Tyll v. Willets

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NO. COA13-105 NORTH CAROLINA COURT OF APPEALS Filed: 20 August 2013 DAVID A. TYLL, Plaintiff, v. Orange County No. 12 CVD 877 MICHELLE WILLETS, Defendant. Appeal by defendant from order entered 11 July Judge Joe Buckner in District Court, Orange County. 2012 by Heard in the Court of Appeals 22 May 2013. Michelle Willets, pro se defendant-appellant. No appellee brief filed. STROUD, Judge. Defendant appeals order requiring she have no contact with plaintiff. For the following reasons, we reverse. I. HAPPY FAMILIES ARE ALL Background ALIKE; every unhappy family is unhappy in its own way. Leo Tolstoy, Anna Karenina 3 (Melanie Hill & Kathryn Knight eds., Constance Garnett trans., 2005) (1875). The parties to this case are members of an unhappy family. Although the reasons for their unique unhappiness are -2not clear from the record before us, this case is one of the results. Plaintiff appears to be defendant s brother; from the record, they share the same mother. Without going into the sordid details, the record shows that this family is embroiled in a long-standing dispute about various personal issues. They have been involved in at least one other lawsuit involving a nocontact order related to these matters, wherein plaintiff obtained an order against defendant s partner, 1 Mr. Joey Berry. On or requesting sexual about a 8 June no-contact conduct 2012, order ( no-contact plaintiff for filed stalking order ) or a complaint nonconsensual against defendant. Plaintiff alleged that [o]n May 23, 2012, the Honorable Judge Buckner ordered Joey Berry not to have contact with any members of my family, and to cease stalking and harassing us (case # 12 CV 000755) based on the numerous threatening emails he sent to me, my wife, my mother and my employer. As expected, his partner, Michelle Willets, is continuing the harassment through libel emails to my employer and mother. Plaintiff then provided details and exhibits regarding defendant s harassment[,] including defendant s emails to his 1 The complaint refers to Mr. Berry as defendant s partner[,] so we shall as well, but from the record it appears he is defendant s husband and thus plaintiff s brother-in-law. -3employer. Defendant answered plaintiff s allegations and denying others. complaint, admitting some On 11 July 2012, the trial court entered a no-contact order against defendant finding that defendant failed to . . . appear at this hearing and the allegations in the complaint are sufficient to justify a nocontact order for stalking or nonconsensual sexual conduct. Defendant appeals. II. No-Contact Order Defendant s arguments to support her claim that the trial court erred are confusing plaintiff s complaint. and illogical, but then, so is We recognize that defendant has appealed pro se, but the rules of this Court apply equally to pro se litigants. See Bledsoe v. County of Wilkes, 135 N.C. App. 124, 125, 519 S.E.2d 316, 317 (1999) ( Furthermore, these rules[, the Rules of Appellate Procedure,] apply to everyone -- whether acting pro se or being represented by all of the five largest law firms in the state. ). We will consider defendant s arguments to the extent we are able to discern them, as some do have merit. A. Jurisdiction -4Defendant s brief generally challenges the trial court s jurisdiction. Subject matter jurisdiction refers to the power of the court to deal with the kind of action in question. Cunningham v. Selman, 201 N.C. App. 270, 281, 689 S.E.2d 517, 524 (2009) (citation and quotation marks omitted). In this case, North Carolina General Statute § 50C-7 grants the trial court authority to issue a no-contact order, so the trial court had subject matter jurisdiction. See N.C. Gen. Stat. § 50C-7 (2011) (stating that a trial court may issue a permanent civil no-contact order). As to personal jurisdiction, defendant answered plaintiff s complaint without raising this issue, thus the trial court also had personal jurisdiction over defendant. See N.C. Gen. Stat. § 1A-1, Rule 12(h)(1) (2011) ( A defense of lack of jurisdiction over the person . . . is waived . . . if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof[.] ). As the trial court had subject matter and personal jurisdiction to enter the no-contact order, we next consider the order itself, as best we can, based upon defendant s brief. B. North Carolina General Statute § 50C-2 Defendant contests various portions of the trial court s no-contact order. Essentially, defendant contends that the -5trial court erred in finding that the allegations in the complaint are sufficient to justify a no-contact order[.] [W]hen the trial court sits without a jury, the standard of review on appeal is whether there was competent evidence to support the trial court s findings of fact and whether its conclusions of law were proper in light of such facts. While findings of fact by the trial court in a non-jury case are conclusive on appeal if there is evidence to support those findings, conclusions of law are reviewable de novo. Romulus v. Romulus, ___ N.C. App. ___, ___, 715 S.E.2d 308, 311 (2011) (citations and quotation marks omitted). North Carolina General Statute § 50C-2(a)(1) provides that An action is commenced under this Chapter by filing a verified complaint for a civil no-contact order in district court or by filing a motion in any existing civil action, by any of the following: (1) A person who is a unlawful conduct that this State. victim occurs of in N.C. Gen. Stat. § 50C-2(a)(1) (2011). Therefore, in order for a no-contact order to be issued, there must be (1) a victim and (2) unlawful conduct[.] Id. Both victim and unlawful conduct are defined within North Carolina General Statute Chapter 50C, although not all of the terms which are necessary for the analysis of this claim are so defined. Id.; see N.C. Gen. Stat. § 50C-1(7)-(8) (2011). -61. Victim A [v]ictim is [a] person against whom an act of unlawful conduct has been committed by another person not involved in a personal relationship with the person as defined in N.C. Gen. Stat. § 50B-1(b). N.C. Gen. Stat. § 50C-1(8) (2011). Carolina Statute General § 50B-1(b) defines North personal relationship as a relationship wherein the parties involved: (1) (2) (3) (4) (5) (6) Are current or former spouses; Are persons of opposite sex who live together or have lived together; Are related as parents and children . . . or as grandparents and grandchildren . . . [;] Have a child in common; Are current or former household members; [or] Are persons of the opposite sex who are in a dating relationship or have been in a dating relationship. N.C. Gen. Stat. § 50B-1(b) (2011). Thus, North Carolina General Statute § 50C-1 incorporates the definitions of personal relationship from North Carolina General Statute Chapter 50B and excludes them from the category of relationships upon which a Chapter 50C no-contact order can be premised. See N.C. Gen. Stat. § 50C-1(8). In doing so, Chapter 50C provides a method of obtaining a no-contact order against another person when the relationship is not romantic, -7sexual, or familial. See N.C. Gen. Stat. §§ 50B-1(b), 50C-1(8). But the sibling relationship, standing alone, is not included under the definitions in North Carolina General Statute § 50B1(b). See N.C. Gen. Stat. § 50B-1. Although it appears clear from the record that plaintiff and defendant disclose that household are brother they have members[.] and ever sister, lived N.C. Gen. the record together Stat. § or does not have been 50B-1(b)(2), (6). Defendant does challenge the plaintiff s entitlement to a nocontact order in her answer by her allegation that she and plaintiff were former members of the same household[,] but defendant failed to either sign or verify her answer. See generally Schoolfield v. Collins, 281 N.C. 604, 612, 189 S.E.2d 208, 213 (1972) ( There is nothing in the rules which precludes the judge from considering a verified answer as an affidavit in the cause. (citation, quotation marks and brackets omitted)). We cannot assume that plaintiff and defendant have actually ever lived together in the absence of any evidence. We realize that plaintiff and defendant, at some point, most likely did live in the same biological brothers and sisters do. household, but not all Thus, nothing in the record before us -- a record which is certainly lacking in many regards -8-- appears to support defendant s argument that plaintiff is not entitled to victim[.] 2(a)(1). a no-contact order because he cannot be a See N.C. Gen. Stat. §§ 50B-1(b), 50C-1(8), 50C- We therefore cannot find that the trial court erred by finding that defendant is a person who may be a victim[.] See N.C. Gen. Stat. §§ 50C-1(8), 50C-2(a)(1). 2. Unlawful Conduct As noted above, there is a second requirement for issuance of a no-contact conduct[.] incorporates See, e.g., (2011). N.C. many N.C. North [u]nlawful order: the Gen. other Gen. Stat. terms Stat. Carolina conduct defendant as § commit 50C-2(a)(1). which §§ must are General [t]he This defined 14-277.3A(b)(2), Statute § unlawful by statute. 50C-1(6)-(7) 50C-1(7) commission of defines . [n]onconsensual sexual conduct . . . [or] [s]talking. Gen. Stat. § 50C-1(7). As plaintiff does term not . . N.C. allege nonconsensual sexual contact, we must decide whether defendant stalked plaintiff. See id. [S]talking is defined as [o]n more than one occasion, following or otherwise harassing, as defined in G.S. 14277.3A(b)(2), another person without legal purpose with the intent to do any of the following: -9a. Place the person in reasonable fear either for the person s safety or the safety of the person s immediate family or close personal associates. Cause that person to suffer substantial emotional distress by placing that person in fear of death, bodily injury, or continued harassment and that in fact causes that person substantial emotional distress. b. N.C. Gen. Stat. allegations § that 50C-1(6) defendant plaintiff s safety (2011). has There are follow[ed] no or specific endangered or that of plaintiff s immediate family or close personal associates[,] so plaintiff s claim is based entirely upon harass[ment] distress placing plaintiff in and fear substantial of . . . emotional continued harassment[.] 2 2 North Carolina General Statute § 14 277.3A(b)(2) defines [h]arasses or harassment as [k]nowing conduct . . . directed at a specific person that torments, terrorizes, or terrifies that person and that serves no legitimate purpose. N.C. Gen. Stat. § 14 277.3A(b)(2). This Court has previously noted that [s]everal of these words are of common usage and their plain meaning should be given. Torment is defined as to annoy, pester, or harass. Terrorize is defined as to fill or overpower with terror; terrify. State v. Watson, 169 N.C. App. 331, 337, 610 S.E.2d 472, 477 (2005) (citations omitted). Unfortunately, these definitions are recursive, as harass is statutorily defined as torments, terrorizes, or terrifies while the definition of [t]orment is harass and terrorize is defined as to terrify. N.C. Gen. Stat. § 14-277.3A(b)(2); Watson, 169 N.C. App. at 377, 610 S.E.2d at 477. We will not seek to untangle this definitional Gordian Knot. -10Even if we assume arguendo that defendant did at least harass plaintiff in the sense that her communications were annoying or pestering to plaintiff, see Watson, 169 N.C. App. 331, 337, 610 S.E.2d 472, 477 (2005), plaintiff must also prove that defendant either (1) intended to place plaintiff in reasonable fear for his or his family s safety or (2) intended to and in fact caused plaintiff to suffer substantial emotional distress[.] N.C. Gen. Stat. § 50C-1(6)(b). Neither North Carolina General Statutes Chapter 50B or 50C define substantial emotional distress[;] however, North Carolina General Statute § 14-277.3A, entitled [s]talking defines [s]ubstantial emotional distress as significant mental suffering or distress that may, but does not necessarily, require medical or other professional treatment or counseling. N.C. Gen. Stat. § 14- 277.3A(b)(4). Again, the record leaves us with just the allegations of plaintiff s complaint. 1. Plaintiff s specific allegations are: May 23rd, 9:19am, during the previously mentioned hearing [, referring to the proceeding against Joey Berry,] Michelle Willets sent an email to my employer stating, I am not sure why David is encouraging all the potential negative, as outlined in that email [May 7th, by Joey Berry] on himself and the school ¦ (see attached emails dated May 23rd and May 7th) -112. 3. 4. 5. 6. May 25th, Michelle Willets stated in an email to my mother that, This restraining order didn t change Joey s nature at all. It just means that he can t warn David and Jenny about any possible problems. (see attached email dated May 25th) May 29th, our lawyer, Ann Marie Vosburg, sent Michelle Willets a letter on our behalf stating our desire for no contact with her. It stated, Any contact from you to them or to any individuals regarding them, and especially to any employers of either of them will be perceived as harassment and they will be forced to seek legal action against you. (see attached letter dated May 29th) June 7th, Michelle Willets sent a lengthy and defamatory email (see attached, dated June 7th) to my employer, as previously threatened by Joey Berry in the attached email dated May 7th. She carries out Joey Berry s previous threat to share deeply personal information that may even call into question David s fitness to be around children (much less supervise them). In the June 7th email, Michelle Willets references, struggling on whether to contact Social Services based on this concern and others. While she has no grounds for such an intervention, we see this statement as an intended threat to our family, and seek relief from her continued harassment. I am concerned that Michelle Willets and Joey Berry will continue to attempt to torment and harass us through any means possible, given statements by them such as, This (contacting my employer) is the tip of the iceberg of what we are willing to do. (May 7th -127. phone conversation with David Tyll) Since Michelle Willets has disregarded our request for no contact, and since she clearly is partnered with Joey Berry in the effort to harass and defame me, I beg the court to put this order in place for the mental, physical, and emotional well being of my entire family. Plaintiff included two emails from defendant as attachments. Even if defendant s actions were annoying to plaintiff and thus constituted harassment, plaintiff has not alleged any facts sufficient to sustain a finding that defendant caused plaintiff to suffer substantial emotional distress[.] N.C. Gen. Stat. § 50C-1(6)(b); see N.C. Gen. Stat. § 14-277.3A(b)(2), (4); Watson, 169 N.C. App. at 337, 610 S.E.2d at 477. The allegations of plaintiff s complaint actually come closer to a claim for defamation than a claim for stalking via harassment, see N.C. Gen. Stat. §§ 14 277.3A(b)(2), 50C-1(6), but even if we assume that defendant has defamed plaintiff, Chapter 50C provides no remedy for defamation.3 The threats of which plaintiff complains are clearly not threats of physical harm but instead are threats to make statements about plaintiff to 3 various others, including plaintiff s employer and the We do not suggest that defamatory comments could never be a part of a pattern of harassment, but in this case, plaintiff s complaint does not support such a claim. -13Department alleged of by Social plaintiff Services. are Defendant s comparable to those statements as in v. Ramsey Harman, where this Court noted that the statute does not allow parties to implicate and interject our courts into juvenile hurls of gossip and innuendo between feuding parties where no evidence of any statutory ground is shown to justify entry of a no-contact order. (2008). upon Accordingly, plaintiff did not present any evidence which defendant 191 N.C. App. 146, 151, 661 S.E.2d 924, 927 the trial stalked court plaintiff, could and properly therefore conclude the trial that court erred in concluding that plaintiff was entitled to issuance of a no-contact order. See N.C. Gen. Stat. §§ 50C-1(6)-(7), 50C- 2(a)(1). III. Conclusion For the foregoing reasons, we reverse. REVERSED. Judges HUNTER, Robert C. and ERVIN concur.

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