Beavers v. McMican

898 S.E.2d 690

David BEAVERS

v.John MCMICAN

No. 294A22

Supreme Court of North Carolina.

Filed March 22, 2024

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, 285 N.C. App. 31, 877 S.E.2d 412 (2022), reversing an order of summary judgment entered on 14 October 2020 by Judge Keith O. Gregory in Superior Court, Wake County, and remanding the case for further proceedings. Heard in the Supreme Court on 13 September 2023.

Matheson & Associates, PLLC, by John R. Szymankiewicz, Raleigh, and Jammie L. Wacenske, for plaintiff-appellee.

Batch, Poore & Williams, PC, Raleigh, by J. Patrick Williams, for defendant-appellant.

EARLS, Justice.

This appeal raises a narrow legal issue of statutory interpretation involving the controversial heartbalm torts recognized in North Carolina. Plaintiff David Beavers brought civil claims for alienation of affection and criminal conversation against his ex-wife’s alleged paramour, defendant John McMican. The first question before this Court is whether the holding in Rodriguez v. Lemus, 257 N.C. App. 493, 810 S.E.2d 1 (2018)¹, concerning which evidence is relevant to prove pre-separation conduct, is inconsistent with the enacted language and legislative intent of N.C.G.S. § 52-13, which specifies that post-separation conduct cannot give rise to liability in these circumstances. The second related issue for this Court is whether the trial court improperly granted summary judgment in favor of Mr. McMican. After reviewing the text of section 52-13 and finding it unambiguous, we hold that the Court of Appeals’ opinion in Rodriguez is consistent with legislative intent. Accordingly, evidence of post-separation conduct may be used to corroborate pre-separation conduct, so long as the evidence of pre-separation conduct gives rise to more than mere conjecture. Rodriguez, 257 N.C. App. at 498, 810 S.E.2d 1. Nonetheless, because we find the evidence of pre-separation conduct in this case does not give rise to more than mere conjecture regarding the identity of Mrs. Beavers’ paramour, we reverse the decision of the Court of Appeals and hold that the trial court properly granted summary judgment in favor of Mr. McMican.

I. Procedural History

On 13 December 2018, Mr. Beavers sued Mr. McMican on theories of alienation of affection and criminal conversation. On 14 January 2020, Mr. McMican filed a motion for summary judgment on both claims. On 17 August 2020, the trial court conducted a hearing on Mr. McMican’s motion during which both parties referenced recent depositions of Mrs. Beavers and Mr. McMican’s ex-wife, Jessica McMican; however, neither deposition was certified until 20 August 2020, three days later. On 14 October 2020, the trial court entered an order granting Mr. McMican’s motion for summary judgment. Mr. Beavers timely appealed.

[1] At the Court of Appeals, Mr. Beavers submitted a record supplement pursuant to Rule 11(c) of the Rules of Appellate Procedure containing, inter alia, the depositions of Mrs. Beavers and Mrs. McMican discussed by counsel during the summary judgment hearing. On 23 November 2021, the Court of Appeals entered an order remanding the matter to the trial court and inquiring which, if either, of the depositions the trial court considered in granting Mr. McMican’s motion for summary judgment. Beavers v. McMican, 285 N.C. App. 31, 34, 877 S.E.2d 412 (2022). In response, on 24 February 2022, the trial court entered an amended order granting Mr. McMican’s motion for summary judgment and confirming that it had not considered either of the depositions at the original hearing on the matter. Id. Accordingly, the Court of Appeals stated that neither deposition would inform its review of the trial court’s order granting Mr. McMican’s motion for summary judgment. Id. at 32, 35, 877 S.E.2d 412. We similarly do not consider any evidence not properly before the trial court when it decided Mr. McMican’s motion for summary judgment.²

The Court of Appeals determined that Mr. Beavers presented sufficient evidence of post-separation conduct involving his former wife and defendant, and that under Rodriguez, such evidence is corroborative of pre-separation conduct even when the identity of a pre-separation extramarital sexual partner is unknown. Id. at 41, 877 S.E.2d 412. Thus, the Court of Appeals held that the trial court erred in granting Mr. McMican’s motion for summary judgment. Id. Judge Jackson dissented, opining in relevant part that Mr. Beavers’s allegations lacked evidentiary support, and thus, the trial court properly granted Mr. McMican’s motion for summary judgment. Id. at 46, 63, 877 S.E.2d 412 (Jackson, J., dissenting). Based on Judge Jackson’s dissent, Mr. McMican filed a notice of appeal with this Court on 21 September 2022, pursuant to N.C.G.S. § 7A-30(2).³

II. Background

David and Alison Beavers were married on 23 October 2004. Together they had three children. On 18 January 2016, Mr. Beavers discovered text messages on Mrs. Beavers’s phone in which she had sent nude pictures of herself to a person identified only as "Bestie." Until this discovery, Mr. Beavers believed he and his wife had a loving marriage. In addition to the pictures, Mrs. Beavers and "Bestie" had exchanged messages referencing an instance of sexual intercourse that had occurred before the exchange of the messages and pictures. At the time of this discovery, Mr. Beavers did not look at the phone number associated with the contact labeled "Bestie" or take any steps to determine "Bestie’s" identity.

After confronting Mrs. Beavers, Mr. Beavers left the marital home to stay with his parents. When he returned several days later, he and Mrs. Beavers discussed the extramarital affair, and Mrs. Beavers admitted that she had engaged in sexual acts with the person identified as "Bestie." Nonetheless, she stated that she and "Bestie" had not engaged in sexual intercourse. Mrs. Beavers also told Mr. Beavers that her paramour was a coworker named "Dustin."

In the weeks that followed, Mr. Beavers, who was skeptical of the story Mrs. Beavers told during their first conversation, accused Mrs. Beavers of engaging in sexual intercourse with another man. In response, Mrs. Beavers ultimately admitted that she had engaged in sexual intercourse with someone from her workplace, but she did not specify if that person was "Dustin." Mr. Beavers was unable to discover Dustin’s identity, and because Mrs. Beavers did not have anyone named "Dustin" in her contacts, Mr. Beavers guessed "Dustin" was a pseudonym. The Beaverses separated for the final time on 16 December 2016.

On 1 April 2017, three and a half months after she and her husband separated, and over a year after Mr. Beavers discovered the compromising text messages with "Bestie," Mrs. Beavers began openly dating her coworker, Mr. McMican. The two had known each other through work since the summer of 2011 and had attended work events together with other coworkers. The record shows that in October 2016, the two exchanged ninety-eight text messages. There is also evidence that Mrs. Beavers and Mr. McMican interacted via Facebook. After learning that Mrs. Beavers and Mr. McMican were dating, Mr. Beavers concluded that Mr. McMican was his then-estranged wife’s alleged paramour. But while Mr. McMican admitted to becoming romantically and sexually involved with Mrs. Beavers in April 2017, there is no evidence the two were romantically involved before that time.

III. Standard of Review

[2, 3] We apply de novo review to both issues in this case. Issues of statutory interpretation are legal issues subject to de novo review. E.g., Saunders v. ADP TotalSource Fi Xi, Inc., 372 N.C. 29, 38, 822 S.E.2d 857 (2019). Moreover, "[t]his Court reviews decisions arising from trial court orders granting or denying motions for summary judgment using a de novo standard of review." Cummings v. Carroll, 379 N.C. 347, 358, 866 S.E.2d 675 (2021). Rule 56(c) of the North Carolina Rules of Civil Procedure states that summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C.G.S. § 1A-1, Rule 56 (2021). When evaluating a trial court’s decision to "grant or deny a summary judgment motion in a particular case, ‘we view the pleadings and all other evidence in the record in the light most favorable to the nonmovant and draw all reasonable inferences in that party’s favor.’ " Cummings, 379 N.C. at 358, 866 S.E.2d 675 (quoting N.C. Farm. Bureau Mut. Ins. Co. v. Sadler, 365 N.C. 178, 182, 711 S.E.2d 114 (2011)).

[4] To prevail on summary judgment, the moving party must meet "the burden (1) of proving an essential element of the opposing party’s claim is nonexistent, or (2) of showing through discovery that the opposing party cannot produce evidence to support an essential element of his or her claim." Lowe v. Bradford, 305 N.C. 366, 369, 289 S.E.2d 363 (1982) (first citing Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 251 S.E.2d 419 (1979); and then citing Zimmerman v. Hogg & Allen, P.A., 286 N.C. 24, 209 S.E.2d 795 (1974)). "If the moving party meets this burden, the nonmoving party must in turn either show that a genuine issue of material fact exists for trial or must provide an excuse for not doing so." Id. (first citing Econo-Travel Motor Hotel Corp. v. Taylor, 301 N.C. 200, 271 S.E.2d 54 (1980); then citing Moore, 296 N.C. at 470, 251 S.E.2d 419; and then citing Zimmerman, 286 N.C. at 29, 209 S.E.2d 795).

IV. N.C.G.S. § 52-13 and the Court of Appeals’ Decision in Rodriguez v. Lemus

[5] Our Court and the Court of Appeals previously have held that sexual conduct which occurs after a married couple separates but before the couple divorces, can be used to support alienation of affection and criminal conversation claims. See McCutchen...