Johnson v. Hendrick Automotive

• Court: North Carolina Industrial Commission
• Decided: March 21, 2011
• Docket: I.C. NO. 841186.
• Status: Published

Opinion

*********** On August 13, 2009, the Full Commission filed an Opinion and Award in this case. Plaintiff appealed to the North Carolina Court of Appeals but his appeal was dismissed by Commissioner Staci Meyer on November 24, 2009. Plaintiff appealed Commissioner Meyer's Order to the Full Commission, which affirmed the Order on July 2, 2010. Plaintiff appealed the Full Commission's July 2, 2010 Opinion and Award to the Court of Appeals.

On September 9, 2010, Commissioner Linda Cheatham by Order denied defendant's motion to dismiss plaintiff's appeal and denied plaintiff's motion for an extension of time to file his record on appeal. Plaintiff appealed from Commissioner Cheatham's September 9, 2010, Order.

Upon review of the procedural history in this matter, the Full Commission HEREBY VACATES Commissioner Cheatham's September 9, 2010, Order. Pursuant to the North Carolina Rules of Appellate Procedure, after Commissioner Meyer's Order dismissing his appeal was affirmed by the Full Commission, plaintiff's legal recourse was to file a petition for writ ofcertiorari with the Court of Appeals. Rule 21, N.C. Rules of Appellate Procedure. Plaintiff lost the right to prosecute his appeal by his failure to take timely action. Id. Therefore, plaintiff's appeal was not properly before Commissioner Cheatham and is considered by the Full Commission panel only to the extent that Commissioner Cheatham's Order is VACATED.

Any further appeal by plaintiff must be filed at the North Carolina Court of Appeals in the form of a petition for writ of certiorari.

This 8th day of March, 2011.

S/___________________ LAURA KRANIFELD MAVRETIC COMMISSIONER

CONCURRING:

S/_____________ BERNADINE S. BALLANCE COMMISSIONER

S/_____________ CHRISTOPHER SCOTT COMMISSIONER