Bradley v. Cumberland Cty.Â

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-334
Filed: 20 November 2018
North Carolina Industrial Commission, I.C. No. 15-16608
JAMES A. BRADLEY, Employee, Plaintiff,
v.
CUMBERLAND COUNTY, Employer, SELF-INSURED (KEY RISK
MANAGEMENT SERVICES, INC., Servicing Agent), Defendants.
Appeal by plaintiff from Opinion and Award entered 7 November 2017 by the
North Carolina Industrial Commission. Heard in the Court of Appeals 19 September
2018.
Musselwhite, Musselwhite, Branch and Grantham, by Stephen C. McIntyre, for
plaintiff-appellant.
Teague Campbell Dennis & Gorham, LLP, by Dayle A. Flammia and Lindsay
A. Underwood, for defendants-appellees.
ZACHARY, Judge.
Plaintiff James A. Bradley appeals from an Opinion and Award of the North
Carolina Industrial Commission. In that Plaintiff failed to establish that his notice
of appeal was properly and timely filed, this Court lacks jurisdiction. Accordingly,
we dismiss Plaintiff’s appeal.
I. Background
On 28 March 2017, Deputy Commissioner Lori A. Gaines issued an Opinion
and Award concluding Plaintiff was entitled to workers’ compensation benefits and
BRADLEY V. CUMBERLAND CTY.
Opinion of the Court
awarding Plaintiff disability benefits. Defendants appealed to the Full Commission,
and on 7 November 2017, the Full Commission entered an Opinion and Award
reversing in part and affirming in part the Deputy Commissioner’s Opinion and
Award.
Plaintiff filed his notice of appeal to this Court. Plaintiff’s counsel printed the
notice of appeal on his firm’s letterhead and addressed the notice to Commissioner
Phillip A. Baddour, III of the Industrial Commission, confirmation receipt requested.
Although the notice indicated that it was filed with the Industrial Commission “via
Electronic Filing Portal,” it lacked any time stamp indicating if or when the Industrial
Commission received Plaintiff’s notice of appeal. At the bottom of the notice was a
notation of “cc via email: Dayle Flammia, Counsel for Defendants,” indicating that
opposing counsel was to receive a copy of the notice of appeal via email. Further,
Plaintiff failed to include a certificate of service in the record on appeal demonstrating
how and when Plaintiff served opposing counsel with a copy of the notice of appeal.
Finally, the body of the notice failed to state the court to which appeal was being
taken.
II. Appellate Jurisdiction
This Court has the power to inquire into jurisdiction at any time, even sua
sponte. Lee v. Winget Rd., LLC, 204 N.C. App. 96, 98, 693 S.E.2d 684, 687 (2010). We
must have jurisdiction to hear the cases before us, and our power to hear those cases
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Opinion of the Court
must be “properly invoked by an interested party.” Dogwood Dev. & Mgmt. Co., LLC
v. White Oak Transp. Co., 362 N.C. 191, 197, 657 S.E.2d 361, 364 (2008). Both statute
and our Rules of Appellate Procedure provide the proper method by which interested
parties may successfully invoke our jurisdiction. Id. at 197, 657 S.E.2d at 364-65
(“The appellant’s compliance with the jurisdictional rules governing the taking of an
appeal is the linchpin that connects the appellate division with the trial division and
confers upon the appellate court the authority to act in a particular case.”). When an
appealing party fails to follow the steps necessary to vest this Court with jurisdiction,
we cannot review the case on the merits, and the appeal must be dismissed. Id. at
197, 657 S.E.2d at 364.
Generally, violations of Rule 3 are jurisdictional and warrant dismissal of an
appeal. Id. at 197, 657 S.E.2d at 365 (citing Bailey v. State, 353 N.C. 142, 156, 540
S.E.2d 313, 322 (2000)). However, certain violations of the appellate rules are non-
jurisdictional and do not invariably warrant dismissal of an appeal. Id. at 200, 657
S.E.2d at 366-67. Non-jurisdictional rules are those that are “designed primarily to
keep the appellate process flowing in an orderly manner.” Id. at 198, 657 S.E.2d at
365 (citation and quotation marks omitted). The violation of non-jurisdictional rules
warrants dismissal only when the violation or violations amount to a “substantial
failure or gross violation” of the Appellate Rules that impairs this Court’s task of
review or frustrates the adversarial process. Id. at 200, 657 S.E.2d at 366.
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Opinion of the Court
A. Appealing Cases from the Industrial Commission
The Workers’ Compensation Act provides a right to appeal Industrial
Commission cases to this Court:
[E]ither party to the dispute may, within 30 days from the
date of the award or within 30 days after receipt of notice
to be sent by any class of U.S. mail that is fully prepaid or
electronic mail of the award, but not thereafter, appeal
from the decision of the Commission to the Court of
Appeals for errors of law under the same terms and
conditions as govern appeals from the superior court to the
Court of Appeals in ordinary civil actions. The procedure
for the appeal shall be as provided by the rules of appellate
procedure.
N.C. Gen. Stat. § 97-86 (2017). The Industrial Commission requires that parties
submit most documents in workers’ compensation cases electronically via the
Commission’s Electronic Document Filing Portal (“EDFP”). 11 NCAC 23A.0108(a).
Parties can file a notice of appeal to the Court of Appeals via EDFP or U.S. Mail. 11
NCAC 23A.0108(g).
Article IV of the Appellate Rules governs appeals from administrative
tribunals, including the Industrial Commission. Pursuant to Rule 18, “[a]ppeals of
right from administrative [tribunals] shall be in accordance with the procedures
provided in these rules for appeals of right from the courts of the trial division, except
as provided in this Article.” N.C.R. App. P. 18(a). A party’s notice of appeal from the
Industrial Commission must (1) specify the party or parties taking the appeal; (2)
designate the final decision from which appeal is taken and the court to which appeal
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is taken; and (3) shall be signed by counsel of record for the party or parties taking
the appeal. N.C.R. App. P. 18(b)(2). Appellants can demonstrate timely filing of a
notice of appeal by including in the appellate record some form of acknowledgement
from the Industrial Commission stating when the Commission received the notice of
appeal. See Jones v. Yates Motor Co., 121 N.C. App. 84, 85, 464 S.E.2d 479, 480 (1995)
(“On 23 March 1994, the Commission advised plaintiff that it received his notice of
appeal to the Court of Appeals.”). Such acknowledgement includes, inter alia,
providing a time-stamped copy of a notice of appeal or a letter from the Industrial
Commission acknowledging receipt of a notice of appeal. Article IV of the Appellate
Rules does not, however, provide any instruction concerning service of the notice of
appeal upon the opposing party.
B. Service of a Notice of Appeal
“Copies of all papers filed by any party and not required by these rules to be
served by the clerk shall, at or before the time of filing, be served on all other parties
to the appeal.” N.C.R. App. P. 26(b) (emphasis added). Rule 26 further prescribes
the following manner of service:
Service may be made in the manner provided for service
and return of process in Rule 4 of the Rules of Civil
Procedure and may be so made upon a party or upon its
attorney of record. Service may also be made upon a party
or its attorney of record by delivering a copy to either or by
mailing a copy to the recipient’s last known address, or if
no address is known, by filing it in the office of the clerk
with whom the original paper is filed. Delivery of a copy
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Opinion of the Court
within this rule means handing it to the attorney or to the
party, or leaving it at the attorney’s office with a partner or
employee. Service by mail is complete upon deposit of the
paper enclosed in a postpaid, properly addressed wrapper
in a post office or official depository under the exclusive
care and custody of the United States Postal Service, or, for
those having access to such services, upon deposit with the
State Courier Service or Inter-Office Mail. When a
document is filed electronically to the [appellate courts’]
electronic-filing site, service also may be accomplished
electronically by use of the other counsel’s correct and
current e-mail address(es), or service may be accomplished
in the manner described previously in this subsection.
N.C.R. App. P. 26(c). Rule 4 of the North Carolina Rules of Civil Procedure
substantially mirrors the methods of service and process listed in Rule 26(c) of the
Appellate Rules, with a few additional methods provided. See e.g., N.C. Gen. Stat. §
1A-1, Rules 4(j)(1), (j1) (2017) (permitting, among other methods, service by leaving
copies at a party’s dwelling with a person of suitable age, service by delivery to a
party’s authorized agent, or service by publication).
Generally, service by email is not allowed. See id. § 1A-1, Rule 4(j6) (“Nothing
in subsection (j) of this section authorizes the use of electronic mailing for service on
the party to be served.”). However, parties can serve papers by email in one limited
instance: for documents filed electronically to the North Carolina Appellate Courts’
electronic-filing site. See N.C.R. App. P. 26(c) (“When a document is filed
electronically to the electronic-filing site, service also may be accomplished
electronically by use of the other counsel’s correct and current e-mail
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address(es) . . . .”). A notice of appeal is not filed with this Court, but rather with the
court that entered judgment. See N.C.R. App. P. 3(a), 26(a). Thus, appellants cannot
serve a notice of appeal via email. See MNC Holdings, LLC v. Town of Matthews, 223
N.C. App. 442, 445-47, 735 S.E.2d 364, 366-67 (2012) (holding service of a notice of
appeal by email is a technical violation of Rule 26 of the Appellate Rules, but
determining that the technical error did not warrant dismissal where all parties
clearly received notice and the error did not materially impede review). In addition,
both the Rules of Civil Procedure and the Rules of Appellate Procedure require proof
of service in the form of a certificate of service. See N.C. Gen. Stat. § 1A-1, Rule 5(b1);
N.C.R. App. P. 26(d).
III. Discussion
In the instant case, the following errors are apparent: (1) Plaintiff’s notice of
appeal was improperly served via email; (2) the record on appeal does not include a
certificate of service of the notice of appeal; (3) the notice of appeal failed to designate
the court to which appeal was being taken; and most significantly, (4) the record on
appeal contains no proof that the notice of appeal was timely filed.
The first three of Plaintiff’s errors constitute non-jurisdictional violations of
our Appellate Rules. Plaintiff improperly served opposing counsel with his notice of
appeal by email, failed to include a certificate of service of his notice of appeal, and
failed to designate the court to which appeal was taken. Neither Rule 4 of the Rules
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Opinion of the Court
of Civil Procedure nor the Appellate Rules permit service of a notice of appeal by
email. Thus, Plaintiff’s service of the notice of appeal was improper. However, this
Court has ruled that such a violation is non-jurisdictional and does not warrant
dismissal where all parties had actual notice. See State v. Williams, 235 N.C. App.
201, 204, 761 S.E.2d 662, 664 (2014) (holding that service of a notice of appeal is a
non-jurisdictional violation and determining that dismissal would be inappropriate
because the State was not misled by the error and waived compliance by participating
in the appeal), appeal dismissed and disc. rev. denied, 368 N.C. 241, 768 S.E.2d 857
(2015). Here, it is clear that Defendants had actual notice of appeal to this Court by
their participation in the appeal. Accordingly, this violation does not warrant
dismissal of the appeal.
Second, Plaintiff failed to include a certificate of service of the notice of appeal
in the record. Appellate Rule 3 provides that service of a notice of appeal shall be as
provided in Rule 26. N.C.R. App. P. 3(e). Rule 26 requires that the certificate of
service “shall appear on or be affixed to the” notice of appeal. N.C.R. App. P. 26(d).
Therefore, Plaintiff’s failure to include a certificate of service of his notice of appeal
violates Appellate Rule 3. However, while proper filing of a notice of appeal is
jurisdictional, the manner of service of a notice of appeal is a non-jurisdictional
requirement. See Lee, 204 N.C. App. at 102, 693 S.E.2d at 689-90 (holding that
“where a notice of appeal is properly and timely filed, but not served upon all parties”
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the “violation of Rule 3 is a nonjurisdictional defect[,]” although it is nevertheless a
“significant and fundamental violation” warranting dismissal of the appeal). In that
this violation does not constitute a “substantial or gross violation of the Appellate
Rules,” it does not necessitate dismissal.
In addition, Plaintiff neglected to designate in the notice of appeal the court to
which the case was being appealed. This Court, however, has deemed that a violation
of this sort does not necessarily warrant dismissal of the appeal. See Phelps Staffing,
LLC v. S.C. Phelps, Inc., 217 N.C. App. 403, 410, 720 S.E.2d 785, 791 (2011) (holding
that the appellant’s failure to designate the court to which the appeal is taken is not
a fatal error, so long as this information may be fairly inferred and the other parties
are not misled by the mistake). Plaintiff’s only appeal of right lies in this Court, so it
can be inferred that Plaintiff intended to appeal to this Court despite his failure to
designate in his notice of appeal the court to which he was appealing. Based on
Defendants’ participation in this appeal by settling the record on appeal and filing a
brief, it is clear they were not misled by this Rule violation. As a result, this violation,
alone, would not warrant dismissal of Plaintiff’s appeal.
Finally, there is no indication that Plaintiff’s notice of appeal was timely filed,
which is a jurisdictional error. E.g., Strezinski v. City of Greensboro, 187 N.C. App.
703, 710, 654 S.E.2d 263, 268 (2007) (dismissing the defendant’s cross-appeal from a
decision of the Industrial Commission because the notice of appeal was not timely
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filed), disc. rev. denied, 362 N.C. 513, 668 S.E.2d 783 (2008). Plaintiff’s counsel
allegedly filed his notice of appeal—on his firm’s letterhead—via the Industrial
Commission’s Electronic Document Filing Portal. The notice of appeal does not bear
a time stamp, file stamp, or any other designation that the Industrial Commission
received the notice of appeal. Plaintiff’s counsel requested that Commissioner
Baddour confirm receipt of the notice; however, Plaintiff failed to include any
acknowledgment from the Industrial Commission indicating receipt of Plaintiff’s
notice of appeal in the record on appeal. The notice of appeal is dated “December 5,
2017,” which would have been timely, but that date was affixed by Plaintiff’s counsel,
and again, not confirmed by proof of service. We will not assume the notice of appeal
was timely filed solely based upon Plaintiff’s unverified notice of appeal. See
Dogwood, 362 N.C. at 197, 657 S.E.2d at 365 (citing Crowell Constructors, Inc. v. State
ex rel. Cobey, 328 N.C. 563, 563-64, 402 S.E.2d 407, 408 (1991) (per curiam) (holding
that because of the failure to include the notice of appeal in the record, in violation of
Rule 3, the Court of Appeals had no jurisdiction and the appeal must be dismissed);
In re Lynette H., 323 N.C. 598, 602, 374 S.E.2d 272, 274 (1988) (holding that the State
violated Rule 3 by failing to give timely notice of appeal, resulting in a lack of
jurisdiction)).
“[I]t is [the appellant’s] burden to produce a record establishing the jurisdiction
of the court from which appeal is taken, and his failure to do so subjects th[e] appeal
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to dismissal.” State v. Phillips, 149 N.C. App. 310, 313-14, 560 S.E.2d 852, 855,
appeal dismissed, 355 N.C. 499, 564 S.E.2d 230 (2002). Subject matter jurisdiction
cannot be waived by this Court or the parties, Inspection Station No. 31327 v. N.C.
Div. of Motor Vehicles, 244 N.C. App. 416, 428, 781 S.E.2d 79, 88 (2015), and because
such violation of Rule 3 is jurisdictional, plaintiff’s appeal must be dismissed.
IV. Conclusion
There is no indication in the record that Plaintiff properly and timely filed his
notice of appeal. As a result, this Court does not have jurisdiction to hear Plaintiff’s
appeal, and the appeal is therefore dismissed.
APPEAL DISMISSED.
Judges STROUD and MURPHY concur.
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