Opinion
No. COA12–492.
2012-12-4
Daniel Monroe SMITH, Plaintiff, v. Jerry Mason DRUMM, Defendant.
Arnold & Smith, PLLC, by Matthew R. Arnold, for defendant-appellant. James L. Epperson for plaintiff-appellee.
Appeal by defendant from order entered 17 October 2011 by Judge H. William Constangy in Mecklenburg County Superior Court. Heard in the Court of Appeals 9 October 2011. Arnold & Smith, PLLC, by Matthew R. Arnold, for defendant-appellant. James L. Epperson for plaintiff-appellee.
BRYANT, Judge.
Where the allegations in the complaint provide sufficient grounds to exercise personal jurisdiction over a non-resident by a North Carolina court pursuant to N.C. Gen.Stat. 1–75.4 and the exercise of such does not offend due process, we find no error in the trial court's denial of defendant's motion to dismiss.
Plaintiff filed an amended complaint (the original complaint was filed 12 October 2010) for alienation of affection and criminal conversation on 4 April 2011 in Mecklenburg County Superior Court. Plaintiff and his wife were residents of South Carolina. At the time the complaint was filed, defendant was also a resident of South Carolina. In his complaint, plaintiff alleges that at all times relevant to his allegations, defendant was a resident of North Carolina.
Plaintiff and his wife had been together for seventeen years, encompassing five years of marriage. Forty years earlier, defendant and plaintiff's wife had dated in high school and had been engaged to one another. Plaintiff alleges that defendant began soliciting plaintiff's wife by telephone and that beginning in March 2009, when plaintiff's wife visited her mother in a Mecklenburg County hospital, defendant met with plaintiff's wife on a near weekly basis, engaging in sexual intercourse. Defendant had a marital residence in Charlotte. In June 2009, plaintiff's wife confessed the affair. In July 2009, defendant moved out of his marital residence in Charlotte and moved into a residence in Clover, South Carolina. At the time the complaint was filed, plaintiff and his wife were divorced.
On 11 May 2011, defendant filed a motion to dismiss the complaint pursuant to the following Rules of Civil Procedure: Rule 12(b)(1)—subject matter jurisdiction; Rule 12(b)(2) personal jurisdiction; and Rule 12(b)(6)—failure to state a claim upon which relief could be granted. The trial court entered a 17 October 2011 order denying defendant's motion. Defendant appeals.
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We first consider whether defendant's appeal is properly before this Court.
Pursuant to section 1–277(b), “[a]ny interested party shall have the right of immediate appeal from an adverse ruling as to the jurisdiction of the court over the person or property of the defendant....” N.C. Gen.Stat. § 1–277(b) (2011); see also Cambridge Homes of N.C. Ltd. P'ship v. Hyundai Constr., Inc., 194 N.C.App. 407, 670 S.E.2d 290 (2008) (hearing the appeal from the denial of a motion to dismiss made pursuant to Rule 12(b)(2)).
“A challenge to the court's jurisdiction over the person, Rule 12(b)(2), concerns whether the court has power, assuming it is properly invoked, to require the defendant to come into court to adjudicate the claim, a test which has come to be known as ‘minimum contacts.’ “ Love v. Moore, 305 N.C. 575, 579, 291 S.E.2d 141, 145 (1982). “[General Statutes, section 1–277(b) ] allows immediate appeals concerning only ‘minimum contacts' questions....” Styleco, Inc. v. Stoutco, Inc., 62 N.C.App. 525, 526, 302 S.E.2d 888, 889 (1983) (citation omitted); compare Love, 305 N.C. at 579, 291 S.E.2d at 145 (“Challenges to sufficiency of process and service do not concern the state's fundamental power to bring a defendant before its courts for trial....”).
On appeal, defendant questions whether the trial court's failure to grant his Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction was error because plaintiff does not currently reside in North Carolina; defendant has little to no contacts with the state of North Carolina; and the trial court's denial of defendant's motion offends the public policy of this State. As these issues relate to the court's power to require defendant to come into court to adjudicate the claim, defendant's appeal is properly before this Court. SeeN.C.G.S. § 1–277(b); Styleco, Inc., 62 N.C.App. at 526, 302 S.E.2d at 889.
Analysis
Defendant argues that the trial court erred in denying his motion to dismiss pursuant to Rule 12(b)(2) because North Carolina courts lack personal jurisdiction over him. We disagree.
“The determination of whether jurisdiction is statutorily and constitutionally permissible due to contact with the forum is a question of fact.” Cooper v. Shealy, 140 N.C.App. 729, 732, 537 S.E.2d 854, 856 (2000) (citation omitted). “[T]he standard of review of an order determining personal jurisdiction is whether the findings of fact by the trial court are supported by competent evidence in the record; if so, this Court must affirm the order of the trial court.” Id. However, whereas here, the trial court makes no findings of fact, we note that “Rule 52(a)(2) of the Rules of Civil Procedure [provides that] ... the trial court is not required to make specific findings of fact unless requested by a party. When the record contains no findings of fact, it is presumed that the court on proper evidence found facts to support its judgment.” Birtha v. Stonemor, N.C., LLC, ––– N.C.App. ––––, ––––, 727 S.E.2d 1, 5 (2012) (citation omitted).
Typically, the parties will present personal jurisdiction issues in one of three procedural postures: (1) the defendant makes a motion to dismiss without submitting any opposing evidence; (2) the defendant supports its motion to dismiss with affidavits, but the plaintiff does not file any opposing evidence; or (3) both the defendant and the plaintiff submit affidavits addressing the personal jurisdiction issues.
Bauer v. Douglas Aquatics, Inc., 207 N.C.App. 65, 68, 698 S.E.2d 757, 761 (2010) (citation omitted). “In the first category of motions, when neither party submits evidence, the allegations of the complaint must disclose jurisdiction although the particulars of jurisdiction need not be alleged.” Banc of Am. Secs. LLC v. Evergreen Int'l Aviation, Inc., 169 N.C.App. 690, 693, 611 S.E.2d 179, 182 (2005) (citation and quotations omitted).
To determine whether a nonresident defendant is subject to personal jurisdiction in North Carolina, our Court employs a two-step analysis. First, jurisdiction over the action must be authorized by N.C.G.S. § 1–75.4, our state's long-arm statute. 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.
Skinner v. Preferred Credit, 361 N.C. 114, 119, 638 S.E.2d 203, 208 (2006) (citations omitted). Grounds for personal jurisdiction are generally set out under N.C. Gen.Stat. § 1–75.4. “A court of this State ... has jurisdiction over a person ... [i]n any action claiming injury to person or property ... within or without this State arising out of an act or omission within this State by the defendant.” N.C. Gen.Stat. § 1–75.4(3) (2011). “We recognize that the statute requires only that the action ‘claim’ injury to person or property within this state in order to establish personal jurisdiction.” Cooper, 140 N.C.App. at 732, 537 S.E.2d at 856 (citation omitted). Plaintiff claims damages from defendant based on allegations of alienation of affection and criminal conversation. See id. at 733, 537 S.E.2d at 857 (“[A]ctions for alienation of affections and criminal conversation constitute ‘injury to person or property’ as denoted by N.C. Gen.Stat. § 1–75.4(3).”).
A
Defendant contends that he did not cause injury to a North Carolina resident. In his brief to this Court, defendant makes the following argument:
Plaintiff–Appellee does not allege actual injury to his marriage occurring in the state of North Carolina ...; rather, Plaintiff-appellee merely states that the allegations complained of occurred or originated in North Carolina. Moreover, Plaintiff–Appellee does not allege any instances of sexual conduct occurring in North Carolina ... in order to meet his burden of proof.
(Citations omitted).
To withstand a motion to dismiss, a claim for alienation of affection must allege “(1) plaintiff and [his wife] were happily married and a genuine love and affection existed between them; (2) the love and affection was alienated and destroyed; and (3) the wrongful and malicious acts of [the] defendant produced the alienation of affections.” Jones v. Skelley, 195 N.C.App. 500, 507, 673 S.E.2d 385, 390 (2009). “The elements of the tort of criminal conversation are the actual marriage between the spouses and sexual intercourse between [the] defendant and the plaintiff's spouse during the coverture.” Nunn v. Allen, 154 N.C.App. 523, 535, 574 S.E.2d 35, 43 (2002) (citation omitted).
In his amended complaint, plaintiff makes the following allegations:
7. Prior to the deliberate interference of Defendant, the marriage of the Plaintiff and his wife was a close and loving one, and genuine love and affection existed between them.
...
9. Defendant engaged in acts of sexual intercourse with Plaintiff's wife....
10.... Plaintiff confronted his wife about his suspicions and she admitted the affair to Plaintiff.... Plaintiff's wife had been visiting her mother in the hospital in Mecklenburg County, North Carolina.
11. Defendant had been trying to find Plaintiff's wife for some time and [sic] when he discovered her whereabouts. Thereafter, he began a series of telephone calls originating from his residence and cell phone in North Carolina and visits with Plaintiff's wife which took place in North Carolina. Those contacts began with Plaintiff's wife at the hospital while Plaintiff's wife was visiting with her ill mother. Thereafter, Defendant and Plaintiff's wife carried on their relationship elsewhere in North Carolina.
...
14. As a direct and proximate result of the actions of Defendant, the genuine love and affection between Plaintiff and his wife was lost and they separated on or about June 6, 2009.
We hold the allegations of the amended complaint satisfy the requirement set forth in our long-arm statute that plaintiff claim an injury to his marriage—here, recognized by the torts alienation of affection and criminal conversation—arising out of defendant's conduct within this State. SeeN.C.G.S. § 1–75.4(3); Cooper, 140 N.C.App. at 732, 537 S.E.2d at 856. Defendant's argument is overruled.
Defendant next contends that as a resident of South Carolina, he has little contact with the state of North Carolina, and, as such, the exercise of personal jurisdiction over him by North Carolina courts would offend the traditional notions of fair play and substantial justice.
“North Carolina's long-arm statute, N.C. Gen.Stat. § 1–75.4, was enacted to make available to the North Carolina courts the full jurisdictional powers permissible under federal due process.” Lang v. Lang, 157 N.C.App. 703, 708, 579 S.E.2d 919, 922 (2003) (citation omitted). “[I]f 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.” Brown v. Ellis, 363 N.C. 360, 363, 678 S.E.2d 222, 223 (2009) (per curiam) (citation omitted).
“In order to determine whether the exercise of personal jurisdiction comports with due process, the trial court must evaluate whether the defendant has certain minimum contacts with the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Eluhu v. Rosenhaus, 159 N.C.App. 355, 358, 583 S.E.2d 707, 710 (2003) (citation, quotations, and brackets omitted).
The United States Supreme Court has recognized two bases for finding sufficient minimum contacts: specific jurisdiction and general jurisdiction. Specific jurisdiction exists when the controversy arises out of the defendant's contacts with the forum state. General jurisdiction may be asserted over a defendant 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.
Lab. Corp. of Am. Holdings v. Caccuro, ––– N.C.App. ––––, ––––, 712 S.E.2d 696, 701 (2011) (citations omitted).
[T] he court looks at several factors, including: (1) the quantity of the contacts; (2) the nature and quality of the contacts; (3) the source and connection of the cause of action with those contacts; (4) the interest of the forum state; and (5) the convenience to the parties.
No single factor controls, but all factors must be weighed in light of fundamental fairness and the circumstances of the case.
Rossetto USA, Inc. v. Greensky Fin., LLC, 191 N.C.App. 196, 200, 662 S.E.2d 909, 913 (2008) (citations and quotations omitted).
Here, the complaint provides the following allegations regarding defendant's contact with this State:
2. Upon information and belief, Defendant is a citizen and resident of Fort Mill [,] South Carolina. At the time of the occurrence of the allegations herein, the Defendant was a citizen and resident of Mecklenburg County, North Carolina.
...
25. On July 8, 2009, Defendant moved out of the marital residence in Charlotte, North Carolina....
26. Defendant moved into an apartment with Plaintiff's wife in Clover, South Carolina
As previously stated, plaintiff's allegations also provide that his claims for alienation of affection and criminal conversation arose out of defendant's conduct in this state, while defendant was a resident of this state. The allegations provide sufficient minimum contacts with the state of North Carolina to convey specific jurisdiction over defendant by a North Carolina court, as well as general jurisdiction on the basis of his residency. Further, as the alleged conduct occurred in North Carolina, that defendant be required to come into the courts of the State to adjudicate plaintiff's claims does not offend traditional notions of fair play and substantial justice. We overrule defendant's argument.
C
Lastly, defendant argues that the exercise of personal jurisdiction over him by a North Carolina court would offend this State's public policy. Defendant contends that regardless of where the conduct occurred, the marriage which was injured was one maintained in South Carolina where the torts of alienation of affection and criminal conversation have been abolished. Defendant contends that by filing his complaint in North Carolina, plaintiff's action amounts to forum shopping. Defendant cites Bell v. Mozley, ––– N.C.App. ––––, 716 S.E.2d 868 (2011), and Eluhu, 159 N.C.App. 355, 583 S.E.2d 707, in support of his argument.
In both Bell and Eluhu, this Court held that a lack of minimum contacts with North Carolina precluded the exercise of personal jurisdiction. In both cases, the defendants resided in another state, and the plaintiffs failed to allege in their complaints and affidavits any nexus between North Carolina and the conduct giving rise to the complaints of alienation of affection and criminal conversation. The same cannot be said for the allegations before us.
In contrast to Bell and Eluhu, the allegations in the instant case are sufficient to find a nexus between the State of North Carolina and the conduct giving rise to the claims in plaintiff's complaint so as to not preclude the exercise of personal jurisdiction over defendant, now a South Carolina resident, by a North Carolina court. Defendant's argument is overruled.
Accordingly, we find no error in the trial court's denial of defendant's motion to dismiss and remand the matter for further proceedings in the trial court.
No error. Judges McGEE and THIGPEN concur.
Report per Rule 30(e).