Brooks v. Wal-Mart Stores, Inc., COA99-430.

CourtCourt of Appeal of North Carolina (US)
Citation139 NC App. 637,535 S.E.2d 55
Decision Date29 August 2000
Docket NumberNo. COA99-430.,COA99-430.
PartiesRobert F. BROOKS, Plaintiff, v. WAL-MART STORES, INC., Defendant.

535 S.E.2d 55
139 NC App.

Robert F. BROOKS, Plaintiff,

No. COA99-430.

Court of Appeals of North Carolina.

August 29, 2000.

535 S.E.2d 57
Alexander, Ralston, Speckhard & Speckhard, L.L.P., by Stanley E. Speckhard, Greensboro, for plaintiff-appellee

Smith, Helms, Mulliss & Moore, L.L.P., by James G. Exum, Jr., Caroline H. Lock, John J. Korzen, and Amie Flowers Carmack, Greensboro, for defendant-appellant Wal-Mart Stores, Inc.

JOHN, Judge.

Defendant Wal-Mart Stores, Inc. (Wal-Mart) appeals judgment entered upon jury verdict in favor of plaintiff Robert F. Brooks. We conclude the trial court committed no error.

Pertinent facts and procedural history include the following: Defendant James L. Deterding, M.D. (Dr. Deterding), an employee of defendant Carolina Kidney Associates, P.A. (CKA), began treating plaintiff in October 1991. On 11 September 1992, Dr. Deterding prescribed the drug Prednisone (the

535 S.E.2d 58
prescription) for plaintiff's loss of kidney function. Dr. Deterding intended that the prescription reflect a dosage of eighty milligrams (80 mg) per day

Plaintiff presented the prescription to pharmacist Kimberly Stutts (Stutts) at Wal-Mart's Asheboro, North Carolina, store on Saturday, 12 September 1992. According to Stutts, the prescription indicated plaintiff was to take 80 mg of Prednisone four times per day, a daily total of three hundred twenty milligrams (320 mg). Stutts stated she telephoned CKA to inquire whether 320 mg was the intended dosage, and that a female answered the call, placed Stutts on hold, and subsequently returned and confirmed the dosage level as 320 mg. Stutts thereupon filled the prescription at 320 mg per day, and it was subsequently refilled at the same level on 26 September 1992 by pharmacist Charles Adams (Adams) in Wal-Mart's Greenville, South Carolina, pharmacy.

In later testimony, Dr. Ronald Garber, a nephrologist and president of CKA, maintained CKA was "never" open on Saturdays, that "no one answer[ed the office phone] line" on Saturdays, and that an answering machine activated on Friday afternoons received all weekend calls and directed the caller to contact an answering service if the "call [wa]s of an urgent nature."

On 28 September 1992, plaintiff was admitted to a hospital emergency room in Greenswood, South Carolina, and diagnosed with thrush, a fungal infection of the throat. Plaintiff continued ingesting 320 mg daily for twenty-three days until a 5 October 1992 follow-up visit with Dr. Deterding revealed plaintiff had been taking four times the amount of Prednisone intended by Dr. Deterding.

Plaintiff subsequently contracted nocardia, a bacterial infection of the lungs, and aspergillosis, a fungal infection of the brain, resulting in numerous operations and hospital stays. In a videotaped deposition taken 24 April 1998 and presented at trial, Dr. David Robirds testified plaintiff had suffered permanent kidney failure and would "require dialysis for the rest of his life."

Plaintiff filed the instant suit 11 September 1995, alleging negligence by Dr. Deterding in writing and by Wal-Mart in dispensing the prescription, and claiming such negligence resulted in injuries to plaintiff which were "permanent and disabling." Dr. Deterding and CKA answered jointly 27 November 1995, denying negligence and alleging plaintiff had been contributorily negligent in failing to follow Dr. Deterding's verbal instructions to take 80 mg of Prednisone per day.

Dr. Deterding and CKA also cross-claimed against Wal-Mart, asserting that any negligence on the part of Dr. Deterding or CKA was insulated by the negligence of Wal-Mart. By answer filed 28 November 1995, Wal-Mart denied negligence, pleaded plaintiff's contributory negligence in bar of his claim, and cross-claimed for contribution and indemnity against Dr. Deterding and CKA.

Trial of the action commenced 7 May 1998. At the close of plaintiff's evidence, each defendant moved for directed verdict pursuant to N.C.G.S. § 1A-1, Rule 50(a) (1999), which motions were denied by the trial court 18 May 1998. On 19 May 1998, plaintiff's attorney informed the trial court a settlement (the settlement) had been reached with Dr. Deterding and CKA in the amount of $10,000.00. Following a hearing, the court entered orders dismissing with prejudice plaintiff's claims, as well as Wal-Mart's cross-claims, against Dr. Deterding and CKA (the 19 May 1998 order).

The jury verdict returned 22 May 1998 stated plaintiff was injured by the negligence of Wal-Mart and was not contributorily negligent. The jury awarded plaintiff $2,500,000.00 in compensatory damages and, upon finding Wal-Mart's negligence was accompanied by aggravated conduct, awarded plaintiff $1.00 in punitive damages. The trial court entered judgment 2 June 1998 reflecting the verdict and taxing costs to Wal-Mart.

Wal-Mart moved for judgment notwithstanding the verdict (JNOV), see N.C.G.S. § 1A-1, Rule 50(b) (1999), for new trial, see N.C.G.S. § 1A-1, Rule 59(a) (1999), and to alter or amend the judgment, see N.C.G.S. § 1A-1, Rule 59(e) (1999). The trial court granted the latter motion 3 June 1998 so as to allow credit for the $10,000.00 settlement

535 S.E.2d 59
with Dr. Deterding and CKA against plaintiff's compensatory damage award, the judgment thereby reflecting that plaintiff was entitled to recover $2,490,000.00 from Wal-Mart. Wal-Mart's remaining motions were denied 29 June 1998, and it timely appealed both the denial of its motions and the court's 2 June 1998 judgment. Wal-Mart subsequently retained its current appellate counsel to pursue the appeal in lieu of trial counsel

Wal-Mart originally asserted thirty-four assignments of error, presently condensed into four issues for our review. Wal-Mart first attacks the trial court's 19 May 1998 order, arguing the trial court erred by finding therein that the settlement was reached in good faith and by failing to conduct an "evidentiary hearing" on that issue.

Preliminarily, we note plaintiff objects that Wal-Mart did not "serve Dr. Deterding or CKA with its motion for a new trial ... or with notice of appeal," and did not take notice of appeal from the 19 May 1998 order. See N.C.R.App. P. 3(d) (Rule 3(d)) ("notice of appeal ... shall designate the judgment or order from which appeal is taken"). Accordingly, plaintiff continues, the 19 May 1998 order is not properly before this Court for review.

However, plaintiff cites no authority supporting his position that failure to serve Dr. Deterding and CKA "precludes a new trial," the ultimate remedy sought by Wal-Mart on appeal, and we thus do not discuss plaintiff's contention in that regard. See Metric Constructors, Inc. v. Industrial Risk Insurers, 102 N.C.App. 59, 64, 401 S.E.2d 126, 129 ("[b]ecause the appellee cites no authority for this argument, it is deemed abandoned"), aff'd, 330 N.C. 439, 410 S.E.2d 392 (1991); cf. N.C.R.App. P. 28(b)(5) (assignments of error for which no authority is cited will be taken as abandoned).

Further, although Wal-Mart's notice of appeal did not reference the 19 May 1998 order as required by Rule 3(d), N.C.G.S. § 1-278 (1999) provides "another avenue by which an appellate court may obtain jurisdiction to review an interlocutory order" absent compliance with Rule 3(d). Floyd and Sons, Inc. v. Cape Fear Farm Credit, 350 N.C. 47, 51, 510 S.E.2d 156, 158-59 (1999).

Appellate review pursuant to G.S. § 1-278 is proper under the following conditions:

(1) the appellant must have timely objected to the order; (2) the order must be interlocutory and not immediately appealable; and (3) the order must have involved the merits and necessarily affected the judgment.

Gaunt v. Pittaway, 135 N.C.App. 442, 445, 520 S.E.2d 603, 606 (1999).

All three prerequisites have been met herein. First, Wal-Mart registered its objection at trial to the 19 May 1998 order when entered, thus preserving the issue for appellate review. See N.C.R.App. P. 10(b)(1). Further, in its notice of appeal, Wal-Mart specifically appealed denial of its new trial motion, predicated in part upon the trial court's failure to prohibit the settlement and to conduct an evidentiary hearing upon whether it had been reached in good faith. In short, plaintiff indisputably was put on notice that Wal-Mart intended to question on appeal the 19 May 1998 dismissal of Dr. Deterding and CKA from the case, and was not prejudiced by Wal-Mart's failure to include the 19 May 1998 order in its formal notice of appeal. See Floyd, 350 N.C. at 52, 510 S.E.2d at 159 ("it is quite clear from the record that plaintiffs sought appeal" of order not specifically appealed pursuant to Rule 3(d)); see also Smith v. Insurance Co., 43 N.C.App. 269, 274, 258 S.E.2d 864, 867 (1979) (mistake in designating judgment appealed from should not result in loss of appeal if intent to appeal from specific judgment may fairly be inferred from notice and appellee is not misled by mistake).

Second, the orders dismissing Dr. Deterding and CKA were interlocutory orders, as they were

made during the pendency of [the] action [and] d[id] not dispose of the case, but le[ft] it for further action by the trial court in order to settle and determine the entire controversy.

Veazey v. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950). Interlocutory orders are not immediately appealable

535 S.E.2d 60
unless the order deprives the appellant of a substantial right which he will lose if the order is not reviewed before the final judgment.

Floyd, 350 N.C. at 51, 510 S.E.2d at 158.

In the case sub judice, Wal-Mart's potential right of contribution from Dr. Deterding and CKA was indisputably affected by dismissal of each from the case. However, the right to contribution is "adequately protected by exception to entry of the interlocutory order," J & B Slurry Seal Co. v. Mid-South Aviation, Inc., 88 N.C.App. 1, 6, 362 S.E.2d 812, 815 (1987), in that any claim of contribution may be...

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