#### JAMES CREECH HERRING v. FOOD LION, L.L.C.

No. 28A06

(Filed 5 May 2006)

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, 175 N.C. App. —, 623 S.E.2d 281 (2005), affirming in part and reversing in part an order granting a new trial entered 9 August 2004 by Judge Russell J. Lanier, Jr. in Superior Court, Lenoir County. Heard in the Supreme Court 20 April 2006.

White & Allen, P.A., by Gregory E. Floyd, for plaintiff-appellant.

Poyner & Spruill LLP, by Timothy W. Wilson and Gregory S. Camp, for defendant-appellee.

PER CURIAM.

AFFIRMED.