A decision without a published opinion is authority only in the case in which such decision is rendered and should not be cited in any other case in any court for any other purpose, nor should any court consider any such decision for any purpose except in the case in which such decision is rendered. See Rule of Appellate Procedure 30 (e)(3).

NO. COA01-1294

NORTH CAROLINA COURT OF APPEALS

Filed: 6 August 2002

ARNOLD NORRIS,
    Plaintiff-Appellant,

v .                         Duplin County
                            No. 98 CVS 000169
JAMES T. ALEXANDER,
    Defendant-Appellee.

    Appeal by plaintiff from judgment entered 31 July 2001 by Judge Jerry Braswell in Superior Court, Duplin County. Heard in the Court of Appeals 12 June 2002.

    Bruce H. Robinson, Jr. for plaintiff-appellant.

    Fredric C. Hall for defendant-appellee.

    McGEE, Judge.

    Arnold Norris (plaintiff) filed a complaint against James T. Alexander (defendant) alleging alienation of affections and criminal conversation.     
    Evidence for plaintiff at trial before a jury tended to show the following. Defendant testified that he had been married to Jerri Alexander (Mrs. Alexander) for forty-four years. Defendant first met plaintiff's wife, Reba Wood (Ms. Wood), in November 1962. At that time both defendant and Ms. Wood worked at a J.P. Stevens textile plant and they became good friends. Ms. Wood separated from plaintiff on 10 September 1996 and moved into a trailer. Defendant testified that he visited Ms. Wood's trailer three times, including once in late September or early October 1996 for aboutfifteen to twenty minutes "just to see that she was settled in and was all right." Defendant stated that he remembered Ms. Wood's daughter also being there on that occasion. Defendant visited Ms. Wood another time just prior to Thanksgiving 1996. On that occasion, defendant testified that Ms. Wood "was making some mints for a wedding and I sat there and drank some coffee and she made the mints; stayed a while, we chatted and I left." Defendant again visited Ms. Wood on 31 December 1996. Defendant testified that he never hugged or kissed Ms. Wood and never had sexual intercourse with her.
    Mrs. Alexander, defendant's wife, testified that on the evening of 31 December 1996 she was looking for her husband and called plaintiff to see where Ms. Wood was because she "had [a] little inkling that something -- that [defendant and Ms. Wood] might be together." Mrs. Alexander and plaintiff went to Ms. Wood's trailer where they saw defendant's truck parked. Plaintiff went to the trailer and "busted the door down." Mrs. Alexander followed plaintiff into the trailer where she saw Ms. Wood coming towards the door. Mrs. Alexander testified that Ms. Wood and defendant were fully clothed and defendant was sitting on the middle of the couch. She denied that she and plaintiff found defendant and Ms. Wood in a compromising position. Mrs. Alexander testified that plaintiff grabbed defendant and started shaking and choking him. Thereafter, Mrs. Alexander and plaintiff left.
    Mrs. Alexander testified that about a year earlier, she discovered that defendant had been calling Ms. Wood. Mrs.Alexander stated that she overheard some of the conversations between defendant and Ms. Wood, and during one conversation she particularly remembered, Ms. Wood and defendant had talked about their flowers. Defendant and Mrs. Alexander lived in Wallace and owned a lake house at White Lake.
    Plaintiff testified that he and Ms. Wood were married on 19 May 1990 and separated for the third time on 10 September 1996, when Ms. Wood left him. They were later divorced. Plaintiff further testified that on the night of 31 December 1996 he went into Ms. Wood's trailer and saw defendant "laying on the couch, on his back, [Ms. Wood] between his legs, on top of him and [Ms. Wood] came off that couch and met me middle-way the floor[.]" Plaintiff stated that both Ms. Wood and defendant had their clothes on and that he did not see them hugging or kissing. Plaintiff testified that after some "heated words" he and Mrs. Alexander left. Plaintiff testified that telephone records from defendant's residence at White Lake showed that 443 long distance telephone calls were made from the White Lake residence over a two and one- half year period.
    At the close of plaintiff's evidence, defendant moved for a directed verdict, which the trial court granted in a judgment entered 31 July 2001. Plaintiff appeals from this judgment.
    Defendant argues that plaintiff failed to include in his brief to our Court a statement of the question presented for our review, in violation of N.C.R. App. P. 28(b)(2). We agree; however, we elect to exercise our discretion pursuant to N.C.R. App. P. 2 andaddress the merits of plaintiff's appeal.
    Plaintiff argues that the trial court erred in granting a directed verdict for defendant because there was sufficient evidence for plaintiff's claims to be submitted to the jury. "On a defendant's motion for directed verdict, the trial court must determine whether the evidence, when considered in the light most favorable to the plaintiff, is sufficient to take the case to the jury." Ward v. Beaton, 141 N.C. App. 44, 47, 539 S.E.2d 30, 33 (2000), cert. denied, 353 N.C. 398, 547 S.E.2d 431 (2001) (citing N.C.R. Civ. P. 50(a); Hutelmyer v. Cox, 133 N.C. App. 364, 369, 514 S.E.2d 554, 558 (1999), appeal dismissed, 351 N.C. 356, 542 S.E.2d 211 (2000)). "Where the trial court finds there is more than a scintilla of evidence supporting each element of the plaintiff's claim, the motion for directed verdict should be denied." Id. (citing Norman Owen Trucking v. Morkoski, 131 N.C. App. 168, 172, 506 S.E.2d 267, 270 (1998)).
    Although causes of action for alienation of affections and criminal conversation are controversial, our Supreme Court has stated that causes of actions for both torts still exist in North Carolina. See Cannon v. Miller, 313 N.C. 324, 327 S.E.2d 888 (1985). "Only our General Assembly and Supreme Court have the authority to abrogate or modify a common law tort." Johnson v. Pearce, 148 N.C. App. 199, 202, 557 S.E.2d 189, 191 (2001) (citations omitted).

A. Alienation of Affections

    To establish a cause of action for alienation of affections,plaintiff is required to produce evidence of three elements: "(1) that there was a marriage with love and affection existing between the husband and wife; (2) that love and affection was alienated; and (3) the malicious acts of the defendant produced the loss of that love and affection." Pharr v. Beck, 147 N.C. App. 268, 271, 554 S.E.2d 851, 854 (2001) (footnote omitted) (citing Gray v. Hoover, 94 N.C. App. 724, 727, 381 S.E.2d 472, 473, disc. review denied, 325 N.C. 545, 385 S.E.2d 498 (1989)). The malicious acts, in the context of an alienation of affections claim, refer to acts constituting "'"unjustifiable conduct causing the injury complained of."'" Heist v. Heist, 46 N.C. App. 521, 523, 265 S.E.2d 434, 436 (1980) (citations omitted). "[A]n alienation of affection claim must be based on pre-separation conduct, and post-separation conduct is admissible only to the extent it corroborates pre- separation activities resulting in the alienation of affection." Pharr, 147 N.C. App. at 273, 554 S.E.2d at 855 (footnote omitted).
    Plaintiff argues he met his burden of proof as to all three elements of the cause of action. Defendant concedes in his brief that plaintiff met his burden of proof regarding the first two elements of the cause of action; however, defendant argues that there was no evidence presented at trial tending to show any malicious acts of defendant which produced the alienation of affections. Plaintiff argues, however, that the evidence of 443 long distance telephone calls made from defendant's White Lake residence over a two and one-half year period, coupled with evidence that plaintiff found defendant and Ms. Wood together afterplaintiff and Ms. Wood separated, is sufficient evidence that defendant intended to break up the marriage of plaintiff and Ms. Wood.
    We disagree that the telephone calls, the only evidence in the record regarding pre-separation conduct by defendant, evince wrongful and malicious acts by defendant. There is no evidence in the record indicating in which two and one-half year period the telephone calls were made, nor does the record show to what telephone number or numbers these telephone calls were made. The only evidence as to the nature of one telephone call between defendant and Ms. Wood was testified to by Mrs. Alexander, who said that defendant and Mrs. Wood were discussing their flowers. This hardly rises to the level of "intonation of improper conduct by defendant" as required in Coachman v. Gould, 122 N.C. App. 443, 448, 470 S.E.2d 560, 564 (1996), nor does it "rise to the level of malicious conduct by defendant, designed to alienate the affections of" Ms. Wood. Id.
    The trial court did not err in granting a directed verdict for defendant on plaintiff's alienation of affections claim because plaintiff failed to produce evidence to establish the third element of the cause of action.
B. Criminal Conversation

    "Criminal conversation is adultery." Scott v. Kiker, 59 N.C. App. 458, 461, 297 S.E.2d 142, 145 (1982). The elements of the tort are (1) actual marriage between the spouses and (2) sexual intercourse between defendant and the plaintiff's spouse during themarriage. Johnson, 148 N.C. App. at 200-01, 557 S.E.2d at 190. A claim for criminal conversation can be based upon post-separation conduct. Id. at 201, 557 S.E.2d at 191.
    In the case before us, plaintiff argues that although he did not produce direct evidence of sexual intercourse between defendant and Ms. Wood, "there is sufficient circumstantial evidence for a reasonable person to conclude that the parties, during the period of time that they engaged in frequent communication, and then, being found together in the same trailer at night, certainly provides a circumstantial evidentiary foundation for criminal conversation." Defendant contends that plaintiff failed to produce any evidence that defendant and Ms. Wood engaged in sexual intercourse.
    Adultery is rarely proven by direct evidence. In Re Estate of Trogdon, 330 N.C. 143, 148, 409 S.E.2d 897, 900 (1991). When attempting to prove adultery by circumstantial evidence
        resort to the opportunity and inclination doctrine is usually made. Under this doctrine, adultery is presumed if the following can be shown: (1) the adulterous disposition, or inclination, of the parties; and (2) the opportunity created to satisfy their mutual adulterous inclinations.

Id. "Thus, if a plaintiff can show opportunity and inclination, it follows that such evidence will tend to support a conclusion that more than 'mere conjecture' exists to prove sexual intercourse by the parties." Coachman, 122 N.C. App. at 447, 470 S.E.2d at 563.
    In this case, the circumstantial evidence plaintiff argues proves adultery amounts only to mere suspicion and conjecture. Therecord reveals no evidence tending to show that either defendant or Ms. Wood had adulterous inclinations. Defendant and Ms. Wood had been good friends since 1962, well before Ms. Wood married plaintiff. Defendant testified that he visited Ms. Wood on three occasions following her separation from plaintiff. No evidence from defendant's first two visits remotely indicates that he and Ms. Wood engaged in sexual intercourse. In fact, the evidence shows only that on the first visit defendant stayed for fifteen to twenty minutes and that Ms. Wood's daughter was also present, and on the second occasion, Ms. Wood made mints while defendant drank coffee and they visited.
    Even considering the evidence regarding defendant's third visit on 31 December 1996 in a light most favorable to plaintiff, plaintiff's testimony that he found defendant and Ms. Wood in a compromising position amounts to no more than evidence they were touching. This evidence does not support a conclusion that defendant and Ms. Wood were engaging in, or had engaged in, sexual intercourse; in fact, plaintiff also testified that defendant and Ms. Wood were fully clothed and were not kissing or hugging when plaintiff unexpectedly entered the trailer. Both defendant and Mrs. Alexander denied that defendant and Ms. Wood were in a compromising position. Defendant refuted on the record that he and Ms. Wood had engaged in adultery. He denied they had ever hugged, kissed or had sexual intercourse. A finding that defendant and Ms. Wood committed adultery in this case would be based upon pure speculation and therefore the trial court did not err in directinga verdict for defendant on plaintiff's claim of criminal conversation.
    Plaintiff's assignment of error is overruled. We affirm the trial court's judgment directing a verdict in favor of defendant.
    Affirmed.
    Judges McCULLOUGH and BRYANT concur.
    Report per Rule 30(e).

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