By Nate Drum

From the very first day of law school, students are taught that every legal action can be placed into one of two distinct categories: civil cases and criminal cases.  This distinction implicates everything from the substantive rights of the parties, to the rules of procedure, to which courts have jurisdiction to hear the case.[1]  However, despite these fundamental differences, the distinction between civil and criminal is not always as clear as it first appears.  While this is apparent in a number of different areas of the law, none is clearer than North Carolina’s complex and often contradictory case law governing contempt of court proceedings.[2]

A recent case heard by the North Carolina Court of Appeals, Grier v. Grier,[3] highlights such a case where the law surrounding contempt proceedings continued to blur the line between civil and criminal law.  The issue presented was whether a party in a family law dispute (a civil proceeding) prosecuting a claim of criminal contempt of court (a criminal proceeding) could recover attorneys fees (civil penalty) as a sanction.[4]  In other words: does the overarching essence of the case determine what remedies and penalties are available or does the specific substance of the proceeding control?  For the time being, we are left without an answer.[5]

To understand this “nesting doll” dilemma, in which a party in a civil action initiates a criminal proceeding and seeks a civil remedy,[6] this article will provide a brief overview of the North Carolina rule governing the award of attorneys fees as a civil penalty, North Carolina laws governing criminal contempt proceedings, and a discussion about how these issues came together in Grier.[7]

Attorneys Fees Generally: A Civil Penalty

North Carolina follows the traditional “American Rule” regarding the award of attorneys fees,[8] holding that “a party can recover attorney[s] fees only if such a recovery is expressly authorized by statute.”[9]  Such statutory authorization has typically been narrowly crafted to only apply in certain types of cases.[10]  For example, N.C. Gen. Stat. § 50-13.6 authorizes the award of attorneys fees “[i]n an action or proceeding for the custody or support, or both, of a minor child . . . to an interested party acting in good faith who has insufficient means to defray the expense of the suit.”[11]  While the overwhelming majority of statutes authorizing the award of attorneys fees in North Carolina are only applicable in the civil context,[12] there are circumstances in which a criminal defendant may be ordered to pay the costs of attorneys fees.[13]  For example, N.C. Gen. Stat. § 7A-455 authorizes the court to order a criminal defendant to pay the reasonable attorneys fees incurred by appointed counsel.[14]

Yet, even when awarded in the context of defense of a criminal proceeding, the award of attorneys fees is quintessentially a civil remedy.[15]  Rather than a criminal “punishment,” attorneys fees have typically been viewed by North Carolina courts as a civil penalty as most court-appointed attorneys fees are entered against criminal defendants in the form of a civil judgment.[16]

Criminal Contempt Proceedings Generally: A Criminal Proceeding

Black’s Law Dictionary defines contempt of court as follows: “The act of demeaning the court, preventig [sic] justice adminstration [sic], or disobeying a sentence of the court.   It is [generally] criminal [in nature] and can lead to fines or imprisonment.”[17]  However, North Carolina law surrounding contempt of court is somewhat more complicated than such a simple definition would lead one to believe.[18]  For example, in North Carolina, contempt of court can be either civil in nature or criminal in nature.[19]  What more, the overarching nature of the original action does not dictate the nature of the contempt proceeding.[20]  For example, a criminal defendant can be held in civil contempt of court,[21] just as a civil defendant can be held in criminal contempt of court.[22]  Further, a contemptnor defendant can be held in both criminal and civil contempt in the same proceeding, so long as each finding of contempt is based on separate and discrete conduct.[23]

However, determining whether a contempt proceeding is civil or criminal is of utmost importance for litigants because the nature of the proceeding will define the parties’ procedural and substantive rights (including what penalties can be imposed), the burden of proof required, and the right of appellate review.[24]  Though, as North Carolina courts have repeatedly recognized, “the demarcation between [civil and criminal contempt] may be hazy at best.”[25]  Therefore, North Carolina courts look to the purpose for which the proceeding was initiated, while considering the nature of the conduct being punished.[26]  Generally, “[c]riminal contempt is imposed in order to preserve the court’s authority and to punish disobedience of its orders.”[27]  Further, criminal contempt “is generally applied where the judgment is in punishment of an act already accomplished.”[28]

Upon a finding of criminal contempt, like all criminal statutes, the available penalties a trial court may impose are codified.[29]  Generally, a criminal contemptnor can be punished via a judicial censure, a fine, and/or imprisonment for up to thirty days.[30]  As noted in the statutory framework of the North Carolina general statutes, the provisions pertaining to criminal contempt were meant to preempt existing common law by providing a uniform and exclusive statutory scheme governing such proceedings.[31]     

Criminal Contempt in the Family Law Context: A Civil Action

The interaction of North Carolina law governing attorneys fees and contempt of court collided in Grier v. Grier.[32]  In this case, the contemptnor defendant, Mrs. Grier, was held in criminal contempt of court for violating the court’s child custody order.[33]  As a result of the finding, the prosecuting party, Mr. Grier, sought an award of attorneys fees from Mrs. Grier under N.C. Gen. Stat. § 50-13.6.[34]  Mrs. Grier challenged the award of attorneys fees as an improper remedy under the exclusive criminal contempt remedies enumerated at  N.C. Gen. Stat. § 5A-12.[35]  Ultimately, the question asked to the court was whether a party in a family law dispute (a civil proceeding) prosecuting a claim of criminal contempt of court (a criminal proceeding) could recover attorneys fees (civil penalty) as a sanction.

If the answer would be yes, how would that implicate the rule of lenity, holding that statutory ambiguity should be resolved in favor of the defendant?  Would that mean that the remedies provided in N.C. Gen. Stat. § 5A-12 are not exclusive, despite language to the contrary?

If the answer is no, would that create a bright line rule that the substance of a proceeding overwrites the overarching essence of the case?  Would that mean that the award of attorneys fees under N.C. Gen. Stat. § 50-13.6 would be limited only to those proceedings substantively connected to the custody proceeding and while excluding related disputes arising through the course of the litigation?  Would it create perverse incentives for litigants to force their opposing party to permit a violation of court orders or to engage in the costly prosecution of criminal contempt proceedings without a monetary remedy?

Unfortunately, the court declined to answer.[36]  While recognizing the challenging internal conflict within the laws, the court concluded that Mr. Grier did not meet the statutory requirements of N.C. Gen. Stat. § 50-13.6 which required that he have “insufficient means to defray the expense of the suit.”[37]  Notably, the North Carolina Supreme Court has previously disposed of a similar case in which this exact question was raised on procedural grounds.[38]  So, until a case arises which cannot be disposed of on unrelated grounds, the question of whether a party in a civil case, prosecuting a criminal contempt charge, can recover a civil remedy of attorneys fees remains open ended.

[1] Lawsuits, North Carolina Judicial Branch, (explaining the difference between civil and criminal cases).

[2] See Spencer L. Blaylock Jr., Contempt of Court — Civil or Criminal, 36 N.C. L. Rev. 221, 223 (1956) (observing that “much confusion” has arisen regarding North Carolina’s contempt of court statutory framework and that it has been consistently “applied by the lower courts and attorneys” in improper ways).

[3] Grier v. Grier, No. COA 22-37, 2022 N.C. App. LEXIS 832 (N.C. Ct. App. Dec. 6, 2022).

[4] Id. at *P12.

[5] Id. at *P13 (concluding that the court “need not decide” whether the attorneys fee award was statutorily permissible).

[6] Id. at *P10 (noting that an order “directing a party to pay attorney[s] fees in the context of a criminal proceeding is itself civil in nature”).

[7] Id.

[8] Ehrenhaus v. Baker, 776 S.E.2d 699, 704 (N.C. Ct. App. 2015).

[9] Wadsworth v. Wadsworth, 868 S.E.2d 636, 644 (N.C. Ct. App. 2021).

[10] Sullivan v. Woody, 882 S.E.2d 707, 211 (N.C. Ct. App. 2022) (noting that fee shifting statutes should be narrowly construed).

[11] N.C. Gen. Stat. § 50-13.6 (2023).

[12] See Jim Gale, Awarding Attorneys’ Fees in North Carolina, UNC School of Government (2018 Superior Court Judges’ Summer Conference) (last visited Mar. 18, 2024), (listing all North Carolina statutes authorizing the award of attorneys fees).

[13] John Rubin, Are Attorney Fees’ Permissible?, UNC School of Government,

[14] N.C. Gen. Stat. § 7A-455(a) (2023).

[15] See Rubin, supra note 13.

[16] State v. Webb, 591 S.E.2d 505, 513 (N.C. 2004); see also State v. Jacobs, 648 S.E.2d 841, 842 (N.C. 2007) (noting that an order for attorneys fees, even in a criminal case, is a civil penalty).

[17] Contempt of Court, Black’s Law Dictionary(2d ed. 1910) (last visited Mar. 18, 2024),

[18] See, e.g., State v. Wendorf, 852 S.E.2d 898, 902 (N.C. Ct. App. 2020) (noting that in addition to the differences between civil contempt and criminal contempt, North Carolina recognizes a difference between “direct” and “indirect” contempt).

[19] Bishop v. Bishop, 369 S.E.2d 106, 108 (N.C. Ct. App. 1988).

[20] See Id. (noting that the same conduct may be criminal contempt, civil contempt, or both, and that the nature and purpose of the court’s “punishment” will be determinative, rather than nature of the overarching case).

[21] NC Prosecutors’ Resource Online, UNC School of Government (last visited Mar. 18, 2024),,to%20comply%20with%20that%20order.

[22] Michael Crowell, North Carolina Superior Court Judges’ Benchbook, UNC School of Government (last visited Mar. 18, 2024), (noting that a party to a civil case, an attorney in a civil case, or even a witness in a civil case can be held in criminal contempt of court).

[23] See, e.g., Adams Creek Assocs. V. Davis, 652 S.E.2d 677, 687 (N.C. Ct. App. 2007) (holding a defendant in civil contempt for violating a court order and then separately held in criminal contempt for threatening a witness); see also N.C. Gen. Stat. §§ 5A-21(c), 5A-23(g) (2023) (prohibiting a defendant from being held in both criminal and civil contempt for the same conduct).

[24] See Hartsell v. Hartsell, 393 S.E.2d 570, 575 (N.C. Ct. App. 1990) (noting that civil contempt proceedings do not afford defendants the same procedural and substantive protections as criminal contempt proceedings); see also O’Briant v. O’Briant, 329 S.E.2d 370, 372 (N.C. 1985) (noting that criminal contempt proceedings trigger Constitutional safeguards applicable to all criminal proceedings).

[25] State v. Revels, 793 S.E.2d 744, 747 (N.C. Ct. App. 2016).

[26] O’Briant, 329 S.E.2d at 372.

[27] Id.

[28] Revels, 793 S.E.2d at 747.

[29] N.C. Gen. Stat. § 5A-12 (2023).

[30] Id.

[31] See, e.g., N.C. Gen. Stat. § 5A-11(a) (2023) (providing that the statutorily enumerated grounds for criminal contempt “are exclusive, regardless of any other grounds for criminal contempt which existed at common law”).

[32] Grier v. Grier, No. COA 22-37, 2022 N.C. App. LEXIS 832 (N.C. Ct. App. Dec. 6, 2022).

[33] Id. at *P4–P5.

[34] Id. at *P6.

[35] Id. at *P12.

[36] Id. at *P13.

[37] Id.

[38] Reynolds v. Reynolds, 569 S.E.2d 645, 646 (N.C. 2002).

By: Meghan Falk

In sharp contrast to Jerry Seinfeld’s fictional trip to the courthouse, where he ended up in prison for “criminal indifference” in the series finale of Seinfeld, a judge ruled on February 26, 2021 that Seinfeld be reimbursed for legal fees after arguing against an “opportunistic” copyright lawsuit.[1] 

In early 2018, Seinfeld’s one-time collaborator, Christian Charles, brought a lawsuit against Seinfeld asserting he owned copyrights in Comedians in Cars Getting Coffee.[2]  The show featured Seinfeld interviewing guests while driving in vintage cars, and it moved to Netflix in 2017.[3]  The original dispute boiled down to a statute of limitations issue. 

In a light most favorable to Charles, he had “produced a treatment for Comedians in Cars Getting Coffee and worked with Seinfeld to shoot the pilot.”[4]  Seinfeld insisted that Charles’s involvement was “limited to a work-for-hire directing role” and he “repeatedly rejected Charles’s requests for backend compensation” although he paid Charles’s production company over $100,000 for the pilot.[5]  Seinfeld ultimately produced and distributed the show without crediting Charles, and the pilot premiered in 2012.[6] 

The Copyright Act imposes a three-year statute of limitations period.[7]  Since this claim turned on who owned the copyright, the “clock beg[an] to run when the claimant receive[d] notice that someone else claim[ed] sole authorship or ownership of the disputed work.”[8]  The Court held that Charles had notice as early as 2011, when Seinfeld refused to send backend compensation, and as late as 2012, when the pilot aired without crediting Charles.[9]  Therefore, the statute of limitations expired in 2015––at the latest.  In 2017, Netflix and Seinfeld reached a $100 million distribution deal.[10]  After the news of this deal became public late in 2017, Charles contacted Seinfeld and demanded mediation; Charles ultimately sued for copyright infringement in February 2018.[11] 

The district court held that Charles’s claim was time-barred as it was outside of the statute of limitations.[12]  The Second Circuit affirmed.[13]  Charles further appealed to the Supreme Court and certiorari was denied.[14]  The magistrate judge recommended that Seinfeld should not receive any monetary awards in the form of attorney’s fees, which Seinfeld then challenged. [15]  Seinfeld’s reimbursement of attorney’s fees was the issue presented in this most recent decision.[16]

Under Section 505 of the Copyright Act, a court may require the losing party to pay attorney’s fees of the prevailing party in a copyright action.[17]  This awarding of fees, however, is not automatic and is a discretionary matter for the court.[18]  The ultimate awarding of fees hinges on “the objective reasonableness of the losing party’s position,” as courts are more willing to “award fees against a party whose arguments lack a factual or legal basis.”[19]  Charles argued that his suit was not objectively unreasonable because of a recent Sixth Circuit decision, Everly v. Everly.[20]  The Everly court utilized a different timeline for determining when a copyright claim for an author’s termination-of-transfers rights had accrued, holding that the claim does not accrue until another party repudiates the claimant’s status as author.[21]  The Everly court was clear to state its holding only applied to “an authorship claim without a corresponding ownership claim.”[22]

Charles attempted to frame his claim as one about authorship rather than ownership, to make the argument that it was not time-barred.[23]  But, to sue for copyright infringement, an individual must own the copyright, and therefore authorship would only work as a path to ownership.[24]  In rejecting Charles’s claim, the court pointed to two parts of the Everly decision that would make it inapplicable here: (1) the Sixth Circuit relied on Second Circuit precedent “that would bar Charles’s claims”[25]; and (2) “[c]ases involving the termination-of-transfers right . . . are different from ‘ownership cases in which a defendant has raised a statute of limitations defense based on the defendant’s repudiation of the plaintiff’s authorship.’”[26] 

The court ultimately held that Charles’s claim was not “objectively reasonable,”[27] and stated that it was “quite confident that Charles’s case would have met the same end in the Sixth Circuit.”[28]  The court furthered that Charles’s claim was merely “opportunistic.”[29]  It reasoned that Charles “received a substantial payment for his work on the show’s pilot and brought suit only years later once Seinfeld had signed a lucrative distribution deal with Netflix.”  The court backed up its award of damages, arguing that “[s]ubstantial deterrence” serves to counterbalance “the prospect of a huge payday [which] may entice litigants to pursue claims with little or no merit.”[30]  The court deferred consideration of the amount of fees “pending further briefing.”[31]

While Seinfeld’s legal team was happy with the result, Charles’s attorney “told Law360 that his client believe[d] this ruling [was] the ‘worst possible decision for a copyright owner’ and that it would ‘engender further mistrust of the legal system.’”[32]  However, Charles was not the owner of the copyright and the decision will arguably benefit copyright owners who rightfully defend their rights to that copyright protection.  It protects them from having to spend a lot of their own money fending off claims that merely seek to take advantage of the success of the copyright owner. 

There has been evidence that opportunistic IP litigation is a problem that has been growing.[33]  They’ve grown as a result of intellectual property becoming more valuable and higher numbers of copyrights and other forms of intellectual property.[34]  These lawsuits “impose direct and indirect costs on defendants and society.”[35] 

Ultimately, the decision appears to be one that should serve as deterrence to others who seek to bring such “opportunistic” claims.  Typically, defendants have settled such opportunistic claims because of fear of the high costs of litigation,[36] however, this decision may incentivize them to defend at the cost of the opportunistic plaintiff.  It’s not reasonable to bring a copyright claim more than two years after the statute of limitations has run, especially if it’s right after a $100 million pay-day for the copyright owner.  In awarding fees, the court hoped to deter others from bringing cases with nothing objectively reasonable backing them up factually or legally.

[1] Charles v. Seinfeld, No. 18-cv-1196, 2021 U.S. Dist. LEXIS 36461, at *12–13 (S.D.N.Y. Feb. 26, 2021).

[2] Id. at *1.

[3] Bill Donahue, Seinfeld Wins Legal Fees After Beating ‘Comedians’ Case, Law360 (Feb. 26, 2021, 1:17 PM),

[4] Seinfeld, 2021 U.S. Dist. LEXIS 36461, at *2.

[5] Id.

[6] Id.

[7] 17 U.S.C. § 507(b).

[8] Seinfeld, 2021 U.S. Dist. LEXIS 36461, at *12–13.

[9] Id. at *4.

[10] Id. at *2.

[11] Id. at *2–3.

[12] Id. at *4; Charles v. Seinfeld, 410 F. Supp. 3d 656, 661 (S.D.N.Y. 2019).

[13] Seinfeld, 2021 U.S. Dist. LEXIS 36461, at *4; Charles v. Seinfeld, 803 F. App’x 550, 552 (2d Cir. 2020).

[14] Seinfeld, 2021 U.S. Dist. LEXIS 36461, at *5; Charles v. Seinfeld, No. 20-661, 2020 WL 7327869, at *1 (U.S. Dec. 14, 2020)

[15] Seinfeld, 2021 U.S. Dist. LEXIS 36461, at *5.

[16] Id.

[17] 17 U.S.C. § 505.

[18] Seinfeld, 2021 U.S. Dist. LEXIS 36461, at *5.

[19] Id.

[20] 958 F.3d 442 (6th Cir. 2020).                                                                                                                

[21] Seinfeld, 2021 U.S. Dist. LEXIS 36461, at *7–8, 10; Everly, 958 F.3d at 452–53.  In this claim, the author must be put on notice specifically that their claim of authorship is disputed for the clock to begin to run on the statute of limitations. 

[22] Everly, 958 F.3d at 453.

[23] Seinfeld, 2021 U.S. Dist. LEXIS 36461, at *9.

[24] Id.  The court used the correct rule for a copyright infringement claim centering on ownership, which requires that the clock start running for the statute of limitations when the person is put on notice that someone else claims to own the copyright. Id. at *10.

[25] Id. at *11.

[26] Id.

[27] Id. at *6.

[28] Id. at *11.

[29] Id. at *12.

[30] Id.

[31] Id. at *13.

[32] Donahue, supra note 3.

[33] Michael J. Meurer, Controlling Opportunistic and Anti-Competitive Intellectual Property Litigation, 44 B.C. L. Rev. 509, 516 (2003).

[34] Id. at 519.

[35] See id. (referencing the costs of settlement payments, direct legal costs, and indirect costs to defendants seeking to minimize their exposure to such suits).

[36] Id. at 516.

By Nicholas Pappayliou and Samuel Gilleran

Early last week, the Fourth Circuit Court of Appeals held that victorious plaintiff voters were entitled to reasonable attorney’s fees and costs from the opposing party, the Guilford County Board of Elections, despite the fact that the Board merely enforced but did not craft the legislation giving rise to the dispute.[1]

Facts and Procedural History

This case began when eight voting-age Greensboro citizens and the City of Greensboro challenged the constitutional validity of a law passed by the North Carolina General Assembly that redistricted Greensboro’s city council.[2] The Plaintiffs chose to name the Guilford County Board of Elections as defendant in their lawsuit, notably leaving out potentially liable parties such as the North Carolina General Assembly and State Board of Elections, among others.[3]

After a short bench trial, the district court determined that the law was unconstitutional under the Equal Protection Clause and issued a permanent injunction preventing the Board from implementing the legislation.[4] Thereafter, the Greensboro citizens filed a motion for attorney’s fees and costs from the Board.[5] Typically, “prevailing parties” in redistricting cases should “ordinarily recover” their fees.[6] But in cases with “special circumstances,” the district court has discretion to deny the motion for fees.[7]

In this case, the district court denied the motion because it found that (1) the Board was “innocent” and “not responsible,” i.e., the General Assembly was responsible for enacting the statute and the Board was simply the local functionary of the legislature, and (2) the voters chose to sue only the Board and not the more culpable parties.[8] The court believed that assessing fees would incentivize plaintiffs to sue local governments or parties who would not defend the suit instead of suing the officials who were more responsible and more likely to vigorously defend the suit.[9] The voters appealed the district court’s determination of “special circumstances” to the Fourth Circuit.[10] Consequently, the issue before the Fourth Circuit was: whether the district court ventured outside of its “narrow”[11] discretion in denying the voters’ motion for attorney’s fees because of the purported “special circumstances”[12] surrounding the Board’s role in implementing the unconstitutional North Carolina statute.

Parties’ Arguments

The voters argued that the court in this case abused its discretion in denying the fees by construing the “special circumstances” exception too broadly.[13] The voters argued that the district court’s findings did not rise to the level of special circumstances, noting that the point of fee-shifting provisions is to compensate attorneys who prosecute redistricting cases, not to penalize the defendant.[14]

The Board disagreed, arguing that because it opted not to fight the lawsuit, it should not be responsible for fees.[15] It also argued that it would be unjust for Guilford County as a county to incur the costs that were caused by the state’s enactment of an unconstitutional law.[16]

The Circuit’s Majority Opinion and Dissent

The Fourth Circuit panel ruled in favor of the voters. The majority opinion, authored by Judge Niemeyer, noted that the fee-shifting statutes at issue were enacted to incentivize attorneys to take redistricting cases: “[t]he purpose of fee shifting is not to punish those responsible for promulgating unconstitutional laws, but rather to ‘enable potential plaintiffs to obtain the assistance of competent counsel in vindicating their rights.’”[17] So it was irrelevant that the Board had nothing to do with enacting the unconstitutional law; because the “Board was charged with enforcing the Act and [the voters] obtained full relief” in their suit against the Board, it was a “run-of-the-mill occurrence[]” that fees would be awarded against the Board.[18]

And because it was normal for fee awards to be awarded against those who merely enforce the law, the Board’s argument that it facilitated the lawsuit by not defending it was also unmeritorious. The “Board’s conduct during litigation may have limited its fee liability, [but] it did not immunize the Board from fee liability.”[19] Finally, the circuit court held that it would not be unjust to assess fees against the county for the state’s actions.[20] The burden that it would impose on the county to pay fees in this case is not the voters’ problem or the court’s problem; rather, the “Board’s concerns are ultimately about how North Carolina has chosen” which departments of government enforce election laws.[21]

Judge Richardson dissented. In his view, the district court did have discretion to deny fees when the plaintiffs engaged in “strategic”[22] “litigation conduct”[23] that resulted in a “local government entity with no meaningful responsibility for [the law] and whose budget is far smaller than the state’s” being assessed fees.[24] Judge Richardson would have held that the district court did not abuse its discretion in finding that these were “peculiar circumstances” justifying a denial of fees.[25]

[1] Brandon v. Guilford Cty. Bd. of Elections, ___ F.3d ___, No. 18-1123, 2019 WL 1590903, at *1 (4th Cir. Apr. 15, 2019),

[2] Id.

[3] Id.

[4] Id. at *2.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id. at *3 (citing N.Y. Gaslight Club, Inc. v. Carey, 447 U.S. 54, 68 (1980)).

[12] Id. (describing how the Fourth Circuit has swiftly corrected denials of motions attorney’s fees in the past).

[13] Id.

[14] Id.

[15] Id. at *4.

[16] Id.

[17] Id. (quoting Kay v. Ehrler, 499 U.S. 432, 436 (1991).

[18] Id.

[19] Id.

[20] Id. at *5.

[21] Id.

[22] Id. at *7.

[23] Id. at *8.

[24] Id.

[25] Id. (quoting ruling below).