Preliminarily we address plaintiffs' motion for dismissal and
for sanctions. Plaintiff argues first that defendant's appeal
should be dismissed as interlocutory. We agree.
An order is either interlocutory or the final determination
of the rights of the parties. N.C. Gen. Stat. § 1A-1, Rule 54(a)
(2003). An interlocutory order is one made during the pendency of
an action, which does not dispose of the case, but leaves it for
further action by the trial court in order to settle and determine
the entire controversy. Veazey v. Durham
, 231 N.C. 354, 362, 57
S.E.2d 377, 381 (1950) (citations omitted). [A]n interlocutory
order is immediately appealable only under two circumstances. . .
. [One] situation in which an immediate appeal may be taken from an
interlocutory order is when the challenged order affects a
substantial right of the appellant that would be lost without
immediate review. Embler v. Embler
, 143 N.C. App. 162, 164, 545
S.E.2d 259, 261 (2001) (citation omitted); see
N.C. Gen. Stat. § 1-
277(a) (2003) (appeal may be taken from every judicial order . .
. which affects a substantial right); N.C. Gen. Stat. § 7A-
27(d)(1) (2003) (granting appeal of right from any interlocutory
order . . . [a]ffect[ing] a substantial right).
In the instant case, the parties agree that the order allowing
amendment of plaintiffs' complaint is interlocutory, and that the
dispositive issue is whether defendant's appeal implicates any
substantial right that will be lost without immediate review. The
appealability of interlocutory orders pursuant to the substantialright exception is determined by a two-step test. '[T]he right
itself must be substantial and the deprivation of that substantial
right must potentially work injury to plaintiff if not corrected
before appeal from final judgment.' Miller v. Swann Plantation
, 101 N.C. App. 394, 395, 399 S.E.2d 137, 138-39
(1991) (quoting Goldston v. American Motors Corp
., 326 N.C. 723,
726, 392 S.E.2d 735, 736 (1990)).
Defendant argues that, without immediate review, it will lose
the right to avoid trial altogether by (1) raising the statute of
limitations as an affirmative defense; (2) raising estoppel by
laches as an affirmative defense; or (3) having plaintiffs'
amended complaint dismissed for failure to comply with the pleading
requirements of N.C. Gen. Stat. § 1A-1, Rule 9(j) (2003). On this
basis, defendant contends that not one, but three substantial
rights will be lost absent immediate review. We disagree.
First, these are issues that are properly raised at the trial
level. A statute of limitations defense may properly be asserted
in a Rule 12(b)(6) motion to dismiss if it appears on the face of
the complaint that such a statute bars the claim. Horton v.
344 N.C. 133, 472 S.E.2d 778 (1996)
(citing Hargett v. Holland
, 337 N.C. 651, 653, 447 S.E.2d 784, 786
In addition, defendant's legal premise, that an amended
complaint must always be filed within the statute of limitations,
is unsound. Under N.C. Gen. Stat. § 1A-1, Rule 15(c) (2003), an
amended complaint is deemed to have been interposed at the timethe claim in the original pleading was interposed, unless the
original pleading does not give notice of the transactions,
occurrences, or series of transactions or occurrences, to be proved
pursuant to the amended pleading. The North Carolina Supreme
Court has held that relation back is not defeated by the statute of
We hold that the determination of whether a
claim asserted in an amended pleading relates
back does not hinge on whether a time
restriction is deemed a statute of limitation
or repose. Rather, the proper test is whether
the original pleading gave notice of the
transactions, occurrences, or series of
transactions or occurrences which formed the
basis of the amended pleading. If the
original pleading gave such notice, the claim
survives by relating back in time without
regard to whether the time restraint
attempting to cut its life short is a statute
of repose or limitation.
Pyco Supply Co. Inc. v. American Centennial Ins. Co
., 321 N.C. 435,
440-41, 364 S.E.2d 380, 383 (1988). Thus, even upon a proper
motion for dismissal in the trial court, the parties would need to
litigate the issue of whether the original complaint gave
sufficient notice of the transactions and occurrences alleged in
the amended complaint.
We also disagree with defendant's assertion that the only way
to challenge plaintiffs' purported failure to comply with Rule 9(j)
is by immediate appellate review of the court's order allowing
plaintiffs to file an amended complaint. Rule 9 provides that a
claim alleging medical malpractice shall be dismissed unless
certain requirements are met. A defendant's motion to dismiss
based on failure to comply with Rule 9(j) should be brought at thetrial level
. See Thigpen v. Ngo
, 355 N.C. 198, 199, 558 S.E.2d
162, 163 (2002) (upholding order of the trial court dismissing
plaintiff's complaint alleging medical malpractice because of
plaintiff's failure to comply with Rule 9(j)).
Estoppel also should be litigated at the trial level. Indeed,
N.C. Gen. Stat. § 1A-1, Rule 8 (2003) requires
defenses such as laches, estoppel, or the statute of limitations be
raised by answer or counterclaim:
The North Carolina Rules of Civil Procedure
require a party to affirmatively set forth any
matter constituting an avoidance or
affirmative defense, N.C. Gen. Stat. §§ 1A-1,
Rule 8(c) [(2005)], and our courts have held
the failure to do so creates a waiver of the
defense. Neither defendants' original nor
amended answer include an affirmative defense
of estoppel[.] . . . Defendants therefore
have waived this defense by failing to
affirmatively assert estoppel as to plaintiff.
HSI v. Diversified Fire
, 169 N.C. App. 767, 773, 611 S.E.2d 224,
228 (2005) (citing Robinson v. Powell
, 348 N.C. 562, 566, 500
S.E.2d 714, 717 (1998)).
N.C.R. App. P. 10(b)(1) provides in relevant part that to
preserve a question for appellate review, a party must have
presented to the trial court a timely request, objection or motion,
stating the specific grounds for the ruling the party desired the
court to make . . . . [and] obtain[ed] a ruling upon the party's
request, objection or motion.
We conclude that defendant's proposed substantial rights
consist of issues that defendant must raise at the trial level to
preserve for review. In the instant case, none of the issuesaddressed by defendant were brought before the trial court.
Consequently, defendant's appeal is not only
interlocutory in that
it is brought before final judgment has been entered, but also
attempts to obtain review of matters that defendant has not even
preserved for appellate review were we now reviewing a final
. We conclude that no substantial right will be lost by
failure to allow immediate review of the trial court's order
allowing plaintiffs to amend their complaint. Accordingly,
defendant's appeal must be dismissed.
Plaintiffs have also moved for imposition of sanctions against
defendant under N.C.R. App. P. Rule 34(a)(1), which provides in
pertinent part that this Court may impose sanctions
party or attorney or both when the court determines that an appeal
or any proceeding in an appeal was frivolous because . . . the
appeal was not well grounded in fact and warranted by existing law
or a good faith argument for the extension, modification, or
reversal of existing law[.]
Defendant appeals from an order that is clearly interlocutory,
and argues that immediate appeal is required to protect its
substantial right to raise the issues of estoppel, the statute of
limitations, and compliance with Rule 9(j). As discussed above,
these issues must be raised at the trial level, which defendant has
not done. Moreover, defendant argues that pretrial review is
necessary because otherwise it will lose forever the right to
avoid the expense and inconvenience of a trial. However,
avoidance of a trial is not a 'substantial right' that would makesuch an interlocutory order appealable under G.S. 1-277 or G.S.
7A-27(d). Howard v. Ocean Trail Convalescent Center
, 68 N.C. App.
494, 495, 315 S.E.2d 97, 99 (1984)
(citing Davis v. Mitchell
N.C. App. 272, 265 S.E. 2d 248 (1980)).
We conclude that defendant's appeal was neither based on
existing law, nor on a good faith argument for a change in the
existing law, and determine that sanctions pursuant to Rule 34
should be awarded. This Court does not frequently award sanctions
pursuant to Rule 34, but we conclude it is necessary and
appropriate to do so in this case. This appeal has needlessly
delayed a final resolution of this matter for all parties;
needlessly wasted the resources of this Court; and needlessly
created piecemeal appeals should defendant be later handed an
adverse final judgment from which it seeks appellate review.
The trial court shall determine the reasonable amount of
attorneys' fees incurred by plaintiffs in responding to this
appeal. The court shall require defendant to pay the same within
fifteen (15) days of the entry of its order.
Judges McCULLOUGH and ELMORE concur.
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