Estate of Wooden ex rel. Jones v. Hillcrest Convalescent Center, Inc.
731 S.E.2d 500
N.C. Ct. App.2012Background
- This is a wrongful death medical malpractice action in North Carolina; the executrix filed during a 120-day Rule 9(j) extension.
- Rule 9(j) requires an expert review before filing and may extend the statute of limitations to comply with the rule.
- The trial court granted a 120-day extension to 28 January 2011; plaintiff filed on 25 January 2011, within the extended period.
- Defendants moved to dismiss and to amend to add a statute of limitations defense after discovering plaintiff’s expert opinion predated the extension.
- The trial court dismissed the case and later denied findings of fact; plaintiff appealed the dismissal and the denial of findings.
- The appellate court affirmed in part, vacated in part, and remanded for further proceedings consistent with Moore v. Proper requiring findings of fact and conclusions of law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was Rule 9(j) compliance properly evaluated? | Jones contends 9(j) certification was sufficient and extension valid. | Duke/Hillcrest argue 9(j) certification was inadequate due to expert timing and scope. | Rule 9(j) compliance must be evaluated; findings required on the certification basis. |
| Can partial dismissal occur under Rule 9(j)? | Partial compliance should not require invalidating the entire complaint. | If 9(j) fails for part of the claim, dismissal of the whole action is warranted. | Rule 9(j) permits partial dismissal; the record requires factual findings to determine scope. |
| Was the extension sought for improper purpose and thus void? | Extension was to comply with 9(j), not for improper purpose. | Since the expert previously opined, the extension may have been improper. | Lack of record evidence precludes presuming improper purpose; reversal not warranted on this basis. |
| Did the trial court abuse its discretion in allowing amendments to add the statute of limitations defense? | Amendment was pointless if a viable defense existed earlier. | New information from discovery justified amendment to add limitations defense. | No abuse of discretion; prejudice not shown; amendment permitted. |
| Does Moore v. Proper require written findings for Rule 9(j) dismissals? | Unclear basis for dismissal without findings requires remand for findings. | Findings not strictly necessary if other standards apply. | Moore requires written findings; remand to provide proper findings and conclusions. |
Key Cases Cited
- Moore v. Proper, 726 S.E.2d 812 (N.C. 2012) (requires written findings of fact and conclusions of law in Rule 9(j) dismissals)
- Thigpen v. Ngo, 355 N.C. 198 (N.C. 2002) (Rule 9(j) compliance is a question of law on dismissal)
- Phillips v. A Triangle Women’s Health Clinic, Inc., 155 N.C. App. 372 (N.C. App. 2002) (willingness to testify issue discussed regarding Rule 9(j))
- Brisson v. Kathy A. Santoriello, M.D., P.A., 351 N.C. 589 (N.C. 2000) (harmonizes Rule 9(j) with other rules for partial dismissal)
- Barringer v. Forsyth Cnty. Wake Forest Univ. Baptist Med. Ctr., 197 N.C. App. 238 (N.C. App. 2009) (Rule 9(j) can be raised by other procedural mechanisms)
- Morrow v. Kings Dep’t Stores, Inc., 57 N.C. App. 13 (N.C. App. 1982) (partial dismissal and summary judgment considerations under Rule 41/56)
- Mauney v. Morris, 316 N.C. 67 (N.C. 1986) (abuse of discretion standard for amendments)
- R. v. 9(j) extensions and timing considerations, N.C. Gen. Stat. § 1A-1, Rule 9(j) (2011) (extension mechanics and ends-of-justice consideration)