Opinion
NO. COA10-1038 No. 09-CVS-9092
08-16-2011
WELLS FARGO BANK, N.A. AS TRUSTEE FOR THE REGISTERED HOLDERS OF GMAC COMMERCIAL MORTGAGE SECURITIES, INC., MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-C1, Plaintiff, v. WINSTON-SALEM INVESTORS, LLC, Defendant.
Van Winkle, Buck, Wall, Starnes and Davis, P.A., by Albert L. Sneed, Jr., for defendant-appellant. No appellee brief filed.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Forsyth County
Appeal by defendant from order entered 26 March 2010 by Judge Patrice A. Hinnant in Superior Court, Forsyth County. Heard in the Court of Appeals on 12 April 2011.
Van Winkle, Buck, Wall, Starnes and Davis, P.A., by Albert L. Sneed, Jr., for defendant-appellant.
No appellee brief filed.
STROUD, Judge.
Defendant appeals order determining it was in contempt. For the following reasons, we affirm.
I. Background
On 23 October 2009, plaintiff filed a complaint against defendant seeking payment of funds due to defendant's default on a promissory note which was secured by real property which generated income, including rent. On 23 October 2009, plaintiff filed a motion requesting that a receiver be appointed. On 2 November 2009, the trial court entered a consent order appointing a receiver ("Consent Order"). The Consent Order provided in pertinent part that defendant "shall make no further disbursement or distribution of said income, cash, or funds, and promptly shall turn those funds over to the Receiver as set forth above." On 26 March 2010, upon hearing plaintiff's motion to show cause, the trial court determined that defendant was "in civil contempt of court for failing to comply with the [Consent] Order" ("Contempt Order"). The trial court further determined that the contempt could be purged if defendant turned certain funds over to the receiver. Defendant appeals the Contempt Order.
II. Willful Violation
Defendant first argues that "the court erred in finding that the defendants' payment of expenses related to the operation of the property was a willful violation of the order." (Original in all caps.)
Defendants' assert that the [Consent] Order had only one (1) reasonable interpretation: that where taken in context of the loan agreement, the demand letter and its plain language, the payment of expenses incurred in the management and operation of the property was not enjoined. However, even if the Plaintiff's interpretation is found to be reasonable, then there are two (2) reasonable interpretations and the Order is ambiguous and cannot be used as a basis for contempt.Shippen v. Shippen provides,
The standard of review for contempt proceedings is limited to determining whether there is competent evidence to support the findings of fact and whether the findings support the conclusions of law. . .__ N.C. App. ___, ___, 693 S.E.2d 240, 243 (2010) (citations and quotation marks omitted).
. . . .
The purpose of civil contempt is not to punish, but rather to coerce the defendant to comply with an order of the court. To hold a defendant in civil contempt, the trial court must find the following: (1) the order remains in force, (2) the purpose of the order may still be served by compliance, (3) the non-compliance was willful, and (4) the non-complying party is able to comply with the order or is able to take reasonable measures to comply. In order to find that a defendant acted willfully, the court must find not only failure to comply but that the defendant presently possesses the means to comply. Wilfulness in matters of this kind involves more than deliberation or conscious choice; it also imports a bad faith disregard for authority and the law.
Here, the Consent Order unambiguously provides that defendant "shall make no further disbursement or distribution of said income, cash or funds, and promptly shall turn those funds over to the Receiver[.]" Furthermore, the Consent Order states that the receiver "shall pay all appropriate operating expenses," not defendant. Accordingly, defendant's argument regarding the ambiguity of the Consent Order is without merit.
As to the Contempt Order, we are unable to review "whether there is competent evidence to support the findings of fact[,]" id., as defendant failed to provide a transcript. Fellows v. Fellows, 27 N.C. App. 407, 408, 219 S.E.2d 285, 286 (1975) ("The record does not contain the oral testimony; therefore, the court's findings of fact are presumed to be supported by competent evidence."). Thus, the binding findings of fact, see id., establish several actions by defendant "that were in direct contravention of the [Consent] Order[;]" these included failing to provide bank account information, making disbursements, authorizing transfers, and failing to provide certain documents. The trial court further found that "[t]he order remains in force[;]" "[t]he purpose of the Order may be served by compliance with the Order[;]" "[t]he noncompliance . . . was willful[;]" and defendant was "able to comply with the Order or . . . to take reasonable measures that would enable . . . [it] to comply with the Order." In light of the plain language of the Consent Order and defendant's actions "in direct contravention" of the Consent Order, the trial court did not err in finding defendant to be in willful violation of the Consent Order and thus in contempt. See Shippen, __ N.C. App. at __, 693 S.E.2d at 243. This argument is overruled.
III. Admission of Affidavit
Defendant next argues that "the court erred in admitting an affidavit into evidence over defendants' objection when the affiant was not present and available for cross-examination." (Original in all caps.) However, as defendant has failed to provide a transcript this Court is unable to review any objections defendant may have made or consider who was and was not available for cross-examination, and thus we are unable to review this issue. N.C.R. App. P. 9(a) (noting that our review is based "solely upon the record on appeal, the verbatim transcript of proceedings, if one is designated, and any other items filed pursuant to this Rule 9"); Miller v. Miller, 92 N.C. App. 351, 353, 374 S.E.2d 467, 468 (1988) ("It is the appellant's responsibility to make sure that the record on appeal is complete and in proper form.").
IV. Ability to Comply
Lastly, defendant contends that "the court erred in finding that the defendant[] are able to comply with order[.]" (Original in all caps.) Defendant offers no reasons or arguments as to why it was unable to comply with the Consent Order, and instead proceeds to argue how it is unable to "purge [itself] of contempt" by paying the amount specified. Whether defendant is able to purge itself of contempt is irrelevant to the inquiry of whether defendant was able to comply with the Consent Order; as such, this argument is without merit.
V. Conclusion
We conclude that the trial court did not err in determining that defendant willfully violated the Consent Order and was in contempt; thus, we affirm.
AFFIRMED.
Judges MCGEE and BEASLEY concur.
Report per Rule 30(e).