King v. Cranford, Whitaker & Dickens

385 S.E.2d 357 (1989)

Tommy J. KING, David B. King, Steven J. King, and Sally Melissa King, minor, by her guardian ad litem, Walter Brodie Burwell, Plaintiffs, v. CRANFORD, WHITAKER & DICKENS, a North Carolina Partnership, Dwight L. Cranford, Cary A. Whitaker, Bradley A. Elliott, Wendell C. Moseley, Howard A. Knox, Jr., Robert D. Kornegay, Jr., and Knox and Kornegay, a North Carolina Partnership, Defendants.

No. 896SC133.

Court of Appeals of North Carolina.

November 7, 1989.

*358 Beskind & Rudolf by Donald H. Beskind and Andrea A. Curcio, Chapel Hill, for plaintiffs-appellants.

Baker, Jenkins & Jones by Ronald G. Baker, Ahoskie, for defendants, Bradley A. Elliott and Wendell C. Moseley.

Battle, Winslow, Scott & Wiley by J. Brian Scott, Rocky Mount, for Cranford, Whitaker & Dickens, a North Carolina Partnership, Dwight L. Cranford and Cary A. Whitaker.

Valentine, Adams, Lamar, Etheridge & Sykes by William D. Etheridge and L. *359 Wardlaw Lamar, Nashville, for defendants, Howard A. Knox, Jr. Robert D. Kornegay, Jr., and Knox and Kornegay, a North Carolina Partnership.

ARNOLD, Judge.

Plaintiffs contend the trial court erred in granting defendants' motion for summary judgment. Plaintiffs argue that they did not elect their remedy by agreeing to a settlement of the declaratory judgment action.

Summary judgment is appropriate when there is no genuine issue as to any material fact and a party is entitled to a judgment as a matter of law. N.C.G.S. § 1A-1, Rule 56. The parties to the malpractice action agreed on a set of stipulated facts for purposes of the summary judgment motion, so there is no genuine issue as to any material fact. Defendants' motion raises the question whether, on the stipulated facts, defendants are entitled to judgment as a matter of law.

The legal issue raised on defendants' motion is whether plaintiffs elected their remedy by settling the declaratory judgment action filed by the Executor of Emmett King's estate. Defendants argue this case is controlled by two decisions of this Court: Douglas v. Parks, 68 N.C.App. 496, 315 S.E.2d 84, disc. rev. denied, 311 N.C. 754, 321 S.E.2d 131 (1984), and Stewart v. Herring, 80 N.C.App. 529, 342 S.E.2d 566 (1986). In Douglas, plaintiff hired an attorney to pursue a personal injury claim arising from an automobile collision. The case went to trial, but a directed verdict was entered against the plaintiff. Plaintiff next retained additional counsel to assist the original attorney. Together, counsel filed a motion to vacate the judgment and award a new trial. Before the motion was heard, plaintiff settled his personal injury claim. Plaintiff next filed a malpractice action against his original attorney, alleging that if the original attorney had provided adequate representation at trial, plaintiff would have recovered damages at trial. This Court affirmed a directed verdict in favor of the attorney-defendant, stating that plaintiff had the option to rescind or affirm the settlement and his election to affirm it precluded him from bringing the malpractice action. Id.

In Stewart, plaintiff retained the defendant-attorney to represent her in an action for alimony. The action was settled when the plaintiff signed a separation agreement which relinquished any claim for alimony. Plaintiff's husband then sued plaintiff for divorce. Plaintiff, believing she was entitled to alimony, hired new counsel and counterclaimed for alimony and to set aside the first separation agreement. Plaintiff negotiated a new agreement for alimony and settled her claim against her husband under a consent judgment in which the marital property was distributed and plaintiff's counterclaim dismissed. Plaintiff then filed a malpractice claim against her first attorney for failure to obtain alimony in the first agreement. The trial court granted summary judgment in favor of the attorney-defendant. This Court affirmed on the basis of Douglas v. Parks and Davis v. Hargett, 244 N.C. 157, 92 S.E.2d 782 (1956), writing:

As we read those cases 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.

Stewart, 80 N.C.App. at 531, 342 S.E.2d at 567 (emphasis added).

The circumstances of this case are distinct from those in Douglas and Stewart. The plaintiffs in Douglas and Stewart each brought a claim for monetary relief. Then, when their claims were affected by their attorneys' alleged negligence, the plaintiffs chose to reassert and settle their original claims. Those plaintiffs could have chosen instead to sue their attorneys for malpractice.

In this case, the plaintiffs did not have these options. The declaratory judgment *360 action was brought by the Executor of King's estate pursuant to N.C.G.S. § 1-254, which in pertinent part provides:

Any person interested under a ... will... may have determined any question of construction or validity arising under the instrument ... and obtain a declaration of rights, status, or other legal relations thereunder.

The plaintiffs here were named defendants in that action pursuant to N.C.G.S. § 1-260, which in pertinent part provides:

When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration....

The plaintiffs here did not choose to pursue their underlying claim rather than their malpractice action. Their participation in the declaratory judgment action and ultimate settlement of their claim against the estate were made necessary by the actions of others and were not an election of remedies. Plaintiffs are free to pursue their legal malpractice claim. The summary judgment order is reversed.

Reversed and remanded.

BECTON and COZORT, JJ., concur.