Anderson v. Assimos11/22/2002
PUBLISHED
Appeal pursuant to N.C.G.S. ยง 7A-30(2) from the decision of a divided panel of the Court of Appeals, 146 N.C. App. 339, 553 S.E.2d 63 (2001), reversing and remanding an order of dismissal entered 14 December 1999 by Vosburgh, J., in Superior Court, Guilford County. Heard in the Supreme Court 10 September 2002.
The Court of Appeals concluded that Rule 9(j) of the North Carolina Rules of Civil Procedure violates Article I, Section 18 of the North Carolina Constitution and the Equal Protection Clauses of the North Carolina and United States Constitutions. Anderson v. Assimos, 146 N.C. App. 339, 553 S.E.2d 63 (2001).
A constitutional issue not raised at trial will generally not be considered for the first time on appeal. State v. Nobles, 350 N.C. 483, 495, 515 S.E.2d 885, 893 (1999); Porter v. Suburban Sanitation Serv., Inc., 283 N.C. 479, 490, 196 S.E.2d 760, 767 (1973). Furthermore, the courts of this State will avoid constitutional questions, even if properly presented, where a case may be resolved on other grounds. State v. Crabtree, 286 N.C. 541, 543, 212 S.E.2d 103, 105 (1975); see Rice v. Rigsby, 259 N.C. 506, 512, 131 S.E.2d 469, 473 (1963).
This Court may exercise its supervisory power to consider constitutional questions not properly raised in the trial court, but only in exceptional circumstances. See, e.g., State v. Elam, 302 N.C. 157, 161, 273 S.E.2d 661, 664 (1981); Rice, 259 N.C. at 511-12, 131 S.E.2d at 472-73; see also N.C. R. App. P. 2. Even so, constitutional analysis always requires thorough examination of all relevant facts. State v. Fayetteville St. Christian Sch., 299 N.C. 351, 359, 261 S.E.2d 908, 914, aff'd per curiam on reh'g, 299 N.C. 731, 265 S.E.2d 387, and appeal dismissed, 449 U.S. 807, 66 L. Ed. 2d 11 (1980). Thus, a constitutional question is addressed "only when the issue is squarely presented upon an adequate factual record and only when resolution of the issue is necessary." Id. To be properly addressed, a constitutional issue must be "definitely drawn into focus by plaintiff's pleadings." Hudson v. Atlantic Coastline R.R. Co., 242 N.C. 650, 667, 89 S.E.2d 441, 453 (1955), cert. denied, 351 U.S. 949, 100 L. Ed. 1473 (1956). If the factual record necessary for a constitutional inquiry is lacking, "an appellate court should be especially mindful of the dangers inherent in the premature exercise of its jurisdiction." Fayetteville St., 299 N.C. at 358-59, 261 S.E.2d at 913.
Plaintiff's complaint asserts res ipsa loquitur as the sole basis for the negligence claim. Because the pertinent allegations have not been withdrawn or amended, the pleadings have a binding effect as to the underlying theory of plaintiff's negligence claim. See Davis v. Rigsby, 261 N.C. 684, 686, 136 S.E.2d 33, 34 (1964); Bratton v. Oliver, 141 N.C. App. 121, 125, 539 S.E.2d 40, 43, (2000), disc. rev. denied, 353 N.C. 369, 547 S.E.2d 808 (2001). Moreover, our review of the record shows that at the hearing in this matter plaintiff represented to the trial court that her negligence claim was based solely on res ipsa loquitur. This judicial admission is "binding in every respect." Estrada v. Burnham, 316 N.C. 318, 324, 341 S.E.2d 538, 543 (1986). Having made this representation, plaintiff cannot now assert a contradictory position, Davis, 261 N.C. at 686, 136 S.E.2d at 34, or "`swap horses between courts in order to get a better mount,'" State v. Sharpe, 344 N.C. 190, 194, 473 S.E.2d 3, 5 (1996) (quoting Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934)). Therefore, for purposes of this action, plaintiff's negligence claim is based solely on res ipsa loquitur.
Res ipsa loquitur claims are normally based on facts that permit a
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