Weaver v. Saint Joseph of the Pines, Inc.

• Decision Date: 20 November 2007
• Docket Number: No. COA06-1524.,COA06-1524.
• Citation: 652 S.E.2d 701
• Court: North Carolina Court of Appeals
• Parties: Stacy WEAVER, as Administrator of the Estate of Frankie M. Vamper, Plaintiff, v. SAINT JOSEPH OF THE PINES, INC., Defendant.

652 S.E.2d 701

Stacy WEAVER, as Administrator of the Estate of Frankie M. Vamper, Plaintiff, v. SAINT JOSEPH OF THE PINES, INC., Defendant.

No. COA06-1524.

Court of Appeals of North Carolina.

November 20, 2007.

Appeal by plaintiff from order entered 9 August 2006 by Judge James M. Webb in Moore County Superior Court. Heard in the Court of Appeals 6 June 2007.

Bain, Buzzard & McRae, LLP, by Robert A. Buzzard, Lillington, for plaintiff-appellant.

Van Camp, Meacham & Newman, PLLC, by Thomas M. Van Camp, Pinehurst, for defendant-appellee.

GEER, Judge.

Plaintiff Stacy Weaver, the administrator of the estate of Frankie M. Vamper, appeals from an order dismissing plaintiff's complaint against defendant Saint Joseph of the Pines, Inc. ("SJP") and also granting judgment on the pleadings in favor of SJP. Although the parties present this case for review under Rules 12(b)(6) and 12(c) of the North Carolina Rules of Civil Procedure, the parties and the trial court relied upon matters outside the pleadings, and, consequently, the Rules of Civil Procedure require that we decide this appeal pursuant to Rule 56.

Based upon our review of the affidavits and exhibits submitted by the parties, we hold that no genuine issue of material fact exists regarding whether a general release signed by Ms. Frankie M. Vamper bars the claims in this lawsuit. Because, as a matter of law, the release precludes this action, and plaintiff has failed to present evidence that the release is unenforceable, we hold that the trial court properly entered judgment in favor of SJP.

Facts

On 17 May 2006, plaintiff filed a negligence and wrongful death action against SJP, a corporation that owns and runs assisted-living and nursing-care facilities. According to the complaint, on 20 May 2003, SJP's employees transported Ms. Vamper in a van to receive dialysis treatment. While the employees were loading Ms. Vamper into the van, a piece of the mechanical wheelchair lift broke and landed on Ms. Vamper's leg. Plaintiff asserts in the complaint that Ms. Vamper suffered serious injuries from this incident, ultimately resulting in the amputation of her leg and further serving as a proximate cause of her death, nearly three years later, on 18 March 2006.

On 5 June 2006, SJP filed an answer; a motion to dismiss pursuant to N.C.R. Civ. P. 12(b)(1), 12(b)(2), and 12(b)(6); and a motion for judgment on the pleadings pursuant to N.C.R. Civ. P. 12(c). In support of these motions, SJP attached various documents relating to a previous lawsuit that SJP had filed in August 2004 against Frankie Mae Vamper, Theron Junior Vamper, Sr., and Joseph Vamper.

These documents reflect that, in the prior lawsuit, SJP was attempting to recover a debt of $29,174.54 owed by Ms. Vamper and her family for care and treatment services rendered to Ms. Vamper at SJP's facility. When the Vampers failed to answer the August 2004 complaint, the Clerk of Superior Court in Moore County entered default against them on 22 November 2004. SJP subsequently filed a motion for default judgment in the amount of the debt.

In June 2005, however, the parties held a mediation conference, as a result of which they entered into a "Settlement Agreement and Mutual Release" ("Release"), one of the documents that SJP attached to its answer in this case. Under the terms of the Release, the Vampers agreed to pay SJP a sum of $6,000.00, in 24 monthly payments of $250.00, as "full and final settlement of the pending lawsuits." SJP, in return, agreed to dismiss with prejudice its claims against the Vampers.

Most pertinent to this case, the Release contained the following provision:

4. [THE VAMPERS] do for themselves, their heirs, successors and assigns, hereby RELEASE, ACQUIT, and FOREVER DISCHARGE ST. JOSEPH OF THE PINES, INC., ["SJP"] its successors and assigns, agents, servants, employees, and corporate, personal, and litigation attorneys, of and from any and all claims, actions or causes of action, demands, damages, costs, judgments, expenses, liabilities, attorneys' fees, and legal costs, whether known or unknown, whether in law or in equity, whether in tort or in contract, of any kind or character, which they now have, or might otherwise have, against the [sic] SJP, arising out of or related to the care and treatment of Frankie Mae Vamper, all to the end that all claims or matters that are, or might be in controversy between the Vampers and SJP are forever put to rest, relating to the matters and things alleged in the pending lawsuits, it being the clear intention to forever discharge and release all past and present claims against SJP from all consequences resulting or potentially to result from the matters and things set forth in the pending lawsuits or the care and treatment of Frankie Mae Vamper while a resident at the SJP facility.

The final page of the Release shows the notarized signatures of Frankie Mae Vamper, Theron Junior Vamper, Sr., and Joseph E. Vamper.

In this case, after SJP submitted the Release to the trial court in conjunction with its answer and Rule 12 motions, plaintiff gave notice of his intent to take the deposition of SJP's counsel, Thomas M. Van Camp. Apparently, Thomas Van Camp also represented SJP in the mediation of the debt claims and was instrumental in preparing the Release. Plaintiff also filed a motion to continue the hearing on SJP's Rule 12 motions, asserting that "depositions and other discovery [are] necessary in order for Plaintiff to respond to Defendant's motion to dismiss."

Five days later, SJP filed an objection to plaintiff's motion to continue and a motion for protective order barring plaintiff from taking the deposition of Thomas Van Camp. SJP asserted:

It would be appropriate to address whether a deposition of defendant's counsel of record should be allowed only after the pending Motion to Dismiss and Motion for Judgment on the Pleadings have been ruled upon. If, and only if, the Court determines that the language contained in the Settlement Agreement and Mutual Release is ambiguous, will it be necessary to address the appropriateness of taking the deposition of defendant's counsel of record.

SJP then filed an affidavit of Deborah T. Scherer, SJP accounts receivable manager. As attachments to the Scherer affidavit, SJP included a computer-generated "payment history" for the Frankie M. Vamper account and a copy of the obituary of Frankie M. Vamper. Plaintiff then filed a "Reply to Affirmative Defense," attaching an affidavit from Joseph Vamper, Ms. Vamper's son, a "Memorandum of Mediated Settlement," and a copy of the Release.

Following a hearing on 6 July 2006, Judge James M. Webb orally granted SJP's motion for protective order, stating "the protective order prohibits the taking of the deposition of Mr. Thomas M. Van Camp, defendant's counsel of record, until such time as the defendant's motion to dismiss and motion for judgment on the pleadings have been heard and ruled upon by the Court." The trial court then ordered that "defendant's motion to dismiss and motion for judgment on the pleadings [be] continued for hearing" until 31 July 2006.

In a joint letter, dated 17 July 2006 and filed with the trial court on 31 July 2006, the parties explained to the judge that they had entered into the following agreement and "stipulations":

After discussing this matter . . . we have agreed that the Court can rule upon defendant's Motion for Judgment on the Pleadings and/or Motion to Dismiss without further argument by the parties. The documents that are currently on file, and which the parties stipulate shall be regarded by the court as pleadings in connection with ruling on the motions include: 1) the Complaint and any attachments; 2) the Answer and any attachments; 3) [plaintiff]'s Reply with attachments; and 4) the Scherer affidavit. Both parties further stipulate that the motions shall not be converted into motions for summary judgment.

On 9 August 2006, the trial court entered a written order granting SJP's motion to dismiss pursuant to Rules 12(b)(1), 12(b)(2), and 12(b)(6) and granting judgment on the pleadings to defendant pursuant to Rule 12(c). Plaintiff gave timely notice of appeal to this Court.

Conversion of Rule 12(b)(6) and Rule 12(c) Motions into Summary Judgment Motion

As an initial matter, we must confront the awkward procedural posture of this case, a circumstance stemming from the parties' "stipulations" to the trial court. Here, the court acknowledged that the parties "stipulated in writing that the Court shall consider as pleadings in ruling upon the defendant's motions (1) the Complaint and any attachments; (2) the Answer and any attachments; (3) the [plaintiff's] Reply with attachments; and (4) the Scherer affidavit. . . ." The court further acknowledged that the parties "stipulat[ed] that the defendant's motions shall not be converted into a motion for summary judgment" and that the letter containing these stipulations "has been made part of the court file. . . ."

Following these acknowledgments, the court proceeded to grant SJP's Rule 12(b)(6) and Rule 12(c) motions.¹ It is, therefore, apparent that the court, pursuant to the parties' joint "stipulations," treated the various non-pleading materials as pleadings and decided not to convert defendant's motions into one for summary judgment under Rule 56. This approach — although invited by the parties — cannot be reconciled with the Rules of Civil Procedure.

We first note that a Rule 12(c) motion may be filed only "[a]fter the pleadings are closed but within such time as not to delay the trial. . . ." N.C.R. Civ. P. 12(c). Thus, contrary to what was done here, a Rule 12(c) motion cannot be filed simultaneously with an answer. Indeed, this Court has recognized that "while a motion under Rule 12(b)(6) must be made prior to or contemporaneously with the filing of the responsive pleading," a distinguishing feature of a Rule 12(c) motion is that it "is properly made after the...