Smith v N.C. Department of Correction
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA11-606 NORTH CAROLINA COURT OF APPEALS Filed: 6 December 2011 STANLEY S. SMITH, Plaintiff, v. North Carolina Industrial Commission I.C. No. TA-20179 N.C. DEPARTMENT OF CORRECTION, Defendant. Appeal by plaintiff from Decision and Order entered March 2011 by the North Carolina Industrial Commission. 15 Heard in the Court of Appeals 7 November 2011. S. Shane Smith, pro se. Attorney General Roy A. Cooper, III, by Associate Attorney General Adrian Dellinger, for the State. STROUD, Judge. Plaintiff appeals a Decision and Order of the Industrial Commission arguing that the monetary damages he recovered were not adequate. For the following reasons, we affirm. I. Background On 6 July 2007, plaintiff, an inmate, filed a claim under the Tort Claims Act in the amount of $14,798.80 by reason of -2the negligent conduct of the employee/agent named here Steve Bailey, Roger Moon, Doug Mitchell, [and] Eddie Ross[.] Plaintiff claimed, On Wednesday, May 25, 2005, I was placed in segregation of Craggy Corr. Center. My personal property was confiscated. Doug Mitchell was the facility superintendent. 6-B: On Thursday, May 26, 2005, I was transported from Craggy. My confiscated property did not transfer with me. 6-C: On Thursday, May 26, 2005, I arrived at Cleveland Corr. Center. Additional items of my personal property were confiscated. Eddie Ross was the facility superintendent. . . . . 6-E: On Wednesday, July 13, 2005, I transferred from Cleveland Corr. Center. My property confiscated by Cleveland did not transfer with me. . . . . 6-H: As of this date, I am still without my confiscated property. Plaintiff s and/or work confiscated product from property the included North Carolina legal research Supreme Court library, retained counsel for post-conviction relief in superior court, clemency and retained motions; two counsel pairs for of administrative New Balance relief athletic for shoes; -3approximately 200 personal photographs; a watch; computer disks; a USB computer disk; approximately 50 audio CDs; ten personal day planners; numerous books; computer software; personal correspondence; and project notebooks. On or about 11 September 2007, defendant filed an answer. On 27 July 2010, the North Carolina Industrial Commission ( Commission ) by Deputy Commissioner, J. Brad Donovan, ordered that plaintiff recover $643.80 from defendant negligence of defendant s agents or employees. due to the On or about 9 August 2010, both plaintiff and defendant appealed. On 15 March 2011, the Full Commission ordered plaintiff recover $643.80 from defendant due employees. to the negligence of Defendant s agents or Plaintiff appeals. II. Oral Argument On or about 30 September 2010, plaintiff requested oral argument with the Commission which was subsequently denied. Plaintiff first contends that the Full Commission erred by not allowing plainti[ff] oral argument. (Original in all caps.) Plaintiff notes that he was born without fingers and toes and thus he experiences extreme difficultly and pain when he must hold a pen or pencil[;] plaintiff concludes that he could have better articulated his claim if oral argument had been allowed. -4Whether to allow oral argument is within the discretion of the Commission. See Adams v. M.A. Hanna Co., 166 N.C. App. 619, 623, 603 S.E.2d 402, 405 (2004) ( The Full Commission, in its discretion, may waive the use of Form 44 and oral argument, and reach its decision based on the record, assignments of error and briefs. ) As plaintiff has not shown or even argued that the Commission abused its discretion, we overrule this argument. See D'Aquisto v. Mission St. Joseph's Health Sys., 198 N.C. App. 674, 677, 680 S.E.2d 249, 252 (2009) ( An abuse of discretion results only where a decision is manifestly unsupported by reason or so arbitrary that it could not have been the result of a reasoned decision. (citation, quotation marks, and ellipses omitted)). III. Decision and Order Plaintiff s remaining four arguments challenge specific findings of fact and a conclusion of law made by the Commission. When considering an appeal from the Industrial Commission under the Tort Claims Act, this 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. Pursuant to N.C. Gen. Stat. ยง 143 293, a claimant may appeal the decision of the Full Commission, but such appeal shall be for errors of law only and findings of fact of the Commission shall be -5conclusive if there is any competent evidence to support them. However, when the Full Commission s findings of fact are insufficient to determine the rights of the parties, the Court may remand to the Industrial Commission for additional findings. This Court s review of the Industrial Commission s conclusions of law is de novo. Phillips v. North Carolina State University, ___ N.C. App. ___, ___, 697 S.E.2d 433, 435 (2010) (citations, quotation marks, and brackets omitted). A. Confiscated Property Returned Plaintiff argues that the Full Commission erred when they ruled tha[t] defendant had returned to plaintiff some of his confiscated contends property. that confiscated [t]he property (Original Record was is ever in all clear: returned caps.) None to Plaintiff of plaintiff s him. However, plaintiff admitted he had signed a document which stated, I certify that I have received the above listed personal property in the condition specified. articles of The document included New Balance[,] obviously a reference to a pair of plaintiff s New Balance athletic shoes which he had noted were confiscated. Accordingly, there was competent evidence before the Commission that some of plaintiff s confiscated property was returned to him. -6B. Value of Property Plaintiff next argues that the Full Commission erred in their calculation[n] property. of the value of (Original in all caps.) plaintiff s confiscated As to the Commission s calculation of damages our Court has stated the general rule [is] . . . Olivetti Corp. v. Ames Business Systems, Inc., 319 N.C. 534, 547 48, 356 S.E.2d 578, 586 (1987) ( As part of its burden, the party seeking damages must show that the amount of damages is based upon a standard that will allow the finder of fact to calculate the amount of damages with reasonable certainty. ). Phillips, ___ N.C. App. at ___, 697 S.E.2d at 437 (2010). Plaintiff admitted that he arrive[d] at these values based upon what they cost at the canteen[,] the price at what it cost [him] to hire the representation that helped [him] get those [legal] [him]. documents[,] and the value things were to Beyond his own testimony, plaintiff failed to provide any evidence of the value of any of his property. plaintiff failed to meet his burden of Accordingly, show[ing] that the amount of damages is based upon a standard that will allow the finder of fact to reasonable certainty. calculate Id. the amount of damages with This argument is thus overruled. As to the value of his property, plaintiff also argues that the Full Commission erred when they ruled th[at] certain items -7of plaintiff s confiscated proper[ty] had no assignable value and that plaintiff shoul[d] not recover for the value of certain items of his confiscated property. (Original in all caps.) But plaintiff himself admits that some of his property had an undeterminable value[;] thus, again plaintiff failed to meet his burden of providing a standard that will allow the finder of fact to certainty. C. calculate Id. the amount of damages with reasonable This argument is overruled. Damage Award Lastly, plaintiff argues that the Full Commission erred in calculating plaintiff. the total damage award (Original in all caps.) that was due to the As plaintiff failed to show that the Commission had erred in the value it assigned to plaintiff s property, we conclude that the Commission s award of damages based upon these findings was proper. overruled. IV. Conclusion For the foregoing reasons, we affirm. AFFIRMED. Chief Judge MARTIN and Judge ERVIN concur. Report per Rule 30(e). This argument is
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