# Metts v. Piver > Court of Appeals of North Carolina · March 5, 1991 · 102 N.C. App. 98 URL: https://www.frixlaw.com/law-library/cases/9574561 ## Case - **Full name:** WILLIAM DURWOOD METTS, Plaintiff v. DOCTOR JAMES D. PIVER and DOCTOR CHARLES T. STREETER, SR., Defendants - **Court:** Court of Appeals of North Carolina - **Decided:** March 5, 1991 - **Citations:** 102 N.C. App. 98; 401 S.E.2d 407; 1991 N.C. App. LEXIS 207 - **Precedential status:** Published - **Opinion:** Concurrence by Greene - **Judges:** Wells, Wynn, Greene - **Cited by:** 9 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9574561 ## Opinion text Judge GREENE concurring in the result. I agree with the majority that in North Carolina, after a party moves for summary judgment on an issue, and the motion is al *102 lowed but subsequently reversed on appeal, the party is precluded on remand from making a second motion for summary judgment on the same issue. I disagree, however, with the majority’s conclusion that the issue of the defendants’ alleged negligent diagnoses was before the trial court at the hearing on the defendants’ first motion for summary judgment. At the first hearing, the defendants did not present any evidence in support of its summary judgment motion relating to the issue of the defendants’ alleged negligent diagnoses. Therefore, the negligent diagnoses issue was not before the trial court at the first hearing, and on remand the defendants were entitled to raise that issue as a basis for supporting their new motion for summary judgment. Nonetheless, I would reverse the trial court’s entry of summary judgment. The defendants produced affidavits at the second summary judgment hearing which stated that they had “adhered to the standard of care in their diagnoses of plaintiff’s ailments.” The plaintiff responded with the affidavits of Dr. George Podgorny wherein he testified that the defendants had failed to meet the applicable standard of care. Accordingly, a genuine issue of material fact exists on the issue thereby rendering summary judgment improper. However, the defendants nonetheless contend that summary judgment was appropriate because the plaintiff did not introduce evidence that the defendants’ negligent diagnoses were the proximate causes of his injuries. The defendants rely on Celotex Corp. v. Catrett, 477 U.S. 317 , 91 L.Ed.2d 265 (1986), as support for this argument. Celotex appears to stand for the proposition that the mere motion for summary judgment unsupported by evidence negating the non-movant’s claim is sufficient to shift the burden to the non-movant to provide evidence of each element of his claim. Id. at 322-24 , 91 L.Ed.2d at 273-74 . North Carolina is not bound by Celotex. North Carolina has chosen instead to require the non-movant to produce evidence demonstrating the existence of a genuine issue of material fact only with respect to issues raised by the movant and supported by the movant’s evidence. See Rorrer v. Cooke, 313 N.C. 338, 350 , 329 S.E.2d 355, 363 (1985); Clark v. Brown, 99 N.C. App. 255, 260 , 393 S.E.2d 134, 136-37 , disc. rev. denied, 327 N.C. 426 , 395 S.E.2d 675 (1990). I furthermore do not find, as the defendants contend, that Evans v. Appert, 91 N.C. App. 362 , 372 S.E.2d 94 , disc. rev. denied, 323 N.C. 623 , 374 S.E.2d 584 (1988), is consistent with Celotex. Instead, I read Evans as *103 consistent with Rorrer, and to the extent that Evans is inconsistent with Rorrer, Rorrer controls. Here, the defendants did not present evidence in support of their motion for summary judgment regarding the issue of proximate cause, and therefore, the plaintiff, as non-movant, was not required to address the issue. Accordingly, I would reverse the trial court’s order of summary judgment. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9574561. Public record. Not legal advice.