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Flexolite Electrical v. Gilliam

Filed: December 1, 1981.

FLEXOLITE ELECTRICAL, LTD.
v.
THOMAS D. GILLIAM, JR. AND THOMAS D. GILLIAM COMPANY



Appeal by plaintiff from Kivett, Judge. Judgment entered 4 March 1981 in Superior Court, Iredell County. Heard in the Court of Appeals 18 November 1981.

Martin (Harry C.), Judge. Judges Arnold and Wells concur.

Martin

Plaintiff's claim was improperly dismissed. A judgment on the pleadings in favor of a defendant who asserts the statute of

limitations as a bar is proper when, and only when, all the facts necessary to establish the limitation are alleged or admitted. Huss v. Huss, 31 N.C. App. 463, 230 S.E.2d 159 (1976); Land v. Pontiac, Inc., 6 N.C. App. 197, 169 S.E.2d 537 (1969), cert. denied, 276 N.C. 85 (1970). In their motion to dismiss, defendants allege only that "it appears upon the face of the complaint that the contractual claims alleged by the plaintiff are barred by the applicable statute of limitations, North Carolina General Statute 1-52."

This is an action for breach of contract. Plaintiff alleges it advanced money to defendants and defendants agreed to issue stock in defendant corporation to plaintiff. Plaintiff alleges defendants breached the contract by failing to issue the stock and failing to return the money to plaintiff. However, it does not appear on the face of the complaint when the breach occurred. "In no event can a statute of limitations begin to run until plaintiff is entitled to institute action." Reidsville v. Burton, 269 N.C. 206, 211, 152 S.E.2d 147, 152 (1967). A judgment on the pleadings based upon a plea of the statute of limitations is proper only when the pleadings fail to present any issue of fact for determination by a jury. Id. "The three-year period of the statute of limitations governing actions based on express contracts does not begin to run until the alleged breach occurs and the cause of action accrues." Silver v. Board of Transportation, 47 N.C. App. 261, 266, 267 S.E.2d 49, 53-54 (1980).

Judgment on the pleadings is not favored by law and the trial court is required to view the facts and permissible inferences in the light most favorable to the nonmovant. Wilson v. Development Co., 276 N.C. 198, 171 S.E.2d 873 (1970); Huss, supra. The complaint fails to disclose when plaintiff's cause of action accrued; therefore, all the facts necessary to establish the limitation do not appear on the face of the pleadings. Reidsville, supra. On the hearing of the motion to dismiss, plaintiff had the burden to show that its claim was not barred on the face of the complaint. Solon Lodge v. Ionic Lodge, 247 N.C. 310, 101 S.E.2d 8 (1957). It has carried that burden.

Reversed.

Disposition

Reversed.

19811201

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