{
  "id": 4221071,
  "name": "WILLIAM T. USSERY and wife, CAROLYN B. USSERY, Plaintiffs v. BRANCH BANKING AND TRUST COMPANY, Defendant",
  "name_abbreviation": "Ussery v. Branch Banking & Trust Co.",
  "decision_date": "2013-05-21",
  "docket_number": "No. COA12-940",
  "first_page": "434",
  "last_page": "453",
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      "type": "official",
      "cite": "227 N.C. App. 434"
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    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name_long": "North Carolina",
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      "cite": "297 S.E.2d 192",
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      "year": 1982,
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          "page": "196",
          "parenthetical": "\"It is undisputed that both [the] plaintiff and [the] defendant acted in good faith, yet this fact alone does not bar [the] plaintiff's claim that [the] defendant be estopped. It is sufficient that [the] defendant's subsequent inconsistent position operated to injure the plaintiff.\""
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      "cite": "448 S.E.2d 506",
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      "year": 1994,
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        {
          "page": "510",
          "parenthetical": "\"The trial court must examine the evidence in a light most favorable to the nonmoving party, giving that party the benefit of all reasonable inferences that may be drawn therefrom.\""
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      "cite": "337 N.C. 742",
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        2552093
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          "page": "749",
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      "cite": "374 S.E.2d 385",
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      "reporter": "S.E.2d",
      "year": 1988,
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        {
          "page": "391",
          "parenthetical": "citation omitted"
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    {
      "cite": "323 N.C. 559",
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          "page": "569",
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          "page": "576-77"
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          "page": "443",
          "parenthetical": "citation omitted"
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          "page": "443",
          "parenthetical": "\"[N] either bad faith, fraud nor intent to deceive is necessary before the doctrine of equitable estoppel can be applied.\""
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      "cite": "296 N.C. 574",
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        {
          "page": "672"
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          "page": "673"
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          "page": "179"
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      "cite": "396 S.E.2d 626",
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        {
          "page": "628-29",
          "parenthetical": "listing the elements of equitable estoppel"
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          "page": "628-29"
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        8526820
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          "page": "370",
          "parenthetical": "listing the elements of equitable estoppel"
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          "page": "370"
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      "cite": "114 S.E.2d 257",
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          "page": "260"
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        {
          "parenthetical": "citations omitted"
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      "cite": "252 N.C. 546",
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    {
      "cite": "435 S.E.2d 793",
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        {
          "page": "797",
          "parenthetical": "citation omitted"
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          "parenthetical": "citations omitted; emphasis added"
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          "page": "795"
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        {
          "page": "796"
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          "page": "797"
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    {
      "cite": "112 N.C. App. 484",
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        8522178
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          "page": "488"
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      "cite": "709 S.E.2d 512",
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        {
          "page": "517"
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        {
          "page": "533"
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        {
          "page": "521"
        },
        {
          "parenthetical": "noting that the balance of the equities disfavored the general contractor, which had already been paid on the subcontractor's claims against the State"
        },
        {
          "page": "521",
          "parenthetical": "where defendant general contractor sent a letter to plaintiff subcontractor discouraging it from filing suit so the parties could present a \"unified front,\" but subsequently took the inconsistent position that the plaintiff's suit was barred by the statute of limitations"
        },
        {
          "page": "516",
          "parenthetical": "where the plaintiff was a subcontractor"
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        {
          "page": "691"
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        {
          "page": "691"
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        {
          "page": "692"
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        {
          "page": "692"
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        {
          "page": "693"
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          "page": "692-93"
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        {
          "page": "691-93",
          "parenthetical": "holding that equitable estoppel barred operation of the statute of limitations when the defendant's actions lulled the plaintiff into a false sense of security - despite the defendant's failure to later disavow those assurances"
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        {
          "page": "693"
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        {
          "page": "693"
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          "page": "338"
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          "page": "339-40"
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          "page": "338-42"
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          "page": "341"
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          "page": "341"
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    {
      "cite": "189 S.E. 114",
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        {
          "page": "115",
          "parenthetical": "comparing the doctrine of equitable estoppel to \"the golden rule\" -i->- i.e., that \"one should do unto others as, in equity and good conscience, he would have them do unto him, if their positions were reversed\" - and citing to the maxim of \"fair play\""
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    {
      "cite": "211 N.C. 112",
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        8624554
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        {
          "page": "113",
          "parenthetical": "comparing the doctrine of equitable estoppel to \"the golden rule\" -i->- i.e., that \"one should do unto others as, in equity and good conscience, he would have them do unto him, if their positions were reversed\" - and citing to the maxim of \"fair play\""
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    {
      "cite": "454 S.E.2d 647",
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      "reporter": "S.E.2d",
      "year": 1995,
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    {
      "cite": "339 N.C. 736",
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    {
      "cite": "448 S.E.2d 832",
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      "reporter": "S.E.2d",
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        {
          "page": "838",
          "parenthetical": "\"A party may be estopped to plead and rely on a statute of limitations defense when delay has been induced by acts, representations, or conduct which would amount to a breach of good faith.\""
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    {
      "cite": "116 N.C. App. 448",
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        8524584
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        {
          "page": "459-60",
          "parenthetical": "\"A party may be estopped to plead and rely on a statute of limitations defense when delay has been induced by acts, representations, or conduct which would amount to a breach of good faith.\""
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    {
      "cite": "482 S.E.2d 735",
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      "reporter": "S.E.2d",
      "weight": 2,
      "year": 1997,
      "pin_cites": [
        {
          "page": "739",
          "parenthetical": "citation and quotation marks omitted"
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        {
          "page": "739"
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    {
      "cite": "125 N.C. App. 712",
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      "reporter": "N.C. App.",
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        11871536
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      "weight": 2,
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          "page": "720"
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    {
      "cite": "509 S.E.2d 793",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1998,
      "pin_cites": [
        {
          "page": "796"
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    {
      "cite": "131 N.C. App. 802",
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      "reporter": "N.C. App.",
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        11205916
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      "pin_cites": [
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          "page": "806"
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    {
      "cite": "N.C. Gen. Stat. \u00a7 75-16.2",
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        {
          "page": "(5)"
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    {
      "cite": "303 S.E.2d 561",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1983,
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        {
          "page": "563",
          "parenthetical": "\"[T]he cause of action [in a case of breach of fiduciary duty] accrued at the date of the alleged breach or, at the latest, on the date it was discovered.\""
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    {
      "cite": "62 N.C. App. 724",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8524869
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      "year": 1983,
      "pin_cites": [
        {
          "page": "727",
          "parenthetical": "\"[T]he cause of action [in a case of breach of fiduciary duty] accrued at the date of the alleged breach or, at the latest, on the date it was discovered.\""
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    {
      "cite": "302 S.E.2d 908",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1983,
      "pin_cites": [
        {
          "page": "911",
          "parenthetical": "citations and quotation marks omitted"
        }
      ],
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    {
      "cite": "62 N.C. App. 515",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8523520
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      "year": 1983,
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        {
          "page": "518",
          "parenthetical": "citations and quotation marks omitted"
        }
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      "cite": "178 N.C. App. 62",
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        8376245
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        {
          "page": "64-65"
        }
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    {
      "cite": "669 S.E.2d 572",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 2008,
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        {
          "page": "576",
          "parenthetical": "citation and quotation marks omitted"
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    {
      "cite": "362 N.C. 569",
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        4150896
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      "year": 2008,
      "pin_cites": [
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          "page": "573",
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    {
      "cite": "346 S.E.2d 220",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1986,
      "pin_cites": [
        {
          "page": "221",
          "parenthetical": "stating that \"[a]n essential element of [equitable estoppel] is reasonable reliance\""
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      ],
      "opinion_index": 1
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    {
      "cite": "82 N.C. App. 289",
      "category": "reporters:state",
      "reporter": "N.C. App.",
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        8358742
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        {
          "page": "582"
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          "page": "536"
        },
        {
          "page": "422",
          "parenthetical": "emphasis added"
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    {
      "cite": "267 N.C. 576",
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        8559935
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      "year": 1966,
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    {
      "cite": "80 N.C. 219",
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        8689264
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        {
          "parenthetical": "bond to be credited with the proceeds from sale of cotton"
        }
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    {
      "cite": "172 S.E. 884",
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        {
          "parenthetical": "note to be paid out of proceeds of land when land was sold"
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      ],
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    },
    {
      "cite": "206 N.C. 124",
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      "reporter": "N.C.",
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        8629079
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      "cite": "176 S.E. 303",
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      "reporter": "S.E.",
      "year": 1934,
      "pin_cites": [
        {
          "parenthetical": "note to be paid by crediting it against payee's anticipated share of maker's estate"
        }
      ],
      "opinion_index": 1
    },
    {
      "cite": "207 N.C. 165",
      "category": "reporters:state",
      "reporter": "N.C.",
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      "pin_cites": [
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      "cite": "177 S.E. 643",
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      "reporter": "S.E.",
      "year": 1935,
      "pin_cites": [
        {
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      "WILLIAM T. USSERY and wife, CAROLYN B. USSERY, Plaintiffs v. BRANCH BANKING AND TRUST COMPANY, Defendant"
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      {
        "text": "STEPHENS, Judge.\nFactual Background and Procedural History\nThis appeal arises from communications involving Branch Banking and Trust Company (\u201cDefendant\u201d or \u201cBB&T\u201d), Mr. William T. Ussery (\u201cPlaintiff\u2019), and Mr. D. Wayne Barker (\u201cBarker\u201d) surrounding events occurring between November of 1999 and January of 2008. Before that time, the owners of a chair manufacturing business located in Rockingham, North Carolina, had approached Barker and Plaintiff to discuss the possibility of selling their struggling company, CAFCO. Barker had spent a number of years managing CAFCO, which manufactured chairs, but lacked Plaintiff\u2019s individual financial ability to start a business.\nBy November of 1999, Plaintiff and Barker had purchased CAFCO and its manufacturing building (\u201cthe original manufacturing building\u201d). Their new company was known as \u201cChair Specialties\u201d and was intended to manufacture specialty furniture. Plaintiff maintained a 60% ownership interest in the company and Barker held a 40% interest. Barker was responsible for the company\u2019s day-to-day operations, and the parties entered into their relationship with the understanding that Barker would eventually seek to purchase Plaintiff\u2019s interest in Chair Specialties with money obtained through a $450,000 government-backed small business loan (\u201cthe government-backed loan\u201d).\nIn order to purchase equipment to operate their business, Plaintiff and Barker also took out a $100,000 loan from BB&T. Around that same time, Plaintiff purchased a second building (\u201cthe Cheraw Road building\u201d) for $150,000. The Cheraw Road building was meant to house the Chair Specialties manufacturing operations process. Plaintiff intended to develop the original manufacturing building into a residential condominium complex. He and Barker would then use the Cheraw Road building as collateral for the government-backed loan. However, because the Cheraw Road building suffered from environmental limitations, it could not be used for manufacturing purposes until the parties had completed lead removal and abatement.\nDuring the process of purchasing CAFCO and starting Chair Specialties, Plaintiff and Barker communicated with an employee of BB&T, Mr. Wiley Mabe (\u201cMabe\u201d), concerning their plan to secure the government-backed loan. Once lead removal and abatement had been accomplished, they approached Mabe about obtaining that loan. Plaintiff alleges that Mabe \u201cassured\u201d them that Chair Specialties would qualify for the loan. In order to cover their expenses in the meantime, however, Plaintiff and Chair Specialties took out two more loans from BB&T over the next two years. In addition to the $100,000 note mentioned above, Chair Specialties took out a $50,000 loan in February of 2000, and Plaintiff took out a $125,000 loan in February of 2001. Plaintiff asserts that these funds were acquired in reliance on Mabe\u2019s \u201crepeated assurances\u201d that they would be approved for the government-backed loan.\nIn January of 2002, Mabe informed Plaintiff and Barker that, to his surprise, they had not qualified for the government-backed loan. After further research, Plaintiff and Barker learned that, in fact, Mabe had not submitted the loan package on time because \u201che did not believe that [they] would qualify.\u201d As Plaintiff and Barker had accumulated additional debt in the past two years, Plaintiff alleges they were unable to obtain any money from another source. He further alleges that, as a result, they were forced to close Chair Specialties. Three months later, in an attempt to mitigate their losses, Barker and Plaintiff applied for and received a $425,000 loan from BB&T. The proceeds from that loan were used to pay off their three other loans, with an additional $99,187.75 going to Plaintiff.\nDue in part to the terms of the final, $425,000 loan from BB&T, Barker was unable to sustain his payments. Accordingly, he brought a civil action against BB&T in May of 2003 for breach of fiduciary duty, negligence, and breach of contract. Plaintiff did not join that action and now alleges that he was dissuaded from doing so by representatives of BB&T, who allegedly assured him that \u201ceverything would be worked out in the Barker litigation\u201d and requested that he \u201chold off on instituting any actionf] to allow resolution of the Barker matter [and his own claims against BB&T].\u201d In Plaintiff\u2019s answers to Defendant\u2019s first set of interrogatories, he stated that BB&T\ngave assurances . . . that [it] would resolve the matter and the Note would be canceled upon resolution of the Barker/BB&T suit. [Plaintiff] delayed filing any action against BB&T upon the assurances that the loan would be forgiven and he would be reimbursed any expenses incurred related to BB&T\u2019s failure to obtain the [government-backed loan].\nImportantly, the action between Barker and BB&T was settled on 20 April 2006 \u2014 after the statutes of limitation had already expired as to Plaintiff\u2019s claims. Plaintiff consulted counsel regarding those claims that summer.\n' On 17 October 2006, Plaintiff sent a letter to BB&T demanding both cancellation of the $425,000 loan and compensatory damages resulting from BB&T\u2019s failure to obtain the government-backed loan. After talking with counsel for BB&T, however, Plaintiff agreed to delay litigation further so that Defendant could perform an environmental inspection of the Cheraw Road building. As consideration for delaying his action, BB&T held the $425,000 note in abeyance pending completion of its inspection. Plaintiff alleges that, pursuant to that agreement, BB&T then informed him that he could \u201cignore the computer generated delinquency notices,\u201d which had begun to accumulate in response to his failure to malee payments. On 14 August 2007, after BB&T had completed its environmental testing, Plaintiff wrote to BB&T to express his concern that \u201cthe only way for [him] to correct this situation and to be compensated for his financial losses [was] through litigation.\u201d On 14 January 2008, Plaintiff received a letter from BB&T officially rejecting his 17 October 2006 demand for cancellation and proposing an alternate resolution.\nOn 25 June 2008, approximately six years and five months after he first learned that the government-backed loan had been denied, Plaintiff brought this action. Based on his communications with BB&T, Plaintiff alleged the following independent claims: (1) negligence, (2) negligent misrepresentation, (3) breach of contract, (4) unfair and deceptive trade practices, (5) breach of fiduciary relationship, (6) breach of duty of good faith dealing, and (7) fraud. As a consequence, BB&T filed a compulsory counterclaim to collect the outstanding money, including interest, owed by Plaintiff via the $425,000 loan. BB&T noted therein its intention to collect attorneys\u2019 fees.\nOn 15 December 2011, BB&T moved for summary judgment on grounds that Plaintiff\u2019s action was barred by the relevant statutes of limitation. The next year, on 16 April 2012, the trial court granted BB&T\u2019s motion for summary judgment, dismissed Plaintiff\u2019s complaint with prejudice, and entered judgment in favor of BB&T. Plaintiff appeals that judgment.\nStandard of Review\n\u201cOur standard of review of an appeal from summary judgment is de novo; such judgment is appropriate only when the record shows that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u201d In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (citation and quotation marks omitted). On a motion for summary judgment, the evidence presented must be viewed in a light most favorable to the non-moving party. Duke Energy Corp. v. Malcolm, 178 N.C. App. 62, 64-65, 630 S.E.2d 693, 695 (2006). \u201cSummary judgment is a drastic remedy which should be approached with caution. It should be awarded only where the truth is quite clear.\u201d Bradshaw v. McElroy, 62 N.C. App. 515, 518, 302 S.E.2d 908, 911 (1983) (citations and quotation marks omitted).\nDiscussion\nI. Statutes of Limitation\nPlaintiff\u2019s claims against BB&T accrued, at the latest, in January of 2002 when he learned about Mabe\u2019s alleged misrepresentation concerning the government-backed loan. See, e.g., Bruce v. N.C.N.B., 62 N.C. App. 724, 727, 303 S.E.2d 561, 563 (1983) (\u201c[T]he cause of \u00e1ction [in a case of breach of fiduciary duty] accrued at the date of the alleged breach or, at the latest, on the date it was discovered.\u201d). Plaintiff filed his complaint on 25 June 2008. As it had been at least six years and five months since Plaintiffs asserted claims accrued, those causes of action were barred by their respective statutes of limitation. As noted in Defendant\u2019s brief, the following of Plaintiff\u2019s claims are subject to a three-year statute of limitations: (1) negligence under N.C. Gen. Stat. \u00a7 1-52(5), (2) negligent misrepresentation under section 1-52(5), (3) breach of contract under section 1-52(1), (4) breach of fiduciary relationship under section 1-52(1), (5) breach of duty of good faith and fair dealing under section 1-52(1), and (6) fraud under section 1-52(9). In addition, Plaintiff\u2019s claim of unfair and deceptive trade practices is subject to a four-year statute of limitations under N.C. Gen. Stat. \u00a7 75-16.2. Because Plaintiff did not institute proceedings based on his alleged causes of action -within the time allotted, they are time-barred.\nII. Equitable Estoppel\nDespite this, Plaintiff contends that Defendant should be equitably estopped from asserting the statutes of limitation as a defense because he relied on the alleged assurances of BB&T. We agree.\nNorth Carolina courts have recognized and applied the principle that a defendant may properly rely upon a statute of limitations as a defensive shield against \u201cstale\u201d claims, but may be equitably estopped from using a statute of limitations as a sword, so as to unjustly benefit from his own conduct which induced a plaintiff to delay filing suit.\nFriedland v. Gales, 131 N.C. App. 802, 806, 509 S.E.2d 793, 796 (1998). \u201cEquitable estoppel arises when a party has been induced by another\u2019s acts to believe that certain facts exist, and that party' rightfully relies and acts upon that belief to his [or her] detriment.\u201d Jordan v. Crew, 125 N.C. App. 712, 720, 482 S.E.2d 735, 739 (1997) (citation and quotation marks omitted); see also Bryant v. Adams, 116 N.C. App. 448, 459-60, 448 S.E.2d 832, 838 (1994) (\u201cA party may be estopped to plead and rely on a statute of limitations defense when delay has been induced by acts, representations, or conduct which would amount to a breach of good faith.\u201d) (citation omitted), disc, review denied, 339 N.C. 736, 454 S.E.2d 647 (1995). \u201cIn order for equitable estoppel to bar application of the statute of limitations, a plaintiff must have been induced to delay filing of the action by the misrepresentations of the defendant.\u201d Jordan, 125 N.C. App. at 720, 482 S.E.2d at 739; see also McNeely v. Walters, 211 N.C. 112, 113, 189 S.E. 114, 115 (1937) (comparing the doctrine of equitable estoppel to \u201cthe golden rule\u201d -i->\u2014 i.e., that \u201cone should do unto others as, in equity and good conscience, he would have them do unto him, if their positions were reversed\u201d \u2014 and citing to the maxim of \u201cfair play\u201d).\nOn appeal, Plaintiff asserts that \u201cwhen a party\u2019s actions or statements convince another not to institute legal action \u2014 particularly where promises to remedy the dispute are made \u2014..., [equitable estoppel] will not permit the statute of limitations [to bar a claim] when such assurances are broken.\u201d In support of that point, Plaintiff cites three cases: Duke Univ. v. Stainback, 320 N.C. 337, 357 S.E.2d 690 (1987); Cleveland Constr., Inc. v. Ellis-Don Constr., Inc., 210 N.C. App. 522, 709 S.E.2d 512 (2011); and Miller v. Talton, 112 N.C. App. 484, 435 S.E.2d 793 (1993). Though we disagree with Plaintiff\u2019s articulation of the rule, we find these cases instructive and agree that the doctrine is applicable here.\nOur Supreme Court has listed the elements of equitable estoppel as follows:\n[A]s related to the party estopped...: (1) Conduct which amounts to a false representation or concealment of material facts, or, at least, which is reasonably calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party afterwards attempts to assert; (2) intention or expectation that such conduct shall be acted upon by the other party, or conduct which at least is calculated to induce a reasonably prudent person to believe such conduct was intended or expected to be relied and acted upon; (3) knowledge, actual or constructive, of the real facts.\nIn re Will of Covington, 252 N.C. 546, 549, 114 S.E.2d 257, 260 (1960).\nAs related to the party claiming estoppel, [the elements] are: (1) lack of knowledge and [lack of] the means of knowledge of the truth as to the facts in question; (2) reliance upon the conduct of the party sought to be estopped; and (3) action based thereon of such a character as to change his position prejudicially.\nId. (citations omitted); see also Parker v. Thompson-Arthur Paving Co., 100 N.C. App. 367, 370, 396 S.E.2d 626, 628-29 (1990) (listing the elements of equitable estoppel). Importantly, the first element \u2014 conduct amounting to a false representation or concealment of material facts \u2014 has alternatively been articulated as \u201c[c]onduct... at least, which is reasonably calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party afterwards attempts to assert[.]\u201d Hawkins v. M & J Finance Corp., 238 N.C. 174, 177, 77 S.E.2d 669, 672 (1953). Further, \u201c[a] party may be estopped to deny representations made when he had no knowledge of their falsity, or which he made without any intent to deceive the party now setting up the estoppel. The fraud consists in the inconsistent position subsequently taken, rather than in the original conduct.\u201d Hamilton v. Hamilton, 296 N.C. 574, 576, 251 S.E.2d 441, 443 (1979) (citation, quotation marks, ellipsis, and brackets omitted). Under this alternative expression of equitable estoppel, \u201c[i] t is the subsequent inconsistent position, and not the original conduct that operates to the injury of the other party.\u201d Id. at 576-77,251 S.E.2d at 443 (citation omitted). Primarily, the doctrine turns on a consideration of \u201cthe balances of equity,\u201d which is dependent on the facts of each case. Miller, 112 N.C. App. at 488, 435 S.E.2d at 797 (citation omitted). \u201cIf the evidence in a particular case raises a permissible inference that the elements of equitable estoppel are present, but other inferences may be drawn from contrary evidence, estoppel is a question of fact for the jury. \u201d Id. (citations omitted; emphasis added).\nIn Stainback, our Supreme Court addressed the issue of payment of certain hospital bills owed by the defendant-father to Duke Hospital. Stainback, 320 N.C. at 338, 357 S.E.2d at 691. Before the statute had run and after receiving a bill from Duke, the father\u2019s attorney informed the hospital that he was in the process of suing the father\u2019s insurer for payment of the medical bill and \u201cwould keep Duke informed of the situation.\u201d Id. at 339, 357 S.E.2d at 691. The father maintained contact with Duke throughout the litigation and, based on the father\u2019s representations, Duke did not join the suit against the insurer. Id. at 339, 357 S.E.2d at 692. When Duke brought suit for payment of the bill, the father refused to pay and asserted the statute of limitations as a defense. Id. at 340, 357 S.E.2d at 692. Under those circumstances, our Supreme Court held that the father was equitably estopped from asserting the statute of limitations as a defense because his \u201cactions and statements . . . lulled Duke into a false sense of security. [He] breached the golden rule and fair play, [which justifies] the entry of equity to prevent injustice.\u201d Id. at 341, 357 S.E.2d at 693.\nIn Cleveland Construction, the defendant general contractor notified its subcontractor, the plaintiff, that it intended to submit a generalized claim for compensation to the State. Cleveland Constr., Inc., 210 N.C. App. at 525, 709 S.E.2d at 517. In order to present all of the claims available, the general contractor solicited all of the plaintiff\u2019s claims to be used in its own, aggregated complaint. Id. A few months later, the general contractor submitted the aggregated claims and notified the subcontractor of its submission. Id. at 533, 709 S.E.2d at 521. The general contractor also sent a letter to the subcontractor discouraging it from filing suit against the general contractor so that both parties could present a \u201cunified front\u201d against the State. Id. The subcontractor relied on that letter and delayed suit against the general contractor until after the statute of limitations had run. Id. Accordingly, we held that the general contractor was barred from asserting the statute of limitations as a defense, citing the general contractor\u2019s \u201caffirmative representations that [(1)] it was pursuing [the subcontractor\u2019s] claims against the State and [(2)] initiating a lawsuit would jeopardize \u2018the success\u2019 of recovery[.]\u201d Id. Given those representations, we determined that the general contractor had lulled the subcontractor into a false sense of security and induced the delayed filing. Id. (noting that the balance of the equities disfavored the general contractor, which had already been paid on the subcontractor\u2019s claims against the State).\nIn Miller, the plaintiff property owners brought suit against the defendant neighbors for water that the defendants had allegedly redirected onto the plaintiffs\u2019 property. Miller, 112 N.C. App. at 485, 435 S.E.2d at 795. The defendants asserted the statute of limitations as a defense, and we denied that protection. Id. at 486, 435 S.E.2d at 796. Relying on the doctrine of equitable estoppel, we noted that the defendants had \u201crepeatedly promised to remedy the surface water drainage problems, [the] plaintiffs believed that [the] defendants would keep their word and fix the problems, and[,] in reliance on [the] defendants\u2019 promises, [the] plaintiffs delayed instituting legal action.\u201d Id. at 489, 435 S.E.2d at 797.\nFor four reasons, Defendant argues that these cases are not applicable and Plaintiff should not be allowed to proceed to trial under a theory of equitable estoppel. First, BB&T asserts that it did not make a false representation of a material fact when it informed Plaintiff that \u201ceverything would be worked out in the Barker litigation.\u201d In support of that argument, Defendant assets that, when applying the elements of equitable estoppel, \u201ca promise of future fulfillment does not constitute a misrepresentation of material fact unless such promise is made with no intent to comply.\u201d We disagree.\nFraud is generally found when, inter alia, there is (1) a false representation or concealment of a material fact, (2) which is reasonably calculated to deceive, and (3) made with the intent to deceive. Myers & Chapman, Inc. v. Thomas G. Evans, Inc., 323 N.C. 559, 569, 374 S.E.2d 385, 391 (1988) (citation omitted). Unlike fraud, equitable estoppel exists when there is simply conduct that amounts to a false representation of a material fact. It does not require that the defendant-party intend to misrepresent such a fact. Hamilton, 296 N.C. at 576, 251 S.E.2d at 443 (\u201c[N] either bad faith, fraud nor intent to deceive is necessary before the doctrine of equitable estoppel can be applied.\u201d) (citation omitted). Accordingly, to the extent that Defendant\u2019s representations during the Barker litigation were neither \u201cpromises\u201d nor direct attempts at deception, they do not negate the applicability of the equitable estoppel doctrine. Rather, as this Court has frequently noted, and as Defendant points out in its brief, the gravamen of equitable estoppel is the subsequent inconsistent position taken by the defendant party. See Cleveland Constr., Inc., 210 N.C. App. at _, 709 S.E.2d at 521 (where defendant general contractor sent a letter to plaintiff subcontractor discouraging it from filing suit so the parties could present a \u201cunified front,\u201d but subsequently took the inconsistent position that the plaintiff\u2019s suit was barred by the statute of limitations).\nHere, Plaintiff alleges that during the pendency of the Barker lawsuit \u2014 that crucial period of time just before the statutes of limitation ran on his claims \u2014 BB&T (1) informed him that \u201ceverything would be worked out in the Barker litigation\u201d; (2) told him to \u201chold off on instituting any action]] to allow resolution of the Barker matter [and his own claims against BB&T]\u201d; and (3) informed him that \u201cthe Note would be canceled upon resolution of the Barker [suit]____[,] the loan would be forgiven[,] and [Plaintiff] would be reimbursed any expenses incurred related to BB&T\u2019s failure to obtain the [government-backed loan].\u201d Plaintiff also alleges and provides evidence that, by the end of the Barker litigation and after the statute of limitations had run, BB&T failed to follow through on these assurances. Though BB&T later stated that it was \u201cwilling to work with [Plaintiff] \u201d despite the fact that Plaintiff\u2019s claims were \u201cclearly time-barred\u201d and offered to apply the net proceeds from the sale of the Cheraw Road building to the debt already owed by Plaintiff, this offer does not comport with the \u201cassurances\u201d Plaintiff alleges he received.\nIn addition, we note that the alleged assurances and subsequent inconsistent position taken in this case are, together, significantly more substantial than those in Stainback. As noted above, our Supreme Court made clear that equitable estoppel operated to bar application of the statute of limitations in that case when the defendant merely stated that he would \u201ckeep Duke informed of the situation\u201d in his pending lawsuit and was aware of Duke\u2019s continuing interest in receiving payment for its medical services. Stainback, 320 N.C. at 339-40, 357 S.E.2d at 691 92. Despite the fact that the defendant made no direct promise regarding what would occur after his lawsuit with the insurance carrier ended, the Supreme Court sustained the trial court\u2019s finding that \u201c[the] representations and conduct of [the defendant] \u201d justifiably induced Duke to refrain from bringing suit and, thus, held that there was sufficient evidence to estop him from pleading the statute of limitations as a defense. See id. at 340-41, 357 S.E.2d at 692-93. Based on Stainback, we conclude that the forecast of evidence in this case, considering the evidence in a light most favorable to Plaintiff, as we must, Best v. Duke Univ., 337 N.C. 742, 749, 448 S.E.2d 506, 510 (1994) (\u201cThe trial court must examine the evidence in a light most favorable to the nonmoving party, giving that party the benefit of all reasonable inferences that may be drawn therefrom.\u201d), is sufficient to raise an inference that BB&T\u2019s actions, when taken together, lulled Plaintiff into a false sense of security, induced him to refrain from filing suit within the required limitations periods, and, as such, constituted conduct reasonably calculated to convey the impression that the facts were otherwise than, and inconsistent with, what BB&T later attempted to assert.\nSecond, BB&T argues that it did not take a subsequent inconsistent position because it \u201cnever disavowed [its alleged assurance that \u2018everything would be worked out\u2019] or commenced action against Plaintiffs to collect on the $425,000 note until it had no choice but to do so as a compulsory counterclaim.\u201d We are unpersuaded.\nDefendant\u2019s failure to either disavow its alleged assurances or seek payment of the note owed by Plaintiff, while perhaps admirable, does not speak to the question of whether it took a subsequent inconsistent position. A party takes a subsequent inconsistent position when it fails to act in conformity with its prior assurances \u2014 not when it merely fails to deny that those assurances were made. See, e.g., Stainback, 320 N.C. at 338-42, 357 S.E.2d at 691-93 (holding that equitable estoppel barred operation of the statute of limitations when the defendant\u2019s actions lulled the plaintiff into a false sense of security \u2014 despite the defendant\u2019s failure to later disavow those assurances); Meacham v. Montgomery Cnty. Bd. of Educ., 59 N.C. App. 381, 386, 297 S.E.2d 192, 196 (1982) (\u201cIt is undisputed that both [the] plaintiff and [the] defendant acted in good faith, yet this fact alone does not bar [the] plaintiff\u2019s claim that [the] defendant be estopped. It is sufficient that [the] defendant\u2019s subsequent inconsistent position operated to injure the plaintiff.\u201d).\nThird, BB&T argues that Plaintiff failed to exercise reasonable diligence and care to protect his legal rights and, thus, is barred from circumventing the statute of limitations on a theory of equitable estoppel, citing the maxim that \u201che who claims the benefit of an equitable estoppel on the ground that he has been misled by the representations of another must not have been misled through his own want of reasonable care and circumspection.\u201d Hawkins, 238 N.C. at 179, 77 S.E.2d at 673. In support of this argument, Defendant notes that Plaintiff commenced this action (1) more than six years after learning that he did not qualify for the government-backed loan, (2) more than five years after he learned that Barker had brought suit against BB&T, (3) more than two years after the Barker action was settled, (4) two years after he first consulted legal counsel, and (5) more than a year after he demanded cancellation of the note. Accordingly, Defendant alleges, Plaintiff refrained from bringing suit despite having the advantage of trial counsel and despite his status as \u201can intelligent businessman and real estate developer who served on the board of a bank.\u201d We are, again, unpersuaded.\nIt appears from the record that Plaintiff first consulted legal counsel after the statute of limitations had already ran on his claims. Thus, the fact that he later had access to a lawyer does not address his awareness of the legal implications of his failure to bring suit during that crucial time before the various statutes had ran. Further, while it is true that Plaintiff is a competent and capable businessman, this does not preclude the operation of equitable estoppel.\nAs noted in Plaintiff\u2019s brief, equitable estoppel was employed by our Supreme Court in Stainback to allow plaintiff\u2019s suit to proceed to trial despite the fact that the statute of limitations had ran. Stainback, 320 N.C. at 341,357 S.E.2d at 693. The plaintiff in that case was Duke Hospital, one of the most highly rated hospitals at one of the most highly regarded universities in the nation, which has a plethora of attorneys on hand to respond to its legal disputes. See id. Here, while assuredly a competent businessman, Plaintiff had significantly fewer resources at his command than Duke Hospital. See also Cleveland Constr., Inc., 210 N.C. App. at 524, 709 S.E.2d at 516 (where the plaintiff was a subcontractor).\nWhile equitable estoppel does not protect an individual who simply sleeps on her or his rights, the doctrine can be and has been employed to protect parties of all levels of sophistication when those parties have relied on a false representation of material fact to their detriment and lack knowledge or the means of attaining knowledge of the real facts in question. Parker, 100 N.C. App. at 370, 396 S.E.2d at 628-29. Importantly, when the real fact in question depends on the other party\u2019s willingness to cooperate at a later point, as it does here and as it did in Stainback, the party asserting equitable estoppel cannot have the means to know that fact at the time of the assurance. In such a circumstance, we look to whether the other party took a subsequent inconsistent position. When that has occurred, as Plaintiff properly alleges that it did here, then equitable estoppel is applicable.\nLastly, Defendant asserts that Miller is not applicable in this case because, unlike the plaintiffs in Miller, who were individual landowners not represented by legal counsel, the plaintiff in this case is \u201can admittedly sophisticated real estate developer\u201d and \u201cthe \u2018balances of equity\u2019 do not similarly favor [him].\u201d For the reasons discussed above, we disagree. See, e.g., Stainback, 320 N.C. at 341, 357 S.E.2d at 693. Accordingly, we hold that the events alleged by Plaintiff raise a permissible inference that the elements of equitable estoppel are present, and we reverse the trial court\u2019s grant of Defendant\u2019s motion for summary judgment so that the jury may address this question at trial.\nIII. Attorneys\u2019 Fees\nNext, Plaintiff asserts that the trial court erred in granting Defendant\u2019s motion for summary judgment on BB&T\u2019s counterclaim for payment on the $425,000 loan, arguing that there is an issue of fact concerning the enforceability of the promissory note, the interest accrued on that note, and the right to recover attorneys\u2019 fees.\nBecause we have determined that Plaintiffs claims are sufficient to allow the jury to determine whether equitable estoppel barred operation of the statute of limitations, we hold that the trial court\u2019s grant of summary judgment as to the enforceability of the promissory note, the amount of interest accrued on the promissory note, and Defendant\u2019s right to recover attorneys\u2019 fees was in error. Therefore, we reverse the trial court\u2019s grant of Defendant\u2019s motion for summary judgment on that issue and remand for further proceedings at trial.\nREVERSED AND REMANDED.\nJudge STROUD concurs.\nJudge DILLON concurs in part and dissents in part by separate opinion.\n. It is not clear from the record whether that was the first time Plaintiff had consulted counsel regarding his claims against BB&T. Defendant\u2019s brief indicates, however, that it was.\n. Though both Mr. Ussery and his wife are listed as \u201cPlaintiffs,\u201d the record reflects that Mr. Ussery \u2014 who is frequently referred to in an exclusive manner as \u201cPlaintiff\u2019 in the documents presented to this Court \u2014 was the primary, if not sole, actor.",
        "type": "majority",
        "author": "STEPHENS, Judge."
      },
      {
        "text": "DILLON, Judge,\nconcurring in part and dissenting in part.\nI concur with the majority in its result that there is a genuine issue of material fact on Defendant\u2019s counterclaim as to the amount of accrued interest due under the promissory note. However, because I believe that there is no genuine issue of material fact as to Plaintiff\u2019s claims or to the remainder of Defendant\u2019s counterclaims, I respectfully dissent.\nI: Statutes of Limitation\nI agree with the majority\u2019s holding that \u201c[bjecause Plaintiff did not institute proceedings based on his alleged causes of action within the time allotted, they are time-barred.\u201d\nII: Equitable Estoppel\nPlaintiff alleges in his complaint that Defendant made certain \u201cassurances\u201d inducing Plaintiff not to file this action before the statute of limitations had run. The majority holds these alleged \u201cassurances\u201d are sufficient to create a genuine issue of material fact as to whether Defendant is equitably estopped from asserting the statute of limitations as an affirmative defense. The majority has grouped these \u201cassurances\u201d allegedly made by Defendant into three categories:\n1. Defendant assured Plaintiff that \u201ceverything would be worked out in the Barker litigation\u201d;\n2. Defendant requested Plaintiff \u201chold off on instituting an action [] to allow resolution of the Barker matter\u201d; and\n3. Defendant assured Plaintiff that \u201cthe Note would be canceled upon resolution of the Barker [suit] [,]... the loan would be forgiven[,] and [Plaintiff] would be reimbursed any expenses incurred related to [Defendant\u2019s] failure to obtain the [government loan].\u201d\nI have thoroughly examined the record on appeal, and I do not believe the evidence before the trial shows that there is a genuine issue of material fact as to Plaintiff\u2019s claim.\nRegarding the first two \u201cassurances\u201d cited above, there is nothing in them from which a jury could infer that Defendant promised to settle the claim in any particular way. The statements are nothing more than mere \u201cpromises\u201d that Defendant would work to resolve Plaintiffs claims in the future. We have consistently held that a mere promise to negotiate a resolution in the future, as opposed to an assurance that a claim would be resolved in a definitive way, is not the type of promise which would equitably estop a defendant from asserting a statute of limitations defense. See Duke v. St. Paul, 95 N.C. App. 663, 384 S.E.2d 36 (1989); Teague v. Randolph, 129 N.C. App. 766, 501 S.E.2d 382 (1998); Blizzard v. Smith, 77 N.C. App. 594, 335 S.E.2d 762 (1985), cert. denied, 315 N.C. 389, 339 S.E.2d 410 (1986).\nIn Duke v. St. Paul, we stated that \u201c[m]ere negotiation with a possible settlement unsuccessfully accomplished is not that type of conduct designed to lull the claimant into a false sense of security so as to constitute an estoppel by conduct thus precluding an assertion of. . . [limitations] by the insured.\u201d Id. at 673, 384 S.E.2d at 42.\nIn Blizzard, we held that the plaintiff \u201cfail[ed] to show the essential elements of equitable estoppel\u201d based on the following communication from defendant\u2019s counsel to plaintiff\u2019s counsel: \u201cPlease do not institute any lawsuit until we have had a chance to perhaps work this matter out.\u201d Id. at 595-596, 335 S.E.2d at 763.\nIn Teague, we held that the elements of equitable estoppel were not present based on the following facts: A representative for the defendant\u2019s liability insurer \u201cindicated to plaintiffs\u2019 counsel his willingness to discuss settlement or, failing that, arbitration as a possible means of resolving the matter[.]\u201d Id. at 772, 501 S.E.2d at 376. Additionally, the representative \u201cproposed a time and date to meet with [the plaintiffs\u2019] counsel [to] discuss settlement\u201d but later \u201ccancelled further negotiations ... citing his belief that [the plaintiffs\u2019] claim was time barred.\u201d Id. at 772, 501 S.E.2d at 386-387.\nThe majority relies on Duke Univ. v. Stainback, 320 N.C. 337, 357 S.E.2d 690 (1987), Cleveland Constr., Inc. v. Ellis-Don Constr., 210 N.C. App. 522, 709 S.E.2d 512 (2011), and Miller v. Talton, 112 N.C. App. 484, 435 S.E.2d 793 (1993), to support its holding that there is a genuine issue of material fact as to plaintiff\u2019s equitable estoppel claim in this case. I believe each of the foregoing cases are readily distinguishable from this case because each involves statements or conduct which led a plaintiff to believe that the defendant would resolve a claim in a definitive way. In Stainback and in Cleveland Construction, the defendant\u2019s conduct led the plaintiff to believe that the defendant would pay the plaintiff\u2019s claim if and when the defendant received a recovery from a certain third party. However, in both cases, the defendant subsequently received money from the third party, but refused to pay the plaintiff. In Miller, the defendant promised his neighbor to fix a water-flow problem which had damaged his neighbor\u2019s land, again an \u201cassurance\u201d to resolve a dispute in a particular way. Relying on this promise, the neighbor held off on filing an action. However, after the statute of limitations had run, the defendant refused to fix the problem.\nThe third \u201cassurance\u201d cited by the majority is an oral statement allegedly made by an officer of the Defendant that Defendant would cancel the promissory note and reimburse Plaintiff his expenses he had incurred. However, I believe this alleged oral assurance by Defendant\u2019s officer is inadmissible and incompetent under the parole evidence rule, and therefore cannot be relied upon to create a material factual issue to withstand a summary judgment motion. Here, after Defendant\u2019s alleged assured Plaintiff that the note would be forgiven, the record shows that on six occasions over a 44-month period, from April 2003 to November 2006, Plaintiff executed separate \u201cNote Modification Agreementfs].\u201d In each of these six written agreements, Plaintiff acknowledged owing the debt and promised to repay the debt.\nThe applicability of the parole evidence rule in the context of a promissory note has been dealt with extensively by our Supreme Court, most notably in the case Borden v. Brower, 284 N.C. 54, 199 S.E.2d 414 (1973). After stating the basic principles of the parole evidence rule generally, the Court in Borden stated the following:\nPromissory notes are not generally subject to the parole evidence rule to the same extent as other contracts .... [I]t is rather common for a promissory note to be intended as only a partial integration of the agreement in pursuance of which it was given, and parole evidence as between the original parties may well be admissible so far as it is not inconsistent with the express terms of the note.\nId. at 61, 199 S.E.2d at 419-20 (1973) (emphasis added); see also Bank v. Gillespie, 291 N.C. 303, 308, 230 S.E.2d 375, 378-79 (1976).\nThe Borden Court provided situations where parole evidence may be admissible to show an agreement at variance to the terms of the written promissoiy note:\n\u201c[T]his Court has permitted variance of [the] expressed terms [of a promissory note] by showing that it was to be enforced only on the happening of certain conditions, or only to the extent necessary to accomplish a certain purpose, or that it was payable only out of a certain fund, or that it was given as evidence of an advancement, or that it might be discharged by a method of payment or performance different from that stated in the writing.\u201d\nId. at 63, 199 S.E.2d at 421. The Court cited eleven \u201c[o]ther promissory note cases involving the North Carolina method of payment and discharge exception to the parole evidence rule\u201d as follows:\n\u201cCarroll v. Brown, 228 N.C. 636, 46 S.E.2d 715 (1948) (note to be paid out of profits of a partnership in which maker and payee were engaged); Ripple v. Stevenson, 223 N.C. 284, 25 S.E.2d 836 (1943) (note to be paid out of rents and profits from an office building); Insurance Co. v. Guin, 215 N.C. 92, 1 S.E.2d 123 (1939) (note to be paid out of commissions); Bank v. Rosenstein, 207 N.C. 529, 177 S.E. 643 (1935) (co-maker\u2019s liability on a note limited to the value of land covered by a deed of trust); Galloway v. Thrash, 207 N.C. 165, 176 S.E. 303 (1934) (note to be paid by crediting it against payee\u2019s anticipated share of maker\u2019s estate); Trust Co. v. Wilder, 206 N.C. 124, 172 S.E. 884 (1934) (note to be paid out of proceeds of land when land was sold);...; Kerchner v. McRae, 80 N.C. 219 (1877) (bond to be credited with the proceeds from sale of cotton).\u201d\nId. at 62-63,199 S.E.2d at 420. In Borden and in the eleven cases cited in that decision, a debtor was allowed to introduce parole evidence to show an oral agreement regarding the means by which the obligation recited in the written note would be satisfied, because the parole evidence did not contradict the terms of the note. However, there is no exception to the parole evidence rule regarding evidence that a borrower simply and inexplicably does not owe the money he was loaned.\nTo the contrary, the Supreme Court\u2019s explained Borden in its prior ruling in Vending Co. v. Turner, 267 N.C. 576, 148 S.E.2d 531 (1966). In Vending Co., our Supreme Court stated that \u201c[t]he promise set forth in [a promissory] note could not be contradicted or destroyed by parole testimony that the makers thereof would not be called upon to pay in accordance with the terms of the note.\u201d Id. at 582, 148 S.E.2d at 536. In explaining Vending Co., the Borden Court stated:\n\u201cAlthough that opinion does contain a general statement to the effect that a promise set forth in the note could not be contradicted or destroyed by parol testimony, the opinion actually affirmed a judgment that embodies the mode of payment or method of discharge exception to the parol evidence rule.\u201d\nBorden, 284 N.C. at 65, 148 S.E.2d at 422 (emphasis added).\nI believe Borden and the eleven cases cited therein are distinguishable from the case sub judice. In this case, the alleged oral \u201cassurance\u201d made prior to the written modification agreements was that Defendant was simply forgiving the $425,000 note and all interest expense payable thereunder. The \u201cassurance\u201d was not an oral agreement describing the means by which the payment of the note would be paid or the method by which Plaintiff\u2019s obligation would be discharged or otherwise which would fall under any of the other exceptions recited in Borden where parole evidence would be allowed. Rather, the alleged oral \u201cassurance\u201d that the promissory note would not have to be paid back under any circumstance is in direct contradiction to the terms of the six written agreements executed by Plaintiff. Therefore, I believe the alleged statement by Plaintiff that Defendant would simply forgive the $425,000 note and all of Plaintiff\u2019s expenses is incompetent, as it violates the parole evidence rule, and therefore, must not be considered in the determination of whether there is a genuine issue of material fact with regard to Plaintiff\u2019s claims.\nEven if this alleged \u201cassurance\u201d is not barred by the parole evidence rule, I do not believe the assurance is otherwise sufficient to create a jury question regarding equitable estoppel. Plaintiff admits in his brief and in his affidavit that was offered at the summary judgment hearing that the alleged assurance was merely part of an unresolved settlement negotiation. Specifically, on page 8 of his brief, Plaintiff recites the following as his version of the facts:\n\u201c[Defendant] continued to assure [Plaintiff] after the Barker settlement was entered that their $425,000.00 Note, and their expenses related to [Defendant\u2019s] failure to procure financing for Barker and Chair Specialties, would be worked out.... Although [Defendant] failed to propose a specific plan and improperly refused to provide Plaintiff information regarding [Defendant\u2019s settlement with Mr. Barker, Defendant\u2019s] issuance of several Note Modification Agreements from 2003 through 2006, as additional consideration for refraining from filing suit, and its agreement on 5 July 2006 to discuss resolution as previously pledged, reassured Plaintiffs that [Defendant] would honor its promise.\n(emphasis added.) Also, Plaintiff, in his affidavit, characterizes the assurance in the following way:\nI have previously set forth in Plaintiff\u2019s responses to Defendant\u2019s written discovery, my conversations with Charles Smith, authorized representative of BB&T, at the time of the litigation was filed by Wayne Baker against BB&T ... and the fact that Charles Smith had advised me that the issues involving the expenses and debt involving Chair Specialties, including the $425,000.00 Note, would be resolved.\n(emphasis added.) Since Plaintiff admitted at the summary judgment hearing and in his brief that he interpreted the alleged assurance as part of a settlement that had not yet been resolved, this assurance is essentially the same as the first two assurances, namely a promise to reach a definitive resolution in the future; and, likewise, cannot be relied upon by Plaintiff to establish a genuine issue of material fact regarding equitable estoppel. See St. Paul, 95 N.C. App. 663, 384 S.E.2d 36; Randolph, 129 N.C. App. 766, 501 S.E.2d 382; Smith, 77 N.C. App. 594, 335 S.E.2d 762.\nIll: Defendant\u2019s Counterclaims\nI believe that Defendant is entitled to judgment as a matter of law on its counterclaims to recover the outstanding principal due on the note of $425,000.00; pre-judgment interest from December 13, 2011 in the amount of $97.40 per day; and attorneys\u2019 fees in the amount of $63,750.00. However, I believe the evidence in the record creates a genuine issue of material fact as to the amount of interest owed on the promissory note. There is evidence in the record that Plaintiff would not be responsible for interest payments for at least some period following his last interest payment made in April 2006. This evidence includes a printout generated by Defendant that $38,164.14 in interest was waived in 2007. Therefore, I would reverse the portion of the summary judgment order which awards the interest due on the promissory note and remand this cause for a jury trial on this issue only.\nIV: Conclusion\nFor the reasons stated above, I would vote to affirm the trial court\u2019s summary judgment order to the extent that it grants summary judgment in favor of Defendant on Plaintiff\u2019s claims and to the extent that it grants summary judgment to Defendant on its counterclaims for the principal due on the promissory note, prejudgment interest, and attorneys\u2019 fees. I would vote to reverse and remand for a trial on the issue of damages with respect to the amount of interest due on the promissory note.\n. As pointed out by the majority, though there are two plaintiffs, the record consistently refers to Mr. Ussery as \u201cPlaintiff,\u201d as he was the primary, if not sole, actor.\n. In Bank v. Gillespie, in which the Supreme Court quotes the Borden decision extensively, the Court considered \u201cthe course of dealings\u201d between the parties to determine whether parole evidence would be admissible. Id. at 310,230 S.E.2d at 379-380. In the case sub judice, Plaintiffs course of dealing with regard to the note is in direct contradiction to the alleged \u201cassurance\u201d that he would not be held liable for the principle or interest expense under the note. Specifically, in addition to executing six note modifications where he acknowledged the debt and agreed to pay it back, an attachment to Plaintiffs own affidavit shows that Plaintiff continued to pay interest expenses on the promissory note on a number of occasions, with the last interest payment in the amount of $11,064.76 being made in April 2006.\n. Additionally, Plaintiff failed to show why it would have been \u201creasonable\u201d for him to rely on any statement by Defendant that (1) his claims against Defendant regarding the promissory note would somehow be resolved or worked out in an unspecified way without his input or participation and in the course of the legal proceeding with Mr. Barker, who was not a party to the note; or (2) that Defendant would unilaterally forgive the entire $425,000.00 debt and repay Plaintiffs incurred expenses where Defendant otherwise required Plaintiff to continue paying interest, which Defendant, in fact, continued to pay. Adkins v. Adkins, 82 N.C. App. 289,291,346 S.E.2d 220,221 (1986) (stating that \u201c[a]n essential element of [equitable estoppel] is reasonable reliance\u201d).",
        "type": "concurring-in-part-and-dissenting-in-part",
        "author": "DILLON, Judge,"
      }
    ],
    "attorneys": [
      "Anderson, Johnson, Lawrence & Butler, L.L.P., by Steven C. Lawrence and Stacey E. Tally, for Plaintiffs.",
      "Bell, Davis & Pitt, P.A., by Kevin G. Williams and Michael D. Phillips, for Defendant."
    ],
    "corrections": "",
    "head_matter": "WILLIAM T. USSERY and wife, CAROLYN B. USSERY, Plaintiffs v. BRANCH BANKING AND TRUST COMPANY, Defendant\nNo. COA12-940\nFiled 21 May 2013\n1. Statutes of Limitation and Repose \u2014 claims arising from business purchase \u2014 outside the longest limitations period\nPlaintiffs\u2019 claims arising from representations allegedly made by a bank during a business purchase were barred by the statute of limitations where the claims were filed six and one half years after they accrued, which was after the longest statute of limitations (4 years for unfair trade practices).\n2. Estoppel \u2014 equitable\u2014representations during business purchase\nThe trial court erred by granting summary judgment for defendant in an action arising from representations allegedly made by defendant during the financing of a business purchase where the statute of limitations had run, but plaintiffs\u2019 allegations raised a permissible inference of equitable estoppel.\n3. Loans \u2014 enforcement of note \u2014 interest and attorney fees\u2014 equitable estoppel\nThe trial court erroneously allowed summary judgment for defendant as to the enforceability of a promissory note, the amount of interest accrued on the note, and attorney fees where plaintiffs\u2019 claims were sufficient to allow the jury to determine whether equitable estoppel barred operation of the statute of limitations.\nDILLON, Judge, concurring in part and dissenting in part.\nAppeal by Plaintiffs from Order entered 16 April 2012 by Judge W. David Lee in Richmond County Superior Court. Heard in the Court of Appeals 14 February 2013.\nAnderson, Johnson, Lawrence & Butler, L.L.P., by Steven C. Lawrence and Stacey E. Tally, for Plaintiffs.\nBell, Davis & Pitt, P.A., by Kevin G. Williams and Michael D. Phillips, for Defendant."
  },
  "file_name": "0434-01",
  "first_page_order": 444,
  "last_page_order": 463
}
