Blue v. Bhiro

853 S.E.2d 258

Charles BLUE, Plaintiff,

v.Thakurdeo Michael BHIRO, PA, Dixie Lee Bhiro, PA, and Laurel Hill Medical Clinic, P.C., Defendants.

No. COA20-159

Court of Appeals of North Carolina.

Filed: December 15, 2020

Dawson & Albritton, P.A., Greenville, by Harry H. Albritton, Jr. and Darren M. Dawson, for plaintiff-appellant.

Batten Lee, PLLC, by Gloria T. Becker, for defendants-appellees.

MURPHY, Judge.

When a trial court hears matters beyond the facts in a complaint during a motion to dismiss under Rule 12(b)(6), the motion is converted into a motion for summary judgment under Rule 56. If such a conversion occurs, the parties must be given a reasonable opportunity to present relevant evidence on the motion for summary judgment. The failure to provide a reasonable opportunity to present this evidence requires remand for such an opportunity. Here, the trial court converted the motion to dismiss into a motion for summary judgment without providing the parties a reasonable opportunity to present evidence. We reverse the grant of the purported motion to dismiss and remand for an opportunity for the parties to conduct discovery and present evidence prior to the determination of the motion for summary judgment.

BACKGROUND

Charles Blue ("Blue") filed a Complaint alleging medical negligence on the part of Thakurdeo Bhiro, Dixie Bhiro, and Laurel Hill Medical Clinic (collectively "Defendants"). The Complaint alleged the following facts: Defendants were Blue's primary medical provider for around 20 years and provided him with generalized care, including preventative medicine. In January 2012, Mr. Bhiro ordered a prostate specific antigen ("PSA") blood test for Blue, which helps to determine the likelihood of someone having prostate cancer. Blue's PSA test result indicated he had 87.9 nanograms per milliliter of PSA enzymes in his blood. Although "[a] PSA of 4 nanograms per milliliter is considered abnormally high for most men and may indicate the need for further evaluation with a prostate biopsy[,]" Defendants did not provide any follow-up care or referrals despite receiving a copy of the test results. On 22 March 2018, Blue had another test indicating his PSA level was 1,763 nanograms per milliliter and soon thereafter was diagnosed with metastatic prostate cancer.

Blue sued Mr. Bhiro and Mrs. Bhiro for negligence in failing to follow up or refer Blue to a specialist after receiving his 2012 PSA test results, alleging as a result of their negligence Blue developed metastasized cancer, and experienced shortened life expectancy, pain, emotional distress, and loss of enjoyment of life. His claims against Laurel Hill Medical Clinic are based on vicarious liability.

Defendants filed a Rule 12(b)(6) motion to dismiss in their Answer on the basis of the statute of limitations. They contended the alleged negligence occurred in January 2012, meaning the three-year statute of limitations had expired prior to Blue bringing the suit. Their Answer also alleged contributory negligence. In response to the allegation of contributory negligence, Blue argued, in his Reply, Defendants had the last clear chance to avoid injuring Blue due to their superior knowledge and understanding of the first PSA test, and their continued medical treatment of Blue "for several years after the [2012 PSA test] ...."

At the hearing for the motion to dismiss, the parties submitted memoranda of law and orally argued their positions. Blue's memorandum of law and oral arguments included facts not included in his Complaint. After Blue discussed some of these facts, Defendants stated "much of which [Blue] has argued is not complained [of] in the [C]omplaint. And, Your Honor -- Or the [R]eply. And so I would just again remind that this is a motion to dismiss. And we're looking at the four corners of the [C]omplaint." Ultimately, "having heard arguments of parties and counsel for the parties and having reviewed the court file, pleadings, and memorandums of law submitted by both parties," the trial court granted Defendants’ motion to dismiss.

ANALYSIS

Blue contends the trial court erred in granting Defendants’ motion to dismiss pursuant to Rule 12(b)(6) based on the statute of limitations. Blue also contends the motion to dismiss was converted to a motion for summary judgment under Rule 56 due to the consideration of matters outside of the pleadings; whereas, Defendants contend the motion was not converted into a summary judgment motion, and at most was converted to a motion for judgment on the pleadings under Rule 12(c). We hold the motion to dismiss was converted to a motion for summary judgment, requiring remand for a reasonable opportunity to gather and present evidence, and therefore do not address the underlying statute of limitations issue.

A. Motion to Dismiss

As an initial matter, we must determine whether the trial court reviewed the Complaint under Rule 12(b)(6), the pleadings under Rule 12(c), or the pleadings and facts outside the pleadings under Rule 56. Although the order granting Defendants’ motion to dismiss purported to act under Rule 12(b)(6), it was converted to a motion for summary judgment under Rule 56 by the consideration of matters outside the pleadings. Rule 12(b)(6) and Rule 12(c) read:

If, on a motion [for judgment on the pleading under Rule 12(b)(6) or pleadings under Rule 12(c)], matters outside the [pleading or pleadings] are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

N.C.G.S. §§ 1A-1, Rule 12(b) & (c) (2019).

The order granting Defendants’ motion to dismiss states

[t]he [c]ourt, having heard arguments of parties and counsel for the parties and having reviewed the court file, pleadings , and memorandums of law submitted by both parties, and [sic] finds that [Blue] failed to state a claim upon which relief can be granted and [ ] Defendants’ [m]otion to [d]ismiss should be allowed pursuant to N.C. R. Civ. P. 12(b)(6).

(Emphasis added). According to the terms of the order, the trial court at least considered the pleadings, which would convert the Rule 12(b)(6) motion to a Rule 12(c) motion on the pleadings.

However, the trial court also considered the memoranda of law submitted by the parties and the arguments presented by the parties, both of which contained facts not alleged in the Complaint. Blue's memorandum of law opposing the motion to dismiss discussed the following facts not contained in the Complaint or Reply : "[Blue] complained of urological issues following the elevated [ ] PSA test"; "[Blue] sought treatment from Defendant[s] in November, 1996 through to January, 2019 for his primary medical concerns which included urological issues[ ]"; "[Blue] denies any such knowledge [of elevated PSA levels]"; "The evidence will show that [Blue's] last visit with Defendants prior to second PSA test was on [5 March 2018]." Similarly, in the arguments before the trial court on 12 November 2019, Blue alleged the following facts:

Every time Mr. Blue saw them after that -- We allege he saw them up until January [2019]. And actually he saw them 41 times from ‘12 to [2019].

...

Not until [2018] was another test ordered by a urologist at that time[.]

...

There was an allegation my client knew about the PSA. He had no idea. He didn't know about it until we told him about it. And we found it in the medical records. We gave it to the urologist to help them with the cancer treatment.

No one knew about this PSA. And I didn't allege that in the [C]omplaint. The allegation was he got it on that day. And there was a conversation about prostate cancer on that day. That was it.

Following this information, Defendants stated, "much of which [Blue] has argued is not complained [of] in the [C]omplaint. And, Your Honor -- Or the [R]eply. And so I would just again remind that this is a motion to dismiss. And we're looking at the four corners of the [C]omplaint." Despite this, the trial court never excluded any facts or stated it would not consider matters outside the scope of the pleadings. Nor did the trial court's order granting the motion to dismiss exclude any matters.

"[T]he trial court was not required to convert the Rule 12 motion into one for summary judgment under Rule 56[ ]" if it is clear the trial court did not consider matters outside of the pleadings. Privette v. Univ. of N.C. at Chapel Hill , 96 N.C. App. 124, 132, 385 S.E.2d 185, 189 (1989) ; Estate of Belk ex rel. Belk v. Boise Cascade Wood Prods., L.L.C. , 263 N.C. App. 597, 599, 824 S.E.2d 180, 183 (2019). Additionally, memoranda of law and arguments of counsel are generally "not considered matters outside the pleading[s] for purposes of converting a Rule 12 motion into a Rule 56 motion." Privette , 96 N.C. App. at 132, 385 S.E.2d at 189 (citations and internal marks omitted). Despite this, the consideration of memoranda of law and arguments of counsel can convert a Rule 12 motion into a Rule 56 motion if the memoranda or arguments "contain[ ] any factual matters not contained in the pleadings." Privette , 96 N.C. App. at 132, 385 S.E.2d at 189 ; Brantley v. Watson , 113 N.C. App. 234, 237, 438 S.E.2d 211, 212-213 (1994) ("Because the trial judge heard evidence in the form of oral arguments and undisputed facts from counsel, this Rule 12(b)(6) was converted into a Rule 56 motion for summary judgment."); Erie Ins. Exch. v. Builders Mut. Ins. Co. , 227 N.C. App. 238, 243-44, 742 S.E.2d 803, 809 (2013) ("Having reviewed the briefs submitted by the parties at the hearing below, we agree with [the] plaintiffs that the briefs are simply memoranda of points and authorities and contain no factual allegations outside of those presented in the complaint. Thus, the trial court's consideration of the parties’ briefs in the present case did not convert [the] plaintiffs’ Rule 12(c) motion into a Rule 56 ...