An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of A p p e l l a t e P r o c e d u r e .
NO. COA14-128 NORTH CAROLINA COURT OF APPEALS
Filed: 16 September 2014
TIMOTHY D. PRICE, Plaintiff,
v. Cumberland County No. 12 CVS 2720 PAUL LINDSEY JONES, Defendant.
Appeals by Plaintiff and Defendant from Order entered 7
November 2013 by Judge Mary Ann Tally in Cumberland County
Superior Court. Heard in the Court of Appeals 4 June 2014.
Hedahl & Radtke, by Debra J. Radtke, for Plaintiff.
McCoy Wiggins Cleveland and O’Connor, PLLC, by Richard M. Wiggins and Daniel S. Harrison, for Defendant.
STEPHENS, Judge.
Procedural History and Factual Background
This case arises from claims brought by Plaintiff Timothy
D. Price against Defendant Paul Lindsey Jones for criminal
conversation, alienation of affection, and breach of fiduciary
relationship. Defendant denied the material allegations of -2- Plaintiff’s complaint and moved for summary judgment on 22
October 2013, following discovery. The matter was heard on 4
November 2013. The parties’ forecast of evidence indicates the
following pertinent facts:
Plaintiff married Karen Price on 26 June 1994 in North
Carolina. They had two children during the marriage. They
separated on 27 March 2009 and were divorced on 27 April 2010.
Plaintiff and Karen became acquainted with Defendant and his
former wife, Carol Jones, in the late 1990s through Defendant’s
employment as a mortgage loan officer with Branch Banking &
Trust (“BB&T”). Defendant helped Plaintiff and Karen refinance a
number of loans.
In or around 2004, Defendant and Karen began an
extramarital affair. Around the same time, Plaintiff, Karen,
Defendant, and Carol began spending time together as friends.
They socialized with one another, visited each other’s homes,
went on vacations together, and spent time with each other’s
children.
On 1 January 2009, following a New Year’s Eve party at the
Jones family residence, Carol began to suspect that her husband
was having an affair with Karen. Around 1:00 or 2:00 a.m., after
Plaintiff and Karen had left the home, Defendant’s daughter -3- informed Carol that she had overheard her father on the phone,
“and she heard . . . him say Karen’s name, and he said ‘I want
to lick the pink thong off of your ass.’” A few days later,
Carol checked the family’s phone records and discovered that
Defendant “had called Karen’s number frequently during the day,
every day, and sometimes [he] would talk for up to an hour or
more.” This usually occurred after Carol went to bed or early in
the morning, “like when he was supposed to be on his way to
work.”
At that point, Carol contacted Plaintiff and informed him
about the New Year’s Eve incident and her husband’s phone
records. According to Plaintiff, Carol did not elaborate on the
specifics of the texts, “other than [noting] the fact that they
had [been] text[ing] each other.” Plaintiff did not believe
Carol and responded that he did not think “[Karen] would do that
to me,” commenting that his wife thought of Defendant “like a
brother.” Carol then informed Plaintiff that the couples would
no longer be socializing with one another, and Plaintiff said he
was “sorry [she felt] that way.”
Carol continued to talk to Plaintiff through March of 2009.
Based on Plaintiff’s deposition testimony, she did not give him
any other specific information until the middle of March. -4- Instead, Carol only mentioned that the relationship “seemed
suspicious.” Carol’s deposition indicates, to the contrary, that
she called Plaintiff on at least one other occasion, in
February, after discovering another phone in her home. The phone
was “not [Defendant’s] regular cell phone.” It was registered
under a separate account, and all the calls and text messages
were connected to “just one phone number.” The text messages
said “I love you, marry you” and referenced Plaintiff and his
children, indicating to Carol that the communications came from
Karen. When Carol told Defendant “about the second phone and the
texts that I read, and that I knew they were having an affair,
. . . he cried on the phone.”1
At the same time, Plaintiff and Karen continued to
socialize with Defendant. Plaintiff mentioned Carol’s concerns
to them, and “they would just kind of make light of it” and
imply that Carol “didn’t want the four of us to hang out
anymore.” During Defendant’s deposition, his attorney asked
whether Karen denied that they were having an affair, and
Defendant commented that “[s]he made it — she made it sound
absurd.” Plaintiff commented that, while “Carol . . . felt
1 In his brief, Plaintiff suggests that this may not have happened, noting that Plaintiff’s deposition “does not reflect [that].” -5- strongly that something was going on[,] . . . I didn’t, I didn’t
feel that. I just felt like that we were all three having a good
time, and [Carol was] the, the worm in the apple . . . .”
On 6 March 2009, Karen told Plaintiff that she had talked
with an attorney and wanted to separate. Shortly thereafter
Plaintiff and Karen began living in different sections of the
house. Plaintiff nonetheless held out hope that the relationship
could be mended, noting that Karen “thought that maybe we could
work things out.” Plaintiff also stated that he and Karen were
attending counseling sessions at that time, albeit with separate
counselors.
Plaintiff and his father went to see an attorney on 9 March
2009.2 They talked about Karen, and the attorney told Plaintiff
that “there was a snake in the grass,” recommending that
Plaintiff “find out what’s going on in [his] house.” Plaintiff
did not believe his attorney and said that he thought Karen was
“just unhappy,” again stating that “she wouldn’t do that to me.”
On 18 March 2009, a Wednesday, Plaintiff’s father hired a
private investigator based in Fayetteville, North Carolina to
confirm the father’s “assumption” that Karen was cheating.
2 Different counsel represents Plaintiff on appeal. -6- During his deposition, the investigator testified as follows
regarding the father’s reason for hiring him:
Q And the — and what [the father] hired you was to try to either prove or disprove what he believed was happening, wasn’t he?
A Don wanted to put closure on it. Ruin or no ruin, he wanted to make — he wanted to step up to the table and put a closure; it was half that he wanted to put a cease and that was it.
Q He wanted to know what was going on.
A That’s correct.
Q And if it was true, he wanted to know it; if it was not true, he wanted to know it.
Initially, the investigator worked with Plaintiff’s father.
According to the investigator, Plaintiff appeared to be “in
denial more than anything. He didn’t want to — I don’t know if
[he] wanted to know it.” The father “was pretty adamant about
. . . keeping [Plaintiff] aware of what was going on[, however,]
because [Plaintiff], as far as emotion-wise[,] couldn’t take a
lot of things . . . [and the father] was pretty adamant about
[the fact that] he didn’t like what was going on . . . .”
Around the same time, Carol contacted Plaintiff to let him
know that Defendant was planning to take a weekend golf trip to -7- the beach. When Carol asked about Karen’s plans for the weekend,
Plaintiff responded that Karen was going to the beach with some
of her girlfriends. Carol expressed her belief that Karen and
Defendant were actually planning to meet one another at the
beach, commenting that Karen did not have any girlfriends.
Plaintiff was not convinced, but directed the investigator to
follow Karen to the beach. Explaining his rationale for this
decision, Plaintiff testified that:
[W]ith the correspondence that, that took place between [Defendant’s] wife Carol telling me . . . [that Defendant] was going down and [Karen] was going down, and all the things that were taking place, I decided that that would be an opportunity, that if they were going to meet or if they were going to be together, then that would be an opportunity for them to be seen together.
And my whole, my whole thing was, is I don’t believe that they are doing anything. I’m spending this money, but I honestly don’t think that they’re going to find out anything.
Despite this thought process, Plaintiff also admitted, during a
17 March 2009 meeting with the investigator, to “allud[ing]” to
the fact that “his wife of several years . . . had been having
an affair with their banker at BB&T by the name of Paul Jones.”
Karen left for the beach around 11:00 a.m. on Friday, 20
March 2009, and the investigator followed her. Carol had -8- informed the investigator that Defendant was going to Ocean Isle
for a golf tournament, and Plaintiff told him that “they” were
probably going to his house at Holden Beach, which is a few
miles away. As a result, the investigator went ahead and waited
for Karen at the Holden Beach address provided by Plaintiff.
Karen arrived at the house around 3:00 p.m., and the
investigator did not see anyone with her. He maintained
surveillance of the house until early that morning. Feeling
tired, the investigator left at 12:28 a.m. and returned around
6:00 a.m. on Saturday. Karen’s vehicle was gone. As a result,
the investigator went to Ocean Isle to look for Defendant. The
investigator was unable to locate Defendant and called Plaintiff
around 2:00 p.m. to let him know. Plaintiff responded with
“relief[, making] some statement like ‘Carol’s wrong,’” and told
the investigator not to worry about the rest of the
surveillance. Plaintiff “was pretty adamant that’s — it wasn’t
nothing there, and that’s when I called if [sic] off, but I
said, ‘Well, I’ll just keep my [assistant] down there[,] and
we’ll do random spot checks . . . late Saturday and Sunday.”
The investigator left for Fayetteville around 2:00 p.m.
that Saturday. As he was leaving, Plaintiff told him that Karen
was shopping at the mall outlets near Conway, South Carolina. -9- Plaintiff said that Karen was with “a friend” and conveyed the
feeling that Karen and Defendant were staying in Myrtle Beach,
South Carolina. The investigator continued driving to
Fayetteville and arrived back around 4:00 p.m. The assistant
remained at Holden Beach and made “several drive-bys” of the
residence through Saturday evening. The assistant did not
observe Karen or Defendant at the residence, and, around 8:13
p.m., Plaintiff informed the investigator that Karen was at
Carrabba’s Italian Grill in North Myrtle Beach. Plaintiff later
revised the location to Bonefish Grill in North Myrtle Beach and
directed the investigator to look for Karen there. The assistant
was still at Holden Beach, approximately an hour to an hour and
fifteen minutes away, and the investigator was concerned that
Karen and Defendant would be gone by the time the assistant
arrived. Consequently, they “decided just to call off the
surveillance.”
The next day, Sunday, 22 March 2009, Plaintiff called the
investigator and told him that Karen was not at Holden Beach.
Though there is no dispute that Karen and Defendant actually
spent the weekend in Myrtle Beach,3 the investigator was unable
3 Karen admitted this fact to the investigator after she was discovered. -10- to confirm this fact during his investigation. Later that day,
Plaintiff told the investigator to “hold off” on the
investigation until Wednesday, 25 March 2009.
On either Wednesday, 25 March 2009, or Thursday, 26 March
2009, Plaintiff discovered Karen’s relationship with Defendant.4
Plaintiff went home unexpectedly during the workday and saw
Karen pulling out of the driveway. At that point, Karen called
him to say she was going to McDonald’s to get her credit card.
Plaintiff followed her and saw Defendant lying in the backseat
of the car. Plaintiff eventually called the investigator and
directed him to confront Karen and Defendant, who had returned
to Plaintiff’s residence. The investigator discovered Defendant
in Plaintiff’s garage, and both Defendant and Karen admitted to
the affair.
Plaintiff filed his complaint on 23 March 2012. On 7
November 2013, three days after the hearing on Defendant’s
motion for summary judgment, the trial court allowed the motion
“as to [Plaintiff’s action for c]riminal [c]onversation based
upon the [s]tatute of [l]imitations” and denied the motion in
all other respects. Plaintiff filed notice of appeal regarding
4 The record indicates that this event could have occurred on either day. -11- the criminal conversation claim on 4 December 2013, and
Defendant filed notice of appeal “as to Plaintiff’s claim for
alienation of affection[]” on 12 December 2013.
Discussion
On appeal, Plaintiff argues that the trial court erred in
granting Defendant’s motion for summary judgment regarding his
claim of criminal conversation. Defendant argues that the trial
court erred in denying his motion for summary judgment as to
Plaintiff’s claim for alienation of affection. We reverse the
trial court’s order as it relates to Plaintiff’s claim of
criminal conversation and dismiss Defendant’s appeal as
interlocutory.
I. Appellate Jurisdiction
As Plaintiff recognizes in his brief, the parties’ appeals
are taken from an interlocutory order. See Liggett Grp., Inc. v.
Sunas, 113 N.C. App. 19, 23, 437 S.E.2d 674, 677 (1993) (“A
grant of partial summary judgment, because it does not
completely dispose of the case, is an interlocutory order from
which there is ordinarily no right of appeal.”) (citations
omitted). Therefore, neither party has an immediate right of
appeal. Id.
Nonetheless, in two instances a party is permitted to appeal interlocutory orders: -12- first, where there has been a final determination of at least one claim, and the trial court certifies that there is no just reason to delay the appeal [under] Rule 54(b); and second, if delaying the appeal would prejudice a “substantial right.” As the court below made no certification, the first avenue of appeal is closed.
Id. at 23–24, 437 S.E.2d at 677 (citations omitted; emphasis in
original).
A. Plaintiff’s Appeal
Plaintiff argues that the trial court’s order affects a
substantial right and, therefore, warrants immediate appellate
review because his claims are factually interrelated and the
trial court’s order leaves a potential for inconsistent
verdicts. We agree.
This Court has stated that a substantial right is considered affected if there are overlapping factual issues between the claim determined and any claims which have not yet been determined because such overlap creates the potential for inconsistent verdicts resulting from two trials on the same factual issues. In McCutchen, our Supreme Court addressed the merits of an interlocutory appeal when the trial court had granted summary judgment on the plaintiff’s claim for alienation of affection[], but left the plaintiff’s claim for criminal conversation unresolved. [360 N.C. 280, 282, 624 S.E.2d 620, 623 (2006)]. The . . . Court reasoned that because the two causes of action and the elements of damages [were] so connected and intertwined, only one issue of damages should be -13- submitted to the jury. As a result, the Court ultimately determined that in light of this legal interdependence, the same jury should determine damages for both claims and held that the interlocutory order granting summary judgment on [the] plaintiff’s alienation claim [was] subject to appeal.
Carsanaro v. Colvin, 215 N.C. App. 455, 457–58, 716 S.E.2d 40,
44 (certain citations, internal quotation marks, certain
brackets, and certain ellipses omitted), disc. review denied,
365 N.C. 369, 719 S.E.2d 42 (2011).
In this case, as in Carsanaro,
each of [the] plaintiff’s causes of actions is based upon injuries suffered as a result of the same underlying conduct: [the] defendant’s sexual affair with [the] plaintiff’s wife. Since the basis of the claims is the same conduct, the claims necessarily involve overlapping factual issues.
Id. at 458, 716 S.E.2d at 44 (allowing immediate appellate
review of the trial court’s order granting the defendant’s
motion to dismiss the plaintiff’s claim for negligent infliction
of a sexually transmitted disease and dismissing as
interlocutory the defendant’s appeal from the trial court’s
order denying his motion to dismiss the plaintiff’s claims for
criminal conversation, intentional infliction of emotional
distress, and negligent infliction of emotional distress). -14- Accordingly, we hold that Plaintiff’s appeal affects a
substantial right and is properly before this Court.
B. Defendant’s Appeal
As discussed above, Defendant’s appeal is from the same
interlocutory order. Despite this fact, Defendant makes no
argument that his appeal is properly before this Court and,
furthermore, relegates his argument regarding Plaintiff’s claim
for alienation of affection to his appellee’s brief. He has not
filed an appellant’s brief with this Court. Additionally,
Plaintiff has filed a motion with this Court arguing that
Defendant’s appeal should be dismissed as interlocutory.
Defendant has not responded to that motion. We agree with
Plaintiff’s argument and dismiss Defendant’s appeal.
Without addressing the impact of Defendant’s failure to
file an appellant’s brief, we note that an order denying summary
judgment is not a final determination of a claim. Henderson v.
LeBauer, 101 N.C. App. 255, 264, 399 S.E.2d 142, 147, disc.
review denied, 328 N.C. 731, 404 S.E.2d 868 (1991). Even if the
trial court has attempted to certify such an order for appeal,
it is not immediately appealable unless it affects a substantial
right. Id. Defendant has not argued that the trial court’s order
affects a substantial right and, because the order allows the -15- action to proceed, we fail to see how any substantial right will
be lost by a trial on the issues. See id. (reviewing the
plaintiff’s appeal from the trial court’s order granting the
defendant’s motion for summary judgment in part and dismissing
the defendant’s appeal from the trial court’s order denying
summary judgment in part); see also Carsanaro, 215 N.C. App. at
458, 716 S.E.2d at 44. Accordingly, we dismiss Defendant’s
appeal as interlocutory.
II. Standard of Review
“Our standard of review of an appeal from summary judgment
is de novo; such judgment is appropriate only when the record
shows that there is no genuine issue as to any material fact and
that any party is entitled to a judgment as a matter of law.” In
re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008)
(citation and internal quotation marks omitted; italics added).
Review is based only on the pleadings and evidence before the
trial court. Liggett Grp., Inc., 113 N.C. App. at 25, 437 S.E.2d
at 678 (citations omitted). “The burden of establishing a lack
of any triable issue of fact resides with [Defendant] as movant
and[,] thus[,] all evidence must be viewed in the light most
favorable to [Plaintiff].” Id. (citation omitted).
III. Criminal Conversation -16- Plaintiff argues that the trial court erred by granting
summary judgment on his criminal conversation claim pursuant to
the statute of limitations because there is a genuine issue of
material fact regarding when the statute of limitations began to
run. We agree.
An action for “criminal conversation” is a civil suit,
brought by one party to the marriage against a third party, for
adultery. “The elements of [this tort] are the actual marriage
between the spouses and sexual intercourse between [the]
defendant and the plaintiff’s spouse during the coverture. The
cause of action is based upon the fundamental right to exclusive
sexual intercourse between spouses.” Nunn v. Allen, 154 N.C.
App. 523, 535, 574 S.E.2d 35, 43 (2002), disc. review denied,
356 N.C. 675, 577 S.E.2d 630 (2003). The statute of limitations
for criminal conversation is three years. N.C. Gen. Stat. § 1-
52(5) (2013).
In 2009, the legislature enacted section 52-13 of the North
Carolina General Statutes, which provides in pertinent part that
“[a]n action for alienation of affection or criminal
conversation shall not be commenced more than three years from
the last act of the defendant giving rise to the cause of
action.” N.C. Gen. Stat. § 52-13(b) (2013) (emphasis added). -17- Defendant contends that section 52-13 is controlling in this
case because it operates to shorten the applicable statute of
limitations.5 Quoting our opinion in Reunion Land Co. v. Village
of Marvin, 129 N.C. App. 249, 250, 497 S.E.2d 446, 447 (1998)
[hereinafter Reunion], Defendant asserts that the applicable
rule is as follows: “[W]hen the legislature shortens a statute
of limitations, ‘a party with a claim at the time of the
amendment has a reasonable time to file that claim, but such
reasonable time cannot exceed the limitations period allowed
under the new law.’” We disagree.
Reunion is not controlling in this case. The plaintiffs in
Reunion brought suit against the town regarding the validity of
a zoning ordinance. Id. The plaintiffs’ cause of action accrued
in September of 1996, and they brought suit on 7 February 1997,
approximately five months later. Id. At the time the cause of
action accrued, the statute of limitations was nine months. Id.
“Effective 1 October 1996,” however, the statute was amended to
provide for a two-month filing period. Id. On appeal, we
affirmed the trial court’s dismissal of the plaintiffs’ suit
5 Because we conclude that section 52-13 is not applicable in this case, we offer no opinion on whether section 52-13 would work to shorten the statute of limitations in this factual context. -18- pursuant to our opinion in Spaulding v. R.J. Reynolds Tobacco
Co., 93 N.C. App. 770, 771, 379 S.E.2d 49, 50 (1989), affirmed
per curiam, 326 N.C. 44, 387 S.E.2d 168 (1990), because “a party
with a claim at the time of the amendment of [the statute of
limitations for the filing of an action] has a reasonable time
to file that claim, but such reasonable time cannot exceed the
limitations period allowed under the new law.” Reunion, 129 N.C.
App. at 250, 497 S.E.2d at 447.
As Plaintiff rightly notes in his brief, the amendment in
Reunion provided only that it became “effective October 1,
1996.” 1995 N.C. Sess. Law 746, sec. 8. Similarly, the updated
statute of limitations in Spaulding provided only that it would
“become effective” on the relevant date. 1985 N.C. Sess. Law
571, sec. 52. Neither statute described how it should be applied
to ongoing cases. In this case, however, the legislature has
provided that section 52-13 “becomes effective October 1, 2009,
and applies to actions arising from acts occurring on or after
that date.” 2009 N.C. Sess. Law 400, sec. 2 (emphasis added).
The acts giving rise to Plaintiff’s cause of action occurred
prior to 1 October 2009. Therefore, to the extent section 52-13
might otherwise be applicable under Reunion and Spaulding, the
legislature has made clear that it is not. Accordingly, -19- Defendant’s argument is overruled, and we proceed without
relying on section 52-13.
In Misenheimer v. Burris, our Supreme Court clarified that
the three-year statute of limitations for criminal conversation
is tolled by section 1-52(16), which provides that a cause of
action “shall not accrue until bodily harm to the claimant or
physical damage to his property becomes apparent or ought
reasonably to have become apparent to the claimant.” 360 N.C.
620, 622, 637 S.E.2d 173, 175 (2006) (quoting N.C. Gen. Stat. §
1-52(16)).
[I]t is well established that whether a cause of action is barred by the statute of limitations is a mixed question of law and fact. The issue becomes a question of law if the facts are admitted or are not in conflict, at which point summary judgment or other trial judge rulings are appropriate. However, when the evidence is sufficient to support an inference that the limitations period has not expired, the issue should be submitted to the jury.
Lord v. Customized Consulting Specialty, Inc., 182 N.C. App.
635, 643, 643 S.E.2d 28, 33, disc. review denied, 361 N.C. 694,
652 S.E.2d 647 (2007) (citations, internal quotation marks, and
brackets omitted) (holding that the trial court properly
declined to bar the plaintiff’s negligence claims involving
physical damage to the claimant’s property under the statute of -20- limitations because the parties offered conflicting accounts of
the date of discovery of the damage).
Plaintiff filed his complaint on 23 March 2012. Therefore,
if Plaintiff did not know or should not have known about the
affair prior to 23 March 2009, the statute of limitations does
not bar his claim. See N.C. Gen. Stat. § 1-52(5), (16).
Congruently, if Plaintiff knew or should have known about the
affair before that date, then the claim is barred by the statute
of limitations. Id.
Plaintiff asserts that he discovered, and therefore knew
about, the affair on either 25 March 2009 or 26 March 2009, when
the investigator found Defendant in the garage. Nevertheless, he
argues that there is a genuine issue of fact concerning whether
he should have discovered the affair before that point. For
support, Plaintiff points to his own repeated statements that he
trusted his wife and did not believe she would do this to him.
He also notes that, despite hiring a private investigator to
confirm the affair, Plaintiff received no concrete evidence
until 25 or 26 March 2009. When the investigator called
Plaintiff during the beach weekend and informed Plaintiff that
he had been unable to find Karen and Defendant together,
Plaintiff expressed relief that Carol had been wrong. -21- Defendant contends, on the other hand, that Plaintiff
either knew or should have known about the affair because, at
most, “he was willfully blind to the affair between his wife and
. . . Defendant.” For support, Defendant points to: (1) the fact
that the parties had socialized together for approximately five
years; (2) Carol’s statements to Plaintiff regarding the New
Year’s Eve incident, the text messages, and the second phone;
and (3) the fact that Plaintiff hired a private investigator,
indicating that he suspected an affair.
Essentially, the parties ask this Court to choose one
factual narrative over another. “We decline to do so, [however,]
as such weighing of the evidence and credibility of witnesses is
the responsibility of the jury, not an appellate court.” See id.
at 644, 643 S.E.2d at 33. While it strains the credulity of this
Court to accept that Plaintiff did not know his wife was having
an affair with Defendant, the issue of whether Plaintiff knew or
should have known about the affair is one for the jury. See id.
Therefore, we hold that the trial court erred in granting
summary judgment to Defendant. Accordingly, Defendant’s argument
is overruled, and the trial court’s order is reversed as it
relates to Plaintiff’s claim of criminal conversation.
REVERSED in part; DISMISSED in part. -22- Judges STROUD and MCCULLOUGH concur.
Report per Rule 30(e).