Bassiri v. Pilling ( 2023 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA22-411
Filed 07 February 2023
Wake County, No. 20 CVS 13650
KIARASH BASSIRI, Plaintiff,
v.
WADE PILLING, Defendant.
Appeal by plaintiff from order entered 29 November 2021 by Judge Dawn M.
Layton in Wake County Superior Court. Heard in the Court of Appeals 2 November
2022.
Mills & Alcorn, L.L.P., by Cynthia A. Mills, for plaintiff-appellant.
Daphne Edwards and Ashley Fillippeli for defendant-appellee.
ZACHARY, Judge.
Plaintiff Kiarash Bassiri appeals from the trial court’s order granting
Defendant Wade Pilling’s motion to dismiss for lack of subject-matter jurisdiction
pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(1) (2021). After careful review, we
reverse and remand for further proceedings.
I. Background
Plaintiff and his wife were married in 2010 and lived together in North
Carolina in what Plaintiff describes as a “happy and loving marriage,” in which
“genuine love and affection existed.” In 2019 and continuing until January 2020,
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Opinion of the Court
Defendant and Plaintiff’s wife began a friendship that evolved into a romantic,
intimate relationship. Plaintiff and his wife eventually separated, although they
remained legally married when Plaintiff commenced this suit against Defendant.
On 1 December 2020, Plaintiff filed a verified complaint against Defendant,
asserting claims for alienation of affections, criminal conversation, and intentional
infliction of emotional distress. On 12 March 2021, Defendant filed a responsive
pleading in which he first moved to dismiss Plaintiff’s complaint pursuant to N.C.
Gen. Stat. § 1A-1, Rule 12(b)(1) and (2), alleging that the trial court lacked both
subject-matter and personal jurisdiction. Defendant’s responsive pleading also
included his answer and affirmative defenses.
On 26 May 2021, Plaintiff served Defendant with discovery, including a set of
interrogatories. On 26 July 2021, Defendant served Plaintiff with his verified
responses and objections to the interrogatories. In Defendant’s responses, Defendant
averred, inter alia, that he and Plaintiff’s wife had “engaged in some intimate activity
when [Defendant] first met her in October 2019 in California, in November 2019 in
Nevada, and about a month later in Utah, but [they] did not engage in sexual
intercourse.” Defendant further acknowledged that he has “only seen [Plaintiff’s wife]
in person on three occasions”—in California, Nevada, and Utah. Most other contact
between them occurred via email, text messages, and social media such as Facebook
and Snapchat.
On 26 August 2021, Defendant took a voluntary dismissal with prejudice of his
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Opinion of the Court
Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, leaving pending his
Rule 12(b)(1) motion to dismiss. That same day, Defendant’s Rule 12(b)(1) motion to
dismiss came on for hearing in Wake County Superior Court.
By order entered on 29 November 2021, the trial court determined that it
lacked subject-matter jurisdiction over Plaintiff’s claims for alienation of affections
and criminal conversation and granted Defendant’s motion to dismiss those claims.
In its order, the trial court made the following pertinent findings of fact:
11. In Plaintiff’s Interrogatories, Plaintiff asked Defendant
to identify the location of any intimate activity he engaged
in with Plaintiff’s Wife.
12. In Defendant’s verified Interrogatory Responses to
questions 13, 14, 15 and 17, Defendant stated that he had
only seen Plaintiff’s Wife in person on three occasions:
A. In October 2019 in California at a conference
where he initially met her;
B. In November 2019 in Nevada; and
C. In January 2020 in Utah.
13. In Defendant’s verified Interrogatory Responses,
Defendant stated he has never met Plaintiff’s Wife in the
state of North Carolina.
14. There is no evidence to support Plaintiff’s allegation
that any intimate act in which Defendant engaged with
Plaintiff’s Wife occurred in the state of North Carolina.
15. There is no evidence that Defendant has ever been to
North Carolina, traveled to North Carolina, or engaged in
any act with Plaintiff’s Wife in North Carolina.
16. There is no evidence that Defendant engaged in any act
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Opinion of the Court
with Plaintiff’s Wife other than meeting her in person
outside the state of North Carolina, in California, Nevada,
and Utah. There is evidence that Defendant and Plaintiff’s
[W]ife communicated via Facebook, Snapchat, emails and
texts while Plaintiff[’s Wife] was in North Carolina.
17. There is no evidence, as alleged in Plaintiff’s
Complaint, that Defendant committed the acts alleged in
the pleading in the state of North Carolina; on the contrary,
there is credible evidence that Defendant has never been
to North Carolina, has never traveled to North Carolina,
has never met Plaintiff’s Wife, for any purpose, in the state
of North Carolina, and only met Plaintiff’s Wife in person
outside the state of North Carolina three times: once
initially at a dental conference where he spoke in
California in 2019, at another dental conference at which
he spoke in November 2019 in Nevada, and in January
2020 in Utah. There is evidence that Defendant and
Plaintiff’s [W]ife communicated via Facebook, Snapchat,
emails and texts while Plaintiff[’s Wife] was in North
Carolina.
The trial court thus concluded:
1. This Court lacks subject matter jurisdiction, pursuant to
N.C. Gen. Stat[.] § 1A-1, Rule 12(b)(1), over Plaintiff’s
claims for alienation of affection[s] and criminal
conversation because there is no evidence that an act
underlying a claim for alienation of affection[s] or criminal
conversation occurred between Plaintiff’s Wife and
Defendant within the state of North Carolina.
2. Alienation of affection[s] and criminal conversation are
transitory torts and for North Carolina substantive law to
apply a Plaintiff must show that the alleged torts occurred
in the state of North Carolina. See Jones v. Skelley, 195
N.C. App. 500, 506-513, 673 S.E.2d 385, 389-394 (2009). If
the tortious injury occurred in a state that does not
recognize alienation of affections and criminal
conversation, the matter cannot be tried in North Carolina
and North Carolina courts lack subject matter jurisdiction.
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Opinion of the Court
See id.
3. “A motion to dismiss pursuant to Rule 12(b)(1) of the
North Carolina Rules of Civil Procedure represents a
challenge to the trial court’s subject matter jurisdiction
over the plaintiff’s claims. N.C. Gen. Stat. § 1A-1, Rule
12(b)(1) (2018). ‘Subject matter jurisdiction refers to the
power of the court to deal with the kind of action in
question.’ Harris v. Pembaur, 84 N.C. App. 666, 667, 353
S.E.2d 673, 675 (1987). ‘Whenever it appears by the
suggestion of the parties or otherwise that the court lacks
jurisdiction of the subject matter, the court shall dismiss
the action.[’] N.C. Gen. Stat. § 1A-1, Rule 12(h)(3) (2018).”
Dipasupil v. Neely, 268 N.C. App. 466, 834 S.E.2d 451(2019) (unpublished). Subject matter jurisdiction is a
prerequisite to personal jurisdiction. Id.
4. Because the evidence shows that no alleged intimate act
between Plaintiff’s Wife and Defendant underlying the
actions for alienation of affection[s] and criminal
conversation occurred in the state of North Carolina,
pursuant to N.C. Gen. Stat[.] § 1A-1, Rule 12(b)(1), this
Court lacks subject matter jurisdiction and must dismiss
said actions.
On 9 December 2021, Plaintiff took a voluntary dismissal of his claim for
intentional infliction of emotional distress. Plaintiff timely filed his notice of appeal
from the trial court’s order granting Defendant’s motion to dismiss on 22 December
2021.
II. Appellate Jurisdiction
Ordinarily, this Court only hears appeals from final judgments. See N.C. Gen.
Stat. § 7A-27(b)(1)–(2). “A final judgment is one which disposes of the cause as to all
the parties, leaving nothing to be judicially determined between them in the trial
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court.” Veazey v. City of Durham, 231 N.C. 357, 361–62, 57 S.E.2d 377, 381, reh’g
denied, 232 N.C. 744, 59 S.E.2d 429 (1950). By contrast, “[a]n interlocutory order is
one made during the pendency of an action, which does not dispose of the case, but
leaves it for further action by the trial court in order to settle and determine the entire
controversy.” Id. at 362, 57 S.E.2d at 381.
The trial court’s order granted Defendant’s motion to dismiss as to two of
Plaintiff’s claims, but left pending Plaintiff’s claim for intentional infliction of
emotional distress. Therefore, the trial court’s order was not a final judgment at the
time that it was entered. “At that point, [P]laintiff’s appeal would have been
interlocutory because the entire case was not disposed of.” Tarrant v. Freeway Foods
of Greensboro, Inc., 163 N.C. App. 504, 507–08, 593 S.E.2d 808, 811, disc. review
denied, 358 N.C. 739, 603 S.E.2d 126 (2004). However, Plaintiff took a voluntary
dismissal of his claim for intentional infliction of emotional distress before filing his
notice of appeal. This dismissal rendered the trial court’s order a final judgment. See
id. at 508, 593 S.E.2d at 811 (declining to dismiss the plaintiff’s appeal after the
plaintiff voluntarily dismissed the remaining claims, as “[a]ll claims and judgments
[we]re final with respect to all the parties, and there [wa]s nothing left for the trial
court to determine”). Accordingly, Plaintiff’s appeal is properly before this Court, and
we proceed to review the merits of his appeal.
III. Discussion
On appeal, Plaintiff argues that the trial court erred by concluding that it
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lacked subject-matter jurisdiction over his claim for alienation of affections and thus
granting Defendant’s Rule 12(b)(1) motion to dismiss.1 Much of the appellate briefing
in this case concerns the trial court’s finding of fact that there exists “evidence that
Defendant and Plaintiff’s [W]ife communicated via Facebook, Snapchat, emails and
texts while Plaintiff[’s Wife] was in North Carolina.” Plaintiff contends that this
finding undermines the trial court’s conclusion of law that it lacked subject-matter
jurisdiction. We agree, albeit on a more fundamental basis; unlike the thornier issues
of personal jurisdiction and conflict of laws posed by the facts of this case, the issue
of subject-matter jurisdiction is resolved simply by recognition of the broad grant of
general jurisdiction to our trial courts.
After careful review, we conclude that the trial court erred by concluding that
it lacked subject-matter jurisdiction over Plaintiff’s claim for alienation of affections.
Accordingly, we reverse the trial court’s grant of Defendant’s motion to dismiss with
regard to Plaintiff’s alienation of affections claim and remand to the trial court for
further proceedings.
A. Standard of Review
Whether a trial court possesses subject-matter jurisdiction over a case is a
1 Plaintiff makes no argument on appeal that the trial court erred in granting Defendant’s
motion to dismiss as regards the criminal conversation claim. This claim is therefore “deemed
abandoned.” Wilkerson v. Duke Univ., 229 N.C. App. 670, 679, 748 S.E.2d 154, 161 (2013); see also
N.C.R. App. P. 28(b)(6) (“Issues not presented in a party’s brief, or in support of which no reason or
argument is stated, will be taken as abandoned.”). Further, because Plaintiff took a voluntary
dismissal of his claim for intentional infliction of emotional distress, the present appeal solely concerns
the trial court’s dismissal of Plaintiff’s claim for alienation of affections.
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question of law, which this Court reviews de novo. Clark v. Clark, 280 N.C. App. 403,
418, 867 S.E.2d 704, 717 (2021). “Unlike a Rule 12(b)(6) dismissal, the court need not
confine its evaluation of a Rule 12(b)(1) motion to the face of the pleadings, but may
review or accept any evidence, such as affidavits, or it may hold an evidentiary
hearing.” Smith v. Privette, 128 N.C. App. 490, 493, 495 S.E.2d 395, 397 (citation
omitted), appeal withdrawn, 348 N.C. 284, 501 S.E.2d 913 (1998). Also, “[u]nlike a
Rule 12(b)(6) motion, consideration of matters outside the pleadings does not convert
the Rule 12(b)(1) motion to one for summary judgment.” Id. (citation and internal
quotation marks omitted).
When conducting de novo review, “this Court considers the matter anew and
freely substitutes its own judgment for that of the trial court.” Farquhar v. Farquhar,
254 N.C. App. 243, 245, 802 S.E.2d 585, 587 (2017) (citation and internal quotation
marks omitted). However, if “the trial court resolves issues of fact” in an order
granting a Rule 12(b)(1) motion, then “those findings are binding on the appellate
court if supported by competent evidence in the record.” Smith, 128 N.C. App. at 493,
495 S.E.2d at 397.
B. Analysis
“It is a universal principle as old as the law that the proceedings of a court
without subject-matter jurisdiction are a nullity. Put another way, subject-matter
jurisdiction is the indispensable foundation upon which valid judicial decisions rest,
and in its absence a court has no power to act.” Lakins v. W. N. Carolina Conf. of
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United Methodist Church, 283 N.C. App. 385, 397–98, 873 S.E.2d 667, 677 (2022)
(citations and internal quotation marks omitted). Subject-matter jurisdiction is “the
power of the court to deal with the kind of action in question.” Clark, 280 N.C. App.
at 418, 867 S.E.2d at 717 (citation omitted). “A court has jurisdiction over the subject
matter if it has the power to hear and determine cases of the general class to which
the action in question belongs.” Balcon, Inc. v. Sadler, 36 N.C. App. 322, 324, 244
S.E.2d 164, 165 (1978).
By contrast, personal jurisdiction is “the power to bring the person to be
affected by the judgment before the court so as to give him an opportunity to be
heard.” Id. In that subject-matter jurisdiction concerns the kind of action in question
rather than the person affected by the action, subject-matter jurisdiction often exists
where personal jurisdiction does not. See High v. Pearce, 220 N.C. 266, 271, 17 S.E.2d
108, 112 (1941) (“Properly speaking, there can be no jurisdiction of the person where
there is none of the subject matter, although the converse might indeed, and often
does, occur.”).
Because Defendant took a voluntary dismissal with prejudice of his Rule
12(b)(2) motion to dismiss for lack of personal jurisdiction, the trial court never
considered that issue; hence, the question of whether the trial court had personal
jurisdiction over Defendant is not before us. Defendant’s Rule 12(b)(1) motion to
dismiss for lack of subject-matter jurisdiction was the only motion that the trial court
considered and upon which it ruled in the order from which Plaintiff appeals, and
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therefore we confine our analysis solely to the issue of subject-matter jurisdiction.
“Subject[-]matter jurisdiction is conferred upon the courts by either the North
Carolina Constitution or by statute.” Harris v. Pembaur, 84 N.C. App. 666, 667, 353
S.E.2d 673, 675 (1987). Section 7A-240 of our General Statutes broadly confers
subject-matter jurisdiction upon the superior and district courts of this state:
Except for the original jurisdiction in respect of claims
against the State which is vested in the Supreme Court,
original general jurisdiction of all justiciable matters of a
civil nature cognizable in the General Court of Justice is
vested in the aggregate in the superior court division and
the district court division as the trial divisions of the
General Court of Justice. Except in respect of proceedings
in probate and the administration of decedents’ estates, the
original civil jurisdiction so vested in the trial divisions is
vested concurrently in each division.
N.C. Gen. Stat. § 7A-240 (emphasis added).
On the issue of subject-matter jurisdiction, both parties cite Jones v. Skelley.
195 N.C. App. 500, 673 S.E.2d 385 (2009), superseded in part on other grounds, N.C.
Gen. Stat. § 52-13(a) (2015). In Jones, this Court stated that “if the tortious injury
occurs in a state that does not recognize alienation of affections, the case cannot be
tried in a North Carolina court.” 195 N.C. App. at 506–07, 673 S.E.2d at 390 (citation
and internal quotation marks omitted); see also Wise v. Hollowell, 205 N.C. 286, 289,
171 S.E. 82, 83 (1933) (“[I]f the act complained of is insufficient to constitute a cause
of action there[,] it is likewise insufficient here.”). “Establishing that the defendant’s
alienating conduct occurred within a state that still recognizes alienation of affections
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as a valid cause of action is essential to a successful claim since most jurisdictions
have abolished the tort.” Hayes v. Waltz, 246 N.C. App. 438, 443, 784 S.E.2d 607, 613
(2016).
However, it does not necessarily follow that the alleged alienating conduct
must have occurred in North Carolina in order for a plaintiff to raise a valid
alienation of affections claim over which the trial court would have subject-matter
jurisdiction. Rather, the alienating conduct must have “occurred within a state that
still recognizes alienation of affections as a valid cause of action[.]” Id. In the case at
bar, there are two states in which allegedly alienating conduct may have occurred
and which recognize a cause of action for alienation of affections: North Carolina and
Utah. See Heiner v. Simpson, 23 P.3d 1041, 1043 (Utah 2001).
Although this Court has previously addressed the issue of subject-matter
jurisdiction in the context of alienation-of-affections claims in which the allegedly
alienating conduct occurred across multiple states, in each of those prior cases, North
Carolina was the only jurisdiction involved that recognized the claim of alienation of
affections. See, e.g., Dipasupil v. Neely, 268 N.C. App. 466, 834 S.E.2d 451, 2019 WL
6133850, at *1 (2019) (unpublished) (in which a Florida resident sued a Virginia
resident over conduct alleged to have occurred in Minnesota and Washington, D.C.,
while the plaintiff resided in North Carolina); Jones, 195 N.C. App. at 505, 673 S.E.2d
at 389 (“Plaintiff contends a material issue of fact exists as to the state in which the
alleged alienation of affections occurred, North Carolina, which recognizes the tort,
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or South Carolina, which has abolished the tort . . . .”); Darnell v. Rupplin, 91 N.C.
App. 349, 351, 371 S.E.2d 743, 745 (1988) (“[The] defendant’s involvement with [the]
plaintiff’s husband . . . spanned four states: North Carolina, Maryland, Virginia, and
Washington, D.C. Of these four states, North Carolina is the only one that recognizes
a legal cause of action for the tort of alienation of affections.”). Thus, the sufficiency
of the claim in each of these cases was dependent upon whether the alleged injury
occurred in North Carolina.
The question of whether the trial court has subject-matter jurisdiction is
frequently conflated with the question of where the alleged alienating conduct and
injury occurred because North Carolina is often the only jurisdiction involved that
recognizes the claim. Indeed, the factual determination of where the allegedly
injurious conduct occurred is critical to the eventual choice-of-law analysis that
determines whether a plaintiff has sufficiently alleged a valid cause of action under
the applicable substantive law. See Darnell, 91 N.C. App. at 351, 371 S.E.2d at 745(“The substantive law applicable to a transitory tort [such as alienation of affections]
is the law of the state where the tortious injury occurred, and not the substantive law
of the forum state.”). Nonetheless, that factual determination is irrelevant to the
foundational question of whether the trial court has subject-matter jurisdiction over
“the kind of action in question.” Clark, 280 N.C. App. 403, 418, 867 S.E.2d 704, 717
(citation omitted). Instead, the choice-of-law analysis is more properly assessed
pursuant to a Rule 12(b)(6) motion to dismiss for failure to state a claim, rather than
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a Rule 12(b)(1) motion to dismiss for lack of subject-matter jurisdiction. See Church
v. Carter, 94 N.C. App. 286, 289, 380 S.E.2d 167, 169 (1989) (“The alleged failure of a
complaint to state a cause of action for which relief can be granted . . . does not equate
with a lack of jurisdiction over the subject matter of the complaint.”).
Here, the dispositive question of law—whether the trial court possesses
subject-matter jurisdiction over the kind of action in question—is a deceptively
simple one. The kind of action presented is one for alienation of affections, a tort over
which the trial courts of this state indisputably possess subject-matter jurisdiction.
See N.C. Gen. Stat. § 7A-240; see also, e.g., Darnell, 91 N.C. App. at 351, 371 S.E.2d
at 745. Whether Plaintiff has successfully stated a claim for which relief may be
granted under the substantive law applicable to his claim consistent with our conflict-
of-laws rules is downstream of and irrelevant to the resolution of this straightforward
question of law.
Accordingly, even though several of the trial court’s findings of fact concerning
Defendant’s actions or presence in North Carolina are supported by competent
evidence, these findings of fact do not support the trial court’s conclusion that it
lacked subject-matter jurisdiction over Plaintiff’s alienation of affections claim. The
trial court’s order must be reversed and remanded for further proceedings.
On remand, should the evidence persuade the finder of fact that the tort of
alienation of affections occurred in either North Carolina or Utah, then the
substantive law of the applicable jurisdiction will apply. See Cooper v. Shealy, 140
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N.C. App. 729, 736, 537 S.E.2d 854, 859 (2000). “Should it be determined that the
tort[ ] occurred in [California or Nevada], then no substantive law could apply since
none of these alleged acts are [a] tort[ ] in th[ose] state[s]. In that event, the case
would, by necessity, be dismissed.” Id.IV. Conclusion
For the foregoing reasons, the trial court’s order granting Defendant’s Rule
12(b)(1) motion for lack of subject-matter jurisdiction is reversed and Plaintiff’s claim
for alienation of affections is remanded to the trial court for further proceedings.
REVERSED AND REMANDED.
Judges ARROWOOD and GRIFFIN concur.
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