Opinion
No. 07-183.
Filed February 5, 2008.
Forsyth County No. 04 CVS 4100.
Appeal by Plaintiff from judgment entered 13 March 2006 and by Defendants from order entered 21 June 2006 by Judge Richard W. Stone in Forsyth County Superior Court. Heard in the Court of Appeals 10 October 2007.
Kennedy, Kennedy, Kennedy Kennedy, L.L.P., by Harold L. Kennedy, III, Harvey L. Kennedy, and Annie Brown Kennedy, for Plaintiff. Bennett Guthrie, P.L.L.C., by Richard V. Bennett, Roberta B. King, and Jason P. Burton, for Defendants.
Evelena Clayborn ("Plaintiff") appeals from the trial court's judgment entered 13 March 2006 in favor of Defendants after a jury found that Plaintiff's decedent, Maxwell Christine Grier ("Ms. Grier"), was not injured by Defendants' negligence. Defendants appeal from the trial court's subsequent order entered 21 June 2006declining to hear their motion to tax costs against Plaintiff. For the reasons which follow, we affirm both the 13 March 2006 judgment and the 21 June 2006 order.
FACTUAL BACKGROUND
On the night of 2 July 2001, Ms. Grier was admitted to Defendants' hospital, Forsyth Medical Center in Winston-Salem, complaining of weight loss, decreased appetite, and nausea. Ms. Grier was 102 years old at the time of her admission, and her admitting records indicated that she was at a high risk for falls. At some point during the early morning hours of 3 July 2001, Ms. Grier fell in her hospital room and fractured her right hip. Ms. Grier's daughter, Ms. Margaret Joanne Grier Cousin, testified at trial as follows:
My mother told me that she had to use the bathroom, that she rang the buzzer for several minutes, nobody came. So, she got out of the bed, she went to the bathroom, she came out, she fell and broke her hip. And she laid on the floor for several hours and nobody came. And she hollered for help and nobody came. And she kept hollering and nobody came, nobody came.
Ms. Grier died on 4 July 2001 while recovering from surgery on her fractured hip.
By complaint filed 25 June 2004, Plaintiff brought a survival action against Defendants for the pain and suffering Ms. Grier experienced as a result of her fall. Plaintiff alleged Defendants failed to implement adequate fall precautions despite Ms. Grier's high risk for falls. Plaintiff also alleged Defendants failed to take measures after the fall to ensure Ms. Grier's comfort. As discovery was proceeding, the trial court entered a protective order on 20 December 2004 denying certain of Plaintiff's requests for production. After completing discovery, Defendants filed a motion for summary judgment on 17 January 2006 alleging, inter alia, that Plaintiff did not have an expert witness qualified to testify as to causation. The trial court denied the summary judgment motion by order entered 7 February 2006.
The matter was called for trial on 20 February 2006, and the jury returned its verdict on 8 March 2006. In the judgment entered on the verdict 13 March 2006, the trial court ordered "that the costs of [the] action be taxed against the Plaintiff[,]" but the court did not determine the amount of costs to be taxed. On 11 April 2006, Plaintiff timely noticed appeal from the judgment.
By motion filed 25 May 2006, Defendants sought an order from the trial court fixing the amount of costs to be taxed and taxing those costs against Plaintiff. In an order entered 21 June 2006, the trial court found that Plaintiff's 11 April 2006 notice of appeal had deprived it of jurisdiction to hear Defendants' motion. On 28 June 2006, Defendants timely noticed appeal from the order declining to hear their motion to tax costs.
MOTION TO DISMISS PLAINTIFF'S APPEAL
By motion filed 18 April 2007, Defendants assert that Plaintiff's appeal should be dismissed for violations of the Rules of Appellate Procedure. Specifically, Defendants allege (1) Plaintiff failed to satisfy the timing requirements for settling and filing the record on appeal and failed to prosecute her appeal in a timely manner, N.C. R. App. P. 11(c), 12(a), (2) Plaintiff's notice of appeal does not designate an order upon which one of her assignments of error is based, N.C. R. App. P. 3(d), and (3) Plaintiff's assignments of error do not state a legal basis upon which the errors are assigned, N.C. R. App. P. 10(c)(1). Plaintiff's assignments of error state:
1.) The Trial Court committed prejudicial error in charging the jury that the failure to document events in the medical records of a patient is not medical negligence in and of itself because this jury instruction on this point was an error of law; and because this jury instruction was directly contrary to the testimony of the Plaintiff's nursing expert that the failure to document events in the medical records of the deceased, Maxwell Christine Grier, was a violation of the standard of care.
. . . .
2.) The Trial Court committed prejudicial error in entering its Order dated December 16, 2004[,] [sic] in granting Defendants' Motion for a Protective Order and denying Plaintiff's Motion to Compel Discovery in part by failing to order the production of (1.) the complete file of the Risk Management Department at Forsyth Medical Center concerning the hospitalization of Maxwell Christine Grier at Forsyth Medical Center (Plaintiff's Request for Production of Documents, No. 2); and (2.) a copy of the Incident Report prepared concerning the injury to the Plaintiff [sic] during her hospitalization at Forsyth Medical Center from July 2-4, 2001 (Plaintiff's Request for Production of Documents, No. 9) in that these documents are not privileged pursuant to N.C.G.S. § 131E-76(5) and § 131E-95, and Rule 26(b)(3) of the N.C. Rules of Civil Procedure, and that these documents were discoverable because they were reasonably calculated to lead to the discovery of admissible evidence and because said documents were business records made and maintained in the usual course of business.
. . . .
3.) The Closing Argument of Defendant's counsel was so prejudicial, in that Defendant's counsel verbally attacked the Plaintiff for waiting to file her lawsuit within the 3 year statute of limitations and verbally attacked the Plaintiff's counsel on matters outside of the Record evidence, that a new trial should be ordered; and that the Trial Court sustaining the objections was not sufficient to remove the taint of prejudicing the jury against the Plaintiff and Plaintiff's counsel.
We address Defendants' allegations in reverse order.
Rule 10(c)(1)
Defendants allege that Plaintiff's appeal should be dismissed because Plaintiff's assignments of error violate Rule 10(c)(1) of the Rules of Appellate Procedure which states, "Each assignment of error . . . shall state plainly, concisely and without argumentation the legal basis upon which error is assigned." N.C. R. App. P. 10(c)(1). Defendants allege that none of Plaintiff's assignments of error state the legal basis upon which the errors are assigned. We disagree.
Assignments of error that are "broad, vague, and unspecific" do not comply with Rule 10 of the Rules of Appellate Procedure. In re Lane Company-Hickory Chair Div., 153 N.C. App. 119, 123, 571 S.E.2d 224, 226 (2002). "One purpose of [Rule 10] is to `identify for the appellee's benefit all the errors possibly to be urged on appeal . . . so that the appellee may properly assess the sufficiency of the proposed record on appeal to protect his position.'" State v. Baggett, 133 N.C. App. 47, 48, 514 S.E.2d 536, 537 (1999) (quoting Kimmel v. Brett, 92 N.C. App. 331, 335, 374 S.E.2d 435, 437 (1988)). "In addition, Rule 10 allows our appellate courts to `fairly and expeditiously' review the assignments of error without making a `voyage of discovery' through the record in order to determine the legal questions involved." Rogers v. Colpitts, 129 N.C. App. 421, 422, 499 S.E.2d 789, 790 (1998) (quoting Kimmel, 92 N.C. App. at 335, 374 S.E.2d at 437).
Defendants principally rely on this Court's decision in Walker v. Walker, 174 N.C. App. 778, 624 S.E.2d 639 (2005), disc. review denied, 360 N.C. 491, 632 S.E.2d 774 (2006), for the proposition that Plaintiff's assignments of error are inadequate. In Walker, "[t]he defendant set out 119 assignments of error, purporting to assign error to almost every finding of fact and conclusion of law made by the trial court." Id. at 781, 624 S.E.2d at 641. Each finding or conclusion was the subject of three identical assignments of error:
a. The Trial Court's Finding of Fact [No. `X'], on the grounds that it is not supported by the evidence.
b. The Trial Court's Finding of Fact [No. `X'], on the grounds that it is erroneous as a matter of law.
c. The Trial Court's Finding of Fact [No. `X'], on the grounds that it is an abuse of discretion.
Id. In his brief, the defendant only advanced arguments under "category `b', asserting that various rulings by the trial court were `erroneous as a matter of law.'" Id. at 782, 624 S.E.2d at 642. We stated that the defendant's assignments of error completely failed to identify the issues actually briefed on appeal and that the defendant's "generic" assignments of error essentially amounted to "no more than an allegation that `the court erred because its ruling was erroneous.'" Id. at 783, 624 S.E.2d at 642. We concluded that "the issues defendant briefed on appeal [were] not preserved for review by defendant's assignments of error[.]" Id.
In the case at bar, Defendants assert that each of Plaintiff's assignments of error amount to nothing more than an assertion that the trial court's rulings were "erroneous as a matter of law." While Plaintiff's assignments of error perhaps are not plain and concise, as required by Rule 10, the assignments of error are certainly not generic and they identify the issues actually briefed on appeal. Plaintiff's first assignment of error clearly identifies that portion of the jury charge to which she excepts and identifies the reason she thinks the trial court erred. The second assignment of error lists multiple statutory grounds upon which the error is assigned. Plaintiff's third assignment of error identifies Plaintiff's argument that the trial court's actions prejudiced Plaintiff. Plaintiff's assignments of error do not violate Rule 10(c) for failing to state a legal basis upon which the errors are assigned. Defendants' motion to dismiss Plaintiff's appeal on this ground is denied.
Rule 3(d)
Defendants allege Plaintiff's notice of appeal violates Rule 3(d) and that this Court, therefore, is without jurisdiction to consider Plaintiff's second assignment of error. Plaintiff's notice of appeal only specifies that appeal is taken from the judgment entered 13 March 2006, not from the 20 December 2004 discovery order upon which her second assignment of error is based. Rule 3(d) dictates that a notice of appeal "shall designate the judgment or order from which appeal is taken[.]" N.C. R. App. P. 3(d). "Without proper notice of appeal, this Court acquires no jurisdiction." Brooks v. Gooden, 69 N.C. App. 701, 707, 318 S.E.2d 348, 352 (1984) (citations omitted). However, N.C. Gen. Stat. § 1-278 "provides a means by which an appellate court may obtain jurisdiction to review an order not included in a notice of appeal." Dixon v. Hill, 174 N.C. App. 252, 257, 620 S.E.2d 715, 718 (2005), disc. review denied, 360 N.C. 289, 627 S.E.2d 619, cert. denied, ___ U.S. ___, 165 L. Ed. 2d 954 (2006). "Upon an appeal from a judgment, [an appellate court] may review any intermediate order involving the merits and necessarily affecting the judgment." N.C. Gen. Stat. § 1-278 (2005). The exercise of jurisdiction pursuant to N.C. Gen. Stat. § 1-278 is proper only if: (1) the appellant timely objected to the order; (2) the order was interlocutory and not immediately appealable; and (3) the order involved the merits and necessarily affected the judgment. Charles Vernon Floyd, Jr. Sons, Inc. v. Cape Fear Farm Credit, ACA, 350 N.C. 47, 510 S.E.2d 156, abrogated in part on other grounds by Dep't of Transp. v. Rowe, 351 N.C. 172, 521 S.E.2d 707 (1999); Dixon, 174 N.C. App. 252, 620 S.E.2d 715. All three conditions must be met. Brooks v. Wal-Mart Stores, Inc., 139 N.C. App. 637, 535 S.E.2d 55 (2000), disc. review denied, 353 N.C. 370, 547 S.E.2d 1 (2001). If so, N.C. Gen. Stat. § 1-278 permits, but does not require, this Court to exercise jurisdiction. State ex rel. Cooper v. NCCS Loans, Inc., 174 N.C. App. 630, 624 S.E.2d 371 (2005).
Plaintiff timely objected to the order. Rule 46(b) of the Rules of Civil Procedure provides, as to interlocutory orders not directed to the admissibility of evidence, that "formal objections and exceptions are unnecessary." N.C. Gen. Stat. § 1A-1, Rule 46(b) (2005). Instead,
[i]n order to preserve an exception to any such ruling or order or to the court's failure to make any such ruling or order, it shall be sufficient if a party, at the time the ruling or order is made or sought, makes known to the court the party's objection to the action of the court or makes known the action that the party desires the court to take and the party's grounds for its position.
Id. In this case, Plaintiff filed a motion to compel discovery of the sought-after documents which, as evidenced by the trial court's protective order, made known to the trial court the action Plaintiff desired the court to take. Furthermore, the discovery order was clearly interlocutory. As a general rule, interlocutory discovery orders are not immediately appealable. Sharpe v. Worland, 351 N.C. 159, 522 S.E.2d 577 (1999). There are, however, some exceptions to the general rule, as when a trial court compels discovery in the face of an assertion of statutory privilege, id., or as when the discovery order imposes sanctions against a litigant. Willis v. Duke Power Co., 291 N.C. 19, 229 S.E.2d 191 (1976). No exception to the general rule applies in this case, however, and the discovery order was not immediately appealable. Thus, the first two prongs of the Floyd test are met.
Plaintiff sought the production of Defendants' Quality Assurance Report and the complete file of Defendants' Risk Management Department concerning Ms. Grier's hospitalization.
Having conducted a thorough review of the sought-after documents, however, we do not conclude that the discovery order necessarily affected the judgment. It simply cannot be said that the jury necessarily would have reached a different verdict had the information contained in the protected documents been provided to Plaintiff. Moreover, the discovery order did not deprive Plaintiff of any of her claims against Defendants and did not necessarily affect the judgment on that ground. See Floyd, 350 N.C. 47, 510 S.E.2d 156 (stating that interlocutory order necessarily affected the final judgment because the order deprived appellant of one of its claims); Brooks, 139 N.C. App. 637, 535 S.E.2d 55; Gaunt v. Pittaway, 139 N.C. App. 778, 534 S.E.2d 660, appeal dismissed and disc. review denied, 353 N.C. 262, 546 S.E.2d 401 (2000), cert. denied, 534 U.S. 950, 151 L. Ed. 2d 261 (2001). The discovery order did not affect the merits of Plaintiff's case or necessarily affect the judgment. This Court, therefore, will not exercise jurisdiction pursuant to section 1-278.
Because neither N.C. R. App. P. 3(d) nor N.C. Gen. Stat. § 1-278 confer jurisdiction upon this Court to review Plaintiff's second assignment of error, this assignment of error is dismissed.
Rules 11(c) and 12(a)
Finally, Defendants argue that Plaintiff's appeal should be dismissed for Plaintiff's failure to timely settle and file the record on appeal. Preliminarily, we note that there is but one record on appeal before us. Within that record we find two notices of appeal: Plaintiff's notice of appeal from the 13 March 2006 judgment, and Defendants' notice of appeal from the 21 June 2006 order. Defendants seek review of the 21 June 2006 order upon the same record which they now assert Plaintiff failed to timely settle and file.
The appellant "`bears the burden of seeing that the record on appeal is properly settled and filed with this Court.'" Groves v. Cmty. Hous. Corp. of Haywood Cty., 144 N.C. App. 79, 82, 548 S.E.2d 535, 537 (2001) (quoting McLeod v. Faust, 92 N.C. App. 370, 371, 374 S.E.2d 417, 418 (1988), and citing Webb v. McKeel, 132 N.C. App. 816, 817, 513 S.E.2d 596, 597 (1999)). The appellate rules that regulate the timing of the settlement and filing of the record on appeal are not arbitrary formalities, but "`are designed to keep the process of perfecting an appeal flowing in an orderly manner.'" Kellihan v. Thigpen, 140 N.C. App. 762, 763, 538 S.E.2d 232, 234 (2000) (quoting Craver v. Craver, 298 N.C. 231, 236, 258 S.E.2d 357, 361 (1979)). "If after giving notice of appeal from any court . . . the appellant shall fail within the times allowed by these rules or by order of court to take any action required to present the appeal for decision, the appeal may on motion of any other party be dismissed." N.C. R. App. P. 25(a). A motion to dismiss for failure to take timely action "shall be allowed unless compliance or a waiver thereof is shown on the record, or unless the appellee shall consent to action out of time, or unless the court for good cause shall permit the action to be taken out of time." Id.
Any party to an appeal may request the judge from whose judgment appeal is taken to settle the record on appeal. N.C. R. App. P. 11(c). If such a request is made, a hearing to settle the record on appeal
shall be held not later than 15 days after service of the request for hearing upon the judge. The judge shall settle the record on appeal by order entered not more than 20 days after service of the request for hearing upon the judge.
Id. Alternatively, "nothing herein shall prevent settlement of the record on appeal by agreement of the parties at any time within the times herein limited for settling the record by judicial order." Id. "The times provided in this rule for taking any action may be extended in accordance with the provisions of Rule 27(c)." N.C. R. App. P. 11(f). A motion to extend the time for the judge to settle the record on appeal may only be made to the appellate court to which appeal has been taken. N.C. R. App. P. 27(c). "Within 15 days after the record on appeal has been settled by any of the procedures provided in [] Rule 11 . . . the appellant shall file the record on appeal with the clerk of the court to which appeal is taken." N.C. R. App. P. 12(a).
After filing the 11 April 2006 notice of appeal, Plaintiff filed written documentation of the transcript arrangement on 25 April 2006. At Plaintiff's request, the trial court extended the time for the transcript to be prepared until 25 July 2006. On 22 August 2006 and again pursuant to Plaintiff's request, the trial court extended the time for service of the proposed record on appeal until 23 September 2006. Plaintiff then served the proposed record on appeal. On 30 October 2006, Defendants served objections and amendments to the proposed record on appeal. On 13 November 2006, Plaintiff filed and served upon the trial judge a request for judicial settlement of the record on appeal. The trial court initially scheduled the hearing for 22 November 2006. The actions of both the parties and the trial court to this point were timely and proper. N.C. R. App. P. 7(a)(1), 7(b)(1), 11(b), 11(c), 27(c)(1).
Counsel for Defendants notified the trial court that they could not participate in the 22 November 2006 hearing because they were scheduled to begin a trial on 27 November 2006 and they had a pre-trial conference scheduled for 22 November 2006. Defendants asked the court to hold the hearing on 17 November 2006. Instead, the trial court moved the hearing date to 15 December 2006. Plaintiff did not file a motion with this Court seeking an extension of time for holding the hearing or for entering an order settling the record. According to Defendants, the parties reached an oral agreement settling the record on appeal on 11 December 2006, and Plaintiff thereafter cancelled the hearing before the trial court. Plaintiff does not dispute this contention. By letter dated 2 January 2007, Defendants asked Plaintiff to file the record on appeal. On 18 January 2007, Plaintiff mailed an unexecuted "Stipulation Settling the Record on Appeal" to Defendants. Defendants signed and returned the stipulation to Plaintiff. Plaintiff signed the stipulation on 27 January 2007. Plaintiff filed the record on appeal with this Court on 9 February 2007.
Since this Court did not extend the time within which the trial court was required to hold the hearing and settle the record, the trial court was required to hold the hearing by 28 November 2006 and to settle the record by order entered no later than 4 December 2006. Alternatively, the parties could have settled the record by agreement by that same date. Though we find nothing in the record or the motions to support Defendants' contention that the parties settled the record by agreement on 11 December 2006, we again note Plaintiff does not dispute this contention. We also note that there is no evidence that the trial court held the hearing as scheduled on 15 December 2006, and that Defendants asked Plaintiff to file the record on 2 January 2007. In any event, the parties had settled the record by agreement no later than 18 January 2007, as evidenced by Plaintiff's letter to Defendants on that date. Accordingly, the record was not timely settled, and Plaintiff thus violated Rule 11(c). Plaintiff acknowledges as much in her response to the motion to dismiss. Assuming the record was settled on 18 January 2007, Plaintiff was required to file the record with this Court no later than 2 February 2007. Plaintiff filed the record on 9 February 2007 and thus violated Rule 12(a). Having thoroughly considered the matter, however, we disagree with Defendants' contention that these violations warrant the dismissal of Plaintiff's appeal. We again point to Defendants' reliance, in prosecuting their appeal of the 21 June 2006 order, on the record compiled by Plaintiff in prosecuting her appeal of the 13 March 2006 judgment. Defendants' actions essentially operate as a waiver or show that Defendants consented to Plaintiff's perfecting the appeal out of time. N.C. R. App. P. 25(a). Accordingly, Defendants' motion to dismiss Plaintiff's appeal is denied.
3 December 2006 was a Sunday. N.C. R. App. P. 27(a).
Plaintiff's contention that the record was not settled until both parties signed the "Stipulation Settling the Record on Appeal" is not supported by any authority.
PLAINTIFF'S APPEAL
By her two properly preserved assignments of error, Plaintiff argues that this Court should order a new trial because (1) Defendants' counsel made an improper personal attack on Plaintiff's counsel during closing argument, and (2) the trial court erred in its instructions to the jury. We are not persuaded by either argument.
Personal Attack on Plaintiff's Counsel
Plaintiff argues that this Court should order a new trial because of the following closing argument made by Defendants' counsel:
MR. BENNETT [Defendants' counsel]: . . . You know, if — if Ms. Grier or anybody else — excuse me — if Ms. Cousin or anybody else in this courtroom believed that their mother had been treated the way that they said that she had been treated, and then lay in bed all the next day in excruciating pain, they'd be raising the rafters of the ninth floor. It doesn't make sense that you don't do anything and you wait three years and then you file a lawsuit. You wait three years and then you — you sucker-punch the lawsuit — the hospital with a lawsuit —
MR. HARVEY KENNEDY: Objection, Your Honor.
THE COURT: Sustained.
MR. BENNETT: — when they no longer have the ability to pull together the things they need to defend themselves.
MR. HARVEY KENNEDY: Objection, Your Honor.
THE COURT: Sustained.
Plaintiff did not move to strike the argument or request a curative instruction. Nevertheless, Plaintiff argues that the trial court's action in sustaining the objections "was not sufficient to remove the taint of prejudicing the jury against the Plaintiff and her counsel." In support of her argument, Plaintiff cites only one case from this jurisdiction, Johnson v. Amethyst Corp., 120 N.C. App. 529, 463 S.E.2d 397 (1995). Plaintiff contends Johnson is the "controlling North Carolina case on this issue[.]" In Johnson, the defendants' counsel made multiple statements to the jury in closing arguments which, on appeal, the plaintiff contended warranted a new trial. At trial, however, the "[p]laintiff's counsel objected to [the defendants' counsel's] statements, but his objections were overruled." Id. at 536, 463 S.E.2d at 402. In the case at bar, Plaintiff's objections to Defendants' counsel's statements were sustained. Plaintiff's reliance on Johnson is unfounded, and Plaintiff's argument is without merit. In North Carolina, "when an objection is made to an improper argument of counsel and the court sustains the objection, that court does not err by failing to give a curative instruction if one is not requested." Smith v. Hamrick, 159 N.C. App. 696, 699, 583 S.E.2d 676, 679 (citing State v. Barber, 93 N.C. App. 42, 48-49, 376 S.E.2d 497, 501, disc. review denied, 328 N.C. 334, 381 S.E.2d 775 (1989)), disc. review denied, 357 N.C. 507, 587 S.E.2d 674 (2003). The trial court sustained Plaintiff's objection to the argument. Plaintiff did not request a curative instruction. Accordingly, Plaintiff is not entitled to a new trial. Plaintiff's argument is overruled.
Jury Instructions
Plaintiff argues the trial court erred in charging the jury as follows:
In addition, failure to document events in the medical records of a patient is not medical negligence in and of itself. And you may not render a verdict based on such failure to document unless you are satisfied by the greater weight of the evidence that the failure to document contributed in some way to the injury.
On appeal, this Court reviews a jury charge contextually and in its entirety, and the charge will be considered "to be sufficient if `it presents the law of the case in such manner as to leave no reasonable cause to believe the jury was misled or misinformed[.]'" Bass v. Johnson, 149 N.C. App. 152, 160, 560 S.E.2d 841, 847 (2002) (quoting Jones v. Satterfield Dev. Co., 16 N.C. App. 80, 86-87, 191 S.E.2d 435, 440, cert. denied, 282 N.C. 304, 192 S.E.2d 194 (1972)). The party asserting error in the charge "bears the burden of showing that the jury was misled[.]" Id. (citing Robinson v. Seaboard Sys. R.R., Inc., 87 N.C. App. 512, 524, 361 S.E.2d 909, 917 (1987), disc. review denied, 321 N.C. 474, 364 S.E.2d 924 (1988)). "`Under such a standard of review, it is not enough for the appealing party to show that error occurred in the jury instructions; rather, it must be demonstrated that such error was likely, in light of the entire charge, to mislead the jury.'" Id. (quoting Robinson, 87 N.C. App. at 524, 361 S.E.2d at 917).
Assuming arguendo that Plaintiff properly objected to the jury charge before the jury retired, see Wachovia Bank Trust Co. v. Guthrie, 67 N.C. App. 622, 626, 313 S.E.2d 603, 606 ("`Rule 10(b)(2) of our Rules of Appellate Procedure requiring objection to the charge before the jury retires is mandatory and not merely directory.'") (quoting State v. Fennell, 307 N.C. 258, 263, 297 S.E.2d 393, 396 (1982)), disc. review denied, 311 N.C. 407, 319 S.E.2d 280, cert. denied, 312 N.C. 90, 321 S.E.2d 909 (1984), there is no reasonable cause to believe the jury was misled or misinformed by the challenged instruction. In a case of alleged medical negligence, a plaintiff must offer evidence that establishes the following essential elements: "`(1) the standard of care [duty owed]; (2) breach of the standard of care; (3) proximate causation; and (4) damages.'" Clark v. Perry, 114 N.C. App. 297, 305, 442 S.E.2d 57, 61 (1994) (quoting Lowery v. Newton, 52 N.C. App. 234, 237, 278 S.E.2d 566, 570, disc. review denied, 303 N.C. 711, reconsideration denied, 304 N.C. 195, 291 S.E.2d 148 (1981)). Plaintiff's expert witness testified, inter alia, that Defendants' employees breached the standard of care by failing to document certain events in Ms. Grier's medical records. The trial court's charge properly instructed the jury that evidence of such an alleged breach of the standard of care is not medical negligence per se. Clark, supra. The challenged instruction was an accurate statement of the law, was given in context with the trial court's unchallenged instructions on negligence and proximate cause, and, considering the charge as a whole, could not have misled the jury. Plaintiff's argument is overruled, and the 13 March 2006 judgment is affirmed.
In light of this result, we need not reach cross-assignments of error advanced by Defendants.
DEFENDANTS' APPEAL
Defendants argue that the trial court erred in entering its 21 June 2006 order declining to hear Defendants' motion to tax the costs of the action against Plaintiff. In an opinion filed 21 August 2007, this Court reversed a trial court's order awarding costs and attorney's fees to a plaintiff which was entered after the defendant filed notice of appeal from the underlying judgment. McClure v. Cty. of Jackson, ___ N.C. App. ___, 648 S.E.2d 546 (2007). We stated that "[p]ending appeal, `the trial judge is [generally] functus officio,'" and without jurisdiction to enter such an order. Id. at ___, 648 S.E.2d at 550 (quoting Kirby Bldg. Sys., Inc. v. McNiel, 327 N.C. 234, 240, 393 S.E.2d 827, 831 (1990)). Accordingly, Defendants' argument is overruled, and the 21 June 2006 order of the trial court is affirmed.
For the reasons stated, Defendants' motion to dismiss Plaintiff's appeal is denied. Plaintiff's appeal from the 13 March 2006 judgment is dismissed in part, and the judgment is affirmed. The 21 June 2006 order is affirmed.
Plaintiff's appeal: dismissed in part, affirmed in part,
Defendant's appeal affirmed.
Judges McCULLOUGH and CALABRIA concur.
Report per Rule 30(e).