Opinion
No. COA16-115
07-19-2016
HEATHER KING HARVELL, Plaintiff, v. JABIN WAYNE NORRIS, Defendant.
Cranfill Sumner & Hartzog LLP, by Melody J. Jolly and Kara O. Gansmann, for Plaintiff. No brief for Defendant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. Brunswick County, No. 15 CVD 485 Appeal by Plaintiff from order entered 20 August 2015 by Judge W. Fred Gore in Brunswick County District Court. Heard in the Court of Appeals 9 June 2016. Cranfill Sumner & Hartzog LLP, by Melody J. Jolly and Kara O. Gansmann, for Plaintiff. No brief for Defendant. STEPHENS, Judge.
Plaintiff Heather King Harvell appeals from a district court order ("the release order") concerning certain weapons surrendered by Defendant Jabin Wayne Norris after an ex parte Domestic Violence Protective Order ("DVPO") was entered against him on 16 March 2015. On 22 April 2015, Norris sought return of his weapons, but the district court, noting that Harvell had obtained a one-year DVPO against Norris on 8 April 2015, concluded that State and federal law barred the return of Norris's weapons while the DVPO remained in force. Instead, the release order entered 20 August 2015 directed the sheriff's department in possession of the weapons to release them to Norris's mother. Because the DVPO that prevented the return of Norris's weapons expired before the hearing date of this matter in this Court, we dismiss Harvell's appeal as moot.
Factual and Procedural Background
On 16 March 2015, Harvell filed in the Brunswick County District Court a complaint and motion for a DVPO pursuant to Chapter 50B of the North Carolina General Statutes, alleging that Norris had threatened and harassed her. On that date, the Honorable William Fairly, Judge presiding, entered an ex parte DVPO ("the ex parte order") pursuant to N.C. Gen. Stat. § 50B-2(c). In the order, Judge Fairly concluded that Norris had committed acts of domestic violence against Harvell, including by pointing a gun at Harvell and threatening to kill her. The ex parte order required Norris to surrender firearms, ammunition, and gun permits (collectively, "his weapons") to the Brunswick County Sheriff's Department ("BCSD") in accordance with our General Statutes. See N.C. Gen. Stat. § 50B-3.1(a) (2015) ("Upon issuance of an emergency or ex parte order pursuant to this Chapter, the court shall order the defendant to surrender to the sheriff all firearms, machine guns, ammunition, permits to purchase firearms, and permits to carry concealed firearms that are in the care, custody, possession, ownership, or control of the defendant if the court finds . . . [t]he use or threatened use of a deadly weapon by the defendant or a pattern of prior conduct involving the use or threatened use of violence with a firearm against persons.").
Harvell does not provide any factual background about her relationship with Norris in her brief. The record on appeal indicates that the parties had been in a dating relationship, but did not live together, at the time Harvell sought the DVPO.
On 8 April 2015, Harvell's complaint and motion came on for hearing in the Brunswick County District Court, the Honorable W. Fred Gore, Judge presiding. At the close of the hearing, Judge Gore announced that, although he would enter a one-year DVPO, he was "not making any findings [of fact] as to the firearms used, because I don't have any relevant and immediate fear of any such firearms. Those firearms, at some point in time, based upon whatever [the parties] work out, the [c]ourt will entertain a return of those based upon [Norris] being a realtor and being by himself at different places." On the same date, the court entered a DVPO that was effective for one year ("the DVPO"). See N.C. Gen. Stat. § 50B-3(b) ("Protective orders entered pursuant to this Chapter shall be for a fixed period of time not to exceed one year."). Because the court did not find as fact that Norris used weapons to threaten Harvell, the DVPO itself, unlike the ex parte order, did not require surrender of the weapons under section 50B-3.1(a)(1).
We note that the DVPO does contain a box checked "Caution: Weapon Involved[,]" but we agree with Harvell that this notation was likely a clerical error. In any event, as noted infra, the DVPO has now expired, rendering any clerical error moot.
No party appealed from the DVPO. On 22 April 2015, Norris filed a motion for return of his weapons pursuant to section 50B-3.1(f), which provides that a "defendant may request the return of any firearms, ammunition, or permits surrendered by filing a motion with the court at the expiration of the current order." See N.C. Gen. Stat. § 50B-3.1(f). At a hearing on the motion on 27 May 2015, again before Judge Gore, a representative of the BCSD noted that, "under 18 USC [§] 922(g), . . . a person . . . subject to a domestic violence protective order . . . [is] prohibited from possessing a firearm." Regarding a defendant's motion for return of weapons surrendered to the sheriff as the result of entry of a DVPO, section 50B-3.1 provides that,
Section 50B-2(c)(5) provides that the duration of an ex parte DVPO is limited to 10 days, with one possible continuance for an additional 10 days. See N.C. Gen. Stat. § 50B-2(c)(5). Accordingly, the ex parte order in this matter, which was entered on 16 March 2015, expired no later than 5 April 2015.
The hearing transcript reveals that Norris had apparently filed his own complaint and motion for a DVPO, alleging that Harvell had hit and slapped him. However, other than a brief exchange about that matter in the hearing transcript, no further information about any other DVPO is contained in the record on appeal.
The BCSD representative is referred to in the hearing transcripts as "Mr. Highsmith" but is not otherwise identified.
[u]pon receipt of the motion, the court shall schedule a hearing and provide written notice to the plaintiff who shall have the right to appear and be heard and to the sheriff who has control of the firearms, ammunition, or permits. The court shall determine whether the defendant is subject to any State or federal law or court order that precludes the defendant from owning or possessing a firearm. The inquiry shall include:
(1) Whether the protective order has been renewed.
(2) Whether the defendant is subject to any other protective orders.
(3) Whether the defendant is disqualified from owning or possessing a firearm pursuant to 18 U .S.C. § 922 or any State law.
(4) Whether the defendant has any pending criminal charges, in either State or federal court, committed against the person that is the subject of the current protective order.
N.C. Gen. Stat. § 50B-3.1(f) (emphasis added). In turn, the relevant section of the United States Code prohibits any person subject to a DVPO from possessing firearms. See 18 U.S.C. § 922(g)(8) (2012).
The court shall deny the return of firearms, ammunition, or permits if the court finds that the defendant is precluded from owning or possessing a firearm pursuant to State or federal law or if the defendant has any pending criminal charges, in either State or federal court, committed against the person that is the subject of the current protective order until the final disposition of those charges.
At the hearing, Norris's counsel asked Judge Gore to order the weapons returned to "a family third party . . . ." The BCSD representative then stated:
[T]here was a Supreme Court case that came out yesterday or the day before—a U.S. Supreme Court case—that said that a person subject to a protective order under federal law, although they [sic] don't have the right to possess a weapon, they [sic] still have the right to own a weapon, and they [sic] can make disposition of ownership to a third party . . . .Harvell objected to the return of the weapons to a third party on several grounds, including a lack of notice that the issue would be discussed at the hearing. Judge Gore agreed that Harvell and the BCSD had received insufficient notice and service regarding the third-party motion and ordered a continuance until 3 June 2015. Judge Gore also directed the BCSD to conduct a criminal background evaluation of the prospective third party, Norris's mother.
The case referred to is Henderson v. United States, ___ U.S. ___, 191 L. Ed. 2d 874 (2015), decided by the United States Supreme Court on 18 May 2015 and holding that, where a federal defendant was barred from possessing firearms on the basis of being a convicted felon, a federal court could permit the transfer of firearms to a third party if the court was satisfied that the defendant would not retain control over his firearms.
The matter next came on for hearing before Judge Gore on 4 August 2015. At the start of the hearing, the BCSD representative and Judge Gore briefly discussed Henderson and the fact that the BCSD had no objection to the release of the weapons to Norris's mother if the law so permitted. However, the following exchange then took place:
[NORRIS'S COUNSEL]: Yeah, Judge. But I think I—at this point in time, I said that I don't think it matters. Okay. I think [Norris] has the right to petition [for] the return of the weapons on his own.
THE COURT: Uh-huh (yes).
[NORRIS'S COUNSEL]: And in my brief, I say I disregard any request for third party.
THE COURT: Okay.
[NORRIS'S COUNSEL]: Because the original request was made under his own name. Okay.
THE COURT: Understood.By order entered 20 August 2015, the court ordered the BCSD to release the weapons to Norris's mother. On 18 September 2015, Harvell gave notice of appeal from the release order. Following a subsequent motion by Harvell, on 24 November 2015, the court stayed the release order and ordered that Norris's mother surrender any released weapons back to the BCSD.
[NORRIS'S COUNSEL]: And we talked about that after we talked about that case. But reading the cases, I don't think it's typical. Okay.
THE COURT: Okay.
[NORRIS'S COUNSEL]: I don't think it's required.
THE COURT: All right. Well, . . . at this point, the [c]ourt, in . . . old school terms . . . is going to split the baby. What I do find is that the [United States] Code does apply, quite frankly, simply because we do have an . . . an allegation—and what I—and if you can prepare this order, . . . the firearm is going to be returned—not to your client, but to the client's mother. . . . However, the U.S. Code was very broad-stretching, . . . and in my research . . . I will say that the U.S. Code does apply; however, based upon the ruling in Henderson, I am finding Henderson applicable and, . . . the [c]ourt will make a ruling that it is allowed to be returned to his mother. . . .
Discussion
We do not reach the merits of Harvell's arguments on appeal because we dismiss this appeal as moot. "A case is moot when a determination is sought on a matter which, when rendered, cannot have any practical effect on the existing controversy." Roberts v. Madison Cty. Realtors Ass'n, 344 N.C. 394, 398-99, 474 S.E.2d 783, 787 (1996) (citation and internal quotation marks omitted). "The general rule is that an appeal presenting a question which has become moot will be dismissed." Thomas v. N.C. Dep't. of Human Res., 124 N.C. App. 698, 705, 478 S.E.2d 816, 820 (1996) (citation and internal quotation marks omitted), affirmed, 346 N.C. 268, 485 S.E.2d 295 (1997).
Harvell appeals from the release order which ordered the sheriff to release the surrendered weapons to a third party, Norris's mother; that surrender, in turn, resulted solely from the existence of the DVPO. See N.C. Gen. Stat. § 50B-3.1(a), (f). However, the release order was stayed during the pendency of this appeal, such that the sheriff has continued to maintain possession of the weapons until at least the filing date of this opinion, a date that, by virtue of the calendaring of this appeal, exceeds the duration of the DVPO itself. As noted supra, the DVPO entered 8 April 2015 was in effect for a period of one year as provided by statute. See N.C. Gen. Stat. § 50B-3(b) ("Protective orders entered pursuant to this Chapter shall be for a fixed period of time not to exceed one year."). Nothing in the record before this Court indicates that the DVPO was renewed. Further, the hearing transcripts and filings in the matter make clear that the existence of the DVPO in conjunction with section 922(g) was the only basis under section 50B-3.1(f) for the trial court's refusal to return the weapons to Norris. At the 8 April, 27 May, and 4 August 2015 hearings, Judge Gore either explicitly stated or clearly implied that he was inclined to return Norris's weapons to him, but was prevented from doing so on the basis of the federal prohibition in conjunction with section 50B-3.1(f)(3). More importantly, at the 4 August 2015 hearing, Norris's own trial counsel stated that Norris was no longer seeking the release of the weapons to his mother. Rather, he was asking the court to release the weapons back to Norris himself. The DVPO having expired in April 2016, Norris has been entitled to move for return of his weapons under section 50B-3.1(f) for at least two months, and the trial court's sole reason for denying same and "split[ting] the baby" by ordering the weapons released to Norris's mother has ended.
As noted supra, this statute provides: "The court shall determine whether the defendant is subject to any State or federal law or court order that precludes the defendant from owning or possessing a firearm. The inquiry shall include . . . . [w]hether the defendant is disqualified from owning or possessing a firearm pursuant to 18 U.S.C. § 922 . . . ." See N.C. Gen. Stat. § 50B-3.1(f)(3).
Harvell argues that this appeal is not moot, citing Griffin v. Reicharal, ___ N.C. App. ___, 775 S.E.2d 695 (2015) (unpublished), available at 2015 N.C. App. LEXIS 493, at *11, in which this Court stated:
"An unpublished decision of the North Carolina Court of Appeals does not constitute controlling legal authority. . . ." N.C.R. App. P. 30(e)(3).
The fact that the ex parte DVPO has expired does not render the appeal of the order moot. In Smith v. Smith, 145 N.C. App. 434, 437, 549 S.E.2d 912, 914 (2001) (quoting
Piper v. Layman, 125 Md. App. 745, 753, 726 A.2d 887, 891 (1999)), this Court explained that an expired DVPO is reviewable because of the collateral legal and non-legal consequences of such an order, including the " 'stigma that is likely to attach to a person judicially determined to have committed [domestic] abuse.' " This Court has applied the reasoning of Smith to hold that an appeal of an expired ex parte DVPO is not moot. See Rudder v. Rudder, [234 N.C. App. 173, 177], 759 S.E.2d 321, 325 (2014) (holding appeal of ex parte DVPO not moot).Here, the refusal to release the weapons was not due to the existence of the ex parte order, but rather due to the DVPO. However, in Rudder, this Court also considered the mootness of the defendant's appeal in light of a one-year DVPO that had also expired before the appellate hearing date, reaching the same result. See Rudder, 234 N.C. App. at 177, 759 S.E.2d at 325. Our Courts have reached this result reasoning that, "even when the terms of the judgment below have been fully carried out, if collateral legal consequences of an adverse nature can reasonably be expected to result therefrom, then the issue is not moot and the appeal has continued legal significance." Smith v. Smith, 145 N.C. App. 434, 436-37, 549 S.E.2d 912, 914 (2001) (citation and internal quotation marks omitted; emphasis added) (reviewing the merits of a defendant's appeal after noting the "collateral legal consequences" and "numerous non-legal collateral consequences to entry of a domestic violence protective order [against the defendant] that render expired orders appealable").
However, Harvell cites no opinion, and we have found none, from the appellate courts of this State suggesting that the Rudder "collateral consequences" reasoning would similarly apply to the plaintiff in a DVPO appeal. Moreover, we have discovered no case addressing the merits of an appeal by a plaintiff from entry of an order denying release of firearms surrendered as a result of a DVPO where the DVPO has expired. Simply put, we see no reason why the entry of a DVPO, much less an order denying the return of a defendant's weapons surrendered thereunder, would have any "stigma," collateral legal or non-legal consequences, or other impact on a DVPO plaintiff. Further, in this case, because the trial court stayed the release of the weapons to Norris's mother pending the outcome of this appeal—a stay that has now outlasted the duration of the DVPO itself—we do not see how Harvell's arguments remain relevant or would "have any practical effect on the existing controversy." Roberts, 344 N.C. at 398-99, 474 S.E.2d at 787. Accordingly, this appeal is moot and must be
DISMISSED.
Judges McCULLOUGH and ZACHARY concur.
Report per Rule 30(e).