appellant brief johnson v laurels and oak health care
DESCRIPTION
Johnson is suing Oak Health Care Investors, Laurel Health Care Company, Yates, McLamb & Weyher, LLP, Alan Finlayson, Sandra Wood, Barbara Weyher, Dan McLamb, Sean Partrick, and Christopher West. It is alleged that the Defendants conspired to violate civil rights and cover up a possible criminally negligent homicide and retailiate against the Plaintiff for reporting the crime. This case deals with Wrongful Termination Against Public Policy. - The Public Policy Exception To the "At Will" Doctrine - Malicious Prosecution- First Amendment-Criminal and Civil Contempt- Klu Kux Klan ActTRANSCRIPT
NO. COA10-535 TENTH DISTRICT
NORTH CAROLINA COURT OF APPEALS
*******************************
IN THE MATTER OF: )
OAK HEALTH CARE INVESTORS OF ) NORTH CAROLINA, INC., A NORTH ) CAROLINA CORPORATION d/b/a ) THE LAURELS OF FOREST GLENN, ) LAUREL HEALTH CARE COMPANY, ) SUPERIOR COURT DIVISION Plaintiffs, ) File No.05 CVS 3411
v. )
)
KENNETH C. JOHNSON. ) Defendant, ) ______________________________)
AND
KENNETH C. JOHNSON. ) Plaintiff, )
v. )
)
OAK HEALTH CARE INVESTORS OF ) NORTH CAROLINA, INC., A NORTH ) SUPERIOR COURT DIVISION CAROLINA CORPORATION d/b/a ) File No.08 CVS 3715 THE LAURELS OF FOREST GLENN, ) LAUREL HEALTH CARE COMPANY, ) SANDRA LYNN WOOD, AND ALAN ) FINLAYSON, )
Defendants, ) ______________________________)
AND
- ii -
KENNETH C. JOHNSON, ) Plaintiff, )
v. )
)
OAK HEALTH CARE INVESTORS OF ) NORTH CAROLINA, INC., A NORTH ) CAROLINA CORPORATION d/b/a ) THE LAURELS OF FOREST GLENN, ) LAUREL HEALTH CARE COMPANY, ) YATES, MCLAMB & WEYHER, LLP, ) SUPERIOR COURT DIVISION
BARBARA B. WEYHER, ESQ.,IN HER) File No.09 CVS 6918
PARTNERSHIP, PROFESSIONAL AND )
INDIVIDUAL CAPACITIES, DAN J. ) MCLAMB, IN HIS PARTNERSHIP, )
PROFESSIONAL, AND INDIVIDUAL )
CAPACITIES, SEAN T. PARTRICK, )
ESQ, IN HIS, PARTNERSHIP, )
PROFESSIONAL, AND INDIVIDUAL, )
CAPACITIES,CHRISTOPHER M.WEST,)
IN HIS PARTNERSHIP,PROFESIONAL)
AND INDIVIDUAL CAPACITIES, )
Defendants, ) ______________________________)
******************************
PLAINTIFF-APPELLANT’S BRIEF
******************************
- iii -
INDEX
TABLE OF CASES AND AUTHORITIES iv
ISSUES PRESENTED 2
STATEMENT OF THE CASE 3
STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW 5
STATEMENT OF THE FACTS 5
ARGUMENT: STANDARD OF REVIEW
I. THE TRIAL COURT ERRED IN DISMISSING THE
CORPORATE DEFENDANTS FOR INSUFFICIENCY OF
SERVICE OF PROCESS AND LACK OF PERSONAL
JURISDICTION AFTER THE DEFENDANTS MADE
MULTIPLE GENERAL APPEARANCES
12
ARGUMENT: STANDARD OF REVIEW
II. THE TRIAL COURT ERRED IN DISMISSING THE
CORPORATE DEFENDANTS FOR INSUFFICIENCY OF
SERVICE OF PROCESS AND LACK OF PERSONAL
JURISDICTION ALTHOUGH THE DEFENDANTS FAILED TO
PROPERLY PLEAD THE DEFENSE.
19
ARGUMENT: STANDARD OF REVIEW
III. THE TRIAL COURT ERRED IN DISMISSING THE
REMAINIG DEFENDANTS FROM THE ACTION BASED UPON
THE DISMISSAL OF THE CORPORATE DEFENDANTS.
21
ARGUMENT: STANDARD OF REVIEW
IV. THE TRIAL COURT ERRED IN DISMISSING THE
ORIGINAL COMPLAINT, WHICH HAD BECOME A NULLITY
AFTER THE ISSUANCE OF THE AMENDED COMPLAINT
24
ARGUMENT: STANDARD OF REVIEW
V. THE TRIAL COURT ERRED IN STRIKING THE REPEAT
SUMMONSES.
25
- iv -
ARGUMENT: STANDARD OF REVIEW
VI. THE TRIAL COURT ERRED IN AWARDING ATTORNEY
FEES TO THE PREVAILING PARTY.
31
ARGUMENT: STANDARD OF REVIEW
VII. THE TRIAL COURT ERRED WHEN IT FOUND THE
DEFENDANT [05 CVS 3411] IN CONTEMPT FOR
PUBLISHING PUBLIC RECORDS AND PURPORTEDLY
VIOLATING A GAG ORDER.
34
CONCLUSION 41
CERTIFICATE OF COMPLIANCE 42
CERTIFICATE OF FILING 43
CERTIFICATE OF SERVICE 44
TABLE OF AUTHORITIES
CASES:
Allred v. Tucci, 85 N.C. App. 138 (1987).
at 540, 189 S.E.2d at 162.
32
Baby Boy Scearce, 81 N.C. App. 662, 663- 64,
345 S.E.2d 411, 413 (1986)
15
Bailey v. State, 348 N.C. 130, 159, 500 S.E.2d
54, 71 (1998
15
Baxter v. Jones, 283 N.C. 327, 330, 196 S.E.2d
193, 196 (1973)
16
Blanton v. Blanton, 40 N.C. App. 221, 225, 252
S.E.2d 530, 533 (1979)
16
Cruz v. Beto, 405 U.S. 319, 322, 92 S. Ct.
1079, 1081, 31 L. Ed. 2d 263 (1972)
15
Duke Univ. v. St. Paul Mercury Ins. Co., 95
N.C. App. 663, 673, 384 S.E.2d 36, 42 (1989)
15
- v -
First Citizens Bank & Trust Co. v. Nw. Ins.
Co., 44 N.C. App. 414, 420, 261 S.E.2d 242, 246
(1980)
32
Grimsley v. Nelson, 342 N.C. 542, 545, 467
S.E.2d 92, 94 (1996)
13
Gulf Oil Co. v. Bernard, 452 U.S. 89, 101-02,
68 L. Ed. 2d 693, 703-04 (1981))
37
Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.
Ct. 594, 596, 30 L. Ed. 2d 652 (1972)
28
Harper v. City of Asheville, 160 N.C. App. 209,
213-214 (2003)
13
Hazelwood v. Bailey, 339 N.C. 578, 584, 453
S.E.2d 522, 525 (1995)
13
King, 281 N.C.
32
Lane v. Winn-Dixie Charlotte, Inc., __ N.C.
App. __, __, 609 S.E.2d 456, 459 (2005)
14
Lantsberry v. Tilley Lamp Co. (1971), 27 Ohio
St.2d 303, 56 O.O.2d 179, 272 N.E.2d 127,
30
Lawson v. Jeter, 243 S.C. 103, 106, 132 S.E.2d
276, 277 (1963)
30
Moore's Federal Practice, § 56.11[3], at2176
(2d ed. 1965)
23
Morrison v. Sears, Roebuck & Co., 319 N.C. 298,
300, 354 S.E.2d 495, 497 (1987)
22
Motor Co. v. Reaves, 184 N.C. 260, 264, 114
S.E. 175,
18
Nebraska Press Ass'n, 427 U.S. at 563, 49 L.
Ed. 2d at 700
37
Ottway Burton, P.A. v. Blanton, 107 N. C. App.
615 (1992)
25
- vi -
Page v. Sloan, 281 N.C. 697, 705, 190 S.E.2d
189, 194 (1972)
23
Piedmont Triad Reg'l Water Auth. v. Sumner
Hills, Inc., 353 N.C. 343, 348, 543 S.E.2d 844,
848 (2001)
34
Ryals v. Hall-Lane Moving & Storage Co., 122
N.C. App. 242, 248, 468 S.E.2d 600, 604, disc.
review denied, 343 N.C. 514, 472 S.E.2d 19
(1996)
16
Santos v. State Farm Fire & Cas. Co., 902 F.2d
1092, 1096 (2d Cir. 1990)
17
Schoolfield v. Collins, 281 N.C. 604, 612, 189
S.E.2d 208, 213 (1972)
23
Searles v. Searles, 100 N.C. App. 723, 726, 398
S.E.2d 55, 56 (1990)
27
Sherrill v. Amerada Hess Corp.,
37
Short v. City of Greensboro, 15 N.C. App. 135,
138, 189 S.E.2d 560, 562 (1972)
33
Smiley's Plumbing Co. v. PFP One, Inc., 155
N.C. App. 754, 761, 575 S.E.2d 66, 70, disc.
review denied, 357 N.C. 166, 580 S.E.2d 698
(2003)
22
Stanback v. Stanback, 297 N.C. 181, 205, 254
S.E.2d 611, 627 (1979)
22
State v. Camp, 286 N.C. 148, 152, 209 S.E.2d
754, 756 (1974)
39
Storey v. Hailey No. 926SC1188 (Filed 5 April
1994)
26
Sumito Mitsubishi Silicon Corp. v. Memc
Electronic Materials, Inc., 2005 U.S. Dist.
LEXIS 5174, at *2 n.2 (D. Del. Mar. 30, 2005)
25
Sunamerica Financial Corp. v. Bonham, 328 N.C.
254, 257, 400 S.E.2d 435, 437 (1991)
25
Taylor v. Taylor, 343 N.C. 50, 54, 468 S.E.2d 33
- vii -
33, 35 (1996), reh'g denied, 343 N.C. 517, 472
S.E.2d 25 (1996)
Turner v. Duke University, 325 N.C. 152, 165,
381 S.E.2d 706, 714 (1989).
31
Vassey v. Burch, 301 N.C. 68, 72, 269 S.E.2d
137, 140 (1980)
22
Waters v. Wilson, No. COA06-1702, 2007 N.C.
App. LEXIS 2429, at *11 (N.C. Ct. App. Dec. 4,
2007)
32
White v. Bloom, 621 F.2d 276
28
Wiles v. Welparnel Constr. Co., 295 N.C. 81,
84–85, 243 S.E.2d 756, 758 (1978)).
13
STATUTES
N.C. Gen. Stat. § 1-72.1(a)
38
N.C. Gen. Stat. § 1-72.1(b)
38
N.C. Gen. Stat. § 1-72.1(c) 39
N.C. Gen. Stat. § 1-75.7 13
N.C. Gen. Stat. § 1A-1 Rule 11(a)
31
N.C. Gen. Stat. § 1A-1 Rule 58
27
N.C. Gen. Stat. § 7A-276.1
39
N.C. Gen. Stat. § 1A-1 Rule 7(B)(1)
19
- viii -
RULES
Rule 7(b)(1) 19
Rule 10(b) 17
Rule 8(c)
15
Rule 12(b)(4)
14
Rule 12(b)(5)
14
Rule 12(b)(6) 22
Rule 12(h)(1) 14
Rule 52 23
Rule 56
22
Rule 63
4,9,23
NO. COA10-535 TENTH DISTRICT
NORTH CAROLINA COURT OF APPEALS
*******************************
IN THE MATTER OF: )
OAK HEALTH CARE INVESTORS OF ) NORTH CAROLINA, INC., A NORTH ) CAROLINA CORPORATION d/b/a ) THE LAURELS OF FOREST GLENN, ) LAUREL HEALTH CARE COMPANY, ) SUPERIOR COURT DIVISION Plaintiffs, ) File No.05 CVS 3411
v. )
)
KENNETH C. JOHNSON. ) Defendant, ) ______________________________)
AND
KENNETH C. JOHNSON. ) Plaintiff, )
v. )
)
OAK HEALTH CARE INVESTORS OF ) NORTH CAROLINA, INC., A NORTH ) SUPERIOR COURT DIVISION CAROLINA CORPORATION d/b/a ) File No.08 CVS 3715 THE LAURELS OF FOREST GLENN, ) LAUREL HEALTH CARE COMPANY, ) SANDRA LYNN WOOD, AND ALAN ) FINLAYSON, )
Defendants, ) ______________________________)
AND
- 2 -
KENNETH C. JOHNSON, ) Plaintiff, )
v. )
)
OAK HEALTH CARE INVESTORS OF ) NORTH CAROLINA, INC., A NORTH ) CAROLINA CORPORATION d/b/a ) THE LAURELS OF FOREST GLENN, ) LAUREL HEALTH CARE COMPANY, ) YATES, MCLAMB & WEYHER, LLP, ) SUPERIOR COURT DIVISION
BARBARA B. WEYHER, ESQ.,IN HER) File No.09 CVS 6918
PARTNERSHIP, PROFESSIONAL AND )
INDIVIDUAL CAPACITIES, DAN J. ) MCLAMB, IN HIS PARTNERSHIP, )
PROFESSIONAL, AND INDIVIDUAL )
CAPACITIES, SEAN T. PARTRICK, )
ESQ, IN HIS, PARTNERSHIP, )
PROFESSIONAL, AND INDIVIDUAL, )
CAPACITIES,CHRISTOPHER M.WEST,)
IN HIS PARTNERSHIP,PROFESIONAL)
AND INDIVIDUAL CAPACITIES, )
Defendants, ) ______________________________)
******************************
PLAINTIFF-APPELLANT’S BRIEF
******************************
ISSUES PRESENTED
I. DID THE TRIAL COURT ERR IN DISMISSING THE CORPORATE
DEFENDANTS FOR INSUFFICIENCY OF SERVICE OF PROCESS AND
LACK OF PERSONAL JURISDICTION AFTER THE DEFENDANTS
MADE MULTIPLE GENERAL APPEARANCES?
II. DID THE TRIAL COURT ERR IN DISMISSING THE CORPORATE
DEFENDANTS FOR INSUFFICIENCY OF SERVICE OF PROCESS AND
LACK OF PERSONAL JURISDICTION ALTHOUGH THE DEFENDANTS
FAILED TO PROPERLY PLEAD THE DEFENSE?
- 3 -
III. DID THE TRIAL COURT ERR IN DISMISSING THE REMAINING
DEFENDANTS FROM THE ACTION BASED UPON THE DISMISSAL
OF THE CORPORATE DEFENDANTS?
IV. DID THE TRIAL COURT ERR IN DISMISSING THE ORIGNIAL
COMPLAINT, WHICH HAD BECOME A NULLITY AFTER THE
ISSUANCE OF THE AMENDED COMPLAINT?
V. DID THE TRIAL COURT ERR IN STRIKING THE REPEAT
SUMMONSES?
VI. DID THE TRIAL COURT’S ERR IN AWARDING ATTORNEY FEES
TO THE PREVAILING PARTY?
VII. DID THE TRIAL COURT ERR WHEN IT FOUND THE DEFENDANT
[05 CVS 3411] IN CONTEMPT FOR PUBLISHING PUBLIC
RECORDS AND PURPORTEDLY VIOLATING A GAG ORDER?
STATEMENT OF THE CASE
Plaintiff Kenneth C. Johnson commenced this wrongful
termination against public policy action by filing a complaint
and issuance of summons on 6 March 2008. (R pp 3-32). On 16
July 2008 Plaintiff had issued and served additional summonses
upon Defendants Oak Health Care and Laurel Health Care Company
(hereinafter “the corporate Defendants”). On 9 September 2008
the trial court granted the corporate Defendants’ motion to
strike the summonses and motion for costs. (R p 408). On 15
July 2009 the Plaintiff moved for a substitute judge to hear the
pending motions due to Judge Spencer’s pending retirement and
his unavailability to hear any civil cases in Wake County.
- 4 -
(R p 529). On 10 September 2009 Judge Donald Stephens granted
Plaintiff’s Rule 63 motion and substituted himself for Judge
Spencer. (R p 533). Additionally, the order denied Plaintiff’s
Rule 59 and Rule 60 motions for relief of Judge Spencer’s 25
July 2008 and 29 August 2008 orders and ordered Plaintiff to pay
costs of $1,270 by 1 December 2009. (R p 533). On 14 September
2009 Judge Donald Stephens, upon his own motion, issued an order
barring extra-judicial communication (hereinafter “gag order”)
by the parties.(R p 541). Also on 14 September 2009 Judge
Donald Stephens found Defendant Johnson [05 CVS 3411] in civil
contempt for purportedly violating a 31 August 2006 order
(R p 956) signed by Judge Leon Stanback. (R p 547). On 21
September 2009 Defendant Johnson [05 CVS 3411] moved the Court
for a hearing to determine his right of access to public records
pursuant to N.C.G.S. 1-72.1 (R p 568). On 9 November 2009 the
Court denied movant Johnson’s motion to alter or amend the gag
order in 05 CVS 3411. (R p 594). Additionally, the Court’s
order denied all of movant Johnson’s pending motions. (R p 594).
Appellant gave written notice of appeal on 18 November 2009.
(R pp 598).
- 5 -
STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW
Judge Donald W. Stephens orders sustaining the dismissal of
the wrongful termination action, granting costs, finding
Defendant in contempt for publishing public records, sustaining
a gag order and denying a hearing to determine access to public
records are all final judgments and appeal therefore lies to the
Court of Appeals pursuant to N.C. Gen. Stat. § 7A-27(b).
STATEMENTS OF THE FACTS
Plaintiff Kenneth C. Johnson commenced this wrongful
termination against public policy action by filing a complaint
and issuance of summons on 6 March 2008. (R pp 3-33). Alan
Finlayson (hereinafter “Finlayson”) moved for an extension of
time to answer or otherwise respond on 28 March 2008.(R p 34).
The motion was granted on 28 March 2008. (R p 37). Oak Health
Care Investors of North Carolina, A North Carolina Corporation
d/b/a The Laurels of Forest Glenn (hereinafter “Oak Health
Care”) joined Sandra Lynn Wood (hereinafter “Wood”) and moved
for an extension of time to answer or otherwise respond on 28
March 2008. (R p 39). The motion was granted on 28 March 2008.
(R p 42). Laurel Health Care Company did not move for an
extension and did not timely answer or otherwise respond.
Plaintiff moved for entry of default on 11 April 2008. (R p 44).
- 6 -
Laurel Health Care Company moved to dismiss the action (R pp 51-
53) along with a motion to strike any patient information from
the complaint(R p 53) along with their answer (R pp 53-70) on 14
April 2008. On 6 May 2008 Laurel Health Care Company again moved
to dismiss the action (R pp 104-106) along with another motion
to strike patient information from the complaint (R p 106) along
with another answer titled ORIGINAL ANSWER (R p 104). On 6 May
2008 Defendant Oak Health Care moved to dismiss the action (R pp
128-130) along with a motion to strike any patient information
from the complaint (R p 130) along with their answer (R pp 130-
151). Plaintiff filed and served an Amended Complaint on 23
June 2008. (R pp 166-191). None of the Defendants answered or
otherwise responded to the Amended Complaint. Although Oak
Health Care and Laurel Health Care Company failed to respond to
the Amended Complaint, they nevertheless moved to dismiss the
Original Complaint for a purported insufficient service of
process and lack of Subject Matter (emphasis added) Jurisdiction
on 10 July 2008. (R pp 192). On 14 July 2008, the Honorable
James C. Spencer, Jr., Superior Court Judge (Retired), heard
arguments on Plaintiff’s Motion For Entry of Default, Motion to
Strike Defendant’s Answer, and Motion To Strike Defendant’s
Amended Motion to Dismiss For Insufficient Service of Process
and Lack of Subject Matter Jurisdiction, as well as Defendants’
Motion to Dismiss For Insufficient Service of Process and Lack
- 7 -
of Subject Matter Jurisdiction (emphasis added) and took the
matters under advisement. On 16 July 2008 Plaintiff had issued
and served additional summonses upon Oak Health Care and Laurel
Health Care Company (hereinafter “the corporate Defendants”)
(R pp 215-219). On 22 July 2008 Plaintiff notified the trial
court via letter(R p 258) that the additional summonses had been
issued to the corporate Defendants. A judgment and order
dismissing the case as to the corporate Defendants was entered
on 29 July 2008. (R p 220). Defendants served the Plaintiff
with a copy of the order dismissing the corporate Defendants on
6 August 2008. (R p 281). On 12 August 2008 Plaintiff moved to
alter or amend the judgment dismissing the corporate
defendants.(R p 284). Also on 12 August 2008 the corporate
Defendants moved to strike Plaintiff’s summonses and moved for
costs. (R p 229). On 18 August 2008 the trial court heard
arguments on the corporate Defendants’ motion to strike the
summonses and motion for costs. (R p 315). On 28 August 2008
Defendants Wood and Finlayson filed an unverified motion to
dismiss the case and in the alternative moved for summary
judgment [absent an affidavit]. (R p 317). On 5 September 2008
the trial court heard arguments from Defendants Wood and
Finlayson to dismiss and in the alternative for summary
judgment. (R p 400). On 8 September 2008 Plaintiff moved to
alter or amend the judgment striking the summonses and awarding
- 8 -
costs in the amount of $1,270. (R p 402). On 9 September 2008
the trial court denied the Plaintiff’s motion to alter or amend
the order dismissing the corporate defendants. (R p 404). Also
on 9 September 2008 the trial court granted the corporate
Defendants’ motion to strike the summonses and motion for costs.
(R p 408). Judge Spencer’s office informed the Plaintiff that
due to his pending retirement, Judge Spencer was unavailable to
hear anymore Wake County civil cases. On 26 November 2008
Defendants Wood and Finlayson calendared a motion to dismiss and
in the alternative motion for summary judgment for 8 December
2008. (R p 411). On 5 December 2008, Plaintiff moved to recuse
Judge Spencer.(R p 413). On 5 December 2008 Plaintiff filed a
Motion for Relief from the Judgment dismissing the corporate
Defendants.(R p 428). Also on 5 December 2008 Plaintiff moved to
alter or amend the judgment striking the summonses and awarding
costs.(R p 432). Additionally, on 5 December 2008 Plaintiff
filed a motion for a ruling on his objections to the pending
motions(R p 447). On 8 December 2008 the trial judge Allen
Baddour, Superior Court Judge Presiding, heard the multiple
motions in civil case 08 CVS 3715 and the criminal case 05 CVS
3411. After a lengthy hearing on issues raised by the Plaintiffs
[Plaintiffs in 05 CVS 3411 are the Defendants in 08 CVS 3715]
Judge Baddour discovered that the allegations were criminal in
nature and ruled the hearing a nullity and that the case would
- 9 -
be heard by another judge de novo at a later date after the
Defendant had an opportunity to confer with counsel. (T pp 113-
119) On 9 December 2008, Judge Baddour denied Plaintiff’s
motion to recuse Judge Spencer and denied all pending [08 CVS
3715] Plaintiff motions over Plaintiff’s objections. (R p 494).
Additionally, on 9 December 2008 Judge Baddour dismissed the
action as it pertained to the remaining Defendants. (R p 496).
Having been informed orally on 8 December 2008 that Judge
Baddour had denied his motions, on 9 December 2008, Plaintiff
filed a motion to alter or amend the judgments of Judge Baddour.
(R p 498). On 4 June 2009 Defendants [08 CVS 3715] moved for an
order directing the Plaintiff to show cause why he had not paid
costs in the amount of $1,270.00 to the Defendants. (R p 503).
On 15 July 2009 the Plaintiff moved for a substitute judge to
hear the pending motions due to Judge Spencer’s pending
retirement and unavailability to hear any civil cases in Wake
County. (R p 529). On 31 August 2009 the honorable Donald W.
(emphasis added “Donald W.) Stephens heard Defendants’ Motion to
Show Cause and Plaintiff’s Motion to Alter or Amend and Rule 63
and Rule 60 Motions. On 10 September 2009 Judge Donald Stephens
granted Plaintiff’s Rule 63 motion and substituted himself for
Judge Spencer. (R p 533). Additionally, the order denied
Plaintiff’s Rule 59 and Rule 60 motions for relief of Judge
Spencer’s 25 July 2008 and 29 August 2008 orders and ordered
- 10 -
Plaintiff to pay costs of $1,270 by 1 December 2009. (R p 533).
On 14 September 2009 Judge Donald Stephens, upon his own motion,
issued an order barring extra-judicial communication
(hereinafter “gag order”) by the parties. (R p 541). Also on 14
September 2009 Judge Donald Stephens found Defendant Johnson
[05 CVS 3411] in civil contempt for purportedly violating a
31 August 2006 order (R p 956) signed by Judge Leon Stanback.
(R p 547). On 18 September 2009 Plaintiff Johnson moved the
Court to alter or amend the Court’s 10 September 2009 order
(R p 556) and amend the gag order pursuant to Rule 52(b). On 21
September 2009 Defendant Johnson [05 CVS 3411] moved the Court
for a hearing to determine his right of access to public records
pursuant to N.C.G.S. 1-72.1 (R p 568). On 8 October 2009 the
Defendants moved the Court for an order directing Plaintiff
Johnson to show cause why he had purportedly not complied with
the Court’s 9 September 2009 gag order. (R p 571). On 9 November
2009 the Court denied movant Johnson’s motion to alter or amend
the gag order in 05 CVS 3411. (R p 594) [NOTE: although not
expressly mentioned in the order denying amendment to the gag
order, the gag order encompasses 08 CVS 3715 and case 09 CVS
6918 and all related cases]. Additionally, the Court’s order
denied all of movant Johnson’s pending motions. (R p 594).
Appellant gave written notice of appeal on 18 November 2009.
(R pp 598-600). On 18 December 2009 Appellant filed a motion to
- 11 -
amend the motion and affidavit for leave to appeal in forma
pauperis. (R p 603). On 23 December 2009 Appellant moved the
Court for an extension of time to serve the proposed record on
appeal. (R p 610). Judge John R. Jolly, Jr. granted and
extended the time in which to serve the proposed record to and
including 22 January 2010. (R p 613). On 26 January 2010, The
Honorable Robert H. Hobgood, Superior Court Judge, granted the
Appellant’s motion to appeal in forma pauperis. (R p 614). The
Proposed Record on Appeal was served via United States Mail on
22 January 2010. (R pp 677-681). On 22 February 2010 the
Appellees filed objections and requests for amendments to the
proposed record. (R p 617). On 3 March 2010 the Appellant
served his response to the Appellees’ objections and requests
for amendments to the proposed record. (R p 632). On 4 March
2010 the Appellant set for hearing [5 April 2010] a judicial
settlement hearing. (R p 637). Additionally, on 4 April 2010
the Appellant notified the parties and the trial judge Donald W.
Stephens, via fax, that a judicial settlement hearing was
requested. (R p 640). On 24 March 2010 the Appellant filed a
more detailed response to objections and request for judicial
settlement of the proposed record.(R p 643). On 26 March 2010
the Appellant filed a motion to extend the time in which the
trial court judge had to schedule the judicial settlement
hearing, inform the parties, hold the hearing and settle the
- 12 -
record. (R p 682). On 8 April 2010 the judicial settlement
hearing was held and on 13 April 2010 the Appellant served
notice of objection to the judicial settlement hearing.(R pp
686-779). On 14 April 2010 the Appellant filed a motion for
suspension of the appellate rules [construction of the record].
(R p 780). Additionally, on 14 April 2010 the Appellant filed a
motion to deem the proposed record as timely served. (R p 787).
On 20 April 2010 the trial court judge filed an order settling
the record. (R p 798). On 28 April 2010 the North Carolina
Court of Appeals (hereinafter “COA”) ordered the Appellant may
group the documents in the record by individual cases within the
record. (R p 809). Additionally on 28 April 2010 the COA deemed
the proposed record on appeal timely served.
ARGUMENT
I. THE TRIAL COURT ERRED IN DISMISSING THE CORPORATE
DEFENDANTS FOR INSUFFICIENCY OF SERVICE OF PROCESS AND
LACK OF PERSONAL JURISDICTION AFTER THE DEFENDANTS
MADE MULTIPLE GENERAL APPEARANCES.
STANDARD OF REVIEW
The issue of personal jurisdiction is a matter of law. For
questions of personal jurisdiction, the standard of review is
de novo. Under the de novo standard, the court is required to
consider the question of jurisdiction ‘anew’ as if not
- 13 -
previously considered or decided. See Harper v. City of
Asheville, 160 N.C. App. 209, 213-214 (2003).
The North Carolina Supreme Court is quoted frequently for
the maxim that “[a] suit at law is not a children’s game, but a
serious effort on the part of adult human beings to administer
justice; and the purpose of process is to bring parties into
court.” Hazelwood v. Bailey, 339 N.C. 578, 584, 453 S.E.2d 522,
525 (1995) (citing Wiles v. Welparnel Constr. Co., 295 N.C. 81,
84–85, 243 S.E.2d 756, 758 (1978)). “Jurisdiction of the court
over the person of a defendant is obtained by service of
process, voluntary appearance, or consent.” Grimsley v. Nelson,
342 N.C. 542, 545, 467 S.E.2d 92, 94 (1996) (citation omitted).
A party waives the defenses of improper venue, insufficiency of
process, or insufficiency of service of process if it does not
raise such defenses either in a Rule 12 motion made prior to
responsive pleading or in its responsive pleading. N.C.R. Civ.
P. 12(b), (h). Further, a North Carolina court has jurisdiction
over a defendant even in the absence of service of process if
the defendant has made a general appearance in the action. N.C.
Gen. Stat. § 1-75.7 (LEXIS through 2007 legislation) (“Section
1-75.7”); see also Simms v. Mason’s Stores, Inc., 285 N.C. 145,
157, 203 S.E.2d 769, 777 (1974). “[A] general appearance is one
whereby the defendant submits his person to the jurisdiction of
the court by invoking the judgment of the court in any manner on
- 14 -
any question other than that of the jurisdiction of the court
over his person.” In re Blalock, 233 N.C. 493, 504, 64 S.E.2d
848, 856 (1951); see also Barnes v. Wells, 165 N.C. App. 575,
579–80, 599 S.E.2d 585, 588–89 (2004). In the case at bar,
the Defendants each made multiple general appearances prior to
asserting the insufficiency of service of process defense. The
Defendants moved the court multiple times to strike any patient
information from the complaint. 14 April 2008(R p 53), 6 May
2008 (R p 106) and (R p 130). The motion titled “MOTION TO
STRIKE” invokes the judgment of the court as to redacting or
otherwise amending the complaint and was opposed by the
Plaintiff (R p 153). However, the motion does not contain an
objection to personal jurisdiction. A motion to strike, unlike
a motion for extension of time to respond, constitutes a general
appearance for the purposes of personal jurisdiction unless an
objection to personal jurisdiction is contained therein.
Defendants also served responsive pleadings in this case.
On 14 April 2008 (R p 53) and 6 May 2008 (R pp 106,130) the
Defendants served answers to the complaint. This Court has
recently held that "[p]ursuant to Rule 12(h)(1)of the North
Carolina Rules of Civil Procedure, defenses arising under Rule
12(b)(4) and 12(b)(5) must be affirmatively plead in a party's
responsive pleadings, or are deemed thereafter waived." Lane v.
Winn-Dixie Charlotte, Inc., __ N.C. App. __, __, 609 S.E.2d 456,
- 15 -
459 (2005) (emphasis added). Under Rule 8(c), defenses
"constituting an avoidance or affirmative defense" must
similarly be "affirmatively" set forth or are waived. Duke Univ.
v. St. Paul Mercury Ins. Co., 95 N.C. App. 663, 673, 384 S.E.2d
36, 42 (1989)(affirmative defense must be pled "with certainty
and particularity"; a failure to do so "ordinarily results in
its waiver"). Rule 8(c) explains what is required to
affirmatively plead a defense: "Such pleading shall contain a
short and plain statement of any matter constituting an
avoidance or affirmative defense sufficiently particular to give
the court and the parties notice of the transactions,
occurrences, or series of transactions or occurrences, intended
to be proved." Defendant's original Motions to Dismiss [14
April 2008(R p 51), 6 May 2008 (R p 104) and (R p 128)] do
include multiple “kitchen sink” defenses that, they later
abandoned in their “Amended Motion to Dismiss For Insufficient
Service of Process and Lack of Subject Matter (emphasis added)
Jurisdiction” (R p 192) in favor of focusing just on the
insufficiency of service and process defenses. The court can
take judicial notice that each of these “kitchen sink defenses”
although abandoned and waived by the Defendants and therefore
not addressed in the trial court’s order, nevertheless were
specifically pled with a short and plain statement of matters
constituting an avoidance or affirmative defense sufficiently
- 16 -
particular to give the court and the parties notice of the
transactions, occurrences, or series of transactions or
occurrences, intended to be proved. In stark contrast, the
insufficiency of service and of process defenses are simply
stated and the opposing party and the court are left to wonder
on just what set of facts the Defendants base their assertion
upon. There is no reasonable rationale for requiring less
specificity in pleading for Rule 12(b) defenses than for Rule
8(c) affirmative defenses, especially in light of Rule 12(b) and
(h)'s purpose of ensuring that defenses specified in Rule 12 are
resolved at an early stage in the litigation. Less specificity
leads to delay in resolution. This Court has also held that a
defendant "fulfills his obligation to inform the court and his
opponent of possible jurisdictional defects" when he "has
alerted the opponent and given him the opportunity to cure
(emphasis added) any jurisdictional defect from the outset."
Ryals v. Hall-Lane Moving & Storage Co., 122 N.C. App. 242,
248, 468 S.E.2d 600, 604, disc. review denied, 343 N.C. 514, 472
S.E.2d 19 (1996). Defendants’ original motions to dismiss
never mention the corporate officer or registered agent service
issue. However, on 10 July 2008, over 90 days after service of
their original motions to dismiss, the Defendants amended their
motion (R p 192) to focus entirely on the insufficiency of
process and service defenses, included multiple supporting
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exhibits and a single affidavit to challenge service (R p 208).
Defendants then served the motion on 9 or 10 July 2008, a
Wednesday or Thursday, one or two business days prior to the
Monday morning 14 July 2008 hearing- thereby denying Plaintiff
any opportunity to cure any deficiency until after the hearing
when he served the corporate defendants by service of additional
summonses on 16 July 2008.(R pp 215-219). Therefore, Defendants
waived the defense under Rule 12(h)(1). See also Santos v. State
Farm Fire & Cas. Co., 902 F.2d 1092, 1096 (2d Cir. 1990)
(defense of insufficiency of service waived despite answer's
assertion of a lack of personal jurisdiction because: "[The
defendant] did nothing to alert [the plaintiff] promptly that
its lack-of jurisdiction claim was in fact a contention that
service of process was insufficient. . . . A defendant cannot
justly be allowed to lie in wait, masking by misnomer its
contention that service of process has been insufficient, and
then obtain a dismissal, thereby depriving the plaintiff of the
opportunity to cure the service defect."). This conclusion is
further supported by Rule 10(b) of the Rules of Civil Procedure,
which provides that "[a]ll averments of claim or defense shall
be made in numbered paragraphs, the contents of each of which be
limited as far as practicable to a statement of a single set of
circumstances . . . . [E]ach defense other than denials shall be
- 18 -
stated in a separate . . . defense whenever a separation
facilitates the clear presentation of the matters set forth.”
The clear presentation" of the defenses requires that each
defense be set forth separately. Additionally, the court can
take judicial notice that the Defendants filed multiple other
pleadings and papers prior to their 10 July 2008 Defendants
Amended Motion to Dismiss for Insufficient Service of Process
and Lack of Subject Matter Jurisdiction (R p 192). None of
these documents [itemized list (R p 310)] contained a statement,
which raised the defense of insufficiency of process or service
of process. They include Defendants’ 18 March 2008 Notice of
Appearance Letter (R p 33); Defendants [21 April 2008] Response
to Plaintiff’s Motion For Entry of Default Judgment (R p 71);
Defendant’s [30 April 2008] Response to Plaintiff’s Motion to
Strike Defendant Laurel Health Care Company’s Motion to Dismiss
and Original Answer (R p 98). Also, this Court has the concept
of a "general appearance" should be given a liberal
interpretation. In short, "`[a]n appearance for any purpose
other than to question the jurisdiction of the court is
general.'" Motor Co. v. Reaves, 184 N.C. 260, 264, 114 S.E. 175,
177 (1922). Thus the trial court’s ruling was improper and the
subsequent trial court rulings affirming the ruling was likewise
improper. Additionally, Plaintiff objects to the court’s finding
- 19 -
of fact and conclusions of law as not sufficient to support the
judgment of dismissal.
ARGUMENT
II. THE TRIAL COURT ERRED IN DISMISSING THE CORPORATE
DEFENDANTS FOR INSUFFICIENCY OF SERVICE OF PROCESS AND
LACK OF PERSONAL JURISDICTION ALTHOUGH THE DEFENDANTS
FAILED TO PROPERLY PLEAD THE DEFENSE.
STANDARD OF REVIEW
For questions of personal jurisdiction, the standard of review
is de novo. See Harper v. City of Asheville, 160 N.C. App.
209, 213-214 (2003). As stated supra, Defendants’ 10 July 2008
Defendants Amended Motion to Dismiss for Insufficient Service of
Process and Lack of Subject Matter [emphasis added] Jurisdiction
(R p 192) was not only improperly captioned to request court
adjudication on the question of subject matter jurisdiction, but
also improperly set forth the grounds for the relief sought in
the last numbered paragraph (R p 196) by basing the relief
sought upon the question of “subject matter” rather than
“personal” jurisdiction. Thus, the trial court erred by
granting Defendants' motion to dismiss as defendant failed to
state with particularity the grounds for dismissal as required
by Rule 7(b)(1). N.C. Gen. Stat. § 1A-1, Rule 7(b)(1) states:
“An application to the court for an order shall be by motion[,]
. . . shall be made in writing, shall state with particularity
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the grounds therefor, and shall set forth the relief or order
sought.” N.C.G.S. § 1A-1, Rule 7(b)(1) (2003) (emphasis added).
Rule 7(b)(1) was amended effective 1 October 2000 to add the
words “with particularity.” Id. The comments to Rule 7(b)(1)
states: The 2000 amendment conforms the North Carolina rule to
federal Rule 7(b). The federal courts do not apply the
particularity requirement as a procedural technicality to deny
otherwise meritorious motions. Rather, the federal courts apply
the rule to protect parties from prejudice, to assure that
opposing parties can comprehend the basis for the motion and
have a fair opportunity to respond. This is an especially
relevant safeguard in litigation with pro se litigants, in that
they are less able to “turn and pivot” at the hearing, as well
as a seasoned member of the Bar, when confronted with a unique
theory of relief, presented at the time of the hearing. The
court concedes the caption of the Plaintiff’s motion was
misrepresented in the order of dismissal. (R p 404-406)
(paragraph 6). The result is that the casual jurist could
improperly assume the Plaintiff had been before the court on 14
July 2008 fully prepared to argue the merits of personal
jurisdiction when the noticed motion, received 1 or 2 days
before the hearing, not only captioned (R p 192) the issue of
subject matter jurisdiction by also requested the relief of
dismissal based upon the issue of subject matter jurisdiction.
- 21 -
(R p 196). By re-stating “subject matter jurisdiction” as the
basis for the requested relief, in the last numbered paragraph
of their motion, Defendants defeat any notion of a simple
“typographical” error in the caption, even if typographic errors
could somehow overcome the 1 October 2000 amendment to Rule
7(b)(1), requiring “with particularity” in the crafting of
pleadings. Thus the trial court erred when it chose to amend
Defendants’ motion during the deliberation stage and grant a
dismissal based upon a motion that was not properly before the
court. Additionally, Plaintiff objects to the court’s finding
of fact and conclusions of law as not sufficient to support the
judgment of dismissal.
ARGUMENT
III. THE TRIAL COURT ERRED IN DISMISSING THE REMAINIG
DEFENDANTS FROM THE ACTION BASED UPON THE DISMISSAL
OF THE CORPORATE DEFENDANTS.
STANDARD OF REVIEW
For questions of personal jurisdiction, the standard of
review is de novo. See Harper v. City of Asheville, 160 N.C.
App. 209, 213-214 (2003). On 9 December 2008 Judge Baddour
granted multiple Defendant motions and denied multiple Plaintiff
motions. Among these was an order (R p 496) dismissing
Defendants Wood and Finlayson from this case. The court’s
- 22 -
decision was upon “Defendants Wood and Finlayson’s Motion to
Dismiss and in the Alternative Motion for Summary Judgment.” (R p
317). Defendants Wood and Finlayson based their motion upon the
dismissal of the corporate defendants, which the Plaintiff, as
stated supra, believes to be contrary to law. Additionally, the
motion is unverified and not supported by an affidavit. Because
the Defendants moved the court to consider the motion as one for
summary judgment the motion to dismiss was converted to one for
summary judgment. See Stanback v. Stanback, 297 N.C. 181, 205,
254 S.E.2d 611, 627 (1979) ("A Rule 12(b)(6) motion to dismiss
for failure to state a claim is . . . converted to a Rule 56
motion for summary judgment when matters outside the pleadings
are presented to and not excluded by the court."). The party
moving for summary judgment must establish that no genuine issue
of material fact exists and that the moving party is entitled to
judgment as a matter of law. Morrison v. Sears, Roebuck & Co.,
319 N.C. 298, 300, 354 S.E.2d 495, 497 (1987). Rule 56 "does not
authorize the court to decide an issue of fact. It authorizes
the court to determine whether a genuine issue of fact exists."
Vassey v. Burch, 301 N.C. 68, 72, 269 S.E.2d 137, 140 (1980)
(emphasis original). The non-moving party may not rest on the
allegations in its pleadings to create an issue of fact.
Smiley's Plumbing Co. v. PFP One, Inc., 155 N.C. App. 754, 761,
575 S.E.2d 66, 70, disc. review denied, 357 N.C. 166, 580 S.E.2d
- 23 -
698 (2003). A verified complaint may, however, be treated as an
affidavit if it complies with the requirements of Rule 56(e).
Page v. Sloan, 281 N.C. 697, 705, 190 S.E.2d 189, 194 (1972).
See also Schoolfield v. Collins, 281 N.C. 604, 612, 189 S.E.2d
208, 213 (1972) (quoting 6 James W. Moore et al., Moore's
Federal Practice, § 56.11[3], at2176 (2d ed. 1965).
Additionally, Plaintiff argues that his “Motion to Alter or
Amend Judgments (Judge Alan Baddour) Rule 59” (R p 498) which
requests specific findings of fact and conclusions of law (R p
501) to support denial of the motion [See Rule 52(a)(2) and Rule
41(b)] remains an open issue and thus a bar to dismissal of the
non-corporate defendants. Judge Donald W. Stephens granted
Plaintiff’s motion to substitute himself for the retiring Judge
Spencer pursuant to Rule 63 (R p 533) and although he ruled to
uphold the judgments of Judge Spencer, he nevertheless failed to
make a specific ruling on Plaintiff’s “Motion to Alter or Amend
Judgments (Judge Alan Baddour) Rule 59” (R p 498), leaving
dismissal of Wood and Finlayson an open question for the court
even if the COA would uphold dismissal of the corporate
defendants. Additionally, Plaintiff objects to the court’s
finding of fact and conclusions of law as not sufficient to
support the judgment of dismissal.
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ARGUMENT
IV. THE TRIAL COURT ERRED IN DISMISSING THE ORIGINAL
COMPLAINT, WHICH HAD BECOME A NULLITY AFTER THE
ISSUANCE OF THE AMENDED COMPLAINT.
STANDARD OF REVIEW
For questions of jurisdiction, the standard of review is
de novo. See Harper v. City of Asheville, 160 N.C. App. 209,
213-214 (2003). Plaintiff served a copy of the Amended
Complaint (R p 166) by hand delivering it to Defendants’
counsel, Christopher M. West (hereinafter “West”) on 23 June
2008. Mr. West “advised” the pro se Plaintiff that he didn’t
have to amend the complaint. However, Plaintiff elected to do
so anyway. The Defendants failed to answer or otherwise respond
to the complaint. After the Amended Complaint was served, the
Original Complaint became a nullity under law and the court no
longer had jurisdiction over the original complaint. Therefore,
when Defendants failed to respond to the amended complaint
[served on 23 June 2008] and moved forward with their motion to
dismiss [served on 10 July 2008](R p 192) the original complaint
17 days later, the resulting judgment of dismissal was void on
its face. A void judgment is a legal nullity and may be
attacked at any time. E.g., Allred v. Tucci, 85 N.C. App. 138
(1987). A judgment is void when the issuing court has no
- 25 -
jurisdiction over the parties or the subject matter, or when it
has no authority to render judgment entered. Ottway Burton,
P.A. v. Blanton, 107 N. C. App. 615 (1992). The law is clear in
this regard. “Since plaintiff filed an amended complaint, its
original complaint and all motions related to that original
complaint are moot.” Sumito Mitsubishi Silicon Corp. v. Memc
Electronic Materials, Inc., 2005 U.S. Dist. LEXIS 5174, at *2
n.2 (D. Del. Mar. 30, 2005). Thus the trial court erred in
dismissing the original complaint. Additionally, Plaintiff
objects to the court’s finding of fact and conclusions of law as
not sufficient to support the judgment of dismissal.
ARGUMENT
V. THE TRIAL COURT ERRED IN STRIKING THE REPEAT
SUMMONSES.
STANDARD OF REVIEW
The issue of the repeat summonses deals with a question of
jurisdiction; and the question of justiciability, likewise must
be reviewed de novo. Sunamerica Financial Corp. v. Bonham, 328
N.C. 254, 257, 400 S.E.2d 435, 437 (1991). Upon motion of the
Defendants, (R p 229) the trial court granted a motion to strike
- 26 -
the repeat summonses and grant costs. (R p 408). The
Defendants’ motion is based upon two unique legal theories.
First: Defendants’ position is that once Judge Spencer had taken
the matter under advisement on 14 July 2008 and Ms. Wills, a
secretary with the Wake County Court, had purportedly left a
voicemail for the Plaintiff that purportedly stated that Judge
Spencer had granted the motion, the Plaintiff was divested of
any opportunity to cure the challenged sufficiency of process
and service of process by issuing repeat summonses. Also under
Defendants’ theory, the Plaintiff was also divested of any
opportunity to challenge the pending judgment pursuant to Rules
52, 59, and 60. Curiously, the Defendants fail to allege [now
waived] that the repeat summonses were issued beyond the statute
of limitations, which they were not, but had they raised that
defense, it may have supported a challenge to the summonses.
Under the Defendants’ theory, the Plaintiff should have known
that he had no legal remedies available at that point and
therefore should not have issued additional summonses.
[paragraph 3 (R p 229)”Despite Judge Spencer’s Order…”]. Fatal
to the Defendants’ first theory is Plaintiff was deprived of any
opportunity to cure any defects in the process or in the service
of process, because defendant's counsel led plaintiff's counsel
to believe it was unnecessary to continue further process. See:
Storey v. Hailey No. 926SC1188 (Filed 5 April 1994). Also,
- 27 -
Rule 58 of the North Carolina Rules of Civil Procedure provides
that “a judgment is entered when it is reduced to writing,
signed by the judge, and filed with the clerk of court.” N.C.
Gen. Stat. § 1A-1, Rule 58 (2003). The 9 September 2008 judgment
(R p 408) which was served upon Plaintiff on 11 September 2008
(R p 410) reflected the trial court's 15 July 2008 third party
voicemail of the court’s purported oral rendition of judgment
that had been taken under advisement at the 14 July 2008
hearing. “An announcement of judgment in open court constitutes
the rendition of judgment, not its entry. Rendition of judgment
merely marks the beginning of the time during which a party may
give timely notice of appeal.” Searles v. Searles, 100 N.C. App.
723, 726, 398 S.E.2d 55, 56 (1990) (internal citations omitted).
The 15 July 2008 rendition of judgment “was of no effect absent
an entry of judgment.” Bumgardner v. Bumgardner, 113 N.C. App.
314, 321, 438 S.E.2d 471, 475 (1994). The trial court's oral
rendition was not entered as a written order until after the
repeat summonses had been properly served. Without entry of a
written judgment, the issue of dismissal was “pending” when the
Plaintiff sought to cure the challenged defect some 56 days
prior to the judgment. Defendants’ second theory is also
unique. Defendants contend that Plaintiff was notified that he
must withdraw the summonses and that his failure to do so was
unreasonable. Defendants rely on an email sent 22 July 2008
- 28 -
[6 days after repeat summonses were served] from attorney
Christopher West to Plaintiff [EXHIBIT F] (R p 245) that states
in pertinent part “I remind you that Judge Spencer dismissed
with prejudice your Complaint against the corporate defendants.
This can not be cured by attempting new service.” West did not
provide any statutory reference that would lead the Plaintiff to
believe that his advice was legally sound and not merely self-
serving. Additionally, Plaintiff believes that he had a
justiciable issue to present to the court. The issue of whether
the Plaintiff had a justiciable issue is relevant to both
striking of the summonses and the issue of costs. Here, there
was no finding that the Plaintiff persisted in litigating the
case after a point where he should reasonably have become aware
that the pleading he filed no longer contained a justiciable
issue.” Sunamerica Financial Corp. v. Bonham, 328 N.C. 254, 400
S.E.2d 435 (1991). This is especially relevant in dealing with
pro se litigants. Because the Plaintiff is pro se, the Court
has a higher standard when faced with a motion to dismiss. White
v. Bloom, 621 F.2d 276 makes this point clear and states: A
court faced with a motion to dismiss a pro se complaint must
read the complaint's allegations expansively, Haines v. Kerner,
404 U.S. 519, 520-21, 92 S. Ct. 594, 596, 30 L. Ed. 2d 652
(1972), and take them as true for purposes of deciding whether
they state a claim. Cruz v. Beto, 405 U.S. 319, 322, 92 S. Ct.
- 29 -
1079, 1081, 31 L. Ed. 2d 263 (1972). Additionally, the
Plaintiff had a pending Motion to Alter or Amend Judgment
[summonses and costs](R p 402), which was preemptively filed 8
September 2008, one day before the order striking the summonses
and granting costs. Unlike Sunamerica, there is no indication
that the Plaintiff took any further affirmative action in regard
to the summonses after 9 September 2008 judgment. Therefore
Plaintiff cannot be said to have “persisted in litigating the
issue of the summonses after a point where he should reasonably
have become aware that the summonses and the Rule 59 Motion no
longer contained a justiciable issue.” Sunamerica, 328 N.C. at
258, 400 S.E.2d at 438. Sunamerica and Bryson dictate that, in
order to be in violation, a litigant must engage in affirmative
conduct of litigation after a point at which the litigant
reasonably should be aware that no justiciable issues remain in
the dispute. With this standard in mind, this court must
consider the trial court's findings in the instant case. During
the interim period, from the 14 July 2008 hearing and subsequent
rendition; to the time of the 9 September 2008 judgment the
Plaintiff did not take any further unauthorized affirmative
action in disregard of the court’s order- not yet entered. As in
Bryson, Plaintiff cannot be said to have persisted in litigating
the case after a point where he should reasonably have been
aware that no justiciable controversy existed, absent a
- 30 -
statutory obligation of the Plaintiff to believe and accept the
legal advice of opposing counsel. If there is something legally
wrong with the summons or the manner of service, the defendant
may file a motion to "quash" service of the summons. In
Lantsberry v. Tilley Lamp Co. (1971), 27 Ohio St.2d 303, 56
O.O.2d 179, 272 N.E.2d 127, the court stated in paragraph one of
the syllabus: “A judgment of a trial court sustaining motions to
quash service of summons and dismissing defendants as parties to
the action is a final appealable order.” Questions of fact
arising on a motion to quash service of process for lack of
jurisdiction over the defendant are to be determined by the
court. Lawson v. Jeter, 243 S.C. 103, 106, 132 S.E.2d 276, 277
(1963). Therefore, as the civil rules were followed by the
Plaintiff in issuing the repeat summonses and the order of the
trial court is absent of sufficient findings of fact and
conclusions of law to support quashing service of the repeat
summons, the trial erred in striking the summonses.
Additionally, it is not proper to “strike” summonses. The
Defendants could have argued that service of the summonses was
improper and moved the court to quash service of the summonses
upon showing that the procedural safeguards unique to subpoenas
and summonses were somehow violated. Once the court obtains
jurisdiction, that “jurisdiction shall continue until terminated
by order of the court.” The Defendants did not claim in their
- 31 -
motion that the repeat summonses were technically deficient.
Their unique argument appears to be that the Defendants have
been dismissed from the action and therefore any trace of them
having been re-served should be stricken from the record. If
the Defendants had truly been legally dismissed from the action,
the summonses became moot and there would be no need to strike
them. Accordingly, the trial court’s findings of fact and
conclusions of law are insufficient to support “striking” [a
summons should be quashed not struck] summonses and thereby
abused its discretion in determining that summonses should be
stricken and Defendants are entitled to an award of attorneys'
fees.
ARGUMENT
VI. THE TRIAL COURT ERRED IN AWARDING ATTORNEY FEES
TO THE PREVAILING PARTY.
STANDARD OF REVIEW
The applicable standard for appellate review of trial court
orders granting or denying motions for sanctions under N.C. Gen.
Stat. § 1A-1, Rule 11(a) is de novo. See Turner v. Duke
University, 325 N.C. 152, 165, 381 S.E.2d 706, 714 (1989).
“Except as so provided by statute, attorneys’ fees are not
- 32 -
allowable.” Baxter v. Jones, 283 N.C. 327, 330, 196 S.E.2d 193,
196 (1973). “The general rule in this State is that, in the
absence of statutory authority therefor, a court may not include
an allowance of attorneys’ fees as part of the costs recoverable
by the successful party to an action or proceeding.” King, 281
N.C. at 540, 189 S.E.2d at 162. In the present case, neither
Defendants’ Motion to Strike Summonses and Motion For Costs
(R p 229) nor the trial court’s order (R p 408) references the
statutory basis for the award of attorney’s fees.
Additionally, the supporting affidavit (R p 519) is fatally
flawed. Although the affidavit is signed by attorney
Christopher M. West, the notary, Christine Bolyard, states that
it was Barbara B. Weyher that personally appeared and
acknowledged the due execution of the instrument. The
Certification and Filing Division of the North Carolina
Department of the Secretary of State conducted an investigation
into this document and issued Bolyard an official warning in
connection with it. (R p 562). In North Carolina, an affidavit
must be signed and its contents sworn to by the affiant. See
Waters v. Wilson, No. COA06-1702, 2007 N.C. App. LEXIS 2429, at
*11 (N.C. Ct. App. Dec. 4, 2007). North Carolina cases
uniformly demand strict compliance with the requirement that an
affidavit be properly sworn. See First Citizens Bank & Trust Co.
v. Nw. Ins. Co., 44 N.C. App. 414, 420, 261 S.E.2d 242, 246
- 33 -
(1980) (indicating that any portion of an affidavit which is
unsworn should be disregarded); Short v. City of Greensboro, 15
N.C. App. 135, 138, 189 S.E.2d 560, 562 (1972) As a result,
the Court declines to recognize a document as a proper affidavit
where, as here, its contents were not sworn to by the affiant.
Additionally, before awarding attorney’s fees, the trial court
must make specific findings of fact concerning, inter alia, the
lawyer’s skill. In re Baby Boy Scearce, 81 N.C. App. 662, 663-
64, 345 S.E.2d 411, 413 (1986), disc. review denied, 318 N.C.
415, 349 S.E.2d 590 (1986). Whether these statutory requirements
are met is a question of law, reviewable on appeal. Taylor v.
Taylor, 343 N.C. 50, 54, 468 S.E.2d 33, 35 (1996), reh'g denied,
343 N.C. 517, 472 S.E.2d 25 (1996). In the case at bar neither
the attorney’s purported affidavit, his motion, or the resulting
order of the trial court contained a finding concerning the
lawyer’s skill. Also, the trial court’s order did not contain
judicial findings of fact. It simple stated, “for the reasons
stated in Defendants’ Motion and …affidavit…” Accordingly, the
trial court’s findings of fact and conclusions of law are
insufficient to support attorney fees and thus the trial court
abused its discretion in determining that Defendants are
entitled to an award of attorneys' fees as the affidavit is not
competent evidence to support costs. Therefore the findings of
- 34 -
the court relief and upholding the judgments of Judge Spencer
were insufficient and improper.
ARGUMENT
VII. THE TRIAL COURT ERRED WHEN IT FOUND THE DEFENDANT
[05 CVS 3411] IN CONTEMPT FOR PUBLISHING PUBLIC
RECORDS AND PURPORTEDLY VIOLATING A GAG ORDER.
STANDARD OF REVIEW
It is well settled that de novo review is ordinarily
appropriate in cases where constitutional rights are implicated.
Piedmont Triad Reg'l Water Auth. v. Sumner Hills, Inc., 353 N.C.
343, 348, 543 S.E.2d 844, 848 (2001). As stated supra, the
Plaintiffs in case [05 CVS 3411], Oak Health, et. al., have
repeatedly sought to prevent Defendant Johnson from publishing
information surrounding the civil action(s) with Johnson and
themselves. Defendants have alleged that Appellant is in
violation of the 31 August 2006 order of Judge Stanback, (R p
956) which prevented the publication of “all materials and
information that may contain medical and/or health information
of any patient or client of the Defendant.” Although the
Appellant has referred to the incidents surrounding the past and
pending litigation in general terms [redacting patient
identifiable information, and using pseudonyms (R p 738) “…a
nurse (let’s call her LPN Rosen)…” --- (R p 740)“…a nursing home
- 35 -
patient(let’s call him Alfie Stone)”] the Oak Health Care
Plaintiffs have continue to disregard the plain language of the
order and repeatedly moved the court for a judgment of contempt
against Johnson. The Appellant has repeatedly informed the
Appellees and the trial court(s) that all of the information
referenced in the Appellees’ multiple motions to show cause are
also contained in multiple state maintained public records, much
of which was provided by the Appellees themselves when they
attached copies of the entire blog(s), to multiple pleadings and
other papers and failed to redact any of the information.
Additionally, the Appellees have never moved the court to either
redact, remove or file the information under seal. The Appellees
have not contacted any state agency and requested that they
redact, remove or place under seal, any of the information that
is the subject of their multiple court requests to find the
Appellant in contempt. On 14 September 2009, upon motion of the
Appellees, Superior Court Judge Donald Stephens found Appellant
to be in civil contempt of court for publishing confidential
medical information. (R p 1246) The order required the Appellant
to purge himself of the contempt by 10 September 2009 (emphasis
added). Judge Stephens was unmoved by Appellant’s arguments at
the show cause hearing, that the information was public record,
no confidential information was contained within the blogs.
Johnson removed everything he could immediately, contacted the
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blog owners via email and asked if they could please remove the
information. Some blogers were unreachable, some complied after
a few days or weeks and some flat out refused. Also on 9
September 2009, Judge Stephens issued a gag order that prevented
the parties from releasing any information to the public in any
manner, any extra-judicial statement that disparages (emphasis
added) an opposing party. On 21 September 2009 the Appellant
filed a Motion for Access [to public records] pursuant to
N.C.G.S. 1-72.1. (R p 568) This statute mandates that the court
establish the date and location for an immediate hearing, shall
rule on the motion after consideration of such facts, legal
authority and argument as the parties desire to present and
shall issue a written ruling on the motion that shall contain a
statement of reasons for the ruling sufficiently specific to
permit appellate review. The purpose of the hearing was to
present evidence that all of the information that is the subject
of the civil contempt and gag orders are public record.
Appellant also filed a Motion to Amend the pending judgments
(R p 556). Appellant made a public records request of the North
Carolina Board of Nursing. The information, unlike the
information contained in the blogs, is much more detailed and
patient-identifiable. (R pp 716-735). On the morning of the
hearing, Judge John R. Jolly, Jr. presiding, Appellees handed
the Appellant an order, signed by Judge Stephens. (R p 594). The
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order denied the motion to alter or amend the gag order, denied
the motion to alter or amend the show cause order, denied the
motions to alter or amend Judge Spencer’s orders and denied the
hearing to determine access to the public records in question.
However, Appellees’ Motion to Show Cause went forward during
that session. Judge Jolly also threatened the Appellant with
contempt and incarceration, which necessitated the Appellant
filing a Notice of Appeal. (R p 598). In Sherrill v. Amerada
Hess Corp., the Court discussed controlling precedents
concerning gag orders and unanimously stated: “The issuance of
gag orders prohibiting participants in judicial proceedings from
speaking to the public or the press about those proceedings is a
form of prior restraint. As “prior restraints,” gag orders are
subject to strict and rigorous scrutiny under the First
Amendment. Id. The party asserting validity of the order must
establish: (1) “a clear threat to the fairness of the trial;”
(2) “such threat is posed by the actual publicity to be
restrained;” and (3) “no less restrictive alternatives are
available” to rebut the presumptive unconstitutionality of gag
orders. Id. at 719-20, 504 S.E.2d at807-08. “Furthermore, the
record must reflect findings [of fact] by the trial court that
it has considered each of the above factors . . . and contain
evidence to support [each] such finding[].” Id. at 720, 504
S.E.2d at 808 (citing Nebraska Press Ass'n, 427 U.S. at 563, 49
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L. Ed. 2d at 700; Gulf Oil Co. v. Bernard, 452 U.S. 89, 101-02,
68 L. Ed. 2d 693, 703-04 (1981)). The trial court's findings of
fact must support its conclusions of law in order to enter a
lawful order. Blanton v. Blanton, 40 N.C. App. 221, 225, 252
S.E.2d 530, 533 (1979). “Finally, [the gag order] must comply
with the specificity requirements of the First Amendment.”
Sherrill, 130 N.C. App. at 720, 504 S.E.2d at 808 (citing
Nebraska Press Ass'n, 427 U.S. at 568, 49 L. Ed. 2d at 703). In
Sherrill, the trial court entered a gag order that prohibited
the parties to a civil proceeding and their attorneys from
communicating with the public and the press about the case. 130
N.C. App. at 718, 504 S.E.2d at 806. N.C. Gen. Stat. § 1-
72.1(a) (2005), entitled, “Procedure to assert right of access,”
states in part, “Any person asserting a right of access to a
civil judicial proceeding or to a judicial record in that
proceeding may file a motion in the proceeding for the limited
purpose of determining the person's right of access.” The
statute further provides that upon receipt of the motion, “the
court shall establish the date and location of the hearing on
the motion that shall be set at a time before conducting any
further proceedings relative to the matter for which access is
sought under the motion.” N.C. Gen. Stat. § 1-72.1(b) (emphasis
supplied). This statute further states:
The court shall rule on the motion after consideration
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of such facts, legal authority, and argument as the movant and
any other party to the action desire to present. The court shall
issue a written ruling on the motion that shall contain a
statement of reasons for the ruling sufficiently specific to
permit appellate review. The order may also specify any
conditions or limitations on the movant's right of access that
the court determines to be warranted under the facts and
applicable law. N.C. Gen. Stat. § 1-72.1(c) (emphasis
supplied). “'Where the language of a statute is clear and
unambiguous, there is no room for judicial construction and the
courts must give [the statute] its plain and definite meaning,
and are without power to interpolate, or superimpose, provisions
and limitations not contained therein.'” State v. Camp, 286 N.C.
148, 152, 209 S.E.2d 754, 756 (1974) (quoting 7 Strong, N.C.
Index 2d, Statutes § 5 (1968)). Here, the statute plainly and
unambiguously applies to “[a]ny person asserting a right of
access to a civil judicial proceeding or to a judicial
record[.]” N.C. Gen. Stat. § 1- 72.1(a). Here, the Appellant
alleges that he is not being provided the same access to the
public record as every other citizen. The trial court ruled
that not to be so, without the benefit of a hearing and an
opportunity for the Appellant to be heard on the issue. Also
N.C. statute G.S. 7A-276.1 bars courts from entering orders
which restrict publication or broadcast of testimony, evidence,
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argument, rulings, etc., that occur in open court. Such an order
is declared by the statute to be void and of no effect, and no
one may be held in contempt for violating it. Simply misstating
that the information is confidential medical information does
not strike the protections provided by the statute. Thus the
trial court abused its discretion in finding the Appellant in
contempt for publishing public records.
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CONCLUSION
The Court of Appeals should reverse the trial court’s order
affirming the dismissal of the previous trial court and remand
the case for trial. Additionally, the COA should vacate the
judgment affirming the grant of attorney fees. Also the COA
should vacate the gag order and the judgment of civil contempt
for publishing public records or in the alternative, remand the
case for hearing on the question of access to public records.
Respectfully submitted, this 14th day of June, 2010.
�
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CERTIFICATE OF COMPIANCE
Pursuant to Rule 28(j) of the Rules of Appellate Procedure,
Appellant certifies that the foregoing brief, which is prepared
using a proportional font, is less than 8,750 words (excluding
cover, indexes, tables of authorities, certificates of service,
this certificate of compliance and appendixes) as reported by
the word-processing software.
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CERTIFICATE OF FILING AND SERVICE
Pursuant to Rule 26(a)(1) of the North Carolina Rules of
Appellate Procedure, the signature below is a certification
that the foregoing BRIEF has been filed with the Clerk by
depositing said document in an official depository of the
United States Postal Service, first class postage prepaid
and properly addressed as follows:
Office of the Clerk
Court of Appeals of North Carolina
Post Office Box 2779
Raleigh, North Carolina 27602
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