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MARGARET JONES REID, in the matter of the Estate of WILLIAM REID,
JR., Plaintiff v. JACK C. COLE, D.O., CHRISTIAN MANN, M.D.,
CLIFFORD W. LINDSEY, M.D., CAROLINA PHYSICIANS, P.A., PITT
MEMORIAL HOSPITAL FOUNDATION, INC., AND PITT COUNTY MEMORIAL
HOSPITAL INC., Defendants
1. Appeal and Error--appealability_denial of motion to dismiss--writ of certiorari-- notice of appeal filed less than a week late--administration of justice
Although defendant's appeal in a medical malpractice case from the denial of their motion to dismiss is typically an appeal from an interlocutory order, the Court of Appeals elected in its discretion to grant defendants' petition for writ of certiorari and to address the merits of the appeal where defendants' notice of appeal was filed less than a week late and the administration of justice would best be served by granting defendants' petition.
2. Appeal and Error--appealability--cross-assignment of error--prior determination in
Plaintiff's cross-assignment of error regarding the trial court's grant of defendants' motion to amend their answer to assert that plaintiff's complaint was a legal nullity based on the unauthorized practice of law does not need to be addressed because the Court of Appeals already concluded in a companion case that the trial court did not err by denying defendants' motion to dismiss plaintiff's medical malpractice action for wrongful death even though defendants contended the complaint was a legal nullity based on the unauthorized practice of law.
Judge JACKSON dissenting.
Jack C. Cole, D.O., and Carolina Physicians, P.A. (defendants), appeal the denial of their motion to dismiss the complaint signed by Margaret Jones Reid (plaintiff), for the unauthorized practice of law. (See footnote 1) After careful consideration, we affirm the ruling of the trial court.
William Reid, Jr. (Mr. Reid), plaintiff's husband, died 25 February 2004 at Pitt County Memorial Hospital. Plaintiff was appointed the administrator of his estate (the estate). She retained counsel to pursue a claim of wrongful death against defendants on behalf of the estate. Approximately one month prior to the expiration of the statute of limitations on the wrongful death claim, plaintiff's attorney relocated and withdrew from representation. Thereafter, plaintiff filed a pro se complaint against defendants alleging that they were negligent in the wrongful death of Mr. Reid.
Defendants in this case, filed an answer and moved the trial court to dismiss plaintiff's complaint pursuant to N.C.R. Civ. P. 12 and, after an amendment, alleged that the complaint was barred by the statute of limitations. Defendants, however, waived hearing on their motion to dismiss, relying instead on co-defendants' motions in the companion case that plaintiff's complaint was a legal nullity. Plaintiff opposed the motions, arguing that any defect in her complaint was cured by the subsequent appearance of counsel, based on this Court's ruling in Theil v. Detering, 68 N.C.App. 754, 315 S.E.2d 789 (1984). The trial court denied defendants' motion to dismiss on 30 November 2006. In its order, the trial court also certified the matter for immediate appeal pursuant to N.C. Gen. Stat. § 1-277 (2005) and N.C. Gen. Stat. § 1A-1, Rule 54(b) (2005), stating that there is no justifiable reason for delay and certified the order as immediately appealable to this Court. Defendants appeal this denial.
JACKSON, Judge, dissenting.
For the reasons stated in the companion case, I respectfully dissent from the majority's conclusion to reach the merits of this case. I would (1) hold that the order is interlocutory, (2) grant the motion to dismiss, and (3) deny the petition for writ of certiorari.
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