An unpublished opinion of the North Carolina Court of Appeals does not constitute 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 
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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 

 

1Defendant Larry Welch is not a party to this appeal. 
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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 
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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 
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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 
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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 
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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
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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 
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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 counteroffers, 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 
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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 
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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 
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proposed consent judgment "'fully and fairly reflect[ed] the 

agreed-upon terms of the Settlement'" and ordered the nonconsenting 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." 
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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. 
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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
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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 
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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).