Trillium Ridge Condominium Ass'n v. Trillium Links & Village, LLC

NO. COA14-183
NORTH CAROLINA COURT OF APPEALS
Filed: 16 September 2014

TRILLIUM RIDGE CONDOMINIUM
ASSOCIATION, INC.,
Plaintiff

Jackson County
v.
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 by Judge Marvin P.

Pope, Jr., in Jackson County Superior Court. 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., by Robert E.
Allen, for Defendants Ward and Culbreth.

ERVIN, Judge.
 -2-
Plaintiff Trillium Ridge Condominium Association, Inc.,

appeals from orders and amended orders granting summary judgment

in favor of Defendants Trillium Construction Company, LLC;

Trillium Links & Village, LLC; and S.C. Culbreth, Jr., and

Gregory A. Ward. On appeal, Plaintiff argues that Defendants’

motions for summary judgment should have been denied for the

following reasons: (1) Trillium Construction’s motion for

summary judgment was filed in an untimely 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 buildings 100 and 200 are not barred by the

applicable statute of repose; (8) summary judgment based on

contributory negligence was improper; and (9) Trillium

Construction’s failure to mitigate its damages does not support

an award of summary judgment.1 After careful consideration of

1
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
 -3-
Plaintiff’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 residences, including homes, townhouses, and

condominiums. 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.
 -4-
been 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 Declaration allowed Trillium Links, as

developer-declarant, the right to appoint officers to

Plaintiff’s executive board. As a result, Trillium 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.
 -5-
In 2003, Trillium Links hired Trillium Construction to serve as

the general contractor for the construction of the Trillium

Ridge Condominiums. Although Trillium Links 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. No information regarding the

foundation problems in Building No. 100 or the Structural

Integrity report was disclosed to the new board. 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.
 -6-
According 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.” In

addition, Professor Lee noted that, at many locations, the

bottoms of the siding pieces either touched or were too close to

the ground and recommended that this problem be corrected.

Finally, Professor Lee concluded that, if the problems 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 Lee Report and were made aware of the

flashing defects. Upon receiving the Lee Report, James Tenney,

who had been elected to the board after control of the
 -7-
development 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 October 2010, leaks were discovered in

Building Nos. 100 and 300. Upon further investigation,

extensive water damage and rotting was 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 19 October 2010, Sydney E. Chipman, P.E.,

submitted a report detailing his findings concerning the

condition of Building No. 100. In his report, Mr. Chipman

indicated that “[i]mproper flashing details at the 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
 -8-
of 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. On 6

October 2011, 10 October 2011, and 12 December 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.
 -9-
the Chief Justice would designate this case as exceptional

pursuant to Rule 2.1 of the General Rules of Practice. On 8

March 2013, the Chief Justice designated this 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, or in the alternative, partial summary

judgment. On 22 July 2013, Trillium Links filed a motion for

summary judgment. On 9 August 2013, Trillium Construction filed

a revised motion for summary judgment. On 14 August 2013,

Plaintiff filed materials in opposition to these summary

judgment motions. 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. On

12 September 2013, the trial court entered amended orders

granting summary judgment in favor of Mr. Culbreath, Mr. Ward,
 -10-
Trillium Construction, and Trillium Links, granting partial

summary judgment in favor of Trillium 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 appeal to this Court from 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’ summary judgment motions. More

specifically, Plaintiff argues that Trillium Construction’s

motion for summary judgment was untimely; 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 as a matter of law.” Williams v. Houses of

Distinction, Inc., 213 N.C. App. 1, 3, 714 S.E.2d 438, 440

(2011). 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 moving party is entitled to

judgment as a matter of law.” 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 non-

moving 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
 -12-
are issues relating to whether a party exercised reasonable

care, summary judgment is inappropriate.’” 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 Trillium

Construction’s summary judgment motion was untimely. Although

Trillium Construction acknowledges having failed to provide

notice of its effort to obtain summary judgment in its favor in

a timely manner, it contends that Plaintiff has waived the right
 -13-
to 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. N.C. Gen. Stat. § 1A-

1, Rule 6(e). 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
 -14-
prescribed deadline. However, Plaintiff did not object to the

adequacy of the notice that it had received or request

additional time within which to respond to Trillium

Construction’s motion, participated in the 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 summary judgment motion on notice-related

grounds. As a result, the trial court’s decision to grant

summary judgment in Trillium Construction’s favor should not be

disturbed on timeliness grounds.

C. Negligent Construction Claims

Next, Plaintiff argues that the trial court erred by

granting summary judgment in favor of Trillium Links and

Trillium Construction on the grounds that Trillium Links and

Trillium Construction were negligent, and that Trillium Links

was grossly negligent, during the construction of the

condominiums. 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.”
 -15-
favor 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.” Stein v. Asheville

City Bd. Of Educ., 360 N.C. 321, 328, 626 S.E.2d 263, 267

(2006). “‘In the absence of a legal duty owed to the plaintiff

by [the defendant], [the defendant] cannot be liable for

negligence.’” 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. On the

other hand, Plaintiff points out that the Building Code

“‘imposes liability on any person who constructs, supervises

construction, or designs a building or alteration thereto, and

violates the Code such that the violation proximately causes
 -16-
injury 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 Ridge condominium construction project;

that Mr. Dalrymple’s “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
 -17-
addition, 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. As Plaintiff suggests,

this evidence, when viewed in the 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. Lassiter, 145 N.C. App. at

684, 551 S.E.2d at 223-24. 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
 -18-
court 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.” Parish v. Hill, 350 N.C. 231, 239, 513 S.E.2d 547,

551 (1999). “An act is wanton when it is done of wicked

purpose, or when done needlessly, manifesting a reckless

indifference to the rights of others.” 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
 -19-
Next, Trillium Links and Trillium Construction argue that,

even if they owed a legally recognized duty to Plaintiff,

Plaintiff’s negligent construction claim was barred by the

applicable statute of limitations. Plaintiff, on the other

hand, contends that the record reflects the existence of genuine

issues of material fact concerning the date upon which its

negligent construction claims against Trillium Links 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 all relevant inferences of fact to be drawn

therefrom.” Williams, 213 N.C. App. at 4, 714 S.E.2d at 440

(internal quotations omitted). On the other hand, when the

evidence “is sufficient to support an inference that the
 -20-
limitations period has not expired, the issue should be

submitted to the jury.” 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 (2007). In support of their contention that

Plaintiff’s negligent construction claims are time-barred,

Trillium Links and Trillium Construction argue that Plaintiff

had actual notice of the existence of construction defects,

consisting of missing or inadequate flashings, 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
 -21-
too 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.” According to

Trillium Links and Trillium Construction, this information

provided Plaintiff with notice that the 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 buildings. According to the evidentiary

forecast upon which Plaintiff relies in support of this

contention, Mr. Tenney, acting in his capacity as President of

Plaintiff’s board, reviewed the Lee Report, informed his

colleagues about the flashing problems outlined in that
 -22-
document, and obtained their agreement that the continuous

caulking approach recommended by Professor Lee should be

adopted. In addition, the record reflects that Mr. Boan did

not believe, after learning of the flashing-related defects,

that any additional investigation was necessary. Mr. Tenney

testified that neither Mr. Boan nor Mr. Lee ever advised

Plaintiff that there was any reason to conduct a more extensive

investigation concerning the possibility that there were

defects in the other buildings at that time. 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 viewed in the light most favorable to Plaintiff,

demonstrates the existence of a genuine issue of material fact

concerning the extent, if any, to which the negligent

construction claim that Plaintiff seeks to assert against

Trillium Links and Trillium Construction accrued 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
 -23-
Next, 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 N.C. Gen.

Stat. § 1-50(a)(5)(a) provides 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,” N.C. Gen. Stat. § 1-

50(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 of this subdivision” having been defined to

include an “[a]ction[] to recover damages for negligent

construction or repair of an improvement to real property.”

N.C. Gen. Stat. § 1-50(a)(5)(b)(2). “‘[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.
 -24-
N.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
 -25-
law.” 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 matter, Trillium Links and Trillium

Construction contend that Plaintiff has failed to bring its

claim related to Building Nos. 100 and 200 within six years of

the date upon which those buildings were substantially

completed. 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, Plaintiff failed to assert its negligent

construction claim within six years of the date 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” has not been statutorily 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
 -27-
made 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. As a result, we have no basis for determining that

the “last 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. § 1-

50(a)(5)(a) on the grounds that they retained “possession or

control” over the condominium buildings. According to N.C. Gen.

Stat. § 1-50(a)(5)(d), the statute of repose “shall not be

asserted as a defense by any person in actual possession or
 -28-
control, 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.” N.C. Gen. Stat. §

1-50(a)(5)(d). As the Supreme Court has stated, “the purpose of

the exclusion” is to impose a continuing duty “to inspect and

maintain” on persons who, after having constructed an

improvement, remain in possession of and control over that

improvement. 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
 -29-
corporate 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 conclude that the extent to which the

“possession or control” exception to the statute of 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. Equitable estoppel may be invoked, in proper

cases, to bar a defendant from relying upon the statute of

limitations or statute of repose. Duke Univ. v. Stainback, 320
 -30-
N.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 which induced a plaintiff to delay filing suit.’”

White, 166 N.C. App. at 305, 603 S.E.2d at 162 (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 the action by the

misrepresentations of” Trillium Links. Jordan, 125 N.C. App. at

720, 482 S.E.2d at 739. As a result, Trillium Links is not

equitably estopped from asserting the statute of limitations or

statute of repose in opposition to Plaintiff’s negligent

construction claims.
 -32-
Similarly, 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 Lee Report put Plaintiff on notice of the construction

defects in 2007 and is, for that reason, precluded from

asserting that it is equitably estopped from asserting 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
 -33-
as to whether Plaintiff lacked “knowledge and the means of

knowledge as to the real facts in question” 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 claim that it has

asserted against Trillium Construction. White, 166 N.C. App. at

305, 603 S.E.2d at 162. 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
 -34-
S.E.2d 694, 699 (internal quotation omitted), disc. review

denied, 332 N.C. 482, 421 S.E.2d 350 (1992). According to N.C.

Gen. Stat. § 47C-3-103(a), “[i]n the 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 hire

inspectors or to otherwise oversee the construction process. 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.
 -35-
condominium associations do not typically participate in the

original construction of the condominium buildings, and the

absence of any evidence tending to show that Plaintiff had

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 in the construction of the condominium

buildings, they did, as directors, have an obligation to

disclose material facts regarding the existence of any

construction defects of which they were aware to Plaintiff.

King v. Bryant, __ N.C. App. __, __, 737 S.E.2d 802, 809 (2013)

(stating that an affirmative duty “to disclose all facts

material to a transaction” is inherent in any 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
 -36-
defects 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 of the prior directors that

foundation problems had been discovered beneath one of the

buildings. As a result of the fact that this evidence, when

viewed in 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 to Plaintiff by failing to disclose relevant

information in their possession,9 the trial court erred by

granting summary judgment in their favor with respect to this

claim.

2. Trillium Links

Next, Plaintiff argues that the trial court erroneously

granted summary judgment in favor of Trillium Links on the
9
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.
 -37-
grounds 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 the condominium

association by a developer or declarant. However, N.C. Gen.

Stat. § 47C-1-108 states that, “[t]he principles of law and

equity supplement the provisions of this chapter, except to the

extent inconsistent with this chapter.” N.C. Gen. Stat. § 47C-

1-108. Thus, the extent to which Trillium Links owed a

fiduciary duty to Plaintiff during the period of 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
 -38-
reposed 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 relationship

existed between Plaintiff and Trillium Links 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.” Trillium Links remained in control of

Plaintiff until 24 February 2007, when authority over the

Association was transferred to the unit owners. 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
 -39-
reasons 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 considered in the light most favorable to

Plaintiff, evidences the existence of a genuine 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. Breach of fiduciary duty claims

accrue upon the date when the breach is discovered and are

subject to a three year statute of limitations. 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
 -40-
of 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 conclude that the trial court erred by granting

summary judgment in favor of Mr. Culbreth, Mr. 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 fraud

against Mr. Culbreth, Mr. Ward, and Trillium Links. 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).
 -41-
Although 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. App. 432, 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.” White, 166 N.C. App. at

294, 603 S.E.2d at 156. In order to satisfy this requirement,

“Plaintiff’s evidence must prove defendants sought to benefit
 -42-
themselves or to take advantage of the confidential

relationship.” 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 of its

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.
 -43-

Although 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 failed to adduce any evidence 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 Links with

respect to its breach of warranty claim. More specifically,

Plaintiff argues that Trillium Links breached the implied

warranty applicable to condominium units to the effect that “the

premises are free from defective materials, constructed in a

workmanlike manner, [and] constructed according to sound
11
However, for the reasons set forth above, Plaintiff’s
breach of fiduciary duty claims survive the summary judgment
stage of this case.
 -44-
engineering and construction standards[.]” N.C. Gen. Stat. §

47C-4-114. However, “a declarant and any person in the business

of selling real estate for his own account may disclaim

liability in an instrument signed by the 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
 -45-
upon 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 and this case should be, and hereby is,

remanded to the Jackson County Superior Court for further

proceedings not inconsistent with this opinion.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
 -46-
Judge 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.