               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA19-674

                                 Filed: 4 August 2020

Dare County, No. 16-CVS-644

DIANA TSONEV for the ESTATE of ROBERT SHEARER and MINERVA SHEARER
by DIANA TSONEV, Plaintiffs,

              v.

MCAIR, INC. d/b/a OUTER BANKS HEATING & COOLING and MCAIR, INC. d/b/a
DR. ENERGY SAVER, Defendant.


        Appeal by plaintiffs from orders entered 20 March 2019 by Judge Alma Hinton

in Dare County Superior Court. Heard in the Court of Appeals 7 January 2020.


        The Wills Law Group, by Gregory E. Wills, for plaintiff-appellants.

        McAngus Goudelock & Courie, PLLC, by Walt Rapp and Sean R. Madden, for
        defendant-appellees.


        BRYANT, Judge.


        Parties are generally free to contract as they see fit. Where, as here, the

contract contains an express provision that no action may be brought more than two

years after the completion of the work contracted, we affirm the trial court’s directed

verdict dismissing an action commenced more than five years after completion of the

work.

                          PROCEDURAL HISTORY/ FACTS
                                    TSONEV V. MCAIR, INC.

                                       Opinion of the Court



       Mr. and Mrs. Robert Shearer, represented by Diana Tsonev,1 (“plaintiffs”) filed

a complaint against defendant McAir, Inc. d/b/a Outer Banks Heating and Cooling

(“defendant McAir OBHC”) and McAir, Inc, d/b/a Dr. Energy Saver (“defendant McAir

DES”) (collectively “defendants”) on 29 November 2016 in Dare County Superior

Court. Plaintiffs alleged that defendants did not properly remediate flood damage to

their home and negligently caused damage in excess of $25,000. Plaintiffs sought

recovery for negligence, negligent misrepresentation, breach of contract, breach of

implied warranty, and breach of express warranty. On 28 January 2019, a jury trial

commenced before the Honorable Alma Hinton, Judge presiding.

       The evidence of record shows that plaintiffs owned a house in Kill Devil Hills,

North Carolina. On 27 August 2011, the home was damaged by flood waters as a

result of Hurricane Irene. Plaintiffs hired defendant McAir OBHC to repair the

HVAC system, which included replacing the duct system under the house. Defendant

McAir informed plaintiffs that their affiliated company, defendant McAir DES, could

remediate other damage to the subfloor and crawlspace under the house. Defendant

McAir DES submitted a proposal to plaintiffs detailing the scope of the work to be

performed, which included six items. Defendant McAir DES would (1) remove all

insulation under the home, (2) foam seal the chimney base and all penetrations of

electrical or plumbing works, (3) treat all biochemical areas of the crawlspace, (4)


       1  Upon the death of Robert Shearer his daughter, Diana Tsonev, was allowed to be substituted
as plaintiff for Robert and allowed to represent Minerva Shearer as her attorney in fact.

                                               -2-
                               TSONEV V. MCAIR, INC.

                                  Opinion of the Court



install new R-19 bat insulation, (5) clean all wood in the crawlspace, and (6) clean up

and remove all debris. The proposal stated that a chemical treatment and seal

(“Aftershock”) would be applied in order to stop existing mold growth. A number of

terms and conditions provided that the contract would supply only the work specified

and that all services performed and materials supplied would be free from defects for

two years following installation. “[Defendant McAir DES] [is] not liable for any

consequential, incidental, indirect, punitive, treble, speculative, or special damages

of any kind whatsoever, and [purchasers] may not bring any action against

[defendant McAir DES] more than two (2) years after the Completion Date.” Finally,

the proposal contained a merger clause which stated the following:

             This Agreement (and all attachments) contain the entire,
             final agreement between you and us, and supersedes all
             prior written and oral agreements, proposals, and
             understandings. You (i) have had the opportunity to
             review it with an attorney of your choice, (ii) have read and
             understood each part, (iii) are satisfied with all of its
             provisions, and (iv) affirm that neither we, nor any of our
             representatives, have made, nor have you relied on any
             other representatives or promises, oral or otherwise, that
             are outside this Agreement. All waivers must be in writing
             to be effective.

Plaintiffs signed and accepted the proposal on 2 September 2011. The crawlspace

remediation was completed at the end of September 2011.

      Almost five years later, in July 2016, plaintiffs noticed that the floor of the

residence was sagging. Thereafter, plaintiffs discovered that in the crawlspace, the



                                         -3-
                                TSONEV V. MCAIR, INC.

                                   Opinion of the Court



wood which had been painted with Aftershock had rotted. A building inspector later

examined the crawlspace. Floor joists and girders had failed and collapsed, and the

rest were in the process of failing. The inspector condemned the house as being

unsafe for human occupants.

      Following the close of plaintiff’s case-in-chief, the court rendered a directed

verdict in favor of defendants. Plaintiffs filed a motion for a new trial. On 20 March

2019, the court entered its written order granting defendants’ motion for directed

verdict.

             [T]he [c]ourt . . . finds that there is a contract in this case
             that calls for any action to be taken within two years. That
             action was not taken. The contract was signed by [p]laintiff
             and it appears to be a valid contract acknowledged by
             [defendant McAir DES], or a representative thereof, that
             requires action to be taken within two years.

On 20 March 2019, the court also entered its order denying plaintiffs’ motion for a

new trial. Plaintiffs appeal both orders.

             _______________________________________________________

       On appeal, plaintiffs contend the trial court erred by (I) failing to apply the

“discovery rule,” (II) excluding evidence in support of the claim for negligent

misrepresentation, (III & IV) excluding expert witness testimony, and (V) entering a

directed verdict and failing to grant plaintiffs’ motion for a new trial.

                                  Standard of Review




                                            -4-
                                   TSONEV V. MCAIR, INC.

                                     Opinion of the Court



                              When considering a motion for a
                       directed verdict, a trial court must view the
                       evidence in the light most favorable to the
                       non-moving party, giving that party the
                       benefit of every reasonable inference arising
                       from the evidence.         Any conflicts and
                       inconsistencies in the evidence must be
                       resolved in favor of the non-moving party. If
                       there is more than a scintilla of evidence
                       supporting each element of the non-moving
                       party’s claim, the motion for a directed verdict
                       should be denied.

             . . . [B]ecause the trial court’s ruling on a motion for a
             directed verdict addressing the sufficiency of the evidence
             presents a question of law, it is reviewed de novo.

Bradley Woodcraft, Inc. v. Bodden, 251 N.C. App. 27, 31, 795 S.E.2d 253, 257 (2016)

(citations omitted).

                                              I

      Plaintiffs argue that the trial court erred by granting the motion for a directed

verdict and not applying the “discovery rule,” pursuant to N.C. Gen. Stat. §§ 1-52(16)

and 1-50(5) (describing periods of repose and limitation for the commencement of

actions arising from improvements to real property). Plaintiffs contend that the

directed verdict granted on the basis of their failure to bring this action within the

two-year period expressed in the contract was improper as they commenced the action

within the periods set by our statutes of limitation and repose as defined by sections

1-52(16) and -50(5). We disagree.




                                            -5-
                                   TSONEV V. MCAIR, INC.

                                      Opinion of the Court



       N.C. Gen. Stat. § 1-52(16) states that “unless otherwise provided by law, for . .

. physical damage to claimant’s property, the cause of action . . . shall not accrue until

. . . physical damage to his property becomes apparent . . . .” N.C. Gen. Stat. § 1-

52(16) (2019). Additionally, N.C. Gen. Stat. § 1-50(5) states that,

                 [n]o action 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.

Id. § 1-50(5).

       N.C. Gen. Stat. § 1-50(5) sets out a six-year statute of repose that is meant to

provide “protection to those who make improvements to real property.” Christie v.

Hartley Constr., 367 N.C. 534, 540, 766 S.E.2d 283, 288 (2014). In Christie, our

Supreme Court reasoned that there was “no public policy reason why the beneficiary

of a statute of repose cannot bargain away, or even waive, that benefit.” Id. at 540,

766 S.E.2d 283, 287. “North Carolina has long recognized that parties generally are

‘free to contract as they deem appropriate.’ ” Id. at 540, 766 S.E.2d 283, 287 (quoting

Hlasnick v. Federated Mut. Ins. Co., 353 N.C. 240, 244, 539 S.E.2d 274, 277 (2000)).

This Court has also stated that when “the language of a contract ‘is clear and only

one reasonable interpretation exists, the courts must enforce the contract as written.’

” State ex rel. Utils. Comm’n v. Thrifty Call, Inc., 154 N.C. App. 58, 63, 571 S.E.2d

622, 626 (2002) (quoting Woods v. Nationwide Mut. Ins. Co., 295 N.C. 500, 506, 246


                                             -6-
                               TSONEV V. MCAIR, INC.

                                  Opinion of the Court



S.E.2d 773, 777 (1978)); see also Hall v. Refining Co., 242 N.C. 707, 709, 89 S.E.2d

396, 397 (1955) (“While contracts exempting persons from liability for negligence are

not favored by the law, and are strictly construed against those relying thereon

nevertheless, the majority rule, to which we adhere, is that, subject to certain

limitations . . . a person may effectively bargain against liability for harm caused by

his ordinary negligence in the performance of a legal duty arising out of a contractual

relation.” (citations omitted)); Bob Timberlake Collection, Inc. v. Edwards, 176 N.C.

App. 33, 43–44, 626 S.E.2d 315, 323–24 (2006) (holding that the plaintiff’s failure to

adhere to the express provision of the contract—setting the period during which an

action for damages could be brought—was controlling).

      Agreements signed by plaintiffs can exempt defendants from liability for

negligence alleged in the complaint. See Hall, 242 N.C. at 709, 89 S.E.2d at 397 (“[A]

person may effectively bargain against liability for harm caused by his ordinary

negligence in the performance of a legal duty arising out of a contractual relation.”

(citations omitted)).   While we are not unsympathetic to the injury suffered to

plaintiffs’ real property and otherwise, our sympathy cannot displace our duty to

apply the law. Had plaintiffs not signed the agreement which clearly limited the time

in which an action could be brought, plaintiffs’ claims could have gone forward subject

to the discovery rule and/or the statute of repose. However, absent evidence of fraud

or misrepresentation in the making of the contract, plaintiffs are bound by the



                                         -7-
                                TSONEV V. MCAIR, INC.

                                   Opinion of the Court



language in the contract into which they entered. See Herring v. Herring, 231 N.C.

App. 26, 28, 752 S.E.2d 190, 192 (2013) (“[A]ny . . . contract . . . may be set aside or

reformed based on grounds such as fraud, mutual mistake of fact, or unilateral

mistake of fact procured by fraud.” (citations omitted)); Top Line Constr. Co. v. J.W.

Cook & Sons, Inc., 118 N.C. App. 429, 432–33, 455 S.E.2d 463, 465 (1995) (affirming

summary judgment against the plaintiff who sought monetary damages for work

completed but not compensated where the plaintiff expressly agreed to be bound by

the decision of a third party architect or engineer as to the satisfaction, approval, or

acceptance of the plaintiff’s work).

      In the instant case, the contract provided that the writing contained the entire,

final agreement of the parties. The provisions of the contract included an express

limitation: “[defendant is] not liable for any consequential, incidental, indirect,

punitive, treble, speculative, or special damages of any kind whatsoever, and you may

not bring any action against us more than two (2) years after the Completion Date.”

(emphasis added). The crawlspace remediation was completed in September 2011.

Plaintiffs’ brought suit in November 2016, more than five years later.

      Because the express provision of the contract is clear, the contract must be

enforced as written. See Hall, 242 N.C. at 709, 89 S.E.2d at 397; Herring, 231 N.C.

App. at 28, 752 S.E.2d at 192; Bob Timberlake Collection, Inc., 176 N.C. App. at 43–

44, 626 S.E.2d at 323–24; Thrifty Call, Inc., 154 N.C. App. at 63, 571 S.E.2d at 626;



                                          -8-
                               TSONEV V. MCAIR, INC.

                                   Opinion of the Court



Top Line Constr. Co., 118 N.C. App. at 432–33, 455 S.E.2d at 465. The trial court did

not err by failing to apply the discovery rule in accordance with N.C. Gen. Stat. §§ 1-

52(16) and 1-50(5), and thus, plaintiff’s argument is overruled. Accordingly, we

affirm the 20 March 2019 order of the trial court granting defendants’ motion for a

directed verdict.

      As we affirm the court’s 20 March 2019 order granting defendant’s motion for

a directed verdict based on the express limitation in the contract, we need not reach

plaintiffs’ remaining arguments.

      AFFIRMED.

      Judges ZACHARY and COLLINS concur.




                                          -9-
