Opinion
No. COA12–488.
2013-04-16
Martha GRIST, Plaintiff v. Larry SMITH, Defendant.
Martha Grist, Plaintiff (No Brief). James L. Smith, Defendant, pro se.
Appeal by defendant from no-contact order entered 10 November 2011 by Judge Julie M. Kepple in Buncombe County District Court. Heard in the Court of Appeals 7 January 2013. Martha Grist, Plaintiff (No Brief). James L. Smith, Defendant, pro se.
ERVIN, Judge.
Defendant Larry Smith appeals from a no-contact order requiring him to refrain from contacting, harassing, and stalking Plaintiff Martha Grist and to remain at least 100 feet away from Plaintiff for a period of one year. On appeal, Defendant argues that the provisions governing the issuance of no-contact orders such as the one at issue here are unconstitutionally vague and overbroad; that the entry of the trial court's order violated his right not to be deprived of life, liberty, or property without due process of law; that the entry of the trial court's order infringed upon his constitutionally protected free speech rights; and that the trial court erred by failing to dismiss Plaintiff's complaint for failing to state a claim for which relief could be granted and by failing to make sufficient findings of fact to support its conclusions of law. After careful consideration of Defendant's challenges to the trial court's order in light of the record and the applicable law, we conclude that the trial court's order should be affirmed.
I. Factual Background
On 12 October 2011, Plaintiff filed a verified complaint against Defendant for the purpose of seeking the entry of an order barring Defendant from having any contact with Plaintiff based upon Defendant's allegedly harassing behavior. In her complaint, Plaintiff alleged that Defendant had called her names, left harassing voicemail messages, sent her harassing e-mails, and made false allegations against her which had the effect of jeopardizing her employment and that Defendant's conduct had caused her to become frightened and to feel unsafe in her own home. As a result, Plaintiff sought the entry of a permanent no-contact order barring Defendant from visiting, assaulting, molesting, interfering with, harassing, abusing, injuring, contacting, or coming upon the premises at which she lived or worked.
Although Plaintiff did not check the box on the application form indicating that she was seeking the entry of a temporary or ex parte, as well as a permanent, no-contact order, Plaintiff did, however, complete other sections of the application form that addressed the criteria relevant to the issuance of a temporary, ex parte no-contact order, so that it was clear from an examination of Plaintiff's complaint that she sought both temporary and permanent relief.
On 13 October 2011, Judge Edwin D. Clontz issued an ex parte no-contact order barring Defendant from visiting, assaulting, molesting, interfering with, harassing, abusing, injuring, contacting, or coming upon the premises at which Plaintiff lived or worked. In his order, Judge Clontz found as a fact that Defendant “has repeatedly harassed [Plaintiff] at home and through work”; that Defendant “has stated he has guns”; that Plaintiff “is now afraid for her personal safety”; and that Plaintiff “is afraid [Defendant] will harm her physically or may cost her employment with the [State].” In addition, Judge Clontz determined that a hearing for the purpose of considering whether a permanent no-contact order should be entered would be held on 20 October 2011.
At 11:15 a.m. on 14 October 2011, Defendant was served with the summons and complaint. At 1:37 p.m. on the same date, Judge Clontz entered an order requiring Defendant to show cause why he should not be held in contempt for failing to comply with the temporary, ex parte, no-contact order at the hearing to be held on 20 October 2011. In support of her request for the issuance of this show cause order, Plaintiff alleged that Defendant had been “[h]anging out in [his] front yard” “yelling rude [and] nasty comments” which she could hear while in her home, had “verbally abuse[d her] when [she would] walk out of [her] house for any reason,” and had “published” her name and “erroneous information” while “pos[ing] as [her].”
On 19 October 2011, Defendant filed a motion seeking the dismissal of Plaintiff's application pursuant to N.C. Gen.Stat. § 1A–1, Rule 12(b)(6) on the grounds that Plaintiff's complaint was “so vague, unspecific, ... incoherent and intentionally unresponsive to the instructions” set out in the applicable statutory provisions that it failed to state a claim for which relief could be granted; that Plaintiff's application was “so vague and intentionally unspecific as to times [and] dates” as to “render[ ] the ex parte [temporary restraining order] arbitrary and capricious, an engine of oppression, and violat[ive of] defendant's basic constitutional right to notice and an opportunity to be heard” and of “defendant's right to due process of law;” and that Judge Clontz had violated the “[c]onstitutional system of justice” in a number of respects, such as falsely finding as a fact that “[t]he defendant ha[d] stated he has guns” when no such allegation is contained in Plaintiff's complaint. On 21 October 2011, Defendant filed a second dismissal motion in which he alleged that “the statutory scheme” upon which Plaintiff's complaint was based “is unconstitutional on its face and as applied, is over-discretion-dispensing, vague, overbroad, and stands as arbitrary and capricious misuse of the police powers”; that “the statutory scheme on its face and as applied discriminates against defendants” in violation of the equal protection clauses of the federal constitution by requiring defendants “to advance fees to subpoena witnesses” while exempting plaintiffs from the necessity to pay filing fees or subpoena costs in advance; and that the relevant “statutory scheme” violated the free speech provisions of the federal constitution by “clearly violat[ing] basic First Amendment freedoms of speech and expression,” “violat [ing] the Communications Decency Act,” and “woefully” failing “to put a huge class” of litigants “on notice as to the line between lawful and unlawful conduct” so as to unduly chill the exercise of “First Amendment guarantees” and to “operat[e] as a sort of standing gag order”; and that the procedure employed in “obtaining a [temporary restraining order] denies [Defendant] the right to notice and an opportunity to be heard.” On 24 October 2011, Defendant filed a verified answer in which he denied having “harassed plaintiff at home or through work”; denied having ever “said anything to the plaintiff about gun ownership”; denied that “plaintiff fears for her personal safety”; denied having ever “touched the plaintiff except [for asking her] to dance” on one occasion in 2010; denied having “visited, assaulted, molested or otherwise interfered with the plaintiff”; denied having “yelled at plaintiff”; denied having “called plaintiff names”; and denied that Plaintiff had ever “asked defendant to stop bothering her or to leave her alone.” On the contrary, Defendant alleged that Plaintiff's request for the entry of a no-contact order was nothing more than “a SLAPP or tactical lawsuit [intended] to exact revenge against defendant for reporting her illegal use of a state motor vehicle” and asserted that, instead of harassing Plaintiff, Defendant had been harassed by her. As a result, Defendant requested that he be provided with certain items of discovery at least a week in advance of trial and that Plaintiff's complaint be dismissed.
In addition to requesting to be provided with certain items of discovery in his answer, Defendant also filed a motion seeking the production of a digital recording of a call that Plaintiff claimed to have placed to the Asheville Police Department and requiring Plaintiff to comply with a subpoena duces tecum “heretofore filed in this case.”
On 10 November 2011, the trial court entered an order concluding that “[t]he evidence does not support a conclusion that the defendant is in contempt” and dismissing the show cause proceeding that had been initiated against Defendant. In addition, on the same date, the trial court entered a permanent no-contact order based upon findings of fact that Defendant had “repeatedly harassed” Plaintiff “by means of verbal [and] electronic communications”; that Defendant had “used subtle means of harassment such as facial gestures, nonsensical noises, and staring at ... Plaintiff”; that Plaintiff was “tormented by” Defendant's behavior and had “experienced substantial emotional distress”; that “[t]he harassment as alleged at the hearing and [in] the complaint by the Plaintiff[ ][was] substantial [and] place [d] ... Plaintiff in reasonable fear of continued torment”; and that Defendant acted “to intimidate [and] harass” Plaintiff. Based upon these findings of fact, the trial court concluded as a matter of law that Defendant had “committed acts of unlawful conduct against” Plaintiff. As a result, the trial court ordered that Defendant “not visit, assault, molest, or otherwise interfere with” Plaintiff; that Defendant “cease stalking” Plaintiff; that Defendant “cease harassment of” Plaintiff; that Defendant “not abuse or injure” Plaintiff; that Defendant “not contact ... [Plaintiff] by telephone, written communication, or electronic means”; that Defendant “not enter or remain present at ... [Plaintiff's] residence [or] place of employment”; that Defendant “remain at least 100 feet from ... Plaintiff at all times”; and that Defendant “shall not communicate in any way, shape or form” with Plaintiff or make “any intimidating and harassing gesture directed at or around” Plaintiff .” Defendant noted an appeal to this Court from the trial court's order.
Defendant makes numerous assertions in his brief concerning the facts at issue in this case and the nature of the rulings that the trial court made during the hearing held with respect to Plaintiff's petition. Despite the fact that Defendant appears to have requested a copy of the recording of the hearing held in this case, we have not been provided with a transcript of the proceedings which occurred before the trial court. According to N.C.R.App. P. 9(a)(1)(e), Defendant, as the appealing party, was required to ensure that the reviewing court had access to “so much of the litigation ... as is necessary for an understanding of all issues presented on appeal.” Although Defendant claims in his brief that the recording he received was unintelligible and that he had not been able to find a court reporter willing to transcribe it, he has not provided us with a properly settled narration of the events which occurred at trial, N.C.R.App. P. 9(c)(1), or made his inability to understand much of the material contained in the recording the basis for any sort of request for appellate relief. State v. Sanders, 312 N.C. 318, 320, 321 S.E.2d 836, 837 (1984) (awarding a new trial in a capital case where “meaningful appellate review of the serious questions presented by defendant's appeal is completely precluded by the entirely inaccurate and inadequate transcription of the trial proceedings” and where “no adequate record can be formulated”). As a result, our review of Defendant's challenges to the trial court's order must, of necessity, be significantly limited.
II. Legal Analysis
A. Defendant's Dismissal Motions
On appeal, Defendant argues that the statutory provisions authorizing the issuance of no-contact orders set out in Chapter 50C of the General Statutes violate various constitutional provisions and that the trial court erred by failing to dismiss Plaintiff's complaint and, instead, entering the requested no-contact order. After carefully reviewing the record which has been presented for our review, we conclude that Defendant's challenge to the constitutionality of the relevant statutory provisions has not been properly preserved for appellate review.
In addition to his challenge to the constitutionality of the various substantive and procedural provisions contained in Chapter 50C of the General Statutes, Defendant also claims that the trial court erred by failing to dismiss Plaintiff's petition pursuant to N .C. Gen.Stat. § 1A–1, Rule 12(b)(6). According to well-established North Carolina law, a “motion to dismiss under [N.C. Gen.Stat. § 1A–1, Rule] 12(b)(6) tests the legal sufficiency of the complaint” and requires “the court [to] determine as a matter of law whether the allegations state a claim for which relief may be granted.” Stanback v. Stanback, 297 N.C. 181, 185, 254 S.E.2d 611, 615 (1979) (citations omitted). The majority, if not all, of the argument that Defendant has advanced in support of this contention rests upon considerations that are irrelevant to the issues appropriately raised by a dismissal motion lodged pursuant to N.C. Gen.Stat. § 1A–1, Rule 12(b)(6). Assuming, without in any way deciding, that Defendant's challenge to the sufficiency of Plaintiff's complaint is properly before us, we conclude that Plaintiff's complaint stated a claim for which relief could be granted given Plaintiff's allegations that Defendant had yelled at her and called her names, left harassing voicemail messages for her, and sent harassing e-mail messages to her; that Plaintiff had been forced to seek assistance from the police as a result of Defendant's conduct; that Plaintiff had made efforts to dissuade Defendant from continuing to engage in such conduct; and that Plaintiff did not feel safe in her home.
“In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context” and must have “obtain[ed] a ruling upon the party's request, objection, or motion.” N.C.R.App. P. 10(a)(1). “Even alleged errors arising under the Constitution of the United States are waived if [the] defendant does not raise them in the trial court.” State v. Haselden, 357 N.C. 1, 10, 577 S.E.2d 594, 600 (quoting State v. Jaynes, 342 N.C. 249, 263, 464 S.E.2d 448, 457 (1995), cert. denied,518 U.S. 1024, 116 S.Ct. 2563, 135 L.Ed.2d 1080 (1996)) (quotation marks omitted), 540 U.S. 988, 124 S.Ct. 475, 157 L.Ed.2d 382 (2003). Although the record contains Defendant's dismissal motions, it provides no indication that the trial court ever heard or ruled upon these motions. As a result, despite the fact that Defendant filed the dismissal motions upon which this aspect of his challenge to the trial court's order is predicated and appears to have had an opportunity to argue and obtain a ruling upon his dismissal motions, Defendant has failed to demonstrate that his constitutional challenge to the provisions of Chapter 50C of the General Statues has been properly preserved for purposes of appellate review. As a result, we decline to address the validity of the arguments advanced in support of Defendant's dismissal motions on the merits.
Defendant asserts in his brief that the trial court expressly refused to consider his dismissal motions. However, aside from the fact that the remedy for a trial court's failure to act is the filing of a petition seeking the issuance of a writ of mandamus, Stevens v. Guzman, 140 N.C.App. 780, 783, 538 S.E.2d 590, 593 (2000) (stating that, while “[t]he trial court has an obligation to enter orders disposing of a party's motions,” “[t]he failure of the trial court to enter an order, however, is not a matter to be addressed on an appeal from that inaction” and should, instead, “be addressed through a writ of mandamus filed with this Court”), disc. review improvidently granted,354 N.C. 214, 552 S.E.2d 140 (2001), the absence of a transcript or other properly established description of the events which occurred during the hearing of this matter precludes us from verifying the accuracy of Defendant's assertion.
In addition to the contentions advanced in support of his challenge to the trial court's alleged failure to grant his dismissal motions, Defendant “argues” that the trial court's order constitutes “a judicial restraint on defendant's future right of expression, trampling defendant's First Amendment rights.” Aside from defining the term “prior restraint,” Defendant makes no argument and cites no authority in support of this contention. An appellant's brief is required to contain “[a]n argument” which includes “the contentions of the appellant with respect to each issue presented,” with “[i]ssues not presented in a party's brief, or in support of which no reason or argument is stated ... taken as abandoned.” N.C.R.App. P. 28(b)(6). As a result of Defendant's failure to make an argument as defined in N.C.R.App. P. 28(b)(6) with respect to this “prior restraint” issue in his brief, we conclude that Defendant has abandoned this aspect of his challenge to the lawfulness of the trial court's no-contact order.
B. Analysis of Trial Court's Order
Secondly, Defendant argues that the trial court violated N.C. Gen.Stat. § 1A–1, Rule 52, by failing to make sufficient factual findings in the course of concluding that Defendant had engaged in unlawful conduct sufficient to support the issuance of a no-contact order. A careful reading of the relevant portion of his brief establishes that, rather than attacking the sufficiency of the evidence to support the findings of fact that the trial court did make, Defendant is, in reality, challenging the sufficiency of the trial court's findings of fact to support its conclusions of law. After carefully reviewing the trial court's factual findings, we conclude that Defendant's argument lacks merit.
1. Standard of Review
“A trial judge, sitting without a jury, acts as fact finder and weigher of evidence. Accordingly, if [the] findings are supported by competent evidence, they are binding on appeal, although there may be evidence that may support findings to the contrary.” Southern Bldg. Maintenance, Inc. v. Osborne, 127 N.C.App. 327, 331, 489 S.E.2d 892, 895 (1997) (citing Taylor v. Volvo North American Corp., 339 N.C. 238, 247, 451 S.E.2d 618, 622 (1994)). As a general rule, “[w]here no exception is taken to a finding of fact by the trial court, the finding is presumed to be supported by competent evidence and is binding on appeal.” Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). A trial court's “[c]onclusions of law are reviewed de novo and are subject to full review.” State v. Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011); see also Carolina Power & Light Co. v. City of Asheville, 358 N.C. 512, 517, 597 S.E.2d 717, 721 (2004) (stating that “[c]onclusions of law drawn by the trial court from its findings of fact are reviewable de novo on appeal”). “ ‘Under a de novo review, the court considers the matter anew and freely substitutes its own judgment’ for that of the lower tribunal.” State v. Williams, 362 N.C. 628, 632–33, 669 S.E.2d 290, 294 (2008) (quoting In re Greens of Pine Glen, Ltd. P'ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319, (2003)).
2. Sufficiency of Trial Court's Factual Findings
N.C. Gen.Stat. § 50C–7 authorizes the issuance of a permanent no-contact order in the event that “the victim has suffered unlawful conduct committed by the respondent.” The unlawful conduct necessary to support the issuance of a permanent no-contact order pursuant to N.C. Gen.Stat. § 50C–7 must consist of either nonconsensual sexual conduct or stalking. N.C. Gen.Stat. § 50C–1(7). A determination that the defendant engaged in stalking requires, as an initial matter, a finding that the defendant engaged in harassing behavior, N.C. Gen.Stat. § 50C–1 (6), which consists of “[k]nowing conduct ... directed at a specific person that torments, terrorizes, or terrifies that person and that serves no legitimate purpose.” N.C. Gen.Stat. § 14–277.3A(b)(2). Secondly, the defendant must have engaged in harassing behavior on more than one occasion and have acted with the intent to:
a. Place the person in reasonable fear either for the person's safety or the safety of the person's immediate family or close personal associates.
b. Cause that person to suffer substantial emotional distress by placing that person in fear of death, bodily injury, or continued harassment and that in fact causes that person substantial emotional distress.
N.C. Gen.Stat. § 50C–1(6).
In his brief, Defendant argues that the trial court's findings were nothing more than a recitation of legal conclusions and that the trial court's findings did not establish that he had engaged in the sort of conduct necessary to support the issuance of a no-contact order. As we have already noted, N.C. Gen.Stat. § 50C–7 provides that the trial court must determine that the defendant engaged in unlawful conduct in order to support the issuance of a permanent no-contact order. As a result, in order to determine that a defendant engaged in unlawful conduct based on stalking, a trial court must find as a fact that the defendant harassed the plaintiff on multiple occasions with the intent to cause one of the two results enumerated in N.C. Gen.Stat. § 50C–1(6). In its order, the trial court specifically found that Defendant tormented Plaintiff with the specific intent to intimidate and harass her and that his conduct placed Plaintiff in fear of continued torment and caused her substantial emotional distress.
In addition, we note that the trial court incorporated the factual allegations set out in Plaintiff's complaint into its findings of fact. More specifically, the trial court found that the “harassment as alleged at the hearing and [in] the Complaint by the Plaintiff, is substantial [and] places the Plaintiff in reasonable fear of continued torment.” Although we have not previously addressed the extent to which a trial judge has the authority to incorporate the allegations contained in a plaintiff's complaint into a permanent no-contact order entered in the context of a proceeding conducted pursuant to the provisions of Chapter 150C of the General Statutes by reference, we have approved similar language in considering the lawfulness of an ex parte order entered in the course of a proceeding conducted pursuant to Chapter 50B of the General Statues, stating that, “while it would be preferable for the trial court to set forth the ‘specific facts' which support its order separately, instead of by reference to the complaint, the ex parte [domestic violence protection order], read in conjunction with plaintiff's complaint, does provide sufficient information upon which we may review the trial court's decision to issue the ex parte [domestic violence protection order].” Hensey v. Hennessy, 201 N.C.App. 56, 64, 685 S.E.2d 541, 547 (2009). In light of our belief that there is no valid basis for adopting different requirements for evaluating the sufficiency of orders entered pursuant to Chapters 50B and 50C of the General Statutes, we conclude that the allegations of Plaintiff's complaint may be considered in determining the extent to which the trial court's findings of fact support its legal conclusions.
The allegations set out in Plaintiff's complaint, when considered with the trial court's other findings of fact, provide ample support for a conclusion that Defendant stalked Plaintiff. According to Plaintiff's complaint, Defendant continuously left harassing voicemails for Plaintiff, sent her harassing e-mails, and yelled at and bullied Plaintiff when she attempted to go to her car or mailbox. In addition, Plaintiff alleged that Defendant's harassing behavior continued after she asked him to cease, that she was frightened by Defendant's conduct, and that she did not feel safe in her own home. Defendant has not argued that the record lacked sufficient evidence to support these findings, rendering them binding upon us for purposes of appellate review. Koufman, 330 N.C. at 97, 408 S.E.2d at 731. After careful consideration of Defendant's arguments to the contrary, we conclude that these facts, when read in conjunction with the trial court's findings, amply support a conclusion that Defendant engaged in unlawful conduct by stalking Plaintiff.
Any challenge that Defendant might have made to the sufficiency of the evidence to support these findings of fact would have been unavailing given his failure to provide us with an adequate record of the evidence received at the hearing held before the trial court.
III. Conclusion
Thus, for the reasons set forth above, we hold that none of Defendant's challenges to the trial court's permanent no-contact order have merit. As a result, the trial court's order should be, and hereby is, affirmed.
Although Defendant has asserted challenges to the trial court's order in addition to those discussed in the text of this opinion, we do not find that any of these additional arguments justify a decision to provide Plaintiff with appellate relief. First, as was the case with Defendant's dismissal motions, the record does not indicate that Defendant raised these issues before the trial court. Secondly, the arguments advanced in support of these additional contentions rest upon information which simply does not appear in the record before us, a fact which precludes us from considering these arguments. Jeffreys v. Jeffreys, 213 N.C. 531, 533, 197 S .E. 8, 9 (1938) (holding that “[t]he record imports verity and we are bound by its contents”).
AFFIRMED. Chief Judge MARTIN and Judge DILLON concur.
Report per Rule 30(e).