Robinson v. Wadford, No. COA12–199.

Docket NºNo. COA12–199.
Citation731 S.E.2d 539
Case DateSeptember 04, 2012
CourtCourt of Appeal of North Carolina (US)

731 S.E.2d 539

Kaylor B. ROBINSON, Brenda M. Bell, Danny McGee, and James McGee, Plaintiffs–Appellants,
v.
Nyle WADFORD, Paige Wadford Smith, Trent Wadford, and Edwina Wadford, Defendants–Appellees.

No. COA12–199.

Court of Appeals of North Carolina.

Sept. 4, 2012.



[731 S.E.2d 540]

Appeal by Plaintiffs from order entered 23 September 2011 by Judge Robert F. Johnson in Superior Court, Orange County. Heard in the Court of Appeals 5 June 2012.

Bachman & Swanson, PLLC, Durham, by Glen D. Bachman, for Plaintiffs–Appellants.

Manning, Fulton & Skinner, P.A., Raleigh, by Judson A. Welborn and J. Whitfield Gibson, for Defendants–Appellees.


McGEE, Judge.

Kaylor B. Robinson, Brenda M. Bell, Danny McGee and James McGee (Plaintiffs) filed a complaint on 17 June 2011 against Nyle Wadford, Paige Wadford Smith, Trent Wadford, and Edwina Wadford (Defendants). Plaintiffs sought to recover damages from Defendants based upon causes of action for negligence and grave desecration. Pursuant to N.C. Gen.Stat. § 1A–1, Rule 12(b)(6), Defendants filed a motion to dismiss on 18 July 2011, arguing that Plaintiffs' complaint was not timely filed. The trial court granted Defendants' motion to dismiss in an order entered 23 September 2011.

I. Allegations in Plaintiffs' Complaint

Plaintiffs alleged in their complaint that they are descendants of John R. Magee (Mr. Magee), who died on 4 April 1919. Mr. Magee and Mollie W. Magee were buried in marked graves (the graves). Albert F. Wadford (Mr. Wadford) was the father of Defendants and died on 1 June 1998. Mr. Wadford devised to Defendants by will his share of the real property on which Mr. Magee was buried.

Plaintiffs alleged that Thorton Ventures, LLC (Thorton) “acquired title to the property which is the subject matter of this litigation by Special Warranty deed recorded on December 12, 1999[.]” Plaintiffs' complaint contains, inter alia, the following, somewhat unclear, allegations:

17. That in 2001, Thorton Ventures, LLC sold this property to Forest Creek Limited Partnership.

18. That in August 2001, Urban Pipeline, Inc., under property owner Thorton Ventures, LLC, applied for demolition permits for seven (7) buildings which were located on the subject property.

19. That at the time Urban Pipeline, Inc. applied for the permits, Forest Creek Limited Partnership was the owner of this subject property and Urban Pipeline, Inc. was a subcontractor for Forest Creek Limited Partnership.

20. That the seven (7) buildings to be demolished were located on two different parcels of property. One parcel which contained three (3) buildings was owned by Thorton Ventures, LLC and the other which contained four (4) buildings was owned by Forest Creek Limited Partnership.

It is unclear whether Plaintiffs intended to allege that Thorton sold the real property in its entirety, or in part, to Forest Creek Limited Partnership, and which of these two companies was in charge of Urban Pipeline, Inc.


Plaintiffs' complaint further alleged that Defendants “signed a quitclaim deed of the subject property to Thorton” in 2004. Plaintiffs alleged that, at the time Thorton “acquired the property,” the graves were marked with concrete headstones and were surrounded by a wrought iron fence and gate. Plaintiffs alleged that Thorton “desecrated the grave sites during the grading portion of Forest Creek Limited Partnership's development.” Plaintiffs further alleged that “sometime prior to 1999, ... Defendants piled substantial amounts of old pallets, metal and tile on top of the grave sites in order to hide [the] existence [of the grave sites] at the time the property was quitclaimed to Thorton[.]”

II. Issue on Appeal and Standard of Review

Plaintiffs raise on appeal the issue of whether the trial court erred by dismissing Plaintiffs' complaint as being “barred by the statute of repose under N.C. Gen.Stat. § 1–52.” Pursuant to Defendants' motion, the trial court dismissed Plaintiffs' complaint under N.C. Gen.Stat. § 1A–1, Rule 12(b)(6).

[731 S.E.2d 541]

The motion to dismiss under N.C. R. Civ. P. 12(b)(6) tests the legal sufficiency of the complaint. In ruling on the motion the allegations of the complaint must be viewed as admitted, and on that basis the court must determine as a matter of law whether the allegations state a claim for which relief may be granted.

Stanback v. Stanback, 297 N.C. 181, 185, 254 S.E.2d 611, 615 (1979) (citations omitted). “This Court must conduct a de novo review of the pleadings to determine their legal sufficiency and to determine whether the trial court's ruling on the motion to dismiss was correct.” Leary v. N.C. Forest Prods., Inc., 157 N.C.App. 396, 400, 580 S.E.2d 1, 4 (2003).


III. Analysis

Plaintiffs argue the trial court erred in granting Defendants' motion to dismiss because Plaintiffs' complaint was timely filed. Plaintiffs contend their complaint was timely filed because both their causes of action accrued in 2004 and because both were subject to a ten-year statute of limitations. Reviewing the allegations of Plaintiffs' complaint, we disagree.

Plaintiffs contend that each cause of action falls under either N.C. Gen.Stat. § 1–52(16) or N.C. Gen.Stat. § 1–56, and that Plaintiffs had ten years within which to file their complaint. N.C. Gen.Stat. § 1–52 generally provides a three-year statute of limitations for various causes of action, and subsection 16 provides for the delayed accrual of a cause of action based on discovery, as follows:

Unless otherwise provided by statute, for personal injury or physical damage to claimant's property, the cause of action, except in causes of actions referred to in G.S. 1–15(c), shall not accrue until 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. Provided that no cause of action shall accrue more than 10 years from the last act or omission of the defendant giving rise to the cause of action.

N.C. Gen.Stat. § 1–52(16) (2011). N.C. Gen.Stat. § 1–56 provides that “[a]n action for relief not otherwise limited by this subchapter may not be commenced more than 10 years after the cause of action has accrued.” N.C. Gen.Stat. § 1–56 (2011). In Plaintiffs' brief, they make arguments concerning the statute of limitations and the statute of repose, and appear to ignore the distinctions between the...

To continue reading

Request your trial
8 practice notes
  • CTS Corp. v. Waldburger, No. 13–339.
    • United States
    • United States Supreme Court
    • 9 Junio 2014
    ...years from the last act or omission of the defendant giving rise to the cause of action"); Robinson v. Wadford, ––– N.C.App. ––––, ––––, 731 S.E.2d 539, 541 (2012) (referring to the provision as a "statute of repose"). Because CTS' last act occurred in 1987, when it sold the electronics pla......
  • CTS Corp. v. Waldburger, No. 13–339.
    • United States
    • United States Supreme Court
    • 9 Junio 2014
    ...years from the last act or omission of the defendant giving rise to the cause of action”); Robinson v. Wadford, ––– N.C.App. ––––, ––––, 731 S.E.2d 539, 541 (2012) (referring to the provision as a “statute of repose”). Because CTS' last act occurred in 1987, when it sold the electronics pla......
  • Waldburger v. CTS Corp., No. 12–1290.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 10 Julio 2013
    ...“repose” anywhere in its statutes), we think the court below properly categorized it as such. Cf. Robinson v. Wadford, –––N.C.App. ––––, 731 S.E.2d 539, 541 (2012) (referring to the ten-year limitation in § 1–52(16) as a statute of repose); [723 F.3d 442]Tipton & Young Constr. Co. v. Blue R......
  • Chastain v. Arndt, No. COA16-1151
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • 18 Abril 2017
    ...as a matter of law whether the allegations state a claim for which relief may be granted. Robinson v. Wadford , 222 N.C.App. 694, 696, 731 S.E.2d 539, 541 (2012) (citation omitted). "The complaint must be liberally construed, and the 253 N.C.App. 12 court should not dismiss the complaint un......
  • Request a trial to view additional results
8 cases
  • CTS Corp. v. Waldburger, No. 13–339.
    • United States
    • United States Supreme Court
    • 9 Junio 2014
    ...years from the last act or omission of the defendant giving rise to the cause of action"); Robinson v. Wadford, ––– N.C.App. ––––, ––––, 731 S.E.2d 539, 541 (2012) (referring to the provision as a "statute of repose"). Because CTS' last act occurred in 1987, when it sold the electronics pla......
  • CTS Corp. v. Waldburger, No. 13–339.
    • United States
    • United States Supreme Court
    • 9 Junio 2014
    ...years from the last act or omission of the defendant giving rise to the cause of action”); Robinson v. Wadford, ––– N.C.App. ––––, ––––, 731 S.E.2d 539, 541 (2012) (referring to the provision as a “statute of repose”). Because CTS' last act occurred in 1987, when it sold the electronics pla......
  • Waldburger v. CTS Corp., No. 12–1290.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 10 Julio 2013
    ...“repose” anywhere in its statutes), we think the court below properly categorized it as such. Cf. Robinson v. Wadford, –––N.C.App. ––––, 731 S.E.2d 539, 541 (2012) (referring to the ten-year limitation in § 1–52(16) as a statute of repose); [723 F.3d 442]Tipton & Young Constr. Co. v. Blue R......
  • Chastain v. Arndt, No. COA16-1151
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • 18 Abril 2017
    ...as a matter of law whether the allegations state a claim for which relief may be granted. Robinson v. Wadford , 222 N.C.App. 694, 696, 731 S.E.2d 539, 541 (2012) (citation omitted). "The complaint must be liberally construed, and the 253 N.C.App. 12 court should not dismiss the complaint un......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT