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Civil Practice – Statute of Repose – Real Property – Developer – Subdivision Road – Last Act

The Glens of Ironduff Property Owners Association, Inc. v. Daly (Lawyers Weekly No. 12-07-1164, 14 pp.) (Martha A. Geer, J.) Appealed from Haywood County Superior Court (Gary E, Trawick, J.) N.C. App.

Holding: Even though the road into plaintiff’s subdivision was paved in 2005, it has been used for access to the subdivision since before March 2004, and the last acts or omissions by the defendant-developer that allegedly led to the erosion of the road by an adjacent stream bed also took place before March 2004. Therefore, plaintiff’s March 30, 2010 complaint is barred by the six-year statute of repose in G.S. § 1-50(a)(5)(a).

We affirm summary judgment for defendants.

The purpose of the road was to allow vehicular traffic to access lots in the subdivision. Following the widening and grading of the road prior to March 2004, the road was adequate for and was used by vehicles traveling to construct houses on lots. The road continued to be used, without change, by lot owners and construction traffic prior to the paving of the road in 2005.

Because the road could be used for its intended purpose, it was substantially complete prior to March 2004.

The plaintiff-homeowners’ association has presented no evidence that paving was necessary for the road to be used for its intended purpose or that the lack of paving prior to 2005 interfered with the road’s use. Without that evidence, the association has failed to show a genuine issue of material fact as to the date of substantial completion of the road.

Alternatively, the association argues that the 2005 paving constituted “the specific last act or omission of the defendant giving rise to the cause of action.” G.S. § 1-50(a)(5)(a). The association is contending that the collapse of the shoulder and stream bank was due to the widening of the road bringing it closer to the stream and making the stream bank steeper. Although the association points to evidence that the defendant-developers had placed six inches of stone covered by two inches of asphalt on the road in 2005, it has not shown that this paving gave rise to its causes of action for defective construction of the road.

The association’s evidence indicates that the conduct giving rise to its claims was the placement and grading of the road; it is undisputed that those acts occurred prior to March 2004. The association’s evidence makes no reference to the 2005 paving as contributing to the cause of the erosion of the stream bank. Defendant John Daly’s affidavit remained uncontroverted that “the paving of the road at a later date did not involve any change in the grade of the road, the width of the road or the creek bank or slope of the creek bank that is the subject of this civil action.”

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