An unpublished opinion of the North Carolina Court of Appeals does not constitute 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 

A p p e l l a t e P r o c e d u r e .

NO. COA14-128

NORTH CAROLINA COURT OF APPEALS

Filed: 16 September 2014

TIMOTHY D. PRICE,

Plaintiff,

v. Cumberland County

No. 12 CVS 2720

PAUL LINDSEY JONES,

Defendant.

Appeals by Plaintiff and Defendant from Order entered 7 

November 2013 by Judge Mary Ann Tally in Cumberland County 

Superior Court. Heard in the Court of Appeals 4 June 2014.

Hedahl & Radtke, by Debra J. Radtke, for Plaintiff. 

McCoy Wiggins Cleveland and O’Connor, PLLC, by Richard M. 

Wiggins and Daniel S. Harrison, for Defendant. 

STEPHENS, Judge.

Procedural History and Factual Background

This case arises from claims brought by Plaintiff Timothy 

D. Price against Defendant Paul Lindsey Jones for criminal 

conversation, alienation of affection, and breach of fiduciary 

relationship. Defendant denied the material allegations of
-2-

Plaintiff’s complaint and moved for summary judgment on 22 

October 2013, following discovery. The matter was heard on 4 

November 2013. The parties’ forecast of evidence indicates the 

following pertinent facts: 

Plaintiff married Karen Price on 26 June 1994 in North 

Carolina. They had two children during the marriage. They 

separated on 27 March 2009 and were divorced on 27 April 2010. 

Plaintiff and Karen became acquainted with Defendant and his 

former wife, Carol Jones, in the late 1990s through Defendant’s 

employment as a mortgage loan officer with Branch Banking & 

Trust (“BB&T”). Defendant helped Plaintiff and Karen refinance a 

number of loans.

In or around 2004, Defendant and Karen began an 

extramarital affair. Around the same time, Plaintiff, Karen, 

Defendant, and Carol began spending time together as friends. 

They socialized with one another, visited each other’s homes,

went on vacations together, and spent time with each other’s 

children. 

On 1 January 2009, following a New Year’s Eve party at the 

Jones family residence, Carol began to suspect that her husband 

was having an affair with Karen. Around 1:00 or 2:00 a.m., after 

Plaintiff and Karen had left the home, Defendant’s daughter 
-3-

informed Carol that she had overheard her father on the phone,

“and she heard . . . him say Karen’s name, and he said ‘I want 

to lick the pink thong off of your ass.’” A few days later, 

Carol checked the family’s phone records and discovered that 

Defendant “had called Karen’s number frequently during the day, 

every day, and sometimes [he] would talk for up to an hour or 

more.” This usually occurred after Carol went to bed or early in 

the morning, “like when he was supposed to be on his way to 

work.” 

At that point, Carol contacted Plaintiff and informed him 

about the New Year’s Eve incident and her husband’s phone 

records. According to Plaintiff, Carol did not elaborate on the 

specifics of the texts, “other than [noting] the fact that they 

had [been] text[ing] each other.” Plaintiff did not believe 

Carol and responded that he did not think “[Karen] would do that 

to me,” commenting that his wife thought of Defendant “like a 

brother.” Carol then informed Plaintiff that the couples would 

no longer be socializing with one another, and Plaintiff said he 

was “sorry [she felt] that way.” 

Carol continued to talk to Plaintiff through March of 2009. 

Based on Plaintiff’s deposition testimony, she did not give him 

any other specific information until the middle of March. 
-4-

Instead, Carol only mentioned that the relationship “seemed 

suspicious.” Carol’s deposition indicates, to the contrary, that 

she called Plaintiff on at least one other occasion, in 

February, after discovering another phone in her home. The phone 

was “not [Defendant’s] regular cell phone.” It was registered 

under a separate account, and all the calls and text messages 

were connected to “just one phone number.” The text messages 

said “I love you, marry you” and referenced Plaintiff and his 

children, indicating to Carol that the communications came from 

Karen. When Carol told Defendant “about the second phone and the 

texts that I read, and that I knew they were having an affair, 

. . . he cried on the phone.”1

At the same time, Plaintiff and Karen continued to 

socialize with Defendant. Plaintiff mentioned Carol’s concerns 

to them, and “they would just kind of make light of it” and 

imply that Carol “didn’t want the four of us to hang out 

anymore.” During Defendant’s deposition, his attorney asked 

whether Karen denied that they were having an affair, and 

Defendant commented that “[s]he made it — she made it sound 

absurd.” Plaintiff commented that, while “Carol . . . felt 

 

1 In his brief, Plaintiff suggests that this may not have 

happened, noting that Plaintiff’s deposition “does not reflect 

[that].”
-5-

strongly that something was going on[,] . . . I didn’t, I didn’t 

feel that. I just felt like that we were all three having a good 

time, and [Carol was] the, the worm in the apple . . . .”

On 6 March 2009, Karen told Plaintiff that she had talked 

with an attorney and wanted to separate. Shortly thereafter 

Plaintiff and Karen began living in different sections of the 

house. Plaintiff nonetheless held out hope that the relationship 

could be mended, noting that Karen “thought that maybe we could 

work things out.” Plaintiff also stated that he and Karen were 

attending counseling sessions at that time, albeit with separate 

counselors. 

Plaintiff and his father went to see an attorney on 9 March 

2009.

2 They talked about Karen, and the attorney told Plaintiff 

that “there was a snake in the grass,” recommending that 

Plaintiff “find out what’s going on in [his] house.” Plaintiff 

did not believe his attorney and said that he thought Karen was 

“just unhappy,” again stating that “she wouldn’t do that to me.”

On 18 March 2009, a Wednesday, Plaintiff’s father hired a 

private investigator based in Fayetteville, North Carolina to 

confirm the father’s “assumption” that Karen was cheating. 

 

2 Different counsel represents Plaintiff on appeal. 
-6-

During his deposition, the investigator testified as follows 

regarding the father’s reason for hiring him:

Q And the — and what [the father] hired 

you was to try to either prove or disprove 

what he believed was happening, wasn’t he?

A Don wanted to put closure on it. Ruin 

or no ruin, he wanted to make — he wanted to 

step up to the table and put a closure; it 

was half that he wanted to put a cease and 

that was it. 

Q He wanted to know what was going on.

A That’s correct.

Q And if it was true, he wanted to know 

it; if it was not true, he wanted to know 

it. 

A That’s correct. 

Initially, the investigator worked with Plaintiff’s father. 

According to the investigator, Plaintiff appeared to be “in 

denial more than anything. He didn’t want to — I don’t know if 

[he] wanted to know it.” The father “was pretty adamant about 

. . . keeping [Plaintiff] aware of what was going on[, however,] 

because [Plaintiff], as far as emotion-wise[,] couldn’t take a 

lot of things . . . [and the father] was pretty adamant about 

[the fact that] he didn’t like what was going on . . . .” 

Around the same time, Carol contacted Plaintiff to let him 

know that Defendant was planning to take a weekend golf trip to 
-7-

the beach. When Carol asked about Karen’s plans for the weekend,

Plaintiff responded that Karen was going to the beach with some 

of her girlfriends. Carol expressed her belief that Karen and 

Defendant were actually planning to meet one another at the 

beach, commenting that Karen did not have any girlfriends. 

Plaintiff was not convinced, but directed the investigator to

follow Karen to the beach. Explaining his rationale for this 

decision, Plaintiff testified that:

[W]ith the correspondence that, that took 

place between [Defendant’s] wife Carol 

telling me . . . [that Defendant] was going 

down and [Karen] was going down, and all the 

things that were taking place, I decided 

that that would be an opportunity, that if 

they were going to meet or if they were 

going to be together, then that would be an 

opportunity for them to be seen together. 

And my whole, my whole thing was, is I don’t 

believe that they are doing anything. I’m 

spending this money, but I honestly don’t 

think that they’re going to find out 

anything. 

Despite this thought process, Plaintiff also admitted, during a 

17 March 2009 meeting with the investigator, to “allud[ing]” to 

the fact that “his wife of several years . . . had been having 

an affair with their banker at BB&T by the name of Paul Jones.”

Karen left for the beach around 11:00 a.m. on Friday, 20 

March 2009, and the investigator followed her. Carol had 
-8-

informed the investigator that Defendant was going to Ocean Isle

for a golf tournament, and Plaintiff told him that “they” were 

probably going to his house at Holden Beach, which is a few 

miles away. As a result, the investigator went ahead and waited 

for Karen at the Holden Beach address provided by Plaintiff.

Karen arrived at the house around 3:00 p.m., and the 

investigator did not see anyone with her. He maintained 

surveillance of the house until early that morning. Feeling 

tired, the investigator left at 12:28 a.m. and returned around

6:00 a.m. on Saturday. Karen’s vehicle was gone. As a result,

the investigator went to Ocean Isle to look for Defendant. The 

investigator was unable to locate Defendant and called Plaintiff 

around 2:00 p.m. to let him know. Plaintiff responded with 

“relief[, making] some statement like ‘Carol’s wrong,’” and told 

the investigator not to worry about the rest of the 

surveillance. Plaintiff “was pretty adamant that’s — it wasn’t 

nothing there, and that’s when I called if [sic] off, but I 

said, ‘Well, I’ll just keep my [assistant] down there[,] and 

we’ll do random spot checks . . . late Saturday and Sunday.”

The investigator left for Fayetteville around 2:00 p.m.

that Saturday. As he was leaving, Plaintiff told him that Karen 

was shopping at the mall outlets near Conway, South Carolina. 
-9-

Plaintiff said that Karen was with “a friend” and conveyed the 

feeling that Karen and Defendant were staying in Myrtle Beach, 

South Carolina. The investigator continued driving to 

Fayetteville and arrived back around 4:00 p.m. The assistant 

remained at Holden Beach and made “several drive-bys” of the 

residence through Saturday evening. The assistant did not 

observe Karen or Defendant at the residence, and, around 8:13 

p.m., Plaintiff informed the investigator that Karen was at

Carrabba’s Italian Grill in North Myrtle Beach. Plaintiff later 

revised the location to Bonefish Grill in North Myrtle Beach and 

directed the investigator to look for Karen there. The assistant 

was still at Holden Beach, approximately an hour to an hour and 

fifteen minutes away, and the investigator was concerned that 

Karen and Defendant would be gone by the time the assistant 

arrived. Consequently, they “decided just to call off the 

surveillance.”

The next day, Sunday, 22 March 2009, Plaintiff called the 

investigator and told him that Karen was not at Holden Beach.

Though there is no dispute that Karen and Defendant actually 

spent the weekend in Myrtle Beach,

3 the investigator was unable 

 

3 Karen admitted this fact to the investigator after she was 

discovered.
-10-

to confirm this fact during his investigation. Later that day, 

Plaintiff told the investigator to “hold off” on the 

investigation until Wednesday, 25 March 2009.

On either Wednesday, 25 March 2009, or Thursday, 26 March 

2009, Plaintiff discovered Karen’s relationship with Defendant.4

Plaintiff went home unexpectedly during the workday and saw 

Karen pulling out of the driveway. At that point, Karen called 

him to say she was going to McDonald’s to get her credit card. 

Plaintiff followed her and saw Defendant lying in the backseat 

of the car. Plaintiff eventually called the investigator and 

directed him to confront Karen and Defendant, who had returned 

to Plaintiff’s residence. The investigator discovered Defendant 

in Plaintiff’s garage, and both Defendant and Karen admitted to 

the affair.

Plaintiff filed his complaint on 23 March 2012. On 7 

November 2013, three days after the hearing on Defendant’s 

motion for summary judgment, the trial court allowed the motion 

“as to [Plaintiff’s action for c]riminal [c]onversation based 

upon the [s]tatute of [l]imitations” and denied the motion in 

all other respects. Plaintiff filed notice of appeal regarding 

 

4 The record indicates that this event could have occurred on 

either day.
-11-

the criminal conversation claim on 4 December 2013, and 

Defendant filed notice of appeal “as to Plaintiff’s claim for 

alienation of affection[]” on 12 December 2013.

Discussion

On appeal, Plaintiff argues that the trial court erred in 

granting Defendant’s motion for summary judgment regarding his 

claim of criminal conversation. Defendant argues that the trial 

court erred in denying his motion for summary judgment as to 

Plaintiff’s claim for alienation of affection. We reverse the 

trial court’s order as it relates to Plaintiff’s claim of 

criminal conversation and dismiss Defendant’s appeal as 

interlocutory. 

I. Appellate Jurisdiction

As Plaintiff recognizes in his brief, the parties’ appeals 

are taken from an interlocutory order. See Liggett Grp., Inc. v. 

Sunas, 113 N.C. App. 19, 23, 437 S.E.2d 674, 677 (1993) (“A 

grant of partial summary judgment, because it does not 

completely dispose of the case, is an interlocutory order from 

which there is ordinarily no right of appeal.”) (citations 

omitted). Therefore, neither party has an immediate right of 

appeal. Id.

Nonetheless, in two instances a party 

is permitted to appeal interlocutory orders: 
-12-

first, where there has been a final 

determination of at least one claim, and the 

trial court certifies that there is no just 

reason to delay the appeal [under] Rule 

54(b); and second, if delaying the appeal 

would prejudice a “substantial right.” As 

the court below made no certification, the 

first avenue of appeal is closed. 

Id. at 23–24, 437 S.E.2d at 677 (citations omitted; emphasis in 

original).

A. Plaintiff’s Appeal

Plaintiff argues that the trial court’s order affects a 

substantial right and, therefore, warrants immediate appellate 

review because his claims are factually interrelated and the 

trial court’s order leaves a potential for inconsistent 

verdicts. We agree. 

This Court has stated that a 

substantial right is considered affected if 

there are overlapping factual issues between 

the claim determined and any claims which 

have not yet been determined because such 

overlap creates the potential for 

inconsistent verdicts resulting from two 

trials on the same factual issues. In 

McCutchen, our Supreme Court addressed the 

merits of an interlocutory appeal when the 

trial court had granted summary judgment on 

the plaintiff’s claim for alienation of 

affection[], but left the plaintiff’s claim 

for criminal conversation unresolved. [360 

N.C. 280, 282, 624 S.E.2d 620, 623 (2006)]. 

The . . . Court reasoned that because the 

two causes of action and the elements of 

damages [were] so connected and intertwined, 

only one issue of damages should be 
-13-

submitted to the jury. As a result, the 

Court ultimately determined that in light of 

this legal interdependence, the same jury 

should determine damages for both claims and 

held that the interlocutory order granting 

summary judgment on [the] plaintiff’s 

alienation claim [was] subject to appeal.

Carsanaro v. Colvin, 215 N.C. App. 455, 457–58, 716 S.E.2d 40, 

44 (certain citations, internal quotation marks, certain 

brackets, and certain ellipses omitted), disc. review denied, 

365 N.C. 369, 719 S.E.2d 42 (2011). 

In this case, as in Carsanaro, 

each of [the] plaintiff’s causes of actions 

is based upon injuries suffered as a result 

of the same underlying conduct: [the] 

defendant’s sexual affair with [the] 

plaintiff’s wife. Since the basis of the 

claims is the same conduct, the claims 

necessarily involve overlapping factual 

issues.

Id. at 458, 716 S.E.2d at 44 (allowing immediate appellate 

review of the trial court’s order granting the defendant’s 

motion to dismiss the plaintiff’s claim for negligent infliction 

of a sexually transmitted disease and dismissing as 

interlocutory the defendant’s appeal from the trial court’s 

order denying his motion to dismiss the plaintiff’s claims for 

criminal conversation, intentional infliction of emotional 

distress, and negligent infliction of emotional distress). 
-14-

Accordingly, we hold that Plaintiff’s appeal affects a 

substantial right and is properly before this Court.

B. Defendant’s Appeal

As discussed above, Defendant’s appeal is from the same 

interlocutory order. Despite this fact, Defendant makes no 

argument that his appeal is properly before this Court and, 

furthermore, relegates his argument regarding Plaintiff’s claim 

for alienation of affection to his appellee’s brief. He has not 

filed an appellant’s brief with this Court. Additionally, 

Plaintiff has filed a motion with this Court arguing that 

Defendant’s appeal should be dismissed as interlocutory. 

Defendant has not responded to that motion. We agree with 

Plaintiff’s argument and dismiss Defendant’s appeal. 

Without addressing the impact of Defendant’s failure to 

file an appellant’s brief, we note that an order denying summary 

judgment is not a final determination of a claim. Henderson v. 

LeBauer, 101 N.C. App. 255, 264, 399 S.E.2d 142, 147, disc. 

review denied, 328 N.C. 731, 404 S.E.2d 868 (1991). Even if the 

trial court has attempted to certify such an order for appeal, 

it is not immediately appealable unless it affects a substantial 

right. Id. Defendant has not argued that the trial court’s order 

affects a substantial right and, because the order allows the 
-15-

action to proceed, we fail to see how any substantial right will 

be lost by a trial on the issues. See id. (reviewing the 

plaintiff’s appeal from the trial court’s order granting the 

defendant’s motion for summary judgment in part and dismissing 

the defendant’s appeal from the trial court’s order denying 

summary judgment in part); see also Carsanaro, 215 N.C. App. at 

458, 716 S.E.2d at 44. Accordingly, we dismiss Defendant’s 

appeal as interlocutory. 

II. Standard of Review

“Our standard of review of an appeal from summary judgment 

is de novo; such judgment is appropriate only when the record 

shows that there is no genuine issue as to any material fact and 

that any party is entitled to a judgment as a matter of law.” In 

re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) 

(citation and internal quotation marks omitted; italics added). 

Review is based only on the pleadings and evidence before the 

trial court. Liggett Grp., Inc., 113 N.C. App. at 25, 437 S.E.2d 

at 678 (citations omitted). “The burden of establishing a lack 

of any triable issue of fact resides with [Defendant] as movant 

and[,] thus[,] all evidence must be viewed in the light most 

favorable to [Plaintiff].” Id. (citation omitted).

III. Criminal Conversation
-16-

Plaintiff argues that the trial court erred by granting 

summary judgment on his criminal conversation claim pursuant to 

the statute of limitations because there is a genuine issue of 

material fact regarding when the statute of limitations began to 

run. We agree.

An action for “criminal conversation” is a civil suit, 

brought by one party to the marriage against a third party, for 

adultery. “The elements of [this tort] are the actual marriage 

between the spouses and sexual intercourse between [the] 

defendant and the plaintiff’s spouse during the coverture. The 

cause of action is based upon the fundamental right to exclusive 

sexual intercourse between spouses.” Nunn v. Allen, 154 N.C. 

App. 523, 535, 574 S.E.2d 35, 43 (2002), disc. review denied, 

356 N.C. 675, 577 S.E.2d 630 (2003). The statute of limitations 

for criminal conversation is three years. N.C. Gen. Stat. § 1-

52(5) (2013). 

In 2009, the legislature enacted section 52-13 of the North 

Carolina General Statutes, which provides in pertinent part that 

“[a]n action for alienation of affection or criminal 

conversation shall not be commenced more than three years from 

the last act of the defendant giving rise to the cause of 

action.” N.C. Gen. Stat. § 52-13(b) (2013) (emphasis added). 
-17-

Defendant contends that section 52-13 is controlling in this 

case because it operates to shorten the applicable statute of 

limitations.

5 Quoting our opinion in Reunion Land Co. v. Village 

of Marvin, 129 N.C. App. 249, 250, 497 S.E.2d 446, 447 (1998)

[hereinafter Reunion], Defendant asserts that the applicable 

rule is as follows: “[W]hen the legislature shortens a statute 

of limitations, ‘a party with a claim at the time of the 

amendment has a reasonable time to file that claim, but such 

reasonable time cannot exceed the limitations period allowed 

under the new law.’” We disagree. 

Reunion is not controlling in this case. The plaintiffs in 

Reunion brought suit against the town regarding the validity of 

a zoning ordinance. Id. The plaintiffs’ cause of action accrued 

in September of 1996, and they brought suit on 7 February 1997, 

approximately five months later. Id. At the time the cause of 

action accrued, the statute of limitations was nine months. Id.

“Effective 1 October 1996,” however, the statute was amended to 

provide for a two-month filing period. Id. On appeal, we 

affirmed the trial court’s dismissal of the plaintiffs’ suit

 

5 Because we conclude that section 52-13 is not applicable in 

this case, we offer no opinion on whether section 52-13 would 

work to shorten the statute of limitations in this factual 

context. 
-18-

pursuant to our opinion in Spaulding v. R.J. Reynolds Tobacco 

Co., 93 N.C. App. 770, 771, 379 S.E.2d 49, 50 (1989), affirmed 

per curiam, 326 N.C. 44, 387 S.E.2d 168 (1990), because “a party 

with a claim at the time of the amendment of [the statute of 

limitations for the filing of an action] has a reasonable time 

to file that claim, but such reasonable time cannot exceed the 

limitations period allowed under the new law.” Reunion, 129 N.C. 

App. at 250, 497 S.E.2d at 447. 

As Plaintiff rightly notes in his brief, the amendment in 

Reunion provided only that it became “effective October 1, 

1996.” 1995 N.C. Sess. Law 746, sec. 8. Similarly, the updated 

statute of limitations in Spaulding provided only that it would 

“become effective” on the relevant date. 1985 N.C. Sess. Law

571, sec. 52. Neither statute described how it should be applied 

to ongoing cases. In this case, however, the legislature has 

provided that section 52-13 “becomes effective October 1, 2009, 

and applies to actions arising from acts occurring on or after 

that date.” 2009 N.C. Sess. Law 400, sec. 2 (emphasis added). 

The acts giving rise to Plaintiff’s cause of action occurred 

prior to 1 October 2009. Therefore, to the extent section 52-13 

might otherwise be applicable under Reunion and Spaulding, the 

legislature has made clear that it is not. Accordingly, 
-19-

Defendant’s argument is overruled, and we proceed without 

relying on section 52-13. 

In Misenheimer v. Burris, our Supreme Court clarified that 

the three-year statute of limitations for criminal conversation 

is tolled by section 1-52(16), which provides that a cause of 

action “shall not accrue until bodily harm to the claimant or 

physical damage to his property becomes apparent or ought 

reasonably to have become apparent to the claimant.” 360 N.C. 

620, 622, 637 S.E.2d 173, 175 (2006) (quoting N.C. Gen. Stat. §

1-52(16)).

[I]t is well established that whether a 

cause of action is barred by the statute of 

limitations is a mixed question of law and 

fact. The issue becomes a question of law if 

the facts are admitted or are not in 

conflict, at which point summary judgment or 

other trial judge rulings are appropriate. 

However, when the evidence is sufficient to 

support an inference that the limitations 

period has not expired, the issue should be 

submitted to the jury.

Lord v. Customized Consulting Specialty, Inc., 182 N.C. App. 

635, 643, 643 S.E.2d 28, 33, disc. review denied, 361 N.C. 694, 

652 S.E.2d 647 (2007) (citations, internal quotation marks, and 

brackets omitted) (holding that the trial court properly 

declined to bar the plaintiff’s negligence claims involving 

physical damage to the claimant’s property under the statute of 
-20-

limitations because the parties offered conflicting accounts of 

the date of discovery of the damage).

Plaintiff filed his complaint on 23 March 2012. Therefore, 

if Plaintiff did not know or should not have known about the 

affair prior to 23 March 2009, the statute of limitations does 

not bar his claim. See N.C. Gen. Stat. § 1-52(5), (16). 

Congruently, if Plaintiff knew or should have known about the 

affair before that date, then the claim is barred by the statute 

of limitations. Id.

Plaintiff asserts that he discovered, and therefore knew 

about, the affair on either 25 March 2009 or 26 March 2009, when 

the investigator found Defendant in the garage. Nevertheless, he

argues that there is a genuine issue of fact concerning whether 

he should have discovered the affair before that point. For 

support, Plaintiff points to his own repeated statements that he 

trusted his wife and did not believe she would do this to him. 

He also notes that, despite hiring a private investigator to 

confirm the affair, Plaintiff received no concrete evidence 

until 25 or 26 March 2009. When the investigator called 

Plaintiff during the beach weekend and informed Plaintiff that 

he had been unable to find Karen and Defendant together, 

Plaintiff expressed relief that Carol had been wrong. 
-21-

Defendant contends, on the other hand, that Plaintiff

either knew or should have known about the affair because, at 

most, “he was willfully blind to the affair between his wife and 

. . . Defendant.” For support, Defendant points to: (1) the fact 

that the parties had socialized together for approximately five 

years; (2) Carol’s statements to Plaintiff regarding the New 

Year’s Eve incident, the text messages, and the second phone; 

and (3) the fact that Plaintiff hired a private investigator, 

indicating that he suspected an affair. 

Essentially, the parties ask this Court to choose one 

factual narrative over another. “We decline to do so, [however,]

as such weighing of the evidence and credibility of witnesses is 

the responsibility of the jury, not an appellate court.” See id.

at 644, 643 S.E.2d at 33. While it strains the credulity of this 

Court to accept that Plaintiff did not know his wife was having 

an affair with Defendant, the issue of whether Plaintiff knew or 

should have known about the affair is one for the jury. See id.

Therefore, we hold that the trial court erred in granting 

summary judgment to Defendant. Accordingly, Defendant’s argument 

is overruled, and the trial court’s order is reversed as it 

relates to Plaintiff’s claim of criminal conversation. 

REVERSED in part; DISMISSED in part.
-22-

Judges STROUD and MCCULLOUGH concur.

Report per Rule 30(e).