An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA02-1511


Filed: 7 October 2003


     v .                             Rutherford County
                                    No. 02-CVS-372
and wife, SANDRA SMITH
and husband, GREGG POWELL,

    Appeal by plaintiff from order granting motion to dismiss entered 12 August 2002 by Judge W. Douglas Albright in Rutherford County Superior Court. Heard in the Court of Appeals 8 September 2003.

    Hamrick, Bowen, Mebane, Greenway & Lloyd, by David A. Lloyd, for plaintiff appellant.

    J. Thomas Davis for defendant appellees.

    McCULLOUGH, Judge.

    Plaintiff appellant, Barbara Jean Irvin Lahrmer (“plaintiff”), instituted an action on 2 April 2002 seeking reformation of a deed and quieting title to a 101-acre tract of real property located in Rutherford County, North Carolina. This appeal is from an order entered by Judge Albright granting defendants' motion to dismiss pursuant to N.C. Gen. Stat. § 1A-1, Rules 12(b)(6) and 9(b) (2001).     The undisputed facts of this case are as follows: Plaintiff is the only child of Robert S. Irvin (“Mr. Irvin”). In 1964, Mr. Irvin married Kathleen Carpenter Norris (“Kathleen”), who had two sons, David Spencer Norris, Sr. (“Norris Sr.”), and Henry Stephen Norris (“Steve”) from her prior marriage.
    In 1996, Mr. Irvin and his six siblings inherited a tract of land from their parents, consisting of approximately 101 acres in Rutherford County, North Carolina (“Irvin Property”). On 4 April 1996, all of the Irvin heirs who had inherited an interest in the Irvin Property, together with their spouses, conveyed the Irvin Property to “Robert Samuel Irvin and wife, Kathleen C. Irvin.” Both Mr. Irvin and Kathleen executed the deed. The siblings tenants in common did not partition the property before the sale. In 1999, Kathleen inherited real property from her family, consisting of approximately 240 acres also located in Rutherford County (“Carpenter Property”). On 23 June 2000, Irvin executed a holographic will which stated in pertinent part:
        Of course it is my primary concern that my beloved wife Kathleen receive proper medical care and attention and that her bills be paid. Some of her land may need be sold and some of mine and hers may need be sold (101 acres near Big Springs Church). I would recommend similar acreage be sold from each farm if necessary to aquire [sic] funds. It is my will and desire that my daughter Barbara get the 101 farm at Big Springs Church or whatever portion may be left after any medical expenses for Kathleen.

Kathleen had previously executed a will in 1993. The only real property mentioned in her will was the Cleveland County residence,where the married couple resided, and no subsequent amendments or codicils to her will were executed.
    Mr. Irvin died on 30 July 2000 and Kathleen died 26 March 2001. Norris, Sr., was the executor of both estates. Following the death of Kathleen, Norris, Sr., and his brother Steve asserted ownership of the Irvin Property by virtue of the 4 April 1996 deed to Mr. Irvin and Kathleen. They claimed that title to the Irvin Property vested in Kathleen upon Mr. Irvin's death, and subsequently passed to them as her surviving children. Norris, Sr., then renounced his interest in the tract by instrument dated 11 May 2001. At that time Norris, Sr., had two children, David Spencer Norris, Jr., and Gina Norris Powell. Norris, Sr.'s, wife did not join in the renunciation. Ownership of the Irvin Property is therefore now claimed by Steve, Norris, Jr., and Powell (“defendants”).
    Plaintiff advised defendants that Mr. Irvin's intention had been to keep the Irvin Property in the Irvin family and for her to inherit the 101-acre tract, as set forth in his will. However, defendants refused to convey any interest in the Irvin Property to plaintiff. Plaintiff then filed this action asserting that the 4 April 1996 conveyance of the Irvin Property to Mr. Irvin and Kathleen jointly, as opposed to Mr. Irvin alone, was a mutual mistake and/or a mistake of the draftsman, contrary to her father's intent. Plaintiff seeks reformation of the 1996 deed of the Irvin Property to Mr. Irvin and Kathleen jointly, and to quiet title of the property pursuant thereto.     Plaintiff seeks to reform the 1996 Irvin Property deed on the basis of mutual mistake. The three-year statute of limitations governing mistake and fraud, N.C. Gen. Stat. § 1-52(9) (2001), has been interpreted to accrue when the mistake is actually discovered, or should have been discovered by reasonable diligence. The plaintiff must show both that her father was ignorant of the facts upon which she relies in her action, and also that she could not have discovered those facts in the exercise of proper diligence at the time of conveyance. See Latham v. Latham, 184 N.C. 55, 64, 113 S.E. 623, 627 (1922). See also Johnson v. Insurance Co., 219 N.C. 202, 205, 13 S.E.2d 241, 242 (1941).
    Plaintiff argues the case is not barred by the statute of limitations because she claims the mistake was not discovered until her father's will, dated 23 June 2000, and that any dispute as to when the mistake should have been discovered should be a factual issue determined by a jury. In support, she cites Grubb Properties, Inc. v. Simms Investment Co., 101 N.C. App. 498, 501, 400 S.E.2d 85, 88 (1991), stating:
        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.

Furthermore, she states that the Rule 9(b) motion was wrongfully granted because the mistake is alleged clearly in the complaint.
    Defendants first argue that there was no mistake of fact by the parties of the 1996 conveyance that would allow reforming thedeed. They contend that, at the time of the 1996 deed, both parties misunderstood the legal effect of deeding the Irvin Property to Mr. Irvin and Kathleen jointly. Specifically, they argue that Mr. Irvin misunderstood the right of survivorship aspect of a tenancy by the entirety among spouses in jointly owned real property.
    We believe defendants' first argument governs the disposition of this appeal. In accordance, the trial court's order dismissing plaintiff's claim pursuant to defendants' Rules 12(b)(6) and 9(b) motions.
    In our review, we accept all allegations in plaintiff's complaint as true. See, e.g., Jenkins v. Wheeler, 69 N.C. App. 140, 142, 316 S.E.2d 354, 356 (1984), disc. review denied, 311 N.C. 758, 321 S.E.2d 136 (1984). To survive a Rule 12(b)(6) motion to dismiss, the complaint “must state enough to satisfy the requirements of the substantive law giving rise to the claim.” Braun v. Glade Valley School, Inc., 77 N.C. App. 83, 86, 334 S.E.2d 404, 406 (1985). The facts pleaded in the complaint are the determining factors in deciding whether the complaint states a claim upon which relief can be granted; the legal theory set forth in the complaint does not determine the validity of the claim. Id. In our review, as with that of the trial court, documents referenced in the complaint, specifically the 1996 deed, Mr. Irvin's will, and Kathleen's will, may be considered in determining whether plaintiff has alleged a claim for which relief can be granted. See Robertson v. Boyd, 88 N.C. App. 437, 441, 363 S.E.2d 672, 675 (1988).    In North Carolina, the statutory presumption is that title is held as tenancy by the entireties when property is deeded to a husband and wife jointly. N.C. Gen. Stat. § 39-13.3(b) (2001) states the following:
        A conveyance of real property, or any interest therein, by a husband or a wife to such husband and wife vests the same in the husband and wife as tenants by the entirety unless a contrary intention is expressed in the conveyance.

(Emphasis added.) Plaintiff's complaint seeks to rebut this presumption by alleging a mistake of fact at the time of conveyance.
    Within the framework of our review and the underlying substantive law, we turn first to plaintiff's assertion on appeal that the complaint initiating this action, with all materials referenced therein, asserts a factual mistake in the 1996 deed. Plaintiff argues that the 1996 deed was intended to be a transfer to Mr. Irvin alone so that the land may remain in the Irvin family, as it had for approximately 100 years. The complaint, in paragraph 13, states the following:
        On April 4, 1996, all of the Irvin heirs who had inherited an interest in the Irvin Property, together with their spouses, conveyed the Irvin Property to “Robert Samuel Irvin and wife, Kathleen C. Irvin...”

The complaint then alleges, in paragraph 27, the following:
        The conveyance of the Irvin Property to Robert S. Irvin and Kathleen Carpenter Norris Irvin jointly, as opposed to Robert S. Irvin alone, was the result of a mutual mistake of fact and/or a mistake of the draftsman who prepared the April 4, 1996 Deed.
And furthermore, the complaint alleges, in paragraph 28, the


        The intent of Robert S. Irvin and Kathleen Carpenter Norris Irvin was for the Irvin Property to be conveyed to Robert S. Irvin alone so that it would stay in the Irvin family, just as they intended for the Carpenter Property to stay in the family of Kathleen Carpenter Norris Irvin, and this was the intent and understanding of the grantors in the April 4, 1996 Deed.
    The duty to read an instrument or to have it read before signing it, is a positive one, and the failure to do so, in the absence of any mistake, fraud or oppression, is a circumstance against which no relief may be had, either at law or in equity. Furst v. Merritt, 190 N.C. 397, 130 S.E. 40 (1925). For plaintiff's claim of mistake to survive dismissal, it must allege, with particularity, facts which at the time of conveyance constitute mistake of fact as to the deed. Notwithstanding that we have read the facts of the complaint liberally, plaintiff has failed to state a claim therein. There is no allegation in the complaint regarding the circumstances surrounding the signing of the deed, what anyone was told concerning the titling of the property or concerning the deed's execution, nor why the property was titled jointly in the names of Mr. Irvin and Kathleen. The only allegation that can be gleaned from the complaint is that Mr. Irvin did not understand the legal implications of titling the property jointly.    Reading Mr. Irvin's will liberally in favor of plaintiff's claim, it reveals only that in 1996 Mr. Irvin had not intended his wife to have a right of survivorship in the Irvin Property. As a matter of law, this is not enough to allege mistake of fact in the creation and execution of the 1996 deed. This merely alleges that Mr. Irvin was potentially operating under a mistake of law when he and his wife signed the 1996 deed. North Carolina recognizes no cause of action to reform a deed as the result of mistake of law. “'[M]ere ignorance of law, unless there be some fraud or circumvention, is not a ground for relief in equity whereby to set aside conveyances or avoid the legal effect of acts which have been done.'” Mims v. Mims, 305 N.C. 41, 60, 286 S.E.2d 779, 792 (1982) (quoting Foulkes v. Foulkes, 55 N.C. (2 Jones) 260, 263 (1855) (emphasis original). Unlike the situation in Mims, the facts set out in plaintiff's complaint alleging mistake of fact support no alternative legal theories which would allow her case to survive dismissal.
    After careful review of the record and the arguments of the parties, the trial court's order granting dismissal in favor of defendants is affirmed.
    Chief Judge Eagles and Judge Steelman concur.
    Report per Rule 30(e).    

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