Tripp v Tripp
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA11-259 NORTH CAROLINA COURT OF APPEALS Filed: 4 October 2011 DAVID L. TRIPP, Plaintiff, v. New Hanover County No. 09 CVS 5575 LOIS K. TRIPP, Defendant. Appeal by plaintiff from order entered 17 May 2010 by Judge John E. Nobles in New Hanover County Superior Court. Heard in the Court of Appeals 12 September 2011. Carolina Legal Counsel, plaintiff-appellant. by J. Wesley Casteen, for J. Albert Clyburn, for defendant-appellee. MARTIN, Chief Judge. Plaintiff and defendant were married on 16 June 1990. On 13 January 1995, the parties acquired property located in Kure Beach from a non-family member of either party. The property was titled to the parties as tenants by the entireties. December 2000, defendant executed a North Carolina On 11 general warranty deed, wherein she conveyed the property to plaintiff. -2The parties separated on or about 5 February 2009, and plaintiff filed a complaint in Brunswick County District Court seeking equitable distribution. In that action he sought, inter alia, a declaratory judgment designating the Kure Beach property as his separate property, and moved for partial summary judgment on that issue. In her answer, defendant asserted the Kure Beach property was marital property because it was acquired during the marriage, not as a gift. In an order entered 30 December 2009, the district court granted defendant s partial summary judgment motion, determining the property was marital property. While the Brunswick County action was pending, in November 2009, plaintiff brought the present action in New Hanover County Superior Court for claims including to quiet title, breach of warranty of title, fraud, unjust enrichment, and contribution. Defendant filed an answer asserting motions to dismiss pursuant to N.C.G.S. § 1A-1, Rules 12(b)(1) and 12(b)(6), as well as affirmative defenses of res judicata and abatement. In an Superior order Court dated entered 17 May its 2010, order the New Hanover concluding, County pursuant to N.C.G.S. § 7A-244, that: the district court division was the proper trial division distribution and for the the of enforcement proceedings of for property equitable settlement agreements; the parties invoked the jurisdiction of the district court in Brunswick County to equitably distribute their marital -3property; the over subject the superior court, matter; therefore, the prior lacked Brunswick jurisdiction County action abated the present action; and the present action constituted an impermissible collateral attack on the partial summary judgment order entered in the Brunswick County action and was barred under principles of res judicata. the New Hanover County action The superior court dismissed with prejudice. Plaintiff appeals. _________________________ On appeal, plaintiff contends the superior court erred in dismissing his claims relating to the Kure Beach property, arguing that New Hanover County was the proper venue for such claims. However, [v]enue is not jurisdictional, but is only ground[s] for removal to the proper county, if objection thereto is made in apt time and in the proper manner. Shaw v. Stiles, 13 N.C. App. 173, 176, 185 S.E.2d 268, 269-70 (1971). matter jurisdiction, on the other hand, is [a] Subject threshold requirement for a court to hear and adjudicate a controversy brought before it . . . . In re M.B., 179 N.C. App. 572, 574, 635 S.E.2d 8, 10 (2006). Where there is no subject matter jurisdiction, the proceeding is void and may be treated as a nullity. High v. Pearce, 220 N.C. 266, 271, 17 S.E.2d 108, 112 (1941). N.C.G.S. § 7A-244 provides: -4The district court division is the proper division without regard to the amount in controversy, for the trial of civil actions and proceedings for annulment, divorce, equitable distribution of property, alimony, child support, child custody and the enforcement of separation or property settlement agreements between spouses, or recovery for the breach thereof. N.C. Gen. Stat. § 7A-244 (2009) (emphasis added). Once a party invokes the jurisdiction of a court for equitable distribution, the court has exclusive jurisdiction over the property issues between the spouses. See Garrison v. Garrison, 90 N.C. App. 670, 672, 369 S.E.2d 628, 629 (1988). Here, plaintiff invoked the jurisdiction of the Brunswick County District Court when he filed the action for equitable distribution in February 2009. In that action, plaintiff asked for a declaratory judgment designating the Kure Beach property as his separate property. obtained between exclusive plaintiff At that point, the district court jurisdiction and distribution action. over any as part defendant property of the disputes equitable Plaintiff subsequently filed the present action in which he alleged alternate claims for relief including to quiet title, breach of warranty of title, fraud, unjust enrichment, and contribution related to the same property. A court does not have subject matter jurisdiction over a later-filed case if it is substantially similar to an earlierfiled case pending in another court. See Burgess v. Burgess, __ N.C. App. __, __, 698 S.E.2d 666, 669 (2010). In determining if -5the two cases are substantially similar, the court looks at whether (1) the same property was the subject of both the superior and district court actions, and (2) the relief sought and available was similar in each suit. Id. at __, 698 S.E.2d at 669. Here, both the district and superior court actions involve the same property: the Kure Beach property. Furthermore, the relief sought in plaintiff s prayer for a declaratory judgment in the district court action is the same as that sought in the quiet title action in superior court, i.e., a determination that plaintiff is the sole owner of the Kure Beach property and defendant has no rights or interests in the property adverse to that of plaintiff. Plaintiff contends, however, that his breach of warranty of title, fraud, unjust enrichment, and contribution claims are sufficiently different from the equitable distribution claim in district court so as to give the superior court subject matter jurisdiction to hear the claims. He further argues dismissal of these claims in superior court would leave him without a remedy for these causes of action. We disagree. In Hudson International, Inc. v. Hudson, 145 N.C. App. 631, 632, 550 S.E.2d 571, 572 (2001), then-wife filed an action for equitable distribution in the district court. During the marriage, the husband used proceeds from the parties marital -6residence to build a residence in Maine, which he titled in the name of his business, Hudson International. Id. equitable district court, court seeking Hudson distribution International declaratory ownership relief interest S.E.2d at 572. as in action was pending filed suit to whether the Maine in in superior husband property. or While the wife had any at 633, 550 Id. The superior court granted wife s motion to dismiss, finding it lacked authority to hear the case. 633, 550 S.E.2d at 572-73. Id. at This Court affirmed, holding that the superior court action concerned property which was arguably a marital asset subject to equitable distribution, and thus, the superior court had no subject matter jurisdiction to determine the nature of or divide the property. Id. at 636-37, 550 S.E.2d at 574. Similarly, in Garrison v. Garrison, 90 N.C. App. 670, 672, 369 S.E.2d 628, 629 (1988), husband and wife invoked the jurisdiction of the district court to equitably distribute their marital property in an action for absolute divorce and equitable distribution. A judgment of absolute divorce was entered, but the equitable distribution claim remained before the court for decision. Id. While the equitable distribution action was still pending, the husband commenced an action in superior court to partition the marital residence, and the superior court ordered that commissioners be appointed and that the partition -7proceeding go forward appealed, court, and this holding partition court distribution. Court vacated the superior that marital district Id. at 671, 369 S.E.2d at 629. property has the court where already order the been The wife of no had the authority jurisdiction invoked for Id. at 671-72, 369 S.E.2d at 629. superior of to the equitable We noted that the superior court could have partitioned the property had the parties not first filed the equitable distribution action in district court. Id. at 672, 369 S.E.2d at 629. Equitable distribution of marital property consists of a three-step process classification, assets. 571, which valuation, includes and identification distribution of the and parties See Willis v. Willis, 86 N.C. App. 546, 550, 358 S.E.2d 573 (1987). While the North Carolina equitable distribution statute presumes an equal division of the marital property is appropriate, if the court finds that an equal distribution would not be equitable, the court [s]hall divide the marital property and divisible property equitably. Gen. Stat. § 50-20(c) (2009). N.C. In doing so, the court can look at the relevant factors enumerated in N.C.G.S. § 50-20(c), as well as any other factor which the court finds to be just and proper. N.C. Gen. Stat. § 50-20(c)(12). Such factors are limited, however, to economic concerns similar to the enumerated -8factors in N.C.G.S. § 50-20(c). Suzanne Reynolds, Lee s North Carolina Family Law § 12.95(a) (5th ed. 2002). The claims plaintiff asserts in the present superior court action fall within the factors which can be addressed in the district court equitable distribution action. In the present action, plaintiff seeks title to the property or, alternatively, economic damages to compensate him for the alleged fraud surrounding the conveyance of the property during marriage and the expenses of maintaining and improving the property, all of which may be properly addressed in the distribution of the marital estate under the catch-all provisions of N.C.G.S. § 50-20(c)(12). 500 S.E.2d See Sparks v. Peacock, 129 N.C. App. 640, 641, 116, 117 (1998) (noting that had the equitable distribution action been pending, district court would have had exclusive jurisdiction over spouse s claim for contribution for payments made on marital debt); cf. Jessee v. Jessee, __ N.C. App. __, __, 713 S.E.2d 28, 35 (2011) (holding that equitable distribution claim in district court did not require dismissal of subsequent action alleging after parties had separated). claims of wrongdoing committed Thus, we conclude, as did the trial court, that the issues in the equitable distribution case pending in the district court are substantially similar to the claims asserted by plaintiff in the present case so that the -9trial court had no subject matter jurisdiction in the present case. Because jurisdiction is a threshold issue, the absence of jurisdiction is dispositive in this case, and the trial court had no jurisdiction to determine the affirmative defenses of collateral estoppel and res judicata on their merits. For that reason, we do not consider the parties arguments with respect to those however, affirmative that the defenses. trial court dismissal was with prejudice. Plaintiff erred further in ordering contends, that the We must agree. Rule 41(b) of the North Carolina Rules of Civil Procedure states that unless the court in its order for dismissal states otherwise, a jurisdiction, dismissal improper other venue than or a dismissal failure to for join a party operates as an adjudication on the merits. Stat. § 1A-1, Rule 41(b) (2009) (emphasis added). lack of necessary N.C. Gen. A dismissal for lack of jurisdiction under Rule 12(b)(1) is not a judgment on the merits, and thus the dismissal cannot be with prejudice. See Hudson Int l, Inc., 145 N.C. App. at 638, 550 S.E.2d at 575; Cline v. Teich, 92 N.C. App. 257, 264, 374 S.E.2d 462, 466 (1988). Therefore, we must remand for entry of an order dismissing this action without prejudice to plaintiff s right to have the issues decided in the pending equitable distribution action. -10Affirmed; remanded with instructions. Judges BRYANT and CALABRIA concur. Report per Rule 30(e).
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