Grubb Properties, Inc. v. Simms Investment Co. , 101 N.C. App. 498 ( 1991 )

400 S.E.2d 85 (1991) 101 N.C. App. 498

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.

No. 9026SC273.

Court of Appeals of North Carolina.

February 5, 1991.

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.

PHILLIPS, Judge.

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 that time, if not before, plaintiff certainly had both the capacity and opportunity to discover that the 1.283 acre tract was not included in the deed by simply comparing the deed legal description with the survey of the property that it had recently received, and under the rule laid down in Moore the action then accrued. And the action accrued on 30 May 1984, if not before, for another reason: In converting the property to condominiums preparatory to selling them to the public plaintiff had the positive duty to exercise reasonable care in describing the converted land, and its failure to take the simple steps that would have enabled it to ascertain that the 1.283 acre parcel had not been conveyed to it cannot be equated with reasonable care. Whether in the exercise of reasonable diligence plaintiff should have discovered the discrepancy or mistake at the closing, even though it had not received the survey—a question much argued in the briefs—need not be determined, and we express no opinion about it.

Affirmed.

HEDRICK, C.J., and ARNOLD, JJ., concur.