{
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  "name": "ROLAND FORD SUDDS, Plaintiff-appellant v. PHILLIP RAY GILLIAN, JEROME DOUGLAS EADES, ATLANTIC INDEMNITY COMPANY, and HORACE MANN INSURANCE COMPANY, Defendant-appellees",
  "name_abbreviation": "Sudds v. Gillian",
  "decision_date": "2002-09-03",
  "docket_number": "No. COA01-998",
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          "parenthetical": "no grounds for reformation when parents mistakenly included former daughter-in-law's name on deed, where no evidence exists that both parties intended for her name to be omitted"
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    "judges": [
      "Judge GREENE concurs with separate opinion.",
      "Judge HUDSON concurs."
    ],
    "parties": [
      "ROLAND FORD SUDDS, Plaintiff-appellant v. PHILLIP RAY GILLIAN, JEROME DOUGLAS EADES, ATLANTIC INDEMNITY COMPANY, and HORACE MANN INSURANCE COMPANY, Defendant-appellees"
    ],
    "opinions": [
      {
        "text": "BIGGS, Judge.\nPlaintiff appeals from summary judgment entered in favor of defendants. For the reasons that follow, we affirm.\nThis appeal arises from a three-car collision occurring on 18 July 1996. Plaintiff and Terry McGinness were passengers in a car driven by Brian Shook, which was traveling west along Rural Road 1003 in Catawba County, North Carolina. A second vehicle, driven by Alfred Coe, was traveling east on the same road. When Coe stopped to make a left turn, he was struck from behind by a third car, owned by Jerome Eades and driven by Phillip Gillian. Coe was killed in the collision, and his car was propelled into the opposite lane of traffic where it struck Shook\u2019s vehicle. Plaintiff sustained injuries in the accident.\nAt the time of the accident, Gillian and Eades were insured under an automobile liability policy issued by Atlantic Indemnity Company, with liability limits of $50,000 per accident. Shook\u2019s policy was issued by Nationwide Insurance Company, Inc., and included $100,000 in underinsured motorist coverage (UIM), which extended to plaintiff as a passenger in Shook\u2019s car. Plaintiff also had UIM coverage, under a policy issued by Horace Mann Insurance Company.\nOn 22 July 1996, plaintiff, Shook, and McGinness retained counsel to represent them jointly in connection with the accident. On 1 April 1998, Atlantic tendered $23,500 to the three to divide, and on 24 September 1998, Nationwide tendered $76,500 to the three to divide. On 5 October 1998 plaintiff\u2019s counsel wrote to Andrew Holquist, a claims adjuster with Atlantic, on behalf of plaintiff, Shook, and McGinness. Counsel asserted in the letter that.his paralegal had spoken with Holquist by phone, and had also left several voice mail messages, repeatedly asking Holquist to send the \u201cAtlantic Casualty checks and releases,\u201d but that Holquist had failed to do so. The letter directed Holquist to \u201cplease forward the liability payment checks and releases to my office immediately.\u201d In response, Atlantic forwarded the releases, and plaintiff signed a \u201cRelease of All Claims\u201d on 6 November 1998, releasing Gillian, Eades, Atlantic, and \u201call other persons, firms, corporations, associations or partnerships\" from all claims arising out of the accident. A month later, plaintiff\u2019s counsel wrote another letter to Holquist, in which he enclosed \u201cthe three original Release of All Claims which [had] all been signed by [his] clients, Brian Shook, Roland Sudds [plaintiff], and Terry McGinness respectively.\u201d\nOn 30 September 1999, plaintiff filed suit against defendants, alleging that the money he had received from Atlantic and Nationwide was insufficient compensation for his injuries. Plaintiff sought reformation of the release \u201cto allow Plaintiff to pursue his claim against Gillian and Eades pursuant to ... Plaintiffs [UIM] policy with Horace Mann[.]\u201d He alleged that the release had been executed upon a \u201cmutual mistake of fact.\u201d Gillian, Eades, and Atlantic answered on 23 November 1999, raising the release as a bar to plaintiffs claim for UIM coverage from Horace Mann, and denying the existence of a mutual mistake. Horace Mann filed an answer on 13 December 1999, also pleading the release as a bar to plaintiff\u2019s claims. Defendants filed a motion for summary judgment on 1 March 2001, which was granted on 23 March 2001. Plaintiff appeals from the trial court\u2019s order granting summary judgment to defendants.\nStandard of Review\nSummary judgment should be granted when \u201cthe pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u201d N.C.G.S. \u00a7 1A-1, Rule 56(c) (2001). \u201cAn issue is material if the facts alleged would constitute a legal defense, or would affect the result of the action, or if its resolution would prevent the party against whom it is resolved from prevailing in the action.\u201d Koontz v. City of Winston-Salem, 280 N.C. 513, 518, 186 S.E.2d 897, 901 (1972). \u201cThe moving party bears the burden of establishing the lack of a triable issue of fact.\u201d Sykes v. Keiltex Industries, Inc., 123 N.C. App. 482, 484-85, 473 S.E.2d 341, 343 (1996) (citing Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 329 S.E.2d 350 (1985)). Furthermore, \u201cthe evidence presented by the parties must be viewed in the light most favorable to the non-movant.\u201d Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998) (citation omitted).\nPlaintiff argues first that the trial court erred by granting summary judgment. He asserts specifically that there was a genuine issue of material fact regarding whether plaintiff executed the release pursuant to a mutual mistake of fact, and thus whether the release was subject to reformation. We disagree.\n\u201cA release is a \u2018formal written statement reciting that the obligor\u2019s duty is immediately discharged.\u2019 \u201d Best v. Ford Motor Co., 148 N.C. App. 42, 45, 557 S.E.2d 163, 165 (2001) (quoting E. Allan Farnsworth, Contracts \u00a7 4.24 (2d ed. 1990)), aff\u2019d, 355 N.C. 486, 562 S.E.2d 419 (2002) (citation omitted). A release against the principal tortfeasor (negligent driver) also acts to release the UIM insurance carrier, as the liability of a UIM insurance carrier is derivative of the principle tortfeasors\u2019 liability. Grimsley v. Nelson, 342 N.C. 542, 548, 467 S.E.2d 92, 96 (1996) (signing of release against tortfeasor releases UIM carrier as a matter of law due to \u201cderivative nature of the insurance company\u2019s liability\u201d); Spivey v. Lowery, 116 N.C. App. 124, 127, 446 S.E.2d 835, 838, disc. review denied, 338 N.C. 312, 452 S.E.2d 312 (1994) (\u201cwhether or not plaintiff intended to release the UIM carrier is irrelevant ... [if] plaintiff intended to release the tortfeasor, the UIM carrier is released as well\u201d).\nAn otherwise valid release may be reformed, or re-written, if it was executed pursuant to a mutual mistake of fact. Metropolitan Property and Cas. Ins. Co. v. Dillard, 126 N.C. App. 795, 798, 487 S.E.2d 157, 159 (1997) (defining reformation as an \u201cequitable remedy used to reframe written documents\u201d when, because of a mistake common to both parties, \u201cthe written instrument fails to embody the parties\u2019 actual, original agreement\u201d). The party seeking reformation must establish both (1) the existence of a mutual mistake of fact, and (2) a resultant failure of the document as executed to reflect the parties\u2019 intent. Suarez v. Food Lion, Inc., 100 N.C. App. 700, 705, 398 S.E.2d 60, 63 (1990) (citation omitted).\nA mutual mistake exists only when both parties \u201clabor]] under the same misconception respecting a material fact, the terms of the agreement, or the provisions of the written instrument designed to embody such agreement.\u201d Metropolitan Property and Cas. Ins. Co. v. Dillard, 126 N.C. App. 795, 798, 487 S.E.2d 157, 159 (1997) (reforming insurance policy where both parties intended to insure plaintiff\u2019s house, but both were mistaken as to the street address of the property). However, the unilateral \u201cmistake of only one party to the instrument, if such mistake was not induced by the fraud of the other party, affords no ground for relief by reformation.\u201d Light v. Equitable Life Assur. Society, 56 N.C. App. 26, 32, 286 S.E.2d 868, 872 (1982) (citing Parker v. Pittman, 18 N.C. App. 500, 197 S.E.2d 570 (1973)). See also Mock v. Mock, 77 N.C. App. 230, 334 S.E.2d 409 (1985) (no grounds for reformation when parents mistakenly included former daughter-in-law\u2019s name on deed, where no evidence exists that both parties intended for her name to be omitted). Further, \u201creformation on grounds of mutual mistake is available only where the evidence is clear, cogent and convincing.\u201d Durham v. Creech, 32 N.C. App. 55, 59, 231 S.E.2d 163, 166 (1977).\nIn the case sub judice, plaintiff signed a release that expressly releases Gillian, Eades, and Atlantic from further liability in regards to the accident, in exchange for his share of Atlantic\u2019s policy limit. In addition, the document releases \u201call other persons, firms, corporations, associations or partnerships.\u201d Horace Mann was plaintiffs UIM insurance carrier; therefore, plaintiffs execution of a general release of Gillian and Eades generally serves as a matter of law to release Horace Mann, irrespective of plaintiffs intentions.\nPlaintiff, however, alleges that the release was executed pursuant to a mutual mistake of fact, and should therefore be reformed. In support of this contention, plaintiffs attorney executed an affidavit alleging that: (1) the letter requesting a release was written by his paralegal; (2) he \u201cdid not personally review the letter prior to its mailing to Holquist;\u201d (3) he \u201cdid not review\u201d the release before it was forwarded to his client to be signed; and (4) he did not review the signed release for \u201cmany months\u201d until \u201cit was ultimately brought to [his] attention.\u201d Plaintiff essentially alleges that his counsel mistakenly requested the release on his behalf, mistakenly directed plaintiff to execute the release, and mistakenly returned it to Atlantic, and asserts that these circumstances demonstrate that \u201c[counsel\u2019s] request for \u2018liability payment checks and releases\u2019 is a mistake which warrants reformation.\u201d Defendants argue that the affidavit alleges only unilateral error, and does not provide grounds for reformation. We agree with defendants.\nPlaintiff does not assert the existence of any fact or term in the release that is incorrect, was omitted in error, or whose legal import was misunderstood by both parties. Nor does he allege that either party misunderstood the general meaning or effect of the release. We conclude that plaintiff has alleged only his unilateral mistakes, and that, viewing the evidence in the light most favorable to plaintiff, no genuine issue of fact exists as to whether the release was executed pursuant to a mutual mistake of fact.\nPlaintiff also argues that the evidence raises a genuine issue of fact regarding whether the release as executed was contrary to the mutual intent of the parties. However, because we conclude plaintiff has not shown the existence of any mutual mistake of fact, we find it unnecessary to determine the parties\u2019 respective intentions with regard to the release. See Suarez v. Food Lion, Inc., 100 N.C. App. 700, 705, 398 S.E.2d 60, 63 (1990) (\u201cEquity will give relief by reformation only when a mistake has been made, and the written instrument, because of the mistake, does not express the true intent of both parties.\u201d) (emphasis added); Parker v. Pittman, 18 N.C. App. 500, 504, 197 S.E.2d 570, 573 (1973) (\u201cIf a [document] fails to express the true intention of the parties it may be reformed to express such intent only when the failure is due to the mutual mistake of the parties].]\u201d).\nWe conclude that the evidence taken in the light most favorable to plaintiff fails to establish that the release was executed under a mutual mistake or misunderstanding regarding a material fact. This assignment of error is overruled.\nPlaintiff also argues that although he did not move for summary judgment, he is entitled to judgment in his favor as regards defendant Horace Mann. He contends that Horace Mann failed to negotiate with plaintiff or to respond to his inquiries, and therefore that \u201cHorace Mann should be estopped to contest the reformation of the release.\u201d We disagree.\nThe doctrine of equitable estoppel is properly applied when \u201can individual. . . induces another to believe that certain facts exist and that other person rightfully relies on those facts to his detriment.\u201d Bunn Lake Property Owner\u2019s Ass\u2019n, Inc. v. Setzer, 149 N.C. App. 289, 297, 560 S.E.2d 576, 582 (2002) (citation omitted). The trial court \u201cmay only grant a summary judgment motion based on the doctrine of estoppel \u2018[w]here there is but one inference that can be drawn from the undisputed facts of a case.\u2019 \u201d Tackett v. Guerrier, 149 N.C. App. 405, 412, 561 S.E.2d 310, 314 (2002) (quoting Keech v. Hendricks, 141 N.C. App. 649, 653, 540 S.E.2d 71, 75 (2000)).\nIn the case sub judice, plaintiff alleges only that Horace Mann did not respond to plaintiffs letters informing it of his settlement negotiations with other insurers. However, plaintiff fails to assert the existence of any fact that Horace Mann allegedly misrepresented by its silence, upon which plaintiff relied to his detriment. This assignment of error is overruled.\nFinally, plaintiff argues that the trial court erred by failing to consider his written memorandum of law opposing the grant of summary judgment. Having determined that the trial court\u2019s ruling was legally correct, we necessarily determine that any error in the trial judge\u2019s failure to review plaintiffs memorandum, was harmless.\nFor the reasons discussed above, we conclude that plaintiff presented no grounds upon which to reform the release. We conclude that defendants were entitled to summary judgment as a matter of law, and, accordingly, the order of the trial court is\nAffirmed.\nJudge GREENE concurs with separate opinion.\nJudge HUDSON concurs.",
        "type": "majority",
        "author": "BIGGS, Judge."
      },
      {
        "text": "GREENE, Judge,\nconcurring in the result.\nWhile I agree with the majority that no genuine issue of fact exists with regard to the execution of the release under circumstances amounting to mutual mistake, I write separately to clarify when a release may be avoided.\nA release can be avoided upon a \u201cshowing that its execution resulted from . . . mutual mistake of fact.\u201d Cunningham v. Brown, 51 N.C. App. 264, 269, 276 S.E.2d 718, 723 (1981). A mistake of fact occurs, affording reformation, if a release fails \u201cto accomplish the result intended by both parties.\u201d Id. at 273-74, 276 S.E.2d at 726. Thus, if there is evidence permitting a finding that the parties to a release intended to release only certain parties, but the release actually contains \u201clanguage contrary to this mutual agreement and intention in that by its terms it release[s] other[s]\u201d as well, a genuine issue of fact is raised precluding entry of summary judgment. Id. at 273, 276 S.E.2d at 726.\nIn this case, viewing the evidence in the light most favorable to plaintiff, no genuine issue of fact exists as to whether the release was executed under circumstances amounting to a mutual mistake of fact. Indeed, the evidence shows the release was executed pursuant to plaintiffs unilateral mistake of fact.",
        "type": "concurrence",
        "author": "GREENE, Judge,"
      }
    ],
    "attorneys": [
      "Wyatt Early Harris & Wheeler, by Stanley F Hammer and William E. Wheeler, for plaintiff-appellant.",
      "Caudle & Spears, P.A., by Eric Allen Rogers, for defendant-appellees Phillip Ray Gillian, Jerome Douglas Eades, and Atlantic Indemnity Company.",
      "Parker, Poe, Adams & Bernstein L.L.P., by Regina J. Wheeler and John Beyer, for defendant-appellee Horace Mann Insurance Company."
    ],
    "corrections": "",
    "head_matter": "ROLAND FORD SUDDS, Plaintiff-appellant v. PHILLIP RAY GILLIAN, JEROME DOUGLAS EADES, ATLANTIC INDEMNITY COMPANY, and HORACE MANN INSURANCE COMPANY, Defendant-appellees\nNo. COA01-998\n(Filed 3 September 2002)\n1. Release\u2014 mutual mistake \u2014 not shown\nThe trial court did not err by granting summary judgment for defendants in an action seeking reformation of a release following an automobile accident where plaintiff did not assert the existence of any fact or term in the release that was incorrect, omitted in error, or misunderstood, and did not allege that either party misunderstood the general meaning or effect of the release.\n2. Release\u2014 mutual mistake \u2014 silence during negotiations\u2014 no misrepresentation\nThe plaintiff in an action seeking reformation of a release was not entitled to summary judgment against a defendant who did not negotiate with him or respond to his inquiries. Plaintiff alleged only that this defendant did not respond to his letters, but did not allege any fact misrepresented by defendant\u2019s silence on which plaintiff relied to his detriment.\n3. Trials\u2014 refusal to review memorandum of law \u2014 harmless\nThe trial court\u2019s failure to review plaintiff\u2019s written memorandum of law was harmless where the court correctly granted summary judgment for defendant.\nJudge Greene concurring in the result.\nAppeal by plaintiff from order entered 23 March 2001 by Judge L. Oliver Noble, Jr., in Catawba County Superior Court. Heard in the Court of Appeals 14 May 2002.\nWyatt Early Harris & Wheeler, by Stanley F Hammer and William E. Wheeler, for plaintiff-appellant.\nCaudle & Spears, P.A., by Eric Allen Rogers, for defendant-appellees Phillip Ray Gillian, Jerome Douglas Eades, and Atlantic Indemnity Company.\nParker, Poe, Adams & Bernstein L.L.P., by Regina J. Wheeler and John Beyer, for defendant-appellee Horace Mann Insurance Company."
  },
  "file_name": "0659-01",
  "first_page_order": 687,
  "last_page_order": 693
}