in failing to respond to the sheriff\u2019s request for information. Having failed to show that defendant acted intentionally or willfully, the trial court ordered that plaintiff recover nothing from defendant. Plaintiff appeals.\nWe note that pursuant to the North Carolina Rules of Appellate Procedure, an appellant\u2019s brief is required to contain \u201ca concise statement of the applicable standard(s) of review for each question presented, which shall appear either at the beginning of the discussion of each question presented or under a separate heading placed before the beginning of the discussion of all the questions presented.\u201d N.C. R. App. P. 28(b)(6) (2007). Plaintiff has failed to state the applicable standard of review in its brief. However, we recognize that when the trial court sits without a jury, the standard of review for this Court\n\u201cis whether there was competent evidence to support the trial court\u2019s findings of fact and whether its conclusions of law were proper in light of such facts. Findings of fact by the trial court in a non-jury trial. . . are conclusive on appeal if there is evidence to support those findings. A trial court\u2019s conclusions of law, however, are reviewable de novo.\u201d\nLuna v. Division of Soc. Servs., 162 N.C. App. 1, 4, 589 S.E.2d 917, 919 (2004) (omission in original) (quoting Shear v. Stevens Building Co., 107 N.C. App. 154, 160, 418 S.E.2d 841, 845 (1992)).\nHere, the dispositive issue is whether the trial court was operating under a misapprehension of the law when it concluded that \u201c[t]he plaintiff was required to show that the defendant acted intentionally or willfully in failing to respond to the sheriffs request under [section] l-324.2[.]\u201d We believe that it was.\nPursuant to section 1-324.2, when a public officer seeking to serve a writ of execution against a corporation requests, \u201c[e]very agent or person having charge or control of any property of the corporation . . . shall furnish to [the public officer] the names of the directors and officers thereof, and a schedule of all its property, including debts due or to become due, so far as he has knowledge of the same.\u201d N.C. Gen. Stat. \u00a7 1-324.2 (2005). Section 1-324.4, inter alia, provides that \u201c[e]very agent or person who neglects or refuses to comply with the provisions of this section and [section] 1-324.2 is liable to pay to the execution creditor the amount due on the execution, with costs.\u201d N.C. Gen. Stat. \u00a7 1-324.4 (2005) (emphasis added). Section 1-324.5 further provides that\nIf any agent or person having charge or control of any property of a corporation, or any clerk, cashier, or other officer of a corporation, who has at the time the custody of the books of the company, or if any agent or person having custody of any evidence of debt due to a corporation, shall, on request of a public officer having in his hands for service an execution against the said corporation, willfully refuse to give to such officer the names of the directors and officers thereof, and a schedule of all its property, including debts due or to become due,... or shall willfully refuse to deliver to such officer any evidence of indebtedness due or to become due to such corporation, he shall be guilty of a Class 1 misdemeanor.\nN.C. Gen. Stat. \u00a7 1-324.5 (2005) (emphasis added).\n\u201cThe cardinal principle of statutory interpretation is to ensure that legislative intent is accomplished.\u201d McLeod v. Nationwide Mutual Ins. Co., 115 N.C. App. 283, 288, 444 S.E.2d 487, 490 (citing Harris v. Nationwide Mutual Ins. Co., 332 N.C. 184, 191, 420 S.E.2d 124, 128 (1992)), disc. rev. denied, 337 N.C. 694, 448 S.E.2d 528 (1994). \u201cTo determine legislative intent, we first look to the language of the statute.\u201d Estate of Wells v. Toms, 129 N.C. App. 413, 415-16, 500 S.E.2d 105, 107 (1998) (citing Poole v. Miller, 342 N.C. 349, 351, 464 S.E.2d 409, 410 (1995)). We are guided in our review by several principles of statutory construction.\n[T]he judiciary must give clear and unambiguous language its plain and definite meaning. However, strict literalism will not be applied to the point of producing absurd results. When the plain language of a statute proves unrevealing, a court may look to other indicia of legislative will, including: the purposes appearing from the statute taken as a whole, the phraseology, the words ordinary or technical, the law as it prevailed before the statute, the mischief to be remedied, the remedy, the end to be accomplished, statutes in pari materia, the preamble, the title, and other like means. The intent of the General Assembly may also be gleaned from legislative history. Likewise, later statutory amendments provide useful evidence of the legislative intent guiding the prior version of the statute. Statutory provisions must be read in context: Parts of the same statute dealing with the same subject matter must be considered and interpreted as a whole. Statutes dealing with the same subject matter must be construed in pari materia, as together constituting one law, and harmonized to give effect to each.\nIn re Proposed Assessments v. Jefferson-Pilot Life Ins. Co., 161 N.C. App. 558, 560, 589 S.E.2d 179, 181 (2003) (internal quotation marks and citations omitted).\nSection 1-324.4 civilly penalizes one who neglects or refuses to provide information of corporate assets. \u201cNeglect\u201d is defined as \u201c[t]he omission of proper attention to a person or thing, whether inadvertent, negligent, or willful-, the act or condition of disregarding.\u201d Black\u2019s Law Dictionary 1061 (8th ed. 2004) (emphasis added). Of the eight definitions provided by Noah Webster, only the seventh connotes a degree of willfulness \u2014 \u201cleave undone or unattended to through carelessness or by intention.\u201d Webster\u2019s Third New International Dictionary 1513 (1968). Both the legal and the common definitions of neglect permit, but do not require, a party to act willfully. The legislature did not limit the definition of neglect to include only willful conduct. Further, by using the conjunction \u201cor,\u201d the legislature indicated two methods by which the statute would be involved: (1) by refusing to comply, or (2) by merely neglecting to comply.\nMoreover, section 1-324.5 criminally penalizes one who willfully refuses to provide corporate .asset information. It is clear that the legislature knew the difference between mere refusal \u2014 as used in section 1-324.4 \u2014 and willful refusal as used in this section. By enacting two separate statutes, the legislature clearly intended that two distinct standards be applied. If the refusal to comply is willful and not merely careless, criminal punishment will be imposed. However, mere neglect subjects one to civil punishment.\nHere, citing Williams v. Williams, 113 N.C. App. 226, 437 S.E.2d 884 (1994), aff\u2019d, 339 N.C. 608, 453 S.E.2d 165 (1995) (per curiam), the trial court engrafted a willfulness requirement upon section 1-324.4\u2019s \u201cneglects or refuses\u201d language, noting that neglect may mean \u201c(1) failure to do a thing that can be done, (2) to leave undone through carelessness, or (3) to leave undone by intention.\u201d In Williams, this Court interpreted \u201cneglect\u201d as used in Rule 4(h) of the North Carolina Rules of Civil Procedure, and adopted the second definition, \u201cto leave undone through carelessness.\u201d Williams, 113 N.C. App. at 229, 437 S.E.2d at 887. It did not go so far as to adopt the third definition requiring an intentional act, as the trial court did here.\nDefendant failed to comply with sections 1-324.2 and 1-324.4. The sheriff attempted to obtain the completed documents on at least three occasions, each time being told that defendant needed more time. Defendant did not complete the documents until more than five months after they were requested, and one month after a lawsuit was filed against him, and failed to proffer any reasonable excuse to the trial court for this neglect.\nHaving determined that the trial court erred in imposing a willfulness requirement on section 1-324.4, we must reverse its order that plaintiff recover nothing from defendant. Because it is not clear whether, pursuant to Williams, defendant\u2019s neglect to provide the requested information was due to mere failure to act or neglect by carelessness, we remand to the trial court for a determination consistent with Williams and this opinion.\nReversed and remanded.\nJudges McGEE and Robert N. HUNTER, Jr. concur.", "type": "majority", "author": "JACKSON, Judge." } ], "attorneys": [ "Nexsen Pruet, PLLC, by Brooks F. Bossong, for plaintiff-appellant.", "Manger Law Firm, by Richard A. Manger, for defendantappellee." ], "corrections": "", "head_matter": "INSULATION SYSTEMS, INC., Plaintiff v. JAMES FISHER, Defendant\nNo. COA08-915\n(Filed: 2 June 2009)\nEnforcement of Judgments\u2014 execution \u2014 request for information by sheriff \u2014 delay in responding\nThe trial court erred by imposing a willfulness requirement on the \u201cneglects or refuses\u201d language in N.C.G.S. \u00a7 1-324.4 in a case involving defendant\u2019s delay in responding to a sheriff\u2019s request for information from which to satisfy an outstanding judgment. The court\u2019s order that plaintiff recover nothing was remanded because it was not clear whether defendant\u2019s neglect to provide the information was due to mere failure to act or neglect by carelessness.\nAppeal by plaintiff from an order entered 2 May 2008 by Judge Richard W. Stone in Guilford County Superior Court. Heard in the Court of Appeals 28 January 2009.\nNexsen Pruet, PLLC, by Brooks F. Bossong, for plaintiff-appellant.\nManger Law Firm, by Richard A. Manger, for defendantappellee." }, "file_name": "0386-01", "first_page_order": 416, "last_page_order": 421 }