The Industrial Commission did not have jurisdiction to rule on attorney fees for plaintiff in
an amended order filed after the State gave notice of appeal from the original Tort Claims order.
An appeal to the Court of Appeals divests the Industrial Commission of jurisdiction to issue opinions
and awards; even though an appeal is not perfected until docketed in the Court of Appeals, perfection
relates back to the notice of appeal.
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 andorder 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., 165 N.C. App. 721, 600 S.E.2d 473 (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 ofjurisdiction 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.
*** Converted from WordPerfect ***