*1 APPEALS COURT OF IN THE v. DEP’T OF TRANSP. PATE N.C. (2006)]
[176 PATE, OF N.C. DEPARTMENT MICHELLE D. Plaintiffs DEREK A. PATE TRANSPORTATION, Defendant No. COA05-609 2006) (Filed 7 March appeal of review Claims Act— 1. Tort —standard full Industrial appeal from the of review an The standard is for errors under the Tort Claims Act decision Commission’s ordinary as in same terms and conditions law under the any competent if actions, findings are conclusive there and the support evidence to them. preservation of is- Act— Appeal Error; Tort Claims
2. assignment from condemnation error —distinction sues — not error meant that it did assign to Defendant’s failure question N.C.G.S. of whether preserve appellate review the remedy arising from in an action provides the sole § 136-111 Furthermore, pipe. drainage undersized flooding caused damages for seeking con- actions 136-111addresses N.C.G.S. сlaims. governs negligence demnation, while the Tort Claims Act appealability facto denial” Appeal Error— —“de ruling authority appeal before motion —no “de authority right appeal from a support a There is no not been motion which had facto denial” of authority supporting right upon. no ruled There is ruling entered. been heard or befоre a motion has alleging Claims Act— civil action 4. Tort —no judicata res allege negli- complaint which did not of a civil The dismissal pursuant the Tort Claims Act under gence did not bar claim judicata. res interlocutory subject oral Claims Act—
5. Tort — stay change during after —no interlocutory ruling that an Industrial appeal from an oral An modify dur- or reverse deputy commissioner could Commission proceedings. stay hearing did not further ing the Tyson dissenting. Judge
IN THE OF COURT APPEALS
PATE v. N.C. DEP’T OF TRANSP. *2 Appeal by defendant from Decision and Order entered 17 Feb- ruary by the North Carolina Industrial Heard in Commission. the Appeals Court of December
Hopf Higley, P.A., by Hopf, plaintiff-appellee. & James F. for Attorney Roy Cooper, by Attorney General Assistant General Majmundar, defendant-appellant. Amar for LEVINSON,Judge. Department
Defеndant North Transportation Carolina of (NCDOT) appeals a and decision order of the Industrial Commis- sion, affirming deputy with modification a commissioner’s order plaintiffs. awarding damages to We affirm.
Record following: plaintiffs evidence establishes the In 1999 Stoney Derek and Michelle Pate lived at 2738 Brook Drive on State 1217,Farmville, County, Rd. in Pitt North Carolina. A buried drainage pipe ran property under their and beneath the road. Maintenance of both drainage pipe, including State Rd. 1217and of the determination appropriate pipe, of the responsibility. diameter for the is defendant’s Although guidelines proper defendant’s indicated that the diameter forty-two drainage pipe forty-eight inches, for this was оf as using eighteen pipe. defendant was inch diameter September Floyd passed through Farmville, 1999 Hurricane yard plaintiffs’ were flooded. house Over six inches of stand- ing water plaintiffs’ home, flooded the interior of at causing least $103,000 damages. presented in Plaintiffs at unrebutted evidence flooding inadequate capacity that the was caused eighteen pipe, replaced inch drainage diameter which defendant forty-eight a pipe. with inch diameter August plaintiffs complaint Superior
On 30 a in filed County, Carolina, seeking damages Court of alleged Pitt North wrongful property, taking arising “inverse condemnation” or of their flooding property. from defendant’s role of their Defendant plaintiffs’ a complaint filed motion for dismissal on several grounds, including (lack N.C. 12(b) Rules Civil Procedure Rule subject jurisdiction), 12(b)(6) (failure matter Rule to state claim relief), immunity; the doctrine of sovereign Statute of Repose. granted On 13 October 2003 the trial court entering order that did not indicate basis for the court’s decision. OF APPEALS IN THE COURT
PATE v. N.C. BEP’T OF TRANSP. setting an affidavit out a September plaintiffs filed 7On claim, Gen. Tort Claims Aсt pursuant to the negligence claim plaintiffs’ affidavit 143-291, seq. Many alleged et facts complaint; however, unlike superior their were also set out in alleged negligence complaint, Tort Claims Act action that defendant moved for employee. NCDOT On 17 October 2003 named summary plaintiffs’ Tort Claims Act claim. Defendant judgment plaintiffs’ claim in the su- that the trial court’s dismissal asserted perior a “final on the merits” court constituted claim under the doctrine of claim, barred the Tort Claims Act which judicata. res *3 hearing Industrial scheduled for before
Plaintiffs’ claim was days George Two before Deputy Commissioner Glenn. Commission appealed Commission, Full on the defendant the hearing, the summary judg- to rule on its grounds that the commissioner’s failure hearing a “de denial” of bеfore the was ment motion scheduled facto it entitled to an immediate because motion, and that was right. denial” affected substantial “defacto by Deputy was heard Commis- On 5 November 2003 case merits, commissioner hearing Glenn. Before the on the sioner orally and defendant denied defendant’s stripped argued its its Defendant then that announced pаrtic- jurisdiction case, over the and refused to the commissioner of Consequently, evidence was unchal- ipate hearing. in the by questioned the Commissioner about the wisdom of lenged. When merits, defendant con- part take in the refusal to against defendant, that, were resolved procedural if the issues ceded lose, Your Honor.” “[w]e issued a Decision and
On December 2003 the commissioner appealed to the Full plaintiffs, and defendant Order favor of February affirmed the On 2005 the Full Commission Commission. Defendant has deputy opinion with modifications. commissioner’s Order, timely filed the Record on appealed Decision and from this seeking Appeal. filed a motion On 18 November 2005 defendant page to the Appeal adding record citations amend Record on motion, and con- granted of Error. We have Assignments properly were procedural issues raised clude that the adequately assigned as error. Our preserved review and are now pertaining to opinion in does not address issues this case substantive have no need to reach the issue of proof negligence, and thus we preserved such properly or briefed issues. whether defendant IN THE OF COURT APPEALS
PATE v. N.C. DEP’T OF TRANSP.
Standard of Review
[1]
Defendant
appeals
from
Opinion
and Award under the Tort
Act,
seq.
Claims
N.C. Gen.
et
143-291(a),
Stat. 143-291
Under §
jurisdiction
Industrial Commission has
over
claims
against the State. The Commission is charged
determining
with
“whether or not each individual claim
negli
arose as
result of the
gence
аny officer,
involuntary
employee,
or agent
servant
acting
scope
State
office, employment,
while
within the
of his
service,
agency
authority,
or
under circumstances where the State of North
Carolina,
private
if a
person, would be liable to the claimant in
accordance
with the laws North Carolina.” “Because an action in
against
tort
departments, institutions,
the State and its
agencies
jurisdiction
is within the
original
exclusive and
of the Industrial
Commission, a
against
jurisdic
tort action
the State is not within the
Superior
tion of the
Court.”
Authority,
Guthrie
State Ports
539-40,
S.E.2d 618,
628 (1983).
Regarding
procedural
governing
pro
rules
Tort Claims Act
ceedings, “the Commission is
‘adopt
authorized to
rules
reg
such
may,
ulations
Commission,
necessary
as
the discretion of the
be
carry
purpose
out the
and intent of
Tort Claims
N.C. Gen.
[the
Act].’
[(2005)]. [However,]
§ 143-300
the North Carolina Rules of Civil
apply in
Commission,
Procedure
tort claims before the
to the extent
that
Act,
such rules are not inconsistent with the Tort Claims
in which
*4
case the Tort
143-300;
Claims Act controls. N.C.
§
Gen. Stat.
4 NCAC
10B.0201(a).”Doe 1
Valley
Ctr.,
v. Swannanoa
Youth Dev.
163 N.C.
App. 136, 141,
715, 718-19,
stay
592 S.E.2d
denied,
disc. review and
376,
(2004).
“The standard of review for an from the Full Commission’s decision under the Tort only Claims Act ‘shall be for errors lawof under the same terms govern appeals ordinary and conditions as actions, findings and the of of fact the Commission shall con be any competent support clusive if there is evidence to them.’ N.C. Gen. [(2005)]. long competent § 143-293 As as there evidеnce in support decision, of the Commission’s it does not matter that there is contrary supporting evidence County a finding.” Simmons v. Columbus Educ., App. 725, 727-28, 69, Bd. 171 N.C. 615 S.E.2d of (2005) (citing Dept. Transportation, Simmons v. N.C. 128 N.C. of App. 402, 405, 793 (1998)). considering S.E.2d “[W]hen appeal Commission, questions: from the our Court is limited to two (1) competent support whether evidence exists to the Commission’s findings fact, (2) findings whether the of fаct Commission’s APPEALS IN THE COURT OF OF TJRANSP. v. N.C. DEP’T
PATE Simmons, 171 N.C. justify of law and decision.” its conclusions 727-28, at 72. at 615 S.E.2d by affirm the Full Commission erred argues first that [2] Defendant commissioner, on the deputy Award
ing Opinion and plaintiffs’ “sole 136-111 affords Gen. Stat. § that N.C. grounds improper[.]” law tort action remedy, rendering their common error, did not as defendant However, by failing assign this issue scope App. 10(a) (“[T]he P. See N.C.R. appellate for review. preserve it assign of those a consideration appeal on is confined to of review appeal in with this accordance set out the record ments undisputed § that G.S. 136-111 addresses Further, it 10.”). Rule condemnation, Act while the Tort Claims damages for seeking actions negligence authority holding that claims. Defendant cites no governs clаims, and we find none. G.S. 136-111bars deputy commissioner lacked that the next asserts [3] Defendant on the merits of jurisdiction to the 5 November conduct appeal filed claim, on defendant’s notice plaintiffs’ based hearing, days pur before the appeal, This filed two November 2003. denial” describes as from what defendant ported defacto summary judgment summary motion. This motion of its repeatedly hearing. Defendant asserts was filed two weeks before summary on its motion deputy “refused” to rule commissioner its of the “de denial” sum judgment, argues that facto deputy the case from the commissioner’s mary judgment removed authority supporting the no However, cites jurisdiction. defendant entered, been heard or appeal before motion has right to reject argument. this we find none. We erred argues that the Industrial Commission next [4] Defendant asserting that dismissal judgment, denying motion for its adjudication on the superior complaint was “an plaintiffs’ civil claim plaintiffs’ negligence that barred claim merits” relies making argument, Tort Claims Act. under the judicata. disagree. We on the doctrine of res *5 preclusion, final judicata or claim doctrine of res “Under the precludes based a second suit one action judgment on the merits in priv- parties or the same their of action between on the same cause 1, 15, S.E.2d Inc., 591 P’ship BioSignia, 358 N.C. v. Whitacre ies.” “ ‘The omitted). essential quotation marks 870, (internal (2004) IN THE COURT OF APPEALS v.
PATE N.C. DEP’T OF TRANSP. judicata elements (1) of res are: a final judgment on the merits in a prior suit; (2) identity an of the prior cause action suit and present suit; identity parties privies or their in both ” suits.’ Branch Co., 518, v. Carolina App. 511, Shoe 172 N.C. 378, S.E.2d (2005) (quoting Bryant Weyerhaeuser Co., v. 130 N.C. App. 135, 138, 58, 502 S.E.2d 61 (1998)). plaintiffs’ complaint
Defendant herein contends that civil damages for condemnation allegations negli- “asserted same gence found in their Industrial Commission tort claim.” “The tradi- tionаl elements of negligence actionable are legal the existence of a duty or obligation, duty, proximate breach that cause and actual damage.” McMurray loss or Surety Savings & Federal Loan Assoc., App. 729, 731, 82 N.C. 162, 348 S.E.2d (1986).
In case, plaintiffs’ the instant complaint allege negli- did not gence; accordingly, plaintiffs’ dismissal of the civil claim does not bar Tort Claims Act claim. Alt Hospital, v. John Umstead 125 N.C. App. 193, 198, 800, 479 S.E.2d (1997), argued that sum- mary plaintiff’s judgment on civil claims for prosecution, malicious imprisonment deprivation false process of due barred his Tort Claims negligence Act claim. disagreed, holding: This Court
Although allegations the factual underlying the two claims are same, different issues are involved. . . . Moreover, . . . jurisdiction еxclusive original against claims the State or its agencies, institutions and injury alleged in which to have occurred as a result of employee of an State, is vested the North Carolina Industrial Commission. N.C. seq. Gen. [(2005)]. 143-291 et Thus, plaintiff’s negligence adjudicated claim ... prior could have been in the proceeding Superior jurisdiction because the Court had no over tort claim against the State. reasoning applicable
We find case, of Alt to the instant and con- clude that claim was judi- not barred doctrine res assignment cata. This of error is overruled.
[5] Finally, defendant argues that, upon its from the com oral ruling missioner’s denying proceedings stayed. position all further were Defendant’s interpretation
based of Industrial Commission Rule which provides that: *6 IN OF APPEALS THE COURT DEP’T OF TRANSP.
PATE v. N.C. App. (2006)] [176 or Commission to Court appealed is to the Full When case Deputy Com- and Orders of Appeals, all or Decisions Orders stayed appeal. pending Full Commission are missioner or the an inter- Order, but from Defendant, however, did not from authority modify to or ruling commissioner had locutory oral that the McCall, App. 64, hearing. Sеe, e.g., 162N.C. State during reverse may change (“Atrial (2004) 68, 589 S.E.2d of the evi- during presentation pre-trial in limine motion allowing immediate before cites no cases dence.”). Defendant not writing Because defendant did to and filed. an order is reduced proceedings Order, the were or Decision and appeal from an Order stayed. address, to as an alternative basis Thus, have no need not we authority contention, the Industrial evaluate defendant’s to assignment provisions 308. This waive the of Rule Commission to overruled. remaining assignments carefully We have considered defendant’s appellate they preserved error, and are either conclude Accordingly, the Decision and Order are without merit. review or Industriаl Commission Affirmed.
Judges HUDSONconcurs. opinion. separate in a dissents
Judge TYSON dissenting. TYSON,Judge Carolina Industrial Com- the review of North
Defendant seeks Deputy affirmation of Commissioner (“Commission”) mission’s deny to defendant’s motion Glenn’s decision majority’s opinion plaintiffs. grants The damages to award the record and affirms motion amend violations of the North opinion award. Defendant’s Commission’s (“appellate rules”), warrants Apрellate Procedure Carolina Rules respectfully I dissent. dismissal of its Appellate Rules Violations I. comply Carolina Rules of with the North
Defendant failed ways: set forth record following Appellate Procedure App. R. P. of N.C. of error in violation assignments for its citations IN THE COURT OF APPEALS
PATE v. N.C. DEP’T OF TRANSP. (2) to 10(c)(1); argument state without the basis for the errors object R. assigned 10(c)(1); (3) in violation of N.C. P. to testi- *7 mony offered, R. App. 10(b) (1), when in violation of N.C. P. which requires, preserve appellate review, question order to “[i]n party presented timely objec- have request, must to the trial court a specific tion or the stating grounds party for the the make;” desired the court to and to assign to error the admissibil- ity presented Deputy of evidence before Commissioner Glenn in vio- R. App. 10(a), mandates, scope lation of N.C. P. which “the of review is to a assignments confined consideration of in those error set out appeal.” record 2005,
On plaintiff 18 November after defendant and their filed appellate days prior briefs and nineteen argument, to oral moved to amend the record assign due tо failure to App. majority’s opinion accordance with N.C. R. P. The grants defendant’s motion. Because our defendant’s motion also violates appellate rules, untimely, prejudicial deny plaintiff, is and I vote to defendant’s motion to amend the record. Supreme
Our has Court stated: appellate courts, It is not the however, role of an create appeal appellant. illustrates, for an As this case Rules Appellate consistently otherwise, applied; Procedure must be meaningless, appellee Rules become and an is left without notice upon appellate might of the basis which an See rule. 356, Stansberry, v. 302 (1913). Bradshaw N.C. 79 S.E. Dept. Transp., 402, 360, Viar N.C. N.C. 400, v. 610 S.E.2d 361 (2005). Viar, Supreme plaintiff’s appеal our Court dismissed the due appellate plaintiff App. rules Id. The N.C. R. P. violations. violated 10(c)(1) 28(b). Regarding App. 10(c), plaintiff Id. N.C. R. P. separately assignments failed to number of error “at the conclu- appeal argument.” sion of the record on form The short without plaintiff 28(b), requires, also R. violated N.C. P. which “a refer- assignments pertinent question, ence to the of еrror to the identified they pages appear printed their numbers and at which in the appeal” question. record on to follow each Id.
II. Conclusion Appellate “The North Carolina Rules of are Procedure manda- tory subject ‘failure will an to follow these rules to dis- THE OF APPEALS IN COURT v.
STATE LOPEZ ” 64, 65, Steingress, (quoting Steingress Id. missal.’ untimely is amend (1999)). Defendant’s late S.E.2d motion.to plaintiff. prеjudicial to multiple rule viola- proper procedure address defendant’s The unnecessary to reach the merits It tions is to dismiss appellate courts, how- (“It not the appeal. Id. role defendant’s appellant.”). with our ever, for an Consistent to create Viar, mandate in I vote dismiss Supreme Court’s respectfully I appeal. Id. dissent. LOPEZ, AKA JARDIEL ALVAREZand OF NORTH CAROLINA v. JAIME
STATE SANCHEZ, AKA GENARIO HOLGIN JOHNNY AHABREHAN *8 No. COA05-333 (Filеd 2006) 7 March sufficiency Drugs— conspiracy evidence 1. traffic — in charges trafficking There was sufficient evidence defendant had conspiracy to traffic where neither heroin and premises refrigerator which a contain- exclusive control incriminating cir- shipped, but sufficient other ing heroin was provide knowledge evidence of were shown to сumstances possession. constructive instructions—underlying conspiracy Drugs—
2. traffic — crime named conspiracy plain prosecution
There was no the trial court’s instructions traffic in heroin where a review of alleged to be specifically named crime reveals that the object contrary to conspiracy, defendant-Sanchez’s contention on trafficking Drugs— of illicit substance — testi- — awareness erronеously mony presented denied — instruction plain traffick-
There was error and defendant convicted that he to a new trial where he testified ing in heroin was entitled party had refrigerator a third of the heroin was aware he receive, properly requested an instruction that paid him he sub- only refrigerator if he contained illicit guilty was knew stance, he did not receive that instruction.