Brown v. Hurley

• Decision Date: 05 November 1996
• Docket Number: No. COA95-1253,COA95-1253
• Citation: 124 N.C.App. 377,477 S.E.2d 234
• Parties: Charles Allen BROWN, Plaintiff-Appellee, v. Michael Alton HURLEY, Defendant-Appellant.
• Court: North Carolina Court of Appeals

Page 234

477 S.E.2d 234

124 N.C.App. 377

Charles Allen BROWN, Plaintiff-Appellee, v. Michael Alton HURLEY, Defendant-Appellant.

No. COA95-1253.

Court of Appeals of North Carolina.

Nov. 5, 1996.

Edward P. Hausle, P.A. by Edward P. Hausle, Greenville, for Defendant-Appellant.

Stephen E. Lawing, High Point, for Plaintiff-Appellee.

WYNN, Judge.

Defendant Michael Alton Hurley appeals from an order entered 10 May 1995 denying his motion for sanctions under N.C. Gen.Stat. § 1A-1, Rule 11 (1990) against plaintiff Charles Allen Brown.

The trial court made the following findings of fact: Plaintiff married Deborah T. Brown on 28 December 1985. In June 1992, Mrs. Brown left the marital residence, stating that she needed time to herself to think but that she would be back. In the three months following their separation, the Browns continued to engage in activities which plaintiff believed were aimed at a reconciliation of the marriage. For example, Mrs. Brown continued to provide plaintiff with "anniversary" cards (the couple had celebrated the 28th day of each month as the anniversary of their marriage), go out to dinner with him, and take vacations with him at the beach. However, on 8 October 1992, Mrs. Brown presented plaintiff with a separation agreement. Plaintiff asserts that this was the first time that she made it known to him that she was not returning to the marriage. Thereafter, plaintiff began making some investigations, and on the morning of 23 October 1992, he discovered an automobile in front of Mrs. Brown's apartment that he later identified as belonging to defendant, a co-worker of Mrs. Brown.

On 28 January 1993, plaintiff and Mrs. Brown executed a separation and property settlement agreement, which stated that it was to be effective 27 June 1992, the agreed date upon which they separated. Subsequently, plaintiff sued defendant seeking damages for alienation of affections and for criminal conversation. He alleged that he was unable to save his marriage because of defendant's interference.

In April 1993, defendant admitted at his deposition to having a sexual relationship with Mrs. Brown, but that it only began in October of 1992 after her separation from plaintiff. In May 1993, defendant moved to dismiss the action for failure to state a claim and for summary judgment, both on the ground that there was no evidence of a relationship between defendant and Mrs. Brown until after she separated from plaintiff. The trial court denied both motions.

This action came on for trial on 21 February 1994. Prior to the empaneling of a jury, defendant moved in limine to prohibit evidence of a post-separation relationship between defendant and plaintiff's wife. The trial court granted that motion, ordering:

"[plaintiff] ... not to offer any evidence concerning alienation of affections for anything that occurs after June 27, 1992, the date that irreconcilable differences separated the parties. And as far as the criminal conversation is concerned it would seem that would go up through and to January 28, 1983 (sic). I sustain any objection to evidence offered after that date, which is the date of the agreement, ..."

The judge later changed his ruling to make 27 June 1992 the cut-off date for both claims. Plaintiff then conceded that he had no evidence of any pre-separation conduct and judgment was directed in defendant's favor. Plaintiff gave notice of appeal from the order granting the motion in limine and the directed verdict. However, the appeal was not perfected and was subsequently dismissed.

Defendant moved for Rule 11 sanctions against plaintiff and his counsel on 6 March 1995; thereafter, plaintiff filed his own Rule 11 motion. Both motions were denied and the parties appealed. However, plaintiff subsequently withdrew his appeal.

The issues on appeal are whether the trial court erred in finding that plaintiff's pleadings were (I) well-grounded in law; (II) well-grounded in fact; and (III) not interposed for an improper purpose.

We note at the outset that our Supreme Court has adopted the following standard for appellate review of the granting or denial of motions to impose sanctions under Rule 11(a):

The trial court's decision to impose or not to impose mandatory sanctions under N.C.G.S. § 1A-1, Rule 11(a) is reviewable de novo as a legal issue. In the de novo review, the appellate court will determine (1) whether the trial court's conclusions of law support its judgment or determination, (2) whether the trial court's conclusions of law are supported by its findings of fact, and (3) whether the findings of fact are supported by a sufficiency of the evidence.

Turner v. Duke University, 325 N.C. 152, 165, 381 S.E.2d 706, 714 (1989).

I.

We first look at whether the trial court erred in finding that plaintiff's pleadings were well-grounded in law. To satisfy the legal sufficiency prong of Rule 11, the pleading must be "warranted by existing law or a good faith argument for the extension, modification or reversal of existing law, ..." N.C.G.S. § 1A-1, Rule 11(a) (1990). There is a two-part analysis to determine whether a pleading satisfies the legal sufficiency requirement of Rule 11. First, the court must determine whether the pleading is facially plausible. Bryson v. Sullivan, 330 N.C. 644, 661, 412 S.E.2d 327, 336 (1992). If the paper is facially plausible, then the inquiry is complete and sanctions are inappropriate. If the paper is not facially plausible, then the second inquiry is whether to the best of the signer's knowledge, information, and belief formed after reasonable inquiry, the complaint was warranted by existing law. Id. Defendant contends that to substantiate his claims for alienation of affections and criminal conversation, existing law required plaintiff to establish that defendant and Mrs. Brown engaged in a pre-separation relationship. He further contends that Rule 11 sanctions were appropriate in this case because plaintiff was aware that such evidence did not exist. We disagree.

The elements of criminal conversation are the actual marriage between the spouses and sexual intercourse between defendant and the plaintiff's spouse during the coverture. Gray v. Hoover, 94 N.C.App. 724, 381 S.E.2d 472, disc. rev. denied, 325 N.C. 545, 385 S.E.2d 498 (1989). The mere fact of separation will not bar an action for criminal conversation occurring during the separation. Bryant v. Carrier, 214 N.C. 191, 198 S.E. 619 (1938). Thus, under Bryant, the court's ruling with respect to criminal conversation was clearly correct.

In an action for alienation of affections, the plaintiff must show that (1) the parties to the marriage were happily married and that genuine love and affection existed between them; (2) that such love and affection was alienated and destroyed; and (3) that the wrongful and malicious acts of the defendant brought about the loss and alienation of such love and affection. Gray v. Hoover, 94 N.C.App. at 727, 381 S.E.2d at 473. The plaintiff does not have to prove that his spouse had no affection for anyone else or that their marriage was previously one of "untroubled bliss;" he only has to prove that his spouse had some genuine love and affection for him and that love and affection was lost as a result of defendant's wrongdoing. Shaw v. Stringer, 101 N.C.App. 513, 516, 400 S.E.2d 101, 103 (1991). Furthermore, while a husband and wife separating appears to contradict any assertions of a "happy marriage," this Court has held that the mere fact of separation does not establish a lack of "genuine love and affection" as a matter of law. See Cannon v. Miller, 71 N.C.App. 460, 468-69, 322 S.E.2d 780, 787 (1984), vacated on other grounds, 313 N.C. 324, 327 S.E.2d 888 (1985).

In the instant case, plaintiff's claim for alienation of affections was also facially plausible. The trial court found and the record establishes that plaintiff and Mrs. Brown continued to have an amorous relationship after their separation, and that Mrs. Brown's feelings for plaintiff began to deteriorate shortly after she became involved with defendant.

Defendant argues that plaintiff was aware that he could only present pre-separation evidence to support his claim for alienation of affections...