Judges; Medical Malpractice--Rule 9(j) certification--erroneous grant of relief from
another superior court judge's order--Rule 60(b)
A superior court judge lacked authority in a negligent medical treatment case to grant
relief from another superior court judge's order that denied defendants' motion to dismiss
plaintiff's claim for failure to comply with N.C.G.S. § 1A-1, Rule 9(j), because: (1) N.C.G.S. §
1A-1, Rule 60(b) has no application to interlocutory judgments, orders, or proceedings from the
trial court; (2) the first judge's order denying defendants' motion to dismiss was an interlocutory
order, and therefore, the second judge lacked the authority to grant relief form it under Rule
60(b); and (3) even assuming arguendo that the second judge did have the authority to grant
relief from the first judge's interlocutory order, she erred by concluding that the revival of Rule
9(j) by a Supreme Court decision necessitated the dismissal of plaintiff's action when plaintiff's
action proceeded as if the Rules of Civil Procedure existed without Rule 9(j) after the Court of
Appeals had ruled it unconstitutional and the Supreme Court had not yet reversed that decision,
and plaintiff could not subsequently be faulted for failing to comply with its certification
requirement.
The Law Offices of William S. Britt, by William S. Britt, for
plaintiff appellant.
Patterson, Dilthey, Clay, Bryson & Anderson, L.L.P., by Mark
E. Anderson and Katherine E. Downing, for defendant appellees.
McCULLOUGH, Judge.
In the order now on appeal, the superior court granted relief
from a previous denial of defendants' motion to dismiss and
dismissed plaintiff's complaint for failure to comply with N.C.
Gen. Stat. § 1A-1, Rule 9(j) (2004). We reverse.
On 21 December 2001, plaintiff filed an action against
defendants for allegedly negligent medical treatment. Plaintiff'ssuit was initiated after a panel of this Court filed a 2 October
2001 decision, which held that N.C. Gen. Stat. § 1A-1, Rule 9(j)
was unconstitutional. The North Carolina Supreme Court filed a 22
November 2002 decision vacating this holding. Anderson v. Assimos,
146 N.C. App. 339, 343-50, 553 S.E.2d 63, 67-69 (2001), vacated in
part and appeal dismissed, 356 N.C. 415, 417, 572 S.E.2d 101, 103
(2002). No stay of this Court's decision was pending at the time
plaintiff filed his action. Accordingly, plaintiff's complaint did
not contain the certification required by N.C. Gen. Stat. § 1A-1,
Rule 9(j) that, inter alia, his claims had been reviewed by an
expert who was willing to testify that plaintiff's medical
treatment did not comply with the applicable standard of care.
The statute of limitations for plaintiff's suit expired on 3
December 2001; however, on that date, plaintiff received a 20-day
extension of time to file his complaint under N.C. Gen. Stat. § 1A-
1, Rule 3. Plaintiff never requested the 120-day extension of time
permitted by Rule 9(j) for the purpose of complying with the rule's
certification requirement.
On 2 January 2002, plaintiff filed an amended complaint,
pursuant to N.C. Gen. Stat. § 1A-1, Rule 15, in which he contended
that he was not required to comply with Rule 9(j); however, he
asserted
[o]ut of an abundance of precaution, and
without waiving any objections, . . . that the
care and treatment of [him] by [d]efendants
[had] been reviewed by physicians who [were]
willing to testify that the care and treatment
. . . breached the appropriate standards of
care, and that such experts [were] expected toqualify under Rule 702 of the North Carolina
Rules of [Evidence].
As of the filing of plaintiff's amended complaint, the Supreme
Court had neither stayed nor vacated this Court's constitutional
discussion in Anderson v. Assimos, 146 N.C. App. 339, 553 S.E.2d
63.
On 21 February 2002, defendants filed a motion to dismiss in
which they argued that plaintiff's claims against them were time
barred because the 21 December 2001 complaint failed to contain a
Rule 9(j) certification, and the complaint was not amended to
contain such a certification until after the expiration of the
20-day extension of time granted to plaintiff for the filing of his
lawsuit, which expired on 24 December 2001. After consulting with
the Institute of Government, Judge Robert F. Floyd, Jr., determined
that the Supreme Court had not stayed this Court's decision in
Anderson v. Assimos, and that, therefore, Rule 9(j) remained void
and unconstitutional. Accordingly, in an order entered 5 July
2002, Judge Floyd ruled that “[p]laintiff was entitled to file an
Amended Complaint . . . and have it relate back to the original
filing, pursuant to [N.C. Gen. Stat. § 1A-1, Rule 15(a), (c)],” and
he denied defendants' motion to dismiss. Defendants' appeal from
this order was dismissed as interlocutory on 22 November 2002.
On 2 April 2004, after the Supreme Court had vacated this
Court's constitutional analysis in Anderson, defendants filed a
motion for relief from Judge Floyd's order pursuant to N.C. Gen.
Stat. § 1A-1, Rule 60(b)(5) and (6). In an order entered 4 May2004, Judge Ola M. Lewis concluded that plaintiff's original
complaint was defective under Rule 9(j)'s revived certification
requirement and that the amended complaint did not relate back. She
granted defendants' motion for relief from Judge Floyd's order, and
dismissed plaintiff's complaint with prejudice. Plaintiff now
appeals.
In his first argument on appeal, plaintiff contends that Judge
Lewis lacked authority to grant relief from Judge Floyd's order.
We agree.
N.C. Gen. Stat. § 1A-1, Rule 60(b) (2004) provides, in
pertinent part, that
[o]n motion and upon such terms as are just,
the [trial] court may relieve a party . . .
from a final judgment, order, or proceeding
for the following reasons:
. . . .
(5) The judgment has been satisfied, released,
or discharged, or a prior judgment upon which
it is based has been reversed or otherwise
vacated, or it is no longer equitable that the
judgment should have prospective application;
or
(6) Any other reason justifying relief from
the operation of the judgment.
(Emphasis added.) “Rule 60(b) . . . has no application to
interlocutory judgments, orders, or proceedings of the trial court.
It only applies, by its express terms, to final judgments.” Sink
v. Easter, 288 N.C. 183, 196, 217 S.E.2d 532, 540 (1975) (citation
omitted); see also Pratt v. Staton, 147 N.C. App. 771, 775, 556
S.E.2d 621, 624 (2001). In the instant case, Judge Floyd's order denying defendants'
motion to dismiss was an interlocutory order. Therefore, Judge
Lewis lacked the authority to grant relief from it under Rule
60(b). As such, Judge Lewis' order must be reversed.
We note that, even assuming arguendo that Judge Lewis did have
the authority to grant relief from Judge Floyd's interlocutory
order, she erred by concluding that the revival of Rule 9(j)
necessitated the dismissal of plaintiff's action. When plaintiff
filed his original and amended complaints, this Court's decision in
Anderson v. Assimos had not been stayed or reversed by our Supreme
Court. Thus, plaintiff's action proceeded as if the Rules of Civil
Procedure existed without Rule 9(j), and plaintiff could not
subsequently be faulted for failing to comply with its
certification requirement. See MacDonald v. University of North
Carolina, 299 N.C. 457, 463, 263 S.E.2d 578, 581-82 (1980) (“When
the law has received a given construction by a court of last
resort, and contracts have been made and rights acquired under and
in accord with such construction, such contracts may not be
invalidated nor vested rights acquired under them impaired by a
change of construction made by a subsequent decision.”); Williamson
v. Rabon, 177 N.C. 303, 305, 98 S.E. 830, 831 (1919) (noting that
a case interpreting a statute “may become a precedent sufficiently
authoritative to protect rights acquired during its continuance”);
16A Am. Jur. 2d Constitutional Law § 205 (1998) (“Rights acquired
under the particular adjudications holding [a] statute [to be]
invalid are not affected by the subsequent decision that the
statute is constitutional.”). For the reasons set forth above, the trial court's 4 May 2004
order is
Reversed.
Judges HUNTER and LEVINSON concur.
*** Converted from WordPerfect ***