IN THE SUPREME COURT OF NORTH CAROLINA
No. 29A24
Filed 20 March 2026
SMITH DEBNAM NARRON DRAKE SAINTSING & MYERS, LLP
v. PAUL MUNTJAN
Appeal pursuant to N.C.G.S. § 7A-30(2) (2023) from the decision of a divided
panel of the Court of Appeals, 292 N.C. App. 141 (2024), reversing a judgment entered
on 3 November 2022 by Judge Ned Mangum in District Court, Wake County. Heard
in the Supreme Court on 24 September 2024.
Smith Debnam Narron Drake Saintsing & Myers, L.L.P., by Byron L. Saintsing and Joseph A. Davies, for plaintiff-appellant.
Mark Hayes for defendant-appellee.
BARRINGER, Justice.
This Court considers whether the Court of Appeals erred by reversing the trial
court’s judgment in favor of plaintiff. We hold that the Court of Appeals erred,
because defendant’s emails to plaintiff satisfy the statute of frauds requirement that
a contract to pay a third party’s debt “be in writing, and signed by the party charged.”
See N.C.G.S. § 22-1 (2025). Therefore, we reverse the judgment of the Court of
Appeals. SMITH DEBNAM NARRON DRAKE SAINTSING & MYERS, LLP V. MUNTJAN
Opinion of the Court
I. Background
Plaintiff, Smith Debnam Narron Drake Saintsing & Myers, LLP, is a law firm.
Nick Muntjan is the owner of a construction business called Triangle Home
Remodeling, LLC (THR). Defendant, Paul Muntjan, is Nick’s father. In 2019, Nick
and defendant met with Byron Saintsing, a partner at plaintiff law firm, to discuss
securing plaintiff’s services for Nick and THR. At this meeting, prior to the
engagement of plaintiff, defendant orally promised to pay for plaintiff’s services.
In September 2019, approximately one month after that meeting, plaintiff
prepared and delivered an engagement letter addressed to defendant and Nick.
Neither defendant nor Nick signed that letter. However, less than a week after the
engagement letter was delivered, defendant responded to plaintiff via email, writing
the following:
Received your email as addressed to son Nick regarding the case and request for prompt payment. It is important to us to always pay our valued partners quickly for their services rendered so rest assured your invoice will be turned around immediately and a check sent upon receipt. Please note as of this date no invoice has been received. As a reminder, please insure [sic] any and all invoices are sent to my email due to my travel schedule.
The email was signed, “Best Regards, Paul Muntjan.”
In December 2019, Nick was served with a complaint filed against him and
THR. Defendant emailed the complaint to plaintiff and wrote: “It looks like the saga
continues with Nick’s legal issues with his business. I am attaching the legal
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document he just received for your review. Please let me know how we can best work
together in this regard.”
Plaintiff received some payments made through defendant’s credit card for
services rendered. In June 2020, defendant replied to plaintiff’s request for additional
payment with another email asking: “Would you be so kind to furnish a list of the
payments made on this account? We may be missing a payment made on, or about
1/10/20.”
In mid-July, in reply to another email from plaintiff, defendant asked for
further clarity on legal fees, writing: “Thank you all sincerely for your great work on
behalf of my son Nick! The finances and the stress from this situation have been
profound and a major setback on many levels. Would this $3000 be the cap you
mentioned could be achieved[,] Mr. Saintsing?” Mr. Saintsing, on behalf of plaintiff,
answered: “Yes, we would agree to cap the fees for responding to the discovery at
$3,000.00.” In response, defendant wrote: “It sounds like [d]iscovery would be the last
item we need to deal with now that we have the bankruptcy being considered?”
Approximately six months later, plaintiff emailed and mailed a notice to
defendant and Nick requesting payment of the outstanding balance of $13,528.06 for
legal services rendered. That balance remains unpaid.
II. Procedural History
To collect the unpaid fees, plaintiff filed the underlying lawsuit against
defendant alleging various breach of contract claims. Following a bench trial, the trial
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court found that “[defendant] promised to pay for [p]laintiff’s services.” The trial court
then concluded that defendant breached an “original promise” to plaintiff, not a
“special promise to answer the debt . . . of another person.” Therefore, the statute of
frauds did not apply, and no writing was required to enforce defendant’s promise to
pay.
Defendant appealed the trial court’s judgment, and the Court of Appeals
reversed. Smith Debnam Narron Drake Saintsing & Myers, LLP v. Muntjan, 292 N.C.
App. 141, 142, 148 (2024). A majority of the Court of Appeals panel disagreed with
the trial court’s conclusion of law that defendant made an “original promise” to
plaintiff. Id. at 145. Instead, the majority held that defendant made a “collateral
promise”—a guaranty—to pay Nick’s debts. Id. After noting that collateral promises
must satisfy the statute of frauds to be enforceable, id. at 145–46, the majority
determined that defendant’s guaranty was unenforceable, id. at 148. It held that
defendant’s emails to plaintiff failed to satisfy the statute of frauds, because they did
not express a clear, written promise that defendant would personally pay plaintiff.
Id. at 147–48.
Although the dissent agreed that the statute of frauds was applicable, it would
have held that the statute of frauds’ requirements were satisfied by the emails. Id. at
149 (Arrowood, J., dissenting). In other words, defendant’s emails constituted a
writing sufficient to make enforceable defendant’s oral promise to personally pay
Nick’s debts. Id. at 150.
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Plaintiff filed a notice of appeal based on the dissent in the Court of Appeals.1
III. Standard of Review
Because defendant’s appeal is based solely upon the Court of Appeals’ dissent,
our review is limited to those issues set out in the dissenting opinion. See N.C. R.
App. P. 16(a). Accordingly, this Court reviews only the Court of Appeals’ legal
conclusion that defendant’s oral guaranty to pay Nick’s debt for plaintiff’s legal
services is unenforceable because defendant’s emails do not satisfy the statute of
frauds.
“Questions of law receive de novo review . . . .” In re Appeal of The Greens of
Pine Glen Ltd. P’ship, 356 N.C. 642, 647 (2003). “ ‘Under a de novo review, the court
considers the matter anew and freely substitutes its own judgment’ for that of the
lower tribunal.” State v. Williams, 362 N.C. 628, 632–33 (2008) (quoting In re Appeal
of The Greens of Pine Glen Ltd. P’ship, 356 N.C. at 647).
IV. Analysis
Defendants have not challenged the trial court’s finding of fact that
“[defendant] promised to pay for [p]laintiff’s services,” and we are bound by this fact
on appeal. See Schloss v. Jamison, 258 N.C. 271, 275 (1962) (“Where no exceptions
have been taken to the findings of fact, such findings are presumed to be supported
1 Since this case was pending at the Court of Appeals before the repeal of N.C.G.S.
§ 7A-30(2), the dissent triggered a right of appeal to this Court under that statute. See N.C.G.S. § 7A-30(2) (2023), repealed by, Current Operations Appropriations Act of 2023, S.L. 2023-134, § 16.21(d)–(e), 2023 N.C. Sess. Laws 760, 1171.
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by competent evidence and are binding on appeal.”). This, however, does not end our
inquiry, as an oral guaranty2 contract cannot be enforced unless the statute of frauds
is satisfied. See N.C.G.S. § 22-1.
Thus, this Court considers whether defendant’s emails, in which defendant
assured he would personally pay for plaintiff’s services, satisfy the statute of frauds.
We hold that defendant’s emails are a “memorandum or note” of defendant’s promise
sufficient to satisfy the statute of frauds. See N.C.G.S. § 22-1. Accordingly, we reverse
the judgment of the Court of Appeals.
It has been long and well established that the statute of frauds “was not
enacted to afford persons a means of evading just obligations; it was not intended to
supply a cloak of immunity to hedging litigants lacking integrity; nor was it adopted
to enable defendants to interpose the Statute [of Frauds] as a bar to a contract fairly,
and admittedly, made.” 10 Williston on Contracts § 29:4 (4th ed. 2011) (footnotes
omitted); see also Manhattan Fuel Co. v. New England Petrol. Corp., 422 F. Supp.
2 Of course, to the extent that defendant may have made an original promise to pay,
it is not subject to the statute of frauds. See Burlington Indus., Inc. v. Foil, 284 N.C. 740, 752, 754 (1974) (“If the promisor becomes himself primarily, and not collaterally, liable, the promise is not within the statute [of frauds] . . . .” (quoting Clark on Contracts 67–68 (2d ed. 1904))). However, as correctly pointed out by Justice Dietz, we cannot rule on whether defendant made an original promise, as the dissent upon which plaintiff gave notice of appeal does not discuss original promises in any way. See Mitchell v. Univ. of N.C. Bd. of Governors, 388 N.C. 341, 350 (2025). The only reason such a distinction is relevant here is to determine whether a statute of frauds analysis is even necessary. See 72 Am. Jur. 2d Statute of Frauds § 3 (2023) (“The statute of frauds is an affirmative defense that carves out an exception to the general rule that oral contracts are enforceable . . . .”). In any event, because the statute of frauds was indeed satisfied, defendant is obliged to fulfill his promise to pay, regardless of whether that promise is best thought of as being original or collateral.
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797, 801 (S.D.N.Y. 1976) (“[The statute of frauds] was never meant to be used as a
means of evading just obligations based on contracts fairly, and admittedly, made.”
(extraneities omitted)); House v. Stokes, 66 N.C. App. 636, 641 (1984) (“The statute of
frauds was designed to guard against fraudulent claims supported by perjured
testimony; it was not meant to be used by defendants to evade an obligation based on
a contract fairly and admittedly made.”).
Defendant’s main contention is that because his emails do not expressly say “I
promise to pay for services rendered to Nick,” they do not satisfy the statute of frauds.
This argument misapprehends the fact that the statute of frauds only requires
sufficient written evidence of an agreement’s essential terms—not that the agreement
itself be written.
In relevant part, our State’s statute of frauds provides:
No action shall be brought whereby to charge . . . any defendant upon a special promise to answer the debt, default or miscarriage of another person, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party charged . . . .
N.C.G.S. § 22-1 (emphasis added). Importantly, the statute’s plain language does not
require the guaranty agreement itself to be in writing to be enforceable. See id. Rather,
an oral guaranty is also enforceable if “some memorandum or note thereof” is
produced “in writing, and signed by the party charged.” Id. The memorandum “may
be informal[,]” and it “need not be contained in a single document but may consist of
several papers properly connected together.” Smith v. Joyce, 214 N.C. 602, 604 (1939).
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“The memorandum itself need not constitute a contract, and apart from its
effect as a writing sufficient to enable proof of a contract—that is, to remove the
alleged agreement from the Statute of Frauds—it may have no legal significance.”
10 Williston on Contracts § 29:3. Rather, the memorandum must merely perform an
adequate evidentiary function. See Phillips v. Hooker, 62 N.C. (Phil. Eq.) 193, 196
(1867) (“[A] note or memorandum of a contract is, in its very essence, an informal and
imperfect instrument. Its object is to furnish aid to the memory of a transaction,
and . . . it will answer the purpose . . . if it do so in such words as will enable the court,
without danger of mistake, to declare the meaning of the parties.”); Gilbert v. Wright,
195 N.C. 165, 167 (1928) (same); see also McInerney v. Charter Golf, Inc., 680 N.E.2d
1347, 1351 (Ill. 1997) (“[The statute of frauds] functions more as an evidentiary
safeguard than as a substantive rule of contract.”); Gagne v. Stevens, 696 A.2d 411,
415 (Me. 1997) (noting that the “primary” purpose of the Statute of Frauds is
“evidentiary”); Restatement (Second) of Conts. § 131 cmt. c (A.L.I. 1981) (“The
primary purpose of the Statute [of Frauds] is evidentiary . . . .”).3
For this reason, the memorandum need not contain all contractual terms to
satisfy the statute of frauds; an adequate evidentiary function is performed so long
as the essential terms are shown.4 For example, a memorandum of a guaranty
3 Although the foreign authorities cited in this opinion are not controlling, this Court
finds them to be persuasive. 4 The dissents insist that the statute of frauds is not satisfied unless the memorandum
is not susceptible to multiple interpretations. Tellingly, neither dissent cites any authority that directly supports this proposition. That is because it is not the law. A memorandum need
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agreement can satisfy the statute of frauds even if it does not describe the
consideration. Standard Supply Co. v. Person, 154 N.C. 456, 461 (1911). Instead, a
memorandum of a guaranty agreement need only identify the debt, the principal
debtor, the promisor, and the promisee. See John Deere Co. v. Haralson, 599 S.E.2d
164, 166 (Ga. 2004). So long as these essential terms are shown by a writing, the
contract will be enforceable.
To interpret the statute of frauds as defendant contends would render the
statutory language “or some memorandum or note thereof” mere surplusage. This
Court’s precedent demands otherwise. See State v. Geter, 383 N.C. 484, 491 (2022)
(explaining and applying the surplusage cannon). Statutory language is to be
interpreted in a way that, if possible, gives effect to every word. Antonin Scalia &
Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 174–79 (2012)
(explaining that application of the surplusage canon is to give every word effect and
refuse to interpret a provision as having no consequence). We give effect to this
statutory language by holding that a memorandum—even an informal email5—
outlining the essential terms of an oral agreement satisfies the statute of frauds. See
10 Williston on Contracts § 29:3 (“The difference between requiring that the contract
only evidence the agreement—not detail its every element with certitude beyond dispute. See Norton v. Smith, 179 N.C. 553, 556 (1920) (“[I]t is not necessary [that an essential element] be so described as to admit . . . no doubt [of] what it is . . . .” (emphasis added) (quoting Fry on Specific Performance § 209)). 5 Justice Riggs would require plaintiff to identify an email containing a “formalized
promise” to pay. This contradicts the long-standing rule that a memorandum suffices even if it is “informal.” Smith, 214 N.C. at 604.
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be in writing and requiring a written note or memorandum of an oral contract is
important.”); Olsen v. Johnston, 301 P.3d 791, 795 (Mont. 2013) (“The note or
memorandum need not contain the entire contract.”).
In his brief, defendant cites several cases related to conveyances of land. E.g.,
Smith, 214 N.C. 602 (contract for conveyance of real property); Jamerson v. Logan,
228 N.C. 540 (1948) (same). It has long been noted, however, that courts impose
heightened particularity requirements to property descriptions in real estate
contracts. 10 Williston on Contracts § 29:20 (noting that even before the Uniform
Commercial Code was adopted, “generally, the courts required greater particularity
in descriptions of real estate than in descriptions of goods”); see also Durham v.
Davison, 118 S.E. 736, 737–38 (Ga. 1923) (noting that because “the lines of the tract
of land sought to be conveyed, or the key to these lines, must appear in the writing,”
“a description of land sold or contracted to be sold may apparently be very elaborate,
and yet not sufficient”). This reflects a characteristic difficulty of real estate law:
ascertaining land boundaries with exactitude. See Bureau of Land Mgmt., U.S. Dep’t
of the Interior, BLM/WO/GI-17/007+1813, Specifications for Descriptions of Land
intro., at 4 (2017), https://www.blm.gov/sites/default/files/SpecificationsFor
DescriptionsOfLand.pdf (noting that a “land description . . . must be susceptible to
one, and only one, interpretation,” because “[t]he ambiguous [land] descriptions of the
past are the boundary disputes of the future”); Dayston, LLC v. Brooke, 630 S.W.3d
220, 224 (Tex. App. 2020) (holding that, under Texas law, “[w]hen it is possible that
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more than one tract of land fits the description, the statute of frauds is not satisfied”).
Such concerns do not predominate other areas of contract law. Accordingly, this Court
hesitates to extend real estate conveyance caselaw to the guaranty contract at issue
in the present case.
To be sure, both in and out of the context of real estate conveyances, a
memorandum must supply “all the essential elements of the agreement with
reasonable certainty.” Kluttz v. Allison, 214 N.C. 379, 383 (1938). “[B]ut it is not
necessary [that an essential element] be so described as to admit . . . no doubt [of]
what it is . . . .” Norton, 179 N.C. at 556 (emphasis added) (quoting Fry on Specific
Performance § 209); accord Murdock v. Anderson, 57 N.C. (4 Jones Eq.) 77, 78 (1858)
(“[W]here a sufficient description is given, parol evidence [can] be resorted to . . . in
order to fit the description to the thing . . . .”).
Thus, even for contracts conveying real property, this Court has not invariably
required a memorandum to include a detailed description of the property. Rather,
this Court has deemed sufficient many phrases not describing the land itself, such as
“his entire tract . . . of 146 acres[,]” Norton, 179 N.C. at 553, 556, “the farm on which
I now live[,]” Bateman v. Hopkins, 157 N.C. 470, 472–73 (1911), and “her house and
lot north of Kinston[,]” Phillips, 62 N.C. at 194, 197; accord Carson v. Ray, 52 N.C.
(7 Jones) 609, 610 (1860).
These cases also demonstrate that the use of possessive adjectives is a
particularly efficient way to describe an essential element of the contract. Contrast
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Bateman, 157 N.C. at 472–73 (holding the phrase “the farm on which I now live” to
be sufficient (emphasis added)), and Phillips, 62 N.C. at 194, 197 (holding the phrase
“her house and lot north of Kinston” to be sufficient (emphasis added)), with Murdock,
57 N.C. at 78 (holding the phrase “one house and lot in the town of Hillsborough” to
be insufficient (emphasis added)), and Capps v. Holt, 58 N.C. (5 Jones Eq.) 153,
154–55 (1859) (holding the phrase “a tract of land lying on the north side of the
Watery Branch, in the county of Johnston, and State of North Carolina, containing
150 acres” to be insufficient (emphasis added)).
With these principles in mind, we turn now to their application to the present
case.
In the September email, defendant wrote, “It is important to us to always pay
our valued partners quickly . . . .” (Emphases added.) Being written by defendant, it
is readily apparent that the words “us” and “our” refer to himself and Nick. The email
goes on to read, “. . . for their services rendered . . . .” Although informal, the average
person reading this language would interpret it to mean that defendant was paying
for services rendered pursuant to some type of agreement. Next, the email states,
“[S]o rest assured your invoice will be turned around immediately and a check sent
upon receipt.” Here, “so” means “therefore” or “consequently.” So, Merriam-Webster’s
Collegiate Dictionary (10th ed. 1999). The use of the language “your invoice will be
turned around immediately,” following the word “so,” has a clear apparent meaning:
you are one of our trusted partners rendering services to us, and therefore, you will
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be paid quickly.6 (Emphasis added.) This written statement memorializes defendant’s
obligation to pay.7 Indeed, defendant would have had no reason to make such
assurances unless he himself bore responsibility for such payment.
Defendant’s subsequent emails further evidence the guaranty agreement. For
example, defendant’s December email to plaintiff attached the complaint filed against
Nick and wrote: “It looks like the saga continues with Nick’s legal issues with his
business. I am attaching the legal document he just received for your review.” Then,
in the very next line, defendant asked plaintiff to communicate with him specifically:
“Please let me know how we can best work together in this regard.” (Emphases added.)
Likewise, when asking for further clarity on the outstanding balance in his June
email, defendant wrote: “We may be missing a payment made on, or about 1/10/20.”
(Emphasis added.) Usage of the term “we” in these emails makes sense only if it
includes defendant as one of the parties8 responsible for missed payments.
6 At oral argument, defendant conceded that one “could make that inference” upon a
“close textual reading” of the email. See Oral Argument at 48:24–40, Smith Debnam Narron Drake Saintsing & Myers, LLP v. Muntjan (No. 29A24) (Sept. 24, 2024), https:// www.youtube.com/watch?v=QfQsAyuv2Mg. 7 Even Justice Riggs’s dissent recognizes that “[i]t is true some of [defendant]’s
language implies shared responsibility, particularly his . . . use[ ] [of] the plural pronouns ‘us’ and ‘our.’ ” 8 Justice Riggs insists that the statute of frauds will liberate defendant from
performing his oral guaranty contract unless a memorandum shows that he “assumed sole responsibility to pay Nick’s legal fees.” (Emphasis added.) This misapprehends the law. A guaranty agreement is “[a] promise to answer for the payment of some debt . . . in case of the failure of another who is liable in the first instance.” Guaranty, Black’s Law Dictionary (12th ed. 2024) (emphasis added). “A guaranty can exist only where there is some principal or substantive liability to which it is collateral.” Id. By contrast, if a “writing recommend[s] another” as reliable “and assur[es] . . . that the third person will comply fully with any contract that may be entered into with him,” this
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This happened yet again in July, when the following emails were sent:
Defendant: The finances and the stress from this situation have been profound and a major setback on many levels. Would this $3000 be the cap you mentioned could be achieved[,] Mr. Saintsing?
Saintsing: Yes, we would agree to cap the fees for responding to the discovery at $3,000. . . .
Defendant: Thanks . . . ! It sounds like [d]iscovery would be the last item we need to deal with now that we have the bankruptcy being considered?
(Emphases added.) “Deal,” in this context, is defined as: “To take action with respect
to someone or something.” Deal, The American Heritage College Dictionary (3d ed.
1997). In choosing to say “we,” defendant positioned himself as one who would be
responsible for taking action with respect to the $3,000-capped fee for discovery
responses.9 The action one takes on a fee is to pay it.
In combination, defendant’s emails constitute a written memorandum of the
essential terms of defendant’s oral promise to pay for Nick’s legal debts to plaintiff,
satisfying the statute of frauds. See Smith, 214 N.C. at 604. Accordingly, we reverse
does not imply that the writer will guaranty the contract. Fain Grocery Co. v. Early & Daniels Co., 181 N.C. 459, 461 (1921) (emphases added) (construing Clerke v. Harwood, 3 U.S. 415 (1797)). 9 It is notable that the invoices were paid using defendant’s credit card.
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V. Conclusion
For the reasons stated above, we hold that defendant’s emails to plaintiff
constitute a memorandum or note of defendant’s oral guaranty to pay for Nick’s legal
debts to plaintiff. Here, on these specific facts, the statute of frauds is satisfied. See
N.C.G.S. § 22-1. Accordingly, we reverse the judgment of the Court of Appeals.
REVERSED.
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Dietz, J., dissenting
Justice DIETZ dissenting.
I agree with the majority that the trial court’s judgment is correct and that the
Court of Appeals should have affirmed it. As the trial court properly determined,
Muntjan entered into an original promise with the firm. The law firm’s testimony
and evidence—which the trial court expressly found credible—together with the
parties’ course of dealings demonstrate that Muntjan bargained for a level of control
over this legal case that an ordinary guarantor would not have. This “distinct
consideration” creates a contract directly between Muntjan and the firm. See Kelly
Handle Co. v. Crawford Plumbing & Mill Supply Co., 171 N.C. 495, 501 (1916).
Unfortunately, although this was the express reasoning of the trial court, it is
not the reasoning of the dissent at the Court of Appeals. And, for whatever reason,
the firm chose not to petition for discretionary review of grounds not addressed by
the dissent. Thus, our review is limited to the statute of frauds issue “specifically set
out in the dissenting opinion as the basis for that dissent.” Mitchell v. Univ. of N.C.
Bd. of Govs., 388 N.C. 341, 349 (2025).
On that issue, this is a much closer case. I certainly think it is reasonable to
interpret Muntjan’s string of emails as confirmation that he is a guarantor. But I’m
not sure that is the only reasonable interpretation, and thus I am not persuaded that
these emails satisfy the statute of frauds. See Kluttz v. Allison, 214 N.C. 379, 383
(1938).
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In any event, I expect this case to have very little impact on our statute of
frauds jurisprudence. Given the unusual facts, this Court’s holding is quite fact-
bound. In my view, the biggest lesson in this case is about appellate practice. The law
firm squeaked out a win here, but had it bothered to petition for discretionary review,
that narrow victory might instead be a unanimous one.
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Riggs, J., dissenting
Justice RIGGS dissenting.
The only issue before us now is whether Paul Muntjan’s emails to a law firm
satisfy the statute of frauds and establish a written guaranty to cover his son Nick
Muntjan’s legal fees.1 While the firm provided services and its desire to be paid for
those services is understandable, when that equitable consideration conflicts with
black letter law, our hands as judges are tied. I do not believe that we can provide
the relief requested by the firm. Because Paul Muntjan’s emails do not contain an
explicit, definite promise to pay for his son’s continued legal services, I would hold
the purported agreement unenforceable for failing to meet the statute of frauds, and
thus I respectfully dissent.
I. Discussion
I do not share the majority’s belief that there has been a misapprehension of
the law as to whether North Carolina’s statute of frauds required Mr. Muntjan’s
promise to be in writing for the promise to be enforceable. That is exactly what the
statute of frauds required here. Burlington Industries, Inc. v. Foil, 284 N.C. 740,
750–52 (1974) (providing oral guaranties fall within the statute of frauds and are
required to be in writing). Although the writing, however informal, does not need to
be a complete contract nor follow a particular form, this Court has said it must
1As Justice Dietz and the majority both recognize, a different analysis applies to original promises, which do not fall under the statute of frauds.
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contain the essential or material terms of the parties’ agreement. Smith v. Joyce, 214
N.C. 602 (1939). In Winders v. Hill, we explained that, though admission of an
agreement in certain correspondence and conversation between parties is “sufficient
memorandum,” 144 N.C. at 617, compliance with the statute of frauds requires that
the written admission, when used to evidence an agreement, must contain “internal
evidence of the contract or refer to some writing that does.” Id. at 618.
I read the majority’s interpretation of the statute to suggest that all an oral
guaranty needs to be enforceable is some signed “memorandum or note”—such as the
emails sent by Mr. Muntjan—that bolsters that the guaranty exists. However, the
statute requires that the emails show that Mr. Muntjan, who was not the firm’s client,
actually promised to pay the entirety of his son’s legal fees. None of the emails
contained such a promise nor referred to it. Thus, I believe the statute of frauds was
not satisfied here.
A. The statute of frauds was developed to limit enforcement of some contracts prone to fraud.
First, the ultimate purpose of the statute of frauds was historically, and still
is, to limit judicial enforcement of certain kinds of agreements more susceptible to
fraud, and to that end, courts required written evidence of those agreements. 9
Williston on Contracts § 21:1 (4th ed. 2025) (explaining the purpose and history of
the English statute of frauds and its influence on American courts); see Allison v.
Steele, 220 N.C. 318 (“But the purpose of the statute is to prevent fraud upon
individuals charged with participation in transactions coming within its
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purview . . . ”). Thus, the statute of frauds has served an evidentiary purpose in our
courts. Steele, 220 N.C. at 325 (explaining that a plaintiff is not permitted to show
[in evidence] by parol a contract which the law requires to be in writing).
Courts have also uniformly said a writing relied on to satisfy the statute of
frauds must contain the essential or material terms of the alleged contract, which in
turn promotes reasonable certainty regarding the agreement’s terms. 10 Williston
on Contracts § 29:8 (explaining that inclusion of essential terms of the agreement in
the memorandum, according to some courts and the Uniform Commercial Code, show
that a contract has actually been made).
B. North Carolina’s statute of frauds requires guaranty contracts to contain the guarantor’s promise to pay a particular debt if the obligor defaults.
North Carolina codified the statute of frauds in the predecessor to Chapter 22
of the North Carolina General Statutes, thereby requiring certain contracts to be
written and signed to be enforceable. Durham Consol. Land & Improvement Co. v.
Guthrie, 116 N.C. 381, 384 (1895); N.C.G.S. § 22-1 (2025). A guaranty is one such
contract. In simple terms, a third party’s promise to be personally liable for another’s
debt is a guaranty. See Burlington Indus., Inc., 284 N.C. at 748. Thus, for guaranty
contracts to be enforceable, N.C.G.S. § 22-1 requires (1) a writing (2) signed by the
guarantor and (3) containing the guarantor’s promise to pay a particular debt if the
obligor defaults. See Balentine v. Gill, 218 N.C. at 498.
To satisfy the writing requirement, a guaranty must be spelled out in “the
agreement upon which [the] action [is] brought” or captured in “some memorandum
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or note thereof.” N.C.G.S. § 22-1. A “memorandum” can be contained in a single
document or in “several papers properly connected together.” Smith, 214 N.C. at 604.
While such a memorandum by nature may be informal, Phillips v. Hooker, 62 N.C.
193, 196 (1867), the memorandum at issue “must state the contract with reasonable
certainty so that its essential terms can be ascertained from the writing itself without
resort to parol evidence.” Smith, 214 N.C. at 605 (cleaned up). Put differently, the
statute of frauds still requires that an enforceable contract contain expressly or by
necessary implication “the essential elements of a valid contract.” Id. at 604. Thus,
to constitute an enforceable contract covered under the statute of frauds, the written
memorandum or note must be sufficiently definite to show the essential elements of
a valid contract.; Carr v. Good Shepherd Home, Inc., 269 N.C. 241, 243 (1967) (quoting
Smith, 214 N.C. at 604).
If a party offers separate documents as written evidence of an agreement, those
papers must be so linked “physically or by internal reference that there can be no
uncertainty as to their meaning and effect when taken together.” Smith, 214 N.C. at
604 (emphasis added) (cleaned up); see also Simpson v. Beaufort Cnty Lumber Co.,
193 N.C. 454, 455 (1927) (“Two or more writings properly connected may be
considered together, matters missing or uncertain in one may be supplied or rendered
certain by the other, and their sufficiency will depend upon whether, taken together,
they meet the requirements of the statute as to contents and signature.” (cleaned
up)). But, that “connection cannot be shown by extrinsic evidence.” Simpson, 193
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N.C. at 455; see also Mayer & Morgan v. Adrian & Vollers, 77 N.C. 83, 88 (1877)
(explaining that an enforceable “agreement must adequately express the intent and
obligation of the parties,” and so “[p]arol evidence cannot be received to supply
anything which is wanting in the writing to make it the agreement on which the
parties rely”). Thus, for such correspondence (like emails) to constitute an agreement
enforceable under the statute of frauds, the correspondence must “sufficiently refer[s]
to some writing in which the terms are set out and which itself contains all the
requisites of a valid contract or memorandum under the statute.” Winders, 144 N.C.
at 618–19; Balentine, 218 N.C. at 498.
C. Mr. Muntjan’s emails do not contain a promise to pay Nick’s debt.
Mr. Muntjan’s emails, when read together, refer to the impending litigation,
the firm’s services, and the general topic of payment. But they neither contain an
express promise undertaking sole responsibility to be indefinitely liable for Nick’s
legal fees nor do they refer to any written instrument of such an agreement. It is true
some of Mr. Muntjan’s language implies shared responsibility, particularly his email
from September 2019 which uses the plural pronouns “us” and “our,” and asks the
firm to send future invoices to Mr. Muntjan’s email, suggesting his ongoing
involvement. But it does not change the key fact that the firm cannot point to any
statement in which Mr. Muntjan assumed sole responsibility to pay Nick’s legal fees.
Nor can the firm point to any statement in which Mr. Muntjan references a
formalized promise to do so.
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That is a crucial omission. In case after case, this Court has declined to enforce
a contract if a writing did not capture a guarantor’s express promise to pay. For
example, an attorney did not guaranty a client’s debt based on a letter reading:
“Subject to Mr. Simpson’s approval, which I feel certain he will give, this firm will
make restitution to you out of the net proceeds from any settlement or court recovery
we make with regard to Mr. Simpson’s personal injury claim[.]” Forbes Homes, Inc.
v. Trimpi, 318 N.C. 473, 474 (1986). A company did not guaranty the defendant’s
debt when it sent a telegram stating: “[Defendant company] reliable people. Any
justifiable claims will be taken care of promptly.” Fain Grocery Co. v. Early & Daniels
Co., 181 N.C. 459, 459 (1921). A defendant’s note to reimburse the plaintiff for $600
did not show an enforceable “contract for the conveyance of the land to the [plaintiff]”
because the writing “contained only a promise on the [defendant’s] part to pay the
money, but no reciprocal promise of the defendant to convey the land.” Burriss v.
Starr, 165 N.C. 657, 659, 661 (1914). Moreover, this Court has voided agreements
when they failed to contain an express promise. Id. at 661–62. (“There is no such
contract here. The note of the defendant, although written by the plaintiff, contained
only a promise on his part to pay the money, but no reciprocal promise of the
defendant to convey the land . . . ”).
By contrast, we held there was a binding guaranty contract where a letter
contained a written assumption of personal responsibility. In Standard Supply Co.
v. Person & Finch, the defendant made a “definite promise” in a letter, amongst a
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series of letters, that said: “[J]ust as soon as the dry kiln gets in operation, I will see
that your bill is paid.” 154 N.C. 456, 461 (1911). In Simpson v. Beaufort County
Lumber Co., we held that the plaintiff had shown a “sufficient memorandum in
writing, signed by the party to be charged therewith” as required under the statute
of frauds based on the letters and telegrams that showed a “plain and explicit”
contract to buy a tract of land. 193 N.C. at 456.
Perhaps unsurprisingly, this case is not our first time dealing with a father’s
promise to cover his son’s debts. In Hickory Novelty Co. v. Andrews, we held that a
series of letters established a father’s promise to cover his sons’ debts. 188 N.C. 59
(1924). But that case featured what this case lacks: A father’s express written
agreement to pay his children’s obligations. Id. The sons owned and operated a
lumber firm that owed a debt to the plaintiff, and the father, hoping to keep his sons’
business afloat, wrote a letter reading as follows: “This will advise that I am
interested in [the lumber firm], and will personally see that all business transactions
between [the lumber firm] and [plaintiff] are settled and adjusted satisfactorily
entirely with your concerns.” Id. at 60. To vouch for his solvency, the father attached
a letter from a bank showing that he was “personally responsible for all outstanding
accounts up to this date, and all accounts which will follow.” Id. The father implored
the plaintiff that “if there is anything pertaining to this business which is
questionable, please advise me personally at once, and I will straighten out the
matter entirely to your satisfaction.” Id.
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When the firm incurred more debt, one of the plaintiff’s managers wrote the
father “reminding him of his obligation” for his sons’ business debts. Id. at 61. After
“discuss[ing] the matter with [the lumber firm],” the father explained, his sons agreed
to send $500 checks every fifteen days until the debt was paid. Id. at 62. But if “they
do not carry out the above plans,” the father advised the plaintiff, “kindly notify me
and I will see that they are carried out to your satisfaction.” Id. In reply, the manager
confirmed that the father “will be responsible for this agreement being carried out to
my satisfaction, which is in accordance with your former guarantee to us.” Id.
By the time the case reached this Court, though, the issue was simple: did the
father make an enforceable guaranty to pay his sons’ debt? Id. at 64. We said yes.
Id. First, the “guaranty was in writing, as required by the statute [of frauds].” Id. at
66. More, the father expressly promised to pay “the future debts or obligations”
incurred by the lumber firm. Id. at 67. And it was not a one-time agreement but a
continuing guaranty. Id. Simply put, the Novelty father’s promise was not
susceptible to multiple interpretations. Id. And later writings confirmed “that [he]
understood the liability he had created and incurred.” Id.
In the present case, the firm cites Novelty as support and centers the reference
in Novelty to Newcomb v. Kloeblen, 77 N.J.L. 791 (1909), an “on point” New Jersey
decision. In Novelty, this Court cited Newcomb with approval in finding a continuing
guaranty when a father wrote to a company: “I will be responsible for any bill that
my son James will make.” Novelty, 188 N.C. at 66. Based on that language, the firm
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contends that a promise to pay can be a simple statement rather than a robust
declaration, but it misses the more important point: the fathers in both Novelty and
Newcomb explicitly promised to make good on their sons’ debts. No such language
exists here. Mr. Muntjan never assumed responsibility for Nick’s legal expenses in
the same way. And his emails were not connected—either physically or by “internal
reference”—to “other writings so as to constitute a valid and sufficient memorandum”
containing “the essential elements of a contract.” Smith, 214 N.C. at 604–05. That
omission overrides any facial similarities between this case and Novelty. Mr.
Muntjan—like the father in Novelty—certainly seems to have involved himself in his
son’s business affairs. As the firm notes, Mr. Muntjan used plural pronouns like “us”
and “ours,” gestured at future business with the firm, and asked that “any and all
invoices [be] sent to my email.” But those parallels cannot patch the key difference.
The father in Novelty put his guaranty into writing across multiple letters. Mr.
Muntjan did not— a fact that holds true whether the focus is on a single email or a
number of his messages stitched together.
The reason why the statute of frauds requires us to deem as unenforceable any
contract established here, as unpalatable as it may be from an equity perspective, can
be demonstrated through a counterfactual based on the actual emails in this case:
Suppose Mr. Muntjan had orally promised the firm that he would help manage the
legal case for Nick by occasionally paying his legal fees and handling administrative
tasks, such as communications with the firm, but he verbally emphasized he did not
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agree to be a guarantor or to be contractually bound to pay if his son did not. The
emails relied on by the majority in this case to support the argument that Mr.
Muntjan’s emails constitute a memorandum or note of Mr. Muntjan’s oral guaranty
would now support with equal weight the counterfactual scenario in which Mr.
Muntjan promised to occasionally assist Nick. For example, consider the following
emails sent between the firm and Mr. Muntjan:
• On 23 September 2019, Mr. Muntjan wrote:
“Hi Byron, Received your email as address to son Nick regarding the case and request for prompt payment. It is important to us to always pay our value partners quickly for their service rendered so rest assured your invoice will be turned around immediately and a check sent upon receipt. Please note as of this date that no invoice has been received. As a reminder, please insure any and all invoices are sent to my email due to my travel schedule.”
• On 18 December 2019, Mr. Muntjan wrote:
“Hi Byron and Happy Holidays! It looks like the saga continues with Nick’s legal issues with his business. I am attaching the legal document he just received for your review. Please let me know how we can best work together in this regard.”
• On 4 June 2020, Mr. Muntjan wrote:
“Please be advised that the attached invoice the firm sent dated June 4, 2020 does not reflect payment made on the account dated May 12, 2020. Attached is a record of the payment in question. Please send a corrected invoice at your earliest convenience.”
• On 8 June 2020, Mr. Muntjan wrote:
“Would you be so kind to furnish a list of payments made on this account? We may be missing a payment made on or
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about 1/10/20.
• On 16 July 2020, Mr. Muntjan wrote:
“Thanks Byron! It sounds like Discovery would be the last item we need to deal with now that we have the bankruptcy being considered? Please refresh my memory on what the Discovery pertains to. Could we eliminate Discovery if we close the company?”
Though these emails imply a shared responsibility, reading the emails now
with the counterfactual in mind, it can be just as true that these emails support the
counterfactual contention offered: Mr. Muntjan is assisting Nick by handling his
emails, managing his case, and assuring that his son will timely pay his legal fees,
especially given that Nick was on the brink of bankruptcy. The emails could plausibly
and reasonably support both the alleged promise in the case at hand and the
counterfactual promise, and the statute of frauds was designed to require proof to
avoid such uncertainties. See Winders, 144 N.C. at 618 (requiring writing to contain
internal evidence of the contract to be proved or refer to some writing that does).
The majority places excessive emphasis on inferred meanings and implications
rather than a clear assumption of responsibility. But without a written agreement
to foot Nick’s legal bills “then existing [or] to be incurred in the future,” the emails
lack an essential element of a guaranty contract. Cf. Novelty, 188 N.C. at 67.
II. Conclusion
While I understand the firm’s reasonable desire to recover for their services
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rendered, this Court should not set aside decades of clear precedent on the application
of the statute of frauds to guaranty agreements to produce that outcome. In short,
the emails here did not contain a clear, definite promise to pay for another’s debt.
Thus, the firm lacks an enforceable guaranty under the statute of frauds.
Accordingly, I respectfully dissent.
Justice EARLS joins in this dissenting opinion.
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