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North Carolina Court of Appeals to hold oral arguments at law school on Tuesday, Feb. 7

The North Carolina Court of Appeals will hold oral arguments in two cases at the Wake Forest University School of Law beginning at 3 p.m. on Tuesday, Feb. 7,  in Room 1312 of the Worrell Professional Center.

The judges will be Chief Judge John C. Martin  (’67)and Judges Robert C. Hunter and Linda Stephens.

The court will hear two cases, Filipowski v. Oliver (COA No. 11-996)and The North Carolina State Bar v. Barrett (COA No. 11-1274). The first involves the constitutionality of tort law, while the second addresses a violation of North Carolina Laws of Professional conduct.

“The judges have chosen to hear two cases from their docket that should be interesting and instructive for law students,” said Professor John Korzen, director of the law school’s Appellate Advocacy Clinic.

The first case  is Veronica Filipowski v. Melissa Oliver Lieu.  Ms. Filipowski has sued Ms. Lieu for alienation of affections and criminal conversation, two so-called “heart balm” torts in which a plaintiff alleges that the defendant had improper relations with the plaintiff’s spouse.  North Carolina is one of six states that still recognize the heart balm torts, which have been abolished in most states.  The defendant was a manicurist and pedicurist who did manicures and pedicures for the plaintiff and her husband before allegedly entering into an affair with the husband.  The defendant moved to dismiss the complaint, contending that both torts violate the Fourteenth Amendment and that the alienation of affections claim violates the First Amendment.  The defendant also argued that the punitive damages available for these claims are unconstitutional.  The trial court denied the motion to dismiss, and the defendant has appealed.

In response, the plaintiff argues that the appeal should be dismissed as premature because it is interlocutory and does not affect a substantial right so as to allow an immediate appeal.  Beyond dismissing the appeal outright, the plaintiff argues that rational basis review applies to the Fourteenth Amendment challenge and that the State had the legitimate interest of preserving marriage in enacting the legislation.  As to the First Amendment alienation of affections challenge, the plaintiff argues that any speech at issue in this case is not a type of speech protected by the First Amendment.  Finally, as to punitives, the plaintiff argues that the issue is not ripe because there has not yet been any award of liability, much less punitives, in this case.

In the second case, The North Carolina State Bar v. Sybil H. Barrett, the defendant attorney was disbarred after allegedly filing false HUD forms in a real estate closing in which she represented the buyer and the lender.  On appeal, the defendant contends first that she was denied due process because the disciplinary hearing was based on allegations of misconduct substantially different from what was alleged in the State Bar’s complaint.  The defendant also contends that there was insufficient evidence that she was the source of a false HUD form in the lender’s file after the closing or that she made knowing and purposeful misrepresentations.  Finally, the defendant contends that her disbarment was disproportional to discipline in similar cases and that the lender and seller were not harmed by her actions.  In response, the State Bar contends that the defendant received due process because, among other reasons, she was aware that the State Bar had sought the records used at the disciplinary hearing and had refused to cooperate.  As to the sufficiency of the evidence, the State Bar contends that the Court of Appeals should not revisit credibility determinations made by the State Bar or reweigh the evidence, and that the evidence was sufficient to show the defendant committed a crime involving dishonesty and fraud.  On the severity of the punishment (disbarment), the State Bar contends that the “whole record” test should apply, by which the punishment need only be rational in light of the evidence in this case and not proportional to punishments in other cases.  The State Bar also contends that the lender was harmed because it was induced to lend more than its guidelines would have allowed and would not have made the loan absent the false statements, and that the buyer was harmed because the false statements extended the term of the seller’s partial financing.

At the close of the session, the judges will invite the audience to ask questions concerning appellate practice, which will be followed by a reception for the judges and members of the law school community.