Dipasupil v. Neely

• Decision Date: 19 November 2019
• Docket Number: No. COA18-1207,COA18-1207
• Citation: 834 S.E.2d 451 (Table)
• Parties: James DIPASUPIL, Plaintiff, v. Harold Kenneth NEELY, Jr., Defendant.
• Court: North Carolina Court of Appeals

834 S.E.2d 451 (Table)

James DIPASUPIL, Plaintiff,

v.Harold Kenneth NEELY, Jr., Defendant.

No. COA18-1207

Court of Appeals of North Carolina.

Filed: November 19, 2019

McIlveen Family Law, by Angela W. McIlveen, Gastonia, Chelsea M. Chapman, and Ryan P. Srnik, for Plaintiff-Appellee.

James, McElroy & Diehl, P.A., by Gena G. Morris, Charlotte, and Caroline T. Mitchell, for Defendant-Appellant.

COLLINS, Judge.

Defendant appeals from an order denying his motion to dismiss Plaintiff’s claim for alienation of affections. Because the trial court lacked subject matter jurisdiction over the claim, we reverse.

I. Background and Procedural History

James Dipasupil ("Plaintiff") and Heather Wong ("Ms. Wong") were married in 1997; six children were born of the marriage. They lived together in Minnesota until Plaintiff moved to Union County, North Carolina for work in May 2013. Ms. Wong remained in Minnesota with their children. Ms. Wong initiated divorce proceedings against Plaintiff on 29 August 2014. In November 2014, Ms. Wong and their children moved to Union County and lived with Plaintiff.

In late February 2015, Ms. Wong contacted Harold Kenneth Neely, Jr., ("Defendant") on LinkedIn to evaluate her employment prospects. At the time, Defendant was a Wealth Management Advisor in Fairfax, Virginia, and had been a Virginia resident for over five years. Ms. Wong and Defendant first met in 1996 while attending Yale University and were friends when they worked as interns in New York City at the same time. Defendant responded to Ms. Wong’s message on 9 March 2015. On 3 April 2015, Defendant and Ms. Wong stayed together at a hotel in Washington, D.C. and engaged in sexual intercourse.

On 22 April 2015, Ms. Wong separated from Plaintiff and returned to Minnesota with their three youngest children. Ms. Wong then moved for an ex parte domestic violence protective order on 1 May 2015 in Hennepin County, Minnesota, citing domestic abuse. The motion was heard on 7 May 2015 in Hennepin County district court; at the hearing, the parties stipulated to a permanent order for protection that expired on 1 May 2017.

In May 2015, Plaintiff found multiple provocative pictures and intimate text messages on Ms. Wong’s phone that had been exchanged between Ms. Wong and Defendant prior to the 22 April 2015 separation. Ms. Wong subsequently blocked Plaintiff’s access to family phone records. Plaintiff and Ms. Wong’s divorce was finalized on 28 November 2016, and the children lived with Ms. Wong in Minnesota. Ms. Wong and the children relocated to Fairfax, Virginia, on 29 June 2018. Ms. Wong and Defendant have a child together and were in a relationship during the time of the trial court’s proceedings in this action. Plaintiff is now a resident of Wesley Chapel, Florida.

Plaintiff filed a verified complaint in Union County against Defendant on 6 March 2018 alleging alienation of affections and criminal conversation. On 18 July 2018, Defendant filed a motion to dismiss for lack of subject matter jurisdiction under N.C. Gen. Stat. § 1A-1, Rule 12(b)(1), and lack of personal jurisdiction under N.C. Gen. Stat. § 1A-1, Rule 12(b)(2). The motion was accompanied by sworn affidavits of Ms. Wong and Defendant, as well as supporting documentation from Hennepin County, Minnesota. Defendant subsequently filed a motion for protective order to stay discovery pending a decision on his motion to dismiss. Plaintiff filed an unverified response to Defendant’s motion to dismiss and did not submit any affidavits.

Defendant’s motion to dismiss was heard on 20 August 2018. Neither party presented additional evidence. By written order entered 12 September 2018, the trial court granted the motion as to Plaintiff’s claim for criminal conversation, and denied the motion as to Plaintiff’s claim for alienation of affections. Defendant timely appealed.

II. Discussion

Defendant contends on appeal that the trial court erred by denying his motion to dismiss his alienation of affections claim because the trial court lacked subject matter jurisdiction over the claim and lacked personal jurisdiction over Defendant.

We first address this Court’s jurisdiction to hear the issues on appeal. The trial court’s denial of Defendant’s motion to dismiss is an interlocutory order from which there is generally no right of immediate appeal. Goldston v. Am. Motors Corp. , 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). However, an interlocutory order may be immediately appealed when it "[a]ffects a substantial right," N.C. Gen. Stat. §§ 1-277(a), 7A-27(b)(3)(a) (2018), or makes an adverse ruling as to personal jurisdiction, N.C. Gen. Stat. § 1-277(b) (2018). This right of immediate appeal of an order denying a motion to dismiss for lack of personal jurisdiction "is limited to rulings on minimum contacts questions." Credit Union Auto Buying Serv., Inc. v. Burkshire Props. Grp. Corp. , 243 N.C. App. 12, 14, 776 S.E.2d 737, 739 (2015) (internal quotation marks and citation omitted).

"Ordinarily, an order denying a motion to dismiss for lack of subject matter jurisdiction is interlocutory and is not immediately appealable." Church v. Carter , 94 N.C. App. 286, 288, 380 S.E.2d 167, 168 (1989). However, because subject matter jurisdiction is a prerequisite to personal jurisdiction, our Court immediately reviews a challenge to subject matter jurisdiction where, as here, there is an accompanying challenge to personal jurisdiction. Id. at 288, 380 S.E.2d at 168 (holding that when a defendant challenges both subject matter jurisdiction and personal jurisdiction, the trial court was required to "decide the issue [the defendant] ha[d] raised concerning subject matter jurisdiction")¹ ; see also Tart v. Prescott’s Pharmacies , 118 N.C. App. 516, 519, 456 S.E.2d 121, 124 (1995) (addressing the court’s subject matter jurisdiction in conjunction with plaintiff’s personal jurisdiction challenge because "[s]ubject matter jurisdiction is a prerequisite to the exercise of personal jurisdiction." (citing Church , 94 N.C. App. at 288, 380 S.E.2d at 168 )). Accordingly, we have jurisdiction to hear Defendant’s appeal of the denial of his motion to dismiss based on lack of both subject matter and personal jurisdiction.

Defendant first argues that the trial court erred by denying his motion to dismiss the alienation of affections claim for lack of subject matter jurisdiction.

A motion to dismiss pursuant to Rule 12(b)(1) of the North Carolina Rules of Civil Procedure represents a challenge to the trial court’s subject matter jurisdiction over a plaintiff’s claims. N.C. Gen. Stat. § 1A-1, Rule 12(b)(1) (2018). "Subject matter jurisdiction refers to the power of the court to deal with the kind of action in question." Harris v. Pembaur , 84 N.C. App. 666, 667, 353 S.E.2d 673, 675 (1987). "Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." N.C. Gen. Stat. § 1A-1, Rule 12(h)(3) (2018).

The trial court "need not confine its evaluation of a Rule 12(b)(1) motion to the face of the pleadings, but may review or accept any evidence, such as affidavits, or it may hold an evidentiary hearing." Smith v. Privette , 128 N.C. App. 490, 493, 495 S.E.2d 395, 397 (1998) (quotation marks, brackets, and citations omitted); see Tart v. Walker , 38 N.C. App. 500, 502, 248 S.E.2d 736, 737 (1978) ("[M]atters outside the pleadings ... may be considered and weighed by the court in determining the existence of jurisdiction over the subject matter."). Where, as here, "no findings are made, proper findings are presumed, and our role on appeal is to review the record for competent evidence to support these presumed findings." Bruggeman v. Meditrust Acquisition Co. , 138 N.C. App. 612, 615, 532 S.E.2d 215, 217-18 (2000).² "Competent evidence is evidence that a reasonable mind might accept as adequate to support the finding. Eley v. Mid/East Acceptance Corp. of N.C., Inc. , 171 N.C. App. 368, 369, 614 S.E.2d 555, 558 (2005) (internal quotation marks and citations omitted). This Court reviews de novo the legal conclusions made in an order denying a Rule 12(b)(1) motion. Privette , 128 N.C. App. at 493, 495 S.E.2d at 397.

"The elements of an alienation of affections action are: (1) a marriage with genuine love and affection; (2) the alienation and destruction of the marriage’s love and affection; and (3) a showing that defendant’s wrongful and malicious acts brought about the alienation of such love and affection." Heller v. Somdahl , 206 N.C. App. 313, 315, 696 S.E.2d 857, 860 (2010). "A [wrongful and] malicious act, in the context of an alienation of affections claim, has been loosely defined to include any intentional conduct that would probably affect the marital relationship." Jones v. Skelley , 195 N.C. App. 500, 508, 673 S.E.2d 385, 391 (2009) (citation and quotation marks omitted).

A claim for alienation of affections is a transitory tort because it is based on transactions that can take place anywhere and that harm the marital relationship. The substantive law applicable to a transitory tort is the law of the state where the tortious injury occurred, and not the substantive law of the forum state. The issue of where the tortious injury occurs ... is based on where the alleged alienating conduct occurred, not the locus of the plaintiff’s residence or marriage. Accordingly, where the defendant’s involvement with the plaintiff’s spouse spans multiple states, for North Carolina substantive law to apply, a plaintiff must show that the tortious injury occurred in North Carolina.

Id . at 506, 673 S.E.2d at 389-90 (internal citations, quotation marks, brackets, and ellipses omitted). "Establishing that the defendant’s alienating conduct occurred within a state that still recognizes alienation of affections as a valid cause of action is essential to a successful claim since most jurisdictions have abolished the tort." Hayes v. Waltz , 246 N.C. App. 438, 443, 784...