Blue v. Bhiro

IN THE SUPREME COURT OF NORTH CAROLINA

2022-NCSC-45

No. 26A21

Filed 6 May 2022

CHARLES BLUE

v.
THAKURDEO MICHAEL BHIRO, P.A., DIXIE LEE BHIRO, P.A., and LAUREL
HILL MEDICAL CLINIC, P.C.

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of

the Court of Appeals, 275 N.C. App. 1, 853 S.E.2d 258 (2020), reversing and

remanding an order granting defendants’ motion to dismiss plaintiff’s complaint

entered on 10 December 2019 by Judge Gale M. Adams in Superior Court, Scotland

County. Heard in the Supreme Court on 23 March 2022.

Ward and Smith, P.A., by Christopher S. Edwards and Alex C. Dale, for
plaintiff-appellee.

Batten Lee, PLLC, by Gary Adam Moyers and Gloria T. Becker, for
defendant-appellants.

NEWBY, Chief Justice.

¶1 In this case we determine whether the trial court was required to convert a

motion to dismiss under N.C. R. Civ. P. 12(b)(6) to a motion for summary judgment

under Rule 56. A motion to dismiss under Rule 12(b)(6) asserts that the complaint,

even when the allegations are taken as true, fails to state a claim upon which relief

can be granted. If, however, a trial court considers matters outside the pleading, then
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Opinion of the Court

it must convert the motion to a motion for summary judgment. Here the trial court

did not consider matters outside the pleading and thus was not required to convert

the motion. Therefore, we reverse the decision of the Court of Appeals and remand to

the Court of Appeals for consideration of plaintiff’s remaining arguments.

¶2 Because this case arises from a motion to dismiss under Rule 12(b)(6), we take

the following allegations from the complaint as true. Defendants Thakurdeo Michael

Bhiro and Dixie Lee Bhiro were physician assistants licensed to practice in North

Carolina and were employed by defendant Laurel Hill Medical Clinic, P.C. (the

Clinic). The Clinic “is a family practice located in Laurel Hill, North Carolina . . .

comprised of family medicine practitioners who provide comprehensive care to

patients of all ages.”

¶3 The Bhiros were plaintiff’s primary care providers. The Bhiros treated plaintiff

“for a variety [of] ailments” and provided “routine physical examinations,

medic[ation] management, and preventative medicine.” On 24 January 2012, Mr.

Bhiro ordered a prostate specific antigen (PSA) test to screen plaintiff for prostate

cancer. Generally, a PSA test result of 4 nanograms per milliliter of blood “is

considered abnormally high for most men and may indicate the need for further

evaluation with a prostate biopsy.” The results from this test, which were provided to

the Bhiros, indicated that plaintiff’s PSA level was 87.9 nanograms per milliliter,

significantly higher than the normal range. Though the Bhiros continued to treat
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Opinion of the Court

plaintiff for other issues, they never “provided any follow up care or referrals as a

result of the elevated PSA test result.” The results from another PSA test performed

six years later on 22 March 2018 indicated that plaintiff’s PSA level was 1,763

nanograms per milliliter. Plaintiff was diagnosed with metastatic prostate cancer

soon thereafter. The Bhiros “continued as [p]laintiff’s primary medical care providers

until January, 2019.” Plaintiff filed his complaint on 17 June 2019, contending that

the Bhiros were negligent by failing to provide follow-up care after learning the

results of the 24 January 2012 PSA test and failing to diagnose plaintiff with prostate

cancer. Moreover, plaintiff alleged that the Clinic was vicariously liable for the

Bhiros’ negligence.

¶4 All defendants jointly filed a motion to dismiss plaintiff’s complaint under Rule

12(b)(6), arguing that plaintiff’s action was barred by the three-year statute of

limitations and the four-year statute of repose in N.C.G.S. § 1-15(c). In response,

plaintiff contended that his complaint was timely filed in 2019 despite his delay

because the Bhiros continuously treated him since the allegedly negligent act

occurred in 2012. Both defendants and plaintiff submitted memoranda of law in

support of their positions. At the hearing on defendants’ motion on 12 November

2019, defendants’ counsel argued that “when a motion to dismiss is brought, we must

look at the four corners of the complaint.” Plaintiff’s counsel agreed, focusing on the

allegations in the complaint throughout his argument. At the end of the hearing,
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plaintiff’s counsel made an oral motion for leave to amend the complaint, stating that

“if Your Honor does not believe I included enough factual information in the

complaint, we’d request leave to amend the complaint.” On 10 December 2019, the

trial court entered an order granting defendants’ Rule 12(b)(6) motion and implicitly

denying plaintiff’s motion for leave to amend the complaint, stating in part that:

The [c]ourt, having heard arguments of parties and counsel
for the parties and having reviewed the court file,
pleading[ ], and memorand[a] of law submitted by both
parties, . . . finds that Plaintiff failed to state a claim upon
which relief can be granted and the Defendants’ Motion to
Dismiss should be allowed pursuant to N.C. R. Civ. P.
12(b)(6).

Thus, the trial court dismissed plaintiff’s claims with prejudice. Plaintiff appealed.

¶5 At the Court of Appeals, plaintiff argued that the trial court (1) converted the

Rule 12(b)(6) motion to a Rule 56 motion and thus erred by not giving the parties

sufficient opportunity for discovery and to present evidence; (2) erred by granting the

Rule 12(b)(6) motion, assuming it was not converted; and (3) erred by denying his oral

motion for leave to amend the complaint. Blue v. Bhiro, 275 N.C. App. 1, 3, 6–7, 853

S.E.2d 258, 260, 262 (2020). A divided panel of the Court of Appeals agreed with

plaintiff that the trial court converted the motion to dismiss to one for summary

judgment and should have provided additional time for discovery and the

presentation of evidence. Id. at 2, 853 S.E.2d at 259–60.
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¶6 The Court of Appeals began its analysis by “determin[ing] whether the trial

court reviewed the [c]omplaint under Rule 12(b)(6) . . . or the pleadings and facts

outside the pleadings under Rule 56.” Id. at 3, 853 S.E.2d at 260–61 (emphasis

omitted). To determine whether the motion was converted, the Court of Appeals

looked to whether the trial court “consider[ed] . . . matters outside the pleading[ ].”

Id., 853 S.E.2d at 261. The Court of Appeals acknowledged that “memoranda of law

and arguments of counsel are generally ‘not considered matters outside the

pleading[ ].’ ” Id. at 5, 853 S.E.2d at 261 (quoting Privette v. Univ. of N.C. at Chapel

Hill, 96 N.C. App. 124, 132, 385 S.E.2d 185, 189 (1989)). The Court of Appeals,

however, also noted an apparent exception, that “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

pleading[ ].’ ” Id., 853 S.E.2d at 262 (first alteration in original) (quoting Privette, 96

N.C. App. at 132, 385 S.E.2d at 189). The Court of Appeals reasoned that the terms

of the trial court’s order expressly indicated that the trial court considered the parties’

memoranda and arguments of counsel, “both of which contained facts not alleged in

the [c]omplaint.” Id. at 4, 853 S.E.2d at 261 (emphasis omitted). According to the

Court of Appeals, the trial court did not expressly exclude those facts which were not

alleged in the complaint. Id. at 6, 853 S.E.2d at 262. Thus, the Court of Appeals
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concluded that the trial court “considered matters beyond the pleading[ ]” and

converted the Rule 12(b)(6) motion to a Rule 56 motion. Id.

¶7 The Court of Appeals then noted that when a Rule 12(b)(6) motion is converted

to a Rule 56 motion, Rule 12(b) provides that “all parties shall be given reasonable

opportunity to present all material made pertinent to such a motion by Rule 56.” Id.

(quoting N.C.G.S. § 1A-1, Rule 12(b), (c) (2019)). Because the trial court did not give

the parties such an opportunity, the Court of Appeals concluded that “it would be

improper for [this court] to make a determination of the statute of limitations issue

on the current evidence.” Id. For the same reason, the Court of Appeals declined to

discuss plaintiff’s argument that the trial court erred by denying his motion for leave

to amend the complaint. Id. at 6–7, 853 S.E.2d at 262. Thus, the Court of Appeals

reversed the trial court’s order and remanded the case to the trial court to give the

parties “a reasonable opportunity to gather and present evidence on a motion for

summary judgment.” Id. at 7, 853 S.E.2d at 263.

¶8 The dissenting opinion at the Court of Appeals, however, would have affirmed

the trial court’s order. Id. (Hampson, J., dissenting). The dissent argued that the trial

court did not convert defendants’ motion to dismiss. Id. at 7–8, 853 S.E.2d at 263. The

dissent noted that although the parties’ memoranda and arguments of counsel may

have referenced “facts not alleged in the [c]omplaint, these were merely arguments

of counsel.” Id. at 8, 853 S.E.2d at 263. The dissent noted that “[n]o evidentiary
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materials—discovery, exhibits, affidavits, or the like—were offered or submitted to

the trial court.” Id. Thus, the dissent would have held that the trial court did not

consider matters outside the pleading and did not convert the motion. Id.

¶9 Accordingly, the dissent also addressed plaintiff’s remaining arguments. Id. at

8–11, 853 S.E.2d at 263–65. The dissent argued that the claim was barred by the

statute of limitations or the statute of repose in N.C.G.S. § 1-15(c) and thus the trial

court properly granted the motion to dismiss. Id. at 8–10, 853 S.E.2d at 263–65.

Further, the dissent contended that the trial court did not err by denying plaintiff’s

oral motion for leave to amend the complaint. Id. at 10–11, 853 S.E.2d at 265.

Therefore, the dissent would have affirmed the trial court’s order. Id. at 11, 853

S.E.2d at 265. Defendants appealed to this Court based upon the dissenting opinion

at the Court of Appeals.

¶ 10 Defendants argue the Court of Appeals erred by holding that the trial court

considered matters outside the pleading and thus converted the motion to dismiss to

a motion for summary judgment. We agree.

¶ 11 Whether a Rule 12(b)(6) motion has been converted to a Rule 56 motion is a

question of law subject to de novo review. See Eastway Wrecker Serv., Inc. v. City of

Charlotte, 165 N.C. App. 639, 642, 599 S.E.2d 410, 412 (2004), aff’d per curiam, 360

N.C. 167, 622 S.E.2d 495 (2005); see also Green v. Freeman, 367 N.C. 136, 141, 749

S.E.2d 262, 267 (2013). A Rule 12(b)(6) motion focuses on the legal sufficiency of the
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allegations in the complaint. See Bridges v. Parrish, 366 N.C. 539, 541, 742 S.E.2d

794, 796 (2013) (“We consider ‘whether the allegations of the complaint, if treated as

true, are sufficient to state a claim upon which relief can be granted under some legal

theory.’ ” (quoting Coley v. State, 360 N.C. 493, 494, 631 S.E.2d 121, 123 (2006))). As

such, when considering a Rule 12(b)(6) motion, the trial court is limited to reviewing

the allegations made in the complaint. See Kessing v. Nat’l Mortg. Corp., 278 N.C.

523, 533, 180 S.E.2d 823, 829 (1971) (“[U]nder Rule[ ] 12(b)(6) . . . the motion is

decided on the pleading[ ] alone . . . .”). Rule 12(b) addresses a trial court’s

consideration of matters not included in the complaint, providing that

[i]f, on a motion asserting the defense numbered (6), to
dismiss for failure of the pleading to state a claim upon
which relief can be granted, matters outside the pleading
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.

N.C.G.S. § 1A-1, Rule 12(b) (2021). Thus, “[a] Rule 12(b)(6) motion to dismiss . . . is

indeed converted to a Rule 56 motion for summary judgment when matters outside

the pleading[ ] are presented to and not excluded by the court.” Stanback v. Stanback,

297 N.C. 181, 205, 254 S.E.2d 611, 627 (1979) (citing Kessing, 278 N.C. at 533, 180

S.E.2d at 829).

¶ 12 The phrase “matters outside the pleading” refers to evidentiary materials used

to establish facts. See Carlisle v. Keith, 169 N.C. App. 674, 689, 614 S.E.2d 542, 552

(2005) (“While extraneous matter usually consists of affidavits or discovery
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documents, it may also consist of live testimony, stipulated facts, [or] documentary

evidence in a court’s file.” (alteration in original) (emphasis omitted) (quoting G. Gray

Wilson, 1 North Carolina Civil Procedure § 12-3, at 210–11 (2d ed. 1995))). Notably,

“it is axiomatic that the arguments of counsel are not evidence.” State v. Collins, 345

N.C. 170, 173, 478 S.E.2d 191, 193 (1996). Accordingly, “[m]emoranda of points and

authorities as well as briefs and oral arguments . . . are not considered matters

outside the pleading.” Privette, 96 N.C. App. at 132, 385 S.E.2d at 189 (second

alteration in original) (quoting 5 Wright & Miller, Federal Practice and Procedure

§ 1366, at 682 (1969)). Finally, it is a “well[-]established principle that there is a

presumption in favor of the regularity and validity of the proceedings in the lower

court.” Phelps v. McCotter, 252 N.C. 66, 67, 112 S.E.2d 736, 737 (1960) (citing Durham

v. Laird, 198 N.C. 695, 153 S.E. 261 (1930)).

¶ 13 Here the trial court’s order stated that it considered the “arguments of parties

and counsel for the parties and . . . reviewed the court file, pleading[ ], and

memorand[a] of law submitted by both parties.” Nothing in the trial court’s order

indicates any additional documents were presented apart from the memoranda

submitted by the parties. Defendants’ memorandum included the pleadings, a

statute, and case law as exhibits, but it did not include any evidentiary materials.

Plaintiff did not include any exhibits with his memorandum. Though plaintiff’s

counsel made several factual assertions in his memorandum and during the hearing,
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these statements by plaintiff’s counsel were not evidence and thus are not matters

outside the pleading. Accordingly, the trial court did not consider any matters outside

the pleading.

¶ 14 Because the trial court’s review was limited to the pleading, it did not convert

the Rule 12(b)(6) motion to a Rule 56 motion. Therefore, the Court of Appeals erred

by reversing the trial court’s order. Further, the Court of Appeals majority did not

determine whether the trial court properly denied plaintiff’s motion for leave to

amend his complaint nor whether the trial court properly granted defendants’ motion

to dismiss. Accordingly, we remand this case to the Court of Appeals to address these

issues in the first instance. See Wilkie v. City of Boiling Spring Lakes, 370 N.C. 540,

540, 809 S.E.2d 853, 854 (2018) (reversing a decision of the Court of Appeals and

remanding the case for the Court of Appeals to consider the defendant’s remaining

arguments in the first instance).

REVERSED AND REMANDED.
 Justice EARLS concurring in part and dissenting in part.

¶ 15 I agree with the majority that the Court of Appeals erred in concluding that

defendants’ motion to dismiss had been or needed to be converted into a Rule 56

motion for summary judgment. I write separately to express my disagreement with

the majority’s decision to remand this case to the Court of Appeals. There are two

remaining issues in this case—whether the trial court properly granted defendants’

motion to dismiss and whether the trial court should have granted Mr. Blue leave to

amend his complaint. Both are pure questions of law that have been fully briefed

before this Court. There are no disputed issues of fact that need to be resolved to

address these issues. There are meaningful prudential reasons why we should

endeavor to resolve this dispute quickly—according to his complaint, Mr. Blue was

diagnosed with metastatic prostate cancer in 2018, allegedly due to defendants’

negligence. Thus, I believe resolving the outstanding legal questions rather than

remanding for further proceedings would be the disposition most consistent with our

responsibility to foster the fair, evenhanded, efficient, open, and meaningful

administration of justice.

¶ 16 It is indisputable that this Court possesses the authority to resolve this case

now under these circumstances. Indeed, it is routine for this Court to address

dispositive issues not resolved by the Court of Appeals when doing so requires making

purely legal determinations. See, e.g., Morris Commc’ns Corp. v. City of Bessemer City
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Earls, J., concurring in part and dissenting in part

Zoning Bd. of Adjustment, 365 N.C. 152, 158 (2011) (“Remand is not automatic when

‘an appellate court’s obligation to review for errors of law can be accomplished by

addressing the dispositive issue(s).’ ” (quoting N.C. Dep’t of Env’t & Nat. Res. v.

Carroll, 358 N.C. 649, 664 (2004))); see also Meza v. Div. of Soc. Servs., 364 N.C. 61,

73 (2010) (“We now proceed to the substantive issues in the interests of judicial

economy and fairness to the parties.”); N.C. Farm Bureau Mut. Ins. Co. v. Cully’s

Motorcross Park, Inc., 366 N.C. 505, 514 (2013) (“[W]hen the new analysis relies upon

conclusions of law rather than findings of fact, and when the findings of fact made by

the trial court are unchallenged, this Court may elect to conduct the analysis rather

than to remand the case.”).

¶ 17 As we explained in Carroll, there are multiple prudential factors that counsel

in favor of fully resolving an appeal when it comes before this Court:

In the present case, the trial court’s erroneous
articulation and application of the de novo standard of
review in no way interferes with our ability to assess how
that standard should have been applied to the particular
facts of this case. Moreover, the status of [the plaintiff’s]
employment and salary has remained unsettled during the
past six years of ongoing litigation. Thus, in the interests
of judicial economy and fairness to the parties, we proceed
to consider the substantive issues on appeal.

358 N.C. at 665. While it is also certainly within this Court’s discretion to decide to

remand the case for the Court of Appeals to resolve remaining legal issues in these

circumstances, we should explain why we are choosing to remand this case rather
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Earls, J., concurring in part and dissenting in part

than reach outstanding legal issues by reference to neutral principles, and we should

consistently apply those principles in considering whether a remand is necessary in

this case and in future cases. In addition to the prudential factors noted in Carroll,

such neutral and consistent principles might include the length of time the case has

been pending to date, the extent to which any party is prejudiced by further delay,

whether deciding the issue will result in a final disposition of the case, whether the

parties have had the opportunity to fully brief the remaining issues, and whether the

issue requires the routine application of well-established law such that remand would

likely result in a quick resolution unlikely to engender further appeal, as opposed to

an issue of first impression for this Court such that immediate guidance from this

Court will be useful and more expeditious than multiple appeals.

¶ 18 In this case, although the majority in the Court of Appeals did not reach the

two outstanding questions presented in Mr. Blue’s appeal, the dissent did. And as the

dissent and the parties’ briefs make clear, the legal question the Court of Appeals will

need to reach on remand is not one this Court has previously addressed. In particular,

answering the question of whether Mr. Blue’s complaint is time-barred will involve

interpreting how the continuing course of treatment exception to the three-year

statute of limitations for personal injury claims applies to care provided by a primary-

care physician. This Court recognized the continuing course of treatment exception

for the first time in Horton v. Carolina Medicorp, Inc., 344 N.C. 133 (1996). We have
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Earls, J., concurring in part and dissenting in part

not revisited the doctrine since. There are numerous Court of Appeals opinions

interpreting the doctrine in ways that are arguably internally contradictory. Compare

Whitaker v. Akers, 137 N.C. App. 274, 277–78 (2000) (concluding that the doctrine

applies when a physician continues a particular course of treatment over a period of

time, so long as the doctor continues to fail to diagnose and to treat the condition),

with Glover v. Charlotte-Mecklenburg Hosp. Auth., 261 N.C. App. 345, 355–56 (2018)

(concluding that the plaintiff need not show the treatment rendered subsequent to

the original negligent act was also negligent), writ denied, review denied, 372 N.C.

299 (2019). Accordingly, it appears that the chances of this case coming back to this

Court after the Court of Appeals answers the precise legal question presently before

us, all prior to discovery and a trial, are not trivial.

¶ 19 Nor is the cost to the parties trivial, both financially and otherwise. Mr. Blue

filed his complaint almost three years ago. The remaining questions before us have

already been briefed and argued at least twice. If Mr. Blue prevails in the appellate

process and his claim is not time-barred, his case will be remanded to the trial court

for further proceedings. As a litigant with a serious life-threatening illness, justice

delayed may be justice denied in this case. Here, an unnecessarily prolonged

appellate process is inconsistent with the prompt and efficient administration of

justice, an aim to which we all and always aspire. By contrast, these factors and

considerations were not present in the case relied upon by the majority, Wilkie v. City
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Earls, J., concurring in part and dissenting in part

of Boiling Spring Lakes, 370 N.C. 540 (2018). In Wilkie, the issues not decided by this

Court were not briefed in the first place because this Court denied discretionary

review specifically as to those issues. See Special Order, Wilkie v. City of Boiling

Spring Lakes, No. 44PA17 (N.C. May 3, 2017). Nor did those remaining issues

implicate any novel or particularly complex legal principles: the ultimate question

was whether property owners would be compensated by the government for flood

damage to their home. Wilkie, 370 N.C. at 540. While Wilkie confirms the

indisputable notion that this Court possesses the authority to remand cases to the

Court of Appeals to decide purely legal issues in the first instance, Wilkie does

nothing to demonstrate why doing so is necessary or appropriate in this case.

¶ 20 Under the circumstances of this case, jurisprudential and administrative

reasons justify proceeding to resolve the two remaining outstanding issues, which

were both addressed by the dissent below, briefed by the parties, and are thus

properly before us. Therefore, I respectfully concur in part and dissent in part.