Glynne v. Wilson Medical Center

NO. COA14-53
NORTH CAROLINA COURT OF APPEALS
Filed: 2 September 2014
ROSE GLYNNE, M.D.,
Plaintiff

Wilson County
v.
No. 11 CVS 610

WILSON MEDICAL CENTER, a North
Carolina corporation,
Defendant

Appeal by plaintiff from judgment entered 4 September 2013

by Judge Marvin K. Blount, III, in Wilson County Superior Court.

Heard in the Court of Appeals 8 May 2014.

Medicolegal Consultants, LLC, by C. William Hinnant Jr.,
and McKinney Law Firm, PLLC, by Elizabeth McKinney, for
Plaintiff.

Womble Carlyle Sandridge & Rice, LLP, by John E. Pueschel
and Theresa M. Sprain, for Defendant.

ERVIN, Judge.

Plaintiff Rose L. Glynne, M.D., appeals from an order

dismissing her complaint. On appeal, Plaintiff contends that

the trial court erred by granting Defendant Wilson Medical

Center’s dismissal motion on the grounds that the time within

which she was entitled to file her complaint had been extended

by 28 U.S.C. § 1367(d) and that, even if her complaint had not

been filed in a timely manner, she was still entitled to
 -2-
equitable relief on the grounds of excusable neglect, equitable

tolling, or equitable estoppel. After careful consideration of

Plaintiff’s challenges to the trial court’s order in light of

the record and the applicable law, we conclude that the trial

court’s order should be affirmed.

I. Factual Background

A. Substantive Facts

Plaintiff practiced medicine in Wilson, having opened her

own practice in that community in 2002 after having been

employed by another Wilson-based practice group before that

time. As a result of the initial success that she experienced

after having formed her own practice, Plaintiff employed an

associate and purchased an office building. In October 2002,

Plaintiff entered into an agreement to lease space in her office

building to Defendant, which occupied and used the space from

December 2005 until July 2006, when it vacated the premises.

Plaintiff claimed that Defendant violated the lease agreement

between the parties by failing to pay rent.

In April 2006, Defendant initiated an external quality

review concerning Plaintiff based upon allegations that

complications had been detected in surgical procedures that she

performed in 2004 and 2005. However, the inquiry did not result

in any adverse findings in reference to Plaintiff.
 -3-
On 15 November 2006, Plaintiff attended a meeting of

Defendant’s medical executive committee at Defendant’s request.

At that meeting, Plaintiff was informed that problems involving

the care that she provided to patients had been reported by

several individuals. However, the nature of the problems that

had been reported by these individuals was not explained to

Plaintiff with any degree of precision. In addition, Defendant

expressed concern that there was a high probability that

surgical procedures performed by Plaintiff would result in

complications. For that reason, Defendant believed that

Plaintiff should repeat her residency or obtain a mentor.

Although Plaintiff was unable to attend another committee

meeting scheduled for the following day due to a medical

emergency involving her daughter, she did notify a member of the

committee of that fact. The person to whom Plaintiff

communicated this information failed to inform the review

committee of the necessity for Plaintiff’s absence.

On 20 November 2006, Plaintiff’s counsel notified Plaintiff

that her privileges to admit and treat patients at Defendant’s

facility would be suspended 21 November 2006. On the following

day, Plaintiff learned that Defendant insisted that she satisfy

a number of requirements in order to obtain the restoration of

her privileges, including taking a leave of absence, obtaining
 -4-
the agreement of a qualified physician to serve as mentor, and

having all of her proposed surgical cases reviewed by a board

for a period of one year. Plaintiff took leave from practicing

medicine from 21 November 2006 until 19 February 2007. During

this interval, Plaintiff had to pay $50,000 in additional

compensation to her associate in order to ensure that needed

call coverage was provided. Although Plaintiff attempted to

obtain the assistance of a mentor, Defendant declined to approve

the proposed mentoring relationship on the grounds that the

proposed mentor no longer practiced obstetrics. After rejecting

Plaintiff’s proposal, however, Defendant recommended that

Plaintiff reach agreement with a different mentor, who had also

ceased practicing obstetrics.

On 27 December 2006, Plaintiff received a letter from

Defendant identifying the allegedly problematic procedures that

had been discussed at the 15 November meeting. On 6 January

2007, Dr. Michael Halpert, Defendant’s Chief of Surgery, was

appointed to investigate the validity of the allegations that

had been made against Plaintiff. On 8 February 2007, Dr.

Halpert concluded that there was no evidence of an increased

infection rate, other patient-related psychological or medical

problems, or other instances of substandard care in the surgical

procedures that Plaintiff had performed.
 -5-
Although Plaintiff was allowed to resume treating patients

and performing surgical procedures at Defendant’s hospital on 19

February 2007, Defendant insisted that an external source review

any questionable cases and that Plaintiff refrain from being on

call for more than four consecutive days. As a result of the

imposition of this limitation on her ability to be on call,

Plaintiff had to continue to make additional payments to her

associate in order to ensure the availability of the necessary

call coverage.

On 20 December 2006, Plaintiff entered into an agreement

with Parklane Venture Capitalists under which she was to sell

her medical office building for a price of $1,000,000 while

leasing a portion of the space in that building for the use of

her medical practice. In the course of investigating the

proposed purchase of Plaintiff’s office building, however,

Parklane learned that Defendant had ceased leasing space in

Plaintiff’s building. As a result, Parklane withdrew its offer

to purchase Plaintiff’s building, costing Plaintiff a

substantial amount of money.

Although Plaintiff denied having experienced stress prior

to the November 2006 meeting, she did experience emotional

turmoil after that time and discussed her feelings with a family

therapist and her colleagues. Despite the fact that Plaintiff
 -6-
had regained her privileges at Defendant’s hospital in February

2007, her enforced absence from practice coupled with the fact

that rumors concerning her alleged patient care issues were

circulating in the community resulted in substantial economic

harm to her practice. On 15 November 2007, Plaintiff resigned

her position as a member of the staff of Defendant’s hospital,

moved to Rocky Mount, and entered practice there. However, as

the result of the financial loss that she sustained because of

her temporary loss of privileges at Defendant’s hospital and

Defendant’s refusal to honor the lease agreement, Plaintiff was

required to seek personal bankruptcy protection and lost her

office building.

B. Procedural History

On 10 December 2008, Plaintiff filed a complaint in the

United States District Court for the Eastern District of North

Carolina in which she asserted numerous claims against Defendant

arising under both federal and state law. After Plaintiff

voluntarily dismissed her federal claims with prejudice on or

about 30 April 2009, the District Court declined to exercise

supplemental jurisdiction over Plaintiff’s state law claims and

involuntarily dismissed the remainder of Plaintiff’s complaint

without prejudice on 1 March 2011.
 -7-
On 7 April 2011, Plaintiff filed a complaint in this case

in which she asserted claims for negligent infliction of

emotional distress, tortious interference with contract,

tortious interference with a prospective business relationship,

breach of contract, and breach of the lease agreement against

Defendant. On 13 May 2011, Defendant filed a motion to dismiss

Plaintiff’s complaint on the grounds that all of the claims that

Plaintiff had asserted against Defendant were barred by the

applicable statute of limitations.

On 26 May 2011, Plaintiff filed a motion seeking an

extension of time to file a notice of appeal from the order

dismissing Plaintiff’s federal action or, alternatively, for

relief from judgment, in the federal court action. On 4 August

2011, nunc pro tunc to 1 March 2011, the District Court entered

an order allowing Plaintiff sixty days within which to reassert

the dismissed state law claims in the General Court of Justice.

Defendant noted an appeal from the District Court’s order to the

United States Court of Appeals for the Fourth Circuit on 8

August 2011. On 18 October 2012, the Fourth Circuit vacated the

District Court’s order. Glynne v. WilMed HealthCare, 699 F.3d

380 (2013). On 22 October 2012, Plaintiff filed a motion

requesting the District Court to reconsider its refusal to

exercise supplemental jurisdiction over Plaintiff’s state law
 -8-
claims. The District Court denied Plaintiff’s motion on 26

March 2013.

On 19 August 2013, the trial court conducted a hearing

concerning the issues raised by Defendant’s dismissal motion.

On 4 September 2013, the trial court entered an order granting

Defendant’s dismissal motion and dismissing with prejudice all

of the claims that Plaintiff had asserted against Defendant.

Plaintiff noted an appeal to this Court from the trial court’s

order.

II. Legal Analysis

A. Standard of Review

“The standard of review of an order granting a [motion

filed pursuant to N.C. Gen. Stat. § 1A-1, Rule] 12(b)(6) [] is

whether the complaint states a claim for which relief can be

granted under some legal theory when the complaint is liberally

construed and all the allegations included therein are taken as

true.” Burgin v. Owen, 181 N.C. App. 511, 512, 640 S.E.2d 427,

428 (citing Country Club of Johnston County, Inc. v. U.S.

Fidelity & Guar. Co., 150 N.C. App. 231, 238, 563 S.E.2d 269,

274 (2002), disc. review dismissed, 361 N.C. 425, 647 S.E.2d 98,

cert. denied, 361 N.C. 690, 652 S.E.2d 257 (2007). On appeal

from an order granting or denying a motion filed pursuant to

N.C. Gen. Stat. § 1A-1, Rule 12(b)(6), we review the pleadings
 -9-
de novo “‘to determine their legal sufficiency and to determine

whether the trial court’s ruling on the motion to dismiss was

correct.’” Page v. Lexington Ins. Co., 177 N.C. App. 246, 248,

628 S.E.2d 427, 428 (2006) (quoting Leary v. N.C. Forest Prods.,

Inc., 157 N.C. App. 396, 400, 580 S.E.2d 1, 4, aff’d, 357 N.C.

567, 597 S.E.2d 673 (2003)). A complaint is properly subject to

dismissal pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) when

“‘one of the following three conditions is satisfied: (1) the

complaint . . . reveals that no law supports the plaintiff’s

claim; (2) the complaint . . . reveals the absence of facts

sufficient to make a good claim; or (3) the complaint discloses

some fact that necessarily defeats the plaintiff’s claim.’”

Burgin, 181 N.C. App. at 512, 640 S.E.2d at 428-29 (quoting Wood

v. Guilford Cty., 355 N.C. 161, 166, 558 S.E.2d 490, 494

(2002)). As a result, “[a] statute of limitations can be the

basis for dismissal on a [motion made pursuant to N.C. Gen.

Stat. § 1A-1, Rule 12(b)(6)] if the face of the complaint

discloses that plaintiff’s claim is so barred.” Long v. Fink,

80 N.C. App. 482, 484, 342 S.E.2d 557, 559 (1986).

B. Expiration of the Limitations Period

In her first challenge to the trial court’s judgment,

Plaintiff contends that she filed her complaint in a timely

manner and that the trial court erred by reaching a contrary
 -10-
conclusion. According to Plaintiff, the provisions of 28 U.S.C.

§ 1367(d) operated to suspend the running of the statute of

limitations during the pendency of her federal action rather

than to extend it by thirty days following the dismissal of her

federal action so that her complaint was, in fact, timely filed.

Plaintiff is not entitled to relief from the trial court’s order

on the basis of this argument.

1. Relevant Legal Principles

A plaintiff seeking to recover damages or to obtain other

relief for negligent infliction of emotional distress and

tortious interference with contract or prospective business

relations must assert that claim within three years of the date

upon which the underlying injury occurred. See N.C. Gen. Stat.

§ 1-52(5). Similarly, claims for breach of contract and breach

of a lease agreement must be asserted within three years of the

date of the underlying breach. See N.C. Gen. Stat. § 1-52(1).

According to 28 U.S.C. § 1367(d), “[t]he period of limitations

for any [supplemental state law] claim asserted [in a federal

action in accordance] . . . shall be tolled while the claim is

pending and for a period of 30 days after it is dismissed unless

State law provides for a longer tolling period.” As a result of

the fact that North Carolina does not provide for a longer

tolling period than the thirty day interval specified in 28
 -11-
U.S.C. § 1367(d), Harter v. Vernon, 139 N.C. App. 85, 94, 532

S.E.2d 836, 842, disc. review denied, 353 N.C. 263, 546 S.E.2d

97 (2000), cert. denied, 532 U.S. 1022, 121 S. Ct. 1962, 149 L.

Ed. 2d 757 (2001), this Court has interpreted 28 U.S.C. §

1367(d) to provide that, in the event that the statute of

limitations applicable to a plaintiff’s state law claim expires

while a federal action in which that claim has been asserted is

pending, the plaintiff has thirty days following the dismissal

of the federal action to reassert his or her state law claims in

the General Court of Justice. Harter, 139 N.C. App. at 91, 532

S.E.2d at 840; Huang v. Ziko, 132 N.C. App. 358, 362, 511 S.E.2d

305, 308 (1999).

2. Application of 28 U.S.C. § 1367(d)

As we have already noted, Plaintiff’s negligent infliction

of emotional distress, tortious interference with contract,

tortious interference with prospective economic relations,

breach of contract, and breach of a lease agreement claims are

subject to three year statutes of limitations. Since

Plaintiff’s claims accrued no later than her resignation from

Defendant’s medical staff on 15 November 2007, she would,

ordinarily, have been required to assert those claims against

Defendant by no later than 15 November 2010. At that time, the

action that she had filed against Defendant in federal court was
 -12-
still pending. According to 28 U.S.C. § 1367(d), the statute of

limitations applicable to Plaintiff’s state law claims was

tolled as long as the federal action remained pending. However,

Plaintiff’s federal action was involuntarily dismissed without

prejudice on 1 March 2011. According to 28 U.S.C. § 1367(d) as

interpreted in Huang, 132 N.C. App. at 362, 511 S.E.2d at 308

(holding that the state law claims for breach of contract and

infliction of emotional distress that the plaintiff had asserted

were time-barred given that the plaintiff had failed to reassert

those claims in the General Court of Justice within thirty days

after the dismissal of the plaintiff’s federal action), and

Harter, 139 N.C. App. at 91, 532 S.E.2d at 840 (holding that,

since the statute of limitations applicable to the plaintiff’s

state law claims had expired while the plaintiff’s federal

action was pending, the plaintiff’s state law claims were time-

barred since she reasserted them in the General Court of Justice

more than thirty days following the dismissal of her federal

action), Plaintiff had 30 days from the date upon which the

federal action was dismissed to file her supplemental state law

claims in the General Court of Justice. In light of that fact,

Plaintiff was entitled to reassert her state law claims in the

General Court of Justice on or before 31 March 2011. However,

the complaint in this case was not filed until 7 April 2011. As
 -13-
a result, given the absence of a valid District Court order

allowing Plaintiff to file her complaint in the General Court of

Justice more than thirty days after the dismissal of her federal

action,1 the trial court correctly concluded that Plaintiff’s

complaint was subject to dismissal on statute of limitations

grounds.

In seeking to persuade us to reach a different result,

Plaintiff contends that the word “tolling” as used in 28 U.S.C.

§ 1367(d) should be understood to involve the suspension of the

running of the limitations period rather than the extension of

that period by a specified number of days. In support of her

interpretation of the relevant statutory language, Plaintiff

directs our attention to federal decisions and decisions from

other states that use the word “tolling” in what she believes to

be the correct sense. See, e.g., Chardon v. Fumero Soto, 462

U.S. 650, 652 n.1, 103 S. Ct. 2611, 2613 n.1, 77 L. Ed. 2d 74,

78 n.1 (1983) (stating that “the word ‘tolling’ [means] that,

during the relevant period, the statute of limitations ceases to

run”); Heard v. Sheahan, 253 F.3d 316, 317 (7th Cir. 2001)

(stating that “[t]olling interrupts the statute of limitations

1
The extent to which the District Court would have had the
authority to grant such an extension is in dispute between the
parties. However, since no such extension was ever granted, we
need not resolve that part of the parties’ dispute in this
opinion.
 -14-
after it has begun to run”); Sterlin v. Biomune Sys., 154 F.3d

1191, 1195 n.8 (10th Cir. 1998) (stating that “the term

‘tolling’ means to suspend or stop temporarily”) (citations and

quotation marks omitted); Bonifield v. County of Nevada, 94 Cal.

App. 4th 298, 303, 114 Cal. Rptr. 2d 207, 211 (2001) (stating

that “[t]o toll the statute of limitations period means to

suspend the period”), review denied, 2002 Cal. Lexis 1591

(2002). In addition, Plaintiff argues that the extension

approach is clearly inconsistent with Congressional intent given

that, under this approach, 28 U.S.C. § 1367(d) would only apply

in the event that the statute of limitations applicable to the

plaintiff’s state law claims had expired during the pendency of

the federal action in which those claims had been asserted

despite the fact that the relevant statutory language provides

that the applicable statute of limitations “shall” be tolled

during the pendency of the federal action. United States v.

Monsanto, 491 U.S. 600, 607, 109 S. Ct. 2657, 2662, 105 L. Ed.

2d. 512, 521 (1989) (stating that the use of the word “shall”

means that the statute was intended to be “mandatory in cases

where the statute applie[s]”); In re Vertrue Inc. Mktg. & Sales

Practices Litig., 719 F.3d 474, 481 (6th Cir. 2013) (stating

that “the extension approach fails to give any operative effect

to [28 U.S.C.] § 1367(d) in a number of cases in which the state
 -15-
statute of limitations does not expire during the course of

federal litigation”). Finally, Plaintiff points to the

statutory reference to tolling the “period of limitations” and

argues that the presence of that expression, rather than a

reference to a tolling of the “expiration of the limitations

period,” suggests the appropriateness of interpreting 28 U.S.C.

§ 1367(d) so as to suspend the running of the applicable statute

of limitations rather than to extend it. As a result, Plaintiff

contends that, rather than simply having thirty days after the

dismissal of her federal action within which to file her

complaint in this case, she had an amount of time consisting of

the difference between the three year period of limitations

applicable to the claims that she wished to assert against

Defendant and the amount of the applicable limitations period

that had not expired as of the date upon which she filed her

federal action.

The fundamental problem with Plaintiff’s argument is that

this Court has already considered and rejected it and our

decisions to that effect have not been overturned by or

demonstrated to be inconsistent with a decision by either the

United States Supreme Court or the Supreme Court of North

Carolina. According to well-established North Carolina law,

“[w]here a panel of the Court of Appeals has decided the same
 -16-
issue, albeit in a different case, a subsequent panel of the

same court is bound by that precedent, unless it has been

overturned by a higher court.” In re Appeal from Civil Penalty,

324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989). In other words,

even if “a panel of the Court of Appeals . . . disagree[s] with,

or even find[s] error in, an opinion by a prior panel . . . [,]

the panel is bound by that prior decision until it is overturned

by a higher court.” State v. Jones, 358 N.C. 473, 487, 598

S.E.2d 125, 134 (2004). As a result, given that we, like the

trial court, are bound by this Court’s decisions in Harter and

Huang, we have no hesitation in concluding that the trial court

did not err by dismissing Plaintiff’s complaint with prejudice

on statute of limitations grounds.

C. Equitable Arguments2

1. Excusable Neglect

In her second challenge to the trial court’s order,

Plaintiff contends that she should be allowed to assert her

state law claims in this case on excusable neglect grounds

despite the fact that they are time-barred. More specifically,

Plaintiff contends that, in view of the fact that she relied on
2
In its brief, Defendant contends that Plaintiff failed to
properly preserve her equitable challenges to the trial court’s
order for purposes of appellate review. However, we need not
resolve this issue given our determination that none of
Plaintiff’s equitable arguments have merit.
 -17-
an interpretation of 28 U.S.C. § 1367(d) that had been accepted

in many other jurisdictions, the fact that she filed her

complaint in this case only slightly beyond the period allowed

under the “extension” interpretation of 28 U.S.C. § 1367(d), and

the fact that there is a “total lack of prejudice to” Defendant,

she should be allowed to litigate the state law claims that she

has asserted in this case despite the running of the applicable

statute of limitations. We do not find Plaintiff’s argument

persuasive.3

The only potentially applicable legal basis for holding

that a trial or appellate court has the authority to extend the

applicable statute of limitations for “excusable neglect” is

N.C. Gen. Stat. § 1A-1, Rule 6(b), which provides that, “[w]hen

by these rules . . . an act is required or allowed to be done at

or within a specified time . . . [, u]pon motion made after the

expiration of the specified period, the judge may permit the act

to be done where the failure to act was the result of excusable

neglect.” As the Supreme Court has stated, N.C. Gen. Stat. §

1A-1, Rule 6(b) provides “trial courts [with] broad authority to

extend any time period specified in any of the Rules of Civil

3
Plaintiff appears to have abandoned this “excusable
neglect” argument in her reply brief. However, given that the
extent to which she has abandoned this claim is not entirely
clear to us, we have elected to address and resolve it on the
merits.
 -18-
Procedure for the doing of any act, after expiration of such

specified time, upon finding of ‘excusable neglect.’” Lemons v.

Old Hickory Council, 322 N.C. 271, 276, 367 S.E.2d 655, 658

(1998). Any argument that Plaintiff may seek to make pursuant

to N.C. Gen. Stat. § 1A-1, Rule 6(b), necessarily fails,

however.

As an initial matter, the only time periods that may be

extended based upon the authority available pursuant to N.C.

Gen. Stat. § 1A-1, Rule 6(b), are those established by the North

Carolina Rules of Civil Procedure. Chicora Country Club, Inc.

v. Town of Erwin, 128 N.C. App. 101, 108, 493 S.E.2d 797, 801

(1997) (stating that “our courts have consistently held that a

trial court’s authority to extend the time specified for doing a

particular act [pursuant to N.C. Gen. Stat. § 1A-1, Rule 6(b)]

is limited to the computation of [those] time period[s]

prescribed by the Rules of Civil Procedure”) (quotations and

citations omitted), disc. review denied, 347 N.C. 670, 500

S.E.2d 84 (1998). As should be obvious, the statutes of

limitation at issue here do not appear in the North Carolina

Rules of Civil Procedure. In addition, the Supreme Court has

clearly held that “carelessness or negligence or ignorance of

the rules of procedure . . . does not constitute ‘excusable

neglect.’” Briley v. Farabow, 348 N.C. 537, 546, 501 S.E.2d
 -19-
649, 655 (1998) (citing In re Wright, 247 F.Supp. 648, 659 (E.D.

Mo. 1965)). In light of that principle, we are unable to hold

that Plaintiff’s lack of familiarity with the interpretation of

the tolling provision of 28 U.S.C. § 1367(d) adopted in Harter

and Huang simply cannot be deemed to constitute excusable

neglect. As a result, given that the only authority that

Plaintiff has cited in support of her contention that trial

courts have the authority to overlook the applicable statute of

limitations on “excusable neglect” grounds has no application to

statutes of limitations and that Plaintiff’s failure to

recognize and follow the interpretation of 28 U.S.C. § 1367(d)

adopted in Harter and Huang does not constitute “excusable

neglect,” Plaintiff is not entitled to relief from the trial

court’s order on the basis of “excusable neglect.”

2. Equitable Tolling or Equitable Estoppel

Finally, Plaintiff contends that the running of the

applicable statutes of limitation should be deemed to have been

tolled on equitable tolling or equitable estoppel4 grounds. In

4
In her brief, Plaintiff relies on both equitable estoppel
and equitable tolling considerations. Although the two terms
have different dictionary definitions, Black’s Law Dictionary
579, 590 (8th ed. 2004), this Court and the Supreme Court have
used the two terms interchangeably in the statute of limitations
context, See, e.g., Duke University v. Stainback, 320 N.C. 337,
341, 357 S.E.2d 690, 692-93, (1987) (discussing “[t]he tolling
of the statute” because of “equity” and the “equitable doctrine
 -20-
support of this contention, Plaintiff contends that Defendant

should be equitably estopped from asserting that the state law

claims that she sought to assert against Defendant in this case

were time-barred on the grounds that, prior to the filing of her

complaint in this case, Defendant had intimated to Plaintiff

that he intended to depose Plaintiff again. Once again, we

conclude that Plaintiff’s argument lacks merit.5

“Equitable estoppel may be invoked, in a proper case, to

bar a defendant from relying upon the statute of limitations.”

Stainback, 320 N.C. at 341, 357 S.E.2d at 692. “Equitable

estoppel arises when a party has been induced by another’s acts

to believe that certain facts exist, and that party rightfully

relies and acts on that belief to his [or her] detriment.”

Ussery v. Branch Banking and Trust Co., __ N.C. App. __, __, 743

of estoppel”), so we will treat them as interchangeable in the
body of this opinion.
5
In addition to the argument discussed in the text,
Plaintiff appears to contend that we should simply refuse to
enforce the applicable statutes of limitation and the
interpretation of 28 U.S.C. § 1367(d) deemed appropriate in
Harter and Huang because it would be inequitable to preclude
Plaintiff from asserting the claims at issue in this case
because she filed her complaint approximately one week late.
However, Plaintiff has cited no authority in support of her
implicit assertion that we have the power to act in this manner
and we know of none. See Aikens v. Ingram, 524 F. App. 873,
879-82 (4th Cir. 2013) (holding that there is no controlling
North Carolina authority upholding the use of any sort of
equitable tolling of the applicable statute of limitations in
the absence of detrimental reliance).
 -21-
S.E.2d 650, 654 (2013) (citation and quotation marks omitted).

In other words, a defendant “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.” Friedland v. Gales, 131 N.C. App 802, 806, 509

S.E.2d 793, 796 (1998).

According to Plaintiff, Defendant should be equitably

estopped from asserting the running of the applicable statute of

limitations against her given that Defendant’s counsel stated

that he “likely would want to depose Appellant (for a fourth

time)” in the event that Plaintiff reasserted her claims in the

General Court of Justice following the dismissal of her federal

court action. At most, however, this statement simply meant

that, in the event that Plaintiff reasserted her claims against

Defendant in the General Court of Justice, Defendant would seek

to depose Plaintiff again. Unlike the statement at issue in

Ussery, __ N.C. App. at __, 743 S.E.2d at 656, in which the

defendant told the plaintiff to “hold off on instituting any

action” on the theory that “everything would be worked out,” the

statement at issue here would not have had any tendency to

induce Plaintiff to refrain from filing her complaint in a

timely manner. As a result, the trial court did not err by

failing to hold that Defendant was equitably estopped from
 -22-
asserting the statute of limitations in opposition to the claims

that Plaintiff sought to assert in this case.

III. Conclusion

Thus, for the reasons set forth above, we conclude that

none of Plaintiff’s challenges to the trial court’s judgment

have merit. As a result, the trial court’s order should be, and

hereby is, affirmed.

AFFIRMED.

Judge GEER concurs in separate opinion.

Judge ROBERT N. HUNTER, JR. concurs in result only in

separate opinion.
 NO. COA14-53

NORTH CAROLINA COURT OF APPEALS

Filed: 2 September 2014

ROSE GLYNNE, M.D.,
Plaintiff,

v. Wilson County
No. 11 CVS 610
WILSON MEDICAL CENTER, a North
Carolina Corporation,
Defendant.

GEER, Judge concurring.

I concur fully with the majority opinion -- we are bound by

Harter v. Vernon, 139 N.C. App. 85, 532 S.E.2d 836, disc. review

denied, 353 N.C. 263, 546 S.E.2d 97 (2000), cert. denied, 532

U.S. 1022, 149 L. Ed. 2d 757, 121 S. Ct. 1962 (2001), and Huang

v. Ziko, 132 N.C. App. 358, 511 S.E.2d 305 (1999). While the

result is especially unfortunate given that plaintiff bears no

responsibility for the belated filing and given that the

complaint barely missed the 30-day deadline, the law has been

clearly established in North Carolina for 15 years.

As the California Supreme Court noted a month ago in City

of Los Angeles v. County of Kern, 59 Cal. 4th 618, 627, 174 Cal.

Rptr. 3d 67, 73, 328 P.3d 56, 61 (2014), "[r]easonable jurists

can and do differ over the best understanding of [28 U.S.C. §
 -2-

1367(d)], one whose text lacks an indisputable plain meaning."

Because of the profound split in authority that has developed

regarding the proper construction of § 1367(d) and the

consequences to parties who misinterpret the statute, it is

regrettable that neither the United States Supreme Court nor the

North Carolina Supreme Court has seen fit to address this issue.

Perhaps the City of Los Angeles opinion will prompt the United

States Supreme Court to take up the issue and, if not, perhaps

our Supreme Court will do so, as urged by Judge Hunter's

concurring opinion.
 NO. COA14-53

NORTH CAROLINA COURT OF APPEALS

Filed: 2 September 2014

ROSE GLYNNE, M.D.,
Plaintiff,

v. Wilson County
No. 11-CVS-610
WILSON MEDICAL CENTER, a North
Carolina Corporation,
Defendant.

HUNTER, JR., Robert N., Judge, concurring.

I concur with the majority in the result. This panel is

bound by this Court’s decisions Harter and Huang and therefore

must affirm the trial court’s dismissal of Plaintiff’s complaint

on statute of limitations grounds. However, I write separately

because I agree with Plaintiff that our interpretation of 28

U.S.C. § 1367(d) in Harter and Huang are in conflict with recent

persuasive federal authority and authority from other states

interpreting the meaning of “tolling,” both as a general matter

and as used specifically in 28 U.S.C. § 1367(d). For example,

since our decisions in Harter and Huang, the Sixth Circuit Court

of Appeals has addressed this issue directly and held that 28

U.S.C. § 1367(d) suspends the running of the statute of

limitations period while the federal court is considering the
 -4-
claim and for thirty days after the claim is dismissed. In re

Vertrue Inc. Mktg. & Sales Practices Litig., 719 F.3d 474, 481

(6th Cir. 2013) (“We are persuaded that the suspension approach

properly gives effect to both § 1367(d) and the state statute of

limitations.”). Given the importance of this question and our

state’s conflict with the only federal circuit court that has

considered this issue, I would urge the Supreme Court of North

Carolina to review this question and resolve the conflict

between this persuasive federal precedent and our state’s case

law.