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Spencer v. Albemarle Hospital3/18/2003
PUBLISHED
Matthew J. Spencer ("plaintiff"), in his capacity as administrator and personal representative for the estate of Erica Shanae Young ("decedent"), appeals from an order of the trial court dismissing plaintiff's claims against Albemarle Hospital, Philip D. Bagby, William Russell, M.D., Albemarle Radiology, Ltd., Sarah Hudson, M.D., CMG of North Carolina, Inc., and Ann Trainer (collectively, "defendants") for failure to prosecute. For the reasons stated herein, we reverse the order of the trial court.
The relevant facts of the present appeal are as follows: On 20 March 2000, plaintiff filed a complaint in Pasquotank Superior Court alleging claims for medical malpractice, personal injury and punitive damages arising from decedent's death. On 23 July 2001, plaintiff filed a petition requesting approval of a confidential settlement between plaintiff and two of the named defendants, Sarah Hudson, M.D., and CMG of North Carolina, Inc. The Honorable Jerry Tillett, Superior Court Judge, heard the matter on 17 September 2001 and approved the settlement agreement. The following day, counsel for plaintiff sent Judge Tilett's order approving the confidential settlement to the clerk of the Superior Court of Pasquotank County for filing.
On 29 October 2001, despite the fact that plaintiff's petition had already been heard and decided, the petition for approval of the settlement came for hearing before the trial court, the Honorable W. Douglas Albright presiding. Neither counsel for plaintiff nor counsel for defendants were present in the courtroom. At the hearing, the following colloquy occurred:
THE COURT: All right. We have got two (2) matters that are marked for settlement. Spencer against the hospital. Is this just for Court approval of the settlement?
THE CLERK: It's my understanding that the settlement is sealed and he wanted the Court to open it. I was under the impression that [plaintiff's counsel] was going to be here today.
THE COURT: All right. Call out Spencer.
THE BAILIFF: Oh, yes. Oh, yes. Oh, yes. Matthew Spencer, Matthew Spencer, Matthew Spencer, come into court and prosecute your case or it may be dismissed.
THE COURT: All right. Dismiss it for failure to prosecute.
The court then entered an order dismissing all of plaintiff's claims against those defendants not included in the settlement approved by Judge Tillett for failure to prosecute.
On 30 October 2001, counsel for plaintiff sent a letter to Judge Albright, explaining that he was unaware that the petition to approve the settlement had been calendared for the previous day, particularly as the petition had already been heard and ruled upon. Plaintiff thereafter filed a motion pursuant to Rule 60 for relief from the trial court's order dismissing plaintiff's claims, which was heard by Judge Tillett on 10 December 2001. Noting that plaintiff had filed a notice of appeal from the order dismissing his claims and that the court therefore had limited jurisdiction over the matter, Judge Tillett entertained plaintiff's motion "for the limited purpose of indicating how [the trial court] would be inclined to rule on Plaintiff's motion were the appeal not pending." To that extent, Judge Tillett granted plaintiff relief from the order dismissing his claims. Judge Tillett's order granting plaintiff relief is not before us for review, however.
Plaintiff appeals from the 31 October 2001 order dismissing his claims for failure to prosecute.
Plaintiff contends that the trial court erred by (1) failing to consider lesser sanctions before dismissing plaintiff's case; and (2) abused its discretion in dism
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