Appeal by plaintiff from judgment entered 5 July 2005 by Judge
Laura J. Bridges in Rutherford County Superior Court. Heard in the
Court of Appeals 19 April 2006.
Lloyd T. Kelso for plaintiff-appellant.
Yelton, Farfour, McCartney, Lutz & Craig, P.A., by Leslie A.
Farfour, Jr., for defendant-appellee.
JACKSON, Judge.
Frederick R. Stann (“plaintiff”) appeals from the dismissal
for lack of personal jurisdiction of his lawsuit against Jeffrey
Marc Levine (“defendant”) arising out of defendant's relationshipwith plaintiff's wife, Allison Black Stann (“Stann”). This appeal
addresses whether a North Carolina superior court has personal
jurisdiction to hear a South Carolina resident's claims for
alienation of affection and criminal conversation brought against
a Tennessee resident. We dismiss this appeal pursuant to the North
Carolina Rules of Appellate Procedure.
Plaintiff and Stann married on 3 November 1991. Although they
lived in Gastonia, North Carolina for the first several years of
their marriage, they moved to Sharon, South Carolina in 1996, where
they lived on a horse farm until their separation in September
2003. During that time, plaintiff practiced law in Gastonia, North
Carolina, with Stann working as a paralegal in the same office.
Plaintiff and Stann both were issued South Carolina driver's
licenses and displayed South Carolina license plates on their
vehicles. Evidence tended to show plaintiff and Stann paid taxes
in both North and South Carolina. Plaintiff and Stann separated on
17 September 2003.
Two months earlier, in July 2003, Stann began corresponding
with defendant, a resident of Tennessee who also was married, in
connection with a fictional story they were writing as part of
their participation in the Single Action Shooting Society. The
volume of their correspondence increased over time, with the two
communicating by telephone, e-mail, and instant messaging.
Ultimately, Stann and defendant began to discuss love and marriage.
Some of the e-mails and telephone calls were received by Stann from
defendant in North Carolina, although many were received in SouthCarolina. Stann and defendant did not meet in person until 27
September 2003. Subsequently, defendant and Stann engaged in
numerous sexual encounters in several different states, including
North Carolina.
After her separation from plaintiff, Stann first moved in with
her family in Sharon, South Carolina, but in March 2004, she moved
to Salisbury, North Carolina where she lives and works. Plaintiff
claims that he began living in Gastonia, North Carolina in November
2003, although the record also contains evidence tending to show he
maintains his residence in South Carolina at the horse farm.
On 11 June 2004, plaintiff filed a complaint against
defendant, alleging alienation of affection, criminal conversation,
and negligent and intentional infliction of emotional distress. On
23 August 2004, defendant filed a motion to dismiss pursuant to
Rule 12(b)(2) of the North Carolina Rules of Civil Procedure for
lack of personal jurisdiction, asserting that at all pertinent
times plaintiff was a resident of South Carolina and defendant was
a resident of Tennessee. Affidavits from plaintiff, defendant, and
Stann were filed in May and June 2005. Plaintiff also filed
numerous exhibits containing e-mails between defendant and Stann
prior to her separation from plaintiff, as well as telephone
company bills listing Stann's calls around the time of separation.
On 5 July 2005, the trial court granted defendant's motion to
dismiss for lack of personal and subject matter jurisdiction.
Plaintiff filed a timely appeal to this Court. It is well-established that “[t]he North Carolina Rules of
Appellate Procedure are mandatory and 'failure to follow these
rules will subject an appeal to dismissal.'” Viar v. N.C. Dep't of
Transp., 359 N.C. 400, 401, 610 S.E.2d 360, 360 (quoting Steingress
v. Steingress, 350 N.C. 64, 65, 511 S.E.2d 298, 299 (1999)), reh'g
denied, 359 N.C. 643, 617 S.E.2d 662 (2005); see also Munn v. N.C.
State Univ., 360 N.C. 353, 626 S.E.2d 270 (2006), rev'g per curiam
for reasons stated in 173 N.C. App. 144, 150, 617 S.E.2d 335, 339
(2005) (Jackson, J., dissenting). In Viar, the Supreme Court
observed that “[t]he majority opinion in the Court of Appeals,
recognizing the flawed content of plaintiff's appeal, applied Rule
2 of the Rules of Appellate Procedure to suspend the Rules. . . .
The Court of Appeals majority asserted that plaintiff's rules
violations did not impede comprehension of the issues on appeal or
frustrate the appellate process.” Viar, 359 N.C. at 402, 610 S.E.2d
at 361. In reversing this Court, our Supreme Court stated that
“[i]t is not the role of the appellate courts . . . to create an
appeal for an appellant,” and that if violations of the Rules of
Appellate Procedure are overlooked by invoking Rule 2, “the Rules
become meaningless.” Id. Accordingly, “this Court may not review
an appeal that violates the Rules of Appellate Procedure even
though such violations neither impede our comprehension of the
issues nor frustrate the appellate process.” State v. Buchanan, 170
N.C. App. 692, 695, 613 S.E.2d 356, 357 (2005).
In the case sub judice, plaintiff's violations are
substantial. Specifically, plaintiff commits seven violationspursuant to five separate Rules of Appellate Procedure. Each rule
plaintiff violates is explicitly and clearly stated in the Rules of
Appellate Procedure. First, the line spacing in plaintiff's brief
violates Rule 26(g), which provides that “[t]he body of text shall
be presented with double spacing between each line of text.” N.C.
R. App. P. 26(g) (2006). The rule reiterates the importance of
line spacing with its additional requirement that “[n]o more than
27 lines of double-spaced text may appear on a page.” Id.
Plaintiff's brief, on the other hand, contains pages with as many
as thirty-five lines of text.
Presuming such formatting errors may not require dismissal of
the appeal, plaintiff's brief contains more significant rules
violations. First, plaintiff's brief fails to include a statement
of the grounds for appellate review. See N.C. R. App. P. 28(b)(4)
(2006). “Such statement shall include citation of the statute or
statutes permitting appellate review.” Id. Plaintiff failed to
provide either the statement of grounds for appellate review or
citation of any statute permitting such review. See, e.g., Hill v.
West, 177 N.C. App. 132, 133-34, 627 S.E.2d 662, 664 (2006)
(dismissing the appeal because the appellant failed to include a
statement of grounds for appellate review and no final
determination of the parties' rights had been made pursuant to
North Carolina General Statutes, section 1A-1, Rule 54).
Furthermore, plaintiff's argument fails to “contain a concise
statement of the applicable standard(s) of review for each question
presented” as well as any citation of authorities supporting sucha standard of review. N.C. R. App. P. 28(b)(6) (2006); see, e.g.,
State v. Summers, 177 N.C. App. 691, 699, 629 S.E.2d 902, 908
(declining to address one of the appellant's arguments when he
failed to include a statement of the applicable standard of
review), appeal dismissed and disc. rev. denied, 360 N.C. 653, __
S.E.2d __ (2006).
Plaintiff's statement of the facts also violates the Rules of
Appellate Procedure. Rule 28(b)(5) provides that “[a]n appellant's
brief in any appeal shall contain . . . [a] full and complete
statement of the facts . . ., supported by references to pages in
the transcript of proceedings, the record on appeal, or exhibits,
as the case may be.” N.C. R. App. P. 28(b)(5) (2006); see, e.g.,
Consol. Elec. Distribs., Inc. v. Dorsey, 170 N.C. App. 684, 686.87,
613 S.E.2d 518, 520.21 (2005) (dismissing the appeal because the
appellant failed to include a full and complete statement of the
facts and committed four other rules violations). Although
plaintiff made a half-hearted attempt to comply with Rule 28(b)(5)
by providing sporadic record and transcript citations in the first
few pages of his statement of the facts, there is no citation to
the record or transcripts in either of the last two paragraphs.
Had plaintiff complied with the line spacing requirements, these
two paragraphs, spanning forty-seven lines, would have covered in
excess of a page and a half of his brief.
Finally, and perhaps most significantly, this Court has held
that assignments of error that are broad, vague, and unspecific
violate Rule 10(c) of the Rules of Appellate Procedure. In reAppeal of Lane Co., 153 N.C. App. 119, 123, 571 S.E.2d 224, 226.27
(2002). In the present case, plaintiff's sole assignment of error,
which is not even “stated at the conclusion of the record on
appeal” as required by Rule 10(c)(1) but rather is located in the
record prior to the judgment from which plaintiff appeals, states
that the trial court “commit[ted] reversible error by dismissing
the action of the plaintiff for lack of jurisdiction.” Although
plaintiff's assignment of error states the basis on which the trial
court dismissed the complaint - that is, for a lack of jurisdiction
- plaintiff fails to state the specific legal basis for the alleged
error. See Pamlico Props. IV v. SEG Anstalt Co., 89 N.C. App 323,
325, 365 S.E.2d 686, 687 (1988). The dissent is correct in noting
that plaintiff challenges the dismissal of his action on the basis
of jurisdiction, but more than one type of jurisdictional defect
may be alleged. See N.C. Gen. Stat. . 1A-1, Rules 12(b)(1),
12(b)(2) (2005). By making a blanket statement that the trial
court erred in dismissing the complaint on jurisdictional grounds,
plaintiff's assignment of error is fatally overbroad, vague, and
unspecific.
When viewed in toto, the nature and number of rules
violations, combined with the absence of any compelling
justification for suspending the rules pursuant to Rule 2,
justifies dismissal of plaintiff's appeal. Various panels of this
Court have taken inconsistent approaches with respect to the
application of Rule 2 of the Rules of Appellate Procedure and
created confusion over the implications of the Supreme Court'sopinion in Viar v. N.C. Department of Transportation, 359 N.C. 400,
610 S.E.2d 360, reh'g denied, 359 N.C. 643, 617 S.E.2d 662 (2005).
We thus believe it is necessary to address this issue in more
detail.
The dissent argues that our construction of the Rules of
Appellate Procedure may raise the stakes for appellate attorneys
and legal malpractice carriers alike. Our decision here, however,
neither imposes an unreasonable burden on appellate attorneys nor
is it a major surprise.
Practitioners long have understood the importance of abiding
by the appellate rules. Many seminars and continuing legal
education courses have been offered on this very subject. See,
e.g., Judge John M. Tyson, Ten Trial and Post-Trial Mistakes that
Can Cost You on Appeal, in N.C. State View from the Bench, North
Carolina Bar Ass'n, CLE No. 783VFB (Oct. 17, 2003);
(See footnote 1)
Robert R.
Marcus, An Overview of the North Carolina Rules of Appellate
Procedure: What You Don't Know Can Hurt You, in Appellate
Advocacy, North Carolina Bar Ass'n, CLE No.716CY2 (Nov. 15, 2002).
Additionally, the North Carolina Rules of Appellate Procedure are
widely available and posted, free of charge, on the website for the
Administrative Office of the Courts. See Rules, available at
http://www.aoc.state.nc.us/www/public/html/rules.htm (last visited
Oct. 24, 2006). Despite the accessibility and acknowledged significance of the
rules and the Supreme Court's plain language in Viar, the dissent
nevertheless falls back on the maxim “to err is human.” To err
once is indeed human, and this Court, contrary to the dissent's
contention, is not sanctioning automatic dismissal. However, the
number and severity of the errors in the case sub judice cannot be
tolerated, and the choice to take the “divine” step of forgiveness
(See footnote 2)
for the appellate attorney's mistakes lies with the party in the
case and the attorney's client, not with this Court. Otherwise, ad
hoc application of the rules, with inconsistent and arbitrary
enforcement, could lead to allegations of favoritism for one
counsel over another.
Roger Traynor, former Chief Justice of the California Supreme
Court, once wrote, “[t]o err is human, as a judge well knows, but
to err is not always harmless.” Roger J. Traynor, The Riddle of
Harmless Error 3 (1970). If the North Carolina Supreme Court
elects to amend Rule 2 to reflect the dissent's interpretation, it
effectively will be adopting an approach analogous to “harmless
error” to the North Carolina Rules of Appellate Procedure. Cf.
Erika Plumlee, “To Err Is Human” _ But Is It Harmless?: Texas Rules
of Appellate Procedure Rule 81(b)(2) and the Court of Criminal
Appeals' Effort to Fashion a Workable Standard of Review, 21 Tex.Tech. L. Rev. 2205 (1990). However, even a harmless error analysis
is not without its critics:
In our system of justice, fairness and
impartiality are produced, if at all, by
operation of legal rules and by the assignment
of adjudicatory responsibilities. Those who
fashion these rules, including the legislative
and judicial branches of government, may be
expected to consider the efficacy of what they
produce and to decide what rules and standards
are necessary to achieve fairness in the
system as a whole. When a procedural or
evidentiary rule seems not to work well, or
when it seems to produce unjust results, the
remedy is to amend or repeal it. The harmless
error rule does neither. It leaves the law
fully intact, but authorizes appellate court
judges to pardon the violation of any legal
precept, constrained only by their personal
views of fairness and justice.
Gentry v. State, 806 P.2d 1269, 1278 (Wyo. 1991) (Urbigkit, C.J.,
dissenting); see also Harry T. Edwards, To Err Is Human, But Not
Always Harmless: When Should Legal Error Be Tolerated?, 70 N.Y.U.
L. Rev. 1167 (1995) (discussing the varying approaches to harmless
error analysis and their respective flaws).
Additionally, a harmless error approach to our Rules of
Appellate Procedure presents a classic slippery slope dilemma. As
our Supreme Court noted nearly a century ago, “It is therefore
necessary to have rules of procedure and to adhere to them, and if
we relax them in favor of one, we might as well abolish them.”
Bradshaw v. Stansberry, 164 N.C. 356, 356, 79 S.E. 302, 302 (1913).
Logically, the dissent's “to err is human” approach would permit
all of the Rules of Appellate Procedure to be violated, so long as
the appellee is able to respond effectively and this Court is able
to address the appeal. If this interpretation was adopted, theRules of Appellate Procedure are no longer rules but merely
guidelines. Such an interpretation contradicts the plain language
of the rules and the intent of their drafters, as well as the plain
language of the Supreme Court's opinion in Steingress, Viar, and
Viar's progeny.
Despite the quantity and quality of plaintiff's rules
violations, the dissent contends that violations that warrant
dismissal are only those “that substantively affect the ability of
the appellee to respond and this Court to address the appeal.”
This is the identical argument this Court's majority opinion
asserted in Viar that was expressly rejected by the Supreme Court.
Furthermore, although the dissent offers its own standard for
determining when to suspend the Rules, rule-making authority is not
conferred on this Court but belongs exclusively with the North
Carolina Supreme Court. See N.C. Const. art. IV, § 13(2). Indeed,
even the General Assembly may not alter or amend the appellate
rules. See id.
For over the last thirty years, the governing framework for
appeals in this state has been the North Carolina Rules of
Appellate Procedure, and the Supreme Court specifically used the
word “rules” and not “guidelines,” “suggestions,” or a word of
similar import. Cf. Brown v. Brown, 353 N.C. 220, 224, 539 S.E.2d
621, 623 (2000) (noting that “[a]lthough the title of an act cannot
control when the text is clear, the title is an indication of
legislative intent.” (citations omitted)). As succinctly explained
by the Michigan Court of Appeals, a rule is a principle or regulation governing
conduct, procedure, arrangement, etc. This is
distinguishable from mere guidelines, reports,
or objectives, which, though guiding conduct,
do not regulate or govern conduct. The
difference is that guidance is permissive
while regulation and governance are not.
Cole's Home & Land Co., LLC v. City of Grand Rapids, 720 N.W.2d
324, 328.29 (Mich. Ct. App. 2006) (emphasis in original) (internal
quotation marks omitted). As such, the appellate rules, by
definition, are not permissive but instead are mandatory. See Viar,
359 N.C. at 401, 610 S.E.2d at 360.
This Court at times has evaluated rules violations under the
more relaxed “substantial compliance” standard. See Cox v. Steffes,
161 N.C. App. 237, 241, 587 S.E.2d 908, 911 (2003) (“'This Court
has held that when a litigant exercises “substantial compliance”
with the appellate rules, the appeal may not be dismissed for a
technical violation of the rules.'” (quoting Spencer v. Spencer,
156 N.C. App. 1, 8, 575 S.E.2d 780, 785 (2003))), disc. rev.
denied, 358 N.C. 233, 595 S.E.2d 148 (2004); cf. Gage v. State, 748
S.W.2d 351, 353 (Ark. 1988) (Purtle, J., dissenting) (“Unless we
insist on at least substantial compliance with the law and the
rules, we might as well consider them to be mere guidelines which
should be followed . . . .” (emphasis added)). However, a
“substantial compliance” exception to the rules has not been
expressly endorsed by our Supreme Court. Even if the Supreme Court
had adopted the “substantial compliance” analysis, plaintiff in the
case sub judice, through his numerous and significant rulesviolations, failed to substantially comply with the rules with his
brief.
Since rules, not guidelines, govern appeals in North Carolina,
the plain language of Rule 2 of the Rules of Appellate Procedure
also demonstrates that the Supreme Court did not intend for the
mandatory rules to be suspended for cases such as the one before
us. Pursuant to Rule 2,
[t]o prevent manifest injustice to a party, or
to expedite decision in the public interest,
either court of the appellate division may,
except as otherwise expressly provided by
these rules, suspend or vary the requirements
or provisions of any of these rules in a case
pending before it upon application of a party
or upon its own initiative, and may order
proceedings in accordance with its directions.
N.C. R. App. P. 2 (2006) (emphasis added). Furthermore, the
commentary
(See footnote 3)
to Rule 2 explains that
[t]his Rule expresses an obvious residual
power possessed by any authoritative rule-
making body to suspend or vary operation of
its published rules in specific cases where
this is necessary to accomplish a fundamental
purpose of the rules. . . . It is included
here as a reminder to counsel that the power
does exist, and that it may be drawn upon by
either appellate court where the justice of
doing so or the injustice of failing to do so
is made clear to the court. The phrase
“except as otherwise expressly provided”
refers to the provision in Rule 27(c) that the
time limits for taking appeal laid down in
these Rules (i.e. Rules 14 and 15) or in
“jurisdictional” statutes which are thenreplicated or cross-referred in these Rules,
i.e. Rules 3 (civil appeals), 4 (criminal
appeals) and 18 (agency appeals), may not be
extended by the court.
N.C. R. App. P. 2 cmt. (1975) (emphasis added). Despite the plain
language of the rule and commentary, panels of this Court have been
divided over whether and when to invoke Rule 2. The dissent notes
that this Court has invoked Rule 2 when the rules violations did
not impact the appellee's ability to respond or this Court's
ability to address the appeal. However, as another panel of this
Court noted,
our Supreme Court recently reversed per curiam
Munn v. North Carolina State University, 173
N.C. App. 144, 617 S.E.2d 335 (2005) for the
reasons stated in Judge Jackson's dissenting
opinion. Munn v. North Carolina State
University, 360 N.C. 353, 354, 626 S.E.2d 270,
271 (2006). In her opinion, Judge Jackson
cited State v. Buchanan, 170 N.C. App. 692,
693[], 613 S.E.2d 356, 357 (2005) for the
proposition, “Our Supreme Court has stated
that this Court may not review an appeal that
violates the Rules of Appellate Procedure even
though such violations neither impede our
comprehension of the issues nor frustrate the
appellate process.” (Emphasis added). Thus, by
reversing for the reasons stated in Judge
Jackson's dissent, our Supreme Court has
directly spoken on this issue.
State v. Hart, 179 N.C. App. __, __, 633 S.E.2d 102, 107.08 (2006),
disc. rev. denied, 360 N.C. 651, __ S.E.2d __ (2006); see also
Walsh v. Town of Wrightsville Beach, 179 N.C. App. __, __, 632
S.E.2d 271, 273 (2006). Such an approach makes sense, for when the
rule and commentary are read in pari materia, it is clear that the
ability of this Court to comprehend the issues on appeal is
irrelevant with regard the invocation of Rule 2. Rather, Rule 2provides that violations of time limits and jurisdictional
requirements are irreparable, and where review on the merits is
allowed, other violations may be overlooked where injustice is
abundantly evident or the public interest would be served “and only
in such instances.” Steingress, 350 N.C. at 66, 511 S.E.2d at 300
(emphasis added).
Determining what constitutes “manifest injustice” and when the
“public interest” is at stake, however, can be an arduous trek over
uncertain ground. Our Supreme Court has described appropriate
opportunities for the invocation of Rule 2 as “rare occasions,”
Reep v. Beck, 360 N.C. 34, 38, 619 S.E.2d 497, 500 (2005), and “in
exceptional circumstances,” Steingress, 350 N.C. at 66, 511 S.E.2d
at 299, and a thorough review of the Court's Rule 2 jurisprudence
supports such characterizations. On several occasions, the Supreme
Court expressly based its determination of “manifest injustice” on
the severity of a criminal sentence _ typically capital punishment
(See footnote 4)
or life imprisonment.
(See footnote 5)
As a practical matter, injustice is farmore manifest when a person's life or liberty is at stake, and
consequently, Rule 2 has found its greatest acceptance in the
criminal context.
(See footnote 6)
However, the Supreme Court has not suspended
the appellate rules in all criminal appeals,
(See footnote 7)
and last year, the
Court specifically declined to invoke Rule 2 for a defendant facing
life imprisonment. See State v. Dennison, 359 N.C. 312, 608 S.E.2d
756 (2005) (per curiam).
In addition to criminal cases where a severe punishment has
been imposed, the Court has been more willing to invoke Rule 2,
either on “manifest injustice” or “public interest” grounds, in
criminal
(See footnote 8)
or civil
(See footnote 9)
cases that involve either substantialconstitutional claims or issues of first impression. An example of
a substantial constitutional claim may be seen with the Supreme
Court's granting in 2002 of the plaintiffs' “Emergency Petition for
Suspension of the Rules” in Stephenson v. Bartlett, a case of
significant public interest wherein the plaintiffs challenged the
constitutionality of the General Assembly's 2001 legislative
redistricting plans for the State House of Representatives and the
State Senate. See Emergency Petition for Suspension of the Rules,
Stephenson v. Bartlett, 355 N.C. 279, 560 S.E.2d 550 (2002) (No.
94P02). An example of a case of first impression in which the
Court invoked Rule 2 is Brown v. Brown, 353 N.C. 220, 539 S.E.2d
621 (2000). The issue in Brown was whether “the Court of Appeals
err[ed] in concluding that equitable distribution does not abate if
one of the parties dies after filing for equitable distribution and
divorce, but before receiving an equitable distribution judgment or
an absolute divorce decree.” Brown, 353 N.C. at 221, 539 S.E.2d at
622. Because of the unique “procedural dilemma [whereby] appeal to
the Court of Appeals was made on behalf of a deceased party, and
the appearance in th[e] [Supreme] Court in response to defendant's
appeal was likewise made on behalf of a deceased party,” the Court
determined on grounds of manifest injustice that it was necessary
to invoke Rule 2. Id. Rule 2 just as easily could have been
invoked on “public interest” grounds, however, as evidenced by the
General Assembly's immediately overruling the Court's decision. See
Estate of Nelson v. Nelson, 179 N.C. App. __, __, 633 S.E.2d 124,
128 (2006) (“In 2001, the General Assembly amended N.C. Gen. Stat.§ 50-20, adding subsection (l) to provide that '[a] pending action
for equitable distribution shall not abate upon the death of a
party.' This statute abrogated the Supreme Court's decision in
Brown v. Brown, which held an equitable distribution claim abated
upon the death of a party.” (citations omitted)).
In the thirty-one years since the Supreme Court adopted the
Rules of Appellate Procedure, the Court consistently has confined
its invocation of Rule 2 to extraordinary matters affecting the
life or liberty of a criminal defendant or the constitutionality of
a statute. “Manifest injustice” and “public interest” have been
construed strictly, and perhaps the single anomaly, if it may be
considered such, in the Court's jurisprudence is Potter v.
Homestead Preservation Ass'n, 330 N.C. 569, 412 S.E.2d 1 (1992).
The plaintiff in Potter brought suit for, inter alia, breach of a
partnership agreement respecting the development of a 700-acre
tract of land. Although plaintiff failed to cross-assign error to
the trial court's dismissal of her contract claim, plaintiff
nonetheless attempted to “invoke[] N.C. R. App. P. 28(c), as
authorization for her argument that, despite having made no cross-
assignments of error, she is entitled to a new trial on the issue
of damages, based on this theory of recovery.” Potter, 330 N.C. at
575, 412 S.E.2d at 5. The Court rejected her argument, noting that
Rule 28(c) would only apply to claims upon which plaintiff
prevailed at trial. See id. Nonetheless, the Court found that
dismissal for plaintiff's failure to cross-assign error and hercorresponding misinterpretation of Rule 28(c) would be manifestly
unjust. See id. at 576, 412 S.E.2d at 5.
Although Potter involved a purely private dispute, just as in
the case sub judice, Rule 2 was invoked in Potter as a result of a
misinterpretation of one of the rules and as a result of the
substantial sums at stake in the matter. Although plaintiff in the
instant case also seeks recovery for substantial monetary damages,
plaintiff's rules violations are numerous and blatant. Thus,
rather than looking to Potter for guidance, the Supreme Court's
more recent decision in Steingress v. Steingress, 350 N.C. 64, 511
S.E.2d 298 (1999), better supports our refusal to invoke Rule 2
under these circumstances. Steingress, like the case before us,
involved a purely private dispute: the aftermath of a failed
marital relationship. Whereas the instant case is based on claims
of alienation of affection and criminal conversation, the defendant
in Steingress appealed an adverse decision regarding the equitable
distribution of marital property. The defendant in Steingress
violated Rules 26(g) and 28(b)(5), see Steingress, 350 N.C. at 65,
511 S.E.2d at 299, which plaintiff in the case before us also
violated, in addition to Rules 28(b)(4), 28(b)(6), and 10(c).
Specifically, the defendant, just as plaintiff here, failed to
double space the text of her brief. See id. The defendant also
“fail[ed] to set out in her brief references to the assignments of
error upon which her presented issues and arguments were based.”
Id. Judge Walker in dissent explained that it was still possible
“to determine which assignments are argued in the brief” andrecommended taxing each attorney with costs for violating the
rules. Id. at 67, 511 S.E.2d at 300. The dissent in the case sub
judice echoes precisely Judge Walker's sentiment and
recommendation, which nevertheless were rejected by our Supreme
Court. See id. The defendant's rules violations were substantial,
and as there was no issue of public interest or manifest injustice
in Steingress, the Supreme Court held that our Court did not abuse
its discretion in refusing to invoke Rule 2. Id. at 66.67, 511
S.E.2d at 299.300. This Court is cognizant of the societal
importance of the institution of marriage, see Whitford v. North
State Life Ins. Co., 163 N.C. 223, 226, 79 S.E. 501, 502 (1913),
but based on the quality and quantity of the appellate rules
violations and based on the facts of the case sub judice, we hold
that it is unnecessary to invoke Rule 2 “[t]o prevent manifest
injustice to a party, or to expedite decision in the public
interest.” N.C. R. App. P. 2 (2006).
Although the parallels to Steingress and the language in Viar
support our conclusion, it is likely that neither Steingress nor
Viar _ despite the attention they have garnered _ were intended to
serve as a lodestar for appellate rule determinations. Rather, the
plain language of the rules themselves remains the essential guide
for this Court in applying Rule 2 and the other Rules of Appellate
Procedure. Furthermore, the authority to alter Rule 2 lies solely
with our Supreme Court and not with panels of this Court. No
matter what interpretations ultimately are adopted for the Rules of
Appellate Procedure, we must be careful not to “enshrineinefficiency or lapse into complacency merely because occasional
error is inevitable.” Quick v. State, 450 So. 2d 880, 881 (Fla.
Dist. Ct. App. 1984). Accordingly, because of the nature and
number of plaintiff's violations of the North Carolina Rules of
Appellate Procedure, this appeal is dismissed.
DISMISSED.
Judge TYSON concurs.
Judge GEER dissents by separate opinion.
GEER, Judge, dissenting.
I believe this Court increasingly elevates form over substance
in its attempt to apply our Supreme Court's decision in Viar v.
N.C. Dep't of Transp., 359 N.C. 400, 610 S.E.2d 360 (2005) (per
curiam). Mr. Stann's appellate rule violations have neither
impacted our ability to review his appeal nor hindered Mr. Levine's
ability to adequately respond to Mr. Stann's arguments. Moreover,
the majority opinion does not impose sanctions for appellate rules
violations with an even hand: it levies the ultimate sanction of
dismissal on Mr. Stann, while entirely ignoring rule violations in
Mr. Levine's appellee brief. To dismiss, under these
circumstances, what I believe is a meritorious appeal is to commit
a manifest injustice. I would instead impose monetary sanctions on
both parties' counsel under N.C.R. App. P. 25(b) and N.C.R. App. P.
34(b) and reach the merits of the case. Accordingly, I
respectfully dissent.
Viar
The majority holds that the Supreme Court's decision in
Viar
mandates that we dismiss all appeals in which the appellant has
committed violations of the appellate rules. I believe that this
is a misconstruction of
Viar. Contrary to the majority, I am not
willing to assume that the Supreme Court intended to require
dismissal for all rules violations regardless of their magnitude
and regardless whether they impede the appellee's or this Court's
ability to address the issues on appeal.
The appellant in
Viar failed to comply with North Carolina
Rules of Appellate Procedure 10 and 28(b) in very substantial
respects. He made only two assignments of error, neither of which
referenced the record, while only one stated the legal basis upon
which the error was assigned.
Id. at 401, 610 S.E.2d at 361.
Additionally, the appellant's brief made no argument as to one
assignment of error, thereby abandoning it under N.C.R. App. P.
28(b)(6), and, although the second "assignment of error purport[ed]
to challenge the Industrial Commission's conclusion of law, . . .
the arguments in [the appellant's] brief . . . [did] not address
the issue upon which the Industrial Commission's conclusion of law
was based."
Viar, 359 N.C. at 402, 610 S.E.2d at 361.
Although the Supreme Court pointed out these violations of the
rules _ which in fact impeded appellate review _ the focus of the
Court's brief opinion was instead on this Court's reliance upon
Rule 2 to "address[] the issue,
not raised or argued by plaintiff,
which was the basis of the Industrial Commission's decision . . .
."
Id. (emphasis added). The Supreme Court emphasized: "It is notthe role of the appellate courts . . . to create an appeal for an
appellant."
Id. Our Supreme Court explained that to use Rule 2 to
raise and decide issues not addressed by the appellant left an
appellee "without notice of the basis upon which an appellate court
might rule."
Id. In other words, the Supreme Court was concerned
in
Viar about this Court using Rule 2 to, in effect, fix errors by
the appellant and resolve an appeal on a basis not addressed by the
parties.
I am very concerned about this Court's moving beyond the issue
specifically addressed in
Viar and construing the opinion in a
draconian manner. No truth is more fundamental than
errare humanum
est or, as Alexander Pope famously wrote, "[t]o err is human."
Alexander Pope,
An Essay on Criticism, pt. II, line 525 (1711). In
light of this reality of human existence, I see no reason to
construe the Supreme Court's holding in
Viar as stripping the
appellate courts of all discretion to make allowances for human
errors that make no difference in the review of an appeal.
Cf.
Reep v. Beck, 360 N.C. 34, 38, 619 S.E.2d 497, 500 (2005)
(observing that Rule 2 on "rare occasions" is available to review
issues not raised before the trial court, in violation of Rule 10,
in order to prevent manifest injustice or to expedite a decision
affecting the public interest).
The approach followed by the majority opinion effectively
eviscerates Rule 2. In light of
Reep, it is apparent, however,
that the Supreme Court believes Rule 2 is alive and well,
Viar
notwithstanding. I believe that the Supreme Court expressed itsintent in
Viar with relative clarity: Rule 2 may not be used as a
means to address issues not raised by an appellant. It is that
evil that constitutes "creat[ing] an appeal for an appellant" and
leaving an appellee "without notice of the basis upon which an
appellate court might rule."
Viar, 359 N.C. at 402, 610 S.E.2d at
361.
To hold that
Viar must be read to require dismissal whenever
an appellant violates the appellate rules in any fashion would lead
to wholesale dismissals. Many, if not most, appeals involve some
violation of the appellate rules, such as arranging the record on
appeal in the wrong order, using the wrong font size in footnotes,
or failing to include a certificate of compliance regarding the
number of words in the brief (when it is obvious the brief is not
overly long). Yet, this Court has not, even after
Viar, dismissed
those appeals involving minor violations of the appellate rules.
A line must be drawn between those violations that warrant
dismissal and those that do not.
I believe the proper line is to dismiss only those appeals
that substantively affect the ability of the appellee to respond
and this Court to address the appeal. Other panels of this Court
have construed
Viar similarly and concluded that this Court retains
discretion under Rule 2 to allow an appeal to proceed despite minor
rules violations.
See State v. Hill, ___ N.C. App. ___, ___, 632
S.E.2d 777, 790 (2006) (exercising discretion under Rule 2,
"despite the multiple violations of Rule 28(b)(6)," to consider
appellant's arguments both "because of the seriousness ofallegations of juror misconduct" and because "the thoroughness of
the State's response . . . establishes that the State was on
sufficient notice of the issue sought to be raised by Defendant and
of the basis on which this Court might rule on this issue" and
that, therefore, "a primary concern expressed by
Viar . . . is
absent in this circumstance");
Welch Contr'g, Inc. v. N.C. Dep't of
Transp., 175 N.C. App. 45, 49, 622 S.E.2d 691, 694 (2005)
(considering plaintiff's appeal, despite violations of Rules 10 and
28, because defendants clearly "had sufficient notice of the basis
upon which our Court might rule" and doing so neither "address[ed]
an issue 'not raised or argued by plaintiff,' nor . . . 'create[d]
an appeal for an appellant'" (quoting
Viar, 359 N.C. at 402, 610
S.E.2d at 361));
Davis v. Columbus Cty. Schs., 175 N.C. App. 95,
98, 622 S.E.2d 671, 674 (2005) (discussing this Court's
interpretation of
Viar "to review certain appeals in spite of rules
violations");
Coley v. State, 173 N.C. App. 481, 483, 620 S.E.2d
25, 27 (2005) (relying on Rule 2 to review the plaintiffs' appeal
because, despite several violations of Rules 28(b) and 41(b)(2),
the violations were minor and did not require this Court to create
an appeal for the plaintiffs or to examine any issues they had not
raised),
aff'd and modified on other grounds, 360 N.C. 493, 631
S.E.2d 121 (2006).
Automatic dismissal of an appeal for rules violations _
regardless of the significance of the violations _ is particularly
unfair to the parties. An appellant has little ability to ensure
that his or her counsel complies with the appellate rules. Becauseof carelessness by appellate counsel, a party with an otherwise
meritorious appeal may be left with no remedy or relief. A legal
malpractice claim may be difficult to pursue due to the need to
prove that the appellant would have prevailed both on appeal and
upon remand. On the other hand, it could be argued that if the
appellee's counsel fails to file a motion to dismiss for rules
violations, then counsel is not aggressively representing his or
her client. Collegiality and principles of professionalism will
have to be set aside in order to ensure proper representation of
the appellate client. In all events, legal malpractice carriers
must sit up and take notice: appellate practice has become high
risk for malpractice claims. I do not believe this is the culture
that
Viar intended to create.
Appellate Rules Violations in This Case
In this case, both parties' briefs reflect a lack of careful
attention to the Rules of Appellate Procedure, although Mr. Stann's
violations are more significant. I agree with the majority that
Mr. Stann has violated Rule 26(g)(1) of the Rules of Appellate
Procedure, which provides that, in all papers filed with the
appellate courts, "[t]he body of text shall be presented with
double spacing between each line of text." Mr. Stann's brief
contains 1 1/3 line spacing throughout. Further, contrary to
N.C.R. App. P. 28(b)(6), Mr. Stann's brief does not contain a
statement of grounds for appellate review or a statement of the
applicable standard of review. Mr. Levine's brief likewise omits
a statement of the standard of review and includes no Rule 29(j)certification. I disagree with the majority, however, that Mr.
Stann's brief also violates Rules 28(b)(5) and 10(c)(1).
Rule 28(b)(5) requires that an appellant's brief contain a
"full and complete statement of the facts . . . supported by
references to pages in the transcript of proceedings, the record on
appeal, or exhibits, as the case may be." The majority concludes
that Mr. Stann has violated this rule because the last two
paragraphs of his statement of the facts contain no record
citations. Although record citations in these paragraphs would
have been preferable, the preceding 16 paragraphs contain dozens of
citations to both the record and various exhibits, and the majority
points to no authority suggesting this is inadequate. Accordingly,
I would hold that Mr. Stann's fact section is in substantial
compliance with the rules. I note that Mr. Levine's brief also
fails to include necessary citations to the record in his
restatement of the facts.
Rule 10(c)(1) requires the appellant to list his assignments
of error "at the conclusion of the record on appeal" and states:
Each assignment of error shall, so far as
practicable, be confined to a single issue of
law; and shall state plainly, concisely and
without argumentation the legal basis upon
which error is assigned. An assignment of
error is sufficient if it directs the
attention of the appellate court to the
particular error about which the question is
made, with clear and specific record or
transcript references.
The majority faults Mr. Stann for failing to place his single
assignment of error "at the conclusion" of the record. I would
hold that its location on page 111 of a 117-page record isadequate, and, in any event, that this is truly a trivial rule
violation.
More importantly, however, the majority also concludes that
Mr. Stann's assignment of error violates Rule 10(c)(1) by being too
"broad, vague, and unspecific" because it "fails to state the
specific legal basis for the alleged error." Mr. Stann is
challenging the trial court's granting of a motion to dismiss for
lack of personal jurisdiction in a one-page order providing no
specific explanation. Mr. Stann's assignment of error states that
the trial court "commit[ted] reversible error by dismissing the
action of the plaintiff for lack of jurisdiction." As Rule
10(c)(1) requires assignments of error to be made "concisely and
without argumentation," I am unclear what else the majority would
have preferred Mr. Stann to have said. He could have stated that
the court "erred by dismissing the action of the plaintiff for lack
of jurisdiction because the court in fact had jurisdiction over Mr.
Levine." But, I question whether such redundancy is truly
necessary or desirable. Certainly, a lack of redundancy should not
lead to dismissal of a meritorious appeal.
This case is unlike
Pamlico Props. IV v. Seg Anstalt Co., 89
N.C. App. 323, 365 S.E.2d 686 (1988), and
Walker v. Walker, 174,
N.C. App. 778, 624 S.E.2d 639 (2005),
disc. review denied, 360 N.C.
491, 632 S.E.2d 774 (2006), upon which the majority relies to
support its dismissal. In
Pamlico, the appellant challenged the
trial court's award of summary judgment on statute of limitations
grounds with the following assignment of error: "[t]he granting ofthe motion for summary judgment of the defendant, The Rich
Company." 89 N.C. App. at 325, 365 S.E.2d at 687 (alteration
original). In contrast, Mr. Stann's assignment of error challenges
the trial court's dismissal order on the specific legal basis of
jurisdiction. I fail to see, therefore, how
Pamlico supports the
majority's conclusion.
Walker is even less analogous to the present case. The
appellant in
Walker set out 119 assignments of error, purporting to
assign error to almost every finding of fact and conclusion of law
made by the trial court. 174 N.C. App. at 781-82, 624 S.E.2d at
641. These assignments of error followed a repetitive pattern,
with each finding or conclusion being the subject of three
identical assignments of error, all in the following format:
a. The Trial Court's Finding of Fact [No.
'X'], on the grounds that it is not
supported by the evidence.
b. The Trial Court's Finding of Fact [No.
'X'], on the grounds that it is erroneous
as a matter of law.
c. The Trial Court's Finding of Fact [No.
'X'], on the grounds that it is an abuse
of discretion.
Id.
The
Walker Court concluded that these assignments of error
were generic and "'designed to allow counsel to argue anything and
everything they desire in their brief on appeal.'"
Id. at 782, 624
S.E.2d at 642 (quoting
Wetchin v. Ocean Side Corp., 167 N.C. App.
756, 759, 606 S.E.2d 407, 409 (2005)). In contrast, nothing
indicates that Mr. Stann's lone assignment of error _ specificallychallenging the trial court's jurisdictional determination _
"'covers everything and touches nothing.'"
Id. (quoting
Wetchin,
167 N.C. App. at 759, 606 S.E.2d at 409).
(See footnote 10)
It is eminently clear,
to both this Court and Mr. Levine, what the legal basis of Mr.
Stann's argument is.
Cf. Vernon, Vernon, Wooten, Brown & Andrews,
P.A. v. Miller, 73 N.C. App. 295, 297, 326 S.E.2d 316, 319 (1985)
(concluding assignments of error are not required "where, as here,
the sole question presented in defendant's brief is whether the
trial court erred in granting summary judgment").
It is this Court's responsibility to correct errors in the
trial courts, and I do not believe that we serve well the parties,
the Bar, the citizens of North Carolina, or justice by dismissing
appeals for mistakes by lawyers that hinder neither our ability to
perform our responsibilities nor the ability of an opposing party
to respond. While Mr. Stann's violations of the Rules of Appellate
Procedure subject his appeal to sanctions, up to and including
dismissal,
Viar, 359 N.C. at 401, 610 S.E.2d at 360, neither the
improper spacing, the failure to provide a statement of grounds for
appellate review, the failure to provide a statement of the
standard of review, the arrangement of the record, nor the phrasing
of the assignment of error substantively impacts the appeal in this
case. Moreover, Mr. Levine likewise committed violations of the
Appellate Rules. Yet, the majority imposes no sanction on the
appellee whatsoever. The emphasis on dismissal as the only
sanction for appellate rules violations allows appellees to violate
the rules with impunity. It is very troubling to me that only
appellants are at risk when violating the appellate rules.
Consequently, I would impose sanctions other than dismissal on
both parties' counsel and would pass upon the merits of this case.
See Youse v. Duke Energy Corp., 171 N.C. App. 187, 192, 614 S.E.2d
396, 400 (2005) ("Despite the Rules violations, we are able to
determine the issues in this case on appeal. Furthermore, we note
that defendant, in filing a brief that thoroughly responds to
plaintiff's arguments on appeal, was put on sufficient notice of
the issues on appeal."). With respect to the merits, I would
reverse in part, for the reasons stated below.
The Merits of Mr. Stann's Appeal
A.
Standard of Review for Rule 12(b)(2) Motions
A two-step analysis applies in determining whether a North
Carolina court has personal jurisdiction over a nonresident
defendant. "First, the [claim] must fall within the language of
the State's 'long-arm' statute. Second, the exercise of
jurisdiction must not violate the due process clause of the
fourteenth amendment to the United States Constitution."
Tom Togs,
Inc. v. Ben Elias Indus. Corp., 318 N.C. 361, 364, 348 S.E.2d 782,
785 (1986). When both defendant and plaintiff submit affidavits and other
evidence addressing a motion to dismiss under N.C.R. Civ. P.
12(b)(2), the trial court "may hear the matter on affidavits
presented by the respective parties, [or] the court may direct that
the matter be heard wholly or partly on oral testimony or
depositions." N.C.R. Civ. P. 43(e).
See also Banc of Am. Secs.
LLC v. Evergreen Int'l Aviation, Inc., 169 N.C. App. 690, 694, 611
S.E.2d 179, 183 (2005) ("'If the exercise of personal jurisdiction
is challenged by a defendant, a trial court may hold an evidentiary
hearing including oral testimony or depositions or may decide the
matter based upon affidavits.'" (quoting
Bruggeman v. Meditrust
Acquisition Co., 138 N.C. App. 612, 615, 532 S.E.2d 215, 217,
appeal dismissed and disc. review denied, 353 N.C. 261, 546 S.E.2d
90 (2000)). If the trial court chooses to decide the motion based
on affidavits, "[t]he trial judge must determine the weight and
sufficiency of the evidence [presented in the affidavits] much as
a juror."
Fungaroli v. Fungaroli, 51 N.C. App. 363, 367, 276
S.E.2d 521, 524,
disc. review denied, 303 N.C. 314, 281 S.E.2d 651
(1981).
In rendering its decision, the trial court is not required,
under Rule 52(a)(2) of the Rules of Civil Procedure, to make
specific findings of fact unless requested by a party.
Fungaroli,
51 N.C. App. at 367, 276 S.E.2d at 524. When the record contains
no findings of fact, "'[i]t is presumed . . . that the court on
proper evidence found facts to support its judgment.'"
Id.
(quoting
Sherwood v. Sherwood, 29 N.C. App. 112, 113-14, 223 S.E.2d509, 510-11 (1976)).
See also Cameron-Brown Co. v. Daves, 83 N.C.
App. 281, 285, 350 S.E.2d 111, 114 (1986) ("In the case
sub judice,
the parties presented affidavits which materially conflicted. The
trial judge apparently believed the evidence of [defendant] and
presumably found the facts to be as set forth and supported by his
affidavit.").
In this case, the parties submitted dueling affidavits
accompanied by extensive exhibits. As in
Fungaroli and
Cameron-Brown, however, the record contains no indication that
either party requested that the trial court make specific findings
of fact in ruling on defendant's 12(b)(2) motion. An appellate
court reviewing the order at issue would, therefore, be required to
presume that the trial judge made factual findings based upon the
evidence submitted that were sufficient to support a ruling in
favor of defendant.
It would then be this Court's task to review the record to
determine whether it contains any evidence that would support the
trial judge's conclusion that the North Carolina courts' exercise
of jurisdiction over Mr. Levine would be inappropriate.
Filmar
Racing, Inc. v. Stewart, 141 N.C. App. 668, 672, 541 S.E.2d 733,
737 (2001) ("[T]he dispositive issue before us is the sufficiency
of the evidence to support [the] determination that personal
jurisdiction did not exist."). We could not revisit questions of
credibility or weight that, based upon the trial court's ultimate
ruling, necessarily must have already been decided by the trial
court.
Evergreen, 169 N.C. App. at 695, 611 S.E.2d at 183. B.
Long-Arm Jurisdiction
North Carolina's long-arm statute is set forth in N.C. Gen.
Stat. § 1-75.4 (2005). The subsections pertinent to this case are
N.C. Gen. Stat. § 1-75.4(3) and -75.4(4)(a), which provide:
A court of this State having jurisdiction
of the subject matter has jurisdiction over a
person served in an action pursuant to Rule
4(j), Rule 4(j1), or Rule 4(j3) of the Rules
of Civil Procedure under any of the following
circumstances:
. . . .
(3) Local Act or Omission. _ In any
action claiming injury to person or
property or for wrongful death
within or without this State arising
out of an act or omission within
this State by the defendant.
(4) Local Injury; Foreign Act. _ In any
action for wrongful death occurring
within this State or in any action
claiming injury to person or
property within this State arising
out of an act or omission outside
this State by the defendant,
provided in addition that at or
about the time of the injury . . . :
a. Solicitation or services
activities were carried on
within this State by or on
behalf of the defendant[.]
These subsections are commonly referred to as jurisdiction based on
a "local act" or based on a "local injury."
It is not sufficient for Mr. Stann to demonstrate that at
least one of his causes of action falls within the long-arm
statute. N.C. Gen. Stat. § 1-75.5 requires that there be a
separate basis for jurisdiction for each cause of action: In any action brought in reliance upon
jurisdictional grounds stated in subdivisions
(2) to (10) of G.S. 1-75.4 there cannot be
joined in the same action any other claim or
cause against the defendant unless grounds
exist under G.S. 1-75.4 for personal
jurisdiction over the defendant as to the
claim or cause to be joined.
See also Godwin v. Walls, 118 N.C. App. 341, 352, 455 S.E.2d 473,
482 (1995) (holding that although plaintiffs met their burden of
establishing personal jurisdiction over their claims for negligent
infliction of emotional distress under N.C. Gen. Stat. § 1-75.4(4),
the long-arm statute did not confer personal jurisdiction over
plaintiffs' claims for wrongful death and property damage).
I first consider N.C. Gen. Stat. § 1-75.4(4) as a basis for
long-arm jurisdiction. This Court has previously held that "an
action for alienation of affections and for criminal conversation
is an action
ex delicto and involves 'injury to person or property'
within the contemplation of [§ 1-75.4(3)]."
Golding v. Taylor, 19
N.C. App. 245, 247, 198 S.E.2d 478, 479 (quoting N.C. Gen. Stat. §
1-75.4),
cert. denied, 284 N.C. 121, 199 S.E.2d 659 (1973). That
subsection, however, only applies if the action is one "claiming
injury to person or property
within this State." N.C. Gen. Stat.
§ 1-75.4(4) (emphasis added). In this case, the record contains
competent evidence that would permit the trial court to find that
Mr. Stann is a resident of South Carolina and that any injury he
suffered occurred outside of this State. While evidence also
exists that would support the opposite conclusion, an appellate
court must presume that the trial court found § 1-75.4(4) to be
inapplicable. N.C. Gen. Stat. § 1-75.4(3), however, governs "injury to
person or property . . .
within or without this State" so long as
it arose out of an act or omission committed by the defendant
within this State. (Emphasis added.) An appellate court must,
therefore, determine whether Mr. Stann's injury from the alleged
alienation of affections and from the alleged criminal conversation
arose out of an act or omission by Mr. Levine in this State.
The elements of an alienation of affections claim are "'(1)
[t]hat [the plaintiff and his or her spouse] were happily married,
and that a genuine love and affection existed between them; (2)
that the love and affection so existing was alienated and
destroyed; [and] (3) that the wrongful and malicious acts of the
defendant[] produced and brought about the loss and alienation of
such love and affection.'"
McCutchen v. McCutchen, 360 N.C. 280,
283, 624 S.E.2d 620, 623 (2006) (alterations in original) (quoting
Litchfield v. Cox, 266 N.C. 622, 623, 146 S.E.2d 641, 641 (1966)).
McCutchen clarified that an alienation claim accrues:
when the wrong is complete. The 'wrong' in an
alienation of affections case is the actual
alienation of the spouse's affections by a
third party. Alienation connotes the
destruction, or serious diminution, of the
love and affection of the plaintiff's spouse
for the plaintiff. This diminution or
destruction often does not happen all at once.
. . . It is only after the diminution or, when
applicable, the destruction of love and
affection is complete that plaintiff's cause
of action accrues . . . .
Id. at 283-84, 624 S.E.2d at 623-24 (internal citations and
quotation marks omitted). Operating under the presumption that the trial court found
facts sufficient to support its conclusion that the exercise of
personal jurisdiction would be improper, I note that the record
contains ample evidence suggesting that the actual alienation of
affections occurred by 31 August 2003. On that date, Ms. Stann
sent Mr. Levine an e-mail indicating she had told Mr. Stann that
she "didn't feel anything for him anymore." Referencing this e-
mail, Mr. Stann stated in an affidavit: "At that point Mr. Levine
had accomplished his mission of ruining my marriage."
The actions causing the "wrong" for purposes of alienation of
affections were e-mails sent by Mr. Levine and telephone calls made
by Mr. Levine since, as of 31 August 2003, no act of sexual
intercourse had occurred and, indeed, Mr. Levine and Ms. Stann had
not even met in person. There is no dispute that all of those acts
of Mr. Levine occurred in Tennessee. Further, at that time, Ms.
Stann was residing in South Carolina, and Mr. Levine's evidence
indicated that he was not specifically directing his communications
to North Carolina. Based on this evidence, the trial court could
properly conclude that no local act occurred with respect to the
claim for alienation of affections.
In contrast, in
Fox v. Gibson, 176 N.C. App. 554, 558-60, 626
S.E.2d 841, 844-45 (2006), this Court recently upheld a trial
court's
denial of a motion to dismiss based on N.C. Gen. Stat. § 1-
75.4(3), in an action alleging alienation of affections, when the
defendant not only sent e-mails and made telephone calls to the
plaintiff's husband, who resided in North Carolina, but also causedthe alienation of affections by engaging in sexual relations in
North Carolina. This Court held that competent evidence existed to
support the trial court's conclusions that "'[t]his action arises
directly out of Defendant's activities within and to the state of
North Carolina'" and, accordingly, § 1-75.4(3) conferred personal
jurisdiction.
Fox, __ N.C. App. at __, 626 S.E.2d at 844.
In this case, the standard of review is controlling. It is
well established that "'[t]he trial court's determination regarding
the existence of grounds for personal jurisdiction is a question of
fact.'"
Eluhu v. Rosenhaus, 159 N.C. App. 355, 357, 583 S.E.2d
707, 710 (2003) (quoting
Adams, Kleemeier, Hagan, Hannah & Fouts,
PLLC v. Jacobs, 158 N.C. App. 376, 379, 581 S.E.2d 798, 801,
rev'd
per curiam on other grounds, 357 N.C. 651, 588 S.E.2d 465 (2003)),
aff'd per curiam, 358 N.C. 372, 595 S.E.2d 146 (2004). In
Fox,
this Court determined that evidence existed to support the trial
court's finding that the plaintiff's injury arose out of a local
act and, therefore, upheld the trial court's determination that
personal jurisdiction existed. In this case, however, the trial
court made a contrary determination. Because the record contains
evidence supporting a conclusion that Mr. Stann's alienation of
affections injury did not arise out of a local act within the
meaning of N.C. Gen. Stat. § 1-75.4(3), I would similarly uphold
the trial court's determination regarding personal jurisdiction.
I would, therefore, hold that the trial court did not err in
dismissing Mr. Stann's claim for alienation of affections based on
a lack of personal jurisdiction. I reach a different conclusion with respect to Mr. Stann's
claim for criminal conversation. The elements of criminal
conversation are (1) "'the actual marriage between the spouses;'"
and (2) "'sexual intercourse between defendant and the plaintiff's
spouse during the coverture.'"
Johnson v. Pearce, 148 N.C. App.
199, 200-01, 557 S.E.2d 189, 190 (2001) (quoting
Brown v. Hurley,
124 N.C. App. 377, 380, 477 S.E.2d 234, 237 (1996)). Because the
cut-off date for criminal conversation is the date of absolute
divorce, this Court has held "that post-separation conduct is
sufficient to establish a claim for criminal conversation."
Id. at
201, 557 S.E.2d at 191.
Here, Mr. Levine's answer to the complaint acknowledges that
sexual intercourse occurred between Mr. Levine and Ms. Stann in
North Carolina about ten days after the Stanns' separation in
September 2003. Mr. Stann's affidavit, purporting to cite
interrogatory answers from Mr. Levine that are not before this
Court, also lists sexual encounters in North Carolina in October
2003, February 2004, and March 2004. In short, the evidence in the
record establishes that acts of sexual intercourse that could
constitute criminal conversation occurred in North Carolina. Since
Mr. Stann claims injury from those acts of criminal conversation,
the record establishes the existence of an "injury to person . . .
within or without this State arising out of an act . . .
within
this State by the defendant." N.C. Gen. Stat. § 1-75.4(3)
(emphasis added). Mr. Stann's claim for criminal conversation,
therefore, falls within North Carolina's long-arm statute. C.
Minimum Contacts
Because a basis for jurisdiction exists under the long-arm
statute, I next examine whether the exercise of long-arm
jurisdiction would violate Mr. Levine's due process rights. To
satisfy the requirements of the due process clause, there must
exist "'certain minimum contacts [between the non-resident
defendant and the forum] such that the maintenance of the suit does
not offend traditional notions of fair play and substantial
justice.'"
Tom Togs, 318 N.C. at 365, 348 S.E.2d at 786
(alteration in original) (quoting
International Shoe Co. v.
Washington, 326 U.S. 310, 316, 90 L. Ed. 2d 95, 102, 66 S. Ct. 154,
158 (1945)).
In cases that "arise from or are related to defendant's
contacts with the forum, a court is said to exercise 'specific
jurisdiction' over the defendant."
Bruggeman, 138 N.C. App. at
617, 532 S.E.2d at 219. When, however, a defendant's contacts with
the state are not related to the suit, "an application of the
doctrine of 'general jurisdiction' is appropriate."
Id. Under
that doctrine, "'jurisdiction may be asserted even if the cause of
action is unrelated to defendant's activities in the forum as long
as there are sufficient continuous and systematic contacts between
defendant and the forum state.'"
Id. (quoting
Fraser v.
Littlejohn, 96 N.C. App. 377, 383, 386 S.E.2d 230, 234 (1989)).
Mr. Stann does not make any argument as to general
jurisdiction on appeal. Mr. Levine's affidavit indicates that
although he has traveled through our State, he is not and has neverbeen a resident of North Carolina, nor has he ever owned property
or conducted business here. The trial court was entitled to
conclude that Mr. Levine lacked sufficient continuous and
systematic contacts necessary for the exercise of general
jurisdiction.
Id. at 618, 532 S.E.2d at 219 (holding that "mere
ownership of property in North Carolina is not sufficient to
establish the necessary minimum contacts" for purposes of general
jurisdiction).
See also Fraser, 96 N.C. App. at 383, 386 S.E.2d at
234 (noting that the "activity by defendant must be connected to
the forum state in such a way that defendant could reasonably
anticipate being brought into court there").
With respect to specific jurisdiction, "the relationship among
the defendant, the forum state, and the cause of action is the
essential foundation for the exercise of
in personam jurisdiction."
Tom Togs, 318 N.C. at 366, 348 S.E.2d at 786. Our courts typically
look at the following factors in determining whether minimum
contacts exist: (1) the quantity of the contacts, (2) the nature
and quality of the contacts, (3) the source and connection of the
cause of action to the contacts, (4) the interest of the forum
state, and (5) the convenience to the parties.
Bruggeman, 138 N.C.
App. at 617, 532 S.E.2d at 219. These factors are not to be
applied mechanically, but rather, the court must weigh the factors
and determine what is fair and reasonable to both parties.
Phoenix
Am. Corp. v. Brissey, 46 N.C. App. 527, 531, 265 S.E.2d 476, 479
(1980).
See also B.F. Goodrich Co. v. Tire King of Greensboro,
Inc., 80 N.C. App. 129, 132, 341 S.E.2d 65, 67 (1986) (holding thatno single factor controls and that all factors "must be weighed in
light of fundamental fairness and the circumstances of the case").
Here, the precise quantity of contacts is not clear, although
Mr. and Ms. Stann's affidavits both indicate that Ms. Stann and Mr.
Levine met and engaged in sexual intercourse in Asheville, North
Carolina approximately ten days after the Stanns' separation. In
addition, Mr. Stann's evidence also indicates _ and Mr. Levine
apparently does not dispute _ that additional sexual liaisons
occurred in North Carolina during the fall of 2003 and winter and
spring of 2004.
With respect to the nature and quality of the contacts, our
courts have held that contacts may amount to the defendant having
"'purposefully avail[ed] [him]self of the privilege of conducting
activities in the State,'"
Havey v. Valentine, 172 N.C. App. 812,
815, 616 S.E.2d 642, 647 (2005) (quoting
ALS Scan, Inc. v. Digital
Servs. Consultants, 239 F.3d 707, 712 (4th Cir. 2002)), when "'the
defendant has taken deliberate action within the forum state . . .
.'"
Id. (quoting
Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir.
1995)). Contacts that are "'isolated' or 'sporadic' may support
specific jurisdiction if they create a 'substantial connection'
with the forum . . . ."
Id. (quoting
Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 475, 85 L. Ed. 2d 528, 542, 105 S. Ct.
2174, 2183 (1985)). Nevertheless, "the contacts must be more than
random, fortuitous, or attenuated."
Id. In assessing contacts, we
look only at those made by the defendant and not those of others
related to the case.
Id. at 818, 616 S.E.2d at 648. I would hold that Mr. Levine's contacts, in which he traveled
from Tennessee to North Carolina to meet Ms. Stann, necessarily
constitute deliberate actions. They are not the "random,
fortuitous, or attenuated" actions described in
Havey.
See id. at
817, 616 S.E.2d at 648 (holding that the availability of defendant
corporation's "informational, passive website" in North Carolina is
not enough contact for purposeful availment).
The relationship of Mr. Levine's actions in North Carolina to
the criminal conversation claim is readily apparent. Any instance
of "'sexual intercourse between defendant and the plaintiff's
spouse'" prior to absolute divorce gives rise to the tort of
criminal conversation.
Johnson, 148 N.C. App. at 200, 557 S.E.2d
at 190 (quoting
Brown, 124 N.C. App. at 380, 477 S.E.2d at 237).
The present claim of criminal conversation thus necessarily arises
from Mr. Levine's conduct with Mr. Stann's spouse in North
Carolina.
The next factor _ the interest of North Carolina _ is more
difficult. In
Eluhu, this Court observed that although North
Carolina has an interest in providing a forum for actions based on
torts in North Carolina, that interest is less significant when
neither the plaintiff nor the defendant is a resident of North
Carolina. 159 N.C. App. at 360, 583 S.E.2d at 711. Under our
standard of review, we must presume the trial judge found that Mr.
Stann was, during the pertinent events, in fact a resident of South
Carolina. Under those circumstances, as in
Eluhu, "plaintiff's
decision to sue defendant in North Carolina smacks of forum-shopping,"
id., since both South Carolina, Mr. Stann's residence,
and Tennessee, Mr. Levine's residence, have abolished the actions
of alienation of affections and criminal conversation.
Lastly, with respect to the convenience of the parties,
defending a suit in North Carolina would be somewhat inconvenient
to Mr. Levine, but our courts have found less inconvenience when,
as here, the defendant lives in a neighboring state.
Cooper v.
Shealy, 140 N.C. App. 729, 736, 537 S.E.2d 854, 858 (2000). Mr.
Stann's law office is in Gastonia, North Carolina, while Ms. Stann
lives and works in Salisbury, North Carolina. Under similar facts,
our courts have concluded that this factor weighed in favor of
jurisdiction in North Carolina.
See Fox, 176 N.C. App. at 560, 626
S.E.2d at 845;
Cooper, 140 N.C. App. at 735-36, 537 S.E.2d at 858.
In sum, Mr. Levine had several, deliberate contacts with North
Carolina that directly gave rise to Mr. Stann's criminal
conversation cause of action. In addition, litigation in this
State would not substantially inconvenience any of the parties.
The only factor weighing against jurisdiction is the possibly
tenuous interest of the State in providing a forum for Mr. Stann's
claims. Given the other factors, however, I would conclude that
Mr. Levine had sufficient minimum contacts to support jurisdiction
with respect to the criminal conversation claim.
Compare Eluhu,
159 N.C. App. at 360-61, 583 S.E.2d at 711-12 (affirming grant of
motion to dismiss when the evidence disclosed little, if any,
connection between defendant's contacts with North Carolina and
plaintiff's cause of action; plaintiff appeared to be forumshopping; litigation would be inconvenient for defendant, who was
a resident of California; and plaintiff, a resident of Tennessee,
had no claim that North Carolina should provide a forum)
with Fox,
__ N.C. App. at __, 626 S.E.2d at 845 (holding that trial court
properly concluded minimum contacts existed when defendant had
numerous telephone conversations with plaintiff's husband, a
resident of North Carolina, along with e-mail messages and sexual
relations; there was a direct relationship between plaintiff's
injuries and defendant's contacts; plaintiff, a resident of North
Carolina, could not bring suit in defendant's home state because of
abolition of the causes of action; and defendant, although residing
in Georgia, would have only a minimal travel burden).
While I acknowledge that unlike in
Fox, the holding that I
would reach would reverse the trial court, I am unable to conclude,
given the significance of Mr. Levine's North Carolina contacts to
Mr. Stann's claim, that the record's evidence supports a finding of
a lack of minimum contacts. I would, therefore, hold that the
trial court erred in dismissing Mr. Stann's criminal conversation
claim.
Conclusion
This appeal presents difficult questions relating to
controversial causes of action. I would not side-step resolution
of those questions solely because the appellant's counsel _ like
the appellee's counsel _ has been somewhat casual in compliance
with the Appellate Rules. Our job is to correct errors by thetrial court. We are not doing that job when we dismiss appeals for
non-substantive rules violations.
Footnote: 1