Quackenbush v. Steelman

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. NO. COA13-240 NORTH CAROLINA COURT OF APPEALS Filed: 5 November 2013 ARLENE Q. QUACKENBUSH, Plaintiff v. Wake County No. 12 CVS 5743 ELEANOR J. STEELMAN, Defendant Appeal by Plaintiff from order entered 4 October 2012 by Judge Paul C. Ridgeway in Wake County Superior Court. Heard in the Court of Appeals 14 August 2013. Hopper Law Firm, by Kevin P. Hopper, for Plaintiff. Gailor Hunt Jenkins Davis & Taylor, P.L.L.C., by Jamie H. Davis and Carrie B. Tortora, for Defendant. DILLON, Judge. Arlene against Q. her Quackenbush husband s (Plaintiff) former brought paramour, this Eleanor J. action Steelman (Defendant), asserting claims for alienation of affection and criminal motion conversation. to dismiss The trial Plaintiff s court claims for granted lack Defendant s of personal -2jurisdiction over Defendant. For the following reasons, we affirm. I. Factual Background In her complaint, Plaintiff set forth allegations concerning the relationship between her husband and Defendant, tracing events that transpired across three different states, including North Carolina, as follows: New Jersey Plaintiff and Defendant are citizens and residents of New Jersey. In April 2008, Plaintiff and her husband, Robert T. Quackenbush, attended Defendant s husband s funeral, where they met Defendant for the first time. Defendant invited Mr. Quackenbush, At the time of the funeral, a long time friend of Defendant s late husband, to stop by her home to pick up some of her husband s belongings that might have sentimental value to him. In October 2009, Defendant learned that Mr. Quackenbush was planning to attend Bike Week in Daytona Beach, Florida, and convinced Mr. Quackenbush to meet her there to show [her] around Bike Week. She played upon the emotions of Mr. Quackenbush by telling him that her [late husband] had always -3promised to take her to Bike Week[.] Mr. Quackenbush agreed to show Defendant around Bike Week. Florida Mr. Quackenbush traveled by car to Florida to attend Bike Week, while Defendant traveled by airplane. While in Florida, Defendant pretended to be Mr. Quackenbush s wife and entic[ed] him to have sex with her. Defendant continued to pursue Mr. Quackenbush for the remainder of Bike Week. invited Mr. additional Quackenbush week, but to Mr. stay with her Quackenbush in Defendant also Florida declined; he for an agreed, however, to let Defendant accompany him on his return drive to New Jersey. North Carolina During stopped for the return dinner in trip, Defendant Dunn, North and Mr. Carolina. Quackenbush At dinner, Defendant became adamant about Mr. Quackenbush leaving his wife [(Plaintiff)] and demanded that [he] stop taking [her] phone calls. According to Plaintiff s complaint, this was the first time that Defendant asked Mr. Quackenbush to leave Plaintiff. Defendant and Mr. Quackenbush stayed the night at a Comfort Inn in Dunn, where they engaged in sexual intercourse night and the following morning. both that Defendant again asked Mr. -4Quackenbush to leave Plaintiff; she also told Mr. Quackenbush that she loved him and that she needed him to buy her a computer as soon as they returned to New Jersey so she could begin house hunting. New Jersey When they arrived back in New Jersey, Mr. Quackenbush moved in with Defendant. Mr. Quackenbush also bought Defendant gifts, including a computer. Defendant called Plaintiff and told her to leave Mr. Quackenbush alone because he belonged [to] her now. In addition, Defendant convinced Mr. Quackenbush to file a complaint for divorce from Plaintiff, to put the marital home owned by both the Plaintiff and Mr. Quackenbush up for sale to get seed money to move to Florida, and attempted to get him to sell his business and retire with her in Florida. Defendant s efforts, however, Mr. Quackenbush Despite eventually dismissed his complaint for divorce and has since reconciled with Plaintiff. II. Procedural History On 20 April 2012, Plaintiff filed a complaint in Wake County Superior Court, asserting claims against Defendant for alienation of affection and criminal conversation under North Carolina law. On 5 July 2012, Defendant filed a Rule 12(b)(2) -5motion to dismiss jurisdiction. affidavit motion to from Plaintiff s claims for lack of On 25 September 2012, Plaintiff filed a sworn Mr. Quackenbush dismiss, essentially forth in Plaintiff s complaint. in opposition restating the to Defendant s allegations 4 motion to October dismiss, 2012, the concluding set The matter came on for hearing in Wake County Superior Court on 2 October 2012. entered personal trial court that the granted court s By order Defendant s exercise of personal jurisdiction over Defendant would violate Defendant s due process rights. From this order, Plaintiff appeals. III. Analysis Plaintiff contends that the trial court erred in dismissing her complaint for lack of personal jurisdiction over Defendant. We disagree. A. Standard of Review Where a trial court enters an order dismissing an action for lack of personal jurisdiction, our standard of review is as follows: When reviewing an order deciding a motion to dismiss for lack of personal jurisdiction, we determine whether the findings of fact of the trial court are supported by competent evidence; if so, we must affirm the trial court s decision. Findings of fact are not, however, required in the absence of a request by the parties. When . . . the -6court does not make findings of fact, it will be presumed that the judge, upon proper evidence, found facts sufficient to support his judgment. We must then review the record to determine whether there is competent evidence to support the trial court s presumed findings. Dailey v. Popma, 191 N.C. App. 64, 68, 662 S.E.2d 12, 15-16 (2008) (quotation marks and citations omitted). Here, the trial court did not include any findings of fact in its order, and the parties do not contend that they requested findings of fact. The record reveals that the only evidence presented to the trial court consisted of Plaintiff s complaint and Mr. Quackenbush s affidavit. We must, accordingly, determine whether this evidence supports the presumed findings made by the trial court in reaching its decision to dismiss Plaintiff s claims. See Banc of Am. Sec. LLC v. Evergreen Int l Aviation, Inc., 169 N.C. App. 690, 693, 611 S.E.2d 179, 182 (2005). B. Personal Jurisdiction Whether the courts of this State may exercise personal jurisdiction over a nonresident defendant involves a two-prong analysis: (1) Does a statutory basis for personal jurisdiction exist, and (2) If so, does the exercise of this jurisdiction violate constitutional due process? The assertion of personal -7jurisdiction over a defendant comports with due process if defendant is found to have sufficient minimum contacts with the forum state to confer jurisdiction. Inc., 142 N.C. App. 664, 665-66, Golds v. Cent. Express, 544 S.E.2d 23, 25 (2001) (citations omitted). Here, the trial court dismissed Plaintiff s complaint based on the second concluding with North prong that of Defendant Carolina to Because we grounds. determination with the jurisdictional lacked confer sufficient minimum jurisdiction believe respect analysis to that the on alone, contacts due process the trial court s second prong of the jurisdictional analysis was supported by the evidence presented, we affirm the court s order on this basis and decline to express any opinion with respect to whether the first prong of the test i.e., whether North Carolina s long-arm statute provided for personal jurisdiction over Defendant was satisfied. It is well-established that in order to comport with the requirements of due process, there must exist certain minimum contacts [between the non-resident defendant and the forum state] such that the maintenance of the suit does not offend traditional notions Int l Co. Shoe v. of fair play Washington, and 326 substantial U.S. 310, justice. 316 (1945) -8(quotation marks and citation omitted) (alteration in original). The relationship between the defendant and the forum must be such that he court there. should Id. reasonably (quoting anticipate World Wide being haled Volkswagen into Corp. v. Woodson, 444 U.S. 286, 297 (1980)). The United States Supreme Court has recognized two bases for finding sufficient minimum contacts: specific jurisdiction and general jurisdiction. controversy forum arises state out whereas Specific jurisdiction exists when the of the defendant s [g]eneral contacts jurisdiction may with be the asserted over a defendant even if the cause of action is unrelated to defendant s activities in sufficient continuous the and defendant and the forum state. forum as long systematic as there contacts are between Lab. Corp. of Am. Holdings v. Caccuro, 212 N.C. App. 564, 569, 712 S.E.2d 696, 701, appeal dismissed, review denied, 365 N.C. 367, 719 S.E.2d 623 (2011) (citations and quotation marks omitted). claims arise out of Defendant s contacts specific jurisdiction is at issue here. Elias Indus. (1986). Corp., 318 N.C. 361, Because Plaintiff s 366, with this State, Tom Togs, Inc. v. Ben 348 S.E.2d 782, 786 Our focus should therefore be upon the relationship among the defendant, this State, and the cause of action. Id. -9The following factors are relevant in determining whether minimum contacts exist: (1) the quantity of the contacts, (2) the nature connection and of quality the of cause the of contacts, action to (3) the the source contacts, and (4) the interest of the forum state, and (5) the convenience to the parties. 139, 143, Replacements, Ltd. v. MidweSterling, 133 N.C. App. 515 S.E.2d citations omitted). 46, 49 (1999) (quotation marks and No single factor controls; rather, all factors must be weighed in light of fundamental fairness and the circumstances of the case. Corbin Russwin, Inc. v. Alexander s Hardware, Inc., 147 N.C. App. 722, 725, 556 S.E.2d 592, 595 (2001) (citation omitted). With respect to the first factor, Plaintiff alleges that Defendant s contacts with North Carolina consist of a single visit lasting approximately eighteen hours when Defendant and Mr. Quackenbush driving from stopped Florida to for New the night Jersey. in Dunn Based on as a they were presumed finding by the trial court supported by this allegation, we believe that the quantity of the contacts factor militates against a finding of jurisdiction over Defendant. With respect to the second and third factors, regarding the quality of Defendant s contacts and the source and connection of -10the causes alleges of that action some of to the the contacts, conduct Plaintiff s pertaining to complaint her claims occurred the night that Defendant and Mr. Quackenbush stayed in Dunn. We allegations, which course of believe more significance describes than of that the six events months, eighteen Quackenbush spent in Dunn. the totality that detracts hours that of Plaintiff s occurred from the Defendant over the relative and Mr. See Bell v. Mozley, __ N.C. App. at __, 716 S.E.2d 868, 874 (2011) (holding that the trial court erred in denying the defendant s Rule 12(b)(2) motion to dismiss the plaintiff s conversation alienation claims where a of affection vast majority and of the criminal actions alleged in the plaintiff s complaint occurred in the State of South Carolina and all witness affidavits obtained . . . were from individuals living within 50 miles of the parties in the State of South Carolina ). Moreover, with respect to Plaintiff s alienation of affection claim1, Plaintiff s complaint alleges that Defendant 1 In order to recover for the tort of alienation of affection, the claimant must prove that (1) plaintiff and [his or her spouse] 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. Chappell v. Redding, 67 N.C. App. 397, 399, 313 S.E.2d 239, 241 -11first seduced and engaged Mr. Quackenbush in sexual intercourse during Bike Week in Florida, and, further, that Defendant persuaded Mr. Quackenbush to let her accompany him on the return trip to New Jersey. These allegations support a presumed finding by the trial court that Mr. Quackenbush s affections towards Plaintiff had already been alienated or at least were in the process of begin alienated before Defendant and Mr. Quackenbush arrived in North Carolina. See Chappell, 67 N.C. App. at 399, 313 S.E.2d at 241. We recognize that Defendant s contacts with this State bear a richer quality with respect to Plaintiff s claim for criminal conversation, as recovery for this tort may be predicated upon a mere single paramour. 385, 392 act sexual intercourse between a spouse and Jones v. Skelley, 195 N.C. App. 500, 511, 673 S.E.2d (2009). Defendant and twice North in of The Mr. evidence Quackenbush Carolina. in this engaged However, in even case indicate sexual that intercourse assuming that the quality factor weighs in favor of conferring jurisdiction, this factor alone is not dispositive. App. at 725, 556 S.E.2d at 595. (1984). Corbin Russwin, Inc., 147 N.C. -12Regarding the fourth and fifth factors, concerning the interest of the forum state and the convenience of the parties, Plaintiff, Defendant, and Mr. Quackenbush are all residents of the State of New Jersey, with no connection to North Carolina aside from the approximately eighteen-hour period during which Defendant and Mr. Quackenbush spent the night in Dunn. While we recognize that North Carolina has an interest in providing a forum for actions based on torts that occur in North Carolina, Eluhu v. Rosenhaus, 159 N.C. App. 355, 360, 583 S.E.2d 707, 711 (2003), the evidence here, as discussed supra, reveals that the parties bear only a tenuous connection to North Carolina. id. ( [A]lthough North Carolina does have an interest See in providing a forum for actions based on torts that occur in North Carolina, the evidence presented to the trial court showed that neither plaintiff nor defendant is a resident of North Carolina and that almost all of the contact between defendant and Ms. Eluhu occurred in Tennessee. of affection has been Given that the tort of alienation abolished in both California and Tennessee, but not North Carolina, and that it is a transitory tort, to which courts must apply the substantive law of the state in which the tort occurred, plaintiff s decision to sue defendant in North Carolina smacks of forum shopping. Lastly, -13defending against a suit in North Carolina would clearly be inconvenient for defendant, who resides in California, and plaintiff, as a resident of Tennessee, has no claim on the State of North Carolina to provide a forum for the settlement of his general disputes. ) (citations omitted). Further, there is no indication based on the evidence presented that the convenience of the parties would be served by trying this matter five hundred miles from their respective homes in New Jersey. Upon considering the relevant factors as applied in this case, we believe that the presumed findings of the trial court, as supported by the competent evidence of record, support the trial court s conclusion that Defendant s due process rights would be violated by [our court s] exercise of personal jurisdiction over [her] in this matter[.] Accordingly, we affirm the trial court s order granting Defendant s motion to dismiss. AFFIRMED. Judges BRYANT and STEPHENS concur. Report per Rule 30(e).

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