{ "id": 9004859, "name": "JOHN RUPE, Plaintiff v. ANTHONY G. HUCKS-FOLLIS, M.D. and PINEHURST SURGICAL CENTER, P.A., Defendants", "name_abbreviation": "Rupe v. Hucks-Follis", "decision_date": "2005-05-03", "docket_number": "No. COA04-1105", "first_page": "188", "last_page": "192", "citations": [ { "type": "official", "cite": "170 N.C. App. 188" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "98 S.E. 830", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1919, "pin_cites": [ { "page": "831", "parenthetical": "noting that a case interpreting a statute \"may become a precedent sufficiently authoritative to protect rights acquired during its continuance\"" } ], "opinion_index": 0 }, { "cite": "177 N.C. 303", "category": "reporters:state", "reporter": "N.C.", "year": 1919, "pin_cites": [ { "page": "305", "parenthetical": "noting that a case interpreting a statute \"may become a precedent sufficiently authoritative to protect rights acquired during its continuance\"" } ], "opinion_index": 0 }, { "cite": "263 S.E.2d 578", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "581-82" } ], "opinion_index": 0 }, { "cite": "299 N.C. 457", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575245 ], "year": 1980, "pin_cites": [ { "page": "463" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0457-01" ] }, { "cite": "556 S.E.2d 621", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "624" } ], "opinion_index": 0 }, { "cite": "147 N.C. App. 771", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9381647 ], "year": 2001, "pin_cites": [ { "page": "775" } ], "opinion_index": 0, "case_paths": [ "/nc-app/147/0771-01" ] }, { "cite": "217 S.E.2d 532", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "540", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "288 N.C. 183", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565242 ], "year": 1975, "pin_cites": [ { "page": "196", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/288/0183-01" ] }, { "cite": "572 S.E.2d 101", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "103" } ], "opinion_index": 0 }, { "cite": "356 N.C. 415", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511250 ], "year": 2002, "pin_cites": [ { "page": "417" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0415-01" ] }, { "cite": "553 S.E.2d 63", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "67-69" } ], "opinion_index": 0 }, { "cite": "146 N.C. App. 339", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11357286 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "343-50" } ], "opinion_index": 0, "case_paths": [ "/nc-app/146/0339-01" ] } ], "analysis": { "cardinality": 429, "char_count": 8505, "ocr_confidence": 0.748, "pagerank": { "raw": 7.181100842601303e-08, "percentile": 0.42992892635825486 }, "sha256": "3722d2b218dc82ca6c1344e63d1ae000cf1710b7ba9833fd2ef4ba7d9bbfa824", "simhash": "1:e62226694f2d4753", "word_count": 1378 }, "last_updated": "2023-07-14T16:44:47.676310+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER and LEVINSON concur." ], "parties": [ "JOHN RUPE, Plaintiff v. ANTHONY G. HUCKS-FOLLIS, M.D. and PINEHURST SURGICAL CENTER, P.A., Defendants" ], "opinions": [ { "text": "McCullough, Judge.\nIn the order now on appeal, the superior court granted relief from a previous denial of defendants\u2019 motion to dismiss and dismissed plaintiffs complaint for failure to comply with N.C. Gen. Stat. \u00a7 1A-1, Rule 9(j) (2004). We reverse.\nOn 21 December 2001, plaintiff filed an action against defendants for allegedly negligent medical treatment. Plaintiff\u2019s suit was initiated after a panel of this Court filed a 2 October 2001 decision, which held that N.C. Gen. Stat. \u00a7 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\u2019s decision was pending at the time plaintiff filed his action. Accordingly, plaintiff\u2019s complaint did not contain the certification required by N.C. Gen. Stat. \u00a7 1A-1, Rule 9(j) that, inter alia, his claims had been reviewed by an expert who was willing to testify that plaintiff\u2019s medical treatment did not comply with the applicable standard of care.\nThe statute of limitations for plaintiff\u2019s 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. \u00a7 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\u2019s certification requirement.\nOn 2 January 2002, plaintiff filed an amended complaint, pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 15, in which he contended that he was not required to comply with Rule 9(j); however, he asserted\n[o]ut of an abundance of precaution, and without waiving any objections, . . . that the care and treatment of [him] by [defendants [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 to qualify under Rule 702 of the North Carolina Rules of [Evidence],\nAs of the filing of plaintiffs amended complaint, the Supreme Court had neither stayed nor vacated this Court\u2019s constitutional discussion in Anderson v. Assimos, 146 N.C. App. 339, 553 S.E.2d 63.\nOn 21 February 2002, defendants filed a motion to dismiss in which they argued that plaintiff\u2019s 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\u2019s decision in Anderson v. Assimos, and that, therefore, Rule 9Q) remained void and unconstitutional. Accordingly, in an order entered 5 July 2002, Judge Floyd ruled that \u201c[pjlaintiff was entitled to file an Amended Complaint. . . and have it relate back to the original filing, pursuant to [N.C. Gen. Stat. \u00a7 1A-1, Rule 15(a), (c)],\u201d and he denied defendants\u2019 motion to dismiss. Defendants\u2019 appeal from this order was dismissed as interlocutory on 22 November 2002.\nOn 2 April 2004, after the Supreme Court had vacated this Court\u2019s constitutional analysis in Anderson, defendants filed a motion for relief from Judge Floyd\u2019s order pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 60(b)(5) and (6). In an order entered 4 May 2004, Judge Ola M. Lewis concluded that plaintiff\u2019s original complaint was defective under Rule 9(j)\u2019s revived certification requirement and that the amended complaint did not relate back. She granted defendants\u2019 motion for relief from Judge Floyd\u2019s order, and dismissed plaintiff\u2019s complaint with prejudice. Plaintiff now appeals.\nIn his first argument on appeal, plaintiff contends that Judge Lewis lacked authority to grant relief from Judge Floyd\u2019s order. We agree.\nN.C. Gen. Stat. \u00a7 1A-1, Rule 60(b) (2004) provides, in pertinent part, that\n[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:\n(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\n(6) Any other reason justifying relief from the operation of the judgment.\n(Emphasis added.) \u201cRule 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.\u201d 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).\nIn the instant case, Judge Floyd\u2019s order denying defendants\u2019 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\u2019 order must be reversed.\nWe note that, even assuming arguendo that Judge Lewis did have the authority to grant relief from Judge Floyd\u2019s interlocutory order, she erred by concluding that the revival of Rule 9(j) necessitated the dismissal of plaintiff\u2019s action. When plaintiff filed his original and amended complaints, this Court\u2019s decision in Anderson v. Assimos had not been stayed or reversed by our Supreme Court. Thus, plaintiff\u2019s 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) (\u201cWhen 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.\u201d); Williamson v. Rabon, 177 N.C. 303, 305, 98 S.E. 830, 831 (1919) (noting that a case interpreting a statute \u201cmay become a precedent sufficiently authoritative to protect rights acquired during its continuance\u201d); 16A Am. Jur. 2d Constitutional Law \u00a7 205 (1998) (\u201cRights acquired under the particular adjudications holding [a] statute [to be] invalid are not affected by the subsequent decision that the statute is constitutional.\u201d).\nFor the reasons set forth above, the trial court\u2019s 4 May 2004 order is\nReversed.\nJudges HUNTER and LEVINSON concur.", "type": "majority", "author": "McCullough, Judge." } ], "attorneys": [ "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." ], "corrections": "", "head_matter": "JOHN RUPE, Plaintiff v. ANTHONY G. HUCKS-FOLLIS, M.D. and PINEHURST SURGICAL CENTER, P.A., Defendants\nNo. COA04-1105\n(Filed 3 May 2005)\nJudges; Medical Malpractice\u2014 Rule 9(j) certification \u2014 erroneous grant of relief from another superior court judge\u2019s order \u2014 Rule 60(b)\nA superior court judge lacked authority in a negligent medical treatment case to grant relief from another superior court judge\u2019s order that denied defendants\u2019 motion to dismiss plaintiff\u2019s claim for failure to comply with N.C.G.S. \u00a7 1A-1, Rule 9(j), because: (1) N.C.G.S. \u00a7 1A-1, Rule 60(b) has no application to interlocutory judgments, orders, or proceedings from the trial court; (2) the first judge\u2019s order denying defendants\u2019 motion to dismiss was an interlocutory order, and therefore, the second judge lacked the authority to grant relief from 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\u2019s interlocutory order, she erred by concluding that the revival of Rule 9(j) by a Supreme Court decision necessitated the dismissal of plaintiff\u2019s action when plaintiff\u2019s 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.\nAppeal by plaintiff from judgment entered 4 May 2004 by Judge Ola M. Lewis in Robeson County Superior Court. Heard in the Court of Appeals 24 March 2005.\nThe Law Offices of William S. Britt, by William S. Britt, for plaintiff appellant.\nPatterson, Dilthey, Clay, Bryson & Anderson, L.L.P., by Mark E. Anderson and Katherine E. Downing, for defendant appellees." }, "file_name": "0188-01", "first_page_order": 218, "last_page_order": 222 }