Contempt of Court

What is the name of your state? North Carolina

OK... Here goes:

My Dad and I purchsed a piece of property a few years ago. The property has an easment for it and the neighboring property to use. Since neither my Dad or the neighbor needed to use the easment they verbally agreed to split it and Dad would run a fence and gate down the middle of it. I realize this verbal deal was dumb on Dad's part, though I was there and witness the conversation. Dad and the neighbor don't get along. The neighbor wanted to buy the property and couldn't so he resents Dad and I because of it.

I am on the deeed to this property and therefore legally involved though I have little to do with the day to day on the property.

About 5 months ago the neighbor took us to court saying we were blocking the easment with a fence and gate. We agreed to move the gate and fence back 15' out of the easment and were given 90 days to do it. My Dad had a stroke a few weeks before this and he is a little slow these days on physical stuff.

So, he moved the fence and all of the gate except a couple of posts which gave the neighbor plenty of room to use the easement foolishly thinking that the neighbor would be OK with that and he could move the rest as he had time/energy to do it.

On day 91 the neighbor and or his attorney filed a contempt of court. The clerk of court sent us a notice for a hearing on May 14. We assume its because of the posts still in the easement though the notice just said the hearing and the date/time and no details regarding it.

We have since removed the rest of the posts and reset the gate and fence back out of the easement.

I need to know what happens now? Since this should be civil contempt once the posts are gone which they now are that should end the contempt issue shouldn't it? Should I write a letter to the attorney/neighbor and judge requesting it be dropped? Can the judge fine or jail us? Do we need an attorney for this? Essentially I cannot afford to hire an attorney right now but can't afford to be fined or jailed either as I have a business and wife ad two kids to take care of...

I maybe should also menion that the neibors son is a bailiff (sp) in the court where the contempt is at. We are worried he might be bending the Judge's ear or something...

Please let me know some details...

THanks!

I would attend the hearing as scheduled and present exactly the same information you have here. Also, if dad can't attend then have an affidavit prepared for him outlining this information and take it with two copies with you. After your complete your argument ask that the Contempt Motion be denied. It won't be dismissed ... it will be denied.

The affidavit is nothing special and you can find samples on-line. It is a simple sworn statement and have it notarized. The affidavit will be based on personal knowledge and belief. It is important to include that the original order was constructively complied with and due to uncontrollable circumstances it has taken a few extra days to completely comply. However, the plaintiff has had the reasonable benefit of the Order since xxxxx date.

I think you will easily win the argument and they will look rather foolish in court. You can throw in the fact that they appeared to be lurking in the bushes for day 91 to file their motion if you want to rub it in a little .. lol.

You have constructively complied with the previous order so there is no contempt involved in this situation and it is difficult to imaging that the court will grant the motion.

Yeah, I was hoping that it could be dropped before having to go to court since around here its a session and you can set all day or for 2-3 days waiting for your matter to he heard...

Dad can go, thats not an issue. In fact since he is retired he can go easier than I can...lol

Do you think writing their attorney a letter stating the work has been done would be of any use? I can't imagine that they would want to spend their funds on an attorney going to court for them if they pretty much know it will be denied since we have done the work...

That isn't what I said …. you must go to the hearing (court) if your name is on the case documents. Same for dad but he really needs to go anyway. If you don’t follow this the judge may very well grant the motion or stir the pot. Additionally, you laid out a good argument so you may not want to trust that to dad unless he is good in public. It is a little intimidating so be sure one of you can do the talking without jabbering. Be factual, concise and know your business thoroughly. Dress well, be polite and don’t get steered off topic in your argument. Just like you laid it out here.

I would not give the other party (atty) anything and I would argue my position in court. I think you're sure to win and I also think it will likely end the feud between the parties because the neighbor will get his hand sort of slapped and have to pay for the privilege. Some good can come out of it. Maybe some one else will chime in who sees it differently.

I would take a slightly different approach - send a certified letter to the other side, indicating that the work has been done and there is no encroachment on the easement. Ask the other side to please pass the hearing. You probably won't get a response - or you will get a response that points out whatever issues they think are still outstanding (then at least you will know).

Of course, go to the hearing and Dad, too. Bring pictures of the easement to show the Court. Be sure to mention that you've notified the other side that the issue is resolved. Courts don't like it when their time gets wasted by issues that are resolved.

Here is what I did yeaterday...

April 28, 2008

Mark J*******, Attorney
154 N Main St. #4
Waynesville, NC 28786

CC:

James **** & Jackie *******
160 ****************
Canton, NC 28716

The Honorable Danny E Davis
District Court Judge
285 N Main St. Suite 2300
Waynesville, NC 28786

Re: 07CVD1629

Mr. *******;

This letter is in regards to the filed contempt of court hearing of which we recently received notice. We believe you are the attorney of record for the *******. Please notify us if this is incorrect. First, we have received no specifics as to the exact nature of why we are being pursued for contempt of court from you or the Clerk of Court. We would appeciate a clear reference of what you alledge.

We believe this must be in regards to the gate and fence which were ordered removed from the easement shared by us and Mr. & Mrs. ********. The order dictated that the fence should be removed from the easement and that the gate should be moved to or beyond location A which was 15’ back from its current location. Both of these actions have been completed. We have enclosed pictures which show the current location of the gate and fence which are now completely out of the easement .

The pictures also show where the ****** have been actively using the easement to ingress and egress from their property. It should be noted that not now or have we ever prevented the ******* from coming and going from their property. If you notice in the pictures it is quite impossible since they have multiple driveways accessing their property. Even when the gate and fence were in the easment the ****** had plenty of space to come and go.

Therefore, unless there are circumstances of which we are unaware we respectfully request that the contempt of court hearing be dismissed by you and/or the ******* as soon as possible. We are unaware of any reason this should or could be continued since we are now in compliance with the order as written. We also request a response from you in this matter within 5 business days from the date of this letter. We would expect to either be notified of a dismissal on your part or reasons why you feel we are still in contempt of court.

We await your reply.

Sincerely,



William L ******



Lucas W. *******

Good job, Mr. ************!

Please let us know what happens