NO. COA14-53

NORTH CAROLINA COURT OF APPEALS

Filed: 2 September 2014

ROSE GLYNNE, M.D.,

Plaintiff

v.

Wilson County

No. 11 CVS 610

WILSON MEDICAL CENTER, a North 

Carolina corporation,

Defendant

Appeal by plaintiff from judgment entered 4 September 2013 

by Judge Marvin K. Blount, III, in Wilson County Superior Court. 

Heard in the Court of Appeals 8 May 2014.

Medicolegal Consultants, LLC, by C. William Hinnant Jr., 

and McKinney Law Firm, PLLC, by Elizabeth McKinney, for 

Plaintiff.

Womble Carlyle Sandridge & Rice, LLP, by John E. Pueschel

and Theresa M. Sprain, for Defendant.

ERVIN, Judge.

Plaintiff Rose L. Glynne, M.D., appeals from an order 

dismissing her complaint. On appeal, Plaintiff contends that 

the trial court erred by granting Defendant Wilson Medical 

Center’s dismissal motion on the grounds that the time within 

which she was entitled to file her complaint had been extended 

by 28 U.S.C. § 1367(d) and that, even if her complaint had not 

been filed in a timely manner, she was still entitled to
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equitable relief on the grounds of excusable neglect, equitable 

tolling, or equitable estoppel. After careful consideration of 

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

the record and the applicable law, we conclude that the trial 

court’s order should be affirmed.

I. Factual Background

A. Substantive Facts

Plaintiff practiced medicine in Wilson, having opened her 

own practice in that community in 2002 after having been 

employed by another Wilson-based practice group before that 

time. As a result of the initial success that she experienced

after having formed her own practice, Plaintiff employed an 

associate and purchased an office building. In October 2002, 

Plaintiff entered into an agreement to lease space in her office 

building to Defendant, which occupied and used the space from 

December 2005 until July 2006, when it vacated the premises. 

Plaintiff claimed that Defendant violated the lease agreement 

between the parties by failing to pay rent.

In April 2006, Defendant initiated an external quality 

review concerning Plaintiff based upon allegations that

complications had been detected in surgical procedures that she 

performed in 2004 and 2005. However, the inquiry did not result 

in any adverse findings in reference to Plaintiff.
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On 15 November 2006, Plaintiff attended a meeting of

Defendant’s medical executive committee at Defendant’s request. 

At that meeting, Plaintiff was informed that problems involving 

the care that she provided to patients had been reported by

several individuals. However, the nature of the problems that 

had been reported by these individuals was not explained to 

Plaintiff with any degree of precision. In addition, Defendant 

expressed concern that there was a high probability that 

surgical procedures performed by Plaintiff would result in

complications. For that reason, Defendant believed that

Plaintiff should repeat her residency or obtain a mentor. 

Although Plaintiff was unable to attend another committee

meeting scheduled for the following day due to a medical 

emergency involving her daughter, she did notify a member of the 

committee of that fact. The person to whom Plaintiff 

communicated this information failed to inform the review

committee of the necessity for Plaintiff’s absence.

On 20 November 2006, Plaintiff’s counsel notified Plaintiff

that her privileges to admit and treat patients at Defendant’s 

facility would be suspended 21 November 2006. On the following 

day, Plaintiff learned that Defendant insisted that she satisfy 

a number of requirements in order to obtain the restoration of 

her privileges, including taking a leave of absence, obtaining 
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the agreement of a qualified physician to serve as mentor, and 

having all of her proposed surgical cases reviewed by a board 

for a period of one year. Plaintiff took leave from practicing 

medicine from 21 November 2006 until 19 February 2007. During 

this interval, Plaintiff had to pay $50,000 in additional 

compensation to her associate in order to ensure that needed 

call coverage was provided. Although Plaintiff attempted to 

obtain the assistance of a mentor, Defendant declined to approve 

the proposed mentoring relationship on the grounds that the 

proposed mentor no longer practiced obstetrics. After rejecting 

Plaintiff’s proposal, however, Defendant recommended that 

Plaintiff reach agreement with a different mentor, who had also 

ceased practicing obstetrics.

On 27 December 2006, Plaintiff received a letter from 

Defendant identifying the allegedly problematic procedures that 

had been discussed at the 15 November meeting. On 6 January 

2007, Dr. Michael Halpert, Defendant’s Chief of Surgery, was 

appointed to investigate the validity of the allegations that 

had been made against Plaintiff. On 8 February 2007, Dr. 

Halpert concluded that there was no evidence of an increased

infection rate, other patient-related psychological or medical 

problems, or other instances of substandard care in the surgical 

procedures that Plaintiff had performed.
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Although Plaintiff was allowed to resume treating patients 

and performing surgical procedures at Defendant’s hospital on 19 

February 2007, Defendant insisted that an external source review 

any questionable cases and that Plaintiff refrain from being on 

call for more than four consecutive days. As a result of the

imposition of this limitation on her ability to be on call,

Plaintiff had to continue to make additional payments to her 

associate in order to ensure the availability of the necessary 

call coverage.

On 20 December 2006, Plaintiff entered into an agreement 

with Parklane Venture Capitalists under which she was to sell 

her medical office building for a price of $1,000,000 while 

leasing a portion of the space in that building for the use of 

her medical practice. In the course of investigating the 

proposed purchase of Plaintiff’s office building, however,

Parklane learned that Defendant had ceased leasing space in 

Plaintiff’s building. As a result, Parklane withdrew its offer 

to purchase Plaintiff’s building, costing Plaintiff a 

substantial amount of money.

Although Plaintiff denied having experienced stress prior 

to the November 2006 meeting, she did experience emotional 

turmoil after that time and discussed her feelings with a family 

therapist and her colleagues. Despite the fact that Plaintiff
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had regained her privileges at Defendant’s hospital in February 

2007, her enforced absence from practice coupled with the fact 

that rumors concerning her alleged patient care issues were 

circulating in the community resulted in substantial economic 

harm to her practice. On 15 November 2007, Plaintiff resigned 

her position as a member of the staff of Defendant’s hospital,

moved to Rocky Mount, and entered practice there. However, as 

the result of the financial loss that she sustained because of 

her temporary loss of privileges at Defendant’s hospital and 

Defendant’s refusal to honor the lease agreement, Plaintiff was 

required to seek personal bankruptcy protection and lost her 

office building.

B. Procedural History

On 10 December 2008, Plaintiff filed a complaint in the 

United States District Court for the Eastern District of North 

Carolina in which she asserted numerous claims against Defendant 

arising under both federal and state law. After Plaintiff 

voluntarily dismissed her federal claims with prejudice on or 

about 30 April 2009, the District Court declined to exercise 

supplemental jurisdiction over Plaintiff’s state law claims and

involuntarily dismissed the remainder of Plaintiff’s complaint 

without prejudice on 1 March 2011.
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On 7 April 2011, Plaintiff filed a complaint in this case 

in which she asserted claims for negligent infliction of 

emotional distress, tortious interference with contract, 

tortious interference with a prospective business relationship, 

breach of contract, and breach of the lease agreement against 

Defendant. On 13 May 2011, Defendant filed a motion to dismiss 

Plaintiff’s complaint on the grounds that all of the claims that 

Plaintiff had asserted against Defendant were barred by the 

applicable statute of limitations.

On 26 May 2011, Plaintiff filed a motion seeking an 

extension of time to file a notice of appeal from the order 

dismissing Plaintiff’s federal action or, alternatively, for 

relief from judgment, in the federal court action. On 4 August

2011, nunc pro tunc to 1 March 2011, the District Court entered 

an order allowing Plaintiff sixty days within which to reassert 

the dismissed state law claims in the General Court of Justice. 

Defendant noted an appeal from the District Court’s order to the

United States Court of Appeals for the Fourth Circuit on 8 

August 2011. On 18 October 2012, the Fourth Circuit vacated the 

District Court’s order. Glynne v. WilMed HealthCare, 699 F.3d 

380 (2013). On 22 October 2012, Plaintiff filed a motion 

requesting the District Court to reconsider its refusal to 

exercise supplemental jurisdiction over Plaintiff’s state law 
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claims. The District Court denied Plaintiff’s motion on 26 

March 2013.

On 19 August 2013, the trial court conducted a hearing 

concerning the issues raised by Defendant’s dismissal motion.

On 4 September 2013, the trial court entered an order granting 

Defendant’s dismissal motion and dismissing with prejudice all 

of the claims that Plaintiff had asserted against Defendant. 

Plaintiff noted an appeal to this Court from the trial court’s 

order.

II. Legal Analysis

A. Standard of Review

“The standard of review of an order granting a [motion 

filed pursuant to N.C. Gen. Stat. § 1A-1, Rule] 12(b)(6) [] is 

whether the complaint states a claim for which relief can be 

granted under some legal theory when the complaint is liberally 

construed and all the allegations included therein are taken as 

true.” Burgin v. Owen, 181 N.C. App. 511, 512, 640 S.E.2d 427,

428 (citing Country Club of Johnston County, Inc. v. U.S. 

Fidelity & Guar. Co., 150 N.C. App. 231, 238, 563 S.E.2d 269, 

274 (2002), disc. review dismissed, 361 N.C. 425, 647 S.E.2d 98, 

cert. denied, 361 N.C. 690, 652 S.E.2d 257 (2007). On appeal 

from an order granting or denying a motion filed pursuant to 

N.C. Gen. Stat. § 1A-1, Rule 12(b)(6), we review the pleadings 
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de novo “‘to determine their legal sufficiency and to determine 

whether the trial court’s ruling on the motion to dismiss was 

correct.’” Page v. Lexington Ins. Co., 177 N.C. App. 246, 248, 

628 S.E.2d 427, 428 (2006) (quoting Leary v. N.C. Forest Prods., 

Inc., 157 N.C. App. 396, 400, 580 S.E.2d 1, 4, aff’d, 357 N.C. 

567, 597 S.E.2d 673 (2003)). A complaint is properly subject to 

dismissal pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) when 

“‘one of the following three conditions is satisfied: (1) the 

complaint . . . reveals that no law supports the plaintiff’s 

claim; (2) the complaint . . . reveals the absence of facts 

sufficient to make a good claim; or (3) the complaint discloses 

some fact that necessarily defeats the plaintiff’s claim.’” 

Burgin, 181 N.C. App. at 512, 640 S.E.2d at 428-29 (quoting Wood

v. Guilford Cty., 355 N.C. 161, 166, 558 S.E.2d 490, 494 

(2002)). As a result, “[a] statute of limitations can be the 

basis for dismissal on a [motion made pursuant to N.C. Gen. 

Stat. § 1A-1, Rule 12(b)(6)] if the face of the complaint 

discloses that plaintiff’s claim is so barred.” Long v. Fink, 

80 N.C. App. 482, 484, 342 S.E.2d 557, 559 (1986).

B. Expiration of the Limitations Period

In her first challenge to the trial court’s judgment, 

Plaintiff contends that she filed her complaint in a timely 

manner and that the trial court erred by reaching a contrary 
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conclusion. According to Plaintiff, the provisions of 28 U.S.C.

§ 1367(d) operated to suspend the running of the statute of 

limitations during the pendency of her federal action rather 

than to extend it by thirty days following the dismissal of her 

federal action so that her complaint was, in fact, timely filed. 

Plaintiff is not entitled to relief from the trial court’s order 

on the basis of this argument.

1. Relevant Legal Principles

A plaintiff seeking to recover damages or to obtain other 

relief for negligent infliction of emotional distress and 

tortious interference with contract or prospective business 

relations must assert that claim within three years of the date 

upon which the underlying injury occurred. See N.C. Gen. Stat. 

§ 1-52(5). Similarly, claims for breach of contract and breach 

of a lease agreement must be asserted within three years of the 

date of the underlying breach. See N.C. Gen. Stat. § 1-52(1). 

According to 28 U.S.C. § 1367(d), “[t]he period of limitations 

for any [supplemental state law] claim asserted [in a federal 

action in accordance] . . . shall be tolled while the claim is 

pending and for a period of 30 days after it is dismissed unless 

State law provides for a longer tolling period.” As a result of 

the fact that North Carolina does not provide for a longer 

tolling period than the thirty day interval specified in 28 
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U.S.C. § 1367(d), Harter v. Vernon, 139 N.C. App. 85, 94, 532 

S.E.2d 836, 842, disc. review denied, 353 N.C. 263, 546 S.E.2d 

97 (2000), cert. denied, 532 U.S. 1022, 121 S. Ct. 1962, 149 L. 

Ed. 2d 757 (2001), this Court has interpreted 28 U.S.C. §

1367(d) to provide that, in the event that the statute of 

limitations applicable to a plaintiff’s state law claim expires 

while a federal action in which that claim has been asserted is

pending, the plaintiff has thirty days following the dismissal 

of the federal action to reassert his or her state law claims in 

the General Court of Justice. Harter, 139 N.C. App. at 91, 532 

S.E.2d at 840; Huang v. Ziko, 132 N.C. App. 358, 362, 511 S.E.2d 

305, 308 (1999).

2. Application of 28 U.S.C. § 1367(d)

As we have already noted, Plaintiff’s negligent infliction 

of emotional distress, tortious interference with contract,

tortious interference with prospective economic relations,

breach of contract, and breach of a lease agreement claims are 

subject to three year statutes of limitations. Since 

Plaintiff’s claims accrued no later than her resignation from 

Defendant’s medical staff on 15 November 2007, she would, 

ordinarily, have been required to assert those claims against 

Defendant by no later than 15 November 2010. At that time, the 

action that she had filed against Defendant in federal court was 
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still pending. According to 28 U.S.C. § 1367(d), the statute of 

limitations applicable to Plaintiff’s state law claims was 

tolled as long as the federal action remained pending. However, 

Plaintiff’s federal action was involuntarily dismissed without 

prejudice on 1 March 2011. According to 28 U.S.C. § 1367(d) as 

interpreted in Huang, 132 N.C. App. at 362, 511 S.E.2d at 308 

(holding that the state law claims for breach of contract and 

infliction of emotional distress that the plaintiff had asserted 

were time-barred given that the plaintiff had failed to reassert 

those claims in the General Court of Justice within thirty days 

after the dismissal of the plaintiff’s federal action), and 

Harter, 139 N.C. App. at 91, 532 S.E.2d at 840 (holding that, 

since the statute of limitations applicable to the plaintiff’s 

state law claims had expired while the plaintiff’s federal 

action was pending, the plaintiff’s state law claims were timebarred since she reasserted them in the General Court of Justice 

more than thirty days following the dismissal of her federal 

action), Plaintiff had 30 days from the date upon which the 

federal action was dismissed to file her supplemental state law

claims in the General Court of Justice. In light of that fact, 

Plaintiff was entitled to reassert her state law claims in the 

General Court of Justice on or before 31 March 2011. However, 

the complaint in this case was not filed until 7 April 2011. As 
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a result, given the absence of a valid District Court order

allowing Plaintiff to file her complaint in the General Court of 

Justice more than thirty days after the dismissal of her federal 

action,1 the trial court correctly concluded that Plaintiff’s 

complaint was subject to dismissal on statute of limitations 

grounds.

In seeking to persuade us to reach a different result, 

Plaintiff contends that the word “tolling” as used in 28 U.S.C. 

§ 1367(d) should be understood to involve the suspension of the 

running of the limitations period rather than the extension of 

that period by a specified number of days. In support of her 

interpretation of the relevant statutory language, Plaintiff

directs our attention to federal decisions and decisions from 

other states that use the word “tolling” in what she believes to 

be the correct sense. See, e.g., Chardon v. Fumero Soto, 462 

U.S. 650, 652 n.1, 103 S. Ct. 2611, 2613 n.1, 77 L. Ed. 2d 74, 

78 n.1 (1983) (stating that “the word ‘tolling’ [means] that, 

during the relevant period, the statute of limitations ceases to 

run”); Heard v. Sheahan, 253 F.3d 316, 317 (7th Cir. 2001) 

(stating that “[t]olling interrupts the statute of limitations 

 

1The extent to which the District Court would have had the 

authority to grant such an extension is in dispute between the 

parties. However, since no such extension was ever granted, we 

need not resolve that part of the parties’ dispute in this 

opinion.
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after it has begun to run”); Sterlin v. Biomune Sys., 154 F.3d 

1191, 1195 n.8 (10th Cir. 1998) (stating that “the term 

‘tolling’ means to suspend or stop temporarily”) (citations and 

quotation marks omitted); Bonifield v. County of Nevada, 94 Cal. 

App. 4th 298, 303, 114 Cal. Rptr. 2d 207, 211 (2001) (stating 

that “[t]o toll the statute of limitations period means to 

suspend the period”), review denied, 2002 Cal. Lexis 1591 

(2002). In addition, Plaintiff argues that the extension 

approach is clearly inconsistent with Congressional intent given

that, under this approach, 28 U.S.C. § 1367(d) would only apply 

in the event that the statute of limitations applicable to the 

plaintiff’s state law claims had expired during the pendency of 

the federal action in which those claims had been asserted

despite the fact that the relevant statutory language provides 

that the applicable statute of limitations “shall” be tolled 

during the pendency of the federal action. United States v. 

Monsanto, 491 U.S. 600, 607, 109 S. Ct. 2657, 2662, 105 L. Ed. 

2d. 512, 521 (1989) (stating that the use of the word “shall” 

means that the statute was intended to be “mandatory in cases 

where the statute applie[s]”); In re Vertrue Inc. Mktg. & Sales 

Practices Litig., 719 F.3d 474, 481 (6th Cir. 2013) (stating 

that “the extension approach fails to give any operative effect 

to [28 U.S.C.] § 1367(d) in a number of cases in which the state 
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statute of limitations does not expire during the course of 

federal litigation”). Finally, Plaintiff points to the

statutory reference to tolling the “period of limitations” and 

argues that the presence of that expression, rather than a 

reference to a tolling of the “expiration of the limitations 

period,” suggests the appropriateness of interpreting 28 U.S.C. 

§ 1367(d) so as to suspend the running of the applicable statute 

of limitations rather than to extend it. As a result, Plaintiff 

contends that, rather than simply having thirty days after the 

dismissal of her federal action within which to file her 

complaint in this case, she had an amount of time consisting of 

the difference between the three year period of limitations 

applicable to the claims that she wished to assert against 

Defendant and the amount of the applicable limitations period 

that had not expired as of the date upon which she filed her 

federal action.

The fundamental problem with Plaintiff’s argument is that 

this Court has already considered and rejected it and our 

decisions to that effect have not been overturned by or 

demonstrated to be inconsistent with a decision by either the 

United States Supreme Court or the Supreme Court of North 

Carolina. According to well-established North Carolina law, 

“[w]here a panel of the Court of Appeals has decided the same 
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issue, albeit in a different case, a subsequent panel of the 

same court is bound by that precedent, unless it has been 

overturned by a higher court.” In re Appeal from Civil Penalty, 

324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989). In other words, 

even if “a panel of the Court of Appeals . . . disagree[s] with, 

or even find[s] error in, an opinion by a prior panel . . . [,]

the panel is bound by that prior decision until it is overturned 

by a higher court.” State v. Jones, 358 N.C. 473, 487, 598 

S.E.2d 125, 134 (2004). As a result, given that we, like the 

trial court, are bound by this Court’s decisions in Harter and 

Huang, we have no hesitation in concluding that the trial court 

did not err by dismissing Plaintiff’s complaint with prejudice

on statute of limitations grounds.

C. Equitable Arguments

2

1. Excusable Neglect

In her second challenge to the trial court’s order, 

Plaintiff contends that she should be allowed to assert her 

state law claims in this case on excusable neglect grounds 

despite the fact that they are time-barred. More specifically, 

Plaintiff contends that, in view of the fact that she relied on

 

2In its brief, Defendant contends that Plaintiff failed to 

properly preserve her equitable challenges to the trial court’s 

order for purposes of appellate review. However, we need not 

resolve this issue given our determination that none of 

Plaintiff’s equitable arguments have merit.
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an interpretation of 28 U.S.C. § 1367(d) that had been accepted 

in many other jurisdictions, the fact that she filed her 

complaint in this case only slightly beyond the period allowed 

under the “extension” interpretation of 28 U.S.C. § 1367(d), and 

the fact that there is a “total lack of prejudice to” Defendant, 

she should be allowed to litigate the state law claims that she 

has asserted in this case despite the running of the applicable 

statute of limitations. We do not find Plaintiff’s argument 

persuasive.3

The only potentially applicable legal basis for holding 

that a trial or appellate court has the authority to extend the 

applicable statute of limitations for “excusable neglect” is 

N.C. Gen. Stat. § 1A-1, Rule 6(b), which provides that, “[w]hen 

by these rules . . . an act is required or allowed to be done at 

or within a specified time . . . [, u]pon motion made after the 

expiration of the specified period, the judge may permit the act 

to be done where the failure to act was the result of excusable 

neglect.” As the Supreme Court has stated, N.C. Gen. Stat. §

1A-1, Rule 6(b) provides “trial courts [with] broad authority to 

extend any time period specified in any of the Rules of Civil 

 

3Plaintiff appears to have abandoned this “excusable 

neglect” argument in her reply brief. However, given that the 

extent to which she has abandoned this claim is not entirely 

clear to us, we have elected to address and resolve it on the 

merits.
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Procedure for the doing of any act, after expiration of such 

specified time, upon finding of ‘excusable neglect.’” Lemons v. 

Old Hickory Council, 322 N.C. 271, 276, 367 S.E.2d 655, 658

(1998). Any argument that Plaintiff may seek to make pursuant 

to N.C. Gen. Stat. § 1A-1, Rule 6(b), necessarily fails, 

however.

As an initial matter, the only time periods that may be 

extended based upon the authority available pursuant to N.C. 

Gen. Stat. § 1A-1, Rule 6(b), are those established by the North 

Carolina Rules of Civil Procedure. Chicora Country Club, Inc. 

v. Town of Erwin, 128 N.C. App. 101, 108, 493 S.E.2d 797, 801 

(1997) (stating that “our courts have consistently held that a 

trial court’s authority to extend the time specified for doing a 

particular act [pursuant to N.C. Gen. Stat. § 1A-1, Rule 6(b)] 

is limited to the computation of [those] time period[s] 

prescribed by the Rules of Civil Procedure”) (quotations and 

citations omitted), disc. review denied, 347 N.C. 670, 500 

S.E.2d 84 (1998). As should be obvious, the statutes of 

limitation at issue here do not appear in the North Carolina 

Rules of Civil Procedure. In addition, the Supreme Court has 

clearly held that “carelessness or negligence or ignorance of 

the rules of procedure . . . does not constitute ‘excusable 

neglect.’” Briley v. Farabow, 348 N.C. 537, 546, 501 S.E.2d 
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649, 655 (1998) (citing In re Wright, 247 F.Supp. 648, 659 (E.D. 

Mo. 1965)). In light of that principle, we are unable to hold 

that Plaintiff’s lack of familiarity with the interpretation of 

the tolling provision of 28 U.S.C. § 1367(d) adopted in Harter

and Huang simply cannot be deemed to constitute excusable 

neglect. As a result, given that the only authority that 

Plaintiff has cited in support of her contention that trial 

courts have the authority to overlook the applicable statute of 

limitations on “excusable neglect” grounds has no application to

statutes of limitations and that Plaintiff’s failure to 

recognize and follow the interpretation of 28 U.S.C. § 1367(d) 

adopted in Harter and Huang does not constitute “excusable 

neglect,” Plaintiff is not entitled to relief from the trial 

court’s order on the basis of “excusable neglect.”

2. Equitable Tolling or Equitable Estoppel

Finally, Plaintiff contends that the running of the 

applicable statutes of limitation should be deemed to have been 

tolled on equitable tolling or equitable estoppel4 grounds. In 

 

4In her brief, Plaintiff relies on both equitable estoppel 

and equitable tolling considerations. Although the two terms 

have different dictionary definitions, Black’s Law Dictionary

579, 590 (8

th ed. 2004), this Court and the Supreme Court have 

used the two terms interchangeably in the statute of limitations 

context, See, e.g., Duke University v. Stainback, 320 N.C. 337, 

341, 357 S.E.2d 690, 692-93, (1987) (discussing “[t]he tolling 

of the statute” because of “equity” and the “equitable doctrine 
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support of this contention, Plaintiff contends that Defendant 

should be equitably estopped from asserting that the state law 

claims that she sought to assert against Defendant in this case

were time-barred on the grounds that, prior to the filing of her 

complaint in this case, Defendant had intimated to Plaintiff 

that he intended to depose Plaintiff again. Once again, we 

conclude that Plaintiff’s argument lacks merit.

5

“Equitable estoppel may be invoked, in a proper case, to 

bar a defendant from relying upon the statute of limitations.” 

Stainback, 320 N.C. at 341, 357 S.E.2d at 692. “Equitable 

estoppel arises when a party has been induced by another’s acts 

to believe that certain facts exist, and that party rightfully 

relies and acts on that belief to his [or her] detriment.” 

Ussery v. Branch Banking and Trust Co., __ N.C. App. __, __, 743 

 

of estoppel”), so we will treat them as interchangeable in the 

body of this opinion.

5In addition to the argument discussed in the text, 

Plaintiff appears to contend that we should simply refuse to 

enforce the applicable statutes of limitation and the 

interpretation of 28 U.S.C. § 1367(d) deemed appropriate in 

Harter and Huang because it would be inequitable to preclude 

Plaintiff from asserting the claims at issue in this case 

because she filed her complaint approximately one week late. 

However, Plaintiff has cited no authority in support of her 

implicit assertion that we have the power to act in this manner 

and we know of none. See Aikens v. Ingram, 524 F. App. 873, 

879-82 (4th Cir. 2013) (holding that there is no controlling 

North Carolina authority upholding the use of any sort of 

equitable tolling of the applicable statute of limitations in 

the absence of detrimental reliance).
-21-

S.E.2d 650, 654 (2013) (citation and quotation marks omitted). 

In other words, a defendant “may be equitably estopped from 

using a statute of limitations as a sword, so as to unjustly 

benefit from his own conduct which induced a plaintiff to delay 

filing suit.” Friedland v. Gales, 131 N.C. App 802, 806, 509 

S.E.2d 793, 796 (1998).

According to Plaintiff, Defendant should be equitably 

estopped from asserting the running of the applicable statute of 

limitations against her given that Defendant’s counsel stated

that he “likely would want to depose Appellant (for a fourth 

time)” in the event that Plaintiff reasserted her claims in the 

General Court of Justice following the dismissal of her federal 

court action. At most, however, this statement simply meant

that, in the event that Plaintiff reasserted her claims against 

Defendant in the General Court of Justice, Defendant would seek 

to depose Plaintiff again. Unlike the statement at issue in

Ussery, __ N.C. App. at __, 743 S.E.2d at 656, in which the 

defendant told the plaintiff to “hold off on instituting any 

action” on the theory that “everything would be worked out,” the 

statement at issue here would not have had any tendency to 

induce Plaintiff to refrain from filing her complaint in a 

timely manner. As a result, the trial court did not err by 

failing to hold that Defendant was equitably estopped from 
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asserting the statute of limitations in opposition to the claims 

that Plaintiff sought to assert in this case.

III. Conclusion

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

none of Plaintiff’s challenges to the trial court’s judgment 

have merit. As a result, the trial court’s order should be, and 

hereby is, affirmed.

AFFIRMED.

Judge GEER concurs in separate opinion.

Judge ROBERT N. HUNTER, JR. concurs in result only in 

separate opinion.
NO. COA14-53

NORTH CAROLINA COURT OF APPEALS

Filed: 2 September 2014

ROSE GLYNNE, M.D.,

Plaintiff,

v. Wilson County

No. 11 CVS 610

WILSON MEDICAL CENTER, a North

Carolina Corporation,

Defendant.

GEER, Judge concurring.

I concur fully with the majority opinion -- we are bound by 

Harter v. Vernon, 139 N.C. App. 85, 532 S.E.2d 836, disc. review 

denied, 353 N.C. 263, 546 S.E.2d 97 (2000), cert. denied, 532 

U.S. 1022, 149 L. Ed. 2d 757, 121 S. Ct. 1962 (2001), and Huang 

v. Ziko, 132 N.C. App. 358, 511 S.E.2d 305 (1999). While the 

result is especially unfortunate given that plaintiff bears no 

responsibility for the belated filing and given that the 

complaint barely missed the 30-day deadline, the law has been 

clearly established in North Carolina for 15 years. 

As the California Supreme Court noted a month ago in City 

of Los Angeles v. County of Kern, 59 Cal. 4th 618, 627, 174 Cal. 

Rptr. 3d 67, 73, 328 P.3d 56, 61 (2014), "[r]easonable jurists 

can and do differ over the best understanding of [28 U.S.C. § 
-2-

1367(d)], one whose text lacks an indisputable plain meaning." 

Because of the profound split in authority that has developed 

regarding the proper construction of § 1367(d) and the 

consequences to parties who misinterpret the statute, it is 

regrettable that neither the United States Supreme Court nor the 

North Carolina Supreme Court has seen fit to address this issue. 

Perhaps the City of Los Angeles opinion will prompt the United 

States Supreme Court to take up the issue and, if not, perhaps 

our Supreme Court will do so, as urged by Judge Hunter's 

concurring opinion.
NO. COA14-53

NORTH CAROLINA COURT OF APPEALS

Filed: 2 September 2014

ROSE GLYNNE, M.D.,

Plaintiff,

v. Wilson County

No. 11-CVS-610

WILSON MEDICAL CENTER, a North 

Carolina Corporation,

Defendant.

HUNTER, JR., Robert N., Judge, concurring.

I concur with the majority in the result. This panel is 

bound by this Court’s decisions Harter and Huang and therefore 

must affirm the trial court’s dismissal of Plaintiff’s complaint 

on statute of limitations grounds. However, I write separately 

because I agree with Plaintiff that our interpretation of 28 

U.S.C. § 1367(d) in Harter and Huang are in conflict with recent 

persuasive federal authority and authority from other states 

interpreting the meaning of “tolling,” both as a general matter 

and as used specifically in 28 U.S.C. § 1367(d). For example, 

since our decisions in Harter and Huang, the Sixth Circuit Court 

of Appeals has addressed this issue directly and held that 28 

U.S.C. § 1367(d) suspends the running of the statute of 

limitations period while the federal court is considering the 
-4-

claim and for thirty days after the claim is dismissed. In re 

Vertrue Inc. Mktg. & Sales Practices Litig., 719 F.3d 474, 481 

(6th Cir. 2013) (“We are persuaded that the suspension approach 

properly gives effect to both § 1367(d) and the state statute of 

limitations.”). Given the importance of this question and our 

state’s conflict with the only federal circuit court that has 

considered this issue, I would urge the Supreme Court of North 

Carolina to review this question and resolve the conflict 

between this persuasive federal precedent and our state’s case 

law.