Puryear v. Puryear ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
NO. COA13-1014
NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
CAROL MONSOUR PURYEAR,
Plaintiff-Appellee,
v. Wake County
No. 09 CVS 825
BETTY CARLTON PURYEAR (formerly
BEVERLY CARLTON DEVIN),
Defendant-Appellant.
Appeal by Defendant from judgment entered 15 May 2013 by
Judge Carl R. Fox in Superior Court, Wake County. Heard in the
Court of Appeals 18 February 2014.
Gailor Hunt Jenkins Davis & Taylor, P.L.L.C., by Stephanie
T. Jenkins, Jaime H. Davis, and Carrie B. Tortora, for
Plaintiff-Appellee.
Woodruff Law Firm, PA, by Carolyn J. Woodruff and Jessica
S. Bullock, for Defendant-Appellant.
McGEE, Judge.
Carol Monsour Puryear (“Plaintiff”) and Donald Puryear
(“Mr. Puryear”) were married on 23 January 1994 and divorced on
23 January 2009. Mr. Puryear had been engaged to Betty Carlton
Puryear (formerly Beverly Carleton Devin) (“Defendant”) when the
two were in their twenties, but this engagement was broken and
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Mr. Puryear and Defendant did not remain in contact with each
other. Mr. Puryear’s father died and a funeral was held for him
on 17 July 2007. Defendant attended the funeral, talked with
Mr. Puryear, and gave him her telephone number. At some point
not long after 17 July 2007, Mr. Puryear called Defendant, and
they eventually began an affair. According to Plaintiff: “It
was within a month of [Mr. Puryear’s father’s] passing that my
husband had the affair and we parted ways.” Plaintiff and Mr.
Puryear separated in early November 2007 and were divorced on 23
January 2009.
Plaintiff filed her “Complaint for Alienation of Affections
and Criminal Conversation” on 13 January 2009. Defendant
answered Plaintiff’s complaint on 7 May 2009, and included
counterclaims and a motion to dismiss. At the time, Defendant
was represented by Jerry W. Leonard (“Mr. Leonard”). Discovery
began, and Plaintiff filed a motion to compel on 4 September
2009. Plaintiff alleged that Defendant had failed to produce
responses to proper discovery requests, and requested that the
trial court order Defendant to comply, and to pay attorney’s
fees associated with Defendant’s non-compliance. By order
entered 9 February 2010, nunc pro tunc 26 January 2010, the
trial court ordered Defendant to comply with certain discovery
requests, and further ordered that Defendant pay $1,625.00 in
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attorney’s fees. Mr. Leonard filed a motion on 23 February 2010
to withdraw as Defendant’s counsel. Mr. Leonard recited the
following reasons in his motion:
As of the last 60 days, Counsel has not been
able to communicate with the Defendant in
any manner except on January 26, 2010, when
Defendant indicated she would make efforts
to comply with the advice of Counsel and the
Orders of this Court. Despite repeated
efforts to contact Defendant since that
date, Defendant has refused to communicate
with her Counsel regarding important matters
before this Court.
3. On February 22, 2010, Counsel spoke to
one of Defendant's family member[s], who
informed Counsel that Defendant had
indicated that she was not going to
participate in the defense of this action
and the prosecution of her counter claims.
Mr. Leonard moved to withdraw Defendant’s answer, counterclaims,
and motion to dismiss on 18 March 2010. Plaintiff filed a
motion to dispense with a mediated settlement conference, motion
for contempt, and motion for sanctions requiring Defendant to
provide discovery and pay attorney’s fees on 9 April 2010,
alleging Defendant had failed to comply with the prior order, or
to otherwise participate in the lawsuit in any meaningful way.
Plaintiff’s motion to dispense with the mediated settlement
conference was granted by order entered 9 April 2010, in part
because of Defendant’s “unwillingness to participate in this
case[.]” A hearing was conducted on 19 April 2010 to address
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Plaintiff’s motions for contempt and sanctions, and Mr.
Leonard’s motion to withdraw. Mr. Leonard appeared at the
hearing and agreed that, because Defendant had withdrawn her
answer and her counterclaims, entry of default was appropriate
and the matter should go forward solely on the question of
damages. Mr. Leonard also agreed that Plaintiff should receive
attorney’s fees for the extra work Plaintiff’s attorneys had
performed in attempting to obtain discovery from Defendant. At
the end of that hearing, the trial court stated it would allow
Mr. Leonard’s motion to withdraw, and grant Plaintiff’s motions
for contempt and sanctions in the form of a $1,900.00 award for
attorney’s fees. The order allowing Mr. Leonard to withdraw as
Defendant’s counsel was entered on 23 April 2010, and the order
decreeing Defendant in civil contempt and ordering Defendant to
pay $1,900.00 in attorney’s fees was entered on 11 June 2010.
Order for entry of default was entered on 13 September 2010.
Plaintiff filed a motion to show cause on 5 January 2011,
complaining that Defendant had failed to pay the $1,900.00
ordered by the trial court. The trial court entered an order to
appear and show cause on 6 January 2011, and ordered Defendant
to appear on 31 January 2011 and “show cause, if any, why the
[c]ourt should not enter an order holding you in civil or
criminal contempt.” That order further instructed Defendant that
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her “failure to appear as ordered may result in the issuance of
an Order for Arrest.” The hearing was conducted on 31 January
2011, but Defendant did not appear and had no attorney of
record. At that hearing, Plaintiff’s attorney explained,
we have the show cause order and she was not
here, Judge Fox said that, you know, he was
tired of her essentially thumbing her nose
at the Court, and that if she didn't show up
for this hearing, that he was going to issue
an order for her arrest.
Defendant does not include in the record a transcript of the
hearing that resulted in the entry of the 6 January 2011 show
cause order. Defendant apparently had sent a check in the
amount of $1,900.00 to the clerk’s office approximately two
weeks earlier, with no additional correspondence. The clerk’s
office had apparently informed Defendant that she was still
required to attend the hearing. The trial court entered an
order on 2 March 2011 finding Defendant in contempt for “her
failure to comply with the Court’s Order to Show Cause.” The
trial court also ordered that the matter was “reserved for
further Orders of this Court, including [Plaintiff’s] attorney
fees in prosecuting this Contempt Order.” Following the
hearing, on 17 February 2011, but before the entry of the 2
March 2011 order, attorney Mary Gurganus (“Ms. Gurganus”) filed
notice of limited appearance “as counsel of record for Defendant
. . . in her Order to Show Cause regarding Payment of Attorney’s
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Fees.”
A bench trial on damages was held on 14 March 2011.
Plaintiff testified and was represented by counsel. The trial
court made an unchallenged finding of fact that Defendant “came
to the Wake County Courthouse on the day of the [damages
trial,]” but
refused to appear in open court and
represent herself. Instead, . . . Defendant
had an attorney, Mary Gurganus, inquire as
to whether she would be held in contempt for
failing to appear at this hearing. Upon
learning that she could waive her
appearance, . . . Defendant and Ms. Gurganus
left the floor prior to this hearing.
The trial court stated the following at the end of the
proceeding:
I'm offended that given this circumstance
and given how much I stressed the importance
of being here, that she was in this
courthouse, in this courthouse, feet from
that door and chose not to come and sit in
that seat, and say absolutely nothing.
Attorney Carolyn J. Woodruff filed a notice of appearance
on 25 March 2011, stating she was now Defendant’s attorney of
record. Defendant executed an affidavit, which was filed 13
April 2011, in which she affirmed:
11. I was present at the courthouse on the
day of the trial with attorney, Mary
Gurganus, who was acting informally on my
behalf.
12. I was told by Ms. Gurganus that there
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was no point going into the courtroom as
there was nothing I could do on my behalf.
I choose [sic] to follow Ms. Gurganus’ legal
advice and leave the courthouse.
13. I was also under pressure from [Mr.
Puryear] not to defend this action.
The trial court entered its judgment on 15 May 2013,
awarding compensatory damages in the amount of $10,000,000.00
and punitive damages in the amount of $20,000,000.00. Defendant
appeals.
I.
Defendant’s first, second, fourth, and fifth arguments
involve constitutional questions that were not raised at the
trial level. Because Defendant failed to raise these arguments
at trial and therefore obtained no ruling on these issues, they
have not been preserved for appellate review. N.C.R. App. P.
10(a)(1) (2014) (“In order to preserve an issue for appellate
review, a party must have presented to the trial court a timely
request, objection, or motion, stating the specific grounds for
the ruling the party desired the court to make if the specific
grounds were not apparent from the context. It is also
necessary for the complaining party to obtain a ruling upon the
party's request, objection, or motion.”); In re Bullock, __ N.C.
App. __, __, 748 S.E.2d 27, 33, disc. review denied, __ N.C. __,
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752 S.E.2d 149 (2013). Defendant’s first, second, fourth, and
fifth arguments are therefore dismissed.
II.
Defendant’s third argument also involves a constitutional
question not raised at trial, but because Defendant asserts the
trial court lacked subject matter jurisdiction, we address this
argument. Defendant argues that “the laws of alienation of
affection and criminal conversation are unconstitutional” and
thus claims pursuant to these laws could not vest subject matter
jurisdiction in the trial court. In light of North Carolina
Supreme Court precedent, we disagree.
This Court attempted to eliminate causes of action for
alienation of affection and criminal conversation in 1984,
reasoning that causes of action originally predicated on a
wife’s status as property of her husband no longer had a place
in North Carolina jurisprudence. Cannon v. Miller, 71 N.C. App.
460, 322 S.E.2d 780 (1984) (“Cannon I”), vacated, 313 N.C. 324,
327 S.E.2d 888 (1985). By 1985, nearly half of the states in
this country had abolished these “heart-balm” torts. Cannon I,
71 N.C. App. at 478, 322 S.E.2d at 793. On appeal, however, our
Supreme Court did not address the merits of the analysis in
Cannon I. It simply vacated Cannon I because the Court of
Appeals had no authority to overturn prior opinions of our
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Supreme Court. Cannon v. Miller, 313 N.C. 324, 327 S.E.2d 888(1985) (“Cannon II”).
In the intervening period, many additional states have
abolished these heart-balm torts. It appears that today only
Hawaii, Illinois, Mississippi, New Mexico, North Carolina, South
Dakota, and Utah continue to have these laws in effect.
However, in most of these states, heart-balm torts are
frequently discouraged and rarely pursued. See Hunt v. Chang,
594 P.2d 118 (Haw. 1979) (last appellate opinion considering
alienation of affection in Hawaii and, though not abolishing the
cause of action, not favorably disposed thereto); Murphy v.
Colson, 999 N.E.2d 372 (Ill. Ct. App. 2013) (discussion of
legislation barring punitive, exemplary, vindictive, and certain
compensatory damages in heart-balm torts after legislation
abolishing these torts was found to violate the Illinois
Constitution); Germany v. Germany, 123 So. 3d 423 (Miss. 2013)
(most recent Mississippi alienation of affection opinion located
on Westlaw, though it appears this cause of action is still
relatively common in Mississippi); Padwa v. Hadley, 981 P.2d
1234, 1240 (N.M. Ct. App. 1999) (though alienation of affection
has not been formally abolished in New Mexico, it seems to be
infrequently utilized, and, when the appellate courts discuss
it, they do so with “disfavor”); Veeder v. Kennedy, 589 N.W.2d
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610, 616 (S.D. 1999) (Supreme Court of South Dakota holding
that, despite public policy arguments advanced for its
abolition, alienation of affection in South Dakota was a
statutory, not a common law, cause of action; therefore the
Supreme Court was “compelled to leave the cause of action intact
and instead defer to the legislature's ability to decide if
there is a need for its elimination”); Norton v. Macfarlane, 818
P.2d 8 (Utah 1991) (abolishing tort of criminal conversation in
Utah); Williams v. Jeffs, 57 P.3d 232 (Utah Ct. App. 2002)
(alienation of affection cause of action still viable in Utah).
This Court held in Nunn v. Allen that “[n]either [a claim
for alienation of affection nor criminal conversation] is a
statutory creation; both emanate from the common law and have
been recognized by our Supreme Court.” Nunn v. Allen, 154 N.C.
App. 523, 530, 574 S.E.2d 35, 40 (2002) (citations omitted).
This Court has no authority to overrule decisions of the North
Carolina Supreme Court.
In the present case, Defendant argues that the trial court
lacked subject matter jurisdiction “to enter judgment against
. . . Defendant because the laws of Alienation of Affection and
Criminal Conversation are unconstitutional[.]” However,
Defendant provides no citation to authority in support of this
proposition, and we can find none. The Third Circuit Court of
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Appeals has stated: “When disposing of a claim brought under an
unconstitutional statute, courts ordinarily deny the claim on
the merits, on the ground that the statute under which relief is
sought is unconstitutional, rather than for lack of subject
matter jurisdiction.” Nesbit v. Gears Unlimited, Inc., 347 F.3d
72, 82 (3d Cir. 2003) (citations omitted). Our Supreme Court
has acted in accordance with this statement. See, e.g.,
Williams v. Blue Cross Blue Shield of N.C., 357 N.C. 170, 192,
581 S.E. 2d 415, 430-31 (2003). Even if we were to hold that
“the laws of Alienation of Affection and Criminal Conversation
are unconstitutional,” which we are clearly without authority to
do, Cannon, 313 N.C. at 324, 327 S.E.2d at 888, we would be
exercising our jurisdiction to reach this conclusion. Because
this argument does not touch on the jurisdiction of this Court,
and because Defendant did not raise this argument at the trial
level, she has abandoned it. N.C.R. App. P. 10(a)(1); Bullock,
__ N.C. App. at __, 748 S.E.2d at 33.
III.
In her final argument, Defendant contends the trial court
“erred in its present value calculation contained in paragraph
one of the decretal portion of the judgment[.]” We disagree.
Defendant cites Weaver v. Weaver, 72 N.C. App. 409, 324
S.E.2d 915 (1985), disapproved of on different grounds by
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Armstrong v. Armstrong, 322 N.C. 396, 368 S.E.2d 595 (1988), for
the proposition that a reasonable rate of comparison in
calculating present value could be obtained by reference to
“Treasury bill rates[.]” Id. at 415, 324 S.E.2d at 919.
Defendant then argues: “In this case, the [trial] court used the
Market T-Bill Rate of 1.66% as of May 1, 2013.” Br 28 This is
the only citation to authority Defendant includes in her
argument. Although Defendant further argues that “[t]he trial
court appears to be present valuing only one year of lost
support” whereas the “purpose of these particular compensatory
damages is to replace the lost income that Plaintiff would have
received had she remained married to [Mr. Puryear] for the
remainder of his life, which according to the mortality tables
is twenty-five years[,]” Defendant cites to no authority in
support of this contention. Defendant also cites no authority
and makes no argument indicating how the trial court should have
calculated present value in this instance. This Court does not
make arguments for a party. N.C.R. App. P. 28(b)(6); Goodson v.
P.H. Glatfelter Co., 171 N.C. App. 596, 606, 615 S.E.2d 350, 358
(2005) (“It is not the duty of this Court to supplement an
appellant’s brief with legal authority or arguments not
contained therein.”). This argument is deemed abandoned.
Dismissed.
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Judges STEELMAN and ERVIN concur.
Report per Rule 30(e).