Hill v Bosch, (03-650) 05/18/2004

Appeal by defendants from order entered 25 February 2003 by Judge Knox V. Jenkins, Jr., in Johnston County Superior Court. Heard in the Court of Appeals 4 February 2004.

Armstrong & Armstrong, P.A., by L. Lamar Armstrong, Jr., for plaintiff appellee.

Patterson, Dilthey, Clay, Bryson & Anderson, L.L.P., by Robert M. Clay and Charles George, for defendant appellants.

    McCULLOUGH, Judge.

    Defendants appeal an order which denied their motion to reinstate plaintiff's demand for a jury trial. The underlying facts are: On 28 January 2002, plaintiff filed a medical negligence action against Dr. Gerald Vanden Bosch, a physician who performed carpel tunnel surgery and follow-up treatment. After the complaint was filed in Johnston County, plaintiff sent interrogatories and requests for production of documents via certified mail to Dr. Vanden Bosch at the offices of Wilson Orthopaedic Surgery and Neurology Center, P.A. (Wilson Orthopaedic). On 1 February 2002, the practice manager at Wilson Orthopaedic, Sharon Sholar, faxed a copy of the summons, complaint, interrogatories, and request for production of documents to the practice's insurance agent. On 18 February 2002, Sholar mailed plaintiff's attorney a two-page response. The first page consisted of typed answers to the interrogatories, and the second page was a copy of Dr. Vanden Bosch's curriculum vitae. Neither document was signed, but the answers to the interrogatories appeared on Wilson Orthopaedic letterhead.
    On 4 March 2002, plaintiff filed a motion for entry of default which the clerk granted that same day. On 18 April 2002, plaintiff filed a withdrawal of jury trial. Plaintiff then filed a motion for default judgment on 14 August 2002.
    Defendants filed a motion to set aside the clerk's entry of default on 23 August 2002. On that same day, defendants filed motions to dismiss and answer. Plaintiff responded by filing a motion to strike defendants' answer.
    A hearing was held on 5 September 2002, and the trial judge entered an order denying defendants' motion to set aside the entry of default and granting plaintiff's motion to strike defendants' answer. On 12 February 2003, defendants filed a motion to reinstate plaintiff's demand for a trial by jury. That motion was denied, and the trial court held that plaintiff could withdraw her demand for a jury trial.
    Defendants appeal. On appeal, defendants argue that the trial court erred by denying defendants' motion to reinstate plaintiff'sdemand for a jury trial. We agree and reverse the decision of the trial court.
    “A demand for trial by jury . . . may not be withdrawn without the consent of the parties who have pleaded or otherwise appear[ed] in the action.” N.C. Gen. Stat. § 1A-1, Rule 38(d) (2003). A plaintiff may withdraw his request for a jury trial without defendant's consent at any time before an answer is filed or before defendant makes an appearance in the case. Cabe v. Worley, 140 N.C. App. 250, 253, 536 S.E.2d 328, 330 (2000), disc. review denied, 353 N.C. 370, 547 S.E.2d 3 (2001). The sole issue for this appeal is whether defendant doctor's response to plaintiff's interrogatories and request for production of documents (on 18 February 2002) constituted an appearance that prevented plaintiff from later withdrawing her demand for a jury trial (on 18 April 2002).
    Generally, an appearance requires “some presentation or submission to the court.” Roland v. Motor Lines, 32 N.C. App. 288, 289, 231 S.E.2d 685, 687 (1977). However, “a defendant does not have to respond directly to a complaint in order for his actions to constitute an appearance.” Id. A defendant makes an appearance when he “takes, seeks, or agrees to some step in the proceedings that is beneficial to himself or detrimental to the plaintiff.” Id.
    After reviewing the record, we conclude that Dr. Vanden Bosch made an appearance by taking or seeking some step in the proceedings. First, there is no question that discovery is animportant part of civil litigation. A party who issues a response to a discovery request is taking or seeking a step in the proceedings by acknowledging the lawsuit and participating in an exchange of information with his adversary.
    We also believe that this discovery response was beneficial because it allowed the doctor to begin to craft his defense. For example, the first interrogatory asked about prior complaints. Through his answers, the doctor was able to show that he had only been sued twice. One of those cases was settled out of court; the other had been dismissed before trial. Thus, through his answers, the doctor indicated that he did not have a long history of medical negligence lawsuits. Similarly, the information provided in the second interrogatory and the curriculum vitae addressed the doctor's education and experience, factors that could bolster his credibility at trial.
    Plaintiff and the trial court seem to be concerned with the fact that the doctor's signature does not appear on the documents. However, the authenticity of this discovery response is not in question. “Dr. Vanden Bosch gave his typewritten answers to interrogatories to Ms. Sholar[,]” and his answers appear on Wilson Orthopaedic letterhead. More importantly, North Carolina courts have never indicated that a signed document is a prerequisite to making an appearance. In Stanaland v. Stanaland, 89 N.C. App. 111, 365 S.E.2d 170 (1988), the defendant, after being served but without making a responsive pleading, agreed to attend meetings with the plaintiff and the plaintiff's attorney in order to discussissues pertinent to the pending case. The Court decided that this was an appearance. Id. This case reveals that the standard for making an appearance is less rigorous than the standard for compliance with discovery rules in general. If it is possible to make an appearance by simply meeting with your adversary's attorney, then the defendant's actions in this case would also suffice.
    In a few key respects, the case at bar differs from Howard, Stallings, From & Hutson, P.A. v. Douglas, 143 N.C. App. 122, 545 S.E.2d 470, rev'd per curiam, 354 N.C. 346, 553 S.E.2d 680 (2001). In Douglas, our Supreme Court adopted the reasoning of the dissent written by Judge Timmons-Goodson. There, we considered whether a letter that was sent by the defendant's attorney after the plaintiff filed its complaint, but prior to the service of the complaint, constituted an appearance. Id. at 125, 545 S.E.2d at 472. The dissent concluded that the letter was not an appearance for two reasons. First, the record did not contain a copy of the letter at issue in the case. Id. at 128, 545 S.E.2d at 474. Thus, we were not able to view the documents before making a decision. Id. Second, the defendant was probably not aware of the lawsuit since the letter was sent before defendant received a copy of the summons and complaint. Id. at 126, 545 S.E.2d at 473.
    The case at bar is distinguishable from Douglas because neither of the concerns mentioned in that case are present here. First, the record in this case contains a copy of the items in question. Therefore, unlike the panel in Douglas, we had theopportunity to examine the documents before making our decision. More importantly, defendants in the present case were aware of the pending lawsuit because Dr. Vanden Bosch sent his answers after receiving plaintiff's interrogatories. The logical inference is that the doctor could not have supplied answers to interrogatories without realizing that a lawsuit was pending. We conclude the trial court's reliance on Douglas is misguided because the result in Douglas does not control the outcome of this case.
    Finally, we note that defendants in other cases made appearances by doing less than what the doctor in this case did. For example, this Court considered a case in which a summons was sent to a man who was believed to be the defendant's service agent. Taylor v. Triangle Porsche-Audi, Inc., 27 N.C. App. 711, 712, 220 S.E.2d 806, 808 (1975), cert. denied, 289 N.C. 619, 223 S.E.2d 396 (1976). In response, the man sent a letter to the clerk indicating that he was no longer defendant's service agent. Id. We held that this constituted an appearance. Id. at 715, 220 S.E.2d at 810. This case reveals how liberal our courts have been in determining whether a party has made an appearance. In Taylor, a simple letter from a former service agent which indicated that he was no longer defendant's service agent constituted an appearance. Here, the doctor did much more. He wrote typewritten answers to interrogatories on company letterhead, produced a copy of his curriculum vitae, and gave the documents to his current representative.     We believe that the doctor's actions in answering interrogatories and responding to plaintiff's request for the production of documents constitutes an appearance. Therefore, plaintiff's demand for a jury trial could not be withdrawn without the doctor's consent, and the trial court erred by denying the motion to reinstate plaintiff's demand for a jury trial. The decision of the trial court is
    Reversed and remanded.
    Judges HUNTER and LEVINSON concur.
    Report Per Rule 30(e).

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