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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 4 December 2007
N. C. Industrial Commission
I.C. No. TA-17240
NASH-ROCKY MOUNT BOARD OF
EDUCATION, a Body Politic and Corporate,
Appeal by plaintiff from Opinion and Award of the North
Carolina Industrial Commission entered 19 June 2006. Heard in the
Court of Appeals 9 October 2007.
Early & Chandler, P.A., by Robert M. Chandler, Jr., for
Attorney General Roy Cooper, by Assistant Attorneys General
Tina Lloyd Hlanse and Laura J. Gendy, for defendant-appellee.
For purposes of a Rule 60 motion for relief from a judgment or
order, [a] showing of carelessness or negligence or ignorance of
the rules of procedure does not constitute excusable neglect.
(See footnote 1)
Because the record supports the trial court's finding that the
failure of the plaintiff's attorney to file timely notice of appeal
was not excusable neglect, we affirm the dismissal of her Rule 60
motion for relief.
On 3 November 1998, Plaintiff Helen Horne was in a collisionwith Wiley Ray Moss, an employee of Defendant Nash-Rocky Mount
Board of Education. Ms. Horne brought an action under the State
Tort Claims Act before the North Carolina Industrial Commission
against the Board of Education alleging that Mr. Moss negligently
caused the accident which resulted in injuries to her knee. The
Board of Education answered, alleging contributory negligence.
Following a hearing, Deputy Commissioner Wanda Blanche Taylor
filed a Decision and Order holding that Ms. Horne had failed to
prove that, beyond $786.44 in charges for specific treatment
immediately following the collision, her medical expenses were
reasonably necessary or causally related to the collision. The
Order denied payment for future injury, pain and suffering, and
future lost earnings.
Deputy Commissioner Taylor's Decision and Order was faxed to
Ms. Horne's attorney on 24 August 2005, but the attorney was on
vacation through 5 September 2005, and, as a solo practitioner, was
the only person in his office capable of filing legal documents.
The attorney did not request secured leave from the Industrial
Commission for this period of vacation. When he returned to the
office on 6 September 2005, the attorney signed and faxed the
confirmation page on the Decision and Award back to the Industrial
Commission. However, he did not file Ms. Horne's Notice of Appeal
from the Decision and Order to the Full Commission until 21
The Board of Education then filed a motion to dismiss Ms.
Horne's appeal as untimely, which was granted by CommissionChairman Buck Lattimore on 19 October 2005. Ms. Horne appealed the
order to dismiss to the Full Commission and also filed a Motion for
Reconsideration of Order Dismissing Appeal to the Full Commission;
the motion for reconsideration was denied, but Ms. Horne's appeal
was allowed to go forward to the Full Commission.
On 18 May 2006, the Full Commission considered Ms. Horne's
arguments that (1) her attorney did not receive the Decision and
Order until 6 September 2005, and that he had fifteen days from
that date to file the Notice of Appeal, which he did; and (2) even
if her attorney was mistaken as to the date of receipt and the
Notice of Appeal was not timely filed, such delay was excusable
neglect, and the appeal should be allowed under Rule 60(b). On 19
June 2006, the Full Commission issued a Decision and Order that
affirmed Chairman Lattimore's order dismissing Ms. Horne's appeal
Ms. Horne now appeals to this Court, arguing that she is
entitled to Rule 60 relief and should be allowed to proceed with
her appeal to the Full Commission because (I) the neglect was the
fault of her attorney, not her own, and she properly relied on his
competent representation; and (II) the Full Commission was required
to make findings of fact as to both excusable neglect and
meritorious defense, and since they failed to make any findings as
to the latter, the order dismissing her appeal should be reversed.
First, Ms. Horne argues that she is entitled to Rule 60 relief
due to neglect that was the fault of her attorney, not her own, andshe should not lose her right of appeal due to her reliance on his
competent representation. Our Supreme Court has already decided
this issue against Ms. Horne.
In Briley v. Farabow, 348 N.C. 537, 546, 501 S.E.2d 649, 655
(1998), our Supreme Court explicitly held that [a] showing of
carelessness or negligence or ignorance of the rules of procedure
does not constitute excusable neglect. Moreover, this Court has
likewise noted that an attorney's misapprehension of the law, and
specifically his failure to file timely notice of appeal, does not
constitute excusable neglect. See Cornell v. W. & S. Life Ins.
Co., 162 N.C. App. 106, 112, 590 S.E.2d 294, 298 (2004) (Assuming,
arguendo, that the issue had been properly preserved by an
assignment of error, an attorney's misapprehension of law, as found
by the Commission in this case, is not grounds for relief due to
Ms. Horne cites to a number of old cases as support for her
argument that her attorney's negligence should not be imputed to
her, and that she exercised the standard of care of a reasonably
prudent person in relying on him to fulfill his obligations. In
particular, Ms. Horne relies on Norton v. Sawyer, 30 N.C. App. 420,
227 S.E.2d 148, disc. review denied, 291 N.C. 176, 229 S.E.2d 689
(1976). However, although Norton was never overruled and did, in
fact, suggest that an attorney's negligence should not be imputed
to a client who had been diligent in following his case, the Court
ultimately did not vacate the trial court's entry of default
judgment because it concluded that doing so would not best servethe interests of justice. Id. at 426-27, 227 S.E.2d at 153. As
such, the case is not controlling law for an attorney's negligence
being considered the excusable neglect of the client.
In the instant case, despite Ms. Horne's attorney's notation
in her Notice of Appeal that Deputy Commissioner Taylor's Decision
and Order was filed August 24, 2005 and received September 6,
2005, the Tort Claims Act expressly provides that a party has
fifteen days after receipt of such notice [of determination of a
claim] within which to file notice of appeal with the Industrial
Commission. N.C. Gen. Stat. § 143-292 (2005). Although Ms.
Horne's attorney attempted to indicate that the date of receipt of
the Decision and Order was 6 September 2005, the confirmation page
clearly showed that the fax was received by the attorney's fax
machine on 24 August 2005. Moreover, even with having been on
vacation when the fax arrived in his office, Ms. Horne's attorney
still had several days after his 6 September return to timely file
her Notice of Appeal within the fifteen-day statutory period.
Nevertheless, it was not done.
This Court is bound to the Supreme Court ruling in Briley that
[a] showing of carelessness or negligence or ignorance of the
rules of procedure does not constitute excusable neglect. 348
N.C. at 546, 501 S.E.2d at 655. Accordingly, this assignment of
error is overruled.
Next, Ms. Horne argues that the Full Commission was required
to make findings of fact as to both excusable neglect andmeritorious defense before dismissing her appeal. We disagree.
Although true that a trial court or the Full Commission is
required to make findings as to both excusable neglect and a
meritorious defense in order to set aside
a judgment under Rule
60(b), see Creasman v. Creasman
, 152 N.C. App. 119, 124, 566 S.E.2d
725, 728 (2002), there is no such requirement for findings as to
both elements where the Full Commission has determined to affirm
the judgment. Indeed, once the Full Commission or a trial court
has determined that there was not excusable neglect, there is no
need or reason to consider the question of a meritorious defense.
Ms. Horne provides no case law or statutory authority in support of
her contention to the contrary. This assignment of error is
Judges HUNTER and JACKSON concur.
Report by Rule 30(e).
Briley v. Farabow
, 348 N.C. 537, 546, 501 S.E.2d 649, 655
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