                                NO. COA14-29
                     NORTH CAROLINA COURT OF APPEALS
                       Filed:     16 September 2014
COLLEGE ROAD ANIMAL HOSPITAL, PLLC;
PHILLIP LANZI and JAMIE LANZI,
     Plaintiffs

                                                      New Hanover County
    v.
                                                      No. 12 CVS 3404

JON KEDRICK COTTRELL and JULIE COTTRELL,
     Defendants


    Appeal by defendants from order entered 11 September 2013

by Judge Paul L. Jones in New Hanover County Superior Court.

Heard in the Court of Appeals 5 June 2014.

    Marshall, Williams & Gorham, LLP, by John L. Coble, for
    Plaintiffs.

    Law Offices of G. Grady Richardson, Jr., P.C., by G. Grady
    Richardson, Jr., for Defendants.

    ERVIN, Judge.

    Defendants Jon Kedrick Cottrell and Julie Cottrell appeal

from an order granting summary judgment in favor of Plaintiffs

College Road Animal Hospital, Phillip Lanzi, and Jamie Lanzi,

and ordering Defendants to pay 50% of all past due and future

payments required under a loan obtained from Bank of America.

On appeal, Defendants     contend that the trial           court erred by

entering   summary     judgment    in      favor   of     Plaintiffs     and,

concomitantly,   declining   to    enter    summary     judgment   in   their

favor on the grounds that the Lanzis and the Cottrells were not
                                           -2-
principals under the loan and that the existence of an express

contract between the parties precluded the maintenance of an

action for unjust enrichment.                After careful consideration of

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

the record and the applicable law, we conclude                          that summary

judgment was improperly entered in favor of Plaintiffs, that

summary    judgment   should        have    been   entered    in    favor      of    Ms.

Cottrell   with   respect      to    Plaintiffs’     contribution        claim,      and

that   summary    judgment     should       have   been   entered       in   favor    of

Defendants with respect to Plaintiffs’ unjust enrichment claim;

that the trial court’s order should be reversed; and that this

case should be remanded to the New Hanover County Superior Court

for further proceedings not inconsistent with this opinion.

                          I. Factual Background

                            A. Substantive Facts

       In May of 2009, Dr. Cottrell purchased the 50% interest in

College    Road   that   had    been       previously     owned    by    Dr.   Robert

Weedon.    Prior to that date, Dr. Cottrell had been employed by

College Road and operated its Carolina Beach location.                          After

purchasing Dr. Weedon’s interest, Dr. Cottrell was responsible

for operating the Carolina Beach location while Dr. Lanzi was

responsible for operating the College Road location.
                                                  -3-
       On 16 September 2009, College Road obtained a $293,000 loan

from       Bank    of     America         for     the   purpose     of     making        capital

improvements at the Carolina Beach location.                              According to the

loan agreement, the “Borrower shall make all scheduled payments

to Lender.”             In addition, “[e]ach Borrower and each Guarantor

agree[d]      that       [their]         obligation     to   make   payments        to    [the]

Lender on the Indebtedness under [the] Agreement [was] absolute

and    unconditional.”                   The    “dismissal,    resignation          or     other

withdrawal”            from   College          Road’s   practice     by     “any     licensed

professional           who    is    an    owner    or   shareholder”       was     prohibited

under the loan agreement.                       The list of incidents of default

specified         in    the   loan       agreement      included,    in     addition       to   a

failure to make required payments, any failure to adhere to any

of the other covenants set forth in that document.

       Dr. Lanzi and Dr. Cottrell signed the loan agreement in the

section      designated            for    the    signature    of    the    borrower.            In

addition, the two men, along with their wives, executed                                      the

guaranty agreement.                The loan agreement was modified on 11 March

2010 to increase the principal amount from $293,000 to $312,000,

with final disbursement under the loan agreement having been

made in December of 2010.1

       1
      LaWe Holdings, LLC, an entity in which Dr. Lanzi and Dr.
Weedon were involved, became involved in this series of
transactions as an additional guarantor on 28 October 2009.
                                       -4-
      On 17 May 2011, the Cottrells sent an email to Dr. Lanzi

indicating that Dr. Cottrell was relinquishing his interest in

College Road and defaulting on his agreement to purchase shares

in Dr. Weedon’s business.       On 15 June 2011, Dr. Lanzi’s attorney

responded to the Cottrells’ e-mail by accepting Dr. Cottrell’s

resignation and indicating that Dr. Lanzi did not wish to enter

into an employer-employee relationship with Dr. Cottrell.                On 20

July 2011, the Cottrells’ attorney notified Bank of America that

Dr. Cottrell was no longer affiliated with College Road and that

the   Cottrells     had   terminated    their     personal   guarantee     with

respect to any further advances made to or obligations incurred

by College Road.

      According to Dr. Lanzi, he and Dr. Cottrell understood that

the two of them would contribute half of the funds needed to

repay the loan.       The actual payments under the loan agreement,

however, were made by College Road, with the funds needed for

the   making   of   these   payments     having    been   derived   from    the

operation of both the College Road and Carolina Beach locations.

After the termination of Dr. Cottrell’s relationship with the

practice, College Road continued to make the required regular

monthly payments, which totaled $74,165.80 at the time of the

hearing in the trial court, without any contribution from Dr.
                                          -5-
Cottrell.     Bank of America has never made any demand for payment

upon Dr. Cottrell.

                             B. Procedural History

      On 29 August 2012, Plaintiffs filed a complaint against

Defendants alleging claims               sounding in equitable contribution

and unjust enrichment.          On 27 September 2012, Defendants filed

an   answer   in    which    they    denied      the     material      allegations     of

Plaintiffs’       complaint.        On    5   June     2013,    Plaintiffs    filed     a

motion seeking the entry of summary judgment in their favor that

was accompanied by an affidavit executed by Dr. Lanzi.                            On 28

August 2013,       Defendants filed a motion                seeking the entry of

summary    judgment    in    their       favor    that    was    accompanied      by   an

affidavit executed by Dr. Cottrell.                    On 11 September 2013, the

trial     court    entered     an    order       granting       Plaintiffs’    summary

judgment motion, denying Defendants’                   summary judgment        motion,

ordering      Defendants       to    pay      $37,082.90,         an     amount    that

represented half of the monthly payments that had been made to

Bank of America under the loan agreement between July 2011 and

May 2013, and ordering Defendants to provide 50% of the funds

used to make        the remaining         payments       required under the loan

agreement.        Defendants noted an appeal to this Court from the

trial court’s order.

                               II. Legal Analysis
                                    -6-
                         A. Standard of Review

    “Summary      judgment     is   proper      when   ‘the       pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show 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.’”                    Broughton v.

McClatchy Newspapers, Inc., 161 N.C. App. 20, 26, 588 S.E.2d 20,

25 (2003) (quoting N.C. Gen. Stat. § 1A-1, Rule 56(c)).               During

the consideration of a motion for summary judgment:

           The moving party bears the burden of
           demonstrating the lack of triable issues of
           fact.   Koontz v. City of Winston-Salem, 280
           N.C. 513, 518, 186 S.E.2d 897, 901 (1972).
           Once the movant satisfies its burden of
           proof, the burden then shifts to the non-
           movant to present specific facts showing
           triable issues of material fact.     Lowe v.
           Bradford, 305 N.C. 366, 369-70, 289 S.E.2d
           363, 366 (1982).     On appeal from summary
           judgment, “we review the record in the light
           most favorable to the non-moving party.”
           Bradley v. Hidden Valley Transp., Inc., 148
           N.C. App. 163, 165, 557 S.E.2d 610, 612
           (2001), aff’d, 355 N.C. 485, 562 S.E.2d 422
           (2002).

Id. at 26, 588 S.E.2d at 25-26.              We will now utilize this

standard   of   review   in   analyzing   the   validity   of    Defendants’

challenges to the trial court’s order.

                     B Substantive Legal Analysis

                         1. Contribution Claim
                                             -7-
       The first of the two theories upon which Plaintiffs based

their       claim      against     Defendants       was   that    of     contribution.2

“Contribution is generally defined as ‘the right of one who has

discharged a common liability or burden to recover of another

also liable [the fractional] portion which he ought to pay or

bear.’”          Irvin v. Egerton, 122 N.C. App. 499, 501, 470 S.E.2d

336,       337   (1996)     (alteration      in    original)     (quoting     18   C.J.S.

Contribution           §    2,   at   4   (1990)).         Although       “[i]t    is    a

prerequisite to a claim for contribution that the party seeking

contribution ‘satisfy, by payment or otherwise, more than his

just proportion of the common obligation or liability,’” id.

(quoting 18 Am. Jur. 2d Contribution § 9, at 16 (1985)), this

Court       has       determined      that    a    plaintiff      is     “entitled      to

contribution” and has “satisfied more than his just proportion

of that common obligation” when the “parties ha[d] a monthly

obligation” and “each month . . . the plaintiff paid more than

one-half         of   the   monthly    obligation.”        Id.      As    a   result,    a

plaintiff seeking contribution-based relief is simply required

to prove that the obligation exists, that the parties are both

required to pay the obligation, and that one obligor has paid a
       2
      In view of the fact that the trial court did not
specifically delineate whether it found in favor of Plaintiffs
on the basis of a contribution theory, an unjust enrichment
theory, or both, we must analyze the validity of both of the
theories set out in Plaintiffs’ complaint in order to determine
whether the trial court’s order should be affirmed or reversed.
                                              -8-
portion       of   the     obligation       for     which   the     other     obligor     was

legally responsible.                Id.; see also Nebel v. Nebel, 223 N.C.

676, 686, 28 S.E.2d 207, 214 (1943) (stating that “[t]he right

to     sue     for     contribution         does     not    depend        upon     a   prior

determination that the defendants are liable”); N.C. Gen. Stat.

§ 25-3-116(b) (providing that “a party having joint and several

liability who pays the instrument is entitled to receive from

any     party        having     the    same       joint     and     several        liability

contribution in accordance with applicable law”).                             As a result

of the fact that the trial court’s order awarded relief against

both    Dr.     Cottrell       and    Ms.   Cottrell,       we     must   examine      their

liability under a contribution theory separately.

                              a. Ms. Cottrell’s Liability

        As we have already noted, a litigant’s ability to obtain

relief on the basis of a contribution theory assumes that the

plaintiff       and    the     defendant      are    both   obligated         to   make   the

underlying payment.                For that reason, Plaintiffs were required

to show that Ms. Cottrell was liable under the loan agreement in

order    to     obtain       relief    from    her    based       upon    a   contribution

theory.         We    do     not    believe    that    Plaintiffs         have     made   the

required showing.

       The only signatures appearing in the portion of the loan

agreement at which the borrower or borrowers were supposed to
                                                -9-
sign were those of Dr. Lanzi and Dr. Cottrell, who were the sole

owners of interests in College Road.                            On the other hand, a

careful     review       of     the      record       clearly   establishes      that    Ms.

Cottrell     did    not        sign      the    loan     agreement    in   the   location

designated for the borrowers and that the only location in the

loan agreement at which the signatures of either Ms. Lanzi or

Ms.    Cottrell     appear          is    at    the     conclusion    of   the   guaranty

agreement.      As a result, an examination of the loan agreement

reveals     that        Ms.     Cottrell        never     agreed     to    shoulder      any

obligations under that document except those set out in the

guaranty agreement.

       “A guaranty is a promise to answer for the payment of a

debt or the performance of some duty in the event of the failure

of    another   person         who       is   himself    primarily    liable     for    such

payment or performance.”                  Branch Banking & Trust Co. v. Creasy,

301 N.C. 44, 52, 269 S.E.2d 117, 122 (1980).                         While “a surety is

primarily liable for the discharge of the underlying obligation,

and is engaged in a direct and original undertaking which is

independent        of     any         default,”        “[a]     guarantor’s      duty     of

performance is triggered at the time of the default of another.”

Id.    at    52-53,           269     S.E.2d      at     122    (citations       omitted).

Consistently with this fundamental legal principle, the guaranty

agreement contained in the loan agreement provides, in pertinent
                                           -10-
part, that the guarantors “shall immediately pay to [the] Lender

the     outstanding       balance    of        all   Indebtedness”        “[i]f     [the]

Borrower fails to pay all or any part of any indebtedness when

due.”

      According      to    the     undisputed        evidence     contained       in   the

record, the loan at issue in this case is current.                             For that

reason, neither Ms. Lanzi nor Ms. Cottrell are currently liable

for any amount owed to Bank of America under the loan agreement.

Thus,    Ms.   Cottrell     is     not    jointly       obligated   with    the    other

parties to pay the amount owed to Bank of America under the loan

agreement.      As    a    result,       the    trial    court   erred    by   entering

summary judgment in favor of Plaintiffs and against Ms. Cottrell

on the basis of a contribution theory.

                           b. Guarantors’ Liability

      Secondly, Plaintiffs argue that Dr. Lanzi and Dr. Cottrell

were primarily liable on the note given the presence of their

signatures     on    the    loan     agreement       in    the    block    marked      for

borrowers and were, simultaneously, secondarily liable for the

amount owed under the loan as evidenced by their signatures at

the conclusion of the guaranty agreement.                        Although Plaintiffs

appear to suggest that the joint obligation required for the

successful assertion of a contribution claim can arise from Dr.

Cottrell’s status as a guarantor, we do not find this contention
                                      -11-
persuasive in light of the principle that “[a] guarantor’s duty

of   performance   is    triggered    at     the     time    of   the   default   of

another,” id. at 52, 269 S.E.2d at 122, and the fact that the

guaranty   agreement     at   issue   in     this     case   provides     that    the

“Guarantor   shall      immediately     pay     to    Lender      the   outstanding

balance of all Indebtedness” if “Borrower fails to pay all or

any part of any Indebtedness when due.”                As a result, given that

a guaranty agreement constitutes nothing more than a “promise to

pay the debt of another at maturity if not paid by the principal

debtor,” O’Grady v. First Union Nat’l Bank, 296 N.C. 212, 220,

250 S.E.2d 587, 593 (1978), and the fact that “[t]he right to

sue upon an absolute guaranty of payment arises immediately upon

the failure of the principal debtor to pay at maturity,” id.,

the parties to the present guaranty agreement have no current

obligation to make any payment to Bank of America relating to

the loan agreement.        As a result, to the extent that the trial

court’s decision to grant summary judgment in Plaintiffs’ favor

rested upon the understanding that Dr. Cottrell’s decision to

sign the guaranty agreement rendered him jointly liable on the

underlying   obligation       created      by   the     loan      agreement,     that

decision constituted an error of law.3

      3
      In their brief, Plaintiffs emphasize the fact that Dr.
Cottrell’s withdrawal from the practice constituted an incident
of default under the loan agreement.       Although Plaintiffs’
                                        -12-
                            c. Individual Liability

    The     principal       argument    advanced      in   Plaintiffs’      brief    in

support of the trial court’s order is a contention that, since

Dr. Lanzi and Dr. Cottrell signed the loan agreement in their

individual    capacities,        they   are    co-borrowers       under     the    loan

agreement     and     are    jointly     obligated         to   repay     the     loan.

According    to     Defendant,    however,      Dr.   Lanzi     and   Dr.   Cottrell

signed the loan agreement as agents of College Road instead of

in their individual capacities.                As a result of the fact that

the record demonstrates the existence of a genuine issue of

material fact concerning the capacity in which Dr. Lanzi and Dr.

Cottrell signed the loan agreement, we conclude that the trial

court erred by granting summary judgment in favor of Plaintiffs

and against Dr. Cottrell with respect to the contribution issue

and that this issue needs to be decided after a full trial on

the merits.

    According to N.C. Gen. Stat. § 25-3-402(b):

            (1)     If the form of the signature shows
                    unambiguously that the signature is
                    made on behalf of the represented

assertion is clearly correct as a factual matter, the record
contains no indication that Bank of America has actually
declared the loan in default. In addition, the liability of the
guarantors is triggered by nonpayment rather than the occurrence
of any incident of default.     As a result, the fact that Dr.
Cottrell’s withdrawal from the practice constituted an incident
of default under the loan agreement has no bearing on the proper
resolution of this case.
                                           -13-
                       person   who   is  identified in                 the
                       instrument, the representative is                not
                       liable on the instrument.

                 (2)   Subject to subsection (c) of this
                       section, if (i) the form of the
                       signature does not show unambiguously
                       that the signature is made in a
                       representative capacity, or (ii) the
                       represented person is not identified in
                       the instrument, the representative is
                       liable on the instrument to a holder in
                       due course that took the instrument
                       without notice that the representative
                       was not intended to be liable on the
                       instrument.   With respect to any other
                       person, the representative is liable on
                       the      instrument      unless     the
                       representative proves that the original
                       parties     did    not    intend    the
                       representative to be liable on the
                       instrument.

Although the Supreme Court has clearly stated that, “when the

issue to be decided is the intent of a party, the general rule

is that it is a question of fact to be determined by a jury,”

United Labs., Inc. v. Kuykendall, 322 N.C. 643, 663, 370 S.E.2d

375,       388   (1988),    that    rule    is    modified      in    cases   involving

negotiable instruments by N.C. Gen. Stat. § 25-3-402(b), which

provides that the signatory to a negotiable instrument is liable

to     a    holder     in   due    course       unless    his    or    her    signature

unambiguously          shows      that     it    was     made    in     the   person’s

representative capacity or the represented party is not named in

the instrument and that the signatory of such an instrument is

liable to anyone else other than a holder in due course unless
                                        -14-
he or she demonstrates that the original parties did not intend

for the representative party to be liable on the instrument.                           As

a   result,     in    cases    in   which    the    party     seeking     to    hold    a

signatory liable on the instrument is a person or entity other

than a holder in due course,4 “[t]he presumption is that nothing

else appearing, a person who signs his or her name on the right-

hand bottom corner of the face of a promissory note is a maker

of that note and is primarily liable thereon.”                          Federal Land

Bank of Columbia v. Lieben, 86 N.C. App. 342, 346, 357 S.E.2d

700, 703 (1987).         However, “this presumption may be rebutted by

parol evidence that the signer of the note is a surety and that

the creditor knew at the time he received the note that the

signer    of    the   note    was   signing    as   a   surety.”        Id.      Thus,

although       “one   who     places   his     unqualified      signature       on     an

instrument      as    maker   or    indorser   will     not   be   able    to   escape

liability as such by a mere assertion that he intended to sign

only as the representative of a corporation of which he is an

      4
      Although Plaintiff correctly notes that Bank of America
appears to be a holder in due course as defined in N.C. Gen.
Stat. § 25-3-402(a), that fact has no bearing on the proper
resolution of this case given that Bank of America has not
attempted to enforce the note and is not a party to this action.
As a result of the fact that College Road, Dr. Lanzi, and Ms.
Lanzi do not hold the loan agreement, they cannot, by
definition, be holders in due course, rendering the provisions
of N.C. Gen. Stat. § 25-3-402(b) applicable to claims asserted
on behalf of holders in due course irrelevant to a proper
resolution of this case.
                                         -15-
officer or director,” Keels v. Turner, 45 N.C. App. 213, 217,

262 S.E.2d 845, 847, disc. review denied, 300 N.C. 197, 269

S.E.2d 264 (1980), Dr. Cottrell is entitled to attempt to rebut

the presumption that he signed the note as a maker with parol or

other evidence.

    As Plaintiffs correctly note, the signatures of Dr. Lanzi

and Dr. Cottrell on the loan document appear in the section in

which the borrower or borrowers were supposed to sign and do not

unambiguously reflect that the two men signed the loan agreement

in a solely representative, rather than an individual, capacity.

In addition, Dr. Lanzi asserted in his affidavit that the loan

agreement was executed by Dr. Cottrell and himself “with the

understanding     and        agreement    that     [the    parties]    would   be

responsible for contributing one-half of the payment of the loan

amount   due.”          On     the   other       hand,    the   loan   agreement

unambiguously named College Road as the sole borrower without

providing any indication that either Dr. Lanzi or Dr. Cottrell,

whose names only appear on the signature line, had executed the

loan agreement in their individual capacities.                    Moreover, the

sole borrower named in the loan modification agreement, which

only Dr. Lanzi signed, was College Road.                    Finally, the sole

borrower named in the final disbursement notification, which Dr.

Lanzi signed in his capacity as a “member,” was College Road.
                                                -16-
In his affidavit, Dr. Cottrell asserted that the parties signed

the    loan    agreement        and    the      final     disbursement        statement       “as

owners and on behalf of College Road.”                              Finally, Plaintiff’s

counsel       stated     at     the    summary          judgment     hearing       that     their

clients did not “contest that the borrower under the loan is the

PLLC.”       As a result, a simple examination of the contents of the

various        loan      and     loan-related              documents,         the        parties’

affidavits, and the comments made by the parties’ counsel at the

summary       judgment    hearing          suggest      the    existence      of     a   genuine

issue of material fact concerning the capacity in which Dr.

Lanzi and Dr. Cottrell signed the loan agreement.

       Our     conclusion        that        Dr.     Cottrell       forecast        sufficient

evidence to demonstrate the existence of                             a genuine issue of

material fact concerning the extent to which he and Dr. Lanzi

signed the loan agreement in a representative or an individual

capacity       is    bolstered        by    a    number       of   other   factors.           For

example, the undisputed record evidence establishes that College

Road made all of the payments required under the loan agreement,

that    the    amortization           schedule         provided     by   Bank       of   America

listed       College     Road     as       the     sole       borrower,    and       that    the

additional          guarantee    provided          by    LaWe      Holdings     was      secured

“[f]or the purpose of inducing Bank of America . . . to make,

extend and renew a loan” made on behalf of a borrower elsewhere
                                        -17-
identified as College Road.                 In addition, the record clearly

reflects     that   both     Dr.    Lanzi     and    Dr.   Cottrell      executed   a

guaranty agreement intended to secure the loan.                          As we have

already noted, “[a] guaranty is a promise to answer for the

payment of a debt or the performance of some duty in the event

of the failure of another person who is himself primarily liable

for such payment or performance.”                 Branch Banking & Trust Co.,

301   N.C.    at    52,    269     S.E.2d    at     122;   see    also      Investment

Properties v. Norburn, 281 N.C. 191, 195, 188 S.E.2d 342, 345

(1972)     (stating       that   obligations        arising      out   of    guaranty

agreements are “separate and independent of the obligation of

the principal debtor”); EAC Credit Corp. v. Wilson, 281 N.C.

140, 146, 187 S.E.2d 752, 756 (1972) (stating that “[d]ecisions

of [the Supreme] Court [have] treat[ed] the obligation of a

guarantor of payment separate and distinct from that of the

maker” on the theory that the “‘contract of guaranty is [the

guarantors’] own separate contract jointly and severally to pay

the debts’” and that guarantors “‘are not in any sense parties

to the [note].’” (final alteration in original) (quoting Arcady

Farms Milling Co. v. Wallace, 242 N.C. 686, 689, 89 S.E.2d 413,

415 (1955)); Sykes v. Everett, 167 N.C. 600, 608, 83 S.E. 585,

590 (1914) (holding “that a surety is considered as a maker of

the note [while] a guarantor is never a maker”).                       As this Court
                                              -18-
has    previously            noted,    “‘where       individual         responsibility           is

demanded, the nearly universal practice in the commercial world

is that the corporate officer signs twice, once as an officer

and again as an individual.’”                   Keels, 45 N.C. App. at 218, 262

S.E.2d      at   847     (quoting       19    Am.    Jur.   2d     Corporations         §   1343

(1965)).         In light of that logic, a reasonable finder of fact

could conclude that the signatures of Dr. Lanzi and Dr. Cottrell

on the loan agreement were affixed in their capacity as officers

of    College      Road       and     that   their    signatures         on    the    guaranty

agreement        were    affixed       in    their   individual         capacity.5          As    a

result,       after      “review[ing]         the     record       in    the     light      most

favorable to the non-moving party,” Broughton, 161 N.C. App. at

26, 588 S.E.2d at 25, we hold that there is a genuine issue of

material fact with respect to the issue of whether the parties,

including        Bank    of    America,       intended      that    Dr.       Lanzi   and    Dr.

Cottrell signed the loan agreement in their representative or

individual capacities and that the trial court erred to the

extent that it entered summary judgment in favor of Plaintiffs

with       respect      to    the     contribution     issue       on    the    basis       of   a



       5
      In view of the fact that the evidence concerning the
intention with which Dr. Lanzi and Dr. Cottrell signed the loan
agreement conflicts, we need not comment upon the absence of any
evidence concerning the intentions with respect to this issue
that Bank of America, which was clearly one of the “original
parties,” N.C. Gen. Stat. § 25-3-402(b)(2), may have had.
                                              -19-
determination that Dr. Cottrell signed the loan agreement in his

individual, rather than a representative, capacity.6

                             2. Unjust Enrichment Claim

       The second claim asserted in Plaintiffs’ complaint sounded

in unjust enrichment.               “The general rule of unjust enrichment is

that where services are rendered and expenditures made by one

party      to    or    for   the    benefit    of    another,   without    an   express

contract to pay, the law will imply a promise to pay a fair

compensation therefor,” Atlantic Coast Line R.R. Co. v. State

Highway Comm’n, 268 N.C. 92, 95-96, 150 S.E.2d 70, 73 (1966),

with the availability of an unjust enrichment remedy “‘based

upon       the   equitable         principle    that    a   person    should    not   be

permitted        to     enrich       himself    unjustly     at      the   expense    of

another.’”            Hinson v. United Fin. Servs., Inc., 123 N.C. App.

469, 473, 473 S.E.2d 382, 385 (quoting Atlantic Coast Line R.R.

Co., 268 N.C. at 96, 150 S.E.2d at 73), disc. review denied, 344

N.C. 630, 477 S.E.2d 39 (1996).                        On the other hand, “[t]he
       6
      The same logic defeats Defendants’ contention that the
trial court erred by failing to enter summary judgment in their
favor with respect to Plaintiffs’ contribution claim.      As a
practical matter, the fact that the signatures of Dr. Lanzi and
Dr. Cottrell on the loan agreement were not unambiguously made
in   their   representative,  rather   than  their  individual,
capacities coupled with the statement in Dr. Lanzi’s affidavit
to the effect that the parties contemplated that they would be
equally responsible for repaying the loan amount would suffice
to permit a trier of fact to conclude that Dr. Cottrell signed
the loan agreement as a maker and was subject to individual
liability for the resulting indebtedness.
                                       -20-
hallmark rule of equity is that it will not apply ‘in any case

where the party seeking it has a full and complete remedy at

law,’”   id.    (quoting      Jefferson   Standard      Ins.     Co.    v.   Guilford

Cnty., 225 N.C. 293, 300, 34 S.E.2d 430, 434 (1945)), which

means that, “[w]here, as here, there is a contract which forms

the basis for a claim, ‘the contract governs the claim and the

law will not imply a contract.’”               Id. (quoting Booe v. Shadrick,

322   N.C.     567,   570,    369   S.E.2d     554,    556   (1988));        see   also

Whitfield v. Gilchrist, 348 N.C. 39, 42, 497 S.E.2d 412, 415

(1998)   (holding      that    “[o]nly    in    the    absence     of   an    express

agreement of the parties will courts impose a [quasi-contract]

or a contract implied in law in order to prevent an unjust

enrichment”); Vetco Concrete Co. v. Troy Lumber Co., 256 N.C.

709, 713, 124 S.E.2d 905, 908 (1962) (holding that “[i]t is a

[well-established] principle that an express contract precludes

an implied contract with reference to the same matter”).                             In

light of the principle that unjust enrichment relief is not

available      in     instances     governed      by   an    express         contract,

Defendants argue that the “contractual relationship between the

Company and the Bank concerning the Loan to the Company, and the

separate     contractual      relationship       between     the   Bank      and   the

[guarantors] on the Guaranty, are clearly defined and governed
                                        -21-
by said respective, express agreements.”                   Defendants’ argument

has merit.7

       As an initial matter, we have no hesitation in concluding

that the loan agreement constitutes a “contract which forms the

basis for [Plaintiffs’] claim.”                Hinson, 123 N.C. App. at 473,

473 S.E.2d at 385.              In addition, the loan agreement clearly

governs the rights and responsibilities of all of the parties to

that instrument with respect to the loan payment process.                      More

specifically, the loan agreement provides that “[t]he liability

of Borrower and each Guarantor hereunder is joint and several

. . . upon an Event of Default hereunder.”                   Although there is,

as we have previously determined, a material factual dispute

over       the   extent    to   which   Dr.    Lanzi   and   Dr.    Cottrell   are

individually liable as borrowers and although the failure of

payment necessary to trigger the obligation of the guarantors to

make payment has clearly not yet occurred, there is no question

but that the loan           agreement makes each borrower jointly and

severally        liable8    for   the   entire    amount     of    the   resulting

       7
       In their brief, Plaintiffs failed to respond to this aspect
of Defendants’ challenge to the lawfulness of the trial court’s
order.     Instead, their brief makes clear that the unjust
enrichment claim was asserted in the alternative in the event
that their contribution claim did not succeed.
     8
       As this Court has previously stated, “[w]hen joint and
several liability is imposed, ‘each liable party is individually
responsible for the entire obligation.’” In re D.A.Q., 214 N.C.
App. 535, 539, 715 S.E.2d 509, 512 (2011) (quoting Black’s Law
                                        -22-
indebtedness.       Similarly, as we have previously noted, the loan

agreement provides that, in the event that the borrowers fail to

make   any    payment     required      under      the    loan      agreement,     the

guarantors    become     liable   for     the    full     amount    owed.     “If    a

principal obligation is guaranteed by two or more persons, each

must   pay    the   proportional        share      of    the   liability,    and     a

guarantor who has paid more than his or her share is entitled to

contribution from the others and may sue to enforce that right.”

38 Am. Jur. 2d Guaranty § 100 (2010).                    As a result, since the

loan   agreement,       when   read     in      conjunction      with    applicable

principles of North Carolina law, fully governs the relationship

between the parties concerning the extent, if any, to which they

are liable for any indebtedness arising under that instrument,

the trial court erred to the extent that it entered summary

judgment     in   Plaintiffs’     favor      and    failed     to    enter   summary


Dictionary 997 (9th ed. 2009)).     Thus, in instances involving
joint and several liability, “‘the liability of each defendant
is not necessarily dependent upon the liability of any other
defendant, and [the] plaintiff may be made whole by a full
recovery from any defendant.’”    Harlow v. Voyager Commc’ns V,
348 N.C. 568, 572, 501 S.E.2d 72, 74 (1998) (quoting 10 James W.
Moore et al., Moore’s Federal Practice ¶ 55.25, at 55-46 (3d ed.
1997)).   As a result, given that “[c]ontribution is generally
defined as the right of one who has discharged a common
liability or burden to recover of another also liable [the
fractional] portion which he ought to pay or bear,” Irvin, 122
N.C. App. at 501, 470 S.E.2d at 337 (alteration in original), a
person who has paid a disproportionate share of a debt is
entitled to contribution from any other person who was jointly
and severally liable for the payment of that debt.
                                    -23-
judgment   in    Defendants’     favor    with   respect    to    the   unjust

enrichment claim asserted in Plaintiffs’ complaint.

                              III. Conclusion

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

trial   court   erred    by   granting   summary   judgment      in   favor   of

Plaintiffs, by failing to grant summary judgment in favor of Ms.

Cottrell with respect to Plaintiffs’ contribution claim, and by

failing to grant summary judgment in favor of Defendants with

respect to Plaintiffs’ unjust enrichment claim.                  As a result,

the trial court’s order should be, and hereby is, reversed and

this case should be, and hereby is, remanded to the New Hanover

County Superior Court for further proceedings not inconsistent

with this opinion.

    REVERSED and REMANDED.

    Judges      ROBERT   N.   HUNTER,    JR.   concurred   in    this   opinion

prior to 6 September 2014.

    Judge DAVIS concurs.
