McCutchen v. McCutchen

612 S.E.2d 162, 170 N.C. App. 1, 2005 N.C. App. LEXIS 904
CourtCourt of Appeals of North Carolina
DecidedMay 3, 2005
DocketCOA03-1630
StatusPublished
Cited by5 cases

This text of 612 S.E.2d 162 (McCutchen v. McCutchen) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McCutchen v. McCutchen, 612 S.E.2d 162, 170 N.C. App. 1, 2005 N.C. App. LEXIS 904 (N.C. Ct. App. 2005).

Opinions

BRYANT, Judge.

Patricia McCutchen (plaintiff) appeals an order filed 6 August 2003, granting Deborah T. McCutchen’s (defendant) motion for summary judgment as to plaintiffs claim for alienation of affections.

Plaintiff and Byron McCutchen were married on 1 June 1968, separated on 9 September 1998, and divorced on 30 May 2002. Their marriage produced three children who are all now adults.

Defendant became acquainted with Byron through her membership with Greenwood Forest Baptist Church, where Byron was a deacon. Defendant and Byron began a sexual relationship in September 1998, and after plaintiff and Byron were divorced, defendant and Byron married.

Plaintiff commenced an action for alienation of affections and criminal conversation on 25 April 2003. On 21 July 2003, plaintiff’s motion for summary judgment was granted as to the criminal conversation claim, with damages to be reserved for further hearing. By order filed 6 August 2003, defendant’s motion for summary judgment as to the claim for alienation of affections was granted. Plaintiff filed notice of appeal on 26 August 2003.

Interlocutory Appeal

The trial court’s ruling on a motion for summary judgment, leaving the issue of damages remaining for review, is not a final judgment, [3]*3but instead interlocutory in nature, and therefore is not immediately appealable. See Schuch v. Hoke, 82 N.C. App. 445, 446, 346 S.E.2d 313, 314 (1986) (stating that an order granting a party’s motion for summary judgment, reserving for later determination the issue of damages, is an interlocutory order not immediately appealable). N.C. Gen. Stat. § 1A-1, Rule 54(b) states in pertinent part:

In the absence of entry of such a final judgment, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties and shall not then be subject to review either by appeal or otherwise except as expressly provided by these rules or other statutes.

N.C.G.S. § 1A-1, Rule 54(b) (2003); see also Veazey v. Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950). “Even if the lower court’s ruling . . . was considered a final judgment as to the issue presented, no appeal of right will lie unless the decree is certified for appeal by the trial court pursuant to . . . Rule 54(b) .... As that is not the case, here, plaintiffs’ appeal is premature.” Munden v. Courser, 155 N.C. App. 217, 218, 574 S.E.2d 110, 112 (2002).

In certain instances, this Court may review interlocutory appeals pursuant to N.C. Gen. Stat. § l-277(a) and 7A-27(d)(l), which allow for review of interlocutory appeals if “the trial court’s decision deprives the appellant of a substantial right which would be lost absent immediate review.” N.C. Dept. of Transp. v. Page, 119 N.C. App. 730, 734, 460 S.E.2d 332, 334 (1995). For this Court to review the appeal on its merits, “the right itself must be substantial and the deprivation of that substantial right must potentially work injury to plaintiff if not corrected before appeal from final judgment.” Goldston v. American Motors Corp., 326 N.C. 723, 726, 392 S.E.2d 735, 736 (1990).

Pursuant to Rule 28 of the North Carolina Rules of Appellate Procedure, appellant’s brief must contain a statement of the grounds for appellate review containing therein “sufficient facts and argument to support appellate review on the ground that the challenged order affects a substantial right.” N.C. R. App. P. 28(b)(4). In the instant case, plaintiff failed to comply with this requirement, as plaintiff’s brief does not contain a statement regarding whether a substantial right would be affected if this appeal were not immediately reviewed. During oral arguments, however, plaintiff did state that if this appeal [4]*4is deemed to be interlocutory, a substantial right is affected, subjecting the trial court’s ruling to immediate appeal. In addition, defendant did brief and present at oral arguments, statements that this appeal is an interlocutory appeal and reasons the trial court’s ruling is immediately appealable.

Notwithstanding the fact that no final judgment was entered as to the issue of damages for the tort of criminal conversation, nor was Rule 54 certification granted, we conclude that this appeal does affect a substantial right which would be lost absent immediate review. Specifically, as both parties acknowledged at oral argument and defendant contended in her brief, “[s]ince the elements of damages are so closely related, they do not support separate awards for each tort.” 1 Suzanne Reynolds, Lee’s North Carolina Family Law §5.48(A), at 415 (5th ed.); see Sebastian v. Kluttz, 6 N.C. App. 201, 220, 170 S.E.2d 104, 116 (1969) (“the two causes of action [alienation of affections and criminal conversation] and the elements of damages ... are so connected and intertwined, only one issue of compensatory damages and one issue of punitive damages should [be] submitted to the jury”).

The sole issue on appeal is whether the trial court erred in granting defendant’s motion for summary judgment as to the alienation of affections claim.

Pursuant to Rule 56(c) of the Rules of Civil Procedure, summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the party is entitled to a judgment as a matter of law.” N.C.G.S. § 1A-1, Rule 56(c) (2003). The moving party has the burden of establishing the absence of any genuine issue of material fact, and the trial court should view the evidence in the light most favorable to the nonmoving party. Norris v. Zambito, 135 N.C. App. 288, 293, 520 S.E.2d 113, 116 (1999).

In North Carolina, civil actions may only be commenced within time periods specified in Chapter 1 of the North Carolina General Statutes, except where, in special cases, a different limitation is specified by statute. N.C.G.S. § l-15(a) (2003) (“Civil actions can only be commenced within the periods prescribed in this Chapter, after the cause of action has accrued, except where in special cases a different limitation is prescribed by statute.”). Accrual of a cause of action is the point at which we determine when the limitation period begins to [5]*5run. N.C.G.S. § l-15(a) (2003); see Hoyle v. City of Charlotte, 276 N.C. 292, 307 172 S.E.2d 1, 11 (1970). A cause of action accrues and the statute of limitations begins to run at the time in which a party becomes liable. Sebastian, 6 N.C. App. at 210, 170 S.E.2d at 109. The statute of limitations does not begin to run until the plaintiff is entitled to sue. Willetts v. Willetts, 254 N.C. 136, 145, 118 S.E.2d 548, 554 (1961). Rather, once the cause of action accrues and the statute of limitations begins to run, the statute of limitations continues to run uninterrupted unless stayed by judicial process. Travelers Ins. Co. v. Rushing, 36 N.C. App. 226, 228, 243 S.E.2d 420, 421-22 (1978).

Pursuant to N.C. Gen. Stat. § 1-52(5), the statute of limitations is three years for “criminal conversation, or for any other injury to the person or rights of another, not arising on contract and not hereafter enumerated.” N.C.G.S. § 1-52(5) (2003).

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Cite This Page — Counsel Stack

Bluebook (online)
612 S.E.2d 162, 170 N.C. App. 1, 2005 N.C. App. LEXIS 904, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccutchen-v-mccutchen-ncctapp-2005.