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Manley v. Maple Grove Nursing Home

Court of Appeals of North Carolina

August 20, 2019

STEVE MANLEY, Personally and as Administrator of the Estate of Clarence Manley, deceased, Plaintiff,
v.
MAPLE GROVE NURSING HOME, SNOWSHOE LTC GROUP, LLC, PRINCIPLE LONG TERM CARE, INC. and BRITTHAVEN, INC., Defendants.

          Heard in the Court of Appeals 6 June 2019.

          Appeal by Plaintiff from order entered 13 January 2017 by Judge Lindsay R. Davis, Jr., in Guilford County No. 16 CVS 4501 Superior Court.

          Schwaba Law Firm, PLLC, by Andrew J. Schwaba and Zachary D. Walton, for Plaintiff-Appellant.

          Bovis Kyle Burch & Medlin, LLC, by Brian H. Alligood, for Defendants-Appellees.

          Collins, Judge.

         Plaintiff 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 Plaintiff's appeal.

         I. Background

         This 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 December 2014.

         Plaintiff, 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 medical records.

         Plaintiff 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).[1]

         On 13 January 2017, the trial court entered an order denying Plaintiff's Motion to Amend.[2] 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.

         On 14 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.

         On 23 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[.]"

         II. ...


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