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    "judges": [
      "Judges MCCULLOUGH and TYSON concur."
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    "parties": [
      "GARY HENSLEY, Plaintiff v. RAY\u2019S MOTOR COMPANY OF FOREST CITY, INC., d/b/a Applegate Mobile Homes, Defendant"
    ],
    "opinions": [
      {
        "text": "CALABRIA, Judge.\nOn 8 January 1994, Gary Hensley (\u201cplaintiff\u201d) entered into a contract to purchase a mobile home from Ray\u2019s Motor Company of Forest City, Inc., d/b/a Applegate Mobile Homes (\u201cApplegate\u201d), a North Carolina corporation engaged in the sale and distribution of mobile homes. The mobile home was manufactured by Southern Energy Homes of North Carolina, Inc., d/b/a Imperial Homes (\u201cImperial\u201d). On the back of the contract, under \u201cAdditional Terms and Conditions,\u201d a one-year period of limitation clause provided the following: \u201cI [the purchaser] understand and agree that if either of us [the purchaser and seller] should breach this contract \u2014 the other of us shall have only one year after the occurrence of that breach in which to commence an action for a breach of this contract.\u201d\nThe mobile home was delivered and set up in April 1994. Plaintiff immediately noticed problems and notified the Department of Insurance. Throughout the 1994 calendar year, plaintiff continued to observe and report defects in the mobile home to Imperial, and Imperial made certain repairs. On 2 December 1994, Imperial and Applegate were notified by the Department of Insurance to investigate and correct problems reported by plaintiff. Thereafter, the Department of Insurance notified plaintiff they had received further information, and it was their belief the problems had been resolved. More importantly, the Department of Insurance provided plaintiff a final opportunity to respond if the information was unsatisfactory. When plaintiff failed to respond, the Department of Insurance closed plaintiffs file.\nOn 23 and 27 March 1995, Imperial wrote to plaintiff in order to set up a time when representatives from Imperial and Applegate could inspect plaintiffs home to address his remaining items of concern. Imperial attempted to contact plaintiff on at least five occasions in order to either view the home and have a contractor make the necessary repairs or settle the continuing problems with a cash settlement. Correspondence with plaintiffs attorney indicated plaintiff wanted a new mobile home or a full refund, both of which Imperial was unwilling to provide.\nOn 27 October 1997, over three years after delivery of the home and discovery of the defects, plaintiff filed suit in Cleveland County District Court against Imperial and Applegate. Imperial and Applegate answered the complaint and moved to dismiss plaintiffs claims, asserting as an affirmative defense that the claim was barred by the statute of limitations. On 15 September 2000, the trial court granted Applegate\u2019s motion to dismiss but denied Imperial\u2019s motion to dismiss. Plaintiff filed a notice of voluntary dismissal against Imperial, then appealed the trial court\u2019s granting of Applegate\u2019s motion.\nIn light of evident confusion in the record as to the procedural context of the trial court\u2019s action, we note that since the trial court was presented with affidavits and exhibits and did not exclude matters outside the pleadings, we treat the motion as one for summary judgment pursuant to Rule 56 of the North Carolina Rules of Civil Procedure. Baugh v. Woodard, 56 N.C. App. 180, 287 S.E.2d 412 (1982).\nSummary judgment is appropriate where \u201cthe 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.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (2001). \u201cThe rule is designed to permit penetration of an unfounded claim or defense in advance of trial and to allow summary disposition for either party when a fatal weakness in the claim or defense is exposed.\u201d Caldwell v. Deese, 288 N.C. 375, 378, 218 S.E.2d 379, 381 (1975). The party moving for summary judgment has the burden of showing that there is no genuine issue as to any material fact. Dixie Chemical Corp. v. Edwards, 68 N.C. App. 714, 715, 315 S.E.2d 747, 749 (1984).\n\u201cStatutes of limitations are inflexible and unyielding. They operate inexorably without reference to the merits of plaintiff\u2019s cause of action.\u201d Shearin v. Lloyd, 246 N.C. 363, 370, 98 S.E.2d 508, 514 (1957). \u201cThe purpose of a statute of limitations is to afford security against stale demands, not to deprive anyone of his just rights by lapse of time.\u201d Id., 246 N.C. at 371, 98 S.E.2d at 514. In the instant case, the trial court concluded plaintiff had filed his cause of action outside of the applicable statute of limitations.\nOn appeal, plaintiff asserts three arguments: (I) the mobile home was an improvement to property; therefore, the applicable standard of limitations is six years; (II) the contract for the mobile home was primarily a contract for services; and (III) even if the contract is governed by North Carolina\u2019s Uniform Commercial Code (\u201cUCC\u201d) as a transaction in goods, Applegate is estopped from pleading the statute of limitations.\nI. Nature of the Mobile Home\nPlaintiff contends the purchase and setup of a mobile home is an improvement to real property, requiring a six-year statute of limitations as an action to \u201crecover damages based upon or arising out of the defective or unsafe condition of an improvement to real property . . . .\u201d N.C. Gen. Stat. \u00a7 1-50(a)(5) (2001). Traditionally, the law treats a mobile home not as an improvement to real property but as a good, defined and controlled by the UCC as something \u201cmovable at the time of identification to the contract for sale . . . .\u2019\u2019N.C. Gen. Stat. \u00a7 25-2-105(1) (2001). For example, this Court determined a mobile home was a good, the sale of which was controlled as a transaction under the UCC. Alberti v. Manufactured Homes, Inc., 329 N.C. 727, 732, 407 S.E.2d 819, 822 (1991). Moreover, we have \u201cnote[d] that prior decisions of this Court and our Supreme Court have classified a mobile home as a \u2018motor vehicle\u2019 for purposes of interpreting the application of our motor vehicle laws to mobile homes.\u201d Hughes v. Young, 115 N.C. App. 325, 328, 444 S.E.2d 248, 250 (1994) (citing Peoples Sav. & Loan Ass\u2019n v. Citicorp Acceptance Co., 103 N.C. App. 762, 407 S.E.2d 251 (1991); King Homes, Inc. v. Bryson, 273 N.C. 84, 159 S.E.2d 329 (1968)).\nWe have stated that under some circumstances, mobile homes can be considered realty and thereby could constitute an improvement to real property. Hughes, 115 N.C. App. at 328, 444 S.E.2d at 250. These circumstances include where a plaintiff shows either (1) annexation of the mobile home to land with the intent that it be permanent or (2) circumstances surrounding the association between the land and the mobile home or the relationship between the parties otherwise justifies treating the mobile home as realty which is to become or is part of the land. Id. In the instant case, plaintiff has made no allegations that the mobile home was permanently affixed to the property. Additionally, plaintiff failed to show any relationship between the parties or between the land and the mobile home which would otherwise justify treating the mobile home as an improvement to the land on which it has been placed. In light of our traditional treatment of mobile homes and absent allegations justifying the characterization of the mobile home as realty, we hold the plaintiff\u2019s mobile home does not constitute an improvement to land.\nII. Mixed Contract\nAlternatively, plaintiff argues the sales contract for the mobile home was primarily a contract for services because Applegate delivered and set up the mobile home. The contract in the instant case is a mixed contract in that it encompassed both the sale of a good (i.e. the mobile home) and the provision of services (i.e. the delivery and setup). Accordingly, this Court must determine whether the contract is controlled by the UCC as a sale of goods or is governed by the common law of contracts as a service contract.\nThe scope of the UCC is limited to \u201ctransactions in goods\u201d and does not apply to contracts for the provision of services. N.C. Gen. Stat. \u00a7 25-2-102 (2001). The leading case on the UCC\u2019s applicability to contracts which involve both goods and services is Bonebrake v. Cox, 499 F.2d 951 (8th Cir. 1974). In Bonebrake, the Court determined a contract for both goods and services should be considered a \u201csale of goods\u201d under the UCC because\n[the] test for inclusion or exclusion is not whether [the sale of goods and the provision of services] are mixed, but, granting that they are mixed, whether their predominant factor, their thrust, their purpose, reasonably stated, is the rendition of service, with goods incidentally involved ... or is a transaction of sale, with labor incidentally involved ....\nBonebrake, 499 F.2d at 960. While North Carolina has yet to expressly adopt the so-called \u201cpredominant factor\u201d test set out in Bonebrake, previous decisions by North Carolina courts accord with the test. See, e.g., Batiste v. Home Products Corp., 32 N.C. App. 1, 6, 231 S.E.2d 269, 272 (1977) (examining the \u201cessence of the relationship\u201d between a physician and a patient to determine whether the prescription of medication by the physician was the sale of goods or the provision of services); HPS, Inc. v. All Wood Turning Corp., 21 N.C. App. 321, 324, 204 S.E.2d 188, 189 (1974) (treating a contract to furnish and install a boiler conversion system as a sale of goods). Surveying the jurisdictions which have addressed mixed contracts reveals the Bonebrake test has been overwhelmingly adopted. David J. Marchitelli, Annotation, Causes of Action Governed by Limitations Period in UCC \u00a7 2-725, 49 A.L.R.5th 1, 102-06 (1997). We expressly adopt the test enunciated in Bonebrake as the appropriate test to determine whether the UCC controls the rights of the parties to a contract involving both the sale of goods and the provision of services.\nAccordingly, where the predominant factor of a contract is the rendition of services with the sale of goods incidentally involved, the UCC is not applicable. However, where the predominant factor of the contract is the sale of goods with the provision of services incidentally involved, the UCC controls.\nFactors which have been used in determining whether a mixed contract should be governed by the UCC include the following: \u201c(1) the language of the contract, (2) the nature of the business of the supplier, and (3) the intrinsic worth of the materials.\u201d See, e.g., Princess Cruises, Inc. v. General Elec. Co., 143 F.3d 828, 833 (4th Cir. 1998); Parks v. Alteon, Inc., 161 F. Supp. 2d 645, 649 (M.D.N.C. 2001). Applying these factors here, we note the language of the contract deals primarily with the terms of sale, including the price, warranties, description and model of the mobile home, and options and accessories. The nature of Applegate\u2019s business is the sale and distribution of mobile homes. Finally, the intrinsic worth of the mobile home is approximately its fair market value or the purchase price. Accordingly, we hold the contract is predominantly a contract for the sale of goods, and the provisions of the UCC control the rights of the parties.\nUnder the UCC, \u201c[a]n action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it.\u201d N.C. Gen. Stat. \u00a7 25-2-725(1) (2001). In the instant case, the contract of sale limited the time to bring an action for breach of contract to one year. Applegate delivered the mobile home in April 1994. Plaintiff became aware of the breach no later than his notification to the Department of Insurance in November 1994. Plaintiff failed to file suit for breach of contract until 27 October 1997, over three years after Applegate tendered delivery. Accordingly, we conclude plaintiffs action is barred by the applicable statute of limitations.\nIII. Estoppel\nPlaintiff asserts Applegate should be estopped from pleading the statute of limitations as a defense pursuant to Nowell v. Tea Co., 250 N.C. 575, 579, 108 S.E.2d 889, 891 (1959) because the delay in plaintiff bringing suit was induced by acts and representations by Applegate, and the repudiation of such acts and representations amounts to a breach of good faith. In Nowell, the defendant assured the plaintiff he would perform any necessary corrections to the building in the future due to re-occurring problems in his construction work by stating he would \u201cbe entirely responsible and .. . [would] remedy the situation,\u201d if a previous complaint re-occurred. Id., 250 N.C. at 578, 108 S.E.2d 891. In reliance on such promises, the plaintiff in Nowell entered into possession of the building, and after the statute of limitations had run, the defendant refused to assume responsibility or correct the reoccurring problem. Id. By contrast, in the case sub judice plaintiff was contacted on numerous occasions in order to commence repairs. Plaintiff repeatedly failed to respond or responded by demanding a new mobile home or a refund. After numerous letters, the one-year contractual limitation on plaintiff\u2019s claims was specifically raised, and plaintiff was urged to make contact in order to resolve the matter without further delay. The cause of the delay was not representations made by Applegate, but rather, it was plaintiff\u2019s unwillingness to accept repairs to the mobile home which caused the statute of limitations to run, and the theory of estoppel, as espoused in Nowell, is inapposite.\nWe have carefully considered plaintiff\u2019s remaining claims and found them to be without merit.\nAffirmed.\nJudges MCCULLOUGH and TYSON concur.\n. The only allegation plaintiff has made concerning how the mobile home is affixed to the land is to state that water and electricity has been provided. That, standing alone, is insufficient.",
        "type": "majority",
        "author": "CALABRIA, Judge."
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    "attorneys": [
      "Deaton & Biggers, P.L.L.C., by Brian D. Gulden, for plaintiff-appellant.",
      "Hamrick, Bowen, Mebane, Greenway & Lloyd, L.L.P., by Bradley K. Greenway, for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "GARY HENSLEY, Plaintiff v. RAY\u2019S MOTOR COMPANY OF FOREST CITY, INC., d/b/a Applegate Mobile Homes, Defendant\nNo. COA02-712\n(Filed 3 June 2003)\nStatutes of Limitation and Repose\u2014 breach of contract\u2014 mobile home \u2014 predominant factor test\nThe trial court did not err in a breach of contract action arising out of the purchase of a mobile home by granting defendant\u2019s motion to dismiss plaintiffs action based on the expiration of the pertinent statute of limitations where the contract of sale limited the time to bring an action for breach of contract to one year and plaintiff failed to file suit until over three years after tendered delivery, because: (1) plaintiffs mobile home does not constitute an improvement to land requiring a six-year statute of limitations under N.C.G.S. \u00a7 l-50(a)(5) in light of the court\u2019s traditional treatment of mobile homes as a good and absent allegations justifying the characterization of the mobile home as realty; (2) although the contract involved both the sale of goods and the provision of services, North Carolina now adopts the predominant factor test in its determination that the contract is predominantly a contract for the sale of goods, and the parties by the original agreement may reduce the period of limitation to not less than one year under N.C.G.S. \u00a7 25-2-725; and (3) defendant is not estopped from asserting the statute of limitations when plaintiff\u2019s unwillingness to accept repairs to the mobile home caused the statute of limitations to run.\nAppeal by plaintiff from order entered 15 September 2000 by Judge Anna F. Foster in Cleveland County District Court. Heard in the Court of Appeals 12 March 2003.\nDeaton & Biggers, P.L.L.C., by Brian D. Gulden, for plaintiff-appellant.\nHamrick, Bowen, Mebane, Greenway & Lloyd, L.L.P., by Bradley K. Greenway, for defendant-appellee."
  },
  "file_name": "0261-01",
  "first_page_order": 291,
  "last_page_order": 297
}
