IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-699
Filed: 20 October 2020
Caldwell County, No. 18 CVS 190
JONATHAN DREW ESTES, Plaintiff,
v.
JOHN J. BATTISTON, JR., Defendant.
Appeal by defendant from order entered 6 May 2019 by Judge Robert C. Ervin
in Caldwell County Superior Court. Heard in the Court of Appeals 17 March 2020.
Marshall Hurley, PLLC, by Marshall Hurley, and W. Wallace Respess, Jr., for plaintiff-appellee.
Arnold & Smith, PLLC, by Matthew R. Arnold and Ashley A. Crowder, for defendant-appellant.
BRYANT, Judge.
Because defendant’s appeal of a trial court order is interlocutory and where
defendant fails to establish a substantial right is detrimentally affected absent our
review, we dismiss this appeal.
On 2 March 2018, plaintiff Jonathan Drew Estes filed a complaint against
defendant John J. Battiston, Jr., alleging that defendant intentionally sabotaged the
relationship between plaintiff and his wife and seeking recovery on the basis of
alienation of affection, criminal conversation, and punitive damages. On 15 May
2018, defendant filed an answer and multiple motions. The motions included several
motions to dismiss, the first of which alleged that plaintiff’s claims were “facially ESTES V. BATTISTON
Opinion of the Court
unconstitutional[.]” Defendant moved to have the determination of that motion,
concerning the constitutionality of plaintiff’s claims, referred to a three-judge panel
for consideration.
On 6 May 2019, the trial court entered an order on defendant’s motion to refer
the matter to a three-judge panel. The trial court noted defendant’s reliance on N.C.
Gen. Stat. § 1-267.1 and held that the statute “does not apply to common law torts.”
Accordingly, the trial court denied defendant’s motion to refer the matter to a three-
judge panel.
From the order denying his motion to refer the matter to a three-judge panel,
defendant appeals.
___________________________________________
In his sole argument on appeal, defendant contends that the trial court erred
in denying his motion to refer the case to a three-judge panel for consideration of the
constitutionality of the claims against him. We dismiss this appeal as interlocutory.
Interlocutory Appeal
A final judgment is one which disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court. An interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy.
-2- ESTES V. BATTISTON
Veazey v. Durham, 231 N.C. 357, 361–62, 57 S.E.2d 377, 381 (1950) (citations
omitted).
[I]mmediate appeal of interlocutory orders and judgments is available in at least two instances. First, immediate review is available when the trial court enters a final judgment as to one or more, but fewer than all, claims or parties and certifies there is no just reason for delay. . . . Second, immediate appeal is available from an interlocutory order or judgment which affects a substantial right.
Sharpe v. Worland, 351 N.C. 159, 161–62, 522 S.E.2d 577, 579 (1999) (citations and
quotation marks omitted).
In the instant case, the trial court did not certify the order for appeal. Thus,
defendant must show a substantial right has been affected in order to proceed on his
interlocutory appeal.
[A]n interlocutory order affects a substantial right if the order deprive[s] the appealing party of a substantial right which will be lost if the order is not reviewed before a final judgment is entered. Essentially a two-part test has developed—the right itself must be substantial and the deprivation of that substantial right must potentially work injury . . . if not corrected before appeal from final judgment.
Id. at 162, 522 S.E.2d at 579 (alterations in original) (citation and quotations marks
Defendant acknowledges his appeal is interlocutory. In support of his
contention that a substantial right has been affected, defendant offers two
-3- ESTES V. BATTISTON
arguments: first, that a three-judge panel has exclusive jurisdiction to hear
constitutional challenges; and second, that defendant has a right to avoid duplicative
trials.
Regarding his first substantial right argument, defendant cites N.C. Gen. Stat.
§ 1-267.1, which provides that “any facial challenge to the validity of an act of the
General Assembly shall be transferred . . . to the Superior Court of Wake County and
shall be heard and determined by a three-judge panel of the Superior Court of Wake
County[.]” N.C. Gen. Stat. § 1-267.1(a1) (2019). Notably, however, defendant’s
argument fails to take into account key language of that statutory provision. The
statute, by its language, applies to “an act of the General Assembly[.]” Id. As the
trial court held, plaintiff’s claims did not arise under acts of the General Assembly –
alienation of affection and criminal conversation are torts arising under common law.
Defendant offers no cogent explanation as to why this statute, whose clear and
unambiguous language applies only to legislative acts, should apply to common law
torts, nor does he offer any relevant citation of statutory or case law which might
support such a position. Therefore, defendant has not shown that exclusive
jurisdiction is vested in a three-judge panel.
With regard to his second substantial right argument, defendant asserts that
because a three-judge panel has exclusive jurisdiction, failing to grant his motion
would result in duplicative litigation. As we have held, however, the statute upon
-4- ESTES V. BATTISTON
which defendant relies does not vest exclusive jurisdiction in a three-judge panel,
where, as here, it concerns acts of the legislature, not common law torts. Accordingly,
we hold that defendant has not shown a risk of duplicative litigation.
Because defendant has failed to demonstrate that the deprivation of a
substantial right would potentially work injury to him if not corrected before an
appeal from a final judgment, we dismiss his appeal as interlocutory. See Sharpe,
351 N.C. at 162, 522 S.E.2d at 579.
Cursory Review
In the event this panel did reach the merits of defendant’s argument, we would
likely affirm the trial court.
“Alleged violation of a statutory mandate presents a question of law, which we
review de novo on appeal.” Dion v. Batten, 248 N.C. App. 476, 488, 790 S.E.2d 844,
852 (2016).
Defendant contends all common law torts were brought under the purview of
the General Assembly via N.C. Gen. Stat. § 4-1. This statute provides that “[a]ll such
parts of the common law as were heretofore in force and use within this State, . . . are
hereby declared to be in full force within this State.” N.C. Gen. Stat. § 4-1 (2019).
Defendant contends the trial court failed to acknowledge that this renders common
law torts subject to N.C. Gen. Stat. § 1-267.1.
-5- ESTES V. BATTISTON
While N.C. Gen. Stat. § 4-1 codified common law torts, those torts themselves,
insofar as they were not subsequently altered or updated by legislative action, were
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IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-699
Filed: 20 October 2020
Caldwell County, No. 18 CVS 190
JONATHAN DREW ESTES, Plaintiff,
v.
JOHN J. BATTISTON, JR., Defendant.
Appeal by defendant from order entered 6 May 2019 by Judge Robert C. Ervin
in Caldwell County Superior Court. Heard in the Court of Appeals 17 March 2020.
Marshall Hurley, PLLC, by Marshall Hurley, and W. Wallace Respess, Jr., for plaintiff-appellee.
Arnold & Smith, PLLC, by Matthew R. Arnold and Ashley A. Crowder, for defendant-appellant.
BRYANT, Judge.
Because defendant’s appeal of a trial court order is interlocutory and where
defendant fails to establish a substantial right is detrimentally affected absent our
review, we dismiss this appeal.
On 2 March 2018, plaintiff Jonathan Drew Estes filed a complaint against
defendant John J. Battiston, Jr., alleging that defendant intentionally sabotaged the
relationship between plaintiff and his wife and seeking recovery on the basis of
alienation of affection, criminal conversation, and punitive damages. On 15 May
2018, defendant filed an answer and multiple motions. The motions included several
motions to dismiss, the first of which alleged that plaintiff’s claims were “facially ESTES V. BATTISTON
Opinion of the Court
unconstitutional[.]” Defendant moved to have the determination of that motion,
concerning the constitutionality of plaintiff’s claims, referred to a three-judge panel
for consideration.
On 6 May 2019, the trial court entered an order on defendant’s motion to refer
the matter to a three-judge panel. The trial court noted defendant’s reliance on N.C.
Gen. Stat. § 1-267.1 and held that the statute “does not apply to common law torts.”
Accordingly, the trial court denied defendant’s motion to refer the matter to a three-
judge panel.
From the order denying his motion to refer the matter to a three-judge panel,
defendant appeals.
___________________________________________
In his sole argument on appeal, defendant contends that the trial court erred
in denying his motion to refer the case to a three-judge panel for consideration of the
constitutionality of the claims against him. We dismiss this appeal as interlocutory.
Interlocutory Appeal
A final judgment is one which disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court. An interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy.
-2- ESTES V. BATTISTON
Veazey v. Durham, 231 N.C. 357, 361–62, 57 S.E.2d 377, 381 (1950) (citations
omitted).
[I]mmediate appeal of interlocutory orders and judgments is available in at least two instances. First, immediate review is available when the trial court enters a final judgment as to one or more, but fewer than all, claims or parties and certifies there is no just reason for delay. . . . Second, immediate appeal is available from an interlocutory order or judgment which affects a substantial right.
Sharpe v. Worland, 351 N.C. 159, 161–62, 522 S.E.2d 577, 579 (1999) (citations and
quotation marks omitted).
In the instant case, the trial court did not certify the order for appeal. Thus,
defendant must show a substantial right has been affected in order to proceed on his
interlocutory appeal.
[A]n interlocutory order affects a substantial right if the order deprive[s] the appealing party of a substantial right which will be lost if the order is not reviewed before a final judgment is entered. Essentially a two-part test has developed—the right itself must be substantial and the deprivation of that substantial right must potentially work injury . . . if not corrected before appeal from final judgment.
Id. at 162, 522 S.E.2d at 579 (alterations in original) (citation and quotations marks
Defendant acknowledges his appeal is interlocutory. In support of his
contention that a substantial right has been affected, defendant offers two
-3- ESTES V. BATTISTON
arguments: first, that a three-judge panel has exclusive jurisdiction to hear
constitutional challenges; and second, that defendant has a right to avoid duplicative
trials.
Regarding his first substantial right argument, defendant cites N.C. Gen. Stat.
§ 1-267.1, which provides that “any facial challenge to the validity of an act of the
General Assembly shall be transferred . . . to the Superior Court of Wake County and
shall be heard and determined by a three-judge panel of the Superior Court of Wake
County[.]” N.C. Gen. Stat. § 1-267.1(a1) (2019). Notably, however, defendant’s
argument fails to take into account key language of that statutory provision. The
statute, by its language, applies to “an act of the General Assembly[.]” Id. As the
trial court held, plaintiff’s claims did not arise under acts of the General Assembly –
alienation of affection and criminal conversation are torts arising under common law.
Defendant offers no cogent explanation as to why this statute, whose clear and
unambiguous language applies only to legislative acts, should apply to common law
torts, nor does he offer any relevant citation of statutory or case law which might
support such a position. Therefore, defendant has not shown that exclusive
jurisdiction is vested in a three-judge panel.
With regard to his second substantial right argument, defendant asserts that
because a three-judge panel has exclusive jurisdiction, failing to grant his motion
would result in duplicative litigation. As we have held, however, the statute upon
-4- ESTES V. BATTISTON
which defendant relies does not vest exclusive jurisdiction in a three-judge panel,
where, as here, it concerns acts of the legislature, not common law torts. Accordingly,
we hold that defendant has not shown a risk of duplicative litigation.
Because defendant has failed to demonstrate that the deprivation of a
substantial right would potentially work injury to him if not corrected before an
appeal from a final judgment, we dismiss his appeal as interlocutory. See Sharpe,
351 N.C. at 162, 522 S.E.2d at 579.
Cursory Review
In the event this panel did reach the merits of defendant’s argument, we would
likely affirm the trial court.
“Alleged violation of a statutory mandate presents a question of law, which we
review de novo on appeal.” Dion v. Batten, 248 N.C. App. 476, 488, 790 S.E.2d 844,
852 (2016).
Defendant contends all common law torts were brought under the purview of
the General Assembly via N.C. Gen. Stat. § 4-1. This statute provides that “[a]ll such
parts of the common law as were heretofore in force and use within this State, . . . are
hereby declared to be in full force within this State.” N.C. Gen. Stat. § 4-1 (2019).
Defendant contends the trial court failed to acknowledge that this renders common
law torts subject to N.C. Gen. Stat. § 1-267.1.
-5- ESTES V. BATTISTON
While N.C. Gen. Stat. § 4-1 codified common law torts, those torts themselves,
insofar as they were not subsequently altered or updated by legislative action, were
not the result of legislative action such that N.C. Gen. Stat. § 1-267.1 would apply.
Nor does such a ruling deprive defendant of a remedy: a party may nonetheless
challenge the facial constitutionality of a common law tort before a trial court via a
Rule 12(b)(6) motion. See Malecek v. Williams, 255 N.C. App. 300, 804 S.E.2d 592
(2017) (reversing an order which dismissed claims for torts of alienation of affection
and criminal conversation as facially unconstitutional).
Finally, even assuming arguendo that the trial court erred in denying the
motion on the basis that N.C. Gen. Stat. § 1-267.1 did not apply, such error is
harmless. Defendant’s motion alleged no specific basis, only the facial
unconstitutionality of the torts. And as this Court held in Malacek, those torts are
not facially unconstitutional. A three-judge panel would have been bound by the
precedent of this Court and ruled accordingly. As a matter of law, then, defendant
cannot show that he was in any way prejudiced by the trial court’s denial.
For these reasons, had we reached the merits of defendant’s appeal, we would
likely affirm the trial court’s denial of defendant’s motion to refer the
constitutionality of the torts at issue to a three-judge panel. However, having
determined defendant’s appeal to be interlocutory and not affecting a substantial
right, we dismiss this appeal.
-6- ESTES V. BATTISTON
DISMISSED.
Judge INMAN and ARROWOOD concur.
-7-