STEVE MANLEY, Personally and as Administrator of the Estate of Clarence Manley, deceased, Plaintiff,
MAPLE GROVE NURSING HOME, SNOWSHOE LTC GROUP, LLC, PRINCIPLE LONG TERM CARE, INC. and BRITTHAVEN, INC., Defendants.
in the Court of Appeals 6 June 2019.
by Plaintiff from order entered 13 January 2017 by Judge
Lindsay R. Davis, Jr., in Guilford County No. 16 CVS 4501
Schwaba Law Firm, PLLC, by Andrew J. Schwaba and Zachary D.
Walton, for Plaintiff-Appellant.
Kyle Burch & Medlin, LLC, by Brian H. Alligood, for
Steve Manley appeals from the trial court's 13 January
2017 order that, inter alia, denied his motion to
amend his complaint on the grounds of futility. Because the
13 January 2017 order was interlocutory, and Plaintiff failed
to appeal from the 23 October 2018 final order granting
Defendants summary judgment in the case, we lack jurisdiction
to hear Plaintiff's appeal. Accordingly, we dismiss
matter arises out of an accident that took place at Defendant
Maple Grove Nursing Home's facility, in which decedent
Clarence Manley ("Decedent") fell and injured
himself, an injury that allegedly led to his death on 30
as Administrator of Decedent's estate, filed a so-called
John Doe action on 11 April 2016 seeking subpoena power to
investigate Decedent's fall and alleging negligence in
connection therewith. On 19 May 2016, Plaintiff amended his
complaint to bring causes of action for common law breach of
fiduciary duty and professional negligence against Defendants
Maple Grove Nursing Home; Snowshoe LTC Group, LLC; Principle
Long Term Care, Inc.; and Britthaven, Inc. (collectively,
"Defendants"). Defendants filed an answer to the
amended complaint on 25 July 2016, and therein: (1) generally
denied Plaintiff's allegations; (2) moved to dismiss the
amended complaint pursuant to N.C. Gen. Stat. § 1A-1,
Rules 9(j), 12(b)(1), and 12(b)(6); and (3) asserted defenses
of contributory negligence and satisfaction of
Plaintiff's requests for the production of Decedent's
filed a motion to amend the complaint on 19 December 2016,
and a supplemental motion to amend the complaint on 22
December 2016 (collectively, the "Motion to
Amend"). In the Motion to Amend, Plaintiff: (1) argued
that Defendants have failed to provide document discovery
sufficient for Plaintiff to prosecute his case, and moved to
compel the production of the allegedly-withheld documents;
and (2) asserted that he had retained an expert who had
concluded that malpractice had occurred and that he sought to
add a cause of action for "nursing home
malpractice" to the second amended complaint. Plaintiff
attached the proposed second amended complaint reflecting the
proposed cause of action for malpractice to his Motion to
Amend, which included a certification of compliance with N.C.
Gen. Stat. § 1A-1, Rule 9(j).
January 2017, the trial court entered an order denying
Plaintiff's Motion to Amend. In its 13 January 2017
order, the trial court noted that neither the original nor
the amended complaint contained or was accompanied by a
certification of compliance with Rule 9(j). The trial court
denied Plaintiff's Motion to Amend on the grounds of
futility because: (1) the statute of limitations for bringing
a cause of action for wrongful death had expired such that a
pleading could not be amended to add a new cause of action
for medical malpractice; and (2) to the extent the original
or amended complaints stated a cause of action for medical
malpractice, those pleadings were deficient for failure to
include a Rule 9(j) certification.
August 2018, Defendants moved pursuant to N.C. Gen. Stat.
§ 1A-1, Rule 56, for summary judgment on Plaintiff's
amended complaint. Plaintiff responded on 22 October 2018.
October 2018, Superior Court Judge R. Stuart Albright entered
an order granting Defendants' motion for summary
judgment. On 20 November 2018, Plaintiff filed a Notice of
Appeal that "gives notice of appeal to the North
Carolina Court of Appeals from the Order denying the
Plaintiff's Motion to Amend the Complaint, entered by the
Honorable Lindsay R. Davis, Jr. on January 13, 2017[.]"