KEITH LAMONT HILLSMAN,
Plaintiff,
v. Industrial Commission
No. TA-16279
NORTH CAROLINA DEPARTMENT OF
CRIME CONTROL AND PUBLIC
SAFETY,
Defendant.
James E. Rogers for plaintiff-appellee.
Attorney General Roy Cooper, by Special Deputy Attorney
General William H. Borden, for defendant-appellant.
EAGLES, Chief Judge.
Plaintiff filed an action with the North Carolina Industrial
Commission pursuant to the Tort Claims Act, N.C. Gen. Stat. § 143-
291, et seq., alleging that Trooper Edward L. Melvin of the North
Carolina Highway Patrol was negligent in failing to read a National
Crime Information Center (NCIC) report and compare plaintiff's
attributes with those attributes listed for a wanted fugitive,
James Bernard Davis. Plaintiff further alleged that Trooper Melvin
was negligent in contacting plaintiff's employer, which caused
plaintiff to lose his job and suffer emotional distress, among
other things. The relevant facts are as follows: On 21 August 1997, Trooper
Melvin stopped a 1998 Dodge Caravan, driven by plaintiff, for
speeding. Plaintiff did not have his driver's license with him,
but provided Trooper Melvin with his business card, school
identification, and a driver's license number. Trooper Melvin
radioed the information to a telecommunications office in
Greensboro. The operator informed Trooper Melvin that the driver's
license number provided by plaintiff belonged to a Keith Lamont
Hillsman, but the license plate was registered to a different
vehicle. The operator also informed Trooper Melvin that the
driver's true identity may be that of James Bernard Davis, a wanted
fugitive.
Trooper Melvin arrested plaintiff and transported him to the
magistrate's office, where Trooper Melvin completed a fugitive
affidavit and plaintiff was placed under bond. The magistrate had
a copy of the NCIC report providing a description of fugitive James
Bernard Davis; however, Trooper Melvin did not read the report.
Plaintiff was held in jail for two days until his release.
This matter came on for hearing before Deputy Commissioner
George T. Glenn, II, on 8 March 2002. By order filed on 15 March
2002, Deputy Commissioner Glenn denied and dismissed plaintiff's
action on grounds that plaintiff failed to show any negligence on
the part of Trooper Melvin. On appeal and by order filed 5
December 2002, the full Commission reversed the 15 March 2002 order
and reopened the case for the taking of evidence as to plaintiff's
damages. From this order, defendant appeals. A party does not have the right to appeal an interlocutory
order, “unless such order affects some substantial right claimed by
the [party] and will work an injury to him if not corrected before
an appeal from the final judgment.” Johnson v. N.C. Dept. of
Transportation, 70 N.C. App. 784, 785, 321 S.E.2d 20, 20-21 (1984).
Furthermore,
“it is not the duty of this Court to construct arguments
for or find support for appellant's right to appeal from
an interlocutory order; instead, the appellant has the
burden of showing this Court that the order deprives the
appellant of a substantial right which would be
jeopardized absent a review prior to a final
determination on the merits.” Failure to make this
showing subjects an appeal to dismissal.
Rousselo v. Starling, 128 N.C. App. 439, 444, 495 S.E.2d 725, 729
(quoting Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377,
380, 444 S.E.2d 252, 254 (1994))(citation omitted), disc. review
denied, 348 N.C. 74, 505 S.E.2d 876 (1998).
In the instant case, the full Commission reversed the order of
the Deputy Commissioner and reopened the case for the taking of
evidence as to damages. The record does not contain any evidence
that a final order has been filed with the Commission. Moreover,
the parties have failed to address the interlocutory nature of the
appeal. Accordingly, this appeal is dismissed.
Dismissed.
Judges BRYANT and LEVINSON concur.
Report per Rule 30(e).
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