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NO. COA05-609
NORTH CAROLINA
COURT OF APPEALS
Filed: 7 March 2006
DEREK A. PATE and MICHELLE
D. PATE,
Plaintiffs,
v. North
Carolina Industrial Commission
I.C.
File No. TA-17156
N.C. DEPARTMENT OF
TRANSPORTATION,
Defendant.
Appeal by defendant from Decision and Order entered 17
February 2005 by the North Carolina Industrial Commission. Heard in the Court of Appeals 8 December
2005.
Hopf
& Higley, P.A., by James F. Hopf, for plaintiff-appellee.
Attorney
General Roy Cooper, by Assistant Attorney General Amar Majmundar, for
defendant-appellant.
LEVINSON, Judge.
Defendant North Carolina Department of Transportation
(NCDOT) appeals a decision and order of the Industrial Commission, affirming
with modification a deputy commissioner’s order awarding damages to
plaintiffs. We affirm.
Record evidence establishes the following: In 1999 plaintiffs Derek and Michelle Pate
lived at 2738 Stoney Brook Drive on State Rd. 1217, Farmville, in Pitt County,
North Carolina. A buried drainage pipe
ran under their property and beneath the road.
Maintenance of both State Rd. 1217 and of the drainage pipe, including
determination of the appropriate diameter for the pipe, is defendant’s
responsibility. Although defendant’s
guidelines indicated that the proper diameter for this drainage pipe was
forty-two to forty-eight inches, as of 1999 defendant was using an eighteen
inch diameter pipe.
In September 1999 Hurricane Floyd passed through Farmville,
and plaintiffs’ yard and house were flooded.
Over six inches of standing water flooded the interior of plaintiffs’
home, causing at least $103,000 in damages.
Plaintiffs presented unrebutted evidence at the hearing that the
flooding was caused by the inadequate capacity of the eighteen inch diameter
drainage pipe, which defendant replaced with a forty-eight inch diameter pipe.
On 30 August 2001 plaintiffs filed a complaint in the
Superior Court of Pitt County, North Carolina, seeking damages for alleged
“inverse condemnation” or wrongful taking of their property, arising from
defendant’s role in the flooding of their property. Defendant filed a motion for dismissal of plaintiffs’ civil
complaint on several grounds, including N.C. Rules of Civil Procedure Rule
12(b) (lack of subject matter jurisdiction), Rule 12(b)(6) (failure to state a
claim for relief), the doctrine of sovereign immunity; and the Statute of Repose. On 13 October 2003 the trial court granted
defendant’s motion, entering a summary order that did not indicate the basis
for the court’s decision.
On 7 September 2001 plaintiffs filed an affidavit setting
out a negligence claim pursuant to the Tort Claims Act claim, N.C. Gen. Stat.
§143-291, et seq. Many of the
facts alleged in plaintiffs’ affidavit were also set out in their superior
court complaint; however, unlike that complaint, the Tort Claims Act action
alleged negligence by a named NCDOT employee.
On 17 October 2003 defendant moved for summary judgment on plaintiffs’
Tort Claims Act claim. Defendant
asserted that the trial court’s dismissal of plaintiffs’ claim in the superior
court constituted a “final judgment on the merits” of plaintiffs’ claim, which
barred the Tort Claims Act claim under the doctrine of res judicata.
Plaintiffs’ claim was scheduled for hearing before
Industrial Commission Deputy Commissioner George Glenn. Two days before the hearing, defendant
appealed to the Full Commission, on the grounds that the commissioner’s failure
to rule on its summary judgment motion before the scheduled hearing was
a “de facto denial” of the motion, and that it was entitled to an
immediate appeal because the “de facto denial” affected a substantial
right.
On 5 November 2003 the case was heard by Deputy Commissioner
Glenn. Before the hearing on the
merits, the commissioner orally denied defendant’s summary judgment motion, and
defendant announced its appeal.
Defendant then argued that its appeal stripped the commissioner of
jurisdiction over the case, and refused to participate in the hearing. Consequently, plaintiffs’ evidence was
unchallenged. When questioned by the
Commissioner about the wisdom of its refusal to take part in the hearing on the
merits, defendant conceded that, if the procedural issues were resolved against
defendant, “[w]e lose, Your Honor.”
On 22 December 2003 the commissioner issued a Decision and
Order in favor of plaintiffs, and defendant appealed to the Full
Commission. On 17 February 2005 the
Full Commission affirmed the deputy commissioner’s opinion with
modifications. Defendant has appealed
from this Decision and Order, and timely filed the Record on Appeal. On 18 November 2005 defendant filed a motion
seeking to amend the Record on Appeal by adding record page citations to the
Assignments of Error. We have granted
defendant’s motion, and conclude that the procedural issues raised by defendant
were properly preserved for review and are now adequately assigned as error. Our opinion in this case does not address
substantive issues pertaining to proof of negligence, and thus we have no need
to reach the issue of whether defendant properly preserved or briefed such
issues.
Standard of Review
Defendant appeals from an Opinion and Award under the Tort
Claims Act, N.C. Gen. Stat. §143-291 et seq. Under §143-291(a), the Industrial Commission has jurisdiction
over negligence claims against the State.
The Commission is charged with determining “whether or not each individual
claim arose as a result of the negligence of any officer, employee, involuntary
servant or agent of the State while acting within the scope of his office,
employment, service, agency or authority, under circumstances where the State
of North Carolina, if a private person, would be liable to the claimant in
accordance with the laws of North Carolina.”
“Because an action in tort against the State and its departments,
institutions, and agencies is within the exclusive and original jurisdiction of
the Industrial Commission, a tort action against the State is not within the
jurisdiction of the Superior Court.” Guthrie
v. State Ports Authority, 307 N.C. 522, 539‑40, 299 S.E.2d 618, 628
(1983).
Regarding the procedural rules governing Tort Claims Act
proceedings, “the Commission is authorized to ‘adopt such rules and regulations
as may, in the discretion of the Commission, be necessary to carry out the
purpose and intent of [the Tort Claims Act].’
N.C. Gen. Stat. §143‑300 [(2005)]. [However,] the North Carolina Rules of Civil Procedure apply in
tort claims before the Commission, to the extent that such rules are not
inconsistent with the Tort Claims Act, in which case the Tort Claims Act
controls. N.C. Gen. Stat. §143‑300;
4 NCAC 10B.0201(a).” Doe 1 v.
Swannanoa Valley Youth Dev. Ctr., 163 N.C. App. 136, 141, 592 S.E.2d 715,
718‑19, disc. review and stay denied, 358 N.C. 376, 596 S.E.2d
813 (2004).
“The standard of review for an appeal from the Full
Commission’s decision under the Tort Claims Act ‘shall be for errors of law
only under the same terms and conditions as govern appeals in ordinary civil
actions, and the findings of fact of the Commission shall be conclusive if
there is any competent evidence to support them.’ N.C. Gen. Stat. §143‑293 [(2005)]. As long as there is competent evidence in
support of the Commission’s decision, it does not matter that there is evidence
supporting a contrary finding.” Simmons
v. Columbus County Bd. of Educ., __ N.C. App. __, __, 615 S.E.2d 69, 72
(2005) (citing Simmons v. N.C. Dept. of Transportation, 128 N.C. App.
402, 405, 496 S.E.2d 790, 793 (1998)).
“[W]hen considering an appeal from the Commission, our Court is limited
to two questions: (1) whether competent evidence exists to support the
Commission’s findings of fact, and (2) whether the Commission’s findings of
fact justify its conclusions of law and decision.” Simmons, __ N.C. App. at __, 615 S.E.2d at 72.
______________________
Defendant argues first that the Full Commission erred by
affirming the Opinion and Award by the deputy commissioner, on the grounds that
N.C. Gen. Stat. §136-111 (2005) affords plaintiffs’ “sole remedy, rendering
their common law tort action improper[.]”
However, by failing to assign this issue as error, defendant did not
preserve it for appellate review. See
N.C.R. App. P. 10(a) (“[T]he scope of review on appeal is confined to a
consideration of those assignments of error set out in the record on appeal in
accordance with this Rule 10.”). Further, it is undisputed that G.S. §136-111
addresses actions seeking damages for condemnation, while the Tort
Claims Act governs negligence claims.
Defendant cites no authority holding that G.S. §136-111 bars negligence
claims, and we find none.
______________________
Defendant next asserts that the deputy commissioner lacked
jurisdiction to conduct the 5 November 2003 hearing on the merits of
plaintiffs’ claim, based on defendant’s notice of appeal filed 3 November
2003. This appeal, filed two days before
the hearing, purported to appeal from what defendant describes as a “de
facto denial” of its summary judgment motion. This motion for summary judgment was filed two weeks
before the hearing. Defendant
repeatedly asserts the deputy commissioner “refused” to rule on its motion for
summary judgment, and argues that its appeal of the “de facto denial” of
summary judgment removed the case from the deputy commissioner’s
jurisdiction. However, defendant cites
no authority supporting the right to appeal before a motion has been
heard or a ruling entered, and we find none.
We reject this argument.
__________________________
Defendant next argues that the Industrial Commission erred
by denying its motion for summary judgment, asserting that dismissal of
plaintiffs’ civil superior court complaint was “an adjudication on the merits”
of plaintiffs’ claim that barred plaintiffs’ negligence claim under the Tort
Claims Act. In making its argument,
defendant relies on the doctrine of res judicata. We disagree.
“Under the doctrine of res judicata or claim
preclusion, a final judgment on the merits in one action precludes a second
suit based on the same cause of action between the same parties or their
privies.” Whitacre P’ship v.
BioSignia, Inc., 358 N.C. 1, 15, 591 S.E.2d 870, 880 (2004) (internal
quotation marks omitted). “‘The
essential elements of res judicata are: (1) a final judgment on the
merits in a prior suit; (2) an identity of the cause of action in the prior
suit and the present suit; and (3) an identity of parties or their privies in
both suits.’” Branch v. Carolina
Shoe Co., __ N.C. App. __, __, 616 S.E.2d 378, 383 (2005) (quoting Bryant
v. Weyerhaeuser Co., 130 N.C. App. 135, 138, 502 S.E.2d 58, 61 (1998)).
Defendant herein contends that plaintiffs’ civil complaint
for damages for condemnation “asserted the same allegations of negligence found
in their Industrial Commission tort claim.”
“The traditional elements of actionable negligence are the existence of
a legal duty or obligation, breach of that duty, proximate cause and actual
loss or damage.” McMurray v. Surety
Federal Savings & Loan Assoc., 82 N.C. App. 729, 731, 348 S.E.2d 162,
164 (1986).
In the instant case, plaintiffs’ civil complaint did not
allege negligence; accordingly, dismissal of the civil claim does not bar
plaintiffs’ Tort Claims Act claim. In Alt
v. John Umstead Hospital, 125 N.C. App. 193, 198, 479 S.E.2d 800, 804
(1997), defendant argued that summary judgment on plaintiff’s civil claims for
malicious prosecution, false imprisonment and deprivation of due process barred
his Tort Claims Act negligence claim.
This Court disagreed, holding:
Although the
factual allegations underlying the two claims are the same, different issues
are involved. . . . Moreover, . . .
exclusive original jurisdiction of claims against the State or its institutions
and agencies, in which injury is alleged to have occurred as a result of the
negligence of an employee of the State, is vested in the North Carolina
Industrial Commission. N.C. Gen. Stat. §143‑291 et seq.
[(2005)]. Thus, plaintiff’s negligence
claim . . . could not have been adjudicated in the prior proceeding because the
Superior Court had no jurisdiction over a tort claim against the State.
We
find the reasoning of Alt applicable to the instant case, and conclude
that plaintiffs’ claim was not barred by the doctrine of res judicata. This assignment of error is overruled.
_______________________
Finally, defendant argues that, upon its appeal from the
commissioner’s oral ruling denying defendant’s summary judgment motion, all
further proceedings were stayed.
Defendant’s position is based on its interpretation of Industrial
Commission Rule 308, which provides that:
When a case is
appealed to the Full Commission or to the Court of Appeals, all Orders or
Decisions and Orders of a Deputy Commissioner or the Full Commission are stayed
pending appeal.
Defendant,
however, did not appeal from an Order, but from an interlocutory oral ruling
that the commissioner had authority to modify or reverse during the
hearing. See, e.g., State v. McCall,
162 N.C. App. 64, 68, 589 S.E.2d 896, 899 (2004) (“A trial court may change its
ruling on a pre‑trial motion in limine during the presentation of
the evidence.”). Defendant cites no
cases allowing immediate appeal before an order is reduced to writing and filed. Because defendant did not appeal from an
Order or Decision and Order, the proceedings were not stayed. Thus, we have no need to address, as an
alternative basis to evaluate defendant’s contention, the authority of the
Industrial Commission to waive the provisions of Rule 308. This assignment of error is overruled.
We have carefully considered defendant’s remaining assignments of error, and conclude they are either not preserved for appellate review or are without merit. Accordingly, the Decision and Order of the Industrial Commission is
Affirmed.
Judges HUDSON concurs.
Judge TYSON dissents in a separate opinion.
NO.
COA05-609
NORTH CAROLINA
COURT OF APPEALS
Filed: 7 March 2006
DEREK A. PATE and MICHELLE
D. PATE,
Plaintiffs,
v. North
Carolina Industrial Commission
I.C.
File No. TA-17156
N.C. DEPARTMENT OF
TRANSPORTATION,
Defendant.
TYSON, Judge dissenting.
Defendant seeks the review of the North Carolina Industrial
Commission’s (“Commission”) affirmation of Deputy Commissioner Glenn’s decision
to deny defendant’s motion for summary judgment and to award damages to
plaintiffs. The majority’s opinion
grants defendant’s motion to amend the record and affirms the Commission’s
opinion and award. Defendant’s
violations of the North Carolina Rules of Appellate Procedure (“appellate
rules”), warrants dismissal of its appeal.
I respectfully dissent.
I.
Appellate Rules Violations
Defendant failed to comply with the North Carolina Rules of Appellate Procedure in the following ways: (1) to set forth record citations for its assignments of error in violation of N.C. R. App. P. 10(c)(1); (2) to state without argument the basis for the errors assigned in violation of N.C. R. App. P. 10(c)(1); (3) to object to testimony when offered, in violation of N.C. R. App. P. 10(b) (1), which requires, “[i]n order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make;” and (4) to assign error to the admissibility of evidence presented before Deputy Commissioner Glenn in violation of N.C. R. App. P. 10(a), which mandates, “the scope of review is confined to a consideration of those assignments of error set out in the record on appeal.” On 18 November 2005, after defendant and plaintiff filed their appellate briefs and nineteen days prior to oral argument, defendant moved to amend the record due to its failure to assign error in accordance with N.C. R. App. P. 10. The majority’s opinion grants defendant’s motion. Because defendant’s motion also violates our appellate rules, is untimely, and prejudicial to plaintiff, I vote to deny defendant’s motion to amend the record.
Our Supreme Court has stated:
It is not the
role of the appellate courts, however, to create an appeal for an
appellant. As this case illustrates,
the 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.
See Bradshaw v. Stansberry, 164 N.C. 356, 79 S.E. 302
(1913).
Viar
v.
N.C. Dept. of Transp., 359 N.C. 400, 402, 610
S.E.2d 360, 361 (2005).
In Viar, our Supreme Court dismissed the plaintiff’s
appeal due to appellate rules violations.
Id. The plaintiff
violated N.C. R. App. P. 10(c)(1) and 28(b).
Id. Regarding N.C. R.
App. P. 10(c), the plaintiff failed to number separately the assignments of
error “at the conclusion of the record on appeal in short form without
argument.” The plaintiff also violated
N.C. R. App. P. 28(b), which requires, “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” to follow each
question. Id.
II.
Conclusion
“The North Carolina Rules of Appellate Procedure are
mandatory and ‘failure to follow these rules will subject an appeal to
dismissal.’” Id. (quoting Steingress
v. Steingress, 350 N.C. 64, 65, 511 S.E.2d 298, 299 (1999)). Defendant’s late motion to amend is untimely
and prejudicial to plaintiff.
The proper procedure to address defendant’s multiple rule
violations is to dismiss the appeal. It
is unnecessary to reach the merits of defendant’s appeal. Id. (“It is not the role of the
appellate courts, however, to create an appeal for an appellant.”). Consistent with our Supreme Court’s mandate
in Viar, I vote to dismiss defendant’s appeal. Id. I respectfully
dissent.