Hull v. Brown, COA20-748

Docket NºNo. COA20-748
Citation866 S.E.2d 485, 279 N.C.App. 570
Case DateOctober 05, 2021
CourtCourt of Appeal of North Carolina (US)

279 N.C.App. 570
866 S.E.2d 485

Ehren HULL, Plaintiff,
v.
Tony McLean BROWN, Defendant.

No. COA20-748

Court of Appeals of North Carolina.

Filed October 5, 2021


Homesley and Wingo Law Group, PLLC, by Andrew J. Wingo, Mooresville, and Kyle L. Putnam, for plaintiff-appellee.

James, McElroy & Diehl, P.A., by Preston O. Odom, III, G. Russell Kornegay, III, Charlotte, and Caroline T. Mitchell, for defendant-appellant.

TYSON, Judge.

866 S.E.2d 487
279 N.C.App. 570

I. Background

¶ 1 Ehren Hull, ("Plaintiff") commenced this action against Tony Brown ("Defendant") asserting claims for alienation of affection and criminal conversation (together, "covenant claims") regarding Plaintiff's wife. Plaintiff also brought claims for negligent infliction of emotional distress

279 N.C.App. 571

("NIED"), and intentional infliction of emotional distress ("IIED") (together, "emotional distress claims").

¶ 2 Defendant timely filed his Motion to Dismiss and Request for Transfer to the Superior Court of Wake County for Determination by a Three-Judge Panel ("Motion") pursuant to N.C. R. Civ. P. 42(b)(4). In the Motion, Defendant sought: (1) dismissal of Plaintiff's covenant claims on the basis the statute purportedly codifying them, N.C. Gen. Stat. § 52-13, is facially unconstitutional; and, (2) expeditious transfer of such constitutional challenge for resolution by a three-judge panel. The Motion failed to show the following statutory amendments changed any of the common law elements of either tort. The statute establishes:

(a) No act of the defendant shall give rise to a cause of action for alienation of affection or criminal conversation that occurs after the plaintiff and the plaintiffs spouse physically separate with the intent of either the plaintiff or plaintiffs spouse that the physical separation remain permanent.

(b) An action for alienation of affection or criminal conversation shall not be commenced more than three years from the last act of the defendant giving rise to the cause of action.

(c) A person may commence a cause of action for alienation of affection or criminal conversation against a natural person only.

N.C. Gen. Stat. § 52-13 (2019).

¶ 3 The trial judge made extensive findings of fact and conclusions of law and denied Defendant's transfer request and his motion to dismiss Plaintiff's covenant claims.

¶ 4 At the close of the hearing, Defendant moved to certify this matter for immediate appeal pursuant to Rule 54(b) of the North Carolina Rules of Civil Procedure. The trial court denied the motion and did not certify for immediate review.

¶ 5 Defendant filed and served: (1) his responsive pleading; (2) his objections and responses to Plaintiff's first request for admission; and, (3) his Notice of Appeal from the trial judge's ruling.

II. Issues

¶ 6 Defendant raises two issues on appeal. First, whether the trial court erred by denying his motion to transfer based upon his purported facial

279 N.C.App. 572

constitutional challenge to the covenant claims. Second, whether the trial court erred by denying Defendant's motion to dismiss because it lacked jurisdiction to adjudicate the merits.

III. Jurisdiction

¶ 7 Defendant argues his interlocutory appeal is properly before this Court pursuant to N.C. Gen. Stat. §§ 1-277(a) and 7A-27(b)(3) (2019).

Ordinarily, an appeal from an interlocutory order will be dismissed as fragmentary and premature unless the order affects some substantial right and will work injury to appellant if not corrected before appeal from final judgment ... Essentially a two-part test has developed[:] the right itself must be substantial and the deprivation of that substantial right must potentially work injury to plaintiff if not corrected before appeal from final judgment.

Goldston v. American Motors Corp. , 326 N.C. 723, 726, 392 S.E.2d 735, 736 (1990) (citations and internal quotation marks omitted).

[T]he ‘substantial right’ test for appealability of interlocutory orders is more easily stated than applied. It is usually
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2 practice notes
  • Kelly v. State, COA21-709
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • October 18, 2022
    ...this assertion. Id. ¶¶ 13-16; see also Lakins v. W. N. Carolina Conf. of United Methodist Church, 2022-NCCOA-337, ¶ 11; Hull v. Brown, 279 N.C.App. 570, 2021-NCCOA-525, ¶ 18 (denial of motion to transfer to three-judge panel premature prior to other claims being decided). ¶ 38 Parent-Interv......
  • Treadaway v. Payne, COA20-861
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • October 5, 2021
    ...the Residence in order to fund the special devises found in Article V, subsections (a) through 279 N.C.App. 672 (i), with the remaining 866 S.E.2d 485 proceeds from the sale of the Residence to pass to [D]efendant in fee simple;b. Testator intended that [D]efendant be allowed to remain at t......
3 cases
  • Kelly v. State, COA21-709
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • October 18, 2022
    ...this assertion. Id. ¶¶ 13-16; see also Lakins v. W. N. Carolina Conf. of United Methodist Church, 2022-NCCOA-337, ¶ 11; Hull v. Brown, 279 N.C.App. 570, 2021-NCCOA-525, ¶ 18 (denial of motion to transfer to three-judge panel premature prior to other claims being decided). ¶ 38 Parent-Interv......
  • Lakins v. W. N.C. Conference of the United Methodist Church, COA21-415
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • May 17, 2022
    ...facial constitutional challenge should not happen until after a trial on the other unaffected claims in the lawsuit." Hull v. Brown , 279 N.C.App. 570, 2021-NCCOA-525, ¶ 12, 866 S.E.2d 485 (citation and internal quotation marks omitted). " ‘All other matters’ under Rule 42(b)(4) means ‘all ......
  • Treadaway v. Payne, COA20-861
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • October 5, 2021
    ...the Residence in order to fund the special devises found in Article V, subsections (a) through 279 N.C.App. 672 (i), with the remaining 866 S.E.2d 485 proceeds from the sale of the Residence to pass to [D]efendant in fee simple;b. Testator intended that [D]efendant be allowed to remain at t......

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