Willis v. Willis

An unpublished opinion of the North Carolina Court of Appeals does not constitute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

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA14-1090

Filed: 21 July 2015

Moore County, No. 13 CVS 1337

ZONA R. WILLIS, Plaintiff,

v.

MARILYN A. WILLIS, Defendant.

Appeal by defendant from orders entered 19 June 2014 by Judge Beecher R.

Gray in Moore County Superior Court. Heard in the Court of Appeals 8 April 2015.

Wyrick Robbins Yates & Ponton LLP, by Tobias S. Hampson and K. Edward
Greene, for plaintiff-appellee.

Doster, Post, Silverman, Foushee, Post & Patton, by Jonathan Silverman, for
defendant-appellant.

CALABRIA, Judge.

Marilyn A. Willis (“defendant”) appeals from an order denying her motion to

dismiss Zona R. Willis’s (“plaintiff”) complaint alleging causes of action for alienation

of affections, criminal conversation, and intentional infliction of emotional distress,
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Opinion of the Court

as well as an order granting plaintiff’s motion to compel discovery due to lack of

personal jurisdiction. We affirm.

I. Background

Plaintiff married Thomas Willis (“Tom”) on 11 January 1974. On 30 December

2011, Tom informed plaintiff that he was not returning home, and subsequently

requested a divorce. Plaintiff discovered that Tom had been having an affair with

defendant, a resident of Charleston, South Carolina, during the marriage. During

the divorce proceedings, the trial court determined Tom and plaintiff’s date of

separation was 31 December 2011. On 2 January 2012, defendant updated her

Facebook relationship status from “single” to “engaged.” Plaintiff and Tom were

divorced on 7 February 2013. Tom and defendant were married in Laurinburg, North

Carolina on 9 February 2013, two days after plaintiff and Tom were divorced.

On 14 November 2013, plaintiff filed a complaint against defendant, alleging,

inter alia, that prior to 30 December 2011, plaintiff and Tom had a good and loving

marriage until defendant willfully and intentionally seduced, enticed, and alienated

Tom’s affections from plaintiff. As a result of defendant’s actions, plaintiff believed

she was entitled to damages for alienation of affections, criminal conversation, and

intentional infliction of emotional distress. Defendant was subsequently served with

plaintiff’s first set of interrogatories and request for production of documents. On 16

December 2013, defendant filed a motion to dismiss pursuant to Rules 12(b)(2), (3),

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Opinion of the Court

and (4) for lack of personal jurisdiction and failure to be personally served with

process. On 27 February 2014, plaintiff filed a motion to compel discovery, since

defendant refused to respond to plaintiff’s discovery requests due to alleged lack of

jurisdiction and improper service of the discovery requests. Subsequently, plaintiff

filed a motion to amend her complaint to include additional allegations to address the

issue of whether defendant had met the minimum contacts test for North Carolina to

exercise personal jurisdiction. The trial court granted plaintiff’s motion to amend her

complaint.

On 19 June 2014, the trial court found that the summons and complaint were

sent to the sheriff in Charleston, South Carolina, and that defendant was properly

served. The trial court concluded that service of the summons and complaint

complied with Rule 4(j)(1a) of the North Carolina Rules of Civil Procedure. The trial

court also concluded that “[d]efendant’s activities [were] sufficient to permit the

exercise of jurisdiction under North Carolina’s long arm statute (NC Gen. Stat. § 1-

75.4 (3) & (4)), in her claims against Defendant for alienation of affections, criminal

conversation, and intentional infliction of emotional distress[,]” and that defendant’s

activities were “sufficient to establish minimum contacts with North Carolina and

comport with due process.” The trial court entered an order denying defendant’s

motion to dismiss, and also entered an order compelling defendant to answer

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Opinion of the Court

plaintiff’s first set of interrogatories and request for production of documents.

Defendant appeals both orders.

II. Personal Jurisdiction

Defendant first argues that the trial court erred in denying her motion to

dismiss. Specifically, defendant contends that the trial court lacked personal

jurisdiction and that the findings were not supported by competent evidence. Since

defendant challenges jurisdiction, she also contends that the exercise of jurisdiction

violates her due process rights. We disagree.

As an initial matter, although defendant’s appeal is interlocutory, it is properly

before us because “motions to dismiss for lack of personal jurisdiction are statutorily

deemed to be immediately appealable.” Fox v. Gibson, 176 N.C. App. 554, 556-57,

626 S.E.2d 841, 843 (2006); see N.C. Gen. Stat. § 1-277(b) (2013) (“Any interested

party shall have the right of immediate appeal from an adverse ruling as to the

jurisdiction of the court over the person or property of the defendant[.]”).

“[T]he 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; if so, this Court must affirm the order of the trial court.” Cooper v.

Shealy, 140 N.C. App. 729, 732, 537 S.E.2d 854, 856 (2000) (citation omitted).

The determination of whether jurisdiction is statutorily
and constitutionally permissible due to contact with the
forum is a question of fact. To resolve a question of
personal jurisdiction, the court must engage in a two step

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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.

Id. (internal citations omitted).

Pursuant to North Carolina’s long-arm statute, North Carolina courts permit

the exercise of personal jurisdiction, inter alia, “[i]n any action claiming injury to

person or property . . . within or without this State arising out of an act or omission

within this State by the defendant” or in an action claiming injury to person or

property within North Carolina “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 . . .

[s]olicitation or services activities were carried on within this State by or on behalf of

the defendant[.]” N.C. Gen. Stat. § 1-75.4(3), (4)(a) (2013). In North Carolina, the

long-arm statute requires only

that the action ‘claim’ injury to person or property within
this state in order to establish personal jurisdiction. The
statute does not require there to be evidence of proof of
such an injury. Therefore, in order for plaintiff’s claim for
alienation of affections to withstand defendant’s motion to
dismiss, plaintiff must have alleged in her complaint that:
(1) plaintiff and [her husband] were happily married and a
genuine love and affection existed between them; (2) the
love and affection [between them] was alienated and
destroyed; and (3) the wrongful and malicious acts of
defendant produced the alienation of affections.
Furthermore, for plaintiff’s criminal conversation action to
survive, plaintiff must have alleged that there were sexual
relations between defendant and plaintiff’s husband.

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Opinion of the Court

Cooper, 140 N.C. App. at 732-33, 537 S.E.2d at 856-57 (internal citations and

quotation marks omitted).

Just as the plaintiff in Cooper properly alleged injuries, plaintiff in the instant

case alleged in her amended verified complaint that she and Tom had a good and

loving marriage, a genuine love and affection existed between them, and as a result

of defendant’s actions, the genuine love and affection was destroyed. Plaintiff also

alleged that, beginning in October 2011, defendant’s actions of soliciting plaintiff’s

husband’s affections within North Carolina were intentional, wrongful, and

malicious, alienated Tom’s affections, and led to his abandonment of plaintiff. The

verified amended complaint further alleged that by defendant’s acts of sexual

intercourse with Tom, she engaged in criminal conversation in North Carolina.

The long-arm statute authorizes the exercise of personal jurisdiction over a

non-resident defendant in alienation of affections actions when telephonic or e-mail

communications are carried on within North Carolina. See Brown v. Ellis, 363 N.C.

360, 678 S.E.2d 222 (2009); see Fox, 176 N.C. App. 554, 626 S.E.2d 841. In Brown,

the plaintiff, a resident of North Carolina, alleged in his complaint for alienation of

affections that the defendant, a resident of California, “initiated frequent and

inappropriate, and unnecessary telephone and e-mail conversations with [the

plaintiff’s wife] on an almost daily basis.” 363 N.C. at 363, 678 S.E.2d at 224. The

Supreme Court of North Carolina held that, pursuant to N.C. Gen. Stat. § 1-

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Opinion of the Court

75.4(4)(a), the trial court’s exercise of personal jurisdiction over the defendant was

proper. Id. at 364, 678 S.E.2d at 224.

In Fox, the plaintiff filed a complaint for alienation of affections, in which she

alleged that the defendant, a resident of Georgia, had “enticed [the plaintiff’s]

husband from her and acquired an undue influence over him which was the direct

cause of great marital discord between them and their subsequent separation.” 176

N.C. App. at 556, 626 S.E.2d at 842. In support of her allegations, the plaintiff

produced the affidavit of her estranged husband, in which he stated that he and the

defendant “engaged in numerous telephone conversations while she resided in

Georgia and he resided in North Carolina[,]” and that the defendant “sent e-mail

messages to him in North Carolina from the state of Georgia.” Id. at 556, 626 S.E.2d

at 843. The Fox Court found that there was a direct link between the contacts and

the injuries alleged in the complaint. Id. at 559, 626 S.E.2d at 844. Therefore, both

Courts held that telephonic or e-mail communications carried on within North

Carolina by or on behalf of a party, may be sufficient acts to establish long-arm

jurisdiction.

Although defendant concedes that telephonic communications such as those in

Brown and Fox may be sufficient acts to establish long-arm jurisdiction, defendant

contends that these cases do not apply to her. Defendant contends that the trial

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court’s findings of fact numbers nine and ten are not supported by the evidence. In

finding of fact number nine, the court found:

9. The telephone records of Thomas Willis show Defendant
spoke to him at least one hundred forty (140) times
between October 31, 2011 and December 10, 2011. The
records include telephone calls coming from the Defendant
to the Thomas Willis [sic] in North Carolina on the
following dates: November 10, 2011; November 16, 2011 (2
calls); November 17, 2011 (3 calls); November 19, 2011;
November 20, 2011; November 21, 2011 (4 calls); November
22, 2011 (3 calls); November 23, 2011; November 26, 2011;
December 1, 2011; December 2, 2011; December 9, 2011;
and December 10, 2011. All the calls to Thomas Willis were
received by him while he was a resident of Moore County,
North Carolina. The frequency and the timing of the
telephone calls suggest that they were of a personal nature.

Defendant does not dispute that she and Tom talked on the telephone. Rather, she

disputes the trial court’s characterization of the calls as personal in nature.

Additionally, defendant disputes Tom’s location at the time of the calls. In plaintiff’s

affidavit submitted in response to defendant’s motion to dismiss, plaintiff alleged that

on 31 October 2011, defendant and Tom had a dinner date in Charleston, South

Carolina. Subsequently, defendant’s telephone calls to and from Tom on her home

and cell phone numbers, as documented on Tom’s telephone records, and show at

least one hundred forty (140) calls in the forty (40) days between 31 October 2011 and

10 December 2011. Defendant contends that plaintiff’s affidavit is completely

speculative as to the nature of the calls and demonstrates no personal knowledge as

to the context of the telephonic communications. In addition, defendant claims in her

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Opinion of the Court

affidavit supporting her motion to dismiss that any communications between her and

Tom “prior to December 31, 2011 were platonic in nature concerning childhood times

together . . . and updating one another about our lives.” Since defendant denied in

her affidavit that she had any personal contact with Tom in North Carolina prior to

31 December 2011, and made no effort to argue how “platonic” telephone calls would

be mutually exclusive of a personal nature, the trial court found from her description

of the telephone calls that, contrary to her characterization, the calls were personal

in nature, and not business transactions. The trial court’s finding characterizing the

telephone calls as personal in nature is supported by the evidence.

Defendant also alleged in her affidavit that she was not in North Carolina at

the time she “may have participated in any such communication,” and that Tom

“would have been traveling outside of North Carolina, and in particular in South

Carolina, for business” at that time. However, the trial court found that there were

“telephone calls coming from the Defendant to the Thomas Willis [sic] in North

Carolina[.]” Tom’s phone records indicated that there were several incoming calls

from defendant’s phone numbers between 10 November 2011 and 10 December 2011.

Even though the record before the trial court showed that defendant resided in

Charleston, South Carolina, since the phone records indicated that those incoming

calls occurred while Tom was located in North Carolina, the trial court’s finding that

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Opinion of the Court

defendant called Tom while he was located in North Carolina is supported by the

evidence.

Defendant further contends that the trial court erred in addressing Tom’s

North Carolina residency rather than where he was physically located when he

received the telephone calls. However, this contention simply ignores the remainder

of the trial court’s finding of fact number nine. Finding nine focuses expressly on the

fact that Tom was in North Carolina when he received calls from defendant.

Moreover, the trial court found that Tom remained a North Carolina resident during

this entire time, which this Court has recognized is relevant to personal jurisdiction

analysis. Fox, 176 N.C. App. at 559, 626 S.E.2d at 844 (noting as support for the

assertion of personal jurisdiction, the defendant “engaged in numerous telephone

conversations with [spouse] while he resided in North Carolina”).

In finding of fact number ten, defendant contends that the trial court

“inappropriately focused on post date of separation conduct”:

10. The Defendant admitted, in a deposition taken during
the divorce action between Plaintiff and Thomas Willis, to
visiting Thomas Willis in Pinehurst, North Carolina
“many, many times” and “more than likely” having sex
with him in a condominium Thomas Willis had rented in
Pinehurst.

Defendant is mistaken, however, because “a claim for criminal conversation may be

based solely upon post-separation sexual relations.” Nunn v. Allen, 154 N.C. App.

523, 535, 574 S.E.2d 35, 43 (2002) (citation omitted). Plaintiff and Tom were

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Opinion of the Court

separated on 31 December 2011. In defendant’s deposition, she testified that she had

visited Pinehurst “many, many times,” had visited Tom in Pinehurst at a

condominium he was residing in “once or twice,” and had “more than likely” engaged

in sexual intercourse with Tom at the condominium between March and September

of 2012. In addition, Tom testified in his deposition that he and defendant had begun

sexual relations in March of 2012, shortly after he separated from plaintiff. The trial

court’s finding regarding defendant’s conduct is both appropriate and supported by

the evidence.

Based upon the evidence establishing a direct link between defendant’s

contacts with North Carolina and plaintiff’s injuries caused by defendant, the trial

court’s findings of fact support its conclusion that “[d]efendant’s activities are

sufficient to permit the exercise of jurisdiction under North Carolina’s long arm

statute (NC Gen. Stat. § 1-75.4 (3) & (4)), in [plaintiff’s] claims against Defendant[.]”

We next examine whether the exercise of personal jurisdiction under the

authority of N.C. Gen. Stat. § 1-75.4 violates the due process clause of the Fourteenth

Amendment to the Constitution. “Due process requires that the defendant have

‘minimum contacts’ with the state in order to satisfy ‘traditional notions of fair play

and substantial justice.’” Cooper, 140 N.C. App. at 734, 537 S.E.2d at 857 (quoting

International Shoe Co. v. Washington, 326 U.S. 310, 316, 90 L.Ed. 95, 102 (1945)).

When determining whether defendant’s activities are sufficient to establish

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minimum contacts, the court must consider: “(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.” Id., 537 S.E.2d at 857-58 (citation omitted). “[T]he court must weigh the

factors and determine what is fair and reasonable to both parties.” Fox, 176 N.C.

App. at 560, 626 S.E.2d at 845.

In the instant case, the trial court considered the quantity, quality, and nature

of the contacts, and found that there were 140 telephone calls between defendant and

Tom between 31 October 2011 and 10 December 2011 while Tom was married to

plaintiff, that several incoming calls were from defendant to Tom that he received in

North Carolina, and that the frequency and timing of the calls suggested that they

were of a personal nature. Additionally, the trial court considered the source and

connection of the contacts. Plaintiff alleged in her complaint that the destruction of

her marriage was the “direct and proximate result” of defendant’s actions, including

the telephone calls. See Cooper, 140 N.C. App. at 735, 537 S.E.2d at 858 (plaintiff’s

allegation that there was a direct relationship between defendant’s contacts with

plaintiff’s husband and the destruction of plaintiff’s marriage was sufficient to

establish the source and connection of the cause of action to the contacts).

Furthermore, our state Supreme Court has recognized the United States

Supreme Court “has also said that for purposes of asserting ‘specific’ jurisdiction, a

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defendant has ‘fair warning’ that [s]he may be sued in a state for injuries arising from

activities that [s]he ‘purposefully directed’ toward that state’s residents.” Tom Togs,

Inc. v. Ben Elias Industries Corp., 318 N.C. 361, 366, 348 S.E.2d 782, 786 (1986)

(citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 85 L.Ed. 2d 528, 540-41

(1985)). Here, plaintiff’s verified amended complaint and affidavit, as well as

defendant’s affidavit, establish that defendant purposefully directed her activities

toward Tom, a North Carolina resident, and a number of these activities involved

telephone communication and occurrences of sexual intercourse with Tom while he

was in the State of North Carolina.

With regard to the interests of the forum state, the trial court concluded “North

Carolina has a strong interest in protecting its citizens from local injury caused by

the tortious conduct of foreign citizens[,]” and that plaintiff could not bring the claims

for alienation of affections and criminal conversation in defendant’s state of residency

because South Carolina had abolished those causes of action.1

The final factor pertains to the convenience of the parties. The trial court

specifically found that, considering the convenience to the parties, most of the

witnesses having personal knowledge of and evidence regarding the impact of

defendant’s relationship with Tom on plaintiff’s marriage would “more than likely be

located in North Carolina.” Additionally, defendant resides in a neighboring state,

1 See S.C. Code Ann. § 15-3-150 (2013) (abolishing the tort of criminal conversation); see Russo
v. Sutton, 310 S.C. 200, 422 S.E.2d 750 (1992) (abolishing the tort of alienation of affections).

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causing a minimal travel burden on the defendant to defend the claims in North

Carolina.

The trial court considered and weighed all five factors and determined that it

was fair and reasonable to both parties that defendant’s activities were sufficient to

establish minimum contacts with North Carolina “in order to satisfy ‘traditional

notions of fair play and substantial justice.’” Cooper, 140 N.C. App. at 734, 537 S.E.2d

at 857 (citation omitted). Therefore, the trial court did not err in denying defendant’s

motion to dismiss for lack of personal jurisdiction, since the trial court properly

determined that the exercise of personal jurisdiction did not violate defendant’s due

process rights.

III. Order to Compel Discovery

Defendant also argues that the trial court erred in entering an order

compelling her to respond to plaintiff’s first set of interrogatories and request for

production of documents. Specifically, defendant contends (1) that the trial court

lacked personal jurisdiction and (2) that plaintiff’s discovery requests are

“unreasonably annoying, oppressive and cause[] undue burden or expense for the

defendant” in that the requests cover “virtually every aspect of the Defendant’s life

for a number of years and her objection to the discovery should have been sustained

and a protective order granted.”

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Since the trial court properly determined that defendant’s activities were

sufficient to permit the exercise of personal jurisdiction over defendant pursuant to

the long-arm statute and due process requirements, defendant’s argument regarding

jurisdiction fails. Additionally, defendant fails to cite any authority to support the

remainder of her argument. Therefore, the remainder of defendant’s argument is

deemed abandoned. See N.C.R. App. P. 28(b)(6) (“Issues not presented in a party’s

brief, or in support of which no reason or argument is stated, will be taken as

abandoned.”).

IV. Conclusion

There was competent evidence in the record to support the trial court’s findings

of fact. The trial court’s findings of fact support its conclusion that “[d]efendant’s

activities are sufficient to permit the exercise of jurisdiction under North Carolina’s

long arm statute (NC Gen. Stat. § 1-75.4 (3) & (4)), in [plaintiff’s] claims against

Defendant for alienation of affections, criminal conversation, and intentional

infliction of emotional distress.” Furthermore, the exercise of personal jurisdiction

does not violate defendant’s due process rights. Therefore, the trial court did not err

in denying defendant’s motion to dismiss and ordering defendant to respond to

plaintiff’s first set of interrogatories and request for production of documents. We

affirm the orders of the trial court.

AFFIRMED.

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Judges STROUD and TYSON concur.

Report per Rule 30(e).

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