Opinion
No. COA12–1352.
2013-05-21
John B. ROBERTS, Plaintiff, v. Laura W. HUCKABEE, and Teresa McInerney, Defendants.
Smith, James, Rowlett & Cohen, LLP, by Norman B. Smith, for Plaintiff. N. Joanne Foil, for Defendant Laura W. Huckabee.
Appeal by Plaintiff from order entered 9 August 2012 by Judge Orlando F. Hudson, Jr., in Orange County Superior Court. Heard in the Court of Appeals 27 March 2013. Smith, James, Rowlett & Cohen, LLP, by Norman B. Smith, for Plaintiff. N. Joanne Foil, for Defendant Laura W. Huckabee.
DILLON, Judge.
John B. Roberts (Plaintiff) filed this action in Orange County Superior Court alleging the following six claims for relief against his former wife, Laura W. Huckabee (Defendant): fraud, abuse of process, intentional infliction of emotional distress, negligent infliction of emotional distress, civil conspiracy, and tortious interference with familial rights. Each of these claims relates to the parties' ongoing domestic action (Domestic Action) commenced in Durham County District Court in 2009. Plaintiff appeals from the trial court's order dismissing all of his claims in the present case . For the reasons stated below, we affirm the order of the trial court.
Plaintiff also asserted claims in this case against his children's court-appointed therapist, Teresa McInerney. Plaintiff has not appealed from the trial court's order dismissing his claims against Ms. McInerney, however, and, accordingly, this appeal pertains only to Plaintiff's claims against Defendant.
I. Factual & Procedural Background
Plaintiff and Defendant were married in August 1998 and have two children. Following their separation in December 2008, Plaintiff and Defendant executed an agreement regarding equitable distribution, child custody, and child support, which was embodied in a consent order (Consent Order) entered in the Domestic Action on 21 January 2010. The Consent Order awarded the parties joint legal custody of their two minor children; however, Defendant was awarded primary physical custody, and Plaintiff's visitation rights were contingent upon, inter alia, his participation in regular psychiatric treatment and drug screening.
On 2 February 2011, Durham County District Court Judge James T. Hill entered an order finding Plaintiff in willful contempt (Contempt Order) of the prior Consent Order for failing to pay child support and his children's medical and dental expenses, “interfering with the children's therapist,” and “making disparaging remarks to the children regarding [Defendant] and involvement of the children in this litigation.” As a result, Judge Hill restricted Plaintiff's visitation rights, awarded Defendant attorneys' fees, and stated that the court would “reconsider [Plaintiff's] visitation schedule at such time that the Court can hear from the minor children's court-appointed therapist, Teresa M. McInerney....”
On 17 February 2011, in response to a motion filed by Defendant for emergency ex parte relief, Judge Hill entered an order suspending Plaintiff's visitation rights, finding that probable cause existed to believe that Plaintiff was not participating in psychiatric treatment and drug screening as required under the Consent Order. On 1 March 2011, Judge Hill extended the emergency suspension of Plaintiff's visitation rights and further found that Plaintiff “continue[d] to be in willful contempt of” the court's prior orders. On 9 March 2011, Judge Hill entered a Commitment Order for Civil Contempt finding that Plaintiff had “flagrantly violated” the Contempt Order by failing to pay past due child support, medical expenses, and therapy costs for his children.
On 23 March 2012, approximately one year after Judge Hill had entered the four orders described above, Plaintiff filed two motions in the Domestic Action seeking restoration of his child visitation rights and recusal of Judge Hill from further involvement in the case, claiming that Judge Hill had “evinced obvious and open hostility against [Plaintiff;] ... ha[d] made decisions with respect to aspects of this case, without any notice to [Plaintiff] or his attorney[; ... and] ha [d] improperly declared and decided matters in this case, while at the same time maintaining an active social relationship with members of [Defendant's] family ....“ On 26 March 2012, while these motions were pending in the Domestic Action, Plaintiff filed the instant action against Defendant in Orange County Superior Court.
On 22 May 2012, Defendant filed a motion to dismiss Plaintiff's claims in this case pursuant to Rules 12(b)(1) and 12(b)(6) of the North Carolina Rules of Civil Procedure for lack of subject matter jurisdiction and for failure to state a claim for which relief can be granted. By order entered 9 August 2012, Superior Court Judge Orlando Hudson granted Defendant's motion to dismiss Plaintiff's claims. From this order, Plaintiff appeals.
II. Analysis
On appeal, Plaintiff argues that the trial court erred in dismissing his claims. We note that the trial court did not specify its basis for dismissal with respect to each particular claim. Upon review, we conclude that the trial court correctly dismissed Plaintiff's fraud claim for lack of subject matter jurisdiction and, further, that the trial court correctly dismissed Plaintiff's remaining claims for failure to state a claim for which relief can be granted.
A. Subject Matter Jurisdiction
We first address the issue of whether the Orange County Superior Court had subject matter jurisdiction over Plaintiff's claims. Plaintiff contends that his claims were “within the superior court's jurisdiction” and that “the superior court ha [d] the power and the duty to try the case[.]” Defendant, on the other hand, argues that the Durham County District Court had exclusive jurisdiction over Plaintiff's claims because “[n]othing in the Plaintiff's instant Complaint can be divorced from the merits of the proceedings in [the Domestic Action].”
Subject matter jurisdiction is “a threshold requirement for a court to hear and adjudicate a controversy brought before it.” In re M.B., 179 N.C.App. 572, 574, 635 S.E.2d 8, 10 (2006). Moreover, subject matter jurisdiction is conferred upon our Courts by either the North Carolina Constitution or our General Statutes. Harris v. Pembaur, 84 N.C.App. 666, 667, 353 S.E.2d 673, 675 (1987). Our General Statutes describe the subject matter jurisdiction of the district court as follows:
The district court division is the proper division without regard to the amount in controversy, for the trial of civil actions and proceedings for annulment, divorce, equitable distribution of property, alimony, child support, child custody and the enforcement of separation or property settlement agreements between spouses, or recovery for the breach thereof.
N.C. Gen.Stat. § 7A–244 (2011). In Hudson Int'l, Inc. v. Hudson, 145 N.C.App. 631, 550 S.E.2d 571 (2001), we held that when “an action listed in section 7A–244 has been previously filed in district court and another action relating to the subject matter of the previously filed action is then filed in superior court, the district court's jurisdiction over the subject matter has already been invoked by the parties to the first action. It follows that the superior court does not have jurisdiction in the subsequently filed action, irrespective of the parties to the first action.” Id. at 637, 550 S.E.2d at 575;see also Garrison v. Garrison, 90 N.C.App. 670, 672, 369 S.E.2d 628, 629 (1988) (holding that “[t]he superior court has no authority to partition marital property ... where ... the jurisdiction of the district court has been properly invoked to equitably distribute such marital property”). More recently, in Burgess v. Burgess, 205 N.C.App. 325, 698 S.E.2d 666 (2010), we clarified our prior decisions, explaining that “[a]t the core of Garrison and Hudson were two principles: (1) the same property was the subject of both the superior and district court actions, and (2) the relief sought and available was similar in each suit.” Id. at 328–29,698 S.E.2d at 669. In Burgess, the former husband and wife were parties to an equitable distribution action in district court in which ownership of their jointly-owned company was at stake. Id. at 326, 698 S.E.2d at 667. The plaintiff-wife subsequently filed claims in superior court seeking divestiture of her former husband's shares in the company and asserting a shareholder derivative action alleging breach of fiduciary duty and requesting an inspection and accounting. The Burgess court held that the superior court lacked jurisdiction over the plaintiff's divestiture claim, as that claim was “squarely addressed in her equitable distribution action.” Id. at 330, 698 S.E.2d at 670. However, the Burgess court concluded that the superior court could properly exercise jurisdiction over the remaining claims, as those claims did “not concern the division of marital property” and were “outside the scope of [N.C. Gen.Stat. § 50–20,]” which governs the equitable distribution of marital property. Id. at 331–32, 698 S.E.2d at 670–71.
Here, Plaintiff's fraud claim involves a life insurance policy that Plaintiff alleges Defendant “concealed” from him and failed to disclose in the “lists of marital property she had prepared and submitted” in the Domestic Action. Plaintiff seeks relief in the form of monetary damages representing the extent to which he was damaged in the equitable distribution of the parties' marital property as a consequence of Defendant's alleged concealment of the life insurance policy. We note that the appellate record includes Defendant's response to Plaintiff's discovery request in the Domestic Action—which was provided by Defendant months before the Consent Order was entered—in which Defendant identified the existence of the life insurance policy. Regardless, the parties have invoked the jurisdiction of the district court to equitably distribute their marital property pursuant to the Consent Order, and, accordingly, the district court retains exclusive jurisdiction over this matter.
With respect to Plaintiff's remaining claims, however, we conclude that the superior court (the trial court for purposes of the case sub judice ) could have properly exercised concurrent subject matter jurisdiction. While it is true that Plaintiff's claims for abuse of process, intentional and negligent infliction of emotional distress, civil conspiracy, and tortious interference with familial rights each relate to the parties' litigation in the Domestic Action, Burgess dictates that dismissal in this context is proper only where the relief sought in the superior court action is similar to the relief sought and available in the district court action. Burgess, 205 N.C.App. at 328–29, 698 S.E.2d at 669. Here, Plaintiff's remaining claims each seek relief in the form of damages, whereas the Domestic Action pertains only to child custody and equitable distribution. Accordingly, we proceed to address the validity of Plaintiff's remaining claims in the context of Defendant's motion to dismiss pursuant to Rule 12(b)(6).
B. Defendant's Rule 12(b)(6) Motion
The following standard of review governs our examination of Defendant's motion to dismiss Plaintiff's claims pursuant to Rule 12(b)(6):
A motion to dismiss under N.C. R. Civ. P. 12(b)(6) is the usual and proper method of testing the legal sufficiency of the complaint. In reviewing a trial court's Rule 12(b)(6) dismissal, the appellate court must inquire whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory. Rule 12(b)(6) generally precludes dismissal except in those instances where the face of the complaint discloses some insurmountable bar to recovery. Dismissal is proper, however, when one of the following three conditions is satisfied: (1) the complaint on its face reveals that no law supports the plaintiff's claim; (2) the complaint on its face reveals the absence of facts sufficient to make a good claim; or (3) the complaint discloses some fact that necessarily defeats the plaintiff's claim.
Newberne v. Dep't of Crime Control & Pub. Safety, 359 N.C. 782, 784, 618 S.E.2d 201, 203–04 (2005) (citations and quotation marks omitted).
1. Abuse of Process
Plaintiff argues that the trial court erred in dismissing his claim for abuse of process. We disagree.
“ ‘Abuse of process is the misapplication of civil or criminal process to accomplish some purpose not warranted or commanded by the process.’ “ Pinewood Homes, Inc. v. Harris, 184 N.C.App. 597, 602, 646 S.E.2d 826, 831 (2007) (citation omitted). This Court has articulated the requirements for stating a claim for abuse of process as follows:
In order to state a claim for the tort of abuse of process, plaintiffs must sufficiently allege (1) an ulterior motive, and (2) an act in the use of the legal process not proper in the regular prosecution of the proceeding. The ulterior motive requirement is satisfied when the plaintiff alleges that the prior action was initiated by the defendant or used by him to achieve a purpose not within the intended scope of the process used. The act requirement is satisfied when the plaintiff alleges that during the course of the prior proceeding, the defendant committed some wilful act whereby he sought to use the proceeding as a vehicle to gain advantage of the plaintiff in respect to some collateral matter.
Hewes v. Wolfe, 74 N.C.App. 610, 614, 330 S.E.2d 16, 19 (1985) (citations omitted). For example, in Hewes, we held that a complaint alleging that “defendants maliciously filed notices of lis pendens and notices of lien on property owned by plaintiffs for the purpose of injuring and destroying the credit business of the plaintiffs and in general to oppress the plaintiffs ... sufficiently allege[d] an ulterior motive and a wilful act not proper in the regular course of defendants' civil proceeding [in that] defendants allegedly filed the notice of lis pendens in order to coerce plaintiffs and to achieve a purpose for which lis pendens was never intended.” Id. (internal quotation marks omitted). Similarly, in Chidnese v. Chidnese, 210 N.C.App. 299, 708 S.E.2d 725 (2011), we held that the plaintiff sufficiently alleged an action for abuse of process where the defendant had obtained a restraining order and initiated criminal trespass charges against the plaintiff merely to “harass, inconvenience, and annoy plaintiff, and to punish her for separating from [the defendant's client].” Id. at 313, 708 S.E.2d at 736;see also Pinewood Homes, Inc., 184 N.C.App. at 603, 646 S.E.2d at 831 (holding that the complaint sufficiently stated a claim for abuse of process where it alleged that the defendant had sought an injunction merely to coerce the plaintiffs to pay a judgment for which they were not responsible and to oppress the plaintiffs' business activities until the judgment was paid).
Here, our review of Plaintiff's complaint reveals that the complaint fails to sufficiently allege an action for abuse of process. The complaint alleges that “[t]he process invoked against plaintiff by defendant ... consisted of motions, orders to show cause, and hearing notices” and that Defendant “had an ulterior purpose in causing the process to be issued against plaintiff, which was separate from and collateral to the normal and regular purpose of the process, in that defendant ... desired wrongfully to cut off all of plaintiff's communications with his children.” Essentially, Plaintiff alleges that Defendant has used the legal process in order to deprive him of any contact with his children. The fallacy in Plaintiff's contention is that this alleged “ulterior motive” is, in fact, the intended and proper purpose of the processes employed by Defendant. In other words, Defendant has not used the legal processes to “gain an advantage over plaintiff in a collateral matter.” See Chidnese, 210 N.C.App. at 314, 708 S.E.2d at 736. Accordingly, this contention is overruled.
2. Intentional Infliction of Emotional Distress
Plaintiff next contends that the trial court erred in dismissing his claim for intentional infliction of emotional distress. We disagree.
“The essential elements of an action for intentional infliction of emotional distress are ‘1) extreme and outrageous conduct by the defendant 2) which is intended to and does in fact cause 3) severe emotional distress.’ “ Waddle v. Sparks, 331 N.C. 73, 82, 414 S.E.2d 22, 27 (1992) (citation omitted). “A claim for intentional infliction of emotional distress exists when a defendant's conduct exceeds all bounds usually tolerated by decent society....” Watson v. Dixon, 130 N.C.App. 47, 52, 502 S.E.2d 15, 19 (1998) (quotation marks and citations omitted). Conduct is deemed extreme and outrageous when it is “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Briggs v. Rosenthal, 73 N.C.App. 672, 677, 327 S.E.2d 308, 311 (1985).
Here, Plaintiff argues that his complaint sufficiently states a claim for intentional infliction of emotional distress and points to the allegations in his complaint that Defendant “engaged in a pattern of conduct, aimed at preventing plaintiff and the children from being in each other's physical presence, and preventing all telephone and electronic communication between them.” Plaintiff also cites the allegation in his complaint that Defendant “succeeded in achieving [the goal of preventing Plaintiff from contacting his children] by means of an order entered in the case ..., which cut off all communication between plaintiff and each of his children except as could be arranged through defendant Teresa McInerney.” We believe that these allegations merely describe Defendant's use of proper legal channels in connection with the child custody proceedings in the Domestic Action. As such, they are clearly insufficient to allege the “extreme and outrageous” conduct required to state a claim for intentional infliction of emotional distress. See, e.g., Watson, 130 N.C. at 53, 502 S.E.2d at 20 (holding that the plaintiff's complaint described “extreme and outrageous” conduct sufficient to state a claim for intentional infliction of emotional distress where the complaint alleged that the defendant had “frightened and humiliated [the plaintiff] with cruel practical jokes, which escalated to obscene comments and behavior of a sexual nature, which then escalated to unwanted touching of her person, until finally culminating in veiled threats to her personal safety”). This contention is accordingly overruled.
3. Negligent Infliction of Emotional Distress
Plaintiff argues in the alternative that “if it should be determined that [Defendant is] not liable to plaintiff for intentional infliction of emotion distress, then she should be held liable for negligent infliction of emotional distress, because she acted negligently with respect to plaintiff by failing to follow her duty to use ordinary care to protect him from injury and damage.” Plaintiff “incorporates the same factual allegations” articulated supra in support of his intentional infliction of emotional distress claim as supportive of his claim for negligent infliction of emotional distress claim. This argument is meritless.
Our cases have established that to state a claim for negligent infliction of emotional distress, a plaintiff must allege that (1) the defendant negligently engaged in conduct, (2) it was reasonably foreseeable that such conduct would cause the plaintiff severe emotional distress (often referred to as “mental anguish”), and (3) the conduct did in fact cause the plaintiff severe emotional distress.
Johnson v. Ruark Obstetrics & Gynecology Assocs., P.A., 327 N.C. 283, 304, 395 S.E.2d 85, 97 (1990).
In the instant case, we discern no negligence in Defendant's conduct (as alleged in Plaintiff's complaint), which, as stated above, essentially consisted of bringing and maintaining a child custody action in accordance with our Rules of Civil Procedure. We fail to see how the alleged conduct amounts to a breach of any duty owed by Defendant to Plaintiff, and Plaintiff has not presented any pertinent authority to persuade us otherwise. Accordingly, this contention is overruled.
4. Civil Conspiracy
Plaintiff next contends that the trial court erred in dismissing his claim for civil conspiracy. We disagree.
“This Court has defined civil conspiracy as ‘(1) an agreement between two or more individuals; (2) to do an unlawful act or to do a lawful act in an unlawful way; (3) resulting in injury to plaintiff inflicted by one or more of the conspirators; and (4) pursuant to a common scheme.’ “ Elliott v. Elliott, 200 N.C.App. 259, 264, 683 S.E.2d 405, 409 (2009) (citation omitted).
Here, Plaintiff sets forth the following allegations in his complaint in support of his civil conspiracy claim:
42. Defendant Laura W. Huckabee conspired with defendant Teresa McInerney completely to cut off plaintiff from visitation and communication with his children, which amounts to an unlawful act.
43. Defendant Laura W. Huckabee and defendant Teresa McInerney each committed overt acts in furtherance of the aims of the unlawful agreement.
44. As a proximate result of the acts committed in furtherance of the aims of the unlawful agreement, plaintiff suffered actual injury, by being deprived of contact and communication with his children, and suffering psychological injury as a consequence, consisting of adjustment disorder, anxiety, and depression.
45. Because [Defendant] acted maliciously and with the intent to harm and cause injury to plaintiff, she is also liable for punitive damages relating to the conspiracy.
Our review of Plaintiff's allegations—including those set forth in the introductory section of Plaintiff's complaint—reveals that Plaintiff has failed to allege any specific overt act in furtherance of the alleged conspiracy between Defendant and Ms. McInerney. See Dove v. Harvey, 168 N.C.App. 687, 690, 608 S.E.2d 798, 800 (2005) (quoting Fox v. Wilson, 85 N.C.App. 292, 301, 354 S.E.2d 737, 743 (1987), for the proposition that recovery arising out of a claim for civil conspiracy “must be on the basis of sufficiently alleged wrongful overt acts”). Plaintiff's allegations that Defendant and Ms. McInerney “each committed overt acts in furtherance of the aims of the unlawful agreement” constitute legal conclusions, which, by their nature, cannot serve as the requisite factual basis to state a claim for relief. See Elliot, 200 N.C.App. at 266–67, 683 S.E.2d at 410–11 (quoting Shope v. Boyer, 268 N.C. 401, 405, 150 S.E.2d 771, 774 (1966), for the proposition that our Courts “must judge the sufficiency of the complaint by the facts alleged and not by pleader's conclusions” and holding that the complaint at issue failed to state a claim for civil conspiracy due to its “absence of facts sufficient to make a valid claim”). We note that Plaintiff's argument on appeal mirrors the conclusory allegations set out in his complaint and fails to cite any specific facts in support of his claim for civil conspiracy. Accordingly, this contention is overruled.
5. Tortious Interference with Familial Rights
Finally, Plaintiff contends that the trial court erred in dismissing his claim for tortious interference with familial rights “since Plaintiff alleged all of the elements of a claim falling within the general doctrine of interference with personal privacy[.]” In other words, Plaintiff does not contend that his complaint sufficiently stated a claim for tortious interference with familial rights, but attempts to re-couch the allegations in his complaint in terms sufficient to state a claim for the tort of invasion of privacy. Plaintiff posits that his “rights to visit and communicate with his children are within the zone of privacy protected by both the constitution and the common law, and a tortious deprivation of these rights is an actionable invasion of privacy by intrusion into the private affairs of another[.]” We are not persuaded, however, as Plaintiff's allegations again consist of mere legal conclusions, see Elliot, 200 N.C.App. at 266–67, 683 S.E.2d at 410–411, and, moreover, fail to describe any conduct on Defendant's part that could reasonably be construed as outside the proper course of conduct inherent in bringing and maintaining child custody-related proceedings. We also note that the conduct serving as the basis for Plaintiff's invasion of privacy claim bears little resemblance to the examples of recognized invasion of privacy claims cited by Plaintiff in support of his position, such as “physically invading the home or other private place, eavesdropping, peering through windows, persistent telephoning, unauthorized prodding into a bank account, opening personal mail, [and] examining without authority the contents of one's personnel file.” Plaintiff offers no authority in support of his position that Defendant's conduct in connection with the district court proceedings in this case somehow amounted to an invasion of privacy, and this Court is aware of none. This contention is accordingly overruled.
In light of the foregoing, the trial court's order dismissing Plaintiff's claims is hereby
AFFIRMED. Judges CALABRIA and ERVIN concur.
Report per Rule 30(e).