Ponder v. Been ( 2020 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-1021
Filed: 31 December 2020
Mecklenburg County, No. 17-CVS-17308
MARK W. PONDER, Plaintiff,
v.
STEPHEN R. BEEN, Defendant.
Appeal by defendant from order entered 29 October 2019 by Judge W. Robert
Bell in Mecklenburg County Superior Court. Heard in the Court of Appeals 11
August 2020.
Sodoma Law, P.C., by Amy Elizabeth Simpson, for plaintiff-appellee.
James, McElroy & Diehl, P.A., by Preston O. Odom, III, and Claire J. Samuels,
for defendant-appellant.
BRYANT, Judge.
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
PONDER V. BEEN
Opinion of the Court
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
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PONDER V. BEEN
Opinion of the Court
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) (“Lack of jurisdiction over the person”). 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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PONDER V. BEEN
Opinion of the Court
________________________________________________
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.
Right to Appeal
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).
Personal Jurisdiction
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
4PONDER V. BEEN
Opinion of the Court
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
Pursuant to our General Statutes, section 1-75.4 (“Personal jurisdiction,
grounds for generally”),
[a] court of this State having jurisdiction of the subject
matter has jurisdiction over a person served in an action .
. . under any of the following circumstances:
....
(3) Local Act or Omission. -- In any action
claiming injury to person . . . within or without this
State arising out of an act or omission within this
State by the defendant.
(4) Local Injury; Foreign Act. -- . . . [I]n any action
claiming injury to person . . . within this State
arising out of an act or omission outside this State
by the defendant, provided in addition that at or
about the time of the injury either:
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PONDER V. BEEN
Opinion of the Court
a. Solicitation . . . w[as] carried on within this
State by or on behalf of the defendant[.]
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) (upholding the trial court’s
exercise of personal jurisdiction over a non-resident defendant in a civil action for
alienation of affection pursuant to N.C. Gen. Stat. § 1–75.4(4)a.).
“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:
6. Plaintiff and [Mary] . . . were married on June 26,
2010 . . . .
....
8. Throughout the course of their marriage, Plaintiff
and [Mary] enjoyed a true and genuine marital
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PONDER V. BEEN
Opinion of the Court
relationship of love and affection.
....
10. On November 13, 2013, Plaintiff and [Mary] legally
separated . . . .
....
12. Plaintiff owns a condo in Naples, Florida. [Mary]
traveled to the condo alone for purposes of recreation and
relation and during 2013 she traveled more and more
frequently to Naples . . . .
13. While on those trips [Mary] met Defendant. When
[Mary] returned to North Carolina . . . she seemed changed,
distant and less affectionate. Plaintiff began to suspect
[Mary] was having an affair.
14. Plaintiff began to search phone records and then
caught [Mary] in a lie about her whereabouts and who she
was with the weekend of November 8, 2013. Plaintiff
confronted [Mary] about the lie and whether she was
having an affair on Sunday, November 10, 2013. She
denied it.
....
16. From the day [defendant and Mary] met in 2013
through the date of separation of the parties, Defendant
initiated and engaged in regular and frequent
communication with [Mary] while she resided and was
located in North Carolina by email, text message, and
telephone. Defendant knew or at the very least could infer
that [Mary] was located in North Carolina during these
communications.
....
18. Prior to November 13, 2013, Defendant delivered
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PONDER V. BEEN
Opinion of the Court
communications, airline tickets and other things of value
to [Mary] while she was residing in North Carolina.
....
21. Defendant has known since the day he met [Mary]
that she was a married woman and . . . has at all times
acted in conscious disregard of the union.
22. With full knowledge of her marital status,
Defendant . . . engaged in a campaign to alienate [Mary]
from Plaintiff, and to damage if not destroy the bonds of
matrimony that existed between them.
“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 allegations in [his] sworn affidavit, such allegations are
accepted as true and deemed controlling.” Bruggeman v. Meditrust Acquisition Co.,
138 N.C. App. 612, 615, 532 S.E.2d 215, 218 (2000) (second alteration in original).
[But] when a defendant supplements its motion [to
dismiss] with affidavits or other supporting evidence, the
allegations of the plaintiff's complaint can no longer be
taken as true or controlling and [the] plaintiff[ ] cannot rest
on the allegations of the complaint, but must respond by
affidavit or otherwise . . . set[ting] forth specific facts
showing that the court has jurisdiction.
Wyatt v. Walt Disney World Co., 151 N.C. App. 158, 163, 565 S.E.2d 705, 708 (2002)
(citations and quotations omitted). Whether the trial court rules on the defendant’s
challenge to the exercise of personal jurisdiction based on the affidavits or conducts
a hearing with witness testimony or depositions, N.C. Gen. Stat. § 1A-1, Rule 43(e),
8
PONDER V. BEEN
Opinion of the Court
where the defendant challenges the exercise of personal jurisdiction, “the burden is
on the plaintiff to prove by a preponderance of the evidence that grounds exist for the
exercise of personal jurisdiction over a defendant.” Eluhu v. Rosenhaus, 159 N.C.
App. 355, 359, 583 S.E.2d 707, 710–11 (2003) (citation and quotations omitted), aff’d,
358 N.C. 372, 595 S.E.2d 146 (2004).
On 3 January 2018, defendant moved to dismiss plaintiff’s lawsuit for lack of
personal jurisdiction (including affidavits by defendant and Mary in which both deny
having had an affair or a sexual relationship), and on 28 February 2019, defendant
further supported his motion to dismiss with a brief challenging the exercise of
personal jurisdiction as a violation of due process. In materials provided to the court,
defendant acknowledged having spoken with Mary via telephone and emailing her,
though he did not indicate that these communications were frequent. Plaintiff filed
points and authorities in which he asserted that defendant provided Mary with a cell
phone and between 30 June and 13 November 2013, communicated with Mary 476
times. During the 4 March 2019 hearing on the matter, plaintiff presented phone
records listing phone calls made from defendant’s phone to a number with a 704 area
code but failed to present evidence that the phone number reflected on the records
was to a number associated with Mary.
For a moment, let us consider the exercise of personal jurisdiction over
defendant as it comports to the Due Process Clause.
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PONDER V. BEEN
Opinion of the Court
2
“[I]f the long-arm statute permits consideration of the action, exercise of
jurisdiction must not violate the Due Process Clause of the Fourteenth Amendment
to the U.S. Constitution.” Brown, 363 N.C. at 363, 678 S.E.2d at 223 (citing Skinner
v. Preferred Credit, 361 N.C. 114, 119, 638 S.E.2d 203, 208 (2006)).
To satisfy the due process prong of the personal jurisdiction analysis, there
must be sufficient ‘minimum contacts’ between the nonresident defendant and our
State ‘such that the maintenance of the suit does not offend traditional notions of fair
play and substantial justice.’ ” Skinner, 361 N.C. at 122, 638 S.E.2d at 210 (quoting
Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 90 L. Ed. 95, 102 (1945)) (quotation
marks omitted).
The United States Supreme Court has noted two types of
long-arm jurisdiction. Where the controversy arises out of
the defendant’s contacts with the forum state, the state is
said to be exercising “specific” jurisdiction. In this
situation, the relationship among the defendant, the forum
state, and the cause of action is the essential foundation for
the exercise of in personam jurisdiction. Where the
controversy is unrelated to the defendant’s activities
within the forum, due process may nevertheless be
satisfied if there are “sufficient contacts” between the
forum and the defendant.
Tom Togs, Inc. v. Ben Elias Indus. Corp., 318 N.C. 361, 366, 348 S.E.2d 782, 786
(1986) (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414,
80 L. Ed. 2d 404, 411 (1984)).
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PONDER V. BEEN
Opinion of the Court
Specific Jurisdiction
In the exercise of specific jurisdiction, “the relationship among the defendant,
the forum state, and the cause of action is the essential foundation for the exercise of
in personam jurisdiction.” Id. “[T]here must be sufficient ‘minimum contacts’
between the nonresident defendant and our state ‘such that the maintenance of the
suit does not offend traditional notions of fair play and substantial justice.’ ” Skinner,
361 N.C. at 122, 638 S.E.2d at 210 (quoting Int’l Shoe Co., 326 U.S. at 316, 66 S.Ct.
at 158, 90 L. Ed. at 102).
Following, our Supreme Court’s issuance of its opinion in Brown, 363 N.C. 360,
678 S.E.2d 222 (holding that frequent phone calls and email solicitations by the out-
of-state defendant regarding the romantic and sexual relationship with the plaintiff’s
wife were sufficient to satisfy North Carolina’s long-arm statute), the matter was
remanded to this Court to address whether the defendant had
“minimum contacts” with the State of North Carolina
sufficient to satisfy the requirements of due process.
....
Although a determination of whether the required
minimum contacts are present necessarily hinges upon the
facts of each case, there are several factors a trial court
typically evaluates in determining whether the required
level of contacts exists: (1) quantity of the contacts between
the defendant and the forum state, (2) quality and nature
of the contacts, (3) the source and connection of the cause
of action to the contacts, (4) the interest in the forum state,
and (5) convenience of the parties.
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Opinion of the Court
Brown v. Ellis, 206 N.C. App. 93, 97, 696 S.E.2d 813, 817 (2010) (citations, quotation
marks, and indentation omitted); see also id. at 98, 696 S.E.2d at 818 (holding because
the “alienation of [the] [plaintiff’s] wife’s affections occurred within the jurisdiction of
North Carolina[,] the factual allegations permit the reasonable inference that
personal jurisdiction over [the] defendant could properly be acquired in this case”
(second and third alterations in original) (citations and quotations omitted)).
In plaintiff’s points and authorities submitted in response to defendant’s
motion to dismiss and brief, plaintiff asserted that defendant provided Mary with a
cell phone that defendant used to communicate with her and that he paid Mary’s legal
fees in the domestic violence litigation which resulted in a domestic violence
protective order being entered against plaintiff. Moreover, plaintiff asserted that the
quality of the communications between defendant and Mary controls the minimum
contacts question. Plaintiff also contended that his claim would not be recognized in
Florida and that defendant has the means to travel to North Carolina such that it
would not be inconvenient for him.
The Trial Court’s 29 October 2019 Order
In its 29 October 2019 order denying defendant’s motion to dismiss, the court
made its ruling after considering “the Motion[s], the court file, the law presented by
counsel, [and] the briefs and evidentiary materials submitted by counsel.”
3. In his Motion, Defendant moved the [c]ourt
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PONDER V. BEEN
Opinion of the Court
pursuant to Rule 12(b)(2) for a dismissal with prejudice
based on his Florida residency and domicile, and that he
had not specifically availed himself to the laws of the State
of North Carolina.
4. With regard to Defendant’s Motion pursuant to Rule
12(b)(2), said Motion should be DENIED. The [c]ourt finds
the following:
a. Defendant availed himself to the laws of the
State of North Carolina by actively communicating
electronically with Mary Ponder on or before the
date she and Plaintiff separated on November 13,
2013, while Mary was still living in North Carolina.
This finding is supported by Cooper v. Shealy, 140
N.C. App. 729, 537 S.E.2d 854 (2000), which held
that telephone calls and emails were “solicitations”
within the meaning of N.C. Gen. Stat. § 1-75.4(4)a.;
and
b. This [c]ourt finds that Defendant’s electronic
contacts with Mary Ponder while Mary Ponder still
lives in North Carolina were significant and that he
availed himself to the specific jurisdiction of North
Carolina with respect to Plaintiff’s claims for
alienation of affections.
On these findings of fact, the trial court made the following conclusions:
1. The [c]ourt has specific jurisdiction over the persons
involved in this matter.
2. The [c]ourt concludes that Defendant had minimum
contacts with North Carolina sufficient to establish specific
personal jurisdiction within this state regarding Plaintiff’s
claim for alienation of affections. As a result, [defendant’s
motion to dismiss] should be denied.
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PONDER V. BEEN
Opinion of the Court
The evidence presented before the trial court may support a finding that
defendant communicated with a telephone number registered in North Carolina, but
the evidence does not support finding defendant’s communications were with Mary
or that their communications were significant. Cf. Brown, 363 N.C. 360, 678 S.E.2d
222; Cooper, 140 N.C. App. 729, 537 S.E.2d 854.
We hold that the allegations presented in plaintiff’s complaint, in conjunction
with the points and authorities presented in opposition to defendant’s motion to
dismiss as well as the evidentiary materials presented before the trial court during
the 4 March 2019 hearing, are not sufficient to support the trial court’s findings that
defendant
availed himself of the laws of the State of North Carolina
by actively communicating electronically with Mary . . . on
or before the date she and Plaintiff separated, [or that] . . .
Defendant’s electronic contacts with Mary . . . were
significant and that he availed himself of the specific
jurisdiction of North Carolina with respect to Plaintiff’s
claim for alienation of affections.
Thus, the court’s findings fail to meet the threshold for the exercise of personal
jurisdiction over defendant pursuant to General Statutes, section 1-75.4.
Accordingly, the trial court’s 29 October 2019 order denying defendant’s motion to
dismiss plaintiff’s action pursuant to Rule 12(b)(2) is
REVERSED.
Judge BROOK concurs in result only.
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PONDER V. BEEN
Opinion of the Court
Judge STROUD dissents by separate opinion.
2
No. COA19-1021 – Ponder v. Been
STROUD, Judge, dissenting.
Because I conclude the trial court’s findings of fact support the trial court’s
determination that it has personal jurisdiction over defendant, I respectfully dissent
and would affirm the trial court’s order. I would first note that I agree with the
majority’s summary of the case. Where I diverge from the majority is in their
summation and determination of what the findings of fact establish; namely, the
majority concludes they are insufficient to establish personal jurisdiction while I
deem them sufficient.
I. Standard of Review
The standard of review of the issue of personal jurisdiction depends upon the
information presented to the trial court. See Providence Volunteer Fire Department
v. Town of Weddington, 253 N.C. App. 126, 135, 800 S.E.2d 425, 432 (2017). In this
case, both parties submitted voluminous evidence.
[W]hen the parties submit competing evidence—
such as affidavits or an affidavit and a verified
complaint—the court may hear the matter on affidavits
presented by the respective parties, but the court may
direct that the matter be heard wholly or partly on oral
testimony or depositions. When the trial court decides the
motion on affidavits, the trial judge must determine the
weight and sufficiency of the evidence presented in the
affidavits much as a juror. Even when the trial court is
required to weigh evidence, it is not required to make
findings of fact unless requested by a party when deciding
a motion to dismiss. When the record contains no findings
of fact, it will be presumed that the judge, upon proper
evidence, found facts sufficient to support his ruling.
Where such presumed findings are supported by
PONDER V. BEEN
STROUD, J., dissent
competent evidence, they are deemed conclusive on
appeal, despite the existence of evidence to the contrary.
Id. (emphasis added) (citations, quotation marks, and footnote omitted).1
I begin by emphasizing the proper standard of review because this standard
determines whether this Court may substitute its own judgment for that of the trial
court. See generally Banc of Am. Sec. LLC v. Evergreen Int’l Aviation, Inc., 169 N.C.
App. 690, 694, 611 S.E.2d 179, 183 (2005). While the issue of “jurisdiction” in some
contexts presents a legal issue subject to de novo review, in actuality “personal
jurisdiction is a question of fact. Eluhu v. Rosenhaus, 159 N.C. App. 355, 357,
583 S.E.2d 707, 710, aff’d per curiam, 358 N.C. 372, 595 S.E.2d 146 (2004).” Bradley
v. Bradley, 256 N.C. App. 1, 5, 806 S.E.2d 58, 62 (2017) (emphasis added) (quotation
marks omitted). Indeed, “[t]he determination of whether jurisdiction is statutorily
and constitutionally permissible due to contact with the forum is a question of fact.”
Cooper v. Shealy, 140 N.C. App. 729, 732, 537 S.E.2d 854, 856 (2000) (emphasis
added) (citation and quotation marks omitted). Prior cases have consistently
determined the issue before us is one of fact. See, e.g., Bradley, 256 N.C. App. at 5,
806 S.E.2d at 62; Cooper, 140 N.C. App. at 732, 537 S.E.2d at 856; Hedden v. Isbell,
250 N.C. App. 189, 192, 792 S.E.2d 571, 574 (2016); Hiwassee Stables, Inc. v.
Cunningham, 135 N.C. App. 24, 27, 519 S.E.2d 317, 320 (1999).
Further, and equally important,
1 Defendant filed an affidavit and plaintiff’s complaint was verified. In addition, defendant was
deposed, and both parties filed multiple exhibits.
-2-
PONDER V. BEEN
STROUD, J., dissent
[w]hen this Court reviews a decision as to personal
jurisdiction, it considers only whether the findings of fact
by the trial court are supported by competent evidence in
the record; if so, this Court must affirm the order of the
trial court. Under Rule 52(a)(2) of the Rules of Civil
Procedure, however, the trial court is not required to make
specific findings of fact unless requested by a party. When
the record contains no findings of fact, it is presumed that
the court on proper evidence found facts to support its
judgment.
Banc of Am. Sec. LLC, 169 N.C. App. at 694, 611 S.E.2d at 183 (citations, quotation
marks, and ellipses omitted). Here too, I emphasize that our cases have consistently
determined if the findings of fact are supported by competent evidence, “this Court
must affirm” the trial court order. Id. (emphasis added); see, e.g., Replacements, Ltd.
v. MidweSterling, 133 N.C. App. 139, 141, 515 S.E.2d 46, 48 (1999); Better Business
Forms, Inc. v. Davis, 120 N.C. App. 498, 500, 462 S.E.2d 832, 833 (1995). In other
words, no matter how I might have viewed the evidence, this Court’s standard is to
consider “only whether the findings of fact by the trial court are supported by
competent evidence in the record[,]” and, if they are, we “must affirm the order of the
trial court.” Banc of Am. Sec. LLC, 169 N.C. App. at 694, 611 S.E.2d at 183.
II. Findings of Fact
On appeal, defendant does not challenge finding nos. 1-3, and therefore they
are binding on this Court. See Bell v. Mozley, 216 N.C. App. 540, 543, 716 S.E.2d 868,
871 (2011) (noting unchallenged findings of fact are binding on appeal). The trial
court found:
-3-
PONDER V. BEEN
STROUD, J., dissent
1. Plaintiff filed this action on September 14,
2017, asserting a claim against Defendant for alienation of
affections.
2. Defendant, who at all times material to this
action has resided and been domiciled in Florida, filed his
Motion and certain evidentiary materials on January 3,
2018.
3. In his Motion, Defendant moved the [c]ourt
pursuant to Rule 12(b)(2) for a dismissal with prejudice
based on his Florida residency and domicile, and that he
had not specifically availed himself to the laws of the State
of North Carolina.
A. Classification of Finding of Fact No. 4
Defendant contends “finding of fact” no. 4 is a mixed determination including
findings of fact and conclusions of law. “Finding of fact” no. 4 provides,
4. With regard to Defendant’s Motion pursuant
to Rule 12(b)(2), said Motion should be DENIED. The
[c]ourt finds the following:
a. Defendant availed himself to the laws
of the State of North Carolina by actively
communicating electronically with Mary
Ponder on or before the date she and Plaintiff
separated on November 13, 2013, while Mary
was still living in North Carolina. This
finding is supported by Cooper v. Shealy, 140
N.C. App. 729, 537 S.E.2d 854 (2000), which
held that telephone calls and emails were
“solicitations” within the meaning of N.C.
Gen. Stat. § 1-75.4(4)a.; and
b. This Court finds that Defendant’s
electronic contacts with Mary Ponder while
Mary Ponder still lives in North Carolina
were significant and that he availed himself
to the specific jurisdiction of North Carolina
-4-
PONDER V. BEEN
STROUD, J., dissent
with respect to Plaintiff’s claims for alienation
of affections.
Defendant contends “finding of fact” should be categorized as follows:
Factual Findings
 Mr. Ponder and [Mary] separated on 13
November 2013;
 [Mary] was still living in North Carolina on 13
November 2013;
 Mr. Been actively communicated electronically
with [Mary] on or before 13 November 2013; and
 Mr. Been’s electronic contacts with [Mary] while
she still was still living in North Carolina were
significant.
Legal Conclusions
 Mr. Been availed himself to the laws of North
Carolina through his electronic
communications with [Mary] on or before 13
November 2013;
 Mr. Been’s electronic communications with
[Mary] were “solicitations” under the long-arm
statute; and
 Mr. Been availed himself to the specific
jurisdiction of North Carolina with respect to the
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PONDER V. BEEN
STROUD, J., dissent
claim for alienation of affections through his
electronic contacts with [Mary].
Essentially, defendant seeks a more favorable standard of review on appeal as
legal conclusions are reviewed de novo. See generally Green v. Howell, ___ N.C. App.
___, ___, ___ S.E.2d ___, ___ (COA20-204) (3 Nov. 2020). Defendant invites this Court
to substitute its judgment for that of the trial court, and the majority accepted this
invitation, coming to a different result than the trial court. However, whether
evidence establishes contacts sufficient to support personal jurisdiction “is a question
of fact[,]” Bradley, 256 N.C. App. at 5, 806 S.E.2d at 62, and we review simply for
“competent evidence” to support the findings, which if found, requires we “affirm” the
order. See Banc, 169 N.C. App. at 694, 611 S.E.2d at 183.
B. Sufficiency of Findings of Fact to Permit Appellate Review
Defendant next contends “the aforementioned components of Finding of Fact 4
that actually constitute factual findings are insufficient to permit meaningful
appellate review” as the trial court failed to comply with his request for written
findings of fact under Rule 52(a)(2). As to the first part of defendant’s contention,
defendant argues if we remove the portions of the finding of fact he contends are
“legal conclusions” then the findings of fact are insufficient. I have already explained
why the trial court’s findings of fact regarding personal jurisdiction are indeed
findings and not legal conclusions. See Bradley, 256 N.C. App. at 5, 806 S.E.2d at 62.
As to the second part of defendant’s contention:
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Rule 52(a)(2) specifically provides that findings of
fact and conclusions of law are necessary on decisions of
any motion or order ex mero motu only when requested by
a party and as provided by Rule 41(b). A trial court’s
compliance with the party’s Rule 52(a)(2) motion is
mandatory. Once requested, the findings of fact and
conclusions of law on a decision of a motion, as in a
judgment after a non-jury trial, must be sufficiently
detailed to allow meaningful appellate review. When the
court fails to find facts so that this Court can determine
that the order is adequately supported by competent
evidence, then the order entered must be vacated and the
case remanded.
Agbemavor v. Keteku, 177 N.C. App. 546, 549, 629 S.E.2d 337, 340 (2006) (citations,
quotation marks, ellipses, and brackets omitted). Defendant did request findings of
fact, and the trial court made finding of fact. Defendant simply hoped for different
findings. While the trial court could have made more detailed findings of fact, I would
conclude the findings are sufficient to allow for meaningful appellate review. The
majority also recognizes the findings are sufficient to allow review, as it engages in
appellate review of the question on appeal. Contrast with Agbemavor at 549-51, 629
S.E.2d at 340-41 (vacating and remanding because the trial court made “no findings
of fact”).
C. Competency of the Evidence to Support Findings of Fact
Defendant’s third contention as to the findings of fact finally addresses the
actual issue of whether the trial court’s findings are supported by the evidence.
Defendant contends “there is no competent evidence to support various factual
findings delineated in Finding of Fact 4.” Specifically, defendant claims the evidence
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does not support the trial court findings of “active” or “substantial” communications
with Mary in North Carolina during her marriage to plaintiff. But defendant’s
arguments actually address the weight of the evidence -- whether it should be deemed
“active” or “substantial” -- not its competence. As I have noted, “the trial judge must
determine the weight and sufficiency of the evidence presented in the affidavits much
as a juror.” Providence Volunteer Fire Department, 253 N.C. App. at 135, 800 S.E.2d
at 432.
As to issues of actual competency of the evidence, defendant contends there is
no competent evidence exists (1) linking the phone defendant bought Mary to the 704
number defendant’s number was communicating with, and (2) establishing any
communication took place while Mary was actually in North Carolina. We first note
that plaintiff’s complaint was verified, and thus it is a part of the competent evidence,
and therefore as to plaintiff’s verified complaint and defendant’s affidavit, the trial
court was to act “as a juror” determining “weight and sufficiency of the evidence.” Id.Plaintiff’s verified complaint contends that
[f]rom the day they met in 2013 through the date of
separation of the parties, Defendant initiated and engaged
in regular and frequent communications with [Mary] while
she resided and was located in North Carolina by email,
text message, and telephone. Defendant knew or at the
very least could infer that [Mary] was located in North
Carolina during these communications.
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Defendant controverted the allegations in the complaint and seems to contend that
his assertions somehow cancel out plaintiff’s assertion, but again, it was upon the
trial court to determine the weight and credibility of each. See id.Defendant seeks to distinguish this case from Brown v. Ellis, 363 N.C. 360, 678
S.E.2d 222 (2009), where the Supreme Court determined per curiam that the
plaintiff’s verified complaint and affidavit statements regarding telephone calls and
emails to his wife were enough to satisfy the long-arm statute and establish the
personal jurisdiction of the defendant. In Brown, the only contacts the defendant had
in North Carolina were telephone calls and emails to the plaintiff’s wife. See generally
id., 363 N.C. at 363, 678 S.E.2d at 224. This Court determined the plaintiff failed to
show “that defendant solicited plaintiff’s wife while she was in North Carolina.” Id.
at 362, 678 S.E.2d at 223 (citation and quotation marks omitted). Specifically, this
Court noted the plaintiff’s arguments that he had shown personal jurisdiction
because he and his wife lived in North Carolina at the relevant time and the
defendant had called the wife when she was in plaintiff’s presence, although he did
not specifically allege they were both in North Carolina at the time:
Plaintiff offers the following facts in an attempt to
show that defendant carried on solicitation activities in the
State of North Carolina sufficient to authorize the exercise
of personal jurisdiction over defendant: 1) plaintiff is a
resident of North Carolina; 2) plaintiff’s wife lived with
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plaintiff; 3) defendant made phone calls to plaintiff’s wife
in the presence of plaintiff (although there is no allegation
regarding where these calls were actually received); and 4)
evidence as to defendant’s telephonic contacts with
plaintiff’s wife can be found in North Carolina (although
nothing in the record indicates that actual evidence of such
contacts was forecast).
After review of the record, we conclude that it
contains no evidence to support the trial court’s conclusion
that the State of North Carolina may exercise personal
jurisdiction over defendant pursuant to the long-arm
statute. Even liberally construed, these facts offer no
evidence that defendant solicited plaintiff’s wife while she
was in North Carolina.
Brown v. Ellis, 184 N.C. App. 547, 549, 646 S.E.2d 408, 410–11 (2007), rev’d
and remanded per curiam, 363 N.C. 360, 678 S.E.2d 222 (2009).
The Supreme Court reversed this Court and affirmed the trial court’s
determination that it had personal jurisdiction over the defendant based only upon
these telephone and email contacts. See Brown, 363 N.C. 360, 678 S.E.2d 222. The
Supreme Court agreed with this Court that the plaintiff had not specifically alleged
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his wife was physically present in North Carolina when defendant called her, but she
did live in North Carolina at the time and this Court’s reading of the complaint was
“overly strict[:]”
In the instant case, defendant argues the complaint
failed to allege that plaintiff’s wife was in North Carolina
at the time she received defendant’s telephone calls and e-
mail. The Court of Appeals agreed with defendant,
concluding there was “no evidence that defendant solicited
plaintiff’s wife while she was in North Carolina.” Brown,
184 N.C .App. at 549, 646 S.E.2d at 411. We believe this
reading of plaintiff’s complaint to be overly strict. Plaintiff
alleged that he resided in Guilford County with his wife
and daughter and that defendant “initiat[ed] frequent and
inappropriate, and unnecessary telephone and e-mail
conversations with [plaintiff’s wife] on an almost daily
basis.” According to the complaint, defendant and
plaintiff’s wife discussed their “sexual and romantic
relationship” in the presence of plaintiff and his minor
child. In his supporting affidavit, plaintiff specifically
averred that defendant’s alienation of his wife’s affections
“occurred within the jurisdiction of North Carolina.”
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Although the complaint does not specifically state that
plaintiff’s wife was physically located in North Carolina
during the telephonic and e-mail communications, that fact
is nevertheless apparent from the complaint. In his own
affidavit, defendant never denied that he telephoned or e-
mailed plaintiff’s spouse in North Carolina; rather, he
merely characterized the conversations as work related.
Id. at 363–64, 678 S.E.2d at 223–24.
Here, unlike in Brown, plaintiff did specifically assert that his wife was in
North Carolina when she received the communications from defendant encouraging
the destruction of her marriage. Contrast with id. at 363-64, 678 S.E.2d at 224.
Further, defendant admitted in his deposition that he purchased a cell phone for
Mary, and the bill for that phone with a North Carolina zip code is in defendant’s
name.
Defendant attempts to rely upon his refusal or failure to answer questions in
his deposition regarding where Mary was when he communicated with her as
evidence that she was not in North Carolina. Of course, this argument again asks
this Court to re-weigh the credibility of the evidence, but that is not this Court’s role.
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See generally Banc of Am. Sec. LLC, 169 N.C. App. at 694, 611 S.E.2d at 183. The
evidence supports the trial court’s findings.
In his deposition, defendant answered very few questions regarding his
communications with Mary and claimed to remember almost nothing, repeatedly
stating phrases such as “I just don’t have any recollection[;]” “I don’t know[;]” “I don’t
have any recollection right now[;]” and “I don’t recall.” Contrary to defendant’s
contentions, his failure to answer questions does not constitute an affirmative
showing of evidence that Mary was not in North Carolina – her home at that time –
when he communicated with her over 400 times as shown by plaintiff’s summary of
the phone records produced by AT&T. Further, plaintiff asserted that defendant
contacted Mary on their home phone, in North Carolina. Thus, the fact that
defendant does not remember the hundreds of phone calls and text messages reflected
in the billing statements is in conflict with the forecast and actual presentation of
evidence from plaintiff, and here, the trial court resolved that conflict in favor of
plaintiff.
D. Summary
As to the findings of fact, they are properly classified as findings of fact and
sufficient to support meaningful appellate review. The competent evidence supports
the findings of fact. Ultimately, the competent evidence supports the findings of fact,
and I would overrule defendant’s arguments challenging them.
III. Solicitations
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Defendant next contends the trial court erred in concluding he engaged in
“solicitations” for purposes of the long-arm statute. Defendant focuses on (1) a lack
of evidence that he initiated any alleged contact with Mary and (2) his contention that
since he denied the allegations of an improper purpose of any alleged communications
there was not “evidence sufficient to overcome these sworn denials.” Plaintiff
asserted in his verified complaint that he and Mary “enjoyed a true and genuine
marital relationship of love and affection[,]” and defendant knowingly destroyed “the
bonds of matrimony” by his frequent communication with Mary, whom he knew was
married, in North Carolina and sending her things of value such as airline tickets.
North Carolina General Statutes § 1-75.2 defines “solicitation” for purposes of
jurisdiction as “a request or appeal of any kind, direct or indirect, by oral, written,
visual, electronic, or other communication, whether or not the communication
originates from outside the State.” N.C. Gen. Stat. § 1-75.2 (2013). Defendant argues
the trial court’s finding that the communications were “solicitations” is a conclusion
of law, not a finding of fact, so this Court should review the trial court’s determination
de novo. Defendant has not provided any authority to support his argument for de
novo review, and to the extent prior cases do address this issue, it has been treated
as a finding of fact, and the same standard of review as discussed above applies. See
Cooper, 140 N.C. App. at 734, 537 S.E.2d at 857 (“The trial judge found that the
alleged telephone contacts (including telephone calls and telephone transmitted e-
mail) were ‘solicitations’ within the meaning of N.C. Gen. Stat. § 1–75.4(4) and we
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agree.” (emphasis added)). But whether the “solicitation” issue is a finding of fact or
a conclusion of law, the trial court’s findings of fact support its conclusion, as does the
law.
A. Initiation of Contact
The trial court’s findings and the evidence demonstrate that defendant had
direct communications with Mary by cell phone and text messages. But defendant
argues that the evidence here does not show that he “initiated” the phone calls to
Mary and that the evidence does not show sufficient frequency of phone calls, citing
to the factual allegation of “almost daily” phone calls in Brown.
 The first call of the day emanated from Mr. Been’s
cell phone only three times during the pertinent 89-day
period covered by those records, (Doc. Ex. 44, 49, 58)
(reflecting Mr. Been called first on 2 August 2013, 20
August 2013, and 20 September 2013);
 Those three calls lasted a grand total of 0 minutes, 0
seconds, (Doc. Ex. 44, 49, 58) (listing an elapsed time (“ET”)
of 0:00 for each call);
 The 73 total calls emanating from Mr. Been’s cell
phone collectively amounted to an ET of just over 68
minutes during the 89-day span. (Doc. Ex. 32-65).
The plain language of North Carolina General Statute § 1-75.2 does not
support an assertion that a defendant must initiate the contact within North Carolina
to support a finding of “solicitation.” See N.C. Gen. Stat. § 1-75.2. North Carolina
General Statute § 1-75.2 speaks to “a request or appeal of any kind[,]” it does not
state, as defendant contends, that the out-of-state defendant must initiate the phone
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call, email, text message, or any other form of communication, but rather that once
initiated “a request or appeal” is made, and the trial court did not weigh it of critical
importance here. Id. Whether the calls were “originated” or “initiated” by Mary or
defendant, the communications occurred. And in this context, it would be logical for
the trial court to surmise that defendant and Mary would have arranged for their
conversations to occur when no one, particularly plaintiff, was nearby to overhear
them.
B. Sufficiency of Evidence for Solicitation
In Cooper v. Shealy, this Court found solicitation and a sufficient basis for
personal jurisdiction based on an unspecified number of phone calls and emails made
to the plaintiff’s husband when he was living in North Carolina:
The trial judge found that the alleged telephone
contacts (including telephone calls and telephone
transmitted e-mail) were “solicitations” within the
meaning of N.C. Gen. Stat. § 1–75.4(4) and we agree.
Plaintiff alleged that defendant telephoned her husband in
North Carolina in order to solicit his affections and entice
him to leave his family. In addition, plaintiff claimed that
she suffered injury, the destruction of her husband’s love
and affection, as the direct result of defendant’s wrongful
conduct. We conclude, therefore, that the North Carolina
long-arm statute authorizes personal jurisdiction since the
plaintiff’s injury allegedly occurred within North Carolina
and was allegedly caused by defendant’s solicitation of
plaintiff’s husband’s love and affection by telephoning
plaintiff’s home in North Carolina.
140 N.C. App. at 734, 537 S.E.2d at 857 (emphasis added). In this case, the trial court
had far more evidence regarding the number or frequency of communication than was
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present in Cooper where solicitation was found for purposes of the long-arm statute.
See id. at 734-35, 537 at 857-58.
Plaintiff alleged in his verified complaint that the defendant had sent plane
tickets to North Carolina and once Mary and her children left North Carolina, they
lived in homes in Florida owned by defendant. Defendant’s deposition confirmed
these allegations. Defendant also admitted to loaning plaintiff $85,000. These
alleged results of communications, money and plane tickets, between defendant and
Mary are based on circumstantial evidence, but circumstantial evidence is still valid
evidence. Unless a plaintiff has managed to obtain direct physical evidence such as
recordings of conversations, incriminating photographs or video, or written
communications, much of the evidence in cases such as this is normally
circumstantial, and this circumstantial evidence may include post-separation
conduct. See Nunn v. Allen, 154 N.C. App. 523, 534, 574 S.E.2d 35, 42 (2002) (“Under
Pharr, supra, post-separation conduct is admissible and relevant to corroborate
evidence of pre-separation conduct, and the evidence of post-separation conduct here
provides strong circumstantial evidence explaining and corroborating defendant’s
pre-separation conduct.”).
North Carolina law also does not require any particular type, frequency, or
quantity of communications. See generally Cooper, 140 N.C. App. at 734–35, 537
S.E.2d at 858. In Cooper, this Court noted the number of contacts was not in the
record, so the number of calls was not a controlling factor. See id. In fact, this Court
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cited favorably to a federal case in which a single phone call from out of state was
held to be a sufficient “minimum contact” with the forum state:
In the principal case, we have no transcript of the
hearing and plaintiff’s complaint does not allege the
number of contacts defendant had with plaintiff’s husband
here in North Carolina. Therefore, we do not know how
many contacts defendant had with plaintiff and her
husband in North Carolina. However, we note that federal
courts have found personal jurisdiction when the
defendant had only minimal contacts with the forum state.
See Brown v. Flowers Industries, Inc., 688 F.2d 328 (5th
Cir. 1982), cert. denied, 460 U.S. 1023, 103 S.Ct. 1275, 75
L.Ed.2d 496 (1983), and J.E.M. Corporation v. McClellan,
462 F.Supp. 1246 (D.Kan. 1978) (exercising personal
jurisdiction when defendant’s sole contact with the forum
state was a single phone call from out-of-state).
The quantity of defendant’s contacts with North
Carolina may not have been extensive. However, we have
already determined that the contacts were sufficient for
purposes of N.C. Gen. Stat. § 1-75.4[.]
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Id.C. Content of Communications
Defendant also contends that plaintiff did not present sufficient evidence of the
content of the communications between himself and Mary. Defendant argues that he
and Mary “acknowledged they communicated electronically, (R pp 59(¶¶11-14),
84(¶15)), but they also vehemently denied that such communications had any
improper purpose or content. (R pp 59(¶¶11, 13), 84-85(¶¶15-23), 95(¶5)). Mr.
Ponder did not present evidence sufficient to overcome those sworn denials.”
Again, for purposes of personal jurisdiction, plaintiff was not required to prove
the precise content of the communications between defendant and Mary. See
generally Cooper, 140 N.C. App. 729, 537 S.E.2d 854. Plaintiff is required only to
present evidence of the communications and some evidence, which may be
circumstantial, that the communications were for the purpose of alienating the
affections of his spouse. See generally id. Quite often in cases dealing with alienation
of affections, the defendant and the spouse of the plaintiff allege some proper reason
for their communications other than encouraging or seeking a romantic relationship
or alienation of the affections between the plaintiff and his or her spouse. See, e.g.,
Brown, 363 N.C. at 364, 678 S.E.2d at 224. For example, in Brown, our Supreme
Court noted that in the defendant’s affidavit, he “never denied that he telephoned or
e-mailed plaintiff’s spouse in North Carolina; rather, he merely characterized the
conversations as work related.” Id. Here, defendant also has not denied that he
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communicated with Mary by telephone and text, but to the extent that he admits
recalling such communications, he claimed he was merely providing information
regarding where Mary could seek assistance related to domestic violence.
Other evidence also tends to support plaintiff’s claim that the content and
purpose of the communications between defendant and Mary was to alienate the
affection of the marriage. The evidence before the trial court included defendant’s
affidavit executed on 1 June 2016, in which he states that “I consider Ms. Ponder a
friend and somewhat of a daughter and that is how it has always been.” However, on
20 December 2017, defendant testified in a deposition that he and Mary had been
dating for “[f]ive years.” Defendant filed an Errata Sheet to this deposition, changing
his answer from “five years” to “five months.” Certainly, defendant may have
misspoken -- twice -- by saying “years” instead of “months,” but his testimony does
raise a credibility issue, particularly in light of the other evidence forecast including
defendant’s provision of $85,000, plane tickets, and a home for Mary. And if assuming
defendant did make a mistake and they had been dating only months, not years,
defendant testified in the same deposition that in December 2017, after dating for
only five months, he and Mary lived together in a house they jointly owned, and he
provided for her daily expenses. Defendant’s relationship with Mary had progressed
since his June 2016 affidavit from “friend” and “somewhat of a daughter” to husband
and wife. In Mary’s affidavit executed 2 March 2018, she noted she and defendant
had gotten married in December of 2017. This Court cannot determine if plaintiff
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should ultimately prevail in his claims. But here, while defendant mostly asserts he
cannot remember if had communicated with Mary or not, and to what extent, the
evidence forecast and presented by plaintiff indicates that he did, and the extent to
which that qualifies as a tort is a question for the trial court and/or jury.
D. Summary
In summary, solicitation does not require initiation, and there was sufficient
evidence upon which the trial court made its determination that the long-arm statute
was satisfied as to solicitation. I need not determine specifically if the communication
arose to the level of a tort for which defendant would be liable as that is not the
question before us. I would overrule defendant’s arguments.
IV. Due Process
Finally, defendant contends the trial court erred in exercising jurisdiction over
him because “doing so contravenes the North Carolina long-arm statute and the due
process clause of the United States Constitution[.]” (Original in all caps.) I have
already noted that the trial court had competent evidence for its finding of fact that
defendant solicited plaintiff for purposes of the long-arm statute. See N.C. Gen. Stat.
§ 1-75.4 (2013). Thus, the remaining inquiry is one of due process; returning to
Cooper,
Since we have determined that personal jurisdiction
is authorized by the long-arm statute, we must now
address whether defendant had such minimum contacts
with the forum state to comport with due process. Fraser
v. Littlejohn, 96 N.C. App. 377, 386 S.E.2d 230 (1989). Due
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process requires that the defendant have “minimum
contacts” with the state in order to satisfy “‘traditional
notions of fair play and substantial justice.’” International
Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154,
158, 90 L.Ed. 95, 102 (1945) (quoting Milliken v. Meyer, 311
U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278, 283 (1940)).
The factors to consider when determining whether
defendant’s activities are sufficient to establish minimum
contacts are: “(1) the quantity of the contacts; (2) the
quality and nature of the contacts; (3) the source and
connection of the cause of action to the contacts; (4) the
interests of the forum state, and (5) the convenience to the
parties.” Fran’s Pecans, Inc. v. Greene, 134 N.C. App. 110,
114, 516 S.E.2d 647, 650 (1999).
In the principal case, we have no transcript of the
hearing and plaintiff's complaint does not allege the
number of contacts defendant had with plaintiff’s husband
here in North Carolina. Therefore, we do not know how
many contacts defendant had with plaintiff and her
husband in North Carolina. However, we note that federal
courts have found personal jurisdiction when the defendant
had only minimal contacts with the forum state. See Brown
v. Flowers Industries, Inc., 688 F.2d 328 (5th Cir.1982),
cert. denied, 460 U.S. 1023, 103 S.Ct. 1275, 75 L.Ed.2d 496(1983), and J.E.M. Corporation v. McClellan, 462 F.Supp.
1246 (D.Kan.1978) (exercising personal jurisdiction when
defendant’s sole contact with the forum state was a single
phone call from out-of-state).
The quantity of defendant’s contacts with North
Carolina may not have been extensive. However, we have
already determined that the contacts were sufficient for
purposes of N.C. Gen. Stat. § 1–75.4, especially considering
that the alleged injury under the claim (ultimately the
destruction of plaintiff's marriage) was suffered by plaintiff
allegedly within this state. Plaintiff claims that there is a
direct relationship between the contacts and plaintiff's
injuries. Furthermore:
North Carolina has a strong interest in
protecting its citizens from local injury caused
by the tortious conduct of foreign citizens:
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“In light of the powerful public
interest of a forum state in
protecting its citizens against
out-of-state tortfeasors, the
court has more readily found
assertions of jurisdiction
constitutional in tort cases.”
Saxon v. Smith, 125 N.C. App. 163, 173, 479 S.E.2d 788,
794 (1997) (quoting Ciba–Geigy Corp. v. Barnett, 76 N.C.
App. 605, 608, 334 S.E.2d 91, 93 (1985)). It is important to
note that plaintiff cannot bring the claims for alienation of
affections and criminal conversation in South Carolina
(defendant’s resident state) since that state has abolished
those causes of actions. Russo v. Sutton, 310 S.C. 200, 422
S.E.2d 750 (1992). Therefore, North Carolina’s interest in
providing a forum for plaintiff’s cause of action is especially
great in light of the circumstances. Furthermore, North
Carolina’s legislature and courts have repeatedly
demonstrated the importance of protecting marriage. N.C.
Gen. Stat. § 8–57(c) (spouses may not be compelled to
testify against each other if confidential information made
by one to the other would be disclosed)[.]
Finally, we must consider the convenience to the
parties. As mentioned earlier, plaintiff would be unable to
bring her claims in South Carolina (defendant’s resident
state) since those causes of action are no longer in existence
in South Carolina. Furthermore, several possible
witnesses and evidence relevant to plaintiff’s marriage and
the destruction thereof would more than likely be located
in North Carolina. In addition, because defendant is a
resident of our neighboring state, South Carolina, there is
a minimal traveling burden on defendant to defend the
claims in North Carolina. For the reasons stated above, we
do not believe that allowing plaintiff to bring these claims
against defendant in North Carolina in any way “offend[s]
‘traditional notions of fair play and substantial justice.’”
International Shoe Co., 326 U.S. 310, 316, 66 S.Ct. 154,
158, 90 L.Ed. 95, 102 (quoting Milliken v. Meyer, 311 U.S.
457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278, 283).
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140 N.C. App. at 734–36, 537 S.E.2d at 857–58 (emphasis added) (alterations in
original) (citations omitted).
Here, phone records indicate there were more than 400 communications
between defendant and Mary. While we do not know the exact nature of these
contacts, plaintiff’s verified complaint notes defendant provided Mary with airplane
tickets and a home in Florida to live in upon leaving North Carolina. Just as in
Cooper, [p]laintiff claims that there is a direct relationship between the contacts and
plaintiff’s injuries[;]” namely, “the destruction of plaintiff’s marriage[.]” Id. at 735,
537 S.E.2d at 858. Also, as in Cooper, id., North Carolina’s interest in providing a
forum to protect marriage law is high, particularly as alienation of affections is no
longer a claim under Florida law. Davis v. Hilton, 780 So. 2d 974, 975 (Fla. Dist. Ct.
App. 2001) (“The clear language of Florida Statutes § 771.01 abolishes the claim of
alienation of affections.”). As to the convenience of the parties, plaintiff would be
unable to bring his claim in Florida. See id.; see also Cooper, 140 N.C. App. 735-36,
537 S.E.2d at 858. “Furthermore, several possible witnesses and evidence relevant
to plaintiff’s marriage and the destruction thereof would more than likely be located
in North Carolina.” Id. at 736, 537 S.E.2d at 858. Ultimately, just as in Cooper, I “do
not believe that allowing plaintiff to bring these claims against defendant in North
Carolina in any way offends traditional notions of fair play and substantial justice.”
Id. (citation, quotation marks, and brackets omitted). Summarizing, just as the trial
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court determined based on the competent evidence before it, due process standards
have been met. I would overrule this argument.
In conclusion, I would affirm the order of the trial, and therefore I respectfully
dissent.
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