Blue v. Bhiro

• Citation: 871 S.E.2d 691
• Decision Date: 06 May 2022
• Docket Number: 26A21
• Parties: Charles BLUE v. Thakurdeo Michael BHIRO, P.A., Dixie Lee Bhiro, P.A., and Laurel Hill Medical Clinic, P.C.
• Court: United States State Supreme Court of North Carolina

871 S.E.2d 691

Charles BLUE

v.Thakurdeo Michael BHIRO, P.A., Dixie Lee Bhiro, P.A., and Laurel Hill Medical Clinic, P.C.

No. 26A21

Supreme Court of North Carolina.

Filed May 6, 2022

Ward and Smith, P.A., by Christopher S. Edwards and Alex C. Dale, for plaintiff-appellee.

Batten Lee, PLLC, by Gary Adam Moyers and Gloria T. Becker, for defendant-appellants.

NEWBY, Chief Justice.

¶ 1 In this case we determine whether the trial court was required to convert a motion to dismiss under N.C. R. Civ. P. 12(b)(6) to a motion for summary judgment under Rule 56. A motion to dismiss under Rule 12(b)(6) asserts that the complaint, even when the allegations are taken as true, fails to state a claim upon which relief can be granted. If, however, a trial court considers matters outside the pleading, then it must convert the motion to a motion for summary judgment. Here the trial court did not consider matters outside the pleading and thus was not required to convert the motion. Therefore, we reverse the decision of the Court of Appeals and remand to the Court of Appeals for consideration of plaintiff's remaining arguments.

¶ 2 Because this case arises from a motion to dismiss under Rule 12(b)(6), we take the following allegations from the complaint as true. Defendants Thakurdeo Michael Bhiro and Dixie Lee Bhiro were physician assistants licensed to practice in North Carolina and were employed by defendant Laurel Hill Medical Clinic, P.C. (the Clinic). The Clinic "is a family practice located in Laurel Hill, North Carolina ... comprised of family medicine practitioners who provide comprehensive care to patients of all ages."

¶ 3 The Bhiros were plaintiff's primary care providers. The Bhiros treated plaintiff "for a variety [of] ailments" and provided "routine physical examinations, medic[ation] management, and preventative medicine." On 24 January 2012, Mr. Bhiro ordered a prostate specific antigen (PSA) test to screen plaintiff for prostate cancer

. Generally, a PSA test result of 4 nanograms per milliliter of blood "is considered abnormally high for most men and may indicate the need for further evaluation with a prostate biopsy." The results from this test, which were provided to the Bhiros, indicated that plaintiff's PSA level was 87.9 nanograms per milliliter, significantly higher than the normal range. Though the Bhiros continued to treat plaintiff for other issues, they never "provided any follow up care or referrals as a result of the elevated PSA test result." The results from another PSA test performed six years later on 22 March 2018 indicated that plaintiff's PSA level was 1,763 nanograms per milliliter. Plaintiff was diagnosed with metastatic prostate cancer soon thereafter. The Bhiros "continued as [p]laintiff's primary medical care providers until January, 2019."

Plaintiff filed his complaint on 17 June 2019, contending that the Bhiros were negligent by failing to provide follow-up care after learning the results of the 24 January 2012 PSA test and failing to diagnose plaintiff with prostate cancer

. Moreover, plaintiff alleged that the Clinic was vicariously liable for the Bhiros’ negligence.

¶ 4 All defendants jointly filed a motion to dismiss plaintiff's complaint under Rule 12(b)(6), arguing that plaintiff's action was barred by the three-year statute of limitations and the four-year statute of repose in N.C.G.S. § 1-15(c). In response, plaintiff contended that his complaint was timely filed in 2019 despite his delay because the Bhiros continuously treated him since the allegedly negligent act occurred in 2012. Both defendants and plaintiff submitted memoranda of law in support of their positions. At the hearing on defendants’ motion on 12 November 2019, defendants’ counsel argued that "when a motion to dismiss is brought, we must look at the four corners of the complaint." Plaintiff's counsel agreed, focusing on the allegations in the complaint throughout his argument. At the end of the hearing, plaintiff's counsel made an oral motion for leave to amend the complaint, stating that "if Your Honor does not believe I included enough factual information in the complaint, we'd request leave to amend the complaint." On 10 December 2019, the trial court entered an order granting defendants’ Rule 12(b)(6) motion and implicitly denying plaintiff's motion for leave to amend the complaint, stating in part that:

The [c]ourt, having heard arguments of parties and counsel for the parties and having reviewed the court file, pleading[ ], and memorand[a] of law submitted by both parties, ... finds that Plaintiff failed to state a claim upon which relief can be granted and the Defendants’ Motion to Dismiss should be allowed pursuant to N.C. R. Civ. P. 12(b)(6).

Thus, the trial court dismissed plaintiff's claims with prejudice. Plaintiff appealed.

¶ 5 At the Court of Appeals, plaintiff argued that the trial court (1) converted the Rule 12(b)(6) motion to a Rule 56 motion and thus erred by not giving the parties sufficient opportunity for discovery and to present evidence; (2) erred by granting the Rule 12(b)(6) motion, assuming it was not converted; and (3) erred by denying his oral motion for leave to amend the complaint. Blue v. Bhiro , 275 N.C. App. 1, 3, 6–7, 853 S.E.2d 258, 260, 262 (2020). A divided panel of the Court of Appeals agreed with plaintiff that the trial court converted the motion to dismiss to one for summary judgment and should have provided additional time for discovery and the presentation of evidence. Id. at 2, 853 S.E.2d at 259–60.

¶ 6 The Court of Appeals began its analysis by "determin[ing] whether the trial court reviewed the [c]omplaint under Rule 12(b)(6) ... or the pleadings and facts outside the pleadings under Rule 56." Id. at 3, 853 S.E.2d at 260–61 (emphasis omitted). To determine whether the motion was converted, the Court of Appeals looked to whether the trial court "consider[ed] ... matters outside the pleading[ ]." Id. , 853 S.E.2d at 261. The Court of Appeals acknowledged that "memoranda of law and arguments of counsel are generally ‘not considered matters outside the pleading[ ].’ " Id. at 5, 853 S.E.2d at 261 (quoting Privette v. Univ. of N.C. at Chapel Hill , 96 N.C. App. 124, 132, 385 S.E.2d 185, 189 (1989) ). The Court of Appeals, however, also noted an apparent exception, that "the consideration of memoranda of law and arguments of counsel can convert a Rule 12 motion into a Rule 56 motion if the memoranda or arguments ‘contain[ ] any factual matters not contained in the pleading[ ].’ " Id. , 853 S.E.2d at 262 (first alteration in original) (quoting Privette , 96 N.C. App. at 132, 385 S.E.2d at 189 ). The Court of Appeals reasoned that the terms of the trial court's order expressly indicated that the trial court considered the parties’ memoranda and arguments of counsel, "both of which contained facts not alleged in the [c]omplaint." Id. at 4, 853 S.E.2d at 261 (emphasis omitted). According to the Court of Appeals, the trial court did not expressly exclude those facts which were not alleged in the complaint. Id. at 6, 853 S.E.2d at 262. Thus, the Court of Appeals concluded that the trial court "considered matters beyond the pleading[ ]" and converted the Rule 12(b)(6) motion to a Rule 56 motion. Id.

¶ 7 The Court of Appeals then noted that when a Rule 12(b)(6) motion is converted to a Rule 56 motion, Rule 12(b) provides that "all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Id. (quoting N.C.G.S. § 1A-1, Rule 12(b), (c) (2019)). Because the trial court did not give the parties such an opportunity, the Court of Appeals concluded that "it would be improper for [this court] to make a determination of the statute of limitations issue on the current evidence." Id. For the same reason, the Court of Appeals declined to discuss plaintiff's argument that the trial court erred by denying his motion for leave to amend the complaint. Id. at 6–7, 853 S.E.2d at 262. Thus, the Court of Appeals reversed the trial court's order and remanded the case to the trial court to give the parties "a reasonable opportunity to gather and present evidence on a motion for summary judgment." Id. at 7, 853 S.E.2d at 263.

¶ 8 The dissenting opinion at the Court of Appeals, however, would have affirmed the trial court's order. Id. (Hampson, J., dissenting). The dissent argued that the trial court did not convert defendants’ motion to dismiss. Id. at 7–8, 853 S.E.2d at 263. The dissent noted that although the parties’ memoranda and arguments of counsel may have referenced "facts not alleged in the [c]omplaint, these were merely arguments of counsel." Id. at 8, 853 S.E.2d at 263. The dissent noted that "[n]o evidentiary materials—discovery, exhibits, affidavits, or the like—were offered or submitted to the trial court." Id. Thus, the dissent would have held that the trial court did not consider matters outside the pleading and did not convert the motion. Id.

¶ 9 Accordingly, the dissent also addressed plaintiff's remaining arguments. Id. at 8–11, 853 S.E.2d at 263–65. The dissent argued that the claim was barred by the statute of limitations or the statute of repose in N.C.G.S. § 1-15(c) and thus the trial court properly granted the motion to dismiss. Id. at 8–10, 853 S.E.2d at 263–65. Further, the dissent contended that the trial court did not err by denying plaintiff's oral motion for leave to amend the complaint. Id. at 10–11, 853 S.E.2d at 265. Therefore, the dissent would have affirmed the trial court's order. Id. at 11, 853 S.E.2d at 265. Defendants appealed to this Court based upon the dissenting opinion at the Court of Appeals.

¶ 10 Defendants argue the Court of Appeals erred by holding that the trial court considered matters outside the pleading and thus converted the motion to dismiss to a motion for summary judgment. We agree.

¶ 11 Whether a Rule 12(b)(6) motion has been converted to a Rule 56 motion is a question of law subject to de novo review. See...