{ "id": 4356964, "name": "KENNY RAY FANSLER and CASSANDRA M. FANSLER, Plaintiffs v. CHARLES LEONARD HONEYCUTT, Defendant", "name_abbreviation": "Fansler v. Honeycutt", "decision_date": "2012-06-05", "docket_number": "No. COA11-1451", "first_page": "226", "last_page": "230", "citations": [ { "type": "official", "cite": "221 N.C. App. 226" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "653 S.E.2d 429", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639961 ], "year": 2007, "pin_cites": [ { "page": "432" } ], "opinion_index": 0, "case_paths": [ "/se2d/653/0429-01" ] }, { "cite": "636 S.E.2d 787", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637106 ], "year": 2006, "pin_cites": [ { "page": "790", "parenthetical": "quoting Martin v. Martin, 130 N.C. 27, 28, 40 S.E. 822, 822 (1902)" } ], "opinion_index": 0, "case_paths": [ "/se2d/636/0787-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-148", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "679 S.E.2d 151", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "153", "parenthetical": "quoting N.C. Gen. Stat. \u00a7 1A-1, Rule 11(b)" } ], "opinion_index": 0 }, { "cite": "198 N.C. App. 138", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4168582 ], "year": 2009, "pin_cites": [ { "page": "141", "parenthetical": "quoting N.C. Gen. Stat. \u00a7 1A-1, Rule 11(b)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/198/0138-01" ] }, { "cite": "187 N.C. App. 416", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8374460 ], "year": 2007, "pin_cites": [ { "page": "422" } ], "opinion_index": 0, "case_paths": [ "/nc-app/187/0416-01" ] }, { "cite": "313 S.E.2d 193", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "194-95", "parenthetical": "vacating a trial court's orders for lack of subject matter jurisdiction given that the juvenile petition at issue in that case had not been signed and verified as required by the controlling statutory provisions" } ], "opinion_index": 0 }, { "cite": "67 N.C. App. 501", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526723 ], "year": 1984, "pin_cites": [ { "page": "503", "parenthetical": "vacating a trial court's orders for lack of subject matter jurisdiction given that the juvenile petition at issue in that case had not been signed and verified as required by the controlling statutory provisions" } ], "opinion_index": 0, "case_paths": [ "/nc-app/67/0501-01" ] }, { "cite": "40 S.E. 822", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1902, "pin_cites": [ { "page": "822" } ], "opinion_index": 0 }, { "cite": "130 N.C. 27", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272447 ], "year": 1902, "pin_cites": [ { "page": "28" } ], "opinion_index": 0, "case_paths": [ "/nc/130/0027-01" ] }, { "cite": "360 N.C. 588", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3787934 ], "year": 2006, "pin_cites": [ { "page": "590", "parenthetical": "quoting Martin v. Martin, 130 N.C. 27, 28, 40 S.E. 822, 822 (1902)" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0588-01" ] } ], "analysis": { "cardinality": 575, "char_count": 12169, "ocr_confidence": 0.738, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14843896304379137 }, "sha256": "aa5a442bf22cfa2e40b5ec0d38c427945685e70d8d5c3e7b75f218c0b00497e6", "simhash": "1:1b6b66e0799e5461", "word_count": 1957 }, "last_updated": "2023-07-14T16:36:11.101860+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ROBERT C. HUNTER and STROUD concur." ], "parties": [ "KENNY RAY FANSLER and CASSANDRA M. FANSLER, Plaintiffs v. CHARLES LEONARD HONEYCUTT, Defendant" ], "opinions": [ { "text": "ERVIN, Judge.\nDefendant Charles Leonard Honeycutt appeals from orders requiring him to refrain from stalking and harassing Plaintiffs Kenny Ray Fansler and Cassandra M. Fansler. On appeal, Defendant contends that (1) the trial court\u2019s conclusions that Defendant was stalking the Plaintiffs lacked adequate evidentiary support; (2) the trial court\u2019s orders failed to contain sufficiently specific findings of fact and separately stated conclusions of law as required by N.C. Gen. Stat. \u00a7 1A-1, Rule 52; and (3) Plaintiffs\u2019 complaints were not adequately verified as required by N.C. Gen. Stat. \u00a7 50C-2. After careful consideration of Defendant\u2019s challenges to the trial court\u2019s orders in light of the record and the applicable law, we conclude that the trial court\u2019s orders should be vacated and Plaintiffs\u2019 actions dismissed.\nI. Factual Background\nOn 9 August 2011, Plaintiffs filed complaints alleging that Defendant had \u201cstalked\u201d and \u201charassed]\u201d them and requesting that the trial court order him to refrain from engaging in similar conduct in the future. On the same date, Judge Jimmy L. Myers issued temporary ex parte orders providing, among other things, that Defendant cease stalking and threatening Plaintiffs.\nThe issues raised by Plaintiffs\u2019 complaints came on for hearing before the trial court at the 15 August 2011 term of Davidson County District Court. At the hearing, Mr. Fansler testified that Defendant, his former brother-in-law, had physically attacked him and his current wife, Cassandra Fansler. In addition, Mr. Fansler stated that, in the weeks preceding the filing of Plaintiffs\u2019 complaints, Defendant had \u201cfollow[ed] [him] around[,]\u201d videotaped, him while he was working, and been involved in an altercation with Mrs. Fansler at the couples\u2019 home. As a result of Defendant\u2019s actions, Mr. Fansler \u201cfelt very threatened.\u201d\nMrs. Fansler testified that Defendant and his family had \u201ccontinually stalked [her] and [her] family\u201d ever since the beginning of her relationship with Mr. Fansler. On an occasion when the physical custody of the children that Mr. Fansler had had with Defendant\u2019s sister was being transferred, Defendant assaulted Mr. Fansler with a pocket knife and then \u201cattacked [Mrs. Fansler] from behind,. .. banged [her] head on the pavement,\u201d and threatened her with the pocket knife. Mrs. Fansler also asserted that Defendant had, on a number of occasions, \u201cswerve[d]\u201d his vehicle in an apparent attempt to feign hitting her while she was driving and jogging near the home that she and Mr. Fansler shared and that Defendant would materialize while she and Mr. Fansler were present in various shops and businesses.\nDefendant, on the other hand, testified that he merely put out his arms and got between Plaintiffs and one of the children at the time the children were being transferred and that he had videotaped Mr. Fansler at work because Mr. Fansler had failed to pay child support to Defendant\u2019s sister on the grounds that he did not \u201chave any work and [could not] pay her.\u201d Finally, Defendant denied Plaintiffs\u2019 allegations that he had followed them to various shops and business, attempted to hit Mrs. Fansler with his vehicle, or threatened Mrs. Fansler with a knife.\nOn 15 August 2011, the trial court issued orders requiring that Defendant (1) refrain from visiting, assaulting, molesting, or otherwise interfering with Mrs. Fansler; (2) cease stalking and harassing Plaintiffs; (3) refrain from contacting Plaintiffs by telephone, written communication or electronic means; and (4) refrain from entering or remaining at Plaintiffs\u2019 residence or places of employment and at the home of Mr. Fansler\u2019s ex-wife, which was located near the Plaintiffs\u2019 residence. With respect to the claim advanced by Mr. Fansler, the trial court determined that \u201c[Defendant ha[d] become overly involved in his sister\u2019s custody . . . case [which rose] to the level of stalking, causing fear to [Mr. Fansler]\u201d and that Defendant was \u201cconsumed [with Mr. Fansler\u2019s] new life.\u201d With respect to the claim advanced by Mrs. Fansler, the trial court determined that \u201c[D]efendant [had] put [Mrs. Fansler] in the hospital [and Defendant] ha[d] continued to follow her and watch her at her residence.\u201d Defendant noted an appeal to this Court from the trial court\u2019s orders.\nII. Legal Analysis\nIn his brief, Defendant contends that (1) the trial court\u2019s conclusion that Defendant had been stalking Plaintiffs lacks adequate evidentiary support and that (2) the trial court\u2019s orders lack sufficiently specific findings of fact and separately stated conclusions of law as required by N.C. Gen. Stat. \u00a7 1A-1, Rule 52. We need not, however, address these components of Defendant\u2019s challenge to the trial court\u2019s orders given that Plaintiffs\u2019 complaints were not properly verified as required by N.C. Gen. Stat. \u00a7 50C-2.\nAccording to N.C. Gen. Stat. \u00a7 50C-2:\n(a) An action is commenced under this Chapter by filing a verified complaint for a civil no-contact order in district court or by filing a motion in any existing civil action, by any of the following:\n(1) A person who is a victim of unlawful conduct that occurs in this State.\n(2) A competent adult who resides in this State on behalf of a minor child or an incompetent adult who is a victim of unlawful conduct that occurs in this State.\n(emphasis added). \u201cExcept when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 11(a) (emphasis added). If an action is statutory in nature, \u201cthe requirement that pleadings be signed and verified \u2018is not a matter of form, but substance, and a defect therein is jurisdictional,\u2019 \u201d leaving a trial judge confronted with an unverified pleading devoid of subject matter jurisdiction. In re T.R.P., 360 N.C. 588, 590, 636 S.E.2d 787, 790 (2006) (quoting Martin v. Martin, 130 N.C. 27, 28, 40 S.E. 822, 822 (1902)). Put another way, \u201cwhere it is required by statute that the petition be signed and verified, these essential requisites must be complied with before the petition can be used for legal purposes,\u201d since non-compliance renders the petition \u201cincomplete and non[-]operative.\u201d In re Green, 67 N.C. App. 501, 503, 313 S.E.2d 193, 194-95 (1984) (vacating a trial court\u2019s orders for lack of subject matter jurisdiction given that the juvenile petition at issue in that case had not been signed and verified as required by the controlling statutory provisions). As a result, an unverified complaint does not suffice to afford a trial court jurisdiction over a proceeding ostensibly initiated pursuant to N.C. Gen. Stat. \u00a7 50C-2.\nAlthough N.C. Gen. Stat. \u00a7 50C-2 requires that a complaint seeking entry of a no-contact order be verified, the relevant statutory language does not delineate the components of a proper verification. For that reason, we look to the relevant provisions of the North Carolina Rules of Civil Procedure, particularly N.C. Gen. Stat. \u00a7 1A-1, Rule 11(b), for guidance in determining whether Plaintiffs\u2019 complaints were properly verified. See In re S.D. W. & H.E. W., 187 N.C. App. 416, 422, 653 S.E.2d 429, 432 (2007) (recognizing that the extent to which a petition for termination of parental rights had been properly verified should be decided based on an analysis of the applicable provisions of the North Carolina Rules of Civil Procedure given that the applicable statutory provisions requiring the filing of a verified petition did not specify the exact manner in which the petition should be verified).\n[I]f a rule or statute requires that a pleading be verified, [N.C. Gen. Stat. \u00a7 1A-1,] Rule 11(b) requires that such a pleading \u201cshall state in substance that the contents of the pleading verified are true to the knowledge of the person making the verification, except as to those matters stated on information and belief, and as to those matters he believes them to be true\u201d and requires that such a verification \u201cshall be by affidavit of the party.\u201d\nState ex rel. Johnson v. Eason, 198 N.C. App. 138, 141, 679 S.E.2d 151, 153 (2009) (quoting N.C. Gen. Stat. \u00a7 1A-1, Rule 11(b)). As a result, in the event that a pleading is statutorily required to be verified, that pleading \u201cmust be sworn to before a notary public or other officer of the court authorized to administer oaths.\u201d 1 G. Gray Wilson, North Carolina Civil Procedure \u00a7 11-7, at 196 (2d ed. 1995). \u201cAny officer competent to take the acknowledgment of deeds, and any judge or clerk of the General Court of Justice, notary public, in or out of the State, or magistrate, is competent to take affidavits for the verification of pleadings, in any court or county in the State, and for general purposes.\u201d N.C. Gen. Stat. \u00a7 1-148.\nForm No. AOC-CV-520, which is available for use in connection with the filing of a complaint seeking the entry of a no-contact order, contains a verification section which provides for the complainant to sign his or her name and to swear that \u201cthe matters and things alleged in the Complaint and Motion are true[.]\u201d The verification section of Form AOC-CV-520 contains a subsection in which an officer of the court authorized to administer oaths signs the complaint and indicates that the complainant\u2019s verification had been \u201csworn/affirmed and subscribed to\u201d before that officer. The subsection in question also contains boxes labeled \u201cDeputy CSC,\u201d \u201cAssistant CSC,\u201d \u201cClerk of Superior Court,\u201d \u201cDesignated Magistrate,\u201d \u201cDistrict Court Judge,\u201d and \u201cNotary,\u201d which the officer or notary before whom the verification is executed should check in order to establish that he or she has the authority to administer oaths.\nA careful examination of the record in this case indicates that neither complaint was properly verified. Although both complaints were prepared using Form AOC-CV-520, the record contains no indication that either complaint had been verified before an individual authorized to administer oaths. The verification section of Mr. Fansler\u2019s complaint contains a date, Mr. Fansler\u2019s signature, and a signature in the block intended for the signature of the person before whom Mr. Fansler\u2019s verification had been executed. However, none of the boxes in which the title of the officer of the court or notary public before whom Mr. Fansler verified his complaint have been checked, a fact which precludes us from determining that Mr. Fansler\u2019s verification had been executed before an individual authorized to administer an oath. Although the verification section of Mrs. Fansler\u2019s complaint contains the date and Mrs. Fansler\u2019s signature, the signature area and the boxes in which the name and title of the officer or notary before whom Mrs. Fansler verified the complaint should be delineated are completely blank. As a result, we are unable to determine if either of Plaintiffs\u2019 complaints had been verified before \u201ca notary public or other officer of the court authorized to administer oaths\u201d as required by N.C. Gen. Stat. \u00a7 50C-2 and N.C. Gen. Stat. \u00a7 1A-1, Rule 11. 1 G. Gray Wilson, North Carolina Civil Procedure \u00a7 11-7, at 196 (2d ed. 1995). Thus, given the absence of any indication that either of Plaintiffs\u2019 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\u2019s orders should be vacated, and that both cases must be dismissed.\nVACATED AND DIMISSED.\nJudges ROBERT C. HUNTER and STROUD concur.", "type": "majority", "author": "ERVIN, Judge." } ], "attorneys": [ "No brief for plaintiffs-appellees.", "Bryan Gates for defendant-appellant." ], "corrections": "", "head_matter": "KENNY RAY FANSLER and CASSANDRA M. FANSLER, Plaintiffs v. CHARLES LEONARD HONEYCUTT, Defendant\nNo. COA11-1451\n(Filed 5 June 2012)\nJurisdiction \u2014 subject matter \u2014 stalking\u2014complaints not verified\nThe trial court lacked subject matter jurisdiction over a stalking case where there was no indication that either of plaintiffs\u2019 complaints had been properly verified. The trial court\u2019s orders requiring defendant to refrain from stalking and harassing plaintiffs were vacated, and both cases were dismissed.\nAppeal by defendant from orders entered 15 August 2011 by Judge Mary F. Covington in Davidson County District Court. Heard in the Court of Appeals 25 April 2012.\nNo brief for plaintiffs-appellees.\nBryan Gates for defendant-appellant." }, "file_name": "0226-01", "first_page_order": 236, "last_page_order": 240 }