An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-963
                       NORTH CAROLINA COURT OF APPEALS

                               Filed:     20 May 2014


The Estate of BETTY ANN W. AMOS,
by and through BARBARA A. WILLIAMS
and JUDY A. JAMES in their
capacities as CO-EXECUTORS of The
Estate of BETTY ANN W. AMOS,
     Plaintiffs

      v.                                      Forsyth County
                                              No. 12 CVS 4964
W. Scott Moore, M.D.; NEPHROLOGY
ASSOCIATES, P.L.L.C.; NOVANT
HEALTH, INC.; and FORSYTH MEMORIAL
HOSPITAL, INC., both d/b/a FORSYTH
MEDICAL CENTER,
     Defendants


      Appeal by plaintiffs from order entered 10 May 2013 by

Judge   R.   Stuart     Albright     in   Forsyth    County    Superior     Court.

Heard in the Court of Appeals 8 January 2014.


      Hedrick Gardner Kincheloe & Garofalo, LLP, by Patricia P.
      Shields, Maureen R. McDonald, and Joshua D. Neighbors, for
      plaintiff-appellants.

      Carruthers & Roth, P.A., by Norman F. Klick, Jr., Richard
      L. Vanore, and Robert N. Young, for defendant-appellees W.
      Scott Moore, M.D. and Nephrology Associates, P.L.L.C.

      Coffey Bomar, LLP, by J. Chad Bomar, Tamura D. Coffey, and
      J. Rebekah Biggerstaff, for defendant-appellees Novant
      Health, Inc. and Forsyth Memorial Hospital, Inc. both d/b/a
      Forsyth Medical Center.
                                            -2-


      CALABRIA, Judge.
      Barbara A. Williams and Judy A. James (“plaintiffs”), co-

executors    of    the   Estate       of    Betty    Ann     W.   Amos   (“decedent”),

appeal from an order imposing the sanction of dismissing their

complaint against W. Scott Moore, M.D. (“Dr. Moore”); Nephrology

Associates,       P.L.L.C.;     and        Novant    Health,      Inc.   and     Forsyth

Memorial    Hospital,     Inc.,       both        d/b/a    Forsyth   Medical      Center

(“FMC”) (collectively “defendants”) pursuant to Rules 9(j), 11,

and 41 of the North Carolina Rules of Civil Procedure.                                We

reverse.

      On    the    morning      of     2     November       2007,    decedent     began

exhibiting    symptoms     of     a    “cerebral          vascular   accident”     while

undergoing dialysis at the King Dialysis Center.                         Decedent was

taken by ambulance to the FMC emergency department, where she

was   assessed     and   treated.           Dr.     Moore,    decedent’s       attending

physician, admitted her to the FMC renal ward, where she was

administered heparin.           Over the next several hours, decedent’s

condition continued to decline.                   Decedent complained of intense

and severe pain in her head and repeatedly vomited over a period

of eight hours, but FMC nursing staff refused to call Dr. Moore.

A CT scan later revealed a large right intracranial cerebral

hemorrhage.       Decedent was transferred to palliative care, where
                                        -3-
she died on the evening of 3 November 2007.

    Plaintiffs sought the advice of attorney J. Carlyle Hearn,

II (“Hearn”) in late November or early December 2007 regarding

potential    wrongful        death   claims.        Hearn   agreed     to    represent

plaintiffs and confirmed the terms of his engagement in a letter

to plaintiffs dated 6 February 2008.                     After Hearn reviewed a

“rather     comprehensive”       copy     of        decedent’s    medical         records

regarding her treatment at FMC (the “2007 treatment records”),

Hearn     searched     for     potential       expert       witnesses       to     review

decedent’s    care.          Overall,     Hearn       contacted      six     to     eight

potential experts.

    Since plaintiffs were required to file a wrongful death

complaint within two years of decedent’s death, Hearn filed a

motion to extend the statute of limitations on 28 October 2009.

According    to      Hearn’s    motion,        he    “need[ed]    to       secure     all

pertinent medical records of the decedent . . . and, pursuant to

N.C.R. Civ. Pro. 9(j), [decedent’s] medical treatment must be

reviewed by a person or persons who are reasonably expected to

qualify as an expert witness(es)[.]”                  The trial court found good

cause     existed to extend the statute of limitations, and granted

an extension until 2 March 2010.

    After Hearn secured experts who were willing to testify
                                              -4-
that defendants breached the standard of care, he was able to

provide Rule 9(j) certifications during the extension period.

Plaintiffs       filed    their        initial      complaint      on    2    March    2010,

alleging, inter alia, that Dr. Moore negligently failed to order

a    neurological       consult    for    decedent,        and    that       FMC’s    nursing

staff failed to properly monitor, respond, and care for decedent

or    to    contact      decedent’s        attending         physician        after    being

notified on several occasions that she was in severe pain and

repeatedly vomiting over a period of eight hours.                                Defendants

filed a motion to set aside the extension to the statute of

limitations and a motion to dismiss.                         Plaintiffs voluntarily

dismissed     their      complaint,       without      prejudice,        in    July        2011.

Plaintiffs refiled their complaint in July 2012.                                 Defendants

again filed motions to set aside the extension to the statute of

limitations and to dismiss plaintiffs’ complaint.

       On   10    May    2013,    the     trial      court    concluded        that        Hearn

“knowingly and intentionally made a material misrepresentation

to the Court that he needed to collect pertinent medical records

when he moved the court for an extension of the statute of

limitations[,]”          and    that     “[n]o      good   cause      existed        for    the

granting     of    the     motion       for      extension       of     the    statute       of

limitations.”       The        trial     court      entered      an      order       granting
                                  -5-
defendants’ motion to dismiss pursuant to Rules 9(j), 11, and

41.   Plaintiffs appeal.

      The issue before this Court is whether the trial court

erred by concluding that no good cause existed for the granting

of an extension of the statute of limitations and imposing the

sanction of dismissing plaintiffs’ complaint pursuant to Rules

9(j), 11, and 41 of the North Carolina Rules of Civil Procedure.

      The   trial   court’s   decision    to   impose   or   not   impose

mandatory sanctions pursuant to N.C. Gen. Stat. § 1A-1, Rule

11(a) is reviewable de novo as a legal issue.           Turner v. Duke

Univ., 325 N.C. 152, 165, 381 S.E.2d 706, 714 (1989).               This

Court determines whether the findings of fact are supported by a

sufficiency of the evidence, whether the conclusions of law are

supported by the findings, and whether the conclusions support

the trial court’s judgment.      Id.     “If the appellate court makes

these three determinations in the affirmative, it must uphold

the trial court’s decision to impose or deny the imposition of

mandatory sanctions[.]” Id.

      Rule 11 of the North Carolina Rules of Civil Procedure

requires that every filed motion be (1) well grounded in fact

after reasonable inquiry; (2) warranted by existing law or a

good faith argument for the extension, modification, or reversal
                                          -6-
of    existing    law;     and    (3)    not     interposed     for     any    improper

purpose, such as to cause unnecessary delay.                     N.C. Gen. Stat. §

1A-1, Rule 11(a) (2013).               Generally, both parties and attorneys

may   be    subject   to    sanctions      for     violations     of    the    improper

purpose prong of Rule 11.                Bryson v. Sullivan, 330 N.C. 644,

656, 412 S.E.2d 327, 333 (1992).                 “Further, both are subject to

an objective standard to determine the existence of such an

improper purpose.”          Id. (citation omitted.)              The burden is on

the movant to prove an improper purpose.                      Brown v. Hurley, 124

N.C. App. 377, 382, 477 S.E.2d 234, 238 (1996).                              “Whereas a

represented party may rely on his attorney’s advice as to the

legal sufficiency of his claims, he will be held responsible if

his evident purpose is to harass, persecute, otherwise vex his

opponents, or cause them unnecessary cost or delay.”                            Bryson,

330 N.C. at 663, 412 S.E.2d at 337 (citation omitted).

       In   Bryson,   the    defendant          specifically    alleged       that     the

plaintiffs’      complaint       was    filed    for    the   improper       purpose   of

harassment,      delay,     and    needlessly          increasing      the    costs     of

litigation.       However, the trial court denied                   the defendant’s

motion for Rule 11 sanctions.              Id. at 652-53, 412 S.E.2d at 331.

Our Supreme Court considered whether litigants who rely in good

faith upon advice of counsel concerning the legal basis for
                                     -7-
their claim could have sanctions imposed against them under the

legal sufficiency prong of Rule 11.               Id. at 660, 412 S.E.2d at

335-36.    Because     the   evidence      supported    a    finding   that    the

parties acted in good faith upon the advice of counsel, the

Court held that the parties could not have sanctions imposed

against them based on the legal sufficiency prong of Rule 11.

Id. at 662, 412 S.E.2d at 336-37.           In addition, the evidence was

insufficient   to    sustain   sanctions     under     the   improper    purpose

prong of Rule 11.      Id. at 664, 412 S.E.2d at 339.             In Taylor v.

Collins,   this     Court    held   that    the    imposition     of    Rule   11

sanctions was improper when the respondent relied in good faith

on his attorney regarding the legal sufficiency of his claims.

128 N.C. App. 46, 53, 493 S.E.2d 475, 480 (1997).

    Examples of circumstances from which an improper purpose

may be inferred include the service or filing of excessive,

successive, or repetitive papers, the filing of meritless papers

by counsel who have extensive experience in the pertinent area

of law, filing complaints with no factual basis for the purpose

of fishing for evidence of liability, and continuing to press an

obviously meritless claim after being specifically advised of

its meritlessness by a judge or magistrate.                 Mack v. Moore, 107

N.C. App. 87, 93, 418 S.E.2d 685, 689 (1992).
                                             -8-
      In the instant case, the trial court found and concluded

that plaintiffs’ motion to extend the statute of limitations was

made for an improper purpose, to cause unnecessary delay, and

was   not    well       grounded   in     fact.     Specifically,      the   Rule    11

sanctions were based solely on the trial court’s conclusion that

Hearn’s statement that he needed to collect “pertinent medical

records”    was     a    “misrepresentation         to   the   Court.”       However,

nothing in the record indicates that plaintiffs misled Hearn

regarding the facts and circumstances of their claims.                       Instead,

plaintiffs relied in good faith upon Hearn’s legal expertise and

his    prior        experience       in       medical      malpractice       actions.

Defendants, as the moving parties, had the burden of proof.

However, defendants did not present any evidence showing that

plaintiffs were at fault for the delay caused by Hearn’s request

for additional time, nor that plaintiffs’ purpose for the motion

was to “harass, persecute, otherwise vex [their] opponents, or

cause them unnecessary cost or delay.”                   Bryson, 330 N.C. at 663,

412 S.E.2d at 337 (citation omitted).

      In    the   motion,     Hearn       stated    he   needed   to    “secure     all

pertinent    medical       records      of    the   decedent,”    that   decedent’s

“medical treatment must be reviewed by a person or persons who

are reasonably expected to qualify as an expert witness(es),”
                                     -9-
and that it was “very likely that medical experts in several

distinct areas of medicine” would be needed to review decedent’s

treatment.      Hearn specifically testified at his deposition that

he included the statement in the motion to extend the statute of

limitations because

            certain experts[] demand certain medical
            records. I could not on the date I did this
            motion [sic] tell you that there may not be
            medical records that I did not have at the
            time that could be medical records that a
            nephrologist or a nursing care . . . expert
            would think pertinent and therefore needed
            to be secured.

Hearn   also    indicated    that   in   his      previous   experience       with

medical    malpractice   and    wrongful    death     cases,    prior   medical

records    were    usually     necessary,      and    this     impression      was

supported by a potential expert who indicated that decedent’s

pre-existing medical conditions would be an issue for an expert

witness.

    At his deposition, Hearn testified that when he attempted

to contact nephrology experts in September and October 2009,

prior to the expiration of the initial statute of limitations,

Hearn discovered that the experts were unavailable to review the

case until their return from a professional conference.                      Hearn

knew the time would be close to or after the expiration of the

statute    of   limitations.     Hearn     also    testified     that   he    had
                                     -10-
contacted several experts who were unwilling to become involved

in the case.     One of the experts indicated that decedent’s age

and pre-existing medical conditions caused some concern. Hearn

also stated that plaintiffs were unaware of the details of some

of decedent’s previous medical procedures.

    Even though the trial court based its decision to impose

sanctions and dismiss plaintiffs’ complaint on a finding that

Hearn had misrepresented his need for additional medical records

and filed the motion to extend the statute of limitations for

the improper purpose of undue delay, those findings are not

supported by the evidence in the record.           While hindsight shows

that Hearn did possess the 2007 treatment records at the time he

filed the motion, and did not secure any additional records

during   the   extension   period,    “in   determining   compliance   with

Rule 11, courts should avoid hindsight and resolve all doubts in

favor of the signer.”       Coventry Woods Neighborhood Ass’n, Inc.

v. City of Charlotte, 213 N.C. App. 236, 243, 713 S.E.2d 162,

167 (2011) (citation omitted).

    Defendants, as the moving parties, had the burden of proof.

However, defendants did not present any evidence showing that

plaintiffs were at fault for the delay caused by Hearn’s request

for additional time, nor that plaintiffs’ purpose for the motion
                                         -11-
was to “harass, persecute, otherwise vex [their] opponents, or

cause them unnecessary cost or delay.”              Bryson, 330 N.C. at 663,

412   S.E.2d     at   337    (citation     omitted).          The    trial    court’s

findings    of    fact   are     not   supported   by    a    sufficiency      of   the

evidence in the record, and the record evidence in the instant

case indicates that Hearn’s motion to extend the statute of

limitations was imposed for a proper purpose and not undertaken

in bad faith.         Therefore, the trial court’s conclusions of law

are   not   supported       by   the    findings   and       do   not     support   the

judgment.        Turner, 325 N.C. at 165, 381 S.E.2d at 714.                        The

trial court improperly imposed sanctions in setting aside the

extension      of     the    statute     of     limitations         and    dismissing

plaintiffs’ complaint.           We reverse.

      Reversed.

      Judges BRYANT and GEER concur.

      Report per Rule 30(e).
