IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-550

No. COA21-618

Filed 16 August 2022

Gaston County, No. 20-CVS-3924

GASTON COUNTY BOARD OF EDUCATION, Plaintiff,

v.

SHELCO, LLC, S&ME, INC., BOOMERANG DESIGN, P.A. (F/K/A MBAJ 

ARCHITECTURE, INC.), AND CAMPCO ENGINEERING, INC., Defendants / 

Crossclaim and Third-Party Plaintiff,

v.

HOOPAUGH GRADING COMPANY, LLC; HART WALL AND PAVER SYSTEMS, 

INC.; WORLDWIDE ENGINEERING, INC.; AND LINCOLN HARRIS, LLC, ThirdParty Defendants.

Appeal by Plaintiff and appeal by two of the Defendants, both from an order

entered 13 May 2021 by Judge Athena F. Brooks in Gaston County Superior Court. 

Heard in the Court of Appeals 24 May 2022.

Tharrington Smith, L.L.P., by Patricia Ryan Robinson, Rod Malone and Colin 

A. Shive for the Plaintiff-Appellant.

Hedrick Gardner Kincheloe & Garofalo LLP, by Gerald A. Stein, II, Tyler A. 

Stull and M. Duane Jones for Defendant-Appellant (Shelco).

Parker Poe Adams & Bernstein LLP, by Collier R. Marsh and Daniel K. Knight, 

for Defendant-Appellant (Boomerang).

Ragsdale Liggett PLLC, by Sandra Mitterling Schilder and Amie C. Sivon, for 

Defendant-Appellee (S&ME).
GASTON CTY. BD. OF EDUC. V. SHELCO, LLC

2022-NCCOA-550

Opinion of the Court

Rosenwood, Rose & Litwak, PLLC by Nancy S. Litwak and Carl J. Burchette 

for Defendant-Appellee (Campco).

DILLON, Judge.

¶ 1 The four Defendants each moved to dismiss Plaintiff’s claims based on the 

applicable statute of repose. The trial court granted the motions to dismiss filed by

two of the Defendants. Plaintiff appeals from those portions of the order. 

¶ 2 The trial court, however, denied the motions to dismiss filed by the other two 

Defendants. These two Defendants appeal from those portions of the order.

¶ 3 In its order, the trial court also allowed in part and denied in part Plaintiff’s 

motion to amend its complaint to allege the existence of an agreement to toll the 

statute of repose for 18 months.

I. Background

¶ 4 Plaintiff, a county board of education, filed this action against four companies 

who worked on the development of a public high school. This appeal concerns 

primarily the motions to dismiss filed by Defendants pursuant to Rule 12(b)(6) of our 

Rules of Civil Procedure. Accordingly, for our review, we must accept the allegations 

pleaded in Plaintiff’s complaint as true. See Arnesen v. Rivers Edge, 368 N.C. 440, 

441, 781 S.E.2d 1, 3 (2015). Our review is therefore confined to the allegations in the 

complaint, which include the following: 
GASTON CTY. BD. OF EDUC. V. SHELCO, LLC

2022-NCCOA-550

Opinion of the Court

¶ 5 Sometime prior to 2009, Plaintiff announced plans to develop a new public high 

school (“the Project”). To that end, Plaintiff entered separate contracts with three of 

the Defendants: Shelco, LLC, (“Contractor”); S&ME, Inc. (“Engineer”); and 

Boomerang Designs, P.A., (“Architect”). Architect entered a contract with the fourth 

Defendant, Campco Engineering, Inc., (“Subcontractor”).

¶ 6 The Project included, in part, the construction of reinforced soil slopes and 

retaining walls (collectively the “Retaining Walls”) around the proposed high school’s 

athletic complex. Around 2011, construction of the Retaining Walls was completed. 

In 2012, Plaintiff became aware that portions of the Retaining Walls had cracked.

¶ 7 On 15 May 2013, Plaintiff, Contractor, and Architect “signed a certificate of 

substantial completion” for the entire Project. By signing the certificate, Contractor 

and Architect represented that the Project (including the Retaining Walls) was 

essentially completed. Engineer and Subcontractor did not sign the certificate. 

¶ 8 In the fall of 2018, Plaintiff, along with Contractor, Engineer, Architect and 

Subcontractor (along with some third-party defendants) executed a tolling agreement 

(the “Tolling Agreement”) at Plaintiff’s request with a stated effective date of 1 March 

2019 until 15 September 2020.

¶ 9 Then in November 2020, Plaintiff filed suit against all four Defendants, 

alleging that the Retaining Walls were defective. Defendants answered and moved 

to dismiss pursuant to Rule 12(b)(6), based in part on the six-year statute of repose. 
GASTON CTY. BD. OF EDUC. V. SHELCO, LLC

2022-NCCOA-550

Opinion of the Court

Plaintiff then moved to amend its complaint to allege that all parties had entered the

Tolling Agreement, effective 1 March 2019 to 15 September 2020.

¶ 10 After a hearing on all motions, the trial court entered its order (1) allowing 

Subcontractor’s and Engineer’s respective Rule 12(b)(6) motions to dismiss based on 

the statute of repose (and dismissing Plaintiff’s motion to amend as to its claims 

against Subcontractor and Engineer, as moot); and (2) denying Contractor’s and 

Architect’s respective Rule 12(b)(6) motions to dismiss based on the statute of repose 

(allowing Plaintiff’s motion to amend its complaint as to its claims against Contractor 

and Architect). The trial court reasoned that the May 2013 certificate executed by

Plaintiff, Contractor, and Architect, paired with the Tolling Agreement, placed 

Plaintiff’s claims against Contractor and Architect within the 6-year statute of 

repose. However, since Engineer and Subcontractor did not sign the 2013 certificate, 

the Tolling Agreement would not place Plaintiff’s claims against them within the 

statute of repose.

¶ 11 Plaintiff appealed the Rule 12(b)(6) dismissals and denial of its motion to 

amend its complaint regarding its claims against Engineer and Subcontractor. 

Contractor and Architect appealed the denial of Rule 12(b)(6) motions on Plaintiff’s 

claims against them.

II. Appellate Jurisdiction

¶ 12 This appeal is from an interlocutory order, as that order did not entirely 
GASTON CTY. BD. OF EDUC. V. SHELCO, LLC

2022-NCCOA-550

Opinion of the Court

dispose of the case. Stanford v. Paris, 364 N.C. 306, 311, 698 S.E.2d 37, 40 (2010). 

Appeals from interlocutory orders are only allowed in limited circumstances. Id. at 

311, 698 S.E.2d at 40. Rule 54(b) of our Rules of Civil Procedure allows an immediate 

appeal from an interlocutory order from any part of an order which constitutes a “final 

judgment as to one or more but fewer that all the claims or parties[,]” so long as the 

trial court in its judgment determines “there is no just reason for delay” in taking the 

appeal. N.C. Gen. Stat. § 1A-1, Rule 54(b).

¶ 13 Here, the trial court’s order constitutes a final judgment with respect to 

Subcontractor and Engineer, as the order dismisses all claims against these 

Defendants with prejudice. Additionally, the trial court certified its order dismissing 

these claims for immediate review under Rule 54(b), determining “there was no just 

reason for delay.” Accordingly, we have jurisdiction to consider Plaintiff’s appeal of

the portion of the trial court’s order allowing Subcontractor’s and Engineer’s 

respective motions to dismiss and mooting its motion to amend with respect to these 

Defendants.

¶ 14 However, there has been no final judgment with respect to Plaintiff’s claims 

against Contractor and Architect. Rule 54(b), therefore, does not provide an avenue 

for immediate review of the portion of the trial court’s order denying these 

Defendants’ respective motions to dismiss. Further, we have held that an adverse 

determination regarding a defendant’s statute of repose defense does not affect a 
GASTON CTY. BD. OF EDUC. V. SHELCO, LLC

2022-NCCOA-550

Opinion of the Court

substantial right. Lee v. Baxter, 147 N.C. App. 517, 520, 556 S.E.2d 36, 38 (2001). 

Accordingly, we dismiss these Defendants’ appeals.

III. Analysis

¶ 15 We now address the merits of Plaintiff’s appeal concerning the trial court’s 

dismissal of its claims against Subcontractor and Engineer. We review Rule 12(b)(6) 

dismissals de novo. Arnesen. 368 N.C. at 448, 781 S.E.2d at 8.

¶ 16 In its ruling, the trial court relied on the six-year statute of repose found in 

N.C. Gen. Stat. § 1-50(a)(5)(a) (2017) in deciding to grant dismissal as to Defendants 

Engineer and Subcontractor. This statute of repose 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

[1] the specific last act or omission of the defendant giving rise to 

the cause of action or 

[2] substantial completion of the improvement . . . or specified 

area or portion thereof (in accordance with the contract[.]”

Id. (emphasis added).

¶ 17 It is Plaintiff who “has the burden of proving that a statute of repose does not 

defeat the claim.” Head v. Gould Killian, 371 N.C. 2, 11, 812 S.E.2d 831, 838 (2018)

(emphasis added). Accordingly, Plaintiff would have the burden at a Rule 56 

summary judgment hearing to provide evidence that (s)he filed her claim within the 

applicable statute of repose. See Id. at 12, 812 S.E.2d at 839.
GASTON CTY. BD. OF EDUC. V. SHELCO, LLC

2022-NCCOA-550

Opinion of the Court

¶ 18 However, as explained below, based on our jurisprudence, a plaintiff has no 

burden at the pleading stage to allege facts showing that its complaint was filed 

within the applicable statute of repose. That is, it is generally inappropriate to grant

a defendant’s Rule 12(b)(6) motion to dismiss a complaint merely because it failed to 

allege facts showing that it was filed within the applicable statute of repose. A Rule 

12(b)(6) dismissal based on the statute of repose would only be appropriate if the 

complaint otherwise alleges facts conclusively showing that it was not filed within 

the applicable statute of repose. And, here, since Plaintiff did not allege both the 

dates when any Defendant performed its last “specific last act” and the “substantial 

completion of the improvement,” dismissal here was inappropriate.

¶ 19 In 1994, our Supreme Court reiterated its long-standing rule that “[a] statute 

of limitations or repose defense may be raised by way of a motion to dismiss if it 

appears on the face of the complaint that such a statute bars the claim.” Hargett v. 

Holland, 337 N.C. 651, 653, 447 S.E.2d 784, 786 (1994) (citations omitted).

¶ 20 Three years later in 1997, our Supreme Court adopted an opinion in a dissent 

from our Court explaining that a Rule 12(b)(6) dismissal is inappropriate where based 

on a plaintiff’s simple failure to plead facts showing that its complaint was filed 

within the statute of repose. Specifically, the Supreme Court reversed the opinion 

from our Court “[f]or the reasons stated in the dissenting opinion by Judge Greene[.]” 

Richland Run v. CHC Durham, 346 N.C. 170, 484 S.E.2d 527 (1997) (emphasis 
GASTON CTY. BD. OF EDUC. V. SHELCO, LLC

2022-NCCOA-550

Opinion of the Court

added).

¶ 21 In Richland, the trial court granted a defendant’s Rule 12(b)(6) motion but 

considered other evidence concerning some of the defendant’s arguments. The trial 

court made two holdings. First, the trial court held that the complaint itself failed to 

allege facts showing it had been filed within the statute of repose. Second, the trial 

court, considering evidence outside the complaint, determined that the complaint 

should be dismissed on an alternate basis unrelated to the statute of repose. Our 

Court affirmed both holdings. Judge Greene, however, dissented.

¶ 22 Judge Greene reasoned that the complaint should not have been dismissed “on 

the basis that the plaintiff failed to specifically plead compliance with the applicable 

statute of repose [being G.S. 1-50(a)(5)].” Richland Run v. CHC Durham, 123 N.C. 

App. 345, 352, 473 S.E.2d 649, 654 (1996) (J. Greene dissenting). Judge Greene 

explained that, while a plaintiff has the burden to prove compliance with the statute 

of repose, there is no requirement that a plaintiff plead facts in the complaint showing 

that its claim was filed within the statute of repose: 

Our courts have repeatedly held that the plaintiff has the 

burden of proving the condition precedent that its cause of 

action is brought within the applicable statute of repose. I 

do not read Rule 9(c) [regarding the pleading of conditions 

precedent] as requiring the pleading of conditions 

precedent.

Id.

¶ 23 ¶We note that, as our Supreme Court has explained, statutes of limitations and 
GASTON CTY. BD. OF EDUC. V. SHELCO, LLC

2022-NCCOA-550

Opinion of the Court

statutes of repose are different: where statutes of limitations “are clearly procedural, 

affecting the remedy directly and not the right to recover[,] [t]he statute of repose . . 

. acts as a condition precedent to the action itself[.]” Boudreau v. Baughman, 322 

N.C. 331, 340, 368 S.E.2d 849, 857 (1988). Indeed, Rule 8 of our Rules of Civil 

Procedure recognizes that a failure to file within the applicable statute of limitations 

is an affirmative defense which must be pleaded. Failing to file within the applicable 

statute of repose, however, is not listed as an affirmative defense in Rule 8 but rather

is considered a “condition precedent” under Rule 9(c).1

¶ 24 In any event, Judge Greene further held that the trial court should not have 

dismissed the complaint based on the court’s alternate reason which was unrelated 

to the statute of repose. Richland, 123 N.C. App. at 353, 473 S.E.2d at 654.

¶ 25 We conclude that both holdings by Judge Greene were necessary to support his

dissent. Since dismissal would have been proper under either theory advanced by 

the defendants and relied upon by the trial court, Judge Greene had to disagree on 

both points to reach his conclusion that the trial court’s order should be reversed. 

Therefore, our Supreme Court necessarily adopted both of Judge Greene’s reasons in 

 

1 Judge Greene also noted that “even if Rule 9(c) is construed to require pleading a condition 

precedent, [I conclude that the complaint’s] allegations sufficiently comply with Rule 9.” Id. at 353, 

473 S.E.2d at 654. This reason is clearly dicta, as he expressly determined that Rule 9(c) did not 

require pleading facts to show that the complaint was filed within the statute of repose. 
GASTON CTY. BD. OF EDUC. V. SHELCO, LLC

2022-NCCOA-550

Opinion of the Court

reversing our Court’s decision.2

¶ 26 Here, Plaintiff did not allege any date when substantial completion occurred.

Therefore, a 12(b)(6) dismissal was inappropriate.

¶ 27 “Substantial completion” is defined as “that degree of completion of a project, 

improvement or specified area or portion thereof (in accordance with the contract . . . 

) upon attainment of which the owner can use the same for the purpose for which it 

was intended. The date of substantial completion may be established by written 

agreement.” N.C. Gen. Stat.§ 1-50(a)5.c. (emphasis added).

¶ 28 The question before us is whether Plaintiff alleged an act, along with the date 

the act was performed, which would constitute “substantial completion” as 

contemplated under Section 1-50(a)5.c. Defendants argue that the completion of the 

Retaining Walls, which Plaintiff alleged occurred in 2011, constituted the act of 

substantial completion. Defendants essentially argue that we need not look to when 

the entire improvement, e.g., the Project, was substantially completed. Rather, we 

are to look to when the “specified area or portion thereof,” i.e., the Retaining Walls,

were substantially completed.

¶ 29 Neither party cites a North Carolina case which provides a clear guide on how 

 

2 Even if either holding could have supported Judge Greene’s resolution of the case, both 

holdings would still be binding. As our Supreme Court has recognized, “where a case actually presents 

two or more points, any one of which is sufficient to support [a] decision, but the reviewing Court 

decides all points, the decision becomes a precedent in respect to every point decided[.]” Hayes v. 

Wilmington, 243 N.C. 525, 537, 91 S.E.2d 673, 682 (1956).
GASTON CTY. BD. OF EDUC. V. SHELCO, LLC

2022-NCCOA-550

Opinion of the Court

to interpret the definition of “substantial completion” for a project that has several 

components. The plain language of the statute suggests that the date of substantial 

completion occurs with respect to a particular contractor when the part of the 

improvement the contractor was hired to provide services for has reached “a degree 

of completion” where “the owner can use the same for the purpose for which it was 

intended.” Id. For instance, when an owner contracts with a company to build the

foundation of a house, the statute of repose begins when the foundation is completed 

such that the owner can contract with someone else to build the frame, etc. The entire 

house need not be complete for the statute of repose to run against the contractor 

hired to build the foundation. Of course, if one contractor is hired to build the entire 

house, then the statute of repose to sue the contractor for laying a bad foundation 

would not start until the entire house was completed, as the contractor contracted to 

build the entire house. This interpretation was followed by the Supreme Court of 

South Carolina considering a statute – S.C. Code Ann. § 15-3-630 – which provides a 

definition of “substantial completion” identical to the definition found in Section 1-

50(a)5.c. See Lawrence v. General Panel, 425 S.C. 398, 822 S.E.2d 800 (2019).

¶ 30 Turning to the complaint at issue, Plaintiff alleged that it entered a contract 

with Defendant Engineer “to provide geotechnical engineering service for the 

Project.” There is no allegation that Engineer was hired just to perform services for 

the Retaining Wall only. Further, there is no allegation when the entire Project was 
GASTON CTY. BD. OF EDUC. V. SHELCO, LLC

2022-NCCOA-550

Opinion of the Court

substantially completed. Finally, there is no allegation that the date was “established 

by written agreement” between Plaintiff and Engineer. N.C. Gen. Stat. § 1-50(a)5.c. 

That is, though Plaintiff alleges it had executed a “certificate of substantial 

agreement” with Contractor and Architect on 15 May 2013, there is no allegation that 

Engineer was a party to that “certificate,” much less that by signing the certificate 

Plaintiff was agreeing that the project was substantially completed as of 15 May 2013. 

Accordingly, we hold that the trial court erred in granting Engineer’s Rule 12(b)(6) 

motion to dismiss.

¶ 31 Regarding the claims against the Subcontractor, Plaintiff merely alleged that 

Subcontractor “was the civil engineering subcontractor to Architect[,]” without any 

allegation that Subcontractor was hired to work on the Retaining Wall alone. 

Additionally, Subcontractor was not a party to the certificate of substantial 

completion discussed in the preceding paragraph. Plaintiff entered into a contract 

with Architect “to provide architectural [and other] services for the ‘Project.’” 

Accordingly, we hold that the trial court erred in granting Subcontractor’s Rule 

12(b)(6) motion, based on the statute of repose.

3 

¶ 32 Finally, we vacate the trial court’s dismissal of Plaintiff’s motion to amend its 

complaint against Engineer and Subcontractor. The trial court so ruled based on its 

 

3 Because Defendants failed to raise any other ground for dismissal, we express no opinion as 

to whether they would be entitled to dismissal on some other ground.
GASTON CTY. BD. OF EDUC. V. SHELCO, LLC

2022-NCCOA-550

Opinion of the Court

conclusion that the motion was moot, based on its erroneous grant of Engineer’s and 

Subcontractor’s respective motions to dismiss. On remand, the trial court should 

exercise its discretion on Plaintiff’s motion. We note, though, even if Plaintiff’s 

motion is denied, all parties are free to offer evidence concerning this agreement at a 

hearing on a motion for summary judgment.

III. Conclusion

¶ 33 We reverse the trial court’s grant of Engineer’s and Subcontractor’s respective 

motions to dismiss under Rule 12(b)(6) based on the statute of repose. We vacate the 

trial court’s dismissal of Plaintiff’s motion to amend with respect to Engineer and 

Subcontractor. We dismiss the appeals of Contractor and Architect for lack of 

appellate jurisdiction.

REVERSED IN PART, VACATED IN PART, DISMISSED IN PART &

REMANDED.

Chief Judge STROUD and Judge GRIFFIN concur.