IN THE COURT OF APPEALS OF NORTH CAROLINA

2021-NCCOA-402

No. COA20-32

Filed 3 August 2021

Rowan County, No. 18-CVS-699

GERALD STEVEN SPRINKE, JR., Plaintiff,

v.

MATTHEW JOHNSON, Defendant.

Appeal by defendant from order and judgment entered 17 June 2019 and 1 

July 2019 by Judge Anna Mills Wagoner in Rowan County Superior Court. Heard in 

the Court of Appeals 11 May 2021.

Lisa Costner for plaintiff-appellee.

Collins Family Law Group, by Rebecca K. Watts, for defendant-appellant.

GORE, Judge.

¶ 1 Gerald Steven Sprinkle, Jr., (“plaintiff”) filed suit against Dr. Matthew 

Johnson (“defendant”) for alienation of affection and criminal conversation, alleging 

that defendant engaged in a romantic relationship and sexual acts with his wife Jana 

Sprinkle (“Mrs. Sprinkle”). Following a jury trial, at which defendant was neither 

present nor represented by counsel, judgment was entered awarding plaintiff a total 

of $2,294,000.00 in compensatory and punitive damages from defendant. Upon 
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review, we conclude that defendant did not have notice of trial and vacate and remand 

the judgment against him.

I. Factual and Procedural Background

¶ 2 Mrs. Sprinkle worked at defendant’s oral surgery practice in Mooresville, 

North Carolina, for seventeen years as a surgical assistant. Over a period of four 

years during her employment, defendant and Mrs. Sprinkle engaged in a romantic 

and sexual relationship.

¶ 3 In 2014, defendant initiated sexually explicit conversation with Mrs. Sprinkle

and touched her bottom at work. As the affair progressed, defendant provided Mrs. 

Sprinkle with Adderall, a cell phone for communicating with him, and the two met at 

hotel rooms and his house on Lake Norman to have sexual intercourse. The affair 

came to a halt when another employee discovered a photograph on defendant’s phone 

of Mrs. Sprinkle participating in a sexual act with him. That photograph was

eventually seen by Mrs. Sprinkle’s cousin. Mrs. Sprinkle then told her husband, 

plaintiff, about the affair. While plaintiff and Mrs. Sprinkle decided to reconcile, the 

affair resulted in Mrs. Sprinkle’s loss of employment, and plaintiff sought mental 

health treatment and incurred related expenses.

¶ 4 On 23 March 2018, plaintiff filed suit against defendant for alienation of 

affection and criminal conversation. Plaintiff properly served defendant with the 

complaint at his business address on Medical Park Road in Mooresville. Plaintiff
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alleged that defendant and Mrs. Sprinkle engaged in sexual intercourse on multiple 

occasions in North Carolina during the marriage, and defendant’s actions interfered 

with a genuine love and affection that existed in the marital relationship between 

them.

¶ 5 Upon receiving service of the complaint on 3 May 2018, defendant hired an 

attorney and was granted a thirty-day extension to file an answer. Defendant filed 

an answer on 5 July 2018 and also filed motions to dismiss and bifurcate. Those 

filings were later amended and refiled on 24 July 2018.

¶ 6 The parties and their respective counsel participated in court-ordered 

mediation on 11 January 2019. The filed Report of Mediator in Superior Court Civil 

Action represented that the parties settled the dispute and arrived to an “agreement 

on all issues.” The report stipulated that plaintiff’s attorney would file a notice of 

dismissal no later than 30 June 2019. The mediator notified the trial court that the 

matter had been settled in mediation, but it could not be dismissed before the end of 

June as to allow defendant requisite time to pay the agreed upon amount. The 

mediator’s report did not specify the agreement’s substantive terms. The only 

indication of the agreement reached in mediation is evidenced in a nearly illegible 

handwritten note authored by plaintiff’s attorney. The note’s only decipherable 

writing is its apparent title of “Agreement 1/11/19.” There is no further indication as 

to what the parties agreed to, nor the extent to which those terms were mutually 
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abided by. 

¶ 7 Defendant’s counsel moved to withdraw from representation in the matter on 

22 March 2019, citing defendant’s lack of communication, contempt towards his legal 

advice, and failure to procure payment for legal fees. The motion to withdraw as 

counsel was granted by a court order on 15 April 2019. In a certificate of service 

attached to that motion, counsel certified that he had served defendant with both the 

motion and the notice of hearing regarding the same by mail sent to an address on 

Beaten Path Road in Mooresville. Defendant’s attorney believed this to be the correct 

mailing address.

¶ 8 On 17 June 2019, the trial court entered a Pre-Trial Order without holding a 

pre-trial conference. The Pre-Trial Order contained stipulations and agreements but

was not signed by defendant or an attorney representing him. The Order was signed 

by only plaintiff’s attorney and the trial court. The Order states that plaintiff’s

attorney, after due diligence, was unable to arrange a time with defendant for a pretrial conference.

¶ 9 The trial was conducted from 24 June to 25 June 2019 before a jury in Rowan 

County Superior Court. Defendant was neither present at trial nor represented by 

counsel. On 25 June 2019, the jury rendered a verdict for plaintiff in the amount of 

$794,000.00 in compensatory damages and $1,500,000.00 in punitive damages, for a 

total award of $2,294,000.00. The trial court entered judgment reflecting the jury 
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verdict on 1 July 2019.

¶ 10 Later, defendant was contacted by a reporter who inquired about the verdict 

against him. Defendant claims that, until that moment, he was unaware the trial 

had been held or that a judgment had been entered. He then hired new counsel who 

obtained the court file, where he first learned that his previous attorney had 

withdrawn. Defendant claims he also learned of the Pre-Trial Order, the trial date, 

and the $2,294,000.00 judgment from the court file.

¶ 11 On 11 July 2019, Defendant’s attorney filed a motion pursuant to Rules 59 and 

60 of the North Carolina Rules of Civil Procedure (hereinafter, “Rule 59/60 motion”), 

requesting a new trial. In the alternative, Defendant requested relief from the PreTrial Order, the judgment entered, or a new pre-trial conference. Plaintiff filed a 

response to that motion, and a motion for sanctions pursuant to Rule 11 of the North 

Carolina Rules of Civil Procedure.

¶ 12 In an affidavit, defendant stated that although he formerly resided at the 

Beaten Path Road address, he moved from that property around or before November

2018. He further stated that in December 2018 and January 2019, he informed his 

attorney that he had moved and was living in temporary housing. Additionally, he 

claims he never received mail at the Beaten Path Road address, but instead has used 

his Medical Park Road business address for receiving mail, and the property tax card 

for the Beaten Path Road address lists his business address as the appropriate 
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mailing address. Defendant also stated that his former attorney always 

communicated with him by phone or text message, and he never received notice of 

his counsel’s motion to withdraw, the Pre-Trial Order, or notice of trial by those 

means. Additionally, defendant’s ex-wife, Ms. Regina Johnson, corroborated by 

affidavit defendant’s timeline regarding his place of residence.

¶ 13 On 31 July 2019, Defendant withdrew his Rule 59/60 motion. In response, 

plaintiff dismissed his Rule 11 motion, which indicated mail service on defendant at 

three addresses: (1) Beaten Path Road; (2) Fern Hill Road; and (3) the Medical Park 

Road business address. On the same day, defendant’s counsel filed a Motion to 

Withdraw, which was granted. Defendant filed a pro se Notice of Appeal and listed

his address as the Medical Park Road business address.

II. Discussion

¶ 14 On appeal, defendant argues that the trial court abused its discretion in 

entering a Pre-Trial Order without holding a pre-trial conference. Specifically, he 

contends that the trial court exceeded its authority by entering stipulations and 

agreements of the parties when both parties did not actually stipulate or agree, and 

that Order effectively dispensed with our Rules of Evidence. Additionally, he argues 

that he was deprived his right to due process when he was not provided with notice 

of the date, time, or place of the trial.
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¶ 15 As a preliminary matter, defendant failed to preserve his issues on appeal, and 

any issue presented regarding lack of notice for trial, or the Pre-Trial Order, are not 

properly before this Court. Rule 10 of the North Carolina Rules of Appellate 

Procedure provides in pertinent part:

In 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.

N.C.R. App. P. 10(a)(1). “[I]t is well-established that the North Carolina Rules of 

Appellate Procedure are mandatory and failure to follow these rules will subject an 

appeal to dismissal.” Stann v. Levine, 180 N.C. App. 1, 3, 636 S.E.2d 214, 215 (2006) 

(purgandum). Given that defendant was absent from trial and not represented by 

counsel, he did not have an opportunity to present a timely request or objection in 

open court. Furthermore, defendant voluntarily withdrew his Rule 59/60 motion and 

supporting affidavits, without a hearing on the merits, before the trial court could 

render a decision upon his motion. “It is well settled that an error, even one of 

constitutional magnitude, that defendant does not bring to the trial court’s attention 

is waived and will not be considered on appeal.” State v. Bursell, 372 N.C. 196, 199, 

827 S.E.2d 302, 305 (2019) (quotation marks and citation omitted).
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¶ 16 However, notice is a fundamental requirement of due process. In accordance 

with Rule 2 of the Appellate Rules of Procedure, this Court may “suspend or vary the 

requirements or provisions of any of these rules[,]” sua sponte or upon the motion of 

a party, “[t]o prevent manifest injustice to a party, or to expedite decision in the public 

interest” except where the rules otherwise expressly prohibit. N.C.R. App. P. 2. 

“[T]his residual power . . . may be drawn upon where the justice of doing so or the 

injustice of failing to do so appears manifest to the Court.” Blumenthal v. Lynch, 315 

N.C. 571, 578, 340 S.E.2d 358, 362 (1986) (citation omitted). “Rule 2 must be applied 

cautiously, and it may only be invoked in exceptional circumstances. A court should 

consider whether invoking Rule 2 is appropriate in light of the specific circumstances 

of individual cases and parties, such as whether substantial rights of an appellant 

are affected.” Bursell, 372 N.C. at 200, 827 S.E.2d at 305-06 (quotation marks and 

citations omitted).

¶ 17 “Notice and an opportunity to be heard prior to depriving a person of his 

property are essential elements of due process of law which is guaranteed by the 

Fourteenth Amendment of the United States Constitution and Article 1, section 17, 

of the North Carolina Constitution.” Swanson v. Herschel, 174 N.C. App. 803, 805, 

622 S.E.2d 159, 160-61 (2005) (quotation marks and citation omitted). “This right to 

be heard has little reality or worth unless one is informed that the matter is pending 
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and can choose for himself whether to appear or default, acquiesce or contest.” 

Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314, 94 L. Ed. 865, 873 (1950).

It is a principle, never to be lost sight of, that no person 

should be deprived of his property or rights, without notice 

and an opportunity of defending them. This right is 

guaranteed by the constitution. Hence it is, that no Court 

will give judgment against any person, unless such person 

have an opportunity of sh[o]wing cause against it. A 

judgment entered up otherwise would be a mere nullity. 

Den ex dem. Hamilton v. Adams, 6 N.C. 161, 162 (1812). Considering the 

circumstances of this case, and the manifest necessity of due process, this Court 

invokes Rule 2 as to permit appellate review. “Whether a party has adequate notice 

is a question of law, which we review de novo.” Id. at 805, 622 S.E.2d at 160 (citation 

omitted).

¶ 18 In Laroque v. Laroque, this Court examined notice requirements as governed 

by Rules of Civil Procedure and the General Rules of Practice. 46 N.C. App. 578, 580, 

265 S.E.2d 444, 445 (1980). This Court held that the defendant did not receive the 

requisite notice of trial when nothing on the record indicated that a trial calendar 

request or certificate of readiness was mailed to him. Id. at 581-82, 265 S.E.2d at

446-47. In reaching its decision, this Court reasoned that:

Rule 2 of the Rules of Practice, by requiring notice of the 

calendaring of a case, secures to a party the opportunity to 

prepare his case for trial and to be present for trial or to 

seek a continuance. Although the rule specifies that the 

calendar be sent to each attorney of record and that the 
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copy of the certificate or readiness be sent to opposing 

counsel, it is implicit in the rule that where a party is not 

represented by counsel he is entitled to the same notice. We 

note that it has long been the practice in this State that 

when a party to an action does not have counsel, a copy of 

each calendar on which his action appears calendared for 

trial is mailed to him at the last address available to the 

Clerk.

Id. at 581, 265 S.E.2d at 446 (1980) (citation omitted). “[R]ule [2] contemplates that 

systematic notice of the calendaring of a case be given to a party at each stage of the 

calendaring process.” Id. at 580, 265 S.E.2d at 446.

¶ 19 In Brown v. Ellis, this Court also addressed notice requirements in an action 

involving alienation of affection and criminal conversation claims. 206 N.C. App. 93, 

94, 696 S.E.2d 813, 816 (2010). In Brown, the “defendant’s attorney’s motion to 

withdraw, the order allowing the motion to withdraw, the order setting the trial date, 

and the trial calendar mailed from the trial court were all mailed to the incorrect 

address.” Id. at 102-03, 696 S.E.2d at 820. Further, the record was silent as to 

whether “defendant received any notices or documents regarding the case after the 

trial court denied his motion to dismiss[.]” Id. at 103, 696 S.E.2d at 820. The 

defendant neither appeared at trial, nor was he represented at trial, and judgment 

was entered against him in the amount of $600,000.00. Id. at 94, 696 S.E.2d at 815. 

¶ 20 This Court held that the defendant was entitled to a new trial because lack of 

adequate notice did not comport with the requirements of due process. Id. at 109, 
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696 S.E.2d at 824. This Court contrasted its decision in Laroque with that in 

Dalgewicz v. Dalgewicz, 167 N.C. App. 412, 606 S.E.2d 164 (2004), where the 

defendant received notice that his case was calendared for trial but failed to appear 

because he was “neglectful and inattentive to his case.” 167 N.C. App. 412, 418, 606 

S.E.2d 164, 168 (2004). In Brown, this Court concluded that:

neither the scheduling order nor the court calendar was 

mailed to the service address, through no fault of 

defendant. Defendant had no way of knowing and no 

reason to know that both his original counsel and the trial 

court were sending documents to him at an incorrect 

address until after he was notified of the trial three days 

before it was to begin and he was able to contact an 

attorney in North Carolina.

Brown, 206 N.C. App. at 108, 696 S.E.2d at 823.

¶ 21 In the case sub judice, counsel for defendant listed the address on Beaten Path 

Road in Mooresville as the address he served defendant with notice of the motion to 

withdraw and hearing on that motion. However, nothing in the record indicates that 

defendant received that notice. Plaintiff argues that it was reasonable to rely on the 

address listed on the pleadings filed by defendant’s attorneys, and that defendant 

was under a continuing duty to keep opposing counsel informed of his correct address. 

However, assuming arguendo, that service at the Beaten Path Road address was 

proper, the record simply does not reflect that defendant was served with the order 
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allowing defense counsel to withdraw, the Pre-Trial Order, calendar notice, or notice 

of trial at any address.

¶ 22 The facts before us do not indicate that defendant was negligent or inattentive 

to his case. This is a case where defendant never received proper notice of trial. This 

court concludes that a failure to provide proper notice violated defendant’s due 

process rights and entitles him to a new trial. Accordingly, we need not address his 

remaining arguments. 

VACATED AND REMANDED.

Judges ARROWOOD and COLLINS concur.