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Best v. Wayne Memorial Hospital12/18/2001
Appeal by plaintiff from order entered 1 May 2000 by Judge Benjamin G. Alford in Wayne County Superior Court. Heard in the Court of Appeals 17 October 2001.
Plaintiff appeals from the orders of dismissal entered by Judge Alford at the 7 February and 17 April 2000 Sessions of Wayne County Civil Superior Court.
On 12 November 1997 in Wayne County Superior Court Hopineal Hines Best (hereinafter plaintiff) brought a wrongful death suit individually and as administratrix of the estate of H. B. Best against defendants Wayne Memorial Hospital (the Hospital), Douglas M. Russell, M.D. (the Doctor), and other defendants who at that time had not been named. Previously, on 7 July 1997, plaintiff had filed a Rule 9(j) motion to extend the statute of limitations prior to filing her compliant. This motion was granted by Judge Ernest B. Fullwood on 7 July 1997, and filed on 11 July 1997. Judge Fullwood had been assigned to Wayne County by the Chief Justice of the Supreme Court of the State of North Carolina. Judge Fullwood was the Resident Superior Court Judge for New Hanover County, not Wayne County, nor has he ever been the Resident Superior Court Judge of Wayne County. The sole Resident Superior Court Judge of Wayne County at all relevant times was Judge Paul Wright.
In his affidavit, plaintiff's attorney, Robert Burford, testified that he searched the Wayne County Courthouse for Judge Wright, only to learn that he was on vacation. Mr. Burford then called the Administrative Office of the Courts (AOC) for guidance as to the situation. The AOC advised Mr. Burford to get the presiding judge to rule on the order and sign it because "he was the only judge assigned to Wayne County." Judge Fullwood then heard the motion and ordered the statute of limitations extended pursuant to Rule 9(j) of the North Carolina Rules of Civil Procedure. The plaintiff then filed her complaint on 12 November 1997, and defendants filed their respective answers, the Hospital's answer on 18 December 1997, and the Doctor's answer on 8 January 1998. Among other things, defendants alleged that plaintiff's claim was time barred by the statute of limitations.
Approximately two years later, both defendants filed motions to dismiss on the grounds of failure to comply with Rule 9(j) (the Doctor on 7 February 2000 and the Hospital on 8 March 2000). Specifically, they claimed that Judge Fullwood had no authority to hear the motion because he was not a Resident Superior Court Judge of Wayne County as required by Rule 9(j). While heard separately, the Doctor on 16 March 2000 and the Hospital on 1 May 2000, essentially the same order was entered for both defendants by Judge Benjamin Alford. Judge Alford's order concluded that, since Judge Fullwood was not a Resident Superior Court Judge of Wayne County, he did not have authority to grant the motion. Thus, no order had been entered to extend the statute of limitations, and plaintiff's cause of action was barred by the applicable statute of limitations. It is from these orders that plaintiff appeals.
The plaintiff makes the following assignments of error: that the trial court erred in (I) dismissing the plaintiff's action on grounds of noncompliance with N.C. Gen. Stat. ยง 1A-1, Rule 9(j) (1999); (II) ruling that plaintiff's extension of the statute of limitations pursuant to Rule 9(j) was defective for the reason that the extension order lacked the signature of the sole resident superior court judge who recused himself; (III) ruling that the "resident judge" requirement for extension of the statute of limitations under Rule 9(j) does not violate constitutional protections afforded by the Constitution of the State of North Carolina; (IV) ruling that the "resi
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