Tate v. Calloway

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA12-501 NORTH CAROLINA COURT OF APPEALS Filed: 4 December 2012 BENJAMIN T. TATE, Plaintiff, v. Mecklenburg County No. 10 CVS 16753 CLIFFORD K. CALLOWAY, MD; AND CHRISTIAN MADSEN, MD, Defendants. Appeal by plaintiff from Order and Judgment entered 3 October 2011 by Judge Hugh Lewis in Mecklenburg County Superior Court. Heard in the Court of Appeals 27 September 2012. Watts-Robinson, P.A., by Lena Watts-Robinson, for plaintiff appellant. Shumaker, Loop & Stacy Stevenson, appellees. Kendrick, LLP, by Scott M. Stevenson, and Christian Staples, for defendant McCULLOUGH, Judge. Benjamin T. Tate ( plaintiff ) appeals the trial court s order granting summary judgment in favor of Clifford K. Calloway, MD ( Dr. Calloway ), and Christian Madsen, MD ( Dr. -2Madsen ) (together defendants ). For the following reasons, we affirm. I. Background Plaintiff was a commercial truck driver employed by Pepsi Bottling Group ( Pepsi ) from 2004 to 2010. By law, a commercial truck driver examinations is in required order to to undergo receive periodic certification medical from the Department of Transportation ( DOT ) and maintain his commercial driver s license. Emergency Centers Defendants that are doctors administer the at Pro-Med exams and Minor issue certifications for DOT. On 5 March 2007, plaintiff went to defendants to have an exam. Dr. Madsen conducted the exam and denied certification based on plaintiff s Thereafter, documentation diabetes plaintiff from his submitted primary and psychological additional care physician issues. explanatory and his psychiatrist and plaintiff was granted a one-year certification by Dr. Calloway. On 6 August 2007, plaintiff returned to see defendants for another exam. certification. Dr. Madsen conducted the exam and again denied Plaintiff again responded by submitting -3documentation from his personal doctors and Dr. Calloway issued plaintiff a one-year certification on 21 August 2007. However, on 27 August 2007, Dr. Calloway wrote a letter to Pepsi revoking the certification on the grounds that the issuance of the certification was based on misleading information provided by plaintiff. Although plaintiff could no longer serve as a truck driver for Pepsi following the revocation of his DOT certification, plaintiff was opportunity not to fired. apply for Instead, plaintiff alternative was positions given with the Pepsi. Plaintiff refused to do so and resigned from his position at Pepsi on 25 June 2010. Plaintiff filed his original complaint in this matter on 6 August 2010. The original complaint listed only Minor Emergency Center, P.A. d/b/a Pro-Med Minor Emergency Centers ( Pro-Med ) as a defendant in the caption. However, the claims for relief in the complaint referred to Dr. Calloway and Dr. Madsen as defendants. Plaintiff filed an amended complaint on 15 November 2010. This amended complaint included Dr. Calloway and Dr. Madsen in the caption with Pro-Med. The remainder of the complaint was essentially the same as the original complaint, with the -4addition of two paragraphs identifying Dr. Calloway and Dr. that was Madsen, inserted as new paragraphs 5 and 6. Pro-Med filed a motion for summary judgment granted by the trial court on 13 June 2011, leaving only the claims against defendants. Defendants subsequently filed a motion for summary judgment on 18 July judgment 2011, followed 13 September on by an 2011. amended The motion trial for court summary granted defendants motion for summary judgment on the grounds that the statute of limitations had expired with respect to both claims. The Order and Judgment was filed 3 October 2011. Defendant appeals. II. Analysis Plaintiff raises the following issues on appeal: Whether the trial court erred in granting summary judgment (1) based on the application of an arbitrary statute of limitations; (2) by determining that the complaint was filed against defendants when the amended complaint was filed; or (3) based on the affidavits submitted by defendants. Upon motion, summary judgment is appropriately entered where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, -5show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law. Pembee Mfg. Corp. v. Cape Fear Const. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985) (quoting N.C. Gen. Stat. § 1A-1, Rule 56(c)). Ordinarily, the question of whether a cause of action is barred by the statute of limitations is a mixed question of law and fact. However, when the bar is properly pleaded and the facts are admitted or are not in conflict, the question of whether the action is barred becomes one of law, and summary judgment is appropriate. Id. (citations omitted). A. Amended Complaint The determination of when a case is filed is critical when addressing a statute of limitations question. begin our analysis with plaintiff s second Therefore, we issue on appeal concerning the date of filing of the action against defendants. In its order granting summary judgment, the trial court did not specifically conclude that defendants were not included as parties in the original complaint filed 6 August 2010. However, it is apparent from the trial court s finding that [plaintiff] filed an Amended Complaint against Defendants . . . on November 15, 2010[] nd subsequent conclusion that [p]laintiff s Amended Complaint was filed outside of the applicable three -6(3) year statute of limitations[,] that the trial court ran the statute of limitations from the filing of the amended complaint. Plaintiff now contends that it was error for the trial court to conclude that the statute of limitations had expired based on the amended complaint filed on 15 November 2010. Instead, plaintiff argues that the original complaint, filed on 6 August 2010 is the proper complaint from which the applicable statute of limitations should run. Plaintiff concedes that defendants were not listed in the caption of the original complaint, yet plaintiff argues that the determination of who is a defendant in the case hinges upon more than the caption. In support of his argument, plaintiff cites White v. Cochran, __ N.C. App. __, 716 S.E.2d 420 (2011). The plaintiff in White v. Cochran, a detention officer at the Swain County Jail, filed suit against Curtis Cochran, the Swain County Sheriff, alleging Employment Discrimination Act. violations of the Retaliatory However, the right-to-sue letter issued by the N.C. Department of Labor listed the Swain County Sheriff's Department as the respondent. In determining that the complaint was sufficient to bring suit against the Sheriff s Department, could be the sued Court in held his that official where a capacity government and/or official individual -7capacity, [t]he crucial question . . . is the nature of the relief sought . . . and therefore it is appropriate to consider the . . . allegations contained in the pleading to determine the capacity in which defendant is being sued. White, __ N.C. App. at __, 716 S.E.2d at 425 (quoting Mullis v. Sechrest, 347 N.C. 548, 552-53, 495 S.E.2d 721, 723-24 (1998) (quoting Meyer v. Walls, 347 N.C. 97, 110, 489 S.E.2d 880, 887 (1997)). Thus, plaintiff argues that the caption of a case is not controlling. After reviewing White v. Cochran, we find the instant case distinguishable. First, defendants are not government officials and therefore can only be sued in their individual capacity. Second, this is not a case where an individual was incorrectly named in the caption. In this case, plaintiff amended the complaint to add defendants while Pro-Med, the sole defendant listed in the caption of the original complaint, remained a defendant in the case. Furthermore, the fact that defendants were mentioned in plaintiff s claims for relief in the original complaint does not save the complaint where defendants were not on notice of the suit allegedly pending against them. of Civil Procedure require that The North Carolina Rules summonses be issued to -8defendants within five days of the filing of a complaint. Gen. Stat. § 1A-1, Rule 4(a) (2011). N.C. In this case, summonses were not issued to defendants until after the amended complaint was filed on 15 November 2010. It is well settled that the summons, not the complaint, constitutes the exercise of the power of the State to bring the defendant before the court. Stinchcomb v. Presbyterian Medical Care Corp., __ N.C. App. __, __, 710 S.E.2d 320, 324-25 (2011) (quoting Childress v. Forsyth Cnty. Hosp. Auth., Inc., 70 N.C. App. 281, 285, 319 S.E.2d 329, 332 (1984)). Thus, [w]here a complaint has been filed and a proper summons does not issue within the five days allowed under the rule, Stinchcomb, the __ action N.C. is App. deemed at __, never 710 to have S.E.2d at commenced. 324 (quoting County of Wayne ex rel. Williams v. Whitley, 72 N.C. App. 155, 157, 323 S.E.2d 458, 461 (1984)). Where defendants were not named as parties to the suit until the amended complaint was filed and where defendants were not on notice of the suit until after summonses were issued following the filing of the amended complaint, the trial court did not err in concluding that the action commenced against defendants on 15 November 2010 when plaintiff filed his amended complaint. -9- B. Statute of Limitations Having determined that plaintiff s action commenced against defendants when the amended complaint was filed on 15 November 2010, we now proceed to address plaintiff s contention that the trial court erred in granting defendant s motion for summary judgment based on the application of an arbitrary statute of limitations. As an initial note, [w]hen the statute of limitations is properly pleaded and the facts of the case are not disputed[,] resolution of the question becomes a matter of law and summary judgment may be appropriate. Williams v. Blue Cross Blue Shield of North Carolina, 357 N.C. 170, 178, 581 S.E.2d 415, 422 (2003) (internal quotation marks and citation omitted) (alteration in original). In this case, plaintiff s complaint includes two distinct claims for interference infliction relief: with of one claim contract, emotional for and distress. malicious one We claim and for address wrongful negligent plaintiff s arguments as they apply to each claim for relief separately. Malicious & Wrongful Interference With Contract -10It is settled, and plaintiff does not dispute, that a claim for malicious and wrongful interference with contract is governed by the three-year statute of limitations set forth in N.C. Gen. Stat. § 1-52(5). See Johnson v. Graye, 251 N.C. 448, 452, 111 S.E.2d 595, 598 (1959). Here, plaintiff s contention is that the statute of limitations did not begin to run until his discovery of the interference with his contractual rights. Plaintiff is mistaken. Ordinarily, the period of the statute of limitations begins to run when the plaintiff's right to maintain an action for the wrong alleged accrues. The cause of action accrues when the wrong is complete, even though the injured party did not then know the wrong had been committed. Wilson v. Development Co., 276 plaintiff N.C. 198, cites 214, our 171 decision S.E.2d in 873, 884 Soderland v. (1970). Kuch Yet, for the general proposition that the legislature expressly provided a discovery statute in N.C. Gen. Stat. plaintiffs in cases of latent injuries. § 1-52 to protect Soderland v. Kuch, 143 N.C. App. 361, 370, 546 S.E.2d 632, 638 (2001). While it is true that N.C. Gen. Stat. § 1-52(16) contains a discovery provision, the discovery provision is applicable only to cases where there is personal injury or physical damage to the claimant s -11property[.] damage N.C. Gen. Stat. § 1-52(16) (2011). results from malicious and wrongful Here, no such interference with contract and we have declined to extend the discovery provision of N.C. Gen. Stat. § 1-52(16) to claims for pecuniary loss. See White v. Consolidated Planning, Inc., 166 N.C. App. 283, 308, 603 S.E.2d 147, 164 (2004) ( By its terms, [N.C. Gen. Stat. § 152(16)] applies only to claims for personal injury or physical damage to claimant's property. This language is unambiguous and cannot be read as drawing within its scope pecuniary loss unrelated to personal injury or physical property damage. ). Plaintiff interference additionally by Calloway filed against defendants Pepsi. wrongful a argues that occurred 30 declaration For interference purposes in with last July 2010 plaintiff s of claim, act when separate plaintiff s contract declaration cannot be considered. the 30 Dr. action malicious the of July and 2010 Plaintiff resigned from his position at Pepsi on 25 June 2010. Therefore, there was no longer a contractual relationship to be interfered with on 30 July 2010. As a result, the trial court did not err in granting summary judgment concerning plaintiff s malicious and wrongful interference with contract claim where the three-year statute of -12limitations running from 27 August 2007, the last act of interference, expired before the amended complaint was filed 15 November 2010. Negligent Infliction of Emotional Distress Plaintiff s contentions regarding the statute of limitations applicable to his claim for negligent infliction of emotional distress are similar to his contentions regarding his interference with contract claim. As was the case with plaintiff s claim for malicious and wrongful inference with contract, plaintiff does not dispute that a three-year statute of limitations is applicable to his negligent infliction of emotional distress claim. See Russell v. Adams, 125 N.C. App. 637, 640, 482 S.E.2d 30, 33 (1997) ( Causes of action for emotional distress, both intentional and negligent, are governed by the three-year statute of limitation provisions of N.C. Gen. Stat. § 1-52(5)[]. ). Yet, plaintiff argues that the discovery provision of N.C. Gen. Stat. § 152(16) is applicable for the same reasons previously argued. In Soderlund, we declined to apply the discovery statute of N.C. Gen. intentional Stat. and § 1-52(16) negligent to the infliction plaintiff s of claims emotional for distress because the plaintiff was aware of the injury and the effects -13were not latent. at 638-39. Soderlund, 143 N.C. App. at 370-71, 546 S.E.2d Instead, we held that the three-year period of time for emotional distress claims accrues when the conduct of the defendant causes extreme emotional distress. Id. at 371, 546 S.E.2d at 639 (quoting Bryant v. Thalhimer Brothers, Inc., 113 N.C. App. 1, 12, 437 S.E.2d 519, 525 (1993)). However, in deciding Soderland, we distinguished the case of Russell v. Adams, where the cause of the plaintiff s alleged emotional distress was not discovered by the plaintiff until more than two years after the acts causing the injury occurred. 125 N.C. App. 637, 641, 482 S.E.2d 30, 33 (1997). In Russell, we stated that emotional distress claims do not accrue until the plaintiff becomes aware or should reasonably have become aware of the existence of the injury. Id. (quoting Pembee Mfg. Corp., 313 N.C. at 493, 329 S.E.2d at 354; N.C. Gen. Stat. § 1-52(16)). In the present case, although plaintiff may not have been aware of the letter from Dr. Calloway to Pepsi, the revocation of plaintiff s DOT certification after it was initially awarded and the ensuing change in plaintiff s employment status with Pepsi put plaintiff on notice so that he should reasonably have become aware of the existence of the injury. -14Furthermore, plaintiff has not specified a date as to when he began suffering emotional distress. Once a defendant has properly pleaded the statute of limitations, the burden is then placed upon the plaintiff to offer a forecast of evidence showing that the action was instituted within the permissible period after the accrual of the cause of action. Corp., 313 N.C. at 491, 329 S.E.2d at 353. Pembee Mfg. In response to an interrogatory concerning the nature and timing of plaintiff s severe emotional distress, plaintiff stated that [u]pon learning, actual date unknown, that the Defendants had provided confidential suffered stress, information severe and to depression, great Plaintiff s many employer, sleepless embarrassment. (Emphasis nights, Plaintiff excessive added.) Where plaintiff failed to give a date on which to begin the accrual of the statute of limitations, there is no forecast of evidence sufficient to show the action was brought within three years. Thus, the trial court did not err in granting summary judgment concerning plaintiff s claim for negligent infliction of emotional distress based on the statute of limitations. C. Affidavits Plaintiff s final contention is that defendants affidavits are not based on personal knowledge and therefore cannot -15lawfully be the basis for the trial court s grant of summary judgment. N.C. Gen. Stat. § 1A-1, Rule 56(e) requires that [s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant competent to testify to the matters stated therein. is N.C. Gen. Stat. § 1A-1, Rule 56(e) (2011). Although a Rule 56 affidavit need not state specifically it is based on personal knowledge, its content and context must show its material parts are founded on the affiant's personal knowledge, . . . Our courts have held affirmations based on personal[] aware[ness], information and belief, . . . and what the affiant think[s], do not comply with the personal knowledge requirement of Rule 56(e). Hylton v. Koontz, 138 N.C. App. 629, 634, 532 S.E.2d 252, 256 (2000) (citations omitted). In this case, the affidavits of Dr. Calloway and of Dr. Madsen both include a statement that the facts Affidavit are based upon my own personal knowledge. the paragraph in each affidavit asserting in this However, defendants last involvement in plaintiff s case is made [u]pon information and belief. Generally, such statements made upon information and belief are not to be considered in ruling on a motion for -16summary judgment. However, plaintiff failed to preserve this issue for appeal when he failed to object to the trial court s consideration of the affidavits. See N.C.R. App. P. 10(a)(1) (2012) ( In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion[.] ). trial court erred in We, therefore, cannot find that the considering the affidavits in granting summary judgment. III. Motions to Dismiss and Motion for Sanctions In addition to deciding the merits of the appeal, this Court received motions to dismiss the appeal and a motion for sanctions. Specifically, defendants filed a second motion to dismiss the appeal or, alternatively, sanction plaintiff on 2 July 2012 on the grounds that plaintiff failed to include an Index to the Record on Appeal as required by N.C.R. App. P. 9(a)(1). Plaintiff responded to defendants motion and moved for sanctions against defendants on 11 July 2012. These motions were referred to this panel and are hereby denied. Even so, we note that defendants counsel is correct in asserting that plaintiff s counsel failed to include an Index to the Record on Appeal as required by N.C.R. App. P. 9(a)(1). This undoubtedly caused defendant s counsel to expend additional -17time in attending to this matter, However, this violation is sanctions. this Based upon not so as it did significant admonition, this Court. as to warrant plaintiff s counsel should be certain to file an Index to the Record on Appeal in accordance with the Rules of Appellate Procedure in the future. IV. Conclusion For the reasons discussed above, the trial court did not err in granting Accordingly, we summary affirm the judgment Order in and favor Judgment of of court. Affirmed. Judges HUNTER, JR. (Robert N.) and ERVIN concur. Report per Rule 30(e). defendants. the trial

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