                                       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.
