Stocum v. Oakley

• Decision Date: 07 August 2007
• Docket Number: No. COA06-957.,COA06-957.
• Citation: 648 S.E.2d 227
• Parties: Keith Joseph STOCUM, Jr. and Cynthia Ivey Stocum, Plaintiffs, v. Ward Sayre OAKLEY, Jr., M.D., and Pinehurst Surgical Clinic, P.A., Defendants.
• Court: North Carolina Court of Appeals

648 S.E.2d 227

Keith Joseph STOCUM, Jr. and Cynthia Ivey Stocum, Plaintiffs, v. Ward Sayre OAKLEY, Jr., M.D., and Pinehurst Surgical Clinic, P.A., Defendants.

No. COA06-957.

Court of Appeals of North Carolina.

August 7, 2007.

Appeal by plaintiffs from an order entered 6 February 2006 by Judge James M. Webb in Moore County Superior Court. Heard in the Court of Appeals 28 March 2007.

Troutman Sanders LLP, by Gary S. Parsons and Gavin B. Parsons; Crisp, Page & Currin, L.L.P., by Cynthia M. Currin, Raleigh, for plaintiff-appellants.

Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., by Deanna Davis Anderson, Raleigh, for defendant-appellees.

HUNTER, Judge.

This cause of action arose after Dr. Ward Sayre Oakley, Jr., who was employed by Pinehurst Surgical Clinic, P.A., performed surgery on Keith Stocum, Jr. Keith Stocum, Jr. and Cynthia Stocum ("plaintiffs") sued Pinehurst and Dr. Oakley ("defendants") for bodily injuries and loss of consortium. Plaintiffs also asserted claims for res ipsa loquitur, a claim for foreign object left in a body, and constructive fraud. Plaintiffs appeal from an order dismissing their complaint. After careful consideration, we affirm.

Plaintiffs filed their first complaint against defendants on 1 October 2002. Summonses were issued to defendants on 1 October 2002 but were never served upon any defendant. Alias and pluries summons were also issued to all defendants on 20 December 2002, 17 March 2003, 5 June 2003, and 22 July 2003. No attempt, however, was ever made to serve any of the summonses or the complaint upon any defendant.

One year after filing the original complaint, plaintiffs filed an amended complaint pursuant to North Carolina Rule of Civil Procedure (hereafter "Rule") 15(a). The amended complaint made substantive changes in the allegations and added claims for breach of fiduciary duty, constructive fraud, and punitive damages. No attempt was made to serve the amended complaint.

Plaintiffs issued more alias and pluries summonses on 6 October 2003, 31 December 2003, and 24 March 2004. Again, there was no attempt to serve any of the summonses or the amended complaint on any defendant. On 21 June 2004, a ninth set of alias and pluries summonses were issued.

On 22 July 2004, Pinehurst Surgical, one of the defendants, received an order for mediated settlement conference directly from Moore County Superior Court, dated 12 July 2004. This was the first notice that any defendant had received that a lawsuit had been filed against them.

Although no discovery had occurred, plaintiffs' trial counsel, Cynthia M. Currin, signed a letter to the trial court coordinator stating that "[w]e are still in the discovery stages of this case[,]" and asked to have the case removed from the calendar. Plaintiffs' counsel sent a different letter three days later stating that "[p]arties are still involved in discovery" and asked for "additional time to complete discovery prior to mediation and trial." Between 9 August 2004 and 23 August 2004 all defendants were served. All of the prior summonses issued to the various defendants listed each of their correct address.

After defendants received notice of the lawsuit pending against them, they filed a motion to dismiss. Both parties acknowledge that the motion to dismiss was based on alleged violations of Rules 4 and 41 for failure to timely serve notice of the lawsuit and for failure to prosecute the action. Defendants also asserted that plaintiffs' cause of action should be dismissed because of a purported violation of Rule 11 after plaintiffs' counsel represented to the trial court that discovery was ongoing. The hearing on the motion was scheduled for 18 October 2004. Plaintiffs' counsel, however, filed a notice of voluntary dismissal without prejudice pursuant to Rule 41(a) on 14 October 2004. Thus, the motion to dismiss was never heard.

Plaintiffs then filed the present action on 11 October 2005, within one year of taking the voluntary dismissal. Defendants served a joint motion to dismiss and a motion for a protective order based on the same grounds as their first motion to dismiss. On 6 February 2006, the trial court entered an order granting the motion to dismiss with prejudice.

The motion to dismiss was granted based on violations of Rules 4, 11, and 41. Specifically, the trial court made the following conclusions of law:

6. Plaintiffs' counsel . . . violated Rule 11 of the North Carolina Rules of Civil Procedure when she signed the July 26, 2004 letter . . . and the July 29, 2004 Motion and Order Extending Completion Date for Mediation. At the time these documents were signed, Plaintiffs had made no attempt to serve process on any Defendant, despite the issuance [of] nine Summonses to each Defendant. In this context, Plaintiffs' counsel could not reasonably have believed that her representations to this Court ("We are still in the discovery stages of this case." "Parties still involved in discovery. Need additional time to complete discovery prior to mediation and trial.") were well grounded in fact. Instead, the July 26, 2004 letter and the July 29, 2004 Motion were interposed for the improper purposes of causing further unnecessary delay and misleading the Court as to the status of the case. This Court has considered less drastic sanctions, but finds in its discretion that, under the circumstances set forth herein, no lesser sanction, other than dismissal with prejudice, would better serve the interests of justice in this case. For this reason, independent of other violations set forth herein, Defendants' Motions to Dismiss are granted.

7. Plaintiffs violated Rule 4 of the North Carolina Rules of Civil Procedure when Plaintiffs failed to deliver any Complaint or Summons to some proper person for service from October of 2002 until August of 2004. Plaintiffs' violation of Rule 4 in the manner set forth herein was willful and intentional and was, on its face, bad faith, with the intent and purpose to delay and in order to gain an unfair advantage over the Defendants. There is no good faith reason or excuse for the delay in obtaining service of process for 22 months or for why service was not attempted prior to August of 2004. Each time Plaintiffs had a Summons issued, Plaintiffs failed to effectuate service. Plaintiffs were in possession of the correct addresses for Defendants. Defendants were readily available to be served and could have been easily served, had Plaintiffs made an attempt to do so. This Court has considered less drastic sanctions, but finds in its discretion that, under the circumstances set forth herein, no lesser sanction, other than dismissal with prejudice, would better serve the interests of justice in this case. For this reason, independent of other violations set forth herein, Defendants' Motions to Dismiss are granted.

8. Plaintiffs violated Rule 41 when Plaintiffs failed to prosecute their action by failing to deliver any Complaint or Summons to a proper person for service from October of 2002 until August of 2004 and when Plaintiffs caused further unnecessary delay by misleading the Court as to the status of the case in the July 26, 2004 letter and the July 29, 2004 Motion. This failure manifested an intention to thwart the progress of Plaintiffs' action to its conclusion by engaging in a delaying tactic. This Court has considered less drastic sanctions, but finds in its discretion that, under the circumstances set forth herein, no lesser sanction, other than dismissal with prejudice, would better serve the interests of justice in this case. For this reason, independent of other violations set forth herein, Defendants' Motions to Dismiss are granted.

There are two issues in this case: (1) whether the trial court considered incompetent evidence in determining to dismiss plaintiffs' claim; and (2) whether the trial court properly dismissed plaintiffs' claim pursuant to Rules 4, 11, and 41 of the North Carolina Rules of Civil Procedure.

I.

Plaintiffs argue that the trial court considered incompetent evidence when ruling on defendants' motion to dismiss. We disagree. Errors assigned pursuant to Rule 6 are reviewed for abuse of discretion. Lane v. Winn-Dixie Charlotte, Inc., 169 N.C.App. 180, 184, 609 S.E.2d 456, 459 (2005). In relevant part, Rule 6(d) provides: "When a motion is supported by affidavit, the affidavit shall be served with the motion; and except as otherwise provided in Rule 59(c), opposing affidavits shall be served at least two days before the hearing." N.C. Gen.Stat. § 1A-1, Rule 6(d) (2005). Under this Rule, the trial court has discretion as to "whether to allow affidavits to be filed subsequent to the filing of a motion." Lane, 169 N.C.App. at 184, 609 S.E.2d at 458 (citing Rockingham Square Shopping Center, Inc. v. Integon Life Ins. Corp., 52 N.C.App. 633, 641, 279 S.E.2d 918, 924 (1981)).

Here, defendants filed one affidavit and unverified documents in support of their motion to dismiss two days before the scheduled hearing. The affidavit was not considered by the trial court in support of its motion to dismiss. The remaining documents consisted of the court file from the prior action between the two parties before plaintiffs took the voluntary dismissal. Included in the file were the nine alias and pluries summonses, the complaint, the amended complaint, and the letters drafted from plaintiffs' counsel to the trial court. Consequently, we limit our discussion, as do the parties, to the issue of whether the trial court could take judicial notice of unverified documents in ruling on a motion to dismiss. Plaintiffs contend that even unverified documents must comply with Rule 6(d). We disagree.

Facts essential to a judgment are not limited to testimony of witnesses, exhibits introduced into evidence, or by stipulation of parties. Mason v. Town of Fletcher, 149 N.C.App. 636, 640, 561 S.E.2d 524, 527, disc. review denied, 355 N.C. 492, 563 S.E.2d 570 (2002). Trial...