#### JERRY ELLISON, Executor of the Estate of Kate H. Ellison, Plaintiff v. GAMBILL OIL COMPANY, INC., J. GWYN GAMBILL, INCORPORATED, and JIM GAMBILL; GUNVANTPURI B. GOSAI and B&B MINI MART, INC.; and ARLIS TESTER d/b/a TESTERS GARAGE AND MUFFLER SHOP and/or TESTERS SHELL & MUFFLER SHOP, Defendants; J. GWYN GAMBILL, INCORPORATED, Third Party Plaintiff v. JEFF BARRETT d/b/a BARRETT PETROLEUM EQUIPMENT, Third Party Defendant RUDRAM ENTERPRISES, INC., Cross-Plaintiff-Intervenor v. J. GWYN GAMBILL, INCORPORATED, JIM GAMBILL, and JEFF BARRETT d/b/a BARRETT PETROLEUM EQUIPMENT

No. 541A07

(Filed 18 June 2009)

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, 186 N.C. App. 167, 650 S.E.2d 819 (2007), reversing both a judgment entered 31 August 2005, and an order denying a motion for judgment notwithstanding the verdict or a new trial entered 10 November 2005, by Judge Charles Lamm in Superior Court, Watauga County, and remanding for a new trial. Heard in the Supreme Court 17 November 2008. On 11 December 2008, this Court ex mero motu withdrew its previous order, dated 10 April 2008, and allowed plaintiff’s petition for discretionary review as to additional issues.

Sigmon, Clark, Mackie, Hutton, Hanvey & Ferrell, P.A., by Warren A. Hutton and Forrest A. Ferrell, for plaintiff-appellant.

The Reeves Law Firm, PLLC, by Jimmy D. Reeves and John B. “Jak” Reeves; and Walker & DiVenere, by Tamara C. DiVenere, for defendant-appellees J. Gwyn Gambill, Incorporated and Jim Gambill.

*365 di Santi Watson Capua & Wilson, by Frank C. Wilson, III, for defendant-appellees Gunvantpuri B. Gosai and B&B Mini Mart, Ine.

PER CURIAM.

The decision of the Court of Appeals is affirmed. Discretionary review was improvidently allowed as to the additional issues.

AFFIRMED; DISCRETIONARY REVIEW IMPROVIDENTLY ALLOWED.