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Cage v. Colonial Building Co.9/7/1993
e owner of the townhouse at the time it was constructed and at the time the defective condition causing the damage was constructed, North Carolina General Statutes § 1-50(5) cannot be asserted by Colonial as a defense to these claims. We believe that plaintiff is correct. At the time the copper flashing was improperly constructed, the openings and exterior improperly treated to limit infiltration, and at the time the brick front stoop was improperly constructed, defendant was in actual control as owner of the property. Accord Earls v. Link, Inc., 38 N.C. App. 204, 247 S.E.2d 617 (1978) (in an action for breach of implied warranty against builder to recover costs of repairing a defective chimney, the discovery rule and the ten year statute of repose governed rather than North Carolina General Statutes § 1-50(5) because defendant builder was in actual control as owner at the time the defective condition was constructed).
Therefore, the ten year statute of repose set out in North Carolina General Statutes § 1-52(16) applies. The statute states that:
Unless otherwise provided by statute, for personal injury or physical damage to claimant's property, the cause of action . . . shall not accrue until bodily harm 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.
Accordingly, the statute of limitations for plaintiff's cause of action did not accrue until physical damage to the townhouse became apparent in October of 1990 when the carpeting was removed.
It was in October of 1990 that the three year statute of limitations enumerated in North Carolina General Statutes § 1-52(5), which governs the breach of implied warranty, negligence, and negligence per se, began to run. See Wilson v. McLeod Oil Co., Inc., 327 N.C. 491, 398 S.E.2d 586 (1990), reh'g denied, 328 N.C. 336, 402 S.E.2d 844 (1991); Pembee Mfg. Corp. v. Cape Fear Constr. Co. Inc., 69 N.C. App. 505, 317 S.E.2d 41 (1984), aff'd, 313 N.C. 488, 329 S.E.2d 350 (1985).
Plaintiff then had three years from the time she discovered the latent defects (October 1990) to file suit. Plaintiff filed suit on 25 January 1991, well within the three year statute of limitations. Plaintiff's filing was also well within the ten year statute of repose which began to run on 7 December 1984 when defendant sold the townhouse to plaintiff. We, therefore, hold that plaintiff's complaint was timely filed and that the 12(b)(6) motion was improvidently granted by the trial court.
The decision of the trial court is reversed and this case is remanded for trial.
Disposition
Reversed and Remanded.
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