Spencer v. Albemarle Hospital, 156 N.C. App. 675

TIMMONS-GOODSON, Judge.

Mаtthew J. Spencer (“plaintiff’), in his capacity as administrator and personal representative for the estate of Erica Shanae Young (“decedent”), appeals from an order of the trial court dismissing plaintiffs claims against Albemarle Hospital, Philip D. Bagby, William Russell, M.D., Albemarle Radiology, Ltd., Sаrah Hudson, M.D., CMG of North Carolina, Inc., and Ann Trainer (collectively, “defendants”) for failure to prosecute. For the reasons stated herein, we reverse the order of the trial court.

The relevant facts of the present appeal are as follows: On 20 March 2000, plaintiff filed a complаint in Pasquotank Superior Court alleging claims for medical malpractice, personal injury and punitive damages arising from decedent’s death. On 23 July 2001, рlaintiff filed a petition requesting approval of a confidential settlement between plaintiff and two of the named defendants, Sarah Hudson, M.D., аnd CMG of North Carolina, Inc. The Honorable Jerry Tillett, Superior Court Judge, heard the matter on 17 September 2001 and approved the settlement agreement. The following day, counsel for plaintiff sent Judge Tilett’s order approving the confidential settlement to the clerk of the Superior Court of Pasquotank County for filing.

On 29 October 2001, despite the fact that plaintiff’s petition had already been heard and decided, the petition for apрroval of the settlement came for hearing before the trial court, the Honorable W. Douglas Albright presiding. Neither counsel, for plaintiff nor cоunsel for defendants were present in the courtroom. At the hearing, the following colloquy occurred:

The Court: All right. We have got two (2) matters that arе marked for settlement. Spencer against the hospital. Is this just for Court approval of the settlement?

The Clerk: It’s my understanding that the settlement is sealеd and he wanted the Court to ‍‌​‌​‌‌‌​​‌‌‌‌​​‌​‌​‌​‌‌‌​‌‌‌‌​‌‌‌‌‌​‌‌​​‌‌‌​​‌​​‍open it. I was under the impression that [plaintiffs counsel] was going to be here today.

The Court: All right. Call out Spencer.

The Bailiff: Oh, yes. Oh, yes. Oh, yes. Matthew Spencer, Matthew Spencer, Matthew Spencer, come into court and prosecute your case or it may be dismissed.

The Court: All right. Dismiss it for failure to prosecute.

The court then entered an order dismissing all of plaintiffs claims against those defendants not included in the settlement approved by Judge Tillett for failure to prosecute.

On 30 Oсtober 2001, counsel for plaintiff sent a letter to Judge Albright, explaining that he was unaware that the petition to approve the settlement had been calendared for the previous day, particularly as the petition had already been heard and ruled upon. Plaintiff thereafter filed а motion pursuant to Rule 60 for relief from the trial court’s order dismissing plaintiff’s claims, which was heard by Judge Tillett on 10 December 2001. Noting that plaintiff had filed a notice of appeal from the order dismissing his claims and that the court therefore had limited jurisdiction over the matter, Judge Tillett entertained plaintiff’s mоtion “for the limited purpose of indicating how [the trial court] would be inclined to rule on Plaintiff’s motion were the appeal not pending.” To that extent, Judge Tillett granted plaintiff relief from the order dismissing his claims. Judge Tillett’s order granting plaintiff relief is not before us for review, however.

Plaintiff appeаls from the 31 October 2001 order ‍‌​‌​‌‌‌​​‌‌‌‌​​‌​‌​‌​‌‌‌​‌‌‌‌​‌‌‌‌‌​‌‌​​‌‌‌​​‌​​‍dismissing his claims for failure to prosecute.

Plaintiff contends that the trial court erred by (1) failing to consider lesser sanctions bеfore dismissing plaintiff’s case; and (2) abused its discretion in dismissing the case. For the reasons stated herein, we conclude that the trial court erred in dismissing plаintiff’s case for failure to prosecute, and we therefore reverse the 31 October 2001 order of the trial court.

Rule 41(b) of the North Carolina Rules of Civil Procedure provides, in pertinent part, as follows:

For failure of the plaintiff to prosecute or to comply with these rules or any оrder of court, a defendant may move for dismissal of an action or of any claim therein against him. . . . Unless the court in its order for dismissal otherwise spеcifies, a dismissal under this section and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure tо join a necessary party, operates as an adjudication upon the merits.

N.C. Gen. Stat. § 1A-1, Rule 41(b) (2001). Under Rule 41(b), a claim may be dismissed for one of threе reasons: failure to comply with the rules, failure to comply with a court order, or failure to prosecute. See id.; Wilder v. Wilder, 146 N.C. App. 574, 575, 553 S.E.2d 425, 426 (2001). Where failure to prosecute is alleged, a trial court may enter sanctions only where the plaintiff or his ‍‌​‌​‌‌‌​​‌‌‌‌​​‌​‌​‌​‌‌‌​‌‌‌‌​‌‌‌‌‌​‌‌​​‌‌‌​​‌​​‍attorney “manifestfs] an intent to thwart the progress of [the] action” оr “engage [s] in some delaying tactic.” Foy v. Hunter, 106 N.C. App. 614, 619, 418 S.E.2d 299, 303 (1992).

Before a case may be dismissed under Rule 41(b) for failure to prosecute, the trial judge must address the following thrеe factors: “(1) whether the plaintiff acted in a manner which deliberately or unreasonably delayed the matter; (2) the amount of prejudice, if аny, to the defendant; and (3) the reason, if one exists, that sanctions short of dismissal would not suffice.” Wilder, 146 N.C. App. at 578, 553 S.E.2d at 428. In Wilder, this Court reversed dismissal of the plaintiffs case for failure tо prosecute because there were insufficient findings to support the trial court’s conclusion that dismissal was warranted. See id. Similarly, in the instant case, thе trial court made no findings regarding plaintiffs failure to prosecute, other than a recital in the order that plaintiff failed to appear for the hearing and that “such failure was completely unexcused and without leave by the court.” There is no indication in the record that the trial cоurt considered lesser sanctions before dismissing plaintiffs case. See Page v. Mandel, 154 N.C. App. 94, 571 S.E.2d 635, 640 (2002) (vacating the dismissal of the plaintiffs case where the trial court did not indicate thаt it considered lesser sanctions). There is moreover no evidence in the record that plaintiff “manifested an intent to thwart the progress of the action to its conclusion” or “failed to progress the action toward its conclusion” by engaging in some delaying tactic. Rather, all of the evidence indicates that plaintiff was unaware that the petition for approval of the confidential settlement had been calendаred for the 29 October hearing, and that, in fact, the petition had already been heard and approved by the trial court. Although we do not cоndone a litigant’s failure to appear due to mere ignorance arising from a lack of diligence, there is no evidence here that рlaintiff failed to pursue his case in a diligent and responsible manner. Nor is there any evidence of prejudice to defendants, particularly as defendants were equally ‍‌​‌​‌‌‌​​‌‌‌‌​​‌​‌​‌​‌‌‌​‌‌‌‌​‌‌‌‌‌​‌‌​​‌‌‌​​‌​​‍unaware of the 29 October hearing and, like plaintiff, did not appear.

Courts are primarily concerned with the consideration and resolution of cases according to their merits, rather than dismissal for mere procedural violations. See Wilder, 146 N.C. App. at 576, 553 S.E.2d at 427; Jones v. Stone, 52 N.C. App. 502, 505, 279 S.E.2d 13, 15, disc. rev. denied, 304 N.C. 195, 285 S.E.2d 99 (1981). An involuntary dismissal under Rule 41(b) “is the mоst severe sanction available to the court in a civil case.” Wilder, 146 N.C. App. at 576, 553 S.E.2d at 427. Claims should be involuntarily dismissed only when lesser sanctions are not appropriate to remedy the procedural violation. See Harris v. Maready, 311 N.C. 536, 551, 319 S.E.2d 912, 922 (1984); Daniels v. Montgomery Mut. Ins. Co., 81 N.C. App. 600, 604, 344 S.E.2d 847, 849 (1986).

Because there is no evidence in the present case to support the trial court’s determination that sanctions against plaintiff were warranted, we hold that dismissal of plaintiff’s case was improper. See Green v. Eure, Secretary of State, 18 N.C. App. 671, 672-73, 197 S.E.2d 599, 601 (1973) (holding that the trial court erred in dismissing plaintiff’s ‍‌​‌​‌‌‌​​‌‌‌‌​​‌​‌​‌​‌‌‌​‌‌‌‌​‌‌‌‌‌​‌‌​​‌‌‌​​‌​​‍action for failure to prosecute). The order of the trial court is hereby

Reversed.

Judges WYNN and HUDSON concur.

Case Details

Case Name: Spencer v. Albemarle Hospital

Court Name: Court of Appeals of North Carolina

Date Published: Mar 18, 2003

Citations: 156 N.C. App. 675; 577 S.E.2d 151; 2003 N.C. App. LEXIS 201; No. COA02-505

Docket Number: No. COA02-505

Court Abbreviation: N.C. Ct. App.