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Wright v. Alltech Wiring & Controls

Court of Appeals of North Carolina

March 19, 2019

TRISHA WRIGHT, Administratrix of the Estate of CHRISTOPER [sic] WRIGHT, Deceased Employee, Plaintiff,
v.
ALLTECH WIRING & CONTROLS, Employer, BUILDERS MUTUAL INSURANCE COMPANY, Carrier, Defendants.

          Heard in the Court of Appeals 31 January 2019.

          Appeal by plaintiff from opinion and award entered 22 June 2018 by the North Carolina Industrial Commission No. 16-732670.

          Knott & Boyle, PLLC, by Bruce W. Berger and Ben Van Steinburgh, for plaintiff-appellant.

          Goldberg Segalla LLP, by Gregory S. Horner and Alexandra S. Kensinger, for defendants-appellees.

          ZACHARY, JUDGE.

         Trisha Wright, Administratrix of the Estate of Christopher Wright ("Plaintiff"), appeals from an Opinion and Award entered 22 June 2018 by the Full Commission of the North Carolina Industrial Commission. Plaintiff argues that the Industrial Commission erred by failing to conclude that Mr. Wright's death occurred in the course and scope of his employment. For the reasons explained below, we affirm.

         I. Background

         Alltech Wiring & Controls ("the Company") employed Mr. Wright as an Estimator. Mr. Wright's duties required him to visit client job sites to prepare estimates for the installation of security systems. On the vast majority of days, Mr. Wright would leave home in the morning and travel to the office before heading to a client job site. On some mornings, however, Mr. Wright would travel directly from his home to a job site. Similarly, on most days, Mr. Wright would leave a job site and return to the office before going home at the end of the workday. The Company provided Mr. Wright and other employees with company-owned work trucks in order to perform their work obligations. Mr. Wright used the work truck assigned to him for his commute, and for travel to and from job sites.

         On 1 February 2016, Mr. Wright left the office at approximately 5:29 p.m. and began driving home in his work truck. Mr. Wright spoke to Jerry Phillips, the owner of the Company, on his work cell phone from 5:27 p.m. to 5:40 p.m. Mr. Wright then stopped at a Target store on his way home, and from 5:43 p.m. to 5:54 p.m., his work truck was stationary with the ignition turned off. From 5:54 p.m. to 5:56 p.m., Mr. Wright spoke with his wife on the phone. At approximately 5:57 p.m., Mr. Wright collided with another vehicle on White Oak Road, a route he frequently used during his commute. At 7:00 p.m., Mr. Wright died as a result of his injuries.

         On 14 June 2016, Plaintiff filed a Form 18 claiming that Mr. Wright's dependents were entitled to death benefits. Defendants filed a Form 61 on 6 July 2016, denying that Mr. Wright's death occurred in the course and scope of his employment. Plaintiff filed a Form 33 requesting a hearing, and the matter came before Deputy Commissioner Melanie Wade Goodwin on 12 January 2017. On 22 March 2017, Deputy Commissioner Goodwin filed an Opinion and Award denying Plaintiff's claim for benefits. Plaintiff appealed to the Full Commission. After a hearing, on 22 June 2018, the Full Commission issued an Opinion and Award affirming the Deputy Commissioner's decision denying benefits.

         II. Appellate Jurisdiction

         Plaintiff filed a notice of appeal to this Court on 26 June 2018. However, on 28 November 2018, Defendants filed a motion to dismiss, arguing that pursuant to this Court's recent opinion in Bradley v. Cumberland County, the record on appeal failed to establish that Plaintiff's notice of appeal was timely filed. See Bradley v. Cumberland Cty., __ N.C.App. __, __, 822 S.E.2d 416, 417 (2018) (dismissing an appeal for lack of jurisdiction where the notice of appeal bore neither time nor file stamp, and the record contained no evidence "indicating if or when the Industrial Commission received Plaintiff's notice of appeal"), petition for disc. review filed, No. 438P18, __ N.C. __, __S.E.2d __(filed Dec. 14, 2018). Later that same day, Plaintiff filed a Motion to Add Portion to Record on Appeal to include a file-stamped copy of the notice of appeal and a letter from the Industrial Commission acknowledging its receipt. Plaintiff subsequently filed a Conditional Petition for Writ of Certiorari and Motion to Substitute Conditional Petition for Writ of Certiorari requesting review, should we deem the notice of appeal deficient in light of Bradley.

         Notwithstanding Defendants' arguments for dismissal, this Court's holding in Bradley was not exceptional. We merely reaffirmed the well-established rule that failure to timely file notice of appeal is a jurisdictional defect that precludes this Court's ability to review the merits of a case. See Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 198, 657 S.E.2d 361, 365 (2008) (explaining that "the time limits for taking appeal may not be extended by any court" (internal ellipsis omitted)). "[A] jurisdictional default brings a purported appeal to an end before it ever begins." Id.

         The notice of appeal in Bradley was replete with defects; however, the fatal error was the absence of evidence-beyond the "date . . . affixed by Plaintiff's counsel [but] . . . not confirmed by proof of service"-that appeal was timely taken. Bradley, __ N.C.App. at __, 822 S.E.2d at 420. The notice was printed on the appellant's law firm's letterhead and addressed to a commissioner of the Industrial Commission, confirmation receipt requested. Bradley, __ N.C.App. at __, 822 S.E.2d at 417. Despite the inclusion of a statement that the notice was submitted via electronic filing portal, there was no evidence that it was timely filed, and the record was devoid of "any acknowledgement from the Industrial Commission indicating receipt" of the notice. Bradley, __ N.C.App. at __, 822 S.E.2d at 420; cf. 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."). Given the jurisdictional implications of a party's failure to timely and properly appeal, "[w]e will not assume the notice of appeal was timely filed solely based upon Plaintiff's unverified notice of appeal." Bradley, __ N.C.App. at __, 822 S.E.2d at 420.

         Moreover, although "the time limits for taking appeal may not be extended by any court[, ]" Dogwood, 362 N.C. at 198, 657 S.E.2d at 365 (internal ellipsis omitted), our Court has discretionary authority to issue a writ of certiorari in order "to permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action[.]" N.C. R. App. P. 21(a)(1). Unlike in Bradley, here, Plaintiff both requested review by certiorari and moved to amend the record to cure the jurisdictional defect prior to the date on which this case was heard by this Court.

         By orders entered 15 January 2019, this Court denied Defendants' Motion to Dismiss and granted Plaintiff's Motion to Add Portion to Record on Appeal. See Williams v. United Cmty. Bank, 218 N.C.App. 361, 366-67, 724 S.E.2d 543, 548 (2012) (granting the plaintiff's motion to amend the appellate record to add a notice of appeal and denying the defendant's motion to dismiss). Accordingly, we need not exercise our discretionary authority under Rule 21 in order to reach the merits of Plaintiff's appeal. Therefore, we dismiss as moot Plaintiff's Conditional Petition for Writ of Certiorari and Motion to Substitute Conditional Petition for Writ of Certiorari.

         III. Discussion

         Plaintiff argues that the Industrial Commission erred by failing to conclude that Mr. Wright's death occurred in the course ...


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