PIEDMONT EQUIPMENT CO., INC. v. Weant , 30 N.C. App. 191 ( 1976 )

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226 S.E.2d 688 (1976) 30 N.C. App. 191
PIEDMONT EQUIPMENT COMPANY, INC.
v.
P. Ernest WEANT, Jr. and Autohardware, Inc.
No. 7526SC1013.
Court of Appeals of North Carolina.
July 21, 1976.
*690 William H. Booe, Charlotte, for plaintiff-appellant.

Harkey, Faggart, Coira & Fletcher by Charles F. Coira, Jr., Charlotte, for defendants-appellees.

PARKER, Judge.

At the outset we face the question whether appeal lies to review an order dismissing a charge of indirect civil contempt. We hold that it does where, as here, the order affects a substantial right claimed by the appellant. G.S. 1-277(a). Had defendants been adjudged guilty of the contempt charged, they would have had the right to appeal expressly granted by statute, G.S. 5-2. That statute, however, makes no reference to an appeal from an order adjudging an alleged contemnor not guilty, and our attention has been directed to no other statute or case authority of this State which expressly deals with the question. Decisions elsewhere are divided. See: Annot. 24 A.L.R.3rd 650, "Appealability of Acquittal from or Dismissal of Charge of Contempt of Court." In the only North Carolina case cited in that Annotation, Murray v. Berry, 113 N.C. 46, 18 S.E. 78 (1893), our Supreme Court declined to review the action of the trial court in refusing to attach respondents for contempt. In that case, however, the Court found that the rights which plaintiffs sought to enforce by the contempt proceeding could be more properly determined in a pending civil action brought by respondents to partition land, title to which was in question. In the case now before us, we are aware of no other proceeding by which plaintiff can enforce its rights under the consent judgment dated 23 June 1975 than by the contempt proceedings which plaintiff now seeks to have us review. Since the order denying plaintiff the relief sought clearly affects a substantial right of the appellant, that is, the right to have the 23 June 1975 judgment enforced, we hold that the present appeal lies by virtue of G.S. 1-277(a). See: § 7 of Annot., 24 A.L.R.3d 650, cited supra.

Turning to the merits of plaintiff's appeal, we find no error in the order denying the plaintiff's motion that the defendants be found guilty of contempt. "The findings of fact by the judge in contempt proceedings are conclusive on appeal when supported by any competent evidence, Cotton Mill Co. v. Textile Workers Union, 234 N.C. 545, 67 S.E.2d 755, and are reviewable only for the purpose of passing on their sufficiency to warrant the judgment." Roses's Stores v. Tarrytown Center, 270 N.C. 206, 211, 154 S.E.2d 313, 317 (1967). Here, *691 the court's findings of fact were supported by competent evidence. These factual findings in turn support the court's conclusion that defendants had not intentionally and wilfully disobeyed the 23 June 1975 judgment and that they should not be punished for contempt. Finding of fact number 4, that subsequent to 23 June 1975 defendants received and filled orders from customers bearing part numbers included in plaintiff's list, does not compel the conclusion that defendants intentionally violated the 23 June 1975 judgment. That judgment was clearly intended to be prospective in its application. At the time it was entered, the parties knew that there were then outstanding, in the hands of defendants' customers, catalogs theretofore issued by defendants in which plaintiff's product identification numbering system was used. Indeed, that was the very basis of plaintiff's action. Had it been intended by the 23 June 1975 judgment that defendants were prohibited from filling orders received as a result of their then outstanding catalogs, clearer language to accomplish that prohibition should have been employed. We interpret the 23 June 1975 judgment as prohibiting defendants from using plaintiff's product numbering system in any future catalogs and as requiring defendants to act with reasonable diligence in issuing to its customers new catalogs in which none of the product identification numbers or other work product of plaintiff appear. The court's findings of fact indicate that this has been done.

The order appealed from is

Affirmed.

BRITT and CLARK, JJ., concur.