Opinion
No. COA04-445
Filed 5 April 2005
Criminal Conversation — statute of limitations — three years — discovery rule — not applicable
Plaintiff's criminal conversation claim was barred by the statute of limitations, and the trial court erred by denying defendant's motion for a directed verdict, where the alleged affair began in 1991 and ended in 1994 or 1995, plaintiff began to suspect the affair in 1996, and he did not file the complaint until 2000. The discovery exception to statutes of limitation for certain latent causes of action does not apply here since criminal conversation is specifically identified in the three-year statute of limitations. N.C.G.S. § 1-52(5).
Judge TYSON dissenting.
Appeal by defendant James Clayton Burris from judgment entered 14 May 2003 by Judge Michael E. Beale in Stanly County Superior Court. Heard in the Court of Appeals 2 December 2004.
Walker Bullard, by Daniel S. Bullard, for plaintiff-appellee. Tucker Singletary, P.A., by William C. Tucker, for defendant-appellant.
James Clayton Burris ("defendant") appeals a jury verdict whereby he was found to have engaged in criminal conversation with the spouse of Donald Eugene Misenheimer ("plaintiff"), and resulting judgment against defendant for $350,001 in damages. For the following reasons, we reverse.
Co-defendant Randall Burris is not a party to this appeal.
The factual and procedural history of this case is as follows: Plaintiff and Rebecca Ann Misenheimer ("Ms. Misenheimer") were married in 1971. Plaintiff and defendant met in the 1970s and became friends and business colleagues. Their families socialized together on occasion. In February 1996, Ms. Misenheimer told plaintiff that she wanted a divorce. On 15 March 1997, Ms. Misenheimer moved out of the family home and separated from plaintiff. Their divorce was made final in 2000. On 12 April 2000, plaintiff filed the underlying complaint against defendant alleging alienation of affections and criminal conversation with Ms. Misenheimer. The case proceeded to trial on 17 February 2003. At the close of plaintiff's evidence defendant moved for directed verdict, arguing that plaintiff failed to demonstrate that he filed the complaint within three years of the date of the alleged affair between defendant and Ms. Misenheimer, as required by the statute of limitations. Plaintiff counterargued that the "discovery rule" provided in N.C. Gen. Stat. § 1-52(16) applies in this case, and that the statute of limitations should not be measured by the date of the extra-marital relationship, but by the date that plaintiff became aware of the extra-marital relationship. The trial court issued the following ruling:
the court is going to deny the motion to dismiss at the close of the plaintiff's evidence on the claim against Randall Burris for criminal conversation, and the claim against Clayton Burris on criminal conversation. The court, finding that there is no specific case that has said that 1-52.16 does not apply in this situation, and in light of other cases interpreting the statute, the court denies the motion to dismiss those charges, finding that there's evidence from which the jury could believe that the injury to the plaintiff became apparent or had reasonably become apparent within three years prior to the time he instituted the action.
The trial court granted directed verdict on the issue of alienation of affections.
Defendant presented his evidence, at the close of which he renewed his motion for directed verdict on the issue of criminal conversation. The trial court denied defendant's motion and submitted the case to the jury to deliberate on the following pertinent issues: (1) "Did the Defendant, Clayton Burris, commit criminal conversation with the Plaintiff's spouse?" (2) "If so, did the Plaintiff commence this action against the Defendant, Clayton Burris, before the expiration of the three year statute of limitations?" (3) "If so, what amount, if any, is the Plaintiff entitled to recover from the Defendant, Clayton Burris, for criminal conversation?" (4) "If so, is the Defendant, Clayton Burris, liable to Plaintiff for punitive damages?" (5) "If so, what amount of punitive damages, if any, does the jury in its discretion award to the Plaintiff?"
The jury found that defendant engaged in criminal conversation with Ms. Misenheimer, and that plaintiff's action was commenced within the statute of limitations. The jury awarded plaintiff $100,001 in actual damages and $250,000 in punitive damages. It is from this verdict that defendant appeals.
The dispositive issue on appeal is whether the trial court erred by ruling that the discovery rule applies in actions for criminal conversation.
Criminal conversation is a common law tort claim for adultery. Johnson v. Pearce, 148 N.C. App. 199, 200, 557 S.E.2d 189, 190 (2001). The elements of criminal conversation are (1) "`the actual marriage between the spouses;'" and (2) "`sexual intercourse between defendant and the plaintiff's spouse during the coverture.'" Id., at 200-01, 557 S.E.2d at 190 (quoting Brown v. Hurley, 124 N.C. App. 377, 380, 477 S.E.2d 234, 237 (1996)). A plaintiff must file an action within three years for "criminal conversation, or for any other injury to the person or rights of another, not arising on contract and not hereafter enumerated." N.C. Gen. Stat. § 1-52(5) (2003). The discovery rule is an exception to statutes of limitation that apply to certain latent causes of action. The discovery rule provides that
[u]nless otherwise provided by statute, for personal injury or physical damage to claimant's property, the cause of action . . . shall not accrue until bodily harm to the claimant or physical damage to his property becomes apparent or ought reasonably to have become apparent to the claimant, whichever event first occurs.
N.C. Gen. Stat. § 1-52(16) (2003) (emphasis added). This Court has held that § 1-52(16) does not apply to causes of action where the limitation period is provided by statute. See Marshburn v. Associated Indemnity Corp., 84 N.C. App. 365, 371-72, 353 S.E.2d 123, 127-28 (1987) (The discovery rule does not apply to claims for losses covered by an insurance policy because the limitation period is "otherwise provided by statute" in N.C. Gen. Stat. § 1-52(12)). Since the cause of action for criminal conversation is specifically identified in the three-year statute of limitations contained in § 1-52(5), the discovery exception does not apply to criminal conversation cases.
In resolving this issue, we are further guided by this Court's ruling in Coachman v. Gould, 122 N.C. App. 443, 470 S.E.2d 560 (1996). In Coachman, the defendant and the plaintiff's wife had a sexual relationship that ended in 1988, the year that plaintiff and his wife married. 122 N.C. App. at 444-46, 470 S.E.2d at 561-63. The sexual relationship between defendant and the plaintiff's wife "possibly overlapped a period in which plaintiff and [his wife] were married." 122 N.C. App. at 445, 470 S.E.2d at 562. After 1988, the plaintiff's wife maintained a relationship with the defendant by engaging in several telephone conversations with him. 122 N.C. App. at 446, 470 S.E.2d at 563. The plaintiff filed a complaint for criminal conversation in 1993. 122 N.C. App. at 446, 470 S.E.2d at 563. Citing § 1-52(5), this Court held that with regard to the sexual relationship between the defendant and the plaintiff's wife in 1988, the plaintiff's cause of action was barred by the three-year statute of limitations. 122 N.C. App. at 446, 470 S.E.2d at 562 ("Since this particular relationship allegedly occurred in 1988 at the latest, and plaintiff's complaint was not filed until 1993, the statute of limitations bars this act from constituting a cause of action relevant to the instant case."). We further held that with regard to the telephone conversations that took place after 1988, the plaintiff failed to prove all of the elements of criminal conversation, i.e., he not did demonstrate that his wife engaged in sexual intercourse with the defendant during that time. 122 N.C. App. at 446, 470 S.E.2d at 563. For these reasons, we affirmed the trial court's summary judgment in favor of the defendant.
In the present case, the evidence presented tends to show that defendant's alleged affair with Ms. Misenheimer began in 1991 and ended in 1994 or 1995. The evidence also tends to show that plaintiff began to suspect the affair in 1996, well within the statute of limitations. However, plaintiff did not file the complaint in this action until 12 April 2000, five years after the relationship between defendant and Ms. Misenheimer ended and two years after the statute of limitations expired in 1998.
Guided by the aforementioned statutory and case law, we conclude that in the present case, the statute of limitations bars plaintiff's cause of action for criminal conversation. Thus, the trial court erred by denying defendant's motion for directed verdict. We reverse the trial court's order and remand this case to the trial court for proceedings not inconsistent with this opinion.
REVERSED.
Judge GEER concurs.
Judge TYSON dissents.