UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SUGAR TOP RESORT CONDOMINIUM
ASSOCIATION, INCORPORATED, a/k/a
Sugar Top Homeowners
Association,
Plaintiff-Appellant,

v.
                                                                    No. 95-2369
BATSON-COOK OF ATLANTA,
INCORPORATED; STEVENS &
WILKINSON OF SOUTH CAROLINA,
formerly known as Stevens &
Wilkinson, Incorporated,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
J. Toliver Davis, Magistrate Judge.
(CA-94-134-1)

Argued: May 7, 1996

Decided: June 17, 1996

Before NIEMEYER AND WILLIAMS, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Anthony Samuel di Santi, DI SANTI WATSON, Boone,
North Carolina, for Appellant. John Littleton Glover, Sr., GLOVER
& DAVIS, P.A., Newnan, Georgia; Thomas M. Starnes, Sr., PAT-
TON, STARNES, THOMPSON, AYCOCK, TEELE & BALLEW,
P.A., Morgantown, North Carolina, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Sugar Top Resort Condominium Association, Inc. (Sugar Top), a
successor-in-interest to the developer of a large condominium com-
plex in North Carolina, sued Batson-Cook of Atlanta, Inc. (Batson-
Cook), the general contractor who constructed the condominiums, and
Stevens & Wilkinson of South Carolina, Inc. (Stevens), the architec-
tural firm who designed them, for negligent design, construction, and
repair of the condominiums' balconies. Four years after the parties
signed a certificate of substantial completion of the condominiums,
the balconies began to develop cracks and rust stains. At that point,
Batson-Cook agreed to inspect the balconies and correct construction
defects. Pending those repairs, Sugar Top, Batson-Cook, and Stevens
executed an agreement purporting to suspend for several months the
statute of limitations with respect to any claim of Sugar Top arising
out of the design or construction of the balconies. Shortly thereafter,
Batson-Cook removed rust from and regrouted the balconies in accor-
dance with its previous repair proposal. A Sugar Top official subse-
quently approved of these repairs as being "completed to the
satisfaction of the Sugar Top Homeowners' Association." (J.A. at 60.)

Approximately three years later, when the balconies again began to
crack, Sugar Top filed this action in state court in North Carolina,
alleging that the defendants were negligent in both the original design
and construction and the subsequent attempted repairs of the balco-
nies. Batson-Cook and Stevens jointly removed the case to federal
court based on federal diversity jurisdiction, and the parties then con-

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sented to disposition by a magistrate judge. See 28 U.S.C.A.
§ 636(c)(1) (West 1993).

Upon the motions for summary judgment filed by Batson-Cook
and Stevens, the magistrate judge entered judgment in favor of the
defendants on all claims. Applying North Carolina law, the magistrate
judge ruled that a six-year statute of repose barred Sugar Top's claims
based on the original design and construction of the condominiums.
See N.C. Gen. Stat. § 1-50(5)(a) (Supp. 1995). Regarding Sugar Top's
claim of negligent repair against Batson-Cook, the magistrate judge
concluded that the parties' "tolling agreement" (J.A. at 253), com-
bined with Sugar Top's approval of the repairs, constituted an accord
and satisfaction in settlement of that claim, see Bromhal v. Stott, 447
S.E.2d 481, 484 (N.C. Ct. App.) (observing that an accord and satis-
faction, like a compromise and settlement, is a method of discharging
a cause of action by an "agreement between the parties concerning
payment or acceptance of less than the full amount owed"), disc. rev.
denied, 454 S.E.2d 246 (N.C. 1994). In addition, the magistrate judge
found that Sugar Top's own expert witness opined that Batson-
Cook's repairs were proper. Finally, with respect to Sugar Top's
claim that Stevens was negligent in failing to design a proper repair
of the balconies, the magistrate judge found that Stevens's profes-
sional services ended upon its execution of the certificate of substan-
tial completion and that Sugar Top "has presented no evidence that
Stevens has performed any act or committed any omission through
professional design or other services" since that time. (J.A. at 255.)
Sugar Top appeals these rulings. See 28 U.S.C.A. § 636(c)(3).

We have carefully considered the briefs and oral arguments of the
parties, as well as the record on appeal and applicable law. Sugar Top
has failed to persuade us that its claims arising out of the original
design and construction are still viable in view of the six-year statute
of repose. Sugar Top, moreover, has not demonstrated that Stevens
either agreed -- or had a continuing duty -- to inspect and correct its
design specifications after the termination of its professional services.
See Clouse v. Gordon, 445 S.E.2d 428, 433 (N.C. Ct. App. 1994)
("[T]he law is such that `mere inaction does not constitute negligence
in the absence of a duty to act.'") (quoting 65 C.J.S. Negligence § 18).
Turning to the claim against Batson-Cook, we find that although it
owed Sugar Top the duty to exercise ordinary care in the performance

                     3
of the repairs that it undertook, see Abner Corp. v. City Roofing &
Sheetmetal Co., 326 S.E.2d 632, 633 (N.C. Ct. App. 1985), Batson-
Cook fulfilled that duty. The engineering firm retained by Sugar Top
reported that Batson-Cook's repairs were proper, and the firm's mate-
rials engineer further testified that those repairs conformed to Ste-
vens's design specifications, thus insulating Batson-Cook from
liability. See Burke County Pub. Sch. Bd. of Educ. v. Juno Constr.
Corp., 273 S.E.2d 504, 506-07 (N.C. Ct. App. 1981) (holding that
general contractor is not liable for construction defects so long as it
complied with the plans and specifications of the architect retained by
the owner). To the extent that Sugar Top contends that Batson-Cook
was negligent in restoring the balconies to their original condition,
Sugar Top's claims arise out of the original design and construction,
and thus they are time-barred. For these reasons, we find no reversible
error in the magistrate judge's memorandum of decision and accord-
ingly affirm.

AFFIRMED

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