dissenting.
The facts of this case are insufficient in my opinion, as a matter of law, to apply the doctrine of equitable estoppel. A review of the record finds only two instances in which the defendant’s attorney, Rogers, communicated with plaintiff, Duke University. In June of 1978, Rogers told Duke that he was attempting to secure payment to his client by Investor’s of the balance of Stainback’s bill and that he “would keep Duke informed of the situation.” *79Secondly, on 15 August 1978, defendant’s attorney informed Duke by letter that suit had been filed against Investor’s.
These two incidents are clearly inadequate to support the majority’s holding that Stainback was equitably estopped from pleading the statute of limitations. Likewise, there is no evidence or finding of fact to support the trial court’s conclusion that the actions of Stainback’s attorney justifiably induced Duke to refrain from suing Stainback or to believe that they would be paid from the proceeds of the lawsuit against Investor’s.
The essential elements of an equitable estoppel are set forth in Yancey v. Watkins, 2 N.C. App. 672, 163 S.E. 2d 625 (1968) (quoting Boddie v. Bond, 154 N.C. 359, 70 S.E. 824 (1911)) as follows:
1. Words or conduct by the party against whom the estoppel is alleged, amounting to a misrepresentation or concealment of material facts.
2. The party against whom the estoppel is alleged must have knowledge, either actual or implied, at the time the representations were made, that they were untrue.
3. The truth respecting the representations so made must be unknown to the party claiming the benefit of the estoppel at the time they were made and at the time they were acted on by him.
4. The party estopped must intend or expect that his conduct or representations will be acted on by the party asserting the estoppel, or by the public generally.
5. The representations or conduct must have been relied and acted on by the party claiming the benefit of the estop-pel.
6. The party claiming the benefit of the estoppel must have so acted, because of such representations or conduct, that he would be prejudiced if the first party be permitted to deny the truth thereof.
2 N.C. App. at 674-75, 63 S.E. 2d at 626-27.
In the case sub judice, there is no evidence of a misrepresentation. Stainback’s attorney on two occasions informed Duke *80about what was happening in regard to Stainback’s efforts to collect the insurance proceeds. Those statements attributed to the attorney, Rogers, neither misrepresent the situation nor conceal any material fact. According to the record, there is no evidence that Rogers or Stainback at any time asked Duke to forego its right to sue Stainback within the time frame of the applicable statute of limitations or promised to pay Duke from any insurance proceeds collected from the suit. Nor is there evidence in the record of Duke relying on the alleged misrepresentations to their detriment.
Even under the standard set forth in Watkins v. Motor Lines, 279 N.C. 132, 181 S.E. 2d 588 (1971), cited by the majority, there is insufficient evidence from which the trial court could have found that Rogers’ representations misled Duke, who acted upon them in good faith to the extent that Duke failed to commence the action within the statutory period.
It would appear that invoking the doctrine of equitable estop-pel in this case as a means of avoiding the statute of limitations hinges upon the successful recovery of insurance proceeds by Stainback. Would the majority still hold that Duke is entitled to a judgment based on equitable estoppel had Stainback been unsuccessful in recovering insurance proceeds or recovered the exact amount which he, personally, had previously paid Duke?
Statutes of limitation are statutes of repose, intended to require that litigation be initiated within the prescribed time or not at all. “Statutes of limitations are inflexible and unyielding. They operate inexorably without reference to the merits of plaintiffs cause of action.” Congleton v. City of Asheboro, 8 N.C. App. 571, 573, 174 S.E. 2d 870, 872 (1970).
The evidence showed that after 9 July 1980, Duke made no effort to collect this account from anyone. There was obviously ample opportunity prior to the running of the statute of limitations for Duke to protect its rights. However, Duke failed to pursue any such course of action. As the trial court’s findings of fact point out, “. . . Duke made no effort to intervene or otherwise join in Stainback’s action against Investor’s to protect its [Duke’s] interests.”
Equitable estoppel must rest in part on a misrepresentation, a concealment of a material fact or a misleading statement upon *81which the creditor relied —not the successful efforts by a debtor to collect insurance proceeds due him. Duke sat on its right to sue and must bear the burden of failing to pursue the matter in a timely and appropriate fashion. Equitable estoppel should not apply in this case and Duke’s claim should have been dismissed.