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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, )
______________________________)
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PLAINTIFF-APPELLANTS BRIEF
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INDEX
ISSUES PRESENTED 2
CONCLUSION 41
CERTIFICATE OF COMPLIANCE 42
CERTIFICATE OF FILING 43
CERTIFICATE OF SERVICE 44
TABLE OF AUTHORITIES
CASES:
STATUTES
RULES
Rule 7(b)(1) 19
Rule 8(c) 15
Rule 10(b) 17
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
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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-APPELLANTS BRIEF
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ISSUES PRESENTED
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?
upon Defendants Oak Health Care and Laurel Health Care Company
July 2009 the Plaintiff moved for a substitute judge to hear the
July 2008 and 29 August 2008 orders and ordered Plaintiff to pay
2009 Judge Donald Stephens, upon his own motion, issued an order
September 2009 Defendant Johnson [05 CVS 3411] moved the Court
(R pp 598).
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records are all final judgments and appeal therefore lies to the
April 2008. On 6 May 2008 Laurel Health Care Company again moved
and served additional summonses upon Oak Health Care and Laurel
court via letter(R p 258) that the additional summonses had been
motions in civil case 08 CVS 3715 and the criminal case 05 CVS
nature and ruled the hearing a nullity and that the case would
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motion to recuse Judge Spencer and denied all pending [08 CVS
order directing the Plaintiff to show cause why he had not paid
September 2009 Defendant Johnson [05 CVS 3411] moved the Court
order, the gag order encompasses 08 CVS 3715 and case 09 CVS
the Appellant notified the parties and the trial judge Donald W.
hearing, inform the parties, hold the hearing and settle the
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ARGUMENT
STANDARD OF REVIEW
the maxim that [a] suit at law is not a childrens game, but a
court. Hazelwood v. Bailey, 339 N.C. 578, 584, 453 S.E.2d 522,
525 (1995) (citing Wiles v. Welparnel Constr. Co., 295 N.C. 81,
342 N.C. 542, 545, 467 S.E.2d 92, 94 (1996) (citation omitted).
1-75.7); see also Simms v. Masons Stores, Inc., 285 N.C. 145,
157, 203 S.E.2d 769, 777 (1974). [A] general appearance is one
848, 856 (1951); see also Barnes v. Wells, 165 N.C. App. 575,
Winn-Dixie Charlotte, Inc., __ N.C. App. __, __, 609 S.E.2d 456,
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v. St. Paul Mercury Ins. Co., 95 N.C. App. 663, 673, 384 S.E.2d
stated and the opposing party and the court are left to wonder
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
waived the defense under Rule 12(h)(1). See also Santos v. State
Farm Fire & Cas. Co., 902 F.2d 1092, 1096 (2d Cir. 1990)
and Original Answer (R p 98). Also, this Court has the concept
general.'" Motor Co. v. Reaves, 184 N.C. 260, 264, 114 S.E. 175,
177 (1922). Thus the trial courts ruling was improper and the
judgment of dismissal.
ARGUMENT
STANDARD OF REVIEW
also improperly set forth the grounds for the relief sought in
the grounds therefor, and shall set forth the relief or order
opposing parties can comprehend the basis for the motion and
they are less able to turn and pivot at the hearing, as well
dismissal based upon a motion that was not properly before the
judgment of dismissal.
ARGUMENT
STANDARD OF REVIEW
317). Defendants Wood and Finlayson based their motion upon the
the Defendants moved the court to consider the motion as one for
254 S.E.2d 611, 627 (1979) ("A Rule 12(b)(6) motion to dismiss
319 N.C. 298, 300, 354 S.E.2d 495, 497 (1987). Rule 56 "does not
Vassey v. Burch, 301 N.C. 68, 72, 269 S.E.2d 137, 140 (1980)
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
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Page v. Sloan, 281 N.C. 697, 705, 190 S.E.2d 189, 194 (1972).
See also Schoolfield v. Collins, 281 N.C. 604, 612, 189 S.E.2d
501) to support denial of the motion [See Rule 52(a)(2) and Rule
ARGUMENT
STANDARD OF REVIEW
n.2 (D. Del. Mar. 30, 2005). Thus the trial court erred in
ARGUMENT
STANDARD OF REVIEW
N.C. 254, 257, 400 S.E.2d 435, 437 (1991). Upon motion of the
52, 59, and 60. Curiously, the Defendants fail to allege [now
waived] that the repeat summonses were issued beyond the statute
of limitations, which they were not, but had they raised that
signed by the judge, and filed with the clerk of court. N.C.
merely marks the beginning of the time during which a party may
314, 321, 438 S.E.2d 471, 475 (1994). The trial court's oral
This can not be cured by attempting new service. West did not
believe that his advice was legally sound and not merely self-
v. Bloom, 621 F.2d 276 makes this point clear and states: A
they state a claim. Cruz v. Beto, 405 U.S. 319, 322, 92 S. Ct.
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September 2008, one day before the order striking the summonses
have become aware that the summonses and the Rule 59 Motion no
the interim period, from the 14 July 2008 hearing and subsequent
O.O.2d 179, 272 N.E.2d 127, the court stated in paragraph one of
court. Lawson v. Jeter, 243 S.C. 103, 106, 132 S.E.2d 276, 277
been dismissed from the action and therefore any trace of them
the Defendants had truly been legally dismissed from the action,
fees.
ARGUMENT
STANDARD OF REVIEW
University, 325 N.C. 152, 165, 381 S.E.2d 706, 714 (1989).
allowable. Baxter v. Jones, 283 N.C. 327, 330, 196 S.E.2d 193,
affidavit be properly sworn. See First Citizens Bank & Trust Co.
v. Nw. Ins. Co., 44 N.C. App. 414, 420, 261 S.E.2d 242, 246
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N.C. App. 135, 138, 189 S.E.2d 560, 562 (1972) As a result,
64, 345 S.E.2d 411, 413 (1986), disc. review denied, 318 N.C.
Taylor, 343 N.C. 50, 54, 468 S.E.2d 33, 35 (1996), reh'g denied,
343 N.C. 517, 472 S.E.2d 25 (1996). In the case at bar neither
lawyers skill. Also, the trial courts order did not contain
ARGUMENT
STANDARD OF REVIEW
Piedmont Triad Reg'l Water Auth. v. Sumner Hills, Inc., 353 N.C.
343, 348, 543 S.E.2d 844, 848 (2001). As stated supra, the
Plaintiffs in case [05 CVS 3411], Oak Health, et. al., have
nurse (lets call her LPN Rosen) --- (R p 740)a nursing home
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have not contacted any state agency and requested that they
the show cause hearing, that the information was public record,
blog owners via email and asked if they could please remove the
order denied the motion to alter or amend the gag order, denied
the motion to alter or amend the show cause order, denied the
record must reflect findings [of fact] by the trial court that
L. Ed. 2d at 700; Gulf Oil Co. v. Bernard, 452 U.S. 89, 101-02,
S.E.2d 530, 533 (1979). Finally, [the gag order] must comply
communicating with the public and the press about the case. 130
any other party to the action desire to present. The court shall
courts must give [the statute] its plain and definite meaning,
148, 152, 209 S.E.2d 754, 756 (1974) (quoting 7 Strong, N.C.
CONCLUSION
the case for trial. Additionally, the COA should vacate the
should vacate the gag order and the judgment of civil contempt
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CERTIFICATE OF COMPIANCE
that the foregoing BRIEF has been filed with the Clerk by