Estes v. Battiston, ___ N.C. App. ___ (2020).
In North Carolina, Alienation of Affections and Criminal Conversation are common law torts called “heart-balm” torts that put civil liability on a third party for causing a breakdown in a marriage. In recent years, attempts by defendants to challenge the tort have relied on numerous constitutional bases. Below, we discuss one avenue attempted by a defendant to bring his constitutional challenges before a court.
- Facts: Plaintiff filed a claim for Alienation of Affections, criminal conversation, and punitive damages against the defendant. He alleged that Defendant intentionally destroyed the loving relationship between Plaintiff and his wife. As part of his defense, Defendant filed motions to dismiss based on the torts being facially unconstitutional. He also requested that a three-judge panel hear the motion to dismiss, rather than the trial court. This was likely because previous heart-balm torts have not had much success at the trial level on summary judgment and dismissal when challenged on constitutional grounds. The trial judge denied the motion to refer to the panel. Defendant appealed.
- Issue: Did the trial court err in denying the motion to refer to a three-judge panel for consideration of the Defendant’s motion to dismiss?
- Rationale: The appeal to the Court of Appeals was an appeal from an interlocutory order, meaning that it did not settle all issues in the case. Not all interlocutory orders are immediately appealable. Ones that settle one claim or one parties’ involvement can be appealable. And those that affect a substantial right are as well. The substantial rights that Defendant cited are: 1) a statutory provision which grants three-judge panels the ability to hear facial challenges to acts of the General Assembly; and 2) that the three-judge panel has exclusive jurisdiction over these challenges in which denial of the motion to refer would result in duplicative litigation. The Court first held that the three-judge panel only applies to facial challenges of acts of the General Assembly, which the common law torts of Alienation and Criminal Conversation are not. Second, the jurisdiction of the three-judge panel is not exclusive, and only applies to acts of the General Assembly, thus Defendant will not be required to go before the panel should his case be first tried in the trial level. This meant that the interlocutory order was unappealable. Finally, the Court, in assuming that they reached the merits of the case, would affirm. They stated in dicta that the torts are in common law, and not statutory, thus the three-judge panel has no exclusive jurisdiction to hear the challenge. Moreover, the Court stated that even if the panel heard the case, they would have been bound by other Courts of Appeal decisions that would have denied Defendant’s motion to dismiss based on constitutional grounds.
- Lessons and Observations:
- Alienation and heart-balm torts remain in North Carolina. The cursory review and dicta, opined after already affirming the trial court, strongly signal that the Court of Appeals is willing to stand by precedent in allowing these claims to proceed.
- Was the attempt to refer Defendant’s motion to dismiss before a three-judge panel calculated? Would that panel have held differently than precedent that clearly found that these torts passed constitutional muster? It remains unclear. Perhaps this was another avenue explored as part of a movement to refer the case to the state Supreme Court.
- Finally, these were claims that the torts are facially unconstitutional. The Court has agreed that certain as-applied challenges may have merit, and as such the Court may have cause to dismiss those heart-balm tort actions.