Opinion
No. COA14–936.
02-17-2015
Brandy SIMS, Plaintiff, v. James R. BECKNELL, Defendant.
No brief filed on behalf of plaintiff. James, McElroy & Diehl, P.A., by Preston O. Odom, III and John R. Buric, for defendant.
No brief filed on behalf of plaintiff.
James, McElroy & Diehl, P.A., by Preston O. Odom, III and John R. Buric, for defendant.
INMAN, Judge.
Defendant James R. Becknell (“defendant”) appeals from a No–Contact Order for Stalking (the “no-contact order”). On appeal, defendant argues that: (1) the no-contact order should be vacated because the trial court lacked subject matter jurisdiction; (2) the trial court erred by refusing to admit into evidence an exhibit showing the common area of the subdivision; and (3) the trial court erred in finding sufficient cause to issue a no-contact order.
After careful, pursuant to Fansler v. Honeycutt, 221 N.C.App. 226, 728 S.E.2d 6 (2012), we vacate the no-contact order and dismiss plaintiff's action.
Background
On 5 May 2014, plaintiff filed complaints for no-contact orders against defendant and defendant's wife, Susan Becknell (“Ms.Becknell”). The matter came on for hearing on 13 May 2014. The evidence presented at the hearing tended to show the following: Plaintiff, her two daughters, defendant, and Ms. Becknell lived in the Woodcroft at Davis Lake subdivision (“Woodcroft”) in Charlotte, North Carolina. Plaintiff testified that when she moved into the subdivision in 2012, both defendant and his wife were “very unwelcoming [and] unfriendly.” Plaintiff also testified that sometime in January or February 2013, defendant began offering her money to see her naked, a proposition that she refused. According to plaintiff, a few days later, defendant began throwing his dog poop bags on her front steps. Moreover, plaintiff claimed that defendant and Ms. Becknell harassed her by saying things such as: “you're just a renter, you don't have no rights”; “you need to take your Yankee black self back up north where you belong”; “[t]his ain't no hood, this ain't no ghetto[.]” Plaintiff also alleged that defendant was “peeping” in her windows and refusing to leave her property.
At the hearing, defendant denied making any threats, calling plaintiff any racial slurs, peeping in her windows, or offering her money to see her naked. Instead, defendant contends that he only had two altercations with plaintiff, both of which involved the common area of Woodcroft which may be used by everyone in the subdivision. These altercations, according to defendant, occurred when defendant and Ms. Becknell were walking their dogs in the common area of the subdivision, an area that plaintiff believes is her property and not for common use.
On 13 May 2014, the trial court issued an order requiring that defendant (1) refrain from visiting, assaulting, molesting, or interfering with plaintiff; (2) cease stalking plaintiff; (3) cease harassing plaintiff; (4) stop abusing or injuring plaintiff; (5) refrain from contacting plaintiff by telephone, written communication, or electronic means; and (6) refrain from entering or remaining present at plaintiff's residence, place of employment, or within 15 yards of plaintiff's front door. The trial court dismissed plaintiff's complaint against Ms. Becknell. Defendant timely appealed.
Analysis
Although defendant did not raise the issue of subject matter jurisdiction at trial, “[t]he question of subject matter jurisdiction may be raised at any time, even in the Supreme Court.” Lemmerman v. A.T. Williams Oil Co., 318 N.C. 577, 580, 350 S.E.2d 83, 85 (1986). In the context of civil no-contact orders, this Court recently held that, pursuant to the statutory language of N.C. Gen.Stat. § 50C–2, trial courts do not obtain subject matter jurisdiction over unverified complaints. Fansler v. Honeycutt, 221 N.C.App. 226, 230, 728 S.E.2d 6, 9 (2012). In Fansler, 221 N.C.App. at 226, 728 S.E.2d at 7, the plaintiffs, Mr. and Ms. Fansler, had each prepared a complaint for a no-contact order using the standard, preprinted form AOC–CV–520 against the defendant. The verification section of form AOC–CV–520 contains a section for the complainant to sign his or her name indicating that he or she swears “that the matters and things alleged in the Complaint and Motion are true[,]” a section in which an officer of the court authorized to administer oaths or notary indicates that the complaint was sworn and subscribed to by the complainant, and a related subsection containing boxes labeled “Deputy CSC,” “Clerk of Court,” “District Court Judge,” “Assistant CSC,” “Designated Magistrate,” and “Notary” for the officer or notary to indicate his or her title. Id.at 229–30, 728 S.E.2d at 8–9.
The verification section of Mr. Fansler's complaint contained a date, his signature, and a signature in the block intended for the person before whom the plaintiff had executed his verification; however, the block indicating the title of the person before whom the verification was executed was left blank. Id.at 230, 728 S.E.2d at 9. In Ms. Fansler's complaint, the verification section only contained the date and signature of the plaintiff. Id.This Court held:
we are unable to determine if either of Plaintiffs' complaints had been verified before “a notary public or other officer of the court authorized to administer oaths” as required by N.C. Gen.Stat. § 50C–2 and N.C. Gen.Stat. § 1A–1, Rule 11. 1 G. Gray Wilson, North Carolina Civil Procedure§ 11–7, at 196 (2d ed.1995). Thus, given the absence of any indication that either of Plaintiffs' complaints had been properly verified, we hold that the trial court never obtained jurisdiction over the subject matter of these cases, that the trial court's orders should be vacated, and that both cases must be dismissed.
Id.
Here, plaintiff also used a preprinted form AOC–CV–520. Although the verification section contains a date, plaintiff's signature, and a signature of the person before whom the complaint was verified, the block containing boxes for the title of the person with whom the complaint was executed was left blank. Thus, according to Fansler, id.,which we are bound by, this Court is “preclude[d][ ] from determining that [plaintiff's] verification had been executed before an individual authorized to administer an oath[,]” Fansler, 221 N.C.App. at 230, 728 S.E.2d at 9. See also In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (“Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.”). Thus, the trial court never obtained subject matter jurisdiction over plaintiff's case since her complaint was not properly verified, the trial court's order should be vacated, and the case must be dismissed. Consequently, it is not necessary to address defendant's remaining arguments on appeal.
Conclusion
Based on the foregoing reasons, we vacate the no-contact order and dismiss plaintiff's action.
VACATED AND DISMISSED.
Judges STEELMAN and DIETZ concur.
Report per Rule 30(e).
Opinion
Appeal by defendant from order entered 13 May 2014 by Judge Ty Hands in Mecklenburg County District Court. Heard in the Court of Appeals 21 January 2015.