This Note will offer a brief history of the case law developed prior to Embree and will analyze the rationale used by the North Carolina Supreme Court in order to make their determination to grant an equitable remedy in this particular case. Next, this Note will examine the holding in Embree and will advance the proposition that the holding in that case is a departure from pre:existing law and cannot be easily reconciled with the case law developed in earlier North Carolina decisions and decisions of Federal Courts applying North Carolina law. Finally, this Note will outline the potential problems in litigation that may arise as a result of the decision in Embree, and will conclude with suggestions for attorneys to consider in light of the new development in North Carolina law from the standpoint of helping assemble construction loan packages.
Philip A. Mullins IV, Judicial Activism Constructs Lenders' Nightmare - Embree Construction Group, Inc. v. Rafcor, Inc. and United Carolina Bank, 15 Campbell L. Rev. 77 (1992).