Watson v. Price

¶1concurring.

¶2I concur with the majority that Webb v. Nash Hosp., Inc., 133 N.C. App. 636, 639, 516 S.E.2d 191, 193, disc. review denied, 351 N.C. 122, 541 S.E.2d 471 (1999), where this Court held that “the mere signature on a judgment that has not been entered is an incomplete judgment^]” is controlling in the present case. I write separately to point out that the legislature never intended to create a filing requirement for an order granting a plaintiff’s motion to extend the time within which plaintiff must file his or her complaint pursuant to Rule 9(j) of the North Carolina Rules of Civil Procedure.

¶3As acknowledged by the majority, the plain language of Rule 9(j) sets forth that a plaintiff must make a motion to extend the statute of limitations prior to the expiration of the applicable statute of limitations and that a superior court judge may allow the motion “for a period not to exceed 120 days . . . .” N.C. Gen. Stat. § 1A-1, Rule 9(j) (2009). Therefore, the motion is effective when the order is allowed. Rule 9(j) does not mandate that the order be filed with the clerk of court. “When the language of a statute is clear and without ambiguity, ‘there is no room for judicial construction,’ and the statute must be given effect in accordance with its plain and definite meaning.” Avco Financial Services v. Isbell, 67 N.C. App. 341, 343, 312 S.E.2d 707, 708 (1984) (quoting Williams v. Williams, 299 N.C. 174, 180, 261 S.E.2d 849, 854 (1980)).

¶4Furthermore, while I agree with the ultimate outcome of the Webbcase, I disagree with the Court’s application of Rule 58 in that the Court broadened the scope of Rule 58 to apply to an ex parte order entered before an action is commenced. “[T]he purposes of the requirements of Rule 58 are to make the time of entry of judgment easily identifiable, and to give fair notice to all parties that judgment has been entered.” Durling v. King, 146 N.C. App. 483, 494, 554 S.E.2d 1, 7 (2001). It is my interpretation that Rule 58 only applies to judgments and orders entered subsequent to the filing of a complaint where the defendant is, in many cases, required to take action within a set period of time. Notice is not an issue in this circumstance where an extension of time is granted to file a complaint, but an action has not been instituted.

¶5*375When a plaintiff requests an extension of the statute of limitations, the relevant dates are: (1) the date when the motion was filed, which must be prior to the expiration of the applicable statute of limitations, and (2) the date set by the trial court as the new deadline for filing the complaint. These dates are set out in the trial court’s order and only pertain to plaintiff’s deadline for filing a complaint; the granting of the order has no effect on potential defendants. Moreover, our Court has clearly held that the order granting a Rule 9(j) extension of time to file the complaint does not have to be served on the potential defendants since a complaint has not been filed. Timour v. Pitt County Memorial Hosp., Inc., 131 N.C. App. 548, 550, 508 S.E.2d 329, 330 (1998), aff’d per curiam, 351 N.C. 47, 519 S.E.2d 316 (1999). The implication is that potential defendants are not prejudiced by the lack of notice that an extension has been granted. In fact, all medical professionals subject to a medical malpractice lawsuit are on notice by the plain language of Rule 9(j) that a medical malpractice action must be filed within three years, or up to 120 days beyond the three-year deadline should the trial court grant an ex parte motion for an extension. There is no practical rationale for service of the order or entry of the order with the clerk of court.

¶6The Court in Webbwas faced with resolving a narrow issue regarding the authority of the trial court to enter the order for an extension of the statute of limitations when it held that Rule 58 applied and that an order granting an extension under Rule 9(j) must be “entered” to be effective. Clearly, the Court did not contemplate the type of situation currently before us when it made this broad declaration. In sum, the plain language of Rule 9(j) should control in this case, not Rule.58 as applied in Webb. In other words, a Rule 9(j) order should be considered effective when allowed by the trial court.5