CHARLES BLUE v. THAKURDEO MICHAEL BHIRO, P.A., DIXIE LEE BHIRO, P.A., and LAUREL HILL MEDICAL CLINIC, P.C.
No. 26A21
IN THE SUPREME COURT OF NORTH CAROLINA
6 May 2022
2022-NCSC-45
NEWBY, Chief Justice.
Appeal pursuant to
Ward and Smith, P.A., by Christopher S. Edwards and Alex C. Dale, for plaintiff-appellee.
Batten Lee, PLLC, by Gary Adam Moyers and Gloria T. Becker, for defendant-appellants.
¶ 1 In this case we determine whether the trial court was required to convert a motion to dismiss under
¶ 2 Because this case arises from a motion to dismiss under
¶ 3 The Bhiros were plaintiff‘s primary care providers. The Bhiros treated plaintiff “for a variety [of] ailments” and provided “routine physical examinations, medic[ation] management, and preventative medicine.” On 24 January 2012, Mr. Bhiro ordered a prostate specific antigen (PSA) test to screen plaintiff for prostate cancer. Generally, a PSA test result of 4 nanograms per milliliter of blood “is considered abnormally high for most men and may indicate the need for further evaluation with a prostate biopsy.” The results from this test, which were provided to the Bhiros, indicated that plaintiff‘s PSA level was 87.9 nanograms per milliliter, significantly higher than the normal range. Though the Bhiros continued to treat plaintiff for other issues, they never “provided any follow up care or referrals as a result of the elevated PSA test result.” The results from another PSA test performed six years later on 22 March 2018 indicated that plaintiff‘s PSA level was 1,763 nanograms per milliliter. Plaintiff was diagnosed with metastatic prostate cancer soon thereafter. The Bhiros “continued as [p]laintiff‘s primary medical care providers until January, 2019.”
¶ 4 All defendants jointly filed a motion to dismiss plaintiff‘s complaint under
The [c]ourt, having heard arguments of parties and counsel for the parties and having reviewed the court file, pleading[ ], and memorand[a] of law submitted by both parties, . . . finds that Plaintiff failed to state a claim upon which relief can be granted and the Defendants’ Motion to Dismiss should be allowed pursuant to
N.C. R. Civ. P. 12(b)(6) .
Thus, the trial court dismissed plaintiff‘s claims with prejudice. Plaintiff appealed.
¶ 5 At the Court of Appeals, plaintiff argued that the trial court (1) converted the
¶ 6 The Court of Appeals began its analysis by “determin[ing] whether the trial court reviewed the [c]omplaint under
¶ 7 The Court of Appeals then noted that when a
¶ 8 The dissenting opinion at the Court of Appeals, however, would have affirmed the trial court‘s order. Id. (Hampson, J., dissenting). The dissent argued that the trial court did not convert defendants’ motion to dismiss. Id. at 7–8, 853 S.E.2d at 263. The dissent noted that although the parties’ memoranda and arguments of counsel may have referenced “facts not alleged in the [c]omplaint, these were merely arguments of counsel.” Id. at 8, 853 S.E.2d at 263. The dissent noted that “[n]o evidentiary materials—discovery, exhibits, affidavits, or the like—were offered or submitted to the trial court.” Id. Thus, the dissent would have held that the trial court did not consider matters outside the pleading and did not convert the motion. Id.
¶ 9 Accordingly, the dissent also addressed plaintiff‘s remaining arguments. Id. at 8–11, 853 S.E.2d at 263–65. The dissent argued that the claim was barred by the statute of limitations or the statute of repose in
¶ 10 Defendants argue the Court of Appeals erred by holding that the trial court considered matters outside the pleading and thus converted the motion to dismiss to a motion for summary judgment. We agree.
¶ 11 Whether a
[i]f, on a motion asserting the defense numbered (6), to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56.
¶ 12 The phrase “matters outside the pleading” refers to evidentiary materials used to establish facts. See Carlisle v. Keith, 169 N.C. App. 674, 689, 614 S.E.2d 542, 552 (2005) (“While extraneous matter usually consists of affidavits or discovery documents, it may also consist of live testimony, stipulated facts, [or] documentary evidence in a court‘s file.” (alteration in original) (emphasis omitted) (quoting G. Gray Wilson, 1 North Carolina Civil Procedure § 12-3, at 210–11 (2d ed. 1995))). Notably, “it is axiomatic that the arguments of counsel are not evidence.” State v. Collins, 345 N.C. 170, 173, 478 S.E.2d 191, 193 (1996). Accordingly, “[m]emoranda of points and authorities as well as briefs and oral arguments . . . are not considered matters outside the pleading.” Privette, 96 N.C. App. at 132, 385 S.E.2d at 189 (second alteration in original) (quoting 5 Wright & Miller, Federal Practice and Procedure § 1366, at 682 (1969)). Finally, it is a “well[-]established principle that there is a presumption in favor of the regularity and validity of the proceedings in the lower court.” Phelps v. McCotter, 252 N.C. 66, 67, 112 S.E.2d 736, 737 (1960) (citing Durham v. Laird, 198 N.C. 695, 153 S.E. 261 (1930)).
¶ 13 Here the trial court‘s order stated that it considered the “arguments of parties and counsel for the parties and . . . reviewed the court file, pleading[ ], and memorand[a] of law submitted by both parties.” Nothing in the trial court‘s order indicates any additional documents were presented apart from the memoranda submitted by the parties. Defendants’ memorandum included the pleadings, a statute, and case law as exhibits, but it did not include any evidentiary materials. Plaintiff did not include any exhibits with his memorandum. Though plaintiff‘s counsel made several factual assertions in his memorandum and during the hearing, these statements by plaintiff‘s counsel were not evidence and thus are not matters outside the pleading. Accordingly, the trial court did not consider any matters outside the pleading.
¶ 14 Because the trial court‘s review was limited to the pleading, it did not convert the
REVERSED AND REMANDED.
BLUE V. BHIRO
2022-NCSC-45
IN THE SUPREME COURT OF NORTH CAROLINA
6 May 2022
Justice EARLS concurring in part and dissenting in part.
Justice EARLS concurring in part and dissenting in part.
¶ 15 I agree with the majority that the Court of Appeals erred in concluding that defendants’ motion to dismiss had been or needed to be converted into a
¶ 17 As we explained in Carroll, there are multiple prudential factors that counsel in favor of fully resolving an appeal when it comes before this Court:
In the present case, the trial court‘s erroneous articulation and application of the de novo standard of review in no way interferes with our ability to assess how that standard should have been applied to the particular facts of this case. Moreover, the status of [the plaintiff‘s] employment and salary has remained unsettled during the past six years of ongoing litigation. Thus, in the interests of judicial economy and fairness to the parties, we proceed to consider the substantive issues on appeal.
358 N.C. at 665. While it is also certainly within this Court‘s discretion to decide to remand the case for the Court of Appeals to resolve remaining legal issues in these circumstances, we should explain why we are choosing to remand this case rather than reach outstanding legal issues by reference to neutral principles, and we should consistently apply those principles in considering whether a remand is necessary in this case and in future cases. In addition to the prudential factors noted in Carroll, such neutral and consistent principles might include the length of time the case has been pending to date, the extent to which any party is prejudiced by further delay, whether deciding the issue will result in a final disposition of the case, whether the parties have had the opportunity to fully brief the remaining issues, and whether the issue requires the routine application of well-established law such that remand would likely result in a quick resolution unlikely to engender further appeal, as opposed to an issue of first impression for this Court such that immediate guidance from this Court will be useful and more expeditious than multiple appeals.
¶ 18 In this case, although the majority in the Court of Appeals did not reach the two outstanding questions presented in Mr. Blue‘s appeal, the dissent did. And as the dissent and the parties’ briefs make clear, the legal question the Court of Appeals will need to reach on remand is not one this Court has previously addressed. In particular, answering the question of whether Mr. Blue‘s complaint is time-barred will involve interpreting how the continuing course of treatment exception to the three-year statute of limitations for personal injury claims applies to care provided by a primary care physician. This Court recognized the continuing course of treatment exception for the first time in Horton v. Carolina Medicorp, Inc., 344 N.C. 133 (1996). We have not revisited the doctrine since. There are numerous Court of Appeals opinions interpreting the doctrine in ways that are arguably internally contradictory. Compare Whitaker v. Akers, 137 N.C. App. 274, 277–78 (2000) (concluding that the doctrine applies when a physician continues a particular course of treatment over a period of time, so long as the doctor continues to fail to diagnose and to treat the condition), with Glover v. Charlotte-Mecklenburg Hosp. Auth., 261 N.C. App. 345, 355–56 (2018) (concluding that the plaintiff need not show the treatment rendered subsequent to the original negligent act was also negligent), writ denied, review denied, 372 N.C. 299 (2019). Accordingly, it appears that the chances of this case coming
¶ 19 Nor is the cost to the parties trivial, both financially and otherwise. Mr. Blue filed his complaint almost three years ago. The remaining questions before us have already been briefed and argued at least twice. If Mr. Blue prevails in the appellate process and his claim is not time-barred, his case will be remanded to the trial court for further proceedings. As a litigant with a serious life-threatening illness, justice delayed may be justice denied in this case. Here, an unnecessarily prolonged appellate process is inconsistent with the prompt and efficient administration of justice, an aim to which we all and always aspire. By contrast, these factors and considerations were not present in the case relied upon by the majority, Wilkie v. City of Boiling Spring Lakes, 370 N.C. 540 (2018). In Wilkie, the issues not decided by this Court were not briefed in the first place because this Court denied discretionary review specifically as to those issues. See Special Order, Wilkie v. City of Boiling Spring Lakes, No. 44PA17 (N.C. May 3, 2017). Nor did those remaining issues implicate any novel or particularly complex legal principles: the ultimate question was whether property owners would be compensated by the government for flood damage to their home. Wilkie, 370 N.C. at 540. While Wilkie confirms the indisputable notion that this Court possesses the authority to remand cases to the Court of Appeals to decide purely legal issues in the first instance, Wilkie does nothing to demonstrate why doing so is necessary or appropriate in this case.
¶ 20 Under the circumstances of this case, jurisprudential and administrative reasons justify proceeding to resolve the two remaining outstanding issues, which were both addressed by the dissent below, briefed by the parties, and are thus properly before us. Therefore, I respectfully concur in part and dissent in part.