Blackburn v. Carbone

• Citation: 703 S.E.2d 788
• Decision Date: 21 December 2010
• Docket Number: No. COA10–602.,COA10–602.
• Parties: James BLACKBURN, Plaintiff,v.Dominick J. CARBONE, M.D., Wake Forest University Baptist Medical Center, The North Carolina Baptists Hospitals, Inc., North Carolina Baptist Hospital and Wake Forest University Health Sciences, Defendants.
• Court: Court of Appeal of North Carolina (US)

703 S.E.2d 788

James BLACKBURN, Plaintiff,

v.Dominick J. CARBONE, M.D., Wake Forest University Baptist Medical Center, The North Carolina Baptists Hospitals, Inc., North Carolina Baptist Hospital and Wake Forest University Health Sciences, Defendants.

No. COA10–602.

Court of Appeals of North Carolina.

Dec. 21, 2010.

OPINION TEXT STARTS HERE

Appeal by plaintiff from order entered 19 January 2010 by Judge Anderson D. Cromer in Wilkes County Superior Court. Heard in the Court of Appeals 1 December 2010.

Franklin Smith, Elkin, for plaintiff-appellant.

Nexsen Pruet, PLLC, by Gary L. Beaver and Stephen W. Coles, Greensboro, for defendant-appellees.

ERVIN, Judge.

Plaintiff James Blackburn appeals from the trial court's order granting summary judgment in favor of Defendants. On appeal, Plaintiff contends that the trial court erred by converting Defendants' dismissal motion to one for summary judgment and by failing to conclude that Plaintiff had stated a claim for common law obstruction of justice in his complaint. After careful consideration of Plaintiff's arguments in light of the record and the applicable law, we conclude that the trial court's order should be affirmed.

I. Factual Background

On 24 April 2009, Plaintiff filed a complaint against Defendants Dr. Dominick J. Carbone, Wake Forest University Baptist Medical Center, The North Carolina Baptist Hospitals, Inc., North Carolina Baptist Hospital, and Wake Forest University Health Services in which he alleged that Dr. Carbone prepared an inaccurate medical report for use in connection with a separate negligence action arising from injuries that Plaintiff sustained in an automobile accident. In that report, Dr. Carbone stated that Plaintiff's injuries were sustained in the “workplace” instead of in an automobile collision. Despite a request for a correction from Plaintiff's counsel, Dr. Carbone did not revise that portion of his report alluding to the circumstances under which Plaintiff's injuries were sustained before Plaintiff settled his automobile accident claim. Although Plaintiff's counsel told Dr. Carbone that “he was to appear” for the purpose of testifying at the trial of Plaintiff's automobile accident case and had obtained the issuance of a subpoena directed to Dr. Carbone compelling him to appear and testify on that occasion, “Plaintiff's counsel discovered ... [that] the Sheriff's Department had been unable to locate Dr. Carbone for service,” forcing Plaintiff's counsel to “retain[ ] the services of ... a licensed private investigator[ ] to complete service of the Subpoena upon Dr. Carbone.” Dr. Carbone's “repeated failure and refusal to communicate with Plaintiff's counsel” allegedly resulted in Plaintiff settling his lawsuit for $17,000 when the actual damages were estimated to be “at least $100,000.” As a result of the fact that Dr. Carbone's actions allegedly constituted gross negligence, the fact that Dr. Carbone allegedly acted with malice, and the fact that Dr. Carbone's actions should be imputed to the remaining Defendants, Plaintiff alleged that he was entitled to recover compensatory and punitive damages from Dr. Carbone for common law obstruction of justice, gross negligence, and spoliation of evidence.

On 26 June 2009, Defendants filed an answer denying the material allegations of Plaintiff's complaint and moving to dismiss it pursuant to N.C. Gen.Stat. § 1A–1, Rules 9(j) and 12(b)(6). On 6 October 2009, Defendants filed a separate dismissal motion pursuant to N.C. Gen.Stat. § 1A–1, Rules 9(j) and 12(b)(6). At a hearing held on 30 November 2009, the trial court heard argument concerning Defendants' dismissal motions. In view of the fact that it considered various materials tendered by Plaintiff in deciding the issues raised by Defendants' dismissal motion, the trial court treated Defendants' motion as a request for the entry of summary judgment. After considering the arguments of counsel, the authorities submitted by the parties, and the materials submitted by Plaintiff, the trial court found that there were no genuine issues of material fact and that Defendants were entitled to judgment in their favor as a matter of law. Plaintiff noted an appeal to this Court from the trial court's order.¹

II. Analysis

A. Conversion of Motion to Dismiss

In his first challenge to the trial court's order, Plaintiff argues that the trial court erred by converting Defendants' motion to dismiss Plaintiff's complaint pursuant to N.C. Gen.Stat. § 1A–1, Rule 12(b)(6) to a motion for summary judgment pursuant to N.C. Gen.Stat. § 1A–1, Rule 56. We disagree.

At the hearing held in connection with Defendants' dismissal motion, Plaintiff tendered a number of documents for the trial court's consideration, including a series of letters that Plaintiff's counsel sent to Dr. Carbone's office, a copy of several subpoenas directed to Dr. Carbone, a copy of the report that Dr. Carbone transmitted to Plaintiff's counsel, a copy of the police report relating to the motor vehicle collision in which Plaintiff was injured, and copies of various facsimile transmission statements and a postal service receipt.² As we understand the record, no party objected to Plaintiff's request that the trial court consider these documents in ruling on Defendants' dismissal motion. In its order, the trial court noted that it considered the exhibits tendered by Plaintiff in making its decision and was, for that reason, required to treat Defendants' dismissal motion as a motion for summary judgment in accordance with N.C. Gen.Stat. § 1A–1, Rule 12(b). On appeal, Plaintiff contends that the trial court's decision to convert Defendants' dismissal motion into one for summary judgment deprived him of his right to proper notice and precluded him from deposing various potential witnesses, including Dr. Carbone.³

If, on a motion asserting the defense numbered (6), to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall e treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.N.C.R. Civ. P. 12(b); see also Charlotte Motor Speedway, Inc. v. Tindall Corp., 195 N.C.App. 296, 300, 672 S.E.2d 691, 693 (2009) (stating that “ ‘[a] motion to dismiss for failure to state a claim is “converted to a Rule 56 motion for summary judgment when matters outside the pleadings are presented to and not excluded by the court” ’ ”) (quoting King v. Cape Fear Mem. Hosp., Inc., 96 N.C.App. 338, 342, 385 S.E.2d 812, 815 (1989), disc. review denied, 326 N.C. 265, 389 S.E.2d 114 (1990)). “Reviewing courts have looked to cues in the trial court's order to determine whether it considered matters outside the pleadings.” Id. at 300, 672 S.E.2d at 693 (citing Lowder v. Lowder, 68 N.C.App. 505, 506, 315 S.E.2d 520, 521 (1984)). Although a party confronted with the conversion of a dismissal motion into a summary judgment motion is entitled to “be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 56,” “[i]t is significant that the rule provides [for] a ‘reasonable opportunity’ rather than requiring that the presentation of materials be in accordance with Rule 56.” Raintree Homeowners Assoc., 62 N.C.App. at 673, 303 S.E.2d at 582; see also Kemp v. Spivey, 166 N.C.App. 456, 462, 602 S.E.2d 686, 690 (2004) (holding that the trial court erred by converting a dismissal motion to a summary judgment motion without affording the parties “ ‘a reasonable opportunity to present all material made pertinent to such a motion by Rule 56’ ”) (citing N.C. Gen.Stat. § 1A–1, Rule 12(b)). However, in the event that a party faced with a trial court's decision to consider materials outside the pleadings in connection with a dismissal motion lodged pursuant to N.C. Gen.Stat. § 1A–1, Rule 12(b)(6) does “not request a continuance or additional time to produce evidence under Rule 56(f)” and “fully participates in the hearing,” that party “cannot now complain that they were denied a reasonable opportunity to present materials to the court.” Belcher, 162 N.C.App. at 84, 590 S.E.2d at 18 (2004) (citing Knotts v. City of Sanford, 142 N.C.App. 91, 97–98, 541 S.E.2d 517, 521 (2001); see also Tindall, 195 N.C.App. at 300, 672 S.E.2d at 693–94) (stating that, “where non-movants fully participated in the hearing on a motion to dismiss, observed that matters beyond the pleadings were being considered, and failed to request additional time to produce evidence, reviewing courts have not been persuaded that dismissal was inappropriate”) (citing Belcher, 162 N.C.App. at 84, 590 S.E.2d at 18), Homeowners Assoc., 62 N.C.App. at 673, 303 S.E.2d at 582 (stating that, in the event that material outside the pleadings is tendered to the trial court at a hearing held in connection with a dismissal motion filed pursuant to N.C. Gen.Stat. § 1A–1, Rule 12(b)(6), “the proper action for counsel to take is to request a continuance or additional time to produce evidence” and that, “[b]y participating in the hearing and failing to request a continuance or additional time to produce evidence, a party waives his right to [the] procedural notice” otherwise afforded by N.C. Gen.Stat. § 1A–1, Rule 12(b)) (citing Raintree Corp. v. Rowe, 38 N.C.App. 664, 667–68, 248 S.E.2d 904, 907 (1978) and Story v. Story, 27 N.C.App. 349, 219 S.E.2d 245 (1975)).

The record clearly reflects that, after tendering the additional materials described above, Plaintiff did not request additional time in order to engage in discovery or present other materials for the trial court's consideration, move to continue the hearing, or lodge an objection to any decision by the trial court to consider material outside the pleadings. Having failed to “request a continuance or additional time to produce evidence” and...