HELBEIN v. SOUTHERN METALS CO

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Docket Number

No. COA94-1101

Attorney(S)

A. Marshall Basinger, II, for plaintiff-appellant and non-party Richard Helbein. Moore Van Allen, PLLC, by Jeffrey J. Davis, Gregory J. Murphy, and Karin M. McGinnis, for defendant-appellees.

Judges

GREENE, Judge.

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Smart Summary

Factual and Procedural Background

Betty M. Helbein and non-party Richard Helbein appealed from an order denying their motion to set aside an earlier order restricting Richard Helbein’s conduct and attendance at future proceedings. [1][2]

After Richard allegedly communicated threats outside the courtroom, the trial court entered an order on 3 September 1992 without giving him notice. The order prohibited him from contacting or harassing specified persons, possessing firearms except at home, communicating threats, entering specified premises, or attending further proceedings unless subpoenaed. [3][4][5][6][7]

After the defendants moved to hold Richard in contempt, the trial court concluded that his alleged conduct did not violate the September order. Richard and Betty then moved under Rule 60 to set aside that order as jurisdictionally defective and void. The trial court denied the motion on 24 May 1994. [8][9]

Legal Issues Presented

Whether the 3 September 1992 order was void for lack of personal jurisdiction because Richard received no notice or opportunity to be heard before its entry. [10][11]

Arguments of the Parties

Plaintiff and Non-Party Richard Helbein

They argued that Richard received no notice of the proceedings leading to the September order, depriving the trial court of personal jurisdiction and rendering the order void. [9]

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Harris v. Harris, 104 N.C. App. 574 (1991)	Due process requires reasonable notice and an opportunity to be heard before an order is entered against a person who has not made a general appearance.	The court relied on this notice-and-hearing requirement in determining that the September order could not bind Richard without prior notice. [11]
First Union Nat'l Bank v. Rolfe, 83 N.C. App. 625 (1986)	A person must receive notice and an opportunity to be heard before being deprived of a right.	The decision cited this principle as additional support for requiring notice before entry of the order. [11]
Allred v. Tucci, 85 N.C. App. 138 (1987)	Judgments entered without personal jurisdiction are void, and a void judgment may be attacked at any time.	The court applied this rule to hold the September order void and to conclude that Richard could seek relief under Rule 60(b)(4). [11][12]

Court's Reasoning and Analysis

Due process required reasonable notice and an opportunity to be heard before the trial court entered an order against Richard, who had not made a general appearance. [11]

The restrictions imposed by the September order were, in effect, an injunction. North Carolina law generally requires notice before an injunction is issued unless it is a limited-duration temporary restraining order. [11]

Because Richard undisputedly received no notice and no opportunity to be heard, the trial court lacked personal jurisdiction over him. The September order was therefore void. [11]

A void order may be challenged at any time under Rule 60(b)(4). Accordingly, the trial court erred by denying the motion for relief and was required to vacate the September 1992 order. [12]

Holding and Implications

REVERSED AND REMANDED. The Court of Appeals held that the 3 September 1992 order was void for lack of personal jurisdiction and remanded for entry of an order vacating it. [11][12][13]

The direct effect was removal of the restrictions imposed on Richard by the September order. The opinion did not identify broader implications or establish new precedent.

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BETTY M. HELBEIN v. SOUTHERN METALS COMPANY, INC. and ROBERT HELBEIN

Injunctions § 33 (NCI4th) — no notice before order entered — order void Where a nonparty received no notice and was not given an opportunity to be heard before entry of the trial court's order prohibiting him from harassing or contacting defendants, their employees and attorneys, communicating threats, possessing firearms, or attending any further proceedings in this action, the trial court lacked personal jurisdiction over the nonparty, and the order was therefore void.

Am Jur 2d, Injunctions §§ 249 et seq.

GREENE, Judge.

Betty M. Helbein (plaintiff) and non-party Richard Helbein (movant) appeal from an order of the trial court denying their motion to set aside an earlier order which restricted the right of movant to attend "any further proceedings in this action."

The record shows that, following a court proceeding in this matter and "while in the hallway immediately outside the courtroom," movant "communicat[ed] threats regarding his intention to harm Robert Helbein and others." After that incident, the trial court, on 3 September 1992, without any notice to the movant, entered the following order:

1. Richard Helbein shall not:

(a) Contact, go about, harass or bother his brother, Robert Helbein, or any member of Robert Helbein's family, or any employee of Southern Metals Company.

(b) Possess any firearms except in his own home.

(c) Contact, go about, harass or bother counsel for Southern Metals, Mr. Jeffrey Davis, or members or employees of his firm, nor is Richard Helbein to go about his residence or place of business.

(d) Communicate to any person, directly or indirectly, any threat involving Robert Helbein or any member of his family, any Southern Metals employee or member of their family, Jeffrey Davis, or any member of his family, or any other person in any way connected with this action.

(e) Go about the premises of Southern Metals, Moore VanAllen, or the residence of any person described above.

2. Richard Helbein is further hereby prohibited from attending any further proceedings in this action unless he is under subpoena.

Defendant subsequently made a motion that movant be held in contempt for violating this 3 September order. After a hearing on defendant's motion, the trial court entered an order, on 24 February 1994, which included the court's conclusion that movant's actions, as alleged by defendant's motion, did not constitute a violation of the 3 September order.

On 7 March 1994, movant and plaintiff made a motion, pursuant to N.C. Gen. Stat. § 1A-1, Rule 60, which requested that the trial court set aside the 3 September order "on the grounds that the order is jurisdictionally defective and therefore void." This motion argued that movant received no notice of the proceedings which resulted in the 3 September order and that the court thus lacked personal jurisdiction rendering its order void. In an order entered 24 May 1994, the trial court denied the 7 March motion.

The issue is whether the 3 September order is void for want of personal jurisdiction.

Absent a general appearance, due process requires that a person who will be subject to a court's order be given "reasonable notice and opportunity to be heard" before any proceeding which results in such order being entered against him. Harris v. Harris, 104 N.C. App. 574, 577, 410 S.E.2d 527, 530 (1991); see also First Union Nat'l Bank v. Rolfe, 83 N.C. App. 625, 628, 351 S.E.2d 117, 119 (1986) (general statutes and North Carolina Constitution mandate that person be given "notice and an opportunity to be heard before he can be deprived of" a right). Moreover, the 3 September order is, in effect, an injunction and North Carolina law requires that persons affected by injunctions be given notice before the issue of an injunction, unless the injunction is a "temporary restraining order," limited in duration. N.C.G.S. § 1A-1, Rule 65 (1990). There is no dispute that movant received no notice and was not given an opportunity to be heard before the 3 September order was entered. There being no notice to movant, the court lacked personal jurisdiction over movant and the 3 September order is void. See Allred v. Tucci, 85 N.C. App. 138, 142, 354 S.E.2d 291, 294 (judgments entered without personal jurisdiction are void), disc rev. denied, 320 N.C. 166, 358 S.E.2d 47 (1987).

A party who is subject to an order by a trial court which is void, may attack that order at any time, pursuant to Rule 60(b)(4) of the Rules of Civil Procedure. N.C.G.S. § 1A-1, Rule 60(b) (1990); Allred, 85 N.C. App. at 141, 354 S.E.2d at 294 (void judgment is legal nullity which may be attacked at any time). Therefore, the trial court erred in failing to grant the 7 March motion for relief pursuant to N.C. Gen. Stat. § 1A-1, Rule 60(b) and the matter is remanded for entry of an order vacating the 3 September 1992 order.

Reversed and remanded.

Judges JOHNSON and MARTIN, JOHN C., concur.