JAMES E. PRICE,
Plaintiff,
v. N.C. Industrial Commission
No. TA-17385
NORTH CAROLINA DEPARTMENT
OF CORRECTION,
Defendant,
James E. Price, pro se, plaintiff-appellant.
Attorney General Roy A. Cooper, III, by Associate Attorney
General Olga Vysotskaya, for defendant-appellee.
JACKSON, Judge.
On 6 March 2002, James E. Price (“plaintiff”), an inmate
confined in the custody of the North Carolina Department of
Correction (“DOC”), filed a claim for damages with the North
Carolina Industrial Commission, seeking approximately $1,560.00 for
the loss of a pair of dress shoes, a pair of eyeglasses, and
numerous legal texts. On 30 October 2002, after DOC failed to file
an answer, plaintiff filed a motion for default judgment. DOC
responded with an answer on 29 April 2003, more than a year late,
and shortly thereafter, plaintiff filed a motion to strike DOC's
answer. Deputy Commissioner Chrystal Redding Stanback, after granting
plaintiff's motion to strike and denying plaintiff's motion for
summary judgment,
(See footnote 1)
conducted a full evidentiary hearing on 27
October 2003, allowing both plaintiff and DOC to present evidence.
On 22 November 2004, Deputy Commissioner Stanback issued a decision
and order concluding that DOC negligently misplaced plaintiff's
legal materials and awarding plaintiff $370.35 for the depreciated
value of the lost texts. With respect to plaintiff's dress shoes
and eyeglasses, however, Deputy Commissioner Stanback concluded
that plaintiff failed to prove by the greater weight of the
evidence that DOC was negligent.
Both plaintiff and DOC appealed the deputy commissioner's
decision to the Full Commission. In a decision and order filed 16
November 2005, the Full Commission affirmed the opinion and award
of the deputy commissioner with minor modifications. Plaintiff
filed timely notice of appeal to this Court.
As a preliminary matter, we note that plaintiff's brief fails
to comport with Rule 10 of the North Carolina Rules of Appellate
Procedure. First, we decline to address arguments made by
plaintiff in his brief that were not the subject of a proper
assignment of error. See N.C. R. App. P. 10(a) (2006).
Additionally, plaintiff's Assignments of Error numbers 1 through 3
violate Rule 10(c), which expressly requires that “[e]ach
assignment of error shall, so far as practicable, be confined to asingle issue of law; and shall state plainly, concisely and without
argumentation the legal basis upon which error is assigned.” N.C.
R. App. P. 10(c)(1) (2006).
In the record on appeal, plaintiff's first three assignments
of error allege the following:
I. The industrial commission erred when, after
allowing plaintiff's motion to strike
defendant's Answer for being time-barred, the
commission permitted defendant to rebut
plaintiff's evidence establishing his claim or
right to relief at the tort claim hearing and
when filing briefs, and created a conflict of
interest by allowing counsel for Defendant to
represent her in a writ of mandamus action
filed by Plaintiff against her while Plaintiff
and Defendant still had an action pending
before her.
II. The industrial commission erred when
denying plaintiff's motion for default
judgment; motion for summary judgment; motion
to admit into evidence the affidavit of James
C. Scotton; and his uncontested motions to
amend or to verify his claim for damages and
out-of-pocket expenses.
III. The industrial commission erred in its
findings of fact when omitting that inmates
are permitted by prison policy to possess
personal shoes for medical and work release
purposes; and after allowing plaintiff's
motion to strike defendant's Answer for being
time-barred the commission allowed defendant
to rebut plaintiff's evidence establishing his
claim or right to relief and then found as
fact that defendant's rebuttal evidence had
the greater weight, let alone any weight,
particularly regarding plaintiff's destroyed
eyeglasses, boots, 2000 plus pages of case
law, out-of-pocket expenses and pre-judgment
interest; and when reducing the value of
plaintiff's lost law books and paralegal
course materials to half price or less.
Findings of Fact Numbers 2, 3, 4 and 7.
(Emphasis in original).
Although Rule 10(c) provides that “[q]uestions made as to
several issues or findings relating to one ground of recovery or
defense may be combined in one assignment of error, if separate
record or transcript references are made,” N.C. R. App. P. 10(c)(1)
(2006), it is equally well-established that “[w]here one assignment
of error is based on separate exceptions and attempts to present
several separate questions of law, it is ineffectual as a broadside
assignment.” Braswell v. Purser, 16 N.C. App. 14, 26, 190 S.E.2d
857, 865 (citing Hines v. Frink, 257 N.C. 723, 729, 127 S.E.2d 509,
514 (1962)), aff'd, 282 N.C. 388, 193 S.E.2d 90 (1972). None of
plaintiff's first three assignments of error are limited to a
single issue of law; rather, plaintiff raises several issues and
questions of law in what is tantamount to the “kitchen sink”
approach. See Hon. Jacques L. Wiener, Jr., Essay, Ruminations from
the Bench: Brief Writing and Oral Argument in the Fifth Circuit, 70
Tul. L. Rev. 187, 190 (1995) (cautioning appellants against
“throw[ing] in everything but the proverbial kitchen sink”). In
addition, the second assignment of error simply states that the
Commission erred in denying various motions filed by plaintiff
without stating “the legal basis upon which error is assigned.”
N.C. R. App. P. 10(c)(1) (2006). As such, this assignment of error
“essentially amount[s] to no more than an allegation that the court
erred because its ruling was erroneous.” Hubert Jet Air, LLC v.
Triad Aviation, Inc., __ N.C. App. __, __, 628 S.E.2d 806, 808
(2006) (internal quotation marks and citation omitted). Accordingly, we dismiss plaintiff's first three assignments of
error.
In his fourth assignment of error, plaintiff contends that the
Industrial Commission's findings of fact do not support its
conclusions of law that plaintiff failed to prove by the greater
weight of the evidence that DOC was negligent as to his dress shoes
and eyeglasses. We disagree.
Preliminarily, we note that as part of this assignment of
error, plaintiff has assigned error to Conclusions of Law numbers
2 and 4. In the Industrial Commission's decision and order,
Conclusion of Law number 4 relates solely to the value of
plaintiff's lost textbooks and Officer Payne's negligence with
respect to those textbooks. The substance of the assignment of
error, however, makes no mention of plaintiff's textbooks or
Officer Payne's negligence, and plaintiff has not argued in his
brief that the Commission erred in making such a determination.
Accordingly, we will confine our review to Conclusion of Law number
2 and dismiss plaintiff's assignment of error to the extent it
challenges Conclusion of Law number 4. See N.C. R. App. P. 28(b)(6)
(2006) (“Assignments of error not set out in the appellant's brief,
or in support of which no reason or argument is stated or authority
cited, will be taken as abandoned.”); N.C. R. App. P. 10(a) (2006)
(“[T]he scope of review on appeal is confined to a consideration of
those assignments of error set out in the record on appeal . . .
.”). Pursuant to North Carolina General Statutes, section
143-291(a), the North Carolina Industrial Commission is charged
with determining whether a tort claim against DOC arose as a result
of the negligence of any DOC officer or employee acting within the
scope of his office or employment. See N.C. Gen. Stat. . 143-291(a)
(2005).
If the Commission finds that there was
negligence . . . that was the proximate cause
of the injury and that there was no
contributory negligence on the part of the
claimant . . ., the Commission shall determine
the amount of damages that the claimant is
entitled to be paid, including medical and
other expenses, and by appropriate order
direct the payment of damages . . . .
Id. As this Court explained in a previous appeal brought by
plaintiff, “[t]he scope of review on appeal to this Court under the
Tort Claims Act is limited to whether there was any competent
evidence before the Commission to support the findings of fact and
whether the findings support the legal conclusions and decision.”
Price v. N.C. Dep't of Corr., 103 N.C. App. 609, 613, 406 S.E.2d
906, 908 (1991). “'[T]he findings of fact of the Industrial
Commission are conclusive on appeal when supported by competent
evidence, even though there be evidence that would support findings
to the contrary.'” Deese v. Champion Int'l Corp., 352 N.C. 109,
115, 530 S.E.2d 549, 552.53 (2000) (quoting Jones v. Myrtle Desk
Co., 264 N.C. 401, 402, 141 S.E.2d 632, 633 (1965) (per curiam)).
Furthermore, in the instant case, neither Assignment of Error
number 4 nor Assignment of Error number 5 _ plaintiff's remaining
assignments of error which have not been dismissed _ assigns errorto any of the Commission's findings of fact. As such, the
Industrial Commission's findings of fact are deemed binding on this
Court. See Pollock v. Reeves Bros., Inc., 313 N.C. 287, 294, 328
S.E.2d 282, 286 (1985) (“Defendants did not except to this finding
of fact, therefore it is deemed to be supported by competent
evidence and it is binding upon appeal.”). Thus, our sole task is
to determine whether the Commission's findings support its
conclusions. See Vogler v. Branch Erections Co., Inc., __ N.C. App.
__, __, 640 S.E.2d 419, 421 (2007).
Plaintiff contests the Industrial Commission's Conclusion of
Law number 2, which provides that “Plaintiff has failed to prove by
the greater weight of the evidence that any officer, employee,
involuntary servant or agent of the North Carolina Department of
Correction was negligent in the confiscation and destruction of his
dress shoes, or in causing damage to his eyeglasses.” The findings
of fact that are binding on this Court, however, fully support
Conclusion of Law number 2. Specifically, the Commission found
that
[o]n or about July 23, 1999, a shakedown of
the correctional facility was ordered, and all
items considered to be contraband were
confiscated from inmates' cells. Officers
searching the plaintiff's cell removed his
dress boot shoes, as they were no longer
allowed. Plaintiff had been given until July
1, 1999 to send home his dress shoes; however,
no proper address had been provided as to
where to send the items. Therefore, during
the shakedown, the boots were confiscated and
destroyed. The plaintiff has failed, by the
greater weight of the evidence, to prove that
any of the named defendant officers were
negligent in confiscating and/or destroying
plaintiff's dress shoes.
Similarly, with respect to plaintiff's eyeglasses, the Commission
found that
[p]laintiff alleges that also during the
shakedown, his eyeglasses were damaged,
however there is insufficient evidence in the
record to establish that any of the named
defendant officers damaged the eyeglasses or
were negligent in any manner with respect to
plaintiff's eyeglasses. Plaintiff has failed,
by the greater weight of the evidence, to
prove that any of the named defendant officers
were negligent in causing damage to
plaintiff's eyeglasses.
In sum, Conclusion of Law number 2 was supported by Findings of
Fact numbers 3 and 4, and accordingly, plaintiff's fourth
assignment of error is overruled.
In his final assignment of error, plaintiff contends that the
Industrial Commission denied him “his sixth amendment right to
compulsory process to obtain and present witnesses in his favor,
and when failing to continue the hearing to allow plaintiff's
subpoenaed witnesses to appear.” We disagree.
First, it is well-settled that the Sixth Amendment does not
apply to civil cases such as this one. See State v. Adams, 345 N.C.
745, 748, 483 S.E.2d 156, 157 (1997) (“By its terms, the Sixth
Amendment applies only to criminal cases.”). Therefore, this
portion of plaintiff's assignment of error is overruled.
With respect to plaintiff's contention that the Industrial
Commission erred in failing to continue the hearing, we note that
“the postponement or continuance of a duly scheduled hearing . . .
rest[s] entirely in the discretion of the Commission.” McPhaul v.
Sewell, 36 N.C. App. 312, 314, 244 S.E.2d 158, 160 (1978) (internalquotation marks and citation omitted); see also 4 N.C. Admin. Code
10B.0206(e) (2004) (“A motion for a continuance shall be allowed
only in the discretion of a Commissioner or Deputy Commissioner
before whom the case is set.”). Plaintiff, however, has failed to
argue or offer any showing that Deputy Commissioner Stanback abused
her discretion, and there is no indication in the record to support
such an allegation. Additionally, when plaintiff gave notice of
appeal to the Full Commission, plaintiff did not assign as error
that the deputy commissioner abused her discretion in failing to
continue the hearing. As required pursuant to the procedural rules
governing Tort Claims Act proceedings, “[p]articular grounds for
appeal not set forth in the written statement will be deemed to be
abandoned and argument thereon will not be heard before the Full
Commission.” 4 N.C. Admin. Code 10B.0303 (2004). Accordingly,
plaintiff's assignment of error is overruled.
Affirmed in Part; Dismissed in Part.
Judge GEER concurs in the result only.
Judge LEVINSON concurs.
Report per Rule 30(e).
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