Trillium Ridge Condo. Ass'n, Inc. v. Trillium Links & Vill., LLC

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NO. COA14-183 NORTH CAROLINA COURT OF APPEALS Filed: 16 September 2014 TRILLIUM RIDGE CONDOMINIUM ASSOCIATION, INC., Plaintiff v. Jackson County No. 11 CVS 462 TRILLIUM LINKS & VILLAGE, LLC; TRILLIUM CONSTRUCTION COMPANY LLC; SHAMBURGER DESIGN STUDIO, P.C., SHAMBURGER DESIGN, INC. (fka SHAMBURGER DESIGN STUDIO, INC.), S.C. CULBRETH JR., GREGORY A. WARD, Defendants Appeal by plaintiff from orders entered 20 August 2013 and amended orders entered 12 September 2013 Pope, Jr., in Jackson County Superior Court. by Judge Marvin P. Heard in the Court of Appeals 5 June 2014. Kilpatrick Townsend & Stockton LLP, by Dustin T. Greene, David C. Smith, and Richard D. Dietz, for Plaintiff. Hedrick Gardner Kincheloe & Garofalo, LLP, by Luke Sbarra, for Defendant Trillium Links & Village, LLC. Marc J. Meister, PLLC, by Marc J. Meister, for Defendant Trillium Construction Company, LLC. Northup, McConnell & Sizemore, P.L.L.C., Allen, for Defendants Ward and Culbreth. ERVIN, Judge. by Robert E. -2Plaintiff Trillium Ridge Condominium Association, Inc., appeals from orders and amended orders granting summary judgment in favor Trillium of Defendants Links & Trillium Village, Gregory A. Ward. LLC; Construction and S.C. Company, Culbreth, LLC; Jr., and On appeal, Plaintiff argues that Defendants motions for summary judgment should have been denied for the following summary reasons: judgment (1) was Trillium filed in Construction s an untimely motion for manner; (2) Plaintiff s claims are not time-barred; (3) Mr. Culbreth and Mr. Ward breached the fiduciary duty that they owed to Plaintiff; (4) Trillium Links breached the fiduciary duties that it owed to Plaintiff; (5) Trillium Construction and Trillium Links constructed the condominiums in a negligent manner; (6) Trillium Links is liable for breach of warranty; (7) claims based on defects in applicable buildings statute contributory of 100 and repose; negligence was 200 (8) are not summary improper; barred judgment and (9) by the based on Trillium Construction s failure to mitigate its damages does not support an award of summary judgment.1 1 After careful consideration of Trillium Construction has not defended any rulings that the trial court may have made in its favor based on contributory negligence and failure to mitigate damages for purposes of this appeal. As a result of the fact that the record does not support a determination that Plaintiff was contributorily negligent as a matter of law and the fact that a failure to mitigate damages is a defense to the size of a damage award -3Plaintiff s challenges to the trial court s orders in light of the record and the applicable law, we conclude that the trial court s orders and amended orders should be affirmed in part and reversed in part and that this case should be remanded to the Jackson County Superior Court for further proceedings not inconsistent with this opinion. I. Factual Background A. Substantive Facts The Trillium Development is a private residential, lake, and golf community located in Cashiers. The Trillium Development was founded in 1996 and consists of approximately 270 private condominiums. residences, including homes, townhouses, and Trillium Ridge Condominiums, the subject of this appeal, is one of several condominium complexes located in the Trillium Development. The Trillium Ridge Condominiums consist of 22 individual units contained in six buildings identified as Building Nos. 100, 200, 300, 400, 500, and 600 and multiple common elements. The Trillium Ridge Condominiums were constructed in two phases, with Building Nos. 100 and 200 having rather than a bar to liability, the trial court s decision to grant summary judgment in favor of Trillium Construction cannot be affirmed on the basis of either contributory negligence or any failure on Plaintiff s part to take appropriate steps to mitigate its damages. -4been constructed during the first phase and Buildings Nos. 300 through 600 having been constructed during the second phase. Trillium Links, the developer of Trillium Ridge, filed a Declaration for the Trillium Ridge Condominiums on 12 February 2004. Trillium Links was owned and controlled by Mr. Culbreth and Mr. Ward along with two other individuals, Dan Rice and Morris Hatalsky.2 During the period of construction, Mr. Culbreth and Mr. Ward held the principal ownership interests in Trillium Links. The developer-declarant, Plaintiff s executive Declaration the right board. allowed to As a Trillium appoint result, Links, officers Trillium as to Links appointed Mr. Culbreth and Mr. Ward to serve as Plaintiff s sole initial officers and directors, and they continued to act in that capacity until Trillium Links turned control of Plaintiff over to the unit owners on 24 February 2007. Trillium Construction was solely owned by Mr. Rice, who also owned a minority interest in Trillium Links.3 Trillium Links and Trillium Construction operated out of the same offices and used the same mailing address, phone number, and website. 2 Mr. Rice was a building contractor who served as the sole member and manager of Trillium Construction. Mr. Hatalsky is a golf course designer. 3 Mr. Rice died in May 2008, leaving Trillium Construction without a member or manager. As of April 2013, Trillium Construction had been dissolved. -5In 2003, Trillium Links hired Trillium Construction to serve as the general Ridge contractor Condominiums. for the Although construction Trillium of Links the Trillium and Trillium Construction executed a contract providing for the construction of each building, the contract documents have not been located and are presumed to have been destroyed as a result of water damage. In October 2004, a report from Structural Integrity Engineering, P.A., was delivered to Trillium Construction and to Mr. Culbreth and Mr. Ward individually. According to the Structural Integrity report, a failure to install two foundation piers in Building No. 100 had resulted in a sagging floor. Although Structural Integrity confirmed that these piers were replaced in 2005, it noted that its report should not be construed as an implication that there are no deficiencies or defects at other locations in this structure. On 24 February 2007, Trillium Links turned over control of Plaintiff to the unit owners. foundation problems in Building No information regarding the No. 100 or Integrity report was disclosed to the new board. the Structural After control had been transferred to the unit owners, Plaintiff decided to study future maintenance requirements and commissioned Miller+Dodson to perform a reserve study for the condominiums. -6According to the Miller+Dodson report, the condominiums wooden siding had a shorter remaining economic life than Plaintiff had anticipated given the type of siding that had been installed. After receiving the Miller+Dodson report, Plaintiff asked Freddie Boan, the Association s secretary and a Trillium Links employee, to retain an expert for the purpose of providing a second opinion concerning the expected useful life of the wooden siding. As a result, Mr. Boan hired Andy Lee, a professor of forest products at Clemson University, to inspect the siding. On 5 November 2007, Professor Lee delivered a report to Plaintiff in which he discussed certain siding-related issues, including the fact that some metal flashings are either too narrow or missing, which require immediate corrections. addition, Professor Lee noted that, at many locations, In the bottoms of the siding pieces either touched or were too close to the ground Finally, and recommended Professor Lee that concluded this problem be that, if problems the corrected. were corrected, the wood sidings should last thirty (30) years or longer. According to Mr. Boan, all of the members of Plaintiff s board received the flashing defects. who had been Lee Report and were made aware of the Upon receiving the Lee Report, James Tenney, elected to the board after control of the -7development had been transferred to Plaintiff, talked about the situation with Mr. Boan. After discussing the available options with Professor Lee, Mr. Boan decided that the existing problems could be remedied by continuously caulking over the problematic flashings. In addition, Mr. Boan reached the conclusion that Plaintiff did not need to procure additional inspections of the buildings. As a result, Plaintiff had the problematic flashings caulked over either prior to or at the time we did the painting in March of 2008. In approximately Building extensive Nos. 100 water October and damage 2010, 300. and leaks Upon rotting were further was discovered in investigation, discovered. The similarity between the leaks in the two buildings led Mr. Boan to advise Mr. Tenney that the problem might not be a localized one. As a result, Mr. Tenney hired an engineer to inspect the property. On submitted a condition of indicated that 19 October report Building 2010, detailing No. [i]mproper 100. Sydney his In flashing E. findings his Chipman, concerning report, details P.E., at Mr. the the Chipman doors, windows, and horizontal transitions had caused serious water damage and that these defects were probably endemic throughout the community. Subsequent inspections disclosed the existence -8of numerous defects in the original construction of the condominium buildings. B. Procedural History On 3 August 2011, Plaintiff filed a complaint against Trillium Links; Trillium Construction; Mr. Culbreth; Mr. Ward; Shamburger Design Studio, P.C.; and Shamburger Design, Inc.4 In its complaint, Plaintiff asserted claims for breach of warranty against Trillium Links; negligent construction against Trillium Links, Trillium Construction, and the Shamburger Defendants; gross negligence against Trillium Links; and breach of fiduciary duty against Mr. Culbreth, Mr. Ward, and Trillium Links. October 2011, 10 October 2011, and 12 December On 6 2011, respectively, Mr. Culbreth and Mr. Ward, Trillium Links, and Trillium Construction filed answers in which they denied the material allegations of Plaintiff s complaint and asserted various affirmative defenses. On 9 October 2012, Trillium Construction filed a motion seeking partial summary judgment in its favor with respect to all negligent construction claims relating to Building Nos. 100 and 200. On 18 January 2013, Trillium Construction withdrew its partial summary judgment motion based upon the expectation that 4 The Shamburger defendants were involved in designing the condominium buildings. Shamburger Design Studio was never served and an entry of default was made against Shamburger Design on 9 January 2012. -9the Chief Justice would designate this case as exceptional pursuant to Rule 2.1 of the General Rules of Practice. March 2013, the Chief Justice designated this On 8 case as exceptional and transferred responsibility for it to the trial court. On 1 July 2013, Mr. Culbreth and Mr. Ward filed motions for summary judgment, judgment. or in the alternative, partial summary On 22 July 2013, Trillium Links filed a motion for summary judgment. On 9 August 2013, Trillium Construction filed a motion for filed materials revised Plaintiff judgment motions. summary in judgment. opposition On to 14 August these 2013, summary On 16 August 2013, Plaintiff filed a response to Trillium Construction s summary judgment motion. The pending summary judgment motions came on for hearing before the trial court at the 19 August 2013 civil session of the Jackson County Superior Court. On 20 August 2013, the trial court entered orders granting summary judgment in favor of Mr. Culbreath, Mr. Ward, Trillium Construction, and Trillium Links with respect to all of Plaintiff s claims and granting partial summary judgment in favor of Trillium Construction with respect to Plaintiff s claims relating to Building Nos. 100 and 200. 12 September 2013, the trial court entered amended On orders granting summary judgment in favor of Mr. Culbreath, Mr. Ward, -10Trillium summary Construction, judgment in and Trillium favor of Links, Trillium granting partial Construction, and certifying its order for immediate review pursuant to N.C. Gen. Stat. § 1A-1, Rule 54(b). On 18 September 2013, Plaintiff noted an from appeal to this Court the trial court s orders and amended orders.5 II. Substantive Legal Analysis On appeal, Plaintiff argues that the trial court erred by granting Defendants specifically, motion for Plaintiff summary summary argues judgment judgment that was motions. Trillium untimely; More Construction s that Plaintiff s claims are not barred by the applicable statute of limitations or statute of repose; and that the evidentiary forecast presented for the trial court s consideration established that Mr. Culbreth and Mr. Ward had breached a fiduciary duty owed to Plaintiff, that Trillium Links had breached a fiduciary duty owed to Plaintiff, and that Trillium Construction and Trillium Links had negligently constructed the condominium buildings. We will address each of Plaintiff s arguments in turn. A. Standard of Review 5 As a result of the fact the trial court properly certified its orders for immediate appellate review pursuant to N.C. Gen. Stat. § 1A-1, Rule 54(b), the fact that Plaintiff s appeal has been taken from an interlocutory order is no bar to our consideration of this case on the merits. -11 A trial court appropriately grants a motion for summary judgment when the information contained in any depositions, answers to interrogatories, admissions, and affidavits presented for the trial court s consideration, viewed in the light most favorable to the non-movant, demonstrates that there is no genuine issue of material fact and that the movant is entitled to judgment Distinction, (2011). as a Inc., matter 213 of N.C. law. App. Williams 1, 3, 714 v. S.E.2d Houses of 438, 440 As a result, in order to properly resolve the issues that have been presented for our review in this case, we are required to determine, on the basis of the materials presented to the trial court, whether there is a genuine issue as to any material fact and whether the judgment as a matter of law. moving party is entitled to Coastal Plains Utils., Inc. v. New Hanover Cty., 166 N.C. App. 333, 340, 601 S.E.2d 915, 920 (2004). Both before the trial court and on appeal, the evidence must be viewed in the light most favorable to the nonmoving party and all inferences from that evidence must be drawn against the moving party and in favor of the non-moving party. White v. Consol. Planning, Inc., 166 N.C. App. 283, 296, 603 S.E.2d 147, 157 (2004), disc. review denied, 359 N.C. 286, 610 S.E.2d 717 (2005). When there are factual issues to be determined that relate to the defendant s duty, or when there -12are issues relating to whether a party care, summary judgment is inappropriate. exercised reasonable Holshouser v. Shaner Hotel Grp. Properties One Ltd. P ship, 134 N.C. App. 391, 394, 518 S.E.2d 17, 21 (1999) (quoting Ingle v. Allen, 71 N.C. App. 20, 26, 321 S.E.2d 588, 594 (1984), disc. review denied, 313 N.C. 508, 329 S.E.2d 391 (1985), overruled in part on other grounds in N.C. Dept. of Transp. v. Rowe, 351 N.C. 172, 177, 521 S.E.2d 707, 710 (1999)), aff d, 351 N.C. 330, 524 S.E.2d 568 (2000). We review orders granting or denying summary judgment using a de novo standard of review, In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008), under which this Court considers the matter anew and freely substitutes its own judgment for that of the [trial court]. Burgess v. Burgess, 205 N.C. App. 325, 327, 698 S.E.2d 666, 668 (2010) (quoting In re Appeal of the Greens of Pine Glen Ltd. P ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)). B. Timeliness As an initial matter, Plaintiff contends that Construction s summary judgment motion was untimely. Trillium Construction acknowledges having failed to Trillium Although provide notice of its effort to obtain summary judgment in its favor in a timely manner, it contends that Plaintiff has waived the right -13to object to the lack of timely notice. Trillium Construction s argument is persuasive. Pursuant to N.C. Gen. Stat. § 1A-1, Rule 56(c), a motion for summary judgment must be served at least ten days before the time fixed for hearing. N.C. Gen. Stat. § 1A-1, Rule 56(c). In the event that service is effectuated by mail, three days must be added to the prescribed notice period. 1, Rule 6(e). N.C. Gen. Stat. § 1A- However, [t]he notice required by [N.C. Gen. Stat. § 1A-1,] Rule 56(c) of the North Carolina Rules of Civil Procedure may be waived by participation in the hearing and by a failure to object to the lack of notice or failure to request additional time by the non-moving party. Patrick v. Ronald Williams, Prof l Ass n, 102 N.C. App. 355, 367, 402 S.E.2d 452, 459 (1991) (quoting Westover Products v. Gateway Roofing, 94 N.C. App. 163, 166, 380 S.E.2d 375, 377 (1989)). As a result of the fact that Trillium Construction mailed its summary judgment motion on 9 August 2013 and the fact that the hearing on that motion was scheduled for 19 August 2013, Trillium Construction concedes, as it must, that it failed to serve its summary judgment motion in a timely manner. At the beginning of the summary judgment hearing, Plaintiff informed the trial court that Trillium Construction had failed to serve its summary judgment motion in accordance with the statutorily -14prescribed deadline. adequacy of However, Plaintiff did not object to the notice time additional the within Construction s motion, that it which had to participated received respond in the or to request Trillium hearing, and addressed the issues raised by Trillium Construction s motion on the merits.6 As a result of Plaintiff s failure to object to the lack of notice or to request additional time and its decision to participate in the hearing, Patrick, 102 N.C. App. at 367, 402 S.E.2d at 459, Plaintiff waived the right to object to Trillium Construction s grounds. As summary a result, judgment motion on the court s decision trial notice-related to grant summary judgment in Trillium Construction s favor should not be disturbed on timeliness grounds. C. Negligent Construction Claims Next, granting Plaintiff summary argues judgment that in the favor trial of court Trillium erred Links by and Trillium Construction on the grounds that Trillium Links and Trillium Construction were negligent, and that Trillium Links was grossly condominiums. negligent, during the construction of the Although Plaintiff s gross negligence claim lacks merit, the trial court erred by granting summary judgment in 6 Although Plaintiff mentioned the timeliness issue in its rebuttal argument before the trial court, it conceded that we ve addressed the issues. -15favor of Trillium Links and Trillium Construction with respect to Plaintiff s negligent construction claims. 1. Finding of Liability a. Negligence To state a claim for common law negligence, a plaintiff must allege: (1) a legal duty; (2) a breach thereof; and (3) injury proximately caused by the breach. City Bd. (2006). by Of Educ., 360 N.C. 321, 328, Stein v. Asheville 626 S.E.2d 263, 267 In the absence of a legal duty owed to the plaintiff [the defendant], negligence. [the defendant] cannot be liable for Id. (quoting Cassell v. Collins, 344 N.C. 160, 163, 472 S.E.2d 770, 772 (1996), overruled on other grounds by Nelson v. Freeland, 349 N.C. 615, 631-32, 507 S.E.2d 882, 892 (1998)). According to Trillium Links, a developer does not owe a legal duty to a condominium unit purchaser and cannot, for that reason, be held liable for negligence. In support of this assertion, Trillium Links notes that Plaintiff has not cited any support for its contention that such a duty exists. other hand, imposes Plaintiff liability on points any out person that who the On the Building constructs, Code supervises construction, or designs a building or alteration thereto, and violates the Code such that the violation proximately causes -16injury or damage, Lassiter v. Cecil, 145 N.C. App. 679, 684, 551 S.E.2d 220, 223 (quoting Olympic Products Co. v. Roof Systems, Inc., 88 N.C. App. 315, 329, 363 S.E.2d 367, 375, disc. review denied, 321 N.C. 744, 366 S.E.2d 863 (1988)), disc. review denied, 354 N.C. 363, 556 S.E.2d 302 (2001), and that a violation of the Building Code constitutes negligence per se. Oates v. Jag, Inc., 314 N.C. 276, 280, 333 S.E.2d 222, 225 (1985). As a result, any person responsible for supervising a construction project is subject to being held liable on a negligent construction theory. According to Plaintiff, the record contains evidence tending to show that Trillium Links supervised the construction of the Trillium Ridge condominiums. More specifically, Plaintiff notes that Trillium Links hired Neill Dalrymple to work on the Trillium that Mr. Dalrymple s Ridge condominium construction project; Construction duties & responsibilities made him [r]esponsible & accountable for the Trillium Ridge project, among others; and that Mr. Dalrymple ha[d] the authority to stop any construction activity at any time to clear up any misunderstandings or expectations or under other terms when he acts on behalf of [Trillium Links]. According to Mr. Culbreth, if Mr. Dalyrmple knowingly saw something that was wrong[,] he could stop it just like a QA, QC officer. In -17addition, Trillium Links charged Trillium Construction more than $80,000.00 for acting as an Asst Project Manager during the construction of Buildings 100 and 200. this evidence, when viewed in the As Plaintiff suggests, light most favorable to Plaintiff, is sufficient to establish the existence of a genuine issue of material fact concerning the extent to which Trillium Links supervised the construction project and whether Trillium Links could lawfully be held liable for negligent construction based upon alleged Building Code violations. In seeking to persuade us to reach a different result, Trillium Links argues, in reliance upon Lassiter, that, even if it were required to adhere to the Building Code, the fact that a Code violation occurred did not establish the existence of a legally effective duty of care. Lassiter does not, however, control the present issue given that the plaintiffs in that case never came under the protection of the Building Code because their house was never completed. 684, 551 S.E.2d at 223-24. Lassiter, 145 N.C. App. at As a result, since persons responsible for supervising construction are obligated to comply with the Building Code and since the necessity for compliance with the Building Code clearly creates a compliance obligation applicable to supervisory personnel, we hold that the trial -18court erred by granting summary judgment in Trillium Links favor with respect to the negligent construction issue. b. Gross Negligence In addition, Plaintiff argues that Trillium Links is liable for gross negligence, which consists of wanton conduct done with conscious or reckless disregard for the rights and safety of others. 551 (1999). purpose, or Parish v. Hill, 350 N.C. 231, 239, 513 S.E.2d 547, An when act is done wanton when needlessly, indifference to the rights of others. it is done manifesting of a wicked reckless Yancey v. Lea, 354 N.C. 48, 52, 550 S.E.2d 155, 157 (2001) (citations omitted). Aside from simply asserting that Trillium Links acted in a grossly negligent fashion, however, Plaintiff has not pointed to any specific act or omission on the part of Trillium Links which it contends to have been grossly negligent. As a result, given Plaintiff s failure to identify any act or omission on the part of Trillium Links that was done with conscious or reckless disregard for the rights and safety of others, Parish, 350 N.C. at 239, 513 S.E.2d at 551, we conclude that the trial court did not err by granting summary judgment in favor of Trillium Links with respect to Plaintiff s gross negligence claim. 2. Statute of Limitations and Repose a. Statute of Limitations -19Next, Trillium Links and Trillium Construction argue that, even if they Plaintiff s applicable owed a legally negligent statute recognized construction of claim limitations. duty to was Plaintiff, barred Plaintiff, on by the the other hand, contends that the record reflects the existence of genuine issues of material negligent fact construction concerning claims the against date upon Trillium which Links its and Trillium Construction accrued for purposes of the statute of limitations. We believe that Plaintiff has the better of this disagreement. The statute of limitations having been pled, the burden is on the plaintiff to show that his cause of action accrued within the limitations period. Crawford v. Boyette, 121 N.C. App. 67, 70, 464 S.E.2d 301, 303 (1995), cert. denied, 342 N.C. 894, 467 S.E.2d 902 (1996). As a general proposition, an order [granting summary judgment] based on the statute of limitations is proper when, and only when, all the facts necessary to establish the limitation are alleged or admitted, construing the non-movant s pleadings liberally in his favor and giving him the benefit of therefrom. all relevant inferences is fact to be drawn Williams, 213 N.C. App. at 4, 714 S.E.2d at 440 (internal quotations omitted). evidence of sufficient to On the other hand, when the support an inference that the -20limitations period has not submitted to the jury. expired, the issue should be Hatem v. Bryan, 117 N.C. App. 722, 724, 453 S.E.2d 199, 201 (1995). Negligent construction claims resulting from physical damage to the plaintiff s property are subject to the three year statute of limitations set out in N.C. Gen. Stat. § 1-52(16), with such claims accruing when 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. Lord v. Customized Consulting Specialty, Inc., 182 N.C. App. 635, 643, 643 S.E.2d 28, 33 (quoting N.C. Gen. Stat. § 1-52(16)), disc. review denied, 361 N.C. 694, 652 S.E.2d 647 Plaintiff s (2007). In support negligent of construction their claims contention are that time-barred, Trillium Links and Trillium Construction argue that Plaintiff had actual consisting notice of of the missing existence or of inadequate construction flashings, defects, in the condominium buildings as of 5 November 2007, when the Lee Report was delivered. As we have already noted, the Lee Report pointed out that [s]ome metal flashings are either too narrow or missing, which require immediate corrections and that some bottom pieces of wood sidings in many locations either touched the ground or are -21too close to the ground. On the other hand, Dr. Lee expressed the opinion that these wood sidings are in good to excellent condition, with the exceptions of the problems outlined in the above observations, and stated that, in the event that the problems delineated in the report were to be corrected, the sidings should last thirty (30) years or longer. Trillium Links and provided Trillium Plaintiff with Construction, notice that According to this the information Trillium Ridge condominiums suffered from construction defects sufficient to put Plaintiff on notice of the negligent construction claims that have been asserted in this case and triggering the running of the applicable statute of limitations with respect to those claims. On the other hand, Plaintiff argues that the problems outlined in the Lee Report were corrected and that it did not have notice of the problems that prompted the assertion of the present claims until 2010, at which point Plaintiff hired an engineer and discovered the existence of extensive problems in other condominium forecast upon buildings. which According Plaintiff relies to in the evidentiary support of this contention, Mr. Tenney, acting in his capacity as President of Plaintiff s colleagues board, about reviewed the the flashing Lee Report, problems informed outlined in his that -22document, and caulking obtained approach adopted. their recommended agreement by that continuous Lee Professor the should be In addition, the record reflects that Mr. Boan did not believe, after learning of the flashing-related defects, that any additional investigation was necessary. testified that neither Mr. Boan nor Mr. Lee Mr. Tenney ever advised Plaintiff that there was any reason to conduct a more extensive investigation defects in concerning the other the possibility buildings at that that there time. were Finally, Plaintiff notes that multiple construction defects outlined in its complaint bore no relation to the flashing problems discussed in the Lee Report. We believe that this evidence, when most viewed in the light favorable to Plaintiff, demonstrates the existence of a genuine issue of material fact concerning construction Trillium the extent, claim Links and that if any, Plaintiff Trillium to which seeks Construction to the negligent assert accrued against more than three years before the date upon which the complaint was filed. As a result, the trial court erred by granting summary judgment with respect to Plaintiff s negligent construction claims in favor of Trillium Links and Trillium Construction on statute of limitations grounds. b. Statute of Repose -23Next, Plaintiff argues that the statute of repose set out in N.C. Gen. Stat. § 1-50(a)(5)(a) does not bar Plaintiff s negligent construction claims relating to Building Nos. 100 and 200 against Trillium Construction and Trillium Links.7 Stat. § 1-50(a)(5)(a) provides that [n]o action N.C. Gen. 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, N.C. Gen. Stat. § 150(a)(5)(a), with an action based upon or arising out of the defective or unsafe condition of an improvement to real property [f]or purposes include an construction of this subdivision having to damages [a]ction[] or repair of an recover improvement N.C. Gen. Stat. § 1-50(a)(5)(b)(2). to been defined to for negligent real property. [N.C. Gen. Stat. § 1- 50(a)(5)(a)] is a statute of repose and provides an outside limit of six years for bringing an action coming within its terms. Roemer v. Preferred Roofing, Inc., 190 N.C. App. 813, 815, 660 S.E.2d 920, 923 (2008) (quoting Whittaker v. Todd, 176 N.C. App. 185, 187, 625 S.E.2d 860, 861, disc. rev. denied, 360 7 As a result of the fact that the claims that Plaintiff has asserted against them sound in breach of fiduciary duty rather than defective construction, Mr. Culbreth and Mr. Ward have not asserted a statute of repose defense in their brief. -24N.C. 545, 635 S.E.2d 62 (2006)). A statute of repose is a substantive limitation that establishes a time frame in which an action must be brought to be recognized. Bryant v. Don Galloway Homes, Inc., 147 N.C. App. 655, 657, 556 S.E.2d 597, 600 (2001). As a result, given that the negligent construction claims that Plaintiff has asserted against Trillium Links and Trillium Construction seek recovery arising from an allegedly defective or unsafe improvement to real property, those claims come within the ambit of N.C. Gen. Stat. § 1-50(a)(5)(a). Unlike an ordinary statute of limitations which begins running upon accrual of the claim, the period contained in the statute of repose begins when a specific event occurs, regardless of whether a cause of action has accrued or whether any injury has resulted. Black v. Littlejohn, 312 N.C. 626, 633, 325 S.E.2d 469, 474-75 (1985) (internal citations omitted). Under the statute, a plaintiff has the burden of showing that he or she brought the action within six years of either (1) the substantial completion of the house or (2) the specific last act or omission of defendant giving rise to the cause of action. Boor v. Spectrum Homes, Inc., 196 N.C. App. 699, 705, 675 S.E.2d 712, 716 (2009). In the event that Plaintiff fails to establish that it had asserted its claim before the expiration of the statute of repose, its claim is insufficient as a matter of -25law. Chicopee, Inc. v. Sims Metal Works, Inc., 98 N.C. App. 423, 426, 391 S.E.2d 211, 213, disc. review denied, 327 N.C. 426, 395 S.E.2d 674 (1990). i. Substantial Completion As an initial Construction contend matter, that Trillium Plaintiff has Links and failed to Trillium bring its claim related to Building Nos. 100 and 200 within six years of the date completed. upon which those buildings were substantially N.C. Gen. Stat. § 1 50(a)(5(c) defines substantial completion as being that degree of completion of a project, improvement or specified area or portion thereof . . . upon attainment of which the owner can use the same for the purpose for which it was intended. N.C. Gen. Stat. § 1-50(a)(5)(c). As this Court had previously held, a building is substantially complete on the date upon which a certificate of occupancy has been issued. Boor, 196 N.C. App. at 705, 675 S.E.2d at 716 (finding that the date of substantial completion for purposes of N.C. Gen. Stat. § 1 50(a)(5) was the date upon which the certificate of occupancy was issued); Nolan v. Paramount Homes, Inc., 135 N.C. App. 73, 76, 518 S.E.2d 789, 791 (1999) (holding that a house was substantially completed for purposes of N.C. Gen. Stat. § 1 50(a)(5) upon the issuance of a certificate of compliance), disc. review denied, 351 N.C. 359, 542 S.E.2d 214 -26(2000). According to the record developed before the trial court, certificates of occupancy were issued for Building No. 100 between 17 August and 23 August 2004 and for Building No. 200 between 11 February and 30 March 2004. As a result of the fact that Building Nos. 100 and 200 were substantially completed nearly seven years before Plaintiff commenced this action on 3 August 2011, construction Plaintiff claim failed within six to years assert of the its date negligent upon which Building Nos. 100 and 200 were substantially completed. ii. Last Act or Omission According to Plaintiff, Trillium Construction s last act with respect to Building No. 200 occurred when it repaired Mr. Tenney s deck in 2006. Although the expression last act or omission statutorily has not been defined, this Court has stated that, [i]n order to constitute a last act or omission, that act or omission must give rise to the cause of action. Nolan, 135 N.C. App. at 79, 518 S.E.2d at 793. As a result, although an act sufficient to affect the running of the statute of repose may occur after the date of substantial completion, a repair does not qualify as a last act under N.C. Gen. Stat. § 1-50(5) unless it is required under the improvement contract by agreement of the parties given that allow[ing] the statute of repose to toll or start running anew each time a repair is -27made would subject a defendant to potential open-ended liability for an indefinite period of time, defeating the very purpose of statutes of repose such as N.C. Gen. Stat. § 1-50(5). Monson v. Paramount Homes, Inc., 133 N.C. App. 235, 240-41, 515 S.E.2d 445, 449-50 (1999). Even so, Plaintiff argues that, since the original construction contract was never produced, the repairs to Mr. Tenney s deck might have been required as part of the original contract and, therefore, could qualify as a last act for statute of repose purposes. However, given that Plaintiff has the burden of showing that he or she brought the action within six years of . . . the specific last act or omission of defendant giving rise to the cause of action, Boor, 196 N.C. App. at 705, 675 S.E.2d at 716, we are unable to accept this contention. the last As a result, we have no basis for determining that act underlying Plaintiff s negligent construction claims occurred later than the date of substantial completion. iii. Possession or Control Finally, Plaintiff argues that Trillium Links and Trillium Construction are not entitled to rely upon N.C. Gen. Stat. § 150(a)(5)(a) on the grounds that they retained possession or control over the condominium buildings. According to N.C. Gen. Stat. repose § 1-50(a)(5)(d), the statute of shall not be asserted as a defense by any person in actual possession or -28control, as owner, tenant or otherwise, of the improvement at the time the defective or unsafe condition constitutes the proximate cause of the injury or death for which it is proposed to bring an action, in the event such person in actual possession or control either knew, or ought reasonably to have known, of the defective or unsafe condition. 1-50(a)(5)(d). N.C. Gen. Stat. § As the Supreme Court has stated, the purpose of the exclusion is to impose a continuing duty to inspect and maintain on improvement, improvement. persons remain in who, after possession of having and constructed control over an that Cage v. Colonial Bldg. Co., Inc. of Raleigh, 337 N.C. 682, 685, 448 S.E.2d 115, 117 (1994). In support of this assertion, Plaintiff argues that Trillium Construction remained in possession or control of the condominiums by virtue of its intermingled existence with Trillium Links and that Trillium Links, as the declarant, had actual control over Plaintiff based upon its board appointment authority until the Association came under the control of the unit owners on 24 February 2007. On the one hand, we are unable to see how the fact that Trillium Construction had an intermingled existence has any tendency to show that it had possession of or control over the condominium buildings after the completion of the construction process given the absence of any attempt on Plaintiff s part to pierce the -29corporate veil. On the other hand, while Trillium Links did, arguably, have possession of or control over the condominium buildings, the record discloses the existence of a genuine issue of material fact concerning the extent, if any, to which Trillium Links knew or should have known of the existence of the defects upon which Plaintiff s claim rests. As a result, although we conclude that Trillium Construction is entitled to rely on the statute of repose as a defense to Plaintiff s negligent construction claims relating to Building Nos. 100 and 200, we further possession or conclude control that the exception to extent the to which statute of the repose defense applies to Trillium Links is a question for the jury. As a result, although Trillium Construction is entitled to rely on the statute of repose to the extent that it is not equitably estopped from doing so, there is a jury question concerning the extent to which Trillium Links is entitled to rely on the statute of repose. c. Equitable Estoppel Next, Plaintiff argues that Defendants are equitably estopped from asserting either the statute of limitations or the statute of repose. cases, to bar a Equitable estoppel may be invoked, in proper defendant from limitations or statute of repose. relying upon the statute of Duke Univ. v. Stainback, 320 -30N.C. 337, 341, 357 S.E.2d 690, 692 (1987); see also Robinson v. Bridgestone/Firestone N. Am. Tire, L.L.C., 209 N.C. App. 310, 319, 703 S.E.2d 883, 889, disc. review denied, 365 N.C. 202, 710 S.E.2d 21 (2011). North Carolina courts have recognized and applied the principle that a defendant may properly rely upon a statute of limitations as a defensive shield against stale claims, but may be equitably estopped from using a statute of limitations as a sword, so as to unjustly benefit from his own conduct White, which 166 induced N.C. App. a at plaintiff 305, to 603 delay S.E.2d filing at 162 suit. (quoting Friedland v. Gales, 131 N.C. App. 802, 806, 509 S.E.2d 793, 796 (1998)). The essential elements of equitable estoppel are: (1) conduct on the part of the party sought to be estopped which amounts to a false representation or concealment of material facts; (2) the intention that such conduct will be acted on by the other party; and (3) knowledge, actual or constructive, of the real facts. Id. (quoting Friedland, 131 N.C. App. at 807, 509 S.E.2d at 796-97). The party asserting the defense must have (1) a lack of knowledge and the means of knowledge as to the real facts in question; and (2) relied upon the conduct of the party sought to be estopped to his prejudice. Id. (quoting Friedland, 131 N.C. App. at 807, 509 S.E.2d at 796-97). -31 In order for equitable estoppel to bar application of the statute of limitations, a plaintiff must have been induced to delay filing of the action by the misrepresentations of the defendant. Jordan v. Crew, 125 N.C. App. 712, 720, 482 S.E.2d 735, 739, disc. review denied, 346 N.C. 279, 487 S.E.2d 548 (1997). In its brief, Plaintiff argues that Trillium Links should be estopped from asserting a statute of limitations or repose defense because its property manager, Mr. Boan, reviewed the Lee Report and advised the Association that he believed that further investigation would not be necessary. However, given that Plaintiff s entire board received the Lee Report and, for that reason, had the same information that was available to Trillium Links, we are unable to see how Trillium Links concealed any information that should have been made available to Plaintiff with respect to the Lee Report. In addition, the record is totally devoid of any information tending to show that Plaintiff was induced to delay filing of misrepresentations of Trillium Links. 720, 482 S.E.2d at 739. the action by the Jordan, 125 N.C. App. at As a result, Trillium Links is not equitably estopped from asserting the statute of limitations or statute of repose construction claims. in opposition to Plaintiff s negligent -32Similarly, Plaintiff argues that Trillium Construction should be estopped from asserting the statute of limitations or the statute of repose against Plaintiff on the grounds that Trillium Construction actively concealed its defective work from Plaintiff. In support of this assertion, Plaintiff points to evidence tending to show that Trillium Construction placed other building materials over subsurface construction defects before these defects could be observed. In addition, Plaintiff asserts that, on occasion, Trillium Construction learned that various defects needed to be repaired without either passing this information along to Plaintiff or ensuring that the defects in question were fixed. According to Plaintiff, this conduct deprived it of the opportunity to discover the defects in a more timely manner and, thus, delayed the filing of Plaintiff s action. Trillium Construction, on the other hand, argues that the Report Lee defects in asserting put 2007 that it Plaintiff and is is, on for notice that equitably of the reason, estopped from construction precluded asserting from the statute of limitations or statute of repose. Given our determination that genuine issues of material fact exist as to whether or not the Lee Report put Plaintiff on notice of the existence of the construction-related defects described in its complaint, it follows that issues of fact exist -33as to whether knowledge as Plaintiff to the lacked real facts knowledge in and question the means of sufficient to establish that Trillium Construction is equitably estopped from asserting the statute of limitations or statute of repose in opposition to the negligent construction asserted against Trillium Construction. 305, 603 S.E.2d at 162. claim that it has White, 166 N.C. App. at As a result, given that the record discloses the existence of a genuine issue of material fact concerning the extent to which Trillium Construction is estopped from asserting the statute of limitations or the statute of repose in opposition to Defendant s negligent construction claim, the trial court erred by granting summary judgment in favor of Trillium Construction with respect to this issue. D. Breach of Fiduciary Duty 1. Individual Directors The only claim asserted against Mr. Culbreth and Mr. Ward in Plaintiff s complaint rests upon an alleged breach of the fiduciary duty that they owed to Plaintiff during their service as members of Plaintiff s board. A fiduciary duty arises when there has been a special confidence reposed in one who in equity and good conscience is bound to act in good faith and with due regard to the interests of the one reposing confidence. Branch Banking & Trust Co. v. Thompson, 107 N.C. App. 53, 60, 418 -34S.E.2d 694, 699 (internal quotation omitted), denied, 332 N.C. 482, 421 S.E.2d 350 (1992). Gen. Stat. § 47C-3-103(a), [i]n the disc. review According to N.C. performance of their duties, the officers and members of the executive board shall be deemed to stand in a fiduciary relationship to the association and the unit owners and shall discharge their duties in good faith, and with that diligence and care which ordinarily prudent men would exercise under similar circumstances in like positions[,] N.C. Gen. Stat. § 47C-3-103(a), with the duties imposed upon members of Plaintiff s board by the Declaration having included the management, replacement, maintenance, repair, alteration, and improvement of the Common Elements. Trillium Links, acting as declarant, appointed Mr. Culbreth and Mr. Ward to Plaintiff s board.8 Mr. Culbreth and Mr. Ward argue that, given that Plaintiff had no role in the construction of the condominium buildings, they had no responsibility for the construction of those buildings or any obligation to inspectors or to otherwise oversee the construction process. hire In support of this position, Mr. Culbreth and Mr. Ward point to the testimony of Mr. Gentry, who indicated that, in his experience, 8 Although Plaintiff argues that, since Mr. Culbreth and Mr. Ward were also members of Trillium Links, this arrangement was presumptively fraudulent, Plaintiff s expert, Marvin Gentry, testified that it is not improper for a developer or declarant to appoint its principals to serve on the board of a condominium association during the period of declarant control. -35condominium original absence associations construction of any do of not the evidence typically participate condominium tending to in the and the Plaintiff had buildings, show that anything to do with the construction of the buildings during the period when the declarant retained control over Plaintiff. In spite of the fact that Mr. Culbreth and Mr. Ward had no direct involvement buildings, disclose they in did, material construction the as facts defects of construction of directors, have regarding the which they were the an condominium obligation existence aware to of to any Plaintiff. King v. Bryant, __ N.C. App. __, __, 737 S.E.2d 802, 809 (2013) (stating that material to an a affirmative transaction duty is to disclose inherent in all any facts fiduciary relationship); Searcy v. Searcy, 215 N.C. App. 568, 572, 715 S.E.2d 853, 857 (2011) (stating that [a] duty to disclose arises where a fiduciary relationship exists between the parties to [a] transaction ). Although Mr. Culbreth and Mr. Ward do not dispute the existence of such a duty to disclose, they do argue that the record does not contain any evidence tending to show that they possessed any information concerning the existence of construction-related defects in the condominium buildings of the type alleged in the complaint. On the other hand, Plaintiff argues that Mr. Culbreth and Mr. Ward actually knew of material -36defects in the foundation of Building No. 100 and failed to disclose the existence of these problems to Plaintiff. For example, Mr. Culbreth and Mr. Ward acknowledge that they had received the Structural Integrity report, which noted that two foundation piers had not been installed in Building No. 100 and that a sagging floor had resulted from this omission. In addition, Mr. Tenney stated that the unit owner-controlled board was never informed by either foundation problems had been buildings. viewed in of the prior discovered directors beneath one that of the As a result of the fact that this evidence, when the light most favorable to Plaintiff, creates a genuine issue of material fact concerning the extent, if any, to which Mr. Culbreth and Mr. Ward breached a fiduciary duty that they owed information to Plaintiff in their by failing possession,9 to the disclose trial court relevant erred by granting summary judgment in their favor with respect to this claim. 2. Trillium Links Next, granted 9 Plaintiff summary argues judgment in that the favor of trial court Trillium erroneously Links on the Although Mr. Culbreth and Mr. Ward stated that the foundation pier problem was corrected and that no one had ever described the sagging floor as a construction defect, these facts go to the weight and credibility of the evidence rather than its sufficiency to support a breach of fiduciary duty claim. -37grounds that the same facts that support a determination that Mr. Culbreth and Mr. Ward violated a fiduciary duty establish a breach of fiduciary duty by Trillium Links as well. Trillium Links, on the other hand, argues that a condominium developer does not, as a matter of North Carolina law, owe a fiduciary duty to the property owner s association during the period of declarant control. Although N.C. Gen. Stat. § 47C-3-103(a) expressly provides that the members of a condominium association board owe a fiduciary duty to the association, N.C. Gen. Stat. § 47C-3-103(a), the Condominium Act is silent with respect to the issue of whether such a duty is owed to association by a developer or declarant. Stat. § 47C-1-108 states that, the condominium However, N.C. Gen. [t]he principles of law and equity supplement the provisions of this chapter, except to the extent inconsistent with this chapter. 1-108. fiduciary Thus, duty the to extent to Plaintiff which during N.C. Gen. Stat. § 47CTrillium the Links period of owed a declarant control must necessarily be governed by common law principles. Generally, in North Carolina . . . there are two types of fiduciary relationships: (1) those that arise from legal relations such as attorney and client, broker and client . . . partners, principal and agent, trustee and cestui que trust, and (2) those that exist as a fact, in which there is confidence -38reposed on one side, and the resulting superiority and influence on the other. S.N.R. Mgmt. Corp. v. Danube Partners 141, LLC, 189 N.C. App. 601, 613, 659 S.E.2d 442, 451 (2008) (quoting Rhone-Poulenc Agro S.A. v. Monsanto Co., 73 F. Supp. 2d 540, 546 (M.D.N.C.1999) (internal quotations omitted)). As a result of the fact that Plaintiff has not asserted that any fiduciary duty arose from a legal relationship between Plaintiff and Trillium Links, we must determine whether a fiduciary existed between Plaintiff and Trillium Links relationship as a matter of fact. The undisputed record evidence establishes, during the period of declarant control, the Declarant [Trillium Links had] control of the Association through its power to appoint and remove Board Members. Plaintiff until 24 Trillium Links remained in control of February 2007, when authority Association was transferred to the unit owners. over the As a result of the fact that Trillium Links had a position of dominance over Plaintiff and the fact that individual unit owners or prospective unit owners had little choice except to rely upon Trillium Links to protect their interests during the period of developer control, we hold that the record contains sufficient evidence from which the existence of a fiduciary duty between the two entities could be established. In addition, for the -39reasons set forth above in connection with our discussion of the breach of fiduciary duty claim that Plaintiff asserted against Mr. Culbreth and Mr. Ward, we further conclude that the record evidence, when Plaintiff, considered evidences in the the light existence of most a favorable genuine to issue of material fact concerning the extent, if any, to which Trillium Links breached a fiduciary duty that it owed to Plaintiff. As a result, the trial court erred by granting summary judgment in favor of Trillium Links with respect to this issue. 3. Statute of Limitations Mr. Culbreth, Mr. Ward, and Trillium Links argue that Plaintiff s fiduciary duty claims are barred by the statute of limitations on the grounds that the Lee Report sufficed to put Plaintiff on notice of the facts upon which their breach of fiduciary duty claims rely. accrue upon subject to the a date three when year Breach of fiduciary duty claims the breach statute of is discovered limitations. and are Toomer v. Branch Banking & Trust Co., 171 N.C. App. 58, 66, 614 S.E.2d 328, 335 (stating that [a]llegations of breach of fiduciary duty that do not rise to the level of constructive fraud are governed by the three-year statute of limitations applicable to contract actions contained in N.C. Gen. Stat. § 1-52(1) ), disc. review denied, 360 N.C. 78, 623 S.E.2d 263 (2005). As a result -40of our determination that the trial court erred by granting summary judgment with respect to the issue of whether Plaintiff s negligent construction claims were time-barred given the existence of genuine issues of material fact concerning the date upon which Plaintiff knew or had reason to believe that extensive defects existed in the condominium buildings and the fact that the same principles are applicable to the present issue, we summary conclude judgment in that the favor trial of Mr. court erred Culbreth, by Mr. granting Ward, and Trillium Links with respect to Plaintiff s breach of fiduciary duty claims on statute of limitations grounds. E. Constructive Fraud Next, Plaintiff contends that the record evidence tends to show the existence of a valid claim for constructive against Mr. Culbreth, Mr. Ward, and Trillium Links. fraud For that reason, Plaintiff further contends that the trial court erred by granting summary judgment in favor of Mr. Culbreth, Mr. Ward, and Trillium Links on the grounds that a ten-year statute of limitations applies to this claim.10 Plaintiff s argument lacks merit. 10 A claim of constructive fraud based upon a breach of fiduciary duty falls under the ten-year statute of limitations[.] NationsBank of N.C. v. Parker, 140 N.C. App. 106, 113, 535 S.E.2d 597, 602 (2000). -41Although the showing necessary to establish the existence of a breach of fiduciary duty and constructive fraud involves overlapping elements, the two claims are separate under North Carolina law. White, 166 N.C. App. at 293, 603 S.E.2d at 155. In order to recover for constructive fraud, a plaintiff must establish the existence of circumstances (1) which created the relation of trust and confidence, and (2) [which] led up to and surrounded the consummation of the transaction in which defendant is alleged to have taken advantage of his position of trust[.] State ex rel. Long v. Petree Stockton, L.L.P., 129 N.C. 432, App. 445, 499 S.E.2d 790, 798 (quoting Rhodes v. Jones, 232 N.C. 547, 549, 61 S.E.2d 725, 726 (1950)), disc. review dismissed, 349 N.C. 240, 558 S.E.2d 190 (1998). Further, an essential element of constructive fraud is that defendants sought to benefit themselves in the transaction. Piles v. Allstate Ins. Co., 187 N.C. App. 399, 406, 653 S.E.2d 181, 186 (2007) (quotation omitted), disc. review denied, 362 N.C. 361, 663 S.E.2d 316 (2008). The primary difference between pleading a claim for constructive fraud and one for breach of fiduciary duty is the constructive fraud requirement that the defendant benefit himself. 294, 603 S.E.2d at 156. White, 166 N.C. App. at In order to satisfy this requirement, Plaintiff s evidence must prove defendants sought to benefit -42themselves or relationship. to take advantage of the confidential Wilkins v. Safran, 185 N.C. App. 668, 675, 649 S.E.2d 658, 663 (2007) (citing Barger v. McCoy Hillard & Parks, 346 N.C. 650, 666, 488 S.E.2d 215, 224 (1997)). In its complaint, Plaintiff alleged in support constructive fraud claim that: 70. By virtue of their positions as officers and directors of the Association and their control over the Association, Defendants Trillium Links, Culbreth and Ward stood in a relationship of special faith, confidence and trust with respect to the Plaintiff Association. These Defendants therefore owed fiduciary duties to the Association under North Carolina law. . . . . 72. These Defendants breached their fiduciary duties and acted in their own interests instead of those of the Association by hiring Trillium Construction, which shared common ownership and control with Trillium Links, to build the Trillium Ridge Condos. Upon information and belief, these Defendants benefited from this transaction at the expense of the Association. . . . . 74. These Defendants also breached their fiduciary duties by failing to disclose material facts regarding the defects and their own negligence and conflict of interest actions to the unit owners and the new members of the Association s Executive Board when control of the Association was transferred in February, 2007. of its -43Although Plaintiff alleged that Mr. Culbreth, Mr. Ward, and Trillium Links benefitted from this transaction at the expense of the Association, Plaintiff has not directed our attention to any evidence tending to show that Defendants sought or gained any personal benefit by taking unfair advantage of their relationship with Plaintiff. Simply put, given that Plaintiff has evidence failed to adduce any tending to show that defendants sought to benefit themselves in the transaction, Piles, 187 N.C. App. at 406, 653 S.E.2d at 186, it has failed to forecast sufficient evidence to establish a constructive fraud claim governed by a ten year statute of limitations rather than a breach of fiduciary duty governed by a three year statute of limitations.11 F. Breach of Warranty Finally, Plaintiff argues that the trial court erred by granting summary judgment in favor of Trillium respect to its breach of warranty claim. Plaintiff argues that Trillium Links Links with More specifically, breached the implied warranty applicable to condominium units to the effect that the premises are free from defective materials, constructed in a workmanlike 11 manner, [and] constructed according to sound However, for the reasons set forth above, Plaintiff s breach of fiduciary duty claims survive the summary judgment stage of this case. -44engineering and construction standards[.] 47C-4-114. of However, a declarant and any person in the business selling liability N.C. Gen. Stat. § in real an estate for instrument his signed own by account the may disclaim purchaser for a specified defect or specified failure to comply with applicable law, if the defect or failure entered into and became a part of the basis of the bargain. N.C. Gen. Stat. § 47C-4-115(b). Although Trillium Links does not contest the existence of the warranty upon which Plaintiff s claim relies or argue that the record does not contain any evidence tending to show that a breach of this warranty occurred, it does argue that Plaintiff s breach of warranty claim is barred by the applicable statute of limitations or statute of repose. Plaintiff s claim for breach of warranty is subject to a three year statute of limitations, with this claim accruing upon discovery of the breach. Kaleel Builders, Inc. v. Ashby, 161 N.C. App. 34, 44, 587 S.E.2d 470, 477 (2003) (the statute of limitations for breach of warranty is three years from the date of the breach), disc. review denied, 358 N.C. 235, 595 S.E.2d 152 (2004). As a result of our earlier determination that the record reflects the existence of a genuine issue of material fact concerning the date upon which Plaintiff knew or reasonably should have known of the existence of the construction defects -45upon which its claim relies, we hold that Trillium Links was not entitled to the entry of summary judgment in its favor with respect to Plaintiff s breach of warranty claims on statute of limitations grounds. Similarly, given the existence of a genuine issue of material fact concerning the extent, if any, to which Trillium Links knew, or had reasonable grounds to know, of the existence of the defects in the construction of the Trillium Ridge condominiums, Trillium Links was not entitled to summary judgment in its favor on statute of repose grounds. As a result, to the extent to that the trial court granted summary judgment in favor of Trillium Links with respect to Plaintiff s breach of warranty on the basis of the applicable statute of limitations or the statute of repose, the trial court erred. III. Conclusion Thus, for the reasons set forth above, we conclude that the trial court correctly granted summary judgment with respect to some issues and erred by granting summary judgment with respect to other issues. As a result, the trial court s orders and amended orders should be, and hereby are, affirmed in part and reversed in part remanded to the and this Jackson case County should Superior be, and Court hereby for proceedings not inconsistent with this opinion. AFFIRMED IN PART; REVERSED AND REMANDED IN PART. is, further -46Judge STROUD concurs. Judge ROBERT N. HUNTER, JR. concurred in part and concurred in result only in part in separate opinion prior to 6 September 2014. NO. COA14-183 NORTH CAROLINA COURT OF APPEALS Filed: 16 September 2014 TRILLIUM RIDGE CONDOMINIUM ASSOCIATION, INC., Plaintiff, v. Jackson County No. 11 CVS 462 TRILLIUM LINKS & VILLIAGE, LLC; TRILLIUM CONSTRUCTION COMPANY, LLC; SHAMBURGER DESIGN STUDIO, P.C., SHAMBURGER DESIGN, INC. (f/k/a SHAMBURGER DESIGN STUDIO, INC.), S.C. CULBRETH, JR., AND GREGORY A. WARD, Defendants. HUNTER, JR., Robert N., Judge, concurring. I concur in the opinion of the majority in all respects except for the analysis of the constructive fraud claim. For the reasons discussed in Orr v. Calvert, 212 N.C. App. 254, 270, 713 S.E.2d 39, 50 (Hunter, Jr., J., dissenting), rev d for reasons stated in dissenting opinion, 365 N.C. 320, 720 S.E.2d 387 (2011), I only concur in the results as to this issue.

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