Brown v. Ellis

• Citation: 696 S.E.2d 813
• Decision Date: 03 August 2010
• Docket Number: No. COA06-710-2.,COA06-710-2.
• Court: North Carolina Court of Appeals
• Parties: William Lawson BROWN, III, Plaintiff,v.Mark P. ELLIS, Defendant.

696 S.E.2d 813

William Lawson BROWN, III, Plaintiff,v.Mark P. ELLIS, Defendant.

No. COA06-710-2.

Court of Appeals of North Carolina.

Aug. 3, 2010.

COPYRIGHT MATERIAL OMITTED

Upon remand from the Supreme Court of North Carolina for further review of an appeal by defendant from judgment entered on or about 2 February 2005 by Judge Melzer A. Morgan Jr. in Superior Court, Guilford County and order entered 13 December 2005 by Judge W. Douglas Albright in Superior Court, Guilford County.

Nix & Cecil, High Point, by Lee M. Cecil, for plaintiff-appellee.

Forman Rossabi Black, P.A., by T. Keith Black, and William F. Patterson, Jr., Greensboro, for defendant-appellant.

STROUD, Judge.

Plaintiff William Brown sued defendant Mark Ellis for alienation of affections and criminal conversation alleging that defendant, a California resident, had a romantic and sexual relationship with Mrs. Brown. After a trial at which defendant was neither present nor represented by counsel, judgment was entered against him for $ 600,000.00. When this case was first before us, we vacated the trial court's judgment, holding that the trial court did not have jurisdiction over defendant under N.C. Gen.Stat. § 1-75.4, the long-arm statute. Brown filed a petition for discretionary review, which the Supreme Court allowed. The Supreme Court reversed this Court's opinion, holding that North Carolina has jurisdiction over defendant pursuant to N.C. Gen.Stat. § 1-75.4, and remanded for our consideration of defendant's remaining issues. On remand, we reverse the trial court's order denying defendant's motion for new trial because defendant did not have adequate notice of trial.

I. Background

The Supreme Court summarized the factual background of plaintiff's complaint and claims as follows:

Plaintiff filed his verified complaint in Superior Court, Guilford County, alleging causes of action against defendant for alienation of affections and criminal conversation. In his complaint, plaintiff alleged he resided in Guilford County, North Carolina, with his wife and daughter, and that defendant resided in Orange County, California. According to the complaint, plaintiff's wife and defendant were both employed by the same parent company and worked together on numerous occasions. Plaintiff alleged defendant willfully alienated the affections of plaintiff's wife by, among other actions, initiating frequent and inappropriate, and unnecessary telephone and e-mail conversations with plaintiff's wife on an almost daily basis. The telephone conversations between defendant and plaintiff's wife often occurred in the presence of plaintiff and his minor child and involved discussions of defendant's sexual and romantic relationship with plaintiff's spouse. Plaintiff alleged that through numerous telephone calls and e-mails to plaintiff's spouse, defendant has arranged to meet, and has met with plaintiff's spouse on numerous occasions outside the State of North Carolina, under the pretense of business-related travel.

The complaint further alleged that plaintiff's wife and defendant committed adultery during these business trips, which further alienated and destroyed the marital relationship between plaintiff and his wife. In support of his complaint, plaintiff submitted an affidavit alleging that the majority of defendant's conduct which constitutes an alienation of affections occurred within the jurisdiction of North Carolina and that evidence as to the frequent electronic and telephonic contact between defendant and plaintiff's spouse can be established through records and witnesses located in the State of North Carolina.

Brown v. Ellis, 363 N.C. 360, 361-62, 678 S.E.2d 222, 222-23 (2009) (quotation marks and brackets omitted). The Supreme Court reviewed this Court's holding that the State of North Carolina did not have personal jurisdiction over defendant pursuant to N.C. Gen.Stat. § 1-75.4 Id., 363 N.C. 360, 678 S.E.2d 222. On 18 June 2009, the Supreme Court by a per curiam opinion reversed and remanded the Court of Appeals decision, holding that “[w]e conclude plaintiff's complaint alleges sufficient facts to authorize the exercise of personal jurisdiction over defendant pursuant to N.C.G.S. § 1-75.4(4)(a).” Id., 363 N.C. at 364, 678 S.E.2d at 224. Because we previously held that North Carolina did not have jurisdiction over defendant under N.C. Gen.Stat. § 1-75.4, we did not address defendant's constitutional arguments that North Carolina's exercise of jurisdiction over him violates his due process rights and that he did not have adequate notice of his trial. As instructed by the Supreme Court, we will now consider defendant's remaining arguments.

II. Minimum Contacts

Defendant contends that “plaintiff [f]ailed to [s]how [s]ufficient [c]ontacts between [d]efendant and North Carolina to [s]atisfy the [d]ue [p]rocess [r]equirements for [e]xercise of [ i] n personam [j]urisdiction.” Our inquiry regarding personal jurisdiction requires consideration of two questions. Brown v. Meter, --- N.C.App. ----, ----, 681 S.E.2d 382, 387 (2009) disc. review denied and appeal dismissed, 364 N.C. 128, 695 S.E.2d 756 (2010). The first question is whether North Carolina has jurisdiction under N.C. Gen.Stat. § 1-75.4, the long-arm statute. Id. Our Supreme Court has answered that question in the affirmative. See Brown v. Ellis, 363 N.C. at 364, 678 S.E.2d at 224. We must now address the second part of the inquiry, which is whether defendant has “minimum contacts” with the State of North Carolina sufficient to satisfy the requirements of due process. “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 v. Shealy, 140 N.C.App. 729, 734, 537 S.E.2d 854, 857 (2000) (citation and quotation marks omitted).

When evaluating personal jurisdiction, the trial court must engage in a two-step inquiry: first, the trial court must determine whether a basis for jurisdiction exists under the North Carolina long-arm statute, and second, if so, the trial court must determine whether the assertion of personal jurisdiction over the defendant is consistent with applicable due process standards. When personal jurisdiction is alleged to exist pursuant to the long-arm statute, the question of statutory authority collapses into one inquiry, which is whether defendant has the minimum contacts necessary to meet the requirements of due process....

....

[D]ue process considerations prohibit our state courts from exercising personal jurisdiction unless the defendant has had certain minimum contacts with the forum state such that traditional notions of fair play and substantial justice are not offended by maintenance of the suit.

Id., --- N.C.App. at ----, 681 S.E.2d at 387-88 (citations, quotation marks, and brackets omitted). Prior cases have set forth factors for consideration as to whether a defendant has had sufficient minimum contacts with North Carolina to satisfy due process. See, e.g.,

id., --- N.C.App. at ----, 681 S.E.2d at 388.

Although a determination of whether the required minimum contacts are present necessarily hinges upon the facts of each case, there are several factors a trial court typically evaluates in determining whether the required level of contacts exists: (1) quantity of the contacts between the defendant and the forum state, (2) quality and nature of the contacts, (3) the source and connection of the cause of action to the contacts, (4) the interest in the forum state, and (5) convenience of the parties.

Id. (citation and quotation marks omitted).

Our standard of review for this inquiry is de novo. Id., ---N.C.App. at ----, 681 S.E.2d at 387.

In examining the legal sufficiency of the trial court's order, our review on appeal focuses initially on whether the findings are supported by competent evidence in the record. If the findings of fact are supported by competent evidence, we conduct a de novo review of the trial court's conclusions of law and determine whether, given the facts found by the trial court, the exercise of personal jurisdiction would violate defendant's due process rights.

Id., --- N.C.App. at ----, 681 S.E.2d at 387 (citations, quotation marks, and brackets omitted).

Although the trial court did not make any factual findings in its order denying defendant's motion to dismiss, our Supreme Court has set forth the facts as alleged by plaintiff in its opinion. See Brown v. Ellis, 363 N.C. 360, 678 S.E.2d 222. Defendant argues that “the allegations in the verified complaint are devoid of any facts going to the nexus between the alleged misconduct and this State, citing Tompkins v. Tompkins, 98 N.C.App. 299, 390 S.E.2d 766 (1990). In Tompkins, this Court concluded that North Carolina did not have personal jurisdiction over the defendant because

the pleadings are devoid of any allegations that the parties resided here during a portion of the marriage or at the time of the separation. It is true that the failure to plead the particulars of personal jurisdiction is not necessarily fatal, so long as the facts alleged permit the reasonable inference that jurisdiction may be acquired. However, plaintiff's allegations of defendant's marital misconduct, absent any allegations going to a nexus between such misconduct and this State, are simply insufficient to permit the reasonable inference that personal jurisdiction over defendant could properly be acquired in this case.

Tompkins at 304, 390 S.E.2d at 769 (citation omitted).

It is undisputed that defendant has never visited North Carolina. However, the Supreme Court has held that defendant's telephone calls and email messages to plaintiff's wife in North Carolina were sufficient contacts to satisfy the long-arm statute, stating that:

[p]laintiff alleged that he resided in Guilford County with his wife and daughter and that defendant initiated frequent and inappropriate, and unnecessary telephone and e-mail conversations with plai

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