{ "id": 4157723, "name": "JEREMY ANDRUS, Plaintiff v. IQMAX, INC., a foreign corporation, Defendant", "name_abbreviation": "Andrus v. Iqmax, Inc.", "decision_date": "2008-05-06", "docket_number": "No. COA07-186", "first_page": "426", "last_page": "432", "citations": [ { "type": "official", "cite": "190 N.C. App. 426" } ], "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": "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": "465 S.E.2d 32", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "35", "parenthetical": "holding that debtor's statement that he \" lplan[ned] to re-file this on my insurance and [handle] the balance myself' \" was not sufficiently definite and unqualified so as to extend the statute of limitations" } ], "opinion_index": 0 }, { "cite": "121 N.C. App. 326", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916929 ], "year": 1996, "pin_cites": [ { "page": "332", "parenthetical": "holding that debtor's statement that he \" lplan[ned] to re-file this on my insurance and [handle] the balance myself' \" was not sufficiently definite and unqualified so as to extend the statute of limitations" } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0326-01" ] }, { "cite": "24 S.E. 771", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1896, "pin_cites": [ { "page": "772", "parenthetical": "construing together four separate letters written by a debtor and holding that letters constituted \"acknowledgment\" of the subsisting debt, but that statements \"running through all the letters\" were no more than conditional promises to pay" } ], "opinion_index": 0 }, { "cite": "118 N.C. 900", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654267 ], "year": 1896, "pin_cites": [ { "page": "904-05", "parenthetical": "construing together four separate letters written by a debtor and holding that letters constituted \"acknowledgment\" of the subsisting debt, but that statements \"running through all the letters\" were no more than conditional promises to pay" } ], "opinion_index": 0, "case_paths": [ "/nc/118/0900-01" ] }, { "cite": "479 S.E.2d 257", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 10, "year": 1997, "pin_cites": [ { "page": "259", "parenthetical": "internal citation omitted" }, { "page": "259" }, { "page": "258" }, { "page": "258" }, { "page": "259" }, { "page": "259" } ], "opinion_index": 0 }, { "cite": "125 N.C. App. 155", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11866054 ], "weight": 4, "year": 1997, "pin_cites": [ { "page": "157", "parenthetical": "internal citation omitted" }, { "page": "157" }, { "page": "156" }, { "page": "157-58" } ], "opinion_index": 0, "case_paths": [ "/nc-app/125/0155-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-26", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 2007, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 1-52", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2007, "pin_cites": [ { "page": "(1)" } ], "opinion_index": 0 }, { "cite": "389 S.E.2d 84", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "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": "384 S.E.2d 32", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 13, "year": 1989, "pin_cites": [ { "page": "34" }, { "page": "34" }, { "page": "33" }, { "page": "33" }, { "page": "34" }, { "page": "34" }, { "page": "34" }, { "page": "34" } ], "opinion_index": 0 }, { "cite": "95 N.C. App. 750", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523473 ], "weight": 5, "year": 1989, "pin_cites": [ { "page": "752" }, { "page": "752" }, { "page": "757" }, { "page": "752" }, { "page": "752" } ], "opinion_index": 0, "case_paths": [ "/nc-app/95/0750-01" ] } ], "analysis": { "cardinality": 671, "char_count": 13383, "ocr_confidence": 0.748, "pagerank": { "raw": 4.548627546539126e-08, "percentile": 0.28514249286348353 }, "sha256": "d4f65c4eeb1007c64c73c36ad41544ddea9d9e76bcf4e217faa5538f42fe6e61", "simhash": "1:bbb2047120479e5c", "word_count": 2243 }, "last_updated": "2023-07-14T19:40:45.332452+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BRYANT and STEELMAN concur." ], "parties": [ "JEREMY ANDRUS, Plaintiff v. IQMAX, INC., a foreign corporation, Defendant" ], "opinions": [ { "text": "GEER, Judge.\nPlaintiff Jeremy Andrus appeals from the trial court\u2019s order granting defendant IQMax, Inc. summary judgment. The sole issue presented by this appeal is whether the trial court properly concluded that Andrus\u2019 breach of contract claim is barred by the statute of limitations. Although Andrus acknowledges that he filed this action more than five years after sending his ultimately unpaid invoice, he contends that IQMax, in e-mails sent in 2005, acknowledged the debt and made a new promise to pay, thereby extending the time to collect his debt. Based upon our review of the e-mails between the parties, we hold that Andrus has failed to present evidence that IQMax, in its e-mails, \u201cmanifested] a definite and unqualified intention to pay the debt.\u201d American Multimedia, Inc. v. Freedom Distrib., Inc., 95 N.C. App. 750, 752, 384 S.E.2d 32, 34 (1989), disc. review denied, 326 N.C. 46, 389 S.E.2d 84 (1990). Without such a showing, any writing of IQMax is insufficient to renew the three-year statute of limitations. We, therefore, hold that the trial court properly granted IQMax summary judgment based on the statute of limitations.\nFacts\nOn 8 February 2000, Andrus and IQMax entered into a consulting agreement pursuant to which Andrus agreed to work with IQMax in improving its business plan for purposes of generating investment. The agreement specified (1) the scope of the services Andrus would perform, (2) that Andrus would be paid $125.00 per hour, and (3) that the parties estimated Andrus would spend 50 to 70 hours on the project. IQMax also made an initial payment to Andrus of $2,500.00.\nAndrus provided consulting services from 9 February 2000 through 16 June 2000. On 27 December 2000, he sent IQMax an invoice for 120 hours of work with a total amount due of $15,000.00. IQMax did not pay the invoice. It now contends that it ultimately did not need Andrus to work on its business plan and that the initial $2,500.00 payment fully compensated Andrus for any services rendered.\nAndrus did not immediately file suit. Sometime in 2005, however, Andrus contacted IQMax and requested payment of the $15,000.00 invoice. After a series of e-mails between Andrus and Paul Adkison, IQMax\u2019s chief executive officer, Andrus filed suit on 25 April 2006. When Andrus filed suit, it was almost six years after the last date he rendered services (16 June 2000) and was over five years from the date of the invoice (27 December 2000).\nIn its answer, IQMax asserted that Andrus\u2019 claim was barred by the applicable statute of limitations, N.C. Gen. Stat. \u00a7 1-52(1) (2007). On 22 November 2006, Andrus filed a motion for partial summary judgment on the statute of limitations issue, contending that the e-mails between Andrus and Adkison constituted a new promise to pay within the meaning of N.C. Gen. Stat. \u00a7 1-26 (2007). On the same day, IQMax also moved for summary judgment based on the statute of limitations. On 7 December 2006, the trial court granted IQMax\u2019s motion for summary judgment on the ground that Andrus\u2019 claim was barred by the statute of limitations. Andrus timely appealed that order to this Court.\nDiscussion\n\u201cAlthough the statute of limitations on contract obligations is three years, 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.\u201d Coe v. Highland Sch. Assocs. Ltd. P\u2019ship, 125 N.C. App. 155, 157, 479 S.E.2d 257, 259 (1997) (internal citation omitted). Our General Assembly has specified, however, that \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; but this section does not alter the effect of any payment of principal or interest.\u201d N.C. Gen. Stat. \u00a7 1-26. Appellate courts, in construing N.C. Gen. Stat. \u00a7 1-26, have held that the writing specified in the statute must: (1) show the nature and amount of the debt and (2) \u201c \u2018manifest a definite and unqualified intention to pay' the debt.\u2019 \u201d Coe, 125 N.C. App. at 157, 479 S.E.2d at 259 (quoting American Multimedia, 95 N.C. App. at 752, 384 S.E.2d at 34).\nIn this case, the parties do not dispute that there was a \u201cwriting,\u201d within the meaning of \u00a7 1-26, in the form of Adkison\u2019s e-mails. The parties also do not dispute that the e-mails were sent and received. The issue posed by this appeal is whether one or more of Adkison\u2019s e-m\u00e1ils comply with the test set forth in Coe and American Multimedia. Because we view the second element set forth in Coe as dispositive, we need not address whether Adkison\u2019s e-mails sufficiently show the nature and amount of the debt. Andrus argues that this case is controlled by Coe, while IQMax relies upon American Multimedia.\nIn Coe, the plaintiff performed electrical and plumbing work for the defendants, submitting invoices totaling $11,258.46. 125 N.C. App. at 156, 479 S.E.2d at 258. More than six months after completion of the work, the defendants\u2019 counsel sent a letter to the plaintiff explaining that in an effort to avoid bankruptcy, the defendant partnership was attempting to work out payment with all creditors. Id. The letter then stated:\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.\nId. The letter closed by requesting that the plaintiff sign the \u201c \u2018appropriate response below.\u2019 \u201d Id. at 157, 479 S.E.2d at 258. At the bottom of the page, there were two lines labeled \u201c \u2018Accepted\u2019 \u201d and \u201c \u2018Rejected.\u2019 \u201d Id. The plaintiff accepted the proposal, but the defendants failed to make the payments set forth in the proposal, and plaintiff brought suit. Id.\nIn concluding that the defendants\u2019 letter was sufficient to renew the statute of limitations under the American Multimedia test, the Court observed that \u201c[t]he letter \u2018proposes\u2019 or offers to \u2018pay all creditors [including this plaintiff] the principal amount in full due to them plus 6% interest,\u2019 . . ., and to do so (\u2018payments will be made\u2019) \u2018in two equal installments in March of 1992 and March of 1993.\u2019 \u201d Coe, 125 N.C. App. at 157-58, 479 S.E.2d at 259. The Court held that \u201c[t]his language manifests a \u2018definite and unqualified\u2019 intention to pay the debt.\u201d Id. at 158, 479 S.E.2d at 259.\nIn American Multimedia, the parties entered into an agreement on 30 October 1984, under which the defendant was required to pay the plaintiff $172,068.14. 95 N.C. App. at 757, 384 S.E.2d at 33. On 14 December 1984, the defendant sent the plaintiff a letter that stated in pertinent part: \u201cWe are budgeting ohr payment schedule now and plan to pay you $15,000.00 this month and every month up to June of 1985 of which [sic] we expect to pay the balance. Please review this statement and if you should have any questions do not hesitate to call me.\u201d Id. When the defendant failed to make the payments set out in the letter, the plaintiff filed suit within three years of the letter, but not within three years of the original agreement. Id. As in this case, the plaintiff argued that the December letter extended the statute of limitations. Id. at 752, 384 S.E.2d at 33.\nThis Court noted that the December letter \u201cmerely state[d] that \u2018we plan to pay\u2019 and \u2018we expect to pay\u2019 the debt.\u201d Id., 384 S.E.2d at 34. The Court held that \u201c[t]hese conditional expressions of defendant\u2019s willingness to pay the plaintiff are not sufficiently precise to amount to an unequivocal acknowledgment of the original amounts owed.\u201d Id. The Court held that the statements \u201cat best demonstrate a willingness to pay based on defendant\u2019s ability to make the monthly payments\u201d and, therefore, that \u201cpromise [was] insufficient to repel the statute of limitations.\u201d Id. at 753, 384 S.E.2d at 34.\nIn this case, Andrus points to his e-mail to Adkison on 17 October 2005, which stated: \u201cPaul, wanted to follow up with you based on our conversation Friday. Can you confirm that the wheels are in motion on generating a $15k check for me? Thanks.\u201d The next day, Adkison replied: \u201cYes, I can. We will have to make payments to you so it won\u2019t be $15k upfront [sic]. I am working the details and will have this complete on Friday COB.\u201d\nAndrus argues that \u201c[b]y any rational reading\u201d of his 17 October e-mail, \u201cthe plain meaning\u201d was: \u201c \u2018Are you going to pay me the $15,000.00 that you owe me?\u2019 \u201d He then contends that \u201c[t]o this blunt question, IQMax did not respond that it \u2018hoped to pay\u2019 or \u2018planned to pay\u2019 or \u2018expected to pay\u2019. Rather, its response was: \u2018Yes, I can. . . .\u2019 \u201d The flaw in Andrus\u2019 argument is that his e-mail did not ask the \u201cblunt question,\u201d but rather asked whether Adkison could confirm that \u201cthe wheels are in motion\u201d on generating a check. Adkison\u2019s affirmative response to the question simply agreed that \u201cthe wheels are in motion,\u201d but included the caveat that he was still \u201cworking the details.\u201d\nOn 28 October 2005, 10 days later, Adkison wrote in response to a further inquiry by Andrus: \u201cI have a meeting with my CFO on Tuesday am to discuss. I would anticipate this. A letter stating our payment options with the first check then payments on a regular basis per the letter.\u201d (Emphasis added.) Later that same day, Adkison reported by e-mail to Andrus: \u201cI got to speak with my CFO today (briefly) and we are talking about $2k now and then $2k per month for 6 months starting in January with the final payment being $3k.\u201d (Emphasis added.) finally, Adkison e-mailed Andrus on 30 October 2005: \u201cI need to get the paper work over to you sometime this week. Probably e-mail you can execute and fax back. Then we will send our executed version with a check.\u201d\nWe believe this case more closely resembles American Multimedia than Coe. Adkison\u2019s e-mails cannot be viewed as manifesting \u201ca definite and unqualified intention to pay the debt.\u201d American Multimedia, 95 N.C. App. at 752, 384 S.E.2d at 34. Adkison confirmed that \u201cthe wheels [were] in motion\u201d in getting Andrus a check, but added that he was still \u201cworking [on] the details.\u201d Subsequent e-mails, addressing the details, \u201canticipate[d]\u201d possible payment options over time, but said only that Adkison and his chief financial officer were \u201ctalking about\u201d a particular proposal. Adkison then indicated that he would provide the paperwork \u201csometime this week\u201d \u2014 something that apparently did not happen. As in American Multimedia, we are confronted in the e-mails with \u201cconditional expressions of defendant\u2019s willingness to pay the plaintiff\u201d \u2014 statements \u201cnot sufficiently precise to amount to an unequivocal acknowledgment of the original amounts owed.\u201d Id. See also Wells v. Hill, 118 N.C. 900, 904-05, 24 S.E. 771, 772 (1896) (construing together four separate letters written by a debtor and holding that letters constituted \u201cacknowledgment\u201d of the subsisting debt, but that statements \u201crunning through all the letters\u201d were no more than conditional promises to pay).\nIn contrast, in Coe, there was a concrete, unequivocal proposal to resolve the debt by specified payments over time. Had Andrus received \u201cthe paperwork,\u201d this case might then have fallen within the scope of Coe. The e-mail language upon which Andrus relies does not, however, provide the same degree of definiteness. See also Johnson Neurological Clinic v. Kirkman, 121 N.C. App. 326, 332, 465 S.E.2d 32, 35 (1996) (holding that debtor\u2019s statement that he \u201c lplan[ned] to re-file this on my insurance and [handle] the balance myself\u2019 \u201d was not sufficiently definite and unqualified so as to extend the statute of limitations). Accordingly, the trial court properly entered summary judgment in favor of IQMax on the ground that Andrus\u2019 action was barred by the statute of limitations.\nAffirmed.\nJudges BRYANT and STEELMAN concur.\n. This requirement may also be met by a \u201c \u2018distinct!]\u2019 \u201d reference to a writing by which the nature and amount of the debt may be determined. American Multimedia, 95 N.C. App. at 752, 384 S.E.2d at 34 (quoting Faison v. Bowden, 72 N.C. 405, 407 (1875)).", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "Dozier, Miller, Pollard & Murphy, LLP, by Richard S. Gordon, for plaintiff-appellant.", "Katten Muchin Rosenman LLP, by Jeffrey C. Grady and Christopher A. Hicks, for defendant-appellee." ], "corrections": "", "head_matter": "JEREMY ANDRUS, Plaintiff v. IQMAX, INC., a foreign corporation, Defendant\nNo. COA07-186\n(Filed 6 May 2008)\nStatutes of Limitation and Repose\u2014 renewed promise to pay\u2014 emails not sufficiently definite\nThe trial court properly entered summary judgment for defendant on a contract action on the ground that the action was barred by the statute of limitations where plaintiff pointed to an exchange of emails as an acknowledgment of the debt and a new promise to pay, but the emails did not manifest a definite and unqualified intention to pay the debt. N.C.G.S. \u00a7 1-26.\nAppeal by plaintiff from order entered 7 December 2006 by Judge Richard D. Boner in Mecklenburg County Superior Court. Heard in the Court of Appeals 13 September 2007.\nDozier, Miller, Pollard & Murphy, LLP, by Richard S. Gordon, for plaintiff-appellant.\nKatten Muchin Rosenman LLP, by Jeffrey C. Grady and Christopher A. Hicks, for defendant-appellee." }, "file_name": "0426-01", "first_page_order": 458, "last_page_order": 464 }