Beavers v. McMican
| Decision Date | 16 August 2022 |
| Docket Number | COA21-85 |
| Citation | 877 S.E.2d 412 |
| Parties | David BEAVERS, Plaintiff, v. John MCMICAN, Defendant. |
| Court | North Carolina Court of Appeals |
Matheson and Associates, PLLC, Raleigh, by John R. Szymankiewicz, for plaintiff-appellant.
Shannon Poore, Raleigh, for defendant-appellee.
¶ 1 We will not consider documents on appeal that were not before the trial court for its consideration of summary judgment. Here, although both parties at a hearing verbally referenced the contents of two depositions, the certifications of which were pending, we do not consider the depositions in determining whether the trial court erred because they were not proffered to or considered by the trial court.
¶ 2 A trial court errs in granting a movant's motion for summary judgment where there exists evidence on the record that, when viewed in the light most favorable to the nonmoving party, could support each element of the alleged offense. With respect to alienation of affection and criminal conversation claims, acts by a defendant occurring after a plaintiff and former spouse have permanently separated may only be used to satisfy that plaintiff's burden of production for purposes of summary judgment insofar as they corroborate acts that occurred prior to separation. Here, where acts by an unknown party satisfied Plaintiff's burden of production with respect to the final elements of alienation of affection and criminal conversation and other evidence—including, in part, post-separation conduct—tended to show the unknown party was Defendant, Plaintiff satisfied his burden of production. Accordingly, the trial court erred in granting Defendant's motion for summary judgment.
¶ 3 This action was initiated on 13 December 2018 when Plaintiff David Beavers filed a civil complaint in Wake County Superior Court asserting claims for alienation of affection and criminal conversation against his ex-wife's alleged paramour, Defendant John McMican. The relevant facts of this case, detailed below, are not in dispute.
¶ 4 Plaintiff and his ex-wife, Alison Beavers, married on 23 October 2004. On 18 January 2016, Plaintiff discovered texts on Alison's phone in which she had sent nude pictures to a person identified as "Bestie." Alongside the pictures, Alison and "Bestie" had exchanged messages appearing to reference an instance of sexual intercourse that had occurred prior to the exchange of messages and pictures. At the time, Plaintiff did not look at the number associated with the contact information or otherwise take steps to discover the identity of "Bestie."
¶ 5 Upon discovering the exchange, Plaintiff briefly confronted Alison, then left his and Alison's home to stay with his parents.
Upon Plaintiff's return several days later, he and Alison had a conversation about the affair. Alison explained to Plaintiff that she had engaged in sexual acts with the person identified as "Bestie" but that the two did not have sexual intercourse. Alison further professed that her paramour's name was "Dustin," one of her co-workers.
¶ 6 Several more weeks passed, and Plaintiff, skeptical of Alison's story during the first conversation, accused Alison of engaging in sexual intercourse with another man. Alison, in response, told Plaintiff she had engaged in sexual intercourse with someone from her workplace; however, she did not specify it was the person she had previously identified as "Dustin." Plaintiff never discovered Dustin's identity, and he suspected that, based on the absence of any "Dustin" in Alison's contacts, "Dustin" was a pseudonym. Plaintiff and Alison permanently separated on 16 December 2016.
¶ 7 Three and one-half months later, on 1 April 2017, Alison openly began dating Defendant, one of her co-workers. The two had known one another through work since the Summer of 2011. The Record indicates they had a close relationship, exchanging ninety-eight texts and calls in October of 2016 alone, as well as interacting via phone and Facebook numerous times outside of that month. While the two admittedly became both romantically and sexually involved upon beginning their relationship, no direct evidence of romantic involvement between Alison and Defendant exists before the start of their relationship in April 2017, and both have expressly disavowed being romantically involved prior to that time.
¶ 8 On 13 December 2018, Plaintiff sued Defendant on theories of alienation of affection and criminal conversation. Defendant, in turn, filed a Motion for Summary Judgment , arguing Plaintiff presented insufficient evidence of at least one element of both offenses.1 The trial court conducted a hearing on Defendant's motion on 17 August 2020, during which both parties referenced, without objection, recent depositions of Alison and Defendant's ex-wife, Jessica McMican. However, neither deposition was certified until 20 August 2020, three days later. The trial court entered an order on 12 October 2020 granting Defendant's Motion for Summary Judgment , and Plaintiff timely appealed.
¶ 9 On appeal, Plaintiff submitted a supplement pursuant to Rule 11(c) of the Rules of Appellate Procedure containing, inter alia , the depositions of Alison and Jessica discussed by counsel during the hearing. We entered an order to the trial court on 23 November 2021 inquiring which, if either, of the depositions the trial court considered in granting Defendant's Motion for Summary Judgment ; and, in response, the trial court filed an Amended Order Granting Defendant's Motion for Summary Judgment on 3 March 2022 confirming it considered neither of the two depositions.
¶ 10 On appeal, Plaintiff contends the trial court erred in granting Defendant's Motion for Summary Judgement with respect to his criminal conversation and alienation of affection claims. First, however, Defendant argues that the documents in Plaintiff's Rule 11(c) supplement are not properly before us. Accordingly, we first address whether Plaintiff's proffered supplement is properly before us under Rule 11(c), then we address whether the trial court erred in granting Defendant's Motion for Summary Judgment.
¶ 11 Defendant contends that, under Rule 11(c) of our Rules of Appellate Procedure, "[t]he purported evidence contained in the Rule 11(c) supplement should not be considered on appeal as some evidence was not presented to the trial court for consideration ... and other evidence contained in the supplement is irrelevant."
¶ 12 Rule 11(c) states, in relevant part, as follows:
N.C. R. App. P. 11 (2021) (emphasis added); see also Hoisington v. ZT-Winston-Salem Assocs. , 133 N.C. App. 485, 490, 516 S.E.2d 176, 180 (1999) (), appeal dismissed , 351 N.C. 342, 525 S.E.2d 173 (2000).
¶ 13 Here, the trial court conducted its hearing on Defendant's Motion for Summary Judgment on 17 August 2020. The Rule 11(c) supplement contains two depositions that were not certified until 20 August 2020, three days later. The trial court confirmed in its Amended Order Granting Defendant's Motion for Summary Judgment that it considered neither of these depositions when evaluating whether to grant Defendant's Motion for Summary Judgment. Accordingly, neither deposition informs our review on appeal.
¶ 14 As to the remaining arguments concerning the Rule 11(c) supplement's role in our review, Defendant's contentions concern the persuasive relevance of the evidence to our determination, not whether the evidence is properly before us on appeal. As there exist no other indications in the Record or in the parties’ arguments that our considering the remainder of the evidence in Plaintiff's Rule 11(c) supplement is improper, it will inform our review insofar as it is relevant.
¶ 15 Rule 56(c) of our Rules of Civil Procedure provides that summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C.G.S. § 1A-1, Rule 56 (2021). "Summary judgment is appropriate when the moving party establishes the lack of any triable issue of fact"; and, in determining whether any such triable issue exists, "[a]ll facts asserted by the nonmoving party are taken as true and viewed in the light most favorable to that party." Wells Fargo Bank, N.A. v. Stocks , 378 N.C. 342, 2021-NCSC-90, ¶ 13, 861 S.E.2d 516 (marks and citations omitted).
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