{ "id": 11916782, "name": "TRACIE L. PARKER, Plaintiff-Appellee, v. STATE OF NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, Defendant-Appellant", "name_abbreviation": "Parker v. State Department of Transportation", "decision_date": "1996-04-16", "docket_number": "No. COA95-646", "first_page": "279", "last_page": "282", "citations": [ { "type": "official", "cite": "122 N.C. App. 279" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "268 S.E.2d 185", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "189" } ], "opinion_index": 0 }, { "cite": "300 N.C. 708", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564644 ], "year": 1980, "pin_cites": [ { "page": "712" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0708-01" ] }, { "cite": "298 S.E.2d 357", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "359-60" } ], "opinion_index": 0 }, { "cite": "307 N.C. 342", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562325 ], "year": 1983, "pin_cites": [ { "page": "346-47" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0342-01" ] }, { "cite": "400 S.E.2d 476", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "482", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 450", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527876 ], "year": 1991, "pin_cites": [ { "page": "460", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/101/0450-01" ] }, { "cite": "85 S.E.2d 386", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1955, "pin_cites": [ { "page": "389", "parenthetical": "holding that if the words in the statute are clear, certain, and intelligible, then they must be given their natural or ordinary meaning" } ], "opinion_index": 0 }, { "cite": "241 N.C. 329", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8609931 ], "year": 1955, "pin_cites": [ { "page": "332", "parenthetical": "holding that if the words in the statute are clear, certain, and intelligible, then they must be given their natural or ordinary meaning" } ], "opinion_index": 0, "case_paths": [ "/nc/241/0329-01" ] } ], "analysis": { "cardinality": 470, "char_count": 8105, "ocr_confidence": 0.749, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.24423335105637434 }, "sha256": "5207c3c9e4c5555b1060ab7b6dbb0cdf9799d511c4fd0d275b2c0cef719c5348", "simhash": "1:62ab77c632b9ee40", "word_count": 1339 }, "last_updated": "2023-07-14T15:39:52.508825+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge ARNOLD and Judge MARTIN, Mark D. concur." ], "parties": [ "TRACIE L. PARKER, Plaintiff-Appellee, v. STATE OF NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, Defendant-Appellant" ], "opinions": [ { "text": "WYNN, Judge.\nDefendant, the State of North Carolina Department of Transportation (\u201cDOT\u201d), appeals from a default judgment entered by the North Carolina Industrial Commission (\u201cCommission\u201d) on a claim made under the State Tort Claims Act. We vacate and remand for additional findings.\nOn 25 January 1990, plaintiff Tracie Parker rode in an automobile driven by Mark Marochek on a portion of North Roxboro Road which had been undergoing a state-ordered road widening project. An accident occurred when the vehicle collided into a telephone pole at a point in which the right lane ended abruptly.\nMs. Parker filed a tort claim affidavit dated 16 September 1992 against DOT alleging negligence in failing to provide signs, markers, or devices to advise motorists 1) that the right lane would end, or 2) that a utility pole was directly in the path of the incomplete right lane. The affidavit was served on the Attorney General on 5 October 1992.\nOn 6 November 1992, thirty-two days after service on the defendant, Ms. Parker moved for entry of default. The Commission received her motion on 13 November 1992 and entered default by order filed 13 August 1993. In denying DOT\u2019s subsequent motion to set aside the default entry, Commissioner J. Randolph Ward revealed the procedural morass of this matter in an order filed 15 September 1993:\nPlaintiff filed her affidavit with the Commission on September 18, made her motion for default on November 13, and defendant\u2019s answer was filed on November 24. Since, under G.S. \u00a7143-297, a State Torts Claims act is initiated by filing the complainant\u2019s affidavit with the Commission, which then forwards a copy of the affidavit to the Attorney General, who then has \u201c30 days after receipt of copy of same\u201d to answer, the undersigned sent an inquiry to [the Attorney General] requesting \u201cwhether or not the State filed an answer in this matter within 30 days of receipt of the complaint. . . [and] perhaps a copy of the document showing your office\u2019s receipt stamp\u201d to determine whether there was an extraordinary delay before actual receipt following the Commission\u2019s transmission of the affidavit on September 29. When no such excuse was forthcoming, the Order of Entry of Default was filed.\nThereafter, Ms. Parker moved for a final default judgment. On 21 July 1994, in a Decision and Order that determined only the amount of damages due to plaintiff, Deputy Commissioner Jan N. Pittman awarded Ms. Parker $81,000. DOT appealed to the Full Commission which increased Ms. Parker\u2019s damages to $96,000 but set-off from that amount a $50,000 settlement between Ms. Parker and Mr. Marochek. DOT appealed to this Court.\nThe issues before this Court are (I) whether the Commission is required to conduct a full evidentiary hearing before default judgment may be entered against the State under Rule 55(f) and (II) whether the Commission must make findings of fact to support the conclusion under Rule 55(f) that a claimant established her claim or right to relief by the evidence.\nI.\nDOT first contends that the Commission erred by failing to conduct a full evidentiary hearing prior to entering default judgment against the State. We disagree.\nN.C. Gen. Stat. \u00a7 1A-1, Rule 55(f) (1990), provides:\nNo judgment by default shall be entered against the State of North Carolina or an officer in his official capacity or agency thereof unless the claimant establishes his claim or right to relief by evidence.\n(emphasis supplied).\nDOT argues that once plaintiff establishes her right to relief by evidence, the State then has a right to present contrary evidence. It argues that \u201cthe evidentiary hearing, in essence, would be the equivalent of a trial on the merits . . . .\u201d\nThe plain language of N.C.R. Civ. P. 55 establishes that prior to obtaining default against the State, a claimant must present evidence to establish her claim or right to relief. We find no provision in Rule 55(f) giving the State the right to then counter the plaintiffs evidence. See Alliance Company v. State Hospital, 241 N.C. 329, 332, 85 S.E.2d 386, 389 (1955) (holding that if the words in the statute are clear, certain, and intelligible, then they must be given their natural or ordinary meaning). Indeed, if we were to accept DOT\u2019s rationale, we would undermine the purpose of an entry of default since \u201c[t]he effect of an entry of default is that the defendant... is prohibited from defending on the merits of the case. \u201d Spartan Leasing, Inc. v. Pollard, 101 N.C. App. 450, 460, 400 S.E.2d 476, 482 (1991) (citations omitted) (emphasis supplied).\nAccordingly, we hold that the Commission is not required by Rule 55(f) to conduct a full evidentiary hearing prior to entering default against the State.\nII.\nNext, DOT argues that prior to entering default judgment against the State, the Commission must make findings of fact to support the conclusion that a claim or right to relief under Rule 55(f) has been established by the evidence. We agree.\nEven though Rule 55 contains no requirement giving the State the right to counter plaintiffs evidence, the claimant must still establish her claim or right to relief by the evidence. In so doing, the claimant must show that a factual basis exists upon which negligence or liability can be established. In turn, the fact finder must make findings of fact as to the claimant\u2019s evidentiary showing.\nN.C.R. Civ. P. 52(a)(1) requires that \u201c[i]n all actions tried upon the facts without a jury or with an advisory jury, the Court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment.\u201d Rule 52(a) requires \u201cspecific findings of the ultimate facts established by the evidence, admissions and stipulations which are determinative of the questions involved in the action and essential to support the conclusions of law reached. Farmers Bank v. Brown Distributors, 307 N.C. 342, 346-47, 298 S.E.2d 357, 359-60 (1983).\nThe requirement to make specific findings of fact is not a mere formality. Instead, it allows the \u201creviewing court to determine from the record whether the judgment \u2014 and the legal conclusions which underlie it \u2014 represent a correct application of the law.\u201d Coble v. Coble, 300 N.C. 708, 712, 268 S.E.2d 185, 189 (1980).\nUpon careful review of the record, we find that the deputy commissioner\u2019s order which was modified and adopted by the Full Commission is devoid of any findings of fact on the claims of liability and negligence. Indeed, the order only addresses the issue of damages. Moreover, we note in passing that nothing in the record indicates that the Commission entered a final default judgment against DOT. Because our review must be based upon findings of fact and conclusions of law, we vacate and remand for proper findings consistent with this opinion.\nChief Judge ARNOLD and Judge MARTIN, Mark D. concur.", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "Michael E. Mauney and Charles Darsie for plaintiff-appellee.", "Michael F. Easley, Attorney General, by Don Wright, Assistant Attorney General, for the State." ], "corrections": "", "head_matter": "TRACIE L. PARKER, Plaintiff-Appellee, v. STATE OF NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, Defendant-Appellant\nNo. COA95-646\n(Filed 16 April 1996)\n1. Judgments \u00a7 154 (NCI4th)\u2014 default against State \u2014 full evidentiary hearing not required\nThe Industrial Commission is not required by N.C.G.S. \u00a7 1A-1, Rule 55(f) to conduct a full evidentiary hearing prior to entering default against the State in a claim under the Tort Claims Act.\nAm Jur 2d, Judgments \u00a7\u00a7 277, 282.\n2. Judgments \u00a7 154 (NCI4th)\u2014 default judgment against State \u2014 requirement of findings of fact to support claim\nPrior to entering default judgment against the State in an action under the Tort Claims Act, the Industrial Commission must make findings of fact to support the conclusion under N.C.G.S. \u00a7 1A-1, Rule 55(f) that a claim or right to relief has been established by the evidence.\nAm Jur 2d, Judgments \u00a7\u00a7 277, 282.\nAppeal by defendant from Decision and Order entered 26 January 1995 by the North Carolina Industrial Commission, Thomas J. Bolch, Commissioner. Heard in the Court of Appeals 28 February 1996.\nMichael E. Mauney and Charles Darsie for plaintiff-appellee.\nMichael F. Easley, Attorney General, by Don Wright, Assistant Attorney General, for the State." }, "file_name": "0279-01", "first_page_order": 315, "last_page_order": 318 }