Page v. Mandel

• Decision Date: 19 November 2002
• Docket Number: No. COA02-11.,COA02-11.
• Parties: Edith H. PAGE, Plaintiff-Appellant, v. Dale M. MANDEL, M.D., Davidson Surgical Associates, Inc., Donald R. Bosken, M.D., Chair City Family Practice, P.A., Cedric R. Deang, M.D., Thomasville Surgical Associates, Inc., Community General Health Partners, Inc. d/b/a Community General Hospital, Defendants-Appellees.
• Court: North Carolina Court of Appeals

571 S.E.2d 635

154 NC App. 94

Edith H. PAGE, Plaintiff-Appellant, v. Dale M. MANDEL, M.D., Davidson Surgical Associates, Inc., Donald R. Bosken, M.D., Chair City Family Practice, P.A., Cedric R. Deang, M.D., Thomasville Surgical Associates, Inc., Community General Health Partners, Inc. d/b/a Community General Hospital, Defendants-Appellees.

No. COA02-11.

Court of Appeals of North Carolina.

November 19, 2002.

The Law Office of Herman L. Stephens, by Herman L. Stephens, Winston-Salem, for plaintiff-appellant.

Wilson & Iseman, L.L.P., by G. Gray Wilson and Linda L. Helms, Winston-Salem, for defendants-appellees.

McGEE, Judge.

This is an appeal by Edith H. Page (plaintiff) from an order requiring plaintiff to file a second amended complaint and an order striking and dismissing her first amended complaint for failure to comply with an order of the trial court to file a more definite statement. Plaintiff alleged in her complaint that on 10 March 1996 she was admitted by Donald Bosken, M.D. (Dr. Bosken) to Community General Hospital, owned by Health Partners, Inc. d/b/a Community General Hospital (Community General), allegedly suffering from diverticulitis. Three days later Cedric R. Deang, M.D. (Dr. Deang) conducted a consultation examination of plaintiff and diagnosed plaintiff as having diverticulitis. Dale M. Mandel, M.D. (Dr. Mandel) examined plaintiff on 13 March 1996, recommended immediate surgery, and performed surgery that day. Plaintiff remained a patient at Community General from 10 March 1996 until 26 March 1996.

Dr. Mandel saw plaintiff for follow-up visits in early April 1996. Plaintiff was readmitted to Community General on 9 April 1996 by Dr. Kerry A. Critin (Dr. Critin) of Davidson Surgical Associates, Inc. (Davidson Surgical) for colitis with intractable nausea, vomiting, diarrhea and pain. Plaintiff was discharged from Community General on 13 April 1996. Dr. Mandel saw plaintiff for another follow-up visit on 15 April 1996. Plaintiff alleged that on or about 20 April 1996 she had pain and swelling in her left leg, which she reported to Davidson Surgical on 22 April 1996 and was seen by Dr. Mandel the following day. Dr. Mandel determined plaintiff had acute deep vein thrombosis of the left leg. Plaintiff was again admitted to Community General. Plaintiff alleged that her deep vein thrombosis was "to a large extent a permanent condition."

Plaintiff alleged that defendants were negligent in not promptly performing surgery and in not administering prophylaxis for deep vein thrombosis during the period following her surgery until the deep vein thrombosis manifested itself on or about 20 April 1996. Plaintiff further alleged that this delay and failure to provide care proximately caused injury to her.

Plaintiff filed a motion on 9 March 1999 seeking an order extending the statute of limitations in a medical malpractice action. The trial court granted plaintiff's motion, extending the statute of limitations to 8 July 1999. Plaintiff filed her complaint on 8 July 1999, seeking damages for alleged medical malpractice by defendants. A civil summons was also issued on 8 July 1999 and was served on defendant Community General on 14 July 1999. Pursuant to N.C. Gen. Stat § 1A-1, Rule 15(a), plaintiff filed an amended complaint on 10 September 1999. Defendants answered the amended complaint and moved to dismiss the amended complaint on 3 October 1999. On 6 December 1999 the trial court held a hearing on Community General's motion to dismiss under N.C. Gen.Stat. § 1A-1, Rule 12(b)(6). In an order dated 8 December 1999, the trial court treated Community General's Rule 12(b)(6) motion to dismiss as a motion for more definite statement under N.C. Gen.Stat. § 1A-1, Rule 12(e), and ordered plaintiff to file a second amended complaint as to Community General within thirty days, alleging "specific acts of negligence of the defendant Community General ..., whether these acts [were] based upon the conduct of agents of [Community General], and the basis for any [necessary] agency relationship." The trial court noted that the order would not prevent Community General from challenging the second amended complaint by a Rule 12(b)(6) motion.

Community General filed a motion to strike and dismiss plaintiff's amended complaint on 19 January 2000 pursuant to N.C.G.S. § 1A-1, Rules 12(b)(6) and 12(e). However, in its motion Community General only argued for dismissal on the basis of a violation of the trial court's order pursuant to Rule 12(e). Community General based its motion on the fact that thirty days had elapsed since entry of the order directing plaintiff to file a second amended complaint within thirty days as to Community General, and plaintiff had failed to do so. The trial court entered an order on 16 February 2000, granting Community General's motion to strike and dismiss with prejudice plaintiff's amended complaint. Plaintiff appealed from both the 8 December 1999 order and the 16 February 2000 order.

In an order dated 20 December 2001, the trial court settled the record on appeal. The order excluded plaintiff's proposed second amended complaint. In refusing to allow the second amended complaint to be included in the record on appeal, the trial court stated

that plaintiff proffered to the court her proposed second amendment to complaint for the first time at the hearing on [Community General's] motion to strike and dismiss plaintiff's amended complaint on February 7, 2000, that [Community General] objected to the court's consideration of the proposed second amendment to complaint, and that plaintiff's proposed second amendment to complaint was not accepted or considered by the court due to the fact that it was not timely filed in accordance with the prior order of the court entered December 8, 1999.

I.

Plaintiff argues in her second assignment of error that the trial court erred in its 8 December 1999 order by treating Community General's motion to dismiss as a motion for more definite statement under N.C.G.S. § 1A-1, Rule 12(e). A trial court may, in the appropriate case, treat a motion to dismiss under N.C.G.S. § 1A-1, Rule 12(b) as a motion for a more definite statement under N.C.G.S. § 1A-1, Rule 12(e). See Manning v. Manning, 20 N.C.App. 149, 154, 201 S.E.2d 46, 50 (1973)

. The trial court in this case cited Manning in its 8 December 1999 order treating the motion to dismiss as a motion for more definite statement.

This rule is consistent with the ability our courts have traditionally enjoyed of seeking a more definite statement ex mero motu. See, e.g., Bowling v. Bank, 209 N.C. 463, 184 S.E. 13 (1936); Hutchins v. Mangum, 198 N.C. 774, 153 S.E. 409 (1930); Buie v. Brown, 104 N.C. 335, 10 S.E. 465 (1889); see also Umstead v. Durham Hosiery Mills, Inc., 578 F.Supp. 342, 344 (M.D.N.C.1984)

(denying the defendant's motion to dismiss but requiring, sua sponte, the plaintiff to file a more definite statement pursuant to Rule 12(e)). The rule is also consistent with the practice of federal courts under the analogous federal rule. See Beanal v. Freeport-McMoRan, Inc., 969 F.Supp. 362, 367 (E.D.La.1997) ("The court may treat a Rule 12(b)(6) dismissal motion as a motion for a more definite statement, even if the motion is not so styled."), affirmed, 197 F.3d 161 (5th Cir.1999); Forti v. Suarez-Mason, 672 F.Supp. 1531, 1541 (N.D.Cal.1987) ("The Court may treat a Rule 12(b)(6) dismissal motion as a Rule 12(e) motion for a more definite statement."), reconsideration granted in part on other grounds, 694 F.Supp. 707 (N.D.Cal.1988); In re Sugar Industry Antitrust Litigation, 73 F.R.D. 322, 350 (E.D.Pa.1976) ("[T]he Court may consider sua sponte plaintiffs' motion to dismiss under Rule 9(b) as a motion for a more definite statement.") (citations omitted); 5A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1378 (2d ed.1990). While we are clearly not bound by decisions from federal courts concerning their rules of procedure when deciding cases concerning application of the North Carolina Rules of Civil Procedure, such decisions are often instructive in reaching our own decisions. Turner v. Duke University, 325 N.C. 152, 164, 381 S.E.2d 706, 713 (1989). We hold that the trial court did not err in its 8 December 1999 order by treating Community General's motion to dismiss under N.C.G.S. § 1A-1, Rule 12(b) as a motion for more definite statement under N.C.G.S. § 1A-1, Rule 12(e). Plaintiff's second assignment of error is overruled.

II.

Plaintiff argues in her third assignment of error that the entry of an order requiring plaintiff to file a second amended complaint pursuant to N.C.G.S. § 1A-1, Rule 12(e) was an abuse of the trial court's discretion. As plaintiff admits in her assignment of error, a trial court's grant or denial of a motion for more definite statement is subject to review only for an abuse of discretion. Ross v. Ross, 33 N.C.App. 447, 454, 235 S.E.2d 405, 410 (1977). An abuse of discretion occurs only when "a decision is `manifestly unsupported by reason' or `so arbitrary that it could not have been the result of a reasoned decision.'" Frost v. Mazda Motor of Am., Inc., 353 N.C. 188, 199, 540 S.E.2d 324, 331 (2000) (quoting Little v. Penn Ventilator Co., 317 N.C. 206, 218, 345 S.E.2d 204, 212 (1986) (citations omitted)). In the present case, the trial court determined that plaintiff's allegations were not specific as to Community General's alleged negligence and agency relationship. Plaintiff failed to allege specific acts of negligence by Community General or its employees in her complaint. Plaintiff referred to Community General only in her general references to the negligence of the collective "defendants." In actuality these references are nothing more than reiterations of the specific acts of negligence plaintiff alleged certain physician defendants committed, with no allegation of how these acts can be attributed to Community General. The trial court determined that a ...