Metts v. Piver

401 S.E.2d 407 (1991) 102 N.C. App. 98 William Durwood METTS, Plaintiff, v. Doctor James D. PIVER and Doctor Charles T. Streeter, Sr., Defendants. Nos. 904SC770 & 904SC837. Court of Appeals of North Carolina. March 5, 1991. Braswell & Taylor, by Roland C. Braswell, Shelby Duffy Albertson, and Lisa G. Corbett, Goldsboro, for plaintiff-appellant. Marshall, Williams & Gorham by Lonnie B. Williams and Charles D. Meier, Wilmington, for defendants-appellees. WELLS, Judge. This 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 In our unpublished opinion filed 3 November 1987, we held that the evidence presented to the court evidenced genuine issues of material fact as to the negligence of each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's 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. The 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's 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's 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). In this case, the trial court's 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 "unending series of motions for summary judgment could ensue so long as the moving party presented some additional evidence at the hearing on *409 each successive motion." 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). Defendants' 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 "they incorrectly diagnosed the plaintiff's gallbladder problem during the `time period' as being pancreatitis." 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's claims. The trial court necessarily had the issue of defendants' possible negligence in diagnoses before it then, and we reversed its determination. The trial court's order now before us passes on this same question and is contrary to the decision and mandate of this Court. It is thus reversed. Plaintiff has also appealed from the trial court's 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. In case no. 904SC770, the appeal is Dismissed. In case no. 904SC837, the order of the trial court is Reversed. WYNN, J., concurs. GREENE, J., concurs in the result. GREENE, Judge, concurring in the result. I 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's conclusion that the issue of the defendants' alleged negligent diagnoses was before the trial court at the hearing on the defendants' 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' 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. Nonetheless, I would reverse the trial court's entry of summary judgment. The defendants produced affidavits at the second summary judgment hearing which stated that they had "adhered to the standard of care in their diagnoses of plaintiff's ailments." 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. However, the defendants nonetheless contend that summary judgment was appropriate because the plaintiff did not introduce evidence that the defendants' negligent diagnoses were the proximate causes of his injuries. The defendants rely on Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 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's claim is sufficient to shift the burden to the non-movant to provide evidence of each element of his claim. Id. at 322-24, 106 S.Ct. at 2552-53, 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's 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 *410 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's order of summary judgment.