{ "id": 8350954, "name": "THE ESTATE OF JANICE SPELL, WILLIE E. SPELL, Administrator, and THE ESTATE OF WILLIE R. SPELL, WILLIE E. SPELL, Administrator, Plaintiffs v. FIRAS GHANEM, TARBORO CLINIC, P.A., JAMES EUGENE KENDALL, JR., DAVID W. LEE, MALANA K. MOSHESH, ELIZABETH M. REINOEHL, TARBORO WOMEN'S CENTER, P.A., EAST CAROLINA HEALTH-HERITAGE, INC., d/b/a HERITAGE HOSPITAL, Defendants", "name_abbreviation": "Estate of Spell v. Ghanem", "decision_date": "2005-12-20", "docket_number": "No. COA05-353", "first_page": "191", "last_page": "196", "citations": [ { "type": "official", "cite": "175 N.C. App. 191" } ], "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": "611 S.E.2d 224", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632631 ], "year": 2005, "pin_cites": [ { "page": "228", "parenthetical": "citing Robinson v. Powell, 348 N.C. 562, 566, 500 S.E.2d 714, 717 (1998)" } ], "opinion_index": 0, "case_paths": [ "/se2d/611/0224-01" ] }, { "cite": "265 S.E. 2d 248", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "46 N.C. App. 272", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550194 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/46/0272-01" ] }, { "cite": "315 S.E.2d 97", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "99", "parenthetical": "citing Davis v. Mitchell, 46 N.C. App. 272, 265 S.E. 2d 248 (1980)" } ], "opinion_index": 0 }, { "cite": "68 N.C. App. 494", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527501 ], "year": 1984, "pin_cites": [ { "page": "495", "parenthetical": "citing Davis v. Mitchell, 46 N.C. App. 272, 265 S.E. 2d 248 (1980)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/68/0494-01" ] }, { "cite": "500 S.E.2d 714", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "717" } ], "opinion_index": 0 }, { "cite": "348 N.C. 562", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659870 ], "year": 1998, "pin_cites": [ { "page": "566" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0562-01" ] }, { "cite": "169 N.C. App. 767", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8473520 ], "year": 2005, "pin_cites": [ { "page": "773", "parenthetical": "citing Robinson v. Powell, 348 N.C. 562, 566, 500 S.E.2d 714, 717 (1998)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/169/0767-01" ] }, { "cite": "558 S.E.2d 162", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "163", "parenthetical": "upholding \"order of the trial court dismissing plaintiff's complaint alleging medical malpractice because of plaintiff's failure to comply with Rule 9(j)\"" } ], "opinion_index": 0 }, { "cite": "355 N.C. 198", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220102 ], "year": 2002, "pin_cites": [ { "page": "199", "parenthetical": "upholding \"order of the trial court dismissing plaintiff's complaint alleging medical malpractice because of plaintiff's failure to comply with Rule 9(j)\"" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0198-01" ] }, { "cite": "364 S.E.2d 380", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "383" } ], "opinion_index": 0 }, { "cite": "321 N.C. 435", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2568970 ], "year": 1988, "pin_cites": [ { "page": "440-41" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0435-01" ] }, { "cite": "447 S.E.2d 784", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "786" } ], "opinion_index": 0 }, { "cite": "337 N.C. 651", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2551919 ], "year": 1994, "pin_cites": [ { "page": "653" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0651-01" ] }, { "cite": "472 S.E.2d 778", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "parenthetical": "citing Hargett v. Holland, 337 N.C. 651, 653, 447 S.E.2d 784, 786 (1994)" } ], "opinion_index": 0 }, { "cite": "344 N.C. 133", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867531 ], "year": 1996, "pin_cites": [ { "parenthetical": "citing Hargett v. Holland, 337 N.C. 651, 653, 447 S.E.2d 784, 786 (1994)" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0133-01" ] }, { "cite": "392 S.E.2d 735", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "736" } ], "opinion_index": 0 }, { "cite": "326 N.C. 723", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5307026 ], "year": 1990, "pin_cites": [ { "page": "726" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0723-01" ] }, { "cite": "399 S.E.2d 137", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "138-39", "parenthetical": "quoting Goldston v. American Motors Corp., 326 N.C. 723, 726, 392 S.E.2d 735, 736 (1990)" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 394", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527777 ], "year": 1991, "pin_cites": [ { "page": "395", "parenthetical": "quoting Goldston v. American Motors Corp., 326 N.C. 723, 726, 392 S.E.2d 735, 736 (1990)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/101/0394-01" ] }, { "cite": "545 S.E.2d 259", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "261", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "143 N.C. App. 162", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11433839 ], "year": 2001, "pin_cites": [ { "page": "164", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/143/0162-01" ] }, { "cite": "57 S.E.2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "pin_cites": [ { "page": "381", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "231 N.C. 354", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629801 ], "year": 1950, "pin_cites": [ { "page": "362", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/231/0354-01" ] } ], "analysis": { "cardinality": 659, "char_count": 12702, "ocr_confidence": 0.747, "pagerank": { "raw": 2.0446031217563963e-07, "percentile": 0.7513136866280621 }, "sha256": "b1b11c1b35ea5d1cd85da1ca59ef484779af769bc1127bf601ec5433d4bce132", "simhash": "1:ea23cf644ca52428", "word_count": 2016 }, "last_updated": "2023-07-14T22:29:36.119960+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MCCULLOUGH and ELMORE concur." ], "parties": [ "THE ESTATE OF JANICE SPELL, WILLIE E. SPELL, Administrator, and THE ESTATE OF WILLIE R. SPELL, WILLIE E. SPELL, Administrator, Plaintiffs v. FIRAS GHANEM, TARBORO CLINIC, P.A., JAMES EUGENE KENDALL, JR., DAVID W. LEE, MALANA K. MOSHESH, ELIZABETH M. REINOEHL, TARBORO WOMEN\u2019S CENTER, P.A., EAST CAROLINA HEALTH-HERITAGE, INC., d/b/a HERITAGE HOSPITAL, Defendants" ], "opinions": [ { "text": "LEVINSON, Judge.\nDefendant East Carolina Health Heritage, Inc., d/b/a Heritage Hospital (the hospital), appeals from a pretrial order allowing plaintiffs to amend their complaint. We dismiss.\nOn 13 October 2003 plaintiffs (estates of Janice Spell and Willie R. Spell, by administrator Willie E. Spell) filed suit against several physicians and medical institutions. Plaintiffs alleged that in 2001 Janice Spell was pregnant, with a predicted delivery date in February 2002. On 13 November 2001 Janice was admitted to the hospital for treatment of various symptoms. Her symptoms worsened, and on 15 November 2001 Janice\u2019s unborn child, Willie R. Spell, died in \u00fatero. Janice died on 16 November 2001, and an autopsy determined the cause of death to be thrombotic thrombocytopenic purpura (TTP). Plaintiffs\u2019 complaint alleged that a proximate cause of the deaths of Janice and Willie R. Spell was defendants\u2019 negligent failure to properly diagnose and treat Janice\u2019s TTP. Plaintiffs sought damages from individual defendant physicians for medical malpractice, and from defendant hospital on the grounds that the hospital was liable for the negligence of its employees and agents under the doctrines of respondeat superior or agency.\nOn 1 July 2004 plaintiffs filed a motion to amend their complaint to include additional allegations in their claim against defendant hospital. Plaintiffs asked to add allegations of negligence by the nurses and nursing staff of defendant hospital as part of the basis for liability under the doctrines of respondeat superior or agency. Plaintiffs submitted a proposed amended complaint with their motion, in which such allegations were added. On 5 October 2004 the trial court granted plaintiffs\u2019 motion to amend their complaint, and ordered that \u201c[defendants shall have twenty-five (25) days from September 1, 2004, the date on which they were made aware of the Court\u2019s ruling on Plaintiff\u2019s Motion to Amend Complaint, to file their Answers to the Amended Complaint.\u201d From this order defendant appeals.\nPreliminarily we address plaintiffs\u2019 motion for dismissal and for sanctions. Plaintiff argues first that defendant\u2019s appeal should be dismissed as interlocutory. We agree.\nAn order \u201cis either interlocutory or the final determination of the rights of the parties.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 54(a) (2003). \u201cAn 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.\u201d Veazey v. Durham, 231 N.C. 354, 362, 57 S.E.2d 377, 381 (1950) (citations omitted). \u201c[A]n interlocutory order is immediately appeal-able 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.\u201d Embler v. Embler, 143 N.C. App. 162, 164, 545 S.E.2d 259, 261 (2001) (citation omitted); see N.C. Gen. Stat. \u00a7 l-277(a) (2003) (\u201cappeal may be taken from every judicial order . . . which affects a substantial right\u201d); N.C. Gen. Stat. \u00a7 7A~27(d)(l) (2003) (granting appeal of right from \u201cany interlocutory order . . . [a]ffect[ing] a substantial right\u201d).\nIn the instant case, the parties agree that the order allowing amendment of plaintiffs\u2019 complaint is interlocutory, and that the dis-positive issue is whether defendant\u2019s appeal implicates any substantial right that will be lost without immediate review. \u201cThe appealability of interlocutory orders pursuant to the substantial right exception is determined by a two-step test. \u2018[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.\u2019 \u201d Miller v. Swann Plantation Development Co., 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)).\nDefendant 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 \u201cestoppel by laches\u201d as an affirmative \u2022 defense; or (3) having plaintiffs\u2019 amended complaint dismissed for failure to comply with the pleading requirements of N.C. Gen. Stat. \u00a7 1A-1, Rule 9(j) (2003). On this basis, defendant contends that \u201cnot one, but three substantial rights will be lost absent immediate review.\u201d We disagree.\nFirst, these are issues that are properly raised at the trial level. \u201cA 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.\u201d Horton v. Carolina Medicorp, Inc., 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 (1994)).\nIn addition, defendant\u2019s legal premise, that an amended complaint must always be filed within the statute of limitations, is unsound. Under N.C. Gen. Stat. \u00a7 1A-1, Rule 15(c) (2003), an amended complaint \u201cis deemed to have been interposed at the time the claim in the original pleading was inteiposed, 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.\u201d The North Carolina Supreme Court has held that relation back is not defeated by the statute of limitations:\nWe 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.\nPyco 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.\nWe also disagree with defendant\u2019s assertion that the only way to challenge plaintiffs\u2019 purported failure to comply with Rule 9(j) is by immediate appellate review of the court\u2019s order allowing plaintiffs to file an amended complaint. Rule 9 provides that a claim alleging medical malpractice \u201cshall be dismissed unless\u201d certain requirements are met. A defendant\u2019s motion to dismiss based on failure to comply with Rule 9Q) should be brought at the trial level. See Thigpen v. Ngo, 355 N.C. 198, 199, 558 S.E.2d 162, 163 (2002) (upholding \u201corder of the trial court dismissing plaintiff\u2019s complaint alleging medical malpractice because of plaintiff\u2019s failure to comply with Rule 9(j)\u201d).\nEstoppel also should be litigated at the trial level. Indeed, N.C. Gen. Stat. \u00a7 1A-1, Rule 8 (2003) requires that affirmative defenses such as laches, estoppel, or the statute of limitations be raised by answer or counterclaim:\nThe 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. \u00a7\u00a7 1A-1, Rule 8(c) [(2005)], and our courts have held the failure to do so creates a waiver of the defense. Neither defendants\u2019 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.\nHSI 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)).\nN.C.R. App. P. 10(b)(1) provides in relevant part that \u201cto 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] obtainfed] a ruling upon the party\u2019s request, objection or motion.\u201d\nWe conclude that defendant\u2019s proposed \u201csubstantial rights\u201d consist of issues that defendant must raise at the trial level to preserve for review. In the instant case, none of the issues addressed by defendant were brought before the trial court. Consequently, defendant\u2019s 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 judgment. We conclude that no substantial right will be lost by failure to allow immediate review of the trial court\u2019s order allowing plaintiffs to amend their complaint. Accordingly, defendant\u2019s appeal must be dismissed.\nPlaintiffs 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 \u201cagainst a 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[.]\u201d\nDefendant appeals from an order that is clearly interlocutory, and argues that immediate appeal is required to protect its \u201csubstantial right\u201d 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 \u201cright\u201d to avoid the expense and inconvenience of a trial. However, \u201cavoidance of a trial is not a \u2018substantial right\u2019 that would make such an interlocutory order appealable under G.S. 1-277 or G.S. 7A-27(d).\u201d Howard v. Ocean Trail Convalescent Center, 68 N.C. App. 494, 495, 315 S.E.2d 97, 99 (1984) (citing Davis v. Mitchell, 46 N.C. App. 272, 265 S.E. 2d 248 (1980)).\nWe conclude that defendant\u2019s 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 \u201cpiecemeal appeals\u201d should defendant be later handed an adverse final judgment from which it seeks appellate review.\nThe trial court shall determine the reasonable amount of attorneys\u2019 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.\nDismissed.\nJudges MCCULLOUGH and ELMORE concur.", "type": "majority", "author": "LEVINSON, Judge." } ], "attorneys": [ "Faison & Gilles-pie, by John W. Jensen, and Kristen L. Beightol, for plaintiff s-appellees.", "Harris, Creech, Ward and Blackerby, P.A., by R. Brittain Blackerby, Marie C. Moseley, and Charles E. Simpson, Jr., for defendant-appellant." ], "corrections": "", "head_matter": "THE ESTATE OF JANICE SPELL, WILLIE E. SPELL, Administrator, and THE ESTATE OF WILLIE R. SPELL, WILLIE E. SPELL, Administrator, Plaintiffs v. FIRAS GHANEM, TARBORO CLINIC, P.A., JAMES EUGENE KENDALL, JR., DAVID W. LEE, MALANA K. MOSHESH, ELIZABETH M. REINOEHL, TARBORO WOMEN\u2019S CENTER, P.A., EAST CAROLINA HEALTH-HERITAGE, INC., d/b/a HERITAGE HOSPITAL, Defendants\nNo. COA05-353\n(Filed 20 December 2005)\nAppeal and Error\u2014 appealability \u2014 amendment of complaint\u2014 interlocutory order \u2014 sanctions\nAn appeal from a pretrial order allowing an amended complaint was dismissed, and sanctions were imposed under Appellate Procedure Rule 34, where the order was clearly interlocutory and the substantial rights cited by defendant were either required to be raised first at the trial level (estoppel, the statute of limitations, and Rule 9(j)) or were not substantial rights (avoiding trial). Sanctions were awarded because a final resolution of the matter was needlessly delayed, the resources of the Court of Appeals needlessly wasted, and piecemeal appeals were created.\nAppeal by defendant from order entered 5 October 2004 by Judge Milton F. Fitch, Jr., in Edgecombe County Superior Court. Heard in the Court of Appeals 3 November 2005.\nFaison & Gilles-pie, by John W. Jensen, and Kristen L. Beightol, for plaintiff s-appellees.\nHarris, Creech, Ward and Blackerby, P.A., by R. Brittain Blackerby, Marie C. Moseley, and Charles E. Simpson, Jr., for defendant-appellant." }, "file_name": "0191-01", "first_page_order": 225, "last_page_order": 230 }