Calhoun v. Calhoun ( 1973 )

197 S.E.2d 83 (1973) 18 N.C. App. 429

Byron C. CALHOUN
v.
Margaret L. CALHOUN.

No. 7318DC456.

Court of Appeals of North Carolina.

June 13, 1973.

Block, Meyland & Lloyd by A. L. Meyland, Greensboro, for plaintiff appellee.

Stern, Rendleman, Isaacson & Klepfer by Robert O. Klepfer, Jr., Greensboro, for defendant appellant.

BRITT, Judge.

If either of the grounds asserted by plaintiff is valid, he is entitled to have the judgment affirmed. We hold that summary judgment was proper on plaintiff's plea of the three-years statute of limitations.

Summary judgment may be granted in two types of cases, those where a claim or defense is utterly baseless in fact and those where only a question of law on the indisputable facts is in controversy and it can be appropriately decided without full exposure of trial. McNair v. Boyette, 282 N.C. 230, 192 S.E.2d 457 (1972).

G.S. § 1-52 provides that an action for relief on the ground of fraud or mistake must be brought within three years after "the discovery by the aggrieved party of the facts constituting the fraud or mistake." The Supreme Court of our State has held in numerous cases that in an action grounded on fraud, the statute of limitations begins to run from the discovery of the fraud or from the time it should have been discovered in the exercise of reasonable diligence Wimberly v. Washington Furniture Stores, Inc., 216 N.C. 732, 6 S.E.2d 512 (1940); Brooks v. Ervin Constr. Co., 253 N.C. 214, 116 S.E.2d 454 (1960); B-W Acceptance Corp. v. Spencer, 268 N. C. 1, 149 S.E.2d 570 (1966).

In the case at bar, the materials presented at the hearing showed conclusively that the deed of separation which defendant challenges on the ground of fraud was prepared by her attorney and was executed by her and plaintiff in March 1962; that she instituted an action on 27 June 1969 to have modified portions of the separation agreement including the amount of monthly payments for her support; that judgment was entered sustaining a demurrer and dismissing the action on 7 November 1969; that said judgment was affirmed by the Court of Appeals on 1 April 1970; and that defendant has not filed any amended pleadings in said action. We think that any fraud in connection with the execution of the deed of separation was discovered by defendant or in the exercise of reasonable diligence should have been discovered by her, more than three years prior to the institution of this action.

The summary judgment is valid on other grounds but no worthwhile purpose would be served in discussing them.

For the reasons stated, the judgment appealed from is

Affirmed.

CAMPBELL and BALEY, JJ., concur.