Danius, et al v Rodgers
Annotate this Case
Download PDF
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA11-586 NORTH CAROLINA COURT OF APPEALS Filed: 20 December 2011 CHRISTY X. DANIUS and LEEMA PILLAI, Plaintiffs, v. Mecklenburg County No. 09 CVS 29776 J. NEAL RODGERS and THE LAW OFFICES OF J. NEAL RODGERS, PLLC, Defendants. Appeal by Plaintiffs from judgment entered 21 January 2011 by Judge Nathaniel Poovey in Mecklenburg County Superior Court. Heard in the Court of Appeals 26 October 2011. Harrington Law, P.C., Plaintiffs-Appellants. by James M. Harrington, for Dean & Gibson, PLLC, by Angela W. McIlveen, for DefendantsAppellees. BEASLEY, Judge. Siblings Christy X. Danius and Leema Pillai (Plaintiffs) appeal from a 21 January 2011 order granting summary judgment in favor of J. Neal Rodgers and the Law Offices of J. Neal Rodgers, PLLC (Defendants). For the reasons stated below, we affirm. -2On 14 December 2009, Plaintiffs filed a complaint alleging, inter alia, that Defendants negligently mishandling committed legal litigation between malpractice (1) by Plaintiffs and Wake Forest University Baptist Medical Center (the hospital), and (2) Plaintiff Pillai and her former employer Real Vision Solutions, LLC (Real Vision). On 9 September 2010, Defendants filed a motion for summary judgment, pursuant to N.C. Gen. Stat. § 1A-1, Rule 56. By order dated 21 January 2011, the Honorable Nathaniel Poovey granted Defendants motion. On 11 February 2011, Plaintiffs filed a timely notice of appeal. A motion pleadings, for summary depositions, judgment answers will to be granted if interrogatories, the and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law. Gen. Stat. § 1A-1, Rule 56(c) (2009). N.C. When ruling on a motion for summary judgment, the court must look at the record in the light most favorable to the party opposing the motion. W. S. Clark & Sons, Inc. v. Union National Bank, 84 N.C. App. 686, 688, 353 S.E.2d 439, 440 (1987)(internal quotation marks and citations omitted). A defendant can meet his burden and show that summary judgment is proper by showing that the plaintiff -3cannot surmount claim. an affirmative defense which would bar the James v. Clark, 118 N.C. App. 178, 181, 454 S.E.2d 826, 828 (1995)(citation omitted). The doctrine of defense invoked to defendant only if election of remedies is an affirmative estop the plaintiff from suing a second [plaintiff] has sought and obtained final judgment against a first defendant and the remedy granted in the first judgment is repugnant sought in the second action. or inconsistent with the remedy Swain v. Leahy, 111 N.C. App 884, 886, 433 S.E.2d 460, 461 (1993)(citation omitted). The remedy granted in the first action is inconsistent with suit in the second action when the relief demanded in the second action is a continuation of relief sought in the first action, or if relief sought in the first action can redress the damage claimed in the second action. McCabe v. Dawkins, 97 N.C. App. 447, 448, 388 S.E.2d 571, 572 (1990) (internal citations omitted). A second action can be considered a continuation of the first action when plaintiff seeks to recover some alleged deficiency in the settlement or judgment of the first action. If plaintiff accepts settlement, or judgment is rendered on his demand in the first action, such acceptance or judgment is a final redress of that action, regardless of whether the amount of relief is what plaintiff requested. Id. at 449, 388 S.E.2d at 572 (citations omitted). -4Plaintiffs allege that Defendants committed professional malpractice in negligently handling both their claim against the hospital and Plaintiff Plaintiff Pillai Pillai s contends that claim against Defendants Real Vision. negligence in handling her case against Real Vision led her to suffer the loss of her H1-B visa. Plaintiffs also assert that Defendants caused them to lose the opportunity to pursue their claims against the hospital for the alleged medical information. failed to conduct wrongful disclosure of confidential Plaintiffs argue that because Defendants adequate discovery, when the hospital counterclaimed for the bills owed on Plaintiff Danius wife s medical care, they were left without a defense, and financially unable to fight the counterclaim.1 It is uncontroverted that Plaintiffs entered into settlements for both of the aforementioned claims. In essence, Plaintiffs caused now argue that Defendants negligence the settlements reached in those cases to be less favorable than 1 Plaintiffs also allege that they were prejudiced in their claim against Sardar Inamullah, former employee of the hospital. Plaintiffs assert this as a separate claim, but the settlement agreement with the hospital specifically releases the hospital and all present or former employees from all causes of action arising out of the alleged wrongful release of medical information. As such, this settlement agreement also covers the claim against Mr. Inamullah related to this same alleged disclosure. -5they could have been. This argument is without merit. As our Court held in Stewart v. Herring, if a party contends that he or she was deprived of a legal claim because of the action of another and he pursues the claim against the original defendant he cannot then make a claim against the party he says caused him to lose all or part of the original claim. This is so even if the settlement the plaintiff is able to make on the original claim is not as good as it would have been if there had been no wrongful action by the third party. 80 N.C. App. 529, 531, 342 S.E.2d 566, 567 (1986). Plaintiffs are barred from suing Defendants for professional negligence by the doctrine of election of remedies. Accordingly, the trial court s grant of summary judgment is upheld. summary judgment on these grounds, Plaintiffs alternative arguments. Affirmed. Judges STEELMAN and GEER concur. Report per Rule 30(e). we Because we affirm decline to address
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
