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Webb v. Nash Hospitals Inc.6/15/1999
Appeal by plaintiffs from judgment entered 24 June 1998 by Judge George L. Wainwright, Jr., in Nash County Superior Court. Heard in the Court of Appeals 17 May 1999.
This is an action for medical malpractice, in which plaintiff Carolyn Faye Webb (Mrs. Webb) alleges that Nash General Hospital, Southeastern Acute Care Specialists, P.A., Charles E. Williamson, M.D., and Rocky Mount OB-GYN Associates, P.A. (collectively, defendants), provided substandard medical care to her in October 1994. Her husband, Phillip Edward Webb (Mr. Webb), seeks to recover for loss of consortium.
Pursuant to the provisions of Rule 9(j) of the North Carolina Rules of Civil Procedure, Mrs. Webb filed a motion prior to the expiration of the three-year statute of limitations, to extend the time within which to file her complaint. N.C. Gen. Stat. § 1A-1, Rule 9(j) (Cum. Supp. 1998). The motion was filed in Nash County Superior Court on 19 September 1997. A Nash County Resident Superior Court Judge granted the motion by order dated 12 September 1997, which order was filed on 1 October 1997. As permitted by Rule 9(j), the order granted Mrs. Webb an additional 120 days within which to file her action, through and including 5 February 1998. Plaintiffs then filed this complaint on 4 February 1998.
Defendants moved to dismiss the complaint pursuant to Rules 12(b)(6) and 41(b), contending that it appeared on the face of the complaint that the statute of limitations had expired. Rocky Mount OB- GYN Associates, P.A., also contended that the complaint did not state a claim for medical malpractice against it. The trial court granted all motions to dismiss, concluding that " laintiffs failed to serve the motion for extension upon any defendant in compliance with Rule 5, that the order of the Court purporting to extend the statute of limitations has no application to those parties not served with the motion, and that laintiffs' claims against efendants are accordingly barred by the expiration of the three-year limitations period." The trial court further concluded that the complaint did not state a valid claim upon which relief could be granted against Rocky Mount OB-GYN Associates, P.A. Plaintiffs appealed.
The issues are: (I) Does a Rule 9(j) order extending the time to file a medical malpractice action toll the statute of limitations as to defendants who are not named in the motion requesting the extension of time, as well as all defendants who are not served with notice of the extension; (II) Does a Rule 9(j) extension obtained by Mrs. Webb to file her medical malpractice claim also toll the statute of limitations as to Mr. Webb's claim for loss of consortium; and (III) Did plaintiffs state a claim for which relief could be granted against Rocky Mount OB-GYN.
We initially note that defendants also argued that the trial court was without jurisdiction when it ordered that the time for filing the complaint in accordance with Rule 9(j) be extended by 120 days because there was no motion pending for the extension of time when the order was signed. This argument is unpersuasive, however, because the record clearly shows that the motion was filed and entered on 19 September 1997 and the order allowing the motion was filed and "entered" on 1 October 1997. Rule 58 of the North Carolina Rules of Civil Procedure states that "a judgment is entered when it is reduced to writing, signed by the Judge, and filed with the clerk of court." N.C. Gen. Stat. § 1A-1, Rule 58 (Cum. Supp. 1998). Therefore, the mere signature on a judgment that has not been entered is an incomplete judgment. See Worsham v. Richbourg's Sales and Rentals, 124 N.C. App. 782, 784, 478 S.E.2d 649, 650 (1996).
I.
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