Henslee v. N.C. Dep't of Pub. Safety

An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
NO. COA13-739
NORTH CAROLINA COURT OF APPEALS
Filed: 21 January 2014
JONATHAN HENSLEE,
Plaintiff
v. Industrial Commission
No. TA-22724
NORTH CAROLINA DEPARTMENT
OF PUBLIC SAFETY,
Defendant
Appeal by plaintiff from decision and order entered 20
March 2013 by the North Carolina Industrial Commission. Heard
in the Court of Appeals 30 December 2013.
Plaintiff-appellant Jonathan Henslee, pro se.
Attorney General Roy Cooper, by Associate Attorney General
Adrian W. Dellinger, for defendant-appellee North Carolina
Department of Public Safety.
HUNTER, JR., Robert N., Judge.
Plaintiff Jonathan Henslee appeals from a decision and
order of the North Carolina Industrial Commission (“the
Commission”) denying his claim pursuant to the Tort Claims Act.
We dismiss the appeal.
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Plaintiff had a statutory right to appeal to this Court
from the Commission’s final decision and order. N.C. Gen. Stat.
§ 7A-29(a) (2013). However, “‘[w]ithout proper notice of
appeal, the appellate court acquires no jurisdiction and neither
the court nor the parties may waive the jurisdictional
requirements even for good cause shown under Rule 2 [of the
Rules of Appellate Procedure].’” Finley Forest Condo. Ass’n v.
Perry, 163 N.C. App. 735, 741, 594 S.E.2d 227, 231 (2004)
(internal quotation marks and citation omitted). Therefore, an
appellant’s failure to file a written notice of appeal and
include the notice in the record on appeal are sufficient
grounds to dismiss the appeal. In re Me.B., 181 N.C. App. 597,
600, 640 S.E.2d 407, 409 (2007).
Here, plaintiff’s record on appeal does not contain a
written notice of appeal to this Court from the Commission’s
final order and decision, and plaintiff has failed to satisfy
the jurisdictional requirement of demonstrating he filed written
notice of appeal. Although plaintiff is acting pro se, he must
still comply with the Rules of Appellate Procedure. Bledsoe v.
County of Wilkes, 135 N.C. App. 124, 125, 519 S.E.2d 316, 317
(1999). Therefore, in the absence of a notice of appeal in the
record on appeal, plaintiff’s appeal is subject to dismissal.
-3-
Finally, we note that plaintiff has not petitioned this
Court for a writ of certiorari requesting review of the
Commission’s order, and “[i]t is not the role of the appellate
courts . . . to create an appeal for an appellant.” Viar v.
N.C. DOT, 359 N.C. 400, 402, 610 S.E.2d 360, 361, reh’g denied,
359 N.C. 643, 617 S.E.2d 662 (2005). Accordingly, we dismiss
the appeal.
Dismissed.
Chief Judge MARTIN and Judge DILLON concur.
Report per Rule 30(e).