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).
A.
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.
B.
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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