Tate v. N.C. Dep't of Pub. Safety

• Court: Court of Appeals of North Carolina
• Decided: October 20, 2015
• Docket: 14-1274
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA14-1274

Filed: 20 October 2015

North Carolina Industrial Commission, I.C. No. TA-23162

HERMAN V. TATE

v.

NORTH CAROLINA DEPARTMENT OF PUBLIC SAFETY

Appeal by Plaintiff from decision and order entered by the North Carolina

Industrial Commission on 31 July 2014. Heard in the Court of Appeals 28 September

2015.

Herman V. Tate, pro se.

Attorney General Roy Cooper, by Associate Attorney General Marc X. Sneed, for the State.

INMAN, Judge.

Plaintiff Herman V. Tate (“Plaintiff”) purports to appeal pro se from an order

of the North Carolina Industrial Commission (“the Commission”), allowing his claim

pursuant to the Tort Claims Act and ordering the North Carolina Department of

Public Safety (“DPS” or “Defendant”) to pay him $200.00 in damages. Because the

record on appeal does not contain a copy of Plaintiff’s notice of appeal, we dismiss the

appeal. TATE V N.C. DEP’T OF PUB. SAFETY

Opinion of the Court

Factual and Procedural Background

Plaintiff, an inmate, filed a Tort Claim Action alleging that DPS employees

were negligent in destroying his family photographs. Deputy Commissioner George

T. Glenn, II, denied Plaintiff’s claim, and Plaintiff appealed to the Full Commission.

By Decision and Award filed 31 July 2014, the Full Commission reversed the Deputy

Commissioner and ordered DPS to pay Plaintiff $200.00 for the value of property lost

due to the negligence of DPS’s employees. The Commission acknowledged receipt of

Plaintiff’s notice of appeal on 7 August 2014.

Analysis

Generally, when an appellant fails to follow the Rules of Appellate Procedure,

the consequence is dismissal of the appeal. “[R]ules of procedure are necessary . . . in

order to enable the courts properly to discharge their dut[y] of resolving disputes.”

Dogwood Dev. & Mgmt. Co. v. White Oak Transp. Co., 362 N.C. 191, 193, 657 S.E.2d

361, 362 (2008) (citation and internal quotation marks omitted). “Compliance with

the rules, therefore, is mandatory.” Id. at 194, 657 S.E.2d at 362. It is an appellant’s

duty to ensure we have a complete and accurate record before us. Fortis Corp. v.

Northeast Forest Products, 68 N.C. App. 752, 754, 315 S.E.2d 537, 538-39 (1984).

The record on appeal does not include a copy of Plaintiff’s notice of appeal to

this Court. As such, Plaintiff did not comply with N.C.R. App. P. 3(a), which requires

that an appellant give notice of appeal and N.C.R. App. P. 9(a)(1)i, which dictates

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that the record shall include a copy of the notice of appeal. See N.C.R. App. P. 3(a)

and 9(a)(1)(i)(2015). Plaintiff's failure to comply with Rule 3 of the North Carolina

Rules of Appellate Procedure constitutes a jurisdictional default and is fatal to his

appeal. Dogwood, 362 N.C. at 197, 657 S.E.2d at 365 (“The provisions of Rule 3 are

jurisdictional, and failure to follow the rule’s prerequisites mandates dismissal of an

appeal.” (internal quotation marks and citation omitted)). Because the record on

appeal does not show this Court has jurisdiction to hear Plaintiff’s appeal, we allow

Defendant’s Amended Motion to Dismiss.1

Further, we decline to treat Plaintiff’s brief as a petition for writ of certiorari.

See N.C.R. App. P. 21 (2015). In his brief, Plaintiff contends the $200.00 fails to

adequately compensate him for his loss of family photographs; however, Plaintiff

provides no citations or references to any legal authority, nor does he make any

meaningful legal argument. See N.C.R. App. P. 28(b)(6) (2015) (“[t]he body of the

argument and the statement of applicable standard(s) of review shall contain

citations of the authorities upon which the appellant relies.”).

We are aware that Plaintiff is acting pro se in this matter, but that status does

not permit gross violations of the rules. See Strauss v. Hunt, 140 N.C. App. 345, 348-

49, 536 S.E.2d 636, 639 (2000) (“[E]ven pro se appellants must adhere strictly to the

1 In allowing Defendant’s Amended Motion to Dismiss, we deny Defendant’s initial Motion to Dismiss as moot.

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Rules of Appellate Procedure (the Rules) or risk sanctions.”) (citing N.C.R. App. P.

25(b)). Accordingly, the appeal is dismissed.

DISMISSED.

Judges STROUD and DAVIS concur.

Report per Rule 30(e).

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