UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

V.P.M., INCORPORATED,
Plaintiff-Appellant,

v.
                                                                 No. 98-1740
MCLAREN HART ENVIRONMENTAL
ENGINEERING CORPORATION,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Greenville.
Terrence W. Boyle, Chief District Judge.
(CA-97-35-4-BO)

Submitted: November 24, 1998

Decided: August 3, 1999

Before ERVIN, WILLIAMS, and MOTZ,
Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

J. Martin Futrell, MICHAEL W. STRICKLAND & ASSOCIATES,
P.A., Raleigh, North Carolina, for Appellant. Johnny M. Loper,
Christine Sandez, WOMBLE, CARLYLE SANDRIDGE & RICE,
P.L.L.C., Raleigh, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

V.P.M., Inc., appeals from the district court's order granting sum-
mary judgment to McLaren Hart Environmental Engineering Corpo-
ration (McLaren Hart) on V.P.M.'s action alleging breach of contract
and professional negligence/malpractice. V.P.M. contends that the
district court erred in applying the four-year statute of repose applica-
ble to professional malpractice actions in North Carolina, rather than
the six-year period applicable to claims arising out of defects in
improvements to real property. Finding no error, we affirm.

In March 1991, V.P.M.'s predecessor negotiated with General
Electric Capital Corporation (GECC) for the purchase of Vernon Park
Mall in Kinston, North Carolina.* Based on its concern over possible
environmental hazards, V.P.M. requested an environmental inspection
of the mall property. The realtor handling the sale, John Kane, entered
into a contract with McLaren Hart to conduct an environmental
inspection of the mall property, including soil vapor surveys, visual
asbestos inspection, and sampling tests. After GECC approved the
release of the reports, McLaren Hart prepared and delivered an
updated report and summary of the environmental testing to Kane on
or about July 26, 1991. Based on McLaren Hart's representations in
the report, V.P.M. purchased the mall in August 1991.

In 1996, during renovations to the Belk's Store, V.P.M. discovered
asbestos in the ceiling tiles, requiring an immediate abatement at a
cost of over $200,000. V.P.M. then filed this action against McLaren
Hart on January 23, 1997, alleging breach of contract and professional
negligence/malpractice based on its failure to properly test the Belk
ceiling tiles. The district court granted summary judgment in favor of
_________________________________________________________________
*V.P.M., Inc., incorporated in July 1991 for the sole purpose of pur-
chasing the mall.

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McLaren Hart, finding that the action was barred by the four-year
statute of repose applicable to professional malpractice actions in
North Carolina. V.P.M. appeals.

We review a grant of summary judgment de novo. See Higgins v.
E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1167 (4th Cir. 1988).
Summary judgment is appropriate only when the court, viewing the
record as a whole and in the light most favorable to the non-moving
party, finds there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law. See Fed. R.
Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986).

Section 1-15 of the North Carolina General Statutes applies to
causes of action for professional malpractice arising out of the perfor-
mance or failure to perform professional services based on negligence
or breach of contract. See N.C. Gen. Stat.§ 1-15(c) (1997). Section
1-15(c) establishes a four-year statute of repose that accrues on the
date of the "last act of the defendant giving rise to the cause of
action." Id. The statute is intended"to apply to malpractice claims
against all professionals who are not dealt with more specifically by
some other statute." Trustees of Rowan Technical College v. J. Hyatt
Hammond Assoc., Inc., 328 S.E. 2d 274, 279 (N.C. 1985).

Section 1-50 applies to claims arising out of defects in improve-
ment to realty caused by the performance of designers and builders.
See N.C. Gen. Stat. § 1-50 (1997). Section 1-50 is "in essence, an
architect's and builder's malpractice statute." Trustees of Rowan
Technical College, 328 S.E.2d at 280. The statute is "specifically
applicable to architects and others who plan, design or supervise con-
struction, or who construct improvements to real property." Id. at 279.

V.P.M.'s claims arise out of McLaren Hart's alleged negligent per-
formance of, or failure to perform, professional services--not out of
defects in improvement to the property caused by McLaren Hart's
performance. Accordingly, we find that the four-year statute of repose
applies to V.P.M.'s claims. Therefore, the action must have been filed
within four years of the issuance of the Environmental Assessment
Report on July 26, 1991, which was the last act giving rise to the
cause of action. See N.C. Gen. Stat. § 1-15(c). Because V.P.M. did

                    3
not file this action until January 23, 1997, the district court properly
granted summary judgment to McLaren Hart and we affirm. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED

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