Jonathan E. BRUNSON, Plaintiff, v. NORTH CAROLINA DEPARTMENT OF JUSTICE and The State of North Carolina, Defendants.

No. COA18-656

Court of Appeals of North Carolina.

Filed: February 5, 2019

Jonathan E. Brunson, Plaintiff-Appellant, pro se.

Attorney General Joshua H. Stein, by Assistant Attorney General Barry H. Bloch, for Defendants-Appellees.

INMAN, Judge.

Jonathan E. Brunson ("Plaintiff") appeals from two orders from the North Carolina Industrial Commission ("Industrial Commission") dismissing his claims against Defendants under the North Carolina Tort Claims Act ("Tort Claims Act"), N.C. Gen. Stat. § 143-291, *et seq.* , and his motions for entry of default and default judgment.

I. *Factual and Procedural History*

Plaintiff filed a claim on 5 July 2016 with the Industrial Commission pursuant to the Tort Claims Act. Although the portions of the affidavit setting forth the substance of that claim is absent from the record, it appears from the Industrial Commission's orders that Plaintiff alleged the above-named Defendants engaged in "negligent and discriminatory application and enforcement" of the law in denying him a motion for appropriate relief filed with the Cumberland County Superior Court and various appeals by petition for writ of certiorari therefrom. Specifically, Plaintiff asserts that Defendants' actions violated his due process and equal protection rights under the North Carolina and United States Constitutions.

On 19 August 2016, the North Carolina Department of Justice ("DOJ") filed a combined answer and affirmative defense, motion to dismiss, and motion for protective order on behalf of "Defendant, North Carolina Department of Public Safety." DOJ's motion to dismiss alleged, among other things, that the Industrial Commission did not have subject matter jurisdiction over Plaintiff's action, as his claims alleged violations of the North Carolina and United States Constitutions and impermissibly sought to collaterally attack a criminal conviction.

Plaintiff filed motions to strike and stay discovery on 20 September 2016, a "Declaration for Entry of Default" on 26 September 2016, motions for default judgment and to amend his claim on 21 October 2016, and an addendum to his motion to amend on 21 October 2016; DOJ filed responses, though all of these filings from the parties are missing from the record. Those motions came on for hearing on 19 July 2017 before Special Deputy Commissioner Brian Liebman. By order filed 6 September 2017, Special Deputy Commissioner Liebman denied Plaintiff's motions and granted DOJ's motion to dismiss with prejudice.

Plaintiff appealed that order to the Full Commission. In an order filed 23 March 2018, the Full Commission affirmed Special Deputy Commissioner Liebman's order, holding, *inter alia* , that the Industrial Commission lacked subject matter jurisdiction over Plaintiff's claims. Plaintiff appeals both the 6 September 2017 order and the 23 March 2018 order.

II. *Analysis*

Plaintiff's sole argument on appeal is that the Industrial Commission erred in denying Plaintiff's motion for default judgment against the State of North Carolina and DOJ because the State failed to file and serve an answer to Plaintiff's claim within thirty days of service. He does not argue that the Industrial Commission erred in concluding it lacked subject matter jurisdiction, however, and he has therefore abandoned appeal of that issue. N.C. R. App. P. 28(b)(5) (2018).

Entry of default and default judgment are reviewed for abuse of discretion. *N.C.N.B. v. McKee* , 63 N.C. App. 58, 61, 303 S.E.2d 842, 844 (1983). "Abuse of discretion exists when the challenged actions are manifestly unsupported by reason." *Barnes v. Wells* , 165 N.C. App. 575, 580, 599 S.E.2d 585, 589 (2004) (citation and internal quotation marks omitted).

The Industrial Commission determined it did not have subject matter jurisdiction to hear Plaintiff's claim against Defendants, and Plaintiff does not contend the Industrial Commission erred in that determination. "Where there is no jurisdiction of the subject matter the whole proceeding is void *ab initio* and may be treated as a nullity anywhere, at any time, and for any purpose." *State v. Daniels* , 224 N.C. App. 608, 613, 741 S.E.2d 354, 359 (2012) (citing *High v. Pearce* , 220 N.C. 266, 271, 17 S.E.2d 108, 112 (1941) ). Therefore, the Industrial Commission did not abuse its discretion by denying Plaintiff's motions for entry of default and default judgment where it concluded that it did not have jurisdiction to hear Plaintiff's claim. The Industrial Commission's orders are affirmed.

AFFIRMED.

Report per Rule 30(e).

Chief Judge MCGEE and Judge HUNTER, JR. concur.