               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                     No. COA18-334

                                 Filed: 20 November 2018

North Carolina Industrial Commission, I.C. No. 15-16608

JAMES A. BRADLEY, Employee, Plaintiff,

              v.

CUMBERLAND   COUNTY,    Employer,      SELF-INSURED                   (KEY     RISK
MANAGEMENT SERVICES, INC., Servicing Agent), Defendants.


        Appeal by plaintiff from Opinion and Award entered 7 November 2017 by the

North Carolina Industrial Commission. Heard in the Court of Appeals 19 September

2018.


        Musselwhite, Musselwhite, Branch and Grantham, by Stephen C. McIntyre, for
        plaintiff-appellant.

        Teague Campbell Dennis & Gorham, LLP, by Dayle A. Flammia and Lindsay
        A. Underwood, for defendants-appellees.


        ZACHARY, Judge.


        Plaintiff James A. Bradley appeals from an Opinion and Award of the North

Carolina Industrial Commission. In that Plaintiff failed to establish that his notice

of appeal was properly and timely filed, this Court lacks jurisdiction. Accordingly,

we dismiss Plaintiff’s appeal.

                                     I. Background

        On 28 March 2017, Deputy Commissioner Lori A. Gaines issued an Opinion

and Award concluding Plaintiff was entitled to workers’ compensation benefits and
                              BRADLEY V. CUMBERLAND CTY.

                                     Opinion of the Court



awarding Plaintiff disability benefits. Defendants appealed to the Full Commission,

and on 7 November 2017, the Full Commission entered an Opinion and Award

reversing in part and affirming in part the Deputy Commissioner’s Opinion and

Award.

         Plaintiff filed his notice of appeal to this Court. Plaintiff’s counsel printed the

notice of appeal on his firm’s letterhead and addressed the notice to Commissioner

Phillip A. Baddour, III of the Industrial Commission, confirmation receipt requested.

Although the notice indicated that it was filed with the Industrial Commission “via

Electronic Filing Portal,” it lacked any time stamp indicating if or when the Industrial

Commission received Plaintiff’s notice of appeal. At the bottom of the notice was a

notation of “cc via email: Dayle Flammia, Counsel for Defendants,” indicating that

opposing counsel was to receive a copy of the notice of appeal via email. Further,

Plaintiff failed to include a certificate of service in the record on appeal demonstrating

how and when Plaintiff served opposing counsel with a copy of the notice of appeal.

Finally, the body of the notice failed to state the court to which appeal was being

taken.

                               II. Appellate Jurisdiction

         This Court has the power to inquire into jurisdiction at any time, even sua

sponte. Lee v. Winget Rd., LLC, 204 N.C. App. 96, 98, 693 S.E.2d 684, 687 (2010). We

must have jurisdiction to hear the cases before us, and our power to hear those cases



                                            -2-
                            BRADLEY V. CUMBERLAND CTY.

                                   Opinion of the Court



must be “properly invoked by an interested party.” Dogwood Dev. & Mgmt. Co., LLC

v. White Oak Transp. Co., 362 N.C. 191, 197, 657 S.E.2d 361, 364 (2008). Both statute

and our Rules of Appellate Procedure provide the proper method by which interested

parties may successfully invoke our jurisdiction. Id. at 197, 657 S.E.2d at 364-65

(“The appellant’s compliance with the jurisdictional rules governing the taking of an

appeal is the linchpin that connects the appellate division with the trial division and

confers upon the appellate court the authority to act in a particular case.”). When an

appealing party fails to follow the steps necessary to vest this Court with jurisdiction,

we cannot review the case on the merits, and the appeal must be dismissed. Id. at

197, 657 S.E.2d at 364.

      Generally, violations of Rule 3 are jurisdictional and warrant dismissal of an

appeal. Id. at 197, 657 S.E.2d at 365 (citing Bailey v. State, 353 N.C. 142, 156, 540

S.E.2d 313, 322 (2000)). However, certain violations of the appellate rules are non-

jurisdictional and do not invariably warrant dismissal of an appeal. Id. at 200, 657

S.E.2d at 366-67. Non-jurisdictional rules are those that are “designed primarily to

keep the appellate process flowing in an orderly manner.” Id. at 198, 657 S.E.2d at

365 (citation and quotation marks omitted). The violation of non-jurisdictional rules

warrants dismissal only when the violation or violations amount to a “substantial

failure or gross violation” of the Appellate Rules that impairs this Court’s task of

review or frustrates the adversarial process. Id. at 200, 657 S.E.2d at 366.



                                          -3-
                            BRADLEY V. CUMBERLAND CTY.

                                   Opinion of the Court



A. Appealing Cases from the Industrial Commission

      The Workers’ Compensation Act provides a right to appeal Industrial

Commission cases to this Court:

             [E]ither party to the dispute may, within 30 days from the
             date of the award or within 30 days after receipt of notice
             to be sent by any class of U.S. mail that is fully prepaid or
             electronic mail of the award, but not thereafter, appeal
             from the decision of the Commission to the Court of
             Appeals for errors of law under the same terms and
             conditions as govern appeals from the superior court to the
             Court of Appeals in ordinary civil actions. The procedure
             for the appeal shall be as provided by the rules of appellate
             procedure.

N.C. Gen. Stat. § 97-86 (2017). The Industrial Commission requires that parties

submit most documents in workers’ compensation cases electronically via the

Commission’s Electronic Document Filing Portal (“EDFP”). 11 NCAC 23A.0108(a).

Parties can file a notice of appeal to the Court of Appeals via EDFP or U.S. Mail. 11

NCAC 23A.0108(g).

      Article IV of the Appellate Rules governs appeals from administrative

tribunals, including the Industrial Commission. Pursuant to Rule 18, “[a]ppeals of

right from administrative [tribunals] shall be in accordance with the procedures

provided in these rules for appeals of right from the courts of the trial division, except

as provided in this Article.” N.C.R. App. P. 18(a). A party’s notice of appeal from the

Industrial Commission must (1) specify the party or parties taking the appeal; (2)

designate the final decision from which appeal is taken and the court to which appeal


                                          -4-
                            BRADLEY V. CUMBERLAND CTY.

                                   Opinion of the Court



is taken; and (3) shall be signed by counsel of record for the party or parties taking

the appeal. N.C.R. App. P. 18(b)(2). Appellants can demonstrate timely filing of a

notice of appeal by including in the appellate record some form of acknowledgement

from the Industrial Commission stating when the Commission received the notice of

appeal. See Jones v. Yates Motor Co., 121 N.C. App. 84, 85, 464 S.E.2d 479, 480 (1995)

(“On 23 March 1994, the Commission advised plaintiff that it received his notice of

appeal to the Court of Appeals.”).       Such acknowledgement includes, inter alia,

providing a time-stamped copy of a notice of appeal or a letter from the Industrial

Commission acknowledging receipt of a notice of appeal. Article IV of the Appellate

Rules does not, however, provide any instruction concerning service of the notice of

appeal upon the opposing party.

B. Service of a Notice of Appeal

      “Copies of all papers filed by any party and not required by these rules to be

served by the clerk shall, at or before the time of filing, be served on all other parties

to the appeal.” N.C.R. App. P. 26(b) (emphasis added). Rule 26 further prescribes

the following manner of service:

             Service may be made in the manner provided for service
             and return of process in Rule 4 of the Rules of Civil
             Procedure and may be so made upon a party or upon its
             attorney of record. Service may also be made upon a party
             or its attorney of record by delivering a copy to either or by
             mailing a copy to the recipient’s last known address, or if
             no address is known, by filing it in the office of the clerk
             with whom the original paper is filed. Delivery of a copy


                                          -5-
                             BRADLEY V. CUMBERLAND CTY.

                                   Opinion of the Court



             within this rule means handing it to the attorney or to the
             party, or leaving it at the attorney’s office with a partner or
             employee. Service by mail is complete upon deposit of the
             paper enclosed in a postpaid, properly addressed wrapper
             in a post office or official depository under the exclusive
             care and custody of the United States Postal Service, or, for
             those having access to such services, upon deposit with the
             State Courier Service or Inter-Office Mail. When a
             document is filed electronically to the [appellate courts’]
             electronic-filing site, service also may be accomplished
             electronically by use of the other counsel’s correct and
             current e-mail address(es), or service may be accomplished
             in the manner described previously in this subsection.

N.C.R. App. P. 26(c).      Rule 4 of the North Carolina Rules of Civil Procedure

substantially mirrors the methods of service and process listed in Rule 26(c) of the

Appellate Rules, with a few additional methods provided. See e.g., N.C. Gen. Stat. §

1A-1, Rules 4(j)(1), (j1) (2017) (permitting, among other methods, service by leaving

copies at a party’s dwelling with a person of suitable age, service by delivery to a

party’s authorized agent, or service by publication).

      Generally, service by email is not allowed. See id. § 1A-1, Rule 4(j6) (“Nothing

in subsection (j) of this section authorizes the use of electronic mailing for service on

the party to be served.”). However, parties can serve papers by email in one limited

instance: for documents filed electronically to the North Carolina Appellate Courts’

electronic-filing site.    See N.C.R. App. P. 26(c) (“When a document is filed

electronically to the electronic-filing site, service also may be accomplished

electronically by    use   of the other      counsel’s correct    and current e-mail



                                          -6-
                             BRADLEY V. CUMBERLAND CTY.

                                    Opinion of the Court



address(es) . . . .”). A notice of appeal is not filed with this Court, but rather with the

court that entered judgment. See N.C.R. App. P. 3(a), 26(a). Thus, appellants cannot

serve a notice of appeal via email. See MNC Holdings, LLC v. Town of Matthews, 223

N.C. App. 442, 445-47, 735 S.E.2d 364, 366-67 (2012) (holding service of a notice of

appeal by email is a technical violation of Rule 26 of the Appellate Rules, but

determining that the technical error did not warrant dismissal where all parties

clearly received notice and the error did not materially impede review). In addition,

both the Rules of Civil Procedure and the Rules of Appellate Procedure require proof

of service in the form of a certificate of service. See N.C. Gen. Stat. § 1A-1, Rule 5(b1);

N.C.R. App. P. 26(d).

                                     III. Discussion

       In the instant case, the following errors are apparent: (1) Plaintiff’s notice of

appeal was improperly served via email; (2) the record on appeal does not include a

certificate of service of the notice of appeal; (3) the notice of appeal failed to designate

the court to which appeal was being taken; and most significantly, (4) the record on

appeal contains no proof that the notice of appeal was timely filed.

       The first three of Plaintiff’s errors constitute non-jurisdictional violations of

our Appellate Rules. Plaintiff improperly served opposing counsel with his notice of

appeal by email, failed to include a certificate of service of his notice of appeal, and

failed to designate the court to which appeal was taken. Neither Rule 4 of the Rules



                                           -7-
                            BRADLEY V. CUMBERLAND CTY.

                                   Opinion of the Court



of Civil Procedure nor the Appellate Rules permit service of a notice of appeal by

email. Thus, Plaintiff’s service of the notice of appeal was improper. However, this

Court has ruled that such a violation is non-jurisdictional and does not warrant

dismissal where all parties had actual notice. See State v. Williams, 235 N.C. App.

201, 204, 761 S.E.2d 662, 664 (2014) (holding that service of a notice of appeal is a

non-jurisdictional violation and determining that dismissal would be inappropriate

because the State was not misled by the error and waived compliance by participating

in the appeal), appeal dismissed and disc. rev. denied, 368 N.C. 241, 768 S.E.2d 857

(2015). Here, it is clear that Defendants had actual notice of appeal to this Court by

their participation in the appeal.      Accordingly, this violation does not warrant

dismissal of the appeal.

      Second, Plaintiff failed to include a certificate of service of the notice of appeal

in the record. Appellate Rule 3 provides that service of a notice of appeal shall be as

provided in Rule 26. N.C.R. App. P. 3(e). Rule 26 requires that the certificate of

service “shall appear on or be affixed to the” notice of appeal. N.C.R. App. P. 26(d).

Therefore, Plaintiff’s failure to include a certificate of service of his notice of appeal

violates Appellate Rule 3. However, while proper filing of a notice of appeal is

jurisdictional, the manner of service of a notice of appeal is a non-jurisdictional

requirement. See Lee, 204 N.C. App. at 102, 693 S.E.2d at 689-90 (holding that

“where a notice of appeal is properly and timely filed, but not served upon all parties”



                                          -8-
                             BRADLEY V. CUMBERLAND CTY.

                                    Opinion of the Court



the “violation of Rule 3 is a nonjurisdictional defect[,]” although it is nevertheless a

“significant and fundamental violation” warranting dismissal of the appeal). In that

this violation does not constitute a “substantial or gross violation of the Appellate

Rules,” it does not necessitate dismissal.

       In addition, Plaintiff neglected to designate in the notice of appeal the court to

which the case was being appealed. This Court, however, has deemed that a violation

of this sort does not necessarily warrant dismissal of the appeal. See Phelps Staffing,

LLC v. S.C. Phelps, Inc., 217 N.C. App. 403, 410, 720 S.E.2d 785, 791 (2011) (holding

that the appellant’s failure to designate the court to which the appeal is taken is not

a fatal error, so long as this information may be fairly inferred and the other parties

are not misled by the mistake). Plaintiff’s only appeal of right lies in this Court, so it

can be inferred that Plaintiff intended to appeal to this Court despite his failure to

designate in his notice of appeal the court to which he was appealing. Based on

Defendants’ participation in this appeal by settling the record on appeal and filing a

brief, it is clear they were not misled by this Rule violation. As a result, this violation,

alone, would not warrant dismissal of Plaintiff’s appeal.

       Finally, there is no indication that Plaintiff’s notice of appeal was timely filed,

which is a jurisdictional error. E.g., Strezinski v. City of Greensboro, 187 N.C. App.

703, 710, 654 S.E.2d 263, 268 (2007) (dismissing the defendant’s cross-appeal from a

decision of the Industrial Commission because the notice of appeal was not timely



                                           -9-
                            BRADLEY V. CUMBERLAND CTY.

                                   Opinion of the Court



filed), disc. rev. denied, 362 N.C. 513, 668 S.E.2d 783 (2008). Plaintiff’s counsel

allegedly filed his notice of appeal—on his firm’s letterhead—via the Industrial

Commission’s Electronic Document Filing Portal. The notice of appeal does not bear

a time stamp, file stamp, or any other designation that the Industrial Commission

received the notice of appeal.      Plaintiff’s counsel requested that Commissioner

Baddour confirm receipt of the notice; however, Plaintiff failed to include any

acknowledgment from the Industrial Commission indicating receipt of Plaintiff’s

notice of appeal in the record on appeal. The notice of appeal is dated “December 5,

2017,” which would have been timely, but that date was affixed by Plaintiff’s counsel,

and again, not confirmed by proof of service. We will not assume the notice of appeal

was timely filed solely based upon Plaintiff’s unverified notice of appeal.           See

Dogwood, 362 N.C. at 197, 657 S.E.2d at 365 (citing Crowell Constructors, Inc. v. State

ex rel. Cobey, 328 N.C. 563, 563-64, 402 S.E.2d 407, 408 (1991) (per curiam) (holding

that because of the failure to include the notice of appeal in the record, in violation of

Rule 3, the Court of Appeals had no jurisdiction and the appeal must be dismissed);

In re Lynette H., 323 N.C. 598, 602, 374 S.E.2d 272, 274 (1988) (holding that the State

violated Rule 3 by failing to give timely notice of appeal, resulting in a lack of

jurisdiction)).

       “[I]t is [the appellant’s] burden to produce a record establishing the jurisdiction

of the court from which appeal is taken, and his failure to do so subjects th[e] appeal



                                          - 10 -
                            BRADLEY V. CUMBERLAND CTY.

                                   Opinion of the Court



to dismissal.” State v. Phillips, 149 N.C. App. 310, 313-14, 560 S.E.2d 852, 855,

appeal dismissed, 355 N.C. 499, 564 S.E.2d 230 (2002). Subject matter jurisdiction

cannot be waived by this Court or the parties, Inspection Station No. 31327 v. N.C.

Div. of Motor Vehicles, 244 N.C. App. 416, 428, 781 S.E.2d 79, 88 (2015), and because

such violation of Rule 3 is jurisdictional, plaintiff’s appeal must be dismissed.

                                   IV. Conclusion

      There is no indication in the record that Plaintiff properly and timely filed his

notice of appeal. As a result, this Court does not have jurisdiction to hear Plaintiff’s

appeal, and the appeal is therefore dismissed.

      APPEAL DISMISSED.

      Judges STROUD and MURPHY concur.




                                          - 11 -
