An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-1135
                        NORTH CAROLINA COURT OF APPEALS

                                Filed: 1 April 2014


MIKE VANEK,
     Plaintiff,

      v.                                      Mecklenburg County
                                              No. 12-CVS-557
GLOBAL SUPPLY AND LOGISTICS, INC.,
STANFORD “RON” BANKS, GREG
KIRCHNER, ROBERT MALZACHER, and
MARTIN BANKS,
     Defendants.


      Appeal by Plaintiff from order entered 25 March 2013 by

Judge   James    W.    Morgan   in   Mecklenburg      County    Superior    Court.

Heard in the Court of Appeals 5 February 2014.


      H. Morris Caddell, Jr., and Ronald A. Stearney, Jr., for
      Plaintiff.

      Moore & Van Allen PLLC, by David E. Fox, and Walker Wilcox
      Matousek, LLP, by Thomas G. Griffin, for Defendants.


      DILLON, Judge.


      Mike Vanek (Plaintiff) appeals from the trial court’s order

dismissing with prejudice his claims against Global Supply and

Logistics,      Inc.   (GSL),    Stanford     “Ron”    Banks,    Greg   Kirchner,

Robert Malzacher, and Martin Banks pursuant to Rule 12(b)(6) of
                                              -2-
the North Carolina Rules of Civil Procedure on grounds that his

claims    were    barred      by    the      applicable   three-year         statute       of

limitations      set   forth       in    N.C.    Gen.   Stat.    §   1-52.        For     the

following reasons, we affirm.

                   I. Factual & Procedural Background

      Defendant        GSL    is        a     closely-held      corporation            which,

according to Plaintiff, ceased all operations in April 2008.

The instant case involves a dispute between Plaintiff, who made

a substantial investment in GSL, and the individual Defendants

Ron Banks, Greg Kirchner, Robert Malzacher, and Martin Banks,

who   are     shareholders,             officers    and/or      directors         of     GSL.

Plaintiff essentially claims that the individual Defendants made

misrepresentations concerning GSL and “engaged in a pattern of

conduct that treated [GSL] as a personal bank and when [GSL]

collapsed, stripped it of its assets to enrich themselves.”

      On 5 May 2008, Plaintiff, along with other individuals who

were both officers and shareholders of GSL, filed a complaint

against     Defendants       in    Mecklenburg      County      Superior     Court       (the

Original     Action).         Plaintiff         subsequently      filed      an    amended

verified complaint on 24 October 2008, asserting a number of

claims arising from his dispute with Defendants.                      However, on 23

September     2009,    Plaintiff            voluntarily   dismissed       these        claims
                                  -3-
pursuant to Rule 41(a) of the North Carolina Rules of Civil

Procedure.

    On 22 September 2010, Plaintiff commenced a second action

against   Defendants,   this   time   in   the   Circuit   Court   of    Cook

County, Illinois (the Illinois Action), asserting substantially

the same claims that he had asserted in the Original Action.              On

8 July 2011, Defendants moved to dismiss Plaintiff’s claims,

contending, inter alia, that the forum selection clause in the

parties’ Shareholders Agreement required that Plaintiff                 bring

his claims against them in North Carolina.

    On 12 December 2011, the Illinois court entered an order

dismissing Plaintiff’s claims, stating, in pertinent part, the

following:

           1) The Court finds that the contracts
           referenced   in   the   Complaint   should  be
           attached to the complaint and that the forum
           selection    clause   in    the   Shareholders
           Agreement is binding on plaintiff and broad
           in application covering all the claims
           asserted by Plaintiff and bars plaintiff
           from    asserting    those    claims    in   a
           jurisdiction other than North Carolina.

           2) The Court accordingly grants the motion
           and dismisses this action in favor of
           jurisdiction in North Carolina.

    On 11 January 2012, Plaintiff filed a new complaint against

Defendants, this time in Mecklenburg County Superior Court (the
                                       -4-
Present Action), again asserting substantially the same claims

that he had asserted against Defendants in the Original Action.

Plaintiff concedes that only GSL and Ron Banks (hereinafter,

Defendants)   were    served    with    the   complaint     in    the    Present

Action.

    On 26 March 2012, Defendants moved to dismiss Plaintiff’s

claims in the Present Action, contending, inter alia, that they

were barred by the three-year statute of limitations under N.C.

Gen. Stat. § 1-52.        The matter was heard in Mecklenburg County

Superior Court on 31 October 2012, and, by order entered 25

March 2013, the trial court agreed with Defendants and dismissed

Plaintiff’s claims “with prejudice pursuant to Rule 12(b)(6) of

the North Carolina Rules of Civil Procedure on the grounds that

each of those claims are barred by the applicable 3 year statute

of limitations.”     From this order, Plaintiff appeals.

                              II. Jurisdiction

    Plaintiff has voluntarily dismissed his claims against the

Defendants not served with the complaint in the Present Action,

namely,   Greg    Kirchner,    Robert    Malzacher,   and    Martin      Banks.

Accordingly, the trial court’s 25 March 2013 order dismissing

Plaintiff’s      claims   against      Defendants   GSL     and    Ron     Banks

represents a final judgment, and we exercise jurisdiction over
                                           -5-
Plaintiff’s appeal pursuant to N.C. Gen. Stat. § 7A-27(b)(1)

(2011).

                                   III. Analysis

     The trial court determined that Plaintiff’s claims in the

Present    Action    accrued      no     later   than   24   October    2008,    when

Plaintiff filed his amended complaint in the Original Action.

On appeal, Plaintiff sets forth a number of arguments in support

of his position that the trial court erred in concluding that

his claims in the Present Action were barred by the statute of

limitations, notwithstanding the fact that Plaintiff filed such

claims    on   11   January      2012,    more   than   three   years    after    his

claims had accrued.1

                                 A. Change of Venue

Plaintiff first contends that the filing date of the Present

Action should relate back to the date that he filed the Illinois

Action.    Plaintiff asserts that the trial court failed to give

“full faith and credit” to the Illinois court order because it

treated    that     order   as    an     outright   dismissal    of    his   claims,



1
  We note that the trial court ordered Plaintiff, pursuant to
Rule 41(d) of the North Carolina Rules of Civil Procedure, to
pay Defendants’ courts costs incurred in the Original Action.
Plaintiff does not challenge the trial court’s order in this
respect, and we accordingly deem the issue abandoned.  N.C. R.
App. P. 28(b)(6) (providing that “[i]ssues not presented in a
party’s brief . . . will be taken as abandoned”).
                                             -6-
rather than as an order transferring venue to North Carolina.

But Plaintiff cites no authority that would have authorized the

Illinois court to remove or transfer an action filed in Illinois

to    a    state   court     in    North    Carolina.        See   N.C.    R.    App.    P.

28(b)(6)       (providing         that     “[t]he    body    of    [an     appellant’s]

argument . . . shall contain citations of the authorities upon

which the appellant relies”).                 Moreover, the record reveals that

neither Plaintiff nor Defendants requested a transfer of venue;

that the relevant transfer of venue provision, 735 ILCS 5/2-104,

was never mentioned by either party; that the Illinois court’s

order      granted      Defendants’        motion    for    outright      dismissal      of

Plaintiff’s        claims;     that      Plaintiff    did    not   appeal       from    the

Illinois order; and that Plaintiff commenced a new action with

the       filing   of    the      complaint    in    the    Present       Action   after

dismissal of his claims in the Illinois Action.                             Plaintiff’s

contention that the Illinois order somehow effected a transfer

of venue from Illinois to North Carolina is, therefore, without

merit, and we conclude that the trial court correctly construed

the Illinois order as a dismissal of Plaintiff’s claims.

                               B. “Savings” Provision

          Plaintiff further contends that, even if the Illinois order

did not serve to transfer venue of his claims to North Carolina,
                                         -7-
his    filing     of    the   Present    Action      was     nevertheless       timely.

Plaintiff advances a number of arguments on this point; however,

we find them unconvincing.

       First,     any     reliance      by     Plaintiff      on        the   “savings”

provisions      in     Rule   41   of   our    Rules    of    Civil      Procedure   is

misplaced.        Rule 41(a) allows a plaintiff to file an action

within one year of taking a voluntary dismissal, notwithstanding

that the statute of limitations may have run on his claims since

he commenced the initial action.                N.C. Gen. Stat. § 1A-1, Rule

41(a) (2011).          Rule 41(a), however, is inapplicable here, since

Plaintiff filed the Present Action on 12 January 2012, more than

one year after he voluntarily dismissed the Original Action on

23    September      2009.     Further,       Rule   41(b)    allows      a   plaintiff

additional      time     to   refile    an     action      that    is    involuntarily

dismissed – where the dismissal is without prejudice – if the

court specifies “in its order that a new action based on the

same claim may be commenced within one year or less after such

dismissal.”       N.C. Gen. Stat. § 1A-1, Rule 41(b) (2011).                    We have

held that it is generally the plaintiff’s burden to convince the

court to include in its dismissal order a statement permitting

the plaintiff additional time to refile the action.                           84 Lumber

Co. v. Barkley, 120 N.C. App. 271, 461 S.E.2d 780 (1995).                          This
                                             -8-
holds true even if the prior dismissal is from another forum.

Harter       v.   Vernon,     139     N.C.   App.      85,    532    S.E.2d       836    (2000)

(pertaining to dismissed federal action refiled in state court).

Here,    the      Illinois       court    did    not    include      in     its    order    any

provision         permitting      Plaintiff      additional         time    to    refile    his

action; and there is nothing in the record to indicate that

Plaintiff         made    such    a      request.           Accordingly,         the    savings

provisions under Rule 41 are inapplicable.

      Plaintiff also argues that the Present Action was timely

filed because it was filed within 30 days of entry of the order

dismissing        the     Illinois    Action.          We    have    held    that       where    a

federal court has dismissed a state court action, the plaintiff

may take advantage of a savings provision in the United States

Code allowing a plaintiff 30 days to refile a claim or claims in

state    court,      notwithstanding            that   the     applicable         statute       of

limitations may have run during the pendency of the federal

action.       Id.        However, Plaintiff cites no authority that would

provide for such a savings provision in the context presented,

where a plaintiff            refiles a dismissed state court action in

another state court.

      Thus, absent a tolling of the statute of limitations under

one     of    the    equitable        doctrines        advanced      by     Plaintiff       and
                                    -9-
discussed below, we must conclude that Plaintiff’s claims were

appropriately dismissed as time-barred under N.C. Gen. Stat. §

1-52.

                         C. Equitable Estoppel

       Plaintiff contends that “if the North Carolina statute of

limitations   applies,     it    should   be   equitably   tolled.”    We

disagree.

       “Under the doctrine of equitable tolling, equity will deny

a party’s right to assert a technical defense, such as lapse of

time, ‘when delay has been induced by acts, representations, or

conduct, the repudiation of which would amount to a breach of

good    faith.’”    Town    of     Pineville    v.   Atkinson/Dyer/Watson

Architects, P.A., 114 N.C. App. 497, 500, 442 S.E.2d 73, 74-75

(1994) (quoting Nowell v. Great Atl. & Pac. Tea Co., 250 N.C.

575, 579, 108 S.E.2d 889, 891 (1959)).          “[A] plaintiff who seeks

to obtain equitable tolling of a limitations period must show

that the misrepresentations he reasonably relied upon were made

by the party raising the defense[.]”           Id. at 500, 442 S.E.2d at

75 (citing Charlotte Telecasters, Inc. v. Jefferson–Pilot Corp.,

546 F.2d 570 (4th Cir. 1976); Duke Univ. v. Stainback, 320 N.C.

337, 357 S.E.2d 690 (1987)).
                                              -10-
      Here,    there      was       no    evidence      before       the    trial   court

indicating that Defendants in any way induced Plaintiff to bring

his   claims       against   them        in   Illinois.        The    record    evidence

reveals     that     Plaintiff,          an    Illinois       resident,      voluntarily

dismissed his claims against Defendants in the Original Action

and, notwithstanding the forum selection clause in the parties’

Shareholders         Agreement,          subsequently         made    the     unilateral

decision to file the same claims against Defendants in Illinois.

Notably,    Plaintiff        does    not      argue    that    Defendants      made   any

misrepresentations or otherwise engaged in conduct that induced

him to initiate the Illinois Action or to otherwise delay his

bringing the Present Action in North Carolina.                         Absent any such

misrepresentations on Defendants’ part, “as a matter of law, the

equitable tolling doctrine does not apply to the limitations

period . . . .”           Town of Pineville, 114 N.C. App. at 500, 442

S.E.2d at 75.

      Plaintiff further argues that “the point of the statute of

limitations is to put a defendant on notice and to defend a

litigant from a stale action” and “[t]his is not a case where

the Defendants are being confronted with a stale action or are

surprised     by    the   allegations.”              This   contention      ignores   the

equitable element that must be present in order to invoke an
                                        -11-
equitable tolling of the statute of limitations.                      Even assuming

that Defendants had been put on notice of Plaintiff’s claims by

virtue   of   the    claims    asserted    against     them     in    the     Original

Action, this fact would not dispense with the requirement that

Plaintiff      demonstrate         his         reasonable       reliance         upon

misrepresentations or other inducing conduct by Defendants that

caused him to delay filing his claims in the Present Action.

Accordingly, this contention is overruled.

                              D. Judicial Estoppel

      Plaintiff      also     contends     that     “judicial        estoppel    bars

Defendants    from    raising     the     statute     of    limitations.”          We

disagree.

      Judicial estoppel is an equitable doctrine which “precludes

a party from making a factual assertion on one position when it

had   successfully     argued    the     opposite    position        in   a   previous

proceeding[.]”       Wiley v. United Parcel Serv., Inc., 164 N.C.

App. 183, 188, 594 S.E.2d 809, 812 (2004).                    Whereas equitable

estoppel “is designed to promote fairness between the parties, .

. . judicial estoppel seeks primarily to protect the integrity

of judicial proceedings.”          Whitacre P’ship v. Biosignia, Inc.,

358 N.C. 1, 17, 591 S.E.2d 870, 881 (2004).                   Our Supreme Court

has stated that the following              three factors        are       relevant in
                                       -12-
determining      whether     application       of   the    judicial     estoppel

doctrine is appropriate in a particular case:

            First, a party’s subsequent position must be
            clearly   inconsistent    with    its   earlier
            position. Second, courts regularly inquire
            whether   the    party   has     succeeded    in
            persuading a court to accept that party’s
            earlier    position,    so     that    judicial
            acceptance of an inconsistent position in a
            later proceeding might pose a threat to
            judicial    integrity     by      leading     to
            inconsistent court determinations or the
            perception that either the first or the
            second court was misled. Third, courts
            consider whether the party seeking to assert
            an inconsistent position would derive an
            unfair   advantage   or   impose    an    unfair
            detriment on the opposing party if not
            estopped.

Id. at 29, 591 S.E.2d at 888–89 (citations and quotation marks

omitted).

       Here, Plaintiff frames his judicial estoppel argument as

follows:    In   seeking    dismissal     of   Plaintiff’s    claims     in   the

Illinois Action, Defendants cited the Shareholders Agreement’s

forum    selection      clause   and   asserted     that   Plaintiff    had   not

demonstrated that he would be deprived of his day in court if

that    clause   were    enforced;     Defendants    essentially      contended,

according to Plaintiff, that a dismissal of the Illinois Action

would not result in any detriment to Plaintiff since Plaintiff

would still be able to bring his claims against Defendants in
                                        -13-
North Carolina; then, when Plaintiff subsequently filed those

same claims in North Carolina, Defendants took an “inconsistent

position” in asserting the statute of limitations as a defense

to Plaintiff’s claims.

      We disagree with Plaintiff that the positions advocated by

Defendants    in    the    Illinois     Action     and     subsequently      in   the

Present Action were clearly inconsistent.                   Defendants succeeded

in dismissing Plaintiff’s claims in the Illinois Action because

the   Illinois     court     accepted      Defendants’       position      that   the

Shareholders       Agreement’s       forum     selection       clause       required

Plaintiff    to    bring    his   claims     in    North    Carolina.        Whether

Plaintiff would be “deprived of his day in court” as a result of

the dismissal may or may not have factored into the court’s

decision, since, as we have held supra, the court’s order was an

order of dismissal, not an order transferring venue to North

Carolina.    Thus, although Defendants’ assertion of the statute

of limitations, and the trial court’s acceptance thereof, in the

Present Action resultantly barred Plaintiff’s claims, we cannot

say   that   this        result   followed        from     clearly   inconsistent

positions advanced by Defendants.

      Moreover,     we     discern   no    inconsistency       in    the    Illinois

court’s dismissal on the basis of the forum selection clause and
                                         -14-
the trial court’s dismissal in the Present Action based on the

statute of limitations. The result might be different had the

Illinois     court,   as    Plaintiff     insists,       ordered     a    transfer   of

venue; but that was not the case here.                   Nor do we believe that

these   proceedings        have   resulted      in    any   unfair       detriment    to

Plaintiff.      It was Plaintiff’s decision to file his claims in

Illinois     notwithstanding       the    forum       selection    clause     in     the

Shareholders Agreement, and it was Plaintiff’s responsibility to

be cognizant of the applicable statute of limitations in North

Carolina.      We reject Plaintiff’s insinuation that it was the

duty    of   Defendants’      counsel,     in        seeking   dismissal      of     the

Illinois Action, to conduct Plaintiff’s due diligence for him

and to inform him of any potential bars to his claims in North

Carolina.     Plaintiff’s contentions on this issue are overruled.

                                  III. Conclusion

       In light of the foregoing, the trial court’s 25 March 2013

order is hereby

       AFFIRMED.

       Judges BRYANT and STEPHENS concur.

       Report per Rule 30(e).
