NO. COA06-1676

NORTH CAROLINA COURT OF APPEALS

Filed: 18 September 2007

    Appeal by plaintiff from an order entered 6 October 2006 by Judge Paul L. Jones in New Hanover County Superior Court. Heard in the Court of Appeals 22 August 2007.

    Vaiden P. Kendrick, for plaintiff-appellant.

    Murchison, Taylor & Gibson, PLLC, by Andrew McVey, for defendants-appellees.

    CALABRIA, Judge.

    Plaintiff-appellant Eric Neblett (“Plaintiff”) appeals from an Order granting defendants' motion to dismiss plaintiff's complaint. Since we find that plaintiff's claims are time-barred by the ten year statute of repose in N.C. Gen. Stat. § 1-52(16) we affirm.
    Plaintiff retained defendant-appellee Hanover Inspection Service, Inc. (“Hanover”) in October 1995 to inspect a residence at 1704 Middle Sound Loop Road, Wilmington, North Carolina (“the property”). Defendant-appellee John Harrington Wilson (“Wilson”)performed an inspection of the property on or about 17 October 1995 in anticipation of plaintiff's purchase of the property. Plaintiff alleges that Wilson's inspection report described the property's plumbing to be constructed from copper pipes. On or about 24 June 2003, plaintiff's pipes leaked causing damage to his real and personal property. At that time, plaintiff discovered the property's plumbing was constructed from polybutylene pipes. On 7 June 2006, plaintiff filed a complaint in New Hanover County Superior Court alleging a breach of contract claim against Hanover and a negligence claim and a negligent misrepresentation claim against both Hanover and Wilson.
    On 14 August 2006, Hanover and Wilson filed a Motion to Dismiss the plaintiff's complaint pursuant to North Carolina Rule of Civil Procedure 12(b)(6). Superior Court Judge Paul Jones granted the motion and entered an order dismissing the complaint with prejudice on 6 October 2006. Judge Jones found that plaintiff's claims were barred by the six year statute of repose and the three year statute of limitations pursuant to N.C. Gen. Stat. §§ 1-50 and 1-52(5) respectively. The trial court found that plaintiff's last chance to file his complaint would have been 17 October 2001 because his claims were subject to the six year statute of repose in N.C. Gen. Stat. § 1-50. Plaintiff appeals.     Plaintiff assigns error to the trial court's order based on two theories: (1) that his cause of action accrued from the date he discovered the damage and (2) that the court erred in granting defendants' motion to dismiss because the complaint failed to show on its face that his claims were barred by the statute of repose or statute of limitations.
    Plaintiff argues that the six year statute of repose in N.C. Gen. Stat. § 1-50, which applies to improvements to real property, does not apply to claims arising from services by a home inspector. Plaintiff asserts that the court erred in failing to apply N.C. Gen. Stat. § 1-52(16) which measures the statute of limitations from the date of discovery of physical damage or harm to a claimant's property. We disagree.

    Our standard of review on a motion to dismiss for failure to state a claim is de novo review. Leary v. N.C. Forest Prods., Inc., 157 N.C. App. 396, 400, 580 S.E.2d 1, 4 (2003). The court must consider whether, “as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory, whether properly labeled or not.” Harris v. NCNB, 85 N.C. App. 669, 670, 355 S.E.2d 838, 840 (1987) (citation omitted). Dismissal of a complaint is not proper unless “it appears beyond a doubt that theplaintiff could not prove any set of facts to support his claim which would entitle him to relief.” Block v. County of Person, 141 N.C. App. 273, 277-78, 540 S.E.2d 415, 419 (2000) (citation omitted). Dismissal may be proper when it appears from the face of the complaint that plaintiff's claims are barred by a statute of limitations or statute of repose. Cage v. Colonial Bldg. Co., 337 N.C. 682, 683, 448 S.E.2d 115, 116 (1994)(citations omitted); Soderlund v. N.C. School of the Arts, 125 N.C. App. 386, 389, 481 S.E.2d 336, 338 (1997) (citation omitted).
    Statutes of limitations in civil actions are governed by N.C. Gen. Stat. § 1-15(a) which states: “[c]ivil actions can only be commenced within the periods prescribed in this Chapter, after the cause of action has accrued, except where in special cases a different limitation is prescribed by statute.” N.C. Gen. Stat. § 1-15(a) (2006).

    Plaintiff contends N.C. Gen. Stat. § 1-52(16) preserves his cause of action. Section 1-52 states:
Within three years an action --

. . . .

(16) Unless otherwise provided by statute, for personal injury or physical damage to claimant's property, the cause of action, except in causes of actions referred to in G.S. 1-15(c), shall not accrue until bodilyharm 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. Provided that no cause of action shall accrue more than 10 years from the last act or omission of the defendant giving rise to the cause of action.

N.C. Gen. Stat. § 1-52(16) (2006). Under section 1-52(16), a cause of action accrues from the date a claimant's harm or damage “becomes apparent or ought reasonably to have become apparent to the claimant.” Id.
    Hanover and Wilson argue that the trial court correctly dismissed plaintiff's complaint because plaintiff did not plead his claims within the six year statute of repose in N.C. Gen. Stat. § 1-50 (5) or within the ten year statute of repose in N.C. Gen. Stat. § 1-52(16).
    Plaintiff alleges in his complaint that the harm to his property was not apparent until 24 June 2003. Plaintiff argues he had three years from 24 June 2003 to file his complaint. Because he filed it on 7 June 2006 he believes it was filed within the three year limitation provided in the statute, therefore the trial court erred by dismissing his claim. We disagree.
    Subsection 16 of N.C. General Statutes § 1-52 includes a ten year statute of repose. The appellate courts of this state interpret subsection 16 to require that the filing of a cause of action occur within ten years of the defendant's last act oromission. Wilson v. McLeod Oil Co., 327 N.C. 491, 513, 398 S.E.2d 586, 597 (1990) (holding that N.C. Gen. Stat. § 1-52(16) “bars an action filed 'more than 10 years after the last act or omission of the defendant giving rise to the cause of action.'”); Hodge v. Harkey, 178 N.C. App. 222, 224, 631 S.E.2d 143, 145 (2006) (“The plain language of [N.C. Gen. Stat. 1-52(16)] indicates that in cases involving property damage, no cause of action may be brought more than ten years after the defendant's last act or omission.”). Plaintiff filed his complaint on 7 June 2006; this date is more than ten years from defendants' last act in October of 1995. Therefore plaintiff's claims are barred by subsection 16 of Chapter 1-52.
    Plaintiff argues this Court should interpret subsection 16 to require only that the claim accrue within ten years of the last act or omission, and not that the cause of action be filed within ten years of the last act.
    We find this argument unpersuasive. It is well-settled that subsection 16 of N.C. General Statutes § 1-52 requires that the filing of a claim occur within ten years of the defendants' last act. See Wilson, 327 N.C. at 513, 398 S.E.2d at 597; Hodge, 178 N.C. App. at 224, 631 S.E.2d at 145.

    Plaintiff contends in his reply brief, filed pursuant to Rule28(h)(3) of the North Carolina Rules of Appellate Procedure, inter alia, that even if his contract and negligence claims are barred by the ten year statute of repose in section 1-52(16), his negligent misrepresentation claim survives under the three year statute of limitations in subsection five of section 1-52. In support of this argument, plaintiff cites without discussion Barger v. McCoy Hillard & Parks, 346 N.C. 650, 488 S.E.2d 215 (1997).
    In Barger, a group of shareholders filed a complaint against an accounting firm for breach of contract and negligent and fraudulent misrepresentation. 346 N.C. at 654, 488 S.E.2d at 217. The accounting firm argued that the shareholders' claim for negligent misrepresentation was based on professional malpractice and was barred by the three year statute of limitations in N.C. Gen. Stat. § 1-15(c) for professional malpractice claims. 346 N.C. at 664, 488 S.E.2d at 223. The North Carolina Supreme Court held that the shareholders did not have a professional malpractice claim and that N.C. Gen. Stat. § 1-52(5) was applicable. 346 N.C. at 665-66, 488 S.E.2d at 224. N.C. Gen. Stat. § 1-52(5) states that causes of action for “criminal conversation, or for any other injury to the person or rights of another, not arising on contract and not hereafter enumerated” must be brought within three years. N.C. Gen. Stat. § 1-52(5) (2006). Negligent misrepresentation accrues once the claimant “suffers harm because of themisrepresentation, and . . . the claimant discovers the misrepresentation.” 346 N.C. at 666, 488 S.E.2d at 224 (citing Jefferson-Pilot Life Ins. Co. v. Spencer, 336 N.C. 49, 57, 442 S.E.2d 316, 320 (1994)). The court concluded that because the shareholders discovered the misrepresentations in 1990 and filed their claim in 1992, the negligent misrepresentation claim was not barred by the statute of limitations. 346 N.C. at 666, 488 S.E.2d at 224.
    Pursuant to Rule 28, reply briefs are limited to “a concise rebuttal to arguments set out in” the appellee's brief. N.C. R. App. P. 28(h)(3) (2006); Newsome v. N.C. State Bd. of Elections, 105 N.C. App. 499, 504, 415 S.E.2d 201, 203 (1992). “A reply brief is 'intended to be a vehicle for responding to matters raised in the appellees' brief' and is 'not intended to be-and may not serve as-a means for raising entirely new matters.'” Newsome, 105 N.C. App. at 504, 415 S.E.2d at 203-04 (quoting Animal Protection Society v. State of North Carolina, 95 N.C. App. 258, 269, 382 S.E.2d 801, 808 (1989)).
    In the instant case, plaintiff asserted in his brief that the Court should apply the savings provision in section 1-52 (16) to his claims.
The specific limitation applicable to this action, appearing in Chapter 1 of the General Statutes is that contained in N.C. Gen. Stat.§ 1-52. That statute provides that actions for breach of contract and actions for injury to the person or rights of another not arising in contract must be brought within three years of accrual. N.C. Gen. Stat. § 1-52(1) and N.C. Gen. Stat. § 1-52(5). However, N.C. Gen. Stat. § 1-52(16) provides a saving provision where the injury is latent and not apparent at the time of the negligent act which defers the accrual of the statute of limitations, and thus the time at which “physical damage to [plaintiff's] property becomes apparently [sic] or ought reasonably to have become apparent...”

Because neither the appellant's brief, nor the appellees' brief raises the issue of whether N.C. Gen. Stat. § 1-52(5) independently preserves plaintiff's negligent misrepresentation claim, we will not consider this argument.
    Since we conclude that plaintiff's causes of actions are time- barred by the ten year statute of repose under N.C. Gen. Stat. § 1- 52(16), we need not address whether the court erred in applying the six year statute of repose to conclude that plaintiff's last date to file his claim was 17 October 2001.
    Therefore, even if the trial court committed an error of law in applying N.C. Gen. Stat. § 1-50, it is not reversible error because plaintiff's claims are barred by N.C. Gen. Stat. § 1- 52(16).
    Affirmed.
    Judges GEER and JACKSON concur.
    Report per Rule 30(e).

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