Statute of Limitations_waste_accrual of action_first discovery of
damage
A 2000 counterclaim for permissive waste by a remainderman
against the estate of the life tenant was barred by the statute
of limitations where the remainderman admitted visiting the home
in 1992 and noticing that the porches and roof were rotting, that
boards needed replacing, and that the roof needed “sheathing.” A
remainderman's action for waste accrues from the date of the
first act or omission of the life tenant and N.C.G.S. § 1-52 (16)
does not change the fact that the injury springs into existence
and completes the cause of action once some physical damage has
been discovered. Further damage discovered in 1999, after the
life tenant's death, does not permit the remainderman to
circumvent the statute of limitations.
Perry, Bundy, Pyler & Long, L.L.P., by H. Ligon Bundy, for
plaintiff-appellee.
Griffin, Smith, Caldwell, Helder & Lee, P.A., by W. David Lee
and Annika M. Goff, for defendant-appellant.
TIMMONS-GOODSON, Judge.
William Henry Blythe, Jr. (“defendant”) appeals from an order
of the trial court granting summary judgment in favor of Robert
Sharon McCarver (“plaintiff”), executor of the estate of Robert
Alexander McCarver.
The relevant factual and procedural background is as follows:
In 1960, Lena Blythe (“Lena”) inherited a life estate in land
located at 2002 Billy Howie Road in Waxhaw, North Carolina. Lena's nephews, defendant and Larry F. Blythe (“Larry”), acquired
the remainder interest with each owning a one-half interest in the
property. The property consisted of 29.5 acres of land, a two-
story house and three outbuildings. On 13 April 1964, defendant
and Larry executed a deed conveying a life estate in the property
to Lena's husband, Robert Alexander McCarver (“decedent”),
retaining the remainder in fee simple. The conveyance was subject
to the life estate held by Lena. Lena died in 1992, and Robert
continued to occupy the property until his death in 1999.
In his deposition, defendant testified that he visited the
property several times over the two months following Lena's death
in 1992. During his visits, defendant stated that he observed
deterioration in the home and indicated that the porches were
“getting in bad shape.” Defendant did not visit the property
again until 1999 and at that time, defendant testified, the
property was in “total disrepair.”
Plaintiff commenced an action to recover personal property
belonging to decedent's estate on 12 April 1999. Subsequently,
defendant filed a counterclaim on 15 March 2000 requesting damages
for permissive waste alleging that decedent failed to exercise
reasonable precautions to preserve the property. Additionally,
defendant alleged that decedent failed to act with due regard
toward the rights of the remaindermen. The failure to act,
defendant asserted, extensively and permanently destroyed the
estate.
Plaintiff filed a motion for summary judgment regarding
defendant's counterclaim. In support of the motion, plaintiffoffered the affidavit of Warren Carter Plyler (“Plyler”) who
visited the home on a regular basis for over thirty years. Plyler
indicated that he noticed a slow deterioration in the property for
many years prior to Lena's death. He indicated that the property
was in “poor condition” at Lena's death and that the value of the
property did not “appreciably change” between 1992 and 1999. On
22 June 2000 the trial court entered an order granting summary
judgment in favor of plaintiff.
Defendant's sole contention on appeal is that summary judgment
was improper because the trial court erred in finding that his
claim for waste against a life tenant, was barred by the statute of
limitations.
It is well established that “[s]ummary judgment is proper 'if
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.'” Thompson v.
Three Guys Furniture Co., 122 N.C. App. 340, 344, 469 S.E.2d 583,
585 (1996) (quoting N.C. Gen. Stat. § 1A-1, Rule 56 (c)). The
moving party has the burden of “positively and clearly showing that
there is no genuine issue as to any material fact and that he or
she is entitled to judgment as a matter of law.” James v. Clark,
118 N.C. App. 178, 180, 454 S.E.2d 826, 828, disc. review denied,
340 N.C. 359, 458 S.E.2d 187 (1995). All the evidence presented
is “viewed in the light most favorable to the non-movant.” Bruce-
Terminix Co. v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504 S.E.2d574, 577 (1988).
“Whether a cause of action is barred by the statute of
limitations is a mixed question of law and fact.” Hatem v. Bryan,
117 N.C. App. 722, 724, 453 S.E.2d 199, 201 (1995). However, when
the bar is properly pleaded and the facts are admitted or are not
in conflict, the question of whether the action is barred becomes
a question of law, and summary judgment is appropriate. Pembee
Mfg. Corp. v. Cape Fear Constr. Co., 69 N.C. App. 505, 508, 317
S.E.2d 41,43 (1984), aff'd, 313 N.C. 488, 329 S.E.2d 350 (1985).
Defendant's claim against decedent for waste is based upon a
theory that the decedent failed to properly maintain the property
in a state of good repair, known as permissive waste. Norris v.
Laws, 150 N.C. 599, 64 S.E. 499 (1909). The applicable statute of
limitations for permissive waste is three years. Sherrill v.
Connor, 107 N.C. 630, 12 S.E. 588 (1890). A remainderman's action
for waste accrues from the date of the first act or omission of the
life tenant. Id. Although defendant does not contest the
application of a three-year statute of limitations, he contends
that it begins to run when the physical damage to the property is
discovered. Under N.C. Gen. Stat. § 1-52(16)(1999), which allows
accrual of actions for physical damage of property when the damage
is discovered, defendant contends his cause of action did not
accrue until Robert's death in 1999. Defendant asserts that only
at Robert's death did his interest become possessory which is when
he had a reasonable opportunity to discover the waste. For thereasons discussed below, we disagree.
“'[W]here bodily injury to the person or a defect in property
is an essential element of the cause of action', the three-year
statute of limitations found in [N.C. Gen. Stat. § 1-52] should be
utilized.” Hanover Insurance Co. v. Amana Refrigeration, Inc.,
106 N.C. App. 79, 82, 415 S.E.2d 99, 101 (quoting Bernick v.
Jurden, 306 N.C. 435, 444-45, 293 S.E.2d 405, 411-12 (1982)) disc.
review denied, 332 N.C. 344, 421 S.E.2d 147 (1992). Section 1-52
(16) provides that a cause of action for personal injury or
physical property damage “shall not accrue until bodily harm to the
claimant or physical damage to his property becomes apparent or
ought reasonably to have become apparent to the claimant, whichever
event first occurs.” N.C. Gen. Stat. § 1-52(16)(1999). The
primary purpose of the discovery rule set forth in N.C. Gen. Stat.
§ 1-52 (16) “is that it is intended to apply to plaintiffs with
latent injuries.” Robertson v. City of High Point, 129 N.C. App.
88, 91, 497 S.E.2d 300, 302, disc. review denied, 351 N.C. 370, 510
S.E.2d 654(1998).
In applying the discovery rule, it must be determined when
defendant knew or should have known the cause of action accrued.
Under common law, “[w]hen the right of the party is once violated,
even in ever so small a degree, the injury, in the technical
acception of that term, at once springs into existence and the
cause of action is complete.” Mast v. Sapp, 140 N.C. 533, 540, 53
S.E. 350, 352 (1906). “G.S. § 1-52 (16) modifies [the common law]
rule in the case of latent damage only to the extent that itrequires discovery of physical damage before a cause of action can
accrue.” Pembee, 69 N.C. App. at 508, 317 S.E.2d at 43. However,
“[i]t does not change the fact that once some physical damage has
been discovered, the [damage or] the injury springs into existence
and completes the cause of action.” Pembee at 509, 317 S.E.2d at
43.
In Pembee, plaintiffs had contracted with defendants to
construct an industrial plant. Plaintiff filed an action in 1981
alleging that faulty construction had caused the roof to leak.
Plaintiff found leaks in the roof in 1973, 1976 and 1977.
Plaintiff argued that these leaks were not of the same nature as
those discovered in 1980. Therefore, under G.S. § 1-52 (16), a
cause of action did not accrue until the defect could have
reasonably been apparent. This Court ruled that the leaks in 1973,
1976, and 1977 should have made it apparent that the roof was
defective. Id. Thus by 1976, plaintiff's cause of action for the
property damage accrued. The Court further stated that “this
statute serves to delay the accrual of a cause of action in the
case of latent damages until the plaintiff is aware he has suffered
damage, not until he is aware of the full extent of the damages
suffered.” Id.
Similarly, in the case sub judice, defendant was aware of the
deterioration occurring to the property before and after Lena's
death in 1992. In his deposition, defendant testified that he knew
as early as 1992 that the property was deteriorating and causing
permanent damage to his remainder interest. He admitted visitingthe home in 1992 and noticing that the porches and the roof were
rotting, noting that the boards needed replacing and roof needed
“sheathing.” Defendant conceded that “little things could have
been done early that would have kept the big things from
happening.” The evidence clearly establishes that defendant knew
of damage to the property in 1992 and any further damage discovered
in 1999, “does not permit [defendant] to circumvent the bar of the
statute of limitations.” Pembee at 509, 317 S.E.2d at 43. By
failing to institute this action within three years of discovering
the alleged waste in 1992, defendant is barred by the three-year
statute of limitations for permissive waste. Defendant is
therefore not entitled to the protection of the discovery rule
outlined in N.C. Gen. Stat. § 1-52 (16).
Therefore, summary judgment in favor of plaintiff was
appropriate. Based on the foregoing analysis, the trial court's
decision is affirmed.
Affirmed.
Chief Judge EAGLES and Judge THOMAS concur.
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