NO. COA10-535 TENTH DISTRICT NORTH CAROLINA COURT OF APPEALS ******************************* IN THE MATTER OF: ) OAK HEALTH CARE INVESTORS OF ) NORTH CAROLINA, INC., A NORTH ) CAROLINA CORPORATION d/b/a ) THE LAURELS OF FOREST GLENN, ) LAUREL HEALTH CARE COMPANY, ) SUPERIOR COURT DIVISION Plaintiffs, ) File No.05 CVS 3411 v. ) ) KENNETH C. JOHNSON. ) Defendant, ) ______________________________) AND KENNETH C. JOHNSON. ) Plaintiff, ) v. ) ) OAK HEALTH CARE INVESTORS OF ) NORTH CAROLINA, INC., A NORTH ) SUPERIOR COURT DIVISION CAROLINA CORPORATION d/b/a ) File No.08 CVS 3715 THE LAURELS OF FOREST GLENN, ) LAUREL HEALTH CARE COMPANY, ) SANDRA LYNN WOOD, AND ALAN ) FINLAYSON, ) Defendants, ) ______________________________) AND
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Appellant Brief Johnson v Laurels and Oak Health Care
Johnson is suing Oak Health Care Investors, Laurel Health Care Company, Yates, McLamb & Weyher, LLP, Alan Finlayson, Sandra Wood, Barbara Weyher, Dan McLamb, Sean Partrick, and Christopher West. It is alleged that the Defendants conspired to violate civil rights and cover up a possible criminally negligent homicide and retailiate against the Plaintiff for reporting the crime. This case deals with Wrongful Termination Against Public Policy. - The Public Policy Exception To the "At Will" Doctrine - Malicious Prosecution- First Amendment-Criminal and Civil Contempt- Klu Kux Klan Act
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NO. COA10-535 TENTH DISTRICT
NORTH CAROLINA COURT OF APPEALS
*******************************
IN THE MATTER OF: )
OAK HEALTH CARE INVESTORS OF ) NORTH CAROLINA, INC., A NORTH ) CAROLINA CORPORATION d/b/a ) THE LAURELS OF FOREST GLENN, ) LAUREL HEALTH CARE COMPANY, ) SUPERIOR COURT DIVISION Plaintiffs, ) File No.05 CVS 3411
v. )
)
KENNETH C. JOHNSON. ) Defendant, ) ______________________________)
AND
KENNETH C. JOHNSON. ) Plaintiff, )
v. )
)
OAK HEALTH CARE INVESTORS OF ) NORTH CAROLINA, INC., A NORTH ) SUPERIOR COURT DIVISION CAROLINA CORPORATION d/b/a ) File No.08 CVS 3715 THE LAURELS OF FOREST GLENN, ) LAUREL HEALTH CARE COMPANY, ) SANDRA LYNN WOOD, AND ALAN ) FINLAYSON, )
Defendants, ) ______________________________)
AND
- ii -
KENNETH C. JOHNSON, ) Plaintiff, )
v. )
)
OAK HEALTH CARE INVESTORS OF ) NORTH CAROLINA, INC., A NORTH ) CAROLINA CORPORATION d/b/a ) THE LAURELS OF FOREST GLENN, ) LAUREL HEALTH CARE COMPANY, ) YATES, MCLAMB & WEYHER, LLP, ) SUPERIOR COURT DIVISION
BARBARA B. WEYHER, ESQ.,IN HER) File No.09 CVS 6918
PARTNERSHIP, PROFESSIONAL AND )
INDIVIDUAL CAPACITIES, DAN J. ) MCLAMB, IN HIS PARTNERSHIP, )
PROFESSIONAL, AND INDIVIDUAL )
CAPACITIES, SEAN T. PARTRICK, )
ESQ, IN HIS, PARTNERSHIP, )
PROFESSIONAL, AND INDIVIDUAL, )
CAPACITIES,CHRISTOPHER M.WEST,)
IN HIS PARTNERSHIP,PROFESIONAL)
AND INDIVIDUAL CAPACITIES, )
Defendants, ) ______________________________)
******************************
PLAINTIFF-APPELLANT’S BRIEF
******************************
- iii -
INDEX
TABLE OF CASES AND AUTHORITIES iv
ISSUES PRESENTED 2
STATEMENT OF THE CASE 3
STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW 5
STATEMENT OF THE FACTS 5
ARGUMENT: STANDARD OF REVIEW
I. THE TRIAL COURT ERRED IN DISMISSING THE
CORPORATE DEFENDANTS FOR INSUFFICIENCY OF
SERVICE OF PROCESS AND LACK OF PERSONAL
JURISDICTION AFTER THE DEFENDANTS MADE
MULTIPLE GENERAL APPEARANCES
12
ARGUMENT: STANDARD OF REVIEW
II. THE TRIAL COURT ERRED IN DISMISSING THE
CORPORATE DEFENDANTS FOR INSUFFICIENCY OF
SERVICE OF PROCESS AND LACK OF PERSONAL
JURISDICTION ALTHOUGH THE DEFENDANTS FAILED TO
PROPERLY PLEAD THE DEFENSE.
19
ARGUMENT: STANDARD OF REVIEW
III. THE TRIAL COURT ERRED IN DISMISSING THE
REMAINIG DEFENDANTS FROM THE ACTION BASED UPON
THE DISMISSAL OF THE CORPORATE DEFENDANTS.
21
ARGUMENT: STANDARD OF REVIEW
IV. THE TRIAL COURT ERRED IN DISMISSING THE
ORIGINAL COMPLAINT, WHICH HAD BECOME A NULLITY
AFTER THE ISSUANCE OF THE AMENDED COMPLAINT
24
ARGUMENT: STANDARD OF REVIEW
V. THE TRIAL COURT ERRED IN STRIKING THE REPEAT
SUMMONSES.
25
- iv -
ARGUMENT: STANDARD OF REVIEW
VI. THE TRIAL COURT ERRED IN AWARDING ATTORNEY
FEES TO THE PREVAILING PARTY.
31
ARGUMENT: STANDARD OF REVIEW
VII. THE TRIAL COURT ERRED WHEN IT FOUND THE
DEFENDANT [05 CVS 3411] IN CONTEMPT FOR
PUBLISHING PUBLIC RECORDS AND PURPORTEDLY
VIOLATING A GAG ORDER.
34
CONCLUSION 41
CERTIFICATE OF COMPLIANCE 42
CERTIFICATE OF FILING 43
CERTIFICATE OF SERVICE 44
TABLE OF AUTHORITIES
CASES:
Allred v. Tucci, 85 N.C. App. 138 (1987).
at 540, 189 S.E.2d at 162.
32
Baby Boy Scearce, 81 N.C. App. 662, 663- 64,
345 S.E.2d 411, 413 (1986)
15
Bailey v. State, 348 N.C. 130, 159, 500 S.E.2d
54, 71 (1998
15
Baxter v. Jones, 283 N.C. 327, 330, 196 S.E.2d
193, 196 (1973)
16
Blanton v. Blanton, 40 N.C. App. 221, 225, 252
S.E.2d 530, 533 (1979)
16
Cruz v. Beto, 405 U.S. 319, 322, 92 S. Ct.
1079, 1081, 31 L. Ed. 2d 263 (1972)
15
Duke Univ. v. St. Paul Mercury Ins. Co., 95
N.C. App. 663, 673, 384 S.E.2d 36, 42 (1989)
15
- v -
First Citizens Bank & Trust Co. v. Nw. Ins.
Co., 44 N.C. App. 414, 420, 261 S.E.2d 242, 246
(1980)
32
Grimsley v. Nelson, 342 N.C. 542, 545, 467
S.E.2d 92, 94 (1996)
13
Gulf Oil Co. v. Bernard, 452 U.S. 89, 101-02,
68 L. Ed. 2d 693, 703-04 (1981))
37
Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.
Ct. 594, 596, 30 L. Ed. 2d 652 (1972)
28
Harper v. City of Asheville, 160 N.C. App. 209,
213-214 (2003)
13
Hazelwood v. Bailey, 339 N.C. 578, 584, 453
S.E.2d 522, 525 (1995)
13
King, 281 N.C.
32
Lane v. Winn-Dixie Charlotte, Inc., __ N.C.
App. __, __, 609 S.E.2d 456, 459 (2005)
14
Lantsberry v. Tilley Lamp Co. (1971), 27 Ohio
St.2d 303, 56 O.O.2d 179, 272 N.E.2d 127,
30
Lawson v. Jeter, 243 S.C. 103, 106, 132 S.E.2d
276, 277 (1963)
30
Moore's Federal Practice, § 56.11[3], at2176
(2d ed. 1965)
23
Morrison v. Sears, Roebuck & Co., 319 N.C. 298,
300, 354 S.E.2d 495, 497 (1987)
22
Motor Co. v. Reaves, 184 N.C. 260, 264, 114
S.E. 175,
18
Nebraska Press Ass'n, 427 U.S. at 563, 49 L.
Ed. 2d at 700
37
Ottway Burton, P.A. v. Blanton, 107 N. C. App.
615 (1992)
25
- vi -
Page v. Sloan, 281 N.C. 697, 705, 190 S.E.2d
189, 194 (1972)
23
Piedmont Triad Reg'l Water Auth. v. Sumner
Hills, Inc., 353 N.C. 343, 348, 543 S.E.2d 844,
848 (2001)
34
Ryals v. Hall-Lane Moving & Storage Co., 122
N.C. App. 242, 248, 468 S.E.2d 600, 604, disc.
review denied, 343 N.C. 514, 472 S.E.2d 19
(1996)
16
Santos v. State Farm Fire & Cas. Co., 902 F.2d
1092, 1096 (2d Cir. 1990)
17
Schoolfield v. Collins, 281 N.C. 604, 612, 189
S.E.2d 208, 213 (1972)
23
Searles v. Searles, 100 N.C. App. 723, 726, 398
S.E.2d 55, 56 (1990)
27
Sherrill v. Amerada Hess Corp.,
37
Short v. City of Greensboro, 15 N.C. App. 135,
138, 189 S.E.2d 560, 562 (1972)
33
Smiley's Plumbing Co. v. PFP One, Inc., 155
N.C. App. 754, 761, 575 S.E.2d 66, 70, disc.
review denied, 357 N.C. 166, 580 S.E.2d 698
(2003)
22
Stanback v. Stanback, 297 N.C. 181, 205, 254
S.E.2d 611, 627 (1979)
22
State v. Camp, 286 N.C. 148, 152, 209 S.E.2d
754, 756 (1974)
39
Storey v. Hailey No. 926SC1188 (Filed 5 April
1994)
26
Sumito Mitsubishi Silicon Corp. v. Memc
Electronic Materials, Inc., 2005 U.S. Dist.
LEXIS 5174, at *2 n.2 (D. Del. Mar. 30, 2005)
25
Sunamerica Financial Corp. v. Bonham, 328 N.C.
254, 257, 400 S.E.2d 435, 437 (1991)
25
Taylor v. Taylor, 343 N.C. 50, 54, 468 S.E.2d 33
- vii -
33, 35 (1996), reh'g denied, 343 N.C. 517, 472
S.E.2d 25 (1996)
Turner v. Duke University, 325 N.C. 152, 165,
381 S.E.2d 706, 714 (1989).
31
Vassey v. Burch, 301 N.C. 68, 72, 269 S.E.2d
137, 140 (1980)
22
Waters v. Wilson, No. COA06-1702, 2007 N.C.
App. LEXIS 2429, at *11 (N.C. Ct. App. Dec. 4,
2007)
32
White v. Bloom, 621 F.2d 276
28
Wiles v. Welparnel Constr. Co., 295 N.C. 81,
84–85, 243 S.E.2d 756, 758 (1978)).
13
STATUTES
N.C. Gen. Stat. § 1-72.1(a)
38
N.C. Gen. Stat. § 1-72.1(b)
38
N.C. Gen. Stat. § 1-72.1(c) 39
N.C. Gen. Stat. § 1-75.7 13
N.C. Gen. Stat. § 1A-1 Rule 11(a)
31
N.C. Gen. Stat. § 1A-1 Rule 58
27
N.C. Gen. Stat. § 7A-276.1
39
N.C. Gen. Stat. § 1A-1 Rule 7(B)(1)
19
- viii -
RULES
Rule 7(b)(1) 19
Rule 10(b) 17
Rule 8(c)
15
Rule 12(b)(4)
14
Rule 12(b)(5)
14
Rule 12(b)(6) 22
Rule 12(h)(1) 14
Rule 52 23
Rule 56
22
Rule 63
4,9,23
NO. COA10-535 TENTH DISTRICT
NORTH CAROLINA COURT OF APPEALS
*******************************
IN THE MATTER OF: )
OAK HEALTH CARE INVESTORS OF ) NORTH CAROLINA, INC., A NORTH ) CAROLINA CORPORATION d/b/a ) THE LAURELS OF FOREST GLENN, ) LAUREL HEALTH CARE COMPANY, ) SUPERIOR COURT DIVISION Plaintiffs, ) File No.05 CVS 3411
v. )
)
KENNETH C. JOHNSON. ) Defendant, ) ______________________________)
AND
KENNETH C. JOHNSON. ) Plaintiff, )
v. )
)
OAK HEALTH CARE INVESTORS OF ) NORTH CAROLINA, INC., A NORTH ) SUPERIOR COURT DIVISION CAROLINA CORPORATION d/b/a ) File No.08 CVS 3715 THE LAURELS OF FOREST GLENN, ) LAUREL HEALTH CARE COMPANY, ) SANDRA LYNN WOOD, AND ALAN ) FINLAYSON, )
Defendants, ) ______________________________)
AND
- 2 -
KENNETH C. JOHNSON, ) Plaintiff, )
v. )
)
OAK HEALTH CARE INVESTORS OF ) NORTH CAROLINA, INC., A NORTH ) CAROLINA CORPORATION d/b/a ) THE LAURELS OF FOREST GLENN, ) LAUREL HEALTH CARE COMPANY, ) YATES, MCLAMB & WEYHER, LLP, ) SUPERIOR COURT DIVISION
BARBARA B. WEYHER, ESQ.,IN HER) File No.09 CVS 6918
PARTNERSHIP, PROFESSIONAL AND )
INDIVIDUAL CAPACITIES, DAN J. ) MCLAMB, IN HIS PARTNERSHIP, )
PROFESSIONAL, AND INDIVIDUAL )
CAPACITIES, SEAN T. PARTRICK, )
ESQ, IN HIS, PARTNERSHIP, )
PROFESSIONAL, AND INDIVIDUAL, )
CAPACITIES,CHRISTOPHER M.WEST,)
IN HIS PARTNERSHIP,PROFESIONAL)
AND INDIVIDUAL CAPACITIES, )
Defendants, ) ______________________________)
******************************
PLAINTIFF-APPELLANT’S BRIEF
******************************
ISSUES PRESENTED
I. DID THE TRIAL COURT ERR IN DISMISSING THE CORPORATE
DEFENDANTS FOR INSUFFICIENCY OF SERVICE OF PROCESS AND
LACK OF PERSONAL JURISDICTION AFTER THE DEFENDANTS
MADE MULTIPLE GENERAL APPEARANCES?
II. DID THE TRIAL COURT ERR IN DISMISSING THE CORPORATE
DEFENDANTS FOR INSUFFICIENCY OF SERVICE OF PROCESS AND
LACK OF PERSONAL JURISDICTION ALTHOUGH THE DEFENDANTS
FAILED TO PROPERLY PLEAD THE DEFENSE?
- 3 -
III. DID THE TRIAL COURT ERR IN DISMISSING THE REMAINING
DEFENDANTS FROM THE ACTION BASED UPON THE DISMISSAL
OF THE CORPORATE DEFENDANTS?
IV. DID THE TRIAL COURT ERR IN DISMISSING THE ORIGNIAL
COMPLAINT, WHICH HAD BECOME A NULLITY AFTER THE
ISSUANCE OF THE AMENDED COMPLAINT?
V. DID THE TRIAL COURT ERR IN STRIKING THE REPEAT
SUMMONSES?
VI. DID THE TRIAL COURT’S ERR IN AWARDING ATTORNEY FEES
TO THE PREVAILING PARTY?
VII. DID THE TRIAL COURT ERR WHEN IT FOUND THE DEFENDANT
[05 CVS 3411] IN CONTEMPT FOR PUBLISHING PUBLIC
RECORDS AND PURPORTEDLY VIOLATING A GAG ORDER?
STATEMENT OF THE CASE
Plaintiff Kenneth C. Johnson commenced this wrongful
termination against public policy action by filing a complaint
and issuance of summons on 6 March 2008. (R pp 3-32). On 16
July 2008 Plaintiff had issued and served additional summonses
upon Defendants Oak Health Care and Laurel Health Care Company
(hereinafter “the corporate Defendants”). On 9 September 2008
the trial court granted the corporate Defendants’ motion to
strike the summonses and motion for costs. (R p 408). On 15
July 2009 the Plaintiff moved for a substitute judge to hear the
pending motions due to Judge Spencer’s pending retirement and
his unavailability to hear any civil cases in Wake County.
- 4 -
(R p 529). On 10 September 2009 Judge Donald Stephens granted
Plaintiff’s Rule 63 motion and substituted himself for Judge
Spencer. (R p 533). Additionally, the order denied Plaintiff’s
Rule 59 and Rule 60 motions for relief of Judge Spencer’s 25
July 2008 and 29 August 2008 orders and ordered Plaintiff to pay
costs of $1,270 by 1 December 2009. (R p 533). On 14 September
2009 Judge Donald Stephens, upon his own motion, issued an order
barring extra-judicial communication (hereinafter “gag order”)
by the parties.(R p 541). Also on 14 September 2009 Judge
Donald Stephens found Defendant Johnson [05 CVS 3411] in civil
contempt for purportedly violating a 31 August 2006 order
(R p 956) signed by Judge Leon Stanback. (R p 547). On 21
September 2009 Defendant Johnson [05 CVS 3411] moved the Court
for a hearing to determine his right of access to public records
pursuant to N.C.G.S. 1-72.1 (R p 568). On 9 November 2009 the
Court denied movant Johnson’s motion to alter or amend the gag
order in 05 CVS 3411. (R p 594). Additionally, the Court’s
order denied all of movant Johnson’s pending motions. (R p 594).
Appellant gave written notice of appeal on 18 November 2009.
(R pp 598).
- 5 -
STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW
Judge Donald W. Stephens orders sustaining the dismissal of
the wrongful termination action, granting costs, finding
Defendant in contempt for publishing public records, sustaining
a gag order and denying a hearing to determine access to public
records are all final judgments and appeal therefore lies to the
Court of Appeals pursuant to N.C. Gen. Stat. § 7A-27(b).
STATEMENTS OF THE FACTS
Plaintiff Kenneth C. Johnson commenced this wrongful
termination against public policy action by filing a complaint
and issuance of summons on 6 March 2008. (R pp 3-33). Alan
Finlayson (hereinafter “Finlayson”) moved for an extension of
time to answer or otherwise respond on 28 March 2008.(R p 34).
The motion was granted on 28 March 2008. (R p 37). Oak Health
Care Investors of North Carolina, A North Carolina Corporation
d/b/a The Laurels of Forest Glenn (hereinafter “Oak Health
Care”) joined Sandra Lynn Wood (hereinafter “Wood”) and moved
for an extension of time to answer or otherwise respond on 28
March 2008. (R p 39). The motion was granted on 28 March 2008.
(R p 42). Laurel Health Care Company did not move for an
extension and did not timely answer or otherwise respond.
Plaintiff moved for entry of default on 11 April 2008. (R p 44).
- 6 -
Laurel Health Care Company moved to dismiss the action (R pp 51-
53) along with a motion to strike any patient information from
the complaint(R p 53) along with their answer (R pp 53-70) on 14
April 2008. On 6 May 2008 Laurel Health Care Company again moved
to dismiss the action (R pp 104-106) along with another motion
to strike patient information from the complaint (R p 106) along
with another answer titled ORIGINAL ANSWER (R p 104). On 6 May
2008 Defendant Oak Health Care moved to dismiss the action (R pp
128-130) along with a motion to strike any patient information
from the complaint (R p 130) along with their answer (R pp 130-
151). Plaintiff filed and served an Amended Complaint on 23
June 2008. (R pp 166-191). None of the Defendants answered or
otherwise responded to the Amended Complaint. Although Oak
Health Care and Laurel Health Care Company failed to respond to
the Amended Complaint, they nevertheless moved to dismiss the
Original Complaint for a purported insufficient service of
process and lack of Subject Matter (emphasis added) Jurisdiction
on 10 July 2008. (R pp 192). On 14 July 2008, the Honorable
James C. Spencer, Jr., Superior Court Judge (Retired), heard
arguments on Plaintiff’s Motion For Entry of Default, Motion to
Strike Defendant’s Answer, and Motion To Strike Defendant’s
Amended Motion to Dismiss For Insufficient Service of Process
and Lack of Subject Matter Jurisdiction, as well as Defendants’
Motion to Dismiss For Insufficient Service of Process and Lack
- 7 -
of Subject Matter Jurisdiction (emphasis added) and took the
matters under advisement. On 16 July 2008 Plaintiff had issued
and served additional summonses upon Oak Health Care and Laurel
Health Care Company (hereinafter “the corporate Defendants”)
(R pp 215-219). On 22 July 2008 Plaintiff notified the trial
court via letter(R p 258) that the additional summonses had been
issued to the corporate Defendants. A judgment and order
dismissing the case as to the corporate Defendants was entered
on 29 July 2008. (R p 220). Defendants served the Plaintiff
with a copy of the order dismissing the corporate Defendants on
6 August 2008. (R p 281). On 12 August 2008 Plaintiff moved to
alter or amend the judgment dismissing the corporate
defendants.(R p 284). Also on 12 August 2008 the corporate
Defendants moved to strike Plaintiff’s summonses and moved for
costs. (R p 229). On 18 August 2008 the trial court heard
arguments on the corporate Defendants’ motion to strike the
summonses and motion for costs. (R p 315). On 28 August 2008
Defendants Wood and Finlayson filed an unverified motion to
dismiss the case and in the alternative moved for summary
judgment [absent an affidavit]. (R p 317). On 5 September 2008
the trial court heard arguments from Defendants Wood and
Finlayson to dismiss and in the alternative for summary
judgment. (R p 400). On 8 September 2008 Plaintiff moved to
alter or amend the judgment striking the summonses and awarding
- 8 -
costs in the amount of $1,270. (R p 402). On 9 September 2008
the trial court denied the Plaintiff’s motion to alter or amend
the order dismissing the corporate defendants. (R p 404). Also
on 9 September 2008 the trial court granted the corporate
Defendants’ motion to strike the summonses and motion for costs.
(R p 408). Judge Spencer’s office informed the Plaintiff that
due to his pending retirement, Judge Spencer was unavailable to
hear anymore Wake County civil cases. On 26 November 2008
Defendants Wood and Finlayson calendared a motion to dismiss and
in the alternative motion for summary judgment for 8 December
2008. (R p 411). On 5 December 2008, Plaintiff moved to recuse
Judge Spencer.(R p 413). On 5 December 2008 Plaintiff filed a
Motion for Relief from the Judgment dismissing the corporate
Defendants.(R p 428). Also on 5 December 2008 Plaintiff moved to
alter or amend the judgment striking the summonses and awarding
costs.(R p 432). Additionally, on 5 December 2008 Plaintiff
filed a motion for a ruling on his objections to the pending
motions(R p 447). On 8 December 2008 the trial judge Allen
Baddour, Superior Court Judge Presiding, heard the multiple
motions in civil case 08 CVS 3715 and the criminal case 05 CVS
3411. After a lengthy hearing on issues raised by the Plaintiffs
[Plaintiffs in 05 CVS 3411 are the Defendants in 08 CVS 3715]
Judge Baddour discovered that the allegations were criminal in
nature and ruled the hearing a nullity and that the case would
- 9 -
be heard by another judge de novo at a later date after the
Defendant had an opportunity to confer with counsel. (T pp 113-
119) On 9 December 2008, Judge Baddour denied Plaintiff’s
motion to recuse Judge Spencer and denied all pending [08 CVS
3715] Plaintiff motions over Plaintiff’s objections. (R p 494).
Additionally, on 9 December 2008 Judge Baddour dismissed the
action as it pertained to the remaining Defendants. (R p 496).
Having been informed orally on 8 December 2008 that Judge
Baddour had denied his motions, on 9 December 2008, Plaintiff
filed a motion to alter or amend the judgments of Judge Baddour.
(R p 498). On 4 June 2009 Defendants [08 CVS 3715] moved for an
order directing the Plaintiff to show cause why he had not paid
costs in the amount of $1,270.00 to the Defendants. (R p 503).
On 15 July 2009 the Plaintiff moved for a substitute judge to
hear the pending motions due to Judge Spencer’s pending
retirement and unavailability to hear any civil cases in Wake
County. (R p 529). On 31 August 2009 the honorable Donald W.
(emphasis added “Donald W.) Stephens heard Defendants’ Motion to
Show Cause and Plaintiff’s Motion to Alter or Amend and Rule 63
and Rule 60 Motions. On 10 September 2009 Judge Donald Stephens
granted Plaintiff’s Rule 63 motion and substituted himself for
Judge Spencer. (R p 533). Additionally, the order denied
Plaintiff’s Rule 59 and Rule 60 motions for relief of Judge
Spencer’s 25 July 2008 and 29 August 2008 orders and ordered
- 10 -
Plaintiff to pay costs of $1,270 by 1 December 2009. (R p 533).
On 14 September 2009 Judge Donald Stephens, upon his own motion,
issued an order barring extra-judicial communication
(hereinafter “gag order”) by the parties. (R p 541). Also on 14
September 2009 Judge Donald Stephens found Defendant Johnson
[05 CVS 3411] in civil contempt for purportedly violating a
31 August 2006 order (R p 956) signed by Judge Leon Stanback.
(R p 547). On 18 September 2009 Plaintiff Johnson moved the
Court to alter or amend the Court’s 10 September 2009 order
(R p 556) and amend the gag order pursuant to Rule 52(b). On 21
September 2009 Defendant Johnson [05 CVS 3411] moved the Court
for a hearing to determine his right of access to public records
pursuant to N.C.G.S. 1-72.1 (R p 568). On 8 October 2009 the
Defendants moved the Court for an order directing Plaintiff
Johnson to show cause why he had purportedly not complied with
the Court’s 9 September 2009 gag order. (R p 571). On 9 November
2009 the Court denied movant Johnson’s motion to alter or amend
the gag order in 05 CVS 3411. (R p 594) [NOTE: although not
expressly mentioned in the order denying amendment to the gag
order, the gag order encompasses 08 CVS 3715 and case 09 CVS
6918 and all related cases]. Additionally, the Court’s order
denied all of movant Johnson’s pending motions. (R p 594).
Appellant gave written notice of appeal on 18 November 2009.
(R pp 598-600). On 18 December 2009 Appellant filed a motion to
- 11 -
amend the motion and affidavit for leave to appeal in forma
pauperis. (R p 603). On 23 December 2009 Appellant moved the
Court for an extension of time to serve the proposed record on
appeal. (R p 610). Judge John R. Jolly, Jr. granted and
extended the time in which to serve the proposed record to and
including 22 January 2010. (R p 613). On 26 January 2010, The
Honorable Robert H. Hobgood, Superior Court Judge, granted the
Appellant’s motion to appeal in forma pauperis. (R p 614). The
Proposed Record on Appeal was served via United States Mail on
22 January 2010. (R pp 677-681). On 22 February 2010 the
Appellees filed objections and requests for amendments to the
proposed record. (R p 617). On 3 March 2010 the Appellant
served his response to the Appellees’ objections and requests
for amendments to the proposed record. (R p 632). On 4 March
2010 the Appellant set for hearing [5 April 2010] a judicial
settlement hearing. (R p 637). Additionally, on 4 April 2010
the Appellant notified the parties and the trial judge Donald W.
Stephens, via fax, that a judicial settlement hearing was
requested. (R p 640). On 24 March 2010 the Appellant filed a
more detailed response to objections and request for judicial
settlement of the proposed record.(R p 643). On 26 March 2010
the Appellant filed a motion to extend the time in which the
trial court judge had to schedule the judicial settlement
hearing, inform the parties, hold the hearing and settle the
- 12 -
record. (R p 682). On 8 April 2010 the judicial settlement
hearing was held and on 13 April 2010 the Appellant served
notice of objection to the judicial settlement hearing.(R pp
686-779). On 14 April 2010 the Appellant filed a motion for
suspension of the appellate rules [construction of the record].
(R p 780). Additionally, on 14 April 2010 the Appellant filed a
motion to deem the proposed record as timely served. (R p 787).
On 20 April 2010 the trial court judge filed an order settling
the record. (R p 798). On 28 April 2010 the North Carolina
Court of Appeals (hereinafter “COA”) ordered the Appellant may
group the documents in the record by individual cases within the
record. (R p 809). Additionally on 28 April 2010 the COA deemed
the proposed record on appeal timely served.
ARGUMENT
I. THE TRIAL COURT ERRED IN DISMISSING THE CORPORATE
DEFENDANTS FOR INSUFFICIENCY OF SERVICE OF PROCESS AND
LACK OF PERSONAL JURISDICTION AFTER THE DEFENDANTS
MADE MULTIPLE GENERAL APPEARANCES.
STANDARD OF REVIEW
The issue of personal jurisdiction is a matter of law. For
questions of personal jurisdiction, the standard of review is
de novo. Under the de novo standard, the court is required to
consider the question of jurisdiction ‘anew’ as if not
- 13 -
previously considered or decided. See Harper v. City of
Asheville, 160 N.C. App. 209, 213-214 (2003).
The North Carolina Supreme Court is quoted frequently for
the maxim that “[a] suit at law is not a children’s game, but a
serious effort on the part of adult human beings to administer
justice; and the purpose of process is to bring parties into