{ "id": 4181619, "name": "FIRST MOUNT VERNON INDUSTRIAL LOAN ASSOCIATION, a Virginia Industrial Loan Association, Plaintiff v. PRODEV XXII, LLC, a Virginia Limited Liability Company, JONATHAN E. FRIESEN, Substitute Trustee, NORRIS G. DILLAHUNT, SR. a/k/a NORRIS G. DILLAHUNT and HELEN M. DILLAHUNT, Defendants", "name_abbreviation": "First Mount Vernon Industrial Loan Ass'n v. Prodev XXII, LLC", "decision_date": "2011-01-04", "docket_number": "No. COA10-8", "first_page": "126", "last_page": "136", "citations": [ { "type": "official", "cite": "209 N.C. App. 126" } ], "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": "664 S.E.2d 569", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641630 ], "year": 2008, "pin_cites": [ { "page": "576", "parenthetical": "quoting Sutton v. Duke, 277 N.C. 94, 101, 176 S.E.2d 161, 165 (1970)" } ], "opinion_index": 0, "case_paths": [ "/se2d/664/0569-01" ] }, { "cite": "644 S.E.2d 233", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638313, 12638314 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/644/0233-01", "/se2d/644/0233-02" ] }, { "cite": "636 S.E.2d 307", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636998 ], "year": 2006, "pin_cites": [ { "page": "309", "parenthetical": "\"Courts can award attorney fees in contempt matters only when specifically authorized by statute.\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/636/0307-01" ] }, { "cite": "662 S.E.2d 551", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641313, 12641314 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/se2d/662/0551-01", "/se2d/662/0551-02" ] }, { "cite": "362 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12641273, 12641396, 12641313, 12641271 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/se2d/662/0395-03", "/se2d/662/0667-02", "/se2d/662/0551-01", "/se2d/662/0395-01" ] }, { "cite": "652 S.E.2d 310", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639688 ], "year": 2007, "pin_cites": [ { "page": "320", "parenthetical": "\"Generally, attorney's fees and expert witness fees may not be taxed as costs against a party in a contempt action.\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/652/0310-01" ] }, { "cite": "526 F.2d 1338", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1089326 ], "year": 1975, "pin_cites": [ { "page": "1342", "parenthetical": "characterizing contempt for failure to comply with subpoena issued under Rule 45 as being \"civil in nature\"" } ], "opinion_index": 0, "case_paths": [ "/f2d/526/1338-01" ] }, { "cite": "621 F.3d 687", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 3783883 ], "year": 2010, "pin_cites": [ { "page": "692-93", "parenthetical": "stating that contempt under Rule 45(e) is civil contempt" } ], "opinion_index": 0, "case_paths": [ "/f3d/621/0687-01" ] }, { "cite": "176 S.E.2d 161", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "165" } ], "opinion_index": 0 }, { "cite": "277 N.C. 94", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561932 ], "year": 1970, "pin_cites": [ { "page": "101" } ], "opinion_index": 0, "case_paths": [ "/nc/277/0094-01" ] }, { "cite": "191 N.C. App. 256", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4159711 ], "year": 2008, "pin_cites": [ { "page": "266", "parenthetical": "quoting Sutton v. Duke, 277 N.C. 94, 101, 176 S.E.2d 161, 165 (1970)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/191/0256-01" ] }, { "cite": "378 S.E.2d 580", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "581" } ], "opinion_index": 0 }, { "cite": "93 N.C. App. 574", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528288 ], "year": 1989, "pin_cites": [ { "page": "576" } ], "opinion_index": 0, "case_paths": [ "/nc-app/93/0574-01" ] }, { "cite": "361 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3738593, 3742010, 3746810, 3744927 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/nc/361/0357-02", "/nc/361/0357-04", "/nc/361/0357-01", "/nc/361/0357-03" ] }, { "cite": "180 N.C. App. 230", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8241010 ], "year": 2006, "pin_cites": [ { "page": "234", "parenthetical": "\"Courts can award attorney fees in contempt matters only when specifically authorized by statute.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/180/0230-01" ] }, { "cite": "187 N.C. App. 55", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8371823 ], "year": 2007, "pin_cites": [ { "page": "69", "parenthetical": "\"Generally, attorney's fees and expert witness fees may not be taxed as costs against a party in a contempt action.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/187/0055-01" ] }, { "cite": "698 S.E.2d 402", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "opinion_index": 0 }, { "cite": "364 N.C. 242", "category": "reporters:state", "reporter": "N.C.", "year": 2010, "opinion_index": 0 }, { "cite": "689 S.E.2d 180", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "188" } ], "opinion_index": 0 }, { "cite": "202 N.C. App. 222", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4174800 ], "pin_cites": [ { "page": "233-34" } ], "opinion_index": 0, "case_paths": [ "/nc-app/202/0222-01" ] }, { "cite": "327 S.E.2d 60", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "63" }, { "parenthetical": "reversing award of attorneys' fees because, in contempt actions involving easements, \"there is no specific statutory authorization for the award of attorney's fees\"" } ], "opinion_index": 0 }, { "cite": "73 N.C. App. 594", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525088 ], "year": 1985, "pin_cites": [ { "page": "599" } ], "opinion_index": 0, "case_paths": [ "/nc-app/73/0594-01" ] }, { "cite": "527 S.E.2d 667", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "671", "parenthetical": "quoting Glesner v. Dembrosky, 73 N.C. App. 594, 599, 327 S.E.2d 60, 63 (1985)" } ], "opinion_index": 0 }, { "cite": "137 N.C. App. 98", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11092024 ], "year": 2000, "pin_cites": [ { "page": "103", "parenthetical": "quoting Glesner v. Dembrosky, 73 N.C. App. 594, 599, 327 S.E.2d 60, 63 (1985)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/137/0098-01" ] }, { "cite": "675 S.E.2d 641", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "649" } ], "opinion_index": 0 }, { "cite": "363 N.C. 189", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150708 ], "year": 2009, "pin_cites": [ { "page": "201" } ], "opinion_index": 0, "case_paths": [ "/nc/363/0189-01" ] }, { "cite": "418 S.E.2d 232", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "235" } ], "opinion_index": 0 }, { "cite": "332 N.C. 141", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2508082 ], "year": 1992, "pin_cites": [ { "page": "144" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0141-01" ] }, { "cite": "675 S.E.2d 323", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "325", "parenthetical": "quoting Correll v. Div. of Soc. Sers., 332 N.C. 141, 144, 418 S.E.2d 232, 235 (1992)" } ], "opinion_index": 0 }, { "cite": "363 N.C. 214", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4151153 ], "year": 2009, "pin_cites": [ { "page": "219", "parenthetical": "quoting Correll v. Div. of Soc. Sers., 332 N.C. 141, 144, 418 S.E.2d 232, 235 (1992)" } ], "opinion_index": 0, "case_paths": [ "/nc/363/0214-01" ] }, { "cite": "346 S.E.2d 220", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "222" } ], "opinion_index": 0 }, { "cite": "82 N.C. App. 289", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358742 ], "year": 1986, "pin_cites": [ { "page": "292" } ], "opinion_index": 0, "case_paths": [ "/nc-app/82/0289-01" ] }, { "cite": "481 S.E.2d 326", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "330", "parenthetical": "stating that \"[unsworn] statements by a party's attorney at trial are not considered evidence\"" } ], "opinion_index": 0 }, { "cite": "125 N.C. App. 373", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11867774 ], "year": 1997, "pin_cites": [ { "page": "379", "parenthetical": "stating that \"[unsworn] statements by a party's attorney at trial are not considered evidence\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/125/0373-01" ] }, { "cite": "245 S.E.2d 798", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "800", "parenthetical": "refusing to require finding of willfulness as precondition to imposing sanctions under Rule 37(d) when rule did not include any language referring to willfulness" } ], "opinion_index": 0 }, { "cite": "37 N.C. App. 121", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550852 ], "year": 1978, "pin_cites": [ { "page": "124", "parenthetical": "refusing to require finding of willfulness as precondition to imposing sanctions under Rule 37(d) when rule did not include any language referring to willfulness" } ], "opinion_index": 0, "case_paths": [ "/nc-app/37/0121-01" ] }, { "cite": "209 S.E.2d 754", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "756" } ], "opinion_index": 0 }, { "cite": "286 N.C. 148", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563921 ], "year": 1974, "pin_cites": [ { "page": "151" } ], "opinion_index": 0, "case_paths": [ "/nc/286/0148-01" ] } ], "analysis": { "cardinality": 953, "char_count": 24746, "ocr_confidence": 0.735, "pagerank": { "raw": 5.242442128007003e-08, "percentile": 0.3300663474974796 }, "sha256": "9361d67358154402a0e2a601512a66bbc1414e7f9f796eb30b9fcb608c388efd", "simhash": "1:0de0d76e2d7f2c5d", "word_count": 4166 }, "last_updated": "2023-07-14T17:06:47.704823+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JACKSON and BEASLEY concur.", "Judge JACKSON concurred prior to 31 December 2010." ], "parties": [ "FIRST MOUNT VERNON INDUSTRIAL LOAN ASSOCIATION, a Virginia Industrial Loan Association, Plaintiff v. PRODEV XXII, LLC, a Virginia Limited Liability Company, JONATHAN E. FRIESEN, Substitute Trustee, NORRIS G. DILLAHUNT, SR. a/k/a NORRIS G. DILLAHUNT and HELEN M. DILLAHUNT, Defendants" ], "opinions": [ { "text": "GEER, Judge.\nPlaintiff First Mount Vernon Industrial Loan Association (\u201cFMV\u201d) arid defendant ProDev XXII, LLC each filed motions seeking to have non-party appellant Norris G. Dillahunt, Jr. (\u201cDillahunt\u201d) held in contempt of court under N.C.R. Civ. P. 45(e)(1) for failure to appear for a deposition in accordance with a duly served subpoena. Dillahunt appeals from the orders granting the motions and ordering him, pursuant to N.C.R. Civ. P. 37(d), to pay attorneys\u2019 fees and expenses associated with the deposition and the motion. While the trial court could properly hold Dillahunt in contempt of court under Rule 45(e)(1) for failure, without adequate excuse, to obey the subpoena, we hold that the trial court could not impose sanctions against non-party Dillahunt under Rule 37(d) because Rule 45(e)(1) specifically provides that such sanctions may only be imposed on a party to the action. We, therefore, affirm in part and reverse and remand in part.\nFacts\nPlaintiff FMV commenced this action on 6 May 2008 by filing a complaint against defendants ProDev, substitute trustee Jonathan E. Friesen, Norris G. Dillahunt, Sr., and Helen M. Dillahunt, seeking judicial foreclosure on two pieces of real property and nullification of fraudulent liens. A deed of trust on one of the tracts of property (\u201cthe primary property\u201d) secured a note pursuant to which FMV had loaned ProDev $275,000.00. Norris G. Dillahunt, Sr. and Helen M. Dillahunt (Dillahunt\u2019s parents) had signed a personal guaranty of the note that was secured by an indemnity deed of trust on real property held by the guarantors (\u201cthe guaranty property\u201d).\nThe complaint alleged that ProDev was in default on the note and sought to foreclose on both the primary property and the guaranty property. The complaint further alleged that Norris G. Dillahunt, Sr. had caused certain fraudulent liens to be placed on the guaranty property for the purpose of encumbering the guaranty property and hindering legitimate creditors.\nOn 8 August 2008, Dillahunt and his wife, Josietta Dillahunt, filed an action against, among others, FMV and ProDev collaterally attacking FMV\u2019s foreclosure action. Dillahunt and his wife alleged that they lived on the primary property. They claimed that title to the primary property had been fraudulently transferred to ProDev and sought to have title returned to them.\nOn 8 January 2009, Helen M. Dillahunt was deposed in this action. As a result of that deposition, FMV and ProDev determined that they needed to depose Dillahunt, who was not a party to this action. On 13 February 2009, Dillahunt was served with a subpoena and notice of video deposition to be held in New Bern, North Carolina on 24 February 2009. Dillahunt failed to appear for the deposition.\nOn 11 March 2009, FMV filed a motion, pursuant to Rules 45 and 37(d), seeking an order holding Dillahunt in contempt and requiring Dillahunt, in order to purge himself of contempt, to submit to a deposition and to pay FMV\u2019s attorneys\u2019 fees and costs associated with Dillahunt\u2019s failure to comply with the subpoena. On 23 March 2009, ProDev also moved under Rule 45(e) and Rule 37(d) for an order holding Dillahunt in contempt and seeking an award of attorneys\u2019 fees. The trial court entered a separate order for each motion.\nOn 15 April 2009, the court granted FMV\u2019s motion. The trial court found that Dillahunt was properly served with the subpoena scheduling his deposition for 24 February 2009, but that Dillahunt failed to appear for that deposition \u201cwithout good cause and despite his having been subpoenaed to do so.\u201d The court found that FMV\u2019s expenses associated with the failed deposition and the motion were $4,600.00. This total included attorneys\u2019 fees of $4,400.00 (representing 16 hours of attorney time billed at $275.00 per hour) and $200.00 for the court reporter\u2019s appearance fee and preparation of the certificate of non-appearance.\nThe trial court then made a single conclusion of law:\nHaving made the preceding Findings of Fact, the Court now, therefore, concludes as a matter of law, pursuant to Rule 45(e)(1) of the North Carolina Rules of Civil Procedure, that the failure of Norris G. Dillahunt, Jr. to comply with the terms of his Deposition Notice and Subpoena without good cause is an omission in contempt of this Court entitling Plaintiff to sanctions as against Mr. Dillahunt, pursuant to Rule 37(d) of the North Carolina Rules of Civil Procedure, inclusive of a charge of the reasonable expenses associated with the failed deposition, including, but not limited to, an assessment of attorney\u2019s fees for said failed deposition as well as for the bringing and argument of this motion and Plaintiff, in the amount of $4,600.00.\nThe court ordered that Dillahunt could purge himself of the contempt by payment' of FMV\u2019s fees and costs associated with Dillahunt\u2019s failure to comply with the subpoena and with the filing of the motion. The order required Dillahunt to pay the sanction within 30 days of the filing and service of the order. The order did not require Dillahunt to appear for a deposition.\nThe trial court granted ProDev\u2019s motion on 28 April 2009. In the order, the trial court made substantially the same findings of fact as in the FMV order, although, as to ProDev, the court found that its expenses related to the failed deposition and the contempt motion totaled $4,277.52. This amount included $3,878.00 in attorneys\u2019 fees (representing 14.8 hours of attorney time billed at $260.00 per hour) and $299.52 in mileage reimbursement for travel by counsel from Raleigh to New Bern for both the deposition and the hearing of the contempt motion. The ProDev order included a conclusion of law almost identical to the one in the FMV order. The court similarly ordered that Dillahunt could purge himself of contempt by paying attorneys\u2019 fees and expenses to ProDev\u2019s counsel within 30 days. This order also did not require that Dillahunt appear for a deposition. Dillahunt appealed to this Court from both orders on 15 May 2009.\nDiscussion\n[1 ] Dillahunt first contends that the trial court erred in finding him in contempt of court under Rule 45(e)(1) for failing to appear at the deposition scheduled for 24 February 2009. Rule 45(e) provides:\nContem/pt; Expenses to Force Compliance With Subpoena. \u2014\n(1) Failure by any person without adequate excuse to obey a subpoena served upon the person may be deemed a contempt of court. Failure by any party without adequate cause to obey a subpoena served upon the party shall also subject the party to the sanctions provided in Rule 37(d).\n(2) The court may award costs and attorney\u2019s fees to the party who issued a subpoena if the court determines that a person objected to the subpoena or filed a motion to quash or modify the subpoena, and the objection or motion was unreasonable or was made for improper purposes such as unnecessary delay.\nIn reliance upon Rule 45(e)(1), the trial court, after finding Dillahunt in contempt, awarded attorneys\u2019 fees under Rule 37(d), which states:\nFailure of party to attend at own deposition or serve answers to interrogatories or respond to request for inspection. \u2014 If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails (i) to appear before the person who is to take his deposition, after being served with a proper notice, or (ii) to serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories, or (iii) to serve a written response to a request for inspection submitted under Rule 34, after proper service of the request, the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under subdivisions a, b, and c of subsection (b)(2) of this rule. In lieu of any order or in addition thereto, the court shall require the party failing to act to pay the reasonable expenses, including attorney\u2019s fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.\nDillahunt first argues that the trial court\u2019s determination that he was in contempt was not supported by sufficient findings of fact because the order contained no finding that he was \u201cwillfully disobedient\u201d in failing to attend the scheduled deposition. Dillahunt appears to be basing his contention on general contempt law. In his brief, Dillahunt cites N.C. Gen. Stat. \u00a7 5A-ll(a)(3) (2009), which defines \u201ccriminal contempt\u201d as including \u201c[w]illful disobedience of, resistance to, or interference with a court\u2019s lawful process, order, directive, or instruction or its execution.\u201d The trial court, however, did not base its contempt order on N.C. Gen. Stat. \u00a7 5A-ll(a)(3), but rather on Rule 45(e).\nThe plain language of Rule 45(e) does not require willful disobedience, but rather provides that a \u201c[f]ailure by any person without adequate excuse to obey a subpoena served upon the person may be deemed a contempt of court.\u201d (Emphasis added.) Indeed, Dillahunt cites no authority requiring a finding of \u201cwillful disobedience\u201d when the contempt order is based on Rule 45(e).\nIt is an established rule of statutory construction that when \u201ca statute is intelligible without any additional words, no additional words may be supplied.\u201d State v. Camp, 286 N.C. 148, 151, 209 S.E.2d 754, 756 (1974). As Rule 45(e) contains no express requirement of willfulness, we may not impose such a requirement. See American Imps., Inc. v. G.E. Employees W. Region Fed. Credit Union, 37 N.C. App. 121, 124, 245 S.E.2d 798, 800 (1978) (refusing to require finding of willfulness as precondition to imposing sanctions under Rule 37(d) when rule did not include any language referring to willfulness). Consequently, the trial court was required, in this case, to determine only whether Dillahunt lacked \u201cadequate cause\u201d for failing to comply with the deposition subpoena.\nDillahunt does not, however, address whether the trial court had a basis for finding that he lacked adequate cause for failing to comply with the subpoena. At the hearing, Dillahunt presented no evidence explaining his absence. He neither submitted an affidavit nor provided sworn live testimony at the hearing. On appeal, in arguing that he was not \u201cwillfully disobedient\u201d in failing to appear for the deposition, Dillahunt relies only upon his own unsworn statements made during oral argument, claiming that his attorney sent him an email that implied the deposition had been postponed for one week. Unsworn statements during oral argument are not evidence. See Ronald G. Hinson Elec., Inc. v. Union County Bd. of Educ., 125 N.C. App. 373, 379, 481 S.E.2d 326, 330 (1997) (stating that \u201c[unsworn] statements by a party\u2019s attorney at trial are not considered evidence\u201d).\nThis Court\u2019s review of contempt orders \u201cis limited to whether there is competent evidence to support the findings of fact and whether the findings support the conclusions of law.\u201d Adkins v. Adkins, 82 N.C. App. 289, 292, 346 S.E.2d 220, 222 (1986). Thus, as the record contains no evidence of an adequate excuse for Dillahunt\u2019s failure to comply with the subpoena, we must uphold the trial court\u2019s finding of fact that Dillahunt lacked an adequate excuse and its decision, based on that finding, to hold Dillahunt in contempt of court pursuant to Rule 45(e) for failure to comply with the deposition subpoena.\nDillahunt next argues that, even if the trial court properly held him in contempt, the court erred in imposing sanctions under Rule 37(d) because he was not a party to the action. The first sentence of Rule 45(e)(1) allows a court to hold \u201cany person\u201d in contempt of court. The second sentence, however, provides that when \u201cany party\u201d fails without adequate cause to obey a subpoena served upon \u201cthe party,\u201d then \u201cthe party\u201d is subject to the sanctions set out in Rule 37(d). Dillahunt argues that by referencing \u201cany person\u201d in the first sentence, but \u201cany party\u201d in the second sentence, the General Assembly was expressing an intent to limit the imposition of Rule 37(d) sanctions for violation of a subpoena to parties to the action. We agree.\n\u201c \u2018Statutory interpretation properly begins with an examination of the plain words of the statute.\u2019 \u201d State v. Byrd, 363 N.C. 214, 219, 675 S.E.2d 323, 325 (2009) (quoting Correll v. Div. of Soc. Sers., 332 N.C. 141, 144, 418 S.E.2d 232, 235 (1992)). \u201cBecause the actual words of the legislature are the clearest manifestation of its intent, we give every word of the statute effect, presuming that the legislature carefully chose each word used. \u201d N. C. Dep \u2019t of Corr. v. N. C. Med. Bd., 363 N.C. 189, 201, 675 S.E.2d 641, 649 (2009).\nHere, the G\u00e9neral Assembly could have referred to \u201cany person\u201d throughout Rule 45(e)(1), but chose to use the more limiting language of \u201cany party\u201d when talking about Rule 37(d) sanctions. This distinction makes sense as the plain language of Rule 37(d) itself is limited to parties and individuals appearing for a deposition on behalf of parties pursuant to Rule 30(b)(6) or 31(a). Rule 37(d) also authorizes sanctions for conduct that can only be committed by a party, such as a failure to respond to interrogatories.\nRule 37(a) demonstrates further that the General Assembly has purposefully distinguished between parties and non-parties. Rule 37(a) provides for the filing of motions to compel discovery, and Rule 37(a)(1) specifies that such a motion may be directed \u201cto a party or a deponent who is not a party.\u201d Rule 37(a)(2) states that \u201cthe discovering party may move for an order\u201d compelling discovery \u201c [i]f a deponent fails to answer a question propounded or submitted under Rules 30 or 31\u201d or if \u201ca party\u201d fails to answer an interrogatory or fails to permit inspection of documents.\nBecause Dillahunt was not a party, he was not subject to sanctions under Rule 37(d). We hold that the trial court, therefore, erred in basing its award of attorneys\u2019 fees and costs on Rule 37(d).\nWe note that under Rule 37(a)(4), \u201c[i]f the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney\u2019s fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.\u201d (Emphasis added.) Consequently, if FMV and ProDev had filed a motion to compel Dillahunt to appear for his deposition under Rule 37(a), the trial court, upon granting the motion, could have awarded attorneys\u2019 fees and expenses as provided under Rule 37(a)(4).\nWe cannot, however, rely upon Rule 37(a)(4) as a basis for upholding the decision below. FMV\u2019s and ProDev\u2019s motions did not cite Rule 37(a), the trial court specifically based its decision on Rule 37(d), and the trial court\u2019s orders did not compel Dillahunt to submit to the deposition.\nEven though the trial court could not require Dillahunt to pay attorneys\u2019 fees as a sanction under Rule 37(d), we must consider whether the trial court had authority to award attorneys\u2019 fees as part of its contempt power. Our courts have consistently held that a court may not require that a person held in contempt pay the opposing party\u2019s attorneys\u2019 fees in the absence of a statute authorizing the award of attorneys\u2019 fees.\nIn Blevins v. Welch, 137 N.C. App. 98, 103, 527 S.E.2d 667, 671 (2000) (quoting Glesner v. Dembrosky, 73 N.C. App. 594, 599, 327 S.E.2d 60, 63 (1985)), this Court explained that \u201c[g]enerally speaking, \u2018[a] North Carolina court has no authority to award damages to a private party in a contempt proceeding. Contempt is a wrong against the state, and moneys collected for contempt go to the state alone.\u2019 \u201d Our courts may only award attorneys\u2019 fees in contempt matters \u201cwhen specifically authorized by statute.\u201d Id. (reversing award of attorneys\u2019 fees because, in contempt actions involving easements, \u201cthere is no specific statutory authorization for the award of attorney\u2019s fees\u201d). See also Moss Creek Homeowners Ass\u2019n v. Bissette, 202 N.C. App. 222, 233-34, 689 S.E.2d 180, 188 (reversing award of attorneys\u2019 fees incurred in enforcing trial court\u2019s contempt orders because \u201c[c]ourts can award attorneys\u2019 fees in contempt matters only when specifically authorized by statute\u201d), disc. review denied, 364 N.C. 242, 698 S.E.2d 402 (2010); Watson v. Watson, 187 N.C. App. 55, 69, 652 S.E.2d 310, 320 (2007) (\u201cGenerally, attorney\u2019s fees and expert witness fees may not be taxed as costs against a party in a contempt action.\u201d), disc. review denied, 362 N.C. 373, 662 S.E.2d 551 (2008); Sea Ranch II Owners Ass\u2019n v. Sea Ranch II, Inc., 180 N.C. App. 230, 234, 636 S.E.2d 307, 309 (2006) (\u201cCourts can award attorney fees in contempt matters only when specifically authorized by statute.\u201d), disc. review denied, 361 N.C. 357, 644 S.E.2d 233 (2007).\nFMV has not cited any statutory authorization for an award of attorneys\u2019 fees based on a finding of contempt under Rule 45(e). We recognize that Rule 45(e)(2) does provide for an award of \u201ccosts and attorney\u2019s fees to the party who issued a subpoena if the court determines that a person objected to the subpoena or filed a motion to quash or modify the subpoena, and the objection or motion was unreasonable or was made for improper purposes such as unnecessary delay.\u201d Here, however, Dillahunt neither objected to the subpoena nor moved to quash the subpoena, as provided in Rule 45(c), and, therefore, Rule 45(c) cannot support the decision below.\nWe observe, however, that it does not seem reasonable that fees can be awarded with respect to a person who acknowledges but opposes the subpoena, while fees cannot be awarded when a person wholly disregards the subpoena. Nonetheless, given the specific language of Rule 45(e)(2), it does not authorize an award of attorneys\u2019 fees under the circumstances in this case. This is a discrepancy that the General Assembly may want to revisit.\nStill, we agree with the comment to the federal Rule 45:\nIt is the contempt remedy that backs a subpoena. There is nothing new about that. When the subpoenaed person is not a party to the action, the threat of contempt is the only remedy, whether the disobedience is of the subpoena itself or of a court order entered somewhere further along the way directing the nonparty to do something. With a party there may be a variety of other sanctions available as well \u2014 in the case of a party, more often for the disobedience of a court order than of a subpoena \u2014 up to and including the declaration of a default, see Rule 37(b)(2), but these are threats that impact on the party\u2019s interests in the action and they therefore hold no terror for a nonparty. Hence the special role that contempt plays in enforcing subpoenas against nonparty witnesses.\nFed R. Civ. P. 45 cmt. C45-26. Therefore, we must remand to the trial court for a determination of the appropriate sanction given Dillahunt\u2019s disregard of the subpoena in this case.\nIn sum, the trial court properly concluded that Dillahunt was in contempt of court under Rule 45(e) for failing to comply with the subpoena without adequate cause. The court was not, however, permitted to award FMV and ProDev attorneys\u2019 fees as part of its order holding Dillahunt in contempt. Therefore, although we affirm the trial court\u2019s decision to hold Dillahunt in contempt, we must reverse the award of attorneys\u2019 fees and costs and remand both orders for further proceedings regarding the appropriate sanction.\nAffirmed in part; reversed and remanded in part.\nJudges JACKSON and BEASLEY concur.\nJudge JACKSON concurred prior to 31 December 2010.\n. While this appeal is interlocutory since the action is still pending, an order holding a party \u201cin contempt for noncompliance with a discovery order or . . . [assessing them] with certain other sanctions,\u201d affects a substantial right and is thus immediately appealable. Cochran v. Cochran, 93 N.C. App. 574, 576, 378 S.E.2d 580, 581 (1989).\n. While both Dillahunt and FMV contend that Dillahunt was held in criminal, and not civil, contempt, we disagree. This Court has stated that \u201c \u2018since the [F]ederal . . . [R]ules [of Civil Procedure] are the source of [the North Carolina Rules of Civil Procedure], we will look to the decisions of [federal courts] for enlightenment and guidance.\u2019 \u201d Moody v. Sears Roebuck & Co., 191 N.C. App. 256, 266, 664 S.E.2d 569, 576 (2008) (quoting Sutton v. Duke, 277 N.C. 94, 101, 176 S.E.2d 161, 165 (1970)). Fed. R. Civ. P. 45(e) is essentially identical to the first sentence of the North Carolina version of Rule 45(e). The comment to the federal rule states: \u201cThe contempt most often associated with the disobedience of a subpoena is the category of \u2018civil\u2019 contempt, the purpose of which is to enforce compliance in the particular case, with any penalty imposed designed to further the rights of the party in whose behalf the subpoena issued.\u201d Fed R. Civ. P. 45(e) cmt. C45-26. See also United States S.E.C. v. Hyatt, 621 F.3d 687, 692-93 (7th Cir. 2010) (stating that contempt under Rule 45(e) is civil contempt); Fisher v. Marubeni Cotton Corp., 526 F.2d 1338, 1342 (8th Cir. 1975) (characterizing contempt for failure to comply with subpoena issued under Rule 45 as being \u201ccivil in nature\u201d). Because the ultimate purpose of holding an individual in contempt under Rule 45(e) is to obtain compliance with subpoenas issued for the benefit of parties to a civil action, it is civil in nature.\n. Statements by Dillahunt may, however, be relied upon by opposing parties FMV and ProDev as admissions under Rule 801 of the Rules of Evidence.\n. FMV has conceded this error in its appellee brief.", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "The Law Offices of Lonnie M. Player, Jr., PLLC, by Lonnie M. Player, Jr., for plaintiff-appellee.", "Mills & Economos, L.L.P., by Larry C. Economos, for Norris G. Dillahunt, Jr., appellant.", "No brief filed on behalf of ProDev XXII, LLC." ], "corrections": "", "head_matter": "FIRST MOUNT VERNON INDUSTRIAL LOAN ASSOCIATION, a Virginia Industrial Loan Association, Plaintiff v. PRODEV XXII, LLC, a Virginia Limited Liability Company, JONATHAN E. FRIESEN, Substitute Trustee, NORRIS G. DILLAHUNT, SR. a/k/a NORRIS G. DILLAHUNT and HELEN M. DILLAHUNT, Defendants\nNo. COA10-8\n(Filed 4 January 2011)\n1. Appeal and Error\u2014 interlocutory orders and appeals \u2014 contempt for failure to respond to subpoena \u2014 substantial right\nAn order holding a non-party in contempt for noncompliance with a discovery order (failure to appear for a deposition after being subpoenaed) affected a substantial right and was immediately appealable.\n2. Contempt\u2014 failure to respond to subpoena \u2014 findings\u2014 willfulness and lack of adequate excuse \u2014 distinguished\nThe trial court did not err by finding a non-party in willful contempt for not appearing for a deposition after being served with a subpoena. Defendant\u2019s contention concerning the failure to find willful disobedience referred to contempt under N.C.G.S. \u00a7 5A-ll(a)(3) rather than the basis for the court\u2019s findings, N.C.G.S. \u00a7 1A-1, Rule 45(e). Rule 45(e) refers to the lack of an adequate excuse, of which there was no evidence in this case.\n3. Contempt\u2014 failure to appear at deposition \u2014 civil rather than criminal contempt\nA non-party appellant was held in civil rather than criminal contempt where he did not appear for a deposition after being subpoenaed, and the trial court held him in contempt under N.C.G.S. \u00a7 1A-1, Rule 45(e). The ultimate purpose of contempt under Rule 45(e) is to obtain compliance with subpoenas issued for the benefit of parties to a civil action.\n4. Contempt\u2014 failure to respond to subpoena \u2014 sanctions\nThe trial court erred by imposing attorney fees as a contempt sanction against a non-party who did not respond to a subpoena and appear at a deposition. Under the plain language of N.C.G.S. \u00a7 1A-1, Rules 45(e)(1) and 37(d), parties who fail to obey a subpoena without adequate cause are subject to sanctions.\n5. Attorney Fees\u2014 contempt \u2014 failure to appear for subpoena \u2014no statutory basis for award\nAn award of attorney fees as a contempt sanction against a non-party for failing to respond to a subpoena and appear at a deposition was remanded. The trial court found the non-party in contempt under N.C.G.S. \u00a7 1A-1, Rule 45(c), which did not authorize an award of attorney fees under the circumstances of this case.\nAppeal by non-party Norris G. Dillahunt, Jr. from orders entered 15 April 2009 and 28 April 2009 by Judge Benjamin G. Alford in Craven County Superior Court. Heard in the Court of Appeals 19 August 2010.\nThe Law Offices of Lonnie M. Player, Jr., PLLC, by Lonnie M. Player, Jr., for plaintiff-appellee.\nMills & Economos, L.L.P., by Larry C. Economos, for Norris G. Dillahunt, Jr., appellant.\nNo brief filed on behalf of ProDev XXII, LLC." }, "file_name": "0126-01", "first_page_order": 136, "last_page_order": 146 }