Mannise v. Harrell

• Decision Date: 06 September 2016
• Docket Number: No. COA16–42,COA16–42
• Citation: 249 N.C.App. 322,791 S.E.2d 653
• Court: North Carolina Court of Appeals
• Parties: Ashley MANNISE, Plaintiff, v. Stephen J. HARRELL, Defendant.

249 N.C.App. 322

791 S.E.2d 653

Ashley MANNISE, Plaintiff,

v.Stephen J. HARRELL, Defendant.

No. COA16–42

Court of Appeals of North Carolina.

Filed: September 6, 2016

Carver Law Firm, PLLC, Spring Lake, by Baccuhus H. Carver, for plaintiff-appellee.

Levy Law Offices, by Joshua N. Levy, for defendant-appellant.

TYSON, Judge.

Defendant, Stephen J. Harrell, appeals from the trial court's order, which denied his motion to dismiss Ashley Mannise's complaint ("Plaintiff"). We reverse the trial court's order.

I. Background

Plaintiff and Defendant are the unmarried parents of a child, who was five years old when this action commenced. On 8 September 2015, Plaintiff filed a pro se Complaint and Motion for a Chapter 50B Domestic Violence Protective Order in the Harnett County District Court. Plaintiff asserted she was a resident of Harnett County. She listed Defendant's address in Butler, Pennsylvania.

Plaintiff alleged Defendant had threatened her life on 6 September 2015, two days prior to the filing of the complaint, because she was "moving out of state with [their] son." She asserted Defendant had hit her, yelled at her, and made her cry in front of the child in the past. Plaintiff also alleged Defendant had beat her with a chair and chased her around the house with a gun in October 2013, while her children were present. Plaintiff's complaint does not allege she was a resident of North Carolina at the time of any of these allegations, or any actions took place while she or Defendant were physically present in North Carolina.

An Affidavit as to Status of Minor Child was attached to the complaint. The affidavit states the parties’ child resided with Plaintiff in Pennsylvania from August 2012 until September 2015, and with Plaintiff in Lillington, North Carolina from 6 September 2015 until the filing of the complaint two days later.

Based upon these allegations, the trial court issued an Ex Parte Domestic Violence Order of Protection on 8 September 2015. See N.C. Gen. Stat. § 50B–2(c)(5) (2015) ("Upon the issuance of an ex parte order under this subsection, a hearing shall be held within 10 days from the date of issuance of the order or within seven days from the date of service of process on the other party, whichever occurs later.").

The trial court found Defendant had placed Plaintiff in fear of imminent serious bodily injury on 6 September 2015. The court stated, "[t]he allegations in the Complaint are incorporated herein by reference." The court did not make any factual findings that any of the alleged events occurred within North Carolina, or while Plaintiff was a resident of North Carolina.

On 15 September 2015, Defendant filed a motion pursuant to Rules 12(b)(1) and 12(b)(2) to dismiss Plaintiff's complaint. Defendant argued the trial court did not have personal jurisdiction over him under Rule 12(b)(2), because he did not live in North Carolina during any times referenced in the complaint, and had not taken any action to subject himself to the jurisdiction of the North Carolina courts. Defendant also asserted Plaintiff failed to allege Defendant had taken any action or made any contacts while either party was physically present in North Carolina.

Defendant's motion also alleged the trial court lacked subject matter jurisdiction under Rule 12(b)(1). He argued Plaintiff made no allegations regarding any actions by Defendant within North Carolina, or any injury she suffered while in North Carolina.

In support of his motion to dismiss, Defendant filed an affidavit and stated he was a resident of North Carolina from 1998 until August 2012. Plaintiff and Defendant both moved together to Pennsylvania in August 2012, where they resided together until November 2013, when they ended their relationship. Defendant's affidavit states he has not been a resident of North Carolina since August 2012, when he became a resident of Pennsylvania.

On 26 October 2015, the trial court denied Defendant's motion to dismiss, and concluded North Carolina's courts have personal and subject matter jurisdiction over the parties. Even if personal jurisdiction is lacking, the court concluded Defendant's motion to dismiss should be denied "to the extent that the plaintiff should be allowed to seek a prohibitory order serving to protect her from further acts of domestic violence but without any provisions requiring the defendant to undertake any actions." Defendant appeals.

II. Issues

Defendant argues the trial court erred by denying his motions to dismiss Plaintiff's complaint, where the trial court lacked personal and subject matter jurisdiction.

III. Notice of Appeal

Neither party has raised an issue regarding Defendant's notice of appeal. Defendant's motion to dismiss was heard and orally ruled upon on 15 September 2015. Thereafter, on 7 October 2015, Defendant filed notice of appeal. The trial court's written order was signed and filed on 26 October 2015, more than a month after Defendant had filed notice of appeal. Defendant did not file an amended notice of appeal. The trial court's order states, "Date Entered: 15 September 2015[,] Date Signed: 26 October 2015." Defendant filed notice of appeal subsequent to the date the order was orally rendered, but before the order was reduced to writing, filed, and entered.

Rule 3 of the North Carolina Rules of Appellate Procedure governs the notice of appeal in civil cases. The rule provides the appellant must file and serve notice of appeal "within thirty days after entry of judgment if the party has been served with a copy of the judgment within the three day period prescribed by Rule 58 of the Rules of Civil Procedure," or "within thirty days after service upon the party of a copy of the judgment if service was not made within that three day period[.]" N.C. R. App. P. 3(c)(1) and (2) (2015) (emphasis supplied).

In civil cases, a judgment is "entered" when it is "reduced to writing, signed by the judge, and filed with the clerk of court." N.C. Gen. Stat. § 1A–1, Rule 58 (2015). " ‘When [the trial court's] oral order is not reduced to writing, it is non-existent and thus cannot support an appeal.’ " Griffith v. N.C. Dep't of Corr. , 210 N.C.App. 544, 549, 709 S.E.2d 412, 416–17 (2011) (quoting Olson v. McMillian , 144 N.C.App. 615, 619, 548 S.E.2d 571, 574 (2001) ). " ‘The announcement of judgment in open court is the mere rendering of judgment, not the entry of judgment. The entry of judgment is the event which vests this Court with jurisdiction.’ " Id . at 549, 709 S.E.2d at 417 (quoting Worsham v. Richbourg's Sales & Rentals , 124 N.C.App. 782, 784, 478 S.E.2d 649, 650 (1996) ).

Here, the trial court's order was "entered" when it was reduced to writing, signed, and filed with the clerk of court on 26 October 2015. An entered order did not exist when Defendant filed notice of appeal on 7 October 2015. See id. Defendant did not file a subsequent or amended notice of appeal following entry of the order.

On 13 October 2015, the trial court entered the following order: "Defendant filed a Notice of Appeal on 10–7–2015 as to the Court overruling defendant's Motion to Dismiss on 9–15–2015 (oral rendering). Although the written order has not been signed, defendant's intention is clear and the parties agree to continue the case to 2–2–2016." Defendant has failed to take timely action to perfect his appeal pursuant to Appellate Rule 3, and his appeal is not properly before this Court. N.C. R. App. P. 3(c).

"The writ of certiorari may be issued in appropriate circumstances by either appellate court to permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action[.]" N.C. R. App. P. 21(a) (2015). Defendant has not filed a petition for writ of certiorari.

In the exercise of our discretion, we invoke Rule 2 to suspend the Rules of Appellate Procedure, treat Defendant's notice of appeal and brief as a petition for the issuance of a writ of certiorari to review the issues Defendant has raised in his brief, and issue the writ. N.C. R. App. P. 2 ; see Newcomb v. Cnty. of Carteret , 207 N.C.App. 527, 545, 701 S.E.2d 325, 338–39 (2010) (electing to treat the record and briefs as a petition for the issuance of a writ of certiorari where consideration of the issue on the merits would expedite the ultimate disposition of the case).

IV. Interlocutory Appeal

Plaintiff instituted this purported action on 8 September 2015 by the filing of a complaint and motion for a Chapter 50B domestic violence protective order. Later that day, the district court entered an ex parte domestic violence protective order, effective until 15 September 2015. Defendant filed his motion to dismiss on 15 September 2015. On that date, the court denied Defendant's motion, but did not rule upon Plaintiff's complaint.

Defendant appeals from the trial court's interlocutory order, which denied his motion to dismiss Plaintiff's complaint for lack of personal and subject matter jurisdiction. Defendant argues on appeal the trial court lacked subject matter jurisdiction, because Plaintiff attempts to plead a claim for custody of the parties’ child, and North Carolina is not the home state of the child. "Typically, the denial of a motion to dismiss is not immediately appealable to this Court because it is interlocutory in nature." Reid v. Cole , 187 N.C.App. 261, 263, 652 S.E.2d 718, 719 (2007).

Defendant acknowledges his appeal is interlocutory, but asserts the district court's order is immediately appealable to this Court pursuant to N.C. Gen. Stat. § 1–277(b). Defendant's statement is partially correct.

The appeal from the trial court's denial of Defendant's motion to dismiss for lack of personal jurisdiction is properly before us. N.C. Gen. Stat. § 1–277(b) (2015) ("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...