{ "id": 11866054, "name": "MICHAEL G. COE t/a COE ELECTRIC & PLUMBING CO., Plaintiff v. HIGHLAND SCHOOL ASSOCIATES LIMITED PARTNERSHIP, CARROLL B. LITTLE, JAMES A. MEZZANOTTE, RICHARD J. REIMAN and BILLY P. SHADRICK, Defendants", "name_abbreviation": "Coe v. Highland School Associates Ltd. Partnership", "decision_date": "1997-01-07", "docket_number": "No. COA96-292", "first_page": "155", "last_page": "158", "citations": [ { "type": "official", "cite": "125 N.C. App. 155" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "21 ALR4th 1121", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "weight": 2, "opinion_index": -1 }, { "cite": "45 ALR2d 967", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "389 S.E.2d 84", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "326 N.C. 46", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5308459, 5308655, 5306289, 5309497, 5305309 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0046-03", "/nc/326/0046-04", "/nc/326/0046-05", "/nc/326/0046-02", "/nc/326/0046-01" ] }, { "cite": "72 N.C. 405", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8696970 ], "year": 1875, "pin_cites": [ { "page": "407" } ], "opinion_index": 0, "case_paths": [ "/nc/72/0405-01" ] }, { "cite": "384 S.E.2d 32", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "33", "parenthetical": "quoting Faison v. Bowden, 72 N.C. 405, 407 (1875)" } ], "opinion_index": 0 }, { "cite": "95 N.C. App. 750", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523473 ], "year": 1989, "pin_cites": [ { "page": "752", "parenthetical": "quoting Faison v. Bowden, 72 N.C. 405, 407 (1875)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/95/0750-01" ] }, { "cite": "169 S.E. 634", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1933, "pin_cites": [ { "page": "635" } ], "opinion_index": 0 }, { "cite": "204 N.C. 695", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624326 ], "year": 1933, "pin_cites": [ { "page": "696" } ], "opinion_index": 0, "case_paths": [ "/nc/204/0695-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-26", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 1996, "opinion_index": 0 } ], "analysis": { "cardinality": 431, "char_count": 7603, "ocr_confidence": 0.736, "pagerank": { "raw": 1.5524332933423495e-07, "percentile": 0.6754283743955729 }, "sha256": "40191edde256d5769c4878cc33692087106f743dca9ad1aa40c61688de8557e3", "simhash": "1:2a5196f22807f2e5", "word_count": 1263 }, "last_updated": "2023-07-14T22:18:02.941264+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and MARTIN, JOHN C., concur." ], "parties": [ "MICHAEL G. COE t/a COE ELECTRIC & PLUMBING CO., Plaintiff v. HIGHLAND SCHOOL ASSOCIATES LIMITED PARTNERSHIP, CARROLL B. LITTLE, JAMES A. MEZZANOTTE, RICHARD J. REIMAN and BILLY P. SHADRICK, Defendants" ], "opinions": [ { "text": "GREENE, Judge.\nHighland School Associates Limited Partnership, Carroll B. Little, James A. Mezzanotte, Richard J. Reiman and Billy P. Shadrick (collectively defendants) appeal from a judgment in the amount of $11,258.46 for the benefit of Michael G. Coe (plaintiff).\nPursuant to a contract the plaintiff performed certain electrical and plumbing work for the defendants and completed that work on 2 January 1991. During the course of the work, the plaintiff provided the defendants with invoices totaling $11,258.46. On or about 20 June 1991, the defendants\u2019 counsel sent a letter to the plaintiff stating in pertinent part:\nWe have ... informed you that the partnership has been negotiating a loan, the proceeds of which would be used to pay all creditors approximately seventy-five cents on the dollar. Recently, however, the negotiations regarding the loan have collapsed and bankruptcy appears likely. The Partnership, however, is attempting to avoid bankruptcy and work payment out with all creditors.\nIn an effort to avoid bankruptcy, the Partnership proposes to pay all creditors the principal amount in full due to them plus 6% interest. No attorneys\u2019 fees or late penalties will be paid. Payment will be made in two equal installments in March of 1992 and March of 1993. The Partnership also intends to give a promissory note secured by the property to each creditor. The funds to make the installment payments under the Partnership\u2019s proposal will be derived from syndication proceeds received by the Partnership over the next several years.\nThe last line of the 20 June 1991 letter (letter) requested that the plaintiff sign the \u201cappropriate response below\u201d and return the letter at the \u201cearliest convenience.\u201d At the bottom of the page there were two lines: \u201cAccepted\u201d and \u201cRejected.\u201d The plaintiff signed his name in the space marked \u201cAccepted.\u201d\nAfter defendants failed to make any of the proposed payments (as set forth in the letter), plaintiff filed this complaint on 5 July 1994 seeking to recover the money owed. At the pre-trial conference the parties stipulated that the amount owing on the debt was $11,258.46. At trial the defendants moved that the plaintiff\u2019s claim be dismissed (motion for directed verdict) on the grounds that the claim was barred by the statute of limitations in that it had been filed more than three years after the last work was completed. The trial court denied the motion on the grounds that the letter tolled the running of the statute of limitations.\nThe issue is whether a letter to a creditor (plaintiff) written by a debtor (defendant) was a new promise to pay the existing debt which tolled the statute of limitations for the plaintiffs claim pursuant to N.C. Gen. Stat. \u00a7 1-26 (1996).\nAlthough the statute of limitations on contract obligations is three years, N.C.G.S. \u00a7 1-52(1) (1996), a new promise to pay or partial payment of an existing debt may extend the time to collect the debt up to three years from the time of the new promise or partial payment. See N.C.G.S. \u00a7 1-26 (1996); see also Smith v. Moore, 204 N.C. 695, 696, 169 S.E. 634, 635 (1933). However, \u201c[n]o acknowledgment or promise is evidence of a new or continuing contract, from which the statutes of limitations run, unless it is contained in some writing signed by the party to be charged thereby.\u201d N.C.G.S. \u00a7 1-26. The writing must (1) \u201cshow the nature and amount of the debt[,] or must distinctly refer to some writing, or to some other means, by which the nature and amount of it can be ascertained,\u201d American Multimedia, Inc. v. Freedom Distrib., Inc., 95 N.C. App. 750, 752, 384 S.E.2d 32, 33 (1989) (quoting Faison v. Bowden, 72 N.C. 405, 407 (1875)), disc. rev. denied, 326 N.C. 46, 389 S.E.2d 84 (1990), and (2) \u201cmanifest a definite and unqualified intention to pay the debt.\u201d Id. (emphasis added).\nThe defendants argue that the letter was an \u201cinquiry letter ... to determine if what [they] proposed in [the] letter was feasible [,]\u201d and that any promises made in the letter are not sufficiently definite to toll the statute of limitations. We disagree. The letter \u201cproposes\u201d or offers to \u201cpay all creditors [including this plaintiff] the principal amount in full due to them plus 6% interest,\u201d Black\u2019s Law Dictionary, 1097 (5th ed. 1979) (defines \u201cproposal\u201d as an \u201coffer\u201d), and to do so (\u201cpayments will be made\u201d) \u201cin two equal installments in March of 1992 and March of 1993.\u201d This language manifests a \u201cdefinite and unqualified\u201d intention to pay the debt.\nThe defendants next argue that because the letter does not state the amount owed to the plaintiff, it does not qualify under N.C. Gen. Stat. \u00a7 1-26. We disagree. It is not necessary that the writing specifically state the amount owed. It is sufficient that the writing refer to some other means by which the nature and amount of the debt can be ascertained. In this case the letter referred to the \u201cprincipal amount\u201d of the debt which has never been in dispute.\nNo error.\nJudges WYNN and MARTIN, JOHN C., concur.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Robert Tally, RC., by Robert Tally, for plaintiff-appellee.", "Brinkley, Walser, McGirt, Miller, Smith & Coles, by Gaither S. Walser, for defendant-appellants." ], "corrections": "", "head_matter": "MICHAEL G. COE t/a COE ELECTRIC & PLUMBING CO., Plaintiff v. HIGHLAND SCHOOL ASSOCIATES LIMITED PARTNERSHIP, CARROLL B. LITTLE, JAMES A. MEZZANOTTE, RICHARD J. REIMAN and BILLY P. SHADRICK, Defendants\nNo. COA96-292\n(Filed 7 January 1997)\n1. Limitations, Repose and Laches \u00a7 13 (NCI4th)\u2014 electrical and plumbing work \u2014 letter new promise to pay \u2014 statute of limitations tolled\nThe trial court properly denied the defendant debtors\u2019 motion for a directed verdict in a claim to recover monies owed where the defendants wrote a letter proposing or offering to pay all creditors, including plaintiff, the principal amount in full due to them plus 6% interest in two equal installments and plaintiff made his claim more than three years after the electrical and plumbing work for the defendants was completed by plaintiff. The language in the defendants\u2019 letter manifested a definite and unqualified intention to pay the debt and constituted a new promise to pay and a new contract. Pursuant to N.C.G.S. \u00a7 1-26, a new promise to pay an existing debt tolls the three-year statute of limitations for asserting a claim.\nAm Jur 2d, Limitation of Actions \u00a7\u00a7 319-329.\nPart payment or promise to pay judgment as affecting the running of statute of limitations. 45 ALR2d 967.\nNecessity and sufficiency, in order to toll statute of limitations as to debt, of statement of amount of debt in acknowledgment or new promise to pay. 21 ALR4th 1121.\n2. Limitations, Repose and Laches \u00a7 13 (NCI4th)\u2014 letter\u2014 new promise to pay \u2014 amount due \u2014 tolling of statute of limitations\nThe defendant\u2019s letter to plaintiff indicating it would pay all creditors, including plaintiff, the \u201cprincipal amount\u201d in full due to them plus 6% in two equal installments was sufficient to satisfy the requirement of N.C.G.S. \u00a7 1-26 that the debtor notify the creditor, in writing, of the amount due. It was not necessary that the writing specifically state the amount owed. It was sufficient that the writing referred to some other means by which the nature and amount of the debt could be ascertained.\nAm Jur 2d, Limitation of Actions \u00a7\u00a7 334-337.\nNecessity and sufficiency, in order to toll statute of limitations as to debt, of statement of amount of debt in acknowledgment or new promise to pay. 21 ALR4th 1121.\nAppeal by defendants from judgment entered 13 October 1995 in Forsyth County Superior Court by Judge William Z. Wood, Jr. Heard in the Court of Appeals 20 November 1996.\nRobert Tally, RC., by Robert Tally, for plaintiff-appellee.\nBrinkley, Walser, McGirt, Miller, Smith & Coles, by Gaither S. Walser, for defendant-appellants." }, "file_name": "0155-01", "first_page_order": 193, "last_page_order": 196 }