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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA12-712 NORTH CAROLINA COURT OF APPEALS Filed: 18 December 2012 JOHN B. SOLLIS, Plaintiff, v. RONALD A. HOLMAN, Defendant. Onslow County No. 10 CVS 4815

Appeal by plaintiff from order entered 12 March 2012 by Judge Arnold O. Jones in Onslow County Superior Court. the Court of Appeals 25 October 2012. Higgins Benjamin, PLLC, by John F. Bloss, for plaintiff appellant. Robert W. Detwiler for defendant appellee. McCULLOUGH, Judge. John B. Sollis ("plaintiff") appeals from an order of the trial court granting summary judgment in favor of Ronald A. Holman affirm. I. Background ("defendant") and dismissing plaintiffs action. We Heard in

-2Plaintiff is a citizen and resident of Onslow County, North Carolina. Defendant is a citizen and resident of El Paso County, Texas. Plaintiff and defendant became acquainted and formed a friendship while serving together in the United States Marine Corps. In 2002, Ltd. defendant formed for a the corporation, purpose of Vinedos importing with its

Argentinos, Argentine

("Vinedos"), Vinedos is a

wine.

Delaware

corporation

principal place of business located in El Paso, Texas. In 2003, defendant contacted plaintiff requesting a loan to help with defendants wine importing business. Between 4 August 2003 and 25 October 2004, plaintiff advanced twelve separate payments to defendant totaling $25,000. Each payment was made in the form of a personal check from plaintiff payable to defendant personally. Following the first advance, defendant mailed to

plaintiff a stock certificate for 500 shares in Vinedos dated 4 August 2003 and signed by defendant as both president and

secretary of Vinedos.

Following the final advance, defendant

mailed to plaintiff a promissory note dated 25 October 2004 in the principal amount of $24,500 made by Vinedos and signed by defendant as president of the corporation (the "Vinedos Note"). By its terms, the Vinedos Note would be deemed in default if

-3unpaid by 31 March 2007. Between the time plaintiff first

advanced payments to defendant and the final payment deadline on the Vinedos Note, defendant made verbal assurances to plaintiff that the loan would be repaid. On 8 February 2010, plaintiff filed an action on the

Vinedos Note in the District Court for El Paso County, Texas (the "Texas Action"). Plaintiffs Texas Action named only

Vinedos as the defendant. On 5 April 2010, plaintiff filed a motion for summary judgment in the Texas Action, and with the approval of counsel for both plaintiff and Vinedos, on 20 May 2010, the Texas court entered an Agreed Final Judgment against Vinedos in the amount of $43,533.42 (the "Texas Judgment"). Following entry of the Texas Judgment, the record indicates plaintiff filed a motion to compel participation in post-

judgment discovery in the Texas Action.

During a hearing on

plaintiffs motion to compel before the Texas court, counsel for Vinedos stated that the corporation "is debunked. Its a

business and name only, it has nothing.

It has nothing but

debt." Also during that hearing, counsel for Vinedos stated that defendant felt he had a personal obligation to pay plaintiff and had "every intention to pay that judgment."

-4Thereafter, discovery in the the parties Action. participated Defendant in was post-judgment deposed on 31

Texas

August 2010 and 20 September 2010. During these depositions, defendant testified that he was "the sole officer of [Vinedos], as any title that you wish," including president and secretary, as well as its sole director. Also during these depositions,

defendant again committed to personally pay the Texas Judgment. Plaintiff received no payment. On 13 December 2010, plaintiff initiated the present action against Superior defendant Court of individually Onslow by filing North a complaint in the

County,

Carolina.

Plaintiffs

complaint seeks 1) to pierce the corporate veil of Vinedos and enforce the Texas Judgment against defendant and 2) to enforce defendants promises to personally pay the obligation

represented by the Vinedos Note. On 31 January 2011, defendant filed a motion to dismiss plaintiffs action for lack of personal jurisdiction. On 5 May On

2011, the trial court denied defendants motion to dismiss.

26 May 2011, defendant filed an answer to plaintiffs complaint, asserting the affirmative defenses of the statute of

limitations, res judicata, judicial estoppel, lack of subject matter and personal jurisdiction, and waiver.

-5On 24 January 2012, defendant filed a motion to dismiss and for summary judgment under Rules 12(b)(6) and 56 of the North Carolina Rules of Civil Procedure, asserting as grounds the

affirmative defenses raised in defendants answer. A hearing was held on defendants motion on 27 February 2012. At the hearing, defendant presented argument that dismissal and/or summary

judgment was appropriate on two grounds: 1) that plaintiffs action is time-barred and 2) that plaintiffs allegations in the Texas Action are inconsistent with his allegations in the

present action. Defendant also noted his "continuing objection to jurisdiction[.]" On 12 March 2012, the trial court entered an order ruling "that there is no genuine issue as to any material fact, and that the Defendant is entitled to Judgment as a matter of

law[,]" and granted Defendants motion to dismiss the action under Rules 12 and 56. Plaintiff filed timely written notice of

appeal from the trial courts order to this Court on 5 April 2012. II. Standard of Review "Our standard of review of an appeal from summary judgment is de novo; such judgment is appropriate only when the record shows that there is no genuine issue as to any material fact

-6and that any party is entitled to a judgment as a matter of law." In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572,

576 (2008) (quoting Forbis v. Neal, 361 N.C. 519, 523-24, 649 S.E.2d 382, 385 (2007)). III. Discussion On appeal, plaintiffs primary argument addresses

defendants statute of limitations defense.

Plaintiff contends

that the trial court erred in granting summary judgment in favor of defendant on the grounds that plaintiffs action is timebarred by the applicable statute of limitations. Plaintiff

argues the present action is an "action upon a judgment," and therefore, the applicable limitations period is prescribed under N.C. Gen. Stat.

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