An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA04-1402


Filed: 6 September 2005

Individually and as
Administrator of the
STENGER, by his Guardian

v .                             Mecklenburg County
                                No. 00 CVS 14707

Ph.D., acting through DRS.
& GALUP, P.A., a North
Carolina Corporation,
Professional Limited Liability
Company, Organized under the law
of North Carolina, SOUTHEAST
a North Carolina Corporation,
FOUNDATION, INC., formerly named

    Appeal by plaintiffs from judgment entered 11 May 2001 by Judge Timothy L. Patti in Mecklenburg County Superior Court. Heard in the Court of Appeals 14 June 2005.

    Karen Zaman & Associates, by Karen Zaman for plaintiffs- appellants.

    Shumaker Loop & Kendrick, L.L.P., by Scott M. Stevenson and Kathleen K. Lucchesi for defendant-appellee Carolinas Healthcare Foundation, Inc.
    Cranfill, Sumner & Hartzog, L.L.P., by David H. Batten and Jaye E. Bingham for defendants-appellee
s Southeast Anesthesiology Consultants, P.A. and Southeast Pain Management Services, P.L.L.C.

    LEVINSON, Judge.

    Plaintiffs appeal from judgment entered 11 May 2001 dismissing their medical malpractice claims against defendants for the wrongful death of Lori B. Stenger.   (See footnote 1)  We reverse.
    On 22 September 1998, Lori B. Stenger was admitted to Carolinas Medical Center for surgery to replace her temporo- mandibular joint. The surgery was successfully completed during the afternoon of 22 September 1998. Following the surgery, Mrs. Stenger was administered pain medications through a pump to the temporo-mandibular joint. On the morning of 24 September 1998 at 4:15 a.m., while still in the hospital, Mrs. Stenger was found unresponsive and with no blood pressure. By 5:06 a.m. Mrs. Stenger had no brain activity; she was subsequently removed from life support and died.
    On 21 September 2000, Judge Shirley Fulton entered an order, pursuant to N.C. Gen. Stat. § 1A-1, Rule 9(j), extending the statute of limitations until 19 January 2001 for plaintiffs to file medical malpractice claims. In the caption of the motion and order, the following parties were named as defendants: Daniel B. Spagnoli, D.D.S., Ph.D.; Todd Edward Crowley, D.D.S.; C. Drummond,M.D.; and Harley S. Gellar, M.D. The order provided that “the . . . limitations applicable to the complainant(s)' cause of action is extended to and including [19 January 2001].”
    On 19 January 2001, plaintiffs filed a complaint for medical malpractice against numerous defendants, including Southeast Pain Care, Southeast Anesthesiology Consultants, P.A., and Charlotte Mecklenburg Hospital Authority.
    In March 2001, defendants Charlotte Mecklenburg Hospital Authority, d/b/a Carolinas Medical Center, and Southeast Anesthesiology Consultants, P.A., filed motions pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) to dismiss plaintiffs' claims for failure to state claims upon which relief might be granted. These defendants contended that plaintiffs' claims were barred by the expiration of the statute of limitations because the Rule 9(j) order did not identify them as party-defendants. Southeast Pain Management Services, P.L.L.C. also asserted, as a part of its March 2001 motion to dismiss, insufficiency of process pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(4), and insufficiency of service of process pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(5).
    On 23 March 2001, prior to the filing of any responsive pleadings, plaintiffs filed an amended complaint. This amended complaint replaced defendant “Southeast Pain Care” with “Southeast Pain Management Services, P.L.L.C.”, and, similarly, “Charlotte Mecklenburg Hospital Authority” with “The Carolinas Healthcare Foundation, Inc.”
    On 25 April 2001, defendants Southeast Anesthesiology Consultants, P.A. and Southeast Pain Management Services, P.L.L.C. reasserted, and sought rulings on, the March 2001 motions to dismiss discussed above. By order entered 11 May 2001, the trial court granted the Rule 12(b)(6) motions as to all of plaintiffs' claims against the following parties, on the grounds that they were barred by the statute of limitations: Charlotte-Mecklenburg Hospital Authority, a North Carolina Corporation d/b/a Carolinas Medical Center; The Carolinas Healthcare Foundation, Inc.; Southeast Pain Care, a Division of Charlotte Mecklenburg Hospital Authority; Southeast Anesthesiology Consultants, P.A.; and Southeast Pain Management Services, P.L.L.C.
    On appeal, plaintiffs argue that the trial court erred in granting defendants' Rule 12(b)(6) motions to dismiss. Plaintiffs contend that the Rule 9(j) order granting the extension of time tolled the statute for their claims against all parties, whether identified in the Rule 9(j) motion and order or not. We agree.
    “When considering a 12(b)(6) motion to dismiss, the trial court need only look to the face of the complaint to determine whether it reveals an insurmountable bar to plaintiff's recovery.” Locus v. Fayetteville State University, 102 N.C. App. 522, 527, 402 S.E.2d 862, 866 (1991) (citing Hawkins v. Webster, 78 N.C. App. 589, 337 S.E.2d 682 (1985)). “In deciding such a motion the trial court is to treat the allegations of the pleading it challenges as true.” Hawkins, 78 N.C. App. at 591, 337 S.E.2d at 683 (citation omitted). “'A statute of limitations can be the basis fordismissal on a Rule 12(b)(6) motion if the face of the complaint discloses that plaintiff's claim is so barred.'” Reunion Land Co. v. Village of Marvin, 129 N.C. App. 249, 250, 497 S.E.2d 446, 447 (1998) (quoting Long v. Fink, 80 N.C. App. 482, 484, 342 S.E.2d 557, 559 (1986)). “We review de novo the grant of a motion to dismiss.” Lea v. Grier, 156 N.C. App. 503, 507, 577 S.E.2d 411, 414 (2003) (citation omitted).
    The version of Rule 9(j) of the North Carolina Rules of Civil Procedure applicable to this matter provided, in pertinent part:
        Upon motion by the complainant prior to the expiration of the applicable statute of limitations, a resident judge of the superior court of the county in which the cause of action arose may allow a motion to extend the statute of limitations for a period not to exceed 120 days to file a complaint in a medical malpractice action in order to comply with this Rule, upon a determination that good cause exists for the granting of the motion and that the ends of justice would be served by an extension. . . .
N.C. Gen. Stat. § 1A-1, Rule 9(j)(1999).
    According to this Court's analysis of Rule 9(j) in Webb v. Nash Hosp., Inc., 133 N.C. App. 636, 516 S.E.2d 191 (1999), it is not necessary for a plaintiff to either name all defendants in a motion for extension of time, or serve any defendant with notice of the extension. Id. at 639, 516 S.E.2d at 193. In Webb, this Court stated:
        Defendants argue that by not naming all of the parties in the motion to extend the time for filing the complaint and not serving any of them with notice of the time extension, their due process right to notice was violated. We disagree.
Id. Following Webb, in Stewart v. Southeastern Reg'l Med. Ctr., 142 N.C. App. 456, 543 S.E.2d 517 (2001), this Court held “where there are multiple defendants, a single motion filed in the county where the cause of action first arose will be effective to extend the statute of limitations against all defendants ultimately named in the action.” Id. at 462, 543 S.E.2d at 520-21. This Court in Stewart also held that “parties seeking a Rule 9(j) extension must neither name nor serve notice upon potential defendants.” Id. at 463, 543 S.E.2d at 521.
    Webb and Stewart control the outcome of the present appeal. By the trial court's order of 21 September 2000, the statute of limitations for the filing of plaintiffs' medical malpractice action was extended as to all prospective defendants, whether they were named in the motion and order for extension or not. The trial court erred in granting defendants' motions to dismiss pursuant to Rule 12(b)(6), and the 11 May 2001 order must therefore be reversed on this basis.
    Defendant Southeast Pain Management Services, P.L.L.C. also argues that, by allowing the claims against it to proceed, plaintiffs have been impermissibly permitted to substitute it as a new party outside the limitations period. However, in its 11 May 2001 order, the trial court expressly reserved this issue. Consequently, we do not address Southeast Pain Management Services, P.L.L.C.'s Rule 12(b)(4) and Rule 12(b)(5) motions. See N.C.R. App. P., Rule 10(b)(1) (“In order to preserve a question for appellate review, . . . [i]t is also necessary for the complainingparty to obtain a ruling upon the party's request, objection or motion. . . .”).
    Judges McGEE and HUNTER concur.
    Report per Rule 30(e).

Footnote: 1
     Defendants Daniel B. Spagnoli, D.D.S., Ph.D. and Drs. Spagnoli, Tucker, Crowley & Gallup, P.A. are no longer parties to this case.

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