Opinion
No. 07-553.
Filed April 15, 2008.
New Hanover County No. 05CVS2157.
Appeal by plaintiff from orders entered 6 December 2006 and 5 January 2007 by Judge Paul L. Jones in New Hanover County Superior Court. Heard in the Court of Appeals 27 November 2007.
Carl W. Thurman III, Esq., and Jennifer J. Slusser, Esq., for plaintiff. Smith, Anderson, Blount, Dorsett, Mitchell Jernigan, L.L.P, by Samuel G. Thompson and Wayne K. Maiorano, for defendants.
Faith Jones (plaintiff) filed a medical malpractice action against Thomas Dalton, M.D. and Wilmington Anesthesiologists, L.L.P. (together, defendant) on 26 February 2004. Plaintiff also filed a factually identical lawsuit against New Hanover Regional Medical Center and Gloria Moley, CRNA on 28 June 2004, and the trial court consolidated the two cases.
On 25 May 2005, defendant moved for summary judgment, claiming that plaintiff failed to comply with Rule 9(j) of our Rules of Civil Procedure, Rule 702 of our Rules of Evidence, and N.C. Gen. Stat. § 90-21.12. Plaintiff voluntarily dismissed her suit against defendant on 3 June 2005, mere days before defendant's motion was scheduled to be heard. On 5 June 2005, plaintiff filed the current action, alleging identical claims against defendant. Defendant filed a Rule 12(b)(6) motion to dismiss the suit on 12 September 2005, arguing that the claims were time-barred. The trial court granted the motion to dismiss on 4 December 2006. On 14 December 2006, plaintiff filed a Rule 59 motion to reconsider and to alter/amend judgment, as well as a motion for emergency hearing, which the trial court denied without hearing on 4 January 2007.
Plaintiff settled her claims against the New Hanover Regional Medical Center and Gloria Moley, CRNA.
Plaintiff now appeals from the dismissal of her case and denial of her Rule 59 motion. Plaintiff's first argument on appeal is that the trial court erred in granting defendant's Rule 12(b)(6) motion because it "improperly considered evidentiary issues and materials outside of plaintiff's initial . . . complaint, . . . voluntary dismissal and . . . refiled complaint . . . and failed to allow plaintiff the opportunity to complete the record."
Defendant responds that under our Rules of Civil Procedure, if a court considering a Rule 12(b)(6) motion is presented with matters outside the pleading and the trial court does not exclude those matters, "the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all partiesshall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." N.C. Gen. Stat. § 1A-1, Rule 12(b) (2005). Plaintiff concedes the point, but argues that she was not given a reasonable opportunity to offer her own materials. To this, defendant replies that plaintiff argued the hearing on the merits, never filed a formal objection, and did not request a continuance. Having reviewed the transcript of the hearing, we agree with defendant.
"While there was discussion of lack of notice, counsel for plaintiffs neither objected, moved for a continuance, nor requested additional time to produce evidence." Knotts v. City of Sanford, 142 N.C. App. 91, 98, 541 S.E.2d 517, 521 (2001). Plaintiff's attempted reliance on our decision in Locus v. Fayetteville State University, 102 N.C. App. 522, 402 S.E.2d 862 (1991), is misplaced. In Locus, we expressly noted that the plaintiff in that case "objected to the Rule 56 hearing, sought to present additional evidence and, further, requested a continuance to obtain additional evidence." Id. at 527, 402 S.E.2d at 866. Plaintiff failed to object or request a continuance prior to the trial court's ruling; she therefore has no compelling argument on appeal.
Plaintiff next argues that the trial court erred in granting defendant's Rule 12(b)(6) motion, which it subsequently converted to a Rule 56 motion for summary judgment, on the basis that the statute of limitations had expired due to plaintiff's faulty 9(j) certification. We disagree. In support of her argument, plaintiff essentially reargues her case that Dr. Joseph Stirt should have qualified as an expert witness. Again, we disagree.
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that [a] party is entitled to a judgment as a matter of law." N.C.G.S. § 1A-1, Rule 56(c). On appeal of a trial court's allowance of a motion for summary judgment, we consider whether, on the basis of materials supplied to the trial court, there was a genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. Evidence presented by the parties is viewed in the light most favorable to the non-movant.
Summey v. Barker, 357 N.C. 492, 496, 586 S.E.2d 247, 249 (2003) (additional citation omitted) (alteration in original).
Rule 9(j) states, in pertinent part,
Any complaint alleging medical malpractice by a health care provider . . . in failing to comply with the applicable standard of care under G.S. 90-21.12 shall be dismissed unless:
(1) The pleading specifically asserts that the medical care has been reviewed by a person who is reasonably expected to qualify as an expert witness under Rule 702 of the Rules of Evidence and who is willing to testify that the medical care did not comply with the applicable standard of care. . . .
N.C. Gen. Stat. § 1A-1, Rule 9(j) (2007) (emphasis added). Our Rules of Evidence specify:
In a medical malpractice action as defined in G.S. 90-21.11, a person shall not give expert testimony on the appropriate standard of health care as defined in G.S. 90-21.12 unless the person is a licensed health care provider in this State or another state and meets the following criteria:
(1) If the party against whom or on whose behalf the testimony is offered is a specialist, the expert witness must:
a. Specialize in the same specialty as the party against whom or on whose behalf the testimony is offered; or
b. Specialize in a similar specialty which includes within its specialty the performance of the procedure that is the subject of the complaint and have prior experience treating similar patients.
(2) During the year immediately preceding the date of the occurrence that is the basis for the action, the expert witness must have devoted a majority of his or her professional time to either or both of the following:
a. The active clinical practice of the same health profession in which the party against whom or on whose behalf the testimony is offered, and if that party is a specialist, the active clinical practice of the same specialty or a similar specialty which includes within its specialty the performance of the procedure that is the subject of the complaint and have prior experience treating similar patients; or
b. The instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession in which the party against whom or on whose behalf the testimony is offered, and if that party is a specialist, an accredited health professional school or accredited residency or clinical research program in the same specialty.
N.C. Gen. Stat. § 8C-1, Rule 702(b) (2007) (emphasis added).
In this case, defendant presented evidence to the trial court, in the form of deposition testimony from Stirt, showing that Stirt spent the majority of his professional time, not in the active practice of medicine or in the instruction of medical students, but as a professional witness. Moreover, the evidence showed that Stirt was not licensed in North Carolina, and that he was not familiar with the local community in Wilmington. Given that this was the evidence before the trial court, there was no material question of fact as to whether Stirt would qualify as an expert witness. Even viewed in the light most favorable to plaintiff, the trial court did not err in holding that Stirt would not qualify as an expert.
Because Stirt would not qualify, plaintiff failed to satisfy the Rule 9(j) requirements. As a result, plaintiff's complaint was not properly filed. Accordingly, plaintiff is not entitled to the one year extension for filing under Rule 41. "Rule 41(a)(1) is only available in an action where the complaint complied with the rules which govern its form and content prior to the expiration of the statute of limitations." Robinson v. Entwistle, 132 N.C. App. 519, 523, 512 S.E.2d 438, 441 (1999).
Plaintiff's final argument on appeal, that the trial court erred in denying her Rule 59 motion to reconsider, is also without merit. Rule 59 states that a motion to alter or amend a judgment may be entered for the following reasons:
(1) Any irregularity by which any party was prevented from having a fair trial;
(2) Misconduct of the jury or prevailing party;
(3) Accident or surprise which ordinary prudence could not have guarded against;
(4) Newly discovered evidence material for the party making the motion which he could not, with reasonable diligence, have discovered and produced at the trial;
(5) Manifest disregard by the jury of the instructions of the court;
(6) Excessive or inadequate damages appearing to have been given under the influence of passion or prejudice;
(7) Insufficiency of the evidence to justify the verdict or that the verdict is contrary to law;
(8) Error in law occurring at the trial and objected to by the party making the motion, or
(9) Any other reason heretofore recognized as grounds for new trial.
N.C. Gen. Stat. § 1A-1, Rule 59(a) (2007). In this case, plaintiff alleged the following four specific grounds for reconsideration: (1) irregularity; (3) surprise; (8) error in law; and (9) "any other reason."
This Court recently restated the applicable standards of review:
Generally, a motion for new trial is addressed to the sound discretion of the trial court, and its ruling will not be disturbed absent a manifest abuse of that discretion. . . . However, where the motion involves a question of law or legal inference, our standard of review is de novo.
North Carolina Indus. v. Clayton, ___ N.C. App. ___, ___, 649 S.E.2d 14, 25 (2007) (quotations and citations omitted). As to the alleged error of law, therefore, we review de novo; the remainder of plaintiff's contentions are reviewed for abuse of discretion.
With respect to the alleged errors of law, we have already concluded that the trial court did not err in its analysis of plaintiff's case. We therefore need not address this issue a second time. Moreover, we fail to discern any abuse of discretion on the trial court's part with regards to plaintiff's remaining complaints. As noted above, plaintiff did not avail herself of the opportunity to object or request a continuance; she instead argued the motion for summary judgment on its merits. Accordingly, the trial court did not err in denying her motion for reconsideration.
Having conducted a full and thorough review of the briefs and record on appeal, we find no error in the proceedings below. We therefore affirm the orders of the trial court.
Affirmed.
Judges WYNN and BRYANT concur.
Report per Rule 30(e).