Adcox v. Clarkson Bros. Construction Co.

NO. COA14-313
NORTH CAROLINA COURT OF APPEALS
Filed: 16 September 2014
THOMAS F. ADCOX,
Employee,
Movant,
v. Johnston County
No. 13 CVS 1106
CLARKSON BROTHERS CONSTRUCTION
COMPANY,
Employer,
and
UTICA MUTUAL INSURANCE COMPANY,
Carrier,
Defendants.
Appeal by plaintiff from order entered 17 September 2013 by
Judge Thomas H. Lock in Johnston County Superior Court. Heard
in the Court of Appeals 28 August 2014.
R. James Lore, Attorney at Law, by R. James Lore; and
Nicholls & Crampton, PA, by Nicholas J. Dombalis, II, for
plaintiff-appellant.
Hedrick, Gardner, Kincheloe & Garofalo, LLP, by Kari L.
Schultz and M. Duane Jones, for defendants-appellees.
GEER, Judge.
In a 27 March 2008 opinion and award, the deputy
commissioner approved an attorneys' fee of 25% of the attendant
care compensation awarded to plaintiff Thomas F. Adcox for his
wife's services. Although defendants Clarkson Brothers
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Construction Company and Utica Mutual Insurance Company asked
the Full Commission to reverse this award, the Commission, in a
25 November 2008 opinion and award, affirmed the deputy
commissioner's opinion and award with modifications only as to
the amount and rate of pay for the attendant care -- the
Commission did not specifically address the 25% attorneys' fee
award.
Subsequently, plaintiff filed a motion seeking an order
requiring that the 25% be paid directly to plaintiff's counsel
in order to alleviate the bookkeeping burden on plaintiff's
wife. Defendants contended -- and the Commission agreed in an
order entered 10 December 2012 -- that the Commission's November
2008 opinion and award, by not specifically mentioning the
attorneys' fees, necessarily denied plaintiff's attorneys'
request for approval of a fee. Plaintiff appealed to the
superior court, and the trial court dismissed his appeal on the
grounds that the Commission had not, in its December 2012 order,
denied a request for fees.
We cannot agree with the Commission's and defendants'
position that the November 2008 opinion and award denied
plaintiff's attorneys' request for fees. Defendants' contention
that the Commission sub silentio reversed the deputy
commissioner's award of fees is not tenable and is inconsistent
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with controlling authority. The Commission's silence in
November 2008 on the issue of the deputy commissioner's award of
attorneys' fee can be interpreted in only one of two ways:
either the Commission affirmed the deputy commissioner or the
Commission did not address the issue.
In either event, defendants bore the burden to appeal that
opinion and award to this Court. When they failed to do so, the
deputy commissioner's approval of an attorneys' fee became the
law of the case, and the Commission had no authority to declare,
in December 2012, that the original panel had reversed the
deputy commissioner and denied plaintiff's request for approval
of an attorneys' fee. Consequently, we reverse and remand to
the trial court for further remand to the Commission for
reconsideration of plaintiff's motion.
Facts
On 28 February 1983, while employed by defendant Clarkson,
plaintiff suffered an admittedly compensable head injury that
left him permanently and totally disabled. Defendant Clarkson
and defendant Utica National Insurance Group agreed to
compensate plaintiff for his disability at a weekly rate of
$248.00.
In February 2003, the parties filed a settlement agreement
pursuant to which defendants agreed to pay plaintiff a lump sum
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of $250,000.00 in reimbursement for attendant care services
provided by plaintiff's family members, including his wife Joyce
Adcox, from 28 February 1983 until 3 February 2003. The
Commission approved a 25% attorneys' fee for plaintiff's
counsel, which was deducted from the sum due plaintiff and paid
directly to plaintiff's counsel. Thereafter, defendants
authorized and began providing plaintiff with 60 hours of in-
home professional attendant care services per week, provided by
Kelly Home Health Services.
In 2007, Mrs. Adcox retired, and plaintiff moved to have
defendants pay Mrs. Adcox directly for attendant care services
instead of Kelly Services. The matter was heard by Deputy
Commissioner John B. DeLuca on 30 August 2007. On 27 March
2008, the deputy commissioner entered an opinion and award
allowing Mrs. Adcox to assume attendant care responsibilities
seven days a week at a rate of $188.00 per day. In his award,
the deputy commissioner ordered that "[a]n attorneys' fee of 25%
of the attendant care compensation is approved for the
Plaintiff's counsel."
Both parties appealed to the Full Commission. On 25
November 2008, the Full Commission entered an opinion and award
affirming the deputy commissioner's opinion and award "with
modifications including the amount of attendant care and rate of
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pay for said care." The Full Commission allowed Mrs. Adcox to
assume attendant care responsibilities seven days per week for
16 hours per day at a rate of $10.00 per hour. The opinion and
award did not mention the 25% attorneys' fee award to
plaintiff's counsel. Plaintiff appealed to this Court for
reasons unrelated to the 25% attorneys' fee award. Defendants
chose not to appeal. On 8 December 2009, this Court affirmed
the 25 November 2008 opinion and award. See Adcox v. Clarkson
Bros. Constr. Co., 201 N.C. App. 446, ___ S.E.2d ___, 2009 WL
4576065, 2009 N.C. App. LEXIS 2308 (2009) (unpublished).
On 12 July 2012, plaintiff filed a motion with the Full
Commission requesting that it direct payment of the attorneys'
fees to plaintiff's counsel. The motion explained that "Mrs.
Adcox is responsible for her own income tax record-keeping and
reporting of the attendant care income she receives. For tax
purposes the failure by the carrier to direct separate checks
makes it appear as though Mrs. Adcox's attendant care income is
higher than it actually is." Plaintiff requested that
defendants be ordered to deduct 25% of the compensation payable
to Mrs. Adcox to be paid directly to plaintiff's counsel because
the record keeping "has become burdensome for Mrs. Adcox."
A new panel of commissioners heard plaintiff's 2012 motion.
Commissioners Linda Cheatham and Tammy R. Nance replaced
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Commissioners Dianne C. Sellers and Laura Kranifeld Mavretic
from the original 2008 panel. Commissioner Danny Lee McDonald
served on both panels. On 10 December 2012, the Full Commission
entered an order denying plaintiff's motion.
The Commission found that both parties had appealed Deputy
Commissioner DeLuca's opinion and award to the Full Commission.
Regarding defendants' appeal, the Commission noted that although
defendants had not specifically assigned error to the attorneys'
fee award in their form 44, they had generally challenged each
paragraph of the deputy's award and had addressed the 25%
attorneys' fee award in their brief to the Commission. The
Commission then concluded:
The Full Commission's Opinion and Award
filed on November 25, 2008 directs
Defendants to pay Mrs. Adcox for attendant
care services from the date of the filing of
the Opinion and Award at a rate of $10.00
per hour, 7 days per week, 16 hours per day.
The Opinion and Award does not include an
award of attorneys' fees for Plaintiff's
counsel.
Plaintiff appealed the Full
Commission's decision to the North Carolina
Court of Appeals. Based upon a review of
the Court's Opinion, it does not appear that
Plaintiff assigned error to the Full
Commission's decision in its Opinion and
Award not to award an attorneys' fee to
Plaintiff's counsel.
As Plaintiff seeks to have the Full
Commission direct Defendants to deduct and
pay directly to counsel for Plaintiff
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attorneys' fees which have not been awarded
by the Full Commission, Plaintiff's Motion
to Direct Payment of Attorneys' Fees to
Plaintiff's Counsel is hereby DENIED.
Commissioner McDonald -- the one commissioner who had served on
the 25 November 2008 panel -- dissented without opinion.
On 12 December 2012, plaintiff appealed the order to
superior court pursuant to N.C. Gen. Stat. § 97-90. On 19 June
2013, defendants moved to dismiss plaintiff's appeal pursuant to
Rules 12(b)(1), (2), and (6) of the Rules of Civil Procedure.
On 25 June 2013, plaintiff moved to strike defendants' motion to
dismiss for lack of standing.
After a 26 August 2013 hearing, the trial court entered an
order dismissing plaintiff's appeal on 17 September 2013. The
trial court took judicial notice of the 25 November 2008 opinion
and award and the 10 December 2012 order of the Full Commission.
It found in pertinent part:
(2) that the December 10, 2012 Order
from which Movant now purportedly appeals
did not deny any attorneys fees, but simply
clarified that the Commission had not
awarded attorneys fees in the November 25,
2008 Order;
(3) that Movant's litigated request for
attorney fees was denied on November 25,
2008;
(4) that Movant's current request for
attendant care attorney fees per N.C. Gen.
Stat. § 9-90 [sic] should be barred by § 97-
90 and the doctrine of res judicata;
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(5) that the November 25, 2008, Order
of the North Carolina Industrial Commission
and the parties' appeal therefrom to the
North Carolina Court of Appeals, represented
a final judgment on the merits as to the
issue of any attorney fee based on a
percentage of attendant care medical
benefits provided to Movant pursuant to
North Carolina General Statutes § 97-25,
which is the only claim at issue in this
litigation[.]
The trial court, therefore, dismissed plaintiff's appeal with
prejudice. Plaintiff timely appealed to this Court.
Discussion
Plaintiff first contends that defendants lacked standing to
oppose both his motion to the Full Commission and his appeal
from the 10 December 2012 decision of the Full Commission to
superior court. As explained by this Court in Diaz v. Smith,
___ N.C. App. ___, ___, 724 S.E.2d 141, 144 (2012) (internal
citations and quotation marks omitted):
The Workers' Compensation Act provides that
an appeal from an opinion and award of the
Industrial Commission is subject to the same
terms and conditions as govern appeals from
the superior court to the Court of Appeals
in ordinary civil actions. Under N.C. Gen.
Stat. § 1–271 (2009), "[a]ny party
aggrieved" is entitled to appeal in a civil
action. A party aggrieved is one whose
legal rights have been denied or directly
and injuriously affected by the action of
the trial tribunal. If the party seeking
appeal is not an aggrieved party, the party
lacks standing to challenge the lower
tribunal's action and any attempted appeal
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must be dismissed.
Plaintiff argues that because his motion to direct payments
to plaintiff's counsel does not affect the total amount to be
paid by defendants, defendants are not an "aggrieved" party.
Defendants counter that they are an "aggrieved" party because
(1) "if Plaintiff's Counsel is awarded attorney's fees as a
result of this appeal, Defendants would either be required to
pay an additional 25% in the form of attorneys [sic] fees, or
fund Plaintiff's Counsel's attorney's fees by reducing the
amount of compensation to Mrs. Adcox, thereby subjecting
Defendants to liability for compensation owed to Mrs. Adcox, as
mandated in the Opinion and Award" and (2) "allowing a
plaintiff's counsel to have a pecuniary interest in an
authorized medical provider could create a conflict between his
obligations to represent his client and a defendant's obligation
to manage medical treatment pursuant to N.C. Gen. Stat. § 97-
25."
Because of our resolution of this appeal, we need not
decide whether defendants have standing in this case to
challenge an award of attorneys' fees to plaintiff's attorney
that does not affect the total amount payable by defendants. We
express no opinion whether defendants' contentions are
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sufficient to make them aggrieved parties for purposes of an
appeal.
Plaintiff's primary argument on appeal is that the trial
court erred in finding that the Full Commission denied his
request for attorneys' fees in its 25 November 2008 opinion and
award and, as a result, erred in dismissing his appeal on the
grounds of res judicata. Plaintiff argues that the deputy
commissioner's award of attorneys' fees became final when
defendants did not specifically assign as error the award of
attorneys' fees in their Form 44 as required by Rule 701 of the
Workers' Compensation Rules of the North Carolina Industrial
Commission. Alternatively, plaintiff argues that the Commission
affirmed the award of attorneys' fees. We review these
questions of law de novo. McAllister v. Wellman, Inc., 162 N.C.
App. 146, 148, 590 S.E.2d 311, 312 (2004).
Rule 701 provides:
(2) After receipt of notice of appeal,
the Industrial Commission will supply to the
appellant a Form 44 Application for Review
upon which appellant must state the grounds
for the appeal. The grounds must be stated
with particularity, including the specific
errors allegedly committed by the
Commissioner or Deputy Commissioner and,
when applicable, the pages in the transcript
on which the alleged errors are recorded.
Failure to state with particularity the
grounds for appeal shall result in
abandonment of such grounds, as provided in
paragraph (3). . . .
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(3) Particular grounds for appeal not
set forth in the application for review
shall be deemed abandoned, and argument
thereon shall not be heard before the Full
Commission.
(Emphasis added.)
This Court has emphasized that "the portion of Rule 701
requiring appellant to state with particularity the grounds for
appeal may not be waived by the Full Commission. Without notice
of the grounds for appeal, an appellee has no notice of what
will be addressed by the Full Commission." Roberts v. Wal-Mart
Stores, Inc., 173 N.C. App. 740, 744, 619 S.E.2d 907, 910
(2005). "Such notice is required for the appellee to prepare a
response to an appeal to the Full Commission." Wade v. Carolina
Brush Mfg. Co., 187 N.C. App. 245, 252, 652 S.E.2d 713, 717
(2007). Thus, "the penalty for non-compliance with the
particularity requirement is waiver of the grounds, and, where
no grounds are stated, the appeal is abandoned." Id. at 249,
652 S.E.2d at 715.
Defendants argue that they properly appealed the issue of
attorneys' fees to the Full Commission because they specifically
listed Deputy Commissioner DeLuca's Award, which included the
award of attorneys' fees, in the third assignment of error on
their Form 44 Application for review:
Deputy Commissioner John B. DeLuca's Award,
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dated March 27, 2008, on the grounds that it
is based upon Findings of Fact and
Conclusions of Law which are erroneous, not
supported by competent evidence or evidence
of record, and are contrary to the competent
evidence of record, and are contrary to law:
Award Nos. 1-3.
This assignment of error is similar to the appellant's
assignment of error in Walker v. Walker, 174 N.C. App. 778, 782,
624 S.E.2d 639, 642 (2005), which asserted generally that
several rulings of the trial court were "'erroneous as a matter
of law.'" In concluding that this assignment of error was
insufficient under the 2005 version of Rule 10 of the Rules of
Appellate Procedure, this Court held that the "assertion that a
given finding, conclusion, or ruling was 'erroneous as a matter
of law'" violated Rule 10 because it "completely fail[ed] to
identify the issues actually briefed on appeal." Walker, 174
N.C. App. at 782, 624 S.E.2d at 642. Instead, "'[s]uch an
assignment of error is designed to allow counsel to argue
anything and everything they desire in their brief on appeal.
This assignment -- like a hoopskirt -- covers everything and
touches nothing.'" Id. at 783, 624 S.E.2d at 642 (quoting
Wetchin v. Ocean Side Corp., 167 N.C. App. 756, 759, 606 S.E.2d
407, 409 (2005)).
Similarly, here, defendant's assignment of error "'covers
everything and touches nothing.'" Id. (quoting Wetchin, 167
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N.C. App. at 759, 606 S.E.2d at 409). Although it states a
general objection to each paragraph of the award (without
specifically mentioning the attorneys' fee award), it does not
state the basis of any objection to the attorneys' fee award
with sufficient particularity to give plaintiff notice of the
legal issues that would be addressed by the Full Commission such
that he could adequately prepare a response. See Roberts, 173
N.C. App. at 744, 619 S.E.2d at 910.
Defendants' third assignment of error also is in stark
contrast to defendants' fourth assignment of error: "Deputy
Commissioner John B. DeLuca's Award dated March 27, 2008, in
that it failed to award attorney fees as requested by Defendants
pursuant to §97-88.1." In this assignment of error, defendants
indicated specifically which particular aspect of the award they
challenged. Significantly, defendants did not include a similar
assignment of error for the award of attorneys' fees challenged
here.
Defendants nonetheless contend that they met the
particularity requirement by addressing the question of
attorneys' fees in their brief to the Full Commission, citing
Cooper v. BHT Enters., 195 N.C. App. 363, 672 S.E.2d 748 (2009).
In Cooper, the plaintiff argued that, pursuant to Roberts, the
defendant's failure to file a Form 44 constituted an abandonment
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of defendants' grounds for appeal to the Full Commission, and
therefore the Commission erred by hearing the appeal. Id. at
368, 672 S.E.2d at 753. This Court disagreed, reasoning that
unlike the appealing plaintiff in Roberts,
defendants in the present case complied with
Rule 701(2)'s requirement to state the
grounds for appeal with particularity by
timely filing their brief after giving
notice of their appeal to the Full
Commission. Additionally, plaintiff does
not argue that she did not have adequate
notice of defendants' grounds for appeal.
Plaintiff asserts only that defendants'
failure to file a Form 44 should have been
deemed an abandonment of defendants' appeal.
Since both this Court and the plain language
of the Industrial Commission's rules have
recognized the Commission's discretion to
waive the filing requirement of an
appellant's Form 44 where the appealing
party has stated its grounds for appeal with
particularity in a brief or other document
filed with the Full Commission, we overrule
these assignments of error.
Id. at 368-69, 672 S.E.2d at 753-54.
In other words, failure to file a Form 44 does not
automatically result in a mandatory dismissal of the appeal by
the Industrial Commission -- it is within the discretion of the
Commission whether to deem the grounds for appeal waived. In
determining whether the Commission abused its discretion in
deciding not to deem an issue on appeal waived, this Court in
Cooper considered whether the appellant provided the appellee
with adequate notice of the grounds for appeal through other
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means such as addressing the issue in its brief to the Full
Commission.
Here, unlike in Cooper, the Commission did not explicitly
address the issue purportedly raised by defendants on appeal in
its opinion and award. Under Cooper, it would not have been an
abuse of discretion for the Commission to address the attorneys'
fee issue, but it is unclear whether the Commission considered
the issue or not. Although defendants contend that the "Full
Commission Award removed the appealed prior award of attendant
care attorney fees and awarded attendant care compensation to be
paid directly to Mrs. Adcox[,]" nothing in the Commission's
Opinion and Award indicates that it was "remov[ing]" the
attorneys' fee award. Defendants have cited no authority -- and
we have found none -- supporting their position that silence by
the Commission regarding a determination by the deputy
commissioner can amount to reversal.
In fact, this Court has already rejected such a contention
in Polk v. Nationwide Recyclers, Inc., 192 N.C. App. 211, 664
S.E.2d 619 (2008). In Polk, the plaintiff argued that the Full
Commission failed to consider all the evidence presented
because, unlike the deputy commissioner's order, the Full
Commission did not make findings regarding all the issues
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presented on appeal. Id. at 218, 664 S.E.2d at 624. The Court
rejected the plaintiff's argument, reasoning:
[I]n this case, the Full Commission's
opinion states outright that it "affirms the
Opinion and Award of Deputy Commissioner
Deluca with modifications." . . . That is,
the Full Commission's opinion is not an
order meant to stand on its own, but rather
a modification of the deputy commissioner's
order. As plaintiff herself states, the
facts at issue were included in the deputy
commissioner's order. We see no reason to
require that such an order restate all the
findings of fact and conclusions of law from
the original order that need no
modification. Considering that defendants
filed an appeal containing thirty-two
alleged errors, it is not surprising that
the Full Commission did not address each
individually.
Id. This Court assumed with regard to the omitted findings that
the Commission wished to affirm the deputy commissioner's
opinion and award, nothing else appearing in the opinion and
award to the contrary. Id. at 218-19, 664 S.E.2d at 624.
Similarly, here, the Full Commission's opinion and award
states that it "affirms the Opinion and Award of Deputy
Commissioner DeLuca with modifications including the amount of
attendant care and rate of pay for said care." As such, the
Full Commission's opinion "is not an order meant to stand on its
own." Id. at 218, 664 S.E.2d at 624. It is undisputed that the
deputy commissioner awarded attorneys' fees to plaintiff's
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counsel, and there is no indication that the Commission intended
to modify that award.
Indeed, plaintiff correctly notes that under N.C. Gen.
Stat. § 97-90(c) (2013), the statute authorizing the award of
attorneys' fees in this instance, any decision by the Commission
to deny attorneys' fees must be supported by specific findings.
N.C. Gen. Stat. § 97-90(c) provides:
If an attorney has an agreement for fee or
compensation under this Article, he shall
file a copy or memorandum thereof with the
hearing officer or Commission prior to the
conclusion of the hearing. If the agreement
is not considered unreasonable, the hearing
officer or Commission shall approve it at
the time of rendering decision. If the
agreement is found to be unreasonable by the
hearing officer or Commission, the reasons
therefor shall be given and what is
considered to be reasonable fee allowed.
The lack of findings in the November 2008 opinion and award to
justify a denial of attorneys' fees is contrary to defendants'
contention and the Commission's assumption that the Commission
in 2008 intended to deny the fee request.
In short, based on a review of the November 2008 opinion
and award, either the Commission intended to affirm the deputy
commissioner's award, or, alternatively, the Full Commission did
not consider the issue -- whether through inadvertence or
because it deemed the matter waived. Nothing in the opinion and
award suggests and no authority exists that we can find, which
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would permit us to conclude that the Commission reversed the
deputy commissioner's award and silently denied plaintiff's
counsel the 25% attorneys' fee.
Assuming, without deciding, that defendants had standing to
challenge the deputy commissioner's award of attorneys' fees,
the burden was on defendants to obtain a ruling from the Full
Commission. When the Full Commission failed to explicitly
reverse the deputy commissioner's award, defendants could have
requested reconsideration and, if the Commission did not rule in
their favor, appealed to this Court. See Hurley v. Wal-Mart
Stores, Inc., ___ N.C. App. ___, ___, 723 S.E.2d 794, 798 (2012)
(holding where Commission failed to address defendants' appeal
of deputy commissioner's award of attorneys' fees to plaintiff's
counsel in its opinion and award, defendants properly appealed
to this Court after Commission denied their motion to
reconsider).
This Court has held that "when a party fails to appeal from
a tribunal's decision that is not interlocutory, the decision
below becomes 'the law of the case' and cannot be challenged in
subsequent proceedings in the same case." Boje v. D.W.I.T.,
L.L.C., 195 N.C. App. 118, 122, 670 S.E.2d 910, 912 (2009).
Here, when defendants failed to appeal the Full Commission's 25
November 2008 opinion and award, defendants abandoned any
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contention that the ruling was erroneous, and the deputy
commissioner's award of attorneys' fees became the law of the
case.
Under the law of the case doctrine, defendants could not
attack and the Commission could not reverse the award of
attorneys' fees. See id. (holding that "since [defendant] did
not appeal Deputy Commissioner Berger's 2003 opinion and award
finding that it did not have workers' compensation insurance
coverage on the date of plaintiff's accident," this finding was
the law of the case, and defendant "was barred from relitigating
that issue in subsequent proceedings").
Because the November 2008 opinion and award left the deputy
commissioner's award standing, plaintiff's 12 July 2012 motion
to direct payment of attorneys' fees to plaintiff's counsel was
not, as defendants contend, a motion to re-litigate the
substantive issue whether attorneys' fees had been awarded by
the Full Commission. Rather, it was simply a procedural motion
regarding the way in which the awarded fees would be paid. The
Commission's December 2012 order, as a result, had the effect of
improperly denying plaintiff's attorneys' fees. Consequently,
plaintiff was entitled to appeal the December 2012 order to
superior court pursuant to N.C. Gen. Stat. § 97-90, and the
superior court erred in dismissing plaintiff's appeal.
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Defendants, nevertheless, contend that the Commission and
the superior court did not have authority to award plaintiff's
counsel fees under the rule set forth in Palmer v. Jackson, 157
N.C. App. 625, 579 S.E.2d 901 (2003). This argument --
addressing the merits of plaintiff's request for attorneys' fees
-- is not properly before this Court because the award of
attorneys' fees is the law of the case. See Barrington v. Emp't
Sec. Comm'n, 65 N.C. App. 602, 605, 309 S.E.2d 539, 541 (1983)
(declining to consider appellant's legal arguments when bound by
law of the case). Defendants' arguments should have been raised
in the first appeal to this Court. Nothing in this opinion
expresses any view regarding defendants' arguments under Palmer.
We, therefore, reverse and remand to the superior court for
remand to the Commission. On remand, since the Commission
denied plaintiff's motion under a misapprehension of law
regarding the effect of its 2008 opinion and award, the
Commission must reconsider its ruling on that motion.
Reversed and remanded.
Judge STEELMAN concurs.
Judge ROBERT N. HUNTER, JR. concurred in this opinion prior
to 6 September 2014.