Grubb Properties, Inc. v. Simms Inv. Co.
| Decision Date | 05 February 1991 |
| Docket Number | No. 9026SC273,9026SC273 |
| Citation | 400 S.E.2d 85,101 N.C.App. 498 |
| Court | North Carolina Court of Appeals |
| Parties | GRUBB PROPERTIES, INC., Plaintiff, v. SIMMS INVESTMENT COMPANY, Defendant and Third-Party Plaintiff, v. COLDWELL BANKER COMMERCIAL GROUP, INC., d/b/a Coldwell Banker Commercial Real Estate Services, Third-Party Defendant. |
J. Rodwell Penry, Jr. and Brinkley, Walser, McGirt, Miller, Smith & Coles by D. Clark Smith, Jr. and Stephen W. Coles, Lexington, for plaintiff-appellant.
House & Blanco, P.A. by John S. Harrison, Winston-Salem, for defendant-appellee Simms Inv. Co.
In seeking to reverse the dismissal of its action to reform defendant's deed to include an adjacent parcel of land allegedly left out because of fraud or mutual mistake, plaintiff appellant presents four questions, only one of which has to be resolved. For the materials of record establish as a matter of law that even if plaintiff's action is supportable by evidence, as to which no opinion is expressed, it is barred by G.S. 1-52(9), the applicable three-year statute of limitations.
Under G.S. 1-52(9), as plaintiff concedes, its cause of action accrued not when plaintiff discovered that the adjacent parcel of land was not included in the deed, but when that fact should have been discovered in the exercise of reasonable diligence. Bennett v. The Anson Bank & Trust Company, 265 N.C. 148, 143 S.E.2d 312 (1965). When a discrepancy or mistake in a deed or other document should be discovered in the exercise of reasonable diligence depends upon the circumstances of each case and is ordinarily a question of fact for the jury, particularly when the evidence is inconclusive or conflicting. Huss v. Huss, 31 N.C.App. 463, 230 S.E.2d 159 (1976). But where the evidence is clear and shows without conflict that the claimant had both the capacity and opportunity to discover the mistake or discrepancy but failed to do so the absence of reasonable diligence is established as a matter of law. Moore v. Fidelity and Casualty Company of New York, 207 N.C. 433, 177 S.E. 406 (1934).
Applying these principles of law to the uncontradicted materials before the court, we hold that the mistake or discrepancy in the deed that plaintiff complains of should have been discovered through the exercise of due diligence, at least by 30 May 1984, when plaintiff filed its Declaration converting the apartment complex to condominiums, and that the action filed nearly four years later is barred. For at...
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