Opinion
No. COA03-1630
Filed 3 May 2005
1. Appeal and Error — appealability — summary judgment — substantial right — alienation of affections — criminal conversation
Although plaintiff's appeal from the trial court's grant of summary judgment for defendant as to plaintiff's claim for alienation of affections is an appeal from an interlocutory order, a substantial right is affected where the trial court granted plaintiff's motion for summary judgment on her claim for criminal conversation but reserved the issue of damages for further hearing, because the elements of damages are so closely related between this claim and the claim for criminal conversation that they do not support separate awards for each case.
2. Alienation of Affections; Statutes of Limitation and Repose — preseparation conduct — summary judgment
The trial court did not err by granting defendant's motion for summary judgment as to plaintiff's claim for alienation of affections, because: (1) the statute of limitations under N.C.G.S. § 1-52(5) provides a three-year limit for criminal conversation or for any other injury to the person or rights of another not arising on contract or otherwise enumerated, and absent other specific limitations this statute applies to all causes of action for personal injuries not elsewhere specified by statute including the cause of action for alienation of affections; (2) plaintiff has conceded the acts complained of occurred preseparation more than three years prior to filing her complaint; and (3) an alienation of affections claim must be based on preseparation conduct.
Judge TYSON dissenting.
Appeal by plaintiff from order filed 6 August 2003 by Judge Narley L. Cashwell in Wake County Superior Court. Heard in the Court of Appeals 15 September 2004.
The Mueller Law Firm, P.A., by Colby L. Hall, for plaintiff-appellant. Tharrington Smith, L.L.P., by Lynn P. Burleson and Suzanne R. Ladd, for defendant-appellee.
Patricia McCutchen (plaintiff) appeals an order filed 6 August 2003, granting Deborah T. McCutchen's (defendant) motion for summary judgment as to plaintiff's 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, but 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. § 1-277(a) and 7A-27(d)(1), 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 is 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. § 1-15(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 run. N.C.G.S. § 1-15(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). Absent other specific limitations, subdivision (5) of N.C. Gen. Stat. § 1-52, appears to apply to all causes of action for personal injuries not elsewhere specified by statute, including the cause of action for alienation of affections. See Smith v. Cessna Aircraft Co., 571 F. Supp. 433 (M.D.N.C. 1983). "[If] the plaintiff's claim is barred by the running of the statute of limitations . . . defendant [is] entitled to judgment as a matter of law, and summary judgment . . . [is] appropriate." Brantley v. Dunstan, 10 N.C. App. 706, 706, 179 S.E.2d 878, 878 (1971); see also Yancey v. Watkins, 17 N.C. App. 515, 519, 195 S.E.2d 89, 92 (1973) ("[W]here the [bar] is properly pleaded and all facts with reference thereto are admitted, the question of limitations becomes a matter of law.").
In Pharr v. Beck, 147 N.C. App. 268, 554 S.E.2d 851 (2001), plaintiff-wife was awarded damages based on the alienation of her husband's affections by defendant-mistress. The trial court denied the mistress's motion for directed verdict and judgment notwithstanding the verdict. The mistress appealed.
On appeal, the mistress argued that the merits of the alienation of affections claim should have been determined solely based on the events occurring prior to the date of separation. The wife contended that her claim was properly founded on events not only occurring prior to divorce, but including a period of time after the spouses separated. This Court held that the pre-separation evidence revealed that the mistress engaged in intentional conduct that probably affected the husband's marital relationship with his wife, and this conduct was the effective cause of the husband's loss of affections for his wife. This Court also held that it was inconsistent to permit a spouse to recover damages in an alienation of affections claim against a third party for conduct post-separation while prohibiting consideration of conduct post-separation in an alimony claim. Accordingly, this Court concluded "an alienation of affection[s] claim must be based on pre-separation conduct, and post-separation conduct is admissible only to the extent it corroborates pre-separation activities resulting in the alienation of affection[s]." Pharr, 147 N.C. App. at 273, 554 S.E.2d at 855. This Court ultimately held the trial court correctly denied the mistress's motions for directed verdict and judgment notwithstanding the verdict.
Plaintiff argues that Pharr is not a statute of limitations case and cannot be interpreted so as to stay a cause of action founded upon post-separation activities. Rather, plaintiff relies on Darnell v. Rupplin, 91 N.C. App. 349, 371 S.E.2d 743 (1988), as authority for the proposition that the statute of limitations was tolled as the extramarital conduct constituted an ongoing violation.
In Darnell, defendant-mistress appealed an order in favor of plaintiff-wife in her action for alienation of affections. The husband, who worked with the mistress, developed a romantic relationship with the mistress which resulted in sexual encounters. Several of these sexual encounters occurred in North Carolina but also included sexual encounters occurring out of state. Ultimately, the mistress moved in with the husband at his residence in Maryland.
On appeal, the mistress contended that an issue of fact existed as to which state the claim for alienation of affections accrued. The mistress further argued that the trial court committed prejudicial error by refusing to submit this issue to the jury. The trial court held that the mistress's answer to the complaint contended that her actions occurred primarily out of state. This Court held the question of where the tort occurred, giving rise to the mistress's liability, was an issue of fact material to both the substantive law applicable to the wife's cause of action and the mistress's defense. In addition this Court held the mistress's answer demanded a trial by jury on all issues of fact.
The issue presented in Darnell is distinguishable from the issue presented in the instant case. Specifically, plaintiff has not contended that any of the acts constituting the cause of action occurred out of state. Moreover, plaintiff has conceded the acts complained of occurred pre-separation more than three years prior to filing her complaint. Based on the clear mandate of Pharr — "an alienation of affection[s] claim must be based on pre-separation conduct" — we must conclude that the trial court properly granted summary judgment in favor of defendant as to the alienation of affections claim. See Pharr, 147 N.C. App. 268, 554 S.E.2d 851. Accordingly, this assignment of error is overruled.
Affirmed.
Judge HUDSON concurs.
Judge TYSON dissents in a separate opinion.