Crockett v. Prantner
| Decision Date | 18 September 2012 |
| Docket Number | No. COA11–1565.,COA11–1565. |
| Parties | Jennifer CROCKETT, Plaintiff–Appellee, v. Shannon PRANTNER, Defendant–Appellant. |
| Court | North Carolina Court of Appeals |
OPINION TEXT STARTS HERE
Appeal by Defendant from order entered 29 August 2011 by Judge Henry W. Hight in Superior Court, Wake County. Heard in the Court of Appeals 14 August 2012.
Wake Family Law Group, by Nancy L. Grace and Katie H. King, for Plaintiff–Appellee.
Jonathan McGirt for Defendant–Appellant.
Jennifer Crockett (Plaintiff) filed a complaint on 3 February 2011 against Shannon Brockmann, now Shannon Prantner (Defendant), setting forth causes of action for alienation of affections and criminal conversation. Defendant, a resident of Iowa, filed motions to dismiss on 11 May 2011, based on a lack of personal jurisdiction and subject matter jurisdiction, and for failure to state a claim upon which relief could be granted with respect to Plaintiff's criminal conversation claim. Plaintiff filed an amended complaint dated 10 August 2011, changing, inter alia, Defendant's name to read “Shannon Prantner” and expanding the allegations of the complaint. In an order entered 29 August 2011, the trial court denied Defendant's motions to dismiss. Defendant appeals.
Plaintiff's amended complaint contains the following allegations: Plaintiff and Brian Crockett (Mr. Crockett) were married on 18 June 1988. Plaintiff and Mr. Crockett lived together as husband and wife until 8 May 2010, when they separated. Plaintiff alleged that she and Mr. Crockett were happily married and that she “had the benefit of and enjoyed her husband's society, genuine love and affection, and assistance.”
Mr. Crockett was an employee of John Deere. Defendant was also an employee of John Deere, though she resided in Illinois. Plaintiff alleged that Mr. Crockett and Defendant spent time with each other during a business trip that Mr. Crockett took to Australia in March 2010. Mr. Crockett ceased sleeping in the same bedroom with Plaintiff on 23 April 2010. After Mr. Crockett's separation from Plaintiff, he began residing with Defendant. Mr. Crockett and Defendant conceived a child who was born in March 2011.
Plaintiff's complaint alleged that Defendant “caused a deterioration of Plaintiff's marriage in Wake County, North Carolina [and][t]hrough her behavior, ... caused Plaintiff's husband to withdraw his love and attention from Plaintiff.” Specifically, Plaintiff alleged that Defendant spoke with Mr. Crockett over the telephone and by email to “arrange[ ] to meet ... with [Mr. Crockett] outside of the State of North Carolina to further their relationship and to engage in sexual intercourse under the pretext of business-related travel.”
Defendant raises on appeal the issues of whether: (1) “the trial court erred as a matter of fact and a matter of law in denying Defendant's motion to dismiss for lack of personal jurisdiction[;]” (2) “the trial court erred as a matter of law in denying Defendant's motion to dismiss Plaintiff's claim for criminal conversation on the grounds of lack of subject matter jurisdiction [;]” and (3) “the trial court erred as a matter of law in denying Defendant's motion to dismiss Plaintiff's claim for criminal conversation on the grounds of lack of personal jurisdiction.”
“Generally, there is no right of immediate appeal from interlocutory orders and judgments.” Goldston v. American Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). However, N.C. Gen.Stat. § 1–277(b) provides: “Any 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 or such party may preserve his exception for determination upon any subsequent appeal in the cause.” N.C. Gen.Stat. § 1–277(b) (2011). In the present case, Defendant is appealing the denial of her motions to dismiss pursuant to both Rule 12(b)(1) and 12(b)(2).
“[T]he right of immediate appeal of an adverse ruling as to jurisdiction over the person, under [N.C. Gen.Stat. § 1–277(b) ], is limited to rulings on ‘minimum contacts' questions, the subject matter of Rule 12(b)(2).” Love v. Moore, 305 N.C. 575, 581, 291 S.E.2d 141, 146 (1982). Defendant therefore has a right to immediate review of the denial of her rule 12(b)(2) motion to dismiss.
“On the other hand, the denial of a motion to dismiss pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction is not immediately appealable.” Data Gen. Corp. v. Cty. of Durham, 143 N.C.App. 97, 100, 545 S.E.2d 243, 246 (2001). Defendant argues that her appeal is properly before us for review of the trial court's personal jurisdiction determination and asserts that subject matter jurisdiction may be raised at any time, including on appeal. Defendant argues that her subject matter jurisdiction argument is also properly before us because “subject matter jurisdiction is a precondition to the exercise of personal jurisdiction[.]”
However, we note that our Courts has repeatedly held that the interlocutory review of the denial of a motion to dismiss is limited to personal jurisdiction grounds, and review of a subject matter jurisdiction question also decided in a trial court's ruling is untimely and improper. See, id. (); see also Meherrin Indian Tribe v. Lewis, 197 N.C.App. 380, 384–85, 677 S.E.2d 203, 207 (2009) ( ). In the present case we conclude that Defendant's novel arguments concerning subject matter jurisdiction are unpersuasive attempts to secure review of an otherwise interlocutory determination. We therefore do not address Defendant's arguments concerning subject matter jurisdiction.
Our Court discussed the standard of review for an order denying a motion to dismiss under Rule 12(b)(2) as follows:
The standard of review to be applied by a trial court in deciding a motion under Rule 12(b)(2) depends upon the procedural context confronting the court. Typically, the parties will present personal jurisdiction issues in one of three procedural postures:
(1) the defendant makes a motion to dismiss without submitting any opposing evidence;
(2) the defendant supports its motion to dismiss with affidavits, but the plaintiff does not file any opposing evidence; or (3) both the defendant and the plaintiff submit affidavits addressing the personal jurisdiction issues.
Banc of Am. Secs. LLC v. Evergreen Int'l Aviation, Inc., 169 N .C.App. 690, 693, 611 S.E.2d 179, 182 (2005). In the first situation, “[t]he trial judge must decide whether the complaint contains allegations that, if taken as true, set forth a sufficient basis for the court's exercise of personal jurisdiction.” Id. “On the other hand, if the defendant supplements his motion to dismiss with an affidavit or other supporting evidence, the ‘allegations [in the complaint] can no longer be taken as true or controlling and plaintiff[ ] cannot rest on the allegations of the complaint.’ “ Id. (citation omitted). “In that case, a plaintiff cannot rest on the complaint's allegations, even if they meet the initial burden of proving jurisdiction, ‘but must respond “by affidavit or otherwise ... set[ting] forth specific facts showing that the court has jurisdiction.” ‘ “ Bauer v. Douglas Aquatics, Inc., 207 N.C.App. 65, 69, 698 S.E.2d 757, 761 (2010) (citation omitted). If a plaintiff fails to file an affidavit responding to a defendant's affidavit, the trial court must then consider: “(1) any allegations in the complaint that are not controverted by the defendant's affidavit and (2) all facts in the affidavit (which are uncontroverted because of the plaintiff's failure to offer evidence).” Banc of Am. Secs. LLC, 169 N.C.App. at 693–94, 611 S.E.2d at 183.
However, “[a] verified complaint may be treated as an affidavit if it (1) is made on personal knowledge, (2) sets forth such facts as would be admissible in evidence, and (3) shows affirmatively that the affiant is competent to testify to the matters stated therein.” Bauer, 207 N.C.App. at 69, 698 S.E.2d at 761 (citation omitted). “In either case, the plaintiff bears the burden of proving, by a preponderance of the evidence, grounds for exercising personal jurisdiction over a defendant.” Id. at 68, 698 S.E.2d at 761. “As such, upon a defendant's motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of making out a prima facie case that jurisdiction exists.” Id.
When “the trial court chooses to decide the motion based on affidavits, ‘[t]he trial judge must determine the weight and sufficiency of the evidence [presented in the affidavits] much as a juror.’ “ Banc of Am. Secs. LLC, 169 N.C.App. at 694, 611 S.E .2d at 183 (citation omitted). Upon review of a determination regarding personal jurisdiction, this Court “considers only ‘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.’ “ Id. (citation omitted). However, “the trial court is not required to make specific findings of fact unless requested by a party.” Id. “When the record contains no findings of fact, ‘ “[i]t is presumed ... that the court on proper evidence found facts to support its judgment.” ‘ “ Id. (citation omitted).
“It is this Court's task to review the...
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