Sharon Creech, et al. v. Evelyn H. Melnick, M.D.

Previously, our courts discussed the facts of this case in Creech v. Melnik, 347 N.C. 520, 495 S.E.2d 907, (1998) (Creech II); Creech v. Melnik, 124 N.C. App. 502, 477 S.E.2d 680 (1996) (Creech I). In brief, Sharon and Travis Creech, in their capacities as guardians ad litem, brought a medical malpractice action against Dr. Evelyn H. Melnik, M.D., alleging that she provided negligent birthing treatment to their son, Justin, on 12 October 1980.

Dr. Melnik, a neonatologist, directed the newborn nursery at the hospital where Justin was born. Justin's birth began with unstable vital signs necessitating care in the intensive carenursery. Indisputably, oxygen deprivation caused Justin to suffer brain damage, blindness, quadriplegia, cerebral palsy, profound mental retardation, and microcephaly. Plaintiffs alleged that after Justin's admission to intensive care, his condition was significantly worsened by Dr. Melnik's failure to properly care for him from 2:30 p.m. to 4:30 p.m. on 23 September 1980.

Before filing this action, W. Paul Pulley, Jr., plaintiffs' attorney, talked with Dr. Melnik on several occasions. Dr. Melnik contended that during those conversations, Mr. Pulley assured her that if she spoke with him concerning the events surrounding Justin's birth, plaintiffs would not sue her. She stated that with that assurance, she gave information and opinions concerning the care provided for Justin.

Based on evidence of that assurance, the trial court granted summary judgment in favor of Dr. Melnik under the affirmative defenses of equitable estoppel and breach of implied contract not to sue. This Court affirmed, see Creech I; however, our Supreme Court remanded the action for trial to resolve genuine issues of material fact that precluded summary judgment. See Creech II. This appeal by plaintiffs arises from the resulting jury verdict in favor of Dr. Melnik on the grounds that plaintiffs breached their implied contract not to sue her. (See footnote 1)

Plaintiffs challenge the jury's verdict of breach of an implied contract on the grounds that (1) no evidence showed thatMr. Pulley had authority to contract on behalf of the minor with Dr. Melnik, and (2) no evidence showed that a court reviewed and approved the alleged contract on behalf of the minor.

Preliminarily, we address the issue of whether the earlier decisions in Creech I and II set forth a doctrine of law that decides the issues in this appeal--whether Mr. Pulley had authority to contract on behalf of the minor, and whether the alleged contract on behalf of the minor required court approval. We conclude that they do not.

As a general rule, when an appellate court passes on questions and remands the case for further proceedings to the trial court, the questions therein actually presented and necessarily involved in determining the case, and the decision on those questions become the law of the case . . . .

Tennessee-Carolina Transp. Inc. v. Strick Corp., 286 N.C. 235, 239, 210 S.E.2d 181, 183 (1974); see also North Carolina Nat. Bank v. Virginia Carolina Builders, 307 N.C. 563, 299 S.E.2d 629 (1983); Sloan v. Miller Bldg. Corp., 128 N.C. App. 37, 41, 493 S.E.2d 460, 463 (1997); Weston v. Carolina Medicorp, Inc., 113 N.C. App. 415, 417, 438 S.E.2d 751, 753 (1994). Under the law of the case doctrine, an appellate court ruling on a question governs the resolution of that question both in subsequent proceedings in the trial court and on a subsequent appeal, provided the same facts and the same questions, which were determined in the previous appeal, are involved in the second appeal. See Weston v. Carolina Medicorp, Inc., 113 N.C. App. at 417, 438 S.E.2d at 753. However,the law of the case doctrine does not apply to dicta, but only to points actually presented and necessary for the determination of the case. See Southland Assoc. Realtors, Inc. v. Miner, 73 N.C. App. 319, 321, 326 S.E.2d 107, 108 (1985) (holding that the doctrine did not apply because the prior appellate decision established “only that plaintiff was not entitled to summary judgment; it did not establish that plaintiff was not entitled to present its evidence with regard to the disputed issues.”).

In this case, neither Creech I nor Creech II addressed issues concerning the attorney's authority to act on behalf of the minor, and whether the contract made on behalf of the minor required court approval. Indeed, in Creech I, this Court observed that “[s]ince neither party addresses the question of whether the attorney under the facts of this case could lawfully bind his clients to a contract, we need not reach that issue in this appeal.” Creech I, 124 N.C. App. at 505, 477 S.E.2d at 682. Likewise, Creech II did not address whether the attorney had authority to enter into a contract with Dr. Melnik and whether the contract on behalf of a minor would require court approval. As in Southland, the sole question before our Supreme Court in Creech II was whether the pleadings, depositions, admissions and affidavits contained in the record proper showed that there were genuine issues of material fact. See Creech II. The case was not before our Supreme Court for a decision on the merits; accordingly as in Southland, thedoctrine of law of the case does not preclude our consideration of these issues. (See footnote 2) We therefore hold that the prior appellate decisions of Creech I and II established only that Dr. Melnik was not entitled to summary judgment; they did not establish whether Mr. Pulley had authority to contract on behalf of the minor, nor did they uphold the validity of a contract made on behalf of a minor without court approval.

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Click the case caption above for the full text of the Court's opinion.

In the present case, neither the record on appeal nor the brief on behalf of Dr. Melnik points to any evidence showing that the alleged implied contract on behalf of the minor was reviewed or approved by the trial court. Since it is well established in North Carolina that a covenant not to sue negotiated for a minor is invalid without investigation and approval by the trial court, we must reverse the jury's finding of a contract on behalf of the minor not to sue Dr. Melnik, and remand for a new trial.

Reversed and remanded.

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Reported by Kent Morlan