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Best v. Wayne Memorial Hospital12/18/2001
statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the act. Even to avoid a serious doubt the rule is the same." Id. (quoting In re Dairy Farms, 289 N.C. 456, 465-66, 223 S.E.2d 323, 328-29 (1976) (quoting NLRB v. Jones and Loughlin Steel Corp., 301 U.S. 1, 81 L. Ed. 893 (1936))).
We are mindful that " e are not at liberty to give a statute a construction at variance with [the Legislature's] intent, even though such construction appears to us to make the statute more desirable and free it from constitutional difficulties." State v. Fulcher, 294 N.C. 503, 520, 243 S.E.2d 338, 350 (1978). We also analyze this case in light of two other principles, in addition to the ones listed above.
First, this Court has a "general policy of liberality in construing our rules of civil procedure." Stewart, 142 N.C. App. at 462, 543 S.E.2d at 521 (2001); see Johnson v. Johnson, 14 N.C. App. 40, 187 S.E.2d 420 (1972) (citing with approval the general policy of the rules is to disregard technicalities and form and determine the rights of litigants on the merits). The other principle is that " t is presumed that the legislature acted in accordance with reason and common sense and that it did not intend an unjust or absurd result . . . ." King v. Baldwin, 276 N.C. 316, 325, 172 S.E.2d 12, 18 (1970).
The Legislature presumably had a reason to direct Rule 9(j) extension motions to the resident superior court judge. It is not entirely clear what those reasons were. Defendants attempt to list reasons they feel are behind the language, including that resident judges know the doctors, lawyers, availability of experts, and numerous other contingencies in their home counties better than any other judge. Certainly the Legislature did not intend to close off the extension benefit from a large portion of the citizenry by using the designation "resident." Thus, we conclude that Rule 9(j) extension motion is to be heard by a resident judge when one is available, but when the resident judge is unavailable or nonexistent, it is proper for the duly appointed presiding superior court judge to hear and sign the motion.
Defendant Dr. Russell cites many instances in his brief where the Legislature has used the "resident" designation, arguing that the Legislature's wishes are to be respected. The Doctor missed the one provision that is relevant to this case. N.C. Gen. Stat. § 7A-47, titled "Powers of regular judges holding courts by assignment or exchange" reads:
A regular superior court judge, duly assigned to hold the courts of a county, or holding such courts by exchange, shall have the same powers in the district or set of districts . . . in which the county is located, in open court and in chambers as the resident judge or any judge regularly assigned to hold the courts of the district or set of districts . . . and his jurisdiction in chambers shall extend until the session is adjourned or the session expires by operation of law, whichever is later. N.C. Gen. Stat. § 7A-47 (1999) (emphasis added).
According to the above statute, a presiding superior court judge, duly assigned by the Chief Justice of the Supreme Court, acts with the power of the resident superior court judge. Thus, Judge Fullwood was technically acting in a "resident" capacity when he ruled on plaintiff's motion.
We reverse the trial court's granting of defendants' motions to dismiss and remand for trial.
Judges BRYANT and JOHN concur.
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