WILLIAM CARTER FRANKLIN,
New Hanover County
No. 04 CVD 4607
JUNE MARIE WIGGINS, WIGGINS LLC
DBA KOHL'S FROZEN CUSTARD,
WILLIAM C. FRANKLIN,
New Hanover County
No. 05 CVD 2064
KOHL'S FROZEN CUSTARD ON
William Carter Franklin, plaintiff-appellant, pro se.
Block, Crouch & Keeter, LLP, by Linda B. Sayed, for defendants-appellees.
Plaintiff William Carter Franklin appeals from the dismissal of two lawsuits he filed in New Hanover County against defendants June Marie Wiggins and Wiggins LLC, d/b/a Kohl's Frozen Custard, one asserting a claim for wrongful termination of employment and the other arising out of a workplace injury. We agree with thedistrict court that (1) plaintiff failed to include sufficient factual allegations in his wrongful termination complaint, and (2) plaintiff's workplace injury claim falls within the exclusive jurisdiction of the North Carolina Industrial Commission. Further, the trial court's award to defendants of attorneys' fees under N.C. Gen. Stat. § 6-21.5 (2005) is fully supported by the record. Accordingly, we affirm.
1. (Allegation of residence of parties)
2. On or about June 1, 1965, at the intersection of Main and Church Streets in the Town of Ashley, N.C., defendant (intentionally struck plaintiff a blow in the face) (negligently drove a bicycle into plaintiff) (intentionally tore plaintiff's clothing) (negligently drove a motorcycle into the side of plaintiff's automobile).
3. As a result (plaintiff suffered great
pain of body and mind, and incurred expenses
for medical attention and hospitalization in
the sum of one hundred and fifty dollars
($150.00)[)] (plaintiff suffered damage to his
property above described in the sum of two
hundred and fifty dollars ($250.00)[)].
Wherefore (etc., as in form 4).
Id. Thus, the form complaint includes the date that the incident
at issue took place, basic facts about what occurred, and the basis
for the damages sought. Other form complaints in § 7A-232 contain
the same general information.
Here, plaintiff's bare bones assertion that he is suing for wrongful termination and slander contains no factual allegations at all _ no indication of the date of the termination or slander, why the termination was wrongful, or what the alleged slanderous statements were. In short, plaintiff has identified his cause of action, but not the factual basis for his claims. We do not believe that this complaint is sufficient to "enable a person of common understanding to know" the basis for plaintiff's lawsuit. N.C. Gen. Stat. § 7A-216.
In small claims court, "[d]emurrers and motions to challenge the legal and formal sufficiency of a complaint . . . shall not be used." Id. Nevertheless, once a plaintiff has appealed to district court, the North Carolina Rules of Civil Procedure apply. Jones v. Ratley, 168 N.C. App. 126, 130, 607 S.E.2d 38, 41 (Tyson, J., dissenting), adopted per curiam, 360 N.C. 50, 619 S.E.2d 503 (2005). See also id. at 134, 607 S.E.2d at 43 ("The abbreviated procedures that are permissible in small claims court allow prompt resolution of disputes that do not exceed $4,000.00, while allowing for a full de novo review upon appeal by the party against whom judgment was entered by the magistrate."). While the trial court could have required additional pleadings, it was entitled to dismiss plaintiff's complaint on the grounds that it failed to include any factual allegations at all. We, therefore, uphold the trial court's dismissal of case 04 CVD 4607.
We next turn to plaintiff's workplace injury action, 05 CVM 2128 (later 05 CVD 2064). The record indicates that plaintiff filed the same claims in the Industrial Commission and that he entered into a clincher agreement resolving those claims. Plaintiff has stated on appeal, moreover, that he "clearly was simply trying to resolve his Industrial Commission matters in the local courts. Ten months had passed since the plaintiff's injury and the Commission had accomplished no settlement." Contrary to plaintiff's assertions that he was entitled to proceed on his claims both in the Industrial Commission and in the courts, the Workers' Compensation Act provides the exclusive remedy for claims arising out of workplace injuries. See N.C. Gen. Stat. § 97-10.1 (2005) ("If the employee and the employer are subject to and have complied with the provisions of this Article, then the rights and remedies herein granted to the employee . . . shall exclude allother rights and remedies of the employee . . . as against the employer at common law or otherwise on account of such injury or death."); McAllister v. Cone Mills Corp., 88 N.C. App. 577, 580, 364 S.E.2d 186, 188 (1988) (holding that, with respect to compensable injuries, an employee cannot elect to pursue an alternate avenue of recovery, but is required to proceed under the Workers' Compensation Act). Therefore, the district court correctly concluded that plaintiff's workplace injury claims were barred by § 97-10.1. (See footnote 3)
Finally, plaintiff also challenges on appeal the district court's grant of defendants' motions for attorneys' fees in both lawsuits, in the amount of $1,049.40 for the wrongful termination lawsuit and $1,584.10 for the workplace injury lawsuit. In both cases, the district court cited N.C. Gen. Stat. § 6_21.5 and N.C.R. Civ. P. 11 as the bases for its award of fees and included a single finding of fact simply incorporating by reference defendants' affidavits for attorneys' fees. We affirm the award under N.C. Gen. Stat. § 6_21.5 only.
N.C. Gen. Stat. § 6_21.5 provides in pertinent part: In any civil action or special proceeding the court, upon motion of the prevailing party, may award a reasonable attorney's fee to the prevailing party if the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party in any pleading. . . . The court shall make findings of fact and conclusions of law to support its award of attorney's fees under this section.
This Court has previously held that the fact-finding requirement in this section is satisfied when the trial court incorporates by reference the motions and affidavits of the party moving for fees. Winston-Salem Wrecker Ass'n v. Barker, 148 N.C. App. 114, 118_19, 557 S.E.2d 614, 617_18 (2001) (when the trial court's order held simply that fees "'should be granted in accordance with the provisions of G.S. § 6_21.5 upon the grounds raised in said motions and affidavit,'" this Court noted that "[c]omprehensive review of the order, the motion, and the affidavit and its attachments provides sufficient findings of fact to support the award of attorney's fees"). Barker is controlling as to N.C. Gen. Stat. § 6-21.5, and we are thus compelled to hold that the district court's incorporation of defendants' affidavits sufficed to support the court's award of fees. In re Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) ("Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court."). (See footnote 4) The trial court's conclusion that plaintiffs' claims in both actions were non-justiciable is fully supported by the record. In the context of an award of attorneys' fees, the test regarding whether a claim is non-justiciable is whether the "party persisted in litigating the case after a point where he should reasonably have become aware that the pleading he filed no longer contained a justiciable issue." Sunamerica Fin. Corp. v. Bonham, 328 N.C. 254, 258, 400 S.E.2d 435, 438 (1991). With respect to the wrongful termination and slander claims, plaintiff included no factual allegations in his complaint and offered no evidence in support of his claims in opposition to defendants' motion for summary judgment. See N.C.R. Civ. P. 56(e) ("When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial."). With respect to the workplace injury action, we note that plaintiff freely admits that these causes of action arose solely out of his pending claims before the Industrial Commission. As we have stated, it is well-settled in this State that employees must pursue claims arising out of workplace-related injuries under the Workers' Compensation Act in the IndustrialCommission only and, therefore, plaintiff's claims were not justiciable in small claims court or district court. Under these circumstances, plaintiff failed to show that the district court erred in awarding fees based on non-justiciability.
Judges TYSON and STEELMAN concur.
Report per Rule 30(e).
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