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NO. COA03-1409
NORTH CAROLINA COURT OF APPEALS
Filed: 17 August 2004
PAUL E. SPRINKLE and
CARLA JONES (now SPRINKLE),
Plaintiffs,
v. North Carolina Industrial Commission
I.C. File No. TA-16249
NORTH CAROLINA WILDLIFE
RESOURCES COMMISSION,
Defendant
Appeal
by plaintiffs from decision and order on 12 June 2003 by the North Carolina Industrial
Commission. Heard in the Court of Appeals 17 March 2004.
Parker,
Poe, Adams & Bernstein L.L.P., by R. Bruce Thompson II, for plaintiff
appellants.
Attorney
General Roy Cooper, by Special Deputy Attorney General William H. Borden, for
the State appellee.
McCULLOUGH,
Judge.
The
issues addressed herein are before this Court in the following posture: The
claim at issue in this case was brought by Paul Sprinkle and his wife Carla
Jones (“plaintiffs” when referred to collectively) under the North Carolina
Tort Claims Act, N.C. Gen. Stat. §§143-291, et seq. (2003). The case was
heard before Deputy Commissioner Lorrie L. Dollar of the Industrial Commission
on 6 September 2001. Commissioner Dollar filed a decision and order on 10 May
2002 finding the State liable and awarding plaintiffs $31,007.08 in damages. On
7 January 2003, the Full Commission filed a decision and award affirming the
decision of the Deputy Commissioner and additionally awarding attorney’s fees.
The State filed a notice of appeal on 10 February 2003. The issues on appeal in
that case are disposed in Sprinkle v. N.C. Wildlife Resources Comm., ____
N.C. App. ____, ____ S.E.2d ____ (2004) (No. COA03-797), filed the same day as
this case. The Full Commission filed an amended decision and order on 12 June
2003 denying plaintiffs’ motion for attorney’s fees. On 7 July 2003, plaintiffs
filed a notice of appeal to the amended decision of the Industrial Commission
denying plaintiffs’ attorney’s fees.
An
appeal to this Court divests the Industrial Commission of jurisdiction to issue
opinions and awards. N.C. Gen. Stat. §1-294 (2003); Andrews v. Fulcher Tire
Sales and Service, 120 N.C. App. 602, 606-07, 463 S.E.2d 425, 428 (1995).
Though an appeal is not perfected until docketed in this Court, perfection
relates back to the time that notice of appeal is given. Woodard v. Local
Governmental Employees’ Retirement Sys., 110 N.C. App. 83, 87, 428 S.E.2d
849, 851 (1993).
In
the instant case, the Commission filed a decision and award on 7 January 2003.
The State gave notice of appeal of that decision and award, which was received
by the Commission on 10 February 2003. At that point, the Commission was
divested of jurisdiction in the matter. Nevertheless, on 12 June 2003, the
Commission filed an amended award even though the appeal of the first order was
still pending. Therefore, the amended decision was issued without jurisdiction,
and is hereby vacated.
The
Commission’s amended decision and award filed 12 June 2003 is hereby vacated.
Judges
WYNN and ELMORE concur.