Nunn v. Allen

• Decision Date: 17 December 2002
• Docket Number: No. COA01-1570.,COA01-1570.
• Citation: 154 NC App. 523,574 S.E.2d 35
• Parties: Donald Ray NUNN, Plaintiff, v. Clay ALLEN, Defendant.
• Court: North Carolina Court of Appeals

574 S.E.2d 35

154 NC App. 523

Donald Ray NUNN, Plaintiff, v. Clay ALLEN, Defendant.

No. COA01-1570.

Court of Appeals of North Carolina.

December 17, 2002.

Henry T. Drake, Wadesboro, for plaintiff-appellee.

Katherine E. Jean, Raleigh, for defendant-appellant.

MARTIN, Judge.

Plaintiff brought this action seeking compensatory and punitive damages from defendant, alleging that defendant had alienated the affection of plaintiff's wife and had engaged in criminal conversation with her. Defendant denied the allegations.

Briefly summarized, the evidence at trial tended to show that plaintiff Donald Nunn married Vickie O'Brien Nunn, now Vickie Woods (hereinafter "Mrs. Nunn"), on 1 July 1978; three sons were born to the marriage. Mrs. Nunn moved out of the couple's home in April 1997. Plaintiff and Mrs. Nunn signed a separation agreement on 8 September 1997, and were divorced on 17 August 1998.

Evidence regarding the state of the marriage prior to the couple's separation, as well as the cause and date of onset of the deterioration of the marriage, is conflicting. Mrs. Nunn had been employed for several years at Allen Brothers Timber Company ("Allen Brothers") as secretary of the corporation. Defendant is also employed by Allen Brothers; his father is president of the company and defendant is a vice-president. Plaintiff introduced evidence tending to show that defendant spent time with Mrs. Nunn at work, after work, and on the weekends before and during the couple's separation, and that the corporation helped Mrs. Nunn buy a new car and provided a residence for her grandmother, into which Mrs. Nunn moved after her separation from plaintiff. Plaintiff testified that in September 1997, he went, with his father and Herman Searcey, to defendant's residence and, looking into a window, observed Mrs. Nunn and defendant kissing; as he continued to watch, it appeared to him that Mrs. Nunn placed her head between the defendant's legs as though she was performing oral sex upon him. Mr. Searcey testified that he saw Mrs. Nunn performing oral sex upon defendant. The next day, plaintiff's attorney prepared a separation agreement which plaintiff and Mrs. Nunn signed on 8 September 1997.

Through the testimony of Mrs. Nunn and other witnesses, there was evidence that plaintiff had accused or suspected Mrs. Nunn of having affairs with other men during their marriage. Mrs. Nunn testified that "rumors" circulated that her youngest son, who was born in 1991, was, in fact, fathered by defendant's father Bruce Allen or his cousin Steve Allen, Jr. Plaintiff testified that when he confronted Steve Allen, Jr., about these rumors, Steve said, "Clay is your man."

Mrs. Nunn and defendant both testified that they had sexual intercourse for the first time in or about October 1997; Mrs. Nunn testified that it occurred after she and plaintiff had signed the separation agreement. In addition, plaintiff offered evidence that defendant, by his failure to respond to plaintiff's Request for Admissions dated 5 May 1999, had admitted to a sexual relationship with Mrs. Nunn "during the year of 1997" and that such relationship continued to the date of the Request for Admissions.

There was evidence that plaintiff had engaged in an extra-marital relationship with a co-worker in or about 1996. Although there was no evidence that the relationship was sexual, the two often had lunch together, and were seen by witnesses in physically close situations in plaintiff's truck and office. In the fall of 1996, Mrs. Nunn found greeting cards the co-worker had given to plaintiff. Mrs. Nunn and other witnesses testified that the cards appeared to be of a romantic nature and that Mrs. Nunn was upset by their discovery. Mrs. Nunn testified that she stopped sleeping in the same bed with her husband because he would not bathe after coming home from his job working on cars and before getting into bed, and that she was generally disgusted with him and other things going on in her life. She testified that defendant had nothing to do with her separation from plaintiff.

The jury answered the issues of alienation of affection and criminal conversation in favor of plaintiff and awarded compensatory damages of $50,000 and punitive damages of $50,000. Defendant's post-verdict motions were denied and the trial court entered judgment on the verdict. Defendant appeals.

In his brief to this Court, defendant argues, in support of his twenty-eight assignments of error, (I) the common law claims for alienation of affection and criminal conversation should be judicially abolished; (II) the trial court erred in various of its evidentiary rulings; (III) the trial court erred in denying his motions for directed verdict, for judgment notwithstanding the verdict, for a new trial, and in entering judgment on the verdict, because the evidence was insufficient to support a judgment in plaintiff's favor on any theory; and (IV) the trial court erred in its instructions to the jury. After careful review of defendant's arguments, we decline to disturb the verdict or the judgment.

I.

Defendant asserts that the torts of alienation of affection and criminal conversation are "archaic, antiquated, and offensive to the concept of feminine equality," and asks that we abolish the torts in North Carolina. Neither tort is a statutory creation; both emanate from the common law and have been recognized by our Supreme Court. See, e.g., Henson v. Thomas, 231 N.C. 173, 56 S.E.2d 432 (1949). This Court has no authority to overrule decisions of the North Carolina Supreme Court. Cannon v. Miller, 71 N.C.App. 460, 322 S.E.2d 780 (1984), vacated on other grounds, 313 N.C. 324, 327 S.E.2d 888 (1985)

; Hutelmyer v. Cox, 133 N.C.App. 364, 514 S.E.2d 554,

disc. review denied, 351 N.C. 104, 541 S.E.2d 146 (1999).

II.

By six assignments of error, defendant contends the trial court erred in various rulings admitting or excluding evidence. First, defendant contends the trial court erred by excluding his testimony concerning statements made to him by Mrs. Nunn concerning her relationship with plaintiff. Defendant argues the evidence was relevant to show his state of mind and beliefs and, therefore, was relevant to the issue of the existence or absence of malice on his part, an element necessary to prove alienation of affection and also necessary for an award of punitive damages. However, some of the excluded evidence was later admitted through the testimony of Mrs. Nunn, rendering harmless its exclusion during defendant's testimony. See State v. Richardson, 341 N.C. 658, 462 S.E.2d 492 (1995)

(any error in exclusion of evidence harmless where evidence of same import admitted through the testimony of other witnesses). Defendant made no offer of proof as to the other testimony he contends was erroneously excluded by the trial court. N.C. Gen.Stat. § 8C-1, Rule 103(a)(2) (error may not be predicated upon a ruling excluding evidence unless substance of evidence was apparent or made known to trial court by offer).

Defendant also assigns error to the trial court's rulings permitting plaintiff to cross-examine him concerning property owned by his father and to cross-examine Mrs. Nunn concerning the pendency of charges against her for embezzlement from Allen Brothers Timber Company. On appeal, defendant argues, without citing any authority, the evidence was not relevant. At trial, however, he interposed only general objections and, as such, did not clearly present the alleged error to the trial court as required by G.S. § 8C-1, Rule 103(a)(1). The rulings, therefore, have not been preserved for appeal. See State v. Reid, 322 N.C. 309, 367 S.E.2d 672 (1988)

. In any event, defendant has neither argued nor demonstrated that he was prejudiced by the challenged cross-examinations. See Dept. of Transportation v. Craine, 89 N.C.App. 223, 226, 365 S.E.2d 694, 697 (1988) (appellant must show that erroneous admission of evidence "probably influenced the jury verdict"); McNabb v. Town of Bryson City, 82 N.C.App. 385, 346 S.E.2d 285,

review dismissed, 319 N.C. 397, 354 S.E.2d 239 (1987).

Defendant also assigns error to the trial court's rulings permitting plaintiff to elicit testimony from Vickie Daniel, an employee in the child support section of the Richmond County Clerk of Superior Court, concerning the amount of child support which would have been required in 1997 of a person earning the same income as Mrs. Nunn earned in 1996. His objections at trial were based upon relevance and lack of foundation; on appeal he argues only that there was an inadequate foundation for her testimony, citing G.S. § 8C-1, Rule 702 as the sole support for his argument. However, Ms. Daniel was neither offered nor accepted as an expert witness and the cited rule has no application here. Moreover, Ms. Daniel testified that she had calculated the child support obligation by applying the applicable child support guidelines to the income as shown by Mrs. Nunn's 1996 W-2 form and determining the presumptive amount of child support. She acknowledged that the presumptive amount would be affected by certain variables, about which she was extensively cross-examined by defendant's counsel. Defendant has shown no prejudice and this assignment of error is also overruled.

Defendant next assigns error to the admission of plaintiff's testimony, during re-direct examination, that his wife had told him she "had seen a suitcase of drugs" at defendant's residence. The trial court overruled defendant's objection to the testimony, ruling that defendant had "opened the door" for such testimony during his counsel's cross-examination of plaintiff. Our review does not reveal any cross-examination by defendant's counsel which would have "opened the door" for the challenged testimony and we find no basis for its admission. However, in light of the other evidence, we do not believe this single statement would have been likely to affect the jury's verdict or award. See Dept. of...