Fish v. Stetina

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA23-1115

Filed 19 February 2025

Catawba County, No. 22 CVS 931

JOHN M. FISH, Plaintiff,

v.

WAYNE DOUGLAS STETINA, Defendant.

Appeal by Defendant from judgment entered 3 April 2023 by Judge Nathaniel

J. Poovey in Catawba County Superior Court. Heard in the Court of Appeals 13

August 2024.

Wesley E. Starnes, PC, by Wesley E. Starnes, for Defendant-Appellant.

Pope McMillan, P.A., by Clark D. Tew, for Plaintiff-Appellee.

CARPENTER, Judge.

Wayne Douglas Stetina (“Defendant”) appeals a jury award of compensatory

and punitive damages in favor of John M. Fish (“Plaintiff”) on his alienation of

affection claim. On appeal, Defendant argues the trial court erred by: (1) admitting

certain evidence that was barred by the law-of-the-case doctrine; (2) allowing Plaintiff

to present evidence from Life360 (the “App”); (3) denying Defendant’s motion for

directed verdict; (4) submitting the issue of punitive damages to the jury; and (5)

admitting evidence of Defendant’s out-of-state conduct. After careful review, we

discern no error.

FISH V. STETINA

Opinion of the Court

I. Factual and Procedural Background

On 29 June 2020, Plaintiff sued Defendant on claims of alienation of affection

and criminal conversation in Catawba County Superior Court. In his complaint,

Plaintiff requested compensatory and punitive damages. Among his other

allegations, Plaintiff alleged that Defendant had sexual intercourse with Plaintiff’s

wife (“Wife”) before Plaintiff and Wife separated.

On 26 July 2020, Defendant moved for summary judgment on both claims. On

8 November 2020, Defendant amended and refiled his summary judgment motion.

On 23 February 2022, the trial court filed an order (the “Order”) granting Defendant

summary judgment on the criminal conversation claim and denying summary

judgment on the alienation of affection claim. In the Order, the trial court

“conclude[d] that there [was] no genuine issue as to any material fact related to

Plaintiff’s claim for criminal conversation.” The trial court did not further explain its

grant of summary judgment. Plaintiff did not appeal the Order.1

On 21 March 2022, Plaintiff voluntarily dismissed his 29 June 2020 complaint.

On 4 May 2022, Plaintiff filed a new complaint against Defendant asserting only a

1

Because Plaintiff did not appeal from the Order, we will not opine on the Order.

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claim for alienation of affection.2 On 6 March 2023, Plaintiff’s case proceeded to trial

and the evidence tended to show the following.

On 16 January 1998, Plaintiff and Wife married. During their marriage, Wife

became involved in a charity bicycling organization called Ride to Recovery (“R2R”).

Through her involvement with R2R, Wife met Defendant, a former Olympic bicyclist.

Defendant, who lived in California, and Wife, who lived in North Carolina, began

exchanging phone calls sometime in 2016. Wife maintained, however, that their

phone conversations only concerned R2R.

Over time, Defendant and Wife’s phone conversations increased in both

frequency and duration. In January 2016, Defendant and Wife spoke on the phone 9

times for a total of 188 minutes. Similarly, in February 2016, Defendant and Wife

spoke on the phone 10 times for a total of 213 minutes. In August 2016, Defendant

and Wife spoke on the phone 47 times for a total of 776 minutes. Finally, by March

2017, Defendant and Wife spoke on the phone 138 times for a total of 2,234 minutes.

Prior to separating from Wife, Plaintiff was not aware of Defendant. Defendant, on

the other hand, knew Wife was married to Plaintiff.

Using the App, a global-positioning-system application, Plaintiff learned Wife

was at a hotel in Boone, North Carolina in early July 2017. Defendant was at the

2 The docket number of the “original lawsuit” was 20 CVS 1640. The docket number of the

“present lawsuit” is 22 CVS 931. See Williams v. Peabody, 217 N.C. App. 1, 6, 719 S.E.2d 88, 93

(2011).

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hotel at the same time as Wife, and the two did not call each other during this period.

When Plaintiff testified concerning the App, Defendant’s counsel objected, asserting

lack of foundation.

In late July and early August of 2017, Wife traveled to Nevada and Colorado.

Defendant also traveled to Colorado during the same period but denied seeing Wife

during his trip. From late July until 2 August 2017, there were no phone calls

between Wife and Defendant. Other than the trip to Boone in early July 2017, when

Wife was in Colorado, this was the only time in July and August 2017 in which

Defendant and Wife did not call each other.

Plaintiff and Wife separated on 17 August 2017. On that day, Wife left the

marital home to live in Plaintiff and Wife’s vacation home (the “mountain home”) in

Blowing Rock, North Carolina. Plaintiff and Wife gave conflicting testimony

concerning the inner workings of their marriage and why they eventually separated.

In December 2017, phone records showed that wife was in Irvine, California,

where Defendant worked. Again, from 7 December 2017 until 11 December 2017,

there were no phone calls between Defendant and Wife. In January 2018, Defendant

traveled to North Carolina and stayed with Wife in the mountain home.

Wife denied she and Defendant had sexual relations prior to her separation

from Plaintiff. Wife admitted that Defendant stayed with her at the mountain home

in January 2018, but she maintained that all of her interactions with Defendant were

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Opinion of the Court

platonic. Wife testified that she and Defendant began dating in 2018, and that the

pair was still a couple as of the trial.

On 6 February 2018, Plaintiff filed for divorce. After the divorce litigation, the

trial court ordered Plaintiff to pay Wife $764,000 in alimony. When Defendant

learned that Plaintiff might sue him, he deleted all of his text messages with Wife.

He did not, however, delete any other text conversations.

At the close of Plaintiff’s alienation of affection case, Defendant moved for a

directed verdict. The trial court denied Defendant’s motion. At the close of the

evidence, Defendant again moved for a directed verdict, which the trial court denied.

When instructing the jury, the trial court did not tell the jury that they could or

should consider any pre-separation sexual intercourse between Defendant and Wife.

The trial court’s only mention of “sex” when instructing the jury concerned the sexual

relationship between Plaintiff and Wife during their marriage.

On 14 March 2023, the jury found Defendant liable for alienation of affection.

The jury awarded Plaintiff $804,000 in compensatory damages and $500,000 in

punitive damages. On 3 April 2023, the trial court entered judgment accordingly. On

10 April 2023, Defendant moved for judgment notwithstanding the verdict, and, in

the alternative, a new trial. On 10 May 2023, the trial court denied Defendant’s

motion. On 12 May 2023, Defendant filed written notice of appeal.

II. Jurisdiction

This Court has jurisdiction under N.C. Gen. Stat. § 7A-27(b)(1) (2023).

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Opinion of the Court

III. Issues

The issues are whether the trial court erred by: (1) admitting certain evidence

that was barred by the law-of-the-case doctrine; (2) allowing Plaintiff to present

evidence from the App; (3) denying Defendant’s motion for directed verdict; (4)

submitting the issue of punitive damages to the jury; and (5) admitting evidence of

Defendant’s out-of-state conduct.

IV. Analysis

A. Evidence of Alleged Pre-Separation Sexual Contact

Defendant’s first and primary argument on appeal is that the trial court erred

by admitting certain evidence because it was barred by the law-of-the-case doctrine.

According to Defendant, the Order necessarily concluded, as a matter of law, that

Defendant and Wife did not have pre-separation sexual intercourse. Defendant

maintains the Order precluded Plaintiff from introducing evidence of phone calls and

location data from the App because the evidence was probative of pre-separation

sexual intercourse between Defendant and Wife. We agree with Defendant that the

Order concluded he did not have pre-separation sexual intercourse with Wife and

that Plaintiff was barred from re-litigating this issue in the present case. However,

we disagree with Defendant that the issue was re-litigated by virtue of Plaintiff

offering evidence of the phone calls and location data from the App.

1. Standard of Review

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Opinion of the Court

Whether the law-of-the-case doctrine applies is a question of law. Royster v.

McNamara, 218 N.C. App. 520, 529–30, 723 S.E.2d 122, 129 (2012). Similarly,

whether a trial court “is barred from hearing a specific claim or issue is a question of

law unrelated to any specific facts of a case.” Bluebird Corp. v. Aubin, 188 N.C. App.

671, 678, 657 S.E.2d 55, 61 (2008). This Court reviews questions of law de novo. State

v. Khan, 366 N.C. 448, 453, 738 S.E.2d 167, 171 (2013) (citing In re Greens of Pine

Glen Ltd., 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)). Under a de novo review,

this Court “‘considers the matter anew and freely substitutes its own judgment’ for

that of the lower tribunal.” State v. Williams, 362 N.C. 628, 632–33, 669 S.E.2d 290,

294 (2008) (quoting In re Greens, 356 N.C. at 647, 576 S.E.2d at 319).

This Court “ ‘review[s] a trial court’s rulings . . . on the admission of evidence

for an abuse of discretion.’ ” Ingram v. Henderson Cnty. Hosp. Corp., Inc., 259 N.C.

App. 266, 290, 815 S.E.2d 719, 734 (2018) (quoting State v. Hernendez, 184 N.C. App.

344, 348, 646 S.E.2d 579, 582 (2007)). “Abuse of discretion results where the court’s

ruling is manifestly unsupported by reason or is so arbitrary that it could not have

been the result of a reasoned decision.” State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d

523, 527 (1988) (citing State v. Parker, 315 N.C. 249, 337 S.E.2d 497 (1985)).

2. Criminal Conversation and Alienation of Affection

There are two causes of action relevant to Defendant’s law-of-the-case

argument: criminal conversation and alienation of affection. Criminal conversation

requires a plaintiff to prove that there was an “ ‘actual marriage between the spouses

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Opinion of the Court

and sexual intercourse between defendant and the plaintiff’s spouse during the

coverture.’ ” Nunn v. Allen, 154 N.C. App. 523, 535, 574 S.E.2d 35, 43 (2002) (quoting

Brown v. Hurley, 124 N.C. App. 377, 380, 477 S.E.2d 234, 237 (1996)).

Alienation of affection, on the other hand, requires a plaintiff to prove: “ ‘(1)

there was a marriage with love and affection existing between the husband and wife;

(2) that love and affection was alienated; and (3) the malicious acts of the defendant

produced the loss of that love and affection.’ ” Id. at 532–33, 574 S.E.2d at 41–42

(quoting Pharr v. Beck, 147 N.C. App. 268, 271, 554 S.E.2d 851, 854 (2001)). “Malice

is conclusively presumed by a showing that the defendant engaged in sexual

intercourse with the plaintiff’s spouse,” Rodriguez v. Lemus, 257 N.C. App. 493, 495–

96, 810 S.E.2d 1, 3 (2018), but malice does not require proof of sexual intercourse, id.

at 497, 810 S.E.2d at 4 (explaining “[t]his Court has held that intentional acts by a

defendant other than sexual intercourse satisfied the malice element of alienation of

affection”).

The date of separation is critical to both claims as “[n]o 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 plaintiff’s spouse physically separate with the

intent of either the plaintiff or plaintiff’s spouse that the physical separation remain

permanent.” N.C. Gen. Stat. § 52-13(a) (2023).

3. Issue Preclusion and Law-of-the-Case Doctrine

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Opinion of the Court

First, we must determine which doctrine applies to this case: law-of-the-case

or issue preclusion. Although both doctrines generally bar re-litigating issues, they

operate differently. On appeal, Defendant urges this Court to apply the law-of-the-

case doctrine. For the reasons outlined below, we conclude issue preclusion, not law-

of-the-case, is the applicable doctrine.

Issue preclusion, also known as “collateral estoppel” and “estoppel by

judgment,” prohibits re-litigation of an issue resolved in a final judgment “ ‘involving

identical parties or parties in privity with a party or parties to the prior suit.’ ” State

v. Safrit, 145 N.C. App. 541, 552, 551 S.E.2d 516, 523–24 (2001) (quoting Masters v.

Dunstan, 256 N.C. 520, 524, 124 S.E.2d 574, 576 (1962)). Issue preclusion requires:

“(1) a prior suit resulting in a final judgment on the merits; (2) identical issues

involved; (3) the issue was actually litigated in the prior suit and necessary to the

judgment; and (4) the issue was actually determined.” McDonald v. Skeen, 152 N.C.

App. 228, 230, 567 S.E.2d 209, 211 (2002).

“ ‘[A]n issue is actually litigated, for purposes of collateral estoppel or issue

preclusion, if it is properly raised in the pleadings or otherwise submitted for

determination and [is] in fact determined.’ ” See Williams v. Peabody, 217 N.C. App.

1, 6, 719 S.E.2d 88, 93 (2011) (quoting City of Asheville v. State, 192 N.C. App. 1, 17,

665 S.E.2d 103, 117 (2008)). Concerning the second element, “[a] very close

examination of matters actually litigated must be made in order to determine if the

underlying issues are in fact identical. If they are not identical, then the doctrine of

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Opinion of the Court

collateral estoppel does not apply.” Beckwith v. Llewellyn, 326 N.C. 569, 574, 391

S.E.2d 189, 191 (1990).

Although the law-of-the-case doctrine is similar to issue preclusion in that it

prevents re-litigation of an issue, see Royster, 218 N.C. App. at 529–30, 723 S.E.2d at

129, the two doctrines differ in one key respect: issue preclusion prevents re-litigation

in a future lawsuit, see Safrit, 145 N.C. App. at 552, 551 S.E.2d at 523–24 (emphasis

added), while the law-of-the-case doctrine prevents re-litigation of an issue in the

same lawsuit, see Royster, 218 N.C. App. at 529–30, 723 S.E.2d at 129. “Lawsuits”

are distinguished by their trial-court docket numbers. See Williams, 217 N.C. App.

at 3–6, 719 S.E.2d at 91–93 (analyzing issue preclusion and referring to the “original

lawsuit” and the “present lawsuit” by their distinct trial-court docket numbers).

Here, Plaintiff did not appeal from the Order granting summary judgment in

favor of Defendant for the criminal conversation claim. Instead, after the trial court

issued the Order, Plaintiff filed a notice of voluntary dismissal and subsequently filed

a new complaint asserting only an alienation of affection claim. Because Plaintiff

voluntarily dismissed his original lawsuit after the trial court issued the Order, and

he did not appeal from the Order, it is a final judgment concerning criminal

conversation. See Green v. Dixon, 137 N.C. App. 305, 310, 528 S.E.2d 51, 55 (2000)

(“In general, a cause of action determined by an order for summary judgment is a

final judgment on the merits.”); Veazy v. City of Durham, 231 N.C. 357, 361, 57 S.E.2d

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377, 381 (1950) (“A final judgment is one which disposes of the cause as to all the

parties, leaving nothing to be judicially determined between them in the trial court.”).

The Order concerned the original lawsuit, docketed as 20 CVS 1640, and this

appeal concerns Plaintiff’s subsequent lawsuit, docketed as 22 CVS 931. So issue

preclusion, not law-of the-case, is the applicable doctrine since we are dealing with

two separate lawsuits: the “original lawsuit” and the “present lawsuit.” See Williams,

217 N.C. App. at 3–6, 719 S.E.2d at 91–93. Therefore, we assess Defendant’s

assertions through the issue-preclusion framework.

As an aside, we note that the applicable voluntary dismissal principles under

Rule 41 do not change our conclusion that issue preclusion is the appropriate doctrine

to apply here. The procedural posture of this case is rather unusual and is unlikely

to be duplicated. Because Plaintiff filed his notice of voluntary dismissal after

presenting arguments on both of his claims at the summary judgment hearing,

Plaintiff “rest[ed] his case” within the meaning of Rule 41(a)(1)(i). See N.C. R. Civ.

P. 41(a)(1)(i) (providing a plaintiff may dismiss an action or claim “by filing a notice

of dismissal at any time before the plaintiff rests his case”) (emphasis added); see also

Troy v. Tucker, 126 N.C. App. 213, 216, 484 S.E.2d 98, 99 (1997) (concluding “[the]

plaintiff’s filing of her voluntary dismissal was unauthorized” because she “had rested

her case at the summary judgment hearing”). Therefore, Plaintiff’s notice of

voluntary dismissal was unauthorized and Defendant could have asserted, in his

responsive pleading to Plaintiff’s new complaint, that Plaintiff’s voluntary dismissal

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Opinion of the Court

was with prejudice and barred Plaintiff from pursuing the alienation of affection

claim in his new lawsuit. See Pardue v. Darnell, 148 N.C. App. 152, 157, 557 S.E.2d

172, 176 (2001) (holding where the plaintiff rested his case at trial and then

attempted to take a voluntary dismissal, the dismissal operated as a dismissal with

prejudice “barring [the plaintiff] from refiling suit against [the] defendant” and

entitling defendant “to judgment as a matter of law” in a later-filed action based on

the same claim or claims). But Defendant did not assert the affirmative defense of

claim preclusion, otherwise known as res judicata, in his responsive pleading to

Plaintiff’s new complaint. See Smith v. Polsky, 251 N.C. App. 589, 595, 796 S.E.2d

354, 359 (2017) (“[A] voluntary dismissal with prejudice is, by operation of law, a final

judgment on the merits implicating the doctrine of res judicata.”); Cnty. of Rutherford

By & Through Child Support Enf’t Agency ex rel. Hedrick v. Whitener, 100 N.C. App.

70, 73, 394 S.E.2d 263, 264 (1990) (“[R]es judicata is an affirmative defense and must

be set forth affirmatively in the pleadings.”); see also N.C. Gen. Stat. § 1A-1, Rule 8(c)

(2023). Thus, Plaintiff’s alienation of affection claim properly proceeded to trial.

4. Discussion

Now equipped with the appropriate doctrine, we turn to the facts. Here, the

Order granted Defendant summary judgment concerning criminal conversation.

Although the Order did not explain its grant of summary judgment beyond concluding

“that there [was] no genuine issue as to any material fact” for the criminal

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Opinion of the Court

conversation claim, it necessarily determined, as a matter of law, that Defendant did

not have pre-separation sexual intercourse with Wife.

First, the issue of pre-separation sexual intercourse was “submitted for

determination” in the original lawsuit, since Plaintiff alleged it in his complaint. See

Williams, 217 N.C. App. at 6, 719 S.E.2d at 93. Second, pre-separation sexual

intercourse is an element of criminal conversation, which Plaintiff also alleged in his

complaint. See Nunn, 154 N.C. App. at 535, 574 S.E.2d at 43. Finally, Defendant

admitted that Plaintiff and Wife’s marriage was valid. Thus, the only disputed

element of criminal conversation was Defendant’s alleged pre-separation sexual

intercourse with Wife. See id. at 535, 574 S.E.2d at 43. Accordingly, since the Order

granted Defendant summary judgment concerning criminal conversation, the trial

court concluded that Defendant did not have pre-separation sexual intercourse with

Wife. See id. at 535, 574 S.E.2d at 43.

Because the issue of pre-separation sexual intercourse was resolved by the trial

court in the Order, a final judgment, see Green, 137 N.C. App. at 310, 528 S.E.2d at

55, and was necessary to the judgment, see McDonald, 152 N.C. App. at 230, 567

S.E.2d at 211, issue preclusion principles applied. Accordingly, the parties were

precluded from re-litigating the issue of whether Defendant and Wife had pre-

separation sexual intercourse.

Here, the trial court complied with issue-preclusion principles and did not re-

litigate the issue of whether Defendant and Wife had pre-separation sexual

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intercourse. The trial court did not instruct the jury to consider pre-separation sexual

intercourse and the only mention of “sex” in the instructions concerned the sexual

relationship between Plaintiff and Wife.

Defendant, however, argues that issue preclusion entitles him to more.

Defendant asserts that issue preclusion prohibited Plaintiff from offering any

evidence that may be probative of pre-separation sexual intercourse between

Defendant and Wife. According to Defendant, Plaintiff was precluded from

introducing evidence of Defendant and Wife’s phone calls and their locations via the

App because such evidence could have persuaded the jury that Defendant and Wife

had pre-separation sexual intercourse, which the Order already rejected. In

Defendant’s view, by introducing this evidence, Plaintiff was “relitigating” the issue.

We disagree with Defendant.

Issue preclusion does indeed prevent the re-litigation of issues, but issues and

evidence are not the same. Prohibiting re-litigation means that certain legal theories

are predetermined, as a matter of law. See McCallum v. North Carolina Coop.

Extension Serv. of N.C. State Univ., 142 N.C. App. 48, 56, 542 S.E.2d 227, 234 (2001).

It does not mean, however, that Plaintiff’s evidence was inadmissible because it may

have been probative of whether Defendant and Wife had pre-separation sexual

intercourse. The relevant inquiry is whether pre-separation sexual intercourse was

indeed litigated in the subsequent action. See Safrit, 145 N.C. App. at 552, 551 S.E.2d

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at 523–24 (quoting Masters, 256 N.C. at 524, 124 S.E.2d at 576). In the instant case,

as indicated above, it was not.

Under Defendant’s approach, trial courts would need to examine each piece of

evidence to discern whether it is probative of an already litigated issue. Which begs

the question: How probative? We decline to open Pandora’s box. Accordingly, the

trial court did not violate the doctrine of issue preclusion by admitting Plaintiff’s

phone-call and location evidence from the App that may have been probative of pre-

separation sexual intercourse. See McDonald, 152 N.C. App. at 230, 567 S.E.2d at

211.

B. Location Evidence from the App

Next, Defendant argues that the trial court erred by admitting evidence from

the App because the evidence lacked foundation for admission as a business record

and was thus inadmissible hearsay. Defendant argues that he objected to the App

evidence “on the grounds that this evidence was hearsay.” We disagree with

Defendant and dismiss his argument as unpreserved.

“In order to preserve an issue for appellate review, the appellant must have

raised that specific issue before the trial court to allow it to make a ruling on that

issue.” Regions Bank v. Baxley Com. Props., LLC, 206 N.C. App. 293, 298–99, 697

S.E.2d 417, 421 (2010) (citing N.C. R. App. P. 10(b)(1)); see State v. Harris, 253 N.C.

App. 322, 327, 800 S.E.2d 676, 680 (2017) (“The specific grounds for objection raised

before the trial court must be the theory argued on appeal because the law does not

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permit parties to swap horses between courts in order to get a better mount in the

[appellate court].”) (internal quotation marks and citations omitted). In order to

preserve an issue, the objection must “clearly present[] the alleged error to the trial

court.” N.C. Gen. Stat. § 8C-1, Rule 103(a)(1) (2023).

Additionally, “[i]t is well-settled that arguments not presented in an

appellant’s brief are deemed abandoned on appeal.” Davignon v. Davignon, 245 N.C.

App. 358, 361, 782 S.E.2d 391, 394 (2016) (citing N.C. R. App. P. 28(b)(6)); see State

v. Evans, 251 N.C. App. 610, 625, 795 S.E.2d 444, 455 (2017) (deeming an argument

abandoned because the appellant did “not set forth any legal argument or citation to

authority”).

Here, Plaintiff offered evidence from the App to prove that Defendant and Wife

were simultaneously in the same location. Below is the relevant testimony:

Plaintiff’s Counsel: So let’s talk about what happened in

July of 2017. What occurred in that month?

....

Plaintiff: I looked at Life360 and I thought—

Defense Counsel: Objection.

Plaintiff: – isn’t it odd –

Defense Counsel: No foundation laid for Life360.

Trial Court: Sustained.

Plaintiff’s Counsel: Okay. Let’s talk about this for a

second. You have an application on your phone that you’ve

discussed called Life360; correct?

Plaintiff: Correct.

Plaintiff’s Counsel: What is that application?

Plaintiff: It’s an application that allows family members

or whoever to track one another’s location. We primarily

had it for the safety of our children.

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Plaintiff’s Counsel: How long had you and [Wife] used

Life360?

Plaintiff: Four or five years or more.

Plaintiff’s Counsel: Okay. And did [Wife] –

Plaintiff: Probably once they started driving.

Plaintiff’s Counsel: Did [Wife] have access to Life360 on

her phone as well?

Plaintiff: Yes.

Plaintiff’s Counsel: Was Life360, this application,

something that tracked both your location and [Wife’s]

location?

Plaintiff: Yes.

Defense Counsel: Objection.

Plaintiff’s Counsel: As well as your daughters?

Plaintiff: Yes.

Defense Counsel: Object for the record.

Trial Court: Overruled.

Plaintiff’s Counsel: How would this application send you

notifications, or why would this application send you

notifications?

Defense Counsel: Objection.

Trial Court: Overruled.

Defendant specifically objected to the App evidence for lack of foundation.

Defendant later lodged several general objections without specifying a basis. Now

Defendant argues that his “foundation” objection concerned the requisite foundation

to satisfy the business-record exception to the hearsay rule.

Usually, objections for lack of foundation concern the “authentication or

identification” necessary to show that the proposed evidence “is what its proponent

claims.” See N.C. Gen. Stat. § 8C-1, Rule 901(a) (2023). Here, Defendant’s counsel

merely objected to the App based on lack of “foundation.” Defendant’s counsel did not

mention hearsay. Without specifying that a “foundation” objection actually concerns

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a hearsay exception, the objection does not “clearly present[]” a hearsay question to

the trial court. See id., Rule 103(a)(1). Therefore, Defendant did not preserve a

hearsay argument, see id., and he cannot “swap horses” and make a hearsay

argument on appeal, see Harris, 253 N.C. App. at 327, 800 S.E.2d at 680.

Further, any authentication argument under Rule 901 is now abandoned. On

appeal, Defendant’s sole argument about the App concerns hearsay and the business-

record exception, and he only cites hearsay authorities. Therefore, because

Defendant cites no authority and makes no argument concerning authentication, he

abandoned his only preserved argument. See Evans, 251 N.C. App. at 625, 795 S.E.2d

at 455; see N.C. R. App. P. 28(b)(6).

C. Motion for Directed Verdict

In his third argument, Defendant asserts that the trial court erred by denying

his motion for a directed verdict because Plaintiff offered no evidence of malice.

Defendant echoes his first argument here, asserting that evidence of Defendant and

Wife’s phone call and location records must be precluded, and thus Plaintiff offered

no evidence of malice. We disagree with Defendant.

We review directed-verdict rulings de novo. Yorke v. Novant Health, Inc., 192

N.C. App. 340, 351, 666 S.E.2d 127, 135 (2008) (citing Denson v. Richmond Cty., 159

N.C. App. 408, 411, 583 S.E.2d 318, 320 (2003)). A directed verdict “is appropriate

only when the issue submitted presents a question of law based on admitted facts

where no other conclusion can reasonably be reached.” Ferguson v. Williams, 101

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N.C. App. 265, 271, 399 S.E.2d 389, 393 (1991) (citing Seaman v. McQueen, 51 N.C.

App. 500, 503, 277 S.E.2d 118, 120 (1981)). In making this determination:

the trial court must view all the evidence that supports the

non-movant’s claim as being true and that evidence must

be considered in the light most favorable to the non-

movant, giving to the non-movant the benefit of every

reasonable inference that may legitimately be drawn from

the evidence with contradictions, conflicts, and

inconsistencies being resolved in the non-movant’s favor.

Bryant v. Nationwide Mut. Fire Ins. Co., 313 N.C. 362, 369, 329 S.E.2d 333, 337–38

(1985) (citing Farmer v. Chaney, 292 N.C. 451, 452–53, 233 S.E.2d 582, 584 (1977)).

Concerning alienation of affection, “[a] malicious act has been loosely defined

to include any intentional conduct that would probably affect the marital

relationship.” Beavers v. McMican, 385 N.C. 629, 635, 898 S.E.2d 690, 696 (2024)

(quoting Rodriguez, 257 N.C. App. at 495, 810 S.E.2d at 1).

Here, as detailed above, the trial court did not err by admitting evidence of

Defendant and Wife’s phone call and location records. The jury could not have

concluded this evidence proved that Defendant and Wife had pre-separation sexual

intercourse, because issue preclusion prevented that issue from being presented to

the jury for determination. Nonetheless, when viewed “in the light most favorable

to” Plaintiff, see Bryant, 313 N.C.at 369, 329 S.E.2d at 337–38, a reasonable jury could

still conclude that Defendant and Wife’s telephone conversations and repeated visits

amounted to “intentional conduct that would probably affect the marital relationship”

between Plaintiff and Wife, see Beavers, 385 N.C. at 635, 898 S.E.2d at 696.

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Therefore, the trial court did not err by denying Defendant’s motion for a directed

verdict. See Ferguson, 101 N.C. App. at 271, 399 S.E.2d at 393.

D. Punitive Damages

In his next argument, Defendant asserts that the trial court erred by

submitting the issue of punitive damages to the jury. We disagree with Defendant.

We review the legality of jury instructions de novo. State v. Barron, 202 N.C.

App. 686, 694, 690 S.E.2d 22, 29 (2010). For a jury to award punitive damages under

an alienation of affection theory, “there must be evidence of circumstances of

aggravation beyond the proof of malice necessary to satisfy the elements of the tort

to sustain a recovery of compensatory damages.” Nunn, 154 N.C. App. at 538, 574

S.E.2d at 44–45 (quoting Ward v. Beaton, 141 N.C. App. 44, 49–50, 539 S.E.2d 30, 34

(2000)). “Evidence of [pre-separation] ‘sexual relations’ has been held to satisfy this

requirement.” Id. at 538, 574 S.E.2d at 45 (citing Ward, 141 N.C. App. at 49–50, 539

S.E.2d at 34). In the absence of such evidence, a plaintiff faces a greater challenge in

submitting the punitive-damages question to the jury. See Cottle v. Johnson, 179

N.C. 426, 431, 102 S.E. 769, 771 (1920) (ordering a new trial where plaintiff received

punitive damages for alienation of affection in a case where the plaintiff did not prove

criminal conversation).

For example, evidence of “problems caused in [a] marriage and increase[ed]

amount[] of time spent with plaintiff’s wife,” in the absence of evidence of pre-

separation sexual intercourse, was held to be insufficient to send the punitive-

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Opinion of the Court

damages question to the jury. Chappell v. Redding, 67 N.C. App. 397, 403, 313 S.E.2d

239, 243 (1984).

Here, as detailed above, the Order settled the question of whether Defendant

and Wife had pre-separation sexual intercourse: The trial court determined they did

not. See Nunn, 154 N.C. App. at 535, 574 S.E.2d at 43; McDonald, 152 N.C. App. at

230, 567 S.E.2d at 211. Nonetheless, Plaintiff still offered sufficient evidence to send

the punitive-damages question to the jury.

Specifically, Plaintiff offered evidence that Defendant deleted all of his text

messages with Wife upon learning that he might be sued, thereby intentionally

spoliating evidence. Such evidence goes beyond “the malice implied by law from the

conduct of defendant in alienating the affections between the spouses.” Chappell, 67

N.C. App. at 403, 313 S.E.2d at 243.

Thus, Plaintiff established sufficient evidence of aggravation to send the

punitive-damages question to the jury even in the absence of evidence of pre-

separation sexual relations. Accordingly, the trial court did not err by sending the

punitive-damages question to the jury.

E. Out-of-State Conduct

In his final argument, Defendant asserts that the trial court erred by admitting

evidence purporting to show that he met with Wife in Nevada, a state that does not

recognize the tort of alienation of affection. According to Defendant, Plaintiff should

have been barred from introducing such evidence because the question of where the

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Opinion of the Court

tortious injury occurred was not at issue in this case and the jury was permitted to

find alienation of affection based upon actions that occurred in Nevada. We disagree

with Defendant.

To support his argument, Defendant cites two cases: Darnell v. Rupplin, 91

N.C. App. 349, 371 S.E.2d 743 (1988) and Jones v. Skelley, 195 N.C. App. 500, 673

S.E.2d 385 (2009). Defendant’s reliance on these cases, however, is misplaced.

Defendant’s challenge is an evidentiary one. The rules Defendant cites from Darnell

and Jones concern the trial court’s determination of what substantive law applies in

an alienation of affection case and whether a plaintiff can establish a valid cause of

action for the same. See Darnell, 91 N.C. App. at 351, 371 S.E.2d at 745; Jones, 195

N.C. App. at 506, 673 S.E.2d at 389–90. Choice of law concepts are distinct from

admissibility of evidence. Consequently, we focus our attention on the relevant

inquiry—whether the evidence was admissible.

“ ‘The standard of review for admission of evidence over objection is whether it

was admissible as a matter of law, and if so, whether the trial court abused its

discretion in admitting the evidence.’ ” State v. James, 224 N.C. App. 164, 166, 735

S.E.2d 627, 629 (quoting State v. Bodden, 190 N.C. App. 505, 512, 661 S.E.2d 23, 27

(2008)). An abuse of discretion occurs where the trial court’s “ ‘ruling is manifestly

unsupported by reason or is so arbitrary that it could not have been the result of a

reasoned decision.’ ” James, at 166, 735 S.E.2d at 629 (quoting State v. Elliot, 360

N.C. 400, 419, 628 S.E.2d 735, 748 (2006)).

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Relevant evidence is “evidence having any tendency to make the existence of

any fact that is of consequence to the determination of the action more probable or

less probable than it would be without the evidence.” N.C. Gen. Stat. § 8C-1, Rule

401 (2023). “Irrelevant evidence is evidence ‘having no tendency to prove a fact at

issue in the case.’” State v. Davis, 287 N.C. App. 456, 465, 883 S.E.2d 98, 105 (2023)

(quoting State v. Hart, 105 N.C. App. 542, 548, 414 S.E.2d 364, 368 (1992)).

Generally, relevant evidence is admissible, unless the Constitution, the legislature,

or the Rules of Evidence provide otherwise. See N.C. Gen. Stat. § 8C-1, Rule 402

(2023). Additionally, under Rule 403, relevant evidence “may be excluded if its

probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by considerations of undue delay,

waste of time, or needless presentation of cumulative evidence.” N.C. Gen. Stat. §

8C-1, Rule 403 (2023).

In Darnell and Jones, each of the defendant’s out-of-state conduct was relevant

to the issue of where the tortious injury occurred—a necessary determination to

establish a valid cause of action and to ascertain which state’s law applies. See Hayes

v. Waltz, 246 N.C. App. 438, 443, 784 S.E.2d 607, 613 (2013) (explaining that a

plaintiff must show that the alienating conduct occurred in either North Carolina or

another state that recognizes the tort to establish a valid cause of action for alienation

of affection); see also Jones, 195 N.C. App. at 506, 673 S.E.2d at 389–90 (explaining

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Opinion of the Court

that the law of the state where the tortious injury occurred, that is, where the alleged

alienating conduct took place, is the applicable substantive law).

Specifically, in Darnell, the jury considered evidence of the defendant’s acts

occurring in four jurisdictions: North Carolina, Maryland, Virginia, and Washington,

D.C. 91 N.C. App. at 351, 371 S.E.2d at 745. Of these, North Carolina was the only

jurisdiction that recognized alienation of affection. Id. at 351, 371 S.E.2d at 745. On

appeal, the defendant contended that a material issue of fact existed concerning in

which jurisdiction the tort of alienation of affection took place and argued that this

issue should have been submitted to the jury for determination. Id. at 350, 371 S.E.2d

at 744. We held that “it is for the jury, considering all the evidence, to determine in

which [jurisdiction] plaintiff’s injury occurred.” Id. at 354, 371 S.E.2d at 747

(emphasis added). Notably, we did not hold, or in any way indicate, that the evidence

of the defendant’s conduct occurring in Maryland, Virginia, and Washington, D.C.

was inadmissible.

Similarly, in Jones, the defendant’s alleged alienating conduct occurred in two

states: North Carolina and South Carolina. 195 N.C. App. at 505–08, 673 S.E.2d at

389–90. Of the two, North Carolina was the only state that recognized alienation of

affection. Id. at 505, 673 S.E.2d at 389. In Jones, we concluded that the trial court

improperly granted summary judgment in favor of the defendant, explaining “a

material question of fact exists as to whether the alleged alienation of [spouse’s]

affections occurred in North Carolina or South Carolina . . . .” Id. at 507–08, 673

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S.E.2d at 389–90. Similarly, we did not hold, or in any way indicate, that the evidence

of the defendant’s South Carolina conduct was inadmissible.

Based on these cases, it is clear to us that in alienation of affection cases where

the defendant’s conduct spans multiple states, the question of where the injury

occurred is, in most instances, at issue. Therefore, it is a question for the jury

“considering all the evidence.” See Darnell, 91 N.C. App. at 371, 354 S.E.2d at 747

(emphasis added). In such cases, all of the defendant’s alleged alienating acts,

including those acts occurring in states that do not recognize the tort, are potentially

relevant for determining where the injury occurred.

Defendant, however, contends that “no such issue existed in the present case

for the jury to determine.” In other words, Defendant suggests that there was no

dispute over whether Plaintiff’s injury occurred in North Carolina, so the evidence of

his Nevada conduct should have been excluded because it could not support Plaintiff’s

claim. By doing so, Defendant necessarily concedes that the injury took place in

North Carolina. But Defendant’s assertion overlooks a critical point: the evidence of

his out-of-state conduct was admissible, regardless of whether an issue existed as to

where the injury occurred.

Here, as in Darnell and Jones, Defendant’s conduct spanned multiple states:

North Carolina, Nevada, and Colorado. Like in Darnell and Jones, North Carolina is

the only state that recognizes alienation of affection. Darnell, 91 N.C. App. at 351,

371 S.E.2d at 745; Jones, 195 N.C. App. at 505, 673 S.E.2d at 389. So, it was

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Opinion of the Court

Plaintiff’s burden to prove that the tortious injury, the alienating conduct, occurred

in North Carolina. See Bassiri v. Pilling, 287 N.C. App. 538, 546, 884 S.E.2d 165, 171

(2023) (explaining that if the defendant’s conduct spans multiple states and North

Carolina is the only state involved that recognizes the tort of alienation of affection

“the sufficiency of the claim . . . [is] dependent upon whether the alleged injury

occurred in North Carolina”). Consequently, the jury was tasked with determining

in which state the tortious injury occurred. Therefore, the evidence of Defendant’s

out-of-state conduct was admissible for this purpose. See Darnell, 91 N.C. App. at

371, 354 S.E.2d at 747.

If we were to indulge the argument that the question of where the injury

occurred was not at issue in this case, the evidence was, nonetheless, admissible

because it was relevant and not otherwise barred. See N.C. Gen. Stat. § 8C-1, Rules

401 and 402. Defendant’s Nevada conduct, “makes the existence of any fact that is

of consequence to the determination of [alienation of affection] more or less probable

than it would be without the evidence.” See N.C. Gen. Stat. § 8C-1, Rule 401. Stated

differently, Defendant’s Nevada conduct makes it more likely to be true that

Defendant “produced the loss of [Plaintiff and Wife’s] love and affection.” See Nunn,

154 N.C. App. at 533, 574 S.E.2d 35, 41–42 (citations omitted). Therefore, the

evidence was relevant and because there was no existing rule barring the evidence,

it was admissible, subject to any Rule 403 concerns. See N.C. Gen. Stat. § 8C-1, Rules

402 and 403. The trial court considered the applicable law and, in its discretion,

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determined the probative value of the evidence was not “substantially outweighed”

by the risk of “unfair prejudice, confusion of the issues, or misleading the jury . . . .”

N.C. Gen. Stat. § 8C-1, Rule 403.

If Defendant was concerned that the jury would improperly base its verdict on

acts that would not support a claim for alienation of affection, Defendant should have

requested a limiting instruction to this end; Defendant did not do so. See State v.

Coffey, 326 N.C. 268, 286, 389 S.E.2d 48, 59 (1990) (“The admission of evidence which

is competent for a restricted purpose without limiting instructions will not be held to

be error in the absence of a request by the defendant for such limiting instructions.”).

Accordingly, the trial court did not abuse its discretion by admitting the evidence.

V. Conclusion

In sum, the trial court did not violate the doctrine of issue preclusion by

admitting Plaintiff’s phone-call and location evidence, did not err by denying

Defendant’s motion for a directed verdict, did not err by sending the punitive-

damages question to the jury, and did not err by admitting evidence of Defendant’s

out-of-state conduct. The issue of whether the trial court erred by admitting evidence

from the App is not preserved for our review.

NO ERROR.

Judges ZACHARY and WOOD concur.

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