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WILLIAM LAWSON BROWN, III
v.
MARK P. ELLIS
On discretionary review pursuant to N.C.G.S. § 7A-31 of
a unanimous decision of the Court of Appeals, 184 N.C. App. 547,
646 S.E.2d 408 (2007), vacating a judgment dated 2 February 2005
entered by Judge Melzer A. Morgan Jr. in Superior Court, Guilford
County. Heard in the Supreme Court 31 March 2009.
Wyrick Robbins Yates & Ponton LLP, by K. Edward Greene
and Tobias S. Hampson; and Nix and Cecil, by Lee M.
Cecil, for plaintiff-appellant.
Forman Rossabi Black, P.A., by T. Keith Black and
William F. Patterson, Jr., for defendant-appellee.
PER CURIAM.
The issue on appeal is whether plaintiff alleged
sufficient facts in his complaint to support the trial court's
determination that personal jurisdiction over defendant exists
under North Carolina's long-arm statute. We conclude the
allegations set forth in the complaint permit the exercise of
personal jurisdiction over defendant pursuant to N.C.G.S. § 1-
75.4(4)(a), and we therefore reverse and remand this case to the
North Carolina Court of Appeals.
Plaintiff filed his verified complaint in Superior
Court, Guilford County, alleging causes of action against
defendant for alienation of affection and criminal conversation. In his complaint, plaintiff alleged he resided in Guilford
County, North Carolina, with his wife and daughter, and that
defendant resided in Orange County, California. According to the
complaint, plaintiff's wife and defendant were both employed by
the same parent company and worked together on numerous
occasions. Plaintiff alleged defendant willfully alienated the
affections of plaintiff's wife by, among other actions,
initiating frequent and inappropriate, and unnecessary telephone
and e-mail conversations with [plaintiff's wife] on an almost
daily basis. The telephone conversations between defendant and
plaintiff's wife often occurred in the presence of plaintiff and
his minor child and involved discussions of defendant's sexual
and romantic relationship with plaintiff's spouse. Plaintiff
alleged that through numerous telephone calls and e-mails to
plaintiff's spouse, [defendant] has arranged to meet, and has met
with plaintiff's spouse on numerous occasions outside the State
of North Carolina, under the pretense of business-related
travel.
The complaint further alleged that plaintiff's wife and
defendant committed adultery during these business trips, which
further alienated and destroyed the marital relationship between
plaintiff and his wife. In support of his complaint, plaintiff
submitted an affidavit alleging that the majority of defendant's
conduct which constitutes an alienation of affections occurred
within the jurisdiction of North Carolina and that [e]vidence
as to the frequent electronic and telephonic contact betweendefendant and plaintiff's spouse can be established through
records and witnesses located in the State of North Carolina.
Defendant moved for dismissal pursuant to Civil
Procedure Rule 12(b)(2) on the ground that no personal
jurisdiction existed. Defendant submitted an affidavit in
support of his motion to dismiss stating he had never set foot
in the State of North Carolina. Defendant averred that he
communicated with plaintiff's wife via telephone and electronic
mail, but characterized these conversations as work related
with the normal pleasantries associated with a friendly working
relationship.
Upon reviewing plaintiff's verified complaint, as well
as the affidavits filed by plaintiff and defendant, the trial
court denied defendant's motion to dismiss, finding that personal
jurisdiction over defendant existed and that the exercise of
personal jurisdiction did not violate due process. Defendant did
not immediately appeal the denial of his motion to dismiss.
The case continued to trial. Upon hearing the
evidence, the jury determined that defendant was liable to
plaintiff for alienation of affections and awarded plaintiff
compensatory and punitive damages. Defendant appealed to the
Court of Appeals, which concluded that North Carolina could not
exercise personal jurisdiction over defendant because, according
to the Court of Appeals, there was no evidence that defendant
solicited plaintiff's wife while she was in North Carolina.
Brown v. Ellis, 184 N.C. App. 547, 549, 646 S.E.2d 408, 411
(2007). In light of its disposition of the case, the Court ofAppeals declined to reach the additional issues presented on
appeal by defendant, including his constitutional argument that
exercise of personal jurisdiction over him would violate due
process of law. Id. at 550, 646 S.E.2d at 411. This Court
allowed plaintiff's petition for discretionary review to review
the decision.
To ascertain whether North Carolina may assert personal
jurisdiction over a nonresident defendant, we employ a two-step
analysis. Jurisdiction over the action must first be authorized
by N.C.G.S. § 1-75.4. Skinner v. Preferred Credit, 361 N.C. 114,
119, 638 S.E.2d 203, 208 (2006) (citing Dillon v. Numismatic
Funding Corp., 291 N.C. 674, 675, 231 S.E.2d 629, 630 (1977)).
Second, if the long-arm statute permits consideration of the
action, exercise of jurisdiction must not violate the Due Process
Clause of the Fourteenth Amendment to the U.S. Constitution.
Id. In the instant case, the Court of Appeals determined the
trial court erred in concluding that jurisdiction was authorized
pursuant to N.C.G.S. § 1-75.4. In light of this determination,
consideration of the second step in the analysis--that of due
process--was unnecessary, and the Court of Appeals declined to
address the issue.
Personal jurisdiction may properly be asserted under
our long-arm statute
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 . . . [s]olicitation or
services activities were carried onwithin this State by or on behalf
of the defendant.
N.C.G.S. § 1-75.4(4)(a) (2007).
In the instant case, defendant argues the complaint
failed to allege that plaintiff's wife was in North Carolina at
the time she received defendant's telephone calls and e-mail.
The Court of Appeals agreed with defendant, concluding there was
no evidence that defendant solicited plaintiff's wife while she
was in North Carolina. Brown, 184 N.C. App. at 549, 646 S.E.2d
at 411. We believe this reading of plaintiff's complaint to be
overly strict. Plaintiff alleged that he resided in Guilford
County with his wife and daughter and that defendant initiat[ed]
frequent and inappropriate, and unnecessary telephone and e-mail
conversations with [plaintiff's wife] on an almost daily basis.
According to the complaint, defendant and plaintiff's wife
discussed their sexual and romantic relationship in the
presence of plaintiff and his minor child. In his supporting
affidavit, plaintiff specifically averred that defendant's
alienation of his wife's affections occurred within the
jurisdiction of North Carolina. Although the complaint does not
specifically state that plaintiff's wife was physically located
in North Carolina during the telephonic and e-mail
communications, that fact is nevertheless apparent from the
complaint. In his own affidavit, defendant never denied that he
telephoned or e-mailed plaintiff's spouse in North Carolina;
rather, he merely characterized the conversations as work
related. We conclude plaintiff's complaint alleges sufficient
facts to authorize the exercise of personal jurisdiction overdefendant pursuant to N.C.G.S. § 1-75.4(4)(a). We therefore
reverse the Court of Appeals and remand this case to that court
for consideration of defendant's remaining issues.
REVERSED AND REMANDED.
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