209 N.C. App. 126
N.C. Ct. App.2011Background
- FMV filed suit to foreclose on two properties and nullify fraudulent liens, including a guaranty property secured by a deed of trust.
- Dillahunt, nonparty to the action, was served a subpoena for deposition in New Bern; he failed to appear on 24 February 2009.
- FMV and ProDev moved for contempt and sanctions under Rules 45 and 37(d); trial court held Dillahunt in contempt and awarded fees.
- FMV's sanctions totaled $4,600 (attorney fees $4,400 and $200 costs); ProDev's totaled $4,277.52 (attorney fees $3,878 and travel mileage).
- Orders required payment within 30 days to purge contempt; neither order compelled Dillahunt to appear for deposition.
- Dillahunt appealed, challenging contempt grounding under Rule 45(e) and the authority to sanction under Rule 37(d) for a non-party.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether contempt under Rule 45(e) rested on adequate findings | FMV argues ruling properly found contempt for failure to obey subpoena. | Dillahunt contends lack of willful disobedience or adequate findings; argues no basis for contempt. | Affirmed contempt finding under Rule 45(e); inadequate excuse shown. |
| Whether sanctions under Rule 37(d) could bind a non-party | FMV contends Rule 37(d) sanctions may apply to the party, including non-parties designated to testify. | Dillahunt argues non-parties cannot be sanctioned under Rule 37(d) as applied here. | Reversed to the extent sanctions were under Rule 37(d); remanded for Rule 45(e)-based remedy only. |
| Whether the trial court could award attorneys' fees as contempt sanctions | FMV seeks fees incurred enforcing the contempt and motion. | Dillahunt argues no statutory authorization for fee awards against a non-party under contempt. | Remanded; fee awards not supported by statutory authorization for non-parties. |
| What is the proper sanction given Dillahunt's noncompliance | FMV and ProDev request full sanction amounts as stated in orders. | Dillahunt argues for appropriate remedy under Rule 45(e) with adequate cause considerations. | Remanded for determination of appropriate sanction under Rule 45(e) considering non-party status. |
Key Cases Cited
- State v. Byrd, 363 N.C. 214 (2009) (plain-meaning analysis of statutory text)
- American Imps., Inc. v. G.E. Employees W. Region Fed. Credit Union, 37 N.C.App. 121 (1978) (no require willfulness for sanctions under Rule 37(d))
- Blevins v. Welch, 137 N.C.App. 98 (2000) (contempt awards require statutory authorization; fees generally not awarded)
- Moss Creek Homeowners Ass'n v. Bissette, N.C.App. (2010) (attorney's fees in contempt require statutory authorization)
- Watson v. Watson, 187 N.C.App. 55 (2007) (fees in contempt actions typically not taxed absent statute)
- Sea Ranch II Owners Ass'n v. Sea Ranch II, Inc., 180 N.C.App. 230 (2006) (courts can award attorney fees in contempt matters only when specifically authorized by statute)
- Glesner v. Dembrosky, 73 N.C.App. 594 (1985) (contempt damages generally unavailable absent statutory authorization)
- Moody v. Sears Roebuck & Co., 191 N.C.App. 256 (2008) (federal rule guidance on contempt and civil vs. criminal distinctions)