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Howard v. Vaughn12/31/2002
PUBLISHED
Plaintiff, Administratrix of Dorothy T. Howard's estate, appeals from an order dismissing this wrongful death action as violative of the statute of limitations. Upon defendants' Rule 12(b)(6) motion, the trial court found an earlier extension of the statute of limitations by a different superior court judge to be ineffective.
Plaintiff appeals, contending the extension was proper and the complaint timely filed. For the reasons herein, we agree with plaintiff.
We initially note that when plaintiff filed her extension motion, the applicable statute, Rule 9(j), had not yet undergone extensive modifications. We therefore consider the parties' arguments under N.C. Gen. Stat. § 1A-1, Rule 9(j) (1999).
Dorothy T. Howard died on 20 August 1998. On Monday, 21 August 2000, plaintiff filed a "Motion and Order Extending Statute of Limitations in Medical Malpractice Action" pursuant to N.C. R. Civ. P. 9(j). The motion was presented to Judge Beverly T. Beal, a regular superior court judge living in Caldwell County, Judicial District 25A, who was holding court in Mecklenburg County, Judicial District 26. Judge Beal granted the motion, extending the statute of limitations through 11 December 2000.
Plaintiff filed her complaint on 8 December 2000, alleging that the death of decedent was proximately caused by the negligence of defendants Robert D. Vaughn Jr., M.D.; James A. Watkins, M.D.; Louis H. Zbinden, III, M.D.; Dilworth Surgical Group, P.A. o/k/a Dilworth Surgical Specialists, P.A., Mercy Hospital, Inc.; and Carolinas Health Care System d/b/a Mercy Hospital, Inc. Plaintiff subsequently took a voluntary dismissal with prejudice of her claim against Dr. Zbinden.
Defendants filed motions to dismiss pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure, alleging that plaintiff's action was barred by the applicable two-year statute of limitations and her failure to abide by Rule 9(j). See N.C. Gen. Stat. § 1-53(4) (2001). Judge Robert P. Johnston, a regular superior court judge living in Mecklenburg County, granted the motion. Judge Johnston's order included the following findings:
3. On [the day Judge Beal signed plaintiff's Motion to Extend the Statute of Limitations pursuant to Rule 9(j),] he was sitting in Courtroom 307. The undersigned takes judicial notice that it is the custom and common practice in Mecklenburg County for non-scheduled motions to be heard in courtroom 307. . . .
6. The Honorable Beverly T. Beal is not and at the time in question was not a resident judge of Mecklenburg County, the 26th Judicial District. During the week of August 21, 2000, Judge Robert Bell and Judge Richard Boner, resident judges of the 26th Judicial District, were present and assigned to Mecklenburg County.
Judge Johnston further found that based on the plain language of Rule 9(j), only a judge who resides in the county where the suit is being appropriately brought may extend the statute of limitations. He concluded: "Because plaintiff failed to have the proper authority for the extension, the extension is null and void and the statute of limitations has expired as to Plaintiff's action."
By her sole assignment of error, plaintiff contends the trial court erred in dismissing her action.
For a motion based on Rule 12(b)(6), the question before this Court is whether the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory. Harris v. NCNB, 85 N.C. App. 669, 670, 355 S.E.2d 838, 840 (1987). Where a violation of the statute of limitations is alleged, the proper motion for requesting th
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