http://www.aoc.state.nc.us/www/public/coa/opinions/2005/041679-1.htmAll opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative. NO. COA04-1679NORTH CAROLINA COURT OF APPEALSFiled: 19 July 2005JACK H. WINSLOW FARMS,INC., Plaintiff,v . Halifax County No. 98 CVS 535T. CARL DEDMON, et als, Defendants. Appeal by plaintiff from order entered 28 July 2004 by Judge Dwight L. Cranford in Halifax County Superior Court. Heard in the Court of Appeals 15 June 2005. Hux, Livermon & Armstrong, L.L.P. by H. Lawrence Armstrong, Jr., and Blackburn & McCune, P.C. by Malcolm McCune, for plaintiff-appellant. Pinto, Coates, Kyre & Brown, P.L.L.C. by David L. Brown and Bryan G. Scott, for defendant-appellees Dedmon and Dedmon's Harvestore Systems. Leonard, Street, and Deinard, P.A. by Frederick W. Morris and Jeffrey A. Eyres, and Moore & Van Allen, P.L.L.C. by David E. Fox, for defendant-appellees A.O. Smith Corp. ELMORE, Judge. Jack Winslow Farms, Inc. (plaintiff) (See footnote 1) appeals from an order of summary judgment granted in favor of defendants, a retailer and manufacturer of grain silos. For the following reasons, we affirm the trial court's summary judgment order. In 1976 plaintiff purchased a Harvestore silo to store high moisture corn to be used as feed for his hogs. Plaintiff, a North Carolina farmer, traveled to farms in Wisconsin and Indiana that were using the Harvestore silo before making his own purchase. He investigated the silos and all the promotional literature associated with them. Finally, he contacted Carl Dedmon, a local Harvestore silo dealer, who eventually sold plaintiff his first silo.Pleased with its performance, plaintiff bought two additional silos in 1977. Throughoutthe more than twenty years of using the silos, plaintiff never had reason to doubt the quality of his purchases. The size of his farm increased from 300 acres in 1960 to almost 2000 acres in 1999, and at that point involved about 1000 sows. Plaintiff always received market value for his hogs, and the high moisture corn stored in the silos consistently kept its yellow color, did not dry out, and did not spoil. Then, in 1997, as plaintiff was filling his third silo, it collapsed and fell into the first silo, damaging it as well. Plaintiff attempted to get defendants to repair or replace the silos at defendants' cost, but each denied any agreement or warranty for that purpose. Plaintiff contacted a lawyer to represent him who was already involved in related litigation against defendant A.O. Smith. This lawyer suggested that plaintiff conduct a “test” on the feed being distributed to the hogs from the silos. Plaintiff alleges that the results from this test, which was conducted solely by plaintiff, supported a theory that there were problems with the silos throughout their more than twenty years of use. In June 1998, plaintiff filed suit against defendants for multiple claims including breach of contract, breach of warranties, fraud, unfair and deceptive trade practices, and products liability. Plaintiff alleged that a design defect had allowed moisture or oxygen toreach the corn causing it to spoil or otherwise fail to be as nutritious for plaintiff's hogs. Plaintiff further alleged that the sole reason in purchasing the silos was because they weredesigned and marketed as having the ability to prevent spoilage of high moisture corn. Defendants moved for summary judgment on all claims arguing, in part, that the statuteof repose, economic loss doctrine, and plaintiff's failure to adequately show damages entitled them to relief. The trial court granted defendants' motion for summary judgment on 28 July 2004 and plaintiff appeals. Summary judgment is properly granted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that thereis no genuine issue as to any material fact and that any party is entitled to a judgment as amatter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2003). Summary judgment is appropriate for the defending party when (1) an essential element of the other party's claim or defense is non-existent; (2) the other party cannot produce evidence to support an essential element of its claim or defense; or (3) the other party cannot overcome an affirmative defense which would bar the claim.Caswell Realty Assoc. v. Andrews Co., 128 N.C. App. 716, 720, 496 S.E.2d 607, 610 (1998) (internal citation omitted). Whether a cause of action is barred by the statute of limitations is a mixed question of law and fact. . . . However, when the bar is properly pleaded and the facts are admitted or are not in conflict, the question of whether the action is barred becomes a question of law, and summary judgment is appropriate.McCarver v. Blythe, 147 N.C. App. 496, 498, 555 S.E.2d 680, 682 (2001) (internal quotation omitted). The question presented by this litigation is whether the statute of repose in N.C. Gen. Stat. § 1-50(a)(6) applies to plaintiff's fraud claim. Plaintiff argues that the statute of repose is inapplicable to claims for fraud, (See footnote 2) which should instead be governed only by the three-year statute of limitations in N.C. Gen. Stat. § 1-52(9). Under that statute, a claim for fraud accrues only when the aggrieved party discovers the factsconstituting the fraud. Plaintiff argues that despite twenty years of use, the discovery did not occur until January 1998 and, therefore, his complaint filed June 1998 is not time-barred. On the other hand, defendants argue that all of plaintiff's claims, including fraud, arise out of an alleged defect or failure in a product and are therefore controlled by section 1-50(a)(6), not section 1-52(9). Section 1-50(a)(6) states that “[n]o action for the recovery of damages for personal injury, death or damage to property based upon or arising out of any alleged defect or any failure in relation to a product shall be brought more than six years after the date of initial purchase for use or consumption.” N.C. Gen.
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