MATTHEW J. SPENCER, Administrator,
Plaintiff,
v
.
ALBEMARLE HOSPITAL, et al.,
Defendants.
Rose & Harrison, by Dennis C. Rose, for plaintiff appellant.
Harris, Creech, Ward and Blackerby, P.A., by Thomas E. Harris
and W. Gregory Merritt, for defendant appellees William D.
Russell, M.D. and Albemarle Radiology, Ltd.
Timothy P. Lehan for defendant appellees Albemarle Hospital,
Philip D. Bagby and Ann Trainer.
TIMMONS-GOODSON, Judge.
Matthew 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 plaintiff's claims against Albemarle Hospital, Philip D.
Bagby, William Russell, M.D., Albemarle Radiology, Ltd., Sarah
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 complaint in Pasquotank Superior
Court alleging claims for medical malpractice, personal injury andpunitive damages arising from decedent's death. On 23 July 2001,
plaintiff filed a petition requesting approval of a confidential
settlement between plaintiff and two of the named defendants, Sarah
Hudson, M.D., and 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 approval of
the settlement came for hearing before the trial court, the
Honorable W. Douglas Albright presiding. Neither counsel for
plaintiff nor counsel 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 are 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 sealed and he wanted the Court
to open it. I was under the impression that
[plaintiff's 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 plaintiff'sclaims against those defendants not included in the settlement
approved by Judge Tillett for failure to prosecute.
On 30 October 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 a 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 motion “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 appeals 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 before 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 plaintiff'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 order 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 specifies, 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 to 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 three 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 “manifest[s] an intent to thwart the progress of [the]
action” or “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 three
factors: “(1) whether the plaintiff acted in a manner which
deliberately or unreasonably delayed the matter; (2) the amount of
prejudice, if any, 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 plaintiff's case for failure to
prosecute because there were insufficient findings to support thetrial court's conclusion that dismissal was warranted. See id.
Similarly, in the instant case, the trial court made no findings
regarding plaintiff's 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 court
considered lesser sanctions before dismissing plaintiff's case.
See Page v. Mandel, __ N.C. App. __, 571 S.E.2d 635, 640 (2002)
(vacating the dismissal of the plaintiff's case where the trial
court did not indicate that 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 calendared 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 condone a
litigant's failure to appear due to mere ignorance arising from a
lack of diligence, there is no evidence here that plaintiff 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 thandismissal 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 most
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.
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