Brunson v. Off. of the Governor Of The State of NC

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. IN THE COURT OF APPEALS OF NORTH CAROLINA No. COA18-571 Filed: 18 December 2018 N.C. Industrial Commission, I.C. No. TA-26224 JONATHAN E. BRUNSON, Plaintiff, v. OFFICE OF THE GOVERNOR OF THE STATE OF NORTH CAROLINA, OFFICE OF THE 12TH JUDICIARY, OFFICE OF THE CLERK OF CUMBERLAND COUNTY, OFFICE OF THE DISTRICT ATTORNEY FOR THE 12 TH PROSECUTORIAL DISTRICT, OFFICE OF THE PUBLIC DEFENDER OF THE 12TH DEFENDER DISTRICT, OFFICE OF THE CUMBERLAND COUNTY SHERIFF, NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, NORTH CAROLINA DEPARTMENT OF SOCIAL SERVICES, NORTH CAROLINA DEPARTMENT OF PUBLIC SAFETY, NORTH CAROLINA DEPARTMENT OF JUSTICE, OFFICE OF THE NORTH CAROLINA GENERAL ASSEMBLY, NORTH CAROLINA DEPARTMENT OF HUMAN RESOURCES, and THE STATE OF NORTH CAROLINA, Defendants. Appeal by Plaintiff from orders entered 13 June and 8 September 2017 by the North Carolina Industrial Commission. Heard in the Court of Appeals 26 November 2018. Jonathan E. Brunson, Plaintiff-Appellant, pro se. Attorney General Joshua H. Stein, by Assistant Attorney General Barry H. Bloch, for Defendants-Appellees. McGEE, Chief Judge. BRUNSON V. OFFICE OF THE GOVERNOR OF THE STATE OF NORTH CAROLINA, ET AL. Opinion of the Court Jonathan E. Brunson (“Plaintiff”) appeals from a 13 June 2017 order dismissing his claims against five county agencies under the North Carolina Tort Claims Act; and from an 8 September 2017 order denying his request for immediate review of the 13 June 2017 order by the full Industrial Commission. Because the 13 June 2017 order determined Plaintiff’s claims as to only five of the thirteen named Defendants, the order is interlocutory. Plaintiff has failed to sufficiently show why he is entitled to an appeal of an interlocutory order; therefore, Plaintiff’s appeal must be dismissed. I. Factual and Procedural History Plaintiff filed a claim under the North Carolina Tort Claims Act, N.C. Gen. Stat. § 143-291 et. seq., on 30 January 2017, alleging that the thirteen above-named Defendants had negligently enacted and enforced N.C. Gen. Stat. § 15A-623(d), which Plaintiff argued was unconstitutional. Plaintiff further alleged that Defendants negligently indicted, tried, sentenced, and confined Plaintiff pursuant to that statute. Plaintiff filed to proceed as an indigent before the North Carolina Industrial Commission on 30 January 2017, pursuant to N.C. Gen. Stat. § 1-110(b) (2017), which states: Whenever a motion to proceed as an indigent is filed pro se by an inmate in the custody of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety, the motion to proceed as an indigent and the proposed complaint shall be presented to any superior court judge of the judicial district. This judge shall -2- BRUNSON V. OFFICE OF THE GOVERNOR OF THE STATE OF NORTH CAROLINA, ET AL. Opinion of the Court determine whether the complaint is frivolous. In the discretion of the court, a frivolous case may be dismissed by order. Special Deputy Commissioner Brian Liebman performed a review for frivolousness and, in the 13 June 2017 order, found that the Industrial Commission did not have jurisdiction over five of the named Defendants: the Office of the Twelfth Judicial District, the Office of the Clerk of Cumberland County, the Office of the District Attorney for the Twelfth Prosecutorial District, the Office of the Public Defender for the Twelfth Defender District, and the Cumberland County Sheriff. The 13 June 2017 order held that the Tort Claims Act confers jurisdiction to the Industrial Commission to hear negligence claims against departments, institutions, and agencies of the State, but does not confer jurisdiction over claims against county agencies. Special Deputy Commissioner Liebman made no determination as to whether Plaintiff’s claims against the five county agencies were frivolous, but found that the Industrial Commission did not have jurisdiction to hear Plaintiff’s claims against the five county agencies and dismissed those claims with prejudice. Plaintiff’s claims against the remaining eight Defendants were determined not to be frivolous. Plaintiff appealed to the full Industrial Commission. The Industrial Commission acknowledged Plaintiff’s Notice of Appeal in a letter dated 6 July 2017. In that letter, Plaintiff was invited to submit arguments -3- BRUNSON V. OFFICE OF THE GOVERNOR OF THE STATE OF NORTH CAROLINA, ET AL. Opinion of the Court and supporting authority within ten days showing why the appeal “implicates a substantial right that warrants immediate review by the Full Commission.” Plaintiff filed a statement in support of his right to an immediate appeal on 18 July 2017. However, Plaintiff’s statement is not contained within the record on appeal. Defendants filed a response on 21 August 2017 and Defendants’ response also is not contained within the record on appeal. Commissioner Christopher C. Loutit entered an order on 8 September 2017 that deemed Defendants’ response to Plaintiff’s statement was not timely. The 8 September 2017 order also held that the 13 June 2017 order was interlocutory and that Plaintiff had failed to “set forth reasons or legal authority for why his appeal implicate[d] a substantial right warranting immediate review by the Full Commission.” Therefore, Plaintiff’s request for immediate appeal was denied. Plaintiff appeals. II. Analysis Plaintiff argues that the Industrial Commission had jurisdiction under N.C. Gen. Stat. § 143-291(a) (2017) to hear his claims against the five county agencies and erred in dismissing his claims against those Defendants in its 13 June 2017 order. Under the Tort Claims Act, either party may appeal from the decision of the [Industrial] Commission to the Court of Appeals. Such appeal 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 -4- BRUNSON V. OFFICE OF THE GOVERNOR OF THE STATE OF NORTH CAROLINA, ET AL. Opinion of the Court the [Industrial] Commission shall be conclusive if there is any competent evidence to support them. N.C. Gen. Stat. § 143-293 (2017). “‘Parties have a right to appeal any final judgment of a superior court. Thus, an appeal of right arises only from a final order or decision of the Industrial Commission.’” Cash v. Lincare Holdings, 181 N.C. App. 259, 263, 639 S.E.2d 9, 13 (2007) (quoting Ratchford v. C.C. Mangum, Inc., 150 N.C. App. 197, 199, 564 S.E.2d 245, 247 (2002)). An order is not final if it fails to determine the entire controversy as to all the parties. Veazey v. Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381, reh'g denied, 232 N.C. 744, 59 S.E.2d 429-30 (1950). However, immediate review of an interlocutory decision is proper where it affects a substantial right. Cash, 181 N.C. App. at 263, 639 S.E.2d at 13. The Industrial Commission’s 13 June 2017 order was clearly an interlocutory order as it did not dispose of Plaintiff’s claims against all of the named Defendants. See Veazey, 231 N.C. at 361-62, 57 S.E.2d at 381. “[I]t is the appellant’s burden to present appropriate grounds for this Court’s acceptance of an interlocutory appeal and our Court’s responsibility to review those grounds.” Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253 (1994). Plaintiff has failed to argue that his appeal of the 13 June 2017 order affects a substantial right. Similarly, the Industrial Commission’s 8 September 2017 order was interlocutory as it considered only whether Plaintiff was entitled to an immediate appeal of the 13 June 2017 order. Plaintiff also failed to argue that his appeal of the -5- BRUNSON V. OFFICE OF THE GOVERNOR OF THE STATE OF NORTH CAROLINA, ET AL. Opinion of the Court 8 September 2017 order would affect a substantial right. Instead, Plaintiff’s brief focused exclusively on the merits of his appeal. Because Plaintiff failed to meet his burden to present appropriate grounds for this Court to review an interlocutory order, Plaintiff’s appeal is dismissed. DISMISSED. Judges HUNTER, JR. and INMAN concur. Report per Rule 30(e). -6-

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