TERRY EUGENE HARRIS,
Plaintiff
v. Haywood County
No. 00 CVS 1203
MICKEY C. STAMEY,
Defendant
Brown Queen Patten & Jenkins, P.A., by Frank G. Queen and
Donald N. Patten, for plaintiff-appellee.
Hyler & Lopez, P.A., by George B. Hyler, Jr. and Robert J.
Lopez, for defendant-appellant.
WALKER, Judge.
On 3 November 2000, plaintiff filed a complaint against
defendant alleging alienation of affections and criminal
conversation, in which he sought compensatory and punitive damages.
Defendant denied the allegations in an answer filed on 3 January
2001. Plaintiff filed a motion for summary judgment on his
criminal conversation claim, in support of which he attached an
affidavit and defendant's answers to interrogatories. In the
affidavit, dated 4 May 2001, plaintiff stated he “is married to
Marcia Parris Harris and was married on or about the 3rd day of
June, 1989.” Defendant indicated in his answers to interrogatoriesthat he had “sex[ual] intercourse or other sexual relations” with
Marcia Harris for the first time on 27 September 2000. Defendant
subsequently filed a motion to dismiss and a motion in limine.
On 16 July 2001, the trial court heard the parties' motions.
The trial court took judicial notice that plaintiff and Marcia
Parris Harris separated on 16 September 2000. In a judgment
entered 10 August 2001, the trial court found “there [was] no
genuine issue as to any material fact as to Plaintiff's asserted
claims for Criminal Conversation and that summary judgment should
be allowed as a matter of law as to those claims.” The trial court
then entered summary judgment for plaintiff's claim for criminal
conversation and denied defendant's motion to dismiss. From the
trial court's judgment, defendant appeals.
We note this appeal is interlocutory and subject to dismissal.
See Bailey v. Gooding, 301 N.C. 205, 209, 270 S.E.2d 431, 433
(1980). Nevertheless, in the exercise of the discretion granted us
by N.C.R. App. P. 21, we treat the appeal as a petition for writ of
certiorari, issue the writ, and proceed to consider the appeal.
Defendant contends the trial court erred in granting plaintiff's
motion for summary judgment as to the claim for criminal
conversation. He argues a claim for criminal conversation cannot
be maintained when all of the evidence establishes that the acts of
sexual intercourse between him and plaintiff's spouse occurred
after the date of separation of plaintiff and his spouse. We
disagree. “The elements of criminal conversation are the actual marriage
between the spouses and sexual intercourse between defendant and
the plaintiff's spouse during the coverture.” Brown v. Hurley, 124
N.C. App. 377, 380, 477 S.E.2d 234, 237 (1996). Here, the evidence
before the trial court shows that plaintiff married Marcia Parris
Harris on 3 June 1989, that they separated on 16 September 2000,
and that they were still married on 4 May 2001. In his answers to
interrogatories, defendant admitted having had sexual intercourse
or other sexual relations with Marcia Harris for the first time on
27 September 2000.
Although defendant's conduct occurred after plaintiff's
separation from his spouse, this Court has held “that
post-separation conduct is sufficient to establish a claim for
criminal conversation.” Johnson v. Pearce, 148 N.C. App. 199, 201,
557 S.E.2d 189, 191 (2001). Because the facts establishing
defendant's criminal conversation are undisputed, the trial court
did not err by granting plaintiff's motion for summary judgment as
to that claim. See N.C.R. Civ. P. 56(c). As a result of the
preceding analysis, we find defendant's second argument--that the
trial court erred by not dismissing the claim for criminal
conversation_-is without merit.
Affirmed.
Judges THOMAS and BIGGS concur.
Report per Rule 30(e).
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