{ "id": 8301256, "name": "DEREK A. PATE and MICHELLE D. PATE, Plaintiffs v. N.C. DEPARTMENT OF TRANSPORTATION, Defendant", "name_abbreviation": "Pate v. N.C. Department of Transportation", "decision_date": "2006-03-07", "docket_number": "No. COA05-609", "first_page": "530", "last_page": "538", "citations": [ { "type": "official", "cite": "176 N.C. App. 530" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "616 S.E.2d 378", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633566 ], "year": 2005, "pin_cites": [ { "page": "383", "parenthetical": "quoting Bryant v. Weyerhaeuser Co., 130 N.C. App. 135, 138, 502 S.E.2d 58, 61 (1998)" } ], "opinion_index": 0, "case_paths": [ "/se2d/616/0378-01" ] }, { "cite": "615 S.E.2d 69", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633350 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "72", "parenthetical": "citing Simmons v. N.C. Dept. of Transportation, 128 N.C. App. 402, 405, 496 S.E.2d 790, 793 (1998)" }, { "page": "72" } ], "opinion_index": 0, "case_paths": [ "/se2d/615/0069-01" ] }, { "cite": "596 S.E.2d 813", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631332 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/596/0813-01" ] }, { "cite": "358 N.C. 376", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12631332, 12631399, 12631344, 12631345, 12631346 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/596/0813-01", "/se2d/598/0136-02", "/se2d/597/0132-02", "/se2d/597/0132-01", "/se2d/597/0133-02" ] }, { "cite": "589 S.E.2d 896", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "899", "parenthetical": "\"A trial court may change its ruling on a pre-trial motion in limine during the presentation of the evidence.\"" } ], "opinion_index": 0 }, { "cite": "162 N.C. App. 64", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8914681 ], "year": 2004, "pin_cites": [ { "page": "68", "parenthetical": "\"A trial court may change its ruling on a pre-trial motion in limine during the presentation of the evidence.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/162/0064-01" ] }, { "cite": "479 S.E.2d 800", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "804" } ], "opinion_index": 0 }, { "cite": "125 N.C. App. 193", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11866389 ], "year": 1997, "pin_cites": [ { "page": "198" } ], "opinion_index": 0, "case_paths": [ "/nc-app/125/0193-01" ] }, { "cite": "348 S.E.2d 162", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "164" } ], "opinion_index": 0 }, { "cite": "82 N.C. App. 729", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8359852 ], "year": 1986, "pin_cites": [ { "page": "731" } ], "opinion_index": 0, "case_paths": [ "/nc-app/82/0729-01" ] }, { "cite": "502 S.E.2d 58", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "61" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 135", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11465738 ], "year": 1998, "pin_cites": [ { "page": "138" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0135-01" ] }, { "cite": "172 N.C. App. 511", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8320624 ], "year": 2005, "pin_cites": [ { "page": "518", "parenthetical": "quoting Bryant v. Weyerhaeuser Co., 130 N.C. App. 135, 138, 502 S.E.2d 58, 61 (1998)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/172/0511-01" ] }, { "cite": "591 S.E.2d 870", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "880", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "358 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2985361 ], "year": 2004, "pin_cites": [ { "page": "15", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0001-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 136-111", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "opinion_index": 0 }, { "cite": "496 S.E.2d 790", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "793" } ], "opinion_index": 0 }, { "cite": "128 N.C. App. 402", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11654971 ], "year": 1998, "pin_cites": [ { "page": "405" } ], "opinion_index": 0, "case_paths": [ "/nc-app/128/0402-01" ] }, { "cite": "171 N.C. App. 725", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8439362 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "727-28", "parenthetical": "citing Simmons v. N.C. Dept. of Transportation, 128 N.C. App. 402, 405, 496 S.E.2d 790, 793 (1998)" }, { "page": "727-28" } ], "opinion_index": 0, "case_paths": [ "/nc-app/171/0725-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 143-293", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "592 S.E.2d 715", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "718-19" } ], "opinion_index": 0 }, { "cite": "163 N.C. App. 136", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8915690 ], "year": 2004, "pin_cites": [ { "page": "141" } ], "opinion_index": 0, "case_paths": [ "/nc-app/163/0136-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 143-300", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "299 S.E.2d 618", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "628" } ], "opinion_index": 0 }, { "cite": "307 N.C. 522", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564079 ], "year": 1983, "pin_cites": [ { "page": "539-40" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0522-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 143-291", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "page": "et seq." }, { "page": "et seq." } ], "opinion_index": 0 }, { "cite": "511 S.E.2d 298", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1999, "pin_cites": [ { "page": "299" }, { "parenthetical": "\"It is not the role of the appellate courts, however, to create an appeal for an appellant.\"" } ], "opinion_index": 1 }, { "cite": "350 N.C. 64", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 131998 ], "year": 1999, "pin_cites": [ { "page": "65" } ], "opinion_index": 1, "case_paths": [ "/nc/350/0064-01" ] }, { "cite": "610 S.E.2d 360", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2005, "pin_cites": [ { "page": "361" } ], "opinion_index": 1 }, { "cite": "359 N.C. 400", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3799435 ], "year": 2005, "pin_cites": [ { "page": "402" } ], "opinion_index": 1, "case_paths": [ "/nc/359/0400-01" ] }, { "cite": "79 S.E. 302", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1913, "opinion_index": 1 }, { "cite": "164 N.C. 356", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657757 ], "year": 1913, "opinion_index": 1, "case_paths": [ "/nc/164/0356-01" ] } ], "analysis": { "cardinality": 792, "char_count": 19126, "ocr_confidence": 0.72, "pagerank": { "raw": 2.4530483895216925e-07, "percentile": 0.8042389730057621 }, "sha256": "623fc11bc357c5d46bf7736826d0044054ea1e7a4a503c3f72bffb6655af0289", "simhash": "1:c09847e7cda82406", "word_count": 3051 }, "last_updated": "2023-07-14T16:09:49.892129+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUDSON concurs.", "Judge TYSON dissents in a separate opinion." ], "parties": [ "DEREK A. PATE and MICHELLE D. PATE, Plaintiffs v. N.C. DEPARTMENT OF TRANSPORTATION, Defendant" ], "opinions": [ { "text": "LEVINSON, Judge.\nDefendant North Carolina Department of Transportation (NCDOT) appeals a decision and order of the Industrial Commission, affirming with modification a deputy commissioner\u2019s order awarding damages to plaintiffs. We affirm.\nRecord evidence establishes the following: In 1999 plaintiffs Derek and Michelle Pate lived at 2738 Stoney Brook Drive on State Rd. 1217, Farmville, in Pitt County, North Carolina. A buried drainage pipe ran under their property and beneath the road. Maintenance of both State Rd. 1217 and of the drainage pipe, including determination of the appropriate diameter for the pipe, is defendant\u2019s responsibility. Although defendant\u2019s guidelines indicated that the proper diameter for this drainage pipe was forty-two to forty-eight inches, as of 1999 defendant was using an eighteen inch diameter pipe.\nIn September 1999 Hurricane Floyd passed through Farmville, and plaintiffs\u2019 yard and house were flooded. Over six inches of standing water flooded the interior of plaintiffs\u2019 home, causing at least $103,000 in damages. Plaintiffs presented unrebutted evidence at the hearing that the flooding was caused by the inadequate capacity of the eighteen inch diameter drainage pipe, which defendant replaced with a forty-eight inch diameter pipe.\nOn 30 August 2001 plaintiffs filed a complaint in the Superior Court of Pitt County, North Carolina, seeking damages for alleged \u201cinverse condemnation\u201d or wrongful taking of their property, arising from defendant\u2019s role in the flooding of their property. Defendant filed a motion for dismissal of plaintiffs\u2019 civil complaint on several grounds, including N.C. Rules of Civil Procedure Rule 12(b) (lack of subject matter jurisdiction), Rule 12(b)(6) (failure to state a claim for relief), the doctrine of sovereign immunity; and the Statute of Repose. On 13 October 2003 the trial court granted defendant\u2019s motion, entering a summary order that did not indicate the basis for the court\u2019s decision.\nOn 7 September 2001 plaintiffs filed an affidavit setting out a negligence claim pursuant to the Tort Claims Act claim, N.C. Gen. Stat. \u00a7 143-291, et seq. Many of the facts alleged in plaintiffs\u2019 affidavit were also set out in their superior court complaint; however, unlike that complaint, the Tort Claims Act action alleged negligence by a named NCDOT employee. On 17 October 2003 defendant moved for summary judgment on plaintiffs\u2019 Tort Claims Act claim. Defendant asserted that the trial court\u2019s dismissal of plaintiffs\u2019 claim in the superior court constituted a \u201cfinal judgment on the merits\u201d of plaintiffs\u2019 claim, which barred the Tort Claims Act claim under the doctrine of res judicata.\nPlaintiffs\u2019 claim was scheduled for hearing before Industrial Commission Deputy Commissioner George Glenn. Two days before the hearing, defendant appealed to the Full Commission, on the grounds that the commissioner\u2019s failure to rule on its summary judgment motion before the scheduled hearing was a \u201cde facto denial\u201d of the motion, and that it was entitled to an immediate appeal because the \u201cdefacto denial\u201d affected a substantial right.\nOn 5 November 2003 the case was heard by Deputy Commissioner Glenn. Before the hearing on the merits, the commissioner orally denied defendant\u2019s summary judgment motion, and defendant announced its appeal. Defendant then argued that its appeal stripped the commissioner of jurisdiction over the case, and refused to participate in the hearing. Consequently, plaintiffs\u2019 evidence was unchallenged. When questioned by the Commissioner about the wisdom of its refusal to take part in the hearing on the merits, defendant conceded that, if the procedural issues were resolved against defendant, \u201c[w]e lose, Your Honor.\u201d\nOn 22 December 2003 the commissioner issued a Decision and Order in favor of plaintiffs, and defendant appealed to the Full Commission. On 17 February 2005 the Full Commission affirmed the deputy commissioner\u2019s opinion with modifications. Defendant has appealed from this Decision and Order, and timely filed the Record on Appeal. On 18 November 2005 defendant filed a motion seeking to amend the Record on Appeal by adding record page citations to the Assignments of Error. We have granted defendant\u2019s motion, and conclude that the procedural issues raised by defendant were properly preserved for review and are now adequately assigned as error. Our opinion in this case does not address substantive issues pertaining to proof of negligence, and thus we have no need to reach the issue of whether defendant properly preserved or briefed such issues.\nStandard of Review\nDefendant appeals from an Opinion and Award under the Tort Claims Act, N.C. Gen. Stat. \u00a7 143-291 et seq. Under \u00a7 143-291(a), the Industrial Commission has jurisdiction over negligence claims against the State. The Commission is charged with determining \u201cwhether or not each individual claim arose as a result of the negligence of any officer, employee, involuntary servant or agent of the State while acting within the scope of his office, employment, service, agency or authority, under circumstances where the State of North Carolina, if a private person, would be liable to the claimant in accordance with the laws of North Carolina.\u201d \u201cBecause an action in tort against the State and its departments, institutions, and agencies is within the exclusive and original jurisdiction of the Industrial Commission, a tort action against the State is not within the jurisdiction of the Superior Court.\u201d Guthrie v. State Ports Authority, 307 N.C. 522, 539-40, 299 S.E.2d 618, 628 (1983).\nRegarding the procedural rules governing Tort Claims Act proceedings, \u201cthe Commission is authorized to \u2018adopt such rules and regulations as may, in the discretion of the Commission, be necessary to carry out the purpose and intent of [the Tort Claims Act].\u2019 N.C. Gen. Stat. \u00a7 143-300 [(2005)]. [However,] the North Carolina Rules of Civil Procedure apply in tort claims before the Commission, to the extent that such rules are not inconsistent with the Tort Claims Act, in which case the Tort Claims Act controls. N.C. Gen. Stat. \u00a7 143-300; 4 NCAC 10B.0201(a).\u201d Doe 1 v. Swannanoa Valley Youth Dev. Ctr., 163 N.C. App. 136, 141, 592 S.E.2d 715, 718-19, disc. review and stay denied, 358 N.C. 376, 596 S.E.2d 813 (2004).\n\u201cThe standard of review for an appeal from the Full Commission\u2019s decision under the Tort Claims Act \u2018shall be for errors of law only under the same terms and conditions as govern appeals in ordinary civil actions, and the findings of fact of the Commission shall be conclusive if there is any competent evidence to support them.\u2019 N.C. Gen. Stat. \u00a7 143-293 [(2005)]. As long as there is competent evidence in support of the Commission\u2019s decision, it does not matter that there is evidence supporting a contrary finding.\u201d Simmons v. Columbus County Bd. of Educ., 171 N.C. App. 725, 727-28, 615 S.E.2d 69, 72 (2005) (citing Simmons v. N.C. Dept. of Transportation, 128 N.C. App. 402, 405, 496 S.E.2d 790, 793 (1998)). \u201c[W]hen considering an appeal from the Commission, our Court is limited to two questions: (1) whether competent evidence exists to support the Commission\u2019s findings of fact, and (2) whether the Commission\u2019s findings of fact justify its conclusions of law and decision.\u201d Simmons, 171 N.C. App. at 727-28, 615 S.E.2d at 72.\nDefendant argues first that the Full Commission erred by affirming the Opinion and Award by the deputy commissioner, on the grounds that N.C. Gen. Stat. \u00a7 136-111 (2005) affords plaintiffs\u2019 \u201csole remedy, rendering their common law tort action improper[.]\u201d However, by failing to assign this issue as error, defendant did not preserve it for appellate review. See N.C.R. App. P. 10(a) (\u201c[T]he scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appeal in accordance with this Rule 10.\u201d). Further, it is undisputed that G.S. \u00a7 136-111 addresses actions seeking damages for condemnation, while the Tort Claims Act governs negligence claims. Defendant cites no authority holding that G.S. \u00a7 136-111 bars negligence claims, and we find none.\nDefendant next asserts that the deputy commissioner lacked jurisdiction to conduct the 5 November 2003 hearing on the merits of plaintiffs\u2019 claim, based on defendant\u2019s notice of appeal filed 3 November 2003. This appeal, filed two days before the hearing, purported to appeal from what defendant describes as a defacto denial\u201d of its summary judgment motion. This motion for summary judgment was filed two weeks before the hearing. Defendant repeatedly asserts the deputy commissioner \u201crefused\u201d to rule on its motion for summary judgment, and argues that its appeal of the \u201cde facto denial\u201d of summary judgment removed the case from the deputy commissioner\u2019s jurisdiction. However, defendant cites no authority supporting the right to appeal before a motion has been heard or a ruling entered, and we find none. We reject this argument.\nDefendant next argues that the Industrial Commission erred by denying its motion for summary judgment, asserting that dismissal of plaintiffs\u2019 civil superior court complaint was \u201can adjudication on the merits\u201d of plaintiffs\u2019 claim that barred plaintiffs\u2019 negligence claim under the Tort Claims Act. In making its argument, defendant relies on the doctrine of res judicata. We disagree.\n\u201cUnder the doctrine of res judicata or claim preclusion, a final judgment on the merits in one action precludes a second suit based on the same cause of action between the same parties or their privies.\u201d Whitacre P\u2019ship v. BioSignia, Inc., 358 N.C. 1, 15, 591 S.E.2d 870, 880 (2004) (internal quotation marks omitted). \u201c \u2018The essential elements of res judicata are: (1) a final judgment on the merits in a prior suit; (2) an identity of the cause of action in the prior suit and the present suit; and (3) an identity of parties or their privies in both suits.\u2019 \u201d Branch v. Carolina Shoe Co., 172 N.C. App. 511, 518, 616 S.E.2d 378, 383 (2005) (quoting Bryant v. Weyerhaeuser Co., 130 N.C. App. 135, 138, 502 S.E.2d 58, 61 (1998)).\nDefendant herein contends that plaintiffs\u2019 civil complaint for damages for condemnation \u201casserted the same allegations of negligence found in their Industrial Commission tort claim.\u201d \u201cThe traditional elements of actionable negligence are the existence of a legal duty or obligation, breach of that duty, proximate cause and actual loss or damage.\u201d McMurray v. Surety Federal Savings & Loan Assoc., 82 N.C. App. 729, 731, 348 S.E.2d 162, 164 (1986).\nIn the instant case, plaintiffs\u2019 civil complaint did not allege negligence; accordingly, dismissal of the civil claim does not bar plaintiffs\u2019 Tort Claims Act claim. In Alt v. John Umstead Hospital, 125 N.C. App. 193, 198, 479 S.E.2d 800, 804 (1997), defendant argued that summary judgment on plaintiff\u2019s civil claims for malicious prosecution, false imprisonment and deprivation of due process barred his Tort Claims Act negligence claim. This Court disagreed, holding:\nAlthough the factual allegations underlying the two claims are the same, different issues are involved. . . . Moreover, . . . exclusive original jurisdiction of claims against the State or its institutions and agencies, in which injury is alleged to have occurred as a result of the negligence of an employee of the State, is vested in the North Carolina Industrial Commission. N.C. Gen. Stat. \u00a7 143-291 et seq. [(2005)]. Thus, plaintiff\u2019s negligence claim ... could not have been adjudicated in the prior proceeding because the Superior Court had no jurisdiction over a tort claim against the State.\nWe find the reasoning of Alt applicable to the instant case, and conclude that plaintiffs\u2019 claim was not barred by the doctrine of res judi-cata. This assignment of error is overruled.\nFinally, defendant argues that, upon its appeal from the commissioner\u2019s oral ruling denying defendant\u2019s summary judgment motion, all further proceedings were stayed. Defendant\u2019s position is based on its interpretation of Industrial Commission Rule 308, which provides that:\nWhen a case is appealed to the Full Commission or to the Court of Appeals, all Orders or Decisions and Orders of a Deputy Commissioner or the Full Commission are stayed pending appeal.\nDefendant, however, did not appeal from an Order, but from an interlocutory oral ruling that the commissioner had authority to modify or reverse during the hearing. See, e.g., State v. McCall, 162 N.C. App. 64, 68, 589 S.E.2d 896, 899 (2004) (\u201cA trial court may change its ruling on a pre-trial motion in limine during the presentation of the evidence.\u201d). Defendant cites no cases allowing immediate appeal before an order is reduced to writing and filed. Because defendant did not appeal from an Order or Decision and Order, the proceedings were not stayed. Thus, we have no need to address, as an alternative basis to evaluate defendant\u2019s contention, the authority of the Industrial Commission to waive the provisions of Rule 308. This assignment of error is overruled.\nWe have carefully considered defendant\u2019s remaining assignments of error, and conclude they are either not preserved for appellate review or are without merit. Accordingly, the Decision and Order of the Industrial Commission is\nAffirmed.\nJudges HUDSON concurs.\nJudge TYSON dissents in a separate opinion.", "type": "majority", "author": "LEVINSON, Judge." }, { "text": "TYSON, Judge\ndissenting.\nDefendant seeks the review of the North Carolina Industrial Commission\u2019s (\u201cCommission\u201d) affirmation of Deputy Commissioner Glenn\u2019s decision to deny defendant\u2019s motion for summary judgment and to award damages to plaintiffs. The majority\u2019s opinion grants defendant\u2019s motion to amend the record and affirms the Commission\u2019s opinion and award. Defendant\u2019s violations of the North Carolina Rules of Appellate Procedure (\u201cappellate rules\u201d), warrants dismissal of its appeal. I respectfully dissent.\nI. Appellate Rules Violations\nDefendant failed to comply with the North Carolina Rules of Appellate Procedure in the following ways: (1) to set forth record citations for its assignments of error in violation of N.C. R. App. P. 10(c)(1); (2) to state without argument the basis for the errors assigned in violation of N.C. R. App. P. 10(c)(1); (3) to object to testimony when offered, in violation of N.C. R. App. P. 10(b) (1), which requires, \u201c[i]n order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make;\u201d and (4) to assign error to the admissibility of evidence presented before Deputy Commissioner Glenn in violation of N.C. R. App. P. 10(a), which mandates, \u201cthe scope of review is confined to a consideration of those assignments of error set out in the record on appeal.\u201d\nOn 18 November 2005, after defendant and plaintiff filed their appellate briefs and nineteen days prior to oral argument, defendant moved to amend the record due to its failure to assign error in accordance with N.C. R. App. P. 10. The majority\u2019s opinion grants defendant\u2019s motion. Because defendant\u2019s motion also violates our appellate rules, is untimely, and prejudicial to plaintiff, I vote to deny defendant\u2019s motion to amend the record.\nOur Supreme Court has stated:\nIt is not the role of the appellate courts, however, to create an appeal for an appellant. As this case illustrates, the Rules of Appellate Procedure must be consistently applied; otherwise, the Rules become meaningless, and an appellee is left without notice of the basis upon which an appellate court might rule. See Bradshaw v. Stansberry, 164 N.C. 356, 79 S.E. 302 (1913).\nViar v. N.C. Dept. of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005).\nIn Viar, our Supreme Court dismissed the plaintiff\u2019s appeal due to appellate rules violations. Id. The plaintiff violated N.C. R. App. P. 10(c)(1) and 28(b). Id. Regarding N.C. R. App. P. 10(c), the plaintiff failed to number separately the assignments of error \u201cat the conclusion of the record on appeal in short form without argument.\u201d The plaintiff also violated N.C. R. App. P. 28(b), which requires, \u201ca reference to the assignments of error pertinent to the question, identified by their numbers and by the pages at which they appear in the printed record on appeal\u201d to follow each question. Id.\nII. Conclusion\n\u201cThe North Carolina Rules of Appellate Procedure are mandatory and \u2018failure to follow these rules will subject an appeal to dismissal.\u2019 \u201d Id. (quoting Steingress v. Steingress, 350 N.C. 64, 65, 511 S.E.2d 298, 299 (1999)). Defendant\u2019s late motion.to amend is untimely and prejudicial to plaintiff.\nThe proper procedure to address defendant\u2019s multiple rule violations is to dismiss the appeal. It is unnecessary to reach the merits of defendant\u2019s appeal. Id. (\u201cIt is not the role of the appellate courts, however, to create an appeal for an appellant.\u201d). Consistent with our Supreme Court\u2019s mandate in Viar, I vote to dismiss defendant\u2019s appeal. Id. I respectfully dissent.", "type": "dissent", "author": "TYSON, Judge" } ], "attorneys": [ "Hopf & Higley, P.A., by James F. Hopf, for plaintiff-appellee.", "Attorney General Roy Cooper, by Assistant Attorney General Amar Majmundar, for defendant-appellant." ], "corrections": "", "head_matter": "DEREK A. PATE and MICHELLE D. PATE, Plaintiffs v. N.C. DEPARTMENT OF TRANSPORTATION, Defendant\nNo. COA05-609\n(Filed 7 March 2006)\n1. Tort Claims Act\u2014 appeal \u2014 standard of review\nThe standard of review for an appeal from the full Industrial Commission\u2019s decision under the Tort Claims Act is for errors of law under the same terms and conditions as in ordinary civil actions, and the findings are conclusive if there is any competent evidence to support them.\n2. Appeal and Error; Tort Claims Act\u2014 preservation of issues \u2014 assignment of error \u2014 distinction from condemnation\nDefendant\u2019s failure to assign error meant that it did not preserve for appellate review the question of whether N.C.G.S. \u00a7 136-111 provides the sole remedy in an action arising from flooding caused by an undersized drainage pipe. Furthermore, N.C.G.S. \u00a7 136-111 addresses actions seeking damages for condemnation, while the Tort Claims Act governs negligence claims.\n3. Appeal and Error\u2014 appealability \u2014 \u201cde facto denial\u201d of motion \u2014 no authority to appeal before ruling\nThere is no authority to support a right of appeal from a \u201cde facto denial\u201d of a summary judgment motion which had not been ruled upon. There is no authority supporting the right to appeal before a motion has been heard or a ruling entered.\n4. Tort Claims Act\u2014 civil action not alleging negligence \u2014 no res judicata\nThe dismissal of a civil complaint which did not allege negligence did not bar a claim pursuant to the Tort Claims Act under res judicata.\n5. Tort Claims Act\u2014 interlocutory oral ruling \u2014 subject to change during hearing \u2014 no stay after appeal\nAn appeal from an interlocutory oral ruling that an Industrial Commission deputy commissioner could modify or reverse during the hearing did not stay further proceedings.\nJudge Tyson dissenting.\nAppeal by defendant from Decision and Order entered 17 February 2005 by the North Carolina Industrial Commission. Heard in the Court of Appeals 8 December 2005.\nHopf & Higley, P.A., by James F. Hopf, for plaintiff-appellee.\nAttorney General Roy Cooper, by Assistant Attorney General Amar Majmundar, for defendant-appellant." }, "file_name": "0530-01", "first_page_order": 562, "last_page_order": 570 }