Adcox v. Clarkson Bros. Construction Co.

NO. COA14-313

NORTH CAROLINA COURT OF APPEALS

Filed: 16 September 2014

THOMAS F. ADCOX,
Employee,
Movant,

v. Johnston County
No. 13 CVS 1106
CLARKSON BROTHERS CONSTRUCTION
COMPANY,
Employer,
and
UTICA MUTUAL INSURANCE COMPANY,
Carrier,
Defendants.

Appeal by plaintiff from order entered 17 September 2013 by

Judge Thomas H. Lock in Johnston County Superior Court. Heard

in the Court of Appeals 28 August 2014.

R. James Lore, Attorney at Law, by R. James Lore; and
Nicholls & Crampton, PA, by Nicholas J. Dombalis, II, for
plaintiff-appellant.

Hedrick, Gardner, Kincheloe & Garofalo, LLP, by Kari L.
Schultz and M. Duane Jones, for defendants-appellees.

GEER, Judge.

In a 27 March 2008 opinion and award, the deputy

commissioner approved an attorneys' fee of 25% of the attendant

care compensation awarded to plaintiff Thomas F. Adcox for his

wife's services. Although defendants Clarkson Brothers
 -2-
Construction Company and Utica Mutual Insurance Company asked

the Full Commission to reverse this award, the Commission, in a

25 November 2008 opinion and award, affirmed the deputy

commissioner's opinion and award with modifications only as to

the amount and rate of pay for the attendant care -- the

Commission did not specifically address the 25% attorneys' fee

award.

Subsequently, plaintiff filed a motion seeking an order

requiring that the 25% be paid directly to plaintiff's counsel

in order to alleviate the bookkeeping burden on plaintiff's

wife. Defendants contended -- and the Commission agreed in an

order entered 10 December 2012 -- that the Commission's November

2008 opinion and award, by not specifically mentioning the

attorneys' fees, necessarily denied plaintiff's attorneys'

request for approval of a fee. Plaintiff appealed to the

superior court, and the trial court dismissed his appeal on the

grounds that the Commission had not, in its December 2012 order,

denied a request for fees.

We cannot agree with the Commission's and defendants'

position that the November 2008 opinion and award denied

plaintiff's attorneys' request for fees. Defendants' contention

that the Commission sub silentio reversed the deputy

commissioner's award of fees is not tenable and is inconsistent
 -3-
with controlling authority. The Commission's silence in

November 2008 on the issue of the deputy commissioner's award of

attorneys' fee can be interpreted in only one of two ways:

either the Commission affirmed the deputy commissioner or the

Commission did not address the issue.

In either event, defendants bore the burden to appeal that

opinion and award to this Court. When they failed to do so, the

deputy commissioner's approval of an attorneys' fee became the

law of the case, and the Commission had no authority to declare,

in December 2012, that the original panel had reversed the

deputy commissioner and denied plaintiff's request for approval

of an attorneys' fee. Consequently, we reverse and remand to

the trial court for further remand to the Commission for

reconsideration of plaintiff's motion.

Facts

On 28 February 1983, while employed by defendant Clarkson,

plaintiff suffered an admittedly compensable head injury that

left him permanently and totally disabled. Defendant Clarkson

and defendant Utica National Insurance Group agreed to

compensate plaintiff for his disability at a weekly rate of

$248.00.

In February 2003, the parties filed a settlement agreement

pursuant to which defendants agreed to pay plaintiff a lump sum
 -4-
of $250,000.00 in reimbursement for attendant care services

provided by plaintiff's family members, including his wife Joyce

Adcox, from 28 February 1983 until 3 February 2003. The

Commission approved a 25% attorneys' fee for plaintiff's

counsel, which was deducted from the sum due plaintiff and paid

directly to plaintiff's counsel. Thereafter, defendants

authorized and began providing plaintiff with 60 hours of in-

home professional attendant care services per week, provided by

Kelly Home Health Services.

In 2007, Mrs. Adcox retired, and plaintiff moved to have

defendants pay Mrs. Adcox directly for attendant care services

instead of Kelly Services. The matter was heard by Deputy

Commissioner John B. DeLuca on 30 August 2007. On 27 March

2008, the deputy commissioner entered an opinion and award

allowing Mrs. Adcox to assume attendant care responsibilities

seven days a week at a rate of $188.00 per day. In his award,

the deputy commissioner ordered that "[a]n attorneys' fee of 25%

of the attendant care compensation is approved for the

Plaintiff's counsel."

Both parties appealed to the Full Commission. On 25

November 2008, the Full Commission entered an opinion and award

affirming the deputy commissioner's opinion and award "with

modifications including the amount of attendant care and rate of
 -5-
pay for said care." The Full Commission allowed Mrs. Adcox to

assume attendant care responsibilities seven days per week for

16 hours per day at a rate of $10.00 per hour. The opinion and

award did not mention the 25% attorneys' fee award to

plaintiff's counsel. Plaintiff appealed to this Court for

reasons unrelated to the 25% attorneys' fee award. Defendants

chose not to appeal. On 8 December 2009, this Court affirmed

the 25 November 2008 opinion and award. See Adcox v. Clarkson

Bros. Constr. Co., 201 N.C. App. 446, ___ S.E.2d ___, 2009 WL

4576065, 2009 N.C. App. LEXIS 2308 (2009) (unpublished).

On 12 July 2012, plaintiff filed a motion with the Full

Commission requesting that it direct payment of the attorneys'

fees to plaintiff's counsel. The motion explained that "Mrs.

Adcox is responsible for her own income tax record-keeping and

reporting of the attendant care income she receives. For tax

purposes the failure by the carrier to direct separate checks

makes it appear as though Mrs. Adcox's attendant care income is

higher than it actually is." Plaintiff requested that

defendants be ordered to deduct 25% of the compensation payable

to Mrs. Adcox to be paid directly to plaintiff's counsel because

the record keeping "has become burdensome for Mrs. Adcox."

A new panel of commissioners heard plaintiff's 2012 motion.

Commissioners Linda Cheatham and Tammy R. Nance replaced
 -6-
Commissioners Dianne C. Sellers and Laura Kranifeld Mavretic

from the original 2008 panel. Commissioner Danny Lee McDonald

served on both panels. On 10 December 2012, the Full Commission

entered an order denying plaintiff's motion.

The Commission found that both parties had appealed Deputy

Commissioner DeLuca's opinion and award to the Full Commission.

Regarding defendants' appeal, the Commission noted that although

defendants had not specifically assigned error to the attorneys'

fee award in their form 44, they had generally challenged each

paragraph of the deputy's award and had addressed the 25%

attorneys' fee award in their brief to the Commission. The

Commission then concluded:

The Full Commission's Opinion and Award
filed on November 25, 2008 directs
Defendants to pay Mrs. Adcox for attendant
care services from the date of the filing of
the Opinion and Award at a rate of $10.00
per hour, 7 days per week, 16 hours per day.
The Opinion and Award does not include an
award of attorneys' fees for Plaintiff's
counsel.

Plaintiff appealed the Full
Commission's decision to the North Carolina
Court of Appeals. Based upon a review of
the Court's Opinion, it does not appear that
Plaintiff assigned error to the Full
Commission's decision in its Opinion and
Award not to award an attorneys' fee to
Plaintiff's counsel.

As Plaintiff seeks to have the Full
Commission direct Defendants to deduct and
pay directly to counsel for Plaintiff
 -7-
attorneys' fees which have not been awarded
by the Full Commission, Plaintiff's Motion
to Direct Payment of Attorneys' Fees to
Plaintiff's Counsel is hereby DENIED.

Commissioner McDonald -- the one commissioner who had served on

the 25 November 2008 panel -- dissented without opinion.

On 12 December 2012, plaintiff appealed the order to

superior court pursuant to N.C. Gen. Stat. § 97-90. On 19 June

2013, defendants moved to dismiss plaintiff's appeal pursuant to

Rules 12(b)(1), (2), and (6) of the Rules of Civil Procedure.

On 25 June 2013, plaintiff moved to strike defendants' motion to

dismiss for lack of standing.

After a 26 August 2013 hearing, the trial court entered an

order dismissing plaintiff's appeal on 17 September 2013. The

trial court took judicial notice of the 25 November 2008 opinion

and award and the 10 December 2012 order of the Full Commission.

It found in pertinent part:

(2) that the December 10, 2012 Order
from which Movant now purportedly appeals
did not deny any attorneys fees, but simply
clarified that the Commission had not
awarded attorneys fees in the November 25,
2008 Order;

(3) that Movant's litigated request for
attorney fees was denied on November 25,
2008;

(4) that Movant's current request for
attendant care attorney fees per N.C. Gen.
Stat. § 9-90 [sic] should be barred by § 97-
90 and the doctrine of res judicata;
 -8-

(5) that the November 25, 2008, Order
of the North Carolina Industrial Commission
and the parties' appeal therefrom to the
North Carolina Court of Appeals, represented
a final judgment on the merits as to the
issue of any attorney fee based on a
percentage of attendant care medical
benefits provided to Movant pursuant to
North Carolina General Statutes § 97-25,
which is the only claim at issue in this
litigation[.]

The trial court, therefore, dismissed plaintiff's appeal with

prejudice. Plaintiff timely appealed to this Court.

Discussion

Plaintiff first contends that defendants lacked standing to

oppose both his motion to the Full Commission and his appeal

from the 10 December 2012 decision of the Full Commission to

superior court. As explained by this Court in Diaz v. Smith,

___ N.C. App. ___, ___, 724 S.E.2d 141, 144 (2012) (internal

citations and quotation marks omitted):

The Workers' Compensation Act provides that
an appeal from an opinion and award of the
Industrial Commission is subject to the same
terms and conditions as govern appeals from
the superior court to the Court of Appeals
in ordinary civil actions. Under N.C. Gen.
Stat. § 1–271 (2009), "[a]ny party
aggrieved" is entitled to appeal in a civil
action. A party aggrieved is one whose
legal rights have been denied or directly
and injuriously affected by the action of
the trial tribunal. If the party seeking
appeal is not an aggrieved party, the party
lacks standing to challenge the lower
tribunal's action and any attempted appeal
 -9-
must be dismissed.

Plaintiff argues that because his motion to direct payments

to plaintiff's counsel does not affect the total amount to be

paid by defendants, defendants are not an "aggrieved" party.

Defendants counter that they are an "aggrieved" party because

(1) "if Plaintiff's Counsel is awarded attorney's fees as a

result of this appeal, Defendants would either be required to

pay an additional 25% in the form of attorneys [sic] fees, or

fund Plaintiff's Counsel's attorney's fees by reducing the

amount of compensation to Mrs. Adcox, thereby subjecting

Defendants to liability for compensation owed to Mrs. Adcox, as

mandated in the Opinion and Award" and (2) "allowing a

plaintiff's counsel to have a pecuniary interest in an

authorized medical provider could create a conflict between his

obligations to represent his client and a defendant's obligation

to manage medical treatment pursuant to N.C. Gen. Stat. § 97-

25."

Because of our resolution of this appeal, we need not

decide whether defendants have standing in this case to

challenge an award of attorneys' fees to plaintiff's attorney

that does not affect the total amount payable by defendants. We

express no opinion whether defendants' contentions are
 -10-
sufficient to make them aggrieved parties for purposes of an

appeal.

Plaintiff's primary argument on appeal is that the trial

court erred in finding that the Full Commission denied his

request for attorneys' fees in its 25 November 2008 opinion and

award and, as a result, erred in dismissing his appeal on the

grounds of res judicata. Plaintiff argues that the deputy

commissioner's award of attorneys' fees became final when

defendants did not specifically assign as error the award of

attorneys' fees in their Form 44 as required by Rule 701 of the

Workers' Compensation Rules of the North Carolina Industrial

Commission. Alternatively, plaintiff argues that the Commission

affirmed the award of attorneys' fees. We review these

questions of law de novo. McAllister v. Wellman, Inc., 162 N.C.

App. 146, 148, 590 S.E.2d 311, 312 (2004).

Rule 701 provides:

(2) After receipt of notice of appeal,
the Industrial Commission will supply to the
appellant a Form 44 Application for Review
upon which appellant must state the grounds
for the appeal. The grounds must be stated
with particularity, including the specific
errors allegedly committed by the
Commissioner or Deputy Commissioner and,
when applicable, the pages in the transcript
on which the alleged errors are recorded.
Failure to state with particularity the
grounds for appeal shall result in
abandonment of such grounds, as provided in
paragraph (3). . . .
 -11-

(3) Particular grounds for appeal not
set forth in the application for review
shall be deemed abandoned, and argument
thereon shall not be heard before the Full
Commission.

(Emphasis added.)

This Court has emphasized that "the portion of Rule 701

requiring appellant to state with particularity the grounds for

appeal may not be waived by the Full Commission. Without notice

of the grounds for appeal, an appellee has no notice of what

will be addressed by the Full Commission." Roberts v. Wal-Mart

Stores, Inc., 173 N.C. App. 740, 744, 619 S.E.2d 907, 910

(2005). "Such notice is required for the appellee to prepare a

response to an appeal to the Full Commission." Wade v. Carolina

Brush Mfg. Co., 187 N.C. App. 245, 252, 652 S.E.2d 713, 717

(2007). Thus, "the penalty for non-compliance with the

particularity requirement is waiver of the grounds, and, where

no grounds are stated, the appeal is abandoned." Id. at 249,

652 S.E.2d at 715.

Defendants argue that they properly appealed the issue of

attorneys' fees to the Full Commission because they specifically

listed Deputy Commissioner DeLuca's Award, which included the

award of attorneys' fees, in the third assignment of error on

their Form 44 Application for review:

Deputy Commissioner John B. DeLuca's Award,
 -12-
dated March 27, 2008, on the grounds that it
is based upon Findings of Fact and
Conclusions of Law which are erroneous, not
supported by competent evidence or evidence
of record, and are contrary to the competent
evidence of record, and are contrary to law:
Award Nos. 1-3.

This assignment of error is similar to the appellant's

assignment of error in Walker v. Walker, 174 N.C. App. 778, 782,

624 S.E.2d 639, 642 (2005), which asserted generally that

several rulings of the trial court were "'erroneous as a matter

of law.'" In concluding that this assignment of error was

insufficient under the 2005 version of Rule 10 of the Rules of

Appellate Procedure, this Court held that the "assertion that a

given finding, conclusion, or ruling was 'erroneous as a matter

of law'" violated Rule 10 because it "completely fail[ed] to

identify the issues actually briefed on appeal." Walker, 174

N.C. App. at 782, 624 S.E.2d at 642. Instead, "'[s]uch an

assignment of error is designed to allow counsel to argue

anything and everything they desire in their brief on appeal.

This assignment -- like a hoopskirt -- covers everything and

touches nothing.'" Id. at 783, 624 S.E.2d at 642 (quoting

Wetchin v. Ocean Side Corp., 167 N.C. App. 756, 759, 606 S.E.2d

407, 409 (2005)).

Similarly, here, defendant's assignment of error "'covers

everything and touches nothing.'" Id. (quoting Wetchin, 167
 -13-
N.C. App. at 759, 606 S.E.2d at 409). Although it states a

general objection to each paragraph of the award (without

specifically mentioning the attorneys' fee award), it does not

state the basis of any objection to the attorneys' fee award

with sufficient particularity to give plaintiff notice of the

legal issues that would be addressed by the Full Commission such

that he could adequately prepare a response. See Roberts, 173

N.C. App. at 744, 619 S.E.2d at 910.

Defendants' third assignment of error also is in stark

contrast to defendants' fourth assignment of error: "Deputy

Commissioner John B. DeLuca's Award dated March 27, 2008, in

that it failed to award attorney fees as requested by Defendants

pursuant to §97-88.1." In this assignment of error, defendants

indicated specifically which particular aspect of the award they

challenged. Significantly, defendants did not include a similar

assignment of error for the award of attorneys' fees challenged

here.

Defendants nonetheless contend that they met the

particularity requirement by addressing the question of

attorneys' fees in their brief to the Full Commission, citing

Cooper v. BHT Enters., 195 N.C. App. 363, 672 S.E.2d 748 (2009).

In Cooper, the plaintiff argued that, pursuant to Roberts, the

defendant's failure to file a Form 44 constituted an abandonment
 -14-
of defendants' grounds for appeal to the Full Commission, and

therefore the Commission erred by hearing the appeal. Id. at

368, 672 S.E.2d at 753. This Court disagreed, reasoning that

unlike the appealing plaintiff in Roberts,
defendants in the present case complied with
Rule 701(2)'s requirement to state the
grounds for appeal with particularity by
timely filing their brief after giving
notice of their appeal to the Full
Commission. Additionally, plaintiff does
not argue that she did not have adequate
notice of defendants' grounds for appeal.
Plaintiff asserts only that defendants'
failure to file a Form 44 should have been
deemed an abandonment of defendants' appeal.
Since both this Court and the plain language
of the Industrial Commission's rules have
recognized the Commission's discretion to
waive the filing requirement of an
appellant's Form 44 where the appealing
party has stated its grounds for appeal with
particularity in a brief or other document
filed with the Full Commission, we overrule
these assignments of error.

Id. at 368-69, 672 S.E.2d at 753-54.

In other words, failure to file a Form 44 does not

automatically result in a mandatory dismissal of the appeal by

the Industrial Commission -- it is within the discretion of the

Commission whether to deem the grounds for appeal waived. In

determining whether the Commission abused its discretion in

deciding not to deem an issue on appeal waived, this Court in

Cooper considered whether the appellant provided the appellee

with adequate notice of the grounds for appeal through other
 -15-
means such as addressing the issue in its brief to the Full

Commission.

Here, unlike in Cooper, the Commission did not explicitly

address the issue purportedly raised by defendants on appeal in

its opinion and award. Under Cooper, it would not have been an

abuse of discretion for the Commission to address the attorneys'

fee issue, but it is unclear whether the Commission considered

the issue or not. Although defendants contend that the "Full

Commission Award removed the appealed prior award of attendant

care attorney fees and awarded attendant care compensation to be

paid directly to Mrs. Adcox[,]" nothing in the Commission's

Opinion and Award indicates that it was "remov[ing]" the

attorneys' fee award. Defendants have cited no authority -- and

we have found none -- supporting their position that silence by

the Commission regarding a determination by the deputy

commissioner can amount to reversal.

In fact, this Court has already rejected such a contention

in Polk v. Nationwide Recyclers, Inc., 192 N.C. App. 211, 664

S.E.2d 619 (2008). In Polk, the plaintiff argued that the Full

Commission failed to consider all the evidence presented

because, unlike the deputy commissioner's order, the Full

Commission did not make findings regarding all the issues
 -16-
presented on appeal. Id. at 218, 664 S.E.2d at 624. The Court

rejected the plaintiff's argument, reasoning:

[I]n this case, the Full Commission's
opinion states outright that it "affirms the
Opinion and Award of Deputy Commissioner
Deluca with modifications." . . . That is,
the Full Commission's opinion is not an
order meant to stand on its own, but rather
a modification of the deputy commissioner's
order. As plaintiff herself states, the
facts at issue were included in the deputy
commissioner's order. We see no reason to
require that such an order restate all the
findings of fact and conclusions of law from
the original order that need no
modification. Considering that defendants
filed an appeal containing thirty-two
alleged errors, it is not surprising that
the Full Commission did not address each
individually.

Id. This Court assumed with regard to the omitted findings that

the Commission wished to affirm the deputy commissioner's

opinion and award, nothing else appearing in the opinion and

award to the contrary. Id. at 218-19, 664 S.E.2d at 624.

Similarly, here, the Full Commission's opinion and award

states that it "affirms the Opinion and Award of Deputy

Commissioner DeLuca with modifications including the amount of

attendant care and rate of pay for said care." As such, the

Full Commission's opinion "is not an order meant to stand on its

own." Id. at 218, 664 S.E.2d at 624. It is undisputed that the

deputy commissioner awarded attorneys' fees to plaintiff's
 -17-
counsel, and there is no indication that the Commission intended

to modify that award.

Indeed, plaintiff correctly notes that under N.C. Gen.

Stat. § 97-90(c) (2013), the statute authorizing the award of

attorneys' fees in this instance, any decision by the Commission

to deny attorneys' fees must be supported by specific findings.

N.C. Gen. Stat. § 97-90(c) provides:

If an attorney has an agreement for fee or
compensation under this Article, he shall
file a copy or memorandum thereof with the
hearing officer or Commission prior to the
conclusion of the hearing. If the agreement
is not considered unreasonable, the hearing
officer or Commission shall approve it at
the time of rendering decision. If the
agreement is found to be unreasonable by the
hearing officer or Commission, the reasons
therefor shall be given and what is
considered to be reasonable fee allowed.

The lack of findings in the November 2008 opinion and award to

justify a denial of attorneys' fees is contrary to defendants'

contention and the Commission's assumption that the Commission

in 2008 intended to deny the fee request.

In short, based on a review of the November 2008 opinion

and award, either the Commission intended to affirm the deputy

commissioner's award, or, alternatively, the Full Commission did

not consider the issue -- whether through inadvertence or

because it deemed the matter waived. Nothing in the opinion and

award suggests and no authority exists that we can find, which
 -18-
would permit us to conclude that the Commission reversed the

deputy commissioner's award and silently denied plaintiff's

counsel the 25% attorneys' fee.

Assuming, without deciding, that defendants had standing to

challenge the deputy commissioner's award of attorneys' fees,

the burden was on defendants to obtain a ruling from the Full

Commission. When the Full Commission failed to explicitly

reverse the deputy commissioner's award, defendants could have

requested reconsideration and, if the Commission did not rule in

their favor, appealed to this Court. See Hurley v. Wal-Mart

Stores, Inc., ___ N.C. App. ___, ___, 723 S.E.2d 794, 798 (2012)

(holding where Commission failed to address defendants' appeal

of deputy commissioner's award of attorneys' fees to plaintiff's

counsel in its opinion and award, defendants properly appealed

to this Court after Commission denied their motion to

reconsider).

This Court has held that "when a party fails to appeal from

a tribunal's decision that is not interlocutory, the decision

below becomes 'the law of the case' and cannot be challenged in

subsequent proceedings in the same case." Boje v. D.W.I.T.,

L.L.C., 195 N.C. App. 118, 122, 670 S.E.2d 910, 912 (2009).

Here, when defendants failed to appeal the Full Commission's 25

November 2008 opinion and award, defendants abandoned any
 -19-
contention that the ruling was erroneous, and the deputy

commissioner's award of attorneys' fees became the law of the

case.

Under the law of the case doctrine, defendants could not

attack and the Commission could not reverse the award of

attorneys' fees. See id. (holding that "since [defendant] did

not appeal Deputy Commissioner Berger's 2003 opinion and award

finding that it did not have workers' compensation insurance

coverage on the date of plaintiff's accident," this finding was

the law of the case, and defendant "was barred from relitigating

that issue in subsequent proceedings").

Because the November 2008 opinion and award left the deputy

commissioner's award standing, plaintiff's 12 July 2012 motion

to direct payment of attorneys' fees to plaintiff's counsel was

not, as defendants contend, a motion to re-litigate the

substantive issue whether attorneys' fees had been awarded by

the Full Commission. Rather, it was simply a procedural motion

regarding the way in which the awarded fees would be paid. The

Commission's December 2012 order, as a result, had the effect of

improperly denying plaintiff's attorneys' fees. Consequently,

plaintiff was entitled to appeal the December 2012 order to

superior court pursuant to N.C. Gen. Stat. § 97-90, and the

superior court erred in dismissing plaintiff's appeal.
 -20-
Defendants, nevertheless, contend that the Commission and

the superior court did not have authority to award plaintiff's

counsel fees under the rule set forth in Palmer v. Jackson, 157

N.C. App. 625, 579 S.E.2d 901 (2003). This argument --

addressing the merits of plaintiff's request for attorneys' fees

-- is not properly before this Court because the award of

attorneys' fees is the law of the case. See Barrington v. Emp't

Sec. Comm'n, 65 N.C. App. 602, 605, 309 S.E.2d 539, 541 (1983)

(declining to consider appellant's legal arguments when bound by

law of the case). Defendants' arguments should have been raised

in the first appeal to this Court. Nothing in this opinion

expresses any view regarding defendants' arguments under Palmer.

We, therefore, reverse and remand to the superior court for

remand to the Commission. On remand, since the Commission

denied plaintiff's motion under a misapprehension of law

regarding the effect of its 2008 opinion and award, the

Commission must reconsider its ruling on that motion.

Reversed and remanded.

Judge STEELMAN concurs.

Judge ROBERT N. HUNTER, JR. concurred in this opinion prior

to 6 September 2014.