Bell v. Mozley

• Decision Date: 01 November 2011
• Docket Number: No. COA11–393.,COA11–393.
• Citation: 716 S.E.2d 868
• Parties: Robert Edward BELL, Plaintiff,v.James W. MOZLEY, Jr., Defendant.
• Court: North Carolina Court of Appeals

716 S.E.2d 868

Robert Edward BELL, Plaintiff,

v.James W. MOZLEY, Jr., Defendant.

No. COA11–393.

Court of Appeals of North Carolina.

Nov. 1, 2011.

Appeal by defendant from orders entered 20 January 2011 by Judge Jesse B. Caldwell, III, in Caldwell County Superior Court. Heard in the Court of Appeals 28 September 2011.

W. Wallace Respess, Jr., Lenoir, for plaintiff appellee.

Morrow Porter Vermitsky & Fowler, PLLC, by Katie Foster Fowler and John F. Morrow, Winston Salem, for defendant appellant.

McCULLOUGH, Judge.

Defendant appeals two orders entered by the trial court denying his motions to dismiss pursuant to Rules 12(b)(1) and 12(b)(2) of the North Carolina Rules of Civil Procedure. We reverse.

I. Background

Robert Edward Bell (“plaintiff”) is a citizen and resident of Beaufort County, South Carolina.

Plaintiff also owns a second home in Blowing Rock, Caldwell County, North Carolina. James W. Mozley, Jr. (“defendant”) is also a citizen and resident of Beaufort County, South Carolina.

Defendant is employed with Crescent Resources, LLC (“Crescent”), a company that is headquartered in Charlotte, North Carolina. Defendant serves as the company's vice president and as president of the company's residential division. Beginning in 2005 or 2006, Crescent began a development project in Burke County, North Carolina, which adjoins Caldwell County, North Carolina. This development project is presently ongoing. Defendant leads the development, and in connection with his employment, defendant travels to North Carolina up to six times per year. In addition, defendant communicates with Crescent's home office in Charlotte by telephone twice a month, and by email once per week.

On 30 September 2009, plaintiff filed a complaint against defendant in Caldwell County Superior Court, seeking compensatory and punitive damages upon allegations that defendant had alienated the affections of plaintiff's wife and that defendant had engaged in criminal conversation with plaintiff's wife. In his complaint, plaintiff alleged that he was married to Lisa R. Bell (“Lisa”) on 4 March 2000. Plaintiff stated that “two children were born of their marriage,” A.B., born in 2002, and N.B., born in 2005. Plaintiff further alleged the following:

10. In late December of 2006, the Plaintiff and his wife Lisa R. Bell invited the Defendant and his wife Janet Mozley to their residence in Blowing Rock, Caldwell County, North Carolina for New Years.

11. During the visit, the minor child [A.B.] became ill and was rushed back to South Carolina by the Plaintiff. Lisa R. Bell remained in the Blowing Rock residence with the Defendant and his wife Janet Mozley.

12. After returning to their residence in Beaufort, South Carolina in January of 2007, the marriage began experiencing difficulties. Later Lisa R. Bell would remark that the difficulties began at the time of the New Year's visit.

Plaintiff also alleged that “[b]eginning in early 2007, the Defendant commenced an adulterous relationship with Lisa R. Bell.” Plaintiff and Lisa separated on 16 July 2008 and were divorced on 24 July 2009.

On 22 October 2009, defendant filed motions to dismiss plaintiff's claims for lack of subject matter jurisdiction under Rule 12(b)(1) of the North Carolina Rules of Civil Procedure; lack of personal jurisdiction under Rule 12(b)(2) of the North Carolina Rules of Civil Procedure; and failure to state a claim upon which relief can be granted under Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. Thereafter, on 29 July 2010, defendant filed a motion for summary judgment based upon defendant's motions for dismissal for lack of subject matter jurisdiction and personal jurisdiction. Attached to defendant's motion for summary judgment were sworn affidavits by defendant and Lisa. In his affidavit, defendant attested that he is a citizen and resident of Beaufort County, South Carolina, and has “never been a resident of the state of North Carolina.” Defendant also stated that his “primary contact with North Carolina” is through his employment with Crescent. Defendant stated that the “only time period” in which he was present in the State of North Carolina in the presence of plaintiff and/or Lisa was on the occasion of the December 2006 New Year's trip. Lisa likewise attested this was the only occasion during which defendant was in her presence in the State of North Carolina. Lisa also attested that she is a “citizen and resident of Charleston, South Carolina.”

In response, plaintiff also filed a sworn affidavit. In addition to the allegations in plaintiff's complaint regarding the December 2006 New Year's trip, plaintiff attested that on 17 July 2007, while he and Lisa were at their Blowing Rock home, Lisa called defendant's home on three occasions, defendant returned Lisa's calls, and defendant and Lisa spoke for approximately five minutes. Plaintiff further attested that in July 2008, he found a partially used bottle of vaginal lubricant in Lisa's bedside table. Plaintiff stated that he had never used vaginal lubricant with Lisa in their Blowing Rock home.

Depositions were also taken of both plaintiff and defendant. In his deposition, defendant admitted having sexual relations with Lisa in the States of South Carolina, New York, California, and Hawaii. Defendant also admitted that he used vaginal lubricant during sexual intercourse with Lisa, although defendant testified this was not during the period in which Lisa was still married to plaintiff.

At his deposition, plaintiff admitted that all of the actions alleged in his complaint, aside from the allegations concerning the December 2006 New Year's trip, occurred in the State of South Carolina. Plaintiff likewise admitted that all of the witness affidavits obtained in this case were given by individuals living in South Carolina within 50 miles of the parties. Plaintiff also admitted that he had no personal knowledge and no direct evidence of any contact between Lisa and defendant in the State of North Carolina other than the December 2006 New Year's trip.

On 20 January 2011, following a hearing at which the depositions of the parties and the affidavits of the parties and Lisa were submitted as evidence, the trial court entered two orders denying defendant's motions to dismiss for lack of personal jurisdiction and lack of subject matter jurisdiction. Defendant timely appealed to this Court.

II. Personal Jurisdiction

We first address defendant's argument that the trial court erred in denying his motion to dismiss for lack of personal jurisdiction pursuant to Rule 12(b)(2) of the North Carolina Rules of Civil Procedure. Although the order denying defendant's motion to dismiss is an interlocutory order, N.C. Gen.Stat. § 1–277(b) (2009) provides that “[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 ....” Id. Accordingly, “the denial of [defendant]'s motion to dismiss on personal jurisdiction grounds is immediately appealable.” Bauer v. Douglas Aquatics, Inc., –––N.C.App. ––––, ––––, 698 S.E.2d 757, 760 (2010).

“The 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[.]” Replacements, Ltd. v. MidweSterling, 133 N.C.App. 139, 140–41, 515 S.E.2d 46, 48 (1999). “ ‘Where no exception is taken to a finding of fact by the trial court, the finding is presumed to be supported by competent evidence and is binding on appeal.’ ” Nat'l Util. Review, LLC v. Care Ctrs., Inc., 200 N.C.App. 301, 303, 683 S.E.2d 460, 463 (2009) (quoting Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991)). We review de novo the issue of whether the trial court's findings of fact support its conclusion of law that the court has personal jurisdiction over defendant. Id.

“Our courts engage in a two-step inquiry to resolve whether personal jurisdiction over a non-resident defendant is properly asserted: first, North Carolina's long-arm statute must authorize jurisdiction over the defendant. If so, the court must then determine whether the exercise of jurisdiction is consistent with due process.” Bauer, ––– N.C.App. at ––––, 698 S.E.2d at 760. “A plaintiff bears the burden of establishing that some ground exists for the exercise of personal jurisdiction over a defendant.” Jaeger v. Applied Analytical Indus. Deutschland GMBH, 159 N.C.App. 167, 170, 582 S.E.2d 640, 643–44 (2003). In the present case, defendant does not appear to dispute the applicability of North Carolina's long-arm statutory authority. Rather, defendant contends that the trial court erred in denying his motion to dismiss because plaintiff failed to establish that defendant has the necessary minimum contacts with this state to satisfy the requirements of due process. Accordingly, we limit our discussion to the issue of whether North Carolina's exercise of personal jurisdiction over defendant in the present action comports with due process of law.

“In order to satisfy the requirements of the Due Process Clause, the pivotal inquiry is whether the defendant has established ‘certain minimum contacts with [the forum state] such that maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” ’ ” MidweSterling, 133 N.C.App. at 143, 515 S.E.2d at 49 (alteration in original) (quoting Murphy v. Glafenhein, 110 N.C.App. 830, 835, 431 S.E.2d 241, 244 (1993) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95, 102 (1945))). “The relationship between the defendant and the forum state must be such that the defendant should ‘reasonably anticipate being haled into’ a North Carolina court.” Tejal Vyas, LLC v. Carriage Park Ltd. P'ship, 166 N.C.App. 34, 39, 600 S.E.2d 881, 885–86 (2004) (quoting Cherry Bekaert & Holland v. Brown, 99 N.C.App. 626, 632, 394 S.E.2d 651,...