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Misenheimer v. Burris4/5/2005
N.C. App. 199, 200, 557 S.E.2d 189, 190 (2001). The elements of criminal conversation are (1) "'the actual marriage between the spouses;'" and (2) "'sexual intercourse between defendant and the plaintiff's spouse during the coverture.'" Id., 148 N.C. App. at 200-01 (quoting Brown v. Hurley, 124 N.C. App. 377, 380, 477 S.E.2d 234, 237 (1996)). A plaintiff must file an action within three years for "criminal conversation, or for any other injury to the person or rights of another, not arising on contract and not hereafter enumerated." N.C. Gen. Stat. § 1-52(5) (2003). The discovery rule is an exception to statutes of limitation that apply to certain latent causes of action. The discovery rule provides that
nless otherwise provided by statute, for personal injury or physical damage to claimant's property, the 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, whichever event first occurs.
N.C. Gen. Stat. § 1-52(16) (2003) (emphasis added). This Court has held that § 1-52(16) does not apply to causes of action where the limitation period is provided by statute. See Marshburn v. Associated Indemnity Corp., 84 N.C. App. 365, 371-72, 353 S.E.2d 123, 127-28 (1987) (The discovery rule does not apply to claims for losses covered by an insurance policy because the limitation period is "otherwise provided by statute" in N.C. Gen. Stat. § 1-52(12).). Since the cause of action for criminal conversation is specifically identified in the three-year statute of limitations contained in §1-52(5), the discovery exception does not apply to criminal conversation cases.
In resolving this issue, we are further guided by this Court's ruling in Coachman v. Gould, 122 N.C. App. 443, 470 S.E.2d 560 (1996). In Coachman, the defendant and the plaintiff's wife had a sexual relationship that ended in 1988, the year that plaintiff and his wife married. 122 N.C. App. at 444-46, 470 S.E.2d at 561-63. The sexual relationship between defendant and the plaintiff's wife "possibly overlapped a period in which plaintiff and [his wife] were married." 122 N.C. App. at 445, 470 S.E.2d at 562. After 1988, the plaintiff's wife maintained a relationship with the defendant by engaging in several telephone conversations with him. 122 N.C. App. at 446, 470 S.E.2d at 563. The plaintiff filed a complaint for criminal conversation in 1993. 122 N.C. App. at 446, 470 S.E.2d at 563. Citing § 1-52(5), this Court held that with regard to the sexual relationship between the defendant and the plaintiff's wife in 1988, the plaintiff's cause of action was barred by the three-year statute of limitations. 122 N.C. App. at 446, 470 S.E.2d at 562 ("Since this particular relationship allegedly occurred in 1988 at the latest, and plaintiff's complaint was not filed until 1993, the statute of limitations bars this act from constituting a cause of action relevant to the instant case.") We further held that with regard to the telephone conversations that took place after 1988, the plaintiff failed to prove all of the elements of criminal conversation, i.e., he not did demonstrate that his wife engaged in sexual intercourse with the defendantduring that time. 122 N.C. App. at 446, 470 S.E.2d at 563. For these reasons, we affirmed the trial court's summary judgment in favor of the defendant.
In the present case, the evidence presented tends to show that defendant's alleged affair with Ms. Misenheimer began in 1991 and ended in 1994 or 1995. The evidence also tends to show that plaintiff began to suspect the affair in 1996, well within the statute of limitations. However, plaintiff did not file the complaint i
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