BELINDA FOUSHEE, Executor of the Estate of ANNEKA FOUSHEE, Plaintiff,
APPALACHIAN STATE UNIVERSITY, Defendant.
in the Court of Appeals 24 August 2017.
by plaintiff from the order of the North Carolina Industrial
Commission entered 28 November 2016 by Commissioner Linda
Cheatham for the Full Commission No. TA-25581.
Wallace & Graham, P.A., by Edward L. Pauley, for
Attorney General Joshua H. Stein, by Assistant Attorney
General Christina S. Hayes, for defendant-appellant.
State University ("defendant") appeals from the
Full Commission's dismissal of its appeal on 28 November
2016. For the following reasons, we dismiss defendant's
Foushee ("plaintiff"), as executor of the estate of
her daughter Anneka Foushee, commenced this wrongful death
action against defendant on 7 April 2016 by filing a Form T-1
Affidavit with the North Carolina Industrial Commission (the
"Commission") under the North Carolina Tort Claims
Act, N.C. Gen. Stat. § 143-291, et seq.
Defendant responded on 10 June 2016 by filing a motion to
dismiss pursuant to Rule 12(b)(6) and (2). Defendant asserted
(1) the plaintiff failed to state a claim upon which relief
could be granted because the applicable ten year statute of
repose expired prior to plaintiff's filing of the Form
T-1; and (2) because the statute of repose had expired, the
State had not waived sovereign immunity in this case because,
under the Tort Claims Act, the State and its agencies are
liable for negligence only under circumstances where a
private person would be liable. Plaintiff filed a response to
defendant's motion to dismiss on 23 June 2016 and on the
same day a deputy commissioner entered an order denying
July 2012, defendant gave notice of appeal seeking the
immediate review of the Full Commission. Defendant's
appeal was referred to the chairman for a ruling on the right
of immediate appeal. On 22 July 2016, the chairman entered an
order, and then an amended order, denying defendant's
request for immediate review of the deputy commissioner's
23 June 2016 order by the Full Commission. In the amended
order, the chairman explained that the deputy
commissioner's order was interlocutory and although
denial of a Rule 12(b)(2) motion based on sovereign immunity
constitutes an adverse ruling on personal jurisdiction and is
immediately appealable, in the instant case,
"[d]efendant's sovereign immunity argument is
actually based on [the] statute of repose, not immunity from
suit." Thus, defendant had not met its burden of showing
it would be deprived a substantial right.
filed a motion to reconsider the chairman's order on 8
August 2016 and the chairman denied the motion by order filed
23 August 2016. Defendant then filed notice of appeal from
the chairman's 22 July 2016 amended order to the Full
Commission on 25 August 2016.
filed a motion to dismiss defendant's appeal of the
chairman's amended order to the Full Commission on 26
August 2016. Plaintiff argued the appeal of the
chairman's amended order was interlocutory and should be
dismissed. On 28 November 2016, the Full Commission filed an
order dismissing defendant's appeal. The Full Commission
explained that "[n]either the State's Tort Claims
Act, nor the Commission's Tort Claims Rules
provide for a right of immediate appeal to the Full
Commission from interlocutory Orders."
filed notice of appeal to this Court from the Full
Commission's 28 November 2016 order on 19 December 2016.
sole issue on appeal is the Full Commission's dismissal
of defendant's interlocutory appeal. Plaintiff moved to
dismiss defendant's appeal as interlocutory. We agree
that the appeal is interlocutory and dismiss defendant's