Her v. Davis, 032716 NCSUP, 07 CVS 14306

Docket Nº:07 CVS 14306
Opinion Judge:Diaz, Judge.
Party Name:YENG HER, Plaintiff, v. TAMARA NYCOLE DAVIS, Defendant.
Attorney:Campbell & Associates by Christine Latona and Payton D. Hoover for Plaintiff Yeng Her. McAngus Goudlock & Courie by Jeffrey D. Keister and Jennifer M. Arna for Defendant Tamara Nycole Davis.
Case Date:March 27, 2016
Court:Superior Courts of Law and Equity of North Carolina
 
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YENG HER, Plaintiff,

v.

TAMARA NYCOLE DAVIS, Defendant.

No. 07 CVS 14306

Superior Court of North Carolina, Mecklenburg

March 27, 2016

Campbell & Associates by Christine Latona and Payton D. Hoover for Plaintiff Yeng Her.

McAngus Goudlock & Courie by Jeffrey D. Keister and Jennifer M. Arna for Defendant Tamara Nycole Davis.

ORDER AND OPINION

Diaz, Judge.

{1} Before the Court is Defendant's Motion for Summary Judgment/Motion to Enforce Settlement (the "Motion"). After considering the Court file, the affidavit submitted by Defendant, and the arguments of counsel presented on 8 April 2008, the Court GRANTS the Motion.

I. SUMMARY OF THE FACTS

{2} On 18 July 2007, Plaintiff sued Defendant, seeking damages for personal injuries allegedly suffered as a result of a 23 January 2007 automobile accident.

{3} Plaintiff is represented by the law firm of Campbell & Associates.

{4} Defendant's insurance carrier for purposes of the claim is Progressive Northeastern Insurance Company ("Progressive").

{5} In her answer filed on 15 November 2007, Defendant alleged as an affirmative defense that "a settlement was reached between the parties and that the Defendant was willing, able and ready to carry forward the terms and conditions of said settlement, including payment to the Plaintiff." (Def.'s Mot. Dismiss and Answer 3.)

{6} On 19 March 2008, Defendant filed the Motion.

{7} On 4 April 2008 (without objection from Plaintiff) Defendant filed an affidavit of Karen Samuels ("Samuels") in support of the Motion.

{8} Samuels is the Progressive representative who handled Plaintiff's claim. She asserts that on 1 June 2007, Plaintiff's counsel called and tendered a "settlement demand in the amount of $10, 000.00, representing full and complete settlement of Plaintiff's bodily injury claim." (Samuels Aff. ¶ 3.) 1 According to Samuels, Plaintiff's settlement demand was made without condition and was never revoked or withdrawn. (Samuels Aff. ¶ 4.)

{9} Samuels further alleges that on 4 June 2007, she called Plaintiff's counsel and accepted Plaintiff's settlement offer. (Samuels Aff. ¶¶ 6–7.) That same day, Samuels forwarded a confirming letter to Clair Campbell, Attorney at Law, 2 along with Progressive's $10, 000.00 settlement check and a release. (Samuels Aff. ¶ 8.)

{10} On 18 June 2007, James A. White, Esq. wrote Samuels to advise her that "[o]ur client has declined your offer, and has opted to litigate her case." (Samuels Aff. Ex. D.)

{11} At the hearing of this matter, Plaintiff's counsel (not Mr. White) stated that White (1) was a lawyer, although he was not licensed to practice law in North Carolina while working for the firm, 3 and (2) was no longer with the firm.

{12} At the hearing on the Motion, Plaintiff's counsel was unclear as to White's status while employed by the firm. Counsel first told the Court that White was not a lawyer, but later stated that he was a lawyer, albeit not licensed in North Carolina. As for White's duties, counsel stated that White worked as a paralegal and handled other administrative matters.

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