Jones v. Skelley, COA08-387.

• Decision Date: 03 March 2009
• Docket Number: No. COA08-387.,COA08-387.
• Citation: 673 S.E.2d 385
• Court: North Carolina Court of Appeals
• Parties: Rebecca P. JONES, Plaintiff v. Susan L. SKELLEY, Defendant.

673 S.E.2d 385

Rebecca P. JONES, Plaintiff v. Susan L. SKELLEY, Defendant.

No. COA08-387.

Court of Appeals of North Carolina.

March 3, 2009.

Appeal by plaintiff from an order entered 27 November 2007 by Judge Ola M. Lewis in Brunswick County Superior Court. Heard in the Court of Appeals 22 October 2008.

Gailor, Wallis & Hunt, P.L.L.C., by Kimberly A. Wallis and Jaime H. Davis, Raleigh, for plaintiff-appellant.

Jess, Isenberg & Thompson, by Laura E. Thompson, Southport, for defendant-appellee.

HUNTER, ROBERT C., Judge.

Rebecca P. Jones ("plaintiff") appeals from an order granting summary judgment in favor of defendant Susan L. Skelley ("defendant") and dismissing plaintiff's claims for alienation of affections and criminal conversation based on lack of subject matter jurisdiction. After careful review, we reverse and remand.

I. Background

On 16 March 2006, plaintiff filed a complaint against defendant in Brunswick County Superior Court asserting claims for alienation of affections and criminal conversation. On 1 November 2007, plaintiff filed a motion for summary judgment as to her criminal conversation claim. On 13 November 2007, defendant filed a motion for summary judgment seeking dismissal of plaintiff's claims for lack of subject matter jurisdiction, or in the alternative, for an order granting defendant's motion for the application of South Carolina law. At the motions hearing, defendant conceded that she had stipulated to personal jurisdiction.¹ However, defendant argued, inter alia, that because the majority of her alleged acts which purportedly alienated the affections of plaintiff's spouse, Phil V. Jones ("Mr.Jones"), occurred in South Carolina, and because plaintiff lived in South Carolina at all times, any tortious injury had to occur in South Carolina. Because South Carolina does not recognize the tort of alienation of affections, defendant asserted that the trial court lacked subject matter jurisdiction and was required to dismiss the alienation of affections claim. As to the criminal conversation claim, defendant contended that even though she had engaged in sexual intercourse with Mr. Jones in North Carolina in June 2004 while the Joneses were still married, the court lacked subject matter jurisdiction because South Carolina abolished the tort of criminal conversation and any injury or damage would have occurred in South Carolina given that the Joneses were residents of South Carolina.

Plaintiff argued that North Carolina law is clear that for alienation of affections, the tortious injury or harm occurs where a defendant's alienating acts occur and that for criminal conversation, said injury occurs where the sexual intercourse occurs, not where a plaintiff resides. She asserted that because defendant's alienating acts occurred in both North Carolina and South Carolina, there was a material question of fact as to where the tortious injury occurred and consequently, whether North Carolina or South Carolina law applied. As to the criminal conversation claim, plaintiff contended that North Carolina law is clear that a defendant can be liable for a single act of post-separation sexual intercourse with another's spouse in North Carolina, and given that defendant admitted to engaging in sexual intercourse with her husband in North Carolina while they were still married, she, not defendant, was entitled to summary judgment.

The trial court granted summary judgment based on lack of subject matter jurisdiction and dismissed both claims. Plaintiff appeals.

Standard of Review

Under Rule 56, summary judgment shall be entered "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law."

Mortgage Co. v. Real Estate, Inc., 39 N.C.App. 1, 3, 249 S.E.2d 727, 729 (1978) (citations omitted), affirmed per curiam, 297 N.C. 696, 256 S.E.2d 688 (1979).

The burden of establishing the lack of any triable issue of fact is on the party moving for summary judgment, and the movant's papers are carefully scrutinized while those of the opposing party are regarded with indulgence. The movant can satisfy this burden either by proving that an essential element of the opposing party's claim is nonexistent or by showing, through discovery, that the opposing party cannot produce evidence to support an essential element of its claim.

Id. at 4, 249 S.E.2d at 729 (citations omitted). While courts must determine if a genuine issue of material fact exists, they are not authorized to decide an issue of material fact. Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 470, 251 S.E.2d 419, 422 (1979). Further, "if there is any question as to the credibility of affiants in a summary judgment motion or if there is a question which can be resolved only by the weight of the evidence, summary judgment should be denied." City of Thomasville v. Lease-Afex, Inc., 300 N.C. 651, 655, 268 S.E.2d 190, 193-94 (1980) (citations omitted). In ruling on a motion for summary judgment, "`"the evidence is viewed in the light most favorable to the non-moving party," and all inferences of fact must be drawn against the movant and in favor of the nonmovant.'" Koenig v. Town of Kure Beach, 178 N.C.App. 500, 503, 631 S.E.2d 884, 887 (2006) (citations omitted). The standard of review is de novo. Builders Mut. Ins. Co. v. North Main Constr., Ltd., 361 N.C. 85, 88, 637 S.E.2d 528, 530 (2006).

Viewed in the light most favorable to plaintiff, the evidence tends to show that plaintiff and Mr. Jones married in 1974, moved to South Carolina from North Carolina in 1979, and had eleven children during their marriage. They separated on 29 January 2004 but did not enter a formal separation agreement until 21 January 2005. On 31 January 2005, plaintiff filed for divorce in South Carolina and on 4 March 2005, she and Mr. Jones divorced. Defendant admitted that she lived in North Carolina until mid-August 2003 and between March and May of 2004. At the time plaintiff filed her complaint, defendant lived in South Carolina. Plaintiff has resided in South Carolina since 1979. Mr. Jones has lived in South Carolina since 1979 as well, with the exception of spending the majority of the 2003 summer living in a friend's trailer in North Carolina.

Beginning in January 2003, defendant and Mr. Jones began conversing with some regularity via cell phone. Both testified that their relationship began to deepen in the spring of 2003. Defendant testified that she and Mr. Jones began to talk frequently via cell phone in the spring of 2003 and that they would also occasionally meet in parking lots. Defendant and Mr. Jones both admitted that they concealed their phone conversations, these meetings, and their relationship from their respective spouses. Mr. Jones testified that he hid this information from his wife because his relationship with defendant "was too close." Defendant admitted to having secret, lengthy, phone conversations with Mr. Jones and that she remembered being "very close to" Mr. Jones before May 2003. She further testified that in February or March 2003, during a rendevous in a South Carolina parking lot, Mr. Jones gave her a letter stating that "he had fallen in love with [her]."

On or about 12 May 2003, plaintiff was diagnosed with genital herpes. After her diagnosis, Mr. Jones left the marital household for the majority of the 2003 summer, and the Joneses began marriage counseling. Mr. Jones testified that he had never been diagnosed with genital herpes. He did testify that he had a "rash" on his penis and that he believed he had told defendant about this fact; however, Mr. Jones could not explain why he would have told defendant about the rash given that he denied having any sexual contact with her prior to this time. On 15 May 2003, defendant was prescribed Valtrex, a drug used to treat the herpes virus; however, she testified that she had never been diagnosed with herpes and that the drug was prescribed to treat fever blisters.

For two to three months during the 2003 summer, Mr. Jones lived in North Carolina in a friend's trailer. In May 2003, defendant left her marital home in North Carolina and moved into a condominium in North Carolina. Mr. Jones testified that during the 2003 summer, he and defendant became "affectionate" but that they only engaged in hugging at her North Carolina condominium. Despite testifying several times that only hugging occurred at her North Carolina apartment, defendant ultimately admitted that she and Mr. Jones engaged in hugging and kissing throughout the 2003 summer. Plaintiff testified that in August 2003, Mr. Jones admitted to her that he had engaged in sexual intercourse with defendant at her North Carolina condominium during the 2003 summer and that he had engaged in "sexual touching" with defendant prior to May 2003. In addition, on 6 June 2003, plaintiff went to a home where Mr. Jones was performing construction and found defendant hiding in a closet, albeit fully clothed. When asked at her deposition why she was hiding in the closet, defendant testified that she did not want to confront plaintiff. Plaintiff claims this home was located in Cherry Grove, North Carolina and defendant asserts it was located in Cherry Grove, South Carolina.

On or about 21 August 2003, plaintiff allowed Mr. Jones to return to the marital residence because he promised her that he had ended his relationship with defendant and because plaintiff wanted to work on their marriage. Toward the end of August, defendant attended a treatment facility in Arizona known as "the Meadows." Defendant admitted that while there, she wrote a letter to Mr. Jones almost every day and sent them to a secret, prearranged post office box in Surfside, South Carolina. She further admitted that in these letters, she and Mr. Jones expressed their love for each other. Mr. Jones...