Ponder v. Been
| Decision Date | 31 December 2020 |
| Docket Number | No. COA19-1021,COA19-1021 |
| Citation | 853 S.E.2d 302 |
| Parties | Mark W. PONDER, Plaintiff, v. Stephen R. BEEN, Defendant. |
| Court | North Carolina Court of Appeals |
Sodoma Law, P.C., by Amy Elizabeth Simpson, for plaintiff-appellee.
James, McElroy & Diehl, P.A., Charlotte, by Preston O. Odom, III, and Claire J. Samuels, for defendant-appellant.
Where the trial court's findings of fact were insufficient to meet the threshold requirements to exercise personal jurisdiction over defendant Stephen R. Been pursuant to our long-arm statute, General Statutes, section 1-75.4, we reverse the trial court's 29 October 2019 order denying defendant's Rule 12(b)(2) motion to dismiss plaintiff's complaint for lack of personal jurisdiction.
On 14 September 2017, plaintiff Mark W. Ponder filed a complaint against defendant in Mecklenburg County Superior Court seeking compensatory damages in excess of $10,000.00 on the claim of alienation of affection, as well as punitive damages.
Plaintiff alleged that he met a woman named Mary in 2008, and the couple wed on 26 June 2010. Mary had two children from a previous relationship and worked in the home as a stay-at-home mother. On 13 November 2013, the parties separated following the issuance of a domestic violence restraining order against plaintiff. In his complaint, plaintiff contended that Mary occasionally traveled to his condo in Naples, Florida for recreation and relaxation. In 2013, she met defendant, who was a Florida resident. In November 2013, plaintiff accused Mary of having an affair. Before the separation, while Mary still resided in North Carolina, plaintiff alleged that Mary and defendant engaged in frequent communications by email, text message, and telephone. Plaintiff argued that defendant sent Mary airline tickets and "other things of value." Further, plaintiff argued that after 13 November 2013, defendant paid legal fees for services by an attorney who practiced exclusively in Mecklenburg County.
Following her separation from plaintiff, Mary and her children relocated to Naples, Florida in June 2014. Mary and her children resided in homes owned by defendant. Plaintiff asserted that "[w]ith full knowledge of her marital status, [d]efendant, willfully, maliciously and intentionally engaged in a campaign to alienate [Mary] from [p]laintiff, and to damage if not destroy the bonds of matrimony that existed between them."
On 3 January 2018, defendant filed a motion to dismiss plaintiff's civil action for lack of personal jurisdiction. Defendant noted that this was the second action plaintiff had filed against defendant in a North Carolina court claiming alienation of affection. The first action was commenced 5 November 2015, and plaintiff voluntarily dismissed it on 15 September 2016, after defendant moved to dismiss pursuant to Rule 12(b)(2) (). As to the current action, defendant again challenged the court's exercise of personal jurisdiction over him as a violation of North Carolina's long-arm statute, N.C. Gen. Stat. § 1-75.4, and the Due Process Clause under the Fourteenth Amendment of the United States Constitution.
In support of his motion to dismiss, defendant filed a brief challenging the exercise of personal jurisdiction as a violation of due process. In response, plaintiff filed "points and authorities in opposition to defendant's motion to dismiss," and he asserted that prior to plaintiff and Mary's separation, Mary and defendant communicated by telephone 476 times between 30 June and 13 November 2013. A hearing on the matter was conducted on 4 March 2019 in Mecklenburg County Superior Court, before the Honorable William R. Bell, Judge presiding. On 29 October 2019, the trial court entered its order denying defendant's motion to dismiss.
Defendant appeals.
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On appeal, defendant argues that the trial court erred by making insufficient findings of fact in support of its ruling to deny defendant's motion to dismiss for lack of personal jurisdiction and concluding that the exercise of personal jurisdiction over defendant could be exercised in compliance with North Carolina's long-arm statute and the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
In Love v. Moore , our Supreme Court held that a right of immediate appeal exists from an order finding jurisdiction over the person, made on the basis of "minimum contacts" (the subject matter of Rule 12(b)(2)).
305 N.C. 575, 581, 291 S.E.2d 141, 146 (1982) ; see also N.C. Gen. Stat. § 1-277(b) (2019).
Defendant argues the trial court erred by denying his motion to dismiss for lack of personal jurisdiction. We agree.
"The standard of review of an order determining personal jurisdiction is whether the findings of fact by the trial court are supported by competent evidence in the record[.]" Replacements, Ltd. v. MidweSterling , 133 N.C. App. 139, 140–41, 515 S.E.2d 46, 48 (1999). " ‘Where no exception is taken to a finding of fact by the trial court, the finding is presumed to be supported by competent evidence and is binding on appeal.’ " Nat'l Util. Review, LLC v. Care Ctrs., Inc. , 200 N.C. App. 301, 303, 683 S.E.2d 460, 463 (2009) (quoting Koufman v. Koufman , 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991) ). We review de novo the issue of whether the trial court's findings of fact support its conclusion of law that the court has personal jurisdiction over defendant. Id.
Bell v. Mozley , 216 N.C. App. 540, 543, 716 S.E.2d 868, 871 (2011).
To resolve a question of personal jurisdiction, the court must engage in a two step analysis. First, the court must determine if the North Carolina long-arm statute's ( N.C. Gen. Stat. § 1–75.4 ) requirements are met. If so, the court must then determine whether such an exercise of jurisdiction comports with due process.
Cooper v. Shealy , 140 N.C. App. 729, 732, 537 S.E.2d 854, 856 (2000) (citation omitted).
Long-Arm Statute
N.C. Gen. Stat. § 1-75.4(3) and (4) a. (2019). "[T]his Court has acknowledged that actions for alienation of affection[ ] and criminal conversation constitute injury to person or property as denoted by N.C. Gen. Stat. § 1–75.4(3)." Cooper , 140 N.C. App. at 733, 537 S.E.2d at 857 (citation and quotation marks omitted); see also Brown v. Ellis , 363 N.C. 360, 678 S.E.2d 222 (2009) (per curiam) ().
"We recognize that [ General Statutes, section 1-75.4,] requires only that the action ‘claim’ injury to person or property within this state in order to establish personal jurisdiction." Fox v. Gibson , 176 N.C. App. 554, 558, 626 S.E.2d 841, 843 (2006) (citations and quotations omitted). Moreover, "the failure to plead the particulars of personal jurisdiction is not necessarily fatal, so long as the facts alleged permit the reasonable inference that jurisdiction may be acquired." Tompkins v. Tompkins , 98 N.C. App. 299, 304, 390 S.E.2d 766, 769 (1990) (citation omitted).
In his complaint, plaintiff alleged the following:
"Where unverified allegations in the complaint meet [the] plaintiff's initial burden of proving the existence of jurisdiction ... and [the] defendant[ ] d[oes] not contradict [the] plaintiff's...
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