Appeal by plaintiff from order entered 9 August 2006 by Judge
James M. Webb in Moore County Superior Court. Heard in the Court
of Appeals 6 June 2007.
Bain, Buzzard & McRae, LLP, by Robert A. Buzzard, for
Van Camp, Meacham & Newman, PLLC, by Thomas M. Van Camp, for
Plaintiff Stacy Weaver, the administrator of the estate of
Frankie M. Vamper, appeals from an order dismissing plaintiff's
complaint against defendant Saint Joseph of the Pines, Inc. ("SJP")
and also granting judgment on the pleadings in favor of SJP.
Although the parties present this case for review under Rules
12(b)(6) and 12(c) of the North Carolina Rules of Civil Procedure,
the parties and the trial court relied upon matters outside the
pleadings, and, consequently, the Rules of Civil Procedure require
that we decide this appeal pursuant to Rule 56.
Based upon our review of the affidavits and exhibits submitted
by the parties, we hold that no genuine issue of material fact
exists regarding whether a general release signed by Ms. Frankie M.
Vamper bars the claims in this lawsuit. Because, as a matter of
law, the release precludes this action, and plaintiff has failed to
present evidence that the release is unenforceable, we hold that
the trial court properly entered judgment in favor of SJP.
On 17 May 2006, plaintiff filed a negligence and wrongful
death action against SJP, a corporation that owns and runs
assisted-living and nursing-care facilities. According to the
complaint, on 20 May 2003, SJP's employees transported Ms. Vamper
in a van to receive dialysis treatment. While the employees were
loading Ms. Vamper into the van, a piece of the mechanical
wheelchair lift broke and landed on Ms. Vamper's leg. Plaintiffasserts in the complaint that Ms. Vamper suffered serious injuries
from this incident, ultimately resulting in the amputation of her
leg and further serving as a proximate cause of her death, nearly
three years later, on 18 March 2006.
On 5 June 2006, SJP filed an answer; a motion to dismiss
pursuant to N.C.R. Civ. P. 12(b)(1), 12(b)(2), and 12(b)(6); and a
motion for judgment on the pleadings pursuant to N.C.R. Civ. P.
12(c). In support of these motions, SJP attached various documents
relating to a previous lawsuit that SJP had filed in August 2004
against Frankie Mae Vamper, Theron Junior Vamper, Sr., and Joseph
These documents reflect that, in the prior lawsuit, SJP was
attempting to recover a debt of $29,174.54 owed by Ms. Vamper and
her family for care and treatment services rendered to Ms. Vamper
at SJP's facility. When the Vampers failed to answer the August
2004 complaint, the Clerk of Superior Court in Moore County entered
default against them on 22 November 2004. SJP subsequently filed
a motion for default judgment in the amount of the debt.
In June 2005, however, the parties held a mediation
conference, as a result of which they entered into a "Settlement
Agreement and Mutual Release" ("Release"), one of the documents
that SJP attached to its answer in this case. Under the terms of
the Release, the Vampers agreed to pay SJP a sum of $6,000.00, in
24 monthly payments of $250.00, as "full and final settlement of
the pending lawsuits." SJP, in return, agreed to dismiss with
prejudice its claims against the Vampers.
Most pertinent to this case, the Release contained the
4. [THE VAMPERS] do for themselves, their
heirs, successors and assigns, hereby RELEASE,ACQUIT, and FOREVER DISCHARGE ST. JOSEPH OF
THE PINES, INC., ["SJP"] its successors and
assigns, agents, servants, employees, and
corporate, personal, and litigation attorneys,
of and from any and all claims, actions or
causes of action, demands, damages, costs,
judgments, expenses, liabilities, attorneys'
fees, and legal costs, whether known or
unknown, whether in law or in equity, whether
in tort or in contract, of any kind or
character, which they now have, or might
otherwise have, against the [sic] SJP, arising
out of or related to the care and treatment of
Frankie Mae Vamper, all to the end that all
claims or matters that are, or might be in
controversy between the Vampers and SJP are
forever put to rest, relating to the matters
and things alleged in the pending lawsuits, it
being the clear intention to forever discharge
and release all past and present claims
against SJP from all consequences resulting or
potentially to result from the matters and
things set forth in the pending lawsuits or
the care and treatment of Frankie Mae Vamper
while a resident at the SJP facility.
The final page of the Release shows the notarized signatures of
Frankie Mae Vamper, Theron Junior Vamper, Sr., and Joseph E.
In this case, after SJP submitted the Release to the trial
court in conjunction with its answer and Rule 12 motions, plaintiff
gave notice of his intent to take the deposition of SJP's counsel,
Thomas M. Van Camp. Apparently, Thomas Van Camp also represented
SJP in the mediation of the debt claims and was instrumental in
preparing the Release. Plaintiff also filed a motion to continue
the hearing on SJP's Rule 12 motions, asserting that "depositions
and other discovery [are] necessary in order for Plaintiff to
respond to Defendant's motion to dismiss."
Five days later, SJP filed an objection to plaintiff's motion
to continue and a motion for protective order barring plaintiff
from taking the deposition of Thomas Van Camp. SJP asserted:
It would be appropriate to address whether a
deposition of defendant's counsel of recordshould be allowed only after the pending
Motion to Dismiss and Motion for Judgment on
the Pleadings have been ruled upon. If, and
only if, the Court determines that the
language contained in the Settlement Agreement
and Mutual Release is ambiguous, will it be
necessary to address the appropriateness of
taking the deposition of defendant's counsel
SJP then filed an affidavit of Deborah T. Scherer, SJP
accounts receivable manager. As attachments to the Scherer
affidavit, SJP included a computer-generated "payment history" for
the Frankie M. Vamper account and a copy of the obituary of Frankie
M. Vamper. Plaintiff then filed a "Reply to Affirmative Defense,"
attaching an affidavit from Joseph Vamper, Ms. Vamper's son, a
"Memorandum of Mediated Settlement," and a copy of the Release.
Following a hearing on 6 July 2006, Judge James M. Webb orally
granted SJP's motion for protective order, stating "the protective
order prohibits the taking of the deposition of Mr. Thomas M. Van
Camp, defendant's counsel of record, until such time as the
defendant's motion to dismiss and motion for judgment on the
pleadings have been heard and ruled upon by the Court." The trial
court then ordered that "defendant's motion to dismiss and motion
for judgment on the pleadings [be] continued for hearing" until 31
In a joint letter, dated 17 July 2006 and filed with the trial
court on 31 July 2006, the parties explained to the judge that they
had entered into the following agreement and "stipulations":
After discussing this matter . . . we have
agreed that the Court can rule upon
defendant's Motion for Judgment on the
Pleadings and/or Motion to Dismiss without
further argument by the parties. The
documents that are currently on file, and
which the parties stipulate shall be regarded
by the court as pleadings in connection with
ruling on the motions include: 1) the
Complaint and any attachments; 2) the Answerand any attachments; 3) [plaintiff]'s Reply
with attachments; and 4) the Scherer
affidavit. Both parties further stipulate
that the motions shall not be converted into
motions for summary judgment.
On 9 August 2006, the trial court entered a written order granting
SJP's motion to dismiss pursuant to Rules 12(b)(1), 12(b)(2), and
12(b)(6) and granting judgment on the pleadings to defendant
pursuant to Rule 12(c). Plaintiff gave timely notice of appeal to
Conversion of Rule 12(b)(6) and Rule 12(c)
Motions into Summary Judgment Motion
 As an initial matter, we must confront the awkward
procedural posture of this case, a circumstance stemming from the
parties' "stipulations" to the trial court. Here, the court
acknowledged that the parties "stipulated in writing that the Court
shall consider as pleadings in ruling upon the defendant's motions
(1) the Complaint and any attachments; (2) the Answer and any
attachments; (3) the [plaintiff's] Reply with attachments; and (4)
the Scherer affidavit . . . ." The court further acknowledged that
the parties "stipulat[ed] that the defendant's motions shall not be
converted into a motion for summary judgment" and that the letter
containing these stipulations "has been made part of the court file
. . . ."
Following these acknowledgments, the court proceeded to grant
SJP's Rule 12(b)(6) and Rule 12(c) motions.
(See footnote 1)
It is, therefore,
apparent that the court, pursuant to the parties' joint"stipulations," treated the various non-pleading materials as
pleadings and decided not to convert defendant's motions into one
for summary judgment under Rule 56. This approach _ although
invited by the parties _ cannot be reconciled with the Rules of
We first note that a Rule 12(c) motion may be filed only
"[a]fter the pleadings are closed but within such time as not to
delay the trial . . . ." N.C.R. Civ. P. 12(c). Thus, contrary to
what was done here, a Rule 12(c) motion cannot be filed
simultaneously with an answer. Indeed, this Court has recognized
that "while a motion under Rule 12(b)(6) must be made prior to or
contemporaneously with the filing of the responsive pleading," a
distinguishing feature of a Rule 12(c) motion is that it "is
properly made after the pleadings are closed . . . ." Robertson v.
Boyd, 88 N.C. App. 437, 440, 363 S.E.2d 672, 675 (1988). See also
Yancey v. Watkins, 12 N.C. App. 140, 141, 182 S.E.2d 605, 606
(1971) (holding Rule 12(c) motion premature where: "At the time
defendants moved for judgment on the pleadings, the pleadings were
not closed. Defendants had not filed answer. Plaintiff had not
had opportunity to file a reply . . . ."); 1 G. Gray Wilson, North
Carolina Civil Procedure § 12-13, at 237 (2d ed. 1995) ("Unlike
other Rule 12 defenses, a motion for judgment on the pleadings
cannot be asserted until 'after the pleadings are closed.'").
With respect to SJP's Rule 12(b)(6) motion, "[t]he only
purpose of a Rule 12(b)(6) motion is to test the legal sufficiency
of the pleading against which it is directed." White v. White, 296
N.C. 661, 667, 252 S.E.2d 698, 702 (1979). As a general
proposition, therefore, matters outside the complaint are not
germane to a Rule 12(b)(6) motion. Indeed, as N.C.R. Civ. P. 12(b)makes clear, a Rule 12(b)(6) motion is converted to one for summary
judgment if "matters outside the pleading are presented to and not
excluded by the court":
If, on a motion asserting the defense numbered
(6), to dismiss for failure of the pleading to
state a claim upon which relief can be
granted, matters outside the pleading are
presented to and not excluded by the court,
the motion shall be treated as one for summary
judgment and disposed of as provided in Rule
56, and all parties shall be given reasonable
opportunity to present all material made
pertinent to such a motion by Rule 56.
(Emphasis added.) This rule applies equally to Rule 12(c) motions.
See N.C.R. Civ. P. 12(c) ("If, on a motion for judgment on the
pleadings, matters outside the pleadings are presented to and not
excluded by the court, the motion shall be treated as one for
summary judgment and disposed of as provided in Rule 56 . . . .").
The mandatory language of these Rules is unambiguous and
leaves no room for variance in practice. See Minor v. Minor, 70
N.C. App. 76, 78, 318 S.E.2d 865, 867 (holding with respect to Rule
12(c) motions that "[n]o evidence is to be heard, and the trial
judge is not to consider statements of fact in the briefs of the
parties or the testimony of allegations by the parties in different
proceedings"), disc. review denied, 312 N.C. 495, 322 S.E.2d 558
If, however, documents are attached to and incorporated within
a complaint, they become part of the complaint. They may,
therefore, be considered in connection with a Rule 12(b)(6) or
12(c) motion without converting it into a motion for summary
judgment. See Eastway Wrecker Serv., Inc. v. City of Charlotte,
165 N.C. App. 639, 642, 599 S.E.2d 410, 412 (2004) ("Since the
exhibits to the complaint were expressly incorporated by reference
in the complaint, they were properly considered in connection withthe motion to dismiss as part of the pleadings."), disc. review
denied, 359 N.C. 410, 612 S.E.2d 318, aff'd per curiam, 360 N.C.
167, 622 S.E.2d 495 (2005). Further, this Court has held "that
when ruling on a Rule 12(b)(6) motion, a court may properly
consider documents which are the subject of a plaintiff's complaint
and to which the complaint specifically refers even though they are
presented by the defendant." Oberlin Capital, L.P. v. Slavin, 147
N.C. App. 52, 60, 554 S.E.2d 840, 847 (2001).
Here, both parties presented to the trial court and the court
considered numerous "matters outside the pleading," including the
attachments to SJP's answer; plaintiff's reply to SJP's answer with
attachments; and the Scherer affidavit filed by SJP. None of these
documents were attached to the complaint or were the subject of
plaintiff's complaint. Accordingly, under Rule 12(b)(6) and 12(c),
if the court considered those documents in reaching its decision _
as the order below indicates _ SJP's motion could not be disposed
of under Rule 12(b)(6) or Rule 12(c), but rather was converted into
a motion for summary judgment under Rule 56.
The parties attempted to circumvent this principle by filing
a letter with the court "stipulat[ing] that the motions shall not
be converted into motions for summary judgment" based on a further
stipulation that the various documents supplied to the court should
be deemed "pleadings." While parties may agree to streamline
procedures such as by asking a trial court to rule based on
stipulated facts, we do not understand precisely how the parties
expected the trial court to proceed in this case.
The parties apparently intended for the trial court to
consider the attachments to SJP's answer and the Scherer affidavit
_ none of which materials are relevant under Rule 12(b)(6) or Rule12(c). See, e.g., Peace River Elec. Coop., Inc. v. Ward
Transformer Co., 116 N.C. App. 493, 510, 449 S.E.2d 202, 214 (1994)
("[A] party raising a motion under Rule 12(c) simultaneously admits
the truth of all well-pleaded factual allegations in the opposing
party's pleading and the untruth of its own allegations insofar as
the latter controvert or conflict with the former."), disc. review
denied, 339 N.C. 739, 454 S.E.2d 655 (1995); Robertson, 88 N.C.
App. at 440, 363 S.E.2d at 675 ("Both a motion for judgment on the
pleadings and a motion to dismiss for failure to state a claim upon
which relief can be granted should be granted when a complaint
fails to allege facts sufficient to state a cause of action or
pleads facts which deny the right to any relief." (emphasis
Indeed, this Court has specifically held that a document
attached to the moving party's pleading may not be considered in
connection with a Rule 12(c) motion unless the non-moving party has
made admissions regarding the document. Thus, in George Shinn
Sports, Inc. v. Bahakel Sports, Inc., 99 N.C. App. 481, 486, 393
S.E.2d 580, 583 (1990), disc. review denied, 328 N.C. 571, 403
S.E.2d 511 (1991), this Court, in addressing a plaintiff's motion
for judgment on the pleadings, held that a memo attached to the
plaintiff's reply to defendant's counterclaim "must be disregarded"
when it was "not the subject of any admission" by the non-moving
defendant. Thus, under Rule 12(b)(6) and Rule 12(c), there is no
basis for considering SJP's materials despite the stipulation.
Further, the parties also intended that the trial court
consider plaintiff's "reply" to SJP's answer. Yet, since the
"reply" did not address a counterclaim or contributory negligence
and the court had not ordered a reply, it was not authorized underN.C.R. Civ. P. 7(a) (specifying the permissible pleadings in a
civil case and providing that "[n]o other pleading shall be allowed
except that the court may order a reply to an answer or a third-
party answer"). Even if, however, we deemed the "reply" to be part
of the complaint, we still would not be complying with the parties'
stipulation since they did not intend for the trial court to
consider plaintiff's "reply" in isolation from SJP's materials.
We cannot devise a means of giving full effect to the parties'
stipulation without also doing insult to the Rules of Civil
Procedure and the applicable standards of review. See Cline v.
Seagle, 27 N.C. App. 200, 201, 218 S.E.2d 480, 481 (1975) (holding
that even when parties consent to resolving a case on a motion for
judgment on the pleadings, "judgment on the pleadings [becomes]
inappropriate in spite of the consent by the attorneys" because
"[t]he pleadings raise contradicting assertions"). We will,
therefore, review this case as if the trial court had granted
summary judgment to SJP. See Helms v. Holland, 124 N.C. App. 629,
633, 478 S.E.2d 513, 516 (1996) ("Because matters outside the
pleadings were considered by the court in reaching its decision on
the judgment on the pleadings, the motion will be treated as if it
were a motion for summary judgment."). We note that based upon our
review of the record, we do not believe that the discovery sought
by plaintiff _ and deferred _ was material to the issues resulting
in judgment for SJP.
SJP's Entitlement to Judgment
 "Summary judgment is appropriate only when there is no
genuine issue of material fact to be resolved, thereby entitling
the movant to judgment as a matter of law." Northington v.
, 121 N.C. App. 180, 182, 464 S.E.2d 711, 713 (1995). The party moving for summary judgment has the burden of
establishing the lack of any triable issues. Collingwood v. Gen.
Elec. Real Estate Equities, Inc.
, 324 N.C. 63, 66, 376 S.E.2d 425,
427 (1989). Once the moving party meets its burden, then the
non-moving party must "produce a forecast of evidence demonstrating
that [it] will be able to make out at least a prima facie case at
In the trial court, SJP supported its motions by arguing that
plaintiff's lawsuit is barred by the language of the Release.
Plaintiff has responded that the underlying tort claims are not
barred, as a matter of law, because the language of the Release
establishes that the parties never intended to preclude plaintiff's
current claims. In particular, plaintiff asserts that the
Release's repeated mention of the "pending lawsuits" (i.e., the
debt collection matter) and the absence of any reference to
"negligence" or "personal injury" claims, indicates that Ms.
Vamper's tort claims "were not within the contemplation of the
parties, and is strong evidence that Mrs. Vamper did not intend to
discharge, abandon, or relinquish her embryonic claim at the time
she signed the releases."
We acknowledge that the apparent purpose of the parties'
stipulation regarding the inapplicability of Rule 56 was intended
to defer the need for a ruling on whether plaintiff could take a
deposition of SJP's counsel regarding the intent of the parties in
this Release. We agree, however, with SJP that the unambiguous
language of the Release constitutes a release of plaintiff's claims
in this action and, therefore, parol evidence regarding the
parties' intent is immaterial. See First Citizens Bank & Trust Co.
v. 4325 Park Rd. Assocs.
, 133 N.C. App. 153, 156, 515 S.E.2d 51, 54("Parol evidence as to the parties' intent and other extrinsic
matters will not be considered if the language of the contract is
not susceptible to differing interpretations."), disc. review
, 350 N.C. 829, 539 S.E.2d 284 (1999).
Since releases are contractual in nature, we apply the
principles governing interpretation of contracts when construing a
release. Chemimetals Processing, Inc. v. Schrimsher
, 140 N.C. App.
135, 138, 535 S.E.2d 594, 596 (2000). Under North Carolina law,
"[w]hen the language of the contract is clear and unambiguous,
construction of the agreement is a matter of law for the court[,]
and the court cannot look beyond the terms of the contract to
determine the intentions of the parties." Piedmont Bank & Trust
Co. v. Stevenson
, 79 N.C. App. 236, 240, 339 S.E.2d 49, 52
(internal citations omitted), aff'd per curiam
, 317 N.C. 330, 344
S.E.2d 788 (1986). Thus, "[i]t must be presumed the parties
intended what the language used clearly expresses, and the contract
must be construed to mean what on its face it purports to mean."
Hartford Accident & Indem. Co. v. Hood
, 226 N.C. 706, 710, 40
S.E.2d 198, 201 (1946) (internal citations omitted).
Contrary to plaintiff's assertion, we see no basis to construe
the Release as being limited in its coverage to only the then-
pending debt collection matter. Frankie Vamper and her family
released defendant "from any and all claims, actions or causes of
action, . . ., liabilities, . . . whether known or unknown, whether
in law or in equity, whether in tort or in contract, of any kind or
character, which they now have, or might otherwise have, against
the [sic] SJP, arising out of or related to the care and treatment
of Frankie Mae Vamper, all to the end that all claims or matters
that are, or might be in controversy between the Vampers and SJPare forever put to rest . . . ." Further, the Release announces
the "clear intention" of the parties "to forever discharge and
release all past and present claims against SJP from all
consequences resulting or potentially to result from the matters
and things set forth in the pending lawsuits or the care and
treatment of Frankie Mae Vamper while a resident at [defendant's]
." (Emphasis added.)
Because the alleged incident giving rise to plaintiff's claims
related to "the care and treatment of Frankie Mae Vamper" prior to
the signing of the Release, we hold that the plain text of the
Release unambiguously relieves defendant from any liability related
to that incident. See Sims v. Gernandt
, 341 N.C. 162, 165, 459
S.E.2d 258, 260 (1995) ("The document clearly and unambiguously
informs the reader that it is a release by the signatory of 'any
responsibility [of defendant] whatsoever, of any kind for my 85
Honda-Civic.' Any responsibility of defendant to plaintiff was
already in existence at the time plaintiff signed the document and
was therefore released by that document.").
(See footnote 2)
It is immaterial that neither the Release nor the Mediation
Settlement Agreement specifically mentions the claim at issue in
this case or that the possible existence of this claim never arose
during the mediation. As our Supreme Court has held: "'[t]he
language in a release may be broad enough to cover all demands and
rights to demand or possible causes of action, a complete dischargeof liability from one to another, whether or not the various
demands or claims have been discussed or mentioned, and whether or
not the possible claims are all known.
'" Merrimon v. Postal
, 207 N.C. 101, 105-06, 176 S.E. 246, 248 (1934)
(quoting Houston v. Trower
, 297 F. 558, 561 (8th Cir. 1924))
(emphasis added). See also Fin. Servs. of Raleigh, Inc. v.
, 163 N.C. App. 387, 394-95, 594 S.E.2d 37, 42-43 (2004)
(after noting "[o]ur courts have . . . long recognized that parties
may release existing but unknown claims," court held that "when the
parties stated that they were releasing 'all claims of any kind,'
we must construe the release to mean precisely that: an intent to
release all claims of any kind in existence").
In short, the language of the Release encompasses the alleged
injury sustained by Ms. Vamper in May 2003 and ordinarily would
preclude this lawsuit. Plaintiff, however, further contends that
material issues of fact exist as to the enforceability of the
Release, including: (1) whether Frankie Vamper was incompetent at
the time she signed the Release; (2) whether the Release resulted
from a mutual mistake of the parties; (3) whether the Release was
supported by valid consideration; and (4) whether the Release
represents an unconscionable bargain. We address each in turn.
 Regarding Ms. Vamper's incompetency, plaintiff refers to
the affidavit of Joseph Vamper, Ms. Vamper's son. That affidavit
states that the deceased Ms. Vamper "suffered from various
physical, emotional and mental illnesses which impaired her
cognitive abilities and competence" and "was not competent to enter
into any form of legal agreement in that she did not have the
mental faculties to understand the nature of her actions or to
conduct her affairs." Our Supreme Court has held that "[a]n agreement entered into
by a person who is mentally incompetent, but who has not been
formally so adjudicated, is voidable and not void." Walker v.
, 227 N.C. 53, 55, 40 S.E.2d 455, 457 (1946). See also
Hedgepeth v. Home Sav. & Loan Ass'n
, 87 N.C. App. 610, 611, 361
S.E.2d 888, 889 (1987) ("It is well established in our state that
a contract executed by an incompetent prior to being so
adjudicated, is voidable and not void ab initio
."). In accordance
with this principle, "[w]here an incompetent person purports to
enter into a contract, after his death his heirs may ratify the
agreement or they may disaffirm it." Walker
, 227 N.C. at 55, 40
S.E.2d at 457. See also
5 Samuel Williston, A Treatise on the Law
§ 10:5, at 253-54 (Richard A. Lord ed., 4th ed. 1993)
("It has been held that the representative of an insane person may
ratify a bargain made by him after death or that he may disaffirm
it. The same is generally true of his heirs.").
, the defendants presented evidence that their
deceased father "did not have sufficient mental capacity" to enter
into a valid lease and option-to-purchase agreement with the
plaintiff. 227 N.C. at 55, 40 S.E.2d at 457. Even though the
defendants' father died during the lease term, there was evidence
showing that his heirs continued to accept rent payments under the
agreement after the father's death. Id.
The Court held that the
defendants "had the right to disaffirm the agreement immediately
upon [their father's] death," but if "they elected to accept rents
according to the terms of the lease until its expiration, such
conduct would constitute a ratification of the contract." Id.
The rule in Walker
necessarily applies here. Although
plaintiff's evidence, in the form of Joseph Vamper's affidavit, mayset forth evidence that Ms. Vamper was incompetent at the time of
the signing of the Release, defendant has presented undisputed
evidence of ratification of the Release. The Scherer affidavit, in
conjunction with the attached "payment history" and obituary, show
that even after Ms. Vamper's death, her heirs or other
representatives continued to make monthly payments of $250.00 to
SJP, thereby affirming the validity of the agreement. See Ridings
, 55 N.C. App. 630, 632, 286 S.E.2d 614, 616 (plaintiff
ratified transaction procured by undue influence once influence
terminated by "acknowledg[ing] the validity of the agreement" by
continuing to make payment under the agreement and conveying title
to a car pursuant to the agreement), disc. review denied
, 305 N.C.
586, 292 S.E.2d 571 (1982); Bobby Floars Toyota, Inc. v. Smith
N.C. App. 580, 584, 269 S.E.2d 320, 322-23 (1980) (defendant
ratified contract entered into when he was a minor by continuing to
make payments under contract after becoming age 18). Since the
evidence presented by the parties establishes ratification, we hold
that Ms. Vamper's purported incompetency does not render the
 Next, plaintiff contends a genuine factual dispute exists
as to whether the Release was the result of a mutual mistake of the
parties. According to plaintiff, a mistake is evident in the fact
that the parties never had any overt communications about whether
the Release would bar plaintiff's current claims. On this issue,
the Joseph Vamper affidavit tends to show that "the mediation
related solely to payment for [Ms. Vamper's] stay and care at Saint
Joseph of the Pines" and that "at the mediation of the collection
matters . . . there was no intention, discussion, mention,
negotiation or other communication of any kind of any claim,actions, facts or releases regarding the incident which is the
subject of the above-captioned action for personal injury."
(Emphasis added). Plaintiff thus suggests that, if the Release's
plain language acts as a bar to plaintiff's current claims, then
evidence that the contracting parties actually intended the Release
to mean something different constitutes evidence of mutual mistake.
A release may be avoided upon evidence that it was executed as
a result of a mutual mistake. Best v. Ford Motor Co.
, 148 N.C.
App. 42, 45, 557 S.E.2d 163, 165 (2001), aff'd per curiam
, 355 N.C.
486, 562 S.E.2d 419 (2002). "'Mutual mistake is a mistake common
to all the parties to a written instrument . . . which usually
relates to a mistake concerning its contents or its legal effect.'"
Van Keuren v. Little
, 165 N.C. App. 244, 247, 598 S.E.2d 168, 170
, 148 N.C. App. at 46-47, 557 S.E.2d at 166), disc.
, 359 N.C. 197, 608 S.E.2d 328 (2004). This Court has
held that in order "[t]o raise a genuine issue of material fact,
plaintiff must allege specific facts upon which [he] intends to
rely in establishing mutual mistake." Best
, 148 N.C. App. at 47,
557 S.E.2d at 166-67.
, the plaintiff submitted an affidavit stating that she
never intended to release certain entities and that if the release
was construed to apply to those entities, it was the result of a
mutual mistake. Id.
, 557 S.E.2d at 166. Apart from expressions of
her intent, the plaintiff, in opposition to summary judgment,
submitted no other evidence of mutual mistake, such as "any
conversation contemporaneous with the signing of the Release that
would indicate mutual mistake of fact." Id.
at 48, 557 S.E.2d at
166. This Court held that this evidence was "insufficient to
produce a forecast of evidence demonstrating specific facts to showthat plaintiff could establish a prima facie case at trial" and
thus the trial court properly granted summary judgment based on the
at 49, 557 S.E.2d at 167.
Similarly, in Van Keuren
, this Court also held that the
plaintiff's affidavit failed to establish a prima facie case of
mutual mistake when it stated only that it was the plaintiff's
"belief" that the parties, in preparing the settlement documents,
had forgotten about the potential uninsured claim and that the
plaintiff, when accepting the settlement, still intended to pursue
an uninsured claim. 165 N.C. App. at 248, 598 S.E.2d at 171. This
Court concluded: "These conclusory statements fail to show specific
facts of mutual mistake, lack particularity and [are]
insufficient to withstand a motion for summary judgment." Id.
(internal quotation marks omitted).
The evidence presented in this case does not rise even to the
level found insufficient in Best
and Van Keuren
. In support of the
mutual mistake argument, the Joseph Vamper affidavit simply states
that the focus of the mediation was to resolve the debt collection
matter and that the mediation did not specifically address
plaintiff's current claims. The affidavit adds that the Memorandum
of Mediated Settlement was entered into at the end of the mediation
and "illustrat[ed] the agreement reached at mediation." The
attached Memorandum of Mediated Settlement agreement, however,
specifies that "[p]arties will sign settlement agreement & releases
. . . ." The affidavit then concludes by stating that the Release
was not discussed with Ms. Vamper by Joseph Vamper or anyone else.
Nothing in the Joseph Vamper affidavit states that Ms. Vamper
was mistaken in her understanding as to the content or legal effect
of the Release that was also referenced generally in the Memorandumof Mediated Settlement. Indeed, in contrast to Van Keuren
there is nothing in the Joseph Vamper affidavit specifically
denying that the Release embodies the intent of the parties at the
time of signing. In fact, the Joseph Vamper affidavit is
completely devoid of any assertion that either party in this case
intended the Release to have a different meaning than its plain
meaning. Plaintiff, therefore, has fallen well short of meeting
his burden of "stat[ing] with particularity
constituting mistake . . . ." Best
, 148 N.C. App. at 47, 557
S.E.2d at 166 (emphasis added).
 Plaintiff's remaining contentions are addressed by the
Release itself. We find it readily apparent that the Release
agreement was supported by valid consideration. The Release states
that "in consideration of the compromise of disputed claims
parties hereto do covenant and agree as follows . . . ." (Emphasis
added.) Defendant agreed to forego a $29,174.54 claim against the
Vampers and also to "forever discharge and release all past and
present claims against the Vampers from all consequences resulting
or potentially to result from the matters and things set forth in
the pending lawsuits." In return, the Vampers agreed to pay
defendant $6,000.00 and also to "forever discharge and release all
past and present claims against SJP . . . ." Thus, the Release was
supported by valid consideration. See George Shinn Sports
, 99 N.C.
App. at 488, 393 S.E.2d at 584 (holding that party's contention
that issue of fact existed regarding whether letter agreement was
supported by consideration was meritless when "[t]he face of the
document reveals mutual promises and benefits accruing to the
parties").  Finally, we see no evidence that the Release was an
unconscionable contract. For a court to conclude that a contract
is unconscionable, the court must determine "that the agreement is
both substantively and procedurally unconscionable." King v. King
114 N.C. App. 454, 458, 442 S.E.2d 154, 157 (1994). The question
of unconscionability is determined as of the date the contract was
Procedural unconscionability involves "'bargaining
naughtiness'" in the formation of the contract, such as "fraud,
coercion, undue influence, misrepresentation, [or] inadequate
(quoting Rite Color Chemical Co. v. Velvet
, 105 N.C. App. 14, 20, 411 S.E.2d 645, 648 (1992)).
Substantive unconscionability involves an "inequality of the
bargain" that is "'so manifest as to shock the judgment of a person
of common sense, and . . . the terms . . . so oppressive that no
reasonable person would make them on the one hand, and no honest
and fair person would accept them on the other.'" Id.
Brenner v. Little Red Sch. House, Ltd.
, 302 N.C. 207, 213, 274
S.E.2d 206, 210 (1981)).
In this case, plaintiff has presented no evidence of
procedural unconscionability at the time of the execution of the
contract. The mere fact that Ms. Vamper and her sons did not
choose to have legal representation to explain the legal
consequences of the Release does not render the Release
procedurally unconscionable. As this Court recently reiterated:
"Long ago, our Supreme Court stated, 'the law will not relieve one
who can read and write from liability upon a written contract, upon
the ground that he did not understand the purport of the writing,
or that he has made an improvident contract, when he could inform
himself and has not done so.'" Raper v. Oliver House, LLC
, 180N.C. App. 414, 421, 637 S.E.2d 551, 555 (2006) (quoting Leonard v.
Southern Power Co.
, 155 N.C. 10, 14, 70 S.E. 1061, 1063 (1911)).
With respect to substantive unconscionability, the Release, on
its face, shows that the Vamper family obtained a significant
financial concession from defendant as a result of the mediated
settlement _ defendant agreed to accept roughly $23,000.00 less
than the debt originally claimed to be owed by the Vampers. In
exchange for this concession, the Vamper family agreed to
relinquish all existing claims, known or unknown, relating to the
care and treatment of Frankie Vamper. Plaintiff has not shown that
this bargain was so manifestly unequal as to shock the conscience
or that no reasonable person would offer or accept the terms of the
Release. Plaintiff has, therefore, failed to demonstrate that the
Release is unconscionable.
In summary, we conclude that the plain language of the Release
bars this lawsuit. Further, plaintiff has failed to present
evidence raising an issue of fact as to the enforceability of the
Release. As a result, we hold that defendant was properly entitled
to judgment as a matter of law, and the order below should be
Judges CALABRIA and JACKSON concur.