in south carolina this might be referred to as james brown soul singer type of case incredible it's a dysfunctional family a lot of acrimony lots of going back and forth making unseemly claims against each other delayed delayed litigation litigation and finally they did one thing right and they decided to select an independent person to act as a personal representative  relates to a note and the other one where the appellee and it relates to to a trust i would like to first with your permission address the address the note because it it it appears it's a clear s in in sequence the facts aren't in dispute this is an issue of law is whether a rule forty one just muscle a bollen terry dismissal without prejudice shortens a statute of limitations from a three years down to one and essentially what the time what the court ruled the court first got it right and then apparently got confused and ruled that a one time voluntary dismissal without what the court held because in this case the one year could be implicated because of the timing of this yes or no but if you read it that way the way you advance i'm not sure is your position at all what the court indicated apparently on the record was they were buying into a two three hundred sixty five days to renew after all voluntary dismissal in the order itself the court three years now it's up it's it's on a note but which which jurisdiction are we talking about i'm sorry sir which jurisdictions law applied in north carolina i think everybody's agreed that this was a three year statute of limitations in which to bring the action problem is is that there's nothing in the record why does north carolina law apply the case was brought in south carolina isn't the statue of limitations a procedural device it would be three years in south carolina it would be three years and north carolina is that the case like no we're talking about a personal representative bringing a lawsuit who was never appointed until six years later we don't think it was a three year statute of limitations in this event because it would have been a  there was never there was no indication in the record at all when a breach took place but there is that's all i was going to ask except you know payments were supposed to be made the loan amount wasn't but there were payments required by the note there were several items required and those were identified has not been complied with shortly after dr fourteen two thousand and five and it seems to me because the breach occurred probably in july or august of two thousand and five whenever you say those paint those payments and never made and they were due then and it seems to me this limitations discussion doesn't further the ball i wouldn't respectfully agree and distinguish it and here's why number one we don't know when when the payments were made number one there were the if you look at them ations the whole record says they were never me right no there was evidence that they were made the payments provided for in the note some of the payments were made and some weren't you had payments you got payments that were made for for the daughter for some insurance firm for some payments for some salary  periodically made ones there was some insurance that was supposed to be paid but the important part of it was the balloon payment was due thirty days after day mr i understand but the blue payment there were other obligations of that  the action couldn't be brought until a personal representative was appointed isn't that right yes or and in fact yes or we agree and that such a limitations doesn't run until that personal representative is appointed or the later of some end date under south no interest in an opening in a state because then he would have to pay back the money or through his company owned one hundred percent of the company that it was obligated he was a name personal representative he he didn't he did he wasn't going to bring a cause of action because then it would be against himself because the need have to pay back the money so we're not making a claim for payment city didn't make it to the george didn't or its company didn't make it to the daughters or and didn't pay the all mobile insurance and those were breaches occurred in july two thousand and five the money was supposed to be returned thirty days after his death yes that's not a breach issue that was just the term of the  who would as a rhetorical question of what he did it was well planned did he include all the necessary parties what happened with the lawsuit lawsuit distinction is that we're asking when did the cause of action who when did this one could have been filed when that on the two hundred thirty two thousand no the two hundred thirty thousand wasn't due until thirty days actors that but the other portions were breached a mediately and so they could have been sued upon at some point in time they were its own definite is when those breaches took place there was there was no documentation that that i recall that would reflect precisely when that occurred  but this this action act well my point my whole point is if the document was breached in july any limitations you're talking about ran and we don't have to solve this forty one rule forty one issue or whether the district court misunderstood it they the action was filed no indication that it was served there is no affidavit of service no not well pled the opposing side conceded that it was not doesn't matter as to when a cause of action accrues it is no question it was litigated the question is when did a cruel and somebody thought it was breached as of that time and allege the reasons and you look on the face of the note and those re that there had been an alleged breach as it related to certain terms but they say for the breaches certainly occurred as evidenced by the find plaint by two thousand and seven it was alleged in that complaint yes or three years after two thousand and seven is two thousand and ten yes or you didn't bring this action till two thousand and thirteen that's correct your honor however in the meantime mr mr compas pop daddy died in february of two thousand and nine if you have if you had a three year statute of limitations and a breach occurred somewhere around april of two thousand and seven he's he has his dad the personal representative or named personal representative is george c he's not bringing a cause of action because they would have to pay back the money north carolina law that says because in the state is not open the statue of limitations is told i don't think we ever got to that point because a judge ru of read the cases i can't do it and we never got to that point so we didn't we didn't break that issue we never got it part of the confusion here is i think is it's not even clear that north carolina law applies in this instance because this was a federal district court sitting in diversity and had to consider what law south carolina law would apply what law south carolina would apply to these facts i think that south carolina's law applies with respect to the statute of limitations and there is case law that says in south carolina that until a personal representative is appointed the statute of limitations does not begin to run or is told we agree we agree with that principle even though you don't know what the cases but i do oh eighteen thirty two case but the holding there was that the statute of limitations under south carolina law does not begin to run until letters of administration are issues and in this case that did not happen until far down the road and that's why i'm suggesting to you that notwithstanding the fact that in an ordinary case the statute of limitations would run upon the breach that's not the case here the problem of course is that none of this was brought to the district court's attention by anyone even before he died in other words the money was transferred two hundred thirty thousand dollars was transferred to the business for use until thirty days after he died the condition the condition of that money being in there is that the salaries and the insurance and the cars be paid the allegation made in two thousand and seven was that that was never done and therefore the two thousand and two note was breached as and this is almost as soon as it started the company didn't and they could have filed suit and the then the money would have had to been returned because the conditions when applied if you take that reading of it then the accrual of the cause of action in two thousand and five expired or was barred in two thousand and eight and he died what two thousand and nine yesterday died in two thousand and i respectfully disagree there was testimony from mr ballard to the effect that there were some periodic payments that were made problem is that the person who had the documentation would reflect what was vague and what wasn't didn't provide the documentation even when the court gave him an opportunity at the close of the evidence to present more evidence that would reflect on this so we're left with the situation in which we don't know when the breach took place the best evidence we have is somewhere but we respectfully suggest that the lower court erred in the first instance in the second instance he got it absolutely right they took money they misappropriated it they applied the money to their own court not familiar with b l more the parties did not argue choice of law in the trial court never came up except that it was north carolina that applause applause having heard about it for the first time now i still think this case is decided on the first lawsuit that was brought the lawsuit itself which was sufficiently pled stated that the interest rate should start in a prayer for a week at about the time that the note was executed which puts it all the way back in july of two thousand and five that's what the involved in straffing so it's hard to understand but we contend that it's not a installment contracted as an accelerant hawser needs one really what it is is an agreement to use money during pop's life time for the company's benefit again its pop company  pop and your father and son are in the process of trading the company or moving the company to the next generation pop agrees to let the company use two hundred thirty thousand dollars during his lifetime if george agrees on behalf of the company that he'll do three things take care of that take care of the insurance the car and pay a seven percent quarterly quarterly pay interest payment so those are three things are in consideration to use the money that's the consideration so relief would be that if they did breach those things the money go back at if you did not preach those things it clearly makes it a use of the money it just says money's will be put back in the estate and after his death but that's on the condition that the conditions were satisfied i think  're not satisfied by then presumably the money goes back to the father agreed and i think it's conditional into it never want to says the money is made available because we never put on a case it's it's not even in the record whether or i want to be sure i understand your position are you saying that the terminations clause was in fact part of the lawsuit the first lawsuit that was brought it was triggered or are you saying that it did matter in light of all the other alleged breaches that were set out in that lawsuit a doesn't matter terminations clauses in artfully included it's not really a term nation cause it's it's just something that happens after death if there was still money out just as there are you just have us read that out and and say never mind but have you do the same thing to district court did was to say that the consideration for the use of the money was to pay the interest and to take care of the sisters in the ways that were set out in the note itself clearly pop didn't believe those things were done that's why you had roger rooney filed  lawsuit i mean did almost immediately and it appears that it appears at least from the lawsuit itself that pop that george never did the things that he was supposed to do that's why the lawsuit prays for prejudgment interest all the way back to the time that the  piers those things never happened to look at it otherwise would say to pop george not doing what he promised to do not paying quarterly interest not making the payments on sister's behalf the pop could do nothing about it at all until after he died how  h he could he could sue to enforce those provisions of the of the promise or an open not necessarily determination clause well if he if he if if george does nothing doesn't make the interest payments i suppose he could sue for each quarterly payment for each back payment that was due in dition of the two hundred thirty thousand dollars loan or use of the money was that they do those things if they didn't do those things he's entitled to get the money back i don't completely believe that it's just right on the face of the note recess it's not the note was an installment note it was it was use of the money by the corporation for it's a long as a corporation took care of these things if he didn't take care of these things he could have asked right away i want my money back that's your contention and well it says it the conditions for this use of the money and then ever wise if there's full compliance and the money would go back thirty da well drafted for your purpose you keep saying that but the obvious words say i'm lonely in the corporation two hundred thirty thousand dollars they can use the money until after my death so long as they do a b c and d they didn't do a b c and d according then we would put on a case as to whether or not that's what i'm not to speak to or because it's not in the record but on the flip side it's not in the record that they receive the money so they're not walking away from anything that's not that's not before the  that diana is the trustee and her husband a wife and still are so that's a factual matter but doesn't change the law george's duty does not is not expanded by the first or the fact that he's the husband of the trustee yes that's just the way it was at one point he was the trustee himself wasn't there a claim that i'm not a client but an allegation of civil conspiracy in the lawsuit and there wasn't there was not a claim for civil conspiracy it was not the complaint alleges so a conspiracy now i thought it certainly the judge's order does not find it you have a wife that's a trustee right you sir and you have a husband that tells the wife to do something which is going to benefit them both the wife does what the husband says they get the money and the wife puts it in their joint bank account and he now has the full benefit of what he told the wife to do you're suggesting that that husband now has no any beneficiary can call up any trustee at any time and so on top my hypothetical is he clearly directed her to do that she listened to him she did it and the money was transferred to his account  can see that that was a loan from the trust to george and loans of that type can be made under north carolina law and south carolina law specifically can be made at less than commercially reasonable terms about the finding what's actually conclusion of law that it was not alone and we contend that that was wrong fact that's our our first or fifth issue is that conclusion is wrong and we mainly rest on north korean general statute thirty six the dash eight dash eight one six that allows trustees to make loans to beneficiaries at less than commercially reasonable terms and even not take a no don't say that but that's the implication because it also allows that those loans will be liens against future distributions in other words a trustee is not obligated to act like a bank particularly where it's a amateur trustee was what diana was and she doesn't have to notion have to require an interest that can be less than commercially reasonable terms that's what we would contend the purpose of that statutory provision is is to allow trustees to make laws like that that a court order disgorgement of monies that a trust wife makes to her husband yes in the for and in fact that's what we contended this court you do here you call it it's corpsmen your are what we would call it simply finding that the note needs to be repaid and never took a position otherwise george nd the judge said that it was not alone we disagree that it was an issue of fact and if we would direct the court to to the record itself and i'll give you the citation if you go look at do a joint appendix at page one thirty not the confusion in this and i noticed i noticed it and missed ballard's brief is that although it appears in the record or in the in the judgment itself after the conclusion starts it was one of the conclusions of law that judge anderson did say i find this but it it's in the conclusions of law and to find and to to hold or to find that  transaction is not alone we would contend is a conclusion of law not a finding of fact i mean that's that's a legal conclusion and it is in fact that's why we that's why our issue frames it in that manner that it is an actual conclusion of law and that should be addressed in not under not in the clear and because the statutory provision that i've cited is so directly on point here that that it's permitted that diane could make that type of launch you could have made it to she could have made george she could've made it to the sisters in the same way and there would the record does reflect a lot of transfers payments that were made to the sisters for various reasons paying the mortgage on the house as they were living and paying the money for living expenses and none of these things met generally accepted accounting principles diane was an accountant she made a lot of accounting errors which is why we're here today but because the statue allows her to do what she did and because we've never taken the position that it's all it was it a loan it hasn't been repaid court should have found that to be a breach of contract and it can be one of the other in fact in her testimony on the on the issue ms ballard did not contend otherwise if you look at the join except page six thirty three i specifically asked her how she thought the claims lined up and she said was either a loan to george or a breach by diane to make the loan in the first place but not below miss ballard course been off for a long time she saw it that way then i see it that way i saw it that i see it that way now it can't be both either george was either dying was in total to make the loans the statute said george or see the money he's obligated to pay it back  contract that goes in my interest argument but it i mean it has to be a tour because it's clearly not a contract action so because of that moving to the interest issue under twenty four dash five three is an action out of the  action other than contract an interest pre judgment interest can only be told to the data filing not all the way back to the date of the breach and for whatever reason judge owners chose to do that but that's not north carolina law what's your best case for the pro  so clear we're order prejudgment interest on some that are clearly definable as opposed to a tort that involves an automobile accident say here we're talking about a specific amount of money and i know under maryland law when you have a specific amount at issue a court can award as damage the loss of the use of the money right re judgment now a question is can a court in north carolina do that yes defined specific amount definable amount for where is no one knows the amount of a tort which has pain and suffering and all the other items that can't be delineated before the suit and it's clear interest but interest as a form of compensatory damages rather than an interest and those are that's going to be my second question in other words it looks pretty clear to me that north carolina is does what other  question is here the court use the statute as opposed to just finding it as an element of damage is that make a difference is that an area that's meaningful because to do that the court could not simply use the statutory interest rate the court would have had to take testimony you had to be evidence of what the time value of money was where the value of money was i mean that's that the few cases that address that require that and there was no evidence put on by ms ballard that had the money been in the trust account that it would draw on a particular interest rate or it could have been used to invest someone could have invested it and made interest on it that that testimony with that evidence never came for the court natural would have been required because eight percent really that's that's an arbitrary interest rate that this catch that general legislature established for pre judgment interest and it's well defined and really are exceptions to that court did not indicate really i think it's this part of the the judgment is a little bit vague it did not clearly indicate that this was a source become pesaturo here rather than prejudgment interest because he used the word statutory so it's a little difficult to figure o i would say a fair characterization would judge andersen did was to combine two remedies into one but that's just not north carolina last actually used is clear on that should have should have started the interest says prejudgment interest should be applied in this case well production interest should be applied to this case in this case and would not contend otherwise we're just saying because it's an action other than contract so while i don't have a case to show not it's not a contract so that throws into the other half i'm sorry it's not it's a breach if i do sherry duty can occur in the absence of a trust agreement it just can be applied to share a relationship but when you have a trust agreement and that's breached why isn't it a contract i think the best argument that would be with a lawyer goes so for instance when i undertake representing a client we have a contract because i'm going to do the work as a lawyer but also i also have a to the client it's separate to the is not defined in that contract this is a trust going on which imposes responsibilities on the trustee and judge for it's question is why isn't that a breach of contract no offer no acceptance no meeting in the minds between the parties complaint said in this case in the complaint said on or about july fourteenth two thousand and five plaintiff and spear entered an agreement which provided that in exchange for the loaned a sum of two hundred thirty thousand spirit re to pay interest thousand dollars together with interest their honored eight percent from july fourteenth two thousand and five and they said those things had never been satisfied that's the complaint so now the question is that  indicates that a cause of action was available in two thousand and five and the question is just because he dismissed it or never served it doesn't mean that because it actually didn't accrue and  so i get back to my original question is why wasn't this a cause of action that accrued in two thousand by their side from the arguments i've made about whether it was served whether it was legitimate  there's also evidence in the record it in you'd asked about this of at page three seventeen in the joint bendixen three seventeen and three eighteen george at one point am said he'd paid it also miss ballard found evidence that george i'm reading that page three eight jane mayer he and linda had been paid some money self insurance one hundred fifty whatever answer obscene a lot of those documents so we still don't know if there was a breach or when george's get he's got different positions from from when he's pressed whether he paid it whether he didn't pay it whether he's done so much for his father but the i think judge made a comment should george get away with this he he owed the money he got the money and he says he paid it back at one time another place he said he shouldn't have to pay it back and he didn't pay it back mr ballard found evidence in the record that he had made payments so we see we come back to the point where we don't know if there was a breach when it we don't based on the record we don't know there's again evidence that he that he was paying for all we know he and pop got together and pop said you know you're right up pull the trigger too quick there's evidence that he would run hot and cold yeah you've been doing it or you haven't been doing it the record really doesn't doesn't reflect for you for the reasons i've stated that would suggest that that my client should be able to get the two thirty and then it according to pups plan for your time you have you now can respond to the transfer of the four hundred twelve thousand court made the right decision for the right reasons it be unconscionable for george he's he's calling all he was in charge of the tax returns he had all the documentation he was telling her what to do he was even trying to foreclose to keep the sisters out of their homes if he could make them homeless them the have the golden rule w wins so he was he was the defacto personal represented but didn't matter they took the money they put it into their account for the two of them to secure their line  which their joint home what was the was the collateral so so the result ought to be the sign well the result what's the theory legal theory covering against george i think the court could have looked at it what could what is your legal my theory is that george changed so many times about what happened that the court had to make a call george at one point in time would say he didn't know anything that he paid it but he couldn't give documentation he would say it was they would say it was a draw then we asked diane what i'm scheming alone then we say well where are the loan documents she says i don't have any well where are they what do you have an interest rate no just george told me to give him the money so i gave it what was that along she said no it's in the record well what was it well it was a draw well how does george get a draw how does george give himself a draw from the from up from the trust and she really could claim there is no legal theory to support civil liability there is a legal theory asking that question i asked is the what's the status currently in north carolina and aiding and abetting we trust we we contend that there is in little circumstance general proposition isn't there a case along valving securities that aiding and abetting is a breach of trust there may well be but that's not the case here it's not it's not a it's not a that george received that long believe that he should pay it back george's conceded that it's it it's the fact that he's still a one third beneficiary under the trust we don't know what's left in the trust we know there are some property we have no idea what the trust should be closed a demand either distribution should be made and if it turns out that george the two thirds interest that he was loaned that are his the are his he's obligated to pay those that back and if that if that's a breach and it would run back to the date that the complaint was filed in bottom versus bailey they said well we need not address whether a claim for it in the bed in breach produce any exists at all we know the plan of some men complaint does not state such a claim well if you go a little higher up in the case