Ussery brought suit against BB&T as a result of a failure to qualify for a government loan, more than six years after a learning of the denial of the loan. The causes of action were subject to a three year Statute of Limitations, but Ussery argued that under a theory of equitable estoppel, BB&T should not be allowed to assert such defense, as it had during the pendency of a lawsuit by Barker, a partner, actively dissuaded Ussery from bringing his own lawsuit earlier.
The elements of equitable estoppel as follows:
(1) As related to the party estopped:
(A) 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;
(B) 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;
(C) knowledge, actual or constructive, of the real facts.
(2) As related to the party claiming estoppel:
(A) lack of knowledge and [lack of] the means of knowledge of the truth as to the facts in question;
(B) reliance upon the conduct of the party sought to be estopped; and
(C) action based thereon of such a character as to change his position prejudicially.
See In re Will of Covington, 252 N.C. 546, 549, 114 S.E.2d 257 (1960)
BB&T had allegedly assured Ussery that “everything would be worked out in the Barker litigation” and requested that Ussery “hold off on instituting any action to allow resolution of the Barer matter [and Ussery’s claims against BB&T.]” This was similar to the promises made in Duke Univ. v. Stainback, 320 N.C. 337, 357 S.E.2d 690 (1987), where the defendant had promised “to keep Duke informed of the situation” in his pending personal injury lawsuit and was subsequently equitably estopped from asserting the Statute of Limitations. Stainback was also instructive as to the lack of knowledge, since if Duke Hospital (“one of the most highly regarded universities in the nation”) can fall prey to dilatory promises, a less sophisticated businessman should not be held to a higher standard.
Judge Dillon dissented as BB&T being equitably estopped, believing that the assurances made by BB&T were not to delay litigation but instead a promise of debt forgiveness, which would have been barred by the Parol Evidence Rule.
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