{ "id": 9006533, "name": "JON T. TERRELL, Plaintiff v. HARRIET A. KAPLAN, Individually, and HARRIET A. KAPLAN, as the Personal Representative of the Estate of Stanley Kaplan, Deceased, Defendant", "name_abbreviation": "Terrell v. Kaplan", "decision_date": "2005-06-07", "docket_number": "No. COA04-993", "first_page": "667", "last_page": "671", "citations": [ { "type": "official", "cite": "170 N.C. App. 667" } ], "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": "266 S.E.2d 702", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "705" } ], "opinion_index": 0 }, { "cite": "47 N.C. App. 104", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548265 ], "year": 1980, "pin_cites": [ { "page": "108-09" } ], "opinion_index": 0, "case_paths": [ "/nc-app/47/0104-01" ] }, { "cite": "214 S.E.2d 192", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1975, "pin_cites": [ { "page": "193", "parenthetical": "Where \"the main purpose and object of the promisor is not to answer for another, but to subserve some pecuniary or business purpose of his own, ... his promise is not within the statute [of frauds] . . . .\" (quotation omitted)" }, { "page": "194" } ], "opinion_index": 0 }, { "cite": "25 N.C. App. 544", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555210 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "546", "parenthetical": "Where \"the main purpose and object of the promisor is not to answer for another, but to subserve some pecuniary or business purpose of his own, ... his promise is not within the statute [of frauds] . . . .\" (quotation omitted)" }, { "page": "547-48" } ], "opinion_index": 0, "case_paths": [ "/nc-app/25/0544-01" ] }, { "cite": "202 S.E.2d 591", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "597", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "284 N.C. 740", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564953 ], "year": 1981, "pin_cites": [ { "page": "748", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/284/0740-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 22-1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2004, "opinion_index": 0 }, { "cite": "597 S.E.2d 673", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 567", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491579 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0567-01" ] }, { "cite": "580 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "4" } ], "opinion_index": 0 }, { "cite": "157 N.C. App. 396", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9187002 ], "year": 2003, "pin_cites": [ { "page": "400" } ], "opinion_index": 0, "case_paths": [ "/nc-app/157/0396-01" ] }, { "cite": "457 S.E.2d 902", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "119 N.C. App. 44", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11913553 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc-app/119/0044-01" ] }, { "cite": "355 S.E.2d 838", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "85 N.C. App. 669", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170267 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/85/0669-01" ] }, { "cite": "468 S.E.2d 58", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "343 N.C. 118", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798827 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/343/0118-01" ] }, { "cite": "461 S.E.2d 13", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1995, "pin_cites": [ { "page": "16" }, { "page": "16" }, { "page": "16", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 154", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11914421 ], "weight": 3, "year": 1995, "pin_cites": [ { "page": "158" }, { "page": "158" }, { "page": "158" } ], "opinion_index": 0, "case_paths": [ "/nc-app/120/0154-01" ] } ], "analysis": { "cardinality": 511, "char_count": 10619, "ocr_confidence": 0.767, "pagerank": { "raw": 4.801384722817712e-08, "percentile": 0.3014778081656498 }, "sha256": "bbc3da441b54fc9d9dce0cd56a400bafddfd51da5e37a3c60da28fcd440a1f66", "simhash": "1:51aa7f49040e1c7e", "word_count": 1750 }, "last_updated": "2023-07-14T16:44:47.676310+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BRYANT and JACKSON concur." ], "parties": [ "JON T. TERRELL, Plaintiff v. HARRIET A. KAPLAN, Individually, and HARRIET A. KAPLAN, as the Personal Representative of the Estate of Stanley Kaplan, Deceased, Defendant" ], "opinions": [ { "text": "WYNN, Judge.\nIn deciding a motion to dismiss for failure to state a claim, a court must look to whether the pleadings, when taken as true, are legally sufficient to satisfy the elements of at least some legally recognized claim. Arroyo v. Scottie\u2019s Prof\u2019l Window Cleaning, Inc., 120 N.C. App. 154, 158, 461 S.E.2d 13, 16 (1995), disc. review improvidently allowed, 343 N.C. 118, 468 S.E.2d 58 (1996). Here, Plaintiff Jon T. Terrell contends that the trial court erred in dismissing his complaint because, pursuant to the main purpose rule, Defendant Harriet A. Kaplan\u2019s promise to guarantee a promissory note is not within the statute of frauds. Mr. Terrell therefore argues that the trial court erred in granting Ms. Kaplan\u2019s motion to dismiss. We agree with Mr. Terrell, find that his complaint states a claim upon which relief may be granted, and therefore reverse the trial court\u2019s order and remand this case.\nOn 23 December 2003, Mr. Terrell filed a complaint against Ms. Kaplan. The complaint alleged that Stanley and Harriet Kaplan, whom Mr. Terrell has known for over thirty years, owned the Charlotte newspaper \u201cThe Leader\u201d and that, in Spring 2000, Mr. Kaplan asked Mr. Terrell to loan $300,000 to The Leader. Mr. Kaplan promised that \u201crepayment of the debt would be guaranteed by The Leader, Stan, and Harriet.\u201d Mr. Terrell agreed to loan the money to The Leader, and The Leader executed a promissory note in favor of Mr. Terrell in the amount of $300,000. Mr. Kaplan also executed a guarantee agreement, personally guaranteeing the payment of the promissory note. Ms. Kaplan did not execute a personal guarantee at that time.\nThe complaint stated that, in Fall 2001, Mr. Kaplan informed Mr. Terrell that he was dying and requested an extension of the payment period on the promissory note. Mr. Kaplan represented to Mr. Terrell that the note would be secured by personal guarantees executed by himself and Ms. Kaplan. Ms. Kaplan\u2019s attorney drew up a modification to the promissory note. The modification included statements that \u201cHarriet A. Kaplan has agreed to become a guarantor of the Note[,]\u201d and that the modification was made \u201cin consideration of Harriet A. Kaplan\u2019s guaranty.\u201d The modification was executed by both Ms. Kaplan, as president of The Leader, and Mr. Terrell. Ms. Kaplan also had a personal guaranty agreement drawn up but never delivered the executed personal guaranty agreement to Mr. Terrell.\nMr. Kaplan died in December 2001, and Ms. Kaplan was duly appointed as personal representative of Mr. Kaplan\u2019s estate. The complaint alleged that as the president and \u201csole remaining shareholder of The Leader\u201d and \u201cthe personal representative and primary beneficiary\u201d of Mr. Kaplan\u2019s estate, Ms. Kaplan \u201chad a direct pecuniary interest in the estate and a direct pecuniary interest in the survival of The Leader.\u201d\nThe complaint further alleged that, in April 2002, as personal representative of Mr. Kaplan\u2019s estate, Ms. Kaplan published a notice of administration in a local newspaper but did not provide notice to Mr. Terrell, a resident of Santa Barbara, California and a known creditor of the estate. In August 2002, The Leader defaulted on the promissory note and modification by filing a bankruptcy petition. Mr. Terrell contacted Ms. Kaplan, as executrix of Mr. Kaplan\u2019s estate and as personal guarantor of the promissory note and modification, and demanded payment; Ms. Kaplan refused and failed to pay.\nMs. Kaplan, individually, filed a motion to dismiss the complaint pursuant to North Carolina Civil Procedure Rule 12(b)(6) for failure to state a claim upon which relief could be granted. She also filed an answer on behalf of Mr. Kaplan\u2019s estate. Mr. Terrell filed a motion for judgment on the pleadings against Ms. Kaplan, as representative of Mr. Kaplan\u2019s estate; the motion was granted on 4 May 2004. However, on 14 June 2004, the trial court granted Ms. Kaplan\u2019s motion to dismiss Mr. Terrell\u2019s breach of contract claim against her individually; Mr. Terrell appealed.\nIn reviewing the grant of a motion to dismiss for failure to state a claim upon which relief can be granted, we look to whether:\nthe pleadings, when taken as true, are legally sufficient to satisfy the elements of at least some legally recognized claim. Harris v. NCNB, 85 N.C. App. 669, 355 S.E.2d 838 (1987). In ruling upon a Rule 12(b)(6) motion, the trial court should liberally construe the complaint and should not dismiss the action unless it appears to a certainty that plaintiff is entitled to no relief under any statement of facts which could be proved in support of the claim. Davis v. Messer, 119 N.C. App. 44, 457 S.E.2d 902 (1995).\nArroyo, 120 N.C. App. at 158, 461 S.E.2d at 16. \u201cThis Court must conduct a de novo review of the pleadings to determine their legal sufficiency and to determine whether the trial court\u2019s ruling on the motion to dismiss was correct.\u201d Leary v. N.C. Forest Prods., Inc., 157 N.C. App. 396, 400, 580 S.E.2d 1, 4, aff'd, 357 N.C. 567, 597 S.E.2d 673 (2003).\nHere, Mr. Terrell contends that the trial court erred in granting Ms. Kaplan\u2019s motion to dismiss, that the complaint states a claim upon which relief can be granted because, inter alia, Ms. Kaplan guaranteed repayment for entities in which she has a direct pecuniary interest. We agree.\nAs stated in North Carolina General Statutes section 22-1,\nNo action shall be brought whereby to charge an executor, administrator or collector upon a special promise to answer damages out of his own estate or to charge any defendant upon a special promise to answer the debt, default or miscarriage of another person, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party charged therewith or some other person thereunto by him lawfully authorized..\nN.C. Gen. Stat. \u00a7 22-1 (2004). However, \u201cif it is concluded that the promisor has the requisite personal, immediate, and pecuniary interest in the transaction in which a third party is the primary obligor, then the promise is said to be original rather than collateral and therefore need not be in writing to be binding.\u201d Burlington Indus., Inc. v. Foil, 284 N.C. 740, 748, 202 S.E.2d 591, 597 (1981) (citation omitted); see also, e.g., Stuart Studio, Inc. v. Nat\u2019l School of Heavy Equip., Inc., 25 N.C. App. 544, 546, 214 S.E.2d 192, 193 (1975) (Where \u201cthe main purpose and object of the promisor is not to answer for another, but to subserve some pecuniary or business purpose of his own, ... his promise is not within the statute [of frauds] . . . .\u201d (quotation omitted)).\nThe main purpose rule has been applied to individuals guaranteeing the debt of corporations of which the guarantors were majority stockholders. For example, in Stuart Studio, 25 N.C. App. at 547-48, 214 S.E.2d at 194, the individual defendant orally guaranteed the corporate defendant\u2019s debt for catalogues to be produced by the plaintiff. The corporate defendant, however, was experiencing financial difficulties and filed for bankruptcy. Because the individual defendant was the sole shareholder of the corporate defendant\u2019s voting stock and owned forty-nine percent of another class of stock, this Court found that the individual defendant had a personal and direct interest in the corporate defendant sufficient to raise an issue for jury determination. And in Bassett Furniture Indus. of N.C., Inc. v. Griggs, 47 N.C. App. 104, 108-09, 266 S.E.2d 702, 705 (1980), the defendant orally guaranteed the repayment of credit extended by the plaintiff to a corporation of which the defendant was an officer and the managing director and in which defendant owned half the company stock. This Court held that, given the evidence of the defendant\u2019s direct, personal, and immediate interest, summary judgment for the defendant was inappropriate. Id.\nIn the case sub judice, Mr. Terrell alleged that Ms. Kaplan was the president and sole shareholder of The Leader. The complaint alleged that Ms. Kaplan held these positions at a time when she represented that she would sign the personal guarantee agreement, and at the time she executed the note modification stating that \u201cHarriet A. Kaplan has agreed to become a guarantor of the Note[]\u201d and the modification was made \u201cin consideration of Harriet A. Kaplan\u2019s guaranty.\u201d Moreover, Mr. Terrell alleged that The Leader was in financial distress and filed for bankruptcy shortly after Ms. Kaplan\u2019s promises, and that Ms. Kaplan is the primary beneficiary of the estate of Mr. Kaplan, who signed a personal guarantee of the original promissory note. These allegations, which on a motion to dismiss we must presume true, plead such direct, personal, and immediate pecuniary interest on the part of Ms. Kaplan so as to remove Ms. Kaplan\u2019s promise to pay from the statute of frauds. We therefore hold that it does not \u201cappear[] to a certainty that plaintiff is entitled to no relief under any statement of facts which could be proved in support of the claim.\u201d Arroyo, 120 N.C. App. at 158, 461 S.E.2d at 16 (citation omitted). The trial court therefore erred in granting Ms. Kaplan\u2019s motion to dismiss Mr. Terrell\u2019s breach of contract claim based on Ms. Kaplan\u2019s personal guarantee of the promissory note. Accordingly, we reverse the trial court\u2019s order and remand this case for further proceedings.\nReversed and Remanded.\nJudges BRYANT and JACKSON concur.", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "Katten Muchin Zavis Rosenman, by Richard L. Farley and Christopher A. Hicks, for plaintiff-appellant.", "Tin Fulton Greene & Owen, by Shirley L. Fulton and Bartina L. Edwards, for defendant-appellee." ], "corrections": "", "head_matter": "JON T. TERRELL, Plaintiff v. HARRIET A. KAPLAN, Individually, and HARRIET A. KAPLAN, as the Personal Representative of the Estate of Stanley Kaplan, Deceased, Defendant\nNo. COA04-993\n(Filed 7 June 2005)\nStatute of Frauds\u2014 breach of contract \u2014 personal guarantee of promissory note \u2014 main purpose rule\nThe trial court erred by granting defendant\u2019s Rule 12(b)(6) motion to dismiss a breach of contract claim based on defendant\u2019s personal guarantee of a promissory note, because: (1) the allegations plead a direct, personal, and immediate pecuniary interest on the part of defendant so as to remove her promise to pay from the statute of frauds pursuant to the main purpose rule; and (2) it does not appear to a certainty that plaintiff is entitled to no relief under any statement of facts which could be proved in support of the claim. N.C.G.S. \u00a7 22-1.\nAppeal by Plaintiff from order entered 14 June 2004 by Judge Beverly T. Beal in Superior Court, Mecklenburg County. Heard in the Court of Appeals 19 April 2005.\nKatten Muchin Zavis Rosenman, by Richard L. Farley and Christopher A. Hicks, for plaintiff-appellant.\nTin Fulton Greene & Owen, by Shirley L. Fulton and Bartina L. Edwards, for defendant-appellee." }, "file_name": "0667-01", "first_page_order": 697, "last_page_order": 701 }