Odom v. Clark, COA07-775-2.

• Decision Date: 19 August 2008
• Docket Number: No. COA07-775-2.,COA07-775-2.
• Citation: 668 S.E.2d 33
• Parties: Martha ODOM, Guardian Ad Litem for Shericka Wallace, Minor Child, Plaintiff, v. Douglas H. CLARK, MD, Piedmont Primary Care, Inc. f/k/a Piedmont Pediatric Clinic, P.A., and Cabarrus Memorial Hospital d/b/a Northeast Medical Center, Defendants.
• Court: North Carolina Court of Appeals

668 S.E.2d 33

Martha ODOM, Guardian Ad Litem for Shericka Wallace, Minor Child, Plaintiff, v. Douglas H. CLARK, MD, Piedmont Primary Care, Inc. f/k/a Piedmont Pediatric Clinic, P.A., and Cabarrus Memorial Hospital d/b/a Northeast Medical Center, Defendants.

No. COA07-775-2.

Court of Appeals of North Carolina.

August 19, 2008.

On remand to the Court of Appeals from an order of the Supreme Court of North Carolina remanding the decision of this Court in Odom v. Clark, ___ N.C.App. ___, 654 S.E.2d 833, 2008 WL 132127 (2008) (unpublished) for reconsideration in light of the decision of Dogwood Dev. & Mgmt. Co., LLC v. White Oak Trans. Co., 362 N.C. 191, 657 S.E.2d 361 (2008). Appeal by defendant hospital from an order entered 22 May 2007 by Judge Richard D. Boner in Mecklenburg County Superior Court. Originally heard in the Court of Appeals on 13 December 2007.

Ferguson Stein Chambers Gresham & Sumter, P.A. by William Simpson, James E. Ferguson, II, and Margaret Errington, Charlotte, for plaintiff-appellee.

Sharpless & Stavola, P.A., by Joseph M. Stavola and Joseph P. Booth, III, Greensboro, J. Dennis Bailey, Carruthers & Bailey, PA, Winston-Salem, for defendant-appellant.

JACKSON, Judge.

This case is heard on remand from the Supreme Court. A more complete recitation of the facts may be found in the original opinion, Odom v. Clark, ___ N.C.App. ___, 654 S.E.2d 833, 2008 WL 132127 (2008) (unpublished); however, for the convenience of the reader, a summary of the facts is set forth below.

Martha Odom ("plaintiff") is the duly appointed guardian ad litem of Shericka Wallace who suffered personal injuries related to her birth at Cabarrus Memorial Hospital, now operated by CMC-Northeast, Inc. ("defendant"). The original action was filed in Mecklenburg County where plaintiff resides; however, defendant filed a motion to change venue to Cabarrus County. The motion was denied and defendant appealed to this Court.

In our original opinion, we dismissed defendant's appeal for violations of the North Carolina Rules of Appellate Procedure. Odom, ___ N.C.App. ___, 654 S.E.2d 833, 2008 WL 132127 at *2. On 18 February 2008, defendant filed a petition for discretionary review in the North Carolina Supreme Court, arguing that this Court erred in dismissing the appeal for Rules violations. Subsequently on 7 March 2008, the Supreme Court issued its decision in Dogwood Dev. & Mgmt. Co., LLC v. White Oak Trans. Co., 362 N.C. 191, 657 S.E.2d 361 (2008), which provided clarification as to when violations of our appellate rules warrant dismissal. On 11 March 2008, defendant filed a Memorandum of Additional Authority with the Supreme Court, citing the Dogwood decision. The Supreme Court allowed defendant's petition on 10 April 2008, for the limited purpose of remanding the matter to this Court for reconsideration in light of Dogwood. Therefore, we reconsider defendant's appeal in light of the Dogwood decision.

Pursuant to Dogwood, we first must determine if defendant's non-jurisdictional rules violations are "gross" or "substantial" violations pursuant to North Carolina Rules of Appellate Procedure 25 and 34. If so, we may impose sanctions as directed by Rules 25 and 34. If we determine that the violations are so "gross" and "substantial" as to warrant dismissal, we are to consider whether the circumstances justify invoking Rule 2 to reach the merits of the case. Dogwood, 362 N.C. at 201, 657 S.E.2d at 367.

Defendant's appeal originally was dismissed primarily for violation of Rule 10(c)(1) which provides in relevant part:

Each assignment of error ... shall state plainly, concisely and without argumentation the legal basis upon which error is assigned. An assignment of error is sufficient if it directs the attention of the appellate court to the particular error about which the question is made, with clear and specific record or transcript references.

N.C. R.App. P. 10(c)(1) (2007) (emphasis added).

We held that defendant's assignments of error "essentially amount to no more than ... allegation[s] that the court erred because its ruling was erroneous." Odom, ___ N.C.App. ___, 654 S.E.2d 833, 2008 WL 132127 at *2 (citation omitted). We noted that "Such ... assignment[s] of error [are] designed to allow counsel to argue anything and everything they desire in their brief on appeal. Th[ese] assignment[s]—like a hoopskirt—cover[] everything and touch[] nothing." Id. (citations omitted). North Carolina courts historically have dismissed such assignments of error. See State v. Kirby, 276 N.C. 123, 131, 171 S.E.2d 416, 422 (1970) (dismissing an assignment of error that was "based on numerous exceptions and attempt[ed] to present several separate questions of law—none of which are set out in the assignment itself—thus leaving it broadside and ineffective."); Calhoun v. WHA Med. Clinic, PLLC, 178 N.C.App. 585, 602, 632 S.E.2d 563, 574 (2006) (declining to address assignment of error challenging findings as merely "contrary to law" because the assignment of error failed to properly preserve the issue for appeal), disc. rev. denied. 361 N.C. 350, 644 S.E.2d 5 (2007); State v. Patterson, 185 N.C.App. 67, ___, 648 S.E.2d 250, 254 (2007) (dismissing overly broad assignment of error as failing to comply with the North Carolina Rules of Appellate Procedure), disc. rev. denied, 362 N.C. 242, 660 S.E.2d 538 (2008). See also Wetchin v. Ocean Side Corp., 167 N.C.App. 756, 759, 606 S.E.2d 407, 409 (2005) (invoking Rule 2 to reach merits despite defective assignment of error which failed to specify which of the court's three rulings was erroneous); State v. Mullinax, 180 N.C.App. 439, 443, 637 S.E.2d 294, 297 (2006) (noting that appeal could be dismissed for violating Rule 10(c)(1) but electing to invoke Rule 2 to prevent manifest injustice).

Because of this long tradition of dismissing such assignments of error, we determine that defendant's assignments of error constituted "gross" and "substantial" violations of Rule 10(c)(1). Therefore, we must determine what sanctions are appropriate.

Dogwood instructs that in most cases the appellate courts should impose less drastic sanctions than dismissal and reach the merits of the case. Dogwood, 362 N.C. at 198-99, 657 S.E.2d at 365-66. Although this Court traditionally has dismissed assignments of error such as those presented in this appeal, we proceed with caution in this remanded case and, instead, impose double costs against defendant's attorney. We direct the Clerk of this Court to enter an order accordingly.

The dissenting opinion concludes that mere monetary sanctions are insufficient and that dismissal is warranted in this case. However, we must conclude that the Supreme Court did not remand this case in order for us to reach the same conclusion we reached in our prior opinion. At the time this case was remanded, the Supreme Court had available for its review the prior decision of this Court—dismissing the appeal for inadequate assignments of error, the same basis upon which the dissent still proposes to dismiss the appeal. It strains credulity to believe that our Supreme Court, having reviewed defendant's petition and our prior decision, would have remanded this matter anticipating that we again would reach the same conclusion. Were that the case, notions of judicial economy would have dictated that the Supreme Court deny discretionary review.

Defendant first argues that the trial court erred in denying a change of venue, because it is entitled to remain in Cabarrus County pursuant to North Carolina General Statutes, section 1-77. We disagree.

We note that ordinarily an order denying a change of venue is deemed interlocutory and is not subject to immediate appeal. See Frink v. Batten, 184 N.C.App. 725, 727, 646 S.E.2d 809, 811 (2007) ("the order denying the motion to change venue is an interlocutory order"). However, because the grant or denial of venue established by statute is deemed a substantial right, it is immediately appealable. Gardner v. Gardner, 300 N.C. 715, 719, 268 S.E.2d 468, 471 (1980) (citations omitted).

"[W]hen the venue where the action was filed is not the proper one, the trial court does not have discretion, but must upon a timely motion and upon appropriate findings transfer the case to the proper venue." Cheek v. Higgins, 76 N.C.App. 151, 153, 331 S.E.2d 712, 714 (1985) (emphasis added). Here, defendant has not challenged any of the trial court's findings of fact. "Findings of fact not challenged by an exception or assignment of error are binding on appeal." Griffis v. Lazarovich, 164 N.C.App. 329, 332, 595 S.E.2d 797, 800 (2004) (citing Tinkham v. Hall, 47 N.C.App. 651, 653, 267 S.E.2d 588, 590 (1980)).

Pursuant to North Carolina General Statutes, section 1-77, an action "[a]gainst a public officer or person especially appointed to execute his duties, for an act done by him by virtue of his office[,] or against a person who by his command or in his aid does anything touching the duties of such officer[,]" is to be brought in the county where the cause of action arose. N.C. Gen.Stat. § 1-77(2) (2005). In Coats v. Hospital, 264 N.C. 332, 141 S.E.2d 490 (1965), our Supreme Court held that a corporate hospital was an agency of Sampson County for purposes of venue. Id. at 334, 141 S.E.2d at 492. In determining whether a corporate entity should be treated as an agency of local government, "we ... must look at the nature of the relationship between the [corporation] and the county[.]" Publishing Co. v. Hospital System, Inc., 55 N.C.App. 1, 11, 284 S.E.2d 542, 548 (1981), cert. denied, 459 U.S. 803, 103 S.Ct. 26, 74 L.Ed.2d 42 (1982).

In 1975, the Supreme Court engaged in a detailed analysis to conclude that defendant's predecessor in interest—Cabarrus Memorial Hospital—was an agency of Cabarrus County. See Sides v. Hospital, 287 N.C. 14, 20, 213 S.E.2d 297, 301 (1975) ("we hold that Cabarrus Memorial Hospital is an agency of Cabarrus County"). Defendant's...