{ "id": 8522365, "name": "WILLIAM DURWOOD METTS, Plaintiff v. DOCTOR JAMES D. PIVER and DOCTOR CHARLES T. STREETER, SR., Defendants", "name_abbreviation": "Metts v. Piver", "decision_date": "1991-03-05", "docket_number": "Nos. 904SC770; 904SC837", "first_page": "98", "last_page": "103", "citations": [ { "type": "official", "cite": "102 N.C. App. 98" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "276 S.E.2d 914", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "302 N.C. 217", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564489, 8564527, 8564562, 8564600, 8564633 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/302/0217-01", "/nc/302/0217-02", "/nc/302/0217-03", "/nc/302/0217-04", "/nc/302/0217-05" ] }, { "cite": "272 S.E.2d 374", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "49 N.C. App. 631", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523085 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/49/0631-01" ] }, { "cite": "374 S.E.2d 160", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "92 N.C. App. 161", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526555 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc-app/92/0161-01" ] }, { "cite": "326 S.E.2d 107", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "73 N.C. App. 319", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523776 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/73/0319-01" ] }, { "cite": "218 S.E.2d 218", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "27 N.C. App. 122", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550734 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc-app/27/0122-01" ] }, { "cite": "231 S.E.2d 607", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "291 N.C. 630", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558856 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/291/0630-01" ] }, { "cite": "247 S.E.2d 17", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "37 N.C. App. 732", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554878 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/37/0732-01" ] }, { "cite": "152 S.E.2d 199", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "268 N.C. 720", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565339 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/268/0720-01" ] }, { "cite": "374 S.E.2d 584", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 1 }, { "cite": "323 N.C. 623", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2563557, 2560313, 2565768, 2560333, 2560473 ], "year": 1988, "opinion_index": 1, "case_paths": [ "/nc/323/0623-04", "/nc/323/0623-05", "/nc/323/0623-03", "/nc/323/0623-02", "/nc/323/0623-01" ] }, { "cite": "372 S.E.2d 94", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 1 }, { "cite": "91 N.C. App. 362", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525613 ], "year": 1988, "opinion_index": 1, "case_paths": [ "/nc-app/91/0362-01" ] }, { "cite": "395 S.E.2d 675", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 1 }, { "cite": "327 N.C. 426", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2495140, 2494919, 2493403, 2493532, 2495199 ], "year": 1990, "opinion_index": 1, "case_paths": [ "/nc/327/0426-03", "/nc/327/0426-01", "/nc/327/0426-04", "/nc/327/0426-05", "/nc/327/0426-02" ] }, { "cite": "393 S.E.2d 134", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "136-37" } ], "opinion_index": 1 }, { "cite": "99 N.C. App. 255", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522144 ], "year": 1990, "pin_cites": [ { "page": "260" } ], "opinion_index": 1, "case_paths": [ "/nc-app/99/0255-01" ] }, { "cite": "329 S.E.2d 355", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "363" } ], "opinion_index": 1 }, { "cite": "313 N.C. 338", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4725019 ], "year": 1985, "pin_cites": [ { "page": "350" } ], "opinion_index": 1, "case_paths": [ "/nc/313/0338-01" ] }, { "cite": "477 U.S. 317", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6207800 ], "weight": 4, "year": 1986, "pin_cites": [ { "page": "322-24" }, { "page": "273-74" } ], "opinion_index": 1, "case_paths": [ "/us/477/0317-01" ] } ], "analysis": { "cardinality": 505, "char_count": 9977, "ocr_confidence": 0.733, "pagerank": { "raw": 1.0150159946786432e-07, "percentile": 0.5432139093823617 }, "sha256": "9f53d7ac1283cce29cb76b107a8942a8bbbdc7bcc884fef537b4736ebbe7e2b6", "simhash": "1:a5cb5c2b2d57b470", "word_count": 1642 }, "last_updated": "2023-07-14T21:20:04.252791+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge WYNN concurs.", "Judge GREENE concurs in the result." ], "parties": [ "WILLIAM DURWOOD METTS, Plaintiff v. DOCTOR JAMES D. PIVER and DOCTOR CHARLES T. STREETER, SR., Defendants" ], "opinions": [ { "text": "WELLS, Judge.\nThis case is before this Court for the second time after a trial court has entered an order granting summary judgment for defendants. In our unpublished opinion filed 3 November 1987, we held that the evidence presented to the court evidenced genuine issues of material fact as to the negligence of each defendant in failing to diagnose plaintiff\u2019s condition and remanded the case for trial on this issue. Defendants again moved for and were granted summary judgment on this issue and no trial was ever held. We hold that these proceedings violated our mandate, and reverse.\nThe general rule is that an inferior court must follow the mandate of an appellate court in a case without variation or departure. D & W Inc. v. City of Charlotte, 268 N.C. 720, 152 S.E.2d 199 (1966). However, an appellate directive remanding a case for trial does not render the Rules of Civil Procedure inapplicable to the further proceedings in the case. Britt v. Allen, 37 N.C. App. 732, 247 S.E.2d 17 (1978). In Britt, we affirmed the entry of an order of summary judgment following a Supreme Court remand for trial de novo. See Britt v. Allen, 291 N.C. 630, 231 S.E.2d 607 (1977). The Supreme Court did not rule, however, on the existence of a genuine issue of material fact, or the sufficiency of the evidence to take the case to a jury. It affirmed the trial court\u2019s discretionary authority to set aside a jury verdict as being contrary to the evidence and order a new trial, and in fact reversed this Court\u2019s holding passing on the sufficiency of this evidence as improper. See Britt v. Allen, 27 N.C. App. 122, 218 S.E.2d 218 (1975). The law of the case doctrine applies only to those questions actually passed on by the appellate court which were necessary to its opinion. See Southland Associates Realtors, Inc. v. Miner, 73 N.C. App. 319, 326 S.E.2d 107 (1985).\nIn this case, the trial court\u2019s ruling on the existence of a genuine issue of material fact is directly contrary to our earlier holding. While defendants claim that they forecast new evidence, we do not perceive this to be determinative. It is the rule in this State that an additional forecast of evidence does not entitle a party to a second chance at summary judgment on the same issues. See Iverson v. TM One, Inc., 92 N.C. App. 161, 374 S.E.2d 160 (1988). Were it otherwise, an \u201cunending series of motions for summary judgment could ensue so long as the moving party presented some additional evidence at the hearing on each successive motion.\u201d Carr v. Great Lakes Carbon Corp., 49 N.C. App. 631, 272 S.E.2d 374 (1980), disc. review denied, 302 N.C. 217, 276 S.E.2d 914 (1981).\nDefendants\u2019 contention that this summary judgment motion dealt with new issues is also unavailing. In the amended complaint, plaintiff alleged that defendants were negligent in that \u201cthey incorrectly diagnosed the plaintiff\u2019s gallbladder problem during the \u2018time period\u2019 as being pancreatitis.\u201d Defendants moved for and were granted summary judgment in part on the grounds that there was no genuine issue as to any material fact and that they were entitled to judgment as a matter of law as to all of plaintiff\u2019s claims. The trial court necessarily had the issue of defendants\u2019 possible negligence in diagnoses before it then, and we reversed its determination. The trial court\u2019s order now before us passes on this same question and is contrary to the decision and mandate of this Court. It is thus reversed.\nPlaintiff has also appealed from the trial court\u2019s ruling on his motion pursuant to Rule 60(b) of the North Carolina Rules of Civil Procedure. Given our disposition of the appeal from the order of summary judgment, we dismiss this appeal as moot.\nIn case No. 904SC770, the appeal is\nDismissed.\nIn case No. 904SC837, the order of the trial court is\nReversed.\nJudge WYNN concurs.\nJudge GREENE concurs in the result.", "type": "majority", "author": "WELLS, Judge." }, { "text": "Judge GREENE\nconcurring in the result.\nI agree with the majority that in North Carolina, after a party moves for summary judgment on an issue, and the motion is allowed but subsequently reversed on appeal, the party is precluded on remand from making a second motion for summary judgment on the same issue. I disagree, however, with the majority\u2019s conclusion that the issue of the defendants\u2019 alleged negligent diagnoses was before the trial court at the hearing on the defendants\u2019 first motion for summary judgment. At the first hearing, the defendants did not present any evidence in support of its summary judgment motion relating to the issue of the defendants\u2019 alleged negligent diagnoses. Therefore, the negligent diagnoses issue was not before the trial court at the first hearing, and on remand the defendants were entitled to raise that issue as a basis for supporting their new motion for summary judgment.\nNonetheless, I would reverse the trial court\u2019s entry of summary judgment. The defendants produced affidavits at the second summary judgment hearing which stated that they had \u201cadhered to the standard of care in their diagnoses of plaintiff\u2019s ailments.\u201d The plaintiff responded with the affidavits of Dr. George Podgorny wherein he testified that the defendants had failed to meet the applicable standard of care. Accordingly, a genuine issue of material fact exists on the issue thereby rendering summary judgment improper.\nHowever, the defendants nonetheless contend that summary judgment was appropriate because the plaintiff did not introduce evidence that the defendants\u2019 negligent diagnoses were the proximate causes of his injuries. The defendants rely on Celotex Corp. v. Catrett, 477 U.S. 317, 91 L.Ed.2d 265 (1986), as support for this argument. Celotex appears to stand for the proposition that the mere motion for summary judgment unsupported by evidence negating the non-movant\u2019s claim is sufficient to shift the burden to the non-movant to provide evidence of each element of his claim. Id. at 322-24, 91 L.Ed.2d at 273-74. North Carolina is not bound by Celotex. North Carolina has chosen instead to require the non-movant to produce evidence demonstrating the existence of a genuine issue of material fact only with respect to issues raised by the movant and supported by the movant\u2019s evidence. See Rorrer v. Cooke, 313 N.C. 338, 350, 329 S.E.2d 355, 363 (1985); Clark v. Brown, 99 N.C. App. 255, 260, 393 S.E.2d 134, 136-37, disc. rev. denied, 327 N.C. 426, 395 S.E.2d 675 (1990). I furthermore do not find, as the defendants contend, that Evans v. Appert, 91 N.C. App. 362, 372 S.E.2d 94, disc. rev. denied, 323 N.C. 623, 374 S.E.2d 584 (1988), is consistent with Celotex. Instead, I read Evans as consistent with Rorrer, and to the extent that Evans is inconsistent with Rorrer, Rorrer controls. Here, the defendants did not present evidence in support of their motion for summary judgment regarding the issue of proximate cause, and therefore, the plaintiff, as non-movant, was not required to address the issue. Accordingly, I would reverse the trial court\u2019s order of summary judgment.", "type": "concurrence", "author": "Judge GREENE" } ], "attorneys": [ "Braswell & Taylor, Attorneys, by Roland C. Braswell, Shelby Duffy Albertson, and Lisa G. Corbett, for plaintiff-appellant.", "Marshall, Williams & Gorham, by Lonnie B. Williams and Charles D. Meier, for defendants-appellees." ], "corrections": "", "head_matter": "WILLIAM DURWOOD METTS, Plaintiff v. DOCTOR JAMES D. PIVER and DOCTOR CHARLES T. STREETER, SR., Defendants\nNos. 904SC770 904SC837\n(Filed 5 March 1991)\nAppeal and Error \u00a7 559 (NCI4th)\u2014 medical malpractice \u2014 summary judgment for defendants \u2014 remanded for trial \u2014 second summary judgment \u2014 error\nThe trial court erred by granting summary judgment for defendants in a medical malpractice action where summary judgment had previously been entered and the Court of Appeals had held that the evidence presented genuine issues of material fact and remanded for trial. While an appellate directive remanding a case for trial does not render the Rules of Civil Procedure inapplicable to the further proceedings in the case, in this case the trial court\u2019s second ruling on the existence of genuine issues of material fact is directly contrary to the earlier Court of Appeals holding. It is the rule in North Carolina that an additional forecast of evidence does not entitle a party to a second chance at summary judgment on the same issues, and defendants\u2019 contention that the second summary judgment motion dealt with new issues was also unavailing.\nAm Jur 2d, Appeal and Error \u00a7\u00a7 962, 963.\nJudge GREENE concurring in the result.\nAPPEAL by plaintiff from orders entered 5 March 1990 and 30 April 1990 in ONSLOW County Superior Court by Judge Herbert 0. Phillips. Heard in the Court of Appeals 12 February 1991.\nPlaintiff filed this medical malpractice action on 7 April 1986 alleging negligence, fraud, and battery claims. Defendants moved for summary judgment on 11 July 1986. Summary judgment on all claims was entered on 29 July 1986. On appeal, this Court, in an unpublished opinion, held that the forecast of evidence presented to the trial court revealed that genuine issues of material fact remained as to whether either or both defendants had been negligent in their diagnoses of plaintiff\u2019s condition. We reversed as to that claim.\nThe case was remanded to the trial court, where defendants again moved for summary judgment. In support of this motion, they produced affidavits from each of them, and an affidavit from a doctor stating that the defendants had adhered to the standard of care in their diagnoses of plaintiff\u2019s ailments. Summary judgment was again entered in defendants\u2019 favor on 5 March 1990.\nPlaintiff filed a motion to reconsider and a motion for \u201cappropriate relief\u201d on 15 March 1990. Plaintiff then noticed their appeal from the summary judgment order. The trial court ruled that it retained limited jurisdiction to hear plaintiff\u2019s 60(b) motion, and indicated that the motion would have been denied had the case not been appealed. Plaintiff appeals from this order as well. On plaintiff\u2019s motion, these cases have been consolidated for review.\nBraswell & Taylor, Attorneys, by Roland C. Braswell, Shelby Duffy Albertson, and Lisa G. Corbett, for plaintiff-appellant.\nMarshall, Williams & Gorham, by Lonnie B. Williams and Charles D. Meier, for defendants-appellees." }, "file_name": "0098-01", "first_page_order": 128, "last_page_order": 133 }