Stann v. Levine

Citation636 S.E.2d 214
Decision Date07 November 2006
Docket NumberNo. COA05-1269.,COA05-1269.
CourtNorth Carolina Court of Appeals
PartiesFrederick R. STANN, Plaintiff, v. Jeffrey Marc LEVINE, Defendant.

Lloyd T. Kelso, Gastonia, for plaintiff-appellant.

Yelton, Farfour, McCartney, Lutz & Craig, P.A., by Leslie A. Farfour, Jr., Shelby, for defendant-appellee.


Frederick R. Stann ("plaintiff") appeals from the dismissal for lack of personal jurisdiction of his lawsuit against Jeffrey Marc Levine ("defendant") arising out of defendant's relationship with plaintiff's wife, Allison Black Stann ("Stann"). This appeal addresses whether a North Carolina superior court has personal jurisdiction to hear a South Carolina resident's claims for alienation of affection and criminal conversation brought against a Tennessee resident. We dismiss this appeal pursuant to the North Carolina Rules of Appellate Procedure.

Plaintiff and Stann married on 3 November 1991. Although they lived in Gastonia, North Carolina for the first several years of their marriage, they moved to Sharon, South Carolina in 1996, where they lived on a horse farm until their separation in September 2003. During that time, plaintiff practiced law in Gastonia, North Carolina, with Stann working as a paralegal in the same office. Plaintiff and Stann both were issued South Carolina driver's licenses and displayed South Carolina license plates on their vehicles. Evidence tended to show plaintiff and Stann paid taxes in both North and South Carolina. Plaintiff and Stann separated on 17 September 2003.

Two months earlier, in July 2003, Stann began corresponding with defendant, a resident of Tennessee who also was married, in connection with a fictional story they were writing as part of their participation in the Single Action Shooting Society. The volume of their correspondence increased over time, with the two communicating by telephone, e-mail, and instant messaging. Ultimately, Stann and defendant began to discuss love and marriage. Some of the e-mails and telephone calls were received by Stann from defendant in North Carolina, although many were received in South Carolina. Stann and defendant did not meet in person until 27 September 2003. Subsequently, defendant and Stann engaged in numerous sexual encounters in several different states, including North Carolina.

After her separation from plaintiff, Stann first moved in with her family in Sharon, South Carolina, but in March 2004, she moved to Salisbury, North Carolina where she lives and works. Plaintiff claims that he began living in Gastonia, North Carolina in November 2003, although the record also contains evidence tending to show he maintains his residence in South Carolina at the horse farm.

On 11 June 2004, plaintiff filed a complaint against defendant, alleging alienation of affection, criminal conversation, and negligent and intentional infliction of emotional distress. On 23 August 2004, defendant filed a motion to dismiss pursuant to Rule 12(b)(2) of the North Carolina Rules of Civil Procedure for lack of personal jurisdiction, asserting that at all pertinent times plaintiff was a resident of South Carolina and defendant was a resident of Tennessee. Affidavits from plaintiff, defendant, and Stann were filed in May and June 2005. Plaintiff also filed numerous exhibits containing e-mails between defendant and Stann prior to her separation from plaintiff, as well as telephone company bills listing Stann's calls around the time of separation. On 5 July 2005, the trial court granted defendant's motion to dismiss for lack of personal and subject matter jurisdiction. Plaintiff filed a timely appeal to this Court.

It is well-established that "[t]he North Carolina Rules of Appellate Procedure are mandatory and 'failure to follow these rules will subject an appeal to dismissal.'" Viar v. N.C. Dep't of Transp., 359 N.C. 400, 401, 610 S.E.2d 360, 360 (quoting Steingress v. Steingress, 350 N.C. 64, 65, 511 S.E.2d 298, 299 (1999)), reh'g denied, 359 N.C. 643, 617 S.E.2d 662 (2005); see also Munn v. N.C. State Univ., 360 N.C. 353, 626 S.E.2d 270 (2006), rev'g per curiam for reasons stated in 173 N.C.App. 144, 150, 617 S.E.2d 335, 339 (2005) (Jackson, J., dissenting). In Viar, the Supreme Court observed that "[t]he majority opinion in the Court of Appeals, recognizing the flawed content of plaintiff's appeal, applied Rule 2 of the Rules of Appellate Procedure to suspend the Rules. . . . The Court of Appeals majority asserted that plaintiff's rules violations did not impede comprehension of the issues on appeal or frustrate the appellate process." Viar, 359 N.C. at 402, 610 S.E.2d at 361. In reversing this Court, our Supreme Court stated that "[i]t is not the role of the appellate courts . . . to create an appeal for an appellant," and that if violations of the Rules of Appellate Procedure are overlooked by invoking Rule 2, "the Rules become meaningless." Id. Accordingly, "this Court may not review an appeal that violates the Rules of Appellate Procedure even though such violations neither impede our comprehension of the issues nor frustrate the appellate process." State v. Buchanan, 170 N.C.App. 692, 695, 613 S.E.2d 356, 357 (2005).

In the case sub judice, plaintiff's violations are substantial. Specifically, plaintiff commits seven violations pursuant to five separate Rules of Appellate Procedure. Each rule plaintiff violates is explicitly and clearly stated in the Rules of Appellate Procedure. First, the line spacing in plaintiff's brief violates Rule 26(g), which provides that "[t]he body of text shall be presented with double spacing between each line of text." N.C. R.App. P. 26(g) (2006). The rule reiterates the importance of line spacing with its additional requirement that "[n]o more than 27 lines of double-spaced text may appear on a page." Id. Plaintiff's brief, on the other hand, contains pages with as many as thirty-five lines of text.

Presuming such formatting errors may not require dismissal of the appeal, plaintiff's brief contains more significant rules violations. First, plaintiff's brief fails to include a statement of the grounds for appellate review. See N.C. R.App. P. 28(b)(4) (2006). "Such statement shall include citation of the statute or statutes permitting appellate review." Id. Plaintiff failed to provide either the statement of grounds for appellate review or citation of any statute permitting such review. See, e.g., Hill v. West, ___ N.C.App. ___, ___, 627 S.E.2d 662, 664 (2006) (dismissing the appeal because the appellant failed to include a statement of grounds for appellate review and no final determination of the parties' rights had been made pursuant to North Carolina General Statutes, section 1A-1, Rule 54). Furthermore, plaintiff's argument fails to "contain a concise statement of the applicable standard(s) of review for each question presented" as well as any citation of authorities supporting such a standard of review. N.C. R.App. P. 28(b)(6) (2006); see, e.g., State v. Summers, ___ N.C.App. ___, ___, 629 S.E.2d 902, 908 (declining to address one of the appellant's arguments when he failed to include a statement of the applicable standard of review), appeal dismissed and disc. rev. denied, 2006 WL 2939172, ___ N.C. ___, ___ S.E.2d ___ (2006) (No. 358P06).

Plaintiff's statement of the facts also violates the Rules of Appellate Procedure. Rule 28(b)(5) provides that "[a]n appellant's brief in any appeal shall contain . . . [a] full and complete statement of the facts . . ., supported by references to pages in the transcript of proceedings, the record on appeal, or exhibits, as the case may be." N.C. R.App. P. 28(b)(5) (2006); see, e.g., Consol. Elec. Distribs., Inc. v. Dorsey, 170 N.C.App. 684, 686-87, 613 S.E.2d 518, 520-21 (2005) (dismissing the appeal because the appellant failed to include a full and complete statement of the facts and committed four other rules violations). Although plaintiff made a half-hearted attempt to comply with Rule 28(b)(5) by providing sporadic record and transcript citations in the first few pages of his statement of the facts, there is no citation to the record or transcripts in either of the last two paragraphs. Had plaintiff complied with the line spacing requirements, these two paragraphs, spanning forty-seven lines would have covered in excess of a page and a half of his brief.

Finally, and perhaps most significantly, this Court has held that assignments of error that are broad, vague, and unspecific violate Rule 10(c) of the Rules of Appellate Procedure. In re Appeal of Lane Co., 153 N.C.App. 119, 123, 571 S.E.2d 224, 226-27 (2002). In the present case, plaintiff's sole assignment of error, which is not even "stated at the conclusion of the record on appeal" as required by Rule 10(c)(1) but rather is located in the record prior to the judgment from which plaintiff appeals, states that the trial court "commit[ted] reversible error by dismissing the action of the plaintiff for lack of jurisdiction." Although plaintiff's assignment of error states the basis on which the trial court dismissed the complaint — that is, for a lack of jurisdiction — plaintiff fails to state the specific legal basis for the alleged error. See Pamlico Props. IV v. Seg Anstalt Co., 89 N.C.App. 323, 325, 365 S.E.2d 686, 687 (1988). The dissent is correct in noting that plaintiff challenges the dismissal of his action on the basis of jurisdiction, but more than one type of jurisdictional defect may be alleged. See N.C. Gen.Stat. § 1A-1, Rules 12(b)(1), 12(b)(2) (2005). By making a blanket statement that the trial court erred in dismissing the complaint on jurisdictional grounds, plaintiff's assignment of error is fatally overbroad, vague, and unspecific.

When viewed in toto, the nature and number of rules violations,...

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