An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-113


Filed: 3 February 2004


v .                         Cabarrus County
                            No. 01 CVD 1747

    Appeal by plaintiff from judgment entered 14 October 2002 by Judge Michael G. Knox in Cabarrus County District Court. Heard in the Court of Appeals 1 December 2003.

    Nancy R. Gaines for plaintiff-appellant.

    Richard M. Koch for defendants-appellees.

    MARTIN, Judge.

    Plaintiff brought this action on 27 July 2001 by filing a pro se complaint, which was amended through counsel on 28 August 2001, prior to defendants' filing answer. In her complaint and amended complaint, plaintiff alleged, in summary, that on or about 8 February 1997 she had entered into a contract with defendants to perform certain interior design work at defendants' home at 147 Overbrook Drive, Concord, North Carolina. She alleged that defendants notified her on 29 July 1998 that they no longer required her services. Plaintiff alleged that she was owed $43,159.16 for goods and services rendered pursuant to the contract.     Defendants moved to dismiss the action, asserting thatthe attachments to plaintiff's complaint showed that the last date that she rendered services to them pursuant to the contract was 23 June 1998, and alleging that plaintiff's claims were barred by the three year statute of limitations “which begins to run from the date of the last service, or from June 23, 1998.”     
    In support of their motion, defendants filed the affidavit of defendant Kevin Belverd, together with exhibits; in response, plaintiff submitted an affidavit in opposition to the motion. From those affidavits and the exhibits attached to plaintiff's complaint, all of which were considered by the trial court, it appears undisputed that the parties entered in a letter agreement for services to be rendered by plaintiff in return for compensation as outlined in the agreement. The agreement provided, inter alia,
        A retainer of five hundred dollars ($500.00) is requested prior to beginning a new project. This amount will be credited to your account on the final service invoice. Service invoices will be presented once or twice a month depending on the number of hour [sic] accumulated.

The retainer was paid 18 February 1997. Plaintiff submitted an invoice on 18 April 1997, which was promptly paid by defendants. Subsequent invoices dated 27 December 1997, 8 January 1998, and 18 February 1998 were not paid, but plaintiff continued to provide services until 23 June 1998. After being notified of the termination of the contract on 29 July 1998, plaintiff submitted an invoice the same date which included a credit for the $500.00 retainer. In October 1998, defendants tendered an amount less than the amount of the invoice in an effort to compromise; plaintiffdeclined to accept the payment.
    The trial court entered an “Order and Judgment” in which it found facts, including: “[t]his action was commenced more than three years from the date of the last work performed by the plaintiff for the defendants.” The trial court concluded there was “no genuine issue of material fact as to the date of commencement of the running of the Statute of Limitations . . . ” and that plaintiff's action was barred by N.C. Gen. Stat. § 1-52. Summary judgment was granted in defendants' favor and plaintiff's action was dismissed. Plaintiff appeals.


    The sole issue raised by this appeal is whether the trial court erred in holding, as a matter of law, that plaintiff's action was barred by the statute of limitations because it was commenced more than three years from the date she last performed services under the contract. The trial court did not address, nor do we, issues relating to the merits of her claim. For the following reasons, we affirm in part the order of summary judgment, reverse in part, and remand this case to the trial court for further proceedings on the merits.
    A statute of limitations defense may be raised by a motion to dismiss under N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) if it appears on the face of the complaint that the statute bars the claim. F.D.I.C. v. Loft Apartments, 39 N.C. App. 473, 475, 250 S.E.2d 693, 694-695, cert. denied, 297 N.C. 176, 254 S.E.2d 39 (1979). However, when the trial court considers matters outside thepleadings, a motion to dismiss must be treated as one for summary judgment pursuant to N.C. Gen. Stat. § 1A-1, Rule 56. Ronald G. Hinson Electric, Inc. v. Union County Bd. of Educ., 125 N.C. App. 373, 375, 481 S.E.2d 326, 328 (1997). Summary judgment is proper where “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) (2003).

    The statute of limitations for an action for breach of contract is three years from the date the cause of action accrues. N.C. Gen. Stat. § 1-52(1). The statute begins to run on the date the contract is breached and the injured party is at liberty to sue. Glover v. First Union National Bank, 109 N.C. App. 451, 455, 428 S.E.2d 206, 208 (1993). “In no event can a statute of limitations begin to run until plaintiff is entitled to institute action.” Penley v. Penley, 314 N.C. 1, 20, 332 S.E.2d 51, 62 (1985).
    The contract in this case provided for periodic invoices to be submitted by plaintiff and paid by defendants. The materials before the trial court showed that plaintiff had submitted three invoices, in December 1997, January 1998, and February 1998, which were not paid by defendants. However, plaintiff continued to perform until at least 23 June 1998, and defendants continued to accept her performance until notifying her they were terminatingthe contract on 29 July 1998. “Strict performance of a contract by one party may be waived by the other party, in which case there is, to the extent of the waiver, no right to damages for the failure to perform strictly.” Southeastern Drywall, Inc. v. Construction Company, 25 N.C. App. 538, 541, 214 S.E.2d 303, 305 (1975). Thus, plaintiff had waived any breach on defendants' part occasioned by their failure to make timely payment of the December, January and February invoices. Moreover, the contract provided for a “final service invoice” to be submitted, which was to contain a credit for the retainer initially paid by defendants. Upon defendants' termination of the contract, plaintiff submitted a final invoice containing the credit, as provided by the contract, on 29 July 1998. Her right to institute an action for breach of the contract could have accrued no earlier than the date upon which defendants refused to pay the amount allegedly due plaintiff under the contract. Therefore, plaintiff's action for breach of contract, instituted 27 July 2001, was instituted within three years of the date of defendants' alleged breach and was not barred by the statute of limitations. Summary judgment dismissing the claim must be reversed.

    Plaintiff also sought to state a claim for relief based on the theory of quantum meruit. The three year statute of limitations contained in N.C. Gen. Stat. § 1-52 also applies to an action upon an implied contract or quantum meruit. N.C. Gen. Stat. § 1-52(1). A claim to recover compensation upon quantum meruit for servicesrendered, where there has been no definite arrangement as to the time for the payment of compensation, accrues as the services are rendered. See Hicks v. Hicks, 13 N.C. App. 347, 185 S.E.2d 430 (1971). Therefore, a claim for services rendered more than three years prior to the date the action is commenced is barred. Since the complaint does not allege, nor do the affidavits show, that any services for which plaintiff seeks recovery were rendered within three years of the date she commenced this action, her claim based on quantum meruit is barred by N.C. Gen. Stat. § 1-52, and summary judgment as to such claim is affirmed.
    Affirmed in part, reversed in part, and remanded.
    Chief Judge EAGLES and Judge LEVINSON concur.
    Chief Judge EAGLES concurred prior to 31 January 2004.
    Report per Rule 30(e).

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