All opinions are subject to modification
and technical correction prior to official publication in the North Carolina
Reports and North Carolina Court of Appeals Reports. In the event of
discrepancies between the electronic version of an opinion and the print
version appearing in the North Carolina Reports and North Carolina Court of
Appeals Reports, the latest print version is to be considered authoritative.
NO. COA06-1318
NORTH CAROLINA COURT OF APPEALS
Filed: 3 July 2007
JULIE ORD,
Employee/Plaintiff
v. North
Carolina Industrial Commission
I.C.
File No. 086260
IBM,
Employer,
LIBERTY MUTUAL INSURANCE
Carrier/Defendants
Appeal by plaintiff from opinion and award entered 26 April
2006 by the North Carolina Industrial Commission. Heard in the Court of Appeals 24 April 2007.
Julie
Ord, pro se.
Cranfill,
Sumner & Hartzog, L.L.P., by P. Collins Barwick, III, and Jaye E. Bingham,
for defendants-appellees.
CALABRIA, Judge.
Julie Ord (“plaintiff”) appeals from an opinion and award of
the Industrial Commission. Since
plaintiff has committed numerous violations of the North Carolina Rules of
Appellate Procedure, and we decline to invoke our discretionary authority under
N.C. R. App. P. 2 (2006), we dismiss the appeal.
Plaintiff worked as a financial analyst for IBM Corp.
(“IBM”) in April of 2000 when a flood occurred in her building. The flood occurred on a Sunday, when
plaintiff was not at work. On the
evening of the flood, the IBM and property management team opened doors, placed
fans, and vacuumed the water.
Subsequently, contractors removed all water-damaged material including
but not limited to the carpet in the affected area. In addition, all employees who worked in the affected areas were
relocated to other buildings.
IBM collected carpet and wallboard samples, as well as air
samples, and the samples were analyzed at Research Triangle Institute. The samples from the wallboard had organisms
at a level lower than the limits of detection, while samples of the carpet were
at a level slightly above the limits of detection. The air samples revealed three locations with small visible
colonies of fungal growth. However,
only one indoor sample contained more mold-causing organisms than those
detected in outdoor samples.
Plaintiff testified that she first experienced vertigo on 4
May 2000. She also experienced a number
of other symptoms, including driving problems, cognitive problems, confusion,
tingling in her arms and legs, congestion, nausea, diarrhea, irritability,
shortness of breath, chest tightness, fever, and depression. In addition, plaintiff testified that she
experienced serious memory problems.
Following a hearing, the deputy commissioner determined that
plaintiff had not carried her burden to prove that she suffered an occupational
injury or disease and denied her claim under the North Carolina Workers’
Compensation Act. Plaintiff appealed to
the full commission and the commission affirmed the judgment of the deputy
commissioner. From that opinion and
award, entered on 25 January 2006, plaintiff appeals.
On appeal, plaintiff argues the commission erred in its
findings of facts and conclusions of law.
However, we do not reach the merits of plaintiff’s argument because
plaintiff has committed several major violations of the North Carolina Rules of
Appellate Procedure. Without invoking
Rule 2, in our discretion, we conclude that her appeal should be dismissed.
The Rules of Appellate Procedure set forth what is required
in an appellant’s brief. The rules
provide that the brief must contain:
(6) An
argument, to contain the contentions of the appellant with respect to each
question presented. Each question shall
be separately stated. Immediately
following each question shall be a reference to the assignments of error
pertinent to the question, identified by their numbers and by the pages at
which they appear in the printed record on appeal. Assignments of error not set out in the appellant’s brief, or
in support of which no reason or argument is stated or authority cited, will be
taken as abandoned.
N.C.
R. App. P. 28(b)(6) (2005) (emphasis supplied).
Here, plaintiff assigns error to numerous findings and
conclusions, but fails to argue specific findings and conclusions. She also fails to cite any authority in
support of her arguments. In addition,
plaintiff has failed to reference the assignments of error pertinent to each
question presented, and has failed to identify the page numbers in the record
where such assignments appear. Finally,
plaintiff failed to include a statement of grounds for appellate review in her
brief, as required by N.C. R. App. P. 28(b)(4) (2005) (“Such statement shall
include citation of the statute or statutes permitting appellate review.”).
“[T]he Rules of Appellate Procedure must be consistently
applied; otherwise, the Rules become meaningless, and an appellee is left
without notice of the basis upon which an appellate court might rule.” Viar v. N.C. DOT, 359 N.C. 400, 402,
610 S.E.2d 360, 361 (2005). We are
mindful that our Supreme Court, in State v. Hart, ___N.C.___, ___ S.E.2d
___ (2007) recently noted that we may use N.C. R. App. P. 2 to suspend the
rules in order to prevent “manifest injustice.” However, we do not agree with the concurring opinion that the
rules should be suspended in this case since manifest injustice will not result
in our decision to dismiss the appeal.
The concurring opinion concedes that if we chose to invoke Rule 2 and
suspend the rules, the outcome would be no different. Further, the rule violations are so serious as to fundamentally
frustrate appellate review. In light of
this, we conclude plaintiff’s appeal should be dismissed.
Dismissed.
Judge TYSON concurs.
Judge WYNN concurs in a separate opinion.
NO. COA06-1318
NORTH CAROLINA COURT OF APPEALS
Filed: 3 July 2007
JULIE ORD,
Employee/Plaintiff
v. North
Carolina Industrial Commission
I.C.
File No. 086260
IBM,
Employer,
LIBERTY MUTUAL INSURANCE
Carrier/Defendants
WYNN,
Judge, concurring in the result.
Plaintiff Julie Ord’s assignments of error take up thirteen pages of the record and essentially include her arguments on appeal. Because it is relatively straightforward to follow her argument from her assignments of error, I would not dismiss her appeal. Rather, I would reach the merits and render to this citizen “access to justice” for her appeal.
Moreover, it is easier to provide this pro se litigant
with a substantive answer to her appeal rather than engage in a protracted
discussion as to the reasons not to reach the merits, such as her technical
violations of our appellate rules.
Indeed, I would provide the answer to her appeal in one simple
paragraph:
Plaintiff Julie
Ord appeals from an adverse ruling of the Industrial Commission asking this
Court to establish “by a greater weight of the evidence” that she should
prevail on her worker’s compensation claim.
Though her appeal contains numerous violations of our Rules of Appellate
Procedure, we invoke review under Rule 2 and summarily conclude that under the
standard of review for worker’s compensation appeals, we may not reweigh the
evidence on appeal. Accordingly, the
Opinion and Award of the Full Commission is affirmed.
Notwithstanding
the rules violations, Ms. Ord’s argument on appeal is clear. While the outcome for Ms. Ord remains the
same, the difference is that by addressing the merits of her contention, she
has been afforded her day in court. I
vote to hear the appeal and affirm the Full Commission, rather than to dismiss
this appeal.