Jones v. Asheville Radiological Group, 350 N.C. 654 (1999)

July 23, 1999 · Supreme Court of North Carolina · No. 242A98

350 N.C. 654

MARGARET K. JONES v. ASHEVILLE RADIOLOGICAL GROUP, P.A., NATHAN WILLIAMS, M.D., TIMOTHY GALLAGHER, M.D., MEDICAL MUTUAL INSURANCE COMPANY OF NORTH CAROLINA, and LUCI A. LAYTON

No. 242A98

(Filed 23 July 1999)

Appeal by defendants pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, 129 N.C. App. 449, 500 S.E.2d 740 (1998), affirming in part and reversing and remanding in part judgments entered by Ferrell, J., on 25 February 1997 and 3 March 1997 in Superior Court, Buncombe County. Heard in the Supreme Court 12 January 1999.

Hyler Lopez & Walton, P.A., by George B. Hyler, Jr., and Robert J. Lopez, for plaintiff-appellee.

Dameron & Burgin, by Charles E. Burgin and Sharon L. Parker, for defendant-appellants Asheville Radiological Group, P.A., and Timothy Gallagher, M.D.

Kennedy Covington Lobdell & Hickman, L.L.P., by James P. Cooney, III, for defendant-appellant Nathan Williams, M.D.

Wilson & Iseman, L.L.P, by G. Gray Wilson and Elizabeth Horton, on behalf of the North Carolina Association of Defense Attorneys, amicus curiae.

PER CURIAM.

We remand this case to the Court of Appeals to modify its opinion in Jones v. Asheville Radiological Group, 129 N.C. App. 449, 500 S.E.2d 740 (1998). First, the majority holding is found within an opinion authored by Judge Greene titled “concurrence and dissent.” Because of the potential confusion to the bench and bar, this opinion format is unacceptable and must be modified on remand. Second, the Court of Appeals reversed in part the judgment of the trial court but, in so doing, failed to identify precisely which, if any, of plaintiffs claims should have survived defendants’ motion for summary judgment in the trial court.

Accordingly, we remand the decision of the Court of Appeals to that court for issuance of an opinion consistent with this opinion.

REMANDED WITH INSTRUCTIONS.