               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                      No. COA17-1352

                                    Filed: 7 August 2018

Haywood County, No. 15 CVS 458

BARBARA BURGESS as Administratrix of the Estate of STEPHANIQUE BELL,
Plaintiff,

              v.

RASHEKA RENEE SMITH, THOMAS CHEEK MARSHALL, CHICNYLYNN
SOLUTIONS, INC., and ANTHONY JOHNSON, Defendants.


       Appeal by defendant from order entered 9 June 2017 by Judge Bradley B. Letts

in Haywood County Superior Court. Heard in the Court of Appeals 18 April 2018.


       James W. Kirkpatrick, III, P.A., by James W. Kirkpatrick, III, for plaintiff-
       appellee.

       The Turner Law Firm, by Richard W. Turner, Jr., for defendant-appellant
       Thomas Cheek Marshall.


       ELMORE, Judge.


       Plaintiff Barbara Burgess, as administratrix of the estate of her deceased

daughter, Stephanique D. Bell, brought this wrongful death action in superior court

asserting various negligence claims against defendants Rasheka Renee Smith;

Thomas Cheek Marshall; Chicnyln1 Solutions, Inc.; and Anthony Johnson.2 Bell was




1 Although the complaint names “Chicnlyn Solutions, Inc.” elsewhere in the record the business is
named “Chicnlynn” or “Chicnylynn” Solutions. We use “Chicnlyn” throughout this opinion.
2 Marshall is the only defendant in this appeal.
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                                  Opinion of the Court



killed in a single-vehicle car accident while riding as a passenger in a vehicle owned

by Marshall that Smith was driving during the course and scope of her employment

as a salesperson traveling from Tennessee to North Carolina to sell Chicnlyn

Solutions cleaning products door-to-door for Marshall and Johnson. After defendants

Smith and Marshall were served with the complaint and summons but failed to

answer or appear, the superior court entered a $2,151,218.29 default judgment

against them jointly and severally.

      Five months later, Marshall filed his first responsive pleading, asserting for

the first time that Bell was his employee and had been killed during the course and

scope of her employment while traveling as part of a sales team with Smith. Relying

on the exclusivity provision of our Workers’ Compensation Act, see N.C. Gen. Stat. §

97-10.1, Marshall moved to stay proceedings to enforce the prior judgments, to set

aside the entries of default and default judgment, and to dismiss Burgess’s claims for

want of subject-matter jurisdiction, on the grounds that jurisdiction lies exclusively

within the North Carolina Industrial Commission (“NCIC”). After a hearing, the

superior court denied Marshall’s postjudgment motions and affirmed its default

judgment. Rather than issue findings and conclusions determining its jurisdiction,

however, the superior court concluded that the doctrines of equitable estoppel and

laches barred Marshall from challenging its subject-matter jurisdiction on the basis




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that Bell was his employee. Marshall appeals, arguing the superior court erred in

several respects.

      Because subject-matter jurisdiction may be challenged at any time, Marshall

was permitted to challenge the superior court’s jurisdiction over the subject matter

of Burgess’s claims against him even for the first time months after the default

judgment was entered. Additionally, because subject-matter jurisdiction is a legal

matter independent of parties’ conduct, the doctrines of equitable estoppel or laches

provided no basis for the superior court to refuse to resolve the jurisdictional

challenge.   We therefore vacate the superior court’s order denying Marshall’s

postjudgment motions, and remand with instructions for the superior court to hold a

hearing in order to issue proper findings and conclusions determining its jurisdiction.

      If after the hearing on remand, the superior court determines it had

jurisdiction, it may properly deny Marshall’s postjudgment motions and its prior

judgments against him may be sustained.             If the superior court determines

jurisdiction lies exclusively with the NCIC, it must set aside its prior judgments

against Marshall as void and dismiss Burgess’s claims against Marshall for want of

subject-matter jurisdiction. In such an event, Burgess may refile her claim against

Marshall in the NCIC. We note that while ordinarily an employer may raise the two-

year filing requirement imposed by N.C. Gen. Stat. § 97-24 as an affirmative defense

to an employee’s untimely filed workers’ compensation claim, based upon the



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allegations of employer fault causing the delay in this case, if Marshall attempts to

raise this defense, Burgess may properly reassert the affirmative defense of equitable

estoppel, as she successfully pled in the superior court.       If the superior court

determines jurisdiction properly lies in the South Carolina Industrial Commission

(“SCIC”), Burgess may file her claim in the SCIC, and we encourage that commission

to deem as waived any potential filing defense Marshall may raise.

                                   I. Background

      According to Burgess’s complaint, on 2 June 2013, Bell was riding as a

passenger in Marshall’s 1999 Ford SUV, which Smith was driving eastbound on I-40

during the course and scope of her employment with Marshall, Johnson, and Chicnlyn

Solutions. Around 8:00 a.m., the vehicle hydroplaned, ran off the road, struck a metal

guardrail, and rolled over several times in Haywood County. Tragically, Bell was

ejected from the vehicle, sustained fatal injuries in the crash, and died at the scene.

      On 7 May 2015, Bell’s mother, Burgess, in her capacity as administratrix of

Bell’s estate, filed a wrongful death action in the superior court asserting various

negligence claims against Smith, Marshall, Johnson, and Chicnlyn Solutions.

Burgess was unable to serve Johnson or Chicnlyn Solutions with the complaint and

summons but secured service on Smith and Marshall. After Smith and Marshall

failed to answer or appear, the superior court clerk entered default against Marshall

and Smith on 30 July 2015 and 14 July 2016, respectively. On 21 July 2016, after



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Marshall and Smith again failed to appear, the superior court judge entered a

$2,151,218.29 default judgment against them jointly and severally.

       About five months later, on 16 December 2016, Marshall filed his first

responsive pleadings and an affidavit. In a filing styled “notice of motion and motion

to stay, to dismiss, and for relief from judgment/order,” Marshall moved to stay

proceedings to enforce all prior judgments, N.C. Gen. Stat. § 1A-1, Rule 62(b) (2015);

to dismiss Burgess’s claims for lack of subject-matter jurisdiction, id. § 1A-1, Rule

12(h)(3) (2015); and to set aside the default and default judgment entered against

him, id. § 1A-1, Rules 55(d), 60(b)(1), -(3), -(4), -(6) (2015). In a filing styled “motion,

answer, and defenses,” Marshall relied on the exclusivity provision of our Workers’

Compensation Act, id. § 97-10.1 (2015), to move to dismiss Burgess’s claims against

him for lack of subject-matter jurisdiction, id. § 1A-1, Rule 12(b)(1), -(b)(6), -(h)(3)

(2015).

       In the attached affidavit, Marshall averred, for the first time, that Bell was his

employee and her death arose out of the course and scope of her employment as a

salesperson traveling from Tennessee to North Carolina on a sales team with Smith

for the purpose of selling cleaning products door-to-door in Charlotte. According to

Marshall’s affidavit, “in June 2013 [he] was operating a business utilizing

salespersons to sell cleaning products door to door,” as well as “[a] sales crew [that]

consisted of sales managers, secretaries, and salespersons.” Marshall “provide[d]



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transportation and lodging for the sales crew” and “all product for the salespersons

to sell.” Marshall further alleged that “[s]alespersons were typically recruited by

print advertising,” “Bell[ ] responded to a print advertising,” he “provided sales

training to . . . Bell . . . in early 2013,” and “[o]n the date of the accident, . . . Bell was

part of a sales crew which worked in Tennessee and was traveling to Charlotte[.] . . .”

Thus, Marshall argued, Burgess “improperly brought this matter in Superior Court”

because the NCIC “is vested with exclusive jurisdiction to determine the rights and

benefits between employers and employees for personal injury or death.”

       In response, on 8 May 2017, Burgess moved for the superior court to deny

Marshall’s postjudgment motions, in relevant part pleading the affirmative defenses

of equitable estoppel and laches. Burgess attached to her motion, inter alia, an

affidavit from her attorney, James W. Gilchrist, Jr., in which Gilchrist averred that

Marshall on 14 August 2013 “informed [him] that ‘the kids’ were not employees at

the time of the accident” but, rather, “were all independent contractors associated

with Anthony Johnson and Chicnylynn Solutions[.] . . .”             Thus, Burgess argued,

Marshall’s three-and-a-half year delay after the date of the car accident in claiming

that Bell was his employee and thus the proper forum for her action was in the NCIC,

should be barred by laches since that delay precluded Burgess “from making a claim

with the [NCIC] based on N.C. Gen. Stat. § 97-58, which requires that any claim being

made with the [NCIC] to be made within two years of the incident giving rise to the



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claim.”   Further, Burgess argued, Marshall should be equitably estopped from

defensively asserting Bell was his employee to support his motion to dismiss her

claims for lack of subject-matter jurisdiction, since Burgess relied upon Marshall’s

prior contrary statement to her attorney in “fil[ing] suit in Haywood County Superior

Court instead of a workers’ compensation claim with the [NCIC] or [SCIC]” and

permitting Marshall to “rais[e] the defense . . . at this time would preclude her Estate

from any recovery under the Rules of the [NCIC] . . . .”

      After a hearing, the superior court entered an order on 9 June 2017 denying

Marshall’s postjudgment motions and affirming its default judgment. In relevant

part, the superior court concluded (1) Marshall was equitably estopped from

defensively raising the exclusivity provision of our Workers’ Compensation Act as a

jurisdictional bar to Burgess’s claims against him based on his prior contrary

extrajudicial statement that Bell was not his employee but an independent

contractor, and (2) laches from the delay barred Marshall from now challenging its

subject-matter jurisdiction on the basis that Bell was his employee and her death

arose during the course and scope of her employment. Marshall appeals.

                                     II. Analysis

      On appeal, Marshall argues the superior court erred by not declaring (1) Bell

was his employee and her death arose during the course and scope of her employment,

and thus (2) it lacked subject-matter jurisdiction over Burgess’s claims based upon



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the exclusivity provision of the Workers’ Compensation Act. Marshall also argues

the superior court erred by concluding (3) Burgess was entitled to the defense of

equitable estoppel because Burgess failed to exercise reasonable care and

circumspection in discovering Bell’s employment status, and (4) his Rule 12 defenses

grounded in his challenge to the superior court’s subject-matter jurisdiction were

barred by laches because, based on Burgess’s own delay in filing her action in superior

court days before the expiration of the two-year statute of limitation period applicable

to wrongful death claims, no causal link existed between his delayed answer and

defenses, and Burgess’s loss of her potential workers’ compensation claim pursuant

to N.C. Gen. Stat. § 97-24’s two-year filing requirement. Finally, Marshall argues,

(5) the superior court erred by denying his postjudgment motions for relief and to

dismiss Burgess’s claims because it lacked subject-matter jurisdiction.

      However, because we resolve this appeal on the ground that the superior court

erred in failing to resolve Marshall’s challenge to its subject-matter jurisdiction, we

address the merits of Marshall’s arguments only to the extent they implicate our

analysis of this threshold jurisdictional issue.

A. Review Standard

      “Whether a trial court has subject-matter jurisdiction is a question of law,

reviewed de novo on appeal.” Hillard v. Hillard, 223 N.C. App. 20, 22, 733 S.E.2d




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176, 179 (2012) (quoting McKoy v. McKoy, 202 N.C. App. 509, 511, 689 S.E.2d 590,

592 (2010)).

B. Subject-Matter Jurisdiction

      Superior courts “ha[ve] jurisdiction in all actions for personal injuries caused

by negligence, except where its jurisdiction is divested by statute.” Morse v. Curtis,

276 N.C. 371, 375, 172 S.E.2d 495, 498 (1970) (citing N.C. Const. art. IV, § 2; other

citations omitted). “By statute the Superior Court is divested of original jurisdiction

of all actions which come within the provisions of the Work[er]’s Compensation Act.”

Id. (citations omitted); see also N.C. Gen. Stat. § 97-10.1 (“If the employee and the

employer are subject to and have complied with the provisions of this Article, then

the rights and remedies herein granted to the employee, his dependents, next of kin,

or personal representative shall exclude all other rights and remedies . . . as against

the employer at common law or otherwise on account of such injury or death.”).

      Subject-matter “[j]urisdiction rests upon the law and the law alone. It is never

dependent upon the conduct of the parties.” In re T.R.P., 360 N.C. 588, 595, 636

S.E.2d 787, 793 (2006) (quoting Feldman v. Feldman, 236 N.C. 731, 734, 73 S.E.2d

865, 867 (1953)). Thus, a challenge to subject-matter jurisdiction, see N.C. Gen. Stat.

§ 1A-1, Rule 12(b)(1), -(h)(3), may be raised at any time, even months after entry of a

default judgment, see In re T.R.P., 360 N.C. at 595, 636 S.E.2d at 793 (“[L]itigants . . .

may challenge ‘jurisdiction over the subject matter . . . at any stage of the proceedings,



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even after judgment.’ ” (quoting Pulley v. Pulley, 255 N.C. 423, 429, 121 S.E.2d 876,

880 (1961)); see also Miller v. Roberts, 212 N.C. 126, 129, 193 S.E. 286, 288 (1937)

(“There can be no waiver of [subject-matter] jurisdiction, and objection may be made

at any time.” (citations omitted)). Additionally, a party by his or her conduct can

neither be equitably estopped nor barred by laches from challenging subject-matter

jurisdiction, nor can these equitable doctrines vest jurisdiction. See In re T.R.P., 360

N.C. at 595, 636 S.E.2d at 793 (“Subject[-]matter jurisdiction ‘cannot be conferred

upon a court by . . . waiver or estoppel[.] . . .’ ” (quoting In re Sauls, 270 N.C. 180, 187,

154 S.E.2d 327, 333 (1967))).

       Where a party challenges the superior court’s subject-matter jurisdiction

pursuant to the exclusivity provision of our Workers’ Compensation Act, “the proper

procedure” for the superior court is to “ma[k]e findings of fact and conclusions of law

resolving the issue.” Lemmerman v. A.T. Williams Oil Co., 318 N.C. 577, 580, 350

S.E.2d 83, 86 (1986) (citing Burgess v. Gibbs, 262 N.C. 462, 465, 137 S.E.2d 806, 808

(1964)); see also Morse, 276 N.C. at 377, 172 S.E.2d at 499 (noting the superior court

“follow[ed] the proper procedure in determining the [defendant-employer’s] pleas in

bar [that the plaintiff-employee’s superior court action for personal injury was barred

by the exclusivity provision of our Workers’ Compensation Act] by hearing evidence

offered by the parties, finding facts[ and] reaching conclusions of law, . . . to determine

its jurisdiction”).



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      Where the superior court enters an order omitting findings and conclusions

necessary to resolve a legitimate subject-matter jurisdiction challenge, the proper

procedure for the reviewing court is to vacate that order and remand with

instructions for the superior court to hold a hearing in order to issue proper findings

and conclusions resolving the jurisdictional matter. See Burns v. Riddle, 265 N.C.

705, 706–07, 144 S.E.2d 847, 849 (1965) (vacating superior court’s order summarily

affirming the NCIC’s jurisdictional findings and remanding to the superior court with

instructions to hold a hearing in order to issue its own “independent findings as to

the determinative jurisdictional facts”).

      Here, after Marshall filed his postjudgment motions to stay proceedings to

enforce the judgments entered against him, for relief from those prior judgments, and

to dismiss Burgess’s claims for want of subject-matter jurisdiction, based upon the

exclusivity provision of our Workers’ Compensation Act, the superior court held a

hearing and entered an order denying the motions and affirming its prior default

judgment. In its order, the superior court entered the following factual findings:

             1. . . . [Bell] died in an automobile accident on June 2, 2013,
             in Haywood County, . . . when she was a passenger in a
             vehicle owned by . . . Marshall;

             2. . . . Burgess, the natural mother of . . . Bell, filed a
             wrongful death action as the Administrator of the Estate of
             . . . Bell in the Haywood County Superior Court on May 7,
             2015;

             3. . . . Marshall was properly served with the Summons and


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Complaint on May 15, 2015;

4. . . . [W]hen . . . Marshall failed to respond or otherwise
move, [Burgess] filed a Motion and Affidavit to Enter
Default on July 30, 2015, and default was entered against
[Marshall];

5. . . . [A] Motion for Default Judgment was filed on May
20, 2016 and default was entered against . . . [Marshall] on
July 18, 2016, with notice of said motion and of the hearing
date for said motion being provided to . . . Marshall on May
26, 2016;

6. . . . Marshall failed to file any response to either
[Burgess’s] Complaint or to her motion for default
judgment until he filed an Answer, Motion to Stay, Motion
for Dismissal, and Motion for Relief from Judgment on . . .
December 14, 2016;

7. . . . [I]t was not until December 14, 2016, that . . .
Marshall chose to proffer a defense of lack of subject matter
jurisdiction, based on his claim that [Bell] . . . was his
employee[.] . . ;

8. . . . [T]he claim of a defense of lack of subject[-]matter
jurisdiction was not made until approximately three-and-
a-half years after . . . [Bell’s] death . . . when, in . . .
Marshall’s Motion to Stay, to Dismiss and for Relief from
Judgment, he asserted that the [NCIC] had exclusive
jurisdiction between employers and employees, and
indicated for the first time since the accident that he
was . . . [Bell’s] employer . . . [;]

9. Prior to the filing of . . . Marshall’s Motion to Stay, to
Dismiss and for Relief from Judgment, during the course of
[Burgess’s] investigation into this matter, . . . Marshall had
consistently alleged, in his conversations with [Bell’s]
stepfather, Daniel Holmes, and with [Burgess’s] Attorney,
James W. Gilchrist, Jr., . . . that [Bell] was not [his]
employee . . . at the time of the accident but . . . was an


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             independent contractor associated with Defendants
             Johnson and Chicnylynn Solutions. Further, the Court
             finds that . . . Marshall gave false and misleading
             information to [Burgess’s] representatives as to this very
             serious matter[;]

             10. Despite [Marshall]’s assertion in his Motion to Stay, to
             Dismiss and for Relief from Judgment that [Bell] was in an
             employee-employer relationship on the date of the
             accident, [Marshall] admitted that he had no Workers’
             Compensation insurance in place on that date[; and]

             11. . . . [A]ny workers’ compensation claim that [Bell] may
             have had is barred by the two year statute of limitation
             under N.C. Gen. Stat. § 97-58.

      Based on these findings, the superior court concluded in relevant part:

             2. . . . Marshall is equitably estopped from asserting that
             this Court does not have subject[-]matter jurisdiction of
             this action on the grounds that [Bell] was an employee of
             his so that the proper forum was the [NCIC];

             3. . . . [T]he affirmative defense of laches applies to
             completely bar . . . Marshall from asserting that [Bell] was
             his employee and that this court did not have subject
             matter jurisdiction over this action[.]

      As reflected, although Marshall lodged a legitimate challenge to the superior

court’s jurisdiction over the subject matter of Burgess’s claims against him, the

superior court failed to follow the proper procedure by issuing findings and

conclusions determining its jurisdiction. Because subject-matter jurisdiction may be

challenged even months after a default judgment is entered, In re T.R.P., 360 N.C. at

595, 636 S.E.2d at 793, and because a court has the judicial duty to determine its



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jurisdiction, the superior court erred in refusing to resolve the matter. Additionally,

because “[j]urisdiction rests upon the law . . . alone[ and] is never dependent upon the

conduct of the parties,” id. (quoting Feldman, 236 N.C. at 734, 73 S.E.2d at 867), the

doctrines of equitable estoppel and laches are irrelevant to issues of subject-matter

jurisdiction, and the superior court improperly relied thereupon in refusing to resolve

Marshall’s jurisdictional challenge.

        As a secondary matter, we note the superior court’s reasoning in applying those

equitable doctrines appears to have been made under a misapprehension of the law—

that is, the superior court’s determination that “any workers’ compensation claim

that Decedent may have had is barred by the two year statute of limitation under

N.C. Gen. Stat. § 97-[24].”3 Section 97-24’s two-year filing requirement is not a

statute of limitation but merely a condition precedent to compensation under the

Workers’ Compensation Act. See Gore v. Myrtle/Mueller, 362 N.C. 27, 38, 653 S.E.2d

400, 408 (2007) (“[W]e underscore that the two[-]year limitation in N.C.G.S. § 97-24

has repeatedly been held to be a condition precedent to the right to compensation and

not a statute of limitations.” (citation omitted)). Thus, while ordinarily an employer

may defensively assert that an employee’s failure to file a claim in the NCIC within



3 Although Burgess in her motion and the superior court in its order cited to section 97-58, that statute
governs the time limit for filing a claim for occupational disease. See N.C. Gen. Stat. § 97-58 (2015).
Nonetheless, the more applicable statute here governing the time limit for filing a claim alleging a
work-related injury by accident imposes the same two-year filing requirement. See N.C. Gen. Stat. §
97-24 (2015) (“The right to compensation under this Article shall be forever barred unless (i) a claim .
. . is filed with the Commission . . . within two years after the accident . . . .”).

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two years after the accident procedurally bars that claim, where, as here, employer

fault caused the delay, equitable estoppel may apply to waive the employer’s defense,

rendering section 97-24’s two-year filing requirement no bar to the untimely filed

workers’ compensation claim. Id. (“[A] condition precedent, unlike subject[-]matter

jurisdiction, may be waived by the beneficiary party by virtue of its conduct.

Therefore, by their actions, defendant[-employers] could waive the two[-]year

condition precedent laid out in N.C.G.S. § 97-24.” (internal citations omitted)); see

also id. at 36, 653 S.E.2d at 406 (“[E]stoppel may be invoked to prevent the employer

from asserting the time limitation in N.C.G.S. § 97-24 as an affirmative defense. . . .

[E]mployer fault, regardless of whether it is intentional, will excuse the untimely

filing of a workers’ compensation claim.” (citations omitted)).

      Because the superior court failed to follow the proper procedure in issuing

findings and conclusions resolving whether it or the NCIC had jurisdiction over the

subject matter of Burgess’s claims against Marshall, we vacate its order denying

Marshall’s postjudgment motions and remand the case with instructions for the

superior court to hold an evidentiary hearing in order to issue proper findings and

conclusions determining its jurisdiction, see Burns, 265 N.C. at 707, 144 S.E.2d at

849, including resolving Bell’s employment status, see McCown v. Hines, 353 N.C.

683, 686, 549 S.E.2d 175, 177 (2001) (“[T]he existence of an employer-employee

relationship at the time of the injury constitutes a jurisdictional fact.” (citing



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Youngblood v. North State Ford Truck Sales, 321 N.C. 380, 383, 364 S.E.2d 433, 437

(1988))); see also Lemmerman, 318 N.C. at 579, 350 S.E.2d at 85 (“[T]he question of

whether plaintiff . . . was defendant’s employee as defined by the Act is clearly

jurisdictional.”), and any other jurisdictional facts relevant to whether Burgess’s

superior court claims against Marshall were barred by our Workers’ Compensation

Act. See, e.g., N.C. Gen. Stat. § 97-10.1; id. § 97-13(b) (2015) (excluding from the Act

an employer “that has regularly in service less than three employees in the same

business within this State[.] . . .”); Young v. Mayland Mica Co., 212 N.C. 243, 244,

193 S.E. 285, 285 (1937) (“[T]he number of employees regularly in service in the

business of the defendant in this state. . . . is a jurisdictional fact which the superior

court has the duty and power to find.” (citation omitted)); see also Bowden v. Young,

239 N.C. App. 287, 290, 768 S.E.2d 622, 625 (2015) (“[I]ntentional torts generally fall

outside the scope of the Workers’ Compensation Act.” (citing Woodson v. Rowland,

329 N.C. 330, 340–41, 407 S.E.2d 222, 228 (1991)). We further note that the record

is unclear whether, if the superior court lacked subject-matter jurisdiction, the proper

forum for Burgess’s claim against Marshall would be in the NCIC or the SCIC.

      After the hearing on remand, if the superior court determines it had

jurisdiction, it may properly deny Marshall’s postjudgment motions and its default

judgment may be sustained. However, if the superior court determines jurisdiction

lies with the NCIC or SCIC, its prior judgments against Marshall must be vacated



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and Burgess’s claims must be dismissed for want of subject-matter jurisdiction. If

Burgess is required to file her claim against Marshall in the NCIC, although N.C.

Gen. Stat. § 97-24’s two-year filing period will have expired, if needed, based upon

the record before us, Burgess may properly raise the affirmative defense that

Marshall’s conduct in causing the delay equitably estops him from relying on that

filing requirement as a procedural bar. If Burgess is required to file her claim in the

SCIC, we encourage that commission also to consider any potential filing-period

defense Marshall may raise under S.C. Code. § 42-15-40 (2015) (requiring an

employee to file a claim in the SCIC within two years after the accident) similarly

waived by Marshall’s conduct in this case. See, e.g., Lovell v. C. A. Timbes, Inc., 263

S.C. 384, 388, 210 S.E.2d 610, 612 (1974) (“Section 72-303[, now recodified at section

42-15-40,] is a statute of limitation and . . . compliance with its provisions may be

waived by the employer or its insurance carrier or they may become estopped by their

conduct from asserting the statute as a defense.”).

                                  III. Conclusion

      Because Marshall was permitted to challenge the superior court’s subject-

matter jurisdiction even for the first time months after the default judgment was

entered against him, and because a party’s conduct is wholly irrelevant to subject-

matter jurisdiction, the superior court erred by refusing to resolve the matter on the

basis that Marshall was barred by equitable estoppel and laches from challenging its



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subject-matter jurisdiction.   As the superior court failed to follow the proper

procedure in issuing findings and conclusions to determine its jurisdiction, and the

record lacks the necessary information to meaningfully consider Marshall’s

jurisdictional challenge, we vacate the superior court’s order denying Marshall’s

postjudgment motions. We remand the case with instructions for the superior court

to hold an evidentiary hearing in order for it to issue proper findings and conclusions

relevant to determine its subject-matter jurisdiction.

      After the remand hearing, if the superior court determines it had jurisdiction,

it may properly deny Marshall’s postjudgment motions and its default judgment may

be sustained. If the superior court determines elsewise, it must vacate its prior

judgments entered against Marshall and dismiss Burgess’s claims against him for

want of jurisdiction. If Burgess must file her claim against Marshall in the NCIC,

under the circumstances of this case, we instruct that commission not to apply section

97-24 two-year filing requirement as a procedural bar to Burgess’s claim. If Burgess

must refile her claim in the SCIC, we encourage that commission to deem any

potential filing defense Marshall may raise as waived.

      VACATED AND REMANDED.

      Judges TYSON and ZACHARY concur.




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