M.E. v. T.J.
No. 18A21
IN THE SUPREME COURT OF NORTH CAROLINA
Filed 11 March 2022
2022-NCSC-23
Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, 275 N.C. App. 528 (2020), reversing the ruling entered 7 June 2018 by Judge Anna Worley in the District Court of Wake County, and remanding for further proceedings. Heard in the Supreme Court on 5 January 2022.
Scharff Law Firm, PLLC, by Amily McCool; ACLU of North Carolina Legal Foundation, by Irena Como and Kristi L. Graunke; and Patterson Harkavy LLP, by Christopher A. Brook, for plaintiff-appellee.
Nelson Mullins Riley & Scarborough LLP, by Lorin J. Lapidus, D. Martin Warf, and G. Gray Wilson, for defendant-appellant.
Joshua H. Stein, Attorney General, by Ryan Y. Park, Solicitor General, for State of North Carolina and Governor Roy Cooper, amici curiae.
Brooks, Pierce, McLendon, Humphrey, & Leonard, LLP, by Sarah M. Saint and Eric M. David; and Kathleen Lockwood and Nisha Williams, for North Carolina Coalition Against Domestic Violence, amicus curiae.
Poyner Spruill LLP, by Andrew H. Erteschik, John Michael Durnovich, N. Cosmo Zinkow; and Robinson, Bradshaw, & Hinton, P.A., by Stephen D. Feldman, Mark A. Hiller, and Garrett A. Steadman, for Legal Aid of North Carolina, The North Carolina Justice Center, and The Pauli Murry LGBTQ+ Bar Association, amici curiae.
Womble Bond Dickinson (US) LLP, by Kevin A. Hall, Samuel B. Hartzell, and Ripley Rand, for Former District Court Judges, amicus curiae.
¶ 1 For well over a century, North Carolina courts have abided by the foundational principle that administering equity and justice prohibits the elevation of form over substance. See, e.g., Currie v. Clark, 90 N.C. 355, 361 (1884) (“This would be to subordinate substance to form and subserve no useful purpose.“); Moring v. Privott, 146 N.C. 558, 567 (1908) (“Equity disregards mere form and looks at the substance of things.“); Fidelity & Casualty Co. v. Green, 200 N.C. 535, 538 (1931) (“To hold otherwise, we apprehend, would be to exalt the form over the substance.“). In alignment with this principle, our Rules of Civil Procedure are intended to facilitate access to justice, not obstruct it. See Pyco Supply Co. v. American Centennial Ins. Co., 321 N.C. 435, 443 (1988) (noting that “deny[ing] plaintiff its day in court simply for its imprecision with the pen . . . would be contrary to the purpose and intent of . . . the modern rules of civil procedure.“). Indeed, “it is the essence of the Rules of Civil Procedure that decisions be had on the merits and not avoided on the basis of mere technicalities.” Mangum v. Surles, 281 N.C. 91, 99 (1972).
¶ 2 This principle holds particular salience in the realm of Domestic Violence Protective Orders (DVPO). Survivors of domestic violence who turn to courts for protection typically do so shortly after enduring physical or psychological trauma, and without the assistance of legal counsel. Maria Amelia Calaf, Breaking the Cycle: Title VII, Domestic Violence, and Workplace Discrimination, 21 Law & Ineq. 167, 170 (2003) (noting that “the effects [of domestic violence] extend beyond the physical harms, causing substance abuse, severe psychological trauma, and stress-related illnesses.“); Julia Kim & Leslie Starsoneck, North Carolina District Courts’ Response to Domestic Violence 57 (Dec. 2007), https://www.nccourts.gov/assets/inline-files/dv_studyreport.pdf [hereinafter Kim & Starsoneck] (noting that “generally most 50B plaintiffs and defendants appear pro se.“). Accordingly, “[t]he procedures under
¶
¶ 4 Accordingly, we hold that the district court did not err in determining that it had subject matter jurisdiction to allow plaintiff to proceed with her Chapter 50B DVPO action. Further, we hold that plaintiff‘s constitutional argument was properly preserved for appellate review, and that defendant‘s Rule 19(d) necessary joinder argument was not properly preserved for appellate review. Finally, we note that the merits of the Court of Appeals’ ruling that
I. Factual and Procedural Background
A. Chapter 50B Filings and District Court Rulings
¶ 5 Plaintiff M.E. and defendant T.J., both women, were in a dating relationship that ended badly. After plaintiff ended the relationship on 29 May 2018, she alleged that defendant became verbally and physically threatening toward plaintiff, including attempting to force her way into plaintiff‘s house and needing to be removed by police. On the morning of 31 May 2018, plaintiff, accompanied by her mother, went to the Wake County Clerk of Superior Court office seeking the protections of a Domestic Violence Protective Order and an ex parte temporary DVPO pursuant to
¶ 6 Plaintiff then filled out the Chapter 50B forms she had been given. Plaintiff checked Box 4 of the form, which alleges that “[t]he defendant has attempted to cause or has intentionally caused me bodily injury; or has placed me or a member of my family or household in fear of imminent serious bodily injury or in fear of continued harassment that rises to such a level as to inflict sustained emotional distress . . .” In the subsequent space for further details, plaintiff wrote:
May 29th 2016[.] Became aggressive after stating the relationship was over. Had to push her back twice and lock her out of my home then placed 911 call. Officer arrived and she appeared to have left. She was hiding in back yard. Attempted to force entry into the home. 911 was called again. Defendant has not stopped attempting to contact me.
Plaintiff also checked Box 6, indicating that “I believe there is danger of serious and imminent injury to me or my child(ren).” Finally, plaintiff checked Box 9, indicating that “[t]he defendant has firearms and ammunition as described below.” Below, plaintiff wrote “access to father[‘]s gun collection[.]”
¶ 7 Plaintiff requested “emergency relief” by way of “an Ex Parte Order before notice of a hearing is given to the defendant.” Plaintiff further requested that the court order Defendant: “not to assault, threaten, abuse, follow, harass, or interfere with me[;]” “not to come on or about . . . my residence [or] . . . the place where I work[;]” “[to] have no contact with me[;]” “[not] possess[ ] or purchas[e]
¶ 8 When plaintiff returned to court for her hearing, the trial court “informed [her] that because both she and [d]efendant were women, and only in a ‘dating’ . . . relationship,
- Are current or former spouses;
- Are persons of opposite sex who live together or have lived together;
- Are related as parents and children . . . ;
- Have a child in common;
- Are current or former household members; [or]
- Are persons of the opposite sex who are in a dating relationship or have been in a dating relationship.
(emphasis added). As such, the statute excludes from DVPO eligibility any person, like plaintiff, who is or was in a same-sex dating relationship. Instead of seeking a DVPO under Chapter 50B, trial court informed plaintiff
that she could seek a civil ex parte temporary no-contact order and a permanent civil no-contact order, pursuant to
Chapter 50C . SeeN.C.G.S. § 50C-2 (2017).Chapter 50C expressly states that its protections are for “persons against whom an act of unlawful conduct has been committed by another person not involved in a personal relationship with the person as defined in G.S. 50B-1(b).”N.C.G.S. § 50C-1(8) (2017) (emphasis added).
M.E., 275 N.C. App. at 533. Notably, however, unlike DVPOs under Chapter 50B, no-contact orders under Chapter 50C do not allow the trial court to place any limits upon the defendant‘s right to possess a weapon.
¶ 9 Accordingly, plaintiff returned to the clerk‘s office and explained to staff members what the judge had told her. Staff members then gave plaintiff a new stack of forms to complete, including the Chapter 50C forms and a notice of voluntary dismissal of her previous Chapter 50B complaint. Plaintiff filled out the forms and gave them back to the staff members, who filed them. Plaintiff‘s notice of voluntary dismissal was filed-stamped 3:12 p.m.
¶ 10 Shortly thereafter, after a conversation among the staff, staff members informed plaintiff that she could still request a DVPO under Chapter 50B even if the trial court was going to deny it. Staff members then gave the original file-stamped notice of voluntary dismissal back to plaintiff. Plaintiff struck through the notice and wrote on it: “I strike through this voluntary dismissal. I do not want to dismiss this action[.]” Plaintiff then returned the form to the staff, who wrote “Amended” at the top and refiled it. The amended form was file-stamped a second time at 3:51 p.m., thirty-nine minutes after the original filing.
¶ 11 Plaintiff‘s four actions (Chapter 50B ex parte DVPO, Chapter 50B permanent DVPO, Chapter 50C ex parte Temporary No-Contact Order for Stalking, and Chapter 50C permanent Temporary No-Contact Order for Stalking) were then heard at the afternoon session of district court that same day, 31 May 2018. Plaintiff was present without counsel at this hearing; defendant was not present. The court had before it the full record of the case, including plaintiff‘s amended voluntary dismissal form. The court “denied [p]laintiff‘s request for a Chapter 50B ex parte DVPO, but set a hearing date of 7 June 2018 for a hearing on [p]laintiff‘s request for a permanent DVPO.” M.E., 275 N.C. App. at 533. Specifically, the trial court concluded in its order that: “allegations are significant but parties are in same[-]sex relationship and have never lived together, [and] therefore do not have relationship required in statute.” The trial court did, however, grant plaintiff‘s ex parte request pursuant to Chapter 50C by entering a
In the ex parte 50C Order, the trial court found as fact that “plaintiff has suffered unlawful conduct by defendant in that:” “On 5/29/18, defendant got physically aggressive and was screaming in plaintiff‘s face; defendant then left after LEO (law enforcement officers) were called; after LEO left,” defendant “attempted to re-enter plaintiff‘s house; LEO returned to remove defendant from plaintiff‘s house; since that date, defendant has repeatedly called plaintiff, texted plaintiff from multiple numbers, and contacted plaintiff‘s friends and family.” The trial court found that defendant “continues to harass plaintiff,” and that “defendant committed acts of unlawful conduct against plaintiff.” The trial court concluded that the “only reason plaintiff is not receiving a 50B DVPO today” is because plaintiff and defendant had been “in a same[-]sex relationship and do not live together,” and that
N.C.G.S. § 50B-1(b) , as plainly written, requires the dating relationship to have consisted of people of the “opposite sex.”
M.E., 275 N.C. App. at 534 (cleaned up).
¶ 12 On 7 June 2018, the trial court conducted its subsequent hearing on plaintiff‘s Chapter 50B and Chapter 50C permanent motions. Plaintiff appeared with counsel at this hearing; defendant appeared pro se. Here again, the trial court enjoyed the benefit of the full case record, including plaintiff‘s amended voluntary dismissal form. First, regarding the Chapter 50B complaint, “[d]efendant consented to an amendment to the order to indicate her relationship with [p]laintiff was one ‘of same sex currently or formerly in dating relationship.’ ” Id. at 535. The trial court then stated: “I do not have a complaint . . . that would survive a Rule 12 motion [to dismiss]” because the plain language of
[Plaintiff‘s counsel]: Your honor, with that amended, I understand what you already said, that you don‘t believe it would survive a motion to dismiss. However, . . . we do feel at this point that [plaintiff] should be allowed to proceed with the Domestic Violence Protective Order, that it‘s—the statute, that 50B, is unconstitutional as it‘s written post the same-sex marriage equality case from the Supreme Court in Obergefell and that there‘s no rational basis at this point to have a statute that limits dating relationships to folks of opposite sex. So we would ask that Your Honor consider allowing [plaintiff] to proceed with her Domestic Violence Protective Order case.
[The court]: Do you have any precedent?
[Plaintiff‘s counsel]: Not in North Carolina.
[The court]: Other than the Obergefell case.
[Plaintiff‘s counsel]: No, Your Honor, not in North Carolina.
[The court]: In anywhere else that has a similar statute?
[Plaintiff‘s counsel]: Your Honor[,] . . . South Carolina recently just overturned their statute that was written similarly.
[The court]: In what procedure?
[Plaintiff‘s counsel]: In a Domestic Violence Protective Order procedure.
[The court]: By what court?
[Plaintiff‘s counsel]: Either their court of appeals or their supreme court. Not by a district court, Your Honor. Yes, I believe it was a court of appeals case.
[The court]: And in checking the legislative history, when was the last time our legislature addressed this?
[Plaintiff‘s counsel]: Your Honor, our legislature has amended 50B for different reasons, but they have not amended the personal relationship categories any time in the recent past that I can recall. And, your honor, we‘ve explained to [plaintiff], certainly, the bind that the [c]ourt is in in being bound by the language of the statute.
[The court]: Without a more expansive argument on constitutionality, I won‘t do it. I think there is room for that argument. I
think that with some more presentation that maybe we could get there, but I don‘t think on the simple motion that I‘m ready to do that. [Plaintiff‘s counsel]: Thank you, Your Honor. Then with the [c]ourt‘s denial of the plaintiff‘s 50B action, then we would like to proceed with the 50C.
[The court]: Okay.
¶ 13 In its subsequent form order, the trial court ruled that:
plaintiff has failed to state a claim upon which relief can be granted pursuant to the statute, due to the lack of [a] statutorily defined personal relationship. . . . [H]ad the parties been of opposite genders, those facts would have supported the entry of a Domestic Violence Protective Order (50B).
N.C.G.S. [§] 50B was last amended by the legislature in 2017 without amending the definition of “personal relationship” to include persons of the same sex who are in or have been in a dating relationship. This recent amendment in 2017 was made subsequent to the United States Supreme Court decision in Obergefell v. Hodges, 576 U.S. [664,] (2015), and yet the legislature did not amend the definition of personal relationship to include dating
partners of the same sex.
Accordingly, the trial court dismissed plaintiff‘s Chapter 50B DVPO motion.
¶ 14 Later, the trial court issued a subsequent written order regarding plaintiff‘s Chapter 50B DVPO motion. There, the trial court concluded the following:
2. The [p]laintiff, through her counsel, argued that she should be allowed to proceed on her request for a [DVPO] because the current
North Carolina General Statute 50B-1(b) is unconstitutional after the United States Supreme Court decision in Obergefell v. Hodges and that there is no rational basis for denying protection to victims in same-sex dating relationships who are not spouses, ex-spouses, or current or former household members.3.
North Carolina General Statute 50B was passed by the North Carolina General Assembly in 1979 and later amended on several occasions. It states that an aggrieved party with whom they have a personal relationship may sue for a [DVPO] in order to prevent further acts of domestic violence. The question for the [c]ourt is how a personal relationship is defined.North Carolina General Statute 50B-1 states: “for purposes of this section, the term ‘personal relationship’ means wherein the parties involved: (1) are current or former spouses; (2) are persons of opposite sex who live together or have lived together; (3) are related as parents and children, including others acting in loco parentis to a minor child, or as grandparents and grandchildren. For purposes of this subdivision, an aggrieved party may not obtain an order of protection against a child or grandchild under the age of 16; (4) have a child in common; (5) are current or former household members; (6) are persons of the opposite sex who are in a dating relationship or have been in a dating relationship.” . . . .4. This definition prohibits victims of domestic violence in same sex dating relationships that are not spouses, ex-
spouses, or current of former household members from seeking relief against a batterer under
Chapter 50B .5. The [c]ourt must consider whether it has jurisdiction to create a cause of action that does not exist and to enter an order under this statute when the statute specifically excludes it. The difficult answer to this question is no, it does not. The General Assembly has the sole authority to pass legislation that allows for the existence of any domestic violence protective order. The legislature has not extended this cause of action to several other important family relationships including siblings, aunts, uncles, “step” relatives, or in-laws.
6. In this context, the [c]ourts only have subject matter jurisdiction and the authority to act and enjoin a defendant when the legislature allows it. On numerous occasions the Court of Appeals has stricken orders entered by the District Court that do no[t] include proper findings of fact or conclusions of law that are necessary to meet the statute. [ ] Defendant must be on
notice that a cause of action exists under this section when the act of domestic violence is committed. The [c]ourt cannot enter a [DVPO] against a [d]efendant when there is no statutory basis to do so. In the case before the [c]ourt, the [d]efendant had no such notice. IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED as follows:
1. The [p]laintiff has failed to prove grounds for issuance of a [DVPO] as [p]laintiff does not have a required “personal relationship” with the [d]efendant as required by
North Carolina General Statute [Chapter] 50B .
¶ 15 The trial court did, however, grant plaintiff‘s Chapter 50C motion for a No-Contact Order for Stalking or Nonconsensual Sexual Conduct, ordering defendant not to “visit, assault, molest, or otherwise interfere with the plaintiff” for one year from the date issued, 7 June 2018.
¶ 16 On 29 June 2018, plaintiff appealed the trial court‘s denial of her DVPO motion to the North Carolina Court of Appeals. In response, defendant sent a letter to plaintiff‘s counsel and the trial court that: denied that she and plaintiff were in a dating relationship; requested that the Court of Appeals not hear the case; asserted that “the LGBT community is asking for special treatment[ ] in this proceeding” and that “[t]hey should not be given equal access to protection under law as heterosexual relationships[;]” and emphasized that she did not want to be involved in the appeal.
B. Court of Appeals
¶ 17 Before the Court of Appeals, plaintiff argued “that the trial court‘s denial of her request for a DVPO violated [her] constitutional rights protected by the Due Process and Equal Protection Clauses of the Fourteenth Amendment [of the United States Constitution], as well as the associated provisions of the North Carolina Constitution.” M.E., 275 N.C. App. at 538.
¶ 18 The Court of Appeals also allowed several parties to file amicus curiae briefs in favor of the plaintiff. These amici included the Attorney General of North Carolina, who submitted a brief on behalf of the State seeking “to vindicate the State‘s powerful interests in safeguarding all members of the public from domestic violence.” Id.
¶ 19 Defendant did not file an appellate brief, and no amici sought to file briefs contesting plaintiff‘s arguments on appeal.
There were also no motions filed by any entity of the State to submit an amicus brief, or otherwise intervene in th[e] action, for the purpose of arguing in favor of the constitutionality of the Act. Therefore, [the Court of Appeals], on its own motion and by order entered 3 May 2019, appointed an amicus curiae (“Amicus“), to brief an argument in response to [p]laintiff‘s arguments on appeal.
¶ 20 On 31 December 2020, the Court of Appeals filed an opinion in which it agreed with plaintiff‘s claims under both the North Carolina and United States constitutions. Accordingly, the Court of Appeals reversed the trial court‘s denial of Plaintiff‘s complaint for a Chapter 50B DVPO and remanded for entry of an appropriate order. Id. at 590. Further, the court explicitly stated that its holding applied with equal force “to all those similarly situated with Plaintiff who are seeking a DVPO pursuant to
¶ 21 Judge Tyson dissented. Id. Specifically, the dissent would have held that plaintiff‘s appeal was not properly before the court because of five purported jurisdictional and procedural defects: (1) plaintiff‘s filing of a voluntary dismissal of her 50B complaint; (2) plaintiff‘s failure to subsequently file a post-dismissal Rule 60 motion; (3) plaintiff‘s failure to argue and preserve any constitutional issue for appellate review; (4) plaintiff‘s failure to join necessary parties; and (5) plaintiff‘s failure to comply with Rule 3 to invoke appellate review. Id. (Tyson, J., dissenting). Additionally, the dissent asserted that the majority‘s dismissal of the arguments of the appointed amicus curiae regarding the trial court‘s jurisdiction was erroneous.
¶ 23 Second, and as an alternative to filing a new complaint, the dissent asserted that plaintiff should have filed a Rule 60(b) motion to seek to revive the dismissed complaint. Id. (Tyson, J., dissenting). Without a refiling or a 60(b) motion, the dissent contended, plaintiff‘s complaint was extinguished by her voluntary dismissal. Id. at 593 (Tyson, J., dissenting).
¶ 24 Third, the dissent asserted that plaintiff did not properly preserve her constitutional argument for appellate review. Id. at 593–94 (Tyson, J., dissenting). The dissent would have instead held that plaintiff counsel‘s reference to Obergefell did not adequately raise a constitutional question, and, in any event, the trial court did not rule on the act‘s constitutionality, so that plaintiff may not now argue on appeal that the Act is unconstitutional. Id. at 594 (Tyson, J., dissenting).
¶ 25 Fourth, the dissent would have held that, because this is a civil action challenging the validity of a North Carolina statute, the Speaker of the House of Representatives and the President Pro Tempore of the Senate must be joined as defendants under Rule 19(d) of the North Carolina Rules of Civil Procedure. Id. at 595 (Tyson, J., dissenting). Separate from and in addition to the trial court‘s lack of subject matter jurisdiction, then, the dissent asserted that no further action or review is proper until this statutory defect is cured. Id. (Tyson, J., dissenting).
¶ 26 Fifth, the dissent noted that plaintiff‘s trial counsel‘s hard copy of the notice of appeal was filed with the clerk of superior court and bore no manuscript signature. Id. at 596 (Tyson, J., dissenting). Accordingly, the dissent asserted, the notice of appeal is defective under N.C. R. App. P. 3(d), which requires that a notice of appeal be signed by the counsel of record. Id. (Tyson, J., dissenting).
¶ 27 Finally, the dissent took issue with the majority‘s failure to review and dismissal of the arguments regarding subject matter jurisdiction raised by the appointed amicus curiae. Id. at 597 (Tyson, J., dissenting). The dissent asserted that amicus’ supplemental filing and motion to dismiss for lack of jurisdiction were vital and should have been included in the record on appeal. Id. at 597–99 (Tyson, J., dissenting).
¶ 28 In sum, the dissent would have held that no appeal was actually pending before the court due to the trial court‘s lack of jurisdiction, among other procedural defects. Id. at 599–600 (Tyson, J., dissenting).
C. Present Appeal
¶ 29 On 11 January 2021, defendant, now represented by the former court-appointed amicus counsel, filed a notice of appeal in this Court based on the Court of Appeals dissent.
¶ 30 First, defendant asserts that the trial court and the Court of Appeals lacked proper jurisdiction due to plaintiff‘s voluntary dismissal of the Chapter 50B complaint and plaintiff‘s failure to include the dismissal in the record on appeal, on the basis that plaintiff‘s Chapter 50B DVPO complaint was completely extinguished upon the filing of the notice of voluntary dismissal at 3:12 p.m. on 31 May 2018. Accordingly, defendant asserts, because plaintiff never formally filed a new Chapter 50B complaint and no request for Rule 60(b) relief was sought or granted by the trial court, “the action was rendered moot and the [trial] court was divested of subject matter jurisdiction to proceed with the merits disposition.” Defendant further contends that because the trial court lacked subject matter jurisdiction on the Chapter 50B action, its subsequent order on the action was void ab initio.
¶ 31 Correspondingly, defendant asserts that when plaintiff did not include the notice
¶ 32 Second, defendant asserts that plaintiff failed to specifically preserve the constitutional issue for review by the Court of Appeals pursuant to Rule 10(a) of the North Carolina Rules of Appellate Procedure, or to obtain a ruling from the trial court on the issue upon the party‘s request, objection, or motion.” Here, defendant contends, plaintiff‘s “vague constitutional reference” did not properly specify the grounds of her objection, and the trial court “confined its ruling to non[-]constitutional grounds.” Accordingly, defendant asserts, the Court of Appeals erred in considering plaintiff‘s constitutional argument.
¶ 33 Third, defendant contends that the Court of Appeals ruling must be vacated and remanded for the mandatory joinder of the North Carolina General Assembly under Rule 19(d) of the North Carolina Rules of Civil Procedure. Defendant notes that Rule 19(d) requires that
[t]he Speaker of the House of Representatives and the President Pro Tempore of the Senate, as agents of the State through the General Assembly, must be joined as defendants in any civil action challenging the validity of a North Carolina Statute or provision of the North Carolina Constitution under State or federal law.
Echoing the reasoning first raised in the Court of Appeals dissent, defendant contends that “[b]ecause plaintiff has challenged the constitutionality of
¶ 34 In response, plaintiff first argues that the trial court had proper jurisdiction to hear her DVPO complaint and motions where, at the suggestion of court staff, she quickly withdrew a notice of voluntary dismissal filed mistakenly or inadvertently because she wished to continue prosecuting her case. Plaintiff claims that defendant waived her objection regarding the notice of voluntary dismissal when she failed to raise it in the trial court or the Court of Appeals. In any event, plaintiff contends, the trial court had authority and discretion to construe plaintiff‘s filings in her favor and permit amendment as needed to promote justice where plaintiff was proceeding pro se in a domestic violence action. To prevent injustice and inefficiency, plaintiff asserts, “trial courts have discretion to take steps to protect litigants poised to
relinquish their cases, particularly where those litigants are vulnerable.
¶ 35 Further, plaintiff asserts, the trial court had inherent authority to grant plaintiff relief under
¶ 36 Second, plaintiff addresses defendant‘s preservation argument. As an initial matter, plaintiff again argues that by failing to raise objections to constitutional preservation below, defendant waived those objections. Indeed, plaintiff notes, in Defendant‘s lone submission during the appellate process (the letter to the trial court after its ruling), defendant herself briefly engaged in the constitutional merits without objecting to preservation. But even if defendant has not waived her preservation challenge, plaintiff argues, the constitutional issue was properly preserved.
¶ 37 Third and finally, plaintiff addresses defendant‘s joinder challenge, arguing first that Defendant waived her joinder defense where she failed to raise it in either the trial court or the Court of Appeals. Even if defendant has not waived her objection to joinder, though, plaintiff argues that joining legislative leaders is not required here because actions under
¶ 38 Finally, this Court allowed several amici to file briefs, including: (1) North Carolina Solicitor General Ryan Park, on behalf of the State; (2) the North Carolina Coalition Against Domestic Violence; (3) Legal Aid of North Carolina, the North Carolina Justice Center, and the Pauli Murray LGBTQ+ Bar Association; and (4) ten former North Carolina District Court judges. All amicus briefs filed supported the ruling of the Court of Appeals and plaintiff‘s positions on appeal.
II. Analysis
¶ 39 We now consider each of defendant‘s claims before this Court. As conclusions of law, each of the issues raised by defendant “are reviewed de novo and are subject to full review.” State v. Biber, 365 N.C. 162, 168 (2011).
¶ 40 First, we conclude that the trial court acted within its broad discretion in exercising jurisdiction over plaintiff‘s
A. Jurisdiction
¶ 41 First, defendant asserts that the trial court and the Court of Appeals lacked jurisdiction due to plaintiff‘s voluntary dismissal of the
¶ 42 Generally, trial court judges enjoy broad discretion in the efficient administration of justice and in the application of procedural rules toward that goal. See Miller v. Greenwood, 218 N.C. 146, 150 (1940) (“It is within [a judge‘s] discretion to take any action [toward ensuring a fair and impartial trial] within the law and so long as he [or she] does not impinge upon [statutory] restrictions.“) Indeed,
[i]t is impractical and would be almost impossible to have legislation or rules governing all questions that may arise on the trial of a case. Unexpected developments, especially in the field of procedure, frequently occur. When there is no statutory provision or well recognized rule applicable, the presiding judge is empowered to exercise his [or her] discretion in the interest of efficiency, practicality, and justice.
Shute v. Fisher, 270 N.C. 247, 253 (1967).
¶
A suit at law is not a children‘s game, but a serious effort on the part of adult human beings to administer justice; and the purpose of process is to bring parties into court. If [procedural filings use] such terms that every intelligent person understands [what] is meant, it has fulfilled its purpose; and courts should not put themselves in the position of failing to recognize what is apparent to everyone else.
Harris v. Maready, 311 N.C. 536, 544 (1984) (cleaned up).
¶ 44 These general principles are particularly important within the context of DVPOs. In fact, the remedies of
The clerk of superior court of each county shall provide to pro se complainants all forms that are necessary or appropriate to enable them to proceed pro se pursuant to this section. The clerk shall, whenever feasible, provide a private area for complainants to fill out forms and make inquiries. The clerk shall provide a supply of pro se forms to authorized magistrates who shall make the forms available to complainants seeking relief under . . . this section.
¶ 45 This statutory emphasis recognizes and accounts for the factual reality of domestic violence adjudication: survivors of domestic violence who turn to courts for protection typically do so shortly after enduring physical or psychological trauma, and without the assistance of legal counsel. Calaf, 21 Law & Ineq. at 170; Kim & Starsoneck at 57. As such, “[t]he procedures under
¶ 46
¶ 47 Here, the trial court acted well within its broad discretion, and with the benefit of the full record before it, when exercised jurisdiction over plaintiff‘s
¶ 48 Plaintiff here is exactly the type of complainant that the pro se provisions of
B. Preservation
¶ 49 Second, defendant asserts that plaintiff failed to preserve the constitutional issue for appeal. Again, we disagree.
¶ 50
[i]n order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context. It is also necessary for the complaining party to obtain a ruling upon the party‘s request, objection, or motion. Any such issue that was properly preserved for review by action of counsel taken during the course of proceedings in the trial tribunal by objection noted . . . may be made the basis of an issue presented on appeal.
Put differently,
¶ 51 Notably,
¶ 52 Regarding the second requirement of
¶ 53 Here, plaintiff properly raised and received a ruling on her claim that it would be unconstitutional to deny relief under
¶ 54 Next, when asked by the trial court if any other jurisdictions have struck down similar DVPO restrictions, plaintiff‘s counsel noted a recent case in which the South Carolina Supreme Court, citing Obergefell, ruled that the sections of their state‘s DVPO statute that excluded people in same-sex relationships from protection were unconstitutional under the Due Process and Equal Protection Clauses of the
[p]laintiff, through her counsel, argued that she should be allowed to proceed on her request for a [DVPO] because the current [N.C.G.S. §] 50B-1(b) is unconstitutional after the United States Supreme Court decision in Obergefell v. Hodges and that there is no rational basis for denying protection to victims in same-sex dating relationships . . . .
Accordingly, plaintiff clearly raised her constitutional argument at trial, thus satisfying the first requirement for issue preservation under
¶ 56 Second, the record makes clear that the trial court sufficiently ruled on the constitutional issue, thus satisfying the second requirement for issue preservation under
¶ 57 First, the trial court ruled upon plaintiff‘s constitutional argument during the hearing. In response to plaintiff‘s counsel‘s request “that Your Honor consider allowing [plaintiff] to proceed with her [DVPO] case” in light of the constitutional argument, the trial court stated: “Without a more expansive argument on constitutionality, I won‘t do it. I think there is room for that argument. I think that with some more presentation that maybe we could get there, but I don‘t think on the simple motion I‘m ready to do that.” Plainly, this exchange constitutes the trial court making a determination, or “passing upon,” plaintiff‘s argument.
¶ 58 Second, the trial court ruled upon plaintiff‘s constitutional argument within its subsequent form order denying plaintiff‘s DVPO motion. Specifically, after noting that “had the parties been of opposite genders, th[e]se facts would have supported the entry of a [DVPO,]” the trial court observed that the General Assembly‘s 2017 amendment to
¶ 59 Third, the trial court ruled upon plaintiff‘s constitutional argument within its subsequent written order. Specifically, after summarizing plaintiff‘s constitutional argument and noting
5. The [c]ourt must consider whether it has jurisdiction to create a cause of action that does not exist and to enter an order under this statute when the statute specifically excludes it. The difficult answer to this question is no, it does not. The General Assembly has the sole authority to pass legislation that allows for the existence of any [DVPO]. The legislature has not extended this cause of action to several other important family relationships including siblings, aunts, uncles, “step” relatives, or in-laws.
6. In this context, the [c]ourts only have subject matter jurisdiction and the authority to act and enjoin a defendant when the legislature allows it. . . .
As above, this statement indicates the trial court‘s rejection of plaintiff‘s constitutional argument on the grounds of legislative intent.
¶ 60 Finally, it is also worth noting that in her only submission in this case from the trial court‘s initial ruling to her notice of appeal to this Court, defendant directly engaged in the constitutional issue raised by plaintiff at trial. Specifically, defendant asserted “that the LGBT community is asking for special treatment[ ] in this proceeding . . . [and] should not be given equal access to protection under law as heterosexual relationships.” This direct engagement by defendant in the constitutional issue further indicates that the issue was properly preserved for appellate review.
C. Joinder
¶ 62 Third, defendant contends that the Court of Appeals ruling must be vacated and remanded for the mandatory joinder of the North Carolina General Assembly under
¶ 63 “This Court has long held that issues and theories of a case not raised below will not be considered on appeal . . . .” Westminster Homes, Inc. v. Town of Cary Zoning Bd. of Adjustment, 354 N.C. 298, 309 (2001); see, e.g., Smith v. Bonney, 215 N.C. 183, 184–85 (1939) (noting that “[t]o sustain the assignments of error would be to allow the appellant to try the case in the Superior Court upon one theory and to have the Supreme Court to hear it upon a different theory.“). Indeed, when “[a]n examination of the record discloses that the cause was not tried upon that theory [below], . . . the law does not permit parties to swap horses between courts in order to get a better mount in the Supreme Court.” Weil v. Herring, 207 N.C. 6, 10 (1934).
¶ 64
¶ 65 Here, defendant did not raise the issue of necessary joinder of the legislature under
¶ 66 In any event, even assuming arguendo that mandatory joinder under
¶ 67 Accordingly, even if defendant‘s
III. Court of Appeals’ Constitutional Ruling Undisturbed
¶ 68 Finally, we note that defendant has not challenged the Court of Appeals’ substantive ruling on the merits of the constitutional issue. Accordingly, we do not address the Court of Appeals’ ruling that
IV. Conclusion
¶ 69 As explained above, we hold that the trial court acted within its broad discretion in exercising its jurisdiction over plaintiff‘s
MODIFIED AND AFFIRMED.
Justice BERGER dissenting.
¶ 70 The Rules of Civil Procedure “govern the procedure in the superior and district courts of the State of North Carolina in all actions and proceedings of a civil nature except when a differing procedure is prescribed by statute.”
¶ 71 A complaint seeking entry of a domestic violence protective order pursuant to
¶ 72 “It is well settled that a Rule 41(a) dismissal strips the trial court of authority to enter further orders in the case, except as
¶ 73 “An application to the court for an order shall be by motion which, unless made during a hearing or trial or at a session at which a cause is on the calendar for that session, shall be made in writing, shall state with particularity the ground therefor, and shall set forth the relief or order sought.”
¶ 74 On May 31, 2018, plaintiff commenced her
¶ 75 At the June 7, 2018, hearing, plaintiff was represented by two attorneys. Defendant did not file an answer to either complaint, appeared pro se, and did not raise any objections during the hearing. In fact, according to the transcript, defendant spoke just once during the hearing in which she acknowledged to the trial court her understanding of the
¶ 76 The majority does not take issue with the trial court‘s lack of jurisdiction. Rather, the majority relies on the notion that trial courts have broad discretion to take any action within the law to ensure a fair and impartial trial “so long as he [or she] does not impinge upon [statutory] restrictions.” The majority further states that “[w]hen there is no statutory provision or well recognized rule applicable, the presiding judge is empowered to exercise his [or her] discretion in the interest of efficiency, practicality, and justice.” One glaring gap in this logic, however, is that there is a statutory provision and well recognized rule such that a trial court‘s exercise of jurisdiction after a complaint has been voluntarily dismissed does impinge upon such statutory restrictions. See
¶ 77 According to the majority, plaintiff‘s voluntary dismissal “served as [a] functional
¶ 78 It is interesting that in one breath the majority claims there is “no doubt as to plaintiff‘s intentions” and in another, the majority concedes that it “cannot know precisely from the record whether the trial court considered [the amendment to the voluntary dismissal as a
¶ 79
¶ 80 In reaching their decision, the majority ignores that the Rules of Civil Procedure apply to
¶ 81 The majority proclaims that “[p]laintiff here is exactly the type of complainant that the pro se provisions of
¶ 82 Importantly, defendant never received notice that plaintiff had filed a voluntary dismissal in the
¶ 83 The law going forward appears to be that, even if the Rules of Civil Procedure yield a particular result, trial courts are free reach a contrary outcome so long as an “intelligent person understands [what] is meant[.]” But see Goins v. Puleo, 350 N.C. 277, 281, 512 S.E.2d 748, 751 (1999) (stating that “the Rules of Civil Procedure promote the orderly and uniform administration of justice, and all litigants are entitled to rely on them“); Pruitt v. Wood, 199 N.C. 788, 790, 156 S.E. 126, 127 (1930) (“When litigants resort to the judiciary for the settlement of their disputes, they are invoking a public agency, and they should not forget that rules of procedure are necessary and must be observed[.]“).
¶ 84 The Rules of Civil Procedure either apply or they don‘t. The rules provide certainty for all parties involved in civil litigation. By failing to adhere to these basic rules, the majority makes our system of justice less predictable and causes our law to become more unsettled. The majority‘s new “mistaken or inadvertent dismissal” rule is antithetical to our adversarial system and will disrupt the orderly flow of cases through our trial courts under the guise of “facilitat[ing] access to justice[.]” This is not a case in which the record shows that the parties and trial court knew that relief under
Chief Justice NEWBY and Justice BARRINGER join in this dissenting opinion.