Morgan v Cadieu, et al
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA11-564 NORTH CAROLINA COURT OF APPEALS Filed: 20 December 2011 HAROLD WAYNE MORGAN, Plaintiff, v. Mecklenburg County No. 10 CVS 5505 JOSEPH HENRY CADIEU, MARION FRANCES CADIEU, JMDJ, INC., AND MECKLENBURG COUNTY, Defendants. Appeal by plaintiff from order entered 19 January 2011 by Judge Richard D. Boner in Mecklenburg County Superior Court. Heard in the Court of Appeals 26 October 2011. James Patrick Galvin for Thurman, Galvin, P.A., attorney for plaintiff. Wilson, Boutwell & Paul Hefferon for Hefferon & Hefferon, PA, attorney for defendants Cadieu and JMDJ, Inc. Robert Adden for Ruff Bond Cobb Wade & attorney for defendant Mecklenburg County. Bethune, LLP, ELMORE, Judge. Harold Wayne Morgan (plaintiff) appeals an order entered 19 January 2011 granting summary judgment in favor of Joseph Henry Cadieu and Marion Frances Cadieu (together defendants Cadieu), -2JMDJ, Inc. (defendant JMDJ) and Mecklenburg County (the county). After careful consideration, we affirm. In June 1995 plaintiff purchased 6.95 acres of property (the property) County. located at 1030 Remount Road in Mecklenburg On 4 September 1998, plaintiff leased a portion of the property to Adams Outdoor Advertising for the placement of two billboards on the land. On 20 January 1999, plaintiff and Adams Outdoor Advertising signed a new lease for the two billboards. Both leases were recorded in Mecklenburg County. Under the lease terms, Adams Outdoor Advertising had the right to maintain two billboards on the property for annual terms through 30 November 2028, at a rate of $20,000.00 per year. On 22 February 1999, plaintiff agreed to sell the property to defendants Cadieu. In that sale, plaintiff agreed to convey all of the property except the property described in the two leases for billboard use to Adams Outdoor Advertisement. The parties also agreed to reserve an easement on the property in favor of plaintiff. At the closing on 26 August 1999, the parties slightly changed the agreement. In the new agreement plaintiff agreed to convey title of the property to defendant JMDJ in place of defendants Cadieu, but plaintiff still retained his rights to the rental portion of the property under the new -3agreement. plaintiff However, at the closing on 26 August 1999 the deed executed conveyed the entire property to defendant JMDJ in fee simple, including the portions of the property with the billboards. closing Plaintiff s documents plaintiff. prior to attorney the reviewed documents all being of the executed by The fully executed deed was recorded on 31 August 1999. Despite plaintiff conveying continued to all of his receive rental Outdoor Advertising through 2008. property was notified Adams property. purchased Outdoor by the interest in the payments property, from Adams However, around this time the county. Advertising In that 2009, it now the county owned the Adams Outdoor Advertising then paid the rental fee for 2009 to the county, rather than to plaintiff. On mutual 10 March mistake of 2010, fact plaintiff between filed a plaintiff complaint and regarding the deed executed on 26 August 1999. alleging defendant JMDJ Plaintiff sought to have the deed reformed to reflect the original agreement between the parties, preserving plaintiff s rights to the billboards on the property. On 12 November 2010, the county filed judgment. a motion for summary On 2 December 2010, defendants Cadieu and defendant JMDJ moved for summary judgment. -4On 19 January 2011, the trial court entered an order granting summary judgment in favor of all defendants. In that order, the trial court concluded that if the plaintiff had exercised due diligence, he would have discovered what he alleges to be a mistake in or about August, 1999. Plaintiff makes three Plaintiff now appeals. arguments on appeal: 1) that a genuine issue of material fact exists as to whether there was a mutual mistake of fact with regard to the 26 August 1999 deed, 2) that a genuine issue of material fact exists as to whether the action is barred by the applicable statute of limitations, and 3) that a genuine issue of material fact exists as to whether the county was a bona fide purchaser for value of the property. Since [s]tatutes of limitations are inflexible and unyielding[, and] [t]hey operate inexorably without reference to the merits of plaintiff's cause of action[,] we must first determine if the trial court erred in its determination that plaintiff s claim is barred by the statute of limitations. Congleton v. Asheboro, 8 N.C. App. 571, 573, 174 S.E.2d 870, 872 (1970) (quotations and citation omitted). A three-year statute of limitations applies to an action for reformation of a deed based on mutual mistake. See Hice v. Hi-Mil, 268, Inc., 301 N.C. 647, 654-55, 273 S.E.2d 272-73 -5(1981) (noting that in an action for reformation of a deed based on mutual mistake applicable). a three-year Ordinarily, statute the period of of limitations the statute is of limitations begins to run when the plaintiff's right to maintain an action for the wrong alleged accrues. The cause of action accrues when the wrong is complete, even though the injured party did not then know the wrong had been committed. Wilson v. Crab Orchard Dev. Co., 276 N.C. 198, 214, 171 S.E.2d 873, 884 (1970) (quotations and citations omitted). However, for claims based on mutual mistake the statute of limitations begins to run from the discovery of the mistake, or when it should have been discovered in the exercise of due diligence. Lee v. Rhodes, 231 N.C. 602, 602, 58 S.E.2d 363, 363 (1950) (citation omitted). Here, plaintiff executed the deed at issue on 26 August 1999. Plaintiff was represented by counsel at the time of the execution. closing. Plaintiff s reviewed the deed at the Plaintiff also received copies of all of the documents from the closing. August counsel 1999, where Furthermore, the deed was recorded on 31 it became a matter of public record. Plaintiff did not file suit for reformation of the deed until 10 March 2010, over ten years after executing the deed. Based on -6these facts we conclude that had plaintiff exercised due diligence he would have discovered on or soon after the date of the closing interest that in the the deed property he in executed fee conveyed simple to all of defendant his JMDJ. Therefore, the trial court correctly determined that plaintiff s claim is barred by the applicable statute of limitations. Next, we must analyze whether it was proper for the trial court to make this determination, or if the statute of limitations issue was a question of fact for the jury. Failure to exercise due diligence in discovering a mistake has been determined as a matter of law where it was clear that there was mistake. both capacity and opportunity to discover the Huss v. Huss, 31 N.C. App. 463, 468, 230 S.E.2d 159, 163 (1976) (citation omitted). Here, instructed in his deposition his attorney to plaintiff review the admitted deed prior that he to its execution. Plaintiff also admitted that his attorney knew he wanted retain to Plaintiff further reviewing the a admitted deed, review the deed. property he that also interest in asked in the billboards. addition to his estate real his attorney agent to Plaintiff also admitted that he was given copies of all of the documents that he signed at the closing. -7Based on his deposition testimony, it is clear from the record that plaintiff had both the capacity and opportunity to discover the mistake in the deed. Therefore, we conclude that the application of the statute of limitations was a question of law, and it was appropriate for the trial court to decide this issue. In sum, we conclude that the trial court properly determined that plaintiff s claim is barred by the statute of limitations. entering an Accordingly, order the granting trial summary defendants. Affirmed. Judge BRYANT concurs in result. Judge STEPHENS concurs. Report per Rule 30(e). court did judgment not in err in favor of
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