Outer Banks Ventures, Inc. v. Currituck Cnty.

Opinions

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA25-798

Filed 3 June 2026

Currituck County, No. 23CVS000410-260

OUTER BANKS VENTURES, INC., Plaintiff,

v.

CURRITUCK COUNTY, Defendant.

Appeal by Plaintiff from Order entered 25 April 2025 by Judge Jerry R. Tillett

in Currituck County Superior Court. Heard in the Court of Appeals 10 February

2026.

Waldrep Wall Babcock & Bailey PLLC, by Kevin L. Sink, Chris W. Haaf, and Jack H. O’Neal, II, for Plaintiff-Appellant.

The Brough Law Firm, PLLC, by G. Nicholas Herman and Megan E. Morgan, for Defendant-Appellee.

HAMPSON, Judge.

Factual and Procedural Background

Outer Banks Ventures, Inc., (Plaintiff) appeals from an Order denying its

Motion for Partial Summary Judgment and granting partial summary judgment in

favor of Currituck County (Defendant). The Record before us tends to reflect the

following:

On 6 March 1986, Carolina Water Service, Inc., of North Carolina (CWS)

entered into a written agreement with Corolla Light Venture, which consisted of

Opinion of the Court

Plaintiff and Northsand, Inc., for water and sewage service (the 1986 Agreement).

Plaintiff and Northsand, Inc., subsequently merged, leaving Plaintiff as the surviving

entity entitled to all rights and benefits under the 1986 Agreement with CWS.

Under the 1986 Agreement, Plaintiff, a real estate developer, agreed to

construct and install the water and sewer facilities for a residential development,

after which ownership of the facilities would be transferred to CWS to operate and

maintain the water and sewer system. Specifically, the 1986 Agreement provided, in

relevant part:

3. [CWS] shall reimburse [Plaintiff] for the water and sewer facilities and equipment installed pursuant to this Agreement as follows:

....

b. Contingent or deferred payments in the amount of $250.00 for each additional water and sewer customer (“Customer”) attaching to the water and sewer system in the Development, commencing with the 50th Customer and continuing throughout the Development.

c. [CWS] hereby agrees to reimburse [Plaintiff] for any and all tap-in, connection, and impact fees received from customers connecting to the water and sewer system in the Development and taking service thereby. No tap-in or connection fee will be charged by [CWS] unless specifically requested by [Plaintiff] in writing. . . .

d. Contingent payments and reimbursements will be made by [CWS] to [Plaintiff] semi-annually, based upon the number of utility customers connected during the preceding six month period.

....

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6. The failure of either party hereto to enforce any of the provisions of this Agreement or the waiver thereof in any instance by either party shall not be construed as a general waiver or relinquishment on its part of any such provisions, but the same shall, nevertheless, be and remain in full force and effect.

Pursuant to an agreement dated 25 February 2011, Defendant purchased

certain water utility assets from CWS, including the system covered under the 1986

Agreement. On or about 18 July 2011, CWS, as assignor, and Defendant, as assignee,

entered into an Assignment and Assumption of Developer Agreements, Contracts and

Leases, by which Defendant assumed CWS’s obligations under the 1986 Agreement,

including the payment and reimbursement obligations expressed above.

On 6 September 2011, Defendant received its first tap-in, connection, or

development fee from a customer since the 18 July 2011 assignment. Defendant did

not reimburse Plaintiff for that fee, nor did it make any other payments or

reimbursements to Plaintiff under the Agreement in the following years.

On 17 October 2023, Plaintiff filed a Complaint alleging Defendant had

breached its obligations under the 1986 Agreement (as assumed in the 18 July 2011

assignment). Defendant did not dispute it had failed to make such payments to

Plaintiff but asserted Plaintiff’s claim was barred by the two-year statute of

limitations under N.C. Gen. Stat. § 1-53(1). Plaintiff, for its part, argued it was

entitled to payments made in the two years preceding the filing of its Complaint

because, in its view, the 1986 Agreement is an installment contract. The parties filed

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cross-motions for Partial Summary Judgment asserting these respective positions.

On 25 April 2025, the trial court entered an Order denying Plaintiff’s Motion

for Partial Summary Judgment, granting Defendant’s Motion for Partial Summary

Judgment, and dismissing the case. On 20 May 2025, Plaintiff timely filed Notice of

Appeal.

Issue

The dispositive issue on appeal is whether Plaintiff’s claim for Breach of

Contract is barred by the two-year statute of limitations under N.C. Gen. Stat. § 1-

53(1).

Analysis

“Our standard of review of an appeal from summary judgment is de novo[.]”

In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (citation and

quotation marks omitted). Summary judgment is appropriate when “the pleadings,

depositions, answers to interrogatories, and admissions on file, 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. Gen. Stat. § 1A-1, Rule

56(c) (2025).

“A party moving for summary judgment may prevail if it meets the burden (1)

of proving an essential element of the opposing party’s claim is nonexistent, or (2) of

showing through discovery that the opposing party cannot produce evidence to

support an essential element of his or her claim.” Lowe v. Bradford, 305 N.C. 366,

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369, 289 S.E.2d 363, 366 (1982) (citation omitted). “If the moving party meets this

burden, the non-moving party must in turn either show that a genuine issue of

material fact exists for trial or must provide an excuse for not doing so.” Id. (citations

omitted). “The non-moving party ‘may not rest upon the mere allegations of his

pleadings.’ ” Id. at 370, 289 S.E.2d at 366 (quoting N.C. Gen. Stat. § 1A-1, Rule 56(e)).

Plaintiff argues the trial court erred in denying its Motion for Partial Summary

Judgment and granting partial summary judgment in favor of Defendant.1

Specifically, Plaintiff contends the 1986 Agreement should be treated as an

installment contract for limitations purposes and asserts each unfulfilled six-month

payment is a separate breach of contract claim for which Plaintiff should be allowed

to pursue any claims arising within two years before filing suit.2 We disagree.

“We have long recognized that a party must initiate an action within a certain

statutorily prescribed period after discovering its injury to avoid dismissal of a claim.”

1 To be clear, “[t]he denial of a motion for summary judgment is an interlocutory order and is

not appealable.” Harris v. Walden, 314 N.C. 284, 286, 333 S.E.2d 254, 256 (1985). Thus, to the extent Plaintiff seeks review of the denial of its Motion for Partial Summary Judgment, such review is unavailable.

However, a grant of partial summary judgment becomes reviewable after the entry of a final judgment. D.G. II, LLC v. Nix, 213 N.C. App. 220, 229, 713 S.E.2d 140, 147 (2011) (“The jury verdict was a final determination as to damages. Therefore, at that point, the trial court’s order granting defendants’ motion for partial summary judgment became an appealable order.”). Therefore, while we may not review the denial of Plaintiff’s Motion for Partial Summary Judgment, we may review the trial court’s Order to the extent it granted Defendant’s Motion for Partial Summary Judgment and dismissed the action in its entirety. See id.; Goodman v. Holmes & McLaurin Att’ys at L., 192 N.C. App. 467, 471, 665 S.E.2d 526, 530 (2008) (citing Combs & Assocs. v. Kennedy, 147 N.C. App. 362, 367, 555 S.E.2d 634, 638 (2001)) (explaining order granting partial summary judgment is final and appealable when no claims are left to be determined).

2 Neither party disputes the applicable statute of limitations is two years. See N.C. Gen. Stat.

§ 1-53(1) (2025).

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Christenbury Eye Center, P.A. v. Medflow, Inc., 370 N.C. 1, 5, 802 S.E.2d 888, 891

(2017) (citing Shearin v. Lloyd, 246 N.C. 363, 370, 98 S.E.2d 508, 514 (1957)). “The

purpose of a statute of limitations is to afford security against stale demands, not to

deprive anyone of his just rights by lapse of time.” Id. at 5-6, 808 S.E.2d at 891

(citation and quotation marks omitted). Thus, “statutes of limitations are inflexible

and unyielding and operate without regard to the merits of a cause of action.” Id. at

6, 802 S.E.2d at 891-92 (citation and quotation marks omitted).

“It is well settled that ‘where the right of a party is once violated the injury

immediately ensues and the cause of action arises.’ ” Id. (quoting Sloan v. Hart, 150

N.C. 269, 274, 63 S.E. 1037, 1039 (1909)). “A cause of action is complete and the

statute of limitations begins to run upon the inception of the loss from the contract,

generally the date the promise is broken.” Id. (citing Jewell v. Price, 264 N.C. 459,

461, 142 S.E.2d 1, 3 (1965)).

“An ‘installment contract’ is one which requires or authorizes the delivery of

goods in separate lots to be separately accepted, even though the contract contains a

clause ‘each delivery is a separate contract’ or its equivalent.” N.C. Gen. Stat. § 25-

2-612(a) (2025). Under an installment contract, “the statute of limitations runs

against each installment as it becomes due, thus permitting actions falling within the

limitations period while precluding those that fall outside of it.” Christenbury, 370

N.C. at 7, 802 S.E.2d at 893 (citing Shoenterprise Corp. v. Willingham, 258 N.C. 36,

39, 127 S.E.2d 767, 770 (1962)). “Though the term ‘installment contract’ technically

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applies to contracts for the sale of goods, for limitations purposes this principle has

been extended to some agreements falling outside the technical definition.” Id. (citing

Martin v. Ray Lackey Enters., Inc., 100 N.C. App. 349, 357, 396 S.E.2d 327, 332

(1990)).

“Whether an agreement should be treated as an installment contract depends

not on the number of promises on either or both sides but on whether there has been

a single expression of mutual assent to all the promises as a unit.” Id. at 8, 802 S.E.2d

at 893 (alterations and citation omitted). “[T]he hallmark of an installment contract

is that its terms contain ‘two or more distinct items, both in the agreement to perform

and in the promise of compensation, capable of apportionment or separate allocation

the one to the other, as indicated in the contract itself.’ ” Id. (quoting Neal v.

Wachovia Bank & Tr., 224 N.C. 103, 107, 29 S.E.2d 206, 208 (1944)) (internal

quotation marks omitted).

Plaintiff contends the 1986 Agreement is an installment contract. In so

arguing, Plaintiff points to cases it believes are distinguishable to the facts at bar—

cases where we held the agreement at issue was not an installment contract.3 Of

these cases, we find the facts of Christenbury particularly instructive. There, the

parties had entered into an agreement whereby the plaintiff agreed to assign its

3 The cases cited by Plaintiff include: Christenbury, 370 N.C. 1, 802 S.E.2d 888 (2017); Martin,

100 N.C. App. 349, 396 S.E.2d 327 (1990); U.S. Leasing Corp. v. Everett, Creech, Hancock, and Herzig, 88 N.C. App. 418, 363 S.E.2d 665 (1988); and Liptrap v. City of High Point, 128 N.C. App. 353, 496 S.E.2d 297 (1998).

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rights in certain software to the defendants, and the defendant agreed to, among

other things, provide the plaintiff with monthly written sales reports, monthly fee

payments, and royalties based on its sales of the software. Id. at 2-3, 802 S.E.2d at

889-90. The defendant never performed any of its obligations under the agreement.

Id. at 3, 802 S.E.2d at 890. However, only after fourteen years had elapsed did the

plaintiff file an action for breach of contract. Id. The defendant asserted the

plaintiff’s entire suit was barred by the statute of limitations; the plaintiff, as here,

contended the agreement should be treated as an installment contract, “thus enabling

plaintiff to seek recovery on royalty payments due within the three years before the

filing of its complaint.” Id. at 4, 802 S.E.2d at 890 (citing Martin, 100 N.C. App. at

357, 396 S.E.2d at 332). Our Supreme Court disagreed with the plaintiff, noting:

“Because the terms of the Agreement demonstrate a mutual dependency between the

promised performance by plaintiff and the promised performances by defendants, the

consideration supporting the Agreement is unified and incapable of apportionment.”

Id. at 7, 802 S.E.2d at 892.

The Court explained:

The Agreement sets out that, in a one-time assignment, plaintiff conveyed its rights in the Enhancements in exchange for defendants’ various promises to provide monthly sales reports, refrain from selling the Enhancements in North Carolina and South Carolina absent plaintiff’s express consent, and pay royalties. The terms of the Agreement, therefore, demonstrate a mutual dependency between the promises provided by the parties as consideration to support the Agreement, inextricably tying plaintiff’s assignment of rights in the Enhancements to

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defendants’ promised performance.

Id. at 8, 802 S.E.2d at 893. Additionally, the agreement lacked “any indication that

the parties intended their promises to be divisible, severable, or otherwise capable of

apportionment.” Id. (citation omitted).

Here, as in Christenbury, the terms of the 1986 Agreement set out that

Plaintiff would install the water and sewer systems in exchange for Defendant’s

promise to make certain periodic payments and reimbursements. Thus, the terms of

the 1986 Agreement “demonstrate a mutual dependency between the promises

provided by the parties as consideration to support” the 1986 Agreement, tying

Plaintiff’s construction of the water and sewer facilities to Defendant’s promised

performance. Id. at 8, 802 S.E.2d at 893. And just as the agreement in Christenbury

lacked any indication the parties intended their promises to be divisible, severable,

or otherwise capable of apportionment, the 1986 Agreement contains no such

provision.

However, Plaintiff contends the present case is distinguishable from

Christenbury because here “payments are due every six months and [do] not depend

on any decision by Defendant – they were obligated to pay Plaintiff twice a year.” But

as Plaintiff states in its own Reply Brief: “Under the express terms of the 1986

Agreement, [Defendant’s] obligation to ‘reimburse’ the Plaintiff does not accrue until

a six-month period during which there were actual utility connections concludes.”

Thus, it follows that Defendant’s obligation to pay is dependent on whether

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Defendant takes action to connect new utility customers.

Indeed, the Court in Christenbury noted the plaintiff’s installment contract

argument “fail[ed]” where the decision to make sales and, thus, trigger the royalty

provisions of the agreement rested entirely in the defendants’ hands. Id. at 9, 802

S.E.2d at 893. And here, the decision to connect customers to the utility system and

trigger the reimbursement provision rests entirely in Defendant’s hands.4

Accordingly, under Christenbury, the 1986 Agreement is not an installment contract.

Moreover, whether an agreement is an installment contract does not depend

on the number of promises made on either side but on whether, as here, “there has

been a single expression of mutual assent to all promises as a unit.” Id. at 8, 802

S.E.2d at 893. Thus, Plaintiff’s attempt to characterize the 1986 Agreement as an

installment contract on the basis it calls for semi-annual payments is likewise

without merit.

In Liptrap v. City of High Point, which Plaintiff also argues is distinguishable

from the present case, the City of High Point enacted an ordinance providing annual

longevity payments for City employees that would increase in five-year increments.

128 N.C. App. at 354, 496 S.E.2d at 818. The City later passed a resolution freezing

4 The dissent contends the payments here are “self-executing[.]” However, no provision in the 1986 Agreement expressly supports this assertion. Further, to the extent the dissent suggests the 1986 Agreement is an “executory contract” or that the “Savings Provision” in the 1986 Agreement should guide our analysis, these arguments were not raised by Plaintiff and issues not “presented and discussed in a party’s brief” are “deemed abandoned.” N.C. R. App. P. 28(a) (2025).

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the amount of annual longevity payments. Id. Plaintiffs-employees sued the City

four years after the pay freeze, arguing the City’s resolution and subsequent refusals

to pay additional amounts constituted separate breaches of contract, each of which

triggered a new statute of limitations period and entitled the plaintiffs to recover the

amounts that allegedly should have been paid to them beginning two years prior to

the filing of the action. Id. at 354-55, 496 S.E.2d at 818.

The Court, in holding the agreement at issue was not an installment contract,

distinguished the facts before it from those of Martin v. Ray Lackey Enterprises, Inc.,

and U.S. Leasing Corp. v. Everett, Creech, Hancock and Herzig—two other cases

wherein we held the agreements were installment contracts. Id. at 357-358, 496

S.E.2d at 819-20. In Martin, the plaintiff had leased certain property to the

defendants. The lease provided the defendants were required to “pay and discharge

. . . all real estate taxes and assessments levied upon and assessed against the

premises[.]” 100 N.C. App. at 351, 396 S.E.2d at 329. The lease also contained an

express provision defining what constituted a breach of the agreement:

Section 13.01: Default. It shall be an event of default by Lessee hereunder if Lessee shall fail to pay the rent provided for herein or to observe or perform any of the obligations of Lessee otherwise provided for herein[.]

Id.

The plaintiff filed an action against the defendants for allegedly breaching the

lease by failing to pay the real estate taxes as they became due. Id. at 352, 396 S.E.2d

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at 329. On appeal, we held that since the defendants’ tax obligation became due on

an annual basis, the statute of limitations ran independently as to each annual

default. Id. at 357-58, 396 S.E.2d at 332. However, we also noted the language of

the lease made clear the “intent of the parties was that breach would occur when the

lessee failed to pay the real estate taxes levied against the property as they came

due.” Id. at 354, 396 S.E.2d at 331.

And in U.S. Leasing Corp., the plaintiff had filed an action alleging it had

leased office equipment to the defendant and the defendant had defaulted in making

its monthly payments under the lease agreement, which provided for a total of sixty

monthly payments. 88 N.C. App. at 421-22, 363 S.E.2d at 667. A provision in the

parties’ agreement expressly allowed the plaintiff “to seek recovery of each payment

as it became due.” Id. at 427, 363 S.E.2d at 669. Thus, we held each payment

required by the agreement was a debt which renewed the statute of limitations as to

that individual payment. Id. at 427, 363 S.E.2d at 670.

The Court in Liptrap found Martin distinguishable because there was “no

express language defining what constitutes a breach of the parties’ agreement[,]” 128

N.C. App. at 357, 496 S.E.2d at 820, and found U.S. Leasing Corp. distinguishable

because there was no express provision allowing the plaintiffs to “seek recovery of

each longevity payment as it became due[,]” id. at 357-58, 496 S.E.2d at 820 (citation

and quotation marks omitted). Here, as in Liptrap, and unlike in Martin and U.S.

Leasing Corp., there is no express language defining what constitutes a default under

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the 1986 Agreement, nor is there an express provision allowing Plaintiff to seek

recovery of the payments as they become due. Plaintiff’s attempts at asserting

otherwise are unpersuasive.

Plaintiff’s Complaint reveals it had notice of its injury as early as 2011:

27. Plaintiff is informed and believes that Defendant has been charging tap-in, connection, and impact fees to water and sewer utility customers in the Affected Area since the execution of the APA and Assignment.

....

39. During the period commencing as of July 18, 2011 and continuing to the present date, Defendant has refused and still refuses to account for or pay over Plaintiff the amounts due to Plaintiff as alleged[.]

However, Plaintiff did not raise any concern regarding its rights under the 1986

Agreement until the present action. Thus, “[a]ny increase in plaintiff’s injury

therefore represents the ‘continual ill effects from an original violation[ ]’ and

‘aggravation of the original breach[.]’ ” Christenbury, 370 N.C. at 6, 802 S.E.2d at

892 (first quoting Williams v. Blue Cross Blue Shield of N.C., 357 N.C. 170, 179, 581

S.E.2d 415, 423 (2003), then quoting Pembee Mfg. Corp. v. Cape Fear Constr. Co., Inc.,

313 N.C. 488, 493, 329 S.E.2d 350, 354 (1985)) (brackets omitted). Therefore, because

Plaintiff “had notice of its injury yet failed to assert its rights[ ]” within the two year

statute of limitations period, its claims are time barred. Id. at 6-7, 802 S.E.2d at 892.

Consequently, the trial court did not err in granting Defendant’s Motion for Partial

Summary Judgment.

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Conclusion

Accordingly, for the foregoing reasons, we affirm the trial court’s Order.

AFFIRMED.

Judge ZACHARY concurs.

Judge TYSON dissents by separate opinion.

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No. COA25-798 – Outer Banks Ventures, Inc. v. Currituck Cnty.

TYSON, Judge, dissenting.

The majority’s opinion erroneously affirms Defendant’s Motion for Partial

Summary Judgment. The majority’s opinion also erroneously concludes all of

Plaintiff’s claims are barred by the two-year statute of limitations under N.C. Gen.

Stat. § 1-53(1) (2025).

The order of the superior court is properly reversed. Plaintiff’s claims arising

within the applicable two-year period are not barred by the two-year statute of

limitations. I respectfully dissent.

I. Rules of Contract Interpretation

The well-settled elements of a valid contract are offer, acceptance,

consideration, and mutuality of assent to the contract’s essential terms. Snyder v.

Freeman, 300 N.C. 204, 218, 266 S.E.2d 593, 602 (1980) (“The essence of any contract

is the mutual assent of both parties to the terms of the agreement so as to establish

a meeting of the minds.”).

“A contract is simply a promise supported by consideration, which arises . . .

when the terms of an offer are accepted by the party to whom it is extended.” McLamb

v. T.P., Inc., 173 N.C. App. 586, 588, 619 S.E.2d 577, 580 (2005) (citation omitted).

“Generally, a party seeking to enforce a contract has the burden of proving the

essential elements of a valid contract.” Orthodontic Ctrs. Of Am., Inc. v. Hanachi,

151 N.C. App. 133, 135, 564 S.E.2d 573, 575 (2002) (citation omitted).

“The heart of a contract is the intention of the parties, which is ascertained by

Justice Tyson, dissenting

the subject matter of the contract, the language used, the purpose sought, and the

situation of the parties at the time.” Pike v. Wachovia Bank & Trust Co., 274 N.C. 1,

11, 161 S.E.2d 453, 462 (1968) (citations omitted).

II. Savings Provision

The 1986 Agreement provided:

6. The failure of either party hereto to enforce any of the provisions of this Agreement or the waiver therof in any instance by either party shall not be construed as a general waiver or relinquishment on its part of any such provisions, but the same shall, nevertheless, be and remain in full force and effect.

Defendant purchased by agreement dated 25 February 2011 assets from CWS,

including the Carolla Light Water System under the operative 1986 Agreement. On

18 July 20 Defendant entered into an Assignment and Assumption of Developer

Agreements, Contracts and Leases. In North Carolina, all contracts are presumed to

be assignable and unless otherwise agreed, a successor-in-interest of an assignment

is subject to all obligations of its predecessor. This Court affirmed a trial court

instruction for the agreement to "be construed against the party who drafted the

instrument ... [although the current party] did not in fact draft the . . . agreement."

Mosley & Mosley Builders, Inc. v. Landin Ltd., 97 N.C. App. 511, 525, 389 S.E.2d 576,

584 (1990). See: Rogers v. Hall, 227 N.C. 363, 42 S.E.2d 347 (1947). Defendant

assumed all of CWS’s obligations under the 1986 Agreement.

Defendant received its first tap-in fee from a Carolla Light Water System

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customer on 6 September 2011. Defendant did not reimburse Plaintiff for this fee or

make any other payments, reimbursements, or disbursements to Plaintiff as required

under the Agreement it had accepted and adopted..

Plaintiff correctly asserts payments and reimbursements received by

Defendant from and after 6 March 2021 are not barred by the statute of limitations.

Plaintiff alleges four payments of $58,247.00 on 21 December 2021, 28 February

2022, 4 November 2022, and 3 May 2022.

III. Installment Contract

Plaintiff asserts the 1986 Agreement is an installment contract. Our Supreme

Court has described an “installment contract” as

one which requires or authorizes the delivery of goods in separate lots to be separately accepted. In such cases the statute of limitations runs against each installment as it becomes due, thus permitting actions falling within the limitations period while precluding those that fall outside of it. Though the term “installment contract” technically applies to contracts for the sale of goods, for limitations purposes this principle has been extended to some agreements falling outside the technical definition.

Christenbury Eye Ctr., P.A. v. v. Medflow, Inc., 370 N.C. 1, 7, 802 S.E.2d 888, 892-93

(2017) (internal citation and quotation marks omitted).

Plaintiff argues they entered an installment contract, citing: Christenbury;

Martin v. Ray Lackey Enters., Inc., 100 N.C. App. 349, 396 S.E.2d 327 (1990); U.S.

Leasing Corp. v. Everett, Creech, Hancock, and Herzig, 88 N.C. App. 418, 363 S.E.2d

665 (1988); and Liptrap v. City of High Point, 128 N.C. App. 353, 496 S.E.2d 297

3

(1998). The majority’s opinion holds “the terms of the 1986 Agreement set out that

Plaintiff would install the water and sewer systems in exchange for Defendant’s

promise to make certain payments and reimbursements. Just as the agreement in

Christenbury lacked any indication the parties intended their promises to be

divisible, severable, or otherwise capable of apportionment, the 1986 Agreement

contains no provision.”

The majority’s opinion focuses on Defendant’s “decision” to connect customers

to the utility system to trigger the payment provisions. Defendant’s allowing a

developer to access the system is not a discretionary decision. If a developer meets

the qualifications and can pay the fees, they are allowed access. Unlike in

Christenbury. the payments are self-executing and are due six months after a

connection and are not dependent upon any decision by Defendant.

The majority’s opinion also opines this case is analogous to Liptrap because

“there is no express language defining what constitutes a breach of the [1986]

Agreement, nor an express provision allowing Plaintiff to seek recovery of the

payments as they become due.” The 1986 Agreement unambiguously provides

Defendant “shall reimburse [Plaintiff] for the water and sewer facilities and

equipment installed pursuant to this Agreement” semi-annually. (emphasis

supplied). (Doc Ex. p 2) Unlike in Liptrap, the intent of the parties is that a breach

occurs when Defendant fails to make the agreed-to semi-annual payment following

a connection fee.

4

Like our Court held in Martin and U.S. Leasing Corp. an installment and

executory contract exists here. In Martin, the language of the lease made it clear the

“intent of the parties was that breach would occur when the lessee failed to pay the

real estate taxes levied against the property as they came due.” Martin, 100 N.C.

App. at 354, 396 S.E.2d at 331. The lease in Martin provides the lessee, “in addition

to rent, . . . is to pay all real estate taxes levied upon and assessed against the

premises.” Id. Here, the 1986 Agreement provides: “[Defendant] shall reimburse

[Plaintiff] for the water and sewer facilities and equipment installed pursuant to this

Agreement as follows. . .” (emphasis supplied). The language of the 1986 Agreement

and the language of the lease in Martin are analogous.

In U.S. Leasing Corp., this Court held the statute of limitations did not bar the

defaults which occurred within the applicable period. U.S. Leasing Corp., 88 N.C.

App. at 421-22, 363 S.E.2d at 667. The majority’s opinion holds “A provision in the

parties’ agreement expressly allowed the plaintiff ‘to seek recovery of each payment

as it became due.’” However and in context, this complete quote was used to refute

an argument any missed payment advanced all subsequent payments:

We likewise reject the defendant-appellees’ argument that the first failure to make payment in February 1982 automatically matured all remaining obligations under the contract and started the statute of limitations running against the entire debt. Defendant-appellees base their argument upon a lease provision giving plaintiff the optional remedy of suing, upon any breach by defendants, for all “amounts due and to become due.” However, we find nothing in this provision or elsewhere in the agreement

5

which operates to automatically accelerate all future obligations under the contract. To the contrary, another option available to plaintiff by express terms of the agreement was to seek recovery of each payment as it became due.

The flaw in both sides' positions is that they each interpret contract provisions concerning remedies for breach as bearing upon the accrual of plaintiff's cause of action. However, as previously stated, the cause of action accrues when the breach occurs, and the contract in question clearly defines breach or default as failure to make the required payments.

Id. at 426-27, 363 S.E.2d at 669-70.

IV. Conclusion

Plaintiff’s case is not properly dismissed. Any purported delay or waiver by

Plaintiff “shall not be construed as a general waiver or relinquishment on its part of

any such provisions, but the same shall, nevertheless, be and remain in full force and

effect.” Plaintiff’s claims arising within the presumptive applicable two-year period,

under N.C. Gen. Stat. § 1-53(1) (2025), are not barred by the statute of limitations.

The order of the superior court is lawfully reversed. I respectfully dissent.

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