Troy Petty v. Marvin Lumber and Cedar Co

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:13-cv-00062-F Copies to all parties and the district court/agency. [999793279].. [15-2208]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-2208

TROY D. PETTY; ANNAH A. PETTY,
Plaintiffs – Appellants,
v.
MARVIN LUMBER AND CEDAR COMPANY, t/a MARVIN WINDOWS AND
DOORS,
Defendant - Appellee.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City.
James C. Fox,
Senior District Judge. (2:13-cv-00062-F)

Submitted:

March 31, 2016

Decided:

April 12, 2016

Before MOTZ, SHEDD, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Norman W. Shearin, Kevin A. Rust, VANDEVENTER BLACK, LLP,
Raleigh, North Carolina, for Appellants.
Thomas H. Boyd,
Michael E. Obermueller, WINTHROP & WEINSTINE, P.A., Minneapolis,
Minnesota; Wes J. Camden, Brooks Pierce, Raleigh, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Troy D. Petty and Annah A. Petty appeal from the district
court’s order dismissing their civil complaint as barred by the
statute

of

limitations.

The

Pettys

sought

damages

under

contract and warranty causes of action for damages caused by the
Defendant’s allegedly defective windows.

Finding the complaint

untimely filed, we affirm.

I.
On appeal, the Pettys do not dispute that their claims are
barred by the statute of limitations.
the

Defendant

waived

the

Rather, they argue that

protection

of

the

statute

of

limitations by providing an express warranty of ten years.

We

review a district court’s dismissal of a pleading on statute of
limitations grounds de novo.

Cruz v. Maypa, 773 F.3d 138, 143

(4th Cir. 2014).
The Pettys rely on Christie v. Hartley Constr., 766 S.E.2d
283, 287-88 (N.C. 2014), which affirmed the right of parties to
contract around a statute of repose.
no

assistance.

The

instant

Christie offers the Pettys

case

concerns

a

statute

of

limitations which, as the Christie court recognized, “exhibit
significant differences in both form and function” from statutes
of repose.
of

Id. at 286.

limitations

One way North Carolina treats statutes

differently

from
2

statutes

of

repose

is

by

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forbidding

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parties

from

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extending

limitations for contract claims.
725(1) (2015).

the

four

year

statute

of

See N.C. Gen. Stat. § 25-2-

Thus, the district court correctly dismissed the

Pettys’ complaint as untimely.

II.
Next, the Pettys assert that, even if the Defendant did not
waive its statute of limitations defense, they were entitled to
equitable
attempts.

tolling

during

the

time

of

the

Defendant’s

repair

Where the district court denies equitable tolling as

a matter of law, we will review the court’s determinations de
novo.

Cruz, 773 F.3d at 143.

However, where the issue is

whether facts bearing on the inquiry have been appropriately
pled, the standard of review is abuse of discretion.

See Chao

v. Virginia Dep’t of Transp., 291 F.3d 276, 279-80 (4th Cir.
2002).

Here, the district court found that the complaint lacked

sufficient
applied.

detail

to

determine

whether

equitable

tolling

We review that determination for abuse of discretion.

Under the doctrine of equitable tolling, a party is barred
from

asserting

limitations,

a

technical

“when

representations,

or

defense,

delay

has

conduct,

the

amount to a breach of good faith.”

such

been

a

induced

repudiation

of

statute

of

by

acts,

which

would

Nowell v. Great Atl. & Pac.

Tea Co., 108 S.E.2d 889, 891 (N.C. 1959).
3

as

However, a plaintiff

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who seeks to obtain equitable tolling of a limitations period
must show that he reasonably relied upon a representation made
by the Defendant.

See Town of Pineville v. Atkinson/Dyer/Watson

Architects, P.A., 442 S.E.2d 73, 74-75 (N.C. Ct. App. 1994).

In

this case, regardless of when the repairs took place or how long
they took, the Pettys have failed to make any allegation that
they relied on any representations by the Defendant.
Contending that they were not required to do so, the Pettys
rely on Haywood St. Redevelopment Corp. v. Harry S. Peterson,
Co., 463 S.E.2d 564, 567 (N.C. Ct. App. 1995), which held that
the limitations period for a breach of express warranty claim
may be tolled “during the time the seller endeavors to make
repairs to enable the product to comply with a warranty.”

In

their complaint, the Pettys list dates that Defendant attempted
to “assess” and “repair” the windows, ranging from October 2010
until November 2012.

However, assuming Haywood stands for the

proposition that repairs can toll the statute of limitations
even in the absence of inducements and reliance, the Pettys have
still, as the district court found, failed to specify how long
each repair took, failed to explain the details of the testing
and inspections, and failed to allege that the repairs were made
in order to enable the product to comply with its warranty.
Moreover, after the district court warned the Pettys about their
insufficient pleading, they failed to offer any further details
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in their amended complaint.

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Absent the necessary details, we

conclude that the district court did not abuse its discretion in
not applying the equitable tolling doctrine.

III.
For the foregoing reasons, we affirm the judgment of the
district
facts

court.

and

materials

legal
before

We

dispense

with

oral

argument

contentions

are

adequately

this

and

argument

court

because

presented

would

not

the

in

the

aid

the

decisional process.
AFFIRMED

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