Kaczala v. Richardson

EXUM, Justice. The Court of Appeals’ majority saw the issue before it as whether on the first appeal it awarded “a partial new trial.” Realizing that it could “in a proper case,” direct a partial new trial it held that since the issues to be retried were not specifically and expressly designated in its first opinion, a “partial new trial” was not ordered. The majority then concluded that it was proper for Richardson’s counterclaim and cross-claim to be retried and that judgment should have been entered on the verdict. Because, we believe, the Court of Appeals’ majority erroneously identified the issue before it, it reached an erroneous [93] conclusion. The issue, as indicated by Judge Britt in his dissent, was not whether fewer than all issues on any given claim ought to be retried, but whether Richardson’s claim, in its entirety, against the plaintiff and third-party defendant ought to be retried. When the question is thus put, it is clear that the answer is “No.” Richardson did not appeal from an adverse determination of his claim in the first trial. He was, consequently, bound by this determination. Kaczala’s and the City’s appeals from an adverse determination at the first trial of their claims did not give the Court of Appeals jurisdiction to consider or grant a new trial on Richardson’s claim. Henderson v. Matthews, 290 N.C. 87, 224 S.E. 2d 612 (1976) and cases therein cited. That Richardson’s claim was barred in the retrial did not preclude him from retrying all of the issues in the claims asserted against him, including the issue of the contributory negligence of Kaczala. Judge Tillery, consequently, was correct in refusing to enter a judgment in favor of Richardson and in entering a judgment denying recovery to all parties. The Court of Appeals erred in reversing his judgment. The decision of the Court of Appeals is, therefore, Reversed.