Petty et al v. Marvin Lumber and Cedar Company t/a Marvin Windows and Doors
ORDER granting 10 Motion to Dismiss. Plaintiffs' claims are DISMISSED without prejudice to Plaintiffs to file an amended complaint within 21 days of the filing date of this order. If Plaintiffs do not file an amended complaint within that t ime period, the Clerk of Court is DIRECTED to close the case without further order from the court. If Plaintiffs do, however, file an amended complaint, Marvin may file an answer or responsive motion within time period allowed by the Federal Rules of Civil Procedure and the Local Civil Rules of this court. Signed by Senior Judge James C. Fox on 9/4/2014. (Grady, B.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
TROY D. PETTY and wife,
ANNAH A. PETTY,
MARVIN LUMBER AND CEDAR
COMPANY, t/a MARVIN WINDOW
This matter is before the court on the Motion to Dismiss [DE-l 0] filed by Defendant Marvin
Lumber and Cedar Company, t/a Marvin Window and Doors ("Marvin" or "Defendant"). Plaintiffs
Troy D. Petty and Annah R. Petty ("Pettys" or "Plaintiffs") have responded, and Marvin has replied.
For the reasons stated below, the motion is ALLOWED, and Plaintiffs' claims are DISMISSED
without prejudice to file an amended complaint within 21 days.
I. STATEMENT OF THE CASE
Plaintiffs initiated this action by filing a complaint in the North Carolina General Court of
Justice, Superior Court Division, Dare County, on September 19,2013 [DE-1-1]. Therein, Plaintiffs
assert claims for breach of contract, breach of express warranty, breach of implied warranty of
merchantability, and breach of implied warranty of fitness for a particular purpose. Marvin was
served with process on September 25, 2013, and timely filed a notice of removal [DE-l] in this court
on October 22, 2013, on the basis of diversity of citizenship jurisdiction. Thereafter, Marvin filed
the instant motion to dismiss.
II. STATEMENT OF THE FACTS
The facts as alleged in the Complaint are as follows. Plaintiffs are owners of certain real
property ("the Property") located in Manteo, North Carolina, which was constructed during 2008 and
2009. Compl. [DE-1-2]
1-2. In July 2008, Plaintiffs purchased fifty-eight (58) Marvin Intergrity
double hung windows and twenty-three (23) matching transom windows from Marvin for
approximately $40,000. !d.
5. As part of the purchase, Marvin provided a Ten Year Limited
6; Resp. to Mot. to Dismiss, Ex. A [DE-14-1].
A certificate of occupancy was issued for Property in June 2009, and Plaintiffs took
occupancy of the Property that same month. Compl. [D E-12] ~~ 8-9. Over a year later, on September
3, 2010, Plaintiffs first began to notice problems with the window purchased from Marvin;
specifically, "the windows in the office and north upstairs bedroom in the Property began to leak
after a storm event." !d.
10-11. Plaintiffs allege that the builder of the Property and a
representative of Marvin met and performed leak tests on different occasions, and that the leak tests
showed that the windows leaked. !d.~~ 14-16. Marvin serviced the windows on May 2 and 3, 2011,
in an attempt to remedy the leak. !d.
17. The windows leaked again in June 2012 and October
2012. !d.~~ 18-19.
III. STANDARD OF REVIEW
On a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a court must
determine the legal sufficiency of the complaint. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In so doing, the court assumes the truth of all
facts alleged in the complaint and the existence of any fact that can be proved, consistent with the
complaint's allegations. Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, the '"[f]actual
allegations must be enough to raise a right to relief above the speculative level' and have 'enough
facts to state a claim to relief that is plausible on its face."' Wahi v. Charleston Area Med Ctr., Inc.,
562 F.3d 599, 616 n.26 (4th Cir. 2009) (citing Twombly, 550 U.S. at 555 (2007)). Moreover,
although the court draws all reasonable factual inferences in a plaintiffs favor, the court is not
obligated to accept a complaint's legal conclusions drawn from the facts. Iqbal, 129 S.Ct. at 194950. Nor must the court accept as true "unwarranted inferences, unreasonable conclusions, or
arguments." Giarratano v. Johnson, 521 F.3d 298, 301-02 (4th Cir. 2008)(quotations omitted). "In
deciding whether a complaint will survive a motion to dismiss, a court evaluates the complaint in
its entirety, as well as documents attached or incorporated into the complaint." E.l duPont de
Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 559 (4th Cir. 2011).
Ordinarily, resolution of defenses such as the statute oflimitations is not appropriate when
ruling on a Rule 12(b)( 6) motion to dismiss, which only tests the legal sufficiency of the complaint
itself. Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007). However, if facts sufficient to
rule on the defense are alleged in the complaint, a court may reach the defense at the Rule 12(b)( 6)
stage. Id But the Fourth Circuit has cautioned that the court may only do so "in the relatively rare
circumstance" where "all facts necessary to the affirmative defense 'clearly appear[ ] on the face of
the complaint."' Id (quoting Richmond, Fredericksburg & Potomac R.R. v. Forst, 4 F .3d 244, 250
Marvin argues that each of Plaintiffs' claims must be dismissed pursuant to Rule 12(b)( 6)
because they are barred by the statute of limitations. The court examines each claim in turn,
beginning with Plaintiffs' claims for breach of express warranty and breach of implied warranties.
Breach of Warranty Claims
The parties appear to agree that the four-year statute oflimitations set forth inN .C. Gen. Stat.
§ 25-2-725 governs Plaintiffs' claims for breach of express and implied warranties. That statute
provides, in relevant part:
(1) An 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.
(2) A cause of action accrues when the breach occurs, regardless of the aggrieved
party's lack of knowledge of the breach. A breach of warranty occurs when tender
of delivery is made, except that where a warranty explicitly extends to future
performance of the goods and discovery of the breach must await the time of such
performance the cause of action accrues when the breach is or should have been
(4) This section does not alter the law on tolling of the statute oflimitations nor does
it apply to causes of action which have accrued before this chapter becomes effective.
!d. The parties disagree, however, as to when Plaintiffs' claims for breach of warranties accrued, and
whether the statute of limitations has been tolled on those claims.
Marvin argues that the statute oflimitations on Plaintiffs' warranty claims began to run when
the windows were delivered to them, a time that was no later than June 2009. Accordingly, Marvin
argues that Plaintiffs' warranty claims became time-barred in June 2013, prior to the initiation ofthis
lawsuit. Plaintiffs, however, contend that their causes of action accrued when they discovered the
breach, pursuant to operation of the exception in N.C. Gen. Stat. § 25-2-725(2).
Whether Plaintiffs' warranty claims accrued upon the delivery of the windows, or upon
Plaintiffs' discovery of the alleged defects, depends upon whether the "warranty explicitly extends
to future performance of the goods and discovery of the breach must await the time of such
performance" within the meaning ofN.C. Gen. Stat. § 25-2-725(2). The express limited warranty
in this case states:
Your Integrity products are warranted to be free from defects in manufacturing,
materials and workmanship. If such a defect appears during the term of this warranty,
Integrity will, at its option (1) repair the defective product, (2) replace the defective
materials or (3) refund your purchase price. If replacement is elected, Integrity will
not be responsible for the installation or refinishing of replacement parts.
This limited warranty is valid for ten (1 0) years from the date your Integrity product
was originally purchased and is subject to the further Conditions and Exclusions set
THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER
WARRANTIES EXPRESS OR IMPLIED, AND NO PERSON (INCLUDING
ANY AGENT, EMPLOYEE, DEALER, DISTRIBUTOR OR OTHER
REPRESENTATIVE) IS AUTHORIZED TO MAKE ANY OTHER
REPRESENTATION OR WARRANTY CONCERNING THIS PRODUCT.
THIS WARRANTY IS NOT A WARRANTY OF FUTURE PERFORMANCE
BUT ONLY A WARRANTY TO REPAIR/REPLACE OR REFUND.
Resp. to Mot. to Dismiss, Ex. A [DE-14-1].
No opinion from the North Carolina Supreme Court addresses when a warranty explicitly
extends to future performance of the goods. 1 Relying in part on a North Carolina Court of Appeals
decision, Haywood Street Redevelopment Corporation, Inc. v. HarryS. Peterson, Co., Inc., 120N.C.
App. 832, 463 S.E.2d 564 (1995), Plaintiffs argue that the language in the first paragraph in the
warranty constitutes a warranty of future performance under North Carolina law. In Haywood, the
A federal court sitting in diversity must apply the law of the highest court of the state in which the suit was
brought. See Private Mortgage Inv. Servs., Inc. v. Hotel & Club Assocs., Inc., 296 F.3d 308, 312 (4th Cir.
2002). If cases from the North Carolina Supreme Court fail to provide an answer, this court must predict how
North Carolina's highest court would rule if presented with this issue. Id In so predicting, the court may
consult decisions from the North Carolina Court of Appeals, the state's intermediate appellate court, for
guidance. See id (noting that decisions of the state's intermediate appellate court "constitute next best indicia
of what state law is"). The court may also consider "restatements of the law, treatises, and well considered
North Carolina Court of Appeals determined that where a warranty in a service contract provided
that waterproofing would "be free of [certain] defects" for a period of five years, it was "in the nature
of a prospective warranty, in that it guarantees the future performance of the waterproofing for a state
period oftime." Id at 836, 463 S.E.2d at 566. 2
If the first paragraph was the only language in the express warranty, this court would be
inclined to agree with Plaintiffs. Given the language later in the express warranty, however, stating
"THIS WARRANTY IS NOT A WARRANTY OF FUTURE PERFORMANCE BUT ONLY
A WARRANTY TO REPAIR/REPLACE OR REFUND," the court cannot say that the North
Carolina Supreme Court would find that the warranty explicitly extends to future performance ofthe
goods within the meaning ofN .C. Gen. Stat. § 25-2-725(2). Although that court has not considered
the precise issue, other courts faced with language similar have found the seller has not provided a
warranty of future performance, but rather "the specification of a remedy for the product's failure
to be free from defect." Allen v. Anderson Windows, 913 F. Supp. 2d 490, 502 (S.D. Ohio 2012)
(finding that a warranty did not extend to future performance where it stated that "[a]ll non-glass
portions of the windows and patio doors are warranted to be free from defects in manufacturing,
materials, and workmanship for a period often (10) years from the date of first purchase" and that
during the time of warranty, the seller "may elect to either repair or replace any defective product
for you" or "may elect to refund your original purchase); see also Schwatka v. Super Millwork, Inc.,
965 N.Y.S.2d 547, 106 A.D.3d 897 (2d Dept. 2013) (explaining that where the subject warranty
"guaranteed that if any defect in manufacturing, materials or workmanship occurred within 10 years,
Although the cause of action in Haywood did not arise under the UCC, the North Carolina Court of
Appeals cited N.C. Gen. Stat. § 25-2-725 in support of its finding that the warranty extended to future
then the product would be repaired or replaced, or the purchase price refunded" the trial court
"properly determined that the warranty did not extend to future performance"). Given that courts
traditionally construed the future performance exception narrowly, see, e.g. Sellon v. General Motors
Corp., 571 F. Supp. 1094, 1098 (D. Del. 1983), this court predicts that the North Carolina Supreme
Court would do the same. Moreover, considering the entirety of the language of the limited warranty
in this case, and not just the language in the first paragraph, this court predicts that the North
Carolina Supreme Court would not find that warranty explicitly extends to future performance under
N.C. Gen. Stat. § 25-2-275. 3
Accordingly, the court finds the statute oflimitations on Plaintiffs' implied warranty claims
and their express warranty claim, to the extentthey are based on Marvin's failure to deliver windows
free from defects, began to run at the latest in June 2009. Accordingly, Plaintiffs' claims for breach
of warranties, filed in September 2013, are time-barred, unless for some reason the statute of
limitations was tolled. See N.C. Gen. Stat. § 25-2-725(3) ("This section does not alter the law on
tolling of the statute of limitations."). The North Carolina Court of Appeals has stated that "[a]
statute of limitations is tolled during the time the seller endeavors to make repairs to enable the
product to comply with a warranty." Haywood, 120N.C. App. at 837,463 S.E.2dat567. It is unclear
from the allegations in the complaint the length of time, if any, Marvin "endeavor[ed] to make
repairs to enable the product to comply with a warranty." Plaintiffs plainly considers the "leak tests"
performed by Marvin, and possibly the times when representatives ofMarvin inspected the windows,
Additionally, with regard to Plaintiffs' breach of implied warranty claims, courts are in almost uniform
agreement that "no implied warranties" fall within the "future performance" exception because "by their very
nature, they never 'explicitly extend to future performance."' Standard Alliance Indus. v. Black Clawson Co.,
587 F.2d 813, 820 (6th Cir. 1978). This court sees no reason why the North Carolina Supreme Court would
diverge from this reasoning.
in addition to the time span between any repair and subsequent leaks, to constitute part of the tolling
period. The allegations in the complaint lack factual detail to enable the court to reach the same
Accordingly, Plaintiffs warranty claims are DISMISSED without prejudice. The court
recognizes that it may be possible for Plaintiffs to allege sufficient facts to support timely, plausible
breach of warranty claims. 4 See Cozzarelli v. Inspire Pharm., Inc., 549 F .3d 618, 630 (4th Cir. 2008)
(dismissal with prejudice is proper if there is no set of facts the plaintiff could present to support his
claim). Consequently, Plaintiffs' claims for breach of warranties are dismissed without prejudice to
Plaintiffs to file an amended complaint within 21 days of the filing date of this order. IfPlaintiffs do
file an amended complaint, Marvin may file an answer or other responsive motion within the time
period allowed by the Federal Rules of Civil Procedure and this court's Local Rules. 5
Breach of Contract
The court also concludes that Plaintiffs' claim for breach of contract is untimely, and it too
will be dismissed without prejudice.
Plaintiffs allege that Marvin breached the contract to provide windows by "providing
The court has discretion to grant a motion to dismiss with or without prejudice. Felder v. Buonassissi,
Henning& Lash, PC, No. PJM 13-741,2013 WL 5550947, at *3 (D. Md. Oct. 4, 2013); St. Clair v. Banker
Steel Co., No. 6:06CV00042, 2007 WL 45785, at *3 (W.D.Va. Jan.5, 2007). "[T]he purpose of pleading is
to facilitate a proper decision on the merits." Swierkiewicz v. Sorema NA., 534 U.S. 506, 514 (2002).
Plaintiffs allege in the complaint that "despite demand" the windows have not been repaired. Compl. ~ 21
[DE-1-1]. The complaint does not, however, appear to assert a claim for breach of the warranty to repair,
replace or refund. Cf Allen,913 F. Supp. 2d at 504 (determining that where the plaintiff did not limit the
express warranty claim to failure to deliver windows free from defects but also alleged that defendant failed
to honor the terms of the warranty to replace or repair, plaintiff stated a claim for breach of the warranty to
repair or replace). Nothing in this order precludes Plaintiffs from attempting to assert such a claim in an
windows that were defective, permitted the entry of water, and otherwise damaged the Property."
Compl. [DE-1-1] ~ 26. The parties appear to somewhat dispute which statute oflimitations governs
Plaintiffs' breach of contract claims. Marvin asserts that like the breach of warranty claims, N.C.
Gen. Stat. § 25-2-725 provides the applicable statute of limitations. Plaintiffs entertain that
possibility, but also assert that the three-year statute oflimitations in N.C. Gen. Stat. § 1-52 applies
to their claim for breach of contract. The court finds that Plaintiffs' breach of contract claim is
untimely under either statute.
Under North Carolina law, when a plaintiff alleges a claim where" a defect in property is an
essential element of the cause of action," the three year statute oflimitations found in N.C. Gen. Stat.
§ 1-52 applies. Bernick v. Jurden, 306 N.C. 435, 444-45, 293 S.E.2d 405, 411-12 (1982).
Accordingly, where a plaintiff alleged "that its insured sustained damages to his real property as a
result of a defect in the air conditioning unit manufactured by defendant," and the "loss sought to be
recovered is the damage to real property and not just an action to recover the value or replacement
of the" allegedly defective product, "the applicable limitation period was three years under [N. C.
Gen. Stat.] §1-52." Hanover Ins. Co. v. Amana Refrigeration, Inc., 106N.C. App. 79, 82,415 S.E.2d
99, 101 ( 1992). That statute oflimitations, however, also provides that a cause of action for personal
injury or physical property damage "shall not accrue until bodily harm to the claimant or physical
damage to the property becomes apparent or ought reasonably to have become apparent to the claim,
whichever event first occurs." N.C. Gen. Stat. § 1-52(16). Plaintiffs' breach of contract claim
accrued, therefore, when Plaintiffs knew, or should have known, about the allegedly defective nature
ofthe windows. See Pembee Mfg. Corp. v. Cape Fear Constr. Co., Inc., 313 N.C. 488,493,329
S.E.2d 350, 354 (1985). Here, the allegations in the complaint make clear that Plaintiffs knew, or
should have known, about the allegedly defective nature of the windows on or about September 3,
2010, when the windows first leaked. Compl. [DE-1-1] ~~ 10-13. Accordingly, when this action was
filed on September 19, 2013, the statute oflimitations had run on Plaintiffs' breach of contract claim,
absent the tolling of the statute of limitations. As is the case with Plaintiffs' breach of warranty
claims, the complaint contains insufficient allegations to invoke the equitable tolling doctrine with
regard to the breach of contract claim. See Town of Pineville v. Atkinson/Dyer/Watson Architects,
P.A., 114 N.C. App. 497,500,442 S.E.2d 73,74-75 (1994) (explaining that "aplaintiffwho seeks
to obtain equitable tolling of a limitations period must show that the misrepresentations he
reasonably relied upon were made by the party raising the defense"). 6
Similarly, even if the four-year statute oflimitations set forth in N.C. Gen. Stat. § 25-2-725
applies to Plaintiffs' breach of contract claim, the claim is deemed to have accrued, at the latest, in
June 2009, rendering Plaintiffs' claim untimely absent a showing justifying equitable tolling.
Plaintiffs' allegations are insufficient to invoke that doctrine.
Accordingly, Plaintiffs' breach of contract claim is DISMISSED without prejudice to
Plaintiffs to file an amended complaint within 21 days of the filing date of this order. If Plaintiffs do
file an amended complaint, Marvin may file an answer or responsive motion within the time period
allowed by the Federal Rules of Civil Procedure and this court's Local Rules.
For the foregoing reasons, Marvin's Motion to Dismiss [DE-10] is ALLOWED, and
The same analysis is applicable to Plaintiffs' breach of warranty claims, to the extent that N.C. Gen. Stat.
§ 1-52 applies.
Plaintiffs' claims are DISMISSED without prejudice to Plaintiffs to file an amended complaint
within 21 days ofthe filing date ofthis order. IfPlaintiffs do not file an amended complaint within
that time period, the Clerk of Court is DIRECTED to close the case without further order from the
court. If Plaintiffs do, however, file an amended complaint, Marvin may file an answer or responsive
motion within time period allowed by the Federal Rules of Civil Procedure and the Local Civil Rules
of this court.
This the _L_ day of September, 2014.
Senior United States District Judge
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