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    "judges": [
      "Judges BRYANT and CALABRIA concur."
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    "parties": [
      "MARY BETH FOX, Plaintiff v. TRACY GIBSON, Defendant"
    ],
    "opinions": [
      {
        "text": "WYNN, Judge.\nTo establish in personam jurisdiction over a non-resident defendant, the plaintiff must establish statutory authority and sufficient minimum contacts between the defendant and the forum state so as not to offend the defendant\u2019s federal due process rights. In this alienation of affections action, Defendant argues that there is neither statutory authority nor sufficient minimum contacts to exercise personal jurisdiction over her in North Carolina. Because N.C. Gen. Stat. \u00a7 1-75.4(3) (2005) grants statutory authority for personal jurisdiction in this case, and Defendant\u2019s telephone conversations, e-mails, and sexual relations with Plaintiffs husband while he resided in North Carolina are sufficient minimum contacts, we affirm the trial court\u2019s denial of Defendant\u2019s motion to dismiss for lack of personal jurisdiction.\nThis appeal arises from the complaint of Mary Beth Fox against Tracy Gibson for allegedly making \u201cimproper advances to [her husband] Skip Fox in violation of [their marital relationship].\u201d Ms. Fox contended that Ms. Gibson, \u201centiced [her] husband from her and acquired an undue influence over him which was the direct cause of great marital discord between [them] and their subsequent separation.\u201d Ms. Fox further asserted that Ms. Gibson\u2019s conduct \u201cwas unprovoked and unsolicited by [her] husband and was in fact the direct and deliberate attempt on the part of [Ms. Gibson] to cause the alienation of affections between [them].\u201d\nBefore answering Ms. Fox\u2019s complaint, Ms. Gibson moved to dismiss the complaint for lack of personal jurisdiction over her. She contended in an affidavit that she lived in Georgia, not North Carolina, and had \u201cnever had sexual relations with the plaintiff\u2019s husband in North Carolina\u201d nor \u201cdone anything to avail [herself] of the laws and privileges of North Carolina.\u201d\nMs. Fox responded by producing the affidavit of her estranged husband who stated that he \u201cengaged in sexual relations with Defendant Tracy Gibson ... in the state of North Carolina during [his] marriage to Plaintiff.\u201d He further stated that he and Ms. Gibson \u201cengaged in numerous telephone conversations while she resided in Georgia and [he] resided in North Carolina\u201d and that Ms. Gibson \u201csent e-mail messages to [him] in North Carolina from the state of Georgia.\u201d\nBy order entered 30 March 2005, the trial court denied Ms. Gibson\u2019s motion to dismiss. From this order Ms. Gibson appeals.\nPreliminarily, we note that this appeal, while interlocutory, is properly before us because motions to dismiss for lack of personal jurisdiction axe statutorily deemed to be immediately appealable. N.C. Gen. Stat. \u00a7 l-277(b) (2005) (\u201cAny interested party shall have the right of immediate appeal from an adverse ruling as to the jurisdiction of the court over the person or property of the defendant[.]\u201d); Retail Investors, Inc. v. Henzlik Inv. Co., 113 N.C. App. 549, 552, 439 S.E.2d 196, 198 (1994) (holding that immediate right to appeal lies from denial of motion to dismiss for lack of personal jurisdiction).\nWe further note that, \u201cThe standard of review of an order determining personal jurisdiction is whether the findings of fact by the trial court are supported by competent evidence' in the record; if so, this Court must affirm the order of the trial court.\u201d Replacements, Ltd. v. MidweSterling, 133 N.C. App. 139, 140-41, 515 S.E.2d 46, 48 (1999) (citing Better Business Forms, Inc. v. Davis, 120 N.C. App. 498, 462 S.E.2d 832 (1995)).\nOn appeal, Ms. Gibson argues that the trial court erred in denying her motion to dismiss for lack of personal jurisdiction because (1) there is no statutory authority for personal jurisdiction; and (2) an exercise of personal jurisdiction over her violates due process of the law.\nIndeed, Ms. Gibson correctly points out that a two-step analysis applies when determining whether a court may exercise in personam jurisdiction over a non-resident defendant. First, is there statutory authority that confers jurisdiction on the court? Dillon, 291 N.C. at 675, 231 S.E.2d at 630. This is determined by looking at North Carolina\u2019s \u201clong arm\u201d statute, section 1-75.4 of the North Carolina General Statutes. Id. Second, if statutory authority confers in per-sonam jurisdiction over the defendant, does the exercise of in per-sonam jurisdiction violate the defendant\u2019s due process rights? Id.\nRegarding the statutory authority for conferring jurisdiction, Ms. Fox alleges personal jurisdiction over Ms. Gibson under North Carolina\u2019s long-arm statute, section 1-75.4 of the North Carolina General Statutes, which states in pertinent part:\n(3) Local Act or Omission. \u2014 In any action claiming injury to person or property or for wrongful death within or without this State arising out of an act or omission within this State by the defendant.\nN.C. Gen. Stat. \u00a7 1-75.4(3) (2005).\nWe recognize that \u201cthe statute requires only that the action \u2018claim\u2019 injury to person or property within this state in order to establish personal jurisdiction.\u201d Godwin v. Walls, 118 N.C. App. 341, 349, 455 S.E.2d 473, 480 (1995). The statute does not require there to be evidence of proof of such injury. Id.\nThe trial court made the following findings of fact, to which Ms. Gibson assigns error, regarding whether the claim arose from an act that occurred within North Carolina:\n9. During Mr. Fox\u2019s marriage to Plaintiff and prior to the day of separation, Defendant sent e-mail messages to Mr. Fox in North Carolina from the state of Georgia.\n10. Defendant and Mr. Fox engaged in sexual intercourse in the State of North Carolina during Mr. Fox\u2019s marriage to Plaintiff.\n12. In January 2004, Mr. Fox told Plaintiff that the cell phone he was using belonged to Defendant and that she was letting him use it.\n13. There is a direct link between Defendant\u2019s contacts with this state and the injuries alleged in Plaintiffs Complaint.\nMr. Fox\u2019s affidavit states that \u201c[d]uring my marriage to Plaintiff, Defendant sent e-mail messages to me in North Carolina from the state of Georgia.\u201d This is competent evidence to support finding of fact nine. Replacements, Ltd., 133 N.C. App. at 140-41, 515 S.E.2d at 48.\nMoreover, Mr. Fox\u2019s affidavit stated that he engaged in \u201csexual relations\u201d with Ms. Gibson in North Carolina while married to Ms. Fox; that evidence supports finding of fact ten. Nonetheless, Ms. Gibson argues that \u201c[s]exual relations could be any range of acts that would not necessarily be \u2018intercourse\u2019^]\u201d However, this Court has held that for a claim of criminal conversation to survive, \u201cplaintiff must have alleged that there were sexual relations between defendant and plaintiff\u2019s husband.\u201d Cooper v. Shealy, 140 N.C. App. 729, 733, 537 S.E.2d 854, 857 (2000) (emphasis added). It appears that this Court has previously used \u201csexual relations\u201d interchangeably with \u201csexual intercourse.\u201d See, e.g., Nunn v. Allen, 154 N.C. App. 523, 535-36, 574 S.E.2d 35, 43-44 (2002); Horner v. Byrnett, 132 N.C. App. 323, 327, 511 S.E.2d 342, 345 (1999) (\u201cIn fact, the appellate cases prove that the sexual intercourse that is necessary to establish the tort also supports an award of punitive damages: as long as there is enough evidence of criminal conversation to go to the jury, the jury may also consider punitive damages. . . . When the plaintiff proves sexual relations between the defendant and spouse, then it seems to take little else to establish both the tort and the right to punitive damages.\u201d (emphasis added and citation omitted)). Therefore, Mr. Fox\u2019s affidavit stating he had \u201csexual relations\u201d with Ms. Gibson in North Carolina while married to Ms. Fox is competent evidence to support finding of fact ten. Replacements, Ltd., 133 N.C. App. at 140-41, 515 S.E.2d at 48.\nMs. Gibson argues that the only evidence to support finding of fact twelve is inadmissible hearsay evidence. Ms. Fox states in her affidavit that Mr. Fox told her that the cell phone he had belonged to Ms. Gibson and she was letting him use it. While Ms. Fox argues that Ms. Gibson did not raise this argument to the trial court and therefore did not preserve it for review, Ms. Fox did not include a transcript of the hearing in the record on appeal. Therefore, finding of fact twelve is not supported by competent evidence and the trial court erred in making finding of fact twelve.\nFinally, Ms. Gibson argues that finding of fact thirteen is incorrect because she had no specific contacts with North. Carolina. But the trial court found that Ms. Gibson engaged in numerous telephone conversations with Mr. Fox while he resided in North Carolina; Ms. Gibson sent e-mail messages to Mr. Fox in North Carolina; and, Ms. Gibson engaged in sexual intercourse with Mr. Fox in North Carolina. This is competent evidence to support the trial court\u2019s finding that there is a direct link between Ms. Gibson\u2019s contacts with North Carolina and the injuries alleged in Ms. Fox\u2019s complaint. Replacements, Ltd., 133 N.C. App. at 140-41, 515 S.E.2d at 48.\nSince the trial court\u2019s findings of fact, ignoring finding of fact twelve, support its conclusion of law that \u201c[t]his action arises directly out of Defendant\u2019s activities within and to the state of North Carolina[,]\u201d we hold that section 1-75.4(3) of the North Carolina General Statutes confers personal jurisdiction in North Carolina. See Dillon, 291 N.C. at 675, 231 S.E.2d at 630; see also Cooper, 140 N.C. App. at 733, 537 S.E.2d at 857 (holding that claims of alienation of affections and criminal conversation are claims within the purview of section 1-75.4(3) of the North Carolina General Statutes).\nWe must next examine whether the exercise of in personam jurisdiction under the statutory authority of section 1-75.4(3) violates Ms. Gibson\u2019s due process rights. Id. at 734, 537 S.E.2d at 857. To satisfy the requirements of the due process clause, there must exist \u201ccertain minimum contacts [between the non-resident defendant and the forum] such that the maintenance of the suit does not offend \u2018traditional notions of fair play and substantial justice.\u2019 \u201d Tom Togs, Inc. v. Ben Elias Indus. Corp., 318 N.C. 361, 365, 348 S.E.2d 782, 786 (1986) (citations omitted). In determining minimum contacts, the court looks at several factors, including: 1) the quantity of the contacts; 2) the nature and quality of the contacts; 3) the source and connection of the cause of action with those contacts; 4) the interest of the forum state; and 5) the convenience to the parties. Phoenix Am. Corp. v. Brissey, 46 N.C. App. 527, 530-31, 265 S.E.2d 476, 479 (1980). These factors are not to be applied mechanically; rather, the court must weigh the factors and determine what is fair and reasonable to both parties. Id. at 531, 265 S.E.2d at 479 (citation omitted). No single factor controls; rather, all factors \u201cmust be weighed in light of fundamental fairness and the circumstances of the case.\u201d B.F. Goodrich Co. v. Tire King of Greensboro, Inc., 80 N.C. App. 129, 132, 341 S.E.2d 65, 67 (1986).\nIn examining the quantity of contacts, there is no transcript of the hearing and the complaint does not allege a specific number of contacts. However, Mr. Fox\u2019s affidavit states that he had \u201cnumerous\u201d telephone conversations with Ms. Gibson while he resided in North Carolina, along with e-mail messages, and sexual relations. While we are unaware of the specific quantity of contacts, the nature of the contacts is sufficient for purposes of section 1-75.4(3) of the North Carolina General Statutes. See Cooper, 140 N.C. App. at 735, 537 S.E.2d at 858. Additionally, the trial court found that there is a direct link between Ms. Fox\u2019s injuries and Ms. Gibson\u2019s contacts with North Carolina. See id.\nThe trial court also found that the state of Georgia has abolished the causes of action for alienation of affections and criminal conversation. In Cooper, the plaintiff could not bring the claims for alienation of affections and criminal conversation in the defendant\u2019s resident state since that state had abolished those causes of action. Id. This Court noted that \u201cNorth Carolina\u2019s interest in providing a forum for plaintiffs cause of action is especially great in light of the circumstances.\u201d Id.\nFinally, we look to the convenience of the parties. Witnesses and evidence relevant to the Foxes\u2019 marriage and cause of separation would more than likely be located in North Carolina. Additionally, Ms. Gibson resides in a nearby state causing a minimal travel burden. See id. at 735-36, 537 S.E.2d at 858.\nAs we find that sufficient minimum contacts exist so that \u201cthe maintenance of the suit does not offend \u2018traditional notions of fair play and substantial justice!,]\u2019 \u201d Tom Togs, Inc., 318 N.C. at 365, 348 S.E.2d at 786, the exercise of personal jurisdiction does not violate Ms. Gibson\u2019s due process rights. Accordingly, we hold that the trial court did not err in denying Ms. Gibson\u2019s motion to dismiss for lack of personal jurisdiction.\nAffirmed.\nJudges BRYANT and CALABRIA concur.\n. Dillon v. Numismatic Funding Corp., 291 N.C. 674, 675, 231 S.E.2d 629, 630 (1977).\n. An order is interlocutory if it is made during the pendency of an action and does not dispose .of the case but requires further action by the trial court in order to finally determine the rights of all parties involved in the controversy. See Veazey v. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950); Flitt v. Flitt, 149 N.C. App. 475, 477, 561 S.E.2d 511, 513 (2002). Generally, there is no right to immediate appeal from an interlocutory order. See N.C. Gen. Stat. \u00a7 1A-1, Bule 54(b) (2005); Veazey, 231 N.C. at 362, 57 S.E.2d at 381.\n. \u201cAdultery, alienation of affections, or criminal conversation with a wife or husband shall not give a right of action to the person\u2019s spouse. Rights of action for adultery, alienation of affections, or criminal conversation are abolished.\u201d Ga. Code Ann. \u00a7 51-1-17 (2005); see also Hyman v. Moldovan, 166 Ga. App. 891, 305 S.E.2d 648 (1983).",
        "type": "majority",
        "author": "WYNN, Judge."
      }
    ],
    "attorneys": [
      "James, McElroy & Diehl, P.A., by Preston 0. Odom, III, M. Neya Warren, and Sarah M. Brady, for plaintiff-appellee.",
      "Armstrong & Armstrong, P.A., by L. Lamar Armstrong, Jr., for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "MARY BETH FOX, Plaintiff v. TRACY GIBSON, Defendant\nNo. COA05-826\n(Filed 7 March 2006)\n1. Appeal and Error\u2014 appealability \u2014 denial of motion to dismiss \u2014 personal jurisdiction\nThe denial of a motion to dismiss for lack of personal jurisdiction is statutorily deemed to be immediately appealable. N.C.G.S. \u00a7 l-277(b).\n2. Jurisdiction\u2014 personal \u2014 order determining \u2014 standard of review\nThe standard of review of an order determining personal jurisdiction is whether the findings are supported by competent evidence.\n3. Jurisdiction\u2014 personal \u2014 motion to dismiss denied \u2014 conclusion that claim arose from activities in North Carolina\nThe trial court did not err by denying a motion to dismiss for lack of personal jurisdiction in an alienation of affections action where defendant lived in Georgia and plaintiff in North Carolina. With one exception, there was evidence to support the court\u2019s findings and its conclusion that the action arose from activities in ' North Carolina. N.C.G.S. \u00a7 1-75.4(3).\n4. Jurisdiction\u2014 minimum contacts \u2014 alienation of affections \u2014 defendant in Georgia\nSufficient contacts existed that defendant\u2019s due process rights were not violated by the exercise of in personam jurisdiction in an alienation of affections case in which defendant lived in Georgia and plaintiff in North Carolina.\nAppeal by Defendant from order entered 30 March 2005 by Judge J. Gentry Caudill in Superior Court, Mecklenburg County. Heard in the Court of Appeals 8 February 2006.\nJames, McElroy & Diehl, P.A., by Preston 0. Odom, III, M. Neya Warren, and Sarah M. Brady, for plaintiff-appellee.\nArmstrong & Armstrong, P.A., by L. Lamar Armstrong, Jr., for defendant-appellant."
  },
  "file_name": "0554-01",
  "first_page_order": 586,
  "last_page_order": 593
}
