Appeal by plaintiff from judgment entered 7 December 2004 by
Judge Addie Harris Rawls in Johnston County District Court. Heard
in the Court of Appeals 29 November 2005.
Whittaker Law Firm, by Malcolm E. Whittaker, for plaintiff-
appellant.
No brief filed on behalf of defendant-appellee.
SMITH, Judge.
Alec Whittaker (“plaintiff”) appeals the trial court's
dismissal of his action for monetary damages for defective
installation and workmanship of a porch roof on his residence. For
the reasons stated herein, we affirm.
The pertinent factual and procedural history is as follows:
On 22 January 1991, plaintiff contracted with Robert W. Todd d/b/a/
Southern Exteriors (“defendant”) for defendant to replace the porchroof at Whittaker's home. The written contract provides: “All
workmanship guaranteed for as long as you own home; materials as
specified by manufacturer.” While painting his house in 2003,
plaintiff discovered one corner of the seal around his porch roof
had failed and water had caused rot. Plaintiff contacted defendant
by letter dated 27 August 2003 seeking repair of the roof.
Defendant did not provide warranty service. On 11 November 2003,
plaintiff commenced this action by filing a complaint for money
owed in small claims court. Following an award to plaintiff in
small claims court, defendant appealed. The District Court granted
defendant's motion to dismiss concluding plaintiff's claim was
barred by N.C. Gen. Stat. § 1-50(a)(5)a. Plaintiff appeals.
Plaintiff presents the following issues on appeal: (I)
whether N.C. Gen. Stat. § 1-50(a)(5)a limits defendant's express
warranty; (II) whether defendant waived the defense of the statute
of repose; and (III
) whether the trial court abused its discretion
by denying plaintiff's motion for change of venue.
[1] N.C. Gen. Stat. § 1-50(a)(5)a (2003) provides 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. Gen. Stat. § 1-50(a)(5)a “is designed to limit the potential
liability of architects, contractors, and perhaps others in theconstruction industry for improvements made to real property.”
Lamb v. Wedgewood South Corp.,
308 N.C. 419, 427-28
, 302 S.E.2d
868, 873 (1983).
The statute is a statute of repose and provides
an outside limit of six years for bringing an action coming within
its terms.
Id.
In the instant case, plaintiff contends the statute of repose
does not bar this action because defendant provided an express
warranty guaranteeing the workmanship for as long as plaintiff owns
the home. We disagree.
Plaintiff commenced this action by filing a complaint in the
small claims division for “money owed”, not breach of warranty.
Plaintiff's action is barred by the statute of repose which
prohibits an action to recover damages for “the defective or unsafe
condition of an improvement to real property” that is not brought
within six years of “substantial completion of the improvement.”
N.C. Gen. Stat. § 1-50(a)(5)a. Plaintiff cites
Haywood Street
Redevelopment Corp. v. Peterson Co., 120 N.C. App. 832, 463 S.E.2d
564 (1995),
disc. review denied, 342 N.C. 655, 467 S.E.2d 712
(1996) in asserting the statute of repose does not bar the instant
action. In
Haywood, the plaintiff sued for negligence, breach of
contract, and breach of express and implied warranties. This Court
held plaintiff's breach of warranty claims were not barred by the
statute of limitations because the warranty was for a specified
period of time and each day there was a breach a new cause of
action accrued.
Id. at 836-7, 463 S.E.2d at 566-7. In the instant
case, however, plaintiff filed a complaint for monetary damagesonly and did not sue for breach of warranty. Thus, plaintiff's
reliance on
Haywood is misplaced. We conclude plaintiff's action
for monetary damages is barred by the statute of repose, N.C. Gen.
Stat. § 1-50(a)(5)a.
[2] Plaintiff next contends defendant waived “his affirmative
defense of 'Statute of Repose' under N.C. Gen. Stat. § 1A-1, Rule
8(c) because he did not raise it until the day of trial.” We
disagree.
In
Tipton & Young Construction Co. v. Blue Ridge Structure
Co., 116 N.C. App. 115, 446 S.E.2d 603 (1994),
aff'd per curiam,
340 N.C. 257, 456 S.E.2d 308 (1995), this Court held that a statute
of repose “is a condition precedent to a party's right to maintain
a lawsuit.”
Id. at 117, 446 S.E.2d at 605. The Court also held
that a plaintiff is required to plead and prove that the statute of
repose is not a bar to the maintenance of the action.
Id. Thus,
the statute of repose is not an affirmative defense and defendant
was not required to specially plead it.
Having concluded the instant action is barred by the statute
of repose, N.C. Gen. Stat. § 1-50(a)(5)a, and that the trial court
did not err in dismissing the action, we do not address plaintiff's
remaining assignment of error. The judgment of the trial court is
affirmed.
Affirmed.
Judges WYNN and STEELMAN concur.
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