{ "id": 4243716, "name": "DAVID A. TYLL, Plaintiff v. MICHELLE WILLETS, Defendant", "name_abbreviation": "Tyll v. Willets", "decision_date": "2013-08-20", "docket_number": "No. COA13-105", "first_page": "155", "last_page": "163", "citations": [ { "type": "official", "cite": "229 N.C. App. 155" } ], "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": "661 S.E.2d 924", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641232 ], "year": 2008, "pin_cites": [ { "page": "927" } ], "opinion_index": 0, "case_paths": [ "/se2d/661/0924-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 5001", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(6X7)" } ], "opinion_index": 0 }, { "cite": "191 N.C. App. 146", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4159089 ], "year": 2008, "pin_cites": [ { "page": "151" } ], "opinion_index": 0, "case_paths": [ "/nc-app/191/0146-01" ] }, { "cite": "610 S.E.2d 472", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2005, "pin_cites": [ { "page": "477" }, { "page": "477" }, { "page": "477", "parenthetical": "citations omitted" }, { "page": "477" } ], "opinion_index": 0 }, { "cite": "169 N.C. App. 331", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8469886 ], "weight": 4, "year": 2005, "pin_cites": [ { "page": "337" }, { "page": "337" }, { "page": "337", "parenthetical": "citations omitted" }, { "page": "377" } ], "opinion_index": 0, "case_paths": [ "/nc-app/169/0331-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 14-277", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 7, "opinion_index": 0 }, { "cite": "189 S.E.2d 208", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "213", "parenthetical": "\"There is nothing in the rules which precludes the judge from considering a verified answer as an affidavit in the cause.\" (citation, quotation marks and brackets omitted)" } ], "opinion_index": 0 }, { "cite": "281 N.C. 604", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575723 ], "year": 1972, "pin_cites": [ { "page": "612", "parenthetical": "\"There is nothing in the rules which precludes the judge from considering a verified answer as an affidavit in the cause.\" (citation, quotation marks and brackets omitted)" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0604-01" ] }, { "cite": "715 S.E.2d 308", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2011, "pin_cites": [ { "page": "311", "parenthetical": "citations and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "689 S.E.2d 517", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "524", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "201 N.C. App. 270", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4173562 ], "year": 2009, "pin_cites": [ { "page": "281", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/201/0270-01" ] }, { "cite": "519 S.E.2d 316", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "317", "parenthetical": "\"Furthermore, these rules[, the Rules of Appellate Procedure,] apply to-everyone - whether acting pro se or being represented by all of the five largest law firms in the state.\"" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 124", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11239422 ], "year": 1999, "pin_cites": [ { "page": "125", "parenthetical": "\"Furthermore, these rules[, the Rules of Appellate Procedure,] apply to-everyone - whether acting pro se or being represented by all of the five largest law firms in the state.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0124-01" ] } ], "analysis": { "cardinality": 775, "char_count": 17781, "ocr_confidence": 0.698, "pagerank": { "raw": 1.5784036006119728e-07, "percentile": 0.6799311465649156 }, "sha256": "91b4a135911bddd73bbb46cc0b02cb125c812ebe87df528fd912c09bb2a84f91", "simhash": "1:d98a7824db5fdcd0", "word_count": 2866 }, "last_updated": "2023-07-14T15:07:10.338246+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER, Robert C. and ERVIN concur." ], "parties": [ "DAVID A. TYLL, Plaintiff v. MICHELLE WILLETS, Defendant" ], "opinions": [ { "text": "STROUD, Judge.\nDefendant appeals order requiring she have no contact with plaintiff. For the following reasons, we reverse.\nI. Background\n\u201cHAPPY FAMILIES ARE ALL ALIKE; every unhappy family is unhappy in its own way.\u201d Leo Tolstoy, Anna Karenina 3 (Melanie Hill & Kathryn Knight eds., Constance Garnett trans., 2005) (1875). The parties to this case are members of an unhappy family. Although the reasons for their unique unhappiness are not clear from the record before us, this case is one of the results. Plaintiff appears to be defendant\u2019s brother; from the record, they share the same mother. Without going into the sordid details, the record shows that this family is embroiled in a longstanding dispute about various personal issues. They have been involved in at least one other lawsuit involving a no-contact order related to these matters, wherein plaintiff obtained an order against defendant\u2019s \u201cpartner,\u201d Mr. Joey Berry.\nOn or about 8 June 2012, plaintiff filed a complaint requesting a no-contact order for stalking or nonconsensual sexual conduct (\u201cno-contact order\u201d) against defendant. Plaintiff alleged that\n[o]n May 23, 2012, the Honorable Judge Buckner ordered Joey Berry not to have contact with any members of my family, and to cease stalking and harassing us (case # 12 CV 000755) based on the numerous threatening emails he sent to me, my wife, my mother and my employer.\nAs expected, his partner, Michelle Willets, is continuing the harassment through libel emails to my employer and mother.\nPlaintiff then provided details and exhibits regarding defendant\u2019s \u201charassment[,]\u201d including defendant\u2019s emails to his employer.\nDefendant answered plaintiff\u2019s complaint, admitting some allegations and denying others. On 11 July 2012, the trial court entered a no-contact order against defendant finding that \u201cdefendant failed to ... appear at this hearing and the allegations in the complaint are sufficient to justify a no-contact order for stalking or nonconsensual sexual conduct.\u201d Defendant appeals.\nII. No-Contact Order\nDefendant\u2019s arguments to support her claim that the trial court erred are confusing and illogical, but then, so is plaintiff\u2019s complaint. We recognize that defendant has appealed pro se, but the rules of this Court apply equally to pro se litigants. See Bledsoe v. County of Wilkes, 135 N.C. App. 124, 125, 519 S.E.2d 316, 317 (1999) (\u201cFurthermore, these rules[, the Rules of Appellate Procedure,] apply to-everyone - whether acting pro se or being represented by all of the five largest law firms in the state.\u201d). We will consider defendant\u2019s arguments to the extent we are able to discern them, as some do have merit.\nA. Jurisdiction\nDefendant\u2019s brief generally challenges the trial court\u2019s jurisdiction. \u201cSubject matter jurisdiction refers to the power of the court to deal with the kind of action in question.\u201d Cunningham v. Selman, 201 N.C. App. 270, 281, 689 S.E.2d 517, 524 (2009) (citation and quotation marks omitted). In this case, North Carolina General Statute \u00a7 50C-7 grants the trial court authority to issue a no-contact order, so the trial court had subject matter jurisdiction. See N.C. Gen. Stat. \u00a7 50C-7 (2011) (stating that a trial court may issue a permanent civil no-contact order). As to personal jurisdiction, defendant answered plaintiff\u2019s complaint without raising this issue, thus the trial court also had personal jurisdiction over defendant. See N.C. Gen. Stat. \u00a7 1A-1, Rule 12(h)(1) (2011) (\u201cA defense of lack of jurisdiction over the person ... is waived ... if it is neither made by-motion under this rule nor included in a responsive pleading or an amendment thereoff.]\u201d). As the trial court had subject matter and personal jurisdiction to enter the no-contact order, we next consider the order itself, as best we can, based upon defendant\u2019s brief.\nB. North Carolina General Statute \u00a7 50C-2\nDefendant contests various portions of the trial court\u2019s no-contact order. Essentially, defendant contends that the trial court erred in finding that \u201cthe allegations in the complaint are sufficient to justify a no-contact order[.]\u201d\n[W]hen the trial court sits without a jury, the standard of review on appeal is whether there was competent evidence to support the trial court\u2019s findings of fact and whether its conclusions of law were proper in light of such facts. While findings of fact by the trial court in a non-jury case are conclusive on appeal if there is evidence to support those findings, conclusions of law are reviewable de novo.\nRomulus v. Romulus,_N.C. App._,_, 715 S.E.2d 308, 311 (2011) (citations and quotation marks omitted).\nNorth Carolina General Statute \u00a7 50C-2(a)(l) provides that\nAn 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.\nN.C. Gen. Stat. \u00a7 50C-2(a)(l) (2011).\nTherefore, in order for a no-contact order to be issued, there must be (1) \u201ca victim\u201d and (2) \u201cunlawful conduct[.]\u201d Id. Both \u201cvictim\u201d and \u201cunlawful conduct\u201d are defined within North Carolina General Statute Chapter 50C, although not all of the terms which are necessary for the analysis of this claim are so defined. Id; see N.C. Gen. Stat. \u00a7 50C-1 (7X8) (2011).\n1. Victim\nA \u201c[v]ictim\u201d is \u201c[a] person against whom an act of unlawful conduct has been committed by another person not involved in a personal relationship with the person as defined in N.C. Gen. Stat. \u00a7 50B-l(b).\u201d N.C. Gen. Stat. \u00a7 50C-1(8) (2011). North Carolina General Statute \u00a7 50B-l(b) defines \u201cpersonal relationship\u201d as\na relationship wherein the parties involved:\n(1) Are current or former spouses;\n(2) Are persons of opposite sex who live together or have lived together;\n(3) Are related as parents and children... or as grandparents and grandchildren...[;]\n(4) Have a child in common;\n(5) Are current or former household members; [or]\n(6) Are persons of the opposite sex who are in a dating relationship or have been in a dating relationship.\nN.C. Gen. Stat. \u00a7 50B-l(b) (2011).\nThus, North Carolina General Statute \u00a7 50C-1 incorporates the definitions of \u201cpersonal relationship\u201d from North Carolina General Statute Chapter 50B and excludes them from the category of relationships upon which a Chapter 50C no-contact order can be premised. See N.C. Gen. Stat. \u00a7 50C-1(8). In doing so, Chapter 50C provides a method of obtaining a no-contact order against another person when the relationship is not romantic, sexual, or familial. See N.C. Gen. Stat. \u00a7\u00a7 50B-l(b), 50C-1(8). But the sibling relationship, standing alone, is not included under the definitions in North Carolina General Statute \u00a7 50B-l(b). See N.C. Gen. Stat. \u00a7 50B-1.\nAlthough it appears clear from the record that plaintiff and defendant are brother and sister, the record does not disclose that they have ever \u201clived together\u201d or have been \u201chousehold members[.]\u201d N.C. Gen. Stat. \u00a7 50B-l(b)(2), (6). Defendant does challenge the plaintiff\u2019s entitlement to a no-contact order in her answer by her allegation that she and plaintiff were \u201cformer members of the same household[,]\u201d but defendant failed to either sign or verify her answer. See generally Schoolfield v. Collins, 281 N.C. 604, 612, 189 S.E.2d 208, 213 (1972) (\u201cThere is nothing in the rules which precludes the judge from considering a verified answer as an affidavit in the cause.\u201d (citation, quotation marks and brackets omitted)). We cannot assume that plaintiff and defendant have actually ever lived together in the absence of any evidence.\nWe realize that plaintiff and defendant, at some point, most likely did live in the same household, but not all biological brothers and sisters do. Thus, nothing in the record before us - a record which is certainly lacking in many regards - appears to support defendant\u2019s argument that plaintiff is not entitled to a no-contact order because he cannot be a \u201cvictim[.]\u201d See N.C. Gen. Stat. \u00a7\u00a7 50B-l(b), 50C-1(8), 50C-2(a)(I). We therefore cannot find that the trial court erred by finding that defendant is a person who may be a \u201cvictim].]\u201d See N.C. Gen. Stat. \u00a7\u00a7 50C-1(8), 50C-2(a)(l).\n2. Unlawful Conduct\nAs noted above, there is a second requirement for issuance of a no-contact order: the defendant must commit \u201cunlawful conduct].]\u201d N.C. Gen. Stat. \u00a7 50C-2(a)(l). This term incoiporates many other terms which are defined by statute. See, e.g., N.C. Gen. Stat. \u00a7\u00a7 14-277.3A(b)(2), 50C-l(6)-(7) (2011). North Carolina General Statute \u00a7 50C-1(7) defines \u201c]u]nlawful conduct\u201d as \u201c]t]he commission of . . . [n]onconsensual sexual conduct. . . [or] ]s]talking.\u201d N.C. Gen. Stat. \u00a7 50C-1(7). As plaintiff does not allege nonconsensual sexual contact, we must decide whether defendant stalked plaintiff. See id.\n\u201c]S]talking\u201d is defined as\n[o]n more than one occasion, following or otherwise harassing, as defined in G.S. 14-277.3A(b)(2), another person without legal purpose with the intent to do any of the following:\na. Place the person in reasonable fear either for the person\u2019s safety or the safety of the person\u2019s immediate family or close personal associates.\nb. Cause that person to suffer substantial emotional distress by placing that person in fear of death, bodily injury, or continued harassment and that in fact causes that person substantial emotional distress.\nN.C. Gen. Stat. \u00a7 50C-1(6) (2011). There are no specific allegations that defendant has \u201cfollow[ed]\u201d or endangered plaintiff\u2019s \u201csafety\u201d or that of plaintiff\u2019s \u201cimmediate family or close personal associates],]\u201d so plaintiff\u2019s claim is based entirely upon \u201charass[ment]\u201d and \u201csubstantial emotional distress\u201d placing plaintiff \u201cin fear of... continued harassment!)]\u201d\nEven if we assume arguendo that defendant did at least \u201charass\u201d plaintiff in the sense that her communications were \u201cannoying\u201d or \u201cpestering\u201d to plaintiff, see Watson, 169 N.C. App. 331, 337, 610 S.E.2d 472, 477 (2005), plaintiff must also prove that defendant either (1) intended to place plaintiff \u201cin reasonable fear\u201d for his or his family\u2019s safety or (2) intended to and in fact caused plaintiff \u201cto suffer substantial emotional distressf.]\u201d N.C. Gen. Stat. \u00a7 50C-l(6)(b). Neither North Carolina General Statutes Chapter 50B or 50C define \u201csubstantial emotional distress[;]\u201d however, North Carolina General Statute \u00a7 14-277.3A, entitled \u201c[s]talking\u201d defines \u201c[substantial emotional distress\u201d as \u201csignificant mental suffering or distress that may, but does not necessarily, require medical or other professional treatment or counseling.\u201d N.C. Gen. Stat. \u00a7 14-277.3A(b)(4).\nAgain, the record leaves us with just the allegations of plaintiff\u2019s complaint. Plaintiff\u2019s specific allegations are:\n1. May 23rd, 9:19am, during the previously mentioned hearing [, referring to the proceeding against Joey Berry,] Michelle Willets sent an email to my employer stating, \u201cI am not sure why David is encouraging all the potential negative, as outlined in that email [May 7th, by Joey Berry] on himself and the school...\u201d (see attached emails dated May 23rd and May 7th)\n2. May 25th, Michelle Willets stated in an email to my mother that, \u201cThis restraining order didn\u2019t change Joey\u2019s nature at all. It just means that he can\u2019t warn David and Jenny about any possible problems.\u201d (see attached email dated May 25th)\n3. May 29th, our lawyer, Ann Marie Vosburg, sent Michelle Willets a letter on our behalf stating our desire for no contact with her. It stated, \u201cAny contact from you to them or to any individuals regarding them, and especially to any employers of either of them will be perceived as harassment and they will be forced to seek legal action against you.\u201d (see attached letter dated May 29th)\n4. June 7th, Michelle Willets sent alengthy and defamatory email (see attached, dated June 7th) to my employer, as previously threatened by Joey Berry in the attached email dated May 7th. She carries out Joey Berry\u2019s previous threat to share \u201cdeeply personal information\u201d that \u201cmay even call into question David\u2019s fitness to be around children (much less supervise them).\u201d\n5. In the June 7th email, Michelle Willets references, \u201cstruggling on whether to contact Social Services based on this concern and others.\u201d While she has no grounds for such an intervention, we see this statement as an intended threat to our family, and seek relief from her continued harassment.\n6. I am concerned that Michelle Willets and Joey Berry will continue to attempt to torment and harass us through any means possible, given statements by them such as, \u201cThis (contacting my employer) is the tip of the iceberg of what we are willing to do.\u201d (May 7th phone conversation with David Tyll)\n7. Since Michelle Willets has disregarded our request for no contact, and since she clearly is partnered with Joey Berry in the effort to harass and defame me, I beg the court to put this order in place for the mental, physical, and emotional well being of my entire family.\nPlaintiff included two emails from defendant as attachments.\nEven if defendant\u2019s actions were \u201cannoying\u201d to plaintiff and thus constituted \u201charassment,\u201d plaintiff has not alleged any facts sufficient to sustain a finding that defendant caused plaintiff \u201cto suffer substantial emotional distress[.]\u201d N.C. Gen. Stat. \u00a7 50C-l(6)(b); see N.C. Gen. Stat. \u00a7 14-277.3A(b)(2), (4); Watson, 169 N.C. App. at 337, 610 S.E.2d at 477. The allegations of plaintiff\u2019s complaint actually come closer to a claim for defamation than a claim for \u201cstalking\u201d via \u201charassment,\u201d see N.C. Gen. Stat. \u00a7\u00a7 14-277.3A(b)(2), 50C-1(6), but even if we assume that defendant has \u201cdefamed\u201d plaintiff, Chapter 50C provides no remedy for defamation. The \u201cthreats\u201d of which plaintiff complains are clearly not threats of physical harm but instead are threats to make statements about plaintiff to various others, including plaintiff\u2019s employer and the Department of Social Services. Defendant\u2019s statements as alleged by plaintiff are comparable to those in Ramsey v. Harman, where this Court noted that \u201cthe statute does not allow parties to implicate and interject our courts into juvenile hurls of gossip and innuendo between feuding parties where no evidence of any statutory ground is shown to justify entry of a no-contact order.\u201d 191 N.C. App. 146, 151, 661 S.E.2d 924, 927 (2008). Accordingly, plaintiff did not present any evidence upon which the trial court could properly conclude that defendant \u201cstalked\u201d plaintiff, and therefore the trial court erred in concluding that plaintiff was entitled to issuance of a no-contact order. See N.C. Gen. Stat. \u00a7\u00a7 5001(6X7), 5002(a)(1).\nIII. Conclusion\nFor the foregoing reasons, we reverse.\nREVERSED.\nJudges HUNTER, Robert C. and ERVIN concur.\n. The complaint refers to Mr. Berry as defendant\u2019s \u201cpartner!,]\u201d so we shall as well, but from the record it appears he is defendant\u2019s husband and thus plaintiff\u2019s brother-in-law.\n. North Carolina General Statute \u00a7 14-277.3A(b)(2) defines \u201c[h]arasses or harassment\u201d as \u201c[kjnowing conduct... directed at a specific person that torments, terrorizes, or terrifies thatperson and that serves no legitimate purpose.\u201d N.C. Gen. Stat. \u00a7 14-277.3A(b) (2). This Court has previously noted that \u201c[s]everal of these words are of common usage and their plain meaning should be given. \u2018Torment\u2019 is defined as \u2018to annoy, pester, or harass.\u2019 \u2018Terrorize\u2019 is defined as \u2018to fill or overpower with terror; terrify.\u2019 \u201d State v. Watson, 169 N.C. App. 331, 337, 610 S.E.2d 472, 477 (2005) (citations omitted). Unfortunately, these definitions are recursive, as \u201charass\u201d is statutorily defined as \u201ctorments, terrorizes, or terrifies\u201d while the definition of \u201c[t]orment\u201d is \u201charass\u201d and \u201cterrorize\u201d is defined as to \u201cterrify.\u201d N.C. Gen. Stat. \u00a7 14-277.3A(b)(2); Watson, 169 N.C. App. at 377, 610 S.E.2d at 477. We will not seek to untangle this definitional Gordian Knot.\n. We do not suggest that defamatory comments could never be a part of a pattern of harassment, but in this case, plaintiff\u2019s complaint does not support such a claim.", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Michelle Willets, pro se defendant-appellant.", "No appellee brief filed." ], "corrections": "", "head_matter": "DAVID A. TYLL, Plaintiff v. MICHELLE WILLETS, Defendant\nNo. COA13-105\nFiled 20 August 2013\n1. Jurisdiction \u2014 subject and personal \u2014 no contact order\nThe trial court had subject matter and personal jurisdiction to enter a no contact order. N.C.G.S. \u00a7 50C-7 grants the trial court authority to issue a no-contact order and defendant answered plaintiff\u2019s complaint without raising personal jurisdiction.\n2. Domestic Violence \u2014 no contact order \u2014 definition of victim\u2014 sibling \u2014 no evidence of living together\nThe trial court did not err by finding that defendant, plaintiff\u2019s sister, is a person who may be a victim for purposes of a no contact order. The statutes provide a method of obtaining a no-contact order against another person when the relationship is not romantic, sexual, or familial, but a sibling relationship standing alone is not included under the definitions. The record in this case did not disclose that plaintiff and defendant have ever lived together or been household members.\n3. Domestic Violence \u2014 no contact order \u2014 no statutory ground to support\nThe trial court erred by concluding that plaintiff was entitled to issuance of a no-contact order where there was no evidence of a statutory ground to support the order. Plaintiffs claim was based entirely upon harassment, but, even if defendant\u2019s actions constituted harassment, plaintiff did not allege any facts sufficient to sustain a finding that defendant caused plaintiff to suffer substantial emotional distress.\nAppeal by defendant from order entered 11 July 2012 by Judge Joe Buckner in District Court, Orange County. Heard in the Court of Appeals 22 May 2013.\nMichelle Willets, pro se defendant-appellant.\nNo appellee brief filed." }, "file_name": "0155-01", "first_page_order": 165, "last_page_order": 173 }