Jessee v. Jessee
Jessee v. Jessee
Opinion of the Court
Defendants Christine Jessee; Sandra L. Stewart, individually and as Trustee of the Jessee Family Trust; and the Jessee Family Trust appeal from an order entered by the trial court denying their motion to dismiss the complaint filed by Plaintiff Jimmy K. Jessee on the grounds that the pleading in question involved issues that had already been joined between the parties in an equitable distribution case that was pending before the Alamance County District Court. After careful consideration of Defendants’ challenges to the trial court’s order in light of the record and the applicable law, we conclude that Plaintiff’s complaint should not be dismissed, that the trial court’s order should be affirmed, and that the Forsyth County case should be held in abeyance pending resolution of the Alamance County domestic relations case.
I. Factual Background
Plaintiff and Defendant Christine Jessee married on 28 September 2002 and separated 9 May 2008. On 21 July 2008, Defendant Christine Jessee filed a complaint in Alamance County District Court seeking a divorce from bed and board, post-separation support and alimony, and equitable distribution. On 3 September 2008, Plaintiff filed an answer to Defendant Christine Jessee’s Alamance County complaint in which he denied the material allegations of Defendant Christine Jessee’s complaint and counterclaimed for divorce from bed and board based on a number of grounds, including an allegation that Defendant Christine Jessee had impermissibly utilized Plaintiff’s credit card “to borrow the sum of $24,000.00 . . . without the knowledge or consent of’ Plaintiff, and equitable distribution.
On 24 April 2009, Plaintiff filed a complaint in Forsyth County Superior Court alleging that Defendant Christine Jessee had committed various fraudulent acts which resulted in the conversion of $56,663.00 of funds to which Plaintiff was entitled for her personal use and improperly conveyed the marital residence to Defendant Jessee Family Trust. According to the allegations of Plaintiff’s com
1. An indebtedness of $24,200.00 arising from Defendant Christine Jessee’s decision to improperly utilize an L.L. Bean credit card issued by Bank of America in Plaintiff’s name and to utilize the card for her own purposes.
2. An indebtedness of $19,940.00 arising from Defendant Christine Jessee’s decision to improperly obtain a credit card issued by American Express in Plaintiff’s name and to utilize the card for her own purposes.
3. An indebtedness of $3,251.00 arising from Defendant Christine Jessee’s decision to improperly obtain a credit card issued by J.P. Morgan Chase in Plaintiff’s name and to utilize the card for her own purposes.
4. An indebtedness of $661.00 arising from Defendant Christine Jessee’s decision to improperly obtain a credit card issued by Citigroup in Plaintiff’s name and to utilize the card for her own purposes.
5. An indebtedness of $3,657.00 arising from Defendant Christine Jessee’s decision to improperly obtain an additional credit card issued by J.P. Morgan Chase in Plaintiff’s name and to utilize the card for her own purposes.
*429 6. An indebtedness of $1,000.00 arising from Defendant Christine Jessee’s decision to improperly obtain a credit card issued by Discover in Plaintiff’s name and to utilize the card for her own purposes.
Moreover, Plaintiff alleged in his Forsyth County complaint that, on or about 3 September 2008, Defendant Christine Jessee, directly or indirectly utilizing funds that “she obtained from the fraudulent social security check and credit card transactions, satisfied all of the existing mortgage secured by” the marital home and filed the necessary satisfaction notice with the Alamance County Register of Deeds. In addition, Plaintiff alleged that, on or about 26 November 2008, Defendant Christine Jessee and her close personal friend, Defendant Sandra L. Stewart, formed Defendant Jessee Family Trust, with Defendant Sandra L. Stewart designated as trustee and with the trust corpus to be used for the benefit of Defendant Christine Jessee. According to Plaintiff’s complaint, Defendant Christine Jessee fraudulently conveyed the unencumbered marital residence to Defendant Sandra L. Stewart in her capacity as trustee of the Jessee Family Trust, with a retained life estate for the benefit of Defendant Christine Jessee. Based upon these allegations, Plaintiff alleged that he was entitled to recover at least $3,954.00 relating to the converted Social Security checks and at least $52,709.00 relating to the improperly obtained credit cards from Defendants Christine Jessee and Sandra L. Stewart, to recover punitive damages from Defendant Christine Jessee, to recover statutory damages for identity theft and attorneys fees pursuant to N.C. Gen. Stat. § 1-539.2C, and to have the transfer of the marital residence to the Jessee Family Trust invalidated.
On 3 June 2009, Defendants filed a motion seeking to have the venue for the Forsyth County action changed to Alamance County on the grounds that “[a]ll of the alleged actions were purported to occur in Alamance County.” On 17 August 2009, Defendants filed an Answer, Motion to Change Venue and Motion to Dismiss in the Forsyth County action in which Defendants denied the material allegations of Plaintiff’s complaint, sought the dismissal of the Forsyth County action based upon N.C. Gen. Stat. § 7A-244 and the “prior pending action” doctrine in light of the pending domestic action in Alamance County, asserted certain affirmative defenses, and renewed their motion that venue for the Forsyth County action be changed to Alamance County. On 19 August 2009, Plaintiff filed a reply to Defendant’s dismissal and change of venue motions.
Motion to Dismiss
9. On or about July 18, 2008, Defendant Christine Jessee filed against the Plaintiff a domestic action in Alamance County (08 CVD 2228), seeking a Divorce from Bed and Board, Post Separation Support/Alimony and Equitable Distribution.
10. The instant case does involve two of the same parties, yet raises different causes of action, namely, the alleged theft by Defendant Christine Jessee of two Social Security checks and the identity of the Plaintiff and the alleged fraudulent conveyance by the Defendant Christine Jessee of a parcel of real property.
11. The instant case, therefore, is not subject to the provisions of N.C. [Gen. Stat.] § 7A-244 and does not include the same subject matter of the Alamance County domestic case. Furthermore, the Complaint in the instant case does state a claim upon which relief can be granted.
12. The instant case, therefore, should not be dismissed as against the Plaintiff and the Defendants’ motion to dismiss should be denied.
Based upon these findings of fact
II. Legal Analysis
On appeal, Defendants contend that the trial court erred by failing to dismiss the Forsyth County action in light of the pending domestic action in Alamance County District Court because Plaintiff’s claims implicate the exclusive jurisdiction of the District Court over domestic relations cases established by N.C. Gen. Stat. § 7A-244 and because the
A. Appealability
As a preliminary matter, the order from which Defendants have sought to appeal is clearly interlocutory rather than final in nature, since the trial court’s orders were “made during the pendency of an action [and] do not dispose of the case, but instead leave it for further action by the trial court in order to settle and determine the entire controversy,” Carriker v. Carriker, 350 N.C. 71, 73, 511 S.E.2d 2, 4 (1999) (citing Veazey v. City of Durham, 231 N.C. 357, 361, 57 S.E.2d 377, 381 (1950)), and since the trial court’s order did not “settlef] and determine []” the “entire controversy” between the parties. As a general proposition, “there is no right of immediate appeal from interlocutory orders and judgments.” Travco Hotels v. Piedmont Natural Gas Co., 332 N.C. 288, 291, 420 S.E.2d 426, 428 (1992) (citing Goldston v. American Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990)). A trial court’s refusal to abate an action based upon the prior pending action doctrine is, however, immediately appealable. Gillikin v. Pierce, 98 N.C. App. 484, 486, 391 S.E.2d 198, 199, disc. review denied, 327 N.C. 427, 395 S.E.2d 677 (1990) (citing Atkins v. Nash, 61 N.C. App. 488, 489, 300 S.E.2d 880, 881 (1983)). On the other hand, a trial court order’s refusal to dismiss a complaint for lack of subject matter jurisdiction is not subject to appellate review on an interlocutory basis as a matter of right. Shaver v. Construction Co., 54 N.C. App. 486-87, 283 S.E.2d 526, 527 (1981). In this case, however, given the necessity for us to address the “prior pending action” issue on the merits and given the interrelated nature of Defendants’ twin challenges to the trial court’s order, we conclude that we should exercise our authority to treat the record on appeal and briefs as a petition for the issuance of a writ of certiorari with respect to the exclusive jurisdiction issue and issue the writ on our own motion pursuant to N.C. Gen. Stat. § 7A-32(c) and N.C.R. App. P. 21 in order to reach the merits of both of Defendants’ challenges to the trial court’s order. Anderson v. Hollifield, 345 N.C. 480, 482, 480 S.E.2d 661, 663 (1997). As a result, we will address both of Defendants’ claims on the merits.
1. Exclusive District Court Jurisdiction
In their first challenge to the trial court’s order, Defendants contend that the trial court should have dismissed the Forsyth County action because Plaintiff’s claims were subject to the exclusive jurisdiction of the District Court pursuant to N.C. Gen. Stat. § 7A-244 (providing that “[t]he 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”). In their brief, Defendants argue that this Court’s decisions in Hudson Int’l, Inc. v. Hudson, 145 N.C. App. 631, 550 S.E.2d 571 (2001), and Garrison v. Garrison, 90 N.C. App. 670, 369 S.E.2d 628 (1988), demonstrate that the trial court erred by refusing to grant their dismissal motion. We disagree.
In Hudson, the wife filed an action in the district court seeking, among other things, postseparation support. Hudson, 145 N.C. App. at 632, 550 S.E.2d at 572. During the pendency of the domestic claim, a corporation in which the husband owned an interest filed a declaratory judgment action in the superior court seeking sole ownership of a residence which had been titled to the corporation despite the fact that it had been built using marital property. Id. at 632-33, 550 S.E.2d at 572. This Court affirmed the superior court’s decision to dismiss the declaratory judgment action pursuant to N.C. Gen. Stat. § 7A-244. Id. at 637-38, 550 S.E.2d at 575. Similarly, in Garrison, after granting the parties an absolute divorce, the district court announced the intention of addressing the parties’ equitable distribution claims at a later time. Garrison, 90 N.C. App. at 671, 369 S.E.2d at 628-29. Subsequently, the husband initiated a partition proceeding in the
As this Court has recently stated, “[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.” Burgess v. Burgess, — N.C. App. —, —, 698 S.E.2d 666, 669 (2010). In reliance on this standard, we held in Burgess that, while the maintenance of a separate superior court action for equitable divestiture of certain shares of stock in a closely held corporation was barred by the parties’ equitable distribution action, the same was not true of separate superior court claims for breach of fiduciary duty, an accounting, and the inspection of corporate books and records. Id. at —, 698 S.E.2d at 672. When evaluated against the standard enunciated in Burgess, Defendants’ argument fails.
The resolution of an equitable distribution action requires the District Court to “determine what is the marital [] and divisible property” and to “provide for an equitable distribution of the marital property
The matters in dispute between the parties in the Forsyth County case stem from Plaintiffs claims that (1) Defendant Christine Jessee wrongfully converted Plaintiff’s Social Security checks after the date of separation, (2) Defendant Christine Jessee wrongfully incurred substantial amounts of indebtedness in Plaintiff’s name after the date of separation, and (3) Defendants Christine Jessee, Sandra L. Stewart, and the Jessee Family Trust utilized the proceeds of the debts for which Plaintiff was wrongfully obligated to obtain unencumbered title to the former marital residence and then fraudulently conveyed the former marital residence to Defendant Jessee Family Trust, subject to a retained life estate in Defendant Christine Jessee. Defendants have offered no specific suggestions as to the reason that these claims are barred by or completely subsumed within the pending Alamance County domestic action, and none appear to us.
The first two categories of claims asserted in the Forsyth County action relate to property allegedly accumulated and debts allegedly incurred, contrary to contentions repeatedly stated in Defendants’ brief, after the date of separation. In addition, these items of property and debts do not stem from activities in any way related to the marriage or the parties’ marital or divisible property; in fact, Plaintiff’s complaint in the Forsyth County action explicitly alleges that Defendant Christine Jessee converted these checks and incurred this indebtedness for her own personal benefit. For that reason, the check and debts in question are not “marital property” or “divisible property” subject to distribution in an equitable distribution action. Moreover, we see no adequate mechanism for fully accommodating Plaintiff’s claims for compensatory and punitive damages relating to these amounts within the confines of the Alamance County domestic action, particularly given that the District Court’s distribution deci
2. Prior Pending Action
Secondly, Defendants contend that the trial court erred by failing to find that the Alamance County domestic action required the dis
“Under the law of this state, where a prior action is pending between the same parties for the same subject matter in a court within the state having like jurisdiction, the prior action serves to abate the subsequent action.” Eways v. Governor’s Island, 326 N.C. 552, 558, 391 S.E.2d 182, 185 (1990) (citing McDowell v. Blythe Brothers Co., 236 N.C. 396, 398, 72 S.E.2d 860, 862 (1952) (stating that “[t]he pendency of a prior action between the same parties for the same cause in a State court of competent jurisdiction works an abatement of a subsequent action either in the same court or in another court of the State having like jurisdiction”) and Cameron v. Cameron, 235 N.C. 82, 84, 68 S.E.2d 796, 798 (1952) (stating that “[t]he pendency of a prior action between the same parties for the same cause in a State court of competent jurisdiction works [a]n abatement of a subsequent action either in the same court or in another court of the State having like jurisdiction”)). The “prior pending action” doctrine involves “essentially the same questions as the outmoded plea of abatement,” Nationwide Mut. Ins. Co. v. Douglas, 148 N.C. App. 195, 197, 557 S.E.2d 592, 593 (2001), and is, obviously enough, intended to prevent the maintenance of a “subsequent action [that] is wholly unnecessary” and, for that reason, furthers “the interest of judicial economy.” State ex rel. Onslow County v. Mercer, 128 N.C. App. 371, 375, 496 S.E.2d 585, 587 (1998). “The ordinary test for determining whether or not the parties and causes are the same for the purpose of abatement by reason of the pendency of the prior action is this: Do the two actions present a substantial identity as to parties, subject matter, issues involved, and relief demanded?” Cameron, 235 N.C. at 85, 68 S.E.2d at 798 (citations omitted); see also Clark v. Craven Regional Medical Authority, 326 N.C. 15, 20, 387 S.E.2d 168, 171 (1990).
As we have already noted, while both Plaintiff and Defendant Christine Jessee are parties to the Alamance County action, Defendants Sandra L. Stewart and the Jessee Family Trust are only named as parties in the Forsyth County action. In addition, the issues raised by the Forsyth County action include whether Defendant Christine Jessee, after the date of separation, improperly converted two Social Security checks that properly belonged exclusively to Plaintiff to her own use, incurred large amounts of indebtedness in Plaintiff’s name and without his permission for her own use after the date of separation, and utilized the proceeds of the impermissibly
III. Conclusion
For the reasons stated above, we conclude that the trial court did not err by denying Defendants’ motions to dismiss the Forsyth County action based upon the exclusive jurisdiction provisions of N.C. Gen. Stat. § 7A-244 and the “prior pending action” doctrine. Thus, the trial court’s order should be, and hereby is, affirmed. However, despite our belief that neither N.C. Gen. Stat. § 7A-244 nor the “prior pending action” doctrine mandate dismissal of the Forsyth County action, there is a clear interrelationship between the two cases, such that the equitable distribution portion of the Alamance County domestic relations case should be resolved prior to the determination of the Forsyth County case. For that reason, we further conclude that the Forsyth County case should be held “in abeyance pending resolution of the” Alamance County domestic relations case, Keith v. Wallerich, — N.C. App. —, —, 687 S.E.2d 299, 304 (2009), and the results of that equitable distribution case taken into consideration in the resolution of the Forsyth County case.
AFFIRMED.
. In view of the fact that Defendants have not challenged the denial of their motion for change of venue on appeal, we have not set out the trial court’s findings of fact relating to this issue in the text of our opinion.
. In addition to a record on appeal, Defendants filed a Supplement pursuant to N.C.R. App. P 11(c). In his brief, Plaintiff argues that none of the materials contained in the proposed Rule 11(c) supplement were actually tendered to the trial court at the time of the hearing held with respect to Defendants’ dismissal motions. As best we can tell, the trial court never had an occasion to determine whether the materials contained in the Rule 11(c) supplement were actually considered during the proceedings
. “Marital property” is defined as “all real and personal property acquired by either spouse or both spouses during the course of the marriage and before the date of the separation of the parties, and presently owned].]” N.C. Gen. Stat. § 50-20(b)(l).
. “Divisible property” is defined as “all appreciation and diminution in value of marital property and divisible property of the parties occurring after the date of separation and prior to the date of distribution” exclusive of “that appreciation or diminution in value which is the result of postseparation actions or activities of a spouse[;]” “[a]ll property, property rights, or any portion thereof received after the date of separation but before the date of distribution that was acquired as a result of the efforts of either spouse during the marriage and before the date of separation!;]” “[p]assive income from marital property received after the date of separation];]” and “]i]ncreases and decreases in marital debt and financing charges and interest related to marital debt.” N.C. Gen. Stat. § 50-20(b)(4).
. In the event that the District Court’s ability to consider other relevant factors in its distribution decision pursuant to N.C. Gen. Stat. § 50-20(c)(12) sufficed to sweep these components of Plaintiff’s claims into the ambit of the Alamance County domestic action, then no claim could ever survive a jurisdictional challenge lodged pursuant to N.C. Gen. Stat. § 7A-244, a result that is clearly untenable in the aftermath of Burgess.
. In fact, the court presiding over the Alamance County domestic case would lack jurisdiction to value and distribute the former marital residence unless Defendants Sandra L. Stewart and the Jessee Family Trust were made parties to that
Concurring Opinion
concurring in result only.
I concur with the result reached by the majority opinion. I write separately to note that I continue to disagree with the analysis of
[o]ur Courts have uniformly held that when a party files an action listed in Section 7A-244 in District Court and another action relating to the subject matter of the prior action is then filed in Superior Court, the District Court’s jurisdiction over the subject has already been invoked by the parties to the first action .... In actions similar to this one, our Courts have been unvarying in ruling that the trial court should dismiss the action.
Until Burgess v. Burgess, — N.C. App. —, 698 S.E.2d 666 (2010) defendant-wife was correct. As I stated in my opinion concurring in part and dissenting in part in Burgess,
I differ somewhat from the majority opinion as to the interpretation of Garrison v. Garrison, 90 N.C. App. 670, 369 S.E.2d 628 (1988) and Hudson Int'l, Inc. v. Hudson, 145 N.C. App. 631, 550 S.E.2Ó 571 (2001). The majority opinion notes 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.” However, I differ with the majority opinion as to its assertion that identity of the property and similarity of relief are the controlling principles of Garrison and Hudson. The controlling principle of Garrison and Hudson is the invocation of the jurisdiction of the District Court. See Hudson Int’l, Inc. v. Hudson, 145 N.C. App. 631, 550 S.E.2d 571 (2001); Garrison v. Garrison, 90 N.C. App. 670, 369 S.E.2d 628 (1988).
Id. at —, 698 S.E.2d at 673.
I concur in the result in part because I am bound to follow Burgess as precedent, despite my disagreement with certain parts of the opinion. See In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (“[A] panel of the Court of Appeals is bound by a prior decision of another panel of the same court addressing the same question, but in a different case, unless overturned by an intervening decision from a higher court.”). In addition, it appears from the record before us that the trial court did not have the benefit of all of the orders entered in the Alamance County equitable distribution case when it ruled upon defendant-wife’s motion to dismiss. Plaintiff-husband filed a counterclaim for equitable distribution in Alamance County, as noted by the majority. But it appears that the Superior Court, Forsyth
I therefore concur in result only.
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