An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1034
                       NORTH CAROLINA COURT OF APPEALS

                                Filed: 1 July 2014


TIMBER INTEGRATED INVESTMENTS,
LLC, A North Carolina limited
liability company and MOUNTAIN
WORKS ENTERPRISES, LLC, a North
Carolina limited liability
company,
          Plaintiffs,

      v.                                        Haywood County
                                                No. 06 CVS 905
LARRY WELCH, JOAN MISHKIN, RONALD
MISHKIN and THE BALSAM GROUP, LLC,
          Defendants.


      Appeal by defendants Joan Mishkin and Ronald Mishkin from

orders     entered   29   April   2013    and    31   May   2013,   and   judgment

entered 9 May 2013 by Judge J. Thomas Davis in Haywood County

Superior Court.       Heard in the Court of Appeals 5 February 2014.


      Jeffrey W. Norris & Associates, PLLC, by Jeffrey W. Norris,
      for plaintiffs-appellees.

      McGuire, Wood & Bissette, P.A., by Joseph P. McGuire, for
      defendants-appellants Joan Mishkin and Ronald Mishkin.


      GEER, Judge.


      Defendants Joan Mishkin and Ronald Mishkin appeal from a

judgment allowing plaintiffs to pierce the corporate veil of
                                               -2-
Balsam Group, LLC and imposing joint and several liability on

the individual defendants for all sums owed by Balsam for its

unfair       and    deceptive          practices     as    a   result     of     a    previous

judgment.1          On appeal, the Mishkin defendants contend that the

trial       court    erred        in    denying      their     motion     to     enforce     a

settlement agreement entered into by all the parties, including

Balsam.        The trial court denied their motion, concluding that

the    parties       never    entered      a   valid       settlement     agreement       and,

furthermore,         that    defendants        were       estopped    from     raising     the

settlement issue.

       We hold that the undisputed evidence establishes that the

parties entered an enforceable settlement agreement.                                 The trial

court, therefore, erred in concluding otherwise.                               With respect

to the trial court's conclusion regarding estoppel, the trial

court's findings of fact do not support the application of any

estoppel doctrine recognized as part of North Carolina's common

law.        Consequently,         the     trial    court's     denial     of     defendants'

motion to enforce the settlement agreement is not supported by

either basis relied upon in the trial court's order, and we,

therefore, reverse the order.

       Plaintiffs, however, have argued on appeal that the order

may    be    supported       by    an    alternative       basis     in   law.        Although

       1
           Defendant Larry Welch is not a party to this appeal.
                                              -3-
plaintiffs       also    argued       at    the     trial    level     that     defendants'

motion should be denied based on the doctrine of laches, the

trial court did not address that argument.                           Our review of the

record      reveals     evidence       from       which     the     trial      court    should

determine        whether       defendants          are      precluded       from       seeking

enforcement        of    the    settlement           agreement       based      on     laches.

Because it is within the province of the trial court to weigh

the equities of the case under the doctrine of laches, we remand

for   the    trial      court    to    address        whether       enforcement        of   the

settlement agreement should be denied based on laches.

                                             Facts

      This       dispute   arose       out    of     the     sale    by     defendants       to

plaintiffs of a tract of environmentally-contaminated land.                                  On

27 July 2006,           plaintiffs filed            an action alleging fraud and

unfair      or    deceptive      practices           and    seeking       to    pierce      the

corporate veil of defendant Balsam and hold defendants Welch and

the   Mishkins      individually           liable.         Defendants,      including       the

individual defendants, denied the material allegations of the

complaint, asserted multiple affirmative defenses, and sought

attorneys' fees and costs.                    Defendant Welch also asserted a

counterclaim for breach of a promissory note in the amount of

$100,000.00 plus interest.                 The underlying facts of the case are
                                                    -4-
set forth in more detail in Timber Integrated Invs., LLC v.

Welch, ___ N.C. App. ___, 737 S.E.2d 809 (2013).

      On       29    October      2010,       the     trial      court     entered       an    order

granting        summary      judgment          to    the    individual           defendants      and

denying summary judgment as to defendant Balsam.                                        Plaintiffs

filed      a    notice       of       appeal        from    this        interlocutory         order.

Subsequently,            plaintiffs'      counsel          reached       out     to    defendants'

counsel in an attempt to settle                            the litigation.              Plaintiffs

offered to withdraw their appeal and dismiss their lawsuit as to

all     defendants           if        defendant           Welch        would     dismiss        his

counterclaim.               Plaintiffs         indicated         that     their        purpose     in

attempting          to    reach   a    settlement          was     to    avoid    the    time    and

expense associated with pursuing the appeal.

      After         plaintiffs'        counsel        confirmed         that     the    dismissals

would be with prejudice, defendants' counsel asked plaintiffs'

counsel to prepare the necessary documentation for his clients

to    consider.             On    9    March        2011,     plaintiffs'         counsel        sent

defendants' counsel a proposed Joint Dismissal with Prejudice

and a Mutual Release and Settlement Agreement.

      The following day, on 10 March 2011, plaintiffs' counsel

sent a fax,              following up on the 9 March 2011 letter and                               a

subsequent          phone    call,       in     which       counsel       stated       that   "[i]t

appears that we are in agreement and that you are simply waiting
                                        -5-
on the documents to be returned from your clients."                      Plaintiffs'

counsel asked that "in the event that your clients are delayed

in getting the papers back to you, would you at a minimum give

me    the   signed   Dismissal    for   filing      with   the     Court    as   your

clients' signatures are not necessary for that document?"                         The

Joint Dismissal with Prejudice was signed by both attorneys that

day.    On 22 March 2011, defendants returned the Mutual Release

and Settlement Agreement, which defendants had signed.

       Thereafter,     on   1   April   2011,       plaintiffs'     counsel      sent

defendants' counsel a letter stating that after receiving the

signed settlement agreement, plaintiffs "have taken more time to

consider the proposed settlement" and "have reconsidered their

previous position and wish to continue the appeal."                       Therefore,

the letter stated, "we will not be filing the dismissal, they

are not going to execute the Settlement Agreement, and we will

proceed with the appeal . . . ."

       As   represented,    plaintiffs        did    not   file    the     voluntary

dismissal and proceeded with their appeal.                       That appeal      was

dismissed     as     interlocutory      on    6     December      2011.       Timber

Integrated Invs., LLC v. Welch, 217 N.C. App. 402, 720 S.E.2d

29,    2011    WL    6047094,    2011    N.C.       App.   LEXIS     2523     (2011)

(unpublished).        A bench trial was then held as to plaintiffs'

claims against defendant Balsam on 23 January 2012.                        The trial
                                            -6-
court concluded that Balsam "'committed fraud[,] . . . violated

the Unfair and Deceptive Trade Practices statute[,] . . . [and]

made negligent misrepresentations.'"                      Timber, ___ N.C. App. at

___,    737    S.E.2d    at    814.        The    trial    court     entered       judgment

against       Balsam     on    22        February    2012      in     the        amount   of

$5,442,785.12, which was trebled to $16,328,355.36.

       Plaintiffs appealed the 2012 judgment "'to the extent that

the individual defendants Larry Welch, Joan Mishkin, and Ronald

Mishkin were not subject to the judgment because of the [2010

trial court order] granting summary judgment in [Defendants']

favor prior to the trial.'"                Id. at ___, 737 S.E.2d at 814.                 On

19 February 2013, this Court reversed summary judgment for the

individual defendants and remanded for a trial on the issue of

Balsam's status as a legitimate limited liability company and

whether   the     individual        defendants      could     be    held    individually

liable.       Id. at ___, 737 S.E.2d at 818.

       On 20 March 2013, defendants filed a motion to enforce the

settlement       agreement.               The     motion      asked        for     specific

performance,      dismissal         of    all    claims    against        the    individual

defendants with prejudice pursuant to Rule 41 of the Rules of

Civil Procedure, sanctions against plaintiffs, and attorneys'

fees.     On     29    April   2013,       the    trial    court    entered       an   order

denying       defendants'       motion,          concluding        that     "a     complete
                                           -7-
settlement was never rendered between the parties and completed

and that the plaintiffs had the right to withdraw [their] offer.

Furthermore,       the    defendants       are     estopped        from       raising       the

settlement       issue    at     this    point     in     light    of        the    continued

litigation and trial of this matter and the resulting opinion of

the Court of Appeals."

    A     jury    subsequently          found    that     each     of    the       individual

defendants       controlled       Balsam        with     regard     to       the     acts    or

omissions that damaged the plaintiffs.                           Based on the jury's

verdict, the trial court entered judgment against the individual

defendants jointly and severally for all sums set forth in the

22 February 2012 judgment against Balsam.

    On 14 May 2013, defendants filed a Motion for Judgment

Notwithstanding the Verdict and Motion for New Trial, which the

trial court denied in an order filed 31 May 2013.                                  On 27 June

2013,    defendants       Joan    and    Ronald        Mishkin    filed       a    notice    of

appeal     of    the     order    denying       their     motion        to    enforce       the

settlement       agreement,       the     order        denying     their          motion    for

directed    verdict,       the    final    judgment,       and     the       order    denying

their motion for judgment notwithstanding the verdict and motion

for new trial.

                                        Discussion
                                         -8-
    On appeal, defendants have chosen only to challenge the

trial court's denial of their motion to enforce the settlement

agreement, arguing that it was error for the trial court to

conclude (1) that a settlement was never reached between the

parties and (2) that defendants were estopped from raising the

settlement issue.       Generally, "a settlement agreement may be

enforced by filing a new action or by filing a motion in the

cause, even if 'the parties and their settlement agreement [are]

still before the trial court.'"                 Currituck Assocs.-Residential

P'Ship v. Hollowell, 166 N.C. App. 17, 24, 601 S.E.2d 256, 261

(2004) (quoting State ex rel. Howes v. Ormond Oil & Gas Co., 128

N.C. App. 130, 137, 493 S.E.2d 793, 797 (1997)), aff'd, 360 N.C.

160, 622 S.E.2d 493 (2005).             "'A motion to enforce a settlement

agreement   is   treated    as     a    motion    for   summary    judgment'     for

purposes of appellate review."             Williams v. Habul, ___ N.C. App.

___, ___, 724 S.E.2d 104, 109 (2012) (quoting Hardin v. KCS

Int'l,   Inc.,   199   N.C.      App.    687,    695,    682    S.E.2d    726,   733

(2009)).

    Summary      judgment     is       appropriate      where   "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."                 N.C.R. Civ. P. Rule
                                  -9-
56(c).      "The moving party has the burden of demonstrating the

lack of any triable issue of fact and entitlement to judgment as

a matter of law."      Hardin, 199 N.C. App. at 695, 682 S.E.2d at

733.

       A.    Formation of an Enforceable Settlement Agreement

       "A settlement agreement is a contract governed by the rules

of contract interpretation and enforcement."        Williams, ___ N.C.

App. at ___, 724 S.E.2d at 110.

             "In the formation of a contract an offer and
             an acceptance are essential elements; they
             constitute the agreement of the parties.
             The offer must be communicated, must be
             complete, and must be accepted in its exact
             terms.       Mutuality   of   agreement   is
             indispensable; the parties must assent to
             the same thing in the same sense, idem re et
             sensu, and their minds must meet as to all
             the terms."

Washington v. Traffic Markings, Inc., 182 N.C. App. 691, 697,

643 S.E.2d 44, 48 (2007) (quoting Dodds v. St. Louis Union Trust

Co., 205 N.C. 153, 156, 170 S.E. 652, 653 (1933)).

       Here, there are no material issues of fact.          The record

establishes that plaintiffs' counsel sent defendants a proposed

Joint Dismissal with Prejudice and Mutual Release and Settlement

Agreement.     In a follow-up letter referencing a subsequent phone

call   between   counsel,   plaintiffs'   counsel   noted   that   "[i]t

appears that we are in agreement and that you are simply waiting

on the documents to be returned from your clients" and requested
                                            -10-
that defendants' counsel return "the signed Dismissal for filing

with the Court as your clients' signatures are not necessary for

that document[.]"            Both attorneys signed the Joint Dismissal

with Prejudice, and defendants signed the Mutual Release and

Settlement agreement, without modification, and returned it to

plaintiffs on 22 March 2011.

       These undisputed facts show that a valid offer was made by

plaintiffs and accepted by defendants.                     See, e.g., Goldman v.

Parkland of Dallas, Inc., 277 N.C. 223, 226, 227, 176 S.E.2d

784,     787     (1970)       (where       defendant      mailed     document      that

"constituted an offer," the "final act necessary to make it a

binding agreement was its acceptance, which was done by the

plaintiff by signing it"); Currituck Assocs., 166 N.C. App. at

26-27,     601    S.E.2d      at     263    (finding      correspondence     between

parties'       counsel    containing        settlement      offers    and    counter-

offers, followed by counsel's statement that "'I received your

message    and    am     pleased     that    we    have   reached    an   agreement'"

constituted      valid       offer   and     acceptance     creating      enforceable

settlement agreement).

       The trial court's conclusion that "a complete settlement

was never rendered between the parties and completed and that

the    plaintiffs      had    the    right        to   withdraw    that   offer"   was

apparently based upon its findings that (1) the dismissal was
                                      -11-
never filed, and (2) plaintiffs did not sign the memorandum of

settlement.     These   findings,      however,       are   not   sufficient    to

establish that no enforceable settlement agreement was entered

into between the parties.

    In   the    analogous     context        of   a    mediation      settlement

agreement, this Court has explained:

         Although any agreement reached must be
         reduced to a signed writing, the failure of
         the parties to reduce their agreement to a
         signed writing does not preclude a finding
         that the parties indeed reached agreement at
         the mediated settlement conference. Indeed,
         it is well settled that parties may orally
         enter a binding agreement to settle a case.
         See   15A    Am.   Jur.   2d   Compromise   and
         Settlement § 10, at 782 (1976) ("[N]o
         particular form of agreement and no writing
         is   ordinarily     essential   to    a   valid
         compromise.");    cf. Manufacturing Co. v.
         Union, 20 N.C. App. 544, 548, 202 S.E.2d
         309, 312 (noting that parties may orally
         consent   to    a  consent   judgment),   cert.
         denied, 285 N.C. 234, 204 S.E.2d 24 (1974);
         Nickels v. Nickels, 51 N.C. App. 690, 693–
         94, 277 S.E.2d 577, 579 ("[S]ignatures of
         parties or their attorneys [on a consent
         judgment are] not necessary if consent is
         made to appear."), disc. review denied, 303
         N.C. 545, 281 S.E.2d 392 (1981).

Few v. Hammack Enters., Inc., 132 N.C. App. 291, 298-99, 511

S.E.2d 665, 671 (1999).

    Because the undisputed facts show that defendants accepted

plaintiffs'    offer    to   settle    by    signing        and   returning    the

agreement prior to plaintiffs' withdrawal of their offer, the
                                       -12-
parties     entered    into    an     enforceable       settlement     agreement.

Plaintiffs, therefore, did not have the right to withdraw their

offer.

      In arguing that the trial court properly concluded that

they withdrew their settlement offer, plaintiffs point to two

cases involving consent judgments: Lee v. Rhodes, 227 N.C. 240,

41 S.E.2d 747 (1947), and Freedle v. Moorefield, 17 N.C. App.

331, 194 S.E.2d 156 (1973).           The Supreme Court in Lee held that

the trial court did not have the authority to enter a consent

judgment "after one of the parties repudiated the agreement and

had withdrawn his consent thereto."                227 N.C. at 242, 41 S.E.2d

at   749.       Freedle,   applying    Lee,     vacated    a   consent   judgment

entered by the trial court when, after reaching a settlement

agreement, one of the parties repudiated his acceptance of the

offer to settle.      17 N.C. App. at 332, 194 S.E.2d at 157.

      The   requirements      for   entry     of    a   consent     judgment    are,

however, distinct from the requirements for the formation of a

valid and enforceable settlement agreement.                    In State ex rel.

Howes, 128 N.C. App. at 132, 493 S.E.2d at 794, the parties

entered     a   settlement    agreement       that      provided,    among     other

things, that the parties would enter into a consent judgment.

After the proposed consent judgment was prepared, one of the

parties refused to sign it.           Id.     The trial court found that the
                                             -13-
proposed     consent      judgment      "'fully      and   fairly       reflect[ed]       the

agreed-upon     terms      of    the    Settlement'"          and    ordered      the   non-

consenting party to comply with its terms.                              Id. at 133, 493

S.E.2d at 795.

       On appeal, this Court vacated the consent judgment, noting

that "a party may withdraw his consent from a consent judgment

at     any   time    before      a    trial     court      sanctions       the    parties'

agreement and promulgates it as a judgment."                            Id. at 136, 493

S.E.2d at 796.         Nevertheless, this Court held that, on remand,

"the    trial   court      may       consider       whether    the      State    is     still

entitled to 'specific performance of the Settlement by entry of

Judgment implementing the terms of the Settlement.'"                            Id.

       Thus, withdrawal of consent prior to entry of a consent

judgment has no effect on the formation of a valid settlement

agreement.          The    cases      cited     by    plaintiff         are,     therefore,

inapposite.         Accordingly, we hold that the trial court erred to

the    extent   that      it    based   its     decision      on    a   conclusion       that

plaintiffs withdrew their settlement offer.

       B.    Estoppel

       Nevertheless,       the       trial    court     also       concluded     that     the

defendants were "estopped from raising the settlement issue at

this point in light of the continued litigation and trial of

this matter and the resulting opinion of the Court of Appeals."
                                    -14-
The trial court did not specify which doctrine of estoppel it

applied.

    Our Supreme Court has explained:

                 Broadly speaking, "estoppel is a bar
            which precludes a person from denying or
            asserting anything to the contrary of that
            which has, in contemplation of law, been
            established as the truth."     28 Am. Jur. 2d
            Estoppel and Waiver § 1 (2000). As we noted
            over 150 years ago, it is a principle which
            "lies at the foundation of all fair dealing
            between [persons], and without which, it
            would be impossible to administer law as a
            system."   Armfield v. Moore, 44 N.C. 157,
            161 (1852).     "Estoppel" is not a single
            coherent doctrine, but a complex body of
            interrelated rules, including estoppel by
            record,   estoppel    by   deed,    collateral
            estoppel,   equitable   estoppel,   promissory
            estoppel, and judicial estoppel.       28 Am.
            Jur. 2d Estoppel and Waiver § 2 (2000).

Whitacre P'ship v. Biosignia, Inc., 358 N.C. 1, 13, 591 S.E.2d

870, 879 (2004).

    Defendants     address   only    equitable   estoppel   on   appeal,

arguing that the trial court's findings of fact are insufficient

to establish the essential elements of equitable estoppel.            We

agree.     "The essential elements of estoppel are (1) conduct on

the part of the party sought to be estopped which amounts to a

false representation or concealment of material facts; (2) the

intention that such conduct will be acted on by the other party;

and (3) knowledge, actual or constructive, of the real facts."

State ex rel. Easley v. Rich Food Servs., Inc., 139 N.C. App.
                                         -15-
691, 703, 535 S.E.2d 84, 92 (2000).                 Additionally, "[t]he party

asserting the defense must have (1) a lack of knowledge and the

means of knowledge as to the real facts in question; and (2)

relied upon the conduct of the party sought to be estopped to

his prejudice."        Id.

      The trial court's sole finding regarding its application of

estoppel was that "defendants continued to participate with the

litigation, continued to participate in the Court of Appeals,

and the Court of Appeals has now reversed the summary judgment

motion in favor of the individual defendants, and also, a trial

has taken place in regard to Balsam Group, LLC."                           The trial

court   did    not     make    any   findings     specifically        addressing   the

elements      of     equitable       estoppel,    and     we    cannot    infer    the

necessary findings of fact from the findings actually made.

      Therefore,       the     trial    court     could    not    have    based    its

application of estoppel on the doctrine of equitable estoppel.

In   addition,       neither    party    argues    --     and   the   trial   court's

limited findings do not suggest -- that the trial court was

applying any alternative estoppel doctrine.                     We, therefore, hold

that the trial court's findings are insufficient to support its

determination that defendants should be estopped from enforcing

the settlement agreement.

      C.      Laches
                                           -16-
       Plaintiffs, however, point to the doctrine of laches and

appear      to    argue    that    the    trial    court,      when    it   referenced

estoppel, was actually concluding that laches worked to estop

defendants from enforcing the settlement agreement.                         This Court

has recognized that "[t]he defenses of estoppel and laches are

both equitable in nature and there is often substantial overlap

in   their       application."        Abernethy      v.   Town    of   Boone    Bd.   of

Adjustment, 109 N.C. App. 459, 463, 427 S.E.2d 875, 877 (1993)

(emphasis added).

       Nevertheless,         when        our    Supreme        Court    provided      a

comprehensive review of the "broader spectrum of estoppel and

preclusion doctrines customarily used" in North Carolina common

law,   it    did     not    mention   the      doctrine   of     laches.       Whitacre

P'Ship, 358 N.C. at 13, 591 S.E.2d at 879.                        Moreover, as the

United States Supreme Court recently explained:

                 The test for estoppel is more exacting than
                 the test for laches, and the two defenses
                 are differently oriented.    The gravamen of
                 estoppel, a defense long recognized as
                 available in actions at law, is misleading
                 and consequent loss. Delay may be involved,
                 but is not an element of the defense.     For
                 laches, timeliness is the essential element.

Petrella v. Metro-Goldwyn-Mayer, Inc., ___ U.S. ___, ___, 188 L.

E.   2d.     979,    997,    134    S.    Ct.     1962,   1977    (2014)     (internal

citations omitted).
                                          -17-
       Because     estoppel        and    laches        constitute      separate    and

distinct equitable defenses, we decline to assume that the trial

court, without mentioning the doctrine of laches, applied that

doctrine in reaching its conclusion that defendant was estopped

from    seeking      enforcement          of      the     settlement        agreement.

Plaintiffs,      however,     alternatively         assert,       pursuant    to    Rule

28(c)   of   the    Rules     of    Appellate      Procedure,        that    the   trial

court's failure to address laches "deprived the appellee of an

alternative basis in law for supporting the judgment, order, or

other determination from which appeal has been taken."

       Plaintiffs specifically argued laches to the trial court in

their brief in opposition to defendants' motion to enforce the

settlement agreement.         Defendants, however, contend that because

plaintiffs did not raise the issue of laches in their proposed

issues on appeal as provided in Rule 10(c) of the Rules of

Appellate    Procedure,       plaintiffs         have    failed    to   preserve    the

issue for appellate review.              We disagree.

       Rule 10(c) provides:

             Without taking an appeal, an appellee may
             list proposed issues on appeal in the record
             on appeal based on any action or omission of
             the trial court that was properly preserved
             for appellate review and that deprived the
             appellee of an alternative basis in law for
             supporting the judgment, order, or other
             determination from which appeal has been
             taken.    An appellee's list of proposed
             issues on appeal shall not preclude an
                                       -18-
              appellee from presenting arguments on other
              issues in its brief.

(Emphasis added.)

       Thus, although the better practice would be for an appellee

to list alternative bases in law in the appellee's proposed

issues on appeal, the plain language of Rule 10(c) does not

limit the issues an appellee may argue in its brief to those

issues listed in the record on appeal.              Furthermore, Rule 28(c)

expressly allows an appellee to set forth in its appellee brief

an    alternate   basis   in    law    to     support     an   order.      Because

plaintiffs' brief argued the doctrine of laches and plaintiffs

had    also    asserted   laches      in    the   trial    court,    plaintiffs'

arguments     regarding   the   applicability       of    laches    are   properly

before us.

       This Court has explained that

              1) the doctrine [of laches] applies where a
              delay of time has resulted in some change in
              the condition of the property or in the
              relations of the parties; 2) the delay
              necessary to constitute laches depends upon
              the facts and circumstances of each case;
              however, the mere passage of time is
              insufficient to support a finding of laches;
              3)   the   delay   must  be   shown   to   be
              unreasonable and must have worked to the
              disadvantage, injury or prejudice of the
              person seeking to invoke the doctrine of
              laches; and 4) the defense of laches will
              only work as a bar when the claimant knew of
              the existence of the grounds for the claim.
                                    -19-
MMR Holdings, LLC v. City of Charlotte, 148 N.C. App. 208, 209-

10, 558 S.E.2d 197, 198 (2001).            The burden of proof is on the

party asserting laches.          Taylor v. City of Raleigh, 290 N.C.

608, 622, 227 S.E.2d 576, 584 (1976).

      We hold that there is evidence in the record from which the

trial court should make findings to determine whether or not the

doctrine of laches applies in this case.             It is well settled

that "it is the province of the trial court, not the appellate

court, to weigh the evidence and decide the equities."               In re

Bradburn, 199 N.C. App. 549, 556, 681 S.E.2d 828, 833 (2009).

Consequently, because laches is an equitable defense, it is for

the trial court -- and not this Court -- to decide in the first

instance whether laches should be applied in this case to bar

defendants from enforcing the settlement agreement.

      We, therefore, reverse the trial court's order and remand

to   the   trial   court   for   consideration    whether   laches   would

prevent the enforcement of the settlement agreement.


      Reversed and remanded.

      Judges ROBERT C. HUNTER and McCULLOUGH concur.

      Report per Rule 30(e).
