Glover v. First Union Nat. Bank of North Carolina

• Citation: 428 S.E.2d 206,109 N.C.App. 451
• Decision Date: 06 April 1993
• Docket Number: No. 9216SC169,9216SC169
• Parties: Edward J. GLOVER, Jr., Plaintiff, v. FIRST UNION NATIONAL BANK OF NORTH CAROLINA and First Union National Bank of North Carolina, Trustee of the Retirement Plan and Trust for Employees of First Union National Bank of North Carolina and Its Affiliated Companies, Defendants.
• Court: Court of Appeal of North Carolina (US)

Page 206

428 S.E.2d 206

109 N.C.App. 451

Edward J. GLOVER, Jr., Plaintiff, v. FIRST UNION NATIONAL BANK OF NORTH CAROLINA and First Union National Bank of North Carolina, Trustee of the Retirement Plan and Trust for Employees of First Union National Bank of North Carolina and Its Affiliated Companies, Defendants.

No. 9216SC169.

Court of Appeals of North Carolina.

April 6, 1993.

McLean, Stacy, Henry & McLean, P.A. by William S. McLean, Lumberton, for plaintiff.

Tharrington, Smith & Hargrove by Randall M. Roden, Raleigh, for defendant.

MARTIN, Judge.

The dispositive issue on appeal is whether the Merger Agreement executed between Scottish Bank and First Union is so clear and unambiguous as to establish, as a matter of law, that former employees of Scottish Bank are entitled to receive retirement benefits under the First Union Plan based upon total years of service to both Scottish Bank and First Union, as well as their accrued benefits under the previously existing Scottish Bank Plan. We conclude that the Merger Agreement is ambiguous and unclear as to this point, requiring resolution of the issue by the fact finder rather than by summary judgment. Accordingly, we must vacate the trial court's judgments and remand this case for trial.

Preliminarily, we consider defendants' contention that plaintiff's claim is barred by the statute of limitations. Defendants asserted as an affirmative defense that the acts giving rise to plaintiff's claim occurred at the time of the merger between the Scottish Bank and First Union in 1963 when the Merger Agreement became effective and the Scottish Bank Plan was terminated, or in any event, no later than 1 September 1968, when defendants executed another document which merged the Scottish Bank Plan funds into the First Union Plan funds. Thus, defendants contend that plaintiff's action is barred by the applicable three-year statute of limitations.

The statute of limitations for an action for breach of contract is three years from the accrual of the cause of action. N.C.Gen.Stat. § 1-52(1). The statute begins to run on the date the promise is broken. Penley v. Penley, 314 N.C. 1, 332 S.E.2d 51 (1985). In no event can the limitations period begin to run until the injured party is at liberty to sue. Id.; Wheeless v. Insurance Co., 11 N.C.App. 348, 181 S.E.2d 144 (1971). Additionally, "[i]t is well settled that where a fiduciary relation exists between the parties, with respect to money due by one to the other, the statute of limitations does not begin to run until there has been a demand and refusal." Efird v. Sikes, 206 N.C. 560, 562, 174 S.E. 513, 513-14 (1934).

Here, plaintiff did not become eligible for retirement benefits until his retirement on 31 October 1988. Accordingly, until that date he was not entitled to demand and could not be injured by a refusal of the retirement benefits which he claims. Since defendants' performance under the Merger Agreement could not take place until plaintiff retired; the alleged breach could not have occurred until that time, and plaintiff was therefore not at liberty to sue at any time prior to his retirement. Because plaintiff brought this action within three years of defendants' refusal of his demand for benefits under the Scottish Bank Plan, his action is not barred by the statute of limitations.

The central issue presented in this case is whether the language of Section 11 of the Merger Agreement so clearly establishes that defendants intended to pay plaintiff benefits under the First Union Plan based upon his service at both institutions, and in addition, separate benefits which had accrued under the Scottish Bank Plan, as to entitle him to judgment as a matter of law. We conclude that the merger agreement does not clearly establish plaintiff's position and that genuine issues of material fact exist precluding summary judgment.

A party moving for summary judgment must demonstrate that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. N.C.Gen.Stat. § 1A-1, Rule 56; Hagler v. Hagler, 319 N.C. 287, 354 S.E.2d 228 (1987); International Paper Co. v. Corporex Constrs., 96 N.C.App. 312, 385 S.E.2d 553 (1989). Summary judgment is a drastic measure which should be used with caution. Williams v. Power & Light Co., 296 N.C. 400, 250 S.E.2d 255 (1979); Kessing v. Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971). All evidence before the court must be construed in the light most favorable to the non-moving party, and the slightest doubt as to the facts entitles the non-moving party to a trial. Ballenger v. Crowell, 38 N.C.App. 50, 247 S.E.2d 287 (1978).

A court's primary purpose in interpreting a contract is to ascertain the intention of the parties. International Paper Co., supra. If a contract is plain and unambiguous on its face the court may interpret it as a matter of law, but where it is ambiguous and the intention of the parties is unclear, interpretation of the contract is for the jury. Id. An ambiguity exists where the language of a contract is fairly and reasonably susceptible to either of the constructions asserted by the parties. St. Paul Fire & Marine Ins. v. Freeman-White Assoc., 322 N.C. 77, 366 S.E.2d 480 (1988). "The fact that a dispute has arisen as to the parties' interpretation of the contract is some indication that the language of the contract is, at best, ambiguous." Id. at 83, 366 S.E.2d at 484.

Plaintiff's claims are based upon the language in the third paragraph of Section 11, stating that "with respect to their vested interest resulting from former participation in the profit sharing plan of SB [Scottish Bank] they shall have the right to payment of such vested interest in accordance with the provisions of the plan," and upon the proposition that the words "termination of employment for any reason," clearly includes retirement. Therefore, plaintiff asserts the language was...