Jessee v. Jessee
| Decision Date | 07 June 2011 |
| Docket Number | No. COA09–1704.,COA09–1704. |
| Citation | 713 S.E.2d 28 |
| Parties | Jimmy K. JESSEE, Plaintiff,v.Christine JESSEE and Sandra L. Stewart, individually and as Trustee of the Jessee Family Trust and The Jessee Family Trust, Defendants. |
| Court | North Carolina Court of Appeals |
OPINION TEXT STARTS HERE
Appeal by defendants from order entered 3 September 2009 by Judge Richard W. Stone in Forsyth County Superior Court. Heard in the Court of Appeals 9 June 2010.
David B. Hough, P.A., Winston–Salem, by David B. Hough, for plaintiff-appellee.
Vernon, Vernon, Wooten, Brown, Andrews & Garrett, P.A., Burlington, by Benjamin D. Overby, for defendant-appellants.
Defendants Christine Jessee; Sandra L. Stewart, individually and as Trustee of the Jessee Family Trust; and the Jessee Family Trust appeal from an order entered by the trial court denying their motion to dismiss the complaint filed by Plaintiff Jimmy K. Jessee on the grounds that the pleading in question involved issues that had already been joined between the parties in an equitable distribution case that was pending before the Alamance County District Court. After careful consideration of Defendants' challenges to the trial court's order in light of the record and the applicable law, we conclude that Plaintiff's complaint should not be dismissed, that the trial court's order should be affirmed, and that the Forsyth County case should be held in abeyance pending resolution of the Alamance County domestic relations case.
Plaintiff and Defendant Christine Jessee married on 28 September 2002 and separated 9 May 2008. On 21 July 2008, Defendant Christine Jessee filed a complaint in Alamance County District Court seeking a divorce from bed and board, post-separation support and alimony, and equitable distribution. On 3 September 2008, Plaintiff filed an answer to Defendant Christine Jessee's Alamance County complaint in which he denied the material allegations of Defendant Christine Jessee's complaint and counterclaimed for divorce from bed and board based on a number of grounds, including an allegation that Defendant Christine Jessee had impermissibly utilized Plaintiff's credit card “to borrow the sum of $24,000.00 ... without the knowledge or consent of” Plaintiff, and equitable distribution.
On 24 April 2009, Plaintiff filed a complaint in Forsyth County Superior Court alleging that Defendant Christine Jessee had committed various fraudulent acts which resulted in the conversion of $56,663.00 of funds to which Plaintiff was entitled for her personal use and improperly conveyed the marital residence to Defendant Jessee Family Trust. According to the allegations of Plaintiff's complaint, Defendant Christine Jessee resided in the former marital residence in Burlington after she and Plaintiff separated, while Plaintiff decided to live in Winston–Salem. As of the date of separation, Plaintiff received monthly Social Security checks in the amount of $1,977.00. However, during the months of May and June, 2008, Defendant Christine Jessee, without Plaintiff's knowledge and consent, redirected two of Plaintiff's Social Security checks for her own personal use, depriving him of $3, 954. 00 in Social Security benefits. In addition, Plaintiff alleged that Defendant Christine Jessee obtained the issuance of various credit cards or other loan proceeds, which she utilized for her own benefit, by fraudulently providing Plaintiff's personal identification information, including his social security number, date of birth, and mother's maiden name, to the entities issuing the cards in question after the date of separation. More specifically, Plaintiff alleged in his Forsyth County complaint that Defendant Christine Jessee improperly obtained the following “loans,” the proceeds of which she improperly utilized for her own purposes, for which the lending entities were seeking to hold Plaintiff liable:
1. An indebtedness of $24,200.00 arising from Defendant Christine Jessee's decision to improperly utilize an L.L. Bean credit card issued by Bank of America in Plaintiff's name and to utilize the card for her own purposes.
2. An indebtedness of $19,940.00 arising from Defendant Christine Jessee's decision to improperly obtain a credit card issued by American Express in Plaintiff's name and to utilize the card for her own purposes.
3. An indebtedness of $3,251.00 arising from Defendant Christine Jessee's decision to improperly obtain a credit card issued by J.P. Morgan Chase in Plaintiff's name and to utilize the card for her own purposes.
4. An indebtedness of $661.00 arising from Defendant Christine Jessee's decision to improperly obtain a credit card issued by Citigroup in Plaintiff's name and to utilize the card for her own purposes.
5. An indebtedness of $3,657.00 arising from Defendant Christine Jessee's decision to improperly obtain an additional credit card issued by J.P. Morgan Chase in Plaintiff's name and to utilize the card for her own purposes.
6. An indebtedness of $1,000.00 arising from Defendant Christine Jessee's decision to improperly obtain a credit card issued by Discover in Plaintiff's name and to utilize the card for her own purposes.
Moreover, Plaintiff alleged in his Forsyth County complaint that, on or about 3 September 2008, Defendant Christine Jessee, directly or indirectly utilizing funds that “she obtained from the fraudulent social security check and credit card transactions, satisfied all of the existing mortgage secured by” the marital home and filed the necessary satisfaction notice with the Alamance County Register of Deeds. In addition, Plaintiff alleged that, on or about 26 November 2008, Defendant Christine Jessee and her close personal friend, Defendant Sandra L. Stewart, formed Defendant Jessee Family Trust, with Defendant Sandra L. Stewart designated as trustee and with the trust corpus to be used for the benefit of Defendant Christine Jessee. According to Plaintiff's complaint, Defendant Christine Jessee fraudulently conveyed the unencumbered marital residence to Defendant Sandra L. Stewart in her capacity as trustee of the Jessee Family Trust, with a retained life estate for the benefit of Defendant Christine Jessee. Based upon these allegations, Plaintiff alleged that he was entitled to recover at least $3,954.00 relating to the converted Social Security checks and at least $52,709.00 relating to the improperly obtained credit cards from Defendants Christine Jessee and Sandra L. Stewart, to recover punitive damages from Defendant Christine Jessee, to recover statutory damages for identity theft and attorneys fees pursuant to N.C. Gen.Stat. § 1–539.2C, and to have the transfer of the marital residence to the Jessee Family Trust invalidated.
On 3 June 2009, Defendants filed a motion seeking to have the venue for the Forsyth County action changed to Alamance County on the grounds that “[a]ll of the alleged actions were purported to occur in Alamance County.” On 17 August 2009, Defendants filed an Answer, Motion to Change Venue and Motion to Dismiss in the Forsyth County action in which Defendants denied the material allegations of Plaintiff's complaint, sought the dismissal of the Forsyth County action based upon N.C. Gen.Stat. § 7A–244 and the “prior pending action” doctrine in light of the pending domestic action in Alamance County, asserted certain affirmative defenses, and renewed their motion that venue for the Forsyth County action be changed to Alamance County. On 19 August 2009, Plaintiff filed a reply to Defendant's dismissal and change of venue motions.
After conducting a hearing concerning Defendants' dismissal and change of venue motions at the 31 August 2009 civil session of Forsyth County Superior Court, the trial court entered an Order Denying Defendants' Motions to Change Venue and to Dismiss on 3 September 2009. In its order, the trial court found as a fact that:
Motion to Dismiss
9. On or about July 18, 2008, Defendant Christine Jessee filed against the Plaintiff a domestic action in Alamance County (08 CVD 2228), seeking a Divorce from Bed and Board, Post Separation Support/Alimony and Equitable Distribution.
10. The instant case does involve two of the same parties, yet raises different causes of action, namely, the alleged theft by Defendant Christine Jessee of two Social Security checks and the identity of the Plaintiff and the alleged fraudulent conveyance by the Defendant Christine Jessee of a parcel of real property.
11. The instant case, therefore, is not subject to the provisions of N.C. [Gen.Stat.] § 7A–244 and does not include the same subject matter of the Alamance County domestic case. Furthermore, the Complaint in the instant case does state a claim upon which relief can be granted.
12. The instant case, therefore, should not be dismissed as against the Plaintiff and the Defendants' motion to dismiss should be denied.
Based upon these findings of fact 1, the trial court “conclude[d] as a matter of law that the Defendants' motions to change the venue of this action and to dismiss this action ought to be denied” and denied both motions. Defendants noted an appeal to this Court from the trial court's order.
On appeal, Defendants contend that the trial court erred by failing to dismiss the Forsyth County action in light of the pending domestic action in Alamance County District Court because Plaintiff's claims implicate the exclusive jurisdiction of the District Court over domestic relations cases established by N.C. Gen.Stat. § 7A–244 and because the Forsyth County action is barred under the “prior pending action” doctrine. We are not persuaded by either of Defendants' contentions.
As a preliminary matter, the order from which Defendants have sought to appeal is clearly interlocutory rather than final in nature, since the trial court's orders were “made during the pendency of an action [and] do not dispose of the case, but instead leave it for further action by the trial court in...
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