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VICTORIA L. ROEMER,
No. 07 CVS 4930
PREFERRED ROOFING, INC.,
formerly known as PREFERRED
Judge Richard L. Doughton in Forsyth County Superior Court. Heard
in the Court of Appeals 15 May 2008.
William E. West, Jr., for plaintiff-appellant.
Robert J. Lawing and H. Brent Helms, for defendant-appellee.
Victoria Roemer (plaintiff) appeals from order entered,
which granted Preferred Roofing, Inc.’s (defendant) motion to
dismiss. We affirm.
On or about 23 November 1999, plaintiff and defendant entered
into a contract to remove the existing roof on plaintiff’s home and
replace it with a new roofing system. Several years after the
project was completed, plaintiff discovered alleged defects with
the roof including: (1) loose slate tiles; (2) separation of
gutters from the house; and (3) rotten wood under the roof. On 18 July 2007, plaintiff filed a complaint and alleged
claims of: (1) negligence; (2) breach of contract; and (3) breach
of warranty. Plaintiff’s complaint asserted defendant had: (1)
negligently performed its obligations under the contract; (2)
failed to install the new roof in a professional and competent
manner as was required by the parties’ contract; and (3) failed to
comply with its express lifetime warranty of the dependability and
reliability of the installation of the roof. Plaintiff sought
compensatory damages in an amount in excess of $10,000.00.
On 19 September 2007, defendant moved to dismiss all of
plaintiff’s claims. Defendant’s motions to dismiss alleged: (1)
plaintiff had failed to obtain valid service of process over
defendant; (2) the trial court lacked jurisdiction over both
defendant and the subject matter of the action; and (3) plaintiff’s
complaint failed to state any claim upon which relief may be
granted pursuant to Rule 12(b)(6) of the North Carolina Rules of
Civil Procedure. Defendant withdrew its motions to dismiss
challenging service of process and jurisdiction. On 12 October
2007, plaintiff filed a motion for voluntary dismissal without
prejudice of her negligence and breach of contract claims.
On 15 October 2007, the trial court entered its order, which
found as a matter of law that plaintiff’s [c]omplaint is barred by
the applicable statute of repose and that defendant’s motion to
dismiss should be allowed. The trial court dismissed plaintiff’s
claim for damages for breach of warranty with prejudice. Plaintiff
Plaintiff argues the trial court erroneously dismissed her
complaint under Rule 12(b)(6) of the North Carolina Rules of Civil
Plaintiff argues her complaint . . . stated a claim upon
which relief could be granted. We disagree.
A motion to dismiss under Rule 12(b)(6) of the North Carolina
Rules of Civil Procedure presents the question whether, as a matter
of law, the allegations of the complaint, treated as true, are
sufficient to state a claim upon which relief can be granted under
some legal theory. Lynn v. Overlook Development, 328 N.C. 689,
692, 403 S.E.2d 469, 471 (1991) (citation omitted). A statute of
limitation or repose may be the basis of a 12(b)(6) dismissal if on
its face the complaint reveals the claim is barred. Forsyth
Memorial Hospital v. Armstrong World Industries, 336 N.C. 438, 442,
444 S.E.2d 423, 426 (1994) (citation omitted).
Dismissal of a complaint is proper under the
provisions of Rule 12(b)(6) of the North
Carolina Rules of Civil Procedure when one or
more of the following three conditions is
satisfied: (1) when the complaint on its face
reveals that no law supports plaintiff’s
claim; (2) when the complaint reveals on its
face the absence of fact sufficient to make a
good claim; (3) when some fact disclosed in
the complaint necessarily defeats the
Oates v. JAG, Inc., 314 N.C. 276, 278, 333 S.E.2d 222, 224 (1985)
(citation omitted). This Court must conduct a de novo review ofthe pleadings to determine their legal sufficiency and to determine
whether the trial court’s ruling on the motion to dismiss was
correct. Leary v. N.C. Forest Prods., Inc., 157 N.C. App. 396,
400, 580 S.E.2d 1, 4, aff’d, 357 N.C. 567, 597 S.E.2d 673 (2003).
N.C. Gen. Stat. § 1-50(a)(5)a (2007) states:
No action to recover damages based upon or
arising out of the defective or unsafe
condition of an improvement to real property
shall be brought more than six years from the
later of the specific last act or omission of
the defendant giving rise to the cause of
action or substantial completion of the
[N.C. Gen. Stat. § 1-50(a)(5)a] is a statute of repose and
provides an outside limit of six years for bringing an action
coming within its terms. Whittaker v. Todd, 176 N.C. App. 185,
187, 625 S.E.2d 860, 861 (citing Lamb v. Wedgewood South Corp., 308
N.C. 419, 427-28, 302 S.E.2d 868, 873 (1983)), disc. rev. denied,
360 N.C. 545, 635 S.E.2d 62 (2006).
Unlike an ordinary statute of limitations which begins
running upon accrual of the claim, the period contained in the
statute of repose begins when a specific event occurs, regardless
of whether a cause of action has accrued or whether any injury has
resulted. Black v. Littlejohn, 312 N.C. 626, 633, 325 S.E.2d 469,
474-75 (1985) (internal citations omitted). If the action is not
brought within the specified period, the plaintiff literally has no
cause of action. The harm that has been done is damnum absque
injuria — a wrong for which the law affords no redress. Boudreauv. Baughman, 322 N.C. 331, 341, 368 S.E.2d 849, 857 (1988)
(internal quotation omitted) (emphasis original).
Plaintiff’s complaint, filed 18 July 2007, alleged the roofing
project was completed in the summer of 2000, and [p]laintiff
accepted the completed project. Plaintiff’s complaint was filed
approximately seven years after substantial completion of the
improvement. N.C. Gen. Stat. § 1-50(a)(5)a. Plaintiff’s action
is barred by the statute of repose which prohibits an action to
recover damages for ‘the defective or unsafe condition of an
improvement to real property’ that is not brought within six years
of ‘substantial completion of the improvement.’ Whittaker, 176
N.C. App. at 187, 625 S.E.2d at 861 (quoting N.C. Gen. Stat. § 1-
50(a)(5)a) (emphasis supplied).
Plaintiff cites Haywood Street Redevelopment Corp. v. Peterson
Co. for her7 assertion that the statute of repose does not bar
their action to recover compensatory damages in an amount in excess
of $10,000.00. 120 N.C. App. 832, 463 S.E.2d 564 (1995), disc.
rev. denied, 342 N.C. 655, 467 S.E.2d 712 (1996). This Court, in
Whittaker, addressed this argument and stated:
In Haywood, the plaintiff sued for negligence,
breach of contract, and breach of express and
implied warranties. This Court held
plaintiff’s breach of warranty claims were not
barred by the statute of limitations because
the warranty was for a specified period of
time and each day there was a breach a new
cause of action accrued. In the instant case,
however, plaintiff filed a complaint for
monetary damages only and did not sue for
breach of warranty. Thus, plaintiff’s reliance
on Haywood is misplaced. We conclude
plaintiff’s action for monetary damages isbarred by the statute of repose, N.C. Gen.
Stat. § 1-50(a)(5)a.
176 N.C. App. at 187, 625 S.E.2d at 861-62 (internal citation
omitted). While plaintiff’s complaint lists her third claim for
relief as a breach of warranty action, plaintiff only sought
compensatory damages in an amount in excess of $10,000.00.
Consistent with this Court’s reasoning in Whittaker, plaintiff’s
claim for monetary damages only, is barred by the statute of repose
pursuant to N.C. Gen. Stat. § 1-50(a)(5)a. 176 N.C. App. at 187,
625 S.E.2d at 861-62.
Plaintiff’s remedy for breach of an alleged lifetime warranty
claim that is brought more than six years from the later of the
specific last act or omission of the defendant giving rise to the
cause of action or substantial completion of the improvement[,]
lies in specific performance, and not damages. N.C. Gen. Stat. §
1-50(a)(5)a; see John N. Hutson, Jr. & Scott A. Miskimon, North
Carolina Contract Law § 16-7, at 798-99 (2001) (citation omitted)
(Statutes of repose operate differently than statutes of
limitation. The term of ‘statute of repose’ is used to distinguish
ordinary statutes of limitation from those statutes that impose a
deadline for filing suit unrelated to the actual accrual of the
cause of action. A statute of repose serves as an unyielding and
absolute barrier that prevents a plaintiff’s right to bring suit
even before his cause of action may accrue and functions to give a
defendant a vested right not to be sued if the plaintiff fails to
file within the prescribed time period.). The trial court properly granted defendant’s motion to dismiss
pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil
Procedure. This assignment of error is overruled.
Plaintiff’s action for monetary damages is barred by the
applicable six-year statute of repose. N.C. Gen. Stat. § 1-
50(a)(5)a. Plaintiff’s complaint does not assert a claim for
specific performance of the alleged lifetime warranty. The trial
court properly granted defendant’s motion to dismiss and its order
Judges MCCULLOUGH and STROUD concur.
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