The opinion
An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-963
NORTH CAROLINA COURT OF APPEALS
Filed: 20 May 2014
The Estate of BETTY ANN W. AMOS,
by and through BARBARA A. WILLIAMS
and JUDY A. JAMES in their
capacities as CO-EXECUTORS of The
Estate of BETTY ANN W. AMOS,
Plaintiffs
v. Forsyth County
No. 12 CVS 4964
W. Scott Moore, M.D.; NEPHROLOGY
ASSOCIATES, P.L.L.C.; NOVANT
HEALTH, INC.; and FORSYTH MEMORIAL
HOSPITAL, INC., both d/b/a FORSYTH
MEDICAL CENTER,
Defendants
Appeal by plaintiffs from order entered 10 May 2013 by
Judge R. Stuart Albright in Forsyth County Superior Court.
Heard in the Court of Appeals 8 January 2014.
Hedrick Gardner Kincheloe & Garofalo, LLP, by Patricia P.
Shields, Maureen R. McDonald, and Joshua D. Neighbors, for
plaintiff-appellants.
Carruthers & Roth, P.A., by Norman F. Klick, Jr., Richard
L. Vanore, and Robert N. Young, for defendant-appellees W.
Scott Moore, M.D. and Nephrology Associates, P.L.L.C.
Coffey Bomar, LLP, by J. Chad Bomar, Tamura D. Coffey, and
J. Rebekah Biggerstaff, for defendant-appellees Novant
Health, Inc. and Forsyth Memorial Hospital, Inc. both d/b/a
Forsyth Medical Center.
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CALABRIA, Judge.
Barbara A. Williams and Judy A. James (“plaintiffs”), co-
executors of the Estate of Betty Ann W. Amos (“decedent”),
appeal from an order imposing the sanction of dismissing their
complaint against W. Scott Moore, M.D. (“Dr. Moore”); Nephrology
Associates, P.L.L.C.; and Novant Health, Inc. and Forsyth
Memorial Hospital, Inc., both d/b/a Forsyth Medical Center
(“FMC”) (collectively “defendants”) pursuant to Rules 9(j), 11,
and 41 of the North Carolina Rules of Civil Procedure. We
reverse.
On the morning of 2 November 2007, decedent began
exhibiting symptoms of a “cerebral vascular accident” while
undergoing dialysis at the King Dialysis Center. Decedent was
taken by ambulance to the FMC emergency department, where she
was assessed and treated. Dr. Moore, decedent’s attending
physician, admitted her to the FMC renal ward, where she was
administered heparin. Over the next several hours, decedent’s
condition continued to decline. Decedent complained of intense
and severe pain in her head and repeatedly vomited over a period
of eight hours, but FMC nursing staff refused to call Dr. Moore.
A CT scan later revealed a large right intracranial cerebral
hemorrhage. Decedent was transferred to palliative care, where
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she died on the evening of 3 November 2007.
Plaintiffs sought the advice of attorney J. Carlyle Hearn,
II (“Hearn”) in late November or early December 2007 regarding
potential wrongful death claims. Hearn agreed to represent
plaintiffs and confirmed the terms of his engagement in a letter
to plaintiffs dated 6 February 2008. After Hearn reviewed a
“rather comprehensive” copy of decedent’s medical records
regarding her treatment at FMC (the “2007 treatment records”),
Hearn searched for potential expert witnesses to review
decedent’s care. Overall, Hearn contacted six to eight
potential experts.
Since plaintiffs were required to file a wrongful death
complaint within two years of decedent’s death, Hearn filed a
motion to extend the statute of limitations on 28 October 2009.
According to Hearn’s motion, he “need[ed] to secure all
pertinent medical records of the decedent . . . and, pursuant to
N.C.R. Civ. Pro. 9(j), [decedent’s] medical treatment must be
reviewed by a person or persons who are reasonably expected to
qualify as an expert witness(es)[.]” The trial court found good
cause existed to extend the statute of limitations, and granted
an extension until 2 March 2010.
After Hearn secured experts who were willing to testify
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that defendants breached the standard of care, he was able to
provide Rule 9(j) certifications during the extension period.
Plaintiffs filed their initial complaint on 2 March 2010,
alleging, inter alia, that Dr. Moore negligently failed to order
a neurological consult for decedent, and that FMC’s nursing
staff failed to properly monitor, respond, and care for decedent
or to contact decedent’s attending physician after being
notified on several occasions that she was in severe pain and
repeatedly vomiting over a period of eight hours. Defendants
filed a motion to set aside the extension to the statute of
limitations and a motion to dismiss. Plaintiffs voluntarily
dismissed their complaint, without prejudice, in July 2011.
Plaintiffs refiled their complaint in July 2012. Defendants
again filed motions to set aside the extension to the statute of
limitations and to dismiss plaintiffs’ complaint.
On 10 May 2013, the trial court concluded that Hearn
“knowingly and intentionally made a material misrepresentation
to the Court that he needed to collect pertinent medical records
when he moved the court for an extension of the statute of
limitations[,]” and that “[n]o good cause existed for the
granting of the motion for extension of the statute of
limitations.” The trial court entered an order granting
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defendants’ motion to dismiss pursuant to Rules 9(j), 11, and
41. Plaintiffs appeal.
The issue before this Court is whether the trial court
erred by concluding that no good cause existed for the granting
of an extension of the statute of limitations and imposing the
sanction of dismissing plaintiffs’ complaint pursuant to Rules
9(j), 11, and 41 of the North Carolina Rules of Civil Procedure.
The trial court’s decision to impose or not impose
mandatory sanctions pursuant to N.C. Gen. Stat. § 1A-1, Rule
11(a) is reviewable de novo as a legal issue. Turner v. Duke
Univ., 325 N.C. 152, 165, 381 S.E.2d 706, 714 (1989). This
Court determines whether the findings of fact are supported by a
sufficiency of the evidence, whether the conclusions of law are
supported by the findings, and whether the conclusions support
the trial court’s judgment. Id. “If the appellate court makes
these three determinations in the affirmative, it must uphold
the trial court’s decision to impose or deny the imposition of
mandatory sanctions[.]” Id.
Rule 11 of the North Carolina Rules of Civil Procedure
requires that every filed motion be (1) well grounded in fact
after reasonable inquiry; (2) warranted by existing law or a
good faith argument for the extension, modification, or reversal
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of existing law; and (3) not interposed for any improper
purpose, such as to cause unnecessary delay. N.C. Gen. Stat. §
1A-1, Rule 11(a) (2013). Generally, both parties and attorneys
may be subject to sanctions for violations of the improper
purpose prong of Rule 11. Bryson v. Sullivan, 330 N.C. 644,
656, 412 S.E.2d 327, 333 (1992). “Further, both are subject to
an objective standard to determine the existence of such an
improper purpose.” Id. (citation omitted.) The burden is on
the movant to prove an improper purpose. Brown v. Hurley, 124
N.C. App. 377, 382, 477 S.E.2d 234, 238 (1996). “Whereas a
represented party may rely on his attorney’s advice as to the
legal sufficiency of his claims, he will be held responsible if
his evident purpose is to harass, persecute, otherwise vex his
opponents, or cause them unnecessary cost or delay.” Bryson,
330 N.C. at 663, 412 S.E.2d at 337 (citation omitted).
In Bryson, the defendant specifically alleged that the
plaintiffs’ complaint was filed for the improper purpose of
harassment, delay, and needlessly increasing the costs of
litigation. However, the trial court denied the defendant’s
motion for Rule 11 sanctions. Id. at 652-53, 412 S.E.2d at 331.
Our Supreme Court considered whether litigants who rely in good
faith upon advice of counsel concerning the legal basis for
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their claim could have sanctions imposed against them under the
legal sufficiency prong of Rule 11. Id. at 660, 412 S.E.2d at
335-36. Because the evidence supported a finding that the
parties acted in good faith upon the advice of counsel, the
Court held that the parties could not have sanctions imposed
against them based on the legal sufficiency prong of Rule 11.
Id. at 662, 412 S.E.2d at 336-37. In addition, the evidence was
insufficient to sustain sanctions under the improper purpose
prong of Rule 11. Id. at 664, 412 S.E.2d at 339. In Taylor v.
Collins, this Court held that the imposition of Rule 11
sanctions was improper when the respondent relied in good faith
on his attorney regarding the legal sufficiency of his claims.
128 N.C. App. 46, 53, 493 S.E.2d 475, 480 (1997).
Examples of circumstances from which an improper purpose
may be inferred include the service or filing of excessive,
successive, or repetitive papers, the filing of meritless papers
by counsel who have extensive experience in the pertinent area
of law, filing complaints with no factual basis for the purpose
of fishing for evidence of liability, and continuing to press an
obviously meritless claim after being specifically advised of
its meritlessness by a judge or magistrate. Mack v. Moore, 107
N.C. App. 87, 93, 418 S.E.2d 685, 689 (1992).
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In the instant case, the trial court found and concluded
that plaintiffs’ motion to extend the statute of limitations was
made for an improper purpose, to cause unnecessary delay, and
was not well grounded in fact. Specifically, the Rule 11
sanctions were based solely on the trial court’s conclusion that
Hearn’s statement that he needed to collect “pertinent medical
records” was a “misrepresentation to the Court.” However,
nothing in the record indicates that plaintiffs misled Hearn
regarding the facts and circumstances of their claims. Instead,
plaintiffs relied in good faith upon Hearn’s legal expertise and
his prior experience in medical malpractice actions.
Defendants, as the moving parties, had the burden of proof.
However, defendants did not present any evidence showing that
plaintiffs were at fault for the delay caused by Hearn’s request
for additional time, nor that plaintiffs’ purpose for the motion
was to “harass, persecute, otherwise vex [their] opponents, or
cause them unnecessary cost or delay.” Bryson, 330 N.C. at 663,
412 S.E.2d at 337 (citation omitted).
In the motion, Hearn stated he needed to “secure all
pertinent medical records of the decedent,” that decedent’s
“medical treatment must be reviewed by a person or persons who
are reasonably expected to qualify as an expert witness(es),”
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and that it was “very likely that medical experts in several
distinct areas of medicine” would be needed to review decedent’s
treatment. Hearn specifically testified at his deposition that
he included the statement in the motion to extend the statute of
limitations because
certain experts[] demand certain medical
records. I could not on the date I did this
motion [sic] tell you that there may not be
medical records that I did not have at the
time that could be medical records that a
nephrologist or a nursing care . . . expert
would think pertinent and therefore needed
to be secured.
Hearn also indicated that in his previous experience with
medical malpractice and wrongful death cases, prior medical
records were usually necessary, and this impression was
supported by a potential expert who indicated that decedent’s
pre-existing medical conditions would be an issue for an expert
witness.
At his deposition, Hearn testified that when he attempted
to contact nephrology experts in September and October 2009,
prior to the expiration of the initial statute of limitations,
Hearn discovered that the experts were unavailable to review the
case until their return from a professional conference. Hearn
knew the time would be close to or after the expiration of the
statute of limitations. Hearn also testified that he had
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contacted several experts who were unwilling to become involved
in the case. One of the experts indicated that decedent’s age
and pre-existing medical conditions caused some concern. Hearn
also stated that plaintiffs were unaware of the details of some
of decedent’s previous medical procedures.
Even though the trial court based its decision to impose
sanctions and dismiss plaintiffs’ complaint on a finding that
Hearn had misrepresented his need for additional medical records
and filed the motion to extend the statute of limitations for
the improper purpose of undue delay, those findings are not
supported by the evidence in the record. While hindsight shows
that Hearn did possess the 2007 treatment records at the time he
filed the motion, and did not secure any additional records
during the extension period, “in determining compliance with
Rule 11, courts should avoid hindsight and resolve all doubts in
favor of the signer.” Coventry Woods Neighborhood Ass’n, Inc.
v. City of Charlotte, 213 N.C. App. 236, 243, 713 S.E.2d 162,
167 (2011) (citation omitted).
Defendants, as the moving parties, had the burden of proof.
However, defendants did not present any evidence showing that
plaintiffs were at fault for the delay caused by Hearn’s request
for additional time, nor that plaintiffs’ purpose for the motion
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was to “harass, persecute, otherwise vex [their] opponents, or
cause them unnecessary cost or delay.” Bryson, 330 N.C. at 663,
412 S.E.2d at 337 (citation omitted). The trial court’s
findings of fact are not supported by a sufficiency of the
evidence in the record, and the record evidence in the instant
case indicates that Hearn’s motion to extend the statute of
limitations was imposed for a proper purpose and not undertaken
in bad faith. Therefore, the trial court’s conclusions of law
are not supported by the findings and do not support the
judgment. Turner, 325 N.C. at 165, 381 S.E.2d at 714. The
trial court improperly imposed sanctions in setting aside the
extension of the statute of limitations and dismissing
plaintiffs’ complaint. We reverse.
Reversed.
Judges BRYANT and GEER concur.
Report per Rule 30(e).