{ "id": 3806475, "name": "SANA KINDLEY WATSON, Plaintiff v. KENNETH PRICE, M.D., and REGIONAL NEUROSURGERY PLLC, Defendants", "name_abbreviation": "Watson v. Price", "decision_date": "2011-04-19", "docket_number": "No. COA10-1112", "first_page": "369", "last_page": "375", "citations": [ { "type": "official", "cite": "211 N.C. App. 369" } ], "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": "N.C. Gen. Stat. \u00a7\u00a7 1-52", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(5)" } ], "opinion_index": 0 }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "37" } ], "opinion_index": 0 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "504 S.E.2d 571", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "573-74", "parenthetical": "internal citations and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 751", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11470348 ], "year": 1998, "pin_cites": [ { "page": "755-56", "parenthetical": "internal citations and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0751-01" ] }, { "cite": "478 S.E.2d 649", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "650", "parenthetical": "which itself cites Searles" } ], "opinion_index": 0 }, { "cite": "124 N.C. App. 782", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11890802 ], "year": 1996, "pin_cites": [ { "page": "784", "parenthetical": "which itself cites Searles" } ], "opinion_index": 0, "case_paths": [ "/nc-app/124/0782-01" ] }, { "cite": "541 S.E.2d 471", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "351 N.C. 122", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155968, 1155715, 1155779, 1155758, 1155798 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/351/0122-02", "/nc/351/0122-05", "/nc/351/0122-01", "/nc/351/0122-04", "/nc/351/0122-03" ] }, { "cite": "516 S.E.2d 191", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1999, "pin_cites": [ { "page": "193" }, { "page": "193" }, { "page": "193" } ], "opinion_index": 0 }, { "cite": "133 N.C. App. 636", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11221127 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "638" } ], "opinion_index": 0, "case_paths": [ "/nc-app/133/0636-01" ] }, { "cite": "674 S.E.2d 742", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "747" } ], "opinion_index": 0 }, { "cite": "196 N.C. App. 249", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4165898 ], "year": 2009, "pin_cites": [ { "page": "255" } ], "opinion_index": 0, "case_paths": [ "/nc-app/196/0249-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 1-75.12", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "91 S.E. 359", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1917, "pin_cites": [ { "page": "361", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "173 N.C. 14", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11268539 ], "year": 1917, "pin_cites": [ { "page": "17", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/173/0014-01" ] }, { "cite": "398 S.E.2d 55", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "56", "parenthetical": "\"An announcement of judgment in open court constitutes the rendition of judgment, not its entry.\"" }, { "page": "57", "parenthetical": "noting that \"the judgment is not enforceable as between the parties to this action as it has not been entered\"" } ], "opinion_index": 0 }, { "cite": "100 N.C. App. 723", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527547 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "726", "parenthetical": "\"An announcement of judgment in open court constitutes the rendition of judgment, not its entry.\"" }, { "page": "726-27" } ], "opinion_index": 0, "case_paths": [ "/nc-app/100/0723-01" ] }, { "cite": "493 S.E.2d 450", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "347 N.C. 263", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551138, 551077, 551207, 551251, 551284 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/347/0263-05", "/nc/347/0263-03", "/nc/347/0263-02", "/nc/347/0263-04", "/nc/347/0263-01" ] }, { "cite": "486 S.E.2d 735", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "737-38" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 800", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11713506 ], "pin_cites": [ { "page": "803" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0800-01" ] }, { "cite": "519 S.E.2d 316", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 1 }, { "cite": "351 N.C. 47", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155914 ], "year": 1999, "opinion_index": 1, "case_paths": [ "/nc/351/0047-01" ] }, { "cite": "508 S.E.2d 329", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "330" } ], "opinion_index": 1 }, { "cite": "131 N.C. App. 548", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11202658 ], "year": 1998, "pin_cites": [ { "page": "550" } ], "opinion_index": 1, "case_paths": [ "/nc-app/131/0548-01" ] }, { "cite": "554 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "7" } ], "opinion_index": 1 }, { "cite": "146 N.C. App. 483", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11359685 ], "year": 2001, "pin_cites": [ { "page": "494" } ], "opinion_index": 1, "case_paths": [ "/nc-app/146/0483-01" ] }, { "cite": "261 S.E.2d 849", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "854" } ], "opinion_index": 1 }, { "cite": "299 N.C. 174", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574165 ], "year": 1980, "pin_cites": [ { "page": "180" } ], "opinion_index": 1, "case_paths": [ "/nc/299/0174-01" ] }, { "cite": "312 S.E.2d 707", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "708", "parenthetical": "quoting Williams v. Williams, 299 N.C. 174, 180, 261 S.E.2d 849, 854 (1980)" } ], "opinion_index": 1 }, { "cite": "67 N.C. App. 341", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526370 ], "year": 1984, "pin_cites": [ { "page": "343", "parenthetical": "quoting Williams v. Williams, 299 N.C. 174, 180, 261 S.E.2d 849, 854 (1980)" } ], "opinion_index": 1, "case_paths": [ "/nc-app/67/0341-01" ] }, { "cite": "541 S.E.2d 471", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 1 }, { "cite": "351 N.C. 122", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155968, 1155715, 1155779, 1155758, 1155798 ], "year": 1999, "opinion_index": 1, "case_paths": [ "/nc/351/0122-02", "/nc/351/0122-05", "/nc/351/0122-01", "/nc/351/0122-04", "/nc/351/0122-03" ] }, { "cite": "516 S.E.2d 191", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "193" } ], "opinion_index": 1 }, { "cite": "133 N.C. App. 636", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11221127 ], "year": 1999, "pin_cites": [ { "page": "639" } ], "opinion_index": 1, "case_paths": [ "/nc-app/133/0636-01" ] } ], "analysis": { "cardinality": 733, "char_count": 17170, "ocr_confidence": 0.689, "pagerank": { "raw": 8.194307801888517e-08, "percentile": 0.47581519231430097 }, "sha256": "7e02f06e15990b6a325fccf9e64690a19323721c12fd7f76d8fc07928f797b83", "simhash": "1:1a29cf339a053cb8", "word_count": 2955 }, "last_updated": "2023-07-14T21:31:50.212435+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge ERVIN concurs.", "Judge HUNTER, Robert C., concurs in a separate opinion." ], "parties": [ "SANA KINDLEY WATSON, Plaintiff v. KENNETH PRICE, M.D., and REGIONAL NEUROSURGERY PLLC, Defendants" ], "opinions": [ { "text": "STEPHENS, Judge.\nOn 29 September 2009, Plaintiff Sana Kindley Watson (\u201cWatson\u201d) filed a complaint in Durham County Superior Court against Defendants Kenneth Price, M.D. (\u201cDr. Price\u201d) and Regional Neurosurgery PLLC (\u201cRegional\u201d) (collectively, \u201cDefendants\u201d), asserting a medical malpractice claim against Dr. Price and seeking to hold Regional liable for Dr. Price\u2019s alleged malpractice under the theory of respondeat superior. In her complaint, Watson alleged that Dr. Price treated Watson between 9 June 2005 and 9 June 2006.\nOn 18 May 2009, prior to filing her complaint, Watson submitted to the trial court a motion to extend the statute of limitations on her medical malpractice claim pursuant to North Carolina Civil Procedure Rule 9(j). On that same date, Resident Superior Court Judge Orlando F. Hudson, Jr. signed an order granting Watson\u2019s motion and extending the statute of limitations to 2 October 2009; from the record, it appears that Judge Hudson\u2019s Rule 9(j) order was never filed.\nIn December 2009, Defendants filed their answer, which was later amended to include (1) a \u201cFourth Defense\u201d pleading \u201cthe applicable statutes of limitation\u201d \u201cin complete bar to any recovery against them by [Watson]\u201d and (2) a \u201cFifth Defense and Motion to Dismiss\u201d alleging that Watson \u201cfails to state a claim upon which relief can be granted\u201d and seeking dismissal of Watson\u2019s claim pursuant to North Carolina Civil Procedure Rule 12(b)(6).\nOn 1 June 2010, Judge Hudson conducted a hearing on Defendants\u2019 motion to dismiss. In an order dated 9 June 2010, Judge Hudson found that \u201cthe claims set forth in [Watson\u2019s] action are time-barred\u201d and dismissed Watson\u2019s action with prejudice. Watson gave notice of appeal from the order dismissing her claims on 30 June 2010.\nOn appeal, Watson argues that Judge Hudson erred by dismissing Watson\u2019s action on the ground that the claims were time-barred. Watson contends that Judge Hudson\u2019s signature on the Rule 9(j) order was effective to extend the statute of limitations, despite the fact that the order was never filed, and, therefore, the filing of the complaint on 29 September 2009 was within the extended statute of limitations, which expired 2 October 2009. Defendants, on the other hand, argue that \u201cthe [Rule 9(j) order] was not filed, and therefore it did not serve to extend the statute of limitations.\u201d Accordingly, Defendants argue, the statute of limitations expired on 9 June 2009, nearly three months before Watson filed her complaint.\nIn support of their arguments, the parties look to North Carolina Civil Procedure Rule 58, which governs \u201cEntry of judgment\u201d and which states as follows: \u201c[A] judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk of court.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 58 (2009) (emphasis added). This Court has previously held that Rule 58 applies to orders, as well as judgments, such that an order is likewise entered when it is reduced to writing, signed by the judge, and filed with the clerk of court. Abels v. Renfro Corp., 126 N.C. App. 800, 803, 486 S.E.2d 735, 737-38 (holding that an order is entered when it is reduced to writing, signed by the judge, and filed with the clerk of court), disc. review denied, 347 N.C. 263, 493 S.E.2d 450 (1997). However, as Rule 58 simply sets out the requirements for entry of an order and contains no requirement that an order must be entered to be effective, the rule is relevant to this case only insofar as it makes clear that Judge Hudson\u2019s Rule 9(j) order was not entered, but was merely rendered. Searles v. Searles, 100 N.C. App. 723, 726, 398 S.E.2d 55, 56 (1990) (\u201cAn announcement of judgment in open court constitutes the rendition of judgment, not its entry.\u201d). As for the practical difference between rendering and entering in the context of judgments, our Supreme Court long ago stated that\n[t]he rendition of a judgment is the judicial act of the court in pronouncing the sentence of the law upon the facts in controversy as ascertained by th\u00e9 pleadings and verdict, the entry of it being a ministerial act which consists in spreading it upon the record.\nSeip v. Wright, 173 N.C. 14, 17, 91 S.E. 359, 361 (1917) (citation omitted) (emphasis added). It has since been held that a judgment that has merely been rendered, but which has not been entered, is not enforceable until entry. Searles, 100 N.C. App. at 726-27, 398 S.E.2d at 57 (noting that \u201cthe judgment is not enforceable as between the parties to this action as it has not been entered\u201d). The question then is whether that rule applicable to judgments is also applicable to the order in this case, i.e., whether the mere judicial act of issuance or rendition of the Rule 9(j) order effectively extended the statute of limitations, or whether the ministerial act of filing or entry was necessary to give the order force.\nAddressing this question by turning to the rule granting the trial court the power to extend the statute of limitations in medical malpractice cases, it appears that filing is unnecessary and that mere issuance is sufficient. As provided by Rule 9(j),\n[u]pon motion by the complainant prior to the expiration of the applicable statute of limitations, a resident judge of the superior court . . . may allow a motion to extend the statute of limitations for a period not to exceed 120 days to file a complaint in a medical malpractice action in order to comply with this Rule, upon a determination that good cause exists for the granting of the motion and that the ends of justice would be served by an extension.\nN.C. Gen. Stat. \u00a7 1A-1, Rule 9(j) (emphasis added). Per the clear language of the rule, the trial court need only \u201callow a motion\u201d in order to extend the statute of limitations. This wording seems to indicate that it is the judicial act of \u201callowing\u201d the motion, rather than the ministerial act of \u201centering\u201d the order, that extends the statute of limitations. Compare N.C. Gen. Stat. \u00a7\u00a7 1-75.12(a) (\u201cIf, in any action pending in any court of this State, the judge shall find that it would work substantial injustice for the action to be tried in a court of this State, the judge on motion of any party may enter an order to stay further proceedings in the action in this State.\u201d (emphasis added)), 5A-23(e) (2009) (\u201cIf civil contempt is found, the judicial official must enter an order finding the facts constituting contempt and specifying the action which the contemnor must take to purge himself or herself of the contempt.\u201d (emphasis added)). Indeed, it is an oft-cited maxim of statutory construction that expressio unius est exclusio alterius: the expression of one thing is the exclusion of another. See Mangum v. Raleigh Bd. of Adjust., 196 N.C. App. 249, 255, 674 S.E.2d 742, 747 (2009). Accordingly, based on the clear language of Rule 9Q), it appears that a Rule 9(j) order extending the statute of limitations is effective as soon as a trial judge allows a motion to extend and regardless of whether the order is filed.\nHowever, despite the language used in Rule 9(j), there is some authority to suggest that an order extending the statute of limitations pursuant to Rule 9(j) is ineffective until that order is filed. In Webb v. Nash Hospitals, Inc., 133 N.C. App. 636, 516 S.E.2d 191, disc. review denied, 351 N.C. 122, 541 S.E.2d 471 (1999), the plaintiff-appellants filed a motion pursuant to Rule 9(j) on 19 September 1997, which motion was granted in an order dated 12 September 1997 \u2014 seven days before plaintiff-appellants\u2019 motion was filed. Id. at 638, 516 S.E.2d at 193. The order was then filed on 1 October 1997. Id In response to defendant-appellees\u2019 argument that the trial court lacked jurisdiction to grant plaintiff-appellants\u2019 motion \u201cbecause there was no motion pending for the extension of time when the order was signedf,]\u201d this Court held that because the order was not \u201cfiled and \u2018entered\u2019 \u201d until after the motion was \u201cfiled and entered,\u201d the court had jurisdiction to grant the motion. Id. at 638-39, 516 S.E.2d at 193. In so holding, the Court cited Worsham v. Richbourg\u2019s Sales and Rentals, 124 N.C. App. 782, 784, 478 S.E.2d 649, 650 (1996) (which itself cites Searles), for the proposition that \u201cthe mere signature on a judgment that has not been entered is an incomplete judgment.\u201d Id. The obvious implication from the holding in Webb is that the trial court\u2019s order did not effectively grant' the Rule 90) motion until the order was filed. Accordingly, in this case, pursuant to our holding in Webb, we must conclude that Judge Hudson\u2019s Rule 90) order did not extend the statute of limitations because the order was never filed.\nAs further authority to support the conclusion that a Rule 90) order must be filed to be effective, we note the following discussion of Rule 58 and its application to orders by the trial court:\nA judgment is not enforceable between the parties until it is entered. A judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk of court. An announcement of judgment in open court constitutes the rendition of judgment, not its entry. Although Rule 58 specifically refers only to judgments, this Court has held that it applies to orders as well. It follows that an order rendered in open court is not enforceable until it is entered, i.e., until it is reduced to writing, signed by the judge, and filed with the clerk of court.\nWest v. Marko, 130 N.C. App. 751, 755-56, 504 S.E.2d 571, 573-74 (1998) (internal citations and quotation marks omitted). While the conclusion that an order is not enforceable until entry does not necessarily follow from the premise that the Rule 58 entry requirements apply to both orders and judgments, to the extent this Court in West expressly held that orders of the trial court are not enforceable until entry, we find ourselves bound by the conclusion \u2014 if not necessarily the logic \u2014 of this Court\u2019s prior decision. In re Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989).\nAlthough this decision leaves unanswered questions regarding the effectiveness of a Rule 9(j) order filed after the complaint is filed, whether before or after the expiration of the original statute of limitations, suffice it to say that, in this case, the trial court correctly dismissed Watson\u2019s complaint because there was no effective Rule 9(j) extension order filed in the case. The ruling of the trial court is\nAFFIRMED.\nJudge ERVIN concurs.\nJudge HUNTER, Robert C., concurs in a separate opinion.\n. Although generally a three-year statute of limitations is applicable to medical malpractice actions such as this one, Rule 9(j) allows a plaintiff to move a trial court for a 120-day extension of the statute of limitations to allow the plaintiff additional time to comply with the enhanced pleading requirements imposed on a medical malpractice complainant by Rule 9(j). See N.C. Gen. Stat. \u00a7\u00a7 1-52(5), 1A-1, Rule 9 (2009).\n. While \u201crendering\u201d may be a term of art reserved for judgments and not orders, we use that word in the context of orders as it is the recognized counterpart to \u201centering\u201d and appears to be otherwise synonymous with \u201cissuing\u201d or \u201cpronouncing.\u201d\n. We note that North Carolina Rule of Civil Procedure 5(d) provides that \u201c[a]ll orders issued by the court\u201d \u201cshall be filed with the court[.]\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 5(d) (2009). However, while Rule 5(d) requires a Rule 9(j) order to be filed with the court, that rule does not specify a time in which the order must be filed, nor does it provide a sanction for any party\u2019s failure to file such an order.\n. The trial court subsequently granted defendant-appellees\u2019 motion to dismiss the complaint based on plaintiff-appellants\u2019 failure to properly serve the motion on defendant-appellees. Webb, 133 N.C. App. at 638, 516 S.E.2d at 193.", "type": "majority", "author": "STEPHENS, Judge." }, { "text": "HUNTER, Robert C., Judge,\nconcurring.\nI concur with the majority that Webb v. Nash Hosp., Inc., 133 N.C. App. 636, 639, 516 S.E.2d 191, 193, disc. review denied, 351 N.C. 122, 541 S.E.2d 471 (1999), where this Court held that \u201cthe mere signature on a judgment that has not been entered is an incomplete judgment^]\u201d is controlling in the present case. I write separately to point out that the legislature never intended to create a filing requirement for an order granting a plaintiff\u2019s motion to extend the time within which plaintiff must file his or her complaint pursuant to Rule 9(j) of the North Carolina Rules of Civil Procedure.\nAs acknowledged by the majority, the plain language of Rule 9(j) sets forth that a plaintiff must make a motion to extend the statute of limitations prior to the expiration of the applicable statute of limitations and that a superior court judge may allow the motion \u201cfor a period not to exceed 120 days . . . .\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 9(j) (2009). Therefore, the motion is effective when the order is allowed. Rule 9(j) does not mandate that the order be filed with the clerk of court. \u201cWhen the language of a statute is clear and without ambiguity, \u2018there is no room for judicial construction,\u2019 and the statute must be given effect in accordance with its plain and definite meaning.\u201d Avco Financial Services v. Isbell, 67 N.C. App. 341, 343, 312 S.E.2d 707, 708 (1984) (quoting Williams v. Williams, 299 N.C. 174, 180, 261 S.E.2d 849, 854 (1980)).\nFurthermore, while I agree with the ultimate outcome of the Webb case, I disagree with the Court\u2019s application of Rule 58 in that the Court broadened the scope of Rule 58 to apply to an ex parte order entered before an action is commenced. \u201c[T]he purposes of the requirements of Rule 58 are to make the time of entry of judgment easily identifiable, and to give fair notice to all parties that judgment has been entered.\u201d Durling v. King, 146 N.C. App. 483, 494, 554 S.E.2d 1, 7 (2001). It is my interpretation that Rule 58 only applies to judgments and orders entered subsequent to the filing of a complaint where the defendant is, in many cases, required to take action within a set period of time. Notice is not an issue in this circumstance where an extension of time is granted to file a complaint, but an action has not been instituted.\nWhen a plaintiff requests an extension of the statute of limitations, the relevant dates are: (1) the date when the motion was filed, which must be prior to the expiration of the applicable statute of limitations, and (2) the date set by the trial court as the new deadline for filing the complaint. These dates are set out in the trial court\u2019s order and only pertain to plaintiff\u2019s deadline for filing a complaint; the granting of the order has no effect on potential defendants. Moreover, our Court has clearly held that the order granting a Rule 9(j) extension of time to file the complaint does not have to be served on the potential defendants since a complaint has not been filed. Timour v. Pitt County Memorial Hosp., Inc., 131 N.C. App. 548, 550, 508 S.E.2d 329, 330 (1998), aff\u2019d per curiam, 351 N.C. 47, 519 S.E.2d 316 (1999). The implication is that potential defendants are not prejudiced by the lack of notice that an extension has been granted. In fact, all medical professionals subject to a medical malpractice lawsuit are on notice by the plain language of Rule 9(j) that a medical malpractice action must be filed within three years, or up to 120 days beyond the three-year deadline should the trial court grant an ex parte motion for an extension. There is no practical rationale for service of the order or entry of the order with the clerk of court.\nThe Court in Webb was faced with resolving a narrow issue regarding the authority of the trial court to enter the order for an extension of the statute of limitations when it held that Rule 58 applied and that an order granting an extension under Rule 9(j) must be \u201centered\u201d to be effective. Clearly, the Court did not contemplate the type of situation currently before us when it made this broad declaration. In sum, the plain language of Rule 9(j) should control in this case, not Rule.58 as applied in Webb. In other words, a Rule 9(j) order should be considered effective when allowed by the trial court.\n. I recognize that the better practice would be to serve and file the ex parte order; however, I do not believe that such actions are required.", "type": "concurrence", "author": "HUNTER, Robert C., Judge," } ], "attorneys": [ "Bryant, Patterson, Covington, Lewis & Lindsley, P.A., by David O. Lewis, for Plaintiff", "Young Moore and Henderson P.A., by William P. Daniell and Kelly E. Street, for Defendant." ], "corrections": "", "head_matter": "SANA KINDLEY WATSON, Plaintiff v. KENNETH PRICE, M.D., and REGIONAL NEUROSURGERY PLLC, Defendants\nNo. COA10-1112\n(Filed 19 April 2011)\nMedical Malpractice\u2014 Rule 9(j) \u2014 order extending statute of limitations \u2014 not effective \u2014 not filed\nAn order under N.C.G.S. \u00a7 1A-1, Rule 9(j) extending the statute of limitations must be filed to be effective and the trial court in this case correctly dismissed the complaint because a Rule 90) order that was signed but never filed did not extend the statute of limitations.\nJudge HUNTER, Robert C., concurring.\nAppeal by Plaintiff from order dated 9 June 2010 by Judge Orlando F. Hudson, Jr. in Durham County Superior Court. Heard in the Court of Appeals 22 February 2011.\nBryant, Patterson, Covington, Lewis & Lindsley, P.A., by David O. Lewis, for Plaintiff\nYoung Moore and Henderson P.A., by William P. Daniell and Kelly E. Street, for Defendant." }, "file_name": "0369-01", "first_page_order": 377, "last_page_order": 383 }