139 N.C. App. 201 | N.C. Ct. App. | 2000
Plaintiff provided chiropractic care to Angela Williams and Tony McAllister as a result of personal injuries suffered in an automobile accident on 4 August 1995. Defendant, an attorney, represented Williams and McAllister in their respective personal injury claims arising out of the accident. Defendant requested from plaintiff copies of Williams’ and McAllister’s medical records and bills for its services, which totaled $2,229.99 and $2,937.00, respectively.
Defendant settled Williams’ and McAllister’s claims for $6,000.00 and $10,000.00, respectively. Williams and McAllister were dissatisfied with plaintiff’s services and each instructed defendant that no portion of the settlement proceeds was to be disbursed to plaintiff. Defendant disbursed these settlement proceeds to Williams and McAllister without paying or withholding any amount to pay plaintiff’s bills for services.
On 1 November 1996, plaintiff filed suit against Williams and McAllister and obtained default judgments in the amount of $2,229.00 and $2,937.00, respectively, but plaintiff collected nothing on the judgments. On 3 January 1997, plaintiff filed this action against defendant seeking to enforce two medical provider liens pursuant to N.C. Gen. Stat. § 44-50. Plaintiff alleged that defendant failed to honor its liens when defendant disbursed the two settlement proceeds.
Plaintiff in prosecuting the Magistrate’s action against Williams, individually, resulting in a judgment in favor of the Plaintiff, in the full amount of his billings, which judgment was rendered by the Magistrate Division of the District Court of Durham County on or about December 4, 1996, constituted an election of remedies by Plaintiff and that pursuant to the doctrine of election of remedies, Plaintiff cannot prosecute this claim against Defendant, and that Plaintiffs claim as to Williams is thus barred by Plaintiffs election of remedies as herein set out.
On 26 May 1999, pursuant to plaintiff’s motion for amendment of judgment, the trial court found that the McAllister lien was valid, but again denied recovery to plaintiff based upon the doctrine of election of remedies. The trial court’s order concluded in part:
that the Plaintiff’s claim to enforce the above referenced [McAllister] lien is however barred by the doctrine of election of remedies for the same reasons as such doctrine is applied to Plaintiff’s claim to enforce the lien arising from Plaintiff’s treatment of Angela Williams as same is set forth in the January 29, 1999 Order and Judgment of this Court in this action.
Additionally, the trial court’s order stated that:
the parties have consented to and agreed that the sole and only issue which either party may raise on appeal from the rulings of this Court is the applicability of the doctrine of election of remedies as same has been applied by this Court in this action.
Plaintiff argues the trial court erred in concluding that its action was barred by the election of remedies doctrine. Specifically, plaintiff contends there is nothing inconsistent in its action against Williams and McAllister resulting in default judgments and now bringing suit against defendant for failure to honor its liens.
A plaintiff is deemed to have made an election of remedies, and therefore estopped from suing a second defendant, only if he has sought and obtained final judgment against a first defendant and the remedy granted in the first judgment is repugnant or inconsistent
In Nye v. Lipton, 50 N.C. App. 224, 225, 273 S.E.2d 313, 314, (1980), disc. review denied, 302 N.C. 630, 280 S.E.2d 441 (1981), plaintiff Nye loaned defendant Roberts $33,000.00. Defendant Lipton was Roberts’ attorney and handled Roberts’ finances. Id. Plaintiff alleged that both Roberts and Lipton represented to him that the loan was to be paid off from the sale of a note owned by Roberts. Id. Additionally, plaintiff alleged that Roberts gave written instructions to Lipton to pay the plaintiff the amount of the loan plus interest; however, plaintiff was never paid. Id. Plaintiff filed suit against the estates of Roberts and Lipton for recovery of the money owed by Roberts. Id. Roberts did not contest the allegations and summary judgment was entered against him. Id. Plaintiff was also granted summary judgment against Lipton’s estate, which appealed and argued that summary judgment was improper because plaintiff elected his remedy by obtaining a judgment against Roberts. Id. at 229, 273 S.E.2d at 316.
This Court held:
plaintiff is pursuing separate claims growing out of the same transaction. His claim against [the borrower] is based on the theory that he has made a loan to [the borrower] which has not been paid. His claim against the appellant is on the theory that [appellant] as attomey-in-fact for [the borrower] was under instructions from [the borrower] to pay the debt to plaintiff, and [appellant] failed to pay the debt after receiving funds to do so. These two*205 claims are consistent and plaintiff may pursue both of them. The payment of either claim will extinguish both.
Nye, 50 N.C. App. at 229, 273 S.E.2d at 316.
Here, plaintiffs action against McAllister and Williams was based on the theory that amounts owed for services had not been paid. Plaintiffs present action against defendant is based on the theory that defendant violated N.C. Gen. Stat. § 44-50 by failing to honor valid medical provider liens. See N. C. Baptist Hospitals, Inc. v. Mitchell, 323 N.C. 528, 532, 374 S.E.2d 844, 846 (1988) (agreeing with defendant’s argument that “N.C.G.S. § 44-50 provides the only mechanism by which to obtain funds from an attorney who has received them for a client in satisfaction of a personal injury claim”).
Williams and McAllister are liable to plaintiff for having received services for which they have not paid. Defendant is liable to plaintiff pursuant to N.C. Gen. Stat. § 44-50. Actions by plaintiff against either its patients or their attorney are not inconsistent and do not seek any additional or alternative forms of relief. There is no threat of double recovery as the defendants in each action can claim contribution for payments made by the other, both in defense of the suit and in defense of any proceedings to collect a judgment.
Accordingly, the trial court erred in concluding that the doctrine of election of remedies barred plaintiffs recovery from defendant.
Reversed.
