Willis v. Willis , 776 S.E.2d 364 ( 2015 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance with
the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA14-1090
Filed: 21 July 2015
Moore County, No. 13 CVS 1337
ZONA R. WILLIS, Plaintiff,
v.
MARILYN A. WILLIS, Defendant.
Appeal by defendant from orders entered 19 June 2014 by Judge Beecher R.
Gray in Moore County Superior Court. Heard in the Court of Appeals 8 April 2015.
Wyrick Robbins Yates & Ponton LLP, by Tobias S. Hampson and K. Edward
Greene, for plaintiff-appellee.
Doster, Post, Silverman, Foushee, Post & Patton, by Jonathan Silverman, for
defendant-appellant.
CALABRIA, Judge.
Marilyn A. Willis (“defendant”) appeals from an order denying her motion to
dismiss Zona R. Willis’s (“plaintiff”) complaint alleging causes of action for alienation
of affections, criminal conversation, and intentional infliction of emotional distress,
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Opinion of the Court
as well as an order granting plaintiff’s motion to compel discovery due to lack of
personal jurisdiction. We affirm.
I. Background
Plaintiff married Thomas Willis (“Tom”) on 11 January 1974. On 30 December
2011, Tom informed plaintiff that he was not returning home, and subsequently
requested a divorce. Plaintiff discovered that Tom had been having an affair with
defendant, a resident of Charleston, South Carolina, during the marriage. During
the divorce proceedings, the trial court determined Tom and plaintiff’s date of
separation was 31 December 2011. On 2 January 2012, defendant updated her
Facebook relationship status from “single” to “engaged.” Plaintiff and Tom were
divorced on 7 February 2013. Tom and defendant were married in Laurinburg, North
Carolina on 9 February 2013, two days after plaintiff and Tom were divorced.
On 14 November 2013, plaintiff filed a complaint against defendant, alleging,
inter alia, that prior to 30 December 2011, plaintiff and Tom had a good and loving
marriage until defendant willfully and intentionally seduced, enticed, and alienated
Tom’s affections from plaintiff. As a result of defendant’s actions, plaintiff believed
she was entitled to damages for alienation of affections, criminal conversation, and
intentional infliction of emotional distress. Defendant was subsequently served with
plaintiff’s first set of interrogatories and request for production of documents. On 16
December 2013, defendant filed a motion to dismiss pursuant to Rules 12(b)(2), (3),
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and (4) for lack of personal jurisdiction and failure to be personally served with
process. On 27 February 2014, plaintiff filed a motion to compel discovery, since
defendant refused to respond to plaintiff’s discovery requests due to alleged lack of
jurisdiction and improper service of the discovery requests. Subsequently, plaintiff
filed a motion to amend her complaint to include additional allegations to address the
issue of whether defendant had met the minimum contacts test for North Carolina to
exercise personal jurisdiction. The trial court granted plaintiff’s motion to amend her
complaint.
On 19 June 2014, the trial court found that the summons and complaint were
sent to the sheriff in Charleston, South Carolina, and that defendant was properly
served. The trial court concluded that service of the summons and complaint
complied with Rule 4(j)(1a) of the North Carolina Rules of Civil Procedure. The trial
court also concluded that “[d]efendant’s activities [were] sufficient to permit the
exercise of jurisdiction under North Carolina’s long arm statute (NC Gen. Stat. § 1-
75.4 (3) & (4)), in her claims against Defendant for alienation of affections, criminal
conversation, and intentional infliction of emotional distress[,]” and that defendant’s
activities were “sufficient to establish minimum contacts with North Carolina and
comport with due process.” The trial court entered an order denying defendant’s
motion to dismiss, and also entered an order compelling defendant to answer
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plaintiff’s first set of interrogatories and request for production of documents.
Defendant appeals both orders.
II. Personal Jurisdiction
Defendant first argues that the trial court erred in denying her motion to
dismiss. Specifically, defendant contends that the trial court lacked personal
jurisdiction and that the findings were not supported by competent evidence. Since
defendant challenges jurisdiction, she also contends that the exercise of jurisdiction
violates her due process rights. We disagree.
As an initial matter, although defendant’s appeal is interlocutory, it is properly
before us because “motions to dismiss for lack of personal jurisdiction are statutorily
deemed to be immediately appealable.” Fox v. Gibson, 176 N.C. App. 554, 556-57,
626 S.E.2d 841, 843 (2006); see N.C. Gen. Stat. § 1-277(b) (2013) (“Any 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[.]”).
“[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.” Cooper v.
Shealy, 140 N.C. App. 729, 732, 537 S.E.2d 854, 856 (2000) (citation omitted).
The determination of whether jurisdiction is statutorily
and constitutionally permissible due to contact with the
forum is a question of fact. To resolve a question of
personal jurisdiction, the court must engage in a two step
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analysis. First, the court must determine if the North
Carolina long-arm statute’s (N.C. Gen. Stat. § 1-75.4)
requirements are met. If so, the court must then determine
whether such an exercise of jurisdiction comports with due
process.
Id. (internal citations omitted).
Pursuant to North Carolina’s long-arm statute, North Carolina courts permit
the exercise of personal jurisdiction, inter alia, “[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” or in an action claiming injury to person or
property within North Carolina “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 on within this State by or on behalf of
the defendant[.]” N.C. Gen. Stat. § 1-75.4(3), (4)(a) (2013). In North Carolina, the
long-arm statute requires only
that the action ‘claim’ injury to person or property within
this state in order to establish personal jurisdiction. The
statute does not require there to be evidence of proof of
such an injury. Therefore, in order for plaintiff’s claim for
alienation of affections to withstand defendant’s motion to
dismiss, plaintiff must have alleged in her complaint that:
(1) plaintiff and [her husband] were happily married and a
genuine love and affection existed between them; (2) the
love and affection [between them] was alienated and
destroyed; and (3) the wrongful and malicious acts of
defendant produced the alienation of affections.
Furthermore, for plaintiff’s criminal conversation action to
survive, plaintiff must have alleged that there were sexual
relations between defendant and plaintiff’s husband.
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Cooper, 140 N.C. App. at 732-33, 537 S.E.2d at 856-57 (internal citations and
quotation marks omitted).
Just as the plaintiff in Cooper properly alleged injuries, plaintiff in the instant
case alleged in her amended verified complaint that she and Tom had a good and
loving marriage, a genuine love and affection existed between them, and as a result
of defendant’s actions, the genuine love and affection was destroyed. Plaintiff also
alleged that, beginning in October 2011, defendant’s actions of soliciting plaintiff’s
husband’s affections within North Carolina were intentional, wrongful, and
malicious, alienated Tom’s affections, and led to his abandonment of plaintiff. The
verified amended complaint further alleged that by defendant’s acts of sexual
intercourse with Tom, she engaged in criminal conversation in North Carolina.
The long-arm statute authorizes the exercise of personal jurisdiction over a
non-resident defendant in alienation of affections actions when telephonic or e-mail
communications are carried on within North Carolina. See Brown v. Ellis, 363 N.C.
360, 678 S.E.2d 222 (2009); see Fox, 176 N.C. App. 554, 626 S.E.2d 841. In Brown,
the plaintiff, a resident of North Carolina, alleged in his complaint for alienation of
affections that the defendant, a resident of California, “initiated frequent and
inappropriate, and unnecessary telephone and e-mail conversations with [the
plaintiff’s wife] on an almost daily basis.” 363 N.C. at 363, 678 S.E.2d at 224. The
Supreme Court of North Carolina held that, pursuant to N.C. Gen. Stat. § 1-
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75.4(4)(a), the trial court’s exercise of personal jurisdiction over the defendant was
proper. Id. at 364, 678 S.E.2d at 224.
In Fox, the plaintiff filed a complaint for alienation of affections, in which she
alleged that the defendant, a resident of Georgia, had “enticed [the plaintiff’s]
husband from her and acquired an undue influence over him which was the direct
cause of great marital discord between them and their subsequent separation.” 176
N.C. App. at 556, 626 S.E.2d at 842. In support of her allegations, the plaintiff
produced the affidavit of her estranged husband, in which he stated that he and the
defendant “engaged in numerous telephone conversations while she resided in
Georgia and he resided in North Carolina[,]” and that the defendant “sent e-mail
messages to him in North Carolina from the state of Georgia.” Id. at 556, 626 S.E.2d
at 843. The Fox Court found that there was a direct link between the contacts and
the injuries alleged in the complaint. Id. at 559, 626 S.E.2d at 844. Therefore, both
Courts held that telephonic or e-mail communications carried on within North
Carolina by or on behalf of a party, may be sufficient acts to establish long-arm
jurisdiction.
Although defendant concedes that telephonic communications such as those in
Brown and Fox may be sufficient acts to establish long-arm jurisdiction, defendant
contends that these cases do not apply to her. Defendant contends that the trial
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court’s findings of fact numbers nine and ten are not supported by the evidence. In
finding of fact number nine, the court found:
9. The telephone records of Thomas Willis show Defendant
spoke to him at least one hundred forty (140) times
between October 31, 2011 and December 10, 2011. The
records include telephone calls coming from the Defendant
to the Thomas Willis [sic] in North Carolina on the
following dates: November 10, 2011; November 16, 2011 (2
calls); November 17, 2011 (3 calls); November 19, 2011;
November 20, 2011; November 21, 2011 (4 calls); November
22, 2011 (3 calls); November 23, 2011; November 26, 2011;
December 1, 2011; December 2, 2011; December 9, 2011;
and December 10, 2011. All the calls to Thomas Willis were
received by him while he was a resident of Moore County,
North Carolina. The frequency and the timing of the
telephone calls suggest that they were of a personal nature.
Defendant does not dispute that she and Tom talked on the telephone. Rather, she
disputes the trial court’s characterization of the calls as personal in nature.
Additionally, defendant disputes Tom’s location at the time of the calls. In plaintiff’s
affidavit submitted in response to defendant’s motion to dismiss, plaintiff alleged that
on 31 October 2011, defendant and Tom had a dinner date in Charleston, South
Carolina. Subsequently, defendant’s telephone calls to and from Tom on her home
and cell phone numbers, as documented on Tom’s telephone records, and show at
least one hundred forty (140) calls in the forty (40) days between 31 October 2011 and
10 December 2011. Defendant contends that plaintiff’s affidavit is completely
speculative as to the nature of the calls and demonstrates no personal knowledge as
to the context of the telephonic communications. In addition, defendant claims in her
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affidavit supporting her motion to dismiss that any communications between her and
Tom “prior to December 31, 2011 were platonic in nature concerning childhood times
together . . . and updating one another about our lives.” Since defendant denied in
her affidavit that she had any personal contact with Tom in North Carolina prior to
31 December 2011, and made no effort to argue how “platonic” telephone calls would
be mutually exclusive of a personal nature, the trial court found from her description
of the telephone calls that, contrary to her characterization, the calls were personal
in nature, and not business transactions. The trial court’s finding characterizing the
telephone calls as personal in nature is supported by the evidence.
Defendant also alleged in her affidavit that she was not in North Carolina at
the time she “may have participated in any such communication,” and that Tom
“would have been traveling outside of North Carolina, and in particular in South
Carolina, for business” at that time. However, the trial court found that there were
“telephone calls coming from the Defendant to the Thomas Willis [sic] in North
Carolina[.]” Tom’s phone records indicated that there were several incoming calls
from defendant’s phone numbers between 10 November 2011 and 10 December 2011.
Even though the record before the trial court showed that defendant resided in
Charleston, South Carolina, since the phone records indicated that those incoming
calls occurred while Tom was located in North Carolina, the trial court’s finding that
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defendant called Tom while he was located in North Carolina is supported by the
evidence.
Defendant further contends that the trial court erred in addressing Tom’s
North Carolina residency rather than where he was physically located when he
received the telephone calls. However, this contention simply ignores the remainder
of the trial court’s finding of fact number nine. Finding nine focuses expressly on the
fact that Tom was in North Carolina when he received calls from defendant.
Moreover, the trial court found that Tom remained a North Carolina resident during
this entire time, which this Court has recognized is relevant to personal jurisdiction
analysis. Fox, 176 N.C. App. at 559, 626 S.E.2d at 844 (noting as support for the
assertion of personal jurisdiction, the defendant “engaged in numerous telephone
conversations with [spouse] while he resided in North Carolina”).
In finding of fact number ten, defendant contends that the trial court
“inappropriately focused on post date of separation conduct”:
10. The Defendant admitted, in a deposition taken during
the divorce action between Plaintiff and Thomas Willis, to
visiting Thomas Willis in Pinehurst, North Carolina
“many, many times” and “more than likely” having sex
with him in a condominium Thomas Willis had rented in
Pinehurst.
Defendant is mistaken, however, because “a claim for criminal conversation may be
based solely upon post-separation sexual relations.” Nunn v. Allen, 154 N.C. App.
523, 535, 574 S.E.2d 35, 43 (2002) (citation omitted). Plaintiff and Tom were
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separated on 31 December 2011. In defendant’s deposition, she testified that she had
visited Pinehurst “many, many times,” had visited Tom in Pinehurst at a
condominium he was residing in “once or twice,” and had “more than likely” engaged
in sexual intercourse with Tom at the condominium between March and September
of 2012. In addition, Tom testified in his deposition that he and defendant had begun
sexual relations in March of 2012, shortly after he separated from plaintiff. The trial
court’s finding regarding defendant’s conduct is both appropriate and supported by
the evidence.
Based upon the evidence establishing a direct link between defendant’s
contacts with North Carolina and plaintiff’s injuries caused by defendant, the trial
court’s findings of fact support its conclusion that “[d]efendant’s activities are
sufficient to permit the exercise of jurisdiction under North Carolina’s long arm
statute (NC Gen. Stat. § 1-75.4 (3) & (4)), in [plaintiff’s] claims against Defendant[.]”
We next examine whether the exercise of personal jurisdiction under the
authority of N.C. Gen. Stat. § 1-75.4 violates the due process clause of the Fourteenth
Amendment to the Constitution. “Due process requires that the defendant have
‘minimum contacts’ with the state in order to satisfy ‘traditional notions of fair play
and substantial justice.’” Cooper, 140 N.C. App. at 734, 537 S.E.2d at 857 (quoting
International Shoe Co. v. Washington, 326 U.S. 310, 316, 90 L. Ed. 95, 102 (1945)).
When determining whether defendant’s activities are sufficient to establish
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minimum contacts, the court must consider: “(1) the quantity of the contacts; (2) the
quality and nature of the contacts; (3) the source and connection of the cause of action
to the contacts; (4) the interests of the forum state, and (5) the convenience to the
parties.” Id., 537 S.E.2d at 857-58 (citation omitted). “[T]he court must weigh the
factors and determine what is fair and reasonable to both parties.” Fox, 176 N.C.
App. at 560, 626 S.E.2d at 845.
In the instant case, the trial court considered the quantity, quality, and nature
of the contacts, and found that there were 140 telephone calls between defendant and
Tom between 31 October 2011 and 10 December 2011 while Tom was married to
plaintiff, that several incoming calls were from defendant to Tom that he received in
North Carolina, and that the frequency and timing of the calls suggested that they
were of a personal nature. Additionally, the trial court considered the source and
connection of the contacts. Plaintiff alleged in her complaint that the destruction of
her marriage was the “direct and proximate result” of defendant’s actions, including
the telephone calls. See Cooper, 140 N.C. App. at 735, 537 S.E.2d at 858 (plaintiff’s
allegation that there was a direct relationship between defendant’s contacts with
plaintiff’s husband and the destruction of plaintiff’s marriage was sufficient to
establish the source and connection of the cause of action to the contacts).
Furthermore, our state Supreme Court has recognized the United States
Supreme Court “has also said that for purposes of asserting ‘specific’ jurisdiction, a
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defendant has ‘fair warning’ that [s]he may be sued in a state for injuries arising from
activities that [s]he ‘purposefully directed’ toward that state’s residents.” Tom Togs,
Inc. v. Ben Elias Industries Corp., 318 N.C. 361, 366, 348 S.E.2d 782, 786 (1986)
(citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 85 L. Ed. 2d 528, 540-41
(1985)). Here, plaintiff’s verified amended complaint and affidavit, as well as
defendant’s affidavit, establish that defendant purposefully directed her activities
toward Tom, a North Carolina resident, and a number of these activities involved
telephone communication and occurrences of sexual intercourse with Tom while he
was in the State of North Carolina.
With regard to the interests of the forum state, the trial court concluded “North
Carolina has a strong interest in protecting its citizens from local injury caused by
the tortious conduct of foreign citizens[,]” and that plaintiff could not bring the claims
for alienation of affections and criminal conversation in defendant’s state of residency
because South Carolina had abolished those causes of action.1
The final factor pertains to the convenience of the parties. The trial court
specifically found that, considering the convenience to the parties, most of the
witnesses having personal knowledge of and evidence regarding the impact of
defendant’s relationship with Tom on plaintiff’s marriage would “more than likely be
located in North Carolina.” Additionally, defendant resides in a neighboring state,
1 See S.C. Code Ann. § 15-3-150 (2013) (abolishing the tort of criminal conversation); see Russo
v. Sutton, 310 S.C. 200, 422 S.E.2d 750 (1992) (abolishing the tort of alienation of affections).
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causing a minimal travel burden on the defendant to defend the claims in North
Carolina.
The trial court considered and weighed all five factors and determined that it
was fair and reasonable to both parties that defendant’s activities were sufficient to
establish minimum contacts with North Carolina “in order to satisfy ‘traditional
notions of fair play and substantial justice.’” Cooper, 140 N.C. App. at 734, 537 S.E.2d
at 857 (citation omitted). Therefore, the trial court did not err in denying defendant’s
motion to dismiss for lack of personal jurisdiction, since the trial court properly
determined that the exercise of personal jurisdiction did not violate defendant’s due
process rights.
III. Order to Compel Discovery
Defendant also argues that the trial court erred in entering an order
compelling her to respond to plaintiff’s first set of interrogatories and request for
production of documents. Specifically, defendant contends (1) that the trial court
lacked personal jurisdiction and (2) that plaintiff’s discovery requests are
“unreasonably annoying, oppressive and cause[] undue burden or expense for the
defendant” in that the requests cover “virtually every aspect of the Defendant’s life
for a number of years and her objection to the discovery should have been sustained
and a protective order granted.”
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Since the trial court properly determined that defendant’s activities were
sufficient to permit the exercise of personal jurisdiction over defendant pursuant to
the long-arm statute and due process requirements, defendant’s argument regarding
jurisdiction fails. Additionally, defendant fails to cite any authority to support the
remainder of her argument. Therefore, the remainder of defendant’s argument is
deemed abandoned. See N.C.R. App. P. 28(b)(6) (“Issues not presented in a party’s
brief, or in support of which no reason or argument is stated, will be taken as
abandoned.”).
IV. Conclusion
There was competent evidence in the record to support the trial court’s findings
of fact. The trial court’s findings of fact support its conclusion that “[d]efendant’s
activities are sufficient to permit the exercise of jurisdiction under North Carolina’s
long arm statute (NC Gen. Stat. § 1-75.4 (3) & (4)), in [plaintiff’s] claims against
Defendant for alienation of affections, criminal conversation, and intentional
infliction of emotional distress.” Furthermore, the exercise of personal jurisdiction
does not violate defendant’s due process rights. Therefore, the trial court did not err
in denying defendant’s motion to dismiss and ordering defendant to respond to
plaintiff’s first set of interrogatories and request for production of documents. We
affirm the orders of the trial court.
AFFIRMED.
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Opinion of the Court
Judges STROUD and TYSON concur.
Report per Rule 30(e).
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