Clayborn v. Novant Health, Inc., No. COA07-183 (N.C. App. 2/5/2008)
| Decision Date | 05 February 2008 |
| Docket Number | No. COA07-183,COA07-183 |
| Court | North Carolina Court of Appeals |
| Parties | EVELENA CLAYBORN, As Administrator C.T.A. of the Estate of MAXWELL CHRISTINE GRIER, Plaintiff, v. NOVANT HEALTH, INC., NOVANT HEALTH TRIAD REGION, L.L.C., FORSYTH MEMORIAL HOSPITAL, INC., all d/b/a FORSYTH MEDICAL CENTER, Defendants. |
Kennedy, Kennedy, Kennedy & Kennedy, L.L.P., by Harold L. Kennedy, III, Harvey L. Kennedy, and Annie Brown Kennedy, for Plaintiff.
Bennett & Guthrie, P.L.L.C., by Richard V. Bennett, Roberta B. King, and Jason P. Burton, for Defendants.
Evelena Clayborn ("Plaintiff") appeals from the trial court's judgment entered 13 March 2006 in favor of Defendants after a jury found that Plaintiff's decedent, Maxwell Christine Grier ("Ms. Grier"), was not injured by Defendants' negligence. Defendants appeal from the trial court's subsequent order entered 21 June 2006 declining to hear their motion to tax costs against Plaintiff. For the reasons which follow, we affirm both the 13 March 2006 judgment and the 21 June 2006 order.
On the night of 2 July 2001, Ms. Grier was admitted to Defendants' hospital, Forsyth Medical Center in Winston-Salem, complaining of weight loss, decreased appetite, and nausea. Ms. Grier was 102 years old at the time of her admission, and her admitting records indicated that she was at a high risk for falls. At some point during the early morning hours of 3 July 2001, Ms. Grier fell in her hospital room and fractured her right hip. Ms. Grier's daughter, Ms. Margaret Joanne Grier Cousin, testified at trial as follows:
My mother told me that she had to use the bathroom, that she rang the buzzer for several minutes, nobody came. So, she got out of the bed, she went to the bathroom, she came out, she fell and broke her hip. And she laid on the floor for several hours and nobody came. And she hollered for help and nobody came. And she kept hollering and nobody came, nobody came.
Ms. Grier died on 4 July 2001 while recovering from surgery on her fractured hip.
By complaint filed 25 June 2004, Plaintiff brought a survival action against Defendants for the pain and suffering Ms. Grier experienced as a result of her fall. Plaintiff alleged Defendants failed to implement adequate fall precautions despite Ms. Grier's high risk for falls. Plaintiff also alleged Defendants failed to take measures after the fall to ensure Ms. Grier's comfort. As discovery was proceeding, the trial court entered a protective order on 20 December 2004 denying certain of Plaintiff's requests for production. After completing discovery, Defendants filed a motion for summary judgment on 17 January 2006 alleging, inter alia, that Plaintiff did not have an expert witness qualified to testify as to causation. The trial court denied the summary judgment motion by order entered 7 February 2006.
The matter was called for trial on 20 February 2006, and the jury returned its verdict on 8 March 2006. In the judgment entered on the verdict 13 March 2006, the trial court ordered "that the costs of [the] action be taxed against the Plaintiff[,]" but the court did not determine the amount of costs to be taxed. On 11 April 2006, Plaintiff timely noticed appeal from the judgment.
By motion filed 25 May 2006, Defendants sought an order from the trial court fixing the amount of costs to be taxed and taxing those costs against Plaintiff. In an order entered 21 June 2006, the trial court found that Plaintiff's 11 April 2006 notice of appeal had deprived it of jurisdiction to hear Defendants' motion. On 28 June 2006, Defendants timely noticed appeal from the order declining to hear their motion to tax costs.
By motion filed 18 April 2007, Defendants assert that Plaintiff's appeal should be dismissed for violations of the Rules of Appellate Procedure. Specifically, Defendants allege (1) Plaintiff failed to satisfy the timing requirements for settling and filing the record on appeal and failed to prosecute her appeal in a timely manner, N.C. R. App. P. 11(c), 12(a), (2) Plaintiff's notice of appeal does not designate an order upon which one of her assignments of error is based, N.C. R. App. P. 3(d), and (3) Plaintiff's assignments of error do not state a legal basis upon which the errors are assigned, N.C. R. App. P. 10(c)(1). Plaintiff's assignments of error state:
1.) The Trial Court committed prejudicial error in charging the jury that the failure to document events in the medical records of a patient is not medical negligence in and of itself because this jury instruction on this point was an error of law; and because this jury instruction was directly contrary to the testimony of the Plaintiff's nursing expert that the failure to document events in the medical records of the deceased, Maxwell Christine Grier, was a violation of the standard of care.
. . . .
2.) The Trial Court committed prejudicial error in entering its Order dated December 16, 2004[,] [sic] in granting Defendants' Motion for a Protective Order and denying Plaintiff's Motion to Compel Discovery in part by failing to order the production of (1.) the complete file of the Risk Management Department at Forsyth Medical Center concerning the hospitalization of Maxwell Christine Grier at Forsyth Medical Center (Plaintiff's Request for Production of Documents, No. 2); and (2.) a copy of the Incident Report prepared concerning the injury to the Plaintiff [sic] during her hospitalization at Forsyth Medical Center from July 2-4, 2001 (Plaintiff's Request for Production of Documents, No. 9) in that these documents are not privileged pursuant to N.C.G.S. § 131E-76(5) and § 131E-95, and Rule 26(b)(3) of the N.C. Rules of Civil Procedure, and that these documents were discoverable because they were reasonably calculated to lead to the discovery of admissible evidence and because said documents were business records made and maintained in the usual course of business.
. . . .
3.) The Closing Argument of Defendant's counsel was so prejudicial, in that Defendant's counsel verbally attacked the Plaintiff for waiting to file her lawsuit within the 3 year statute of limitations and verbally attacked the Plaintiff's counsel on matters outside of the Record evidence, that a new trial should be ordered; and that the Trial Court sustaining the objections was not sufficient to remove the taint of prejudicing the jury against the Plaintiff and Plaintiff's counsel.
We address Defendants' allegations in reverse order.
Defendants allege that Plaintiff's appeal should be dismissed because Plaintiff's assignments of error violate Rule 10(c)(1) of the Rules of Appellate Procedure which states, "Each assignment of error . . . shall state plainly, concisely and without argumentation the legal basis upon which error is assigned." N.C. R. App. P. 10(c)(1). Defendants allege that none of Plaintiff's assignments of error state the legal basis upon which the errors are assigned. We disagree.
Assignments of error that are "broad, vague, and unspecific" do not comply with Rule 10 of the Rules of Appellate Procedure. In re Lane Company-Hickory Chair Div., 153 N.C. App. 119, 123, 571 S.E.2d 224, 226 (2002). "One purpose of [Rule 10] is to 'identify for the appellee's benefit all the errors possibly to be urged on appeal . . . so that the appellee may properly assess the sufficiency of the proposed record on appeal to protect his position.'" State v. Baggett, 133 N.C. App. 47, 48, 514 S.E.2d 536, 537 (1999) (quoting Kimmel v. Brett, 92 N.C. App. 331, 335, 374 S.E.2d 435, 437 (1988)). "In addition, Rule 10 allows our appellate courts to 'fairly and expeditiously' review the assignments of error without making a 'voyage of discovery' through the record in order to determine the legal questions involved." Rogers v. Colpitts, 129 N.C. App. 421, 422, 499 S.E.2d 789, 790 (1998) (quoting Kimmel, 92 N.C. App. at 335, 374 S.E.2d at 437).
Defendants principally rely on this Court's decision in Walker v. Walker, 174 N.C. App. 778, 624 S.E.2d 639 (2005), disc. review denied, 360 N.C. 491, 632 S.E.2d 774 (2006), for the proposition that Plaintiff's assignments of error are inadequate. In Walker, "[t]he defendant set out 119 assignments of error, purporting to assign error to almost every finding of fact and conclusion of law made by the trial court." Id. at 781, 624 S.E.2d at 641. Each finding or conclusion was the subject of three identical assignments of error:
a. The Trial Court's Finding of Fact [No. 'X'], on the grounds that it is not supported by the evidence.
b. The Trial Court's Finding of Fact [No. 'X'], on the grounds that it is erroneous as a matter of law.
c. The Trial Court's Finding of Fact [No. 'X'], on the grounds that it is an abuse of discretion.
Id. In his brief, the defendant only advanced arguments under "category 'b', asserting that various rulings by the trial court were 'erroneous as a matter of law.'" Id. at 782, 624 S.E.2d at 642. We stated that the defendant's assignments of error completely failed to identify the issues actually briefed on appeal and that the defendant's "generic" assignments of error essentially amounted to "no more than an allegation that 'the court erred because its ruling was erroneous.'" Id. at 783, 624 S.E.2d at 642. We concluded that "the issues defendant briefed on appeal [were] not preserved for review by defendant's assignments of error[.]" Id.
In the case at bar, Defendants assert that each of Plaintiff's assignments of error amount to nothing more than an assertion that the trial court's rulings were "erroneous as a matter of law." While Plaintiff's assignments of error...
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