Hull v. Brown

IN THE COURT OF APPEALS OF NORTH CAROLINA

2021-NCCOA-525

No. COA20-748

Filed 5 October 2021

Iredell County, No. 19 CVS 2687

EHREN HULL, Plaintiff,

v.

TONY MCLEAN BROWN, Defendant.

Appeal by defendant from order entered 17 September 2020 by Judge Julia

Lynn Gullett in Iredell County Superior Court. Heard in the Court of Appeals 25

August 2021.

Homesley and Wingo Law Group, PLLC, by Andrew J. Wingo and Kyle L.

Putnam, for plaintiff-appellee.

James, McElroy & Diehl, P.A., by Preston O. Odom, III, G. Russell Kornegay,

III, and Caroline T. Mitchell, for defendant-appellant.

TYSON, Judge.

I. Background

¶1 Ehren Hull, (“Plaintiff”) commenced this action against Tony Brown

(“Defendant”) asserting claims for alienation of affection and criminal conversation

(together, “covenant claims”) regarding Plaintiff’s wife. Plaintiff also brought claims

for negligent infliction of emotional distress (“NIED”), and intentional infliction of

emotional distress (“IIED”) (together, “emotional distress claims”).

HULL V. BROWN

2021-NCCOA-525

Opinion of the Court

¶2 Defendant timely filed his Motion to Dismiss and Request for Transfer to the

Superior Court of Wake County for Determination by a Three-Judge Panel (“Motion”)

pursuant to N.C. R. Civ. P. 42(b)(4). In the Motion, Defendant sought: (1) dismissal

of Plaintiff’s covenant claims on the basis the statute purportedly codifying them,

N.C. Gen. Stat. § 52-13, is facially unconstitutional; and, (2) expeditious transfer of

such constitutional challenge for resolution by a three-judge panel. The Motion failed

to show the following statutory amendments changed any of the common law

elements of either tort. The statute establishes:

(a) No act of the defendant shall give rise to a cause of

action for alienation of affection or criminal conversation

that occurs after the plaintiff and the plaintiffs spouse

physically separate with the intent of either the plaintiff or

plaintiffs spouse that the physical separation remain

permanent.

(b) An 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.

(c) A person may commence a cause of action for alienation

of affection or criminal conversation against a natural

person only.

N.C. Gen. Stat. § 52-13 (2019).

¶3 The trial judge made extensive findings of fact and conclusions of law and

denied Defendant’s transfer request and his motion to dismiss Plaintiff’s covenant

claims.

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Opinion of the Court

¶4 At the close of the hearing, Defendant moved to certify this matter for

immediate appeal pursuant to Rule 54(b) of the North Carolina Rules of Civil

Procedure. The trial court denied the motion and did not certify for immediate

review.

¶5 Defendant filed and served: (1) his responsive pleading; (2) his objections and

responses to Plaintiff’s first request for admission; and, (3) his Notice of Appeal from

the trial judge’s ruling.

II. Issues

¶6 Defendant raises two issues on appeal. First, whether the trial court erred by

denying his motion to transfer based upon his purported facial constitutional

challenge to the covenant claims. Second, whether the trial court erred by denying

Defendant’s motion to dismiss because it lacked jurisdiction to adjudicate the merits.

III. Jurisdiction

¶7 Defendant argues his interlocutory appeal is properly before this Court

pursuant to N.C. Gen. Stat. §§ 1-277(a) and 7A-27(b)(3) (2019).

Ordinarily, an appeal from an interlocutory order will be

dismissed as fragmentary and premature unless the order

affects some substantial right and will work injury to

appellant if not corrected before appeal from final

judgment . . . Essentially a two-part test has developed[:]

the right itself must be substantial and the deprivation of

that substantial right must potentially work injury to

plaintiff if not corrected before appeal from final judgment.

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Opinion of the Court

Goldston v. American Motors Corp., 326 N.C. 723, 726, 392 S.E.2d 735, 736 (1990)

(citations and internal quotation marks omitted).

[T]he ‘substantial right’ test for appealability of

interlocutory orders is more easily stated than applied. It

is usually necessary to resolve the question in each case by

considering the particular facts of that case and the

procedural context in which the order from which appeal is

sought was entered.

Waters v. Qualified Personnel, Inc., 294 N.C. 200, 208, 240 S.E.2d 338, 343 (1978).

¶8 Defendant argues the trial court’s order affects a substantial right: the right to

transfer to a three-judge panel, as promulgated by statute.

¶9 A litigant has a right to immediately appeal from an interlocutory order

denying a motion to transfer a matter from a statutorily improper venue to a

statutorily proper venue. See, e.g., Gardner v. Gardner, 300 N.C. 715, 719, 268 S.E.2d

468, 471 (1980) (“Although the initial question of venue is a procedural one, there can

be no doubt that a right to venue established by statute is a substantial right.”).

¶ 10 Defendant appeals pursuant to Rule 42, and “[w]e must be mindful of the

longstanding ‘presumption [ ] that the legislature was fully cognizant of prior and

existing law within the subject matter of its enactment.” State v. Daw, __ N.C. __,

2021-NCCOA-180, ¶ 39, 860 S.E.2d 1, 12 (2021) (citation omitted). “The avoidance of

one trial is not ordinarily a substantial right.” Green v. Duke Power Co., 305 N.C. 603,

608, 290 S.E.2d 593, 596 (1982) (citation omitted).

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Opinion of the Court

IV. Trial Court’s Compliance with Rule 42

¶ 11 Defendant argues “any facial challenge to the validity of an act of the General

Assembly shall be transferred pursuant to G.S. 1A-1, Rule 42(b)(4)[.]” N.C. Gen. Stat.

§ 1-267.1 (2019). Rule 42(b)(4) provides in relevant part:

[A]ny facial challenge to the validity of an act of the

General Assembly . . . shall be heard by a three-judge panel

in the Superior Court of Wake County . . . if such a

challenge is raised by the defendant in the defendant’s

answer, responsive pleading, or within 30 days of filing the

defendant’s answer or responsive pleading. In that event,

the court shall, on its own motion, transfer that portion of

the action challenging the validity of the act of the General

Assembly to the Superior Court of Wake County for

resolution by a three-judge panel if, after all other matters

in the action have been resolved, a determination as to the

facial validity of an act of the General Assembly must be

made in order to completely resolve any matters in the case.

The court in which the action originated shall maintain

jurisdiction over all matters other than the challenge to the

act’s facial validity. For a motion filed under Rule 11 or

Rule 12(b)(1) through (7), the original court shall rule on

the motion, however, it may decline to rule on a motion that

is based solely upon Rule 12(b)(6). If the original court

declines to rule on a Rule 12(b)(6) motion, the motion shall

be decided by the three-judge panel. The original court

shall stay all matters that are contingent upon the outcome

of the challenge to the act’s facial validity pending a ruling

on that challenge and until all appeal rights are exhausted.

Once the three-judge panel has ruled and all appeal rights

have been exhausted, the matter shall be transferred or

remanded to the three-judge panel or the trial court in

which the action originated for resolution of any

outstanding matters, as appropriate.

N.C. Gen. Stat. § 1A-1, Rule 42(b)(4) (2019) (emphasis supplied).

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Opinion of the Court

¶ 12 Rule 42 requires the transfer for the facial constitutional challenge should not

happen until “after” a trial on the other unaffected claims in the lawsuit. Id.

¶ 13 In Holdstock v. Duke, this Court held:

The trial court also has to determine what issues, if any,

are not “contingent upon the outcome of the challenge to

the act’s facial validity[,]” and resolve those issues before

deciding whether it is necessary to transfer the facial

challenge to the three-judge panel.

Holdstock v. Duke Univ. Health Sys., Inc., 270 N.C. App. 267, 281, 841 S.E.2d 307,

317 (2020) (citation omitted) (emphasis in original and supplied).

¶ 14 This Court further held in Holdstock:

[I]f the trial court had found reason to grant summary

judgment in favor of either Plaintiffs or Defendants, based

upon matters not contingent on Plaintiffs’ facial challenge,

the trial court would not have transferred Plaintiff’s facial

challenge to a three-judge panel because the underlying

action would have already been decided in full. However, if

the trial court had decided all matters not “contingent upon

the outcome of” resolution of Plaintiffs’ facial challenge, but

matters contingent on resolution of the facial challenge

remained “in order to completely resolve” the action, the

trial court would have been required, “on its own motion,

[to] transfer that portion of the action challenging the

validity of [Rule 9(j)] . . . for resolution by a three-judge

panel[.]

Id. at 278–79, 841 S.E.2d at 315. (citation omitted).

¶ 15 Defendant argues Plaintiff’s claims in this action for alienation of affections,

criminal conversation, NIED, and IIED involve the same facts, the same damages,

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and all seek compensatory and punitive damages for all four claims, so the same jury

must hear all four claims pursuant to N.C. Gen. Stat. § 1D-30 (2019) (stating “the

issues of liability for compensatory damages and the amount of compensatory

damages, if any, shall be tried separately from the issues of liability for punitive

damages and the amount of punitive damages . . . The same trier of fact that tried

the issues relating to compensatory damages shall try the issues relating to punitive

damages.”). Defendant overstates the nature of these four categories of claims.

¶ 16 Nothing prevents Defendant from raising the constitutionality of the covenant

claims before a three-judge panel after all other issues in the case are resolved. If the

claims subject to constitutional challenge survive summary judgment on other

grounds, a jury may determine the damages of each cause of action separately while

Defendant preserves its right to raise the constitutional issues before the three-judge

panel before the trial court enters a final judgment. Because not all matters have

been fully resolved, the statutory mandated transfer provisions of N.C. Gen. Stat. §§

1-267.1 & 1-81.1 and Rule 42(b)(4) do not apply. This interlocutory appeal is

premature.

V. Conclusion

¶ 17 Rule 42 requires all non-contingent matters to be resolved before the facial

challenge can be resolved. N.C. Gen. Stat. § 1A-1, 42(b)(4). Once “all other matters

in the action have been resolved, a determination as to the facial validity of an act of

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Opinion of the Court

the General Assembly must be made[.]” Id.

¶ 18 Defendant has not shown any “deprivation of that substantial right . . . [to]

potentially work injury to [Defendant] if not corrected before appeal from final

judgment.” Goldston, 326 N.C. at 726, 392 S.E.2d at 736.

¶ 19 This appeal is interlocutory and dismissed. It is so ordered.

DISMISSED.

Judges DIETZ and GRIFFIN concur.