Appeal by plaintiffs from an order entered 6 February 2006 by
Judge James M. Webb in Moore County Superior Court. Heard in the
Court of Appeals 28 March 2007.
Troutman Sanders LLP, by Gary S. Parsons and Gavin B. Parsons;
Crisp, Page & Currin, L.L.P., by Cynthia M. Currin, for
plaintiff-appellants.
Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P.,
by Deanna Davis Anderson, for defendant-appellees.
HUNTER, Judge.
This cause of action arose after Dr. Ward Sayre Oakley, Jr.,
who was employed by Pinehurst Surgical Clinic, P.A., performed
surgery on Keith Stocum, Jr. Keith Stocum, Jr. and Cynthia Stocum
(“plaintiffs”) sued Pinehurst and Dr. Oakley (“defendants”) for
bodily injuries and loss of consortium. Plaintiffs also asserted
claims for res ipsa loquitur, a claim for foreign object left in a
body, and constructive fraud. Plaintiffs appeal from an order
dismissing their complaint. After careful consideration, we
affirm.
Plaintiffs filed their first complaint against defendants on
1 October 2002. Summonses were issued to defendants on 1 October
2002 but were never served upon any defendant. Alias and pluries
summons were also issued to all defendants on 20 December 2002, 17
March 2003, 5 June 2003, and 22 July 2003. No attempt, however,was ever made to serve any of the summonses or the complaint upon
any defendant.
One year after filing the original complaint, plaintiffs filed
an amended complaint pursuant to North Carolina Rule of Civil
Procedure (hereafter “Rule”) 15(a). The amended complaint made
substantive changes in the allegations and added claims for breach
of fiduciary duty, constructive fraud, and punitive damages. No
attempt was made to serve the amended complaint.
Plaintiffs issued more alias and pluries summonses on 6
October 2003, 31 December 2003, and 24 March 2004. Again, there
was no attempt to serve any of the summonses or the amended
complaint on any defendant. On 21 June 2004, a ninth set of alias
and pluries summonses were issued.
On 22 July 2004, Pinehurst Surgical, one of the defendants,
received an order for mediated settlement conference directly from
Moore County Superior Court, dated 12 July 2004. This was the
first notice that any defendant had received that a lawsuit had
been filed against them.
Although no discovery had occurred, plaintiffs' trial counsel,
Cynthia M. Currin, signed a letter to the trial court coordinator
stating that “[w]e are still in the discovery stages of this
case[,]” and asked to have the case removed from the calendar.
Plaintiffs' counsel sent a different letter three days later
stating that “[p]arties are still involved in discovery” and asked
for “additional time to complete discovery prior to mediation and
trial.” Between 9 August 2004 and 23 August 2004 all defendantswere served. All of the prior summonses issued to the various
defendants listed each of their correct address.
After defendants received notice of the lawsuit pending
against them, they filed a motion to dismiss. Both parties
acknowledge that the motion to dismiss was based on alleged
violations of Rules 4 and 41 for failure to timely serve notice of
the lawsuit and for failure to prosecute the action. Defendants
also asserted that plaintiffs' cause of action should be dismissed
because of a purported violation of Rule 11 after plaintiffs'
counsel represented to the trial court that discovery was ongoing.
The hearing on the motion was scheduled for 18 October 2004.
Plaintiffs' counsel, however, filed a notice of voluntary dismissal
without prejudice pursuant to Rule 41(a) on 14 October 2004. Thus,
the motion to dismiss was never heard.
Plaintiffs then filed the present action on 11 October 2005,
within one year of taking the voluntary dismissal. Defendants
served a joint motion to dismiss and a motion for a protective
order based on the same grounds as their first motion to dismiss.
On 6 February 2006, the trial court entered an order granting the
motion to dismiss with prejudice.
The motion to dismiss was granted based on violations of Rules
4, 11, and 41. Specifically, the trial court made the following
conclusions of law:
6. Plaintiffs' counsel . . . violated
Rule 11 of the North Carolina Rules of Civil
Procedure when she signed the July 26, 2004
letter . . . and the July 29, 2004 Motion and
Order Extending Completion Date for Mediation.
At the time these documents were signed,Plaintiffs had made no attempt to serve
process on any Defendant, despite the issuance
[of] nine Summonses to each Defendant. In
this context, Plaintiffs' counsel could not
reasonably have believed that her
representations to this Court (“We are still
in the discovery stages of this case.”
“Parties still involved in discovery. Need
additional time to complete discovery prior to
mediation and trial.”) were well grounded in
fact. Instead, the July 26 2004 letter and
the July 29, 2004 Motion were interposed for
the improper purposes of causing further
unnecessary delay and misleading the Court as
to the status of the case. This Court has
considered less drastic sanctions, but finds
in its discretion that, under the
circumstances set forth herein, no lesser
sanction, other than dismissal with prejudice,
would better serve the interests of justice in
this case. For this reason, independent of
other violations set forth herein, Defendants'
Motions to Dismiss are granted.
7. Plaintiffs violated Rule 4 of the
North Carolina Rules of Civil Procedure when
Plaintiffs failed to deliver any Complaint or
Summons to some proper person for service from
October of 2002 until August of 2004.
Plaintiffs' violation of Rule 4 in the manner
set forth herein was willful and intentional
and was, on its face, bad faith, with the
intent and purpose to delay and in order to
gain an unfair advantage over the Defendants.
There is no good faith reason or excuse for
the delay in obtaining service of process for
22 months or for why service was not attempted
prior to August of 2004. Each time Plaintiffs
had a Summons issued, Plaintiffs failed to
effectuate service. Plaintiffs were in
possession of the correct addresses for
Defendants. Defendants were readily available
to be served and could have been easily
served, had Plaintiffs made an attempt to do
so. This Court has considered less drastic
sanctions, but finds in its discretion that,
under the circumstances set forth herein, no
lesser sanction, other than dismissal with
prejudice, would better serve the interests of
justice in this case. For this reason,
independent of other violations set forthherein, Defendants' Motions to Dismiss are
granted.
8. Plaintiffs violated Rule 41 when
Plaintiffs failed to prosecute their action by
failing to deliver any Complaint or Summons to
a proper person for service from October of
2002 until August of 2004 and when Plaintiffs
caused further unnecessary delay by misleading
the Court as to the status of the case in the
July 26, 2004 letter and the July 29, 2004
Motion. This failure manifested an intention
to thwart the progress of Plaintiffs' action
to its conclusion by engaging in a delaying
tactic. This Court has considered less
drastic sanctions, but finds in its discretion
that, under the circumstances set forth
herein, no lesser sanction, other than
dismissal with prejudice, would better serve
the interests of justice in this case. For
this reason, independent of other violations
set forth herein, Defendants' Motions to
Dismiss are granted.
There are two issues in this case: (1) whether the trial
court considered incompetent evidence in determining to dismiss
plaintiffs' claim; and (2) whether the trial court properly
dismissed plaintiffs' claim pursuant to Rules 4, 11, and 41 of the
North Carolina Rules of Civil Procedure.
I.
[1] Plaintiffs argue that the trial court considered
incompetent evidence when ruling on defendants' motion to dismiss.
We disagree. Errors assigned pursuant to Rule 6 are reviewed for
abuse of discretion.
Lane v. Winn-Dixie Charlotte, Inc., 169 N.C.
App. 180, 184, 609 S.E.2d 456, 459 (2005). In relevant part, Rule
6(d) provides: “When a motion is supported by affidavit, the
affidavit shall be served with the motion; and except as otherwise
provided in Rule 59(c), opposing affidavits shall be served atleast two days before the hearing.” N.C. Gen. Stat. § 1A-1, Rule
6(d) (2005). Under this Rule, the trial court has discretion as to
“whether to allow affidavits to be filed subsequent to the filing
of a motion.”
Lane, 169 N.C. App. at 184, 609 S.E.2d at 458
(citing
Rockingham Square Shopping Center, Inc. v. Integon Life
Ins. Corp., 52 N.C. App. 633, 641, 279 S.E2d 918, 924 (1981)).
Here, defendants filed one affidavit and unverified documents
in support of their motion to dismiss two days before the scheduled
hearing. The affidavit was not considered by the trial court in
support of its motion to dismiss. The remaining documents
consisted of the court file from the prior action between the two
parties before plaintiffs took the voluntary dismissal. Included
in the file were the nine alias and pluries summonses, the
complaint, the amended complaint, and the letters drafted from
plaintiffs' counsel to the trial court. Consequently, we limit our
discussion, as do the parties, to the issue of whether the trial
court could take judicial notice of unverified documents in ruling
on a motion to dismiss. Plaintiffs contend that even unverified
documents must comply with Rule 6(d). We disagree.
Facts essential to a judgment are not limited to testimony of
witnesses, exhibits introduced into evidence, or by stipulation of
parties.
Mason v. Town of Fletcher, 149 N.C. App. 636, 640, 561
S.E.2d 524, 527,
disc. review denied, 355 N.C. 492, 563 S.E.2d 570
(2002). Trial courts may properly take judicial notice of “its own
records in any prior or contemporary case when the matter noticed
has relevance.” Kenneth S. Broun,
Brandis and Broun on NorthCarolina Evidence § 26 (5th ed. 1998) (footnote omitted) (cited
with approval by
Mason, 149 N.C. App. at 640, 561 S.E.2d at 527).
In
Mason, this Court held that the trial court properly took
judicial notice of another case between the parties in the same
court.
Mason, 149 N.C. App. at 640, 561 S.E.2d at 527. This Court
noted that the appellant made no request for an opportunity to be
heard regarding the taking of judicial notice, nor did they argue
on appeal that the trial court could not properly take judicial
notice of its own records.
Id.
As in
Mason, the trial court in this case took judicial notice
of a prior case between the parties that had occurred in the same
court. Plaintiffs in this case, like defendant's in
Mason, made no
request to be heard as to the propriety of taking judicial notice.
Plaintiffs in the instant case also fail to argue that the trial
court erred in taking judicial notice of the prior action.
Finally, we note that plaintiffs' contention that these documents
were “'spr[u]ng'” upon them is without merit as they were in
possession of and had drafted them. Therefore, we hold that trial
court did not consider incompetent evidence when ruling on
defendant's motion to dismiss.
II.
[2] Plaintiffs next argue that the trial court erred in
granting defendants' motion to dismiss. We disagree. The trial
court dismissed plaintiffs claim pursuant to Rules 4, 11, and 41 of
the North Carolina Rules of Civil Procedure. We review the
imposition of sanctions
de novo, “but the choice of sanction isreviewable under an abuse of discretion standard.”
Crutchfield v.
Crutchfield, 132 N.C. App. 193, 195, 511 S.E.2d 31, 33 (1999).
Plaintiffs argue that any alleged errors by plaintiffs in the prior
action cannot be considered in the present case. We disagree.
In dismissing plaintiffs' cause of action under Rule 4, the
trial court stated that plaintiffs' violation of Rule 4 was a
sufficient and independent ground to dismiss. Plaintiffs, however,
only argue in their brief that the trial court erred in dismissing
the case pursuant to Rules 11 and 41. They make no argument with
regards to the dismissal pursuant to Rule 4. Normally, when there
is no argument or supporting authority in a brief, the assignment
of error is taken as abandoned and dismissed.
See State v.
Elliott, 360 N.C. 400, 427, 628 S.E.2d 735, 753 (2006); N.C.R. App.
P. 28(b)(6). Dismissals for violations of Rule 4(a), however, are
entered pursuant to Rule 41(b).
Smith v. Quinn, 324 N.C. 316, 318,
378 S.E.2d 28, 30 (1989). Because plaintiffs challenge Rule 41(b)
in this appeal we address the merits of this issue.
A.
[3] As to the dismissal based on alleged Rule 11 violations,
plaintiffs argue that any of the purported violations occurred
before plaintiffs moved for voluntary dismissal under Rule 41(a),
and as such, those violations are wholly irrelevant to the current
action. We disagree. Plaintiffs correctly state the general rule
that when a party has earlier taken a voluntary dismissal, refiling
the action begins the case anew.
Tompkins v. Log Systems, Inc., 96
N.C. App. 333, 335, 385 S.E.2d 545, 547 (1989),
disc. reviewdenied, 326 N.C. 366, 389 S.E.2d 819 (1990). It is “as if the suit
had never been filed.”
Id.
The rule, however, is not as absolute as plaintiffs contend.
A voluntary dismissal may not be taken in bad faith,
Brisson v.
Kathy A. Santoriello, M.D., P.A., 351 N.C. 589, 597, 528 S.E.2d
568, 573 (2000), nor will “[d]ismissal . . . deprive the [trial]
court of jurisdiction to consider collateral issues such as
sanctions that require consideration after the action has been
terminated.”
Bryson v. Sullivan, 330 N.C. 644, 653, 412 S.E.2d
327, 331 (1992);
see also Renner v. Hawk, 125 N.C. App. 483, 481
S.E.2d 370,
disc. review denied, 346 N.C. 283, 487 S.E.2d 553
(1997).
In both
Renner and
Bryson, however, neither this Court nor the
Supreme Court were considering sanctions imposed in a refiled
action. Rather, the sanctions were brought after the voluntary
dismissal and each court held that a motion for sanctions need not
be brought before the action is dismissed.
See Renner, 125 N.C.
App. at 488, 481 S.E.2d at 373. Plaintiffs argue this distinction
demands a different result. For the following reasons, we find
this distinction unimportant, and plaintiffs' argument to the
contrary unpersuasive.
“Neither Rule 11 nor Rule 41 of the North Carolina Rules of
Civil Procedure contains explicit time limits for filing Rule 11
sanctions motions.”
Id. at 491, 481 S.E.2d at 374. That said, “'a
party should make a Rule 11 motion within a reasonable time' after
he discovers an alleged impropriety.”
Id. (citation omitted);
seealso Griffin v. Sweet, 136 N.C. App. 762, 765, 525 S.E.2d 504, 506
(2000). Whether a Rule 11 motion is filed within a reasonable time
is reviewed
de novo, under an objective standard.
Static Control
Components, Inc. v. Vogler, 152 N.C. App. 599, 607, 568 S.E.2d 305,
311 (2002).
Plaintiffs argue that defendants did not make their Rule 11
motion until fourteen months after defendants received notice of
suit and should be barred, as a matter of law, from seeking
sanctions. Defendants counter that they filed their first Rule 11
motion just over a month after becoming aware of the alleged
violations, and as such, should not be barred from seeking the
sanctions in a later proceeding.
Plaintiffs rely on
Griffin in support of their argument. In
Griffin, this Court held that a Rule 11 motion was untimely where
the movant delayed filing for thirteen months after the Supreme
Court of North Carolina had denied defendant's petition for
discretionary review, and there was no activity in the case in the
interim.
Griffin, 136 N.C. App. at 765-66, 525 S.E.2d at 506-07.
Griffin, however, is distinguishable from the instant case.
Here, there have been two motions for sanctions. The first
came before plaintiffs took a voluntary motion to dismiss and the
second upon plaintiffs' refiling the claim. Under these
circumstances, plaintiffs' attorney was aware that sanctions could
be imposed long before the attorneys in
Griffin. Also unlike
Griffin, plaintiffs in this case refiled their complaint which led
to defendants' filing their motion for dismissal. This is not acase where defendants sought to impose sanctions long after the
litigation between the parties had been conclusively resolved.
Instead, when plaintiffs dismissed their case they effectuated the
relief defendants were seeking, giving defendants little or no
reason to pursue a motion to dismiss.
See Dickerson Carolina, Inc.
v. Harrelson, 114 N.C. App. 693, 697, 443 S.E.2d 127, 131,
appeal
dismissed and disc. review denied, 337 N.C. 691, 448 S.E.2d 520
(1994) (holding that when it develops that the relief sought has
been granted the case should not be pursued). Under these
circumstances, we conclude that defendants' motion to dismiss was
filed within a reasonable time.
[4] Plaintiffs' next argument is that there was no competent
evidence from which the trial court could have concluded that there
was prejudice. Plaintiffs cite no authority in which a finding of
prejudice is required before granting sanctions under Rule 11.
Instead, plaintiffs argue that this Court's decision in
O'Neal
Construction, Inc. v. Leonard S. Gibbs Grading, 121 N.C. App. 577,
468 S.E.2d 248 (1996), is controlling. In
Gibbs Grading, this
Court reversed a trial court's denial of a motion to compel
arbitration and did not address the trial court's denial of
sanctions because no findings of fact or conclusions of law were
made by the trial court.
Id. This Court only addressed prejudice
in that portion of
Gibbs Grading relating to the arbitration, and
not the denial of sanctions.
Id. We also note that upon a finding
of a violation of Rule 11(a), some degree of sanction is mandatory.
Melton v. Stamm, 138 N.C. App. 314, 315-16, 530 S.E.2d 622, 624(2000),
disc. review denied, 353 N.C. 377, 547 S.E.2d 12 (2001).
Moreover, given the delay between the filing of the original action
and the second action, the trial court had competent evidence from
which it made its finding of prejudice. Plaintiffs' argument on
this issue is without merit.
[5] Plaintiffs' final argument relating to Rule 11 is that
defendants' conduct estops them from seeking sanctions. We
disagree. Plaintiffs have again failed to cite authority in which
any court in this state or another jurisdiction has even discussed
the use of estoppel in relation to a Rule 11 motion. The purpose
of Rule 11 is to reduce the reluctance of courts to impose
sanctions.
Turner v. Duke University, 325 N.C. 152, 165, 381
S.E.2d 706, 714 (1989). Accordingly, where a trial court finds
“grounds for imposing sanctions exist, Rule 11 requires the court
to impose sanctions.”
Overcash v. Blue Cross and Blue Shield, 94
N.C. App. 602, 617, 381 S.E.2d 330, 340 (1989). Thus, in the
instant case, where the trial court found grounds to sanction
plaintiffs it was required to do so. Plaintiffs' argument on this
point is without merit. Thus, we affirm the trial court's ruling
to dismiss plaintiffs' claims pursuant to Rule 11.
B.
[6] Plaintiffs argue the taking of a voluntary dismissal in
the first action bars defendants from moving to impose sanctions in
the refiled action under Rule 41(b). We disagree. Under Rule
41(b) a case may be involuntarily dismissed “[f]or failure of the
plaintiff to prosecute or to comply with” the Rules of CivilProcedure “or any order of court[.]” N.C. Gen. Stat. § 1A-1, Rule
41(b) (2005). As stated above, voluntary dismissal does not
deprive a trial court from imposing sanctions.
Renner, 125 N.C.
App. at 489, 481 S.E.2d at 373. Additionally, voluntary dismissals
must be taken in good faith and with the intent to pursue the
action.
Estrada v. Burnham, 316 N.C. 318, 323, 341 S.E.2d 538, 542
(1986). Here, the trial court made a conclusion of law that
plaintiffs initial complaint was not filed in good faith and was
not filed with the intent to prosecute under Rule 41(b). Further,
when “the Rules of Civil Procedure are violated for the purpose of
delay or gaining an unfair advantage, dismissal of the action is an
appropriate remedy.”
Smith v. Quinn, 324 N.C. at 318-19, 378
S.E.2d at 30. Here, the trial court found that the rules violation
was for the purpose of delay and to gain an unfair advantage.
Consequently, we reject plaintiffs' arguments that a Rule 41(a)
voluntary dismissal wipes the slate clean of any passed
sanctionable conduct.
Plaintiffs next argue that the motion to dismiss pursuant to
Rule 41(b) was not filed within a reasonable time. We disagree for
the reasons set out above with regards to our discussion of Rule
11, and hold that defendants filed their motion to dismiss pursuant
to Rule 41(b) within a reasonable time. Plaintiffs also argue that
the trial court did not find, nor was there any evidence that
defendants were prejudiced. As stated above, there is no such
requirement before sanctions may be imposed. This argument is
similarly rejected. Also rejected for the reasons discussed in thesection above is plaintiffs' contention that defendants are
estopped from seeking sanctions against them.
[7] Plaintiffs' final argument is that the trial court did not
find any facts, nor did defendants offer facts, to support its
conclusion that no sanction short of dismissal would suffice. We
disagree and review this assignment of error for an abuse of
discretion.
Page v. Mandel, 154 N.C. App. 94, 99, 571 S.E.2d 635,
638 (2002). Under Rule 41(b), “'dismissal is the most severe
sanction available' and should only be imposed 'when lesser
sanctions are not appropriate to remedy' the situation.”
Id.
(quoting
Wilder v. Wilder, 146 N.C. App. 574, 575-76, 553 S.E.2d
425, 426-27 (2001)).
In support of its conclusion that dismissal was appropriate,
the trial court made findings of fact that: (1) plaintiffs made no
effort to notify defendants about the complaint as late as twenty
months after it was filed; (2) the trial court actually notified
the defendants; (3) plaintiffs' trial counsel signed a letter to
the trial court stating that the parties were “still in the
discovery stages of this case” when in fact there had been no
attempt to serve any defendant; (4) plaintiffs' counsel sent a
second letter to the trial court that the parties were still in
discovery, when in fact there had been no attempt to serve any
defendant; (5) plaintiffs failed to show any reason or excuse for
the delay in obtaining service of process and offered no good faith
reason why service was not attempted sooner; and (6) of the twenty-
eight summonses issued to the three defendants in this case, nonewere delivered until nearly two years after the complaint was
filed, yet all twenty-eight summonses listed the correct address
for each defendant. In light of these findings, we cannot say that
the trial court abused its discretion in determining that dismissal
was appropriate. This is especially true where the trial court
considered less severe sanctions.
Plaintiffs' argument that these findings are not supported by
evidence presented by defendants is similarly without merit.
Defendants presented,
inter alia, the following to the trial court
when moving for the motion to dismiss: (1) the complaint and all
summonses issued in the prior action; (2) the trial court's
correspondence with defendants alerting them that an action had
been filed against them; and (3) plaintiffs' counsel's letters to
the trial court stating that the trial was still in discovery
stages. This is competent evidence to support the trial court's
findings of fact and we cannot say that the trial court abused its
discretion in dismissing plaintiffs' complaint.
III.
In summary, we hold that the trial court did not rely on
incompetent evidence in dismissing plaintiffs' claim and that
defendants' motion for sanctions was filed within a reasonable
time. We also reject plaintiffs' remaining arguments as it relates
to Rule 41. Accordingly, the ruling of the trial court is
affirmed.
Affirmed.
Judges TYSON and JACKSON concur.
*** Converted from WordPerfect ***