Heard in the Court of Appeals January 6, 2014.
Counsel Amended March 4, 2014.
Greene County. No. 12 CVS 140. Paul L. Jones, Judge.
White & Allen, P.A., bye John P. Marshall and Ashley C. Fillippeli, for plaintiffs-appellees.
Driscoll Sheedy, P.A., by Susan E. Driscoll, for defendant-appellant D.A.N. Joint Venture Properties of North Carolina, LLC.
Miller & Audino, LLP, by Jeffrey L. Miller, for defendant-appellee Donald Stocks.
MARTIN, Chief Judge. Judges ERVIN and McCULLOUGH concur.
MARTIN, Chief Judge.
Appeal by D.A.N. Joint Venture Properties of North
Carolina, LLC from orders entered 10 May 2013 and 15 May 2013 by Judge Paul L.
Jones in Greene County Superior Court.
D.A.N. Joint Venture Properties of North Carolina, LLC appeals from two superior court orders denying D.A.N. Joint Venture's motion for summary judgment and granting Larry Barrow's, Lois Barrow's, Doris Murphrey's, and Donald Stocks's motions for summary judgment.
The facts relevant to appeal are that Larry Barrow, Lois Barrow, Doris Murphrey, Connie Murphrey, and Donald Stocks (guarantors) are all parties to a guaranty agreement guaranteeing notes issued by Wachovia Bank, N.A. to L.L. Murphrey Company. In 2000, L.L. Murphrey filed a Chapter 11 petition with the United States Bankruptcy Court for the Eastern District of North Carolina. At the time the petition was filed, L.L. Murphrey was in default on several Wachovia notes that were guaranteed by the guarantors. On 4 May 2001, L.L. Murphrey filed its Fourth Amended Plan of Reorganization with the bankruptcy court, which was later confirmed by the bankruptcy court in part because the " guarantors contributed $550,000 to [L.L. Murphrey] to make confirmation of its plan feasible."
The Plan of Reorganization divided L.L. Murphrey's Wachovia debts into two notes: Note A and Note B. Wachovia sold Note A and Note B to Cadlerock Joint Venture, L.P., which later sold the notes to D.A.N. Joint Venture. In addition to creating two notes, the Plan of Reorganization provided that the " guaranties will remain in full force and effect for the Notes except as adjusted to reflect the amount of Recapitalized Debt, defined herein."
Because L.L. Murphrey and D.A.N. Joint Venture could not agree ...