IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-406
Filed: 1 November 2016
Buncombe County, No. 15 CVS 2404
SUSAN HEDDEN, Plaintiff,
v.
ANN ISBELL, Defendant.
Appeal by defendant from order entered 17 December 2015 by Judge Alan Z.
Thornburg in Buncombe County Superior Court. Heard in the Court of Appeals 21
September 2016.
Steven Kropelnicki, PC, by Steven Kropelnicki, for plaintiff-appellee.
Morrow, Porter, Vermitsky, Fowler & Taylor PLLC, by John C. Vermitsky, for
defendant-appellant.
ENOCHS, Judge.
Ann Isbell (“Defendant”) appeals from the trial court’s order denying her
motion to dismiss for lack of personal jurisdiction pursuant to Rule 12(b)(2) of the
North Carolina Rules of Civil Procedure and for failure to state a claim upon which
relief can be granted under Rule 12(b)(6). After careful review, we affirm the trial
court’s order.
Factual Background
Plaintiff married Michael Hedden (“Hedden”) on 5 November 1977. Both
Plaintiff and Hedden reside in Orange County, Florida. Defendant is a resident of
Virginia.
HEDDEN V. ISBELL
Opinion of the Court
In the Summer of 2014, Defendant and Hedden engaged in an extramarital
affair in Buncombe County, North Carolina. Among the various acts and conduct
alleged to have occurred, was the assertion that “Plaintiff’s husband would drive to
North Carolina to meet the Defendant for their sexual relations.”
Defendant was aware that Hedden was married to Plaintiff, however “actively
participated in, initiated and encouraged conduct which resulted in the alienation of
the genuine love and affection existing between Plaintiff and Plaintiff’s husband prior
to the conduct of the Defendant.” On 3 February 2015, Plaintiff separated from
Hedden as a result of his and Defendant’s adulterous relations.
On 2 June 2015, Plaintiff filed a verified complaint in Buncombe County
Superior Court asserting claims for alienation of affection and criminal conversation
against Defendant. On 15 June 2015, Defendant filed a motion to dismiss pursuant
to Rules 12(b)(2) and (6). On 28 August 2015, Plaintiff was deposed.
A hearing was held on Defendant’s motion to dismiss before the Honorable
Alan Z. Thornburg in Buncombe County Superior Court on 8 December 2015. At the
hearing, for the first time, Defendant’s trial counsel stated that she would
additionally be moving to dismiss Plaintiff’s complaint pursuant to Rule 12(b)(1) of
the North Carolina Rules of Civil Procedure.
On 17 December 2015, the trial court entered an order finding that
“[Defendant] was served with process personally at on [sic] 3 June 2015 by a
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HEDDEN V. ISBELL
Opinion of the Court
Buncombe County sheriff’s deputy at 1691 Pisgah Highway, Buncombe County, NC.”
The trial court then concluded as a matter of law that “Defendant was served with
process as provided by NCRCP Rule 4(j)(1),a [sic]” and that “[t]he court has grounds
for jurisdiction under G.S. 1-75.4.” The court then ruled that “defendant’s motion to
dismiss for lack of personal jurisdiction is hereby denied.” Defendant filed a timely
notice of appeal of the trial court’s order on 28 December 2015.
Analysis
On appeal, Defendant argues that the trial court erred in denying her motion
to dismiss pursuant to Rules (12)(b)(1) and (2).1 Specifically, she contends that the
trial court lacked subject matter jurisdiction over Plaintiff’s claims because neither
of the parties were North Carolina residents, and also lacked personal jurisdiction
over Defendant because she did not have sufficient minimum contacts with North
Carolina.
I. Appellate Jurisdiction
Initially, we note that it is undisputed that the present appeal is interlocutory.
“Generally, there is no right of immediate appeal from an interlocutory order.” Blue
v. Mountaire Farms, Inc., ___ N.C. App. ___, ___, 786 S.E.2d 393, 397 (2016).
1 Defendant also moved to dismiss Plaintiff’s complaint pursuant to Rule 12(b)(6) for failure to
state a claim upon which relief can be granted. However, she does not contend that the trial court
erred in failing to dismiss Plaintiff’s claims on this ground on appeal. Consequently, any arguments
regarding the trial court’s ruling on Defendant’s Rule 12(b)(6) motion are 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.”).
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HEDDEN V. ISBELL
Opinion of the Court
Where a party challenges a trial court’s order as to personal jurisdiction under
Rule 12(b)(2), however, “[a]ny 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 or such party may preserve his exception for determination
upon any subsequent appeal in the cause.” N.C. Gen. Stat. § 1-277(b) (2015). “On
the other hand, the denial of a motion to dismiss pursuant to Rule 12(b)(1) for lack of
subject matter jurisdiction is not immediately appealable.” Data Gen. Corp. v. Cnty.
of Durham, 143 N.C. App. 97, 100, 545 S.E.2d 243, 246 (2001).
“The distinction is important because the denial of a
motion to dismiss for lack of subject matter jurisdiction
pursuant to Rule 12(b)(1) is not immediately appealable,
but the denial of a motion challenging the jurisdiction of
the court over the person of the defendant pursuant to Rule
12(b)(2) is immediately appealable.”
Green v. Kearney, 203 N.C. App. 260, 264-65, 690 S.E.2d 755, 760 (2010) (internal
brackets and ellipses omitted) (quoting Zimmer v. N.C. Dep’t of Transp., 87 N.C. App.
132, 133-34, 360 S.E.2d 115, 116 (1987)).
Therefore, to the extent Defendant argues that the trial court erred in denying
her motion to dismiss under Rule 12(b)(1), that portion of her appeal is dismissed as
interlocutory. We therefore only need to address the merits of Defendant’s argument
that the trial court lacked personal jurisdiction over her pursuant to Rule 12(b)(2).
See Hale v. Hale, 73 N.C. App. 639, 640-41, 327 S.E.2d 252, 253 (1985) (“[N.C. Gen.
Stat. § 1-277(b)] does not apply to orders denying motions made pursuant to . . . Rule
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HEDDEN V. ISBELL
Opinion of the Court
12(b)(1) seeking dismissal for lack of subject matter jurisdiction. Therefore, we need
only decide whether our courts can properly assert personal jurisdiction over
defendant.” (internal citation omitted)).
II. Personal Jurisdiction
Defendant asserts that the trial court erred in denying her motion to dismiss
pursuant to Rule 12(b)(2). Specifically, she contends that she did not have sufficient
minimum contacts with North Carolina for the trial court to exercise personal
jurisdiction over her, thereby violating her due process rights under the Fourteenth
Amendment of the United States Constitution. We disagree.
“When this Court reviews a decision as to personal jurisdiction, it considers
only ‘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.’ ”
Banc of Am. Secs. LLC v. Evergreen Int’l Aviation, Inc., 169 N.C. App. 690, 694, 611
S.E.2d 179, 183 (2005) (quoting Replacements, Ltd. v. MidweSterling, 133 N.C. App.
139, 140-41, 515 S.E.2d 46, 48 (1999)).
“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
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.
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HEDDEN V. ISBELL
Opinion of the Court
Cooper v. Shealy, 140 N.C. App. 729, 732, 537 S.E.2d 854, 856 (2000) (quoting
Hiwassee Stables, Inc. v. Cunningham, 135 N.C. App. 24, 27, 519 S.E.2d 317, 320
(1999)).
In the present case, Defendant was personally served with Plaintiff’s complaint
while she was physically present in the State of North Carolina in conformity with
Rule 4(j)(1)(a) of the North Carolina Rules of Civil Procedure, which provides, in
pertinent part, as follows:
(j) Process -- Manner of service to exercise
personal jurisdiction. -- In any action commenced in a
court of this State having jurisdiction of the subject matter
and grounds for personal jurisdiction as provided in G.S. 1-
75.4, the manner of service of process within or without the
State shall be as follows:
(1) Natural Person. -- Except as provided in
subdivision (2) below, upon a natural person
by one of the following:
a. By delivering a copy of the summons
and of the complaint to the natural
person . . . .
This manner of service of process satisfies both requirements for establishing
personal jurisdiction over Defendant. It is well established that
N.C.G.S. § 1-75.4(1)(a) allows the courts of this State
to exercise in personam jurisdiction over a person served
pursuant to Rule 4(j) or Rule 4(j1) of the North Carolina
Rules of Civil Procedure “[i]n any action, whether the claim
arises within or without this State, in which a claim is
asserted against a party who when service of process is
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HEDDEN V. ISBELL
Opinion of the Court
made upon such party . . . [i]s a natural person present
within this State . . . .”
Lockert v. Breedlove, 321 N.C. 66, 68, 361 S.E.2d 581, 583 (1987) (quoting N.C. Gen.
Stat. § 1-75.4(1)(a) (1983)).
In Lockert, the defendant moved to dismiss the plaintiff’s claims on the ground
that the trial court lacked personal jurisdiction over him because there were
insufficient minimum contacts between him and North Carolina. Id. at 67, 361
S.E.2d at 582. The trial court denied his motion and this Court affirmed the trial
court’s order. Id.
On appeal to our Supreme Court, the Court stated the following:
This Court has consistently applied the minimum
contacts analysis articulated in International Shoe [Co. v.
Washington, 326 U.S. 310, 90 L. Ed. 95 (1945)] to cases in
which nonresident defendants were served with process
outside the forum state. We conclude that such minimum
contacts analysis is not necessary, however, when the
defendant is personally served while present within the
forum state.
Id. at 68, 361 S.E.2d at 583 (emphasis added) (internal citations omitted). Indeed,
the Supreme Court went on to emphasize that
[t]he defendant would have us hold that the
presence of a person in the forum state is not sufficient to
confer jurisdiction upon its courts. We are aware that some
courts have made sweeping pronouncements to the effect
that minimum contacts analysis is required in all cases in
which the defendant is a nonresident of the forum state.
We conclude, however, that such cases are contrary to the
Supreme Court’s holdings in International Shoe and its
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HEDDEN V. ISBELL
Opinion of the Court
progeny. We hold that the minimum contacts test is
inapplicable to cases in which the defendant is personally
served within the forum state.
Id. at 68-69, 361 S.E.2d at 583 (internal citations omitted). The Supreme Court
concluded that “[f]or the foregoing reasons, we hold that the rule continues to be that
personal service on a nonresident party, at a time when that party is present in the
forum state, suffices in and of itself to confer personal jurisdiction over that party.”
Id. at 72, 361 S.E.2d at 585 (emphasis added).
We find that Lockert is controlling and dispositive as to the present appeal.
Here, the trial court found that Defendant was personally served while physically
present in the State of North Carolina. Indeed, this fact is undisputed by Defendant.
Consequently, when the sheriff’s deputy personally served her, the trial court
acquired in personam jurisdiction over Defendant and the need for a minimum
contacts analysis was rendered unnecessary. As a result, we affirm the trial court’s
order denying Defendant’s motion to dismiss.2
Conclusion
For the reasons stated above, the trial court’s order is affirmed.
2 We also note that Defendant makes a policy argument urging us to hold that service of
process upon a nonresident defendant who is physically present in the State of North Carolina can no
longer be deemed sufficient to confer personal jurisdiction upon trial courts and alternatively invites
us moving forward to always require a minimum contacts analysis be performed in determining
whether in personam jurisdiction exists. We decline Defendant’s invitation to do so and, in any event,
are bound by Lockert’s holding in direct opposition to Defendant’s position maintaining that “[t]he
language of International Shoe did not sound a death knell for the transient rule of jurisdiction; rather,
it set out an alternative means of establishing personal jurisdiction when the defendant is not present
within the territory of the forum.” Id. at 70, 361 S.E.2d at 584 (internal quotation marks omitted).
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HEDDEN V. ISBELL
Opinion of the Court
AFFIRMED.
Judges ELMORE and ZACHARY concur.
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