Tyll v. Berry
234 N.C. App. 96
| N.C. Ct. App. | 2014Background
- Plaintiffs (Jennifer and David Tyll) obtained a Chapter 50C civil no-contact order (effective 5/23/12–5/23/13) after defendant Joey Berry sent threatening/war-referencing emails to family members and an employer.
- Defendant emailed Sharon Tyll (David Tyll's mother) on 6/23/12; plaintiffs moved for contempt under civil contempt procedures (motion filed 10/11/12).
- Defendant filed a pro se paper captioned "NOTICE OF APPEAL In Forma Pauperis" stating a "notice of intent to appeal" but acknowledging the appeal period had expired and expressing intent to seek certiorari; the trial court dismissed it as untimely (12/18/12).
- At the contempt hearing (defendant absent), the court found willful civil contempt, restrained further contact (including internet postings), and ordered a $2,500 purge payment to plaintiffs (doubling for future violations).
- Defendant sought indigent status and counsel; clerk denied, he appealed to district court, later was allowed to proceed as indigent for limited purposes and appellate counsel was appointed for the contempt appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the "NOTICE OF APPEAL" filing was properly dismissed | Plaintiffs argued the filing was an untimely notice of appeal subject to Appellate Rules | Berry said it was only a "notice of intent to appeal," not a Rule 3 notice, so it was not subject to dismissal as untimely | Court treated the filing as either an untimely notice of appeal (dismissal proper) or as an ineffectual "intent" filing (trial court could dismiss a nullity); affirmed dismissal |
| Right to appointed counsel at civil contempt hearing | Plaintiffs implicitly argued proceedings could proceed without appointment where circumstances allowed | Berry argued denial of appointed counsel (after clerk denial) violated due process | Court held contempt was civil; trial court could have appointed counsel but Berry failed to secure a ruling or appear at hearing; no preserved due process error |
| Whether findings supporting civil contempt were supported | Plaintiffs relied on emails and testimony showing harassment of family member covered by 50C order | Berry argued Sharon Tyll was not covered and email didn’t violate order as written | Court found competent evidence that Sharon was family, that email interfered/bothered her, and that findings supported civil contempt (any surplus wording harmless) |
| Validity of purge condition requiring $2,500 paid to plaintiffs | Plaintiffs sought coercive monetary sanction to compel compliance | Berry argued fines payable to private party / large amount and lack of purge condition or finding of ability to pay made award invalid | Court held fines payable to complainant may be a valid civil-contempt purge condition, but trial court erred by making no findings on defendant's present ability to pay; remanded to address ability to pay (affirmed in part; reversed/remanded in part) |
Key Cases Cited
- Jolly v. Wright, 300 N.C. 83 (N.C. 1980) (civil contempt fines/incarceration require a present-ability finding and serve coercive, not punitive, purpose)
- McBride v. McBride, 334 N.C. 124 (N.C. 1993) (discusses limits on punitive contempt sanctions and need for present ability findings)
- Bishop v. Bishop, 90 N.C. App. 499 (N.C. Ct. App. 1988) (monetary purge payable to complainant can be civil contempt when avoidable by compliance)
- Eakes v. Eakes, 194 N.C. App. 303 (N.C. Ct. App. 2008) (contempt power may include payment of reasonable attorney fees as purge condition)
- Oakley v. Oakley, 165 N.C. App. 859 (N.C. Ct. App. 2004) (quoting need to determine contemnor's ability to comply before imposing fines/incarceration)
- Baxley v. Jackson, 179 N.C. App. 635 (N.C. Ct. App. 2006) (observing that damages generally may not be awarded to private party in contempt proceedings)
- Turner v. Rogers, 131 S. Ct. 2507 (U.S. 2011) (Due Process Clause does not automatically require appointed counsel in civil contempt cases; determination is case-specific)