{ "id": 8300917, "name": "ALEC WHITTAKER, Plaintiff v. ROBERT W. TODD D/B/A/ SOUTHERN EXTERIORS, Defendants", "name_abbreviation": "Whittaker v. Todd", "decision_date": "2006-02-21", "docket_number": "No. COA05-361", "first_page": "185", "last_page": "188", "citations": [ { "type": "official", "cite": "176 N.C. App. 185" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "456 S.E.2d 308", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "340 N.C. 257", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790143 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/340/0257-01" ] }, { "cite": "446 S.E.2d 603", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1994, "pin_cites": [ { "page": "605" } ], "opinion_index": 0 }, { "cite": "116 N.C. App. 115", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522492 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc-app/116/0115-01" ] }, { "cite": "467 S.E.2d 712", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "836-7" } ], "opinion_index": 0 }, { "cite": "342 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 796101, 796107, 796077, 796024, 796153 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/342/0655-01", "/nc/342/0655-03", "/nc/342/0655-04", "/nc/342/0655-05", "/nc/342/0655-02" ] }, { "cite": "463 S.E.2d 564", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "566-7" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 832", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11918424 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc-app/120/0832-01" ] }, { "cite": "302 S.E.2d 868", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "873" } ], "opinion_index": 0 }, { "cite": "308 N.C. 419", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4708418 ], "year": 1983, "pin_cites": [ { "page": "427-28" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0419-01" ] } ], "analysis": { "cardinality": 362, "char_count": 6047, "ocr_confidence": 0.766, "pagerank": { "raw": 1.312690593538369e-07, "percentile": 0.6248173156041144 }, "sha256": "8c36acc4f0375ccb6740e01272ac076d9101007e619cd743a068a86fe499b1b9", "simhash": "1:cb2a07236d0d0ed6", "word_count": 1010 }, "last_updated": "2023-07-14T16:09:49.892129+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and STEELMAN concur." ], "parties": [ "ALEC WHITTAKER, Plaintiff v. ROBERT W. TODD D/B/A/ SOUTHERN EXTERIORS, Defendants" ], "opinions": [ { "text": "SMITH, Judge.\nAlec Whittaker (\u201cplaintiff\u2019) appeals the trial court\u2019s 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.\nThe pertinent factual and procedural history is as follows: On 22 January 1991, plaintiff contracted with Robert W. Todd d/b/a/ Southern Exteriors (\u201cdefendant\u201d) for defendant to replace the porch roof at Whittaker\u2019s home. The written contract provides: \u201cAll workmanship guaranteed for as long as you own home; materials as specified by manufacturer.\u201d 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\u2019s motion to dismiss concluding plaintiff\u2019s claim was barred by N.C. Gen. Stat. \u00a7 l-50(a)(5)a. Plaintiff appeals.\nPlaintiff presents the following issues on appeal: (I) whether N.C. Gen. Stat. \u00a7 l-50(a)(5)a limits defendant\u2019s 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\u2019s motion for change of venue.\nN.C. Gen. Stat. \u00a7 l-50(a)(5)a (2003) provides in pertinent part:\nNo 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.\nN.C. Gen. Stat. \u00a7 l-50(a)(5)a \u201cis designed to limit the potential liability of architects, contractors, and perhaps others in the construction industry for improvements made to real property.\u201d 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.\nIn 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.\nPlaintiff commenced this action by filing a complaint in the small claims division for \u201cmoney owed\u201d, not breach of warranty. Plaintiff\u2019s action is barred by the statute of repose which prohibits an action to recover damages for \u201cthe defective or unsafe condition of an improvement to real property\u201d that is not brought within six years of \u201csubstantial completion of the improvement.\u201d N.C. Gen. Stat. \u00a7 l-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 plaintiffs 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 damages only and did not sue for breach of warranty. Thus, plaintiffs reliance on Haywood is misplaced. We conclude plaintiffs action for monetary damages is barred by the statute of repose, N.C. Gen. Stat. \u00a7 l-50(a)(5)a.\nPlaintiff next contends defendant waived \u201chis affirmative defense of \u2018Statute of Repose\u2019 under N.C. Gen. Stat. \u00a7 1A-1, Rule 8(c) because he did not raise it until the day of trial.\u201d We disagree.\nIn 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 \u201cis a condition precedent to a party\u2019s right to maintain a lawsuit.\u201d 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.\nHaving concluded the instant action is barred by the statute of repose, N.C. Gen. Stat. \u00a7 l-50(a)(5)a, and that the trial court did not err in dismissing the action, we do not address plaintiffs remaining assignment of error. The judgment of the trial court is affirmed.\nAffirmed.\nJudges WYNN and STEELMAN concur.", "type": "majority", "author": "SMITH, Judge." } ], "attorneys": [ "Whittaker Law Firm, by Malcolm E. Whittaker, for plaintiff-appellant.", "No brief filed on behalf of defendant-appellee." ], "corrections": "", "head_matter": "ALEC WHITTAKER, Plaintiff v. ROBERT W. TODD D/B/A/ SOUTHERN EXTERIORS, Defendants\nNo. COA05-361\n(Filed 21 February 2006)\n1. Statutes of Limitation and Repose\u2014 roofing work \u2014 statute of repose \u2014 warranty\u2014pleading for monetary damages only\nPlaintiffs action for monetary damages from a roofing job was barred by the statute of repose of N.C.G.S. \u00a7 l-50(a)(5)a because it was brought outside the 6 year statutory period. Although plaintiff contended that workmanship on the job was under warranty, his complaint was for monetary damages only and was not for breach of warranty.\n2. Statutes of Limitation and Repose\u2014 statute of repose not an affirmative defense \u2014 pleading not required\nThe statute of repose in this case, N.C.G.S. \u00a7 l-50(a)(5)a, is not an affirmative defense. Defendant was not required to specially plead it and did not waive it by not raising it until the day of trial.\nAppeal 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.\nWhittaker Law Firm, by Malcolm E. Whittaker, for plaintiff-appellant.\nNo brief filed on behalf of defendant-appellee." }, "file_name": "0185-01", "first_page_order": 217, "last_page_order": 220 }