North Carolina Double contempt case divides Court of Appeals Defendants failed to convince court that contempt orders violate state law

By Phillip Bantz

BridgeTower Media Newswires

RALEIGH, NC - Melvin Davis and LiCurtis Reels - aging brothers who have been jailed since 2011 for their refusal to walk away from family land - have very little in common with Barry Revels, an entrepreneur who helmed a Shelby-based telecommunications company before he was accused of embezzlement.

But the three could commiserate over being held in both civil and criminal contempt and failing, at different times, to convince the Court of Appeals that the contempt orders in their cases violated state law.

The decision that affirmed the contempt orders in Davis' and Reels' case, which is Adams Creek Associates v. Davis, informed the Dec. 6 majority opinion that upheld the contempt findings against Revels.

But his case - and the scope of Adams Creek - split the three-judge panel in Revels, which centers on Revels' alleged violation of court orders requiring him to return office equipment and other assets to RST Global Communications. The orders were handed down after he was accused of misusing company money.

Judge Wendy Enochs, writing for the majority, determined that a finding of double contempt is allowed under the law when applied to "divergent and distinct conduct arising from the same underlying nucleus of facts."

She concluded that it was appropriate to find Revels in criminal contempt for his past violation of the court's orders while also holding him in civil contempt for his ongoing violation of the order. Judge Valerie Zachary concurred with Enochs.

In his dissent, Judge Rick Elmore contended that Enochs and Zachary had based their finding on an overly expansive reading of Adams Creek. He also asserted that their decision "effectively nullifies" the statutory mandate that was meant to protect defendants from being slapped with civil and criminal contempt orders for the same conduct.

If the opinion stands, Elmore warned that "every party charged with willful noncompliance of a court order whose only conduct was leaving uncorrected a single directive in that order would nonetheless be subject to both criminal and civil contempt, on the basis that past and continued violations of that order constitute separate, contemptible conduct."

As for Davis and Reels, they were held in criminal contempt after they violated a court order by trespassing on waterfront property near Beaufort. Several courts have determined that the land, which had been in Davis and Reels' family for more than a century, now belongs to the Adams Creek Associates development company.

The brothers were hit with civil contempt orders after they testified that they would not stay off the land. They subsequently argued on appeal that they could not be held in both civil and criminal contempt for trespassing, but the Court of Appeals rejected the argument. Davis and Reels remain in jail.

In distinguishing the two contempt orders in their case, the court held that the criminal finding related to the brothers' past violation of the no-trespass order while the civil finding treated their intention to continue to disobey the order as a "separate type of conduct," Enochs wrote.

She concluded that Revels' situation mirrored that of Davis and Reels. But Elmore said Adams Creek was distinguishable from Revels because Davis and Reels were held in civil contempt for testifying that they would continue to disobey the court, while Revels never testified that he would violate future orders of the court.

An attorney for the Adams Creek Developers, Lamar Armstrong Jr. of Armstrong & Armstrong in Smithfield, sided with the majority in Revels, saying that the criminal and civil contempt orders in his case were applied to distinctly separate past and future behavior, respectively.

"The difference is civil contempt is to force somebody to do something they haven't yet done and can do," he added. "If you punish them before for criminal contempt I don't believe that swallows civil contempt."

Revels' attorney, appellate defender Amanda Zimmer of Durham, declined to discuss the case, as did Noelle Talley, a spokeswoman for the state Attorney General's Office, which prosecuted Revels.

After reviewing Revels for Lawyers Weekly, Charlotte business litigator John "Buddy" Wester of Robinson Bradshaw concluded that he agreed with Elmore's dissent.

"Here, the question is what is severable conduct. And if you have that, which you had in Adams Creek, you've got separate, independently contemptible acts," he said. "In this case, I didn't see that."

Elmore's dissent gives Revels an automatic right to appeal the decision to the Supreme Court, which apparently has not published an opinion that deals directly with the issue at the heart of the matter - the Court of Appeals did not cite any precedent from the high court in its opinion.

"If the defendant takes this case forward, as is his right, it will be intriguing to see how our Supreme Court grades the papers," Wester said.

Published: Mon, Dec 26, 2016