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Kellihan v. Thigpen12/5/2000
Appeal by plaintiffs from an order entered 3 June 1999 by Judge Abraham Penn Jones in Columbus County Superior Court. Heard in the Court of Appeals 18 October 2000.
Renee G. Kellihan, Administratrix of the Estate of Dalton Kellihan, deceased, and Renee G. Kellihan, and Robert Kellihan, individually (herein collectively "plaintiffs"), appeal from the trial court's order granting partial summary judgment on the issue of negligent infliction of emotional distress in favor of Frank Ray Thigpen, M.D., Whiteville Medical Associates, P.A., and Columbus County Hospital, Inc. (herein collectively "defendants"). Plaintiffs bring forward one assignment of error, while defendants cross-appeal with a second. However, we are unable to reach the merits of these arguments as this appeal must be dismissed for violation of our appellate rules.
On 14 January 1994, Renee Kellihan gave birth to an infant that was delivered by emergency caesarian section at Columbus County Hospital, located in Whiteville, North Carolina. Complications at birth -- the infant was not breathing and had a poor heart rate -- caused the hospital staff to have to intubate the infant with an endotracheal ("ET") tube. After a short amount of time, a chest x-ray was performed on the infant to check the placement of the ET tube. The x-ray found that the tip of the ET tube might have been within the infant's esophagus. Hospital staff extubated, and then reintubated the infant. Immediately, the infant's heart rate increased and his skin color became pink. The infant, however, remained in critical condition and died four days later on 18 January 1994.
Plaintiffs instituted this action by filing a complaint on 21 August 1997 alleging wrongful death and negligent infliction of emotional distress. On 11 March 1999, defendants filed a motion for partial summary judgment on the negligent infliction of emotional distress claim. This motion was heard before the Honorable Abraham Penn Jones at the 12 April 1999 Civil Session of Columbus County Superior Court. On 3 June 1999, Judge Jones issued an order allowing partial summary judgment on the negligent infliction of emotional distress issue. Plaintiffs subsequently filed a notice of voluntary dismissal on 6 June 1999 as to their wrongful death claim. Then on 14 June 1999, plaintiffs filed their notice of appeal as to Judge Jones' order.
"The Rules of Appellate Procedure are mandatory and failure to follow the rules subjects an appeal to dismissal." Wiseman v. Wiseman, 68 N.C. App. 252, 255, 314 S.E.2d 566, 567-68 (1984). The rules "are designed to keep the process of perfecting an appeal flowing in an orderly manner." Craver v. Craver, 298 N.C. 231, 236, 258 S.E.2d 357, 361 (1979). "`Counsel is not permitted to decide upon his own enterprise how long he will wait to take his next step in the appellate process'" Id. (quoting Ledwell v. County of Randolph, 31 N.C. App. 522, 523, 229 S.E.2d 836, 837 (1976)).
In settling the record on appeal, N.C.R. App. P. 11(c) states in pertinent part:
If any appellee timely serves amendments, objections, or a proposed alternative record on appeal, the appellant or any other appellee, within 10 days after expiration of the time within which the appellee last served might have served, may in writing request the judge from whose judgment, order, or other determination appeal was taken to settle the record on appeal. . . . If only one appellee or only one set of appellees proceeding jointly have so served, and no other party makes timely request for judicial settlement, the record on appeal is thereupon settled in accordance with the appellee's objections, amendments or proposed alternative record on appeal. If more th
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