Putman v. Alexander

Citation670 S.E.2d 610
Decision Date06 January 2009
Docket NumberNo. COA08-332.,No. COA08-306.,COA08-306.,COA08-332.
PartiesMichael Dewayne PUTMAN, Employee, Plaintiff, v. Randy ALEXANDER and/or Majestic Mountain Construction, Inc., Employers (Noninsured), and Marsha Patterson-Jones, Individually, and/or Randy Alexander, Defendants. Darrell Thompson, Employee, Plaintiff, v. Randy Alexander and/or Majestic Mountain Construction, Inc., Employers (Noninsured), and Marsha Patterson-Jones, Individually, and/or Randy Alexander, Defendants.
CourtCourt of Appeal of North Carolina (US)

Judith C. Fraser, Asheville, for plaintiff-appellee Michael Dewayne Putman.

Melrose, Seago & Lay, P.A., by Kimberly C. Lay, East Sylva, for plaintiff-appellee Darrell Thompson.

Leicht & Olinger, by Gene Thomas Leicht, Asheville, for defendants-appellants Majestic Mountain Construction, Inc. and Marsha Patterson-Jones.

MARTIN, Chief Judge.

Majestic Mountain Construction, Inc. and Marsha Patterson-Jones (collectively "defendants") appeal from Opinions and Awards by the North Carolina Industrial Commission ("Commission") (1) awarding disability benefits, medical expenses, and attorney's fees and costs to Michael Dewayne Putman and Darrell Thompson (collectively "plaintiffs") and (2) assessing additional civil penalties against defendant Marsha Patterson-Jones. We affirm each of the Commission's awards.

While defendants have maintained separate appeals, both appeals involve common questions of law, as evidenced by defendants' decision to submit virtually identical appellate briefs in each case. Therefore, upon our own initiative, we consolidate these appeals for the purpose of rendering a single opinion on all issues properly before the Court. See N.C.R.App. P. 40 (2008) ("Two or more actions which involve common questions of law may be consolidated for hearing ... upon the initiative of th[e appellate] court.").

On 16 June 2005, plaintiffs were injured by an accident arising out of and in the course of their employment with Randy Alexander. Plaintiffs were doing carpentry work "on a second-story deck that collapsed and broke away from [a] town home [that was under construction], causing plaintiff[s] to fall approximately 15 to 16 feet onto a lower deck, then fall to the ground approximately 10 feet below the lower deck, and then down an embankment." Both plaintiffs sustained injuries which required varying degrees of continued medical treatment and rehabilitative or therapeutic care, and which restricted their ability to return to work. At the time of the accident, plaintiffs' employer, Randy Alexander, did not have workers' compensation insurance.

In June 2005, plaintiffs were working on the construction site for a residential development project named the Villas of Provence in Glenville, North Carolina. At that time, William Allen Patterson was the title owner of the 9.5 acre tract on which the residential units were being constructed. Marsha Patterson-Jones, Mr. Patterson's daughter, was the owner and "qualifier" of Majestic Mountain Construction, Inc. ("MMC"), which was the licensed general contractor for the Villas of Provence project. Mrs. Patterson-Jones was also a licensed realtor and owned Majestic Mountain Realty, which listed two of the first four units sold in the Villas of Provence. Ben Jones, Mrs. Patterson-Jones's husband, served as the "site manager for the property on which defendant [MMC] was developing and plaintiff[s were] working," and was responsible for "hir[ing] the subcontractors, [telling] them what to do, check[ing] to make sure the work was being done properly, and report[ing] back to his wife on what materials needed to be ordered" for the project. However, whether Ben Jones was retained by his wife's company, MMC, or by his father-in-law is one of the issues before this Court. Ben Jones was also responsible for hiring Randy Alexander and was the person to whom Randy Alexander and plaintiffs reported on the Villas of Provence construction site.

On 23 October 2006, both plaintiffs' cases were presented in one hearing before a deputy commissioner. On 30 May 2007, the deputy commissioner filed Opinions and Awards which determined that plaintiffs sustained compensable injuries by an accident arising out of and in the course of their employment with Randy Alexander. The deputy commissioner concluded that MMC was the general contractor on the job where plaintiffs were injured and that Randy Alexander was a subcontractor to MMC. He also concluded that: (1) MMC was plaintiffs' statutory employer pursuant to N.C.G.S. § 97-19; (2) MMC was "required to have workers' compensation insurance to cover their subcontractors' employees since they did not require proof of insurance from subcontractor Randy Alexander;" and (3) a civil penalty should be assessed against Mrs. Patterson-Jones pursuant to N.C.G.S. § 97-94(d) for her failure to bring MMC into compliance under N.C.G.S. § 97-93 when she had the ability and authority to do so. Defendants appealed to the Full Commission. On 5 December 2007, the Commission entered Opinions and Awards which adopted the deputy commissioner's decisions, with minor modifications. This appeal follows.

We first consider plaintiff Thompson's motion to this Court to dismiss defendants' appeal on the grounds that defendants failed to timely serve their notice of appeal on plaintiff Thompson pursuant to Rule 3 of the North Carolina Rules of Appellate Procedure. We also consider defendants' petition for writ of certiorari filed in response to plaintiff Thompson's motion to dismiss. For the reasons discussed below, we grant plaintiff Thompson's motion to dismiss defendants' appeal, and we grant defendants' petition for writ of certiorari.

"In order to confer jurisdiction on the state's appellate courts, appellants of lower court orders must comply with the requirements of Rule 3 of the North Carolina Rules of Appellate Procedure." Bailey v. State, 353 N.C. 142, 156, 540 S.E.2d 313, 322 (2000). "The provisions of Rule 3 are jurisdictional, and failure to follow the rule's prerequisites mandates dismissal of an appeal. In addition, the rules of the Supreme Court that regulate appeals, such as Rule 3, are mandatory and must be observed." Id. (citation omitted).

Rule 3(c) of the North Carolina Rules of Appellate Procedure requires that, within the time limitations specified by the rule, "a party must file and serve a notice of appeal." N.C.R.App. P. 3(c) (2008). According to Appellate Rule 3(e), "[s]ervice of copies of the notice of appeal may be made as provided in Rule 26 of [the appellate] rules," see N.C.R.App. P. 3(e), and that service "may be so made upon a party or upon his attorney of record." See N.C.R.App. P. 26(c) (2008) (emphasis added).

In the present case, defendants timely filed their notice of appeal to this Court from the 5 December 2007 Opinion and Award in favor of plaintiff Thompson on 18 December 2007. However, instead of mailing a copy of that notice to plaintiff Thompson's counsel of record, who appeared on his behalf before both the deputy commissioner and the Full Commission, service was made upon plaintiff Putman's counsel of record. Plaintiff Thompson subsequently moved to dismiss defendants' notice of appeal on 6 February 2008 for failing to comply with the service requirements of Appellate Rule 3. Although defendants filed a second "amended" notice of appeal on 7 February 2008 which complied with the service requirements of Rule 3, the "amended" notice of appeal was untimely. See N.C.R.App. P. 3(c)(1) ("In civil actions and special proceedings, a party must file and serve a notice of appeal ... within 30 days after entry of judgment if the party has been served with a copy of the judgment within the three-day period prescribed by Rule 58 of the Rules of Civil Procedure...."). Therefore, defendants' appeal from the Opinion and Award entered as to plaintiff Thompson's claims must be dismissed.

Nevertheless, this Court may issue a writ of certiorari "when the right to prosecute an appeal has been lost by failure to take timely action." N.C.R.App. P. 21(a)(1) (2008). Having determined that defendants lost their right to prosecute their appeal as to plaintiff Thompson by their failure to file a timely notice of appeal that fully complies with Appellate Rule 3(c), we exercise our discretion to grant defendants' petition for writ of certiorari.

The issues before this Court are as follows: (I) whether the Commission erred by concluding that MMC was plaintiffs' statutory employer under N.C.G.S. § 97-19; (II) whether the Commission erred by assessing civil penalties against Mrs. Patterson-Jones under N.C.G.S. § 97-94(d); and (III) whether the Commission erred by decreeing that the amount of the civil penalty assessed against Mrs. Patterson-Jones could be determined based on both plaintiffs' disability compensation and plaintiffs' compensation for medical expenses.


Defendants first contend the Commission erred by concluding that MMC was plaintiffs' statutory employer under N.C.G.S. § 97-19. The parties agree that Ben Jones hired Randy Alexander who, in turn, hired plaintiffs to work on the Villas of Provence development project. However, defendants assert that no employment relationship existed between plaintiffs and MMC to implicate N.C.G.S. § 97-19 and, thus, argue that the Commission lacked subject matter jurisdiction to hear plaintiffs' claims against MMC and Mrs. Patterson-Jones. We do not agree.

When it has jurisdiction to hear the claims before it, "`[t]he findings of fact by the Industrial Commission are conclusive on appeal if supported by any competent evidence.'" Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998) (quoting Gallimore v. Marilyn's Shoes, 292 N.C. 399, 402, 233 S.E.2d 529, 531 (1977)), reh'g denied, 350 N.C. 108, 532 S.E.2d 522 (1...

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