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  "name": "INA J. SEIGEL, Plaintiff v. RAMAN K. PATEL and VISHNU, INC., Defendants",
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    "judges": [
      "Judges WALKER and TIMMONS-GOODSON concur."
    ],
    "parties": [
      "INA J. SEIGEL, Plaintiff v. RAMAN K. PATEL and VISHNU, INC., Defendants"
    ],
    "opinions": [
      {
        "text": "LEWIS, Judge.\nPlaintiff was the manager of a motel owned by defendant Vishnu, Inc. (\u201cVishnu\u201d), of which defendant Patel is a shareholder and authorized agent. While at work on 10 July 1992, the then-sixty year-old plaintiff fell and broke her ankle. The injury required surgery and, according to plaintiff, a woman in the hospital\u2019s admitting department told her that Patel \u201csaid that he would take care of all the medical expense \u2014 not to worry.\u201d Patel made a similar statement to plaintiffs son, and the hospital\u2019s records confirm that Patel promised the hospital on multiple occasions that he would pay for plaintiff\u2019s treatment. Although Vishnu had more than three full-time employees at the time of plaintiff\u2019s accident, the company did not have worker\u2019s compensation insurance, in violation of N.C. Gen. Stat. \u00a7 97-93 (Cum. Supp. 1998).\nAfter receiving statements from the hospital and filing them for Patel, plaintiff realized in early 1993 that Patel had not paid the bills. Plaintiff saw a lawyer, who offered to write a letter to Patel on her behalf. Plaintiff declined the attorney\u2019s services at that time, preferring instead to talk to Patel about the situation. When plaintiff did so, Patel again assured her that he would pay. Plaintiff saw no more statements from the hospital and believed that Patel had kept his word.\nPlaintiff realized when the hospital sued her in 1995 that Patel still had not paid the bills. The hospital obtained a default judgment against plaintiff in the amount of $6,733.50 on 8 August 1995. Faced with significant medical debts, plaintiff filed for bankruptcy under Chapter 7 on 10 October 1995. She has since been discharged of these debts.\nPlaintiff filed suit on 20 November 1996 in Yadkin County Superior Court. After the trial court denied defendants\u2019 motion to dismiss the case under N.C.R. Civ. P. 12(b)(6) on 11 April 1997, defendants answered and counterclaimed, and the parties conducted discovery. Defendants moved for summary judgment on 25 August 1997, and this motion was granted on 31 October 1997. Because defendants still had pending a counterclaim to . recover fees, plaintiff did not appeal from the trial court\u2019s summary judgment order at that time.\nAfter the trial court denied defendants\u2019 motion to recover their fees on 27 February 1998, the court denied plaintiff\u2019s motion for reconsideration on 13 March 1998. Plaintiff then gave notice of appeal on 27 March 1998 and served her proposed case on appeal upon defendants on 17 April 1998. Defendants served upon plaintiff their notice of objections and proposed amendments to the record on appeal pursuant to N.C.R. App. P. 11. In a letter dated 12 May 1998, plaintiff\u2019s attorney agreed to all but one of defendants\u2019 objections and proposals, and he added stipulations. Counsel for plaintiff indicated that he would \u201cconsider the record settled\u201d if he did not hear from defendants\u2019 attorney. Receiving no response, plaintiff filed the record 1 June 1998 without an indication that it had been settled. Defendants then moved to dismiss plaintiff\u2019s appeal for violations of the Rules of Appellate Procedure. The motion has been referred to this panel for consideration, and our decision to grant or deny the motion will produce the same ultimate result for plaintiff.\nDespicable as the behavior of defendant Patel appears, plaintiff cannot win on this appeal. First, while plaintiff\u2019s counsel may have relied in good faith on defendants\u2019 counsel to respond to his letter of 12 May 1998, and while the failure of defendants\u2019 counsel to do so may appear suspicious, it is ultimately the appellant\u2019s responsibility to settle the record on appeal. See N.C.R. App. P. 9(a)(1)(I); Edwards v. West, 128 N.C. App. 570, 572, 495 S.E.2d 920, 922, cert. denied, 348 N.C. 282, 501 S.E.2d 918 (1998). Members of the bar should exercise a certain degree of caution in their expectations of one another and not be so willing to rely on common courtesy that they neglect to follow the Rules of Appellate Procedure. There is no settled record on this appeal, and we could dismiss it for this failure to comply with the Rules. Although we may invoke Rule 2 and deny defendants\u2019 motion to dismiss this appeal in an effort \u201c[t]o prevent manifest injustice to [plaintiff],\u201d plaintiff loses on other procedural grounds.\nPlaintiff must next overcome questions regarding the subject matter jurisdiction of her suit. Defendants argue that the exclusive venue for a claim by an employee against an employer for injuries arising in the course of employment is the North Carolina Industrial Commission, citing N.C. Gen. Stat. \u00a7 97-10.1 (1991), but plaintiff did not file her claim there. A closer reading of section 97-10.1 reveals defendants\u2019 omission of important language at the beginning of this statute when quoting it in their brief: \u201cIf the employee and the employer are subject to and have complied with the provisions of this Article,\u201d it is the employee\u2019s exclusive source of her rights and remedies. Id. (emphasis added). Because Vishnu has not complied with the provisions of the article by failing to secure compensation, plaintiff argues that section 97-94 permits her to bring this claim outside the Industrial Commission. Specifically, this section provides in pertinent part:\nAny employer required to secure the payment of compensation under this Article who refuses or neglects to secure such compensation shall be punished by a penalty of one dollar ($1.00) for each employee, but not less than fifty dollars ($50.00) nor more than one hundred dollars ($100.00) for each day of such refusal or neglect, and until the same ceases; and the employer shall be liable during continuance of such refusal or neglect to an employee either for compensation under this Article or at law at the election of the injured employee.\nN.C. Gen. Stat. \u00a7 97-94(b) (Cum. Supp. 1998) (emphasis added). It is worth noting from the plain language of the statute that while the statute may arguably permit plaintiff to bring her claim at law, the Industrial Commission is not precluded from hearing claims against noncompliant employers.\nPlaintiff\u2019s actual complaint, however, makes no reference to Chapter 97. The complaint indicates not that this is a worker\u2019s compensation claim brought in a court of law at plaintiff\u2019s election, but a claim for fraud and unfair trade practices against her employer under Chapter 75. It is the law of this state that plaintiff cannot bring such an action against her employer. See Buie v. Daniel Int\u2019l, 56 N.C. App. 445, 448, 289 S.E.2d 118, 119-20 (\u201cUnlike buyer-seller, relationships, we find that employer-employee relationships do not fall within the intended scope of G.S. 75-1.1 .... Employment practices fall within the purview of other statutes adopted for that express purpose.\u201d), disc. review denied, 305 N.C. 759, 292 S.E.2d 574 (1982).\nPlaintiff argues that our recent decision in Johnson v. First Union Corp., 128 N.C. App. 450, 496 S.E.2d 1 (1998), which was filed after summary judgment was granted in the instant case, establishes that a superior court can have subject matter jurisdiction over a Chapter 75 claim by an employee against her employer. This reliance is misplaced not only because of significant factual distinctions between that case and the one before us now, but because of subsequent developments in Johnson. The case was reheard, see Johnson v. First Union Corp., 131 N.C. App. 142, 504 S.E.2d 808 (1998), review allowed, and the outcome on which plaintiff relies no longer stands. On rehearing, we noted that \u201c[o]ther case law has shown that the Industrial Commission is authorized to deal with matters such as fraud,\u201d id. at 144, 504 S.E.2d at 810 (citing Pruitt v. Knight Publishing Co., 289 N.C. 254, 260, 221 S.E.2d 355, 359 (1976)), and concluded that \u201cthe Workers\u2019 Compensation Act is a comprehensive regulatory scheme, and collateral attacks are inappropriate.\u201d Id.\nPlaintiff also faces hurdles she cannot clear with regard to the statute of limitations. A 7 January 1993 entry on plaintiffs account at the hospital reads in part: \u201cEmployee is sueing [sic] employer \u2014 for hospital accounts.\u201d While plaintiff now argues that she was not actually suing at that date but had merely consulted an attorney, she was certainly aware of the potential for litigation at that time. An entry on those same records dated 5 April 1993 states, \u201cComp denied \u2014 case closed.\u201d Plaintiff did not file this suit alleging fraud and unfair trade practices until November of 1996, nearly four years after she knew or should have known of the misrepresentation by defendants. The statute of limitations for fraud is three years, and begins to run at the time the aggrieved party discovered or should have reasonably discovered the facts constituting the fraud. N.C. Gen. Stat. \u00a7 1-52(9) (Cum. Supp. 1998); Nash v. Motorola Communications and Electronics, 96 N.C. App. 329, 331, 385 S.E.2d 537, 538 (1989), aff'd per curiam, 328 N.C. 267, 400 S.E.2d 36 (1991). The statute of limitations for an unfair trade practice claim is four years under N.C. Gen. Stat. \u00a7 75-16.2 (1994), but as set out above plaintiff has no Chapter 75 action against her employer. Even if the fraud claim were somehow found valid, which it cannot be in light of plaintiffs failure to properly state a claim for fraud, see, e.g., Claggett v. Wake Forest University, 126 N.C. App. 602, 610, 486 S.E.2d 443, 447 (1997), this suit was not timely filed and cannot be heard in the trial court.\nIn light of these many factors, the trial court was unable to consider any genuine issues of material fact and defendants were entitled to judgment as a matter of law. The order granting summary judgment is affirmed. The court\u2019s decision to deny defendants\u2019 motion for a reasonable attorney fee under section 75-16.1 was, by that statute, a matter within the trial court\u2019s discretion. We find no abuse of discretion in that decision.\nAffirmed.\nJudges WALKER and TIMMONS-GOODSON concur.",
        "type": "majority",
        "author": "LEWIS, Judge."
      }
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    "attorneys": [
      "Gordon & Nesbit, P.L.L.C., by Thomas L. Nesbit, for plaintiff - appellant.",
      "Rightsell, Shumate, Forrester & Eggleston, L.L.P., by Donald P. Eggleston, for defendant-appellees."
    ],
    "corrections": "",
    "head_matter": "INA J. SEIGEL, Plaintiff v. RAMAN K. PATEL and VISHNU, INC., Defendants\nNo. COA98-627\n(Filed 6 April 1999)\n1. Appeal and Error\u2014 record \u2014 not settled\nAlthough the Court of Appeals invoked Appellate Rule 2 to prevent manifest injustice, it was noted that the appeal could have been dismissed where plaintiff served the proposed case on appeal upon defendants, who responded with notice of objections and proposed amendments; plaintiffs attorney agreed to all but one of defendants\u2019 objections and proposals and added stipulations; plaintiffs attorney indicated that he would consider the record settled if he did not hear from defendants\u2019 attorney; and plaintiff\u2019s counsel filed the record without an indication that it had been settled. It is ultimately the appellant\u2019s responsibility to settle the record on appeal; members of the bar should exercise a certain degree of caution in their expectations of one another and not be so willing to rely on common courtesy that they neglect to follow the Rules of Appellate Procedure.\n2. Fraud\u2014 agreement to pay medical expenses by employer\u2014 summary judgment for employer \u2014 no cause of action\nThe trial court properly granted summary judgment for defendants in an action arising from defendants\u2019 failure to pay as promised medical expenses incurred by plaintiff from a fall at work where defendant did not have workers\u2019 compensation insurance and plaintiff attempted to bring a claim for fraud and unfair trade practices against her employer. Such a claim cannot be brought in North Carolina; moreover, the suit was barred by the statute of limitations.\nAppeal by plaintiff from order granting summary judgment entered 31 October 1997 by Judge Richard L. Doughton and order denying reconsideration entered 13 March 1998 by Judge Henry E. Frye, Jr., in Yadkin County Superior Court. Heard in the Court of Appeals 13 January 1999.\nGordon & Nesbit, P.L.L.C., by Thomas L. Nesbit, for plaintiff - appellant.\nRightsell, Shumate, Forrester & Eggleston, L.L.P., by Donald P. Eggleston, for defendant-appellees."
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