GRIFFIN v. <<

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Supreme Court of North Carolina.

George A. GRIFFIN and Brenda Griffin, Plaintiffs, v.

Samuel GRIFFIN, Jo Bullock, Charlie Lankford, Dorothy Lankford and Kenneth David Bullock, Defendants, v. Michael GRIFFIN, Donna Griffin, George F. Griffin, and Francis Andrews, Third Party Defendants.

No. 276PA97.

Decided: May 08, 1998

Bailey & Dixon, L.L.P. by Gary S. Parsons and John M. Kirby, Raleigh, for appellant Charles Henderson. Edward P. Hausle, P.A. by Edward P. Hausle, Winterville, for defendant-appellees Jo and Kenneth David Bullock.

 Charles Henderson had been given notice by the Bullocks that they would seek to have sanctions imposed upon him for filing a petition for an adoption.   After the hearing, the court did not impose sanctions for the filing of the adoption petition.   It did, however, on its own motion, impose sanctions for the filing of pleadings for which Mr. Henderson had not received notice that such sanctions would be sought.   We agree with Mr. Henderson that this was error.

 “Notice and an opportunity to be heard prior to depriving a person of his property are essential elements of due process of law which is guaranteed by the Fourteenth Amendment of the United States Constitution.”  McDonald's Corp. v. Dwyer, 338 N.C. 445, 448, 450 S.E.2d 888, 891 (1994).   The Court of Appeals held that Mr. Henderson received adequate notice of the sanctions to be imposed against him.   This is so, said the Court of Appeals, because (1) Mr. Henderson had full notice that he was under consideration for Rule 11 sanctions, (2) the district court issued a detailed order reciting findings of fact informing him why the sanctions had been imposed, and (3) Mr. Henderson fully participated in the hearing at which sanctions were imposed.

We do not agree with the Court of Appeals.   It is not adequate for the notice to say only that sanctions are proposed.   The bases for the sanctions must be alleged.  Taylor v. Taylor Prods. Inc., 105 N.C.App. 620, 629, 414 S.E.2d 568, 575 (1992), overruled on other grounds by Brooks v. Giesey, 334 N.C. 303, 317, 432 S.E.2d 339, 347 (1993).   In this case, the notice actually misled Mr. Henderson as to what sanctions would be imposed.   Mr. Henderson was notified that sanctions were proposed for filing the adoption proceeding, but sanctions were imposed for something else.   The fact that the court made detailed findings of fact in the order for sanctions is not adequate.   In order to pass constitutional muster, the person against whom sanctions are to be imposed must be advised in advance of the charges against him.   The fact that Mr. Henderson participated in the hearing and did the best he could do without knowing in advance the sanctions which might be imposed does not show a proper notice was given.

For the reasons stated in this opinion, we reverse the Court of Appeals and remand for further remand to the District Court, Johnston County, to vacate the order imposing sanctions on Mr. Henderson.

REVERSED AND REMANDED.

WEBB, Justice.