Cooke v. Town of Rich Square

HILL, Judge.

Plaintiff contends the court erred in directing a verdict for defendant on the causes of action for breach of contract and unjust enrichment. In considering a motion for directed verdict, the court must view the evidence in the light most favorable to the non-moving party, giving to the non-movant the benefit of all reasonable inferences to be drawn in his favor. Summey v. Cauthen, 283 N.C. 640, 197 S.E. 2d 549 (1973). The court may grant the motion only if, as a matter of law, the evidence is insufficient to support a verdict for the non-movant. Younts v. Insurance Co., 281 N.C. 582, 189 S.E. 2d 137 (1972).

We believe G.S. 1-53(1) controls the disposition of this case. G.S. 1-53(1) provides:

All claims against counties, cities and towns of this State shall be presented to the chairman of the board of county commissioners, or to the chief officers of the cities and towns, within two years after the maturity of such claims, or the holders shall be forever barred from a recovery thereon

Plaintiff alleged that the agreement in question provided that the defendant town was to repay Dr. Cooke and Mr. Rochelle from the taxes and fees collected from the residents of Cooke Circle once ten houses had been built in that area. The evidence shows that the water and sewer system was completed in 1954 and that ten houses had been built in Cooke Circle by 1970. According to the town’s records, no payments under the agreement were ever made by the defendant town to Dr. Cooke or his estate, Mr. Rochelle, or Manning P. Cooke, and the town had been receiving water and sewer fees from the residents of Cooke Circle as long as there had been any residents there. Between 1970 and 1980, defendant collected $37,159.85 from property owners in Cooke Circle for taxes, water and sewer assessments.

Plaintiffs cause of action on the contract accrued and the statute of limitations began to run when the tenth house was built in Cooke Circle in 1970 and payment under the agreement was not made. Plaintiff did not initiate this action until 30 January 1980. Plaintiff failed to present his claim within the two year statute of limitations prescribed by G.S. 1-53(1); therefore, his claim is barred. It is well settled that a court has no discretion when considering whether a claim is barred by the statute of limitations. See Congleton v. City of Asheboro, 8 N.C. App. 571, 174 S.E. 2d 870, cert. denied, 277 N.C. 110 (1970). In Shearin v. Lloyd, 246 N.C. 363, 370, 98 S.E. 2d 508, 514 (1957), the Court stated: “Statutes of limitations are inflexible and unyielding. They operate inexorably without reference to the merits of plaintiffs cause of action. They are statutes of repose, intended to require that litigation be initiated within the prescribed time or not at all.”

We hold the trial court properly directed a verdict for defendant.

Affirmed.

Judges WHICHARD and BECTON concur.