              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA18-1312

                                  Filed: 3 March 2020

Durham County, No. 16 CVS 001574

REBECCA HOLDSTOCK and LOUIS HOLDSTOCK, Plaintiffs,

             v.

DUKE UNIVERSITY HEALTH SYSTEM, INC., d/b/a DUKE UNIVERSITY
MEDICAL CENTER, DUKE UNIVERSITY HOSPITAL and/or DUKE HEALTH,
Defendants.


      Appeal by Plaintiffs from order entered 25 July 2018 by Judge Orlando Hudson

in Superior Court, Durham County. Heard in the Court of Appeals 6 August 2019.


      Bailey & Glasser, LLP, by Benjamin J. Hogan, pro hac vice, and George B.
      Currin, for Plaintiffs-Appellants.

      Yates, McLamb & Wyher, L.L.P., by Dan J. McLamb and Lori Abel Meyerhoffer,
      and Robinson Bradshaw, by Mark W. Merritt and Brian L. Church, for
      Defendants-Appellees.


      McGEE, Chief Judge.


      Rebecca Holdstock (“Ms. Holdstock”) and Louis Holdstock (collectively,

“Plaintiffs”) appeal from an order striking the affidavit of Plaintiffs’ designated expert

and granting summary judgment in favor of Duke University Health System, Inc.,

d/b/a Duke University Medical Center, Duke University Hospital and/or Duke Health

(“Defendant Duke”).

                        I. Factual and Procedural History
                  HOLDSTOCK V. DUKE UNIVERSITY HEALTH SYSTEM

                                  Opinion of the Court



      Ms. Holdstock contacted Duke Health in early 2013 complaining of dizziness

and “syncopal episodes.” Dr. Scott A. Strine, a neurologist, ordered an MRI of Ms.

Holdstock’s brain, which was performed on 1 March 2013 (the “2013 MRI”). Dr.

Hasan A. Hobbs, a radiologist and neuroradiology fellow, and Dr. Jenny K. Hoang, a

neuroradiologist, interpreted the 2013 MRI as an “unremarkable brain MR.” At a

follow-up appointment on 21 March 2013, Dr. Strine reviewed the results of the 2013

MRI and found the images of Ms. Holdstock’s brain “completely unremarkable.”

      Ms. Holdstock returned to Duke Health on 21 September 2015 complaining of

“headaches,   vision changes,     nausea,   photophobia,   worsening   tinnitus   and

questionable hearing loss.”     Audiological testing confirmed Ms. Holdstock was

suffering from decreased hearing in her left ear, and a second MRI was ordered. At

the follow-up appointment on 23 September 2015, Dr. David Kaylie, an

otolaryngologist, diagnosed Ms. Holdstock with an acoustic neuroma in her left ear.

Ms. Holdstock testified in her deposition that when Dr. Kaylie reviewed the 2013

MRI, he stated “[t]his is awkward. They missed something two-and-a half years ago

on your MRI. You have an acoustic neuroma. This explains everything that you’ve

been through.”

      Subsequently, physicians at the Mayo Clinic removed the acoustic neuroma in

Ms. Holdstock’s left ear. Post-operative audiological testing revealed Ms. Holdstock

“had suffered a complete hearing loss in her left ear.”



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      Plaintiffs’ counsel e-mailed Dr. Marc L. Bennett (“Dr. Bennett”) on 14

November 2016 and requested he “review the records and advise us if you believe

there was any negligence in failing to diagnose the acoustic neuroma in the first

instance and, secondly, what harm was occasioned by the delay in diagnosis[.]”

Plaintiffs’ counsel sent Plaintiffs an e-mail on 7 December 2016, stating “I spoke with

the ENT reviewer Dr. Marc Bennett from Vanderbilt. Without getting into great

detail, he says the neuroma is very clear on the original MRI and should never have

been missed.”

      Plaintiffs filed a complaint on 16 December 2016 against Dr. Strine, Dr. Hobbs,

Dr. Hoang (“Defendant Doctors”) and Defendant Duke (collectively, “Defendants”),

alleging professional negligence of Defendant Doctors, negligence of Defendant Duke,

and imputed negligence of Defendant Doctors to Defendant Duke. Plaintiffs filed an

amended complaint on 19 December 2016, which included the certification language

required by Rule 9(j) for medical malpractice actions:

             Plaintiff asserts that the medical care, treatment and all
             medical records pertaining to the alleged negligence that
             are available to plaintiff after a reasonable inquiry have
             been reviewed by a person who is reasonably expected to
             qualify as an expert witness under Rule 702 of the Rules of
             Evidence and who is willing to testify that the medical care
             did not comply with the applicable standard of care.




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                                    Opinion of the Court



In addition to Plaintiffs’ allegations of negligence, Plaintiffs also alleged that “the pre-

filing requirements of Rule 9(j) of the NC Rules of Civil Procedure [are]

unconstitutional.”

       Defendants filed an answer on 21 March 2017, asserting Defendants’ actions

complied with the standard of care and denying any negligence. Plaintiffs filed

answers to Defendants’ Rule 9(j) interrogatories on 4 June 2018. Plaintiffs identified

Dr. Bennett as the “person[] who . . . [Plaintiffs] reasonably expect to qualify as an

expert witness . . . and who is willing to testify that the medical care of Scott Strine,

D.O., Hasan Hobbs, M.D. and Jenny Hoang, M.D. did not comply with the applicable

standard of care.”

       Dr. Bennett was deposed on 3 January 2018. Defendants’ counsel asked Dr.

Bennett, “you were never willing to testify that Dr. Strine, Dr. Hoang, or Dr. Hobbs

violated the standard of care; is that correct?” Dr. Bennett answered, “[c]orrect.” Dr.

Bennett was asked, “you were never willing – you have never been willing to testify

that the medical care of Scott Strine, Hasan Hobbs, or Jenny Hoang did not comply

with the applicable standard of care; is that correct?” Dr. Bennett responded, “[y]es,

that’s correct.” Plaintiffs’ counsel intervened and stated on the record:

              I don’t understand these questions. We didn’t designate
              him as a standard of care expert. He’s not in the same
              specialty as . . . these doctors. We wouldn’t have asked him
              to render a standard of care . . . You asked him if he was a
              specialist in these specialties. He said no. You’ve asked
              him before whether he’s offered standard of care opinions


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                                     Opinion of the Court



             or would he be willing to, and he said no because they are
             different specialists. . . . I can represent [Dr. Bennett]
             wasn’t asked to look at the standard of care for Dr. Strine,
             Dr. Hoang, or Dr. Hobbs. I wouldn’t ask him to do it
             because he’s in a different specialty and he never expressed
             standard of care opinions to me. [] I’m not going to ask him
             about standard of care at the time of trial.

      Defendant Duke filed a motion to dismiss Plaintiffs’ complaint pursuant to

Rule 12(b)(6) or, in the alternative, a motion for summary judgment pursuant to Rule

56 on 1 June 2018. Defendant Duke alleged that Plaintiffs failed to comply with the

requirements of Rule 9(j) because Dr. Bennett “was not reasonably expected to qualify

as an expert witness under Rule 702 of the Rules of Evidence,” did not form the

opinion that “any health care provider breached the applicable standard of care,” and

was unwilling “to testify that the medical care did not comply with the applicable

standard of care under Rule 9(j).”

      Plaintiffs filed an affidavit from their counsel and an affidavit from Dr. Bennett

“to clarify” Dr. Bennett’s deposition testimony on 15 June 2018. In his affidavit, Dr.

Bennett explained:

             I advised counsel for Ms. Holdstock that I was willing to
             testify the MRI images taken in 2013 clearly show an
             acoustic neuroma that should not have been missed and
             that the ultimate delay in diagnosis of the acoustic
             neuroma led to a loss of chance for her to preserve hearing
             because of the growth of the tumor caused by the delay in
             diagnosis.

Plaintiffs’ counsel explained in his affidavit:



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                                    Opinion of the Court



              That based on Dr. Bennett’s education, training and
              experience, coupled with his review of the medical records
              and MRI images, I believed that I had met the
              requirements of Rule 9(j) in getting a qualified expert to
              review the matter and who held the opinion that a
              deviation from the standard of care occurred prior to filing
              the lawsuit and in response to the Defendant’s Rule 9(j)
              interrogatories.

       Plaintiffs filed a response to Defendant Duke’s motion to dismiss or, in the

alternative, motion for summary judgment on 2 July 2018. Defendant Duke filed a

motion to strike Dr. Bennett’s affidavit on 5 July 2018 stating it was “in direct conflict

with Dr. Bennett’s prior deposition testimony.” Following a hearing on 10 July 2018,

the trial court orally ruled “[P]laintiff’s [sic] have failed to comply with Rule 9(j); the

motion to strike Dr. Bennett’s affidavit is allowed. The motion for summary judgment

is allowed for the reasons argued by the defense.”

       The trial court then entered an order striking Dr. Bennett’s deposition and

granting summary judgment pursuant to Rule 9(j) and Rule 56 on 25 July 2018,

concluding that Rule 9(j) was constitutional, Dr. Bennett’s affidavit was a “sham

affidavit” that should be stricken, Plaintiffs failed to comply with the requirements

of Rule 9(j), and “[t]he facially valid Rule 9(j) certification of the Plaintiffs’ amended

complaint [was] not supported by the facts.” Plaintiffs appeal.

                                      II. Analysis

       Plaintiffs make two substantive arguments on appeal. First, Plaintiffs contend

the trial court erred by striking Dr. Bennett’s affidavit and granting Defendant


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                                   Opinion of the Court



Duke’s motion for summary judgment because the record demonstrates that

Plaintiffs satisfied the requirements of Rule 9(j) at the time the complaint was filed.

Second, Plaintiffs argue Rule 9(j) violates the open courts guarantee preserved in the

North Carolina Constitution and the equal protection clauses of the North Carolina

and United States Constitutions.       We do not consider the merits of Plaintiffs’

arguments because, assuming arguendo Plaintiffs properly “raised” a constitutional

facial challenge to Rule 9(j), N.C.G.S. § 1-267.1(a1) (2017) and N.C.G.S. § 1-81.1

(2017) required that Plaintiffs’ facial challenge be heard and decided by a three-judge

panel in the Superior Court of Wake County. Because this did not occur, Plaintiffs’

purported facial challenge has yet to be resolved and the 25 July 2018 order from

which Plaintiffs purport to appeal is interlocutory. We therefore vacate and remand.

                                              A.

      In order to reach our ultimate holding, we must conduct an analysis of N.C.G.S.

§ 1-267.1 and N.C.G.S. § 1-81.1—which require certain challenges to the acts of the

General Assembly to be decided by a three-judge panel in Superior Court, Wake

County, in order to determine if and how these statutes apply in this case. N.C.G.S.

§ 1-267.1 and N.C.G.S. § 1-81.1 only apply to “facial challenge[s] to the validity of an

act of the General Assembly[,]” not as-applied challenges, N.C.G.S. § 1-267.1(a1), and

only apply to civil proceedings, N.C.G.S. § 1-267.1(d). “A facial challenge is an attack

on a statute itself as opposed to a particular application.” City of Los Angeles v. Patel,



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                                   Opinion of the Court



___ U.S. ___, ___, 192 L. Ed. 2d 435, 443 (2015); see also State v. Thompson, 349 N.C.

483, 491, 508 S.E.2d 277, 282 (1998). Presuming it was properly “raised” in the

complaint, Plaintiffs’ stated constitutional challenge presents a “facial” challenge to

Rule 9(j), not an “as-applied” challenge, when Plaintiffs allege: “Rule 9(j) is an

unconstitutional violation of the Seventh and Fourteenth Amendments of the United

States Constitution and Article I, Sections 6, 18, 19, 25 and 32, and Article IV,

Sections 1 and 13 of the North Carolina Constitution.”

      The General Assembly amended both N.C.G.S. § 1-267.1 and N.C.G.S. § 1-81.1

in 2014 to require civil proceedings that challenge the facial validity of an act of the

General Assembly to be heard and decided by a three-judge panel in the Superior

Court of Wake County. 2014 N.C. Sess. Law 100, §§ 18B.16.(a) and (b). N.C.G.S. §

1-267.1(a1) states in relevant part:

             [A]ny facial challenge to the validity of an act of the
             General Assembly shall be transferred pursuant to G.S.
             1A-1, Rule 42(b)(4), to the Superior Court of Wake County
             and shall be heard and determined by a three-judge panel
             of the Superior Court of Wake County, organized as
             provided by subsection (b2) of this section.

N.C.G.S. § 1-267.1(a1) (emphasis added). The language of N.C.G.S. § 1-267.1(a1)

appears to require that “any facial challenge” to an act “shall be transferred” “and

shall be heard and determined by a three-judge panel.” Id. Although this language

initially appears to mandate the transfer of every kind of facial challenge in a civil

proceeding to the “validity of an act of the General Assembly[,]” N.C.G.S. § 1-267.1(a1)


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also states that transfer to a three-judge panel must be conducted pursuant to Rule

42(b)(4) (or “the Rule”), which limits the application of the statute in multiple ways.

N.C.G.S. § 1-267.1(a1).

      Further, Rule 42(b)(4) is written in such a manner that not all its requirements

are clear on a first reading. It states in relevant part:

             Pursuant to G.S. 1-267.1, any facial challenge to the
             validity of an act of the General Assembly . . . shall be
             heard by a three-judge panel in the Superior Court of Wake
             County if a claimant raises such a challenge in the
             claimant’s complaint or amended complaint in any court in
             this State, or if such a challenge is raised by the defendant
             in the defendant’s answer, responsive pleading, or within
             30 days of filing the defendant’s answer or responsive
             pleading. In that event, the court shall, on its own motion,
             transfer that portion of the action challenging the validity
             of the act of the General Assembly to the Superior Court of
             Wake County for resolution by a three-judge panel if, after
             all other matters in the action have been resolved, a
             determination as to the facial validity of an act of the
             General Assembly must be made in order to completely
             resolve any matters in the case. The court in which the
             action originated shall maintain jurisdiction over all
             matters other than the challenge to the act’s facial validity.
             For a motion filed under Rule 11 or Rule 12(b)(1) through
             (7), the original court shall rule on the motion, however, it
             may decline to rule on a motion that is based solely upon
             Rule 12(b)(6). If the original court declines to rule on a Rule
             12(b)(6) motion, the motion shall be decided by the three-
             judge panel. The original court shall stay all matters that
             are contingent upon the outcome of the challenge to the
             act’s facial validity pending a ruling on that challenge and
             until all appeal rights are exhausted. Once the three-judge
             panel has ruled and all appeal rights have been exhausted,
             the matter shall be transferred or remanded to the three-
             judge panel or the trial court in which the action originated


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               for resolution of any outstanding matters, as appropriate.

N.C.G.S. § 1A-1, Rule 42(b)(4) (2017).

       Because Rule 42(b)(4) includes multiple conditions, which are not presented in

procedurally chronological order, we will consider the mandates of the Rule in an

order that more clearly represents its dictates. The Rule first tracks the language of

N.C.G.S. § 1-267.1(a1): “[A]ny facial challenge to the validity of an act of the General

Assembly . . . shall be heard by a three-judge panel[.]” N.C.G.S. § 1A-1, Rule 42(b)(4)

(emphasis added).        However, the Rule then limits the application of N.C.G.S. §

1-267.1(a1) to only those facial challenges that were first “raised” in a complaint or

an amended complaint; or “raised” by the “defendant’s answer, responsive pleading,

or within 30 days of filing the defendant’s answer or responsive pleading.” Id.1 To

simplify, we will refer to any facial challenge “raised” in a plaintiff’s complaint or

amended complaint, or in a defendant’s answer, responsive pleading, or by another

appropriate means within thirty days of the filing of the defendant’s answer or

responsive pleading as “a properly raised challenge” or “properly raised challenges.”

       Rule 42(b)(4) further requires: “[T]he court shall, on its own motion, transfer

that portion of the action challenging the validity of the act of the General Assembly

to the Superior Court of Wake County for resolution by a three-judge panel[.]” Id.



       1 The word “raised” is not defined, and it is therefore uncertain whether “raising” a facial
challenge in a complaint is synonymous with “pleading” a facial challenge, and subject to the pleading
requirements set forth in Rule 8. See N.C.G.S. § 1A-1, Rule 8 (2017).

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(emphasis added). In other words, it is the trial court’s role to recognize that a facial

challenge has been made and, if appropriate, transfer the matter, sua sponte, at a

time in accordance with the dictates of the Rule.                 We will discuss the timing

requirements in detail below. Because we are not considering the merits of Plaintiffs’

appeal, we make no determination concerning whether Plaintiffs properly “raised”

their facial challenge to Rule 9(j) in their complaint; thus, upon remand, that will be

for the trial court to decide. Because the trial court’s decision on this matter will

determine what courses of action are open to Plaintiffs, and we cannot presume what

will happen upon remand, we believe a broader consideration of the relevant statutes

is warranted.

       Although the Rule requires that facial challenges raised in a complaint must

be transferred, sua sponte, for a ruling by a three-judge panel, the language of the

Rule does not expressly prohibit the trial court from deciding a facial challenge if it

is not filed in accordance with the limitations included in Rule 42(b)(4). For example,

Rule 42(b)(4), and therefore N.C.G.S. § 1-267.1(a1), does not expressly prohibit a facial

challenge that is first raised in a motion for summary judgment filed more than thirty

days after the filing of the defendant’s answer or responsive pleading.2 Further, the

Rule mandates that the trial court transfer a facial challenge to a three-judge panel



       2  See also, N.C.G.S. § 1A-1, Rule 12(h)(2) (“A defense of failure to state a claim upon which
relief can be granted . . . may be made in any pleading permitted or ordered under Rule 7(a), or by
motion for judgment on the pleadings, or at the trial on the merits.”).

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in certain circumstances, but does not expressly prohibit the trial court, in its

discretion, from transferring a facial challenge that does not comply with the

requirements of Rule 42(b)(4). See Webster Enters., Inc. v. Selective Ins. Co., 125 N.C.

App. 36, 46, 479 S.E.2d 243, 249–50 (1997) (“The trial court is vested with broad

discretionary authority in determining whether to bifurcate a trial. This Court will

not superimpose its judgment on the trial court absent a showing the trial court

abused its discretion by entering an order manifestly unsupported by reason.”)

(citations omitted). Unfortunately, neither N.C.G.S. § 1-267.1(a1) nor Rule 42(b)(4)

provide guidance on how facial challenges in civil proceedings should be resolved

when they are “raised” outside the Rule 42(b)(4) requirements.

      Subsection (c) of N.C.G.S. § 1-267.1 serves to answer some of the questions

concerning the authority of the trial court to rule on facial challenges, but also raises

other questions. It states:

             No order or judgment [in a civil proceeding] shall be
             entered . . . [that] finds . . . an act of the General Assembly
             is facially invalid on the basis that the act violates the
             North Carolina Constitution or federal law, except by a
             three-judge panel of the Superior Court of Wake County
             organized as provided by . . . subsection (b2) of this section.

N.C.G.S. § 1-267.1(c). Pursuant to a plain reading of N.C.G.S. § 1-267.1(c), no court,

other than a three-judge panel granted jurisdiction pursuant to N.C.G.S. § 1-267.1,

is permitted to make an initial ruling, and enter a judgment or order thereon, that




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                                         Opinion of the Court



an act of the General Assembly violates the North Carolina Constitution or any

federal law. N.C.G.S. § 1-267.1(c).3

      In addition, venue for facial challenges of the acts of the General Assembly is

addressed in N.C.G.S. § 1-81.1(a1), which states:

                Venue lies exclusively with the Wake County Superior
                Court with regard to any claim seeking an order or
                judgment of a court, either final or interlocutory, to
                restrain the enforcement, operation, or execution of an act
                of the General Assembly, in whole or in part, based upon
                an allegation that the act of the General Assembly is
                facially invalid on the basis that the act violates the North
                Carolina Constitution or federal law. Pursuant to G.S.
                1-267.1(a1) and G.S. 1-1A, Rule 42(b)(4), claims described
                in this subsection that are filed or raised in courts other
                than Wake County Superior Court or that are filed in Wake
                County Superior Court shall be transferred to a three-
                judge panel of the Wake County Superior Court if, after all
                other questions of law in the action have been resolved, a
                determination as to the facial validity of an act of the
                General Assembly must be made in order to completely
                resolve any issues in the case.

N.C.G.S. § 1-81.1(a1). This statute, like N.C.G.S. § 1-267.1(a1), contains facially

conflicting mandates. It states that “[v]enue lies exclusively with the Wake County

Superior Court with regard to any claim” requesting that an act of the General

Assembly not be enforced because it “is facially invalid on the basis that the act

violates the North Carolina Constitution or federal law.” N.C.G.S. § 1-81.1(a1). A

reading of the plain language of this sentence would prevent any court other than the



      3   We do not address whether this statute is meant to apply to our appellate courts.

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Superior Court of Wake County from considering any constitutional facial challenge

to an act.   However, the second sentence of the statute restricts the transfer

requirement to only properly raised challenges as set forth in Rule 42(b)(4). Also, like

N.C.G.S. § 1-267.1(a1), N.C.G.S. § 1-81.1(a1) does not expressly address how trial

courts should resolve facial challenges that are not “properly raised” pursuant to Rule

42(b)(4).

       Considered in pari materia, a plain reading of N.C.G.S. § 1-81.1(a1), N.C.G.S.

§§ 1-267.1(a1) and (c), and Rule 42(b)(4), prohibits entry of any order or judgment in

a civil proceeding that rules an act of the General Assembly facially unconstitutional,

unless: (1) it was made by a three-judge panel granted jurisdiction pursuant to

N.C.G.S. § 1-267.1; and (2) the underlying facial challenge to the act was “a properly

raised challenge” as required by Rule 42(b)(4). A facial challenge made in a motion

later than thirty days from the filing of the defendant’s answer or responsive

pleading, as determined by the Rule, is not required to be transferred to a three-judge

panel by N.C.G.S. § 1-267.1 or N.C.G.S. § 1-81.1(a1), and there is nothing in these

statutes expressly prohibiting the trial court from considering a facial challenge, but

if the trial court were to determine that an act was facially unconstitutional or

contrary to federal law, N.C.G.S. § 1-267.1(c) prohibits the trial court from entering

any order or judgment to that effect. The plain language of both N.C.G.S. § 1-267.1

and N.C.G.S. § 1-81.1(a1) does not prohibit a trial court from considering a facial



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challenge to an act, making a ruling, and entering a judgment or order thereon so

long as: (1) the trial court’s ruling in its judgment or order determines that the

challenged act is not facially unconstitutional; and (2) the facial challenge was not

filed in accordance with Rule 42(b)(4). N.C.G.S. § 1-267.1(c).

                                             B.

      The plain language of these three statutes, read in pari materia, raises issues

concerning procedure, the rights of the parties to make facial challenges both during

the period set by Rule 42(b)(4) and those facial challenges that arise later in the

action, and the authority of the trial court to act in its discretion when a facial

challenge is not expressly covered by Rule 42(b)(4). We review Plaintiffs’ alleged

facial challenge considering the relevant requirements of N.C.G.S. § 1-267.1 and

N.C.G.S. § 1-81.1(a1).

      We first note it is well settled that “the courts of this State will avoid

constitutional questions, even if properly presented, where a case may be resolved on

other grounds.” Anderson v. Assimos, 356 N.C. 415, 416, 572 S.E.2d 101, 102 (2002)

(citations omitted). Therefore, because Plaintiffs argue that the trial court erred in

granting summary judgment on both constitutional and non-constitutional grounds,

this Court would normally consider Plaintiffs’ non-constitutional argument first.

However, N.C.G.S. § 1-267.1(a1), including Rule 42(b)(4), governs our jurisdiction in

this matter, and we must determine if Plaintiffs’ claim is governed by the Rule. If so,



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we must then determine whether Plaintiffs and the trial court have handled

Plaintiffs’ claims in accordance with N.C.G.S. § 1-267.1(a1), which requires the

transfer of a facial challenge to a three-judge panel be accomplished pursuant to the

dictates of Rule 42(b)(4). Rule 42(b)(4) states that transfer of a facial challenge is

only required if Plaintiffs “raise[d] such a challenge in [Plaintiffs’] complaint or

amended complaint[.]” N.C.G.S. § 1A-1, Rule 42(b)(4).

      Plaintiffs’ complaint states in relevant part:

             Plaintiff[s] object[] to the pre-filing requirements of Rule
             9(j) of the NC Rules of Civil Procedure as unconstitutional.
             Rule 9(j) effectively requires Plaintiff[s] to prove their case
             before factual discovery is undertaken, denies malpractice
             plaintiffs their rights of due process of law, or equal
             protection under the law, of the right to open courts, and of
             the right to a jury trial, in violation of the United States
             and North Carolina Constitutions.            Rule 9(j) is an
             unconstitutional violation of the Seventh and Fourteenth
             Amendments of the United States Constitution and Article
             I, Sections 6, 18, 19, 25 and 32, and Article IV, Sections 1
             and 13 of the North Carolina Constitution.

Therefore, it was the trial court’s first duty to determine whether Plaintiffs’ complaint

“raised” a facial challenge to an act of the General Assembly in accordance with the

Rule. The trial court’s determination of this issue then would dictate the actions

thereafter required. When a facial challenge is properly “raised” pursuant to Rule

42(b)(4), N.C.G.S. § 1-267.1 determines the jurisdiction over the action, or parts of

the action, of the trial court, the three-judge panel, and the appellate courts. Under

the requirements of the Rule, if Plaintiffs properly “raised” a facial challenge in their


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complaint, the facial challenge could only be heard and decided by a three-judge

panel:

               Pursuant to G.S. 1-267.1, any facial challenge to the
               validity of an act of the General Assembly . . . shall be
               heard by a three-judge panel in the Superior Court of Wake
               County if a claimant raises such a challenge in the
               claimant’s complaint or amended complaint in any court in
               this State[.]

N.C.G.S. § 1A-1, Rule 42(b)(4).

         The trial court in this case had no jurisdiction to decide any facial challenge

that was first “raised” in Plaintiffs’ complaint. Instead, if the trial court determined

Plaintiffs had properly “raised” a facial challenge to Rule 9(j) in their complaint, the

trial court was required to determine “if, after all other matters in the action have

been resolved, a determination as to the facial validity of [Rule 9(j)] must be made in

order to completely resolve any matters in the case.” Id. “All other matters” under

Rule 42(b)(4) means “all matters that are [not] contingent upon the outcome of the

challenge to the act’s facial validity[.]” Id. Therefore, in this case, the trial court

should have determined if there were any matters that were not “contingent upon the

outcome of [Plaintiffs’] challenge to [Rule 9(j)’s] facial validity[.]” Id. If the trial court

determined there were matters not “contingent upon the outcome of [Plaintiffs’]

challenge to [Rule 9(j)’s] facial validity[,]” id., the trial court was required to resolve

those matters prior to considering whether Rule 42(b)(4) mandated transfer of

Plaintiffs’ facial challenge to the three-judge panel. Id. However, if the trial court


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determined that there were no such matters, Rule 42(b)(4) mandates that “the court

shall, on its own motion, transfer that portion of the action challenging the validity

of the act of the General Assembly to the Superior Court of Wake County for

resolution by a three-judge panel[.]” Id. (emphasis added).

       In the present case, if the trial court had determined there were matters not

“contingent upon the outcome of [Plaintiffs’] challenge to [Rule 9(j)’s] facial validity[,]”

id., and had decided such matters, it then would have had to decide whether “a

determination as to the facial validity of [Rule 9(j)] [had to] be made in order to

completely resolve any [remaining] matters in the case.” Id. For example, if the trial

court had found reason to grant summary judgment in favor of either Plaintiffs or

Defendants, based upon matters not contingent on Plaintiffs’ facial challenge, the

trial court would not have transferred Plaintiff’s facial challenge to a three-judge

panel because the underlying action would have already been decided in full.

However, if the trial court had decided all matters not “contingent upon the outcome

of” resolution of Plaintiffs’ facial challenge, but matters contingent on resolution of

the facial challenge remained “in order to completely resolve” the action, the trial

court would have been required, “on its own motion, [to] transfer that portion of the

action challenging the validity of [Rule 9(j)] . . . for resolution by a three-judge

panel[.]” Id.




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      Pursuant to Rule 42(b)(4), when a trial court transfers a facial challenge to a

three-judge panel, it “maintain[s] jurisdiction over all matters other than the

challenge to the act’s facial validity.” Id. However, once the transfer occurs:

             The original court shall stay all matters that are contingent
             upon the outcome of the challenge to the act’s facial validity
             pending a ruling on that challenge and until all appeal
             rights are exhausted. Once the three-judge panel has ruled
             and all appeal rights have been exhausted, the matter shall
             be transferred or remanded to the three-judge panel or the
             trial court in which the action originated for resolution of
             any outstanding matters, as appropriate.

Id. (emphasis added). Thus, upon transfer, a trial court must stay any outstanding

matters that cannot be fully resolved without resolution of the facial challenge by the

three-judge panel. Only after final resolution of the facial challenge will that portion

of the action be remanded or transferred back to the original trial court for final

resolution of any remaining issues and entry of a final judgment. Id.

       In the present case, the trial court granted summary judgment in favor of

Defendant Duke. Even though findings of fact and conclusions of law are not required

in an order granting summary judgment, and are not binding on this Court, McArdle

Corp. v. Patterson, 115 N.C. App. 528, 531, 445 S.E.2d 604, 606 (1994), the trial court

included the following findings and conclusions in its order granting summary

judgment: “The [trial court] considered [P]laintiffs[’] arguments that Rule 9(j) was

unconstitutional; the [trial court] found no appellate authority in North Carolina to

support that contention and the [trial court] concludes that Rule 9(j) is


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constitutional.” Initially we note that the trial court’s order is not in conflict with the

express language of N.C.G.S. § 1-267.1(c)—because it ruled in favor of the

constitutionality of Rule 9(j).         Based on a plain language reading of N.C.G.S. §

1-267.1(c), the statute would have prohibited entry of the order if the trial court had

agreed with Plaintiffs and ruled that Rule 9(j) was facially unconstitutional.

        However, because Plaintiffs included, in their complaint, a facial challenge to

Rule 9(j), the trial court was required to proceed according to the provisions of

N.C.G.S. § 1-267.1(a1) and Rule 42(b)(4). The trial court should have first determined

whether Plaintiffs had properly “raise[d] . . . a [facial] challenge in [their] complaint

or amended complaint in any court in this State[.]” N.C.G.S. § 1A-1, Rule 42(b)(4).

Assuming, arguendo, that Plaintiffs’ complaint properly “raised” a facial challenge,

the trial court was required to proceed pursuant to Rule 42(b)(4). There is no evidence

that the trial court complied with the requirements of Rule 42(b)(4), which it must do

sua sponte, if not raised by the parties. Id. If Plaintiffs’ facial challenge was “raised”

in their complaint, Rule 42(b)(4) mandated: “Pursuant to G.S. 1-267.1, [Plaintiffs’]

facial challenge to the validity of [Rule 9(j)] . . . shall be heard by a three-judge

panel[.]” Id. (emphasis added).4 The trial court was required to transfer any properly

“raised” facial challenge for decision by a three-judge panel “after all other matters




        4 There is no exception in Rule 42(b)(4) that would allow Plaintiffs’ facial challenge, if properly
“raised” in their complaint, to be decided by the trial court on summary judgment.

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                                    Opinion of the Court



in the action ha[d] been resolved[,]” i.e., “all matters that [were not] contingent upon

the outcome of the challenge to [Rule 9(j)’s] facial validity[.]” Id.

       Further, the only other issue decided by the trial court in its 25 July 2018 order

granting summary judgment was that Plaintiffs had failed to meet the pleading

requirements of Rule 9(j), in large part based on the trial court’s granting of

Defendant Duke’s motion to strike Dr. Bennett’s affidavit. Although we are not

deciding these matters on their merits, the trial court’s ruling that Plaintiffs had

failed to comply with Rule 9(j) would be rendered moot, effectively overruled, if the

three-judge panel subsequently ruled that Rule 9(j) was unconstitutional on its face.

       The statutes do not provide guidance for determining what matters constitute

“matters that are contingent upon the outcome of the challenge to the act’s facial

validity[,]” but the trial court is in a far superior position than this Court to make the

initial determination, based on the pleadings, filings, evidence, and legal arguments

made directly to the trial court.      Unlike the trial court, this Court cannot ask

questions that might help resolve issues or prompt responses necessary to create a

complete record.    For this reason and others, we believe the trial court should

generally make the determinations required by N.C.G.S. § 1-267.1(a1) and Rule

42(b)(4) in the first instance. On the facts before us, we hold that the trial court is

required to make these determinations, including whether to transfer Plaintiffs’

facial challenge, in the first instance.



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                                    Opinion of the Court



       Because the trial court did not act in accordance with N.C.G.S. § 1-267.1(a1),

Plaintiffs’ facial challenge, if it was properly “raised,” has not been “heard by a three-

judge panel” and decided. Id. The trial court was without jurisdiction to enter an

order ruling on the facial constitutionality of Rule 9(j), and also without authority to

enter an order ruling against Plaintiffs on the merits of the non-constitutional issue,

because the ultimate decision of that issue was contingent on the three-judge panel’s

resolution of the facial challenge. Therefore, Plaintiffs’ appeal is also interlocutory,

and there is no right of interlocutory appeal provided by N.C.G.S. § 1-267.1(a1).

       Though there are unanswered questions raised by the manner in which the

relevant statutes are worded, in order to decide this appeal we hold it is the duty of

the trial court to first determine whether Plaintiffs “raised” a facial challenge to Rule

9(j) in their complaint, thus invoking the provisions of N.C.G.S. § 1-267.1(a1) and

Rule 42(b)(4). If Plaintiffs did properly “raise” a facial challenge in this case, the trial

court is without jurisdiction to rule on the facial constitutionality of Rule 9(j) because

sole jurisdiction to decide that matter resides with “the Superior Court of Wake

County[,]” and the matter is required to “be heard and determined by a three-judge

panel of the Superior Court of Wake County, organized as provided by subsection

(b2)” of N.C.G.S. § 1-267.1. N.C.G.S. § 1-267.1(a1). The trial court also has to

determine what issues, if any, are not “contingent upon the outcome of the challenge

to the act’s facial validity[,]” and resolve those issues before deciding whether it is



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                                    Opinion of the Court



necessary to transfer the facial challenge to the three-judge panel. If the trial court

decides, after all issues not contingent on the outcome of Plaintiffs’ facial challenge

are resolved, that resolution of Plaintiffs’ facial challenge to Rule 9(j) is still required

to permit resolution of remaining issues, it shall, “on its own motion, transfer that

portion of the action challenging the validity of [Rule 9(j)] to the Superior Court of

Wake County for resolution by a three-judge panel[,]” and “stay all matters that are

contingent upon the outcome of the challenge to [Rule 9(j)’s] facial validity pending a

ruling on that challenge and until all appeal rights are exhausted.” N.C.G.S. § 1A-1,

Rule 42(b)(4).

                                    III. Conclusion

       Because the trial court did not comply with the mandatory requirements of

N.C.G.S. § 1-267.1, it was without jurisdiction to enter its 25 July 2018 order. Thus,

we vacate and remand this matter to the trial court to comply with the statutory

mandates of N.C.G.S. § 1-267.1(a1) and N.C.G.S. § 1A-1, Rule 42(b)(4).

       VACATED AND REMANDED.

       Judge BERGER concurs in result only.

       Judge COLLINS concurs.




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