Price v. Jones

An unpublished opinion of the North Carolina Court of Appeals does not constitute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.

A That’s correct.

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).