Hefner v. Mission Hosp., Inc.

Hefner v. Mission Hosp., Inc., 

.


STATE OF NORTH CAROLINA                      IN THE GENERAL COURT OF JUSTICE
                                                 SUPERIOR COURT DIVISION
COUNTY OF BUNCOMBE                                      12 CVS 3088

STEPHEN HEFNER, on behalf of             )
himself and all others similarly         )
situated,                                )
                                         )
                  Plaintiff,             )
                                         )
       v.                                )
                                         )
MISSION HOSPITAL, INC., a North          )
                                                     ORDER & OPINION
Carolina Corporation; and MISSION        )
HEALTH SYSTEM, INC., a North             )
Carolina Corporation, collectively       )
doing business as MISSION                )
HEALTH; and DOES 1 through 25,           )
inclusive,                               )
                                         )
                  Defendants.            )
                                         )


      {1}     THIS MATTER is before the Court on Defendants’ Motion to Dismiss
Plaintiff’s Appeal (“Motion”). For the reasons explained below, the Motion is
GRANTED, and Plaintiff’s appeal is DISMISSED.
      Higgins Benjamin, PLLC by John F. Bloss and Barry L. Kramer Law Offices
      by Barry L. Kramer (pro hac vice) for Plaintiff.

      Robinson Bradshaw & Hinson, P.A. by Robert W. Fuller and Fitz E.
      Barringer for Defendants.

Gale, Chief Judge.

                                 I.    BACKGROUND

      {2}     The relevant facts necessary to decide the Motion are largely
undisputed.
      {3}     The parties agree that, pursuant to Rule 3 of the North Carolina Rules
of Appellate Procedure (“Appellate Rule(s)”), the notice of appeal at issue was
required to be filed with the Buncombe County Clerk of Superior Court (“Clerk of
Court”) no later than January 19, 2016. N.C. R. App. P. 3(a), (c). The Clerk of
Court file stamped the Notice of Appeal of the Court’s Final Order and Class
Certification Order (“Notice of Appeal”) on January 20, 2016. Plaintiff contends
that the Notice of Appeal was in the Clerk of Court’s possession on or before that
date, such that Appellate Rule 3 was satisfied. Defendants challenge Plaintiff’s
proof that the Clerk of Court received the Notice of Appeal before January 20, 2016.
Defendants further contend that, in any event, the date of filing is controlled by the
file stamp and that the Notice of Appeal was therefore untimely.
      {4}    The Court executed and electronically filed in its filing system an
Order & Opinion (“Final Order”) on December 15, 2015, that dismissed all of
Plaintiff’s claims and denied reconsideration of the Court’s December 8, 2014, Order
Denying Plaintiff’s Motion for Class Certification (“Class Certification Order”). The
Court mailed that Final Order to the Clerk of Court, who then file stamped it on
December 17, 2015.
      {5}    On January 8, 2016, Plaintiff’s counsel electronically filed Plaintiff’s
Notice of Appeal. Plaintiff’s counsel also sent Plaintiff’s Notice of Appeal via FedEx,
return receipt requested, addressed to “Buncombe County Courthouse, ATTN: Civil
Division.” (Pl.’s Resp. Opp’n Defs.’ Mot. Dismiss Pl.’s Appeal Ex. C, at Ex. B.)
Plaintiff’s counsel received an e-mail confirmation that the FedEx package was
delivered on January 12, 2016.
      {6}    Plaintiff has provided affidavits indicating that the FedEx package
that contained the Notice of Appeal was not delivered to Clerk of Court but instead
was delivered to the Sheriff’s Department of Buncombe County (“Sheriff’s
Department”). Those affidavits document that the Sheriff’s Department has a
procedure whereby it delivers certain documents to the Clerk of Court. However,
there is no clear and direct evidence that the Notice of Appeal was, in fact, received
by the Clerk of Court before January 20, 2016, the date on which it was file
stamped.
                                     II.    ANALYSIS

      {7}    The parties agree that the Notice of Appeal must have been filed no
later than January 19, 2016, to satisfy Appellate Rule 3, irrespective of whether the
filing deadline is calculated from the date the parties received notice that the Final
Order was filed electronically or from the date the original Final Order was filed
with the Clerk of Court. See N.C. R. Civ. P. 58; BCR 6.11; see also E. Brooks
Wilkins Family Med., P.A. v. WakeMed, No. COA15-217, 

 (Jan. 5, 2016) (“This Court has held a litigant’s actual notice of a final order
within three days of its entry triggers Rule 3(c) and notice of appeal must be filed
within thirty days of the date of entry.”); Carter v. Clements Walker PLLC, No. 08
CVS 4333, 

, at *2 n.1 (N.C. Super. Ct. Apr. 30, 2014).
      {8}    Because the Notice of Appeal’s file stamp indicates that the Notice of
Appeal was filed on January 20, 2016, Plaintiff must produce evidence that the
Notice of Appeal was filed prior to that date. See N.C. R. Civ. P. 3(a) (noting that
the Clerk of Court’s entry of the date of filing on a complaint is prima facie evidence
of the date of filing); cf. Ikerd v. Greenwood, No. 07 CVS 4447, 

, at *4 (N.C. Super. Ct. Apr. 30, 2008) (holding that the party that files a notice of
designation has the burden of showing that the notice was timely filed).
      {9}    As the Court stated in Ehrenhaus v. Baker, “the trial court is held to a
strict construction of Appellate Rule 3.” 

, at *10 (N.C. Super.
Ct. July 16, 2014), cert. denied and appeal dismissed, __ N.C. App. __, 

 (2015); see also Am. Mech., Inc. v. Bostic, Nos. COA15-385, COA15-422,
COA15-525, 

, at *8–18 (Feb. 2, 2016), aff’g No. 12 CVS
1384, 

 (N.C. Super. Ct. Oct. 6, 2014). The law is unclear
regarding whether a document is considered to be “filed” only after it has been
stamped by a clerk of court. See, e.g., Peebles v. Moore, 

, 

 (1981) (“For many years the rule in this jurisdiction has been that a
paper writing is deemed to be filed when it is delivered for that purpose to the
proper officer and received by him.”); cf. N.C. R. Civ. P. 3(a) (calling the entry of a
date on a complaint “prima facie evidence” of the date of filing, rather than
mandating that the date on the file stamp is the date of filing).
         {10}   Plaintiff’s affidavits suggest a possibility that the Clerk of Court had
possession of the Notice of Appeal by January 19, 2016, but it is not entirely clear
that this was the case.
         {11}   The Court is sympathetic to the circumstances in which Plaintiff now
finds himself. However, the Court believes that it must view Plaintiff’s proof
through the same standard of strict construction under which it must apply the
Appellate Rules. After so doing, the Court holds that Plaintiff has not met his
burden of proving that the Notice of Appeal was filed on any day other than
January 20, 2016, the date found on the file stamp. As a result, the Court need not
address whether the Notice of Appeal was “filed” as of the date it was delivered to
the Clerk of Court. Having so held, this Court does not have the discretion to allow
the appeal, as Appellate Rules 2 and 21 vest such discretion only in the appellate
courts. Am. Mech., Inc., 

, at *18; see also N.C. R. App. P.
2, 21.
         {12}   Accordingly, this Court must conclude that the Notice of Appeal was
untimely filed, Defendants’ Motion must be GRANTED, and Plaintiff’s appeal must
be DISMISSED.


         IT IS SO ORDERED this the 29th day of February, 2016.




                                            /s/ James L. Gale
                                           James L. Gale
                                           Chief Special Superior Court Judge
                                             for Complex Business Cases