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Gregory v. Kilbride6/18/2002
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Here, Dr. Kilbride moved for summary judgment based on qualified immunity. The trial court denied the motion for summary judgment. Dr. Kilbride did not appeal the denial of the motion for summary judgment based on qualified immunity and the case proceeded to trial. The jury returned a verdict in favor of Dr. Kilbride. Based on the foregoing we hold that the trial court's denial of Dr. Kilbride's motion for summary judgment does not constitute reversible error where, as here, there was a final judgment in his favor rendered at the trial on the merits.
VIII.
Dr. Kilbride argues that the trial court erred in denying his motion to dismiss based on his claim of sovereign immunity because: (A) plaintiff did not adequately plead a cause of action against Dr. Kilbride individually; (B) the trial court was without jurisdiction to decide claims for negligence against a defendant sued in his official capacity; and (C) plaintiff has failed to adequately plead a cause of action against Dr. Kilbride as a public official giving rise to individual liability.
Based on our ruling in Section VII we do not deem it necessary to further address the cross assignments of error stated herein.
NO ERROR.
Judge TIMMONS-GOODSON concurs.
Judge GREENE dissents with a separate opinion.
GREENE, Judge, dissenting.
I believe the evidence before the trial court at the summary judgment hearing entitled Dr. Kilbride to a judgment in his favor based on section 122C-210.1 immunity. I, therefore, dissent.
Summary Judgment
While the majority refuses to address the correctness of the trial court's denial of Dr. Kilbride's motion for summary judgment, I believe the issue is properly before this Court and must be addressed.
Ordinarily, an improper "`denial of a motion for summary judgment is not reversible error when the case has proceeded to trial and has been determined on the merits by the trier of the facts.'" Concrete Serv. Corp. v. Investors Group, Inc., 79 N.C. App. 678, 680, 340 S.E.2d 755, 757 (citation omitted), cert. denied, 317 N.C. 333, 346 S.E.2d 137 (1986). This is so because granting "`a review of the denial of the summary judgment motion after a final judgment on the merits . . . would mean that a party who prevailed at trial after a complete presentation of evidence by both sides with cross-examination could be deprived of a favorable verdict,'" thus allowing "`a verdict reached after the presentation of all the evidence to be overcome by a limited forecast of the evidence.'" Id. at 681, 340 S.E.2d at 757 (citation omitted).
In this case, the logic behind refusing to review denials of summary judgment motions does not apply as Dr. Kilbride, the party moving for summary judgment, received a favorable verdict after a trial on the merits. In addition, Dr. Kilbride has not appealed the trial court's denial of his summary judgment motion but has cross-assigned error to that denial because it deprives him "of an alternative basis in law for supporting the judgment." See N.C.R. App. P. 10(d). Thus, if summary judgment had been granted in favor of Dr. Kilbride, the result would have been the same as the trial court's final judgment.
With respect to Dr. Kilbride's ability to appeal the denial of his summary judgment motion, this Court has specifically held that the denial of a summary judgment motion raising a qualified immunity defense affects a substantial right and is immediately appealable. Rousselo v. Starling, 128 N.C. App. 439, 443, 495 S.E.2d 725, 728, appeal dismissed and disc. review denied, 348 N.C. 74, 505 S.E.2d 876 (1998). Even though Dr. Kilbride wa
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