Cooper v. Shealy

• Decision Date: 05 December 2000
• Docket Number: No. COA99-1276.,COA99-1276.
• Citation: 537 S.E.2d 854,140 NC App. 729
• Court: North Carolina Court of Appeals
• Parties: Christine Stalas COOPER, Plaintiff, v. Lisa SHEALY, Defendant.

537 S.E.2d 854

140 NC App. 729

Christine Stalas COOPER, Plaintiff, v. Lisa SHEALY, Defendant.

No. COA99-1276.

Court of Appeals of North Carolina.

December 5, 2000.

J.S. Pfaff, Greensboro, for plaintiff-appellee.

Floyd and Jacobs, L.L.P., by Robert V. Shaver, Jr., Greensboro, for defendant-appellant.

HUNTER, Judge.

Lisa Shealy ("defendant") appeals the trial court's denial of her motion to dismiss Christine Stalas Cooper's ("plaintiff's") claim under N.C.Gen.Stat. § 1A-1, Rule 12(b)(2) (1999) for lack of personal jurisdiction. Defendant contends that the trial court inappropriately denied her motion because the allegations in plaintiff's complaint neither satisfy the requirements of the North Carolina long-arm statute nor do they establish the necessary minimum contacts between defendant and North Carolina sufficient to meet due process requirements. We disagree. Accordingly, we affirm the trial court's order.

Generally, the denial of a motion to dismiss is not immediately appealable. However, N.C.Gen.Stat. § 1-277(b) (1999) provides a movant the right of immediate appeal where there has been "an adverse ruling as to the jurisdiction of the court over the person or property of the defendant...." Id. See also Godwin v. Walls, 118 N.C.App. 341, 455 S.E.2d 473, petition for disc. review granted but subsequently withdrawn, 341 N.C. 419, 461 S.E.2d 757 (1995). Therefore, we consider defendant's assignments of error.

On 23 November 1998, plaintiff, a resident of Guilford County, North Carolina, filed a complaint against defendant, a resident of Lexington, South Carolina. Plaintiff's complaint alleged that defendant engaged in criminal conversation with plaintiff's husband, which resulted in the alienation of the affections of her husband. Plaintiff also alleged that defendant intentionally caused her severe emotional distress. Defendant filed a motion to dismiss pursuant to Rule 12(b)(2) for lack of personal jurisdiction, and also pursuant to Rule 12(b)(6) for failure to state a claim upon which relief may be granted. In its order, the trial court found that defendant had wrongfully contacted "Plaintiff and Plaintiff's husband by telephone, which contacts include[d] both telephone conversations and telephone transmitted e-mail to Plaintiff's home." In determining whether the court had personal jurisdiction to hear the claim under the North Carolina long-arm statute N.C.Gen.Stat. § 1-75.4(4), the trial court further found that:

Such contacts were solicitations within the meaning of the statute carried on within this State for the affections of Plaintiff's husband ... [and made] with the intent of harming the Plaintiff and the Plaintiff's marriage. Further[,] such solicitations and activities in and of themselves harmed the Plaintiff and Plaintiff's marriage.

Thus, the trial court concluded that it had jurisdiction over defendant pursuant to N.C.Gen.Stat. § 1-75.4(4), and that plaintiff's complaint did state claims upon which relief could be granted. Accordingly, defendant's motions to dismiss were denied.

As to the merits of defendant's appeal, "[t]he 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; if so, this Court must affirm the order of the trial court." Replacements, Ltd. v. MidweSterling, 133 N.C.App. 139, 140-41, 515 S.E.2d 46, 48 (1999). "The determination of whether jurisdiction is statutorily and constitutionally permissible due to contact with the forum is a question of fact." Hiwassee Stables, Inc. v. Cunningham, 135 N.C.App. 24, 27, 519 S.E.2d 317, 320 (1999). To resolve a question of personal jurisdiction, the court must engage in a two step analysis. First, the court must determine if the North Carolina long-arm statute's (N.C.Gen.Stat. § 1-75.4) requirements are met. If so, the court must then determine whether such an exercise of jurisdiction comports with due process. See ETR Corporation v. Wilson Welding Service, 96 N.C.App. 666, 386 S.E.2d 766 (1990).

N.C.Gen.Stat. § 1-75.4(4) confers in personam jurisdiction:

In any action for wrongful death occurring within this State or in any action claiming injury to person or property within this State arising out of an act or omission outside this State by the defendant, provided in addition that at or about the time of the injury ...:

a. Solicitation or services activities were carried on within this State by or on behalf of the defendant[.]

N.C.Gen.Stat. § 1-75.4(4)(a) (1999).

We recognize that "the statute requires only that the action `claim' injury to person or property within this state in order to establish personal jurisdiction." Godwin v. Walls, 118 N.C.App. 341, 349, 455 S.E.2d 473, 480. The statute does not require there to be evidence of proof of such injury. Id. Therefore, in order for plaintiff's claim for alienation of affections to withstand defendant's motion to dismiss, plaintiff must have alleged in her complaint that: "(1) plaintiff and [her husband] were happily married and a genuine love and affection existed between them; (2) the love and affection [between them] was alienated and destroyed; and (3) the wrongful and malicious acts of defendant produced the alienation of affections." Chappell v. Redding, 67 N.C.App. 397, 399, 313 S.E.2d 239, 241,review denied, 311 N.C. 399, 319 S.E.2d 268 (1984). Furthermore, for plaintiff's criminal conversation action to survive, plaintiff must have alleged that there were sexual relations between defendant and plaintiff's husband. Horner v. Byrnett, 132 N.C.App. 323, 511 S.E.2d 342 (1999).

From the record, we see that plaintiff alleged that "[she] and her husband were happily married and genuine love and affection existed between them; which love and affection was alienated and destroyed by the wrongful and malicious acts of the Defendant." Thus, plaintiff has effectively stated a claim for alienation of affections by addressing all of the necessary elements. Plaintiff also alleged that "[t]he Defendant has engaged, and continues to engage in acts of criminal conversation and sexual intercourse with [her] husband," thereby addressing the required element for a criminal conversation claim. For purposes of personal jurisdiction analysis, plaintiff's claims of injury due to defendant's telephone and e-mail solicitations are sufficient.

The question remains whether criminal conversation and alienation of affections are the type of "injury" contemplated by the statute. This Court has stated that the term

"injury to the person or property" as used in G.S. 1-75.4(3) should be given a broad meaning consistent with the legislative intent to enlarge the concept of personal jurisdiction to the limits of fairness and due process, which negates the intent to limit the actions thereunder to traditional claims for bodily injury and property damages.

Sherwood v. Sherwood, 29 N.C.App. 112, 115, 223 S.E.2d 509, 512 (1976).

Accordingly, this Court has acknowledged that actions for alienation of affections and criminal conversation constitute "injury to person or property" as denoted by N.C.Gen. Stat. § 1-75.4(3). Golding v. Taylor, 19 N.C.App. 245, 198 S.E.2d 478, cert. denied, 284 N.C. 121, 199 S.E.2d 659 (1973). Furthermore, this Court concluded that the claims for negligent infliction of emotional distress and loss of consortium were similar enough to the claims in Sherwood and Golding to also be classified as "injur[ies] to person or property" under N.C.Gen.Stat. § 1-75.4(4). Godwin, 118 N.C.App. 341, 455 S.E.2d 473. Thus, in the case sub judice, since the actions of alienation of affections and criminal conversation are identical to those in Golding, and the present plaintiff claims loss of marital consortium as did the plaintiff in Godwin, we will not deviate from precedent. Thus, plaintiff's claims are within the purview of N.C.Gen.Stat. § 1-75.4(4).

The trial judge found that the alleged telephone contacts (including telephone calls and telephone transmitted e-mail) were "solicitations" within the meaning of N.C.Gen. Stat. § 1-75.4(4) and we agree. Plaintiff alleged that defendant telephoned her husband in North Carolina in order to solicit his affections and entice him to leave his family. In addition, plaintiff claimed that she suffered injury, the destruction of her husband's love and affection, as the direct result of defendant's wrongful conduct. We conclude, therefore, that the North Carolina long-arm statute authorizes personal jurisdiction since the plaintiff's injury allegedly occurred within North Carolina and was allegedly caused by defendant's solicitation of plaintiff's husband's love and affection by telephoning plaintiff's home in North Carolina.

Since we have determined that personal jurisdiction is authorized by the long-arm statute, we must now address whether defendant had such minimum contacts with the forum state to comport with due process. Fraser v. Littlejohn, 96 N.C.App. 377, 386 S.E.2d 230 (1989). Due process requires that the defendant have "minimum contacts" with the state in order to satisfy "`traditional notions of fair play and substantial justice.'" International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95, 102 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278, 283 (1940)). The factors to consider when determining whether defendant's activities are sufficient to establish minimum contacts are: "(1) the quantity of the contacts; (2) the quality and nature of the contacts; (3) the source and connection of the cause of action to the contacts; (4) the interests of the forum state, and (5) the convenience to the parties." Fran's Pecans, Inc. v. Greene, 134 N.C.App. 110, 114, 516 S.E.2d 647, 650 (1999).

In the principal case, we have no transcript of the hearing and plaintiff's complaint does not allege the number of contacts defendant had with plaintiff's husband here in North...