dissenting.
I would hold that the trial court erred in dismissing Paramount’s complaint; therefore I respectfully dissent from the majority opinion.
When deciding a motion to dismiss, the trial court must determine “whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory . . . .” Harris v. NCNB, 85 N.C. App. 669, 670, 355 S.E.2d 838, 840 (1987). A complaint should not be dismissed “ ‘unless it affirmatively appears that the plaintiff is enti-*243tied to no relief under any state of facts which could be presented in support of the claim.’ ” Forsyth Memorial Hospital v. Armstrong World Industries, 336 N.C. 438, 444, 444 S.E.2d 423, 427 (1994) (quoting Ladd v. Estate of Kellenberger, 314 N.C. 477, 481, 334 S.E.2d 751, 755 (1985)); see also Arroyo v. Scottie’s Professional Window Cleaning, 120 N.C. App. 154, 158, 461 S.E.2d 13, 16 (1995) (noting that complaints must be liberally construed on a motion to dismiss), disc. review improvidently allowed, 343 N.C. 118, 468 S.E.2d 58 (1996). Accordingly, unlike the majority, I do not find it dispositive that Paramount has “present[ed] no evidence that CBC had a continuing duty to complete any repairs under the original 1990 improvement contract” or that “there is no evidence in the record indicating that CBC had a continuing duty to repair under any implied or express warranty.” Monson v. Paramount Homes, Inc., 133 N.C. App. 235, 239, 515 S.E.2d 445, — (1999). Paramount’s allegations, liberally construed and taken as true, suffice at this stage of the proceedings.
The applicable six-year statute of repose begins to run at the later of (1) “the specific last act or omission of the defendant giving rise to the cause of action” or (2) “substantial completion” of the improvement. N.C.G.S. § l-50(a)(5) (Supp. 1998). The “last act” giving rise to the cause of action is determined by “the nature of the services [the defendant] agreed to perform.” Hargett v. Holland, 337 N.C. 651, 656, 447 S.E.2d 784, 788 (construing similar language in section l-15(c)), reh’g denied, 338 N.C. 672, 453 S.E.2d 177 (1994).
In this case, Paramount alleges CBC “made numerous express and implied warranties to Paramount, concerning the windows and associated materials used in construction of the [Monson house].” Accordingly, the nature of the services CBC agreed to perform allegedly included future duties during the warranty period. See Haywood Street Redevelopment Corp. v. Peterson Co., 120 N.C. App. 832, 836, 463 S.E.2d 564, 566-67 (1995) (discussing prospective warranties), disc. review denied, 342 N.C. 655, 467 S.E.2d 712 (1996). In 1994, CBC allegedly repaired and/or replaced windows in the Monson house pursuant to the warranty, i.e., pursuant to its duties to Paramount. It follows that CBC’s “last act” under the contract occurred in 1994.
In any event, Paramount’s complaint further alleges “the CBC windows installed in the [Monson house] continued to leak and allow moisture intrusion behind the EIFS cladding on the [Monson house] even after CBC’s repair and replacement.” It therefore follows that the statute of repose began to “run anew” from the date of CBC’s *244repairs, because the replacement windows were defective and were a proximate cause of damage to the Monson house. See 63B Am. Jur. 2d Products Liability § 1629 (1997) (noting that the “time period in a statute of repose may run anew with respect to a replacement part for a product, if the replacement part itself is defective . . . and is the proximate cause of the plaintiff’s injuries”).
In addition, I believe New Bern Assoc. v. The Celotex Corp., 87 N.C. App. 65, 359 S.E.2d 481, disc. review denied, 321 N.C. 297, 362 S.E.2d 782 (1987), controls the outcome of this case. The majority attempts to distinguish New Bern by stating that we did not hold that repairs may constitute the “last act” giving rise to a cause of action in that case. I disagree. In New Bern, we reversed and remanded the trial court’s grant of summary judgment. Summary judgment, as this Court noted therein, is appropriate “if there is no genuine issue of material fact and any party is entitled to judgment as a matter of law.” New Bern, 87 N.C. App. at 68, 359 S.E.2d at 483 (emphasis added). The evidence in New Bern was equivocal as to whether the individual who had conducted repairs within six years of the filing of the plaintiff’s action acted as the defendant’s agent; accordingly, there existed a genuine issue of fact as to whether the defendant had made repairs within the preceding six years. If the repairs at issue could not have constituted the “last act” giving rise to the cause of action, this genuine issue of fact would not have been material, and therefore would not have supported our reversal of the trial court’s decision. Contrary to the majority’s conclusion, therefore, this Court has determined that repairs may constitute the “last act” of the defendant giving rise to the cause of action. Accordingly, we are bound, at this stage of the proceedings, to hold that the applicable statute of repose began to run in 1994, the date of the alleged “last act” giving rise to the cause of action. See In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (holding one panel of the Court of Appeals is bound by the decisions of other panels unless they have been overturned by a higher court).
Finally, I disagree with the majority’s conclusion that treating a repair as the “last act” would defeat our public policy encouraging repairs. To the contrary, treating a repair as the “last act” would, in fact, encourage repairs as an alternative to litigation. In other words, refusing to treat a repair as the “last act” would encourage the homeowner to bring suit immediately upon noticing a defect (i. e., before the statute of repose has run), rather than working with the contractor (or subcontractor) for a nonlitigious solution.