               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA15-1376

                                  Filed: 5 July 2016

Wake County, No. 14 CVS 3890

CARON ASSOCIATES, INC., Plaintiff,

              v.

SOUTHSIDE MANUFACTURING CORP. and CROWN FINANCIAL, LLC,
Defendants.


        Appeal by Defendant from an order entered 3 September 2015 by Judge Donald

W. Stephens in Wake County Superior Court. Heard in the Court of Appeals 11 May

2016.


        StephensonLaw, LLP, by Philip T. Gray, for Plaintiff-Appellee.

        Boxley, Bolton, Garber & Haywood, L.L.P., by Ronald H. Garber, for
        Defendant-Appellant.


        HUNTER, JR., Robert N., Judge.


        Crown Financial, LLC (“Crown”), appeals following an order awarding Caron

Associates, Inc. (“Purchaser”) summary judgment. On appeal Crown contends the

trial court erred in awarding Purchaser summary judgment because Purchaser owes

Crown money pursuant to an assignment. After careful review of the record, we

affirm the trial court.

                      I. Factual and Procedural Background
                                CARON V. SOUTHSIDE

                                  Opinion of the Court



      On 4 October 2013, Purchaser entered into a contract with Southside

Manufacturing Corp. (“Cabinet Maker”) to buy cabinetry for a construction project at

Bertie County High School. Purchaser agreed to pay Cabinet Maker $103,500.00 for

the cabinetry provided that Cabinet Maker deliver the cabinetry in “late November

2013.” The parties agreed payment was due “within 30 days after delivery.” After

the parties executed the contract, “[Cabinet Maker] notified [Purchaser] the

November 2013[] delivery date needed to be extended to December 18, 2013,” and

Purchaser agreed to the 18 December 2013 delivery date.

      On 9 December 2013, Cabinet Maker sent Purchaser a “progress billing”

invoice for incomplete cabinetry that it did not deliver. The next day, Purchaser told

Cabinet Maker it would not accept invoices. Purchaser stated, “invoices are not sent

until product is actually delivered. [Cabinet Maker] was to deliver . . . on December

18, 2013 and the [c]ontract terms called for [Purchaser] to make payment within 30

days after the delivery.”

      On 9 December 2013, Cabinet Maker assigned all of its accounts receivable to

Crown.   Crown is in the business of factoring, the business of buying accounts

receivable at a discounted rate. Crown ran a credit check on Purchaser and agreed

to purchase all of Cabinet Maker’s accounts receivable for $33,750.00. The record

does not disclose whether Crown failed to review the Purchaser-Cabinet Maker




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                                  Opinion of the Court



contract, which states Purchaser’s obligation to pay $103,500.00 is contingent upon

Cabinet’s Maker’s timely delivery.

      On 9 December 2013, Crown sent Purchaser an “Assignment of Receivables

Letter.” In the letter, Crown informed Purchaser that it is the assignee of Cabinet

Maker’s accounts receivable. The letter states the following in relevant part:

             This will inform you that [Cabinet Maker] has assigned all
             rights, title, and interest in its accounts receivable to
             Crown Financial, LLC (“Crown”) effective today’s date. All
             present and future payments due to [Cabinet Maker] need
             to be remitted to:

                   [Cabinet Maker] Manufacturing Corp.
                   c/o Crown Financial, LLC
                   P.O. Box 219330
                   Houston, Texas 77218

             Please confirm by signing below that these remittance
             instructions will not be changed without written
             instructions from both [Cabinet Maker] and “Crown.” Also
             attached is Exhibit “A” which is a list of invoice(s) totaling
             $45,000.00 that we will be advancing on initially. Please
             confirm by signing below that these invoice(s) are in line
             for payment and the payment obligation of [Purchaser] is
             not subject to any offsets, back charges, or disputes of any
             kind or nature.

             In the future, we will be faxing additional Exhibit “A’s” for
             your confirmation pursuant to these same terms and
             conditions.

      On 11 December 2013, Purchaser signed the assignment letter underneath the

language, “Accepted and acknowledged this 9th day of December 2013 by: Caron




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                                     Opinion of the Court



Associates” and returned the letter to Crown. The record shows Cabinet Maker

signed a copy of the letter separately and returned it to Crown.

          Cabinet Maker bounced several checks and failed to deliver the cabinetry to

Purchaser.      On 8 January 2014, Crown emailed Purchaser and asked, “[J]ust

following up to make sure that Cabinet Maker has delivered the finished product to

the Bertie County High School and that there are no problems?”                   Purchaser

responded to Crown and stated the following:

                Are you kidding me? [Cabinet Maker] is the biggest joke I
                have ever seen in my life. Not only did they not deliver but
                we have been given the run around for 3 weeks and found
                out today that the owner . . . has some previous legal issues,
                [Cabinet Maker] has been bouncing employee and vendor
                pay checks and all employees have been laid off. Not a good
                day.

Crown replied, “Thank you for the info. I was afraid that would be your answer. . . .”

          On 12 February 2014, Crown sent Purchaser a demand letter for $45,000.00.

Crown claimed Purchaser owed it $45,000.00 under the terms of the assignment

letter.

          On 27 March 2014, Purchaser filed a complaint against Cabinet Maker and

Crown. Purchaser raised claims for breach of contract, negligent misrepresentation,

and sought a declaratory judgment that it did not owe Crown $45,000.00. Purchaser

filed an amended complaint on 28 April 2014 and raised the same claims.




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                                   Opinion of the Court



      On 28 May 2014, Crown filed an answer generally denying the allegations and

raised counterclaims against Purchaser for breach of contract and detrimental

reliance. Crown also raised a crossclaim against Cabinet Maker for $45,000.00.

      On 23 June 2014, Purchaser moved for entry of default against Cabinet Maker.

The Clerk of Wake County Superior Court entered default against Cabinet Maker on

24 June 2014. On 30 July 2014, Purchaser filed a response to Crown’s counterclaims.

      Discovery began on 4 February 2015 and Crown sent requests for admission to

Purchaser. Purchaser responded to the requests on 10 June 2015.

      On 11 August 2015, Purchaser moved for summary judgment pursuant to Rule

56. Purchaser attached an affidavit from its vice president, Peter Huffey, to its

motion, along with other email exhibits. On the same day, Purchaser filed a motion

for default judgment against Cabinet Maker.

      On 21 August 2015, Crown moved for summary judgment pursuant to Rule 56.

Crown attached an affidavit from its officer, Philip R. Tribe, to its motion, along with

its assignment letter and Cabinet Maker’s progress billing invoice for $45,000.00.

Crown did not provide any evidence disputing the terms of the Purchaser-Cabinet

Maker contract, or Cabinet Maker’s failure to deliver. On 1 September 2015, the trial

court entered default judgment against Cabinet Maker.

      The trial court heard the parties on their motions for summary judgment on 1

September 2015. At the hearing, Purchaser stated the following:



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                                    Opinion of the Court



              [T]he original delivery date was pushed back at the request
              of [Cabinet Maker], and that was no problem. . . . [A]nd
              right before the delivery date I guess [Cabinet Maker] was
              in financial straits and so independently [Cabinet Maker]
              contracted with [Crown] to factor basically interest it looks
              like their entire book of business. . . . And on an aside, the
              principals of [Cabinet Maker] are now sitting in federal
              prison for raiding the corporation. [Cabinet Maker] is
              defunct and there’s been a whole lot of mess and a lot of
              other companies been [sic] injured . . . .

Crown’s counsel conceded there was no genuine issue of material fact and stated,

“Well I don’t think there are any issues of fact because the affidavit in the file . . . .”

       On 4 September 2015, the trial court granted Purchaser’s motion for summary

judgment, declared Purchaser had no duty or obligation to Crown, and denied

Crown’s motion for summary judgment. On 30 September 2015, Crown gave its

notice of appeal. Thereafter, the parties settled the record on appeal and filed their

appellate briefs.

                                II. Standard of Review

       “Our 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.’” In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (quoting

Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007)).

                                      III. Analysis




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                                   Opinion of the Court



      Crown contends the trial court erred in granting Purchaser summary

judgment because Purchaser waived its defenses by signing the assignment letter.

Further, Crown contends Purchaser is an account debtor under N.C. Gen. Stat. § 25-

9-403 (2015). We disagree.

      North Carolina law allows for an “[a]greement not to assert defenses against

[an] assignee” under N.C. Gen. Stat. § 25-9-403 (2015). Section 25-9-403 sets out the

following:

             [A]n agreement between an account debtor and an assignor
             not to assert against an assignee any claim or defense that
             the account debtor may have against the assignor is
             enforceable by an assignee that takes an assignment:

             (1) For value;

             (2) In good faith;

             (3) Without notice of a claim of a property or possessory
             right to the property assigned; and

             (4) Without notice of a defense or claim in recoupment of
             the type that may be asserted against a person entitled to
             enforce a negotiable instrument under [N.C. Gen. Stat. §]
             25-3-305(a).

Id. An account debtor is a “person obligated on an account, chattel paper, or general

intangible.” N.C. Gen. Stat. § 25-9-102(a)(3) (2015).

      After careful review of the record, it appears there is no genuine issue of

material fact surrounding the Purchaser-Cabinet Maker contract. The contract does

not appear in the record but Purchaser’s affidavit in support of its motion for


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                                      Opinion of the Court



summary judgment shows that payment for the cabinets was due within thirty days

of delivery. Therefore, Cabinet Maker’s duty to deliver is a condition precedent to

Purchaser’s duty to pay the contract price. “A condition precedent is an event which

must occur before a contractual right arises, such as the right to immediate

performance. The event may be largely within the control of the obligor or the

obligee.” Powell v. City of Newton, 364 N.C. 562, 566, 703 S.E.2d 723, 727 (2010)

(citation omitted).    The parties “are bound when the condition [precedent] is

satisfied.” Id. (citation omitted).

      Crown does not dispute the terms of the Purchaser-Cabinet Maker contract.

Crown does not dispute Cabinet Maker’s failure to deliver the cabinets. Therefore,

under these facts, Purchaser cannot be a “person obligated” because there is no

evidence to suggest the condition precedent, Cabinet Maker’s delivery, was satisfied.

See N.C. Gen. Stat. § 25-9-102(a)(3) (2015) (emphasis added).

      Further, the plain language of the assignment letter does not obligate

Purchaser. It merely informs Purchaser that all present or future payments due to

Cabinet Maker are due to Crown as Cabinet Maker’s assignee. The letter references

Cabinet Maker’s premature invoice for $45,000.00, and states “[Crown] will be

advancing on [the $45,000.00] initially.” The letter states, “the payment obligation .

. . is not subject to any offsets, back charges, or disputes of any kind or nature.” This

Court observes there is no record evidence that Crown gave Purchaser any



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                                 CARON V. SOUTHSIDE

                                   Opinion of the Court



consideration in exchange for Purchaser’s signature on the assignment letter.

Therefore, the assignment letter in itself cannot be a contract.

      As our Supreme Court has held, “it is well-settled principle” that when an

assignee buys a chose in action “for value, in good faith, and before maturity,” the

assignee takes the action “subject to all defenses which the debtor may have had

against the assignor based on facts existing at the time of the assignment or on facts

arising thereafter but prior to the debtor’s knowledge of the assignment.” William

Iselin & Co. v. Saunders, 231 N.C. 642, 646–47, 58 S.E.2d 614, 617 (1950) (citations

omitted). Therefore, under these facts, Purchaser never incurred a duty to pay

Cabinet Maker because Cabinet Maker failed to deliver. Without delivery, Crown is

unable to compel Purchaser’s payment.

      Lastly, we review Crown’s claim that it detrimentally relied on Purchaser’s

representations in the assignment letter. A “party whose words or conduct induced

another’s detrimental reliance may be estopped to deny the truth of his earlier

representations in the interests of fairness to the other party.” Whiteacre P’ship v.

Biosignia, Inc., 358 N.C. 1, 17, 591 S.E.2d 870, 881 (2004) (citations omitted). The

doctrine of equitable estoppel prevents such a party from “taking inconsistent

positions in the same or different judicial proceedings . . . to protect the integrity of

the courts and the judicial process.” Gore v. Myrtle/Mueller, 362 N.C. 27, 33, 653

S.E.2d 400, 405 (2007) (internal quotation marks and citations omitted). To proceed



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                                           Opinion of the Court



on an equitable estoppel claim, the claimant must provide a forecast of evidence

showing “(1) lack of knowledge and 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.” Hawkins v. M & J Fin. Corp., 238 N.C. 174, 177–78, 77 S.E.2d 669,

672 (1953) (citations omitted). Here, Crown failed to provide a forecast of evidence

showing that it lacked the knowledge and means to review the Purchaser-Cabinet

Maker contract. In doing so, Crown failed to raise a genuine issue of material fact

concerning its counterclaim for detrimental reliance.1

        After careful de novo review of the record, we hold there is no genuine issue of

material fact.

                                            IV. Conclusion

        For the foregoing reasons, we affirm the trial court.

        AFFIRMED.

        Judges CALABRIA and TYSON concurs.




        1  When “only one inference can reasonably be drawn from undisputed facts, the question of
estoppel is one of law for the court to determine.” Hawkins, 238 N.C. at 185, 77 S.E.2d at 677 (citations
omitted). When the evidence “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 . . . .” Creech v. Melnik, 347 N.C. 520, 528, 495 S.E.2d 907, 913 (1998) (citation omitted).

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