{ "id": 8357936, "name": "FLEET REAL ESTATE FUNDING CORPORATION v. JOHN N. BLACKWELDER and NORRIS M. BLACKWELDER", "name_abbreviation": "Fleet Real Estate Funding Corp. v. Blackwelder", "decision_date": "1986-10-07", "docket_number": "No. 8626SC123", "first_page": "27", "last_page": "32", "citations": [ { "type": "official", "cite": "83 N.C. App. 27" } ], "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": "N.C. Gen. Stat. \u00a7 1-52", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": -1 }, { "cite": "254 S.E. 2d 39", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "297 N.C. 176", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567522, 8567561, 8567602, 8567446, 8567483 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/297/0176-03", "/nc/297/0176-04", "/nc/297/0176-05", "/nc/297/0176-01", "/nc/297/0176-02" ] }, { "cite": "250 S.E. 2d 693", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "39 N.C. App. 473", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553054 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc-app/39/0473-01" ] }, { "cite": "284 S.E. 2d 523", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "55 N.C. App. 86", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526756 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc-app/55/0086-01" ] }, { "cite": "267 S.E. 2d 661", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "299 N.C. 741", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576333, 8576317 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/299/0741-02", "/nc/299/0741-01" ] }, { "cite": "261 S.E. 2d 145", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "44 N.C. App. 261", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552115 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc-app/44/0261-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 1-26", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "332 S.E. 2d 51", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "314 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4696910 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/314/0001-01" ] }, { "cite": "25 S.E. 2d 433", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1943, "opinion_index": 0 }, { "cite": "223 N.C. 146", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8601275 ], "year": 1943, "opinion_index": 0, "case_paths": [ "/nc/223/0146-01" ] }, { "cite": "113 S.E. 2d 323", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "opinion_index": 0 }, { "cite": "252 N.C. 200", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8620345 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/nc/252/0200-01" ] }, { "cite": "269 S.E. 2d 117", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "301 N.C. 44", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561083 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0044-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-47", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(2)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 1-52", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 } ], "analysis": { "cardinality": 560, "char_count": 10855, "ocr_confidence": 0.782, "pagerank": { "raw": 2.565331562501344e-07, "percentile": 0.815750454949304 }, "sha256": "433818ee452eb252dd84422b450c80fff067f86260fbc376adee09280afec4c4", "simhash": "1:b96d3dd1b52aec4a", "word_count": 1774 }, "last_updated": "2023-07-14T16:07:52.921422+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge HEDRICK and Judge WEBB concur." ], "parties": [ "FLEET REAL ESTATE FUNDING CORPORATION v. JOHN N. BLACKWELDER and NORRIS M. BLACKWELDER" ], "opinions": [ { "text": "WELLS, Judge.\nThe dispositive question in this appeal is whether the contract on which plaintiff seeks recovery is one of \u201cguaranty\u201d under seal coming within the ten-year statute of limitations, or is one of \u201csuretyship\u201d coming within the three-year statute of limitations. Plaintiff argues that the court erroneously held that N.C. Gen. Stat. \u00a7 1-52, the three-year statute, barred plaintiffs action. Plaintiff contends that N.C. Gen. Stat. \u00a7 1-47(2), the ten-year statute, applies because defendant entered a contract of guaranty under seal and that plaintiffs action is not barred under G.S. 1-47(2). We disagree.\nWhile titled a \u201cGuaranty Agreement,\u201d the instrument executed and delivered by defendant to NCNB provides, in pertinent part, that:\nThis obligation and liability on the part of the undersigned shall be primary and not a secondary obligation and liability, payable immediately upon demand without recourse first having been had by the owner and holder of the aforesaid notes against the Borrower or any person, firm or corporation or property which is security for the indebtedness;\nIn Trust Co. v. Creasy, 301 N.C. 44, 269 S.E. 2d 117 (1980), our Supreme Court held that an agreement which included language identical to that excerpted above created a contract of suretyship. The Court explained:\nAlthough contracts of guaranty and suretyship are, to some extent, analogous, and the labels are used interchangeably, there are, nevertheless, important distinctions between the two undertakings. ... A guaranty is a promise to answer for the payment of a debt or the performance of some duty in the event of the failure of another person who is himself primarily liable for such payment or performance. ... A surety is a person who is primarily liable for the payment of the debt or the performance of the obligation of another. . . . While both kinds of promises are forms of security, they differ in the nature of the promisor\u2019s liability. A guarantor\u2019s duty of performance is triggered at the time of the default of another. ... On the other hand, a surety is primarily liable for the discharge of the underlying obligation, and is engaged in a direct and original undertaking which is independent of any default. [Citations omitted.]\nWhile the document at issue is entitled \u201cguaranty agreement,\u201d its label is not determinative of its character. It is appropriate to regard the substance, not the form, of a transaction as controlling, and we are not bound by the labels which have been appended to the episode by the parties. . . . The agreement expressly states that\nThis obligation and liability on the part of the undersigned shall be a primary and not a secondary obligation and liability, payable immediately upon demand without recourse first having been had by [Branch Banking and Trust] against the Borrower or any person, firm, or corporation; ....\nBy affixing her signature to the document, defendant manifested her assent to enter into a suretyship contract which imposed primary liability upon her for the payment of her husband\u2019s debt to the bank. [Citations omitted.]\nFollowing Trust Co., we hold that defendant entered a contract of suretyship with plaintiffs predecessor in interest notwithstanding the instrument\u2019s title of \u201cGuaranty Agreement.\u201d As in Trust Co., defendant entered a suretyship contract which imposed primary liability upon him for payment of Blackwelder Furniture Company\u2019s debt to the bank.\n\u201cThe statute of limitations barring actions against defendants as sureties is G.S. 1-52, notwithstanding the seal appearing after their names.\u201d Pickett v. Rigsbee, 252 N.C. 200, 113 S.E. 2d 323 (1960). See also Lee v. Chamblee, 223 N.C. 146, 25 S.E. 2d 433 (1943). \u201cThe statute begins to run on the date the promise [to pay] is broken.\u201d Pickett, supra. See also Penley v. Penley, 314 N.C. 1, 332 S.E. 2d 51 (1985). If the original borrower makes a new promise to pay the debt in writing or actually makes a partial payment after his or her original promise to pay is broken but before the statute of limitations has run, then the statute begins to run anew from the date of this payment or acknowledgment as against a surety who authorizes or ratifies it. See Pickett, supra, N.C. Gen. Stat. \u00a7\u00a7 1-26, 1-27. See also Trust Co. v. Martin, 44 N.C. App. 261, 261 S.E. 2d 145 (1979), disc. rev. denied, 299 N.C. 741, 267 S.E. 2d 661 (1980).\nApplying the above principles to the facts here, we hold that all the facts necessary to establish the limitation appear on the face of plaintiffs complaint. See Flexolite Electrical v. Gilliam, 55 N.C. App. 86, 284 S.E. 2d 523 (1981). Specifically, plaintiffs complaint alleges that the original borrower \u201chas been and is in default . . . since on or about February 1, 1982.\u201d Plaintiff does not allege in its complaint that defendant authorized or ratified any acknowledgment or payment after default. See Pickett, supra. Plaintiff filed this action on 13 June 1985, more than three years after its cause of action had accrued against defendant. Plaintiffs claim thus is barred by G.S. 1-52. Accordingly, we hold that the court properly granted defendant\u2019s motion to dismiss.\nPlaintiff contends the court erred in granting defendant\u2019s motion to dismiss because his motion \u201cfailed to give plaintiff reasonable notice of the facts or law upon which it was based.\u201d However, it is well established that \u201c[w]hen the complaint discloses on its face that plaintiffs claim is barred by the statute of limitations, such defect may be taken advantage of by a motion to dismiss under Rule 12(b)(6).\u201d F.D.I. C. v. Loft Apartments, 39 N.C. App. 473, 250 S.E. 2d 693, disc. rev. denied, 297 N.C. 176, 254 S.E. 2d 39 (1979). Defendant\u2019s motion to dismiss specifically alleged that plaintiffs action \u201cas shown on the face of the [cjomplaint was not filed within the time required by the applicable [s]tatute of [^imitations. Accordingly, we hold that defendant properly raised the defense of the statute of limitations by a Rule 12(b)(6) motion to dismiss.\nAffirmed.\nChief Judge HEDRICK and Judge WEBB concur.", "type": "majority", "author": "WELLS, Judge." } ], "attorneys": [ "Moore, Van Allen, Allen & Thigpen, by Daniel G. Clodfelter, James C. Smith and Charles E. Johnson, for plaintiff-appellant.", "Parker, Poe, Thompson, Bernstein, Gage & Preston, by Gas-ton H. Gage and Debra L. Foster, for defendant-appellee John N. Blackwelder." ], "corrections": "", "head_matter": "FLEET REAL ESTATE FUNDING CORPORATION v. JOHN N. BLACKWELDER and NORRIS M. BLACKWELDER\nNo. 8626SC123\n(Filed 7 October 1986)\n1. Principal and Surety \u00a7 1; Guaranty \u00a7 1; Limitation of Actions \u00a7 4.6\u2014 suretyship rather than guaranty \u2014 statute of limitations\nAn agreement executed by defendants under seal which made them primarily liable for a corporation\u2019s indebtedness to a bank constituted a suretyship contract governed by the three-year statute of limitations of N.C.G.S. \u00a7 1-52 rather than a guaranty under seal governed by the ten-year statute of limitations of N.C.G.S. \u00a7 1-47(2), notwithstanding the agreement was titled \u201cGuaranty Agreement.\u201d Therefore, plaintiffs action on the agreement was barred by N.C.G.S. \u00a7 1-52 where it was filed more than three years after the original corporate borrower was in default and where plaintiff did not allege that defendants authorized or ratified any acknowledgment or payment after default.\n2. Limitation of Actions \u00a7 16; Rules of Civil Procedure \u00a7 12\u2014 statute of limitations \u2014 defense raised by motion to dismiss\nDefendant properly raised the defense of the statute of limitations by a Rule 12(b)(6) motion to dismiss when the complaint disclosed on its face that plaintiffs claim was barred by the statute of limitations.\nAppeal by plaintiff from Grist, Judge. Judgment entered 18 November 1985 in MECKLENBURG County Superior Court. Heard in the Court of Appeals 25 August 1986.\nPlaintiff filed this action on 13 June 1985 to collect $400,329.52 allegedly owed to it under the terms of a \u201cGuaranty Agreement.\u201d Plaintiffs complaint alleged, in pertinent part, that:\n4. On or about April 26, 1978, Blackwelder Furniture Company of Statesville, Inc. (hereinafter \u201cBlackwelder\u201d) executed and delivered to NCNB two promissory notes made payable to NCNB in the principal amounts of $730,000.00 and $120,000.00, copies of which are attached to and made a part of this Complaint as Exhibits A and B, respectively (hereinafter \u201cthe Notes\u201d).\n5. On or about April 26, 1978, in order to secure its obligations to NCNB under the Notes, Blackwelder conveyed to NCNB certain real property and improvements owned by Blackwelder and located in Iredell County, North Carolina, as more particularly described in the Deed of Trust, a copy of which is attached to and made a part of this Complaint as Exhibit C (hereinafter \u201cthe Deed of Trust\u201d).\n6. On or about April 26, 1978, defendants, for valuable consideration, executed and delivered to NCNB a written Guaranty Agreement (hereinafter the \u201cGuaranty\u201d), under which defendants jointly and severally guaranteed payment of the indebtedness of Blackwelder to NCNB under the Notes. A true copy of the Guaranty is attached to and made a part of this Complaint as Exhibit D.\n7. Plaintiff is the successor in interest to all right, title and interest of NCNB in and to the Notes, the Deed of Trust, and the Guaranty.\n8. Blackwelder has been and is in default under the provisions of the Notes and the Deed of Trust since on or about February 1, 1982.\n9. In June 1984, plaintiff foreclosed the Deed of Trust and sold the real property and improvements subject thereto at a public sale held on June 5, 1984, at the Iredell County Courthouse in Statesville, North Carolina. Said foreclosure proceedings were conducted in accordance with the applicable provisions of the Deed of Trust and Chapter 45 of the North Carolina General Statutes.\n10. After applying all credits and the amount received from the'sale of the collateral property subject to the Deed of Trust, the outstanding balance due and owing on the Notes, as of April 5, 1985, is $400,329.52.\n11. Plaintiff has demanded that defendants pay the sum of $400,329.52, pursuant to the Guaranty, but defendants have failed and refused to pay this amount.\n12. By reason of the foregoing, defendants are justly indebted to plaintiff in the amount of $400,329.52, plus interest thereon at the rate of nine and one-half percent (9V2%) per annum from April 5, 1985, until paid in full.\nDefendant John N. Blackwelder (defendant) filed a motion to dismiss pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6) \u201con the ground that [plaintiffs] action as shown on the face of the [c]om-plaint was not filed within the time required by the applicable [s]tatute of [limitations.\u201d The trial court found that N.C. Gen. Stat. \u00a7 1-52 was the applicable statute of limitations and that this statute had run prior to the commencement of plaintiffs action, and allowed defendant\u2019s motion to dismiss. Plaintiff appealed.\nMoore, Van Allen, Allen & Thigpen, by Daniel G. Clodfelter, James C. Smith and Charles E. Johnson, for plaintiff-appellant.\nParker, Poe, Thompson, Bernstein, Gage & Preston, by Gas-ton H. Gage and Debra L. Foster, for defendant-appellee John N. Blackwelder." }, "file_name": "0027-01", "first_page_order": 55, "last_page_order": 60 }