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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
DEREK A. PATE and MICHELLE D. PATE, Plaintiffs, v. N.C.
DEPARTMENT OF TRANSPORTATION, Defendant
Filed: 7 March 2006
1. Tort Claims Act_appeal_standard of review
The standard of review for an appeal from the full Industrial Commission's decision
under the Tort Claims Act is for errors of law under the same terms and conditions as in ordinary
civil actions, and the findings are conclusive if there is any competent evidence to support them.
2. Appeal and Error; Tort Claims Act_preservation of issues_assignment of
error_distinction from condemnation
Defendant's failure to assign error meant that it did not preserve for appellate review the
question of whether N.C.G.S. § 136-111 provides the sole remedy in an action arising from
flooding caused by an undersized drainage pipe. Furthermore, N.C.G.S. § 136-111 addresses
actions seeking damages for condemnation, while the Tort Claims Act governs negligence
3. Appeal and Error_appealability--de facto denial of motion_no authority to appeal
There is no authority to support a right of appeal from a de facto denial of a summary
judgment motion which had not been ruled upon. There is no authority supporting the right to
appeal before a motion has been heard or a ruling entered.
4. Tort Claims Act_civil action not alleging negligence_no res judicata
The dismissal of a civil complaint which did not allege negligence did not bar a claim
pursuant to the Tort Claims Act under res judicata.
5. Tort Claims Act_interlocutory oral ruling_subject to change during hearing_no stay
An appeal from an interlocutory oral ruling that an Industrial Commission deputy
commissioner could modify or reverse during the hearing did not stay further proceedings.
Judge Tyson dissenting.
Appeal by defendant from Decision and Order entered 17
February 2005 by the North Carolina Industrial Commission. Heard
in the Court of Appeals 8 December 2005.
Hopf & Higley, P.A., by James F. Hopf, for plaintiff-appellee.
Attorney General Roy Cooper, by Assistant Attorney General
Amar Majmundar, for defendant-appellant.
Defendant North Carolina Department of Transportation (NCDOT)
appeals a decision and order of the Industrial Commission,
affirming with modification a deputy commissioner's order awarding
damages to plaintiffs. We affirm.
Record evidence establishes the following: In 1999 plaintiffs
Derek and Michelle Pate lived at 2738 Stoney Brook Drive on State
Rd. 1217, Farmville, in Pitt County, North Carolina. A buried
drainage pipe ran under their property and beneath the road.
Maintenance of both State Rd. 1217 and of the drainage pipe,
including determination of the appropriate diameter for the pipe,
is defendant's responsibility. Although defendant's guidelines
indicated that the proper diameter for this drainage pipe was
forty-two to forty-eight inches, as of 1999 defendant was using an
eighteen inch diameter pipe.
In September 1999 Hurricane Floyd passed through Farmville,
and plaintiffs' yard and house were flooded. Over six inches of
standing water flooded the interior of plaintiffs' home, causing at
least $103,000 in damages. Plaintiffs presented unrebutted
evidence at the hearing that the flooding was caused by the
inadequate capacity of the eighteen inch diameter drainage pipe,
which defendant replaced with a forty-eight inch diameter pipe.
On 30 August 2001 plaintiffs filed a complaint in the Superior
Court of Pitt County, North Carolina, seeking damages for allegedinverse condemnation or wrongful taking of their property,
arising from defendant's role in the flooding of their property.
Defendant filed a motion for dismissal of plaintiffs' civil
complaint on several grounds, including N.C. Rules of Civil
Procedure Rule 12(b) (lack of subject matter jurisdiction), Rule
12(b)(6) (failure to state a claim for relief), the doctrine of
sovereign immunity; and the Statute of Repose. On 13 October 2003
the trial court granted defendant's motion, entering a summary
order that did not indicate the basis for the court's decision.
On 7 September 2001 plaintiffs filed an affidavit setting out
a negligence claim pursuant to the Tort Claims Act claim, N.C. Gen.
Stat. § 143-291, et seq. Many of the facts alleged in plaintiffs'
affidavit were also set out in their superior court complaint;
however, unlike that complaint, the Tort Claims Act action alleged
negligence by a named NCDOT employee. On 17 October 2003 defendant
moved for summary judgment on plaintiffs' Tort Claims Act claim.
Defendant asserted that the trial court's dismissal of plaintiffs'
claim in the superior court constituted a final judgment on the
merits of plaintiffs' claim, which barred the Tort Claims Act
claim under the doctrine of res judicata.
Plaintiffs' claim was scheduled for hearing before Industrial
Commission Deputy Commissioner George Glenn. Two days before the
hearing, defendant appealed to the Full Commission, on the grounds
that the commissioner's failure to rule on its summary judgment
motion before the scheduled hearing was a de facto denial of themotion, and that it was entitled to an immediate appeal because the
de facto denial affected a substantial right.
On 5 November 2003 the case was heard by Deputy Commissioner
Glenn. Before the hearing on the merits, the commissioner orally
denied defendant's summary judgment motion, and defendant announced
its appeal. Defendant then argued that its appeal stripped the
commissioner of jurisdiction over the case, and refused to
participate in the hearing. Consequently, plaintiffs' evidence was
unchallenged. When questioned by the Commissioner about the wisdom
of its refusal to take part in the hearing on the merits, defendant
conceded that, if the procedural issues were resolved against
defendant, [w]e lose, Your Honor.
On 22 December 2003 the commissioner issued a Decision and
Order in favor of plaintiffs, and defendant appealed to the Full
Commission. On 17 February 2005 the Full Commission affirmed the
deputy commissioner's opinion with modifications. Defendant has
appealed from this Decision and Order, and timely filed the Record
on Appeal. On 18 November 2005 defendant filed a motion seeking to
amend the Record on Appeal by adding record page citations to the
Assignments of Error. We have granted defendant's motion, and
conclude that the procedural issues raised by defendant were
properly preserved for review and are now adequately assigned as
error. Our opinion in this case does not address substantive
issues pertaining to proof of negligence, and thus we have no need
to reach the issue of whether defendant properly preserved or
briefed such issues.
Standard of Review
 Defendant appeals from an Opinion and Award under the Tort
Claims Act, N.C. Gen. Stat. § 143-291 et seq. Under § 143-291(a),
the Industrial Commission has jurisdiction over negligence claims
against the State. The Commission is charged with determining
whether or not each individual claim arose as a result of the
negligence of any officer, employee, involuntary servant or agent
of the State while acting within the scope of his office,
employment, service, agency or authority, under circumstances where
the State of North Carolina, if a private person, would be liable
to the claimant in accordance with the laws of North Carolina.
Because an action in tort against the State and its departments,
institutions, and agencies is within the exclusive and original
jurisdiction of the Industrial Commission, a tort action against
the State is not within the jurisdiction of the Superior Court.
Guthrie v. State Ports Authority, 307 N.C. 522, 539-40, 299 S.E.2d
618, 628 (1983).
Regarding the procedural rules governing Tort Claims Act
proceedings, the Commission is authorized to 'adopt such rules and
regulations as may, in the discretion of the Commission, be
necessary to carry out the purpose and intent of [the Tort Claims
Act].' N.C. Gen. Stat. § 143-300 [(2005)]. [However,] the North
Carolina Rules of Civil Procedure apply in tort claims before the
Commission, to the extent that such rules are not inconsistent with
the Tort Claims Act, in which case the Tort Claims Act controls.
N.C. Gen. Stat. § 143-300; 4 NCAC 10B.0201(a). Doe 1 v. SwannanoaValley Youth Dev. Ctr., 163 N.C. App. 136, 141, 592 S.E.2d 715,
718-19, disc. review and stay denied, 358 N.C. 376, 596 S.E.2d 813
The standard of review for an appeal from the Full
Commission's decision under the Tort Claims Act '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 the
Commission shall be conclusive if there is any competent evidence
to support them.' N.C. Gen. Stat. § 143-293 [(2005)]. As long as
there is competent evidence in support of the Commission's
decision, it does not matter that there is evidence supporting a
contrary finding. Simmons v. Columbus County Bd. of Educ., 171
N.C. App. 725, 727-28, 615 S.E.2d 69, 72 (2005) (citing Simmons v.
N.C. Dept. of Transportation, 128 N.C. App. 402, 405, 496 S.E.2d
790, 793 (1998)). [W]hen considering an appeal from the
Commission, our 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. Simmons, 171 N.C. App. at 727-
28, 615 S.E.2d at 72.
 Defendant argues first that the Full Commission erred by
affirming the Opinion and Award by the deputy commissioner, on the
grounds that N.C. Gen. Stat. § 136-111 (2005) affords plaintiffs'
sole remedy, rendering their common law tort action improper[.]
However, by failing to assign this issue as error, defendant didnot preserve it for appellate review. See N.C.R. App. P. 10(a)
([T]he scope of review on appeal is confined to a consideration of
those assignments of error set out in the record on appeal in
accordance with this Rule 10.). Further, it is undisputed that
G.S. § 136-111 addresses actions seeking damages for condemnation,
while the Tort Claims Act governs negligence claims. Defendant
cites no authority holding that G.S. § 136-111 bars negligence
claims, and we find none.
 Defendant next asserts that the deputy commissioner lacked
jurisdiction to conduct the 5 November 2003 hearing on the merits
of plaintiffs' claim, based on defendant's notice of appeal filed
3 November 2003. This appeal, filed two days before the hearing,
purported to appeal from what defendant describes as a de facto
denial of its summary judgment motion. This motion for summary
judgment was filed two weeks before the hearing. Defendant
repeatedly asserts the deputy commissioner refused to rule on its
motion for summary judgment, and argues that its appeal of the de
facto denial of summary judgment removed the case from the deputy
commissioner's jurisdiction. However, defendant cites no authority
supporting the right to appeal before a motion has been heard or a
ruling entered, and we find none. We reject this argument.
 Defendant next argues that the Industrial Commission erred
by denying its motion for summary judgment, asserting that
dismissal of plaintiffs' civil superior court complaint was anadjudication on the merits of plaintiffs' claim that barred
plaintiffs' negligence claim under the Tort Claims Act. In making
its argument, defendant relies on the doctrine of res judicata. We
Under the doctrine of res judicata or claim preclusion, a
final judgment on the merits in one action precludes a second suit
based on the same cause of action between the same parties or their
privies. Whitacre P'ship v. BioSignia, Inc., 358 N.C. 1, 15, 591
S.E.2d 870, 880 (2004) (internal quotation marks omitted). 'The
essential elements of res judicata are: (1) a final judgment on the
merits in a prior suit; (2) an identity of the cause of action in
the prior suit and the present suit; and (3) an identity of parties
or their privies in both suits.' Branch v. Carolina Shoe Co., 172
N.C. App. 511, 518, 616 S.E.2d 378, 383 (2005) (quoting Bryant v.
Weyerhaeuser Co., 130 N.C. App. 135, 138, 502 S.E.2d 58, 61
Defendant herein contends that plaintiffs' civil complaint for
damages for condemnation asserted the same allegations of
negligence found in their Industrial Commission tort claim. The
traditional elements of actionable negligence are the existence of
a legal duty or obligation, breach of that duty, proximate cause
and actual loss or damage. McMurray v. Surety Federal Savings &
Loan Assoc., 82 N.C. App. 729, 731, 348 S.E.2d 162, 164 (1986).
In the instant case, plaintiffs' civil complaint did not
allege negligence; accordingly, dismissal of the civil claim does
not bar plaintiffs' Tort Claims Act claim. In Alt v. John UmsteadHospital, 125 N.C. App. 193, 198, 479 S.E.2d 800, 804 (1997),
defendant argued that summary judgment on plaintiff's civil claims
for malicious prosecution, false imprisonment and deprivation of
due process barred his Tort Claims Act negligence claim. This
Court disagreed, holding:
Although the factual allegations underlying
the two claims are the same, different issues
are involved. . . . Moreover, . . . exclusive
original jurisdiction of claims against the
State or its institutions and agencies, in
which injury is alleged to have occurred as a
result of the negligence of an employee of the
State, is vested in the North Carolina
Industrial Commission. N.C. Gen. Stat. §
143-291 et seq. [(2005)]. Thus, plaintiff's
negligence claim . . . could not have been
adjudicated in the prior proceeding because
the Superior Court had no jurisdiction over a
tort claim against the State.
We find the reasoning of Alt applicable to the instant case, and
conclude that plaintiffs' claim was not barred by the doctrine of
res judicata. This assignment of error is overruled.
 Finally, defendant argues that, upon its appeal from the
commissioner's oral ruling denying defendant's summary judgment
motion, all further proceedings were stayed. Defendant's position
is based on its interpretation of Industrial Commission Rule 308,
which provides that:
When a case is appealed to the Full Commission
or to the Court of Appeals, all Orders or
Decisions and Orders of a Deputy Commissioner
or the Full Commission are stayed pending
Defendant, however, did not appeal from an Order, but from an
interlocutory oral ruling that the commissioner had authority tomodify or reverse during the hearing. See, e.g., State v. McCall
162 N.C. App. 64, 68, 589 S.E.2d 896, 899 (2004) (A trial court
may change its ruling on a pre-trial motion in limine
presentation of the evidence.). Defendant cites no cases allowing
immediate appeal before an order is reduced to writing and filed.
Because defendant did not appeal from an Order or Decision and
Order, the proceedings were not stayed. Thus, we have no need to
address, as an alternative basis to evaluate defendant's
contention, the authority of the Industrial Commission to waive the
provisions of Rule 308. This assignment of error is overruled.
We have carefully considered defendant's remaining assignments
of error, and conclude they are either not preserved for appellate
review or are without merit. Accordingly, the Decision and Order
of the Industrial Commission is
Judges HUDSON concurs.
Judge TYSON dissents in a separate opinion.
TYSON, Judge dissenting.
Defendant seeks the review of the North Carolina Industrial
Commission's (Commission) affirmation of Deputy Commissioner
Glenn's decision to deny defendant's motion for summary judgment
and to award damages to plaintiffs. The majority's opinion grants
defendant's motion to amend the record and affirms the Commission's
opinion and award. Defendant's violations of the North CarolinaRules of Appellate Procedure (appellate rules), warrants
dismissal of its appeal. I respectfully dissent.
I. Appellate Rules Violations
Defendant failed to comply with the North Carolina Rules of
Appellate Procedure in the following ways: (1) to set forth record
citations for its assignments of error in violation of N.C. R. App.
P. 10(c)(1); (2) to state without argument the basis for the errors
assigned in violation of N.C. R. App. P. 10(c)(1); (3) to object to
testimony when offered, in violation of N.C. R. App. P. 10(b) (1),
which requires, [i]n order to preserve a question for appellate
review, a party must have presented to the trial court a timely
request, objection or motion, stating the specific grounds for the
ruling the party desired the court to make; and (4) to assign
error to the admissibility of evidence presented before Deputy
Commissioner Glenn in violation of N.C. R. App. P. 10(a), which
mandates, the scope of review is confined to a consideration of
those assignments of error set out in the record on appeal.
On 18 November 2005, after defendant and plaintiff filed their
appellate briefs and nineteen days prior to oral argument,
defendant moved to amend the record due to its failure to assign
error in accordance with N.C. R. App. P. 10. The majority's
opinion grants defendant's motion. Because defendant's motion also
violates our appellate rules, is untimely, and prejudicial to
plaintiff, I vote to deny defendant's motion to amend the record.
Our Supreme Court has stated:
It is not the role of the appellate courts,
however, to create an appeal for an appellant. Asthis case illustrates, the Rules of Appellate
Procedure must be consistently applied; otherwise,
the Rules become meaningless, and an appellee is
left without notice of the basis upon which an
appellate court might rule. See Bradshaw v.
Stansberry, 164 N.C. 356, 79 S.E. 302 (1913).
Viar v. N.C. Dept. of Transp., 359 N.C. 400, 402, 610 S.E.2d 360,
In Viar, our Supreme Court dismissed the plaintiff's appeal
due to appellate rules violations. Id. The plaintiff violated
N.C. R. App. P. 10(c)(1) and 28(b). Id. Regarding N.C. R. App. P.
10(c), the plaintiff failed to number separately the assignments of
error at the conclusion of the record on appeal in short form
without argument. The plaintiff also violated N.C. R. App. P.
28(b), which requires, a reference to the assignments of error
pertinent to the question, identified by their numbers and by the
pages at which they appear in the printed record on appeal to
follow each question. Id.
The North Carolina Rules of Appellate Procedure are mandatory
and 'failure to follow these rules will subject an appeal to
. (quoting Steingress v
, 350 N.C. 64,
65, 511 S.E.2d 298, 299 (1999)). Defendant's late motion to amend
is untimely and prejudicial to plaintiff.
The proper procedure to address defendant's multiple rule
violations is to dismiss the appeal. It is unnecessary to reach
the merits of defendant's appeal. Id
. (It is not the role of the
appellate courts, however, to create an appeal for an appellant.). Consistent with our Supreme Court's mandate in Viar
, I vote to
dismiss defendant's appeal. Id
. I respectfully dissent.
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