UNMASKING DAMAGES

CAROLYN WOODRUFF JD, CPA, CVA

WOODRUFF FAMILY LAW GROUP 420 WEST MARKET STREET GREENSBORO, NC 336-272-9122 [email protected]

Carolyn Woodruff, J.D., CPA, CVA is a North Carolina Family Law Specialist and President of the preeminent Woodruff Family Law Group in Greensboro, North Carolina. She was graduated from Duke Law School with High Honors where she served as Research and Managing Editor of the Duke Law Review. As a North Carolina CPA, Carolyn has been a trailblazer in the area of business valuation and is a frequent writer and lecturer on business valuation and federal taxation. Carolyn is a Certified Valuation Analyst having met the requirements of this designation by the National Association of Certified Valuation Analysts. She serves on the public board of Blue Ridge Bankshares, Inc. (BRBS) and the local board of Carolina State Bank in Greensboro, NC. She is the only North Carolina female fellow in the distinguished American College of Tax Counsel. She is an instrument-rated multi-engine airplane pilot and avid ballroom show dancer.

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TABLE OF CONTENTS

ALIENATION OF AFFECTION AND CRIMINAL CONVERSATION ...... 3 I. Scope note ...... 3 II. Alienation of affection ...... 3 III. Criminal conversation ...... 8 IV. Discovery case study ...... 12 V. Damages awards ...... 14 JURY INSTRUCTION – MAIN ...... 19 N.C.P.I.—Civil 800.20 ...... 19 N.C.P.I.--Civil 800.22 ...... 23 N.C.P.I.—Civil 800.23 ...... 25 N.C.P.I.—Civil 800.23A ...... 28 N.C.P.I.—Civil 800.25 ...... 30 N.C.P.I.—Civil 800.26 ...... 33 N.C.P.I.—Civil 800.27 ...... 35 N.C.P.I.—Civil 800.27A ...... 37 JURY INSTRUCTION – PRESENT VALUE ...... 39 N.C.P.I.—Civil 810.96 ...... 39 N.C.P.I.—Civil 810.14 ...... 41 JURY INSTRUCTION – PER DIEM ...... 44 N.C.P.I.—Civil 810.56 ...... 44 JURY INSTRUCTIONS-PUNITIVE DAMAGES ...... 46 N.C.P.I.—Civil 810.98 ...... 46 DR. BROD ECONOMIC REPORT ...... 48

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ALIENATION OF AFFECTION AND CRIMINAL CONVERSATION

Carolyn J. Woodruff Woodruff Family Law Group

I. Scope note This presentation sets forth the elements of alienation of affection and criminal conversation. Part II covers the elements, damages, and statute of limitations for alienation of affection; Part III covers the same for criminal conversation. Part IV provides a case study on a discovery issue. Part V discusses alienation of affection and criminal conversation appellate cases upholding large damage awards and identifies factors supporting those awards.

There have been several challenges to the torts of alienation of affection and criminal conversation, including a 2017 case in which the Court of Appeals rejected constitutional challenges based on Due Process and First Amendment grounds. Malecek v. Williams, 804 S.E.2d 592 (N.C. Ct. App. 2017), review denied, 370 N.C. 381, 807 S.E.2d 574 (2017).

II. Alienation of affection Alienation of affection is the malicious and wrongful alienation of a genuine marital relationship between the plaintiff and his spouse. There are some differences depending on whether the cause of action arose from acts before or after October 1, 2009. The North Carolina Supreme Court held in 2006 that sexual conduct occurring after a married couple has separated, but before their divorce, is sufficient to support claims for alienation of affection. McCutchen v. McCutchen, 360 N.C. 280, 624 S.E.2d 620 (2006). However, in 2009, the General Assembly codified alienation of affection in a statute specifically limiting the torts to arise only from acts committed prior to a married couple’s separation. N.C. Gen. Stat. § 52-13(a).

A. Elements

1. Genuine marital relationship Plaintiff and his spouse were married and a genuine marital relationship existed between them. a. A “genuine marital relationship” is one where some degree of love and affection exists between the spouses.

Affections include love, society, companionship, and comfort of the other spouse. Darnell v. Rupplin, 91 N.C. App. 349, 371 S.E.2d 743 (1988).

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Legally protected marital interests include the affections, society and companionship of the other spouse, sexual relations and the exclusive enjoyment thereof. Sebastian v. Kluttz, 6 N.C. App. 201, 170 S.E.2d 104 (1969). b. The marital relationship need not be a perfect one nor one free of discord.

A plaintiff need not prove a marriage free from discord, only that some affection existed between the spouses. The plaintiff satisfied this element where he provided evidence that he and his wife had a “loving marriage” where she did housework, prepared family meals, attended church with the family, took family trips, and had an interest in sexual relations with her husband. Nunn v. Allen, 154 N.C. App. 523, 574 S.E.2d 35 (2002).

A plaintiff must produce evidence of love and affection, but need not prove that her spouse had no affection for anyone else or that the marriage was one of “untroubled bliss.” McCutchen v. McCutchen, 360 N.C. 280, 624 S.E.2d 620 (2006). The plaintiff satisfied this element where she produced evidence that the couple purchased a car together, maintained joint finances, and participated in marriage counseling sessions, including a session in which the husband said that he was “not headed toward divorce.”

The plaintiff produced sufficient evidence of a loving marriage where the couple maintained an active sexual relationship, vacationed together, she traveled with him on business trips, they coached their children’s soccer team together and volunteered in church and community organizations, and the husband often expressed his love for the plaintiff by writing romantic poetry, including a poem entitled “Why I Love You.” Hutelmyer v. Cox, 133 N.C. App. 364, 514 S.E.2d 554 (1999).

2. Alienation The genuine marital relationship between the plaintiff and his spouse was alienated.

Alienation means that the love and affection of the plaintiff’s spouse for the plaintiff was seriously diminished or destroyed.

Diminution often does not happen all at once, and the question of when alienation occurs is usually one for the jury. McCutchen v. McCutchen, 360 N.C. 280, 624 S.E.2d 620 (2006)

The plaintiff showed serious diminution or destruction by presenting evidence that his wife’s attention to housework and preparation of family meals, as well as her interest in sexual relations, began to decline. A year or two later, she stopped attending church with the family, did not want to take family trips and began sleeping separately from the plaintiff. The following year, she moved out of the marital home. Nunn v. Allen, 154 N.C. App. 523, 574 S.E.2d 35 (2002).

The plaintiff presented sufficient evidence that the love and affection that existed between he and his wife was alienated and destroyed where he testified that after the defendant started working with his wife, his wife began turning cold towards the plaintiff and their sex life started deteriorating. The plaintiff also testified that his wife turned down a trip to Europe and told him

4 she did not want to go anywhere with him. The plaintiff’s wife also told him she did not love him anymore and that she loved the defendant. Gray v. Hoover, 94 N.C. App. 724, 381 S.E.2d 472 (1989).

3. Causation, location, effect of separation The controlling or effective proximate cause of the alienation of the genuine marital relationship between the plaintiff and his spouse was malicious and wrongful conduct on the part of the defendant, which took place in the State of North Carolina, and for acts occurring on or after October 1, 2009, which occurred before the plaintiff and his spouse physically separated with the intent on the part of either the plaintiff or his spouse that the physical separation remain permanent. a. Causation

(1) Defendant’s conduct need not be the sole cause of the alienation

A defendant’s conduct must be merely the controlling or effective cause. Bishop v. Glazener, 245 N.C. 592, 96 S.E.2d 870 (1957).

The defendant’s conduct was the controlling and effective cause of the alienation of affection, where before she became involved with the plaintiff’s husband, plaintiff and husband had always resolved their differences. For example, the husband had previous affairs, but had been forgiven by the plaintiff before the defendant interfered with the relationship. There was also evidence that the plaintiff’s relationship with her husband was impaired by husband’s drinking, but that was not more than a contributing cause of the separation. Sebastian v. Kluttz, 6 N.C. App. 201, 170 S.E.2d 104 (1969).

The plaintiff demonstrated causation where, although she may have been rather argumentative, overbearing and domineering of conversation while her husband was a quiet, patient mild mannered man, for thirty years (until the relationship with defendant), the plaintiff and her husband managed to have an affectionate marital union. The plaintiff’s evidence tends to show that defendant, despite the plaintiff’s protests, continued to see the plaintiff’s husband on a regular, frequent basis and these visitations culminated in the ultimate separation of the plaintiff and her husband. The husband told the plaintiff that, unlike the plaintiff, the defendant was kind to him, had a soft voice, and was pleasant to be with. Heist v. Heist, 46 N.C. App. 521, 265 S.E.2d 434 (1980)

(2) Defendant’s conduct must be malicious and wrongful

Malice is shown by evidence that the defendant knew of the marriage and intentionally acted in a way likely to affect it. Nunn v. Allen, 154 N.C. App. 523, 574 S.E.2d 35 (2002).

Malice is conclusively presumed if the defendant engaged in sexual intercourse with the plaintiff’s spouse. Rodriguez v. Lemus, 810 S.E.2d 1 (N.C. Ct. App. 2018), review denied in part, dismissed in part, 817 S.E.2d 201 (N.C. 2018).

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The plaintiff showed causation where the defendant openly flirted with the plaintiff’s husband at work, dined with him alone, worked late hours alone with him, traveled with him on business, and eventually began an intimate relationship with him. Hutelmyer v. Cox, 133 N.C. App. 364, 514 S.E.2d 554 (1999).

“Luring” is not required. The defendant must just be an active and willing participant, not necessarily the initiator. Ward v. Beaton, 141 N.C. App. 44, 539 S.E.2d 30 (2000), Darnell v. Rupplin, 91 N.C. App. 349, 371 S.E.2d 743 (1988).

Evidence of numerous phone calls to the marital home by the defendant were not sufficient to demonstrate malicious conduct. The defendant and the plaintiff’s wife had an ongoing business relationship and thus the defendant allegedly had a valid, inoffensive reason for calling the marital home. In addition, although the plaintiff asked the defendant to stop calling the home, there was no indication that the phone conversations were marked by salacious whisperings, plans for clandestine meetings, or any other intonation of improper conduct by defendant. The calls may be proof of a “gregarious spouse” but not malicious conduct by the defendant. Coachman v. Gould, 122 N.C. App. 443, 470 S.E.2d 560 (1996). b. Location

The conduct must have taken place in the State of North Carolina.

The tortious injury occurs where a defendant’s alienating acts occur, not the state of the plaintiff’s residence or marriage. Therefore, the trial court erred by finding no subject matter jurisdiction, where the plaintiff lived in South Carolina, the defendant lived in North and South Carolina and some acts occurred in each state, although the bulk of the conduct occurred in South Carolina. The issue should at least have gone to the jury, because there were phone calls made from the state of North Carolina, as well as sexual acts in two trips to the state. Jones v. Skelley, 195 N.C. App. 500, 673 S.E.2d 385 (2009). See also Darnell v. Rupplin, 91 N.C. App. 349, 371 S.E.2d 743 (1988) (sufficient alienating acts occurred in North Carolina; even though plaintiff’s husband and defendant had sexual encounters in Virginia, D.C., and Maryland, they had two encounters in North Carolina before husband returned home from his temporary work assignment in North Carolina to Virginia).

Sufficient alienating conduct arose within North Carolina where the plaintiff’s wife and the defendant had sexual relations only in Cancun and Florida, but defendant picked up the wife in North Carolina and drove her to Indiana. While in North Carolina, they kissed and embraced each other and slept in the same hotel bed. Hayes v. Waltz, 246 N.C. App. 438, 784 S.E.2d 607 (2016). c. Effect of separation

For actions arising on or after October 1, 2009, the defendant’s conduct must have occurred before the plaintiff and his spouse physically separated with the intent on the part of either the plaintiff or his spouse that the physical separation remain permanent. N.C. Gen. Stat. § 52-13(a).

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B. Damages

1. Nominal damages.

If the defendant is found liable for alienation of affection, the plaintiff is entitled to nominal damages, even without proof of actual damages.

2. Actual damages

Compensatory damages may be based on loss of love, affection, society, assistance, companionship, comfort, sexual relationship, favorable mental attitude; mental anguish, shame, humiliation, or disgrace suffered by the plaintiff; injury to plaintiff’s health, feelings, or reputation; and any loss of support.

Compensatory damages need not be based on a pecuniary loss. Where the plaintiff’s income increased after his divorce, the jury award of $25,000 in actual damages was upheld based on loss of consortium, humiliation, shame, mental anguish, loss of sexual relations, and disgrace. Scott v. Kiker, 59 N.C. App. 458, 297 S.E.2d 142 (1982).

The plaintiff demonstrated damages where she showed a loss of income, life insurance, and pension benefits, as well as loss of consortium, mental anguish, humiliation, and injury to health. She became physically and emotionally ill, suffered from insomnia, lost 20 pounds due to her lack of appetite, and sought counseling to cope with the emotional pain and stress. Hutelmyer v. Cox, 133 N.C. App. 364, 514 S.E.2d 554 (1999).

Future damages consisting of college tuition benefits were not too speculative (at the time of trial, the children were ages ten, seven, and three) where the benefit was guaranteed to all employees, and there was no evidence that the college would stop providing the benefit. Oddo v. Presser, 358 N.C. 128, 592 S.E.2d 195 (2004) (citing the concurring and dissenting opinion in the court of appeals decision as the rationale: Oddo v. Presser, 158 N.C. App. 360, 581 S.E.2d 123 (2003).

3. Punitive damages

Punitive damages may be awarded in addition to compensatory damages where the conduct of the defendant was willful, aggravated, malicious, or of a wanton character. Sebastian v. Kluttz, 6 N.C. App. 201, 170 S.E.2d 104 (1969); Scott v. Kiker, 59 N.C. App. 458, 297 S.E.2d 142 (1982).

A $500,000 punitive damages award was upheld due to evidence of circumstances of aggravation in additional to malice. Those circumstances included the defendant’s public display of her relationship with the plaintiff’s husband. She held hands with him in the workplace, straightened his tie and brushed lint off of his suit at corporate events, and drank out of his cup at

7 a social gathering. Her actions meant that the entire office knew they were having an affair. She also invited him into her home overnight, traveled with him on business trips, and “was audacious enough” to call his home. Hutelmyer v. Cox, 133 N.C. App. 364, 514 S.E.2d 554 (1999).

Evidence of sexual relations allows a plaintiff to get to the jury on the issue of punitive damages. In this case, the issue properly went to the jury because the plaintiff presented evidence that the defendant had sex with the plaintiff’s husband at least two times. There were also other aggravating circumstances, such as the defendant coming to the plaintiff’s house unannounced and asking if they could be friends. Ward v. Beaton, 141 N.C. App. 44, 539 S.E.2d 30 (2000).

C. Statute of limitations

1. Actions arising from acts occurring on or after October 1, 2009

A plaintiff must file the action within three years of the date of the last act of the defendant giving rise to the plaintiff’s claim. N.C. Gen. Stat. § 52-13(b) (2009).

The law further provides that if the plaintiff and the plaintiff’s spouse have physically separated with the intent on the part of either the plaintiff or his spouse that the physical separation remain permanent, then no act of the defendant which occurs following such separation may give rise to the plaintiff’s alienation of affection claim.

2. Actions arising from acts occurring prior to October 1, 2009

A plaintiff must file the action within three years of the date when the alienation between the plaintiff and his spouse became complete. The spouses need not be living together when the cause of action accrues. McCutchen v. McCutchen, 360 N.C. 280, 624 S.E.2d 620 (2006).

III. Criminal conversation Criminal conversation is sexual intercourse with the spouse of another person during the marriage. As with alienation of affection, there are differences in the cause of action, depending on whether the action arises from acts occurring before or after October 1, 2009. N.C. Gen. Stat. § 52-13(a) specifically limits the tort to arise only from acts committed prior to a married couple’s separation.

A. Elements

1. Marital relationship Conduct occurred during the marriage of the plaintiff and his spouse.

It is not necessary that the defendant be aware of the marriage.

Unlike alienation of affection claims, it is not necessary that the marriage be one of love and affection. The cause of action is based on the violation of the fundamental right to exclusive

8 sexual intercourse between spouses. Sebastian v. Kluttz, 6 N.C. App. 201, 170 S.E.2d 104 (1969).

2. Conduct The defendant had sexual intercourse with the spouse of the plaintiff.

A single act is enough to allow to the plaintiff to recover damages. Jones v. Skelley, 195 N.C. App. 500, 673 S.E.2d 385 (2009).

The jury may not consider whether the spouse consented to or enticed the sexual intercourse. Scott v. Kiker, 59 N.C. App. 458, 297 S.E.2d 142 (1982). The only substantive defense is the consent of the plaintiff. Cannon v. Miller, 71 N.C. App. 460, 322 S.E.2d 780 (1984), vacated on other grounds, 313 N.C. 324, 327 S.E.2d 888 (1985).

The jury cannot consider the plaintiff’s behavior. Where the plaintiff admitted to being unfaithful to his wife, the admission did not bar a claim for criminal conversation. The court rejected the defendant’s argument that he should not be liable for damages because the cause of action for criminal conversation is based on the violation of exclusive sexual intercourse between spouses. Scott v. Kiker, 59 N.C. App. 458, 297 S.E.2d 142 (1982).

The plaintiff may rely on circumstantial evidence, although the evidence must rise to more than mere conjecture. Evidence is generally sufficient if the plaintiff can show opportunity and inclination. Rodriguez v. Lemus, 810 S.E.2d 1 (N.C. Ct. App. 2018), review denied in part, dismissed in part, 817 S.E.2d 201 (N.C. 2018).

The plaintiff demonstrated sexual intercourse through circumstantial evidence with evidence that the plaintiff caught the defendant in plaintiff’s trailer at a lake with the defendant hanging onto the wife’s arm, that the plaintiff’s wife and the defendant were living together in a condominium in Florida while plaintiff and his wife were still married, and that the defendant admitted to plaintiff in a phone conversation that he was having sex with the plaintiff’s wife. The court noted that the defendant did not raise any objection to the testimony, nor did the defendant or plaintiff’s wife testify at trial. Gray v. Hoover, 94 N.C. App. 724, 381 S.E.2d 472 (1989).

A plaintiff failed to present sufficient evidence of sexual intercourse where he presented evidence of frequent phone calls between his wife and the defendant, an ambiguous statement by his wife that she had “been with” defendant (which was subject to multiple interpretations, especially since she was in a “medicated stupor” when the statement was made), and a car ride with the wife and defendant which the plaintiff observed. The defendant had also admitted to a sexual relationship with the wife which ended more than three years prior. The court found a lack of opportunity, noting that phone calls and car rides are not the necessary type of “opportunities” for sexual intercourse. Coachman v. Gould, 122 N.C. App. 443, 470 S.E.2d 560 (1996).

3. Location Conduct took place in the State of North Carolina.

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Where the plaintiff’s husband and the defendant engaged in a single occurrence of sexual intercourse in North Carolina, the trial court erred by granting summary judgment to the defendant based on lack of subject matter jurisdiction. Summary judgment should have been granted to the plaintiff, even though at the time of the occurrence, all of the parties were South Carolina, not North Carolina residents. The court rejected the defendant’s argument that North Carolina has no interest in the exclusive right of the sexual relationship between residents of South Carolina because for actions arising in tort, the law of the state where the tort was allegedly committed controls the substantive issues of the case. There was no issue of material fact regarding plaintiff’s criminal conversation claim arising out of the June 2004 sexual intercourse in North Carolina and therefore the plaintiff was entitled to judgment as a matter of law. Jones v. Skelley, 195 N.C. App. 500, 673 S.E.2d 385 (2009).

4. Separation as a bar a. For acts occurring on or after October 1, 2009

The sexual intercourse between the defendant and the spouse of the plaintiff must have occurred prior to the physical separation of the plaintiff and his spouse with the intent on the part of either the plaintiff or his spouse that the physical separation remain permanent. N.C. Gen. Stat. § 52- 13(a) (2009).

Evidence of post-separation acts may be considered for the purpose of corroborating or supporting any evidence of conduct prior to the separation. Rodriguez v. Lemus, 810 S.E.2d 1 (N.C. Ct. App. 2018), review denied in part, dismissed in part, 817 S.E.2d 201 (N.C. 2018). b. For acts occurring prior to October 1, 2009

Separation does not bar an action for criminal conversation occurring during that separation. Sebastian v. Kluttz, 6 N.C. App. 201, 170 S.E.2d 104 (1969); Brown v. Hurley, 124 N.C. App. 377, 477 S.E.2d 234 (1996); Bryant v. Carrier, 214 N.C. 191, 198 S.E. 619 (1938).

B. Damages

1. Nominal damages

If the defendant is found liable for criminal conversation, the plaintiff is entitled to nominal damages, even without proof of actual damages.

2. Actual damages

The measure of damages is incapable of precise measurement, but in awarding actual damages, the jury may consider any mental anguish, shame, humiliation or disgrace suffered by the plaintiff; any loss of sexual relations between the plaintiff and his spouse; any injury to reputation, loss of support or other economic loss; any other adverse effect on the quality of the

10 marital relationship; or the loss by the plaintiff of the consortium of his spouse. Consortium means the marital fellowship of husband and wife, and the right of each to the company, cooperation, affection, and aid of the other. Hutelmyer v. Cox, 133 N.C. App. 364, 514 S.E.2d 554 (1999); Sebastian v. Kluttz, 6 N.C. App. 201, 170 S.E.2d 104 (1969).

The plaintiff’s infidelity could be considered when determining damages, because it impaired the marital relationship. Scott v. Kiker, 59 N.C. App. 458, 297 S.E.2d 142 (1982).

The plaintiff submitted substantial evidence of his mental anguish and humiliation, including testimony from his father that he was depressed and his own testimony that he had consulted a clergyman to help with deal with the emotional turmoil caused by the affair between his wife and the defendant. There was also evidence that the plaintiff (up until a week before trial) tried many times to speak with his wife by leaving notes on her car. Nunn v. Allen, 154 N.C. App. 523, 574 S.E.2d 35 (2002)

Evidence of a portion of the damages suffered by the plaintiff was not too speculative, where the damages were based on a tuition benefit the plaintiff lost because the defendant’s actions caused him such mental anguish that he lost his job at a college. Oddo v. Presser, 358 N.C. 128, 592 S.E.2d 195 (2004).

The jury cannot consider the plaintiff’s behavior. Where the plaintiff admitted to being unfaithful to his wife, the admission did not bar damages for criminal conversation. The court rejected the defendant’s argument that he should not be liable for damages because the cause of action for criminal conversation is based on the violation of exclusive sexual intercourse between spouses. The plaintiff’s infidelity could be considered when determining damages, because it impaired the marital relationship. Scott v. Kiker, 59 N.C. App. 458, 297 S.E.2d 142 (1982).

3. Punitive damages

Punitive damages may be awarded for criminal conversation. Punitive damages awarded shall not exceed the greater of three times the amount of compensatory damages or $250,000 whichever is greater. N.C. Gen. Stat. § 1D–25(b); Hutelmyer v. Cox, 133 N.C. App. 364, 514 S.E.2d 554 (1999).

4. Combined damages

Proof of alienation of affection does not require criminal conversation and proof of criminal conversation does not require alienation of affection. However, because the two causes of action are so intertwined, when a plaintiff sues for both, only one issue of compensatory and one issue of punitive damages should be submitted to the jury. Sebastian v. Kluttz, 6 N.C. App. 201, 170 S.E.2d 104 (1969).

C. Statute of limitations

1. Actions arising from acts occurring on or after October 1, 2009

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A plaintiff must file the action within three years of the date of the last act of the defendant giving rise to the plaintiff’s claim. N.C. Gen. Stat. § 52-13(b).

If the plaintiff and the plaintiff’s spouse have physically separated with the intent on the part of either the plaintiff or his spouse that the physical separation remain permanent, then no act of the defendant which occurs following such physical separation may give rise to the plaintiff’s criminal conversation claim.

2. Actions arising from acts occurring prior to October 1, 2009

A plaintiff must file the action within three years of the date it became apparent or ought reasonably to have become apparent to the plaintiff that the defendant had committed criminal conversation with the plaintiff’s spouse. Misenheimer v. Burris, 360 N.C. 620, 637 S.E.2d 173 (2006).

IV. Discovery case study

A. Background

The plaintiff, Mrs. Smith, filed an alienation of affection and criminal conversation action against Mrs. Jones, alleging that Mrs. Jones wrongfully alienated the affections of Mr. Smith (Mrs. Smith’s former husband). The extramarital affair between Mrs. Jones and Mr. Smith also gave rise to a previous claim for similar relief, made by Mrs. Jones’ husband, Mr. Jones, against Mr. Smith. That claim was settled in a written agreement between Mr. Jones and Mr. Smith. In Mrs. Smith’s action, she filed a notice to depose Mr. Jones and requested that Mr. Jones produce all agreements with Mr. Smith. Both Mr. Jones and Mr. Smith attempted to quash the discovery (citing a confidential clause in the settlement agreement).

B. Issues

1. Relevance arguments

Mr. Jones and Mr. Smith argued that the agreement is not relevant. For example, the damages suffered by Mr. Jones are essentially for emotional distress, loss of consortium, and loss of reputation, and those factors are specific to Mr. Jones. In addition, a settlement agreement is not an admission of culpability. And, they argued, disclosing settlement agreements will discourage parties from settling cases. Given those factors, the agreement is not sufficiently relevant to justify disregarding the confidentiality provision in the agreement.

Mrs. Smith asserted that the scope of discovery for her alienation of affection and criminal conversation action was broad enough to cover the agreement, because the agreement was relevant to the subject matter of the action (i.e., the extramarital affair between Mr. Smith and Mrs. Jones) and could contain factual material directly relevant to Mrs. Smith’s case. For example, evidence of specific dates on which sexual activity occurred, statements relevant to the cause or causes of the breakdown of the Smith marriage, or evidence of money spent by Mr.

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Smith in pursuance of his relationship with Mrs. Jones (evidence that could be important for proof of damages). Given the subject of the agreement, there is a reasonable probability that it contains material relevant to this action. She does not seek to use the settlement agreement as an admission but to determine whether the settlement agreement contains evidence, or leads to other evidence, relevant to her claim against Mrs. Jones. The evidence would therefore not be barred by the rule against the admission of settlement negotiations.

2. Privilege arguments

Mr. Smith and Mr. Jones made several argument in favor of privilege. The first was marital privilege: “No husband or wife shall be compellable in any event to disclose any confidential communication made by one to the other during their marriage.” N.C. Gen. Stat. § 8-57(c). The marital privilege applies when (1) a communication is made between married persons, (2) the communication is confidential, and (3) the communication is made during the marriage. The settlement agreement is clearly not a “communication between married persons,” but the parties raised the issue as relevant to questions that might be asked of Mr. Jones in depositions. Mrs. Smith argued that it was premature to raise the privilege at this point—any objection should wait until a specific question has been asked.

Mr. Smith and Mr. Jones also argued that disclosure of the settlement agreement, and perhaps questions to be asked at the deposition, will require them to breach a contract with a third party. But, Mrs. Smith argued, she did not sign the agreement and is not contractually bound by it. Without the agreement or at least the confidentiality clause in evidence, there was no evidence of the confidentiality provision. It is possible that Mr. Smith and Mr. Jones may have agreed only to refrain from voluntary disclosure of certain information. Disclosure that is required by a subpoena is involuntary disclosure, which may not be a breach of the agreement. Mr. Smith and Mr. Jones should have to produce the confidentiality agreement. And even if the confidentiality provision does bar involuntary disclosure, it is entirely unenforceable. If a husband buys a mink coat with marital funds and gives it to his paramour, can he agree with the paramour that neither will disclose the gift to the wife and thereby avoid discovery in a divorce case? Recognizing such a privilege would provide an incentive for defendants to sign confidentiality agreements with friendly third parties and avoid discovery. At the time the agreement was executed, Mrs. Smith’s interest in the extramarital affair was obvious to all parties. If a confidentiality clause is present, it was added to the agreement voluntarily by Mr. Smith and Mr. Jones, in deliberate disregard of rights they had every reason to foresee. They cannot, by contract signed only by them and not by Mrs. Smith, restrict Mrs. Smith’s right to seek discovery of information relevant to the subject matter of this lawsuit.

Mr. Smith asserted that a privilege existed because information could be revealed that is the subject of his personal interest, right, and privilege. But it is inherent in the torts of alienation of affections and criminal conversation that matters involving sexual relationships will be discussed in court. To recognize some sort of “personal interest privilege” barring discussion of such relationships is effectively to repeal these torts, which the North Carolina Supreme Court has emphatically refused to do.

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Mr. Jones asserted an “emotional distress privilege,” arguing that answering deposition questions would force him to relive the incidents that caused him great suffering. North Carolina courts have not considered an emotional distress privilege. Federal courts, however, have taken up the question and expressly held that similar claims of emotional distress are not a valid basis for granting a protective order against a deposition. Mr. Jones further protested that he would be unduly burdened by having to recall extremely difficult periods of his marriage. But his emotional distress did not stop him from pursuing a claim for alienation of affections and criminal conversation against Mr. Smith, and apparently from recovering a substantial amount. He was willing to relive past experiences for the benefit of his own claim; he should be required to do the same thing for the benefit of Mrs. Smith’s claim.

V. Damages awards

A. Hutelmyer v. Cox, 133 N.C. App. 364, 514 S.E.2d 554 (1999)

An ex-wife sued her former husband’s new wife for alienation of affection and criminal conversation. The jury awarded $500,000 in compensatory damages and $500,000 in punitive damages.

The plaintiff and her husband were married in 1978 and lived together with their three children until 1996, at which point the husband left to move in with the defendant. The plaintiff produced evidence of their genuine marital relationship, including that they had an active sexual relationship, vacationed together, she traveled with him on business trips, they coached their children’s soccer team together and volunteered together in church and community organizations. The plaintiff’s husband often expressed his love for her by writing romantic poetry, including a poem entitled “Why I Love You” in 1981 and a sequel, “Why I Love You, II” in 1990. For Valentine’s Day in 1992, he recorded a collection of love songs for her. The appellate court agreed that the evidence tended to show that prior to 1993, the couple had a “fairy tale marriage.” The appellate decision reprinted the “Why I Love You, II” poem in its entirety.

The defendant’s behavior was discussed at length by the court. She worked as the husband’s secretary starting in 1986. She separated from her husband in 1992 and at that point, became openly flirtatious with the husband. She also changed her appearance and cut and dyed her hair and began wearing short skirts, low-cut blouses, and tight clothing to the office. She began accompanying the husband on business trips. There was testimony that the husband and defendant flaunted their familiarity with one another at the workplace. The defendant claimed that the husband told her he had moved out of the marital home into an apartment, but the appellate court agreed that the love and affection between the plaintiff and her husband was alienated and destroyed by the defendant’s conduct, citing her open flirtation, spending time alone with him, working late hours alone with him and traveling with him, and their sexual relationship.

Compensatory damages were justified by evidence that the plaintiff became physically ill after the husband left. She suffered from insomnia, lost 20 pounds, and sought counseling.

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Punitive damages for alienation of affection were justified by the defendant’s public display of the intimate nature of her relationship with the husband. The two held hands in the workplace, the defendant frequently straightened the husband’s tie and drank out of his cup at an office social gathering. Most of the co-workers knew of the affair. The defendant also welcomed the husband into her home at all hours, and was “audacious enough” to call the plaintiff’s home on Thanksgiving Day in an attempt to discover the husband’s whereabouts. Punitive damages for criminal conversation were justified by the fact that the defendant engaged in a sexual relationship with the plaintiff’s husband for several years. The court also noted several general factors supporting punitive damages: reprehensibility of the conduct, likelihood of serious harm, degree of the defendant’s awareness of the consequences of the conduct, duration of the conduct, and actual damages suffered by the plaintiff.

B. Ward v. Beaton, 141 N.C. App. 44, 539 S.E.2d 30 (2000)

The appellate court affirmed the award of $52,000 compensatory and $43,000 punitive damages. The plaintiff’s husband worked in a county sheriff’s department and first met the defendant in early 1998 when he responded to several domestic disturbance reports at her home. Several months later, the defendant began inviting the plaintiff’s husband to her home. On numerous occasions, she contacted him at work and on one occasion, she arrived at the police station asking to speak to plaintiff’s husband. They spent an increasing amount of time together and the plaintiff’s husband moved into the defendant’s home in July 1998, where he stayed for about two weeks. A sexual relationship developed between the defendant and plaintiff’s husband during this time.

The defendant argued that the evidence was insufficient to support an award of punitive damages. But the court noted that evidence of sexual relations will allow the issue of punitive damages in an alienation of affection case to go to the jury. The court also commented on other aggravating circumstances justifying punitive damages, including the fact that the defendant appeared at the plaintiff’s home, asking if they could be friends. The court rejected the defendant’s argument that the trial court erred in admitting evidence of her assets before the jury determined that compensatory damages were warranted. Because she did not request a bifurcated trial on the issue of punitive damages, evidence regarding her assets was admissible as part of the plaintiff’s case.

C. Oddo v. Presser, 358 N.C. 128, 592 S.E.2d 195 (2004)

The plaintiff was awarded $910,000 in compensatory and $500,000 in punitive damages. The Court of Appeals remanded the case for a new trial on the issue of compensatory damages, but the North Carolina Supreme Court reversed on that issue (and upheld the Court of Appeals decision as to the punitive damage award).

The plaintiff and his wife were married in 1988. In February 1999, the wife had become unhappy with the marriage and contacted a former boyfriend. The two met several times during March 1999, had phone conversations, and exchanged emails. The next month, the plaintiff and wife separated. The plaintiff suffered such mental anguish that he lost his primary job as an investment advisor and his secondary job as a wrestling coach at Davidson College.

15

The court held that the punitive damages award was not excessive, because the plaintiff presented evidence of aggravating circumstances. Evidence of sexual relations allows a plaintiff to get to the jury on the issue of punitive damages and the amount of the award was upheld because it was substantially less than the compensatory damages award (and thus far under the cap of three times compensatory damages).

On compensatory damages, one issue was related to the loss of the plaintiff’s income as an investment advisor. The defendant argued that the claimed future income was too speculative, based on the uncertainties of future commissions, growth/decline of financial markets, etc. But the court found that while those damages may have been less certain, the expert testimony was sufficient to support the award. The defendant also argued that most men in the plaintiff’s shoes would not have lost their jobs due to mental distress and depression, but that was a question for the jury.

The other main compensatory damages issue related to the plaintiff’s benefits through his secondary job. His side job as a wrestling coach at Davidson gave him access to Davidson’s tuition benefit program. The college paid 80% of the tuition for an employee’s child, or 70% if the child attended a school other than Davidson. The plaintiff’s expert (an economics professor from UNC-Greensboro) used a benchmark rate of inflation to calculate the probable cost of tuition at Davidson through the period of time the plaintiff’s children would likely attend college (at the time of trial, they were ten, seven, and three years of age). The court held that the evidence was not overly speculative, because the youngest was at least three and other appellate decisions have upheld damages awards for lost earning capacity for children less than three. Also, although the plaintiff did not offer evidence that the tuition program would continue to exist in the future, it was currently guaranteed to all employees and there was no evidence that it would cease to exist.

D. Shackelford v. Lundquist, 233 N.C. App. 787, 759 S.E.2d 711 (2014) (unpublished)

The jury awarded $5,000,000 in compensatory and $4,000,000 in punitive damages. The plaintiff and her husband were married in 1972. In 2004, the defendant and the husband began having an affair. The plaintiff alleged that the defendant (who was then the dean at a local college) began and continued a course and pattern of conduct that interfered with the loving marital relationship. The affair lasted for several years. The defendant lived in New York at the time of trial and did not appear at trial or have counsel present. Most of the issues on appeal were on around the defendant’s argument that the trial court had erred when it denied her emergency motion for a continuance. The appellate court rejected her arguments, because she had not done much (if anything) to preserve her rights. She sent several letters to the clerk, stating that she did not have an attorney and could not afford one. But her responses and requests came after deadlines and she failed to comply with local rules. She failed to give the lawsuit the attention a prudent person would give and if she was unaware of the trial date, it was because of her own lack of diligence.

E. Hayes v. Waltz, 246 N.C. App. 438, 784 S.E.2d 607 (2016)

16

The plaintiff sued for alienation of affection, arising out of the defendant’s extra-marital relationship with the plaintiff’s wife. A jury awarded compensatory damages of $82,500 and punitive damages of $47,000. The trial judge vacated the punitive damage award and both sides appealed. The court of appeals reversed and remanded the decision on punitive damages, ordering the trial judge to provide a written opinion setting forth the reasons why the evidence was insufficient to support the jury’s verdict.

The couple was married in 2000. They had two children and the plaintiff legally adopted his wife’s child from her prior marriage. In 2006, the family moved to North Carolina, where the wife worked as a legal administrative assistant for Bayer. In February 2011, she went to a work conference in Cancun and met the defendant (also a Bayer employee), who lived in Indiana. The two engaged in sexual relations for two nights while at the conference and then returned home to North Carolina and Indiana. In March-June 2011, the wife and defendant communicated frequently. They exchanged 423 text messages and phone calls during the month of March, 977 in April, 1,093 in May, and 894 in June. They spent over 26 hours on the telephone together during this time period. The plaintiff noticed the phone calls on the bill and called the defendant (who did not answer, but informed the wife of the call). The wife told the plaintiff to stop calling the number, telling him “He’s not going to answer.” She also admitted to several previous affairs. The plaintiff then called the defendant from the wife’s phone and the defendant admitted that he had had sex with the plaintiff’s wife in Cancun and that he knew she was married. The plaintiff told the defendant to leave his wife alone, because they were going to try and work things out. The plaintiff went to Florida to pick up the children and while he was out of town, the defendant drove from Indiana to North Carolina to pick up his own children and also picked up the wife and took her to Indiana, where they spent about a week together.

On appeal, the defendant argued that none of the sexual encounters took place in North Carolina. But the court found that other intentional conduct that would have affected the marital relationship did occur in North Carolina: the voluminous number of text messages and phone calls, many of which were late at night or on weekends. The defendant asserted that they were work related calls, with some discussions of topics such as travel and raising children. But the fact that the defendant admitted that he chose not to answer the phone call from the plaintiff because he had an inkling it was from the plaintiff (and then immediately texted the wife to let her know her husband was trying to contact him) allowed the jury to find that the communications between the wife and defendant were not solely business related. Also, after the plaintiff told the defendant to leave his wife alone, the defendant came to North Carolina and took her on a six-day trip. This was less than a week after being told to leave her alone. The wife had had previous affairs, but the plaintiff testified that they had gone to counseling and “moved on” and that this affair was different.

The compensatory damages award was supported by the plaintiff’s emotional and financial suffering. He lost the support of the wife’s income and the marital home went into foreclosure because he could not pay the mortgage payment on his own. He also suffered emotionally from having his children no longer live with him full time and testified that friends and others in the community viewed and treated him differently.

17

The court held that the punitive damages award should not have been set aside without the trial court addressing specifically the evidence it found to be lacking on the issue of aggravating factors.

F. Rodriguez v. Lemus, 810 S.E.2d 1, 2 (N.C. Ct. App. 2018), review denied in part, dismissed in part, 817 S.E.2d 201 (N.C. 2018)

An award of $65,000 was upheld. The plaintiff and her husband married in 2007. The defendant was a family friend who attended the couple’s wedding and spent time with them. In 2011, the plaintiff began noticing that the marriage seemed to be changing, checked her husband’s phone, and discovered that he and the defendant were in regular contact (for example, 120 contacts in one month in early 2012). The husband and defendant denied any wrongdoing, but the plaintiff found a credit card bill for stays at two different hotels, which occurred when her husband was supposed to be at work. She also learned that the defendant was at one of the hotels. The plaintiff contacted the hotel, obtained a copy of the bill, and was told that her husband had been there with an unidentified woman. In April 2012, the husband told the plaintiff their relationship was over and moved out of the marital home. Less than three weeks later, the plaintiff gave birth (to her and her husband’s first child). The husband began living with the defendant, who gave birth to a child in October 2013. The issue in this case was whether evidence of post-separation acts is admissible to support an inference of pre-separation acts constituting alienation of affection or criminal conversation. The court held that evidence of post-separation conduct may be used to corroborate evidence of pre-separation conduct and can support claims for alienation of affection and criminal conversation, so long as the evidence of pre-separation conduct is sufficient to give rise to more than mere conjecture.

The pre-separation conduct included the phone records (120 contacts in a one-month period, all at times when the husband was not at home), hotel charges on the husband’s credit card, information from a hotel that the husband had been there with a woman, and social media postings by the defendant and the husband. Post-separation conduct included the fact that the husband began living with the defendant in late 2012 or early 2013, the defendant gave birth to a child in October 2013 and gave it the husband’s first name, the husband told the plaintiff that they could not reconcile because he loved the defendant and because she was pregnant, and the defendant admitted that she had sex with the husband after the separation. The court found that to be sufficient evidence to corroborate the evidence of pre-separation conduct, and found that it was reasonable to infer that the defendant was the woman with the husband at the hotel.

18

JURY INSTRUCTION – MAIN

N.C.P.I.—Civil 800.20 ALIENATION OF AFFECTION. GENERAL CIVIL VOLUME DECEMBER 2016 ------

NOTE WELL: N.C. Gen. Stat. § 52-13 (a), effective October 1, 2009, and applicable to actions arising from acts occurring on or after that date, provides as follows: No act of the defendant shall give rise to a cause of action for alienation of affection . . . that occurs after the plaintiff and the plaintiff's spouse physically separate with the intent of either the plaintiff or plaintiff's spouse that the physical separation remain permanent. This statutory amendment is incorporated into the bracketed alternative portion of the third element in this instruction which should be used in the trial of actions arising from acts occurring on or after October 1, 2009. For actions arising from acts occurring prior to October 1, 2009, which are governed solely by the North Carolina Supreme Court decision in McCutchen v. McCutchen, 360 N.C. 280, 624 S.E. 2d 620 (2006), use of this instruction without the bracketed alternative portion of the third element remains appropriate.

The (state number) issue reads: “Did the defendant1 maliciously and wrongfully cause alienation of a genuine marital relationship between the plaintiff and his spouse?”

On this issue the burden of proof is on the plaintiff. This means that the plaintiff must prove, by the greater weight of the evidence, three things:2

First, that the plaintiff and his spouse were married and that a genuine marital relationship existed between them. A genuine marital relationship is one where some degree of love and affection exists between the spouses. Love and affection may be demonstrated by [society] [assistance] [companionship] [comfort] [sexual relationship] [favorable mental attitude] between the spouses.3 The marital relationship need not be a perfect one nor one free of discord, but must be characterized by some degree of love and affection.

Second, that the genuine marital relationship between the plaintiff and his spouse was alienated. Alienation means the destruction or serious diminution of the love and affection of one person

19 for another.4 The plaintiff must prove by the greater weight of the evidence that the love and affection of his spouse for him was seriously diminished or destroyed.5

And third, that the controlling or effective proximate cause of the alienation of the genuine marital relationship between the plaintiff and his spouse6 was malicious and wrongful conduct on the part of the defendant [which took place in the State of North Carolina7] [which occurred before the plaintiff and his spouse physically separated with the intent on the part of either the plaintiff or his spouse that the physical separation remain permanent8].

Conduct is malicious when it is intended to (or is recklessly indifferent to the likelihood that it will) destroy or diminish a genuine marital relationship.9

Malice may be shown by evidence that the defendant knew of the marriage between the plaintiff and his spouse and acted intentionally in a way that would probably affect the marriage.10 Conduct is wrongful when it amounts to an unjustified or unexcused invasion of a genuine marital relationship. (The consent of the plaintiff’s spouse to the conduct of the defendant is no justification or excuse.)11 (A parent's advice to his child concerning the child's marital relationship is not, without more, wrongful conduct. To be wrongful, such advice must be given in bad faith or for an improper motive.)12

A proximate cause is a cause that in a natural and continuous sequence produces alienation of a genuine marital relationship, and is a cause that a reasonable and prudent person in the same or similar circumstances could have foreseen would probably produce such alienation.

There may be more than one proximate cause of the alienation of a genuine marital relationship. The plaintiff is not required to prove that the defendant's conduct was the sole proximate cause of the alienation of the genuine marital relationship between the plaintiff and his spouse [or that the defendant's conduct resulted in [adultery] [a separation] [divorce]].

Rather, the plaintiff must prove by the greater weight of the evidence that, even though there may have been other contributing causes, the defendant's conduct was the controlling or effective proximate cause of the alienation of the genuine marital relationship between the plaintiff and his spouse.13

[The malicious and wrongful conduct of the defendant must consist of [an act] [acts] occurring prior to the physical separation of the plaintiff and his spouse with the intent on the part of either the plaintiff or his spouse that the physical separation remain permanent.14

This means that a determination that the malicious and wrongful conduct of the defendant was the controlling or effective proximate cause of the alienation of the genuine marital relationship between the plaintiff and his spouse may not be based upon any act[s] of the defendant which occurred after the plaintiff and his spouse physically separated with the intent on the part of either the plaintiff or his spouse that the physical separation remain permanent.] [Evidence of conduct of the defendant occurring after the plaintiff and his spouse physically separated with the intent on the part of either the plaintiff or his spouse that the physical separation remain permanent may not be considered by you in your determination of any fact in

20 this trial, but may be considered only for the purpose of corroborating or supporting any evidence of malicious and wrongful conduct on the part of the defendant occurring before the plaintiff and his spouse physically separated.15]]

Finally, as to this issue on which the plaintiff has the burden of proof, if you find by the greater weight of the evidence that the plaintiff and his spouse were married and that a genuine marital relationship existed between them, that this genuine marital relationship was alienated, and that the effective or controlling proximate cause of the alienation of that genuine marital relationship was malicious and wrongful conduct on the part of the defendant [which occurred prior to the physical separation of the plaintiff and his spouse with the intent on the part of either the plaintiff or his spouse that the physical separation remain permanent], then it would be your duty to answer this issue “Yes” in favor of the plaintiff. If, on the other hand, you fail to so find, then it would be your duty to answer this issue “No” in favor of the defendant.

1 “A person may commence a cause of action for alienation of affection . . . against a natural person only.” N.C. Gen. Stat. § 52-13(c) (2009). This section, effective October 1, 2009, applies to actions arising from acts occurring on or after that date. 2009 N.C. Sess. Laws 400. 2 See N.C. Gen. Stat. § 52-13(a); McCutchen v. McCutchen, 360 N.C. 280, 283, 624 S.E.2d 620, 623 (citation omitted). 3 An alienation of affection claim “is comprised of wrongful acts which deprive a married person of the affections of his or her spouse—love, society, companionship and comfort of the other spouse. . . . The gist of the tort is an interference with one spouse’s mental attitude toward the other, and the conjugal kindness of the marital relation. . . .” Darnell v. Rupplin, 91 N.C. App. 349, 350, 371 S.E.2d 743, 744 (1988) (citation omitted); see also Sebastian v. Kluttz, 6 N.C. App. 201, 206, 170 S.E.2d 104, 106 (1969) (finding that alienation claim protects against harm to “legally protected marital interests,” including “the affections, society and companionship of the other spouse, sexual relations and the exclusive enjoyment thereof”). 4 McCutchen, 160 N.C. at 283-84, 624 S.E.2d at 623 (citation omitted). 5 Nunn v. Allen, 154 N.C. App. 523, 533, 574 S.E.2d 35, 42 (2002) (citation omitted). 6 Id.; Bishop v. Glazener, 245 N.C. 592, 596, 96 S.E.2d 870, 873 (1957) (“The wrongful and malicious conduct of the defendant need not be the sole cause of the alienation of affections. It suffices . . . if the wrongful and malicious conduct of the defendant is the controlling or effective cause of the alienation, even though there were other causes, which might have contributed to the alienation.” (citations omitted)); Heist v. Heist, 46 N.C. App. 521, 523-24, 265 S.E.2d 434, 436 (1980) (quoting Bishop, 245 N.C. at 596, 96 S.E. at 873). 7 After noting that alienation of affections is a “transitory tort,” the North Carolina Court of Appeals explained that the substantive law applicable to a transitory tort is the law of the state where the tortious injury occurred . . . not the locus of the plaintiff’s residence or marriage. Accordingly, where the defendant’s involvement with the plaintiff’s spouse spans multiple states, for North Carolina substantive law to apply, a plaintiff must show that the tortious injury occurred in North Carolina. Jones v. Skelley, 195 N.C. App. 500, 506, 673 S.E.2d 385, 389-90 (2009) (internal citations, quotation marks, brackets and ellipses omitted); see also Hayes v. Waltz, ___ N.C. App. __, __, 784 S.E.2d 607 (2016). If there is a question as to where the tortious injury occurred, “the issue is generally one for the jury.” Jones v. Skelley, 195 N.C. App. at 507; 673 S.E.2d at 390. 8 See supra note 1; N.C. Gen. Stat. § 52-13(a). 9 See Nunn, 154 N.C. App. at 539, 574 S.E.2d at 45-46 (approving this instruction); Sebastian, 6 N.C. App. at 206, 170 S.E.2d at 106; Darnell, 91 N.C. App. at 350, 371 S.E.2d at 745. 10 Nunn, 154 N.C. App. at 533, 574 S.E.2d at 42; see also Suzanne Reynolds, 1 Lee’s North Carolina Family Law § 5.46(A), 396 (5th ed. 2009) (“Since the tort requires proof of intent, . . . the defendant may successfully defend by establishing that he or she did not know the person was married.”) 11 Scott v. Kiker, 59 N.C. App. 458, 464, 297 S.E.2d 142, 147 (1982); Sebastian, 6 N.C. App. at 208, 170 S.E.2d at 108. 12 Bishop, 245 N.C. at 597, 96 S.E.2d at 874.

21

13 See supra note 6. See also Darnell, 91 N.C. App. at 350, 371 S.E.2d. at 745 (citation omitted) (“In order for liability to arise for alienation of affections there must be active and affirmative conduct. Inaction is not enough . . . . There must be some act on the part of the defendant intended to induce or accomplish the result. One does not become liable for alienation of affections, without any initiative or encouragement, merely by becoming the object of the affections that are transferred from a spouse.”). 14 See supra note 1. 15 See Pharr v. Beck, 147 N.C. App. 268, 273, 554 S.E.2d 851, 855 (2001) (finding in an alienation of affection action that “post-separation conduct is admissible only to the extent that it corroborates pre-separation activities resulting in the alienation of affection”), overruled on other grounds, McCutchen, 360 N.C. at 285, 624 S.E.2d at 625 (“We . . . overrule Pharr to the extent it requires an alienation of affections claim to be based on pre-separation conduct alone.”). N.C. Gen. Stat. § 52-13 (2009) effectively reinstates the holding in Pharr.

22

N.C.P.I.--Civil 800.22 General Civil Volume

ALIENATION OF AFFECTIONS--DAMAGES.

------

The (state number) issue reads: "What amount is the plaintiff entitled to recover?"

If you have answered the (state number) issue "Yes" [and the (state number)1 issue "Yes"] in favor of the plaintiff, the plaintiff is entitled to recover nominal damages even without proof of actual damages. Nominal damages consist of some trivial amount such as one dollar in recognition of the technical injury incurred by the plaintiff.

The plaintiff may also be entitled to recover actual damages.2 On this issue the burden of proof is on the plaintiff. This means that the plaintiff must prove, by the greater weight of the evidence, the present value in money of actual damages to the plaintiff resulting from the wrongful conduct of the defendant.3 In determining this amount of money, if any, you may consider [the plaintiff's loss of the [love] [affection] [society] [assistance] [companionship] [comfort] [sexual relationship] [favorable mental attitude] which previously existed between the plaintiff and his spouse]4

[any mental anguish, shame, humiliation or disgrace suffered by the plaintiff]5

[any injury to the plaintiff's [health] [feelings] or [reputation]]6

[any loss of support].7

If you determine that any damages incurred by the plaintiff will continue into the future, the amount you allow as future damages must be reduced to its present value, because a smaller sum received now is equal to a larger sum received in the future. (If a per diem argument is made, adapt and use N.C.P.I.--General Civil 810.51 in place of the following.) I instruct you that if you reach this issue, your decision must be based upon the evidence and the rules of law I have given you with respect to the measure of damages. You are not required to accept the measure of damages suggested by the parties or their attorneys. Your award must be fair and just. You should not award or withhold anything on the basis of sympathy or pity.

Finally, as to this (state number) issue on which the plaintiff has the burden of proof, if you find, by the greater weight of the evidence, the present value in money of actual damages to the plaintiff resulting from the wrongful conduct of the defendant, then it would be your duty to write that amount in the blank space provided.

If, on the other hand, you fail to so find, then it would be your duty to write a nominal sum such as one dollar in the blank space provided.

23

1 This parenthetical references the potential submission of N.C.P.I. Civil 800.23 (Alienation of Affections-- Statute of Limitations); if that issue has not been submitted, this parenthetical should not be used. 2 Punitive damages may also be recoverable "where the defendant's conduct was willful, aggravated, malicious, or of a wanton character." Hutelmyer v. Cox, 133 N.C. App. 364, 371, 514 S.E.2d 544, 559, disc. rev. denied, 351 N.C. 104, 351 S.E.2d 146 (1999) (citation omitted); see also Oddo v. Presser, 158 N.C. App. 360, 367, 581 S.E.2d 123, 128-29 (2003), aff’d as to punitive damages issue, 358 N.C. 128, 592 S.E.2d 195 (2004); Ward v. Beaton, 141 N.C. App. 44, 50, 539 S.E.2d 30, 34 (2000), cert. denied, 353 N.C. 398, 547 S.E.2d 43 (2001). "To establish entitlement to punitive damages . . . the plaintiff must present 'evidence of circumstances of aggravation in addition to the malice implied by law from the conduct of defendant in alienating the affections between the spouses which was necessary to sustain a recovery of compensatory damages." Hutelmyer, 133 N.C. App. at 371, 514 S.E.2d at 559. (citation omitted). "[P]unitive damages . . . may be awarded only when there are some features of aggravation, as when the act is done willfully and evidences a reckless and wanton disregard of plaintiff's rights." Scott v. Kiker, 59 N.C. App. 458, 462, 297 S.E.2d 142, 146 (1982). "Evidence of 'sexual relations' will allow a plaintiff to get to the jury on the issues of punitive damages in a claim for alienation of affections." Ward, 141 N.C. App. at 50, 539 S.E.2d at 34. See generally N.C.G.S. § 1D-35 ("Punitive damages awards"). 3 Sebastian v. Kluttz, 6 N.C. App. 201, 219, 170 S.E.2d 104, 115 (1969) ("[T]he measure of damages is the present value in money of the support, consortium, and other legally protected marital interests lost by the [plaintiff] through the defendant's wrong."). 4 Hutelmyer, 133 N.C. App. at 373, 514 S.E.2d at 561 (“[I]n awarding [] damages, 'the jury may consider the loss of consortium’ which is defined as the '[c]onjugal fellowship of husband and wife, and the right of each to the company, co-operation, affection and aid of the other in every conjugal relation'" (citation omitted); see also Sebastian, 6 N.C. App. at 217-20, 170 S.E.2d at 114-16. 5 Scott, 59 N.C. App. at 462, 297 S.E.2d at 146; see Hutelmyer, 133 N.C. App. at 373, 514 S.E.2d at 561 ("'[T]he gravamen of damages in [this] tort is mental distress, a fact that gives juries considerable freedom in their determinations.'" (citation omitted)). 6 Sebastian, 6 N.C. App. at 219, 170 S.E.2d at 115; Hutelmyer, 133 N.C. App. at 373, 514 S.E.2d at 561. 7 Gray v. Hoover, 94 N.C. App. 724, 730, 381 S.E.2d 472, 475, disc. rev. denied, 325 N.C. 545, 385 S.E.2d 498 (1989).

24

N.C.P.I.—Civil 800.23 General Civil Volume ALIENATION OF AFFECTION—STATUTE OF LIMITATIONS. ------NOTE WELL: Actions arising from acts occurring prior to October 1, 2009, are governed solely by the North Carolina Supreme Court decision in McCutchen v. McCutchen, 360 N.C. 280, 624 S.E.2d 620 (2006), upon which this instruction is based. For actions arising from acts occurring on or after October 1, 2009, use N.C.P.I.—Civil 800.23A (“Alienation of Affection—Statute of Limitations”). The (state number) issue reads: “Did the plaintiff file this action within three years of the date the alienation between the plaintiff and his spouse became complete?”1 If you have answered the (state number) issue “Yes” in favor of the plaintiff, the plaintiff’s claim may nonetheless be legally barred by what is called the statute of limitations.2 The law provides that a lawsuit claiming alienation of affection must be filed within three years of the date the alienation between the plaintiff and his spouse became complete.3 The plaintiff filed the present lawsuit on (state date of filing of alienation of affection action). On this issue, the burden of proof is on the plaintiff.4 This means that the plaintiff must prove, by the greater weight of the evidence, that the alienation of the genuine marital relationship between the plaintiff and his spouse became complete less than three years before (state date of filing of alienation of affection action). Alienation is complete at that point in time when the genuine marital relationship between spouses becomes seriously diminished or destroyed.5 The law recognizes that this diminishment or destruction may not happen all at once. You must determine when the genuine marital relationship between the plaintiff and his spouse became seriously diminished or destroyed based upon all of the evidence. [If you find, by the greater weight of the evidence, that there came a point in time when there was no longer a chance of reconciliation between the plaintiff and his spouse, then the diminishment or destruction of the genuine marital relationship between the plaintiff and his spouse would have become complete at that point in time.6] You may consider whether the plaintiff and his spouse resided together in your determination of this issue.7 It is not required that spouses be living together at the time the diminishment or destruction of a genuine marital relationship becomes complete.8 The diminishment or destruction may become complete even though spouses continue to live together;9 likewise, although the circumstance that spouses are not living together may be strong evidence of

25 alienation,10 the diminishment or destruction may not be complete even though spouses are no longer living together.11 Finally, as to this issue on which the plaintiff has the burden of proof, if you find by the greater weight of the evidence, that the plaintiff filed this action within three years of the date the alienation between the plaintiff and his spouse became complete, then it would be your duty to answer this issue "Yes" in favor of the plaintiff. If, on the other hand, you fail to so find, then it would be your duty to answer this issue "No" in favor of the defendant.

1 The three year statute of limitations set out in N.C. GEN. STAT. § 1-52(5)(2005) applies to a claim of alienation of affection. McCutchen v. McCutchen, 360 N.C. 280, 283, 624 S.E.2d 620, 623 (2006). "The question of when alienation occurs is ordinarily one for the factfinder." Id. at 284, 624 S.E.2d at 624 (citation omitted).

2 A “statute of limitations” is “the action of the State in determining that, after the lapse of a specified time, a claim shall not be legally enforceable." South Dakota v. North Carolina, 192 U.S. 286, 346 (1904). “Generally, whether a cause of action is barred by the statute of limitations is a mixed question of law and fact.” Pembee Mfg. Corp. v. Cape Fear Constr. Co., 69 N.C. App. 505, 508, 317 S.E.2d 41, 43 (1984).

3 “It is only after the diminution or, when applicable, the destruction of love and affection is complete that plaintiff’s cause of action accrues and the statute of limitations begins to run.” McCutchen, 360 N.C. at 284, 624 S.E.2d at 624 (citation omitted).

4 “While the plea of the statute of limitations is a positive defense and must be pleaded, . . . when it has been properly pleaded, the burden of proof is then upon the party against whom the statute is pleaded to show that his claim is not barred, and is not upon the party pleading the statute to show that it is barred.” Hudson v. Game World, Inc., 126 N.C. App. 139, 145, 484 S.E.2d 435, 439 (1997) (quoting Solon Lodge v. Ionic Lodge, 247 N.C. 310, 316, 101 S.E.2d 8, 13 (1957)). See also White v. Consolidated Planning, Inc., 166 N.C. App. 283, 305, 603 S.E.2d 147, 162 (2004) (stating that the burden rests on plaintiff to prove claims were timely filed when the defendant asserts the statute of limitations as an affirmative defense).

5 The “wrong” in an alienation claim “is a continuing one,” and “[i]t is only after the diminution or, when applicable, the destruction of love and affection is complete that [the] cause of action accrues and the statute of limitations begins to run.” McCutchen, 360 N.C. at 284, 624 S.E.2d at 623–24 (citations and internal quotations omitted).

6 See id. at 284-85, 624 S.E.2d at 623–24. In McCutchen, although the parties had separated on September 9, 1998, the Court observed that the jury “could determine alienation did not occur until as late as February 2001” because the wife “apparently had reason to believe the couple would reconcile until [the husband] made a final decision in February 2001 to end their marriage.” Id. at 286, 624 S.E.2d at 625. The bracketed language may therefore be helpful in factual situations resembling that in McCutchen. The McCutchen Court also reasoned that setting accrual of an alienation of affection claim as of the date of separation “would force spouses to take prompt legal action, often to the detriment of reconciliation efforts. Such a rule would prejudice those who reasonably believe love and affection remains in their marriage and postpone legal action until the chance of reconciliation no longer exists.” Id. at 284–85, 624 S.E.2d at 624.

7 See Litchfield v. Cox, 266 N.C. 622, 623, 146 S.E.2d 641, 642 (1966) (stating that although spouses continued to live together affected the "credibility" of the plaintiff’s evidence, the issue of alienation remained “a question for the jury”); Jones v. Skelley, ___ N.C. App. ___, ___, 673 S.E.2d 385, 391 (2009) (“[T]he fact that the plaintiff and her or his spouse continue to live in the same house after the spouse’s affections have allegedly been alienated affects only the credibility of the plaintiff’s testimony, and is not a defense to a claim of alienation of affections[.]” (citation and internal quotations omitted)).

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8 McCutchen specifically overruled the Court of Appeals holding in Pharr v. Beck, 147 N.C. App. 268, 273, 554 S.E.2d 851, 855 (2001), “to the extent it requires an alienation of affections claim to be based on pre-separation conduct alone.” McCutchen, 360 N.C. at 285, 624 S.E.2d at 625.

9 See id. at 284, 624 S.E.2d at 624 (“[T]he fact that spouses continue living together after the alleged alienation does not preclude the possibility that alienation of affections has already occurred.” (citation omitted)).

10 See id. (“Although separation may be strong evidence of alienation, and may affect the damages available to the plaintiff, we have never held that plaintiff and spouse must live together at the time the cause of action arises.”).

11 See id. at 286, 624 S.E.2d at 625 (finding that there existed “a genuine issue of material fact as to whether there was love and affection following [plaintiff's] separation from [her spouse]”). Cf. SUZANNE REYNOLDS, 1 LEE'S NORTH CAROLINA FAMILY LAW § 5.46(A) 395 (5th Ed. 2009) (noting that the claim endures even if the alleged misconduct occurs while the spouses are living apart “since the spouses could have reconciled”).

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N.C.P.I.—Civil 800.23A General Civil Volume June 2010 ALIENATION OF AFFECTION—STATUTE OF LIMITATIONS. ------NOTE WELL: N.C. GEN. STAT. § 52-13, effective October 1, 2009, and applicable to actions arising from acts occurring on or after that date, provides as follows: (a) No act of the defendant shall give rise to a cause of action for alienation of affection . . . that occurs after the plaintiff and the plaintiff’s spouse physically separate with the intent of either the plaintiff or plaintiff’s spouse that the physical separation remain permanent. (b) An action for alienation of affection . . . shall not be commenced more than three years from the last act of the defendant giving rise to the cause of action. This instruction incorporates the foregoing statutory amendment and should be used in all actions arising from acts occurring on or after October 1, 2009. Actions arising from acts occurring prior to October 1, 2009, are governed solely by the North Carolina Supreme Court decision in McCutchen v. McCutchen, 360 N.C. 280, 624 S.E.2d 620 (2006). For actions arising from acts occurring before October 1, 2009, use N.C.P.I.—Civil 800.23 (“Alienation of Affection—Statute of Limitations”). The (state number) issue reads: “Did the plaintiff file this action within three years of the date of the last act of the defendant giving rise to the plaintiff’s claim?”1 If you have answered the (state number) issue “Yes” in favor of the plaintiff, the plaintiff's claim may nonetheless be legally barred by what is called the statute of limitations.2 The law provides that a lawsuit claiming alienation of affection must be filed within three years of the date of the last act of the defendant which gave rise to the plaintiff’s claim. [The law further provides that if the plaintiff and the plaintiff’s spouse have physically separated with the intent on the part of either the plaintiff or his spouse that the physical separation remain permanent, then no act of the defendant which occurs following such separation may give rise to the plaintiff’s alienation of affection claim.]3 The plaintiff filed the present lawsuit on (state date of filing of alienation of affection action). By answering issue (state number) “Yes” in favor of the plaintiff, you found that the malicious and wrongful conduct of the defendant consisted of [an act] [acts] which occurred prior to the

28 physical separation of the plaintiff and his spouse with the intent on the part of either the plaintiff or his spouse that the physical separation remain permanent. On this (state number) issue, the burden of proof is on the plaintiff.4 This means that the plaintiff must now prove, by the greater weight of the evidence, that the last act of the defendant upon which you based your finding in issue (state number) must have occurred less than three years before the date of the filing of this lawsuit by the plaintiff. Finally, as to this issue on which the plaintiff has the burden of proof, if you find by the greater weight of the evidence that the plaintiff filed this action within three years of the date of the last act of the defendant giving rise to the plaintiff’s claim, then it would be your duty to answer this issue “Yes” in favor of the plaintiff. If, on the other hand, you fail to so find, then it would be your duty to answer this issue “No” in favor of the defendant.

1 See N.C. GEN. STAT. § 52-13(b) (2009). 2 A “statute of limitations” is “the action of the State in determining that, after the lapse of a specified time, a claim shall not be legally enforceable.” South Dakota v. North Carolina, 192 U.S. 286, 346 (1904). “Generally, whether a cause of action is barred by the statute of limitations is a mixed question of law and fact.” Pembee Mfg. Corp. v. Cape Fear Constr. Co., 69 N.C. App. 505, 508, 317 S.E.2d 41, 43 (1984). 3 N.C. GEN. STAT. § 52-13(a). 4 “While the plea of the statute of limitations is a positive defense and must be pleaded, . . . when it has been properly pleaded, the burden of proof is then upon the party against whom the statute is pleaded to show that his claim is not barred, and is not upon the party pleading the statute to show that it is barred.” Hudson v. Game World, Inc., 126 N.C. App. 139, 145, 484 S.E.2d 435, 439 (1997) (quoting Solon Lodge v. Ionic Lodge, 247 N.C. 310, 316, 101 S.E.2d 8, 13 (1957)). See also White v. Consolidated Planning, Inc., 166 N.C. App. 283, 305, 603 S.E.2d 147, 162 (2004) (stating that the burden rests on the plaintiff to prove claims were timely filed when the defendant asserts the statute of limitations as an affirmative defense).

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N.C.P.I.—Civil 800.25 General Civil Volume CRIMINAL CONVERSATION. ------NOTE WELL: N.C. GEN. STAT. § 52-13 (a), effective October 1, 2009, and applicable to actions arising from acts occurring on or after that date, provides as follows: No act of the defendant shall give rise to a cause for . . . criminal conversation that occurs after the plaintiff and the plaintiff’s spouse physically separate with the intent of either the plaintiff or plaintiff’s spouse that the physical separation remain permanent. This statutory amendment is incorporated into the bracketed second element in this instruction. Actions arising from acts occurring prior to October 1, 2009, are governed solely by the decisions in Sebastian v. Kluttz, 6 N.C. App. 201, 170 S.E.2d 104 (1969), Brown v. Hurley, 124 N.C. App. 377, 477 S.E.2d 234 (1996), and Bryant v. Carrier, 214 N.C. 191, 198 S.E. 619 (1938) (“The mere fact of separation will not bar an action for criminal conversation occurring during separation.”). In actions arising from acts occurring prior to October 1, 2009, the bracketed second element in this instruction would not be used. The (state number) issue reads: “Did the defendant commit criminal conversation with the plaintiff's spouse?” Criminal conversation is sexual intercourse with the spouse of another person during the marriage.1 On this issue the burden of proof is on the plaintiff. This means that the plaintiff must prove, by the greater weight of the evidence, [the following thing] [two things]: [First,] that during the marriage of the plaintiff and his spouse, the defendant had sexual intercourse with the spouse of the plaintiff2 [in the State of North Carolina.3] [Second, that the sexual intercourse between the defendant and the spouse of the plaintiff occurred prior to the physical separation of the plaintiff and his spouse with the intent on the part of either the plaintiff or his spouse that the physical separation remain permanent.4] [Evidence of conduct of the defendant occurring after the plaintiff and his spouse physically separated with the intent on the part of either the plaintiff or his spouse that the physical separation remain permanent may not be considered by you in your determination of any fact in this trial, but may be considered only for the purpose of corroborating or supporting any evidence of malicious and wrongful conduct on the part of the defendant occurring before

30 the plaintiff and his spouse physically separated.5] [It is not required that the defendant be aware of the marriage between the plaintiff and his spouse.6] [A single act of sexual intercourse between the defendant and the plaintiff’s spouse will entitle the plaintiff to recover.7] [You must not consider whether the plaintiff's spouse consented to or enticed the sexual intercourse].8 [You must not consider whether the marital relationship between the plaintiff and his spouse was accompanied by love and affection].9 [You must not consider whether the plaintiff and his spouse had separated and ceased cohabitation before the sexual intercourse occurred].10 [You must not consider whether the plaintiff was ever unfaithful to his spouse].11 Finally, as to this issue on which the plaintiff has the burden of proof, if you find by the greater weight of the evidence that the defendant had sexual intercourse [in the State of North Carolina] with the spouse of the plaintiff while the plaintiff and his spouse were married, [and that the sexual intercourse between the defendant and the spouse of the plaintiff occurred prior to the physical separation of the plaintiff and his spouse with the intent on the part of either the plaintiff or his spouse that the physical separation remain permanent,] then it would be your duty to answer this issue “Yes” in favor of the plaintiff. If, on the other hand, you fail to so find, then it would be your duty to answer this issue “No” in favor of the defendant.

1 A claim of criminal conversation must be based upon “evidence demonstrating: ‘(1) marriage between the spouses and (2) sexual intercourse between defendant and plaintiff’s spouse during the marriage.’” Coachman v. Gould, 122 N.C. App. 443, 446, 470 S.E.2d 560, 563 (1996) (citation omitted). 2 Elements of a criminal conversation claim are: (1) “marriage between the spouses” and (2) “sexual intercourse between defendant and plaintiff’s spouse during the [marriage].” Sebastian v. Kluttz, 6 N.C. App. 201, 209, 170 S.E.2d 104, 109 (1969). See also Brown v. Hurley, 124 N.C. App. 377, 380, 477 S.E.2d 234, 237 (1996) (“The elements of criminal conversation are the actual marriage between the spouses and sexual intercourse between defendant and the plaintiff’s spouse during the coverture.”). 3 See Jones v. Skelley, ___ N.C. App. ___, ___, 673 S.E.2d 385, 392-93 (2009) (“[A] plaintiff must also show ‘that the tortious injuries[,] . . . [the] criminal conversation, occurred in North Carolina before North Carolina substantive law can be applied.’ Consequently, a plaintiff must show that a defendant engaged in sexual intercourse with her spouse in North Carolina.”(citation omitted)). Accordingly, the bracketed instruction should be used if there is a factual dispute about whether the criminal conversation occurred in North Carolina. 4 N.C. GEN. STAT. § 52-13(a) (2009). 5 See Pharr v. Beck, 147 N.C. App. 268, 273, 554 S.E.2d 851, 855 (2001) (finding in an alienation of affection action that “post-separation conduct is admissible only to the extent [that] it corroborates pre-separation activities resulting in the alienation of affection”), overruled on other grounds, McCutchen v. McCutchen, 360 N.C. 280, 285, 624 S.E.2d 620, 625 (2006) (“We . . . overrule Pharr to the extent it requires an alienation of affections claim to be based on pre-separation conduct alone.”). The holding in Pharr is effectively reinstated by N.C. GEN. STAT. § 52-13.

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6 See SUZANNE REYNOLDS, 1 LEE’S NORTH CAROLINA FAMILY LAW § 5.46(B), n.749 (5th ed. 2009) (“One who has sexual relations with another not one’s spouse takes the risk that the other may be somebody else’s spouse.”(citing 2 F. HARPER ET AL., THE LAW OF TORTS § 8.3, 511 (2d ed. 1986))). 7 See Skelley, ___ N.C. App. at ___, 673 S.E.2d at 393. 8 See Scott v. Kiker, 59 N.C. App. 458, 464, 297 S.E.2d 142, 147 (1982). However, the consent of the plaintiff would be a viable defense. See Cannon v. Miller, 71 N.C. App. 460, 465- 66, 322 S.E.2d 780, 785-86 (1984), vacated on other grounds, 313 N.C. 324, 327 S.E.2d 888 (1985) (stating that the plaintiff’s consent is the only substantive defense to a claim for criminal conversation); Barker v. Dowdy, 223 N.C. 151, 152, 25 S.E.2d 404, 405 (1943) (stating that “connivance” of a spouse in the adultery of the other spouse “would constitute a defense to an action for criminal conversation”); cf. REYNOLDS, supra note 6, § 5.46(B) (“[T]o establish consent or connivance, . . . the defendant should have to establish that, before the sexual intercourse [occurred], the plaintiff either encouraged the conduct or at least approved it.”). 9 See Sebastian, 6 N.C. App. at 209, 170 S.E.2d at 109. 10 See id. at 210, 170 S.E.2d at 109; Brown, 124 N.C. App. at 380, 477 S.E.2d at 237; Bryant v. Carrier, 214 N.C. 191, 195, 198 S.E. 619, 621 (1938) (“The mere fact of separation will not bar an action for criminal conversation occurring during separation.” (citation and internal quotations omitted)). However, in light of the statutory amendment cited in the NOTE WELL, this alternative would be applicable only to actions arising from acts occurring before October 1, 2009. 11 Scott, 59 N.C. App. at 463, 297 S.E.2d at 146.

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N.C.P.I.—Civil 800.26 General Civil Volume ALIENATION OF AFFECTION/CRIMINAL CONVERSATION—DAMAGES.1 ------The (state number) issue reads: “What amount is the plaintiff entitled to recover from the defendant?” If you have answered the (state number) issue “Yes” in favor of the plaintiff, the plaintiff is entitled to recover nominal damages even without proof of actual damages. Nominal damages consist of some trivial amount such as one dollar in recognition of the technical harm caused by the conduct of the defendant. The plaintiff may also be entitled to recover actual damages.2 On this issue the burden of proof is on the plaintiff. This means that the plaintiff must prove, by the greater weight of the evidence, the amount of actual damages proximately3 caused by the conduct of the defendant. In determining the amount of money, if any, the plaintiff may recover, you may consider:4 [any mental anguish, shame, humiliation or disgrace suffered by the plaintiff5] [any loss of sexual relations between the plaintiff and his spouse] [any injury to reputation] [any loss of support6 [or other economic loss7] [any other adverse effect on the quality of the marital relationship]. [the loss by the plaintiff of the consortium of his spouse. Consortium means the marital fellowship of husband and wife, and the right of each to the company, cooperation, affection and aid of the other.] Any amount you allow as future damages must be reduced to its present value, because a smaller sum received now is equal to a larger sum received in the future.8 (If the mortality tables have been introduced into evidence, it will be necessary to adapt and use an appropriate instruction from N.C.P.I.—Civil 810.14 (“Personal Injury Damages— Permanent Injury”)).9 (If a per diem argument is made, adapt and use N.C.P.I.—Civil 810.56 (“Wrongful Death Damages—Final Mandate (Per Diem Argument by Counsel)”) in place of the following). I instruct you that if you reach this issue, your decision must be based upon the evidence and the rules of law I have given you with respect to the measure of damages. You are not required to accept the measure of damages suggested by the parties or their attorneys.

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Your award must be fair and just. You are to remember that you are not seeking to punish either party, and you are not awarding or withholding anything on the basis of sympathy or pity. Finally, as to this (state number) issue on which the plaintiff has the burden of proof, if you find, by the greater weight of the evidence, the amount of actual damages caused by the conduct of the defendant, then it would be your duty to write that amount in the blank space provided. If, on the other hand, you fail to so find, then it would be your duty to write a nominal sum such as “One Dollar” in the blank space provided.

1 NOTE WELL: Criminal conversation claims are frequently joined in the same action with claims for alienation of affection. Professor Suzanne Reynolds states that “[w]hen plaintiffs allege and establish both torts in this state, . . . the trial court should combine them in determining damages. Since the elements of damages are so closely related, they do not support separate awards for each tort.” SUZANNE REYNOLDS,1 LEE’S NORTH CAROLINA FAMILY LAW, § 5.48(A) (5th ed. 2009) (citing Sebastian v. Kluttz, 6 N.C. App. 201, 220, 170 S.E.2d 104, 116 (1969) (“[T]he two causes of action and the elements of damages . . . are so connected and intertwined, only one issue of compensatory damages and one issue of punitive damages should have been submitted to the jury.”). Compare Kluttz, 6 N.C. App. at 219-20, 170 S.E.2d at 115-16: In a cause of action for alienation of affections[,] . . . the measure of damages is the present value in money of the support, consortium, and other legally protected marital interests lost by [plaintiff] through the defendant’s wrong. . . . [Plaintiff] may also recover for the wrong and injury to [plaintiff’s] health, feelings, or reputation.. . . . In a cause of action for criminal conversation the measure of damages is incapable of precise measurement; however, it has been [properly] held . . . that the jury in awarding damages may consider the loss of consortium, mental anguish, humiliation, injury to health, and loss of support by the [plaintiff]. 2 See Carson v. Brodin, 160 N.C. App. 366, 371, 585 S.E.2d 491, 495 (“[A]ctions for damages for alienation of affections and criminal conversation constitute ‘injury to person or property’ as denoted by N.C. Gen. Stat. § 1- 75.4(3).”) 3 The jury should consider such elements of damages that it “may find [the plaintiff] has and will sustain as a proximate result of the tortious conduct of the defendant.” Kluttz, 106 N.C. App. at 214, 170 S.E.2d at 112 (citations omitted); see also Powell v. Strickland, 163 N.C. 393, 403, 79 S.E. 872, 876 (1913) (“[S]ince the wrong relates to the injury which the husband sustains . . . which the tortious acts of defendant have brought or heaped upon him, and which are proximately caused by said wrong[,] . . . the plaintiff is entitled to recover compensatory damages[.]”); Oddo v. Presser, 158 N.C. App. 360, 365, 581 S.E.2d 123, 127 (2003) (“The general rule in North Carolina is that where a plaintiff is injured by the tortious conduct of a defendant, ‘the plaintiff is entitled to recover the present worth of all damages naturally and proximately resulting from [the] defendant’s tort.’” (citation omitted)). 4 An injured spouse is entitled to recover, as compensatory damages, actual pecuniary loss, as well as “loss of consortium, humiliation, shame, mental anguish, loss of sexual relations, and the disgrace the tortious acts of defendant have brought.” Scott v. Kiker, 59 N.C. App. 458, 462, 297 S.E.2d 142, 146 (1982). 5 See Nunn v. Allen, 154 N.C. App. 523, 537, 574 S.E.2d 35, 44 (2002) (“[T]estimony by plaintiff’s father as to his depressed mental state and plaintiff’s own testimony that he began consulting with his pastor to help deal with his emotional turmoil” constituted “substantial evidence from which a jury could have determined that he experienced mental anguish and humiliation due to the affair between his wife and defendant.”). 6 See Hutelmyer v. Cox, 133 N.C. App. 364, 374, 514 S.E.2d 554, 561 (1999) (citing “plaintiff’s evidence showing a loss of income, life insurance, and pension benefits resulting from the actions of defendant”); Gray v. Hoover, 94 N.C. App. 724, 730, 381 S.E.2d 472, 475 (1989). 7 See Presser, 158 N.C. App. at 365-66, 581 S.E.2d at 127-28 (finding that loss of income as an investment adviser resulting from poor work performance stemming from defendant’s conduct was not “overly speculative”). 8 See Kluttz, 6 N.C. App. at 219, 170 S.E.2d at 115. Punitive damages may also be awarded in appropriate cases. “Where there are sexual relations, the plaintiff will get to the jury on punitive damages whether the claim is for alienation of affections or for criminal conversation or, as is often the case, for both.” REYNOLDS, supra note 1, § 5.48(C). 9 See Kluttz, 6 N.C. App. at 215, 170 S.E.2d at 112.

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N.C.P.I.—Civil 800.27 CRIMINAL CONVERSATION—STATUTE OF LIMITATIONS. GENERAL CIVIL VOLUME REPLACEMENT JUNE 2015 ------NOTE WELL: For actions arising from acts occurring prior to October 1, 2009, use this instruction. For actions arising from acts occurring on or after October 1, 2009, see N.C.P.I-Civil 800.27A (“Criminal Conversation – Statute of Limitations”). The (state number) issue reads: “Did the plaintiff file this action within three years of the date it became apparent or ought reasonably to have become apparent to the plaintiff that the defendant had committed criminal conversation with the plaintiff’s spouse?”1 If you have answered the (state number) issue “Yes” in favor of the plaintiff, the plaintiff's claim may nonetheless be legally barred by what is called the statute of limitations.2 The law provides that a lawsuit claiming criminal conversation must be filed within three years after the date the plaintiff discovered or ought reasonably to have discovered, whichever event first occurred, that the defendant committed criminal conversation with the plaintiff’s spouse.3 The plaintiff filed the present lawsuit on (state date of filing of criminal conversation action). On this issue, the burden of proof is on the plaintiff.4 This means that the plaintiff must prove, by the greater weight of the evidence, that the plaintiff filed this action within three years after the date it became apparent or ought reasonably to have become apparent to the plaintiff, whichever event first occurred, that the defendant had committed criminal conversation with the plaintiff’s spouse. An event would have been or would have become reasonably apparent to the plaintiff when it would have been or would have become apparent to a reasonable and prudent person in the same or similar circumstances as the plaintiff. Finally, as to this issue on which the plaintiff has the burden of proof, if you find by the greater weight of the evidence, that the plaintiff filed this action within three years after the date it became apparent or ought reasonably to have become apparent to the plaintiff, whichever event first occurred, that the defendant had committed criminal conversation with the plaintiff’s spouse, then it would be your duty to answer this issue “Yes” in favor of the plaintiff. If, on the other hand, you fail to so find, then it would be your duty to answer this issue “No” in favor of the defendant.

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1 N.C. Gen. Stat. § 1-52(16) provides that a cause of action “for personal injury . . . shall not accrue until bodily harm to the claimant . . . becomes apparent or ought reasonably to have become apparent to the claimant, whichever event first occurs.” In Misenheimer v. Burrus, 360 N.C. 620, 623-24, 637 S.E.2d 173, 175-76, the North Carolina Supreme Court ruled that “an action for criminal conversation falls under the . . . definition of personal injury as it concerns an invasion of a [sic] individual’s personal right” and “the discovery rule” in N.C. Gen. Stat. § 1-52(16) “tolls the statute of limitations” set out in § 1-52(5) “in cases of criminal conversation,” although “such actions remain subject to the [ten year] statute of repose provision in § 1-52(16), which states that ‘no cause of action shall accrue more than 10 years from the last act or omission of the defendant giving rise to the cause of action.’” 2 N.C. Gen. Stat. § 1-52(5) (2009) provides that a plaintiff must file an action within three years “[f]or criminal conversation.” A “statute of limitations” is “the action of the State in determining that, after the lapse of a specified time, a claim shall not be legally enforceable." South Dakota v. North Carolina, 192 U.S. 286, 346 (1904). Generally, whether a cause of action is barred by the statute of limitations is a mixed question of law and fact.” Pembee Mfg. Corp. v. Cape Fear Constr. Co., 69 N.C. App. 505, 508, 317 S.E.2d 41, 43 (1984). 3 See Misenheimer, 360 N.C. at 624-25, 637 S.E.2d at 176 (“[W]e interpret N.C. Gen. Stat. § 1-52(5) and § 1-52(16) together to mean that . . . the statute of limitations for criminal conversation begins to run when the tort is discovered or should have been discovered, not upon completion of the last act constituting the offense.”) Whether a plaintiff exercised due diligence in discovering the criminal conversation is ordinarily an issue of fact for the jury absent dispositive or conclusive evidence indicating neglect by the plaintiff as a matter of law. In other words, when there is a dispute as to a material fact regarding when the plaintiff should have discovered the [criminal conversation], summary judgment is inappropriate, and it is for the jury to decide if the plaintiff should have discovered the [criminal conversation]. Failure to exercise due diligence may be determined as a matter of law, however, where it is clear that there was both capacity and opportunity to discover the [criminal conversation]. Ward v. Fogel, ____ N.C. App. ___, 768 S.E.2d 292, 299 (2014) (quoting Spears v. Moore, 145 N.C. App. 706, 708-09, 551 S.E.2d 483, 485 (2001) (internal citation omitted)). Unless the circumstances are such that any reasonable party would have acted upon the opportunity, determination as a matter of law is inappropriate. See Wells Fargo Bank, N.A. v. Coleman, ___ N.C. App. ___, 768 S.E.2d 604 (2015). 4 See Hudson v. Game World, Inc., 126 N.C. App. 139, 145, 484 S.E.2d 435, 439 (1997): While the plea of the statute of limitations is a positive defense and must be pleaded, . . . when it has been properly pleaded, the burden of proof is then upon the party against whom the statute is pleaded to show that his claim is not barred, and is not upon the party pleading the statute to show that it is barred. (quoting Solon Lodge v. Ionic Lodge, 247 N.C. 310, 316, 101 S.E.2d 8, 13 (1957)). See also White v. Consolidated Planning, Inc., 166 N.C. App. 283, 305, 603 S.E.2d 147, 162 (2004) (stating that the burden rests on plaintiff to prove claims were timely filed when defendant asserts statute of limitations as an affirmative defense).

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N.C.P.I.—Civil 800.27A CRIMINAL CONVERSATION—STATUTE OF LIMITATIONS. GENERAL CIVIL VOLUME REPLACEMENT JUNE 2015 ------NOTE WELL: For actions arising from acts occurring on or after October 1, 2009, use this instruction. For actions arising from acts occurring prior to October 1, 2009, see N.C.P.I.-Civil 800.27 (“Criminal Conversation – Statute of Limitations”). The (state number) issue reads: “Did the plaintiff file this action within three years of the date of the last act of the defendant giving rise to the plaintiff’s claim?”1 If you have answered the (state number) issue “Yes” in favor of the plaintiff, the plaintiff's claim may nonetheless be legally barred by what is called the statute of limitations.2 The law provides that a lawsuit claiming criminal conversation must be filed within three years of the date of the last act of the defendant which gave rise to the plaintiff’s claim. [The law further provides that if the plaintiff and the plaintiff’s spouse have physically separated with the intent on the part of either the plaintiff or his spouse that the physical separation remain permanent, then no act of the defendant which occurs following such physical separation may give rise to the plaintiff’s criminal conversation claim.3] The plaintiff filed the present lawsuit on (state date of filing of criminal conversation action). By answering issue (state number) “Yes” in favor of the plaintiff, you found that the defendant had sexual intercourse with the spouse of the plaintiff prior to the physical separation of the plaintiff and his spouse with the intent on the part of either the plaintiff or his spouse that the physical separation remain permanent. On this (state number) issue, the burden of proof is on the plaintiff.4 This means that the plaintiff must now prove, by the greater weight of the evidence, that the last act of sexual intercourse between the defendant and the plaintiff’s spouse occurred less than three years before the date of the filing of this lawsuit by the plaintiff. [(In cases where there is physical separation) Furthermore, because the plaintiff and his spouse have physically separated with the intent on the part of either the plaintiff or his spouse that the physical separation remain permanent, the plaintiff must also prove that the act occurred prior to the physical separation.] Finally, as to this issue on which the plaintiff has the burden of proof, if you find by the greater weight of the evidence that the plaintiff filed this action within three years of the date of the last

37 act of the defendant giving rise to the plaintiff’s claim, then it would be your duty to answer this issue “Yes” in favor of the plaintiff. If, on the other hand, you fail to so find, then it would be your duty to answer this issue “No” in favor of the defendant.

1 The statute of limitations for “criminal conversation” is three years. N.C. Gen. Stat. § 1-52(5). N.C. Gen. Stat. § 52-13(b), effective October 1, 2009, and applicable to actions arising from acts occurring on or after that date, establishes the statute of repose for such actions. It provides as follows: An action for . . . criminal conversation shall not be commenced more than three years from the last act of the defendant giving rise to the cause of action. This specific statute of repose is an exception to the general statute of repose for causes of actions for personal injury found in N.C. Gen. Stat. § 1-52(16). Thus, for actions for criminal conversation arising from acts occurring on or after October 1, 2009, the statute of repose and the statute of limitations are the same: three years.

2 A “statute of limitations” is “the action of the State in determining that, after the lapse of a specified time, a claim shall not be legally enforceable.” South Dakota v. North Carolina, 192 U.S. 286, 346 (1904). “Generally, whether a cause of action is barred by the statute of limitations is a mixed question of law and fact.” Pembee Mfg. Corp. v. Cape Fear Constr. Co., 69 N.C. App. 505, 508, 317 S.E.2d 41, 43 (1984).

3 See N.C. Gen. Stat. § 52-13(a).

4 See Hudson v. Game World, Inc., 126 N.C. App. 139, 145, 484 S.E.2d 435, 439 (1997):While the plea of the statute of limitations is a positive defense and must be pleaded, . . . when it has been properly pleaded, the burden of proof is then upon the party against whom the statute is pleaded to show that his claim is not barred, and is not upon the party pleading the statute to show that it is barred. (quoting Solon Lodge v. Ionic Lodge, 247 N.C. 310, 316, 101 S.E.2d 8, 13 (1957)). See also White v. Consolidated Planning, Inc., 166 N.C. App. 283, 305, 603 S.E.2d 147, 162 (2004) (stating that the burden rests on plaintiff to prove claims were timely filed when defendant asserts statute of limitations as an affirmative defense).

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JURY INSTRUCTION – PRESENT VALUE

N.C.P.I.—Civil 810.96 PUNITIVE DAMAGES—LIABILITY OF DEFENDANT. GENERAL CIVIL VOLUME REPLACEMENT MARCH 2016 ------NOTE WELL: Use this instruction in conjunction with claims for relief arising on or after January 1, 1996.1 For claims for relief arising prior to January 1, 1996, use N.C.P.I. —Civil 810.90. The (state number) issue reads: "Is the defendant liable to the plaintiff for punitive damages?" (You are to answer this issue only if you have awarded the plaintiff relief in conjunction with (state number(s) of plaintiff's issue(s).)2 On this issue the burden of proof is on the plaintiff to prove three things. The plaintiff must prove the first thing by clear and convincing evidence.3 Clear and convincing evidence is evidence which, in its character and weight, establishes what the plaintiff seeks to prove in a clear and convincing fashion. You shall interpret and apply the words "clear" and "convincing" in accordance with their commonly understood and accepted meanings in everyday speech. Thus, the first thing the plaintiff must prove, by clear and convincing evidence, is the existence of [fraud] [malice] [willful or wanton conduct].4 [Fraud means a false representation of material fact made by the defendant with intent to deceive which was reasonably calculated to deceive and which did, in fact, deceive and damage the plaintiff because of his reasonable reliance on it.]5 [Malice means a sense of personal ill will toward the plaintiff that activated or incited the defendant to perform the act or undertake the conduct that resulted in harm to the plaintiff.]6 [Willful or wanton conduct means the conscious and intentional disregard of and indifference to the rights and safety of others, which the defendant knows or should know is reasonably likely to result in injury, damage or other harm. Willful or wanton conduct means more than gross negligence.]7

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The plaintiff must prove the second and third things by the greater weight of the evidence. The greater weight of the evidence does not refer to the quantity of the evidence, but rather to the quality and convincing force of the evidence. It means that you must be persuaded, considering all of the evidence, that the necessary facts are more likely than not to exist. These second and third things are: Second, that the [fraud] [malice] [willful or wanton conduct] was related to the injury to the plaintiff for which you have already awarded relief.8 And Third, that the [defendant participated in] [the defendant's officers, directors or managers participated in or condoned] the [fraud] [malice] [willful or wanton conduct].9 Finally, as to this issue on which the plaintiff has the burden of proof, if you find by the standards herein explained that the defendant is liable to the plaintiff for punitive damages, then it would be your duty to answer this issue "Yes" in favor of the plaintiff. If, on the other hand, you fail to so find, then it would be your duty to answer "No" in favor of the defendant.

1 N.C. Gen. Stat. § 1D became effective January 1, 1996, displacing common law punitive damages. It applies to all "claims for relief arising on or after the date." 1995 N.C. Sess. Laws 514, § 5. Pursuant to N.C. Gen. Stat. § 1D-30, upon the motion of the defendant, the issues of liability for and amount of punitive damages shall be tried separately from the issues of liability for and amount of compensatory damages.

2 This admonition should be omitted in the event of a bifurcated procedure pursuant to N.C. Gen. Stat. § 1D-30. See Watson v. Dixon, 132 N.C. App. 329, 331-332, 511 S.E.2d 37, 38 (1999) cert. den. 351 N.C. 191, 541 S.E.2d 727(1999).

3 N.C. Gen. Stat. § 1D-15(b). Note that the statute omits any reference to "strong."

4 N.C. Gen. Stat. § 1D-15(a).

5 See N.C.P.I.—Civil 800.90. Note that this summary definition must be adapted in "concealment" cases. In an appropriate case, the five elements of fraud set out in greater detail in N.C.P.I.—Civil 800.00 can be given. "Constructive fraud" can also qualify as "fraud" for the purposes of N.C. Gen. Stat. § 1D-15(a) if "an element of intent is present." N.C. Gen. Stat. § 1D-5(4). Thus, an intentional breach of fiduciary duty would be sufficient. In such instances, the jury could be instructed that, "Fraud occurs when a person who is a fiduciary for another intentionally fails to act in good faith and with due regard for such other person." See N.C.P.I. —Civil 800.96.

6 N.C. Gen. Stat. § 1D-5(5).

7 N.C. Gen. Stat. § 1D-5(7).

8 N.C. Gen. Stat. § 1D-15(a). Note, however, that Mehovic v. Mehovic, 133 N.C. App. 131, 136, 514 S.E.2d 730, 734 (1999) holds that punitive damages are appropriate where the plaintiff elects rescission rather than compensatory damages.

9 Punitive damages may not be awarded against a person solely on the basis of vicarious liability for the acts or omissions of another. N.C. Gen. Stat. § 1D-15(c).

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N.C.P.I.—Civil 810.14 PERSONAL INJURY DAMAGES—PERMANENT INJURY. GENERAL CIVIL VOLUME REPLACEMENT JUNE 2015 ------810.14 PERSONAL INJURY DAMAGES—PERMANENT INJURY. (For medical malpractice cases filed on or after 1 October 2011, use N.C.P.I.-Civil 809.114 and 809.115.) Damages for personal injury also include fair compensation for permanent injury1 incurred by the plaintiff as a [proximate result of the negligence] [result of the wrongful conduct] of the defendant. An injury is permanent when any of its effects will continue throughout the plaintiff's life.2 These effects may include [medical expenses] [loss of earnings] [pain and suffering] [scarring or disfigurement] [(partial) loss (of use) of part of the body] [(state any other element of damages supported by the evidence)] to be incurred or experienced by the plaintiff over his life expectancy. However, the plaintiff is not entitled to recover twice for the same element of damages. Therefore, you should not include any amount you have already allowed for [medical expenses] [loss of earnings] [pain and suffering] [scarring or disfigurement] [(partial) loss (of use) of part of the body] because of permanent injury. Life expectancy is the period of time the plaintiff may reasonably be expected to live. [The life expectancy tables are in evidence.] [The court has taken judicial notice of the life expectancy tables.]3 They show that for someone of the plaintiff's present age, (state present age), his life expectancy is (state expectancy) years.4 In determining the plaintiff's life expectancy, you will consider not only these tables, but also all other evidence as to his health, constitution and habits.5

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N.C. Gen. Stat. § 8-46. Mortality tables as evidence. NOTE WELL: Whenever it is necessary to establish the expectancy of continued life of any person from any period of the person's life, whether the person is living at the time or not, the table hereto appended shall be received in all courts and by all persons having power to determine litigation, as evidence, with other evidence as to the health, constitution and habits of the person, of such expectancy represented by the figures in the columns headed by the words "completed age" and "expectation" respectively: Completed Age / Expectation 0 / 75.8 20 / 56.9 40 / 38.3 1 / 75.4 21 / 56.0 41 / 37.4 2 / 74.5 22 / 55.1 42 / 36.5 3 / 73.5 23 / 54.1 43 / 35.6 4 / 72.5 24 / 53.2 44 / 34.7 5 / 71.6 25 / 52.2 45 / 33.8 6 / 70.6 26 / 51.3 46 / 32.9 7 / 69.6 27 / 50.4 47 / 32.0 8 / 68.6 28 / 49.4 48 / 31.1 9 / 67.6 29 / 48.5 49 / 30.2 10 / 66.6 30 / 47.5 50 / 29.3 11 / 65.6 31 / 46.6 51 / 28.5 12 / 64.6 32 / 45.7 52 / 27.6 13 / 63.7 33 / 44.7 53 / 26.8 14 / 62.7 34 / 43.8 54 / 25.9 15 / 61.7 35 / 42.9 55 / 25.1 16 / 60.7 36 / 42.0 56 / 24.3 17 / 59.8 37 / 41.0 57 / 23.5 18 / 58.8 38 / 40.1 58 / 22.7 19 / 57.9 39 / 39.2 59 / 21.9

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60 / 21.1 69 / 14.8 78 / 9.5 61 / 20.4 70 / 14.2 79 / 9.0 62 / 19.7 71 / 13.5 80 / 8.5 63 / 18.9 72 / 12.9 81 / 8.0 64 / 18.2 73 / 12.3 82 / 7.5 65 / 17.5 74 / 11.7 83 / 7.1 66 / 16.8 75 / 11.2 84 / 6.6 67 / 16.1 76 / 10.6 85 & over / 6.6 68 / 15.5 77 / 10.0

1 A jury may consider permanent injury as an element of damages where there is sufficient evidence showing that the injury is permanent and that it proximately resulted from the wrongful act. See Short v. Chapman, 261 N.C. 674, 682, 136 S.E.2d 40, 46–47 (1964); Collins v. St. George Physical Therapy, 141 N.C. App. 82, 84, 539 S.E.2d 356, 358 (2000); Matthews v. Food Lion, Inc., 135 N.C. App. 784, 785, 522 S.E.2d 587, 588 (1999).

2 “Where, however, the injury is subjective and of such a nature that laymen cannot, with reasonable certainty, know whether there will be future pain and suffering, it is necessary, in order to warrant an instruction which will authorize the jury to award damages for permanent injury, that there 'be offered evidence by expert witnesses, learned in human anatomy, who can testify, either from a personal examination or knowledge of the history of the case, or from a hypothetical question based on the facts, that the plaintiff, with reasonable certainty, may be expected to experience future pain and suffering, as a result of the injury proven.'” Gillikin v. Burbage, 263 N.C. 317, 326, 139 S.E.2d 753, 760–61 (1965) (internal citations and quotation marks omitted); Littleton v. Willis, 205 N.C. App. 224, 231–32, 695 S.E.2d 468, 473 (2010) (finding error in trial court's instruction to jury on permanent injury where the plaintiff “did not present any medical expert testimony that [p]laintiff, 'with reasonable certainty, may be expected to experience future pain and suffering, as a result of the injury proven,'” as an instruction on permanent injury would have required jurors to speculate on how long they believed plaintiff's pain would continue in the future) (citation omitted).

3 The terms “life expectancy tables” and “mortality tables” are used interchangeably. Ordinarily the “mortality tables” will be in evidence. However, since they are statutory (see N.C. Gen. § Stat. 8-46), “judicial notice” of them may be taken. See Chandler v. Moreland Chem. Co., 270 N.C. 395, 400, 154 S.E.2d 502, 506 (1967); Rector v. James, 41 N.C. App. 267, 272, 254 S.E.2d 633, 637 (1979). The annuity tables (see N.C. Gen. Stat. § 8-47) are different and should not be admitted in evidence. As pointed out in Hunt v. Wooten, 238 N.C. 42, 76 S.E.2d 326 (1953), the annuity tables have nothing to do with the establishment of life expectancy and it would be error to admit them for this purpose. Where the life expectancy to be determined is that of the plaintiff, his age is to be measured as of the date the jury charge is given.

4 The purpose of the permanent injury instruction “is to compensate the plaintiff for additional future harm that she is expected to experience because of a permanent injury that she suffered as a proximate result of the defendant's conduct.” Nicholson v. Thom, ___N.C. App. __, __, 763 S.E.2d 772, __ (2014). In the event that the “decedent is not alive at the time of the trial and [if] Plaintiff did not bring suit for wrongful death,” the trial court should not instruct on permanent injury. Id. In these circumstances [where the decedent is no longer living and there is no wrongful death claim], this instruction should not be used. Id. 5 A failure to include this sentence, or its equivalent, is reversible error. See generally Kinsey v. Kenly, 263 N.C. 376, 139 S.E.2d 686 (1965); Harris v. Atl. Greyhound Corp., 243 N.C. 346, 90 S.E.2d 710 (1956).

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JURY INSTRUCTION – PER DIEM

N.C.P.I.—Civil 810.56 WRONGFUL DEATH DAMAGES—FINAL MANDATE (PER DIEM ARGUMENT BY COUNSEL). GENERAL CIVIL VOLUME JUNE 2012 ------(For medical malpractice cases filed on or after 1 October 2011, use N.C.P.I.—Civil 809.156. Use this instruction in place of 810.54 when a per diem argument has been made.) I instruct you that, your findings on the (state number) issue must be based on the evidence and the rules of law I have given you with respect to the measure of damages.1 You are not required to accept the amount of damages suggested by the parties or their attorneys. (Use only if counsel makes a per diem argument: An attorney is allowed to suggest an amount of damages and therefore can suggest an amount for each (specify unit(s) of time, e.g., "day, hour or minute") of physical pain or mental suffering. However, I instruct you that there is no fixed mathematical formula for computing damages for physical pain or mental suffering. Furthermore, an attorney's argument is not evidence but is merely an approach to the damage issue which you may consider but need not adopt.2) Your award must be fair and just. You should remember that you are not seeking to punish either party, and you are not awarding or withholding anything on the basis of sympathy or pity. Finally, as to the (state number) issue on which the estate has the burden of proof, if you find by the greater weight of the evidence the amount of actual damages [proximately caused by the negligence] [caused by the wrongful conduct] of the defendant, then it would be your duty to write that amount in the blank space provided. If, on the other hand, you fail to so find, then it would be your duty to write a nominal sum such as “One Dollar” in the blank space provided.

1 Damages may not be based on sheer speculation, Stetson v. Easterling, 274 N.C. 152, 161 S.E.2d 531 (1968) and Gay v. Thompson, 266 N.C. 394, 146 S.E.2d 425 (1966), but, by necessity, some speculation is necessary to determine damages, Beck v. Carolina Power & Light Co., 57 N.C. App. 373, 291 S.E.2d 897, aff'd, 307 N.C. 267, 297 S.E.2d 397 (1982), and this is acceptable as long as there are sufficient facts to support necessary speculation, Gay, supra, and Beck, supra.

2 See Weeks v. Holsclaw, 306 N.C. 655, 661, 295 S.E.2d 596, 600 (1982), where the court held that the per diem argument is appropriate, but only if (1) there is a factual basis for it, and (2) cautionary instructions are given. In

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Weeks, the factual basis was the plaintiff’s testimony that he suffered pain almost constantly, backed up by details of the pain and the ways in which the pain had altered his lifestyle.

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JURY INSTRUCTIONS-PUNITIVE DAMAGES

N.C.P.I.—Civil 810.98

GENERAL CIVIL VOLUME

PUNITIVE DAMAGES--ISSUE OF WHETHER TO MAKE AWARD AND AMOUNT OF AWARD. ------

NOTE WELL: Use this instruction in conjunction with claims for relief arising on or after January 1, 1996.1 For claims for relief arising prior to January 1, 1996, use N.C.P.I.—Civil 810.93 or 810.94, as applicable. ALSO NOTE WELL: Statutory limitations are placed on the amount of punitive damages that may be awarded in all cases (except driving while impaired offenses). N.C. Gen. Stat. § 1D- 25(c) specifically directs that the statutory limitations “not be made known to the trier of fact through any means, including voir dire, the introduction into evidence, argument, or instructions to the jury.” Thus, it would be error to do so. If the limitations are exceeded by the jury, “the trial court shall reduce the award and enter judgment for punitive damages in the maximum amount.” N.C. Gen. Stat. § 1D-25(b) (1996). The (state number) issue reads: “What amount of punitive damages, if any, does the jury in its discretion award to the plaintiff?” You are to answer this issue only if you have answered the (state number issue) “Yes” in favor of the plaintiff. Whether to award punitive damages is a matter within the sound discretion of the jury. Punitive damages are not awarded for the purpose of compensating the plaintiff for his [injury] [damage], nor are they awarded as a matter of right. If you decide, in your discretion, to award punitive damages, any amount you award must bear a rational relationship2 to the sum reasonably needed to punish the defendant for egregiously wrongful acts committed against the plaintiff[s] and to deter the defendant and others from committing similar wrongful acts.3 In making this determination, you may consider only that evidence which relates to [the reprehensibility of the defendant's motives and conduct]4 [the likelihood, at the relevant time, of serious harm (to the plaintiff or others similarly situated)] [the degree of the defendant's awareness of the probable consequences of his conduct] [the duration of the defendant's conduct] [the actual damages suffered by the plaintiff] [any concealment by the defendant of the facts or consequences of his conduct] [the existence and frequency of any similar past conduct by the defendant] [whether the defendant profited by the conduct] [the defendant's ability to pay punitive damages, as evidenced by his revenues or net worth].5

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Finally, if you determine, in your discretion, to award punitive damages, then you may award to the plaintiff an amount which bears a rational relationship to the sum reasonably needed to punish the defendant for egregiously wrongful acts and to deter the defendant and others from committing similar wrongful acts. That amount should be written in the space provided on the verdict sheet. If, on the other hand, you determine, in your discretion, not to award the plaintiff any amount of punitive damages, then you should write the word “None” in the space provided on the verdict sheet.

1 N.C. Gen. Stat. § 1D-1 became effective January 1, 1996, displacing common law punitive damages. It applies to all “claims for relief arising on or after that date.” 1995 N.C. Sess. Laws 514, § 5.

2 To meet due process requirements, jury discretion must be exercised “within reasonable constraints.” Pacific Mutual Life Insurance Co. v. Haslip, 499 U.S. 1, 20, 113 L.E.2d 1, 46 (1991). The enactment of N.C. Gen. Stat. § 1D does not obviate the need for this constitutionally mandated standard. Pre-enactment cases also embraced this standard. See Swinton v. Savoy Realty Co., 236 N.C. 723, 725, 73 S.E.2d 785, 787 (1953), overruled on other grounds, Newton v. Standard Fire Ins. Co., 291 N.C. 105, 229 S.E.2d 297 (1976) (stating that “it has been uniformly held with us that punitive damages may be awarded in the sound discretion of the jury and within reasonable limits” (emphasis added)) and Baker v. Winslow, 184 N.C. 1, 5, 113 S.E. 570, 572 (1922).

3 N.C. Gen. Stat. § 1D-35(1) (1996).

4 NOTE WELL: In Phillip Morris USA v. Williams, 549 U.S. 346, 166 L.Ed.2d 940 (2007), the United States Supreme Court observed that “[e]vidence of actual harm to nonparties can help to show that the conduct that harmed the plaintiff also posed a substantial risk of harm to the general public, and so was particularly reprehensible.” Id. at 355, 166 L.Ed.2d at 949. The Court also “recognize[d] that conduct that risks harm to many is likely more reprehensible than conduct that risks harm to only a few. And a jury consequently may take this fact into account in determining reprehensibility.” Id. at 357, 166 L.Ed.2d at 951. Notwithstanding, the Court held that “the Constitution’s Due Process Clause forbids a [jury] to use a punitive damages award to punish a defendant for injury that it inflicts upon nonparties or those whom they directly represent, i.e., injury that it inflicts upon those who are, essentially, strangers to the litigation.” Id. at 353, 166 L.Ed.2d at 948. The Court concluded by recognizing a practical problem. That is, “[h]ow can we know whether a jury, in taking account of harm caused others under the rubric of reprehensibility, also seeks to punish the defendant for having caused injury to others?” Id. at 357, 166 L.Ed.2d at 951 (emphasis in original). Without proffering a specific solution, the Court directed that where the “risk of any such confusion occurring . . . is a significant one—because, for instance, of the sort of evidence that was introduced at trial or the kinds of argument the plaintiff made to the jury—a court, upon request, must protect against that risk. Although the States have some flexibility to determine what kinds of procedures they will implement, federal constitutional law obligates them to provide some form of protection in appropriate cases.” Id. (emphasis in original). The Pattern Jury Instruction Civil Subcommittee, after careful deliberation, has interpreted the foregoing to require, “upon request” and “in appropriate cases,” that a limiting instruction, such as the following, be given: “Evidence which may tend to show that the defendant’s conduct caused harm or created the risk of harm to the general public or to persons who are not a party to this lawsuit, if you find that the evidence does so show, may be considered by you only in your determination of the reprehensibility of the defendant’s motives and conduct, and not for any other purpose. You may not award the plaintiff punitive damages in this case to punish the defendant for harm it may have caused to others that are not parties to this lawsuit.”

5 N.C. Gen. Stat. § 1D-35(2).

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DR. BROD ECONOMIC REPORT

Memorandum

To: Carolyn Woodruff From: Andrew Brod, forensic economist Date: November 15, 2018 Re: Projection of net lost earnings and services for Jamie Thomas 1. Introduction In this memorandum, I summarize my preliminary calculation of the projected lost earnings and benefits plus the projected value of lost household services for Jamie Thomas, less the value of real estate given to her former husband, Daniel Thomas. The trigger date for these calculations is October 29, 2017, the date of Ms. Thomas’ separation from Mr. Thomas. I calculated the present value of the lost earnings and services through the remainder of Thomas’ expected life, expressing the results in 2018 dollars. I have not assumed a trial date for this analysis, nor have I applied pre-judgment interest (on the assumption that if there is a verdict for the plaintiff, the court will apply such interest). As further information becomes available on any of the issues addressed in this memorandum, I may update my analysis further. 2. Earnings The basic equation I used to calculate net earnings is: Earnings = Income + Fringe Benefits − Personal Consumption I subtracted personal consumption to reflect the amount that would not have been available to Thomas. On the date of separation, Ms. Thomas was working as a Certified Medical Assistant in a physician’s office. Over the years 2013-16, her average W-2 income was $30,602, which I used as the base income for this analysis. According to data provided by the North Carolina Department of Commerce, wages in the Offices of Physicians sector rose at an average of 2.22% per year from 2000 to 2017. I used that figure as the growth rate for my projections of lost earnings. 3. Benefits Thomas received fringe benefits as well as a salary. I ignored her health benefits, on the assumption that they accrued primarily to her personal benefit. That leaves retirement and legally

48 required benefits; the latter includes such benefits as unemployment insurance and FICA. According to the federal government’s national survey of employee benefits, the value of these benefits in the Health Care and Social Assistance sector amounts to 15.3% of workers’ money earnings. I added this amount to Thomas’ lost earnings in each year to obtain a value of lost total compensation. 4. Adjustment for Personal Consumption Not all of Thomas’ lost earnings would have benefited Thomas, because some of her income would have been spent on herself. Therefore, I subtracted a projection of Thomas’ personal- consumption spending from her total compensation. The exclusion for personal consumption depends on the number of children in the family and is a function of total household income. Mr. and Ms. Thomas had no minor children in the home. Based on estimates in an authoritative and frequently cited study on personal consumption, I determined that the share of Ms. Thomas’ income that was spent on herself was 65.8%. 5. Projected Net Earnings Based on the calculations described above, I obtained a value of Ms. Thomas’ total compensation for each year, net of her personal consumption. I then calculated the reasonably expected value of net earnings and benefits in each year by adjusting for various probabilities. My projections extend until the end of Ms. Thomas’ life. Of course we cannot know how long Thomas will live. Therefore, instead of assuming with certainty that she will live until some specific age, my analysis employed year-by-year probabilities of being alive, of being able to work, and not being unemployed. I performed these calculations until the year 2054, when Ms. Thomas will turn 85. By the time Ms. Thomas reaches that age in my analysis, each year’s contribution to lost earnings and benefits is quite small. I calculated year-by-year survival probabilities of a female who had reached the age of 49 (Ms. Thomas’ age on her last birthday), based on the United States Life Tables for 2014. For the probability of being able to work, I used a combination of nondisability probabilities and labor-force participation rates. Because Ms. Thomas was working as of the trigger date, she would probably have continued to work. The most likely reason for her not working in the near future would be a severe disability. Of course she could simply decide not to work at some point, but I assume that she would have continued working if not disabled. But beyond some age, nondisability rates greatly overstate a person’s presence in the labor force. Therefore, at age 65 in my analysis, I switched from nondisability rates to labor-force participation rates to reflect the probability that Ms. Thomas would retire. I obtained probabilities of severe disability from Census data derived from the 2002 Survey of Income and Program Participation. I used labor- force participation rates for women, by age group, produced by the U.S Bureau of Labor Statistics. For the probability of unemployment, I used the national unemployment rate for women aged 20 and over, averaged over the years 1990-2017. The result was an unemployment rate of 5.21%.

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Finally, I discounted all future values of expected net earnings based on the well-under-stood principle of the “time value of money”: a dollar today is worth more than a dollar tomorrow. To calculate the discount rate, I used interest rates on both short-term (one-year) and long-term Treasury bills. For each year, I took the average of short-term and long-term interest rates. I assumed that this average would increase over the next few years, from the very low current rates up to the long-run average for the years 1986 through 2017. That average is 4.61% and is, after the first few years, the discount rate for this analysis. Based on this methodology, the expected present value of Ms. Thomas’ projected future net lost earnings and benefits is $158,054. 6. Lost Household Services The economic damages related to the separation go beyond the calculation described in the previous section. Ms. Thomas performed a variety of tasks around the house, many of which have value. It is reasonable to compensate for those tasks for which replacement assistance will now have to be hired. The federal government compiles data on how much time Americans spend in various activities each day. I used average data for employed women in the following activity categories: household activities; purchasing goods and services; and caring for and helping household members. Household activities include housework, food preparation and clean-up, lawn and garden care, and household management. Based on these data, and factoring in the assumption of no minor children in the home, I calculated Ms. Thomas’ service hours to be 18.83 hours per week. To obtain a value of these lost services, I used North Carolina data on various relevant occupations: home-health aides, maids and housekeepers, landscaping workers and groundskeepers, and personal-care aides. In 2017, the average hourly wage for those occupations was $10.86, and I used that figure as the base wage for this analysis. This, too, is a conservative assumption, because those services are often provided by companies that charge prices above the cost of wages. At the national level, the average earnings of those occupations increased by an average of 2.26% per year from 2000 to 2017. I used that rate of increase to project future growth in the cost of these lost services. As with the earnings projection, I adjusted each year’s figure for the probability of mortality and disability, and I discounted all future values to obtain a present value of household services. The expected present value of projected future lost household services is $192,495. 7. Value of Real Property In the separation agreement of October 29, 2017, Ms. Thomas relinquished all ownership interest in three properties the couple had previously owned jointly. Under the separation agreement, Mr. Thomas will not profit from the sale of the property on Link Road in Lexington, NC, and he says the same is true for the property on Friedburg Church Road in Winston-Salem, NC. In effect, he will pass his ownership equity in these properties to others. The remaining property is the former

50 marital residence on Cread Court in Winston-Salem. His newly acquired equity in that property mitigates his economic damages in this matter. Prior to the separation, both Thomases had an equal share in the property. Therefore, under the separation agreement, Mr. Thomas acquired Ms. Thomas’ share of the equity, which means he gained half of the total equity as it existed on the separation date. The equity in that property on October 29, 2017, is unknown, because we don’t have an as-is valuation of the property on that date. However, we have two appraisals of the property that were conducted for sale purposes and assumed that the house was in saleable condition. Those two values were $330,000 and $361,900, and for purposes of this analysis, I used the average, $345,950, as the value of the property in saleable condition. According to Mr. Thomas, the Cread Court property will require another $45,553 in construction expense to render it saleable. I used $345,950 minus $45,553, or $300,398, as my estimate of the property’s value at the time of separation. The equity in a property is the property’s value minus debt owed on it. The separation agreement identifies two home-equity lines of credit (HELOCs) used as construction loans for the Cread Court property. The balances of the HELOCs on the separation date were $29,901 and $180,227. Their sum, $210,128, is the outstanding debt on the property as of the couple’s separation. Therefore, the total equity in the Cread Court property on the separation date was $300,398 minus $210,128, or $90,270. The equity acquired by Mr. Thomas in the separation was half of that, or $45,135. Mitigating Mr. Thomas’ economic damages by this amount is conservative. Mr. Thomas is the defendant in a lawsuit regarding construction costs for the Cread Court property, and he has freed Ms. Thomas from financial liability in that action. The lawsuit, of which both Thomases were aware on the separation date, represents a further debt attached to that property, though one of unknown value. Whatever amount Mr. Thomas ends up owing as part of a settlement or judgment against him would reduce the equity in the property. If Mr. Thomas ends up owing $90,270 or more, his equity in the property would be zero. 8. Net Economic Damages Total damages are the sum of lost earnings/benefits and household services, less the acquired equity in the Cread Court property: Total Economic Damages Type Amount Lost Earnings/Benefits $158,054 Lost Household Services $192,495 Less: Acquired Equity -$45,135 Total $305,414

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The sum of the present values of lost earnings and lost services is $350,549. If the loss is mitigated by the equity Mr. Thomas acquired on Cread Court, the present value of his economic damages is $305,414. 9. Sources I relied upon the following sources: • Daniel Thomas: tax returns and worksheets for 2013-17 • Personal communications with Daniel Thomas • Separation agreement, October 29, 2017 • U.S. Department of Labor, Bureau of Labor Statistics: o Occupational wage data at http://www.bls.gov/oes/ o Benefits data at http://www.bls.gov/ect/ o Unemployment and labor-force participation data at http://www.bls.gov/cps/ o Time-use data at http://www.bls.gov/tus/ • North Carolina Division of Employment Security: Industrial wage data at http://d4.nccommerce.com/QCEWSelection.aspx • U.S. Census Bureau, Survey of Income and Program Participation: disability statistics at www.census.gov/hhes/www/disability/sipp/disab02/ds02t1.pdf • Federal Reserve Board: Interest rate data at www.federalreserve.gov • Wells Fargo Securities Economics Group: Monthly Economic Outlook, November 2018 • “United States Life Tables, 2014,” National Vital Statistics Reports, Vol. 66, No. 4, August 14, 2017 • Ruble, Michael R., Patton, Robert T., and Nelson, David M., “Patton-Nelson Personal Consumption Tables 2011-12,” Journal of Legal Economics, Vol. 21, No. 1, 2014

10. Author Information My business name and address are: Andrew Brod, Ph.D. Brod Forensic Economics 4 Dunkirk Place Greensboro, NC 27410

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