Cunningham v. The Goodyear Tire & Rubber Co., et al.

Vernon Sumwalt

2020-2021 NCAJ Immediate Past President

Vernon Sumwalt works at The Sumwalt Group Workers’ Compensation and Trial Lawyers in Charlotte, North Carolina, in cases involving workplace and other injuries, occupational exposures, and wrongful deaths.  He is the Immediate Past President of the North Carolina Advocates for Justice and a Fellow in the national College of Workers’ Compensation Lawyers.  Mr. Sumwalt is a board-certified specialist in both appellate practice and workers’ compensation law by the North Carolina State Bar, where he chaired its Workers’ Compensation Specialization Committee for three years after serving on the committee for four years.  In 2011, the North Carolina State Bar Board of Legal Specialization honored him with the James L. Cross Leadership Award.

Case Link View Now
Opinion Filed Pending
Attorney for the Case Kathleen Sumner
Amicus Brief Writers Michael Bertics Vernon Sumwalt
Court NC Supreme Court
Docket No. 465A20

Before considering the merits of a controversy, courts must first determine if they have the legal capacity to hear the controversy. Courts can answer this question at all levels, even for the first time on appeal, and earlier cases have held that our appellate courts can do so without restraint from what inferior courts have already determined. So, when a majority of the Court of Appeals in Cunningham v. Goodyear Tire & Rubber Co. reversed the Industrial Commission’s dismissal on the assumption that the Commission did not have jurisdiction, the question was whether our appellate courts were bound by the facts found by the Commission or if they could look at the facts with fresh eyes.

This case reached the Supreme Court of North Carolina based on a dissenting opinion at the Court of Appeals. The dissent proposed that our appellate courts were constrained to affirm the Industrial Commission’s dismissal if “any competent evidence” supported its findings, even if the reviewing court might have reached a different decision on their own. In contrast, the Court of Appeals’ majority opinion applied a de novo review of the jurisdictional facts, rejecting the Industrial Commission’s dismissal and deciding that the Commission did, in fact, have jurisdiction to decide the controversy.

The majority also held that an inadvertent lack of service under N.C. R. App. P. 26(b) was not a jurisdictional defect in the appeal that would mandate its dismissal. The dissent, on the other hand, differed with this conclusion. NCAJ’s amicus brief asserts that precedent answers both of these questions in the Plaintiff’s favor. Our appellate courts, including the Supreme Court, holds that the de novo standard of review applies to jurisdictional facts. Also, both our appellate courts have already held improper service under N.C. R. App. P. 26(b) is not jurisdiction, so that the Supreme Court should affirm the majority opinion of the Court of Appeals in entertaining the merits of the appeal.