City of Brevard v. Ritter

206 S.E.2d 151 (1974)

285 N.C. 576

CITY OF BREVARD, a municipal corporation, and L. C. Case, Building Inspector of the City of Brevard v. John F. RITTER et al.

No. 77.

Supreme Court of North Carolina.

July 1, 1974.

*153 Morris, Golding, Blue & Phillips by James N. Golding, Asheville, for plaintiff appellee.

Van Winkle, Buck, Wall, Starnes, Hyde & Davis, P. A. by O. E. Starnes, Jr., Asheville, for defendant appellant.

HIGGINS, Justice.

In this dispute the City of Brevard has sought to enforce its zoning ordinances preventing the enlargement of the private airport facility owned by the defendant. The defendant sought "to organize a Flying Club, and that a portion of the building under construction would be usable as a hangar for a small airplane." (Stipulation 14.)

After hearing, Judge Falls found the defendant had violated the zoning ordinances by the new construction and by enlargement of existing facilities. He ordered *154 that the partially constructed lounge and auxiliary hangar be removed within ninety days and that further enlargement of the facilities cease. On review, the Court of Appeals affirmed the order.

On May 22, 1972, the defendant Ritter notified the Zoning Board that he was proceeding to convert the partially completed hangar into a two-bedroom dwelling "with an attached garage and hobby-tool shop in the remaining portion."

The plaintiff, after notice and on motion, obtained a citation requiring the defendant to appear and show cause why he should not be attached as for contempt (G.S. § 5-8) in failing to comply with Judge Falls' order to remove the partially completed building and to cease further enlargement of the airport facilities.

At the hearing on the show cause order, Judge Ervin held that the plaintiff had not carried the burden of showing the defendant Ritter was in violation of Judge Falls' order and dismissed the proceeding. On review, the Court of Appeals (20 N.C.App. 380, 201 S.E.2d 534) reversed and remanded the cause for further proceeding. That decision is now before us for review.

The stipulations before Judge Ervin disclosed the defendant's failure to remove the offending structure. The defendant gave notice that he was converting the building into a two-bedroom dwelling with an attached garage and hobby-tool shop in the remaining portion. "Stipulations duly made during the course of a trial constitute judicial admissions binding on the parties and dispensing with the necessity of proof . . . for the duration of the controversy." 7 Strong, N.C.Index 2d, Trial, § 6 Stipulations. Atlantic Coast Line R. R. v. Highway Commission, 268 N.C. 92, 150 S.E.2d 70; Rural Heating Co. v. Construction Co., 268 N.C. 23, 149 S.E.2d 625; Moore v. Humphrey, 247 N.C. 423, 101 S.E.2d 460.

The burden, therefore, was on the defendant Ritter to show compliance in order to purge himself of the contempt citation.

Chief Justice Smith in Baker v. Cordon, 86 N.C. 116, states the rule:

"If the act is intentional, and violates the order, the penalty is incurred, whether an indignity to the Court, or contempt of its authority, was or was not the motive for doing it. A party is not at liberty by a strained and narrow construction of the words, and a disregard of the obvious and essential requirements of the order, to evade the responsibility which attaches to his conduct. In an honest desire to know the meaning and to conform to its directions, a mistaken interpretation of doubtful language would be a defense to the charge, but when its language is plain and the attempt is made to escape the force and defeat the manifest purposes of the order, by indirection, the penalty must be enforced, or the Court would be unable to perform many of its most important functions."

In Rose's Stores v. Tarrytown Center, 270 N.C. 206, 154 S.E.2d 313, this Court, quoting Hart Cotton Mills v. Abrams, 231 N.C. 431, 57 S.E.2d 803, held: "`The question is not whether the respondent intended to show his contempt for the court, but whether he intentionally did the acts which were a contempt of the court.' . . . `If the act is intentional, and violates the order, the penalty is incurred, whether an indignity to the Court or a contempt of its authority, was or was not the motive for it.' . . . The respondents having sought to purge themselves, the burden was on them to establish facts sufficient for that purpose."

We conclude that Judge Ervin, having dismissed Judge Anglin's order to show cause, committed error of law by placing the burden on the movant, the City of Brevard. The burden was on the defendant, Mr. Ritter, to purge himself of the charge of contempt by showing that he had complied with the court's mandate that he remove the offending structure. At the *155 hearing, Judge Ervin did not require the defendant to show anything, but held the City had failed to carry its burden. Judge Ervin's order was based on a mistaken view of the law. His decision was, therefore, erroneous.

The Court of Appeals was correct in reversing the order and in remanding for further proceedings. The superior court will proceed to conduct a hearing on the questions raised by Judge Anglin's show cause order and otherwise make a final disposition of the controversy.

The decision of the Court of Appeals is

Affirmed.

SHARP, Justice (concurring in result):

I am in complete accord with the majority's decision that Judge Ervin erred in placing the burden of proof upon plaintiffs to show that defendant Ritter is in violation of Judge Falls' order and that the cause must be remanded to the Superior Court. Judge Falls' order of 23 February 1972 directed defendant "to remove that portion of construction of said pilot lounge or club and auxiliary hangar already completed within 90 days from the date of this judgment." The stipulations establish that, without removing any portion of the structure as it existed on 23 February 1972 and without obtaining any modification of the court's order, defendant made certain alterations within the existing walls and roof by building two bedrooms, a kitchen, garage, hobby-tool shop, and changing the bathrooms. The stipulations, therefore, establish defendant's violation of the order and his contumacy. No further hearing is necessary to determine that fact; the only question remaining for the court is what punishment should be imposed.

The majority opinion, as I interpret it, requires the demolition of the altered structure. It is my view that, if appropriate, alternative sanctions may be imposed, and, in determining what penalty should be imposed for defendant's contempt, the court may take into consideration whether the present building is in violation of the zoning ordinance and, if so, to what extent. Any portion of the structure which does not conform must, of course, be removed. The vindication of judicial authority, however, does not necessarily require the wasteful demolition of a building which could legally be reconstructed immediately after it has been razed. Such an order would seem to confuse judicial vindication with judicial vindictiveness.

BOBBITT, C. J., and BRANCH, J., join in the concurring opinion.