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Foushee v. Appalachian State University

Court of Appeals of North Carolina

September 19, 2017

BELINDA FOUSHEE, Executor of the Estate of ANNEKA FOUSHEE, Plaintiff,
v.
APPALACHIAN STATE UNIVERSITY, Defendant.

          Heard in the Court of Appeals 24 August 2017.

          Appeal 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 plaintiff-appellee.

          Attorney General Joshua H. Stein, by Assistant Attorney General Christina S. Hayes, for defendant-appellant.

          ARROWOOD, Judge.

         Appalachian 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 appeal.

         I. Background

         Belinda 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 defendant's motion.

         On 8 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.

         Defendant 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.

         Plaintiff 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."

         Defendant filed notice of appeal to this Court from the Full Commission's 28 November 2016 order on 19 December 2016.

         II. Discussion

         The 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 ...


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