#### GLORIA BARHAM, Administratrix of the Estate of BILLY MELVIN BARHAM, Deceased v. RODNEY J. HAWK, M.D. and HENDERSONVILLE EAR NOSE AND THROAT, P.A.

No. 461PA04

(Filed 3 March 2006)

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision of the Court of Appeals, 165 N.C. App. 708, 600 S.E.2d 1 (2004), vacating a judgment entered on 21 March 2002 by Judge Marlene Hyatt in Superior Court, Polk County, and remanding for a new trial. Heard in the Supreme Court 18 October 2005.

Blanchard, Jenkins, Miller, Lewis & Styers, P.A., by Robert O. Jenkins and E. Hardy Lewis, for plaintiff-appellee.

Shumaker, Loop & Kendrick, LLP, by S. Frederick Winiker, III and John D. Kocher, for defendant-appellants.

PER CURIAM.

Justice TIMMONS-GOODSON took no part in the consideration or decision of this case. The remaining members of the Court are equally divided, with three members voting to affirm and three members voting to reverse the decision of the Court of Appeals. Accordingly, the decision of the Court of Appeals is left undisturbed and stands without precedential value. See Crawford v. Commercial Union Midwest Ins. Co., 356 N.C. 609, 572 S.E.2d 781 (2002); Robinson v. Byrd, 356 N.C. 608, 572 S.E.2d 781 (2002).

AFFIRMED.