{ "id": 11653108, "name": "LARRY CALHOUN, SR., Plaintiff v. WAYNE DENNIS HEATING & AIR CONDITIONING, and KEY RISK MANAGEMENT SERVICES, INC., Defendants", "name_abbreviation": "Calhoun v. Wayne Dennis Heating & Air Conditioning", "decision_date": "1998-06-16", "docket_number": "No. COA97-1270", "first_page": "794", "last_page": "801", "citations": [ { "type": "official", "cite": "129 N.C. App. 794" } ], "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": "135 S.E.2d 629", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1964, "pin_cites": [ { "page": "631" } ], "opinion_index": 0 }, { "cite": "261 N.C. 553", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574591 ], "year": 1964, "pin_cites": [ { "page": "556" } ], "opinion_index": 0, "case_paths": [ "/nc/261/0553-01" ] }, { "cite": "402 S.E.2d 452", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "459", "parenthetical": "notice can be waived" } ], "opinion_index": 0 }, { "cite": "102 N.C. App. 355", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524142 ], "year": 1991, "pin_cites": [ { "page": "367", "parenthetical": "notice can be waived" } ], "opinion_index": 0, "case_paths": [ "/nc-app/102/0355-01" ] }, { "cite": "497 S.E.2d 722", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "726" } ], "opinion_index": 0 }, { "cite": "129 N.C. App. 131", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11648720 ], "year": 1998, "pin_cites": [ { "page": "138" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0131-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-83", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-87", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-18", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "pin_cites": [ { "page": "(b)" }, { "page": "(g)" }, { "page": "(g)" }, { "page": "(b)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 575, "char_count": 16263, "ocr_confidence": 0.724, "pagerank": { "raw": 4.048060333475959e-07, "percentile": 0.9076517588477166 }, "sha256": "9a490d79d37aead5e32283c7744dc53b33dbd7544e9e6c1ae2231047f0a7fc45", "simhash": "1:2eaae5642e767632", "word_count": 2687 }, "last_updated": "2023-07-14T18:14:06.814789+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN, Mark D. and TIMMONS-GOODSON concur." ], "parties": [ "LARRY CALHOUN, SR., Plaintiff v. WAYNE DENNIS HEATING & AIR CONDITIONING, and KEY RISK MANAGEMENT SERVICES, INC., Defendants" ], "opinions": [ { "text": "GREENE, Judge.\nWayne Dennis Heating & Air Conditioning (Wayne Dennis) and Key Risk Management Services, Inc. (Key Risk) (collectively defendants) appeal from a judgment for Larry Calhoun, Sr. (plaintiff).\nThe facts in this case are as follows: On 1 August 1995, the plaintiff suffered a back injury while performing functions arising out of and in the course of his employment with defendants. The defendants completed a North Carolina Industrial Commission (Commission) Form 60, \u201cEmployer\u2019s Admission of Employee\u2019s Rights to Compensation Pursuant to N.C. Gen. Stat. \u00a7 97-18(b),\u201d in which the defendants acknowledged that the plaintiff had been injured during the course of employment. The Form 60 outlined that the plaintiff had suffered an injury while at work and that the defendants were to pay the plaintiff temporary total disability compensation. The Form 60 was filed with the Commission on 15 September 1995 and pursuant to the Form 60, the defendants made compensation payments to the plaintiff from 4 September 1995 through 3 October 1995. On 4 October 1995, the defendants filed a Form 28B with the Commission notifying it that the defendants were ceasing compensation payments, as the plaintiff had returned to work on 4 October 1995.\nOn 19 March 1996, the defendants filed a second Form 60 with the Commission which stated that the plaintiff again was out of work due to injury and that the defendants were to pay temporary total compensation. The payments for the temporary total compensation were to begin on 14 August 1996.\nOn 20 March 1997, the plaintiff filed a complaint in superior court alleging that he, as an employee of Wayne Dennis, had \u201csustained a compensable injury . . . invoking the . . . jurisdiction of the Workers\u2019 Compensation Act . . . The complaint further alleged that the defendants were indebted to the plaintiff because of the defendants\u2019 failure to make payments pursuant to a Form 60 filed with the Commission. In his prayer for relief the plaintiff demanded judgment against the defendants \u201cfor the sum of $333.35 per week from August 14, 1996, for necessary weeks until otherwise ordered by the . . . Commission, together with the 10% penalty set forth in N.C. Gen. Stat. \u00a7 97-18(g), together with attorney fees and the costs of this action ... On 20 June 1997, the defendants answered and admitted that Wayne Dennis, \u201ca member of a self-insurance fund... through its servicing agent\u201d Key Risk, had filed with the Commission Forms 60. The defendants denied that any judgment existed against them and moved to dismiss the plaintiff\u2019s action for failing to state a claim upon which relief could be granted. The defendants further alleged that an issue of the plaintiff\u2019s entitlement to Workers\u2019 Compensation benefits was pending before the Commission, as \u201cplaintiff had returned to work at equal or greater wages.\u201d\nOn 7 July 1997, the plaintiff filed a motion for summary judgment and served it on the defendants. On 8 July 1997, the defendants\u2019 motion to dismiss was heard by the trial court, having been duly calendared. At that hearing, the defendants objected to the hearing of the plaintiff\u2019s motion for summary judgment and the trial court indicated that it would not hear that motion.\nFollowing argument on the defendants\u2019 motion to dismiss, the trial court denied the defendants\u2019 motion to dismiss and asked the plaintiff to prepare an order reflecting such denial. The plaintiff tendered and the trial court signed a judgment providing in pertinent part: \u201cThis matter coming before the undersigned for entry of judgment pursuant to N.C. Gen. Stat. \u00a7 97-87, and it appearing to the court that no genuine issue as to any material fact exists and that Plaintiff is entitled to judgment as a matter of law.\u201d The judgment included the following relevant findings of fact:\n(3) The Form 60 is an award, decision, order, or agreement of the .. . Commission^]\n(7) Defendants have not filed a certificate duly issued by the . . . Commission showing compliance with N.C. Gen. Stat. \u00a7 97-83[;]\n(8) Plaintiff is entitled to weekly compensation from August 14, 1996, until the present and continuing, in addition to a mandatory 10% penalty on all monies 14 days late, pursuant to N.C. Gen. Stat. \u00a7 97-18(g). _\nThe issues are whether: (I) a Form 60 is an order, decision or award of the Commission within the meaning of N.C. Gen. Stat. \u00a7 97-87; (II) the plaintiff used the proper procedures in seeking a judgment under N.C. Gen. Stat. \u00a7 97-87; and (III) summary judgment was granted in this case.\nI\nThe plaintiff argues that the defendants\u2019 execution of a Form 60 constitutes an award of the Commission and thus entitles him to seek the imposition of a judgment, which in turn entitles him to seek execution for past due installments and future installments as they become due. We agree.\nN.C. Gen. Stat. \u00a7 97-87 provides:\nAny party in interest may file in the superior court of the county in which the injury occurred a certified copy of a memorandum of agreement approved by the Commission, or of an order or decision of the Commission, or of an award of the Commission unap-pealed from or of an award of the Commission affirmed upon appeal, whereupon said court shall render judgment in accordance therewith, and notify the parties. Such judgment shall have the same effect, and all proceedings in relation thereto shall thereafter be the same, as though said judgment had been rendered in a suit duly heard and determined by said court: Provided, if the judgment debtor shall file a certificate duly issued by the . . . Commission showing compliance with G.S. 97-83 with the clerk of the superior court in the county or counties where such judgment is docketed, then such clerk shall make upon the judgment role an entry showing the filing of such certificate which shall operate as a discharge of the lien of the said judgment, and no execution shall be issued thereon; provided, further, that if at any time there is default in the payment of any installment due under the award set forth in said judgment the court may, upon application for cause and after 10 days\u2019 notice to judgment debtor, order the lien of such judgment restored, and execution may be immediately issued thereon for past due installments and for future installments as they may become due.\nN.C.G.S. \u00a7 97-87 (1991). Section 97-87 thus permits \u201cany party in interest\u201d to convert a \u201cmemorandum of agreement approved by the Commission ... an order or decision of the Commission ... [or an] award of the Commission\u201d into a court judgment. A Form 60 properly executed by the employer or someone acting on his behalf is an \u201caward\u201d within the meaning of section 97-87. This is so because any payment made \u201cpursuant to G.S. 97-18(b)\u201d constitutes an award of the Commission, N.C.G.S. \u00a7 97-82(b) (Supp. 1997), and payments voluntarily made by an employer pursuant to a Form 60 are payments made consistent with 97-18(b), see N.C.G.S. \u00a7 97-18(b) (Supp. 1997) (setting out procedures for payment where employer \u201cadmits the employee\u2019s right to compensation\u201d). Indeed, the Form 60 specifically provides that it is entered \u201cpursuant to N.C. Gen. Stat. \u00a7 97-18(b).\u201d\nII\nSection 97-87 provides that the superior court is to enter judgment in accordance with an award of the Commission upon the filing, by an \u201cinterested party,\u201d of a certified copy of the award with the superior court of the county where the injury occurred. N.C.G.S. \u00a7 97-87; Bryant, 261 N.C. at 654, 135 S.E.2d at 630 (judgment entered by superior court judge \u201csubstantially as provided in [the] award\u201d of the Commission after employee filed certified copy of award with clerk of court). Although this judgment may be entered without notice to the judgment debtor, notice to the judgment debtor must issue immediately upon entry of the judgment. N.C.G.S. \u00a7 97-87. No execution on the judgment shall issue, however, if the judgment debtor files with the clerk of court a \u201ccertificate duly issued by the . . . Commission showing compliance with G.S. 97-83.\u201d Id.; N.C.G.S. \u00a7 97-83 (if parties disagree as to the \u201cbenefits under this Article\u201d a hearing before the Commission may be requested by either party).\nIn this case, the plaintiff filed a complaint demanding entry of a judgment against the defendants for the sums due under the Form 60 filed with the Commission on 19 March 1996, and this is an acceptable method for asserting a section 97-87 claim. See 101 C.J.S. Workmen\u2019s Compensation \u00a7 845 (1958). The complaint does not state that the plaintiff was seeking a judgment under the provisions of section 97-87. The failure to reference section 97-87 in the complaint, however, is not fatal to the plaintiffs claim. Although an explicit reference to section 97-87 would help to avoid confusion, the facts alleged in the pleading must determine the nature of the relief sought, see Ferguson v. Killens, 129 N.C. App. 131, 138, 497 S.E.2d 722, 726 (1998), and the plaintiff has pled facts, when construed in a manner to do substantial justice, see N.C.G.S. \u00a7 1A-1, Rule 8(f) (1990), sufficient to alert the defendants that relief was being sought under section 97-87. The plaintiff has therefore properly presented his request to the superior court that the award of the Commission (Form 60) be converted into a judgment of the court, consistent with section 97-87.\nIII\nHaving held that the plaintiff could have obtained a judgment by merely filing with the clerk of court a certified copy of the award of the Commission (Form 60), we must now decide how the trial court is to proceed under section 97-87 upon the filing of a complaint.\nThe trial court must ultimately determine whether: (1) the plaintiff is a \u201cparty in interest,\u201d (2) the plaintiff has presented a certified copy of a Commission-approved memorandum of agreement, or an order or decision of the Commission, or an award of the Commission unappealed from, or an award of the Commission affirmed upon appeal, (3) the injury covered by the Workers\u2019 Compensation Act occurred in the county where the claim is filed, and (4) that the defendant(s) is the party subject to the award, decision, or order of the Commission. Additionally, the trial court must resolve any issues raised in defense to the complaint (e.g., insufficient process), as well as any motions filed by the plaintiff (e.g., summary judgment).\nIn this case, after the complaint was filed, the defendants filed a joint answer and asserted therein a motion to dismiss based on several grounds: lack of jurisdiction, failure to state a claim, and insufficient process. After the motion to dismiss was filed, the plaintiff filed a motion for summary judgment, which was filed one day before the defendants\u2019 motion to dismiss was heard in the trial court.\nAfter hearing arguments from all parties the trial court indicated that it was denying the defendants\u2019 motion to dismiss and further indicated that it would not hear the plaintiff\u2019s motion for summary judgment because the defendants had not received adequate notice of the motion. The trial court proceeded, however, to sign a \u201cJudgment\u201d granting the plaintiff\u2019s \u201cmotion ... for judgment\u201d and finding that there were \u201cno genuine issue[s] as to any material fact.\u201d Although not designated a summary judgment, we hold that the 8 July 1997 \u201cJudgment\u201d was in fact a summary judgment. Because the defendants did not have ten days notice of the hearing on the motion, see N.C.G.S. \u00a7 1A-1, Rule 56(c) (1990), and because there is no evidence that the defendants waived their right to the notice, see Patrick v. Williams, 102 N.C. App. 355, 367, 402 S.E.2d 452, 459 (1991) (notice can be waived), the trial court was without authority to grant summary judgment. Indeed, the trial court orally ruled that it would not hear the motion for summary judgment because timely notice had not been given to the defendants.\nThe \u201cJudgment\u201d of the trial court must, therefore, be reversed and this case remanded to the trial court. On remand, the trial court must again address the plaintiff\u2019s motion for summary judgment.\nReversed and remanded.\nJudges MARTIN, Mark D. and TIMMONS-GOODSON concur.\n. An award of compensation by the Commission \u201cis not a judgment of the court\u201d and is thus not subject to enforcement by execution or otherwise. Bryant v. Poole, 261 N.C. 553, 556, 135 S.E.2d 629, 631 (1964). Furthermore, an award of the Commission \u201cdoes not authorize or contemplate the institution and maintenance of a civil action based on such award\u201d except as provided in section 97-87. Id.\n. The plaintiff indicated in oral argument to this Court that he presented the Form 60 to the clerk of superior court for filing and that the clerk refused to file the document. This prompted, he stated, the filing of the complaint. Although the issue is not directly before this Court, we note that the clerk of court, when presented with a certified copy of an award, order, or decision of the Commission, or a Commission-approved memorandum of agreement, is required to file that document with the court and have the matter calendared before a superior court.\n. We note that the plaintiff requested in his complaint and the trial court ordered that the plaintiff recover, in addition to the weekly payments set forth in the Form 60, a \u201c10% penalty due on all monies 14 days late.\u201d We acknowledge that section 97-18(g) does authorize the assessment of a 10 percent penalty on any monies due an employee that is not paid \u201cwithin 14 days after it becomes due_\u201d N.C.G.S. \u00a7 97-18(g). The superior court, however, pursuant to section 97-87, is only authorized to enter judgment \u201cin accordance with\u201d a Commission-approved memorandum of agreement or an award, decision, or order of the Commission. It follows, therefore, that the superior court has no authority to assess a penalty, in the first instance, pursuant to section 97-18(g).", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Law Offices of Kathleen G. Sumner, by Kathleen G. Sumner, for plaintiff appellee.", "Young Moore and Henderson P.A., by J.D. Prather and Jeffrey T Linder, for defendants appellants." ], "corrections": "", "head_matter": "LARRY CALHOUN, SR., Plaintiff v. WAYNE DENNIS HEATING & AIR CONDITIONING, and KEY RISK MANAGEMENT SERVICES, INC., Defendants\nNo. COA97-1270\n(Filed 16 June 1998)\n1. Workers\u2019 Compensation \u00a7 411 (NCI4th)\u2014 Form 60 admission of right to compensation \u2014 Commission award \u2014 right to seek judgment\nDefendant employer\u2019s execution of a Form 60 admission of plaintiff employee\u2019s right to compensation constituted an award of the Industrial Commission which entitled plaintiff to seek imposition of a judgment under N.C.G.S. \u00a7 97-87, which in turn entitled plaintiff to seek execution for past due installments and future installments as they become due.\n2. Workers\u2019 Compensation \u00a7 411 (NCI4th):\u2014 compensation award \u2014 judgment\u2014complaint in superior court\nAlthough plaintiff employee could have obtained a judgment under N.C.G.S. \u00a7 97-87 by merely filing with the clerk of court a certified copy of a Form 60 admission of plaintiff\u2019s right to compensation previously filed with the Industrial Commission, plaintiff\u2019s filing of a complaint in the superior court demanding entry of a judgment against defendant employer for sums due under the Form 60 admission of plaintiffs right to compensation was an acceptable method of asserting a claim for entry of a judgment pursuant to N.C.G.S. \u00a7 97-87 even though the complaint did not state that plaintiff was seeking a judgment under that section.\n3. Workers\u2019 Compensation \u00a7 301 (NCI4th)\u2014 unpaid compensation \u2014 interest\u2014superior court without authority\nThe superior court has no authority to assess a 10% penalty under N.C.G.S. \u00a7 97-18(g), in the first instance, on compensation not paid by the employer to the employee within fourteen days after it became due.\n4. Trial \u00a7 56 (NCI4th)\u2014 summary judgment \u2014 notice of hearing\nThe trial court was without authority to grant summary judgment for plaintiff employee in his action to obtain a judgment for a workers\u2019 compensation award where defendant employer did not have ten days notice of the hearing on the summary judgment motion and there was no evidence that defendant had waived its right to notice.\nAppeal by defendants from judgment filed 8 July 1997 by Judge L. Todd Burke in Guilford County Superior Court. Heard in the Court of Appeals 13 May 1998.\nLaw Offices of Kathleen G. Sumner, by Kathleen G. Sumner, for plaintiff appellee.\nYoung Moore and Henderson P.A., by J.D. Prather and Jeffrey T Linder, for defendants appellants." }, "file_name": "0794-01", "first_page_order": 834, "last_page_order": 841 }