Bryant v. Don Galloway Homes, Inc.

556 S.E.2d 597, 147 N.C. App. 655, 2001 N.C. App. LEXIS 1236
CourtCourt of Appeals of North Carolina
DecidedDecember 18, 2001
DocketCOA00-1076
StatusPublished
Cited by17 cases

This text of 556 S.E.2d 597 (Bryant v. Don Galloway Homes, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bryant v. Don Galloway Homes, Inc., 556 S.E.2d 597, 147 N.C. App. 655, 2001 N.C. App. LEXIS 1236 (N.C. Ct. App. 2001).

Opinions

BRYANT, Judge.

On 25 November 1991, defendant completed construction of a residence in Huntersville, North Carolina, and received a certificate of occupancy from the Charlotte/Mecklenburg County Building Standards Department. Defendant used the residence as a model home for a year. In September 1992, plaintiffs entered into a contract [656]*656to purchase the residence, and closed on the sale on 4 December 1992.

In February 1994, plaintiffs submitted to defendant a one-year walk-through form in which they indicated that the “[h]ardwood floors in [the] foyer, right inside the door, appear to be buckling.” In July 1994, water intruded into the same area where the floors had buckled. In August 1994, defendants attempted to repair the problem. In July 1996, plaintiffs again discovered water damage, this time in the wall adjacent to the front door in the foyer. Plaintiffs learned that the wallboard was wet, the framing members were wet and mildewed and there was significant damage to structural members. On 10 February 1998, plaintiffs performed a moisture intrusion test, which revealed excessive moisture greater than nineteen percent. Plaintiffs estimate that repairs would cost between $11,291.00 and $97,342.69.

On 25 November 1998, plaintiffs filed a complaint against defendant alleging damages due to defective construction. Plaintiffs alleged seven causes of action related to the exterior installation and finish system [EIFS] on the house: 1) breach of express warranty; 2) breach of implied warranty of habitability and workmanlike construction; 3) breach of implied warranty of merchantability; 4) breach of implied warranty of fitness for a particular purpose; 5) negligence; 6) negligent failure to warn; and 7) unfair and deceptive trade practices. Specifically, plaintiffs alleged that water penetrated behind the EIFS on the house because of defects caused by defendant during the construction of the house.

On 18 February 2000, defendant moved for summary judgment on the grounds that plaintiffs’ claims were outside the statutes of repose and limitation. The trial court granted defendant’s motion for summary judgment on 26 April 2000 and dismissed plaintiffs’ complaint with prejudice. Plaintiffs filed notice of appeal on 25 May 2000.

Plaintiffs assign as error the trial court’s holding that a genuine issue of material fact did not exist as to: 1) when the house was substantially complete, or when defendant’s last acts or omissions occurred for purposes of the statute of repose; and 2) whether the statute of limitations barred plaintiffs’ claims. We disagree, and hold that the trial court did not err in granting defendant’s motion for summary judgment.

Upon motion, summary judgment is appropriate where “the pleadings, depositions, answers to interrogatories, and admissions on [657]*657file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” N.C.G.S. § 1A-1, Rule 56(c) (1999). An issue is material if “the facts alleged would constitute a legal defense, or would affect the result of the action, or if its resolution would prevent the party against whom it is resolved from prevailing in the action.” Koontz v. City of Winston-Salem, 280 N.C. 513, 518, 186 S.E.2d 897, 901 (1972). An issue is genuine if it is supported by substantial evidence. Id.

Plaintiffs’ first argument is that the trial court erred in dismissing the complaint as barred by the statute of repose. Plaintiffs argue that the statute actually began to run: 1) sometime after the closing on 4 December 1992, when the house could be used for its intended purpose; or 2) in August 1994, when defendant attempted repairs. We disagree.

A statute of repose is a condition precedent that must be specifically pled. Tipton & Young Constr. Co. v. Blue Ridge Structure Co., 116 N.C. App. 115, 118, 446 S.E.2d 603, 605, (1994), aff'd, 340 N.C. 257, 456 S.E.2d 308 (1995); see N.C.G.S. § 1A-1, Rule 8(c) (1999). It is a substantive limitation that establishes a time frame in which an action must be brought to be recognized. Id. The repose period begins to run when an event occurs, regardless of whether or not there has been an injury. Id. at 117, 446 S.E.2d 604. The issue of whether the statute of repose has expired is a question of law. Colony Hill Condo. I Ass’n v. Colony Co., 70 N.C. App. 390, 392, 320 S.E.2d 273, 275 (1984) (citing Lamb v. Wedgewood South Corp., 308 N.C. 419, 425, 302 S.E.2d 868, 871-72 (1983)). Summary judgment is proper if the pleadings or proof show without contradiction that the statute of repose has expired. Id. The moving party has the burden of producing evidence sufficient to show that summary judgment is justified. See Sidney v. Allen, 114 N.C. App. 138, 143, 441 S.E.2d 561, 564 (1994), aff'd, 341 N.C. 190, 459 S.E.2d 237 (1995). The burden then shifts to the non-moving party to “ ‘set forth specific facts showing that there is a genuine issue for trial.’ ” Id. (quoting Roumillat v. Simplistic Enters., Inc., 331 N.C. 57, 63, 414 S.E.2d 339, 342 (1992)).

A statute of repose prevents a plaintiff from bringing an action a certain number of years after the defendant’s act or omission, regardless of whether the plaintiff has suffered an injury. Monson v. Paramount Homes, Inc., 133 N.C. App. 235, 240, 515 S.E.2d 445, 449 (1999). In the case at bar, the applicable statute of repose is the [658]*658North Carolina real property improvement statute, which states in pertinent part:

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 improvement.

N.C.G.S. § l-50(a)(5)(a) (1999). The statute defines “substantial completion” as

that degree of completion of a project, improvement or specified area or portion thereof (in accordance with the contract, as modified by any change orders agreed to by the parties) upon attainment of which the owner can use the same for the purpose for which it was intended.

N.C.G.S. § l-50(a)(5)(c) (1999). Although the statute does not define “last act or omission,” this Court has stated that “[i]n order to constitute a last act or omission, that act or omission must give rise to the cause of action.” Nolan v. Paramount Homes, Inc., 135 N.C. App. 73, 79, 518 S.E.2d 789, 793 (1999), review denied, 351 N.C. 359, 542 S.E.2d 214 (2000).

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Bryant v. Don Galloway Homes, Inc.
556 S.E.2d 597 (Court of Appeals of North Carolina, 2001)

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Bluebook (online)
556 S.E.2d 597, 147 N.C. App. 655, 2001 N.C. App. LEXIS 1236, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bryant-v-don-galloway-homes-inc-ncctapp-2001.