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  "name": "JAMES BLACKBURN, Plaintiff v. DOMINICK J. CARBONE, M.D., WAKE FOREST UNIVERSITY BAPTIST MEDICAL CENTER, THE NORTH CAROLINA BAPTISTS HOSPITALS, INC., NORTH CAROLINA BAPTIST HOSPITAL and WAKE FOREST UNIVERSITY HEALTH SCIENCES, Defendants",
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      "JAMES BLACKBURN, Plaintiff v. DOMINICK J. CARBONE, M.D., WAKE FOREST UNIVERSITY BAPTIST MEDICAL CENTER, THE NORTH CAROLINA BAPTISTS HOSPITALS, INC., NORTH CAROLINA BAPTIST HOSPITAL and WAKE FOREST UNIVERSITY HEALTH SCIENCES, Defendants"
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        "text": "ERVIN, Judge.\nPlaintiff James Blackburn appeals from the trial court\u2019s order granting summary judgment in favor of Defendants. On appeal, Plaintiff contends that the trial court erred by converting Defendants\u2019 dismissal motion to one for summary judgment and by failing to conclude that Plaintiff had stated a claim for common law obstruction of justice in his complaint. After careful consideration of Plaintiff\u2019s arguments in light of the record and the applicable law, we conclude that the trial court\u2019s order should be affirmed.\nI. Factual Background\nOn 24 April 2009, Plaintiff filed a complaint against Defendants Dr. Dominick J. Carbone, Wake Forest University Baptist Medical Center, The North Carolina Baptist Hospitals, Inc., North Carolina Baptist Hospital, and Wake Forest University Health Services in which he alleged that Dr. Carbone prepared an inaccurate medical report for use in connection with a separate negligence action arising from injuries that Plaintiff sustained in an automobile accident. In that report, Dr. Carbone stated that Plaintiff\u2019s injuries were sustained in the \u201cworkplace\u201d instead of in an automobile collision. Despite a request for a correction from Plaintiff\u2019s counsel, Dr. Carbone did not revise that portion of his report alluding to the circumstances under which Plaintiff\u2019s injuries were sustained before Plaintiff settled his automobile accident claim. Although Plaintiff\u2019s counsel told Dr. Carbone that \u201che was to appear\u201d for the purpose of testifying at the trial of Plaintiff\u2019s automobile accident case and had obtained the issuance of a subpoena directed to Dr. Carbone compelling him to appear and testify on that occasion, \u201cPlaintiff\u2019s counsel discovered . . . [that] the Sheriff\u2019s Department had been unable to locate Dr. Carbone for service,\u201d forcing Plaintiff\u2019s counsel to \u201cretainQ the services of. . . a licensed private investigatorQ to complete service of the Subpoena upon Dr. Carbone.\u201d Dr. Carbone\u2019s \u201crepeated failure and refusal to communicate with Plaintiff\u2019s counsel\u201d allegedly resulted in Plaintiff settling his lawsuit for $17,000 when the actual damages were estimated to be \u201cat least $100,000.\u201d As a result of the fact that Dr. Carbone\u2019s actions allegedly constituted gross negligence, the fact that Dr. Carbone allegedly acted with malice, and the fact that Dr. Carbone\u2019s actions should be imputed to the remaining Defendants, Plaintiff alleged that he was entitled to recover compensatory and punitive damages from Dr. Carbone for common law obstruction of justice, gross negligence, and spoliation of evidence.\nOn 26 June 2009, Defendants filed an answer denying the material allegations of Plaintiffs complaint and moving to dismiss it pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rules 9(j) and 12(b)(6). On 6 October 2009, Defendants filed a separate dismissal motion pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rules 9(j) and 12(b)(6). At a hearing held on 30 November 2009, the trial court heard argument concerning Defendants\u2019 dismissal motions. In view of the fact that it considered various materials tendered by Plaintiff in deciding the issues raised by Defendants\u2019 dismissal motion, the trial court treated Defendants\u2019 motion as a request for the entry of summary judgment. After considering the arguments of counsel, the authorities submitted by the parties, and the materials submitted by Plaintiff, the trial court found that there were no genuine issues of material fact and that Defendants were entitled to judgment in their favor as a matter of law. Plaintiff noted an appeal to this Court from the trial court\u2019s order.\nII. Analysis\nA. Conversion of Motion to Dismiss\nIn his first challenge to the trial court\u2019s order, Plaintiff argues that the trial court erred by converting Defendants\u2019 motion to dismiss Plaintiff\u2019s complaint pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6) to a motion for summary judgment pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 56. We disagree.\nAt he hearing held in connection with Defendants\u2019 dismissal motion, Plaintiff tendered a number of documents for the trial court\u2019s consideration, including a series of letters that Plaintiff\u2019s counsel sent to Dr. Carbone\u2019s office, a copy of several subpoenas directed to Dr. Carbone, a copy of the report that Dr. Carbone transmitted to Plaintiff\u2019s counsel, a copy of the police report relating to the motor vehicle collision in which Plaintiff was injured, and copies of various facsimile transmission statements and a postal service receipt. As we understand the record, no party objected to Plaintiff\u2019s request that the trial court consider these documents in ruling on Defendants\u2019 dismissal motion. In its order, the trial court noted that it considered the exhibits tendered by Plaintiff in making its decision and was, for that reason, required to treat Defendants\u2019 dismissal motion as a motion for summary judgment in accordance with N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b). On appeal, Plaintiff contends that the trial court\u2019s decision to convert Defendants\u2019 dismissal motion into one for summary judgment deprived him of his right to proper notice and precluded him from deposing various potential witnesses, including Dr. Carbone.\nIf, on a motion asserting the defense numbered (6), to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.\nN.C.R. Civ. P. 12(b); see also Charlotte Motor Speedway, Inc. v. Tindall Corp., 195 N.C. 296, 300, 672 S.E.2d 691, 693 (2009) (stating that \u201c \u2018[a] motion to dismiss for failure to state a claim is \u201cconverted to a Rule 56 motion for summary judgment when matters outside the pleadings are presented to and not excluded by the court\u201d \u2019 \u201d) (quoting King v. Cape Fear Mem Hosp., Inc., 96 N.C. App. 338, 342, 385 S.E.2d 812, 815 (1989), disc. review denied, 326 N.C. 265, 389 S.E.2d 114 (1990). \u201cReviewing courts have looked to cues in the trial court\u2019s order to determine whether it considered matters outside the pleadings.\u201d Id. at 300, 672 S.E.2d at 693 (citing Lowder v. Lowder, 68 N.C. App. 505, 506, 315 S.E.2d 520, 521 (1984)). Although a party confronted with the conversion of a dismissal motion into a summary judgment motion is entitled to \u201cbe given reasonable opportunity to present all materials made pertinent to such a motion by Rule 56,\u201d \u201c [i]t is significant that the rule provides [for] a \u2018reasonable opportunity\u2019 rather than requiring that the presentation of materials be in accordance with Rule 56.\u201d Raintree Homeowners Assoc., 62 N.C. App. at 673, 303 S.E.2d at 582; see also Kemp v. Spivey, 166 N.C. App. 456, 462, 602 S.E.2d 686, 690 (2004) (holding that the trial court erred by converting a dismissal motion to a summary judgment motion without affording the parties \u201c \u2018a reasonable opportunity to present all material made pertinent to such a motion by Rule 56\u2019 \u201d) (citing N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)). However, in the event that a party faced with a trial court\u2019s decision to consider materials outside the pleadings in connection with a dismissal motion lodged pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6) does \u201cnot request a continuance or additional time to produce evidence under Rule 56(f)\u201d and \u201cfully participates in the hearing,\u201d that party \u201ccannot now complain that they were denied a reasonable opportunity to present materials to the court.\u201d Belcher, 162 N.C. App. at 84, 590 S.E.2d at 18 (2004) (citing Knotts v. City of Sanford, 142 N.C. App. 91, 97-98, 541 S.E.2d 517, 521 (2001); see also Tindall, 195 N.C. App. at 300, 672 S.E.2d at 693-94) (stating that, \u201cwhere non- movants fully participated in the hearing on a motion to dismiss, observed that matters beyond the pleadings were being considered, and failed to request additional time to produce evidence, reviewing courts have not been persuaded that dismissal was inappropriate\u201d) (citing Belcher, 162 N.C. App. at 84, 590 S.E.2d at 18), Homeowners Assoc., 62 N.C. App. at 673, 303 S.E.2d at 582 (stating that, in the event that material outside the pleadings is tendered to the trial court at a hearing held in connection with a dismissal motion filed pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6), \u201cthe proper action for counsel to take is to request a continuance or additional time to produce evidence\u201d and that, \u201c[b]y participating in the hearing and failing to request a continuance or additional time to produce evidence, a party waives his right to [the] procedural notice\u201d otherwise afforded by N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)) (citing Raintree Corp. v. Rowe, 38 N.C. App. 664, 667-68, 248 S.E.2d 904, 907 (1978) and Story v. Story, 27 N.C. App. 349, 219 S.E.2d 245 (1975).\nThe record clearly reflects that, after tendering the additional materials described above, Plaintiff did not request additional time in order to engage in discovery or present other materials for the trial court\u2019s consideration, move to continue the hearing, or lodge an objection to any decision by the trial court to consider material outside the pleadings. Having failed to \u201crequest a continuance or additional time to produce evidence\u201d and having \u201cparticipated in the hearing on the motion for summary judgment without objection or request for continuance,\u201d Raintree Homeowners Assoc., 62 N.C. App. at 674, 303 S.E.2d at 582, Plaintiff waived the right to argue on appeal that the trial court erred by treating Defendants\u2019 dismissal motion as one for summary judgment and deciding it on the merits in light of the materials presented at the hearing. As a result, we conclude that Plaintiff is not entitled to relief on appeal based on the trial court\u2019s decision to treat Defendants\u2019 dismissal motion as one for summary judgment and to decide that motion without providing for additional notice, discovery, or development of the record.\nB. Summary Judgment\nSecondly, Plaintiff contends that the trial court erred by granting summary judgment in favor of Defendants with respect to his claim for common law obstruction of justice on the grounds that he adequately stated a claim for relief in his complaint. Once again, we disagree.\nOrders granting summary judgment are subject to de novo review. Summey v. Barker, 357 N.C. 492, 496, 586 S.E.2d 247, 249 (2003). \u201c[T]he standard of review on appeal from summary judgment is whether there is any genuine issue of material fact and whether the moving party is entitled to a judgment as a matter of law.\u201d Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998) (citing Wilmington Star News v. New Hanover Regional Medical Center, 125 N.C. App. 174, 178, 480 S.E.2d 53, 55, appeal dismissed, 346 N.C. 557, 488 S.E.2d 826 (1997)). \u201c[T]he evidence presented by the parties must be viewed in the light most favorable to the non-movant.\u201d Id. Summary judgment is proper where \u201cthe pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u201d N.C.R. Civ. P. 56(c). \u201cA genuine issue of material fact has been defined as one in which \u2018the facts alleged are such as to constitute a legal defense or are of such nature as to affect the result of the action, or if the resolution of the issue is so essential that the party against whom it is resolved may not prevail.\u2019\u201d Smith v. Smith, 65 N.C. App. 139, 142, 308 S.E.2d 504, 506 (1983) (quoting Zimmerman v. Hogg & Allen, 286 N.C. 24, 29, 209 S.E.2d 795, 798 (1975) (quoting McNair v. Boyette, 282 N.C. 230, 235, 192 S.E.2d 457, 460 (1972))). \u201cA defendant may show entitlement to summary judgment by: \u2018(1) proving that an essential element of the plaintiff\u2019s claim is nonexistent, or (2) showing through discovery that the plaintiff cannot produce evidence to support an essential element of his or her claim, or (3) showing that the plaintiff cannot surmount an affirmative defense which would bar the claim.\u201d Carbone v. JBSS, LLC, - N.C. App. -, -, 684 S.E.2d 41, 46 (2009) (quoting James v. Clark, 118 N.C. App. 178, 181, 454 S.E.2d 826, 828, disc. review denied, 340 N.C. 359, 458 S.E.2d 187 (1995)). \u201cAs a result, summary judgment may be entered against a party if the nonmovant fails to allege or forecast evidence supporting all elements of his claim.\u201d One Beacon v. United Mechanical Corp., \u2014 N.C. App. \u2014, \u2014, 700 S.E.2d 121, 123 (2010) (citing Edwards v. GE Lighting Sys., Inc., 193 N.C. App. 578, 582, 668 S.E.2d 114, 116 (2008) and Fabrikant v. Currituck Cty., 174 N.C. App. 30, 38, 621 S.E.2d 19, 25-26 (2005) (other citation omitted).\n\u201cObstruction of justice is a common law offense in North Carolina.\u201d In re Kivett, 309 N.C. 635, 670, 309 S.E.2d 442, 462 (1983). \u201cIt is an offense to do any act which prevents, obstructs, impedes or hinders public or legal justice.\u201d Broughton v. McClatchy Newspapers, Inc., 161 N.C. App. 20, 33, 588 S.E.2d 20, 30 (2003) (citing Burgess v. Busby, 142 N.C. App. 393, 408-09, 544 S.E.2d 4, 12, disc. review improvidently allowed, 354 N.C. 351, 553 S.E.2d 679 (2001)). As a result, \u201cacts which obstruct, impede or hinder public or legal justice ... amount to the common law offense of obstructing justice,\u201d so that a complaint alleging that the defendants engaged in such activities states a claim for relief. Henry v. Deen, 310 N.C. 75, 87, 310 S.E.2d 326, 334 (1984); see also Grant v. High Point Reg\u2019l Health Sys., 184 N.C. App. 250, 255-56, 645 S.E.2d 851, 855 (2007), disc. review improvidently allowed, 362 N.C. 502, 666 S.E.2d 757 (2008) (stating that the \u201c[pjlaintiff\u2019s complaint stated a cause of action for common law obstruction of justice\u201d in that it alleged \u201c \u2018acts which obstruct, impede or hinder public or legal justice and would amount to the common law offense of obstructing justice\u2019\u201d) (quoting Henry, 310 N.C. at 87, 310 S.E.2d at 334).\n\u201c \u2018The common law offense of obstructing public justice may take a variety of forms.\u2019 \u201d Kivett, 309 N.C. at 670, 309 S.E.2d at 462 (quoting 67 C.J.S. Obstructing Justice \u00a7\u00a7 1, 2 (1978)). In Henry and Grant, allegations that the defendants had destroyed certain medical records and created other false medical records for the purpose of defeating a medical negligence claim were held to be sufficient to state a claim for common law obstruction of justice. Henry, 310 N.C. at 88, 310 S.E.2d at 334-35 (stating that, \u201c[w]here, as alleged here, a party deliberately destroys, alters or creates a false document to subvert an adverse party\u2019s investigation of his right to seek a legal remedy, and injuries are pleaded and proven, a claim for the resulting increased costs of the investigation will lie\u201d); Grant, 184 N.C. App. at 255-56, 645 S.E.2d at 855 (stating that allegations that \u201cDefendant destroyed the medical records of the decedent\u201d so as to \u201ceffectively preclude [] Plaintiff from obtaining the required Rule 9(j) certification\u201d and prevent \u201c \u2018Plaintiff from being able to successfully prosecute a medical malpractice action against . . . Defendant . . . and others\u2019 \u201d \u201cstated a cause of action for common law obstruction of justice\u201d). Similarly, this Court has held that \u201cPlaintiff\u2019s complaint sufficiently allege [d] a cause of action for common law obstruction of justice in that it alleges (1) defendant alerted health care providers to the names of the jurors [who returned a verdict against another health care provider in a medical negligence case] in retaliation for their verdict; (2) this retaliation was designed to harass plaintiffs; and (3) defendant\u2019s conduct was meant to obstruct the administration of justice[.]\u201d Burgess, 142 N.C. App. at 409, 544 S.E.2d at 13. As a result, any action intentionally undertaken by the defendant for the purpose of obstructing, impeding, or hindering the plaintiff\u2019s ability to seek and obtain a legal remedy will suffice to support a claim for common law obstruction of justice.\nAt the hearing held before the trial court and on appeal, Plaintiff contends that Dr. Carbone\u2019s failure to appear for the purpose of testifying at Plaintiff\u2019s negligence trial and his statement in the medical report indicating that Plaintiff\u2019s injuries were work-related rather than having their origin in a motor vehicle collision constituted \u201cintentional, willful, wanton and malicious\u201d acts that damaged Plaintiff by causing him to settle his automobile accident case for less than its actual value. As a general proposition, a refusal to appear to testify or obstructing the efforts of others to appear and testify, 67 C.J.S. Obstructing Justice \u00a7 37 (2002), or the falsification of evidence, 67 C.J.S. Obstructing Justice \u00a7 32 (2002), could, under certain circumstances, support a finding of liability for common law obstruction of justice. We do not believe, however, that the facts disclosed in the present record provide any basis for holding Dr. Carbone and, vicariously, the other Defendants, liable under either of the theories that Plaintiff has espoused.\nThe record clearly indicates that Plaintiff never obtained proper service of a subpoena requiring Dr. Carbone to appear and testify at the trial of Plaintiff\u2019s automobile accident. As this Court has noted, \u201c[s]ubject to the protections of [N.C. Gen. Stat. \u00a7 1A-1,] Rule 45(c), the obligation to appear as a witness is perfected when the subpoena is served on the witness.\u201d Greene v. Hoekstra, 189 N.C. App. 179, 181, 657 S.E.2d 415, 417 (2008); see also N.C. Gen. Stat. \u00a7 1A-1, Rule 45(e)(1) (stating that a \u201c[f]ailure by any party without adequate cause to obey a subpoena served upon the party shall also subject the party to the sanctions provided in Rule 37(d)\u201d). In the absence of a properly served subpoena or other process or a judicial decree requiring his presence, Dr. Carbone had no duty to appear and testify at the trial of Plaintiff\u2019s automobile accident case. The fact that a witness fails to appear and testify at a civil trial without having been properly served with a valid subpoena simply does not suffice to support a finding of liability for common law obstruction of justice in the absence of allegation and proof that the person in question took affirmative action to preclude service of the required subpoena. The record is completely devoid of any information tending to show that Dr. Carbone did anything to obstruct the ability of others to serve such a subpoena on him. Thus, the first theory upon which Plaintiff seeks to have Dr. Carbone and the remaining Defendants found liable for common law obstruction of justice is without merit.\nAlthough Plaintiff argues vigorously that Dr. Carbone rendered himself liable for common law obstruction of justice by stating in his report that Plaintiff\u2019s injuries stemmed from an incident in the workplace rather than from an automobile accident and by failing to correct this error once it was brought to his attention, we do not find this aspect of Plaintiff\u2019s argument persuasive either. First, the available decisional law tends to suggest that no cause of action for common law obstruction of justice lies against \u201cany third party that fails to produce documents or other materials requested by a potential litigant.\u201d Grant, 184 N.C. App. at 257, 645 S.E.2d at 856 (stating that \u201c[w]e are not concerned\u201d by the prospect that a decision in the plaintiff\u2019s favor would result in third party liability for \u201cfail[ing] to produce\u201d such materials because Plaintiff\u2019s allegations were directed at an entity which would have been a defendant in the medical malpractice case). Simply put, we are not aware of any authority establishing that a mere witness, such as Dr. Carbone, could be held liable for common law obstruction of justice on the basis of a failure to provide an accurate report or a failure to correct an allegedly inaccurate report requested by a party to litigation. Secondly, aside from the fact that the error in Dr. Carbone\u2019s report could easily be explained as a typographical error, Plaintiff has neither alleged nor forecast any factual basis for believing that the alleged error in the report that Dr. Carbone provided to Plaintiff\u2019s counsel or any failure on the part of Dr. Carbone to correct that error at the request of Plaintiff\u2019s counsel represented an intentional act on the part of Dr. Carbone undertaken for the purpose of deliberately obstructing, impeding or hindering the prosecution of Plaintiff\u2019s automobile accident case. For example, the record contains absolutely no indication that Dr. Carbone received any benefit or avoided any detriment as the result of having made the alleged error. Thus, even when the information in the record is taken in the light most favorable to Plaintiff, Plaintiff has failed to allege or forecast any specific facts tending to show that Dr. Carbone intentionally created an erroneous medical report and then failed to correct it for the purpose of disrupting or obstructing plaintiff\u2019s automobile accident case. As a result, given the absence of any allegation or forecast of specific facts tending to show that Dr. Carbone deliberately inserted an inaccuracy into his report and then intentionally failed to correct it for the purpose of obstructing, impeding, or hindering Plaintiffs ability to maintain his automobile accident claim, we conclude that the trial court properly granted summary judgment in favor of Defendants on this aspect of Plaintiffs common law obstruction of justice claim as well. Broughton, 161 N.C. App. at 33, 588 S.E.2d at 30 (stating that, given the absence of any \u201cevidence that [the plaintiffs case] was in some way judicially prevented, obstructed, impeded or hindered by the acts of defendants,\u201d the trial court properly granted summary judgment in favor of the defendants with respect to the plaintiffs common law obstruction of justice claim).\nIII. Conclusion\nThus, for the reasons set forth above, we conclude that none of Plaintiff\u2019s challenges to the trial court\u2019s order have merit and that the trial court properly granted summary judgment in favor of Defendants. As a result, the trial court\u2019s order should be, and hereby is, affirmed.\nAFFIRMED.\nChief Judge MARTIN and Judge McGEE concur.\n. In their brief, Defendants argue that we should \u201caddress\u201d a number of instances in which Plaintiff allegedly violated various provisions of the North Carolina Rules of Appellate Procedure, including discussing an additional issue in the conclusion section of his brief without having mentioned that issue in the list of issues for review set out at the beginning of his brief in violation of N.C.R. App. P. 28(b)(2), failing to set out his entire argument in the appropriate section of his brief and omitting a statement of the applicable standard of review with respect to each issue as required by N.C.R. App. P. 28(b)(6), and failing to include a statement of the specific relief sought on appeal contrary to N.C.R. App. P. 28(b)(7). Although we agree that Plaintiff\u2019s brief does not strictly comply with the relevant provisions of N.C.R. App. P. 28, we do not believe that these deficiencies are jurisdictional in nature or constitute any sort of default. Instead, we believe that they constitute a violation of nonjurisdictional requirements that \u201cnormally should not lead to dismissal of the appeal.\u201d Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 194, 198, 657 S.E.2d 361, 363, 365 (2008). Since Plaintiff\u2019s noncompliance with various aspects of N.C.R. App. P. 28 has not impaired our ability to review Plaintiff\u2019s challenges to the trial court\u2019s order or otherwise frustrated the adversarial process, Id., at 200, 657 S.E.2d at 366-67, we decline Defendants\u2019 invitation to refrain from considering certain of Plaintiff\u2019s arguments on appeal.\n. A trial court\u2019s decision to consider documents referenced in a plaintiffs complaint in deciding a dismissal motion made pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6) does not result in the conversion of that motion into a motion for summary judgment made pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 56. Turner v. Hammocks Beach Corp., 192 N.C. App. 50, 57 n.1, 664 S.E.2d 634, 639 n.1 (2008), aff\u2019d, in part and rev\u2019d in part on other grounds, 363 N.C. 555, 681 S.E.2d 770 (2009) (stating that \u201cthe trial court\u2019s review of [certain documents] did not convert the motion to dismiss into a summary judgment motion\u201d because \u201cPlaintiffs referred to these documents in their complaint and because Plaintiffs\u2019 claims relied upon these documents\u201d); Brackett v. SGL Carbon Corp., 158 N.C. App. 252, 255, 580 S.E.2d 757, 759 (2003) (holding that the trial court was entitled to consider an administrative complaint and right-to-sue letter referenced in the plaintiff\u2019s complaint without converting the defendant\u2019s motion into one for summary judgment). Each of the letters that were tendered to the trial court were referenced in Plaintiff\u2019s complaint. Plaintiff\u2019s complaint mentions Dr. Carbone\u2019s report as well. Although several of the letters mention that copies of subpoenas directed to Dr. Carbone were enclosed, there is no reference to the copy of Dr. Carbone\u2019s initial report or the accident report relating to Plaintiffs motor vehicle collision in any of these letters. As a result, we are unable to conclusively determine whether all of the documents that were tendered to the trial court were originally components of the letters referenced in Plaintiff\u2019s complaint or were otherwise mentioned in that filing. In the event that all of the documents that were tendered to the trial court were mentioned in or associated with the letters discussed in Plaintiff\u2019s complaint, there would have been no need for the trial court to convert Defendants\u2019 dismissal motion into one for summary judgment, depriving Plaintiff\u2019s challenge to the trial court\u2019s conversion decision of merit for that reason as well.\n. As we understand Plaintiff\u2019s argument, he is not contending that the trial court erred by considering the documents that he tendered during the hearing; instead, he essentially argues that the trial court erred by failing to give him time to develop and present even more evidentiary materials. Having invited any error that the trial court may have committed by considering these materials, State v. Chatman, 308 N.C. 169, 177, 301 S.E.2d 71, 76 (1983) (stating that \u201c \u2018invited error [is not] grounds for a new trial\u2019 \u201d) (quoting State v. Waddell, 289 N.C. 19, 25, 220 S.E.2d 293, 298 (1975), vacated in part by 428 U.S. 904, 49 L. Ed. 2d 1210, 96 S. Ct. 3211 (1976), and citing State v. Gaskill, 256 N.C. 652, 657, 124 S.E.2d 873, 877 (1962); State v. Williams, 255 N.C. 82, 88, 120 S.E.2d 442, 447 (1961); State v. Case, 253 N.C. 130, 139, 116 S.E.2d 429, 435 (1960), cert. denied, 365 U.S. 830, 5 L. Ed. 2d 707, 81 S. Ct. 717 (1961); State v. Payne, 280 N.C. 170, 171, 185 S.E.2d 101, 102 (1971); Overton v. Overton, 260 N.C. 139, 145, 132 S.E.2d 349, 353 (1963), Plaintiff cannot successfully contend that the trial court abused its discretion by considering materials that he submitted for its review. Belcher v. Fleetwood Enters., Inc., 162 N.C. App. 80, 84, 590 S.E.2d 15, 18 (2004) (stating that \u201c[t]he standard of review of a trial court\u2019s decision to convert a Rule 12(b)(6) motion to a Rule 56 motion is abuse of discretion\u201d) (citing Raintree Homeowners Assoc. v. Raintree Corp., 62 N.C. App. 668, 673-74, 303 S.E.2d 579, 582, disc. review denied, 309 N.C. 462, 307 S.E.2d 366 (1983).\n. In their brief, Defendants note that Plaintiffs complaint appears to assert claims for gross negligence and common law spoliation of evidence in addition to a claim for common law obstruction of justice. However, since Plaintiff has not argued on appeal that the trial court erred by granting summary judgment in favor of Defendants with respect to these claims, we need not address the extent, if any, to which the trial court erred by entering judgment in favor of Defendants with respect to these claims. N.C.R. App. P. 28(a) (stating that \u201c[i]ssues not presented and discussed in a party\u2019s brief are deemed abandoned\u201d).\n. As a result of the fact that the allegations in Plaintiff\u2019s complaint essentially restate the material facts revealed by the letters and other materials tendered to the trial court at the hearing, we will base our analysis of the sufficiency of Plaintiffs evidentiary forecast upon the facts, as compared to the legal conclusions, stated in Plaintiffs complaint and reiterated in the materials tendered at the hearing.\n. The necessity for showing an intentional act of misconduct by the defendant is delineated in a number of criminal obstruction of justice cases. State v. Dietze, 190 N.C. App. 198, 201, 660 S.E.2d 197, 199 (2008) (stating that the State is required to adduce evidence of \u201cmalicious intent\u201d to prove obstruction of justice); State v. Wright, - N.C. App. -, 696 S.E.2d 832, 835 (2010) (stating that intent is an element of felonious common law obstruction of justice); see also Hess v. Medlock, 820 F.2d 1368, 1373 (4th Cir. 1987) (stating that \u201c[[t]he [South Carolina] common law crime of obstruction of justice ... is committed whenever a defendant intentionally performs \u2018any act which prevents, obstructs, impedes, or hinders the administration of justice\u2019 \u201d) (applying South Carolina law).\n. Although Plaintiff tried to serve Dr. Carbone with a subpoena both personally and through the use of registered mail, a nurse employed in Dr. Carbone\u2019s office actually received the subpoena instead of Dr. Carbone on each occasion when service was attempted. According to N.C. Gen. Stat. \u00a7 1A-1, Rule 45(b)(1), \u201cservice of a subpoena upon a person named therein shall be made by delivering a copy thereof to that person or by registered or certified mail, return receipt requested.\u201d\n. Although Plaintiff has alleged that Dr. Carbone\u2019s conduct was intentional and malicious, \u201can affiant\u2019s legal conclusions, as opposed to facts \u2018as would be admissible in evidence,\u2019 are not to be considered by the trial court on a motion for summary judgment.\u201d Strickland v. Doe, 156 N.C. App. 292, 296, 577 S.E.2d 124, 129 (citing Singleton v. Stewart, 280 N.C. 460, 467, 186 S.E.2d 400, 405 (1972)), disc. review denied, 357 N.C. 169, 581 S.E.2d 447 (2003). Thus, given the absence of any factual basis for Plaintiffs contentions concerning Dr. Carbone\u2019s mental state, we conclude that Plaintiff has failed to sufficiently forecast evidence that Dr. Carbone acted with the degree of deliberation and intentionality necessary to establish liability for common law obstruction of justice.\n. We need not address the extent, if any, to which Dr. Carbone\u2019s conduct constituted an act of professional negligence or the extent to which Plaintiffs claim might be barred under an election of remedies theory given that Plaintiff has not asserted such a professional negligence claim in his complaint or argued on appeal that Dr. Carbone might be liable to him on that basis and given that Defendants have not argued at trial or on appeal that Plaintiffs claim is barred by the doctrine of election of remedies. N.C.R. App. P. 28(a).",
        "type": "majority",
        "author": "ERVIN, Judge."
      }
    ],
    "attorneys": [
      "Franklin Smith for plaintiff-appellant.",
      "Nexsen Pruet, PLLC, by Gary L. Beaver and Stephen W. Coles, for defendant-appellees."
    ],
    "corrections": "",
    "head_matter": "JAMES BLACKBURN, Plaintiff v. DOMINICK J. CARBONE, M.D., WAKE FOREST UNIVERSITY BAPTIST MEDICAL CENTER, THE NORTH CAROLINA BAPTISTS HOSPITALS, INC., NORTH CAROLINA BAPTIST HOSPITAL and WAKE FOREST UNIVERSITY HEALTH SCIENCES, Defendants\nNo. COA10-602\n(Filed 21 December 2010)\n1. Appeal and Error\u2014 preservation of issues \u2014 motion to dismiss converted to motion for summary judgment \u2014 failure to request continuance or additional time to produce evidence \u2014 waiver\nThe trial court did not err in a gross negligence, spoliation of evidence, and common law obstruction case by converting defendants\u2019 motion to dismiss plaintiff\u2019s complaint under N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) to a motion for summary judgment under N.C.G.S. \u00a7 1A-1, Rule 56. Having failed to request a continuance or additional time to produce evidence and having participated in the hearing on the motion for summary judgment without objection or request for continuance, plaintiff waived the right to argue this issue on appeal.\n2. Obstruction of Justice\u2014 failed to show intentional acts for purpose of disrupting or obstructing \u2014 summary judgment properly granted\nA de novo review revealed that the trial court did not err by granting summary judgment in favor of defendants with respect to a common law obstruction of justice claim. In the absence of a properly served subpoena or other process or a judicial decree requiring his presence, defendant doctor had no duty to appear and testify at the trial of plaintiff\u2019s automobile accident case. Further, plaintiff failed to allege or forecast any specific facts tending to show defendant intentionally created an erroneous medical report and then failed to correct it for the purpose of disrupting or obstructing plaintiff\u2019s automobile accident case.\nAppeal by plaintiff from order entered 19 January 2010 by Judge Anderson D. Cromer in Wilkes County Superior Court. Heard in the Court of Appeals 1 December 2010.\nFranklin Smith for plaintiff-appellant.\nNexsen Pruet, PLLC, by Gary L. Beaver and Stephen W. Coles, for defendant-appellees."
  },
  "file_name": "0519-01",
  "first_page_order": 543,
  "last_page_order": 554
}