Opinion
Nos. 904SC770 904SC837
Filed 5 March 1991
Appeal and Error 559 (NCI4th) — medical malpractice — summary judgment for defendants — remanded for trial — second summary judgment — error The trial court erred by granting summary judgment for defendants in a medical malpractice action where summary judgment had previously been entered and the Court of Appeals had held that the evidence presented genuine issues of material fact and remanded for trial. While an appellate directive remanding a case for trial does not render the Rules of Civil Procedure inapplicable to the further proceedings in the case, in this case the trial court's second ruling on the existence of genuine issues of material fact is directly contrary to the earlier Court of Appeals holding. It is the rule in North Carolina that an additional forecast of evidence does not entitle a party to a second chance at summary judgment on the same issues, and defendants' contention that the second summary judgment motion dealt with new issues was also unavailing.
Am Jur 2d, Appeal and Error 962, 963.
APPEAL by plaintiff from orders entered 5 March 1990 and 30 April 1990 in ONSLOW County Superior Court by Judge Herbert O. Phillips. Heard in the Court of Appeals 12 February 1991.
Braswell Taylor, Attorneys, by Roland C. Braswell, Shelby Duffy Albertson, and Lisa G. Corbett, for plaintiff-appellant.
Marshall, Williams Gorham, by Lonnie B. Williams and Charles D. Meier, for defendants-appellees.
Judge GREENE concurring in the result.
Plaintiff filed this medical malpractice action on 7 April 1986 alleging negligence, fraud, and battery claims. Defendants moved for summary judgment on 11 July 1986. Summary judgment on all claims was entered on 29 July 1986. On appeal, this Court, in an unpublished opinion, held that the forecast of evidence presented to the trial court revealed that genuine issues of material fact remained as to whether either or both defendants had been negligent in their diagnoses of plaintiff's condition. We reversed as to that claim.
The case was remanded to the trial court, where defendants again moved for summary judgment. In support of this motion, they produced affidavits from each of them, and an affidavit from a doctor stating that the defendants had adhered to the standard of care in their diagnoses of plaintiff's ailments. Summary judgment was again entered in defendants' favor on 5 March 1990.
Plaintiff filed a motion to reconsider and a motion for "appropriate relief" on 15 March 1990. Plaintiff then noticed their appeal from the summary judgment order. The trial court ruled that it retained limited jurisdiction to hear plaintiff's 60 (b) motion, and indicated that the motion would have been denied had the case not been appealed. Plaintiff appeals from this order as well. On plaintiff's motion, these cases have been consolidated for review.
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 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.
Judge WYNN concurs.
Judge GREENE concurs in the result.