IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA20-154

Filed: 31 December 2020

Macon County, No. 15-CVS-438

Charles F. Walter, Jr., Plaintiff,

v.

LAWRENCE JOSEPH WALTER, SR.; LAURIE WALTER; LAWRENCE JOSEPH 

WALTER, JR.; ANGEL WALTER; THOMAS D. WALTER, INDIVIDUALLY AND AS 

PERSONAL REPRESENTATIVE OF THE ESTATE OF LOUISE WALTER; 

JUDITH WALTER; THE LOUISE M. WALTER TRUST u/t/d FEBRUARY 7, 2000 

AS AMENDED THROUGH THOMAS D. WALTER, FIRST SUCCESSOR 

TRUSTEE; MELANIE WALTER DAY; PATRICK DAY; EDWIN BOYER as 

ADMINISTRATOR AD LITEM OF THE ESTATE OF CHARLES WALTER; 

BARBARA EVERS as PERSONAL REPRESENTATIVE OF THE ESTATE OF 

CHARLES WALTER, Defendants.

Appeal by Plaintiff Charles F. Walter, Jr., from judgment entered 7 November 

2019 by Judge Tommy Davis in Macon County Superior Court. Heard in the Court 

of Appeals 20 October 2020.

McKinney Law Firm, P.A., by Zeyland G. McKinney, Jr., for PlaintiffAppellant. 

Kenneth W. Fromknecht, II, for Defendants-Appellants Lawrence Joseph 

Walter, Sr., Laurie Walter, Lawrence Joseph Walter, Jr., and Angel Walter.

COLLINS, Judge.

Plaintiff Charles F. Walter, Jr., appeals from a final judgment reforming a deed 

from his mother’s trust to his father due to a mutual mistake of fact and denying 

Plaintiff’s claim that his father’s attorney-in-fact improperly deeded the land at issue 
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to Plaintiff’s brother and nephew. Plaintiff argues that the trial court erred by 

(1) denying his motion for summary judgment, (2) granting Defendants’ motion for 

directed verdict, (3) proceeding with a bench trial after granting Defendants’ motion 

for directed verdict, (4) concluding that a mutual mistake of fact justified reforming 

the deed, and that (5) there was sufficient evidence that the attorney-in-fact exceeded 

her authority by executing the deed. We conclude that Plaintiff’s claim that the 

attorney-in-fact exceeded her authority was time-barred and that the trial court did 

not err by reforming the deed from Plaintiff’s mother’s trust. We dismiss Plaintiff’s 

challenges to the trial court’s denial of his motion for summary judgment and the 

bench trial. 

I. Procedural History

Plaintiff instituted this action on 23 July 2015 and demanded a jury trial. 

Defendants1 answered, raised counterclaims, and also demanded a jury trial. Both 

Plaintiff and Defendants moved for summary judgment. On 19 July 2019, the trial 

court denied the motions for summary judgment.

At the close of Plaintiff’s evidence, all of the defendants, except Melanie Walter 

Day and Patrick Day, moved for a partial directed verdict. Defendants argued that 

the statute of limitations and collateral estoppel barred Plaintiff’s claims, and that 

 

1 Defendants Lawrence Walter Sr., Lawrence Walter Jr., and Laurie Walter joined in a single 

brief to this Court. For purposes of our discussion, we refer to them collectively as “Defendants” 

throughout. The remaining defendants did not file a brief.
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Plaintiff had offered insufficient evidence. Defendant Barbara Evers also argued 

collateral estoppel. Defendants Thomas and Judith Walter contended that Plaintiff’s 

deed by estoppel theory was inapplicable and joined Defendants’ arguments 

regarding the statute of limitations.

After hearing arguments, the trial court granted Defendants’ motion. The trial 

court then excused the jury for a lunch break and Plaintiff left the courtroom. At that 

point, the remaining parties purported to waive trial by jury and the trial court 

proceeded to decide the remaining issue of reformation in a bench trial. The trial 

court entered final judgment on 7 November 2019 and Plaintiff gave written notice 

of appeal on 25 November 2019.

II. Factual Background

Charles F. Walter and Louise M. Walter (“Mr. and Mrs. Walter,” respectively) 

were married and had four children: Dr. Charles F. Walter, Lawrence Walter, 

Melanie Walter Day, and Thomas D. Walter. In January 1969, Mr. and Mrs. Walter

were deeded property in Macon County, North Carolina (the “Subject Property”). 

Mrs. Walter subsequently filed for dissolution of marriage in Florida in 

February of 2000. On 10 April 2000, Mrs. Walter executed a quitclaim deed (the

“Trust’s Deed”) purporting to transfer any interest she had in the Subject Property to 

the Louise M. Walter Trust (the “Trust”).
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Mr. and Mrs. Walter subsequently entered into a Mediated Settlement 

Agreement on 14 December 2000 (the “Marital MSA”). The Marital MSA provided 

that Mrs. Walter would execute a quitclaim deed to Mr. Walter, to give him “sole 

ownership and possession” of the Subject Property. The deed would be held in escrow 

and released when Mr. Walter paid Mrs. Walter $83,592. On 8 January 2001, the 

Florida trial court entered an order requiring Mr. and Mrs. Walter to comply with the 

terms of the Martial MSA and execute the documents required to do so. Mr. Walter 

took out a cashier’s check for the payment required by the Marital MSA on 

23 January 2001, and apparently provided the check to Mrs. Walter, but Mrs. Walter 

did not immediately execute the deed. As a result, on 16 July 2001, Mr. Walter’s 

attorney wrote Mrs. Walter’s attorney demanding a deed conveying the property from 

the Trust and threatening litigation if she did not comply.

Mr. Walter was hospitalized in Florida between February and March 2003 

after he fell and injured his hip. After the injury, he executed a durable power of 

attorney (the “POA”) designating Barbara Evers as his agent. The POA authorized 

Evers, in pertinent part, 

to sell any and every kind of property that I may own now 

or in the future, real, personal, intangible or mixed, 

including without being limited to contingent and 

expectant interests, marital rights and any rights of 

survivorship incident to joint tenancy or tenancy by the 

entirety, upon such terms and conditions and security as 

my Agent shall deem appropriate . . . .

The POA also permitted Evers 
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to make gifts, grants or other transfers without 

consideration either outright or in trust . . . to such person 

or persons or organizations as [she] shall select; provided, 

however . . . that [she] shall not make any gifts that are not 

excluded from gift tax by my federal gift tax annual 

exclusion . . . .

On 9 June 2003, as trustee of her Trust, Mrs. Walter executed a quitclaim deed

(“9 June 2003 Deed”) purporting to transfer the Trust’s interest in the Subject 

Property to Mr. Walter.

On 22 August 2003, acting under the POA, Evers executed a warranty deed 

granting a life estate in the Subject Property to Lawrence Walter, Sr., and the 

remainder to his son Lawrence Walter, Jr. (the “Lawrence Deed”). The same day, 

Lawrence Walter Sr. and Jr. executed a promissory note and a purchase money deed 

of trust (“Deed of Trust”) in favor of Mr. Walter in the amount of $50,000. 

Mr. Walter died in Florida on 30 August 2003. Though Mr. and Mrs. Walter 

separated, the two remained married until Mr. Walter’s death. Mr. Walter’s Will

devised the residue of his estate to his four children in equal shares. Mrs. Walter 

died on 5 February 2005. Her will devised the residue of her estate to the Trust.

During the Florida probate proceeding of Mr. Walter’s estate, Plaintiff 

petitioned the Florida court to partially remove Evers as personal representative of 

the estate. Plaintiff argued that Evers had a conflict of interest because the estate 

included the Subject Property, and she had executed the Lawrence Deed acting as 

Mr. Walter’s attorney-in-fact. The trial court appointed an administrator ad litem 
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for the estate.2 Plaintiff subsequently moved to remove Evers completely; the Florida 

trial court denied this request and the Florida appellate court affirmed. Plaintiff 

testified that no issues concerning the POA or title to the Subject Property were 

litigated in that proceeding, but the final judgment itself was never entered into 

evidence. 

At the recommendation of the administrator ad litem in the Florida probate 

proceeding, Lawrence Walter Sr. and Jr. executed a replacement promissory note in 

the amount of $57,270 (“Replacement Note”). No payment was made on this 

Replacement Note. 

On 26 October 2012, Thomas D. Walter, as trustee of the Trust, executed a 

deed purporting to transfer the Subject Property to himself personally (the “Thomas 

Deed”).

On 1 March 2013, Lawrence Walter, Sr., Laurie Walter, Lawrence Walter, Jr., 

and Angel Walter sued Mrs. Walter’s Estate, the Trust, Thomas D. Walter, and 

Thomas’s wife, Judith Walter, in Macon County Superior Court. In that suit, 

Lawrence Walter Sr. and. Jr. claimed title to the Subject Property through the 

Lawrence Deed. Thomas Walter claimed title to the Subject Property through Mrs. 

Walter’s Will and the Thomas Deed. Plaintiff was not named as a party in this suit 

and did not seek to intervene.

 

2 Though the administrator ad litem, Edwin Boyer, was named as a defendant in the present 

case, there is no indication that he was served or appeared in the case.
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The parties executed a settlement agreement to resolve that suit on 9 March 

2015. That agreement provided that Lawrence Walter Sr. held a life estate in the 

Subject Property and Lawrence Walter Jr. was entitled to the remainder. The parties 

agreed that because the 9 June 2003 Deed was executed under a mutual mistake of 

fact that the Trust owned the Subject Property at the time, the 9 June 2003 Deed

should be reformed to reflect Mrs. Walter herself, not the Trust, as the grantor. The 

parties further agreed that with the 9 June 2003 Deed so reformed, the Lawrence 

Deed was effective to pass title. Thomas and Judith Walter agreed to execute a 

quitclaim deed to the Subject Property to Lawrence Walter Sr., for and during his 

natural life, with the remainder to Lawrence Walter Jr. The parties agreed that the 

terms of the agreement would be reflected in a final judgment and the entire 

agreement was contingent on the Deed of Trust either being satisfied or held 

unenforceable.

On 16 March 2018, Plaintiff filed the present action against Lawrence Walter 

Jr. and his former wife, Angel Walter; Lawrence Walter Sr. and his wife, Laurie 

Walter; Thomas D. Walter individually, as the personal representative of Mrs.

Walter’s Estate, and as trustee of Mrs. Walter’s Trust; Mrs. Walter’s Trust; Melanie 

Walter Day and her husband, Patrick Day; and Barbara Evers. Plaintiff sought a 

declaration that the Lawrence Deed was void as well as a judgment quieting title in 
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the Subject Property and holding that he and his sister, Melanie Walter Day, owned 

the Subject Property in fee simple.

In support of his claim, Plaintiff argued that the Trust’s Deed was initially 

ineffective to pass title because Mr. and Mrs. Walter owned the Subject Property as 

tenants by the entirety. When Mr. Walter predeceased Mrs. Walter, Mrs. Walter 

became the sole owner of the property. This, Plaintiff argued, made Mr. Walter’s 

estate the owner of the Subject Property by the Trust’s Deed and the 9 June 2003 

Deed under a theory of deed by estoppel. Plaintiff further contended that the 

Lawrence Deed was void because the transfer was a gift which Evers lacked authority 

to make under the POA. Plaintiff demanded a jury trial.

Defendants responded that Plaintiff (1) failed to bring his action within the 

statute of limitations; (2) lacked legal standing to assert a claim to the Subject 

Property; (3) failed to state a claim; (4) prejudicially delayed bringing the suit; (5) had

unclean hands; and that (6) the issues raised in the complaint were previously 

litigated in a Florida lawsuit. Defendants also demanded a jury trial. Defendants 

agreed that Mr. Walter owned the Subject Property following the execution of the 

Trust’s Deed and the 9 June 2003 Deed, but unlike Plaintiff, contended that a theory 

of mutual mistake and reformation demanded this outcome. Defendants argued that 

the statute of limitations barred Plaintiff’s claim that the Lawrence Deed was void. 
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At the close of Plaintiff’s evidence, the trial court directed the jury to leave the 

courtroom while it heard motions. Each of the defendants, except Melanie and 

Patrick Day, moved for a partial directed verdict. Defendants contended that

(1) Plaintiff’s challenge to the Lawrence Deed was barred by the statute of 

limitations, (2) Plaintiff’s claims were barred by collateral estoppel, and (3) Plaintiff 

failed to introduce evidence that the Lawrence Deed was a gift in violation of the 

POA. Thomas and Judith Walter contended that Plaintiff’s estoppel theory was 

inapplicable to the Trust’s Deed and 9 June 2003 Deed and joined Defendants’ 

arguments regarding the statute of limitations. Evers argued that collateral estoppel 

barred Plaintiff from challenging her authority under the POA to execute the 

Lawrence Deed. 

After hearing arguments by counsel, the trial court granted Defendants’ 

motion for a partial directed verdict. The trial court sent the jury to a lunch break, 

but asked the parties “to stay because I’ve got some more discussion.” At that time 

Melanie Walter Day asked the trial court, “Should we leave?” The trial court 

responded, “That’s up to you. You’re still in the case if you want to stay. I’ll leave it 

up to you.” Plaintiff, Patrick Day, and Melanie Walter Day then left the courtroom

and did not return.

The remaining parties waived trial by jury and offered evidence on the issue of 

reformation. The trial court then entered a final judgment. Based upon the evidence 
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presented, the trial court found that Mrs. Walter intended to transfer the Subject 

Property to Mr. Walter, Mr. Walter intended to accept the deed, and the two were 

“under the mistaken belief that [the 9 June 2003 Deed] . . . vested full title to all the 

property to [Mr. Walter].” In light of the mutual mistake, the trial court held that 

“the [9 June 2003 Deed]. . . should be reformed to reflect [Mrs. Walter] as an 

individual and as Trustee of her Trust to [Mr. Walter],” and that the deed as reformed 

would relate back to 4 August 2003, the date that it was recorded. The trial court 

further held that because Mr. Walter owned the property, and Lawrence Walter Sr. 

and Jr. were bona fide purchasers for value, the Lawrence Deed was valid to transfer 

ownership of the property. Plaintiff timely gave written notice of appeal on 

25 November 2019.

III. Discussion

A. Denial of Plaintiff’s Motion for Summary Judgment

Plaintiff first argues that the trial court erred by denying his motion for 

summary judgment.

The purpose of summary judgment is to bring 

litigation to an early decision on the merits without the 

delay and expense of a trial when no material facts are at 

issue. After there has been a trial, this purpose cannot be 

served. Improper denial of a motion for summary 

judgment is not reversible error when the case has 

proceeded to trial and has been determined on the merits 

by the trier of the facts, either judge or jury.

The denial of a motion for summary judgment is an 

interlocutory order and is not appealable. An aggrieved 
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party may, however, petition for review by way of 

certiorari. To grant a review of the denial of the summary 

judgment motion after a final judgment on the merits, 

however, would mean that a party who prevailed at trial 

after a complete presentation of evidence by both sides with 

cross-examination could be deprived of a favorable verdict. 

This would allow a verdict reached after the presentation 

of all the evidence to be overcome by a limited forecast of 

the evidence. In order to avoid such an anomalous 

result . . . the denial of a motion for summary judgment is 

not reviewable during appeal from a final judgment 

rendered in a trial on the merits.

Harris v. Walden, 314 N.C. 284, 286, 333 S.E.2d 254, 256 (1985) (citations omitted).

Plaintiff does not assert that he petitioned for a writ of certiorari after the trial 

court denied his motion for summary judgment, and the record before us does not so 

indicate. After denying Plaintiff’s motion, the trial court proceeded to hear the 

remainder of the case and rendered a final judgment on the merits. As such, 

Plaintiff’s appeal from the trial court’s denial of his motion for summary judgment is 

dismissed.

Plaintiff nonetheless contends that the denial of his motion for summary 

judgment is reviewable because the trial court ruled on Defendants’ motion for a 

directed verdict “without affording Plaintiff an opportunity to reinstate his motion 

for summary judgment pursuant to” Rule 50(a). Plaintiff also contends that the trial 

court “did not have the evidence by defendant-appellee required by Rule 50(a).” 

Because Rule 50(a) contains no such requirements, these arguments are without 

merit.
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B. Defendants’ Motion for Directed Verdict

Plaintiff next argues that the trial court erred by granting Defendants’ motion 

for a directed verdict.

“The standard of review of [a] directed verdict is whether the evidence, taken 

in the light most favorable to the non-moving party, is sufficient as a matter of law to 

be submitted to the jury.” Davis v. Dennis Lilly Co., 330 N.C. 314, 322, 411 S.E.2d 

133, 138 (1991). 

In determining the sufficiency of the evidence to withstand 

a motion for a directed verdict, all of the evidence which 

supports the non-movant’s claim must be taken as true and 

considered in the light most favorable to the non-movant, 

giving the non-movant the benefit of every reasonable 

inference which may legitimately be drawn therefrom and 

resolving contradictions, conflicts, and inconsistencies in 

the non-movant’s favor. 

Turner v. Duke Univ., 325 N.C. 152, 158, 381 S.E.2d 706, 710 (1989). “If there is more 

than a scintilla of evidence supporting each element of the nonmovant’s case, the 

motion for directed verdict should be denied.” Snead v. Holloman, 101 N.C. App. 462, 

464, 400 S.E.2d 91, 92 (1991). In reviewing a trial court’s decision on a motion for a 

directed verdict, this Court will consider only the specific grounds in support of the 

motion that the movant presented to the trial court. Leatherwood v. Ehlinger, 151 

N.C. App. 15, 18, 564 S.E.2d 883, 886 (2002).

We note that although the trial court in this case made findings of fact and 

conclusions of law, these are neither necessary nor appropriate in granting a motion 
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for directed verdict. Seven Seventeen HB Charlotte Corp. v. Shrine Bowl of the 

Carolinas, Inc., 182 N.C. App. 128, 133, 641 S.E.2d 711, 714 (2007). Accordingly, we 

will disregard the trial court’s findings and conclusions as they have no legal 

significance. Id.

1. Specific Grounds for Directed Verdict

As a threshold matter, we address Plaintiff’s contention that Defendants failed 

to state specific grounds justifying a directed verdict, as required by N.C. Gen. Stat. 

§ 1A-1, Rule 50(a). “A motion for a directed verdict shall state the specific grounds 

therefor.” N.C. Gen. Stat. § 1A-1, Rule 50(a) (2019). “This requirement is 

mandatory.” Clary v. Alexander Cnty. Bd. of Educ., 286 N.C. 525, 528, 212 S.E.2d 

160, 162 (1975). Still, to preserve the issue for appellate review, a party must object 

at trial to the failure of the motion to include specific grounds. Johnson v. Robert 

Dunlap & Racing Inc., 53 N.C. App. 312, 315, 280 S.E.2d 759, 762 (1981). 

During arguments on the motion for a directed verdict, Plaintiff never objected 

that Defendants had failed to state the specific grounds for the motion. Because 

Plaintiff failed to raise this objection at trial, he cannot now raise it on appeal. N.C. 

R. App. P. 10(a)(1) (“In order to preserve an issue for appellate review, a party must 

have presented to the trial court a timely request, objection, or motion, stating the 

specific grounds for the ruling the party desired the court to make . . . .”); Dunlap, 53 

N.C. App. at 315, 280 S.E.2d at 762. Nonetheless, we note that Defendants did 
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advance three specific grounds in support of their motion for a directed verdict: (1) the 

statute of limitations had run on Plaintiff’s claim that the Lawrence Deed was void, 

(2) Plaintiff’s claims were barred by collateral estoppel, and (3) Plaintiff failed to 

introduce evidence that the Lawrence Deed was a gift in violation of the POA.

2. Statute of Limitations

Plaintiff contends that a directed verdict was inappropriate because the 

statute of limitations had not run on his challenge to the validity of the Lawrence 

Deed. Specifically, Plaintiff argues that there was no applicable statute of limitations 

which could run against his claim to quiet title.

“There is no express statute of limitations governing actions to quiet title under 

N.C. Gen. Stat. [§] 41-10. It thus is necessary to refer to plaintiffs’ underlying theory 

of relief to determine which statute, if any, applies.” Poore v. Swan Quarter Farms, 

Inc., 79 N.C. App. 286, 289, 338 S.E.2d 817, 819 (1986).

Defendants claim that this is essentially an action for ejectment, and as such, 

is subject to the seven-year statute of limitations found in N.C. Gen. Stat. § 1-38. An 

action to quiet title is in essence an ejectment action where the plaintiff seeks to 

recover possession from defendants in possession. Poore, 79 N.C. App. at 290, 338 

S.E.2d at 819. Plaintiff “made no specific allegation that [D]efendants were in actual 

possession at the time of the filing of this action,” see id., nor did he seek to recover 
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possession from Defendants in his prayer for relief. Under these circumstances, we 

cannot find that Plaintiff’s action is in essence one for ejectment. Id.

Instead, whether Evers exceeded her authority under the POA by executing 

the Lawrence Deed is, in essence, a matter of contract construction. “Although special 

rules apply to the fiduciary relationship between a principal and agent, there is, as a 

general matter, little reason to draw distinctions between powers of attorney and 

contracts.” O’Neal v. O’Neal, 254 N.C. App. 309, 312, 803 S.E.2d 184, 187 (2017). We 

therefore “treat the power of attorney at issue in this case the same as any other 

contract.” Id. at 315, 803 S.E.2d at 189.

Plaintiff was permitted, at most, ten years to institute this action. N.C. Gen. 

Stat. § 1-56 (2019) (establishing a “catch-all” ten-year statute of limitations for 

actions not specifically enumerated). Plaintiff testified that he learned of the 

Lawrence Deed in September 2003. See Pearce v. N.C. State Highway Patrol 

Voluntary Pledge Comm., 310 N.C. 445, 448, 312 S.E.2d 421, 424 (1984) (“In a 

contract action, the statute of limitations begins to run when the contract has been 

breached and the cause of action has accrued.”). Plaintiff did not institute this action 

until 23 July 2015. Because more than eleven years had passed, Plaintiff’s challenge 
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to the validity of the Lawrence Deed was barred by the statute of limitations. The 

trial court did not err by granting Defendants’ partial directed verdict on this ground.

3

C. Bench Trial

Plaintiff next argues that the trial court erred by hearing the remainder of the 

case in a bench trial after granting Defendants’ motion for a directed verdict.4

In order to preserve an issue for appellate review, a party 

must have presented to the trial court a timely request, 

objection, or motion, stating the specific grounds for the 

ruling the party desired the court to make if the specific 

grounds were not apparent from the context. It is also 

necessary for the complaining party to obtain a ruling upon 

the party’s request, objection, or motion.

N.C. R. App. P. 10(a)(1).

After the trial court granted Defendants’ motion for a directed verdict, 

Defendants informed the trial court that they intended to present evidence on the 

remaining issues. At that point, the trial court sent the jury to lunch, but requested 

that the parties stay because it had matters to discuss. When Melanie Walter Day

then asked the trial court, “Should we leave?” the trial court explicitly told her that 

she remained a party to the case and could stay if she chose to do so. The record 

 

3 Because we conclude that Plaintiff’s challenge to the Lawrence Deed was barred by the 

statute of limitations, we do not reach either Plaintiff’s argument that there was sufficient evidence 

that the Lawrence Deed was an impermissible gift transaction or Defendants’ argument that the 

Florida Probate judgment should be given preclusive effect on the question of the deed’s validity. 

4 Plaintiff challenges only the trial court’s resolution of the remaining issues via a bench trial;

he does not challenge the trial court’s continuation of proceedings outside of his presence.
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reflects that Plaintiff, his trial counsel, and the Days left the courtroom and never 

returned. 

Once Plaintiff, his trial counsel, the Days, and the jury had left the courtroom, 

the trial court asked the parties who had stayed in the courtroom which issues 

remained. Defendants’ trial counsel responded, “I would prefer to just go ahead and 

present evidence . . . and get a ruling on title.” When the trial court asked whether 

the remaining parties “want[ed] to waive jury trial to this issue and . . . go ahead and 

start,” all of the remaining parties agreed to do so. The trial court indicated that it 

would “make findings of fact and conclusions of law on . . . this portion of the 

testimony” and the remaining parties presented evidence. 

Because Plaintiff left the courtroom, despite being on notice that the trial court 

intended to proceed, he never presented a timely objection to the trial court’s 

resolution of the remainder of the case via a bench trial. The issue is therefore not 

preserved for our review, and Plaintiff’s argument is dismissed. N.C. R. App. P. 10(a). 

D. Mutual Mistake

Finally, Plaintiff argues that the trial court erred by holding that the 9 June 

2003 Deed should be reformed because there was a mutual mistake of fact and law 

between Mr. and Mrs. Walter.

In a bench trial in which the superior court sits without a 

jury, the standard of review is whether there was 

competent evidence to support the trial court’s findings of 

fact and whether its conclusions of law were proper in light 
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of such facts. Findings of fact by the trial court in a nonjury trial are conclusive on appeal if there is evidence to 

support those findings. A trial court’s conclusions of law, 

however, are reviewable de novo.

Hinnant v. Philips, 184 N.C. App. 241, 245, 645 S.E.2d 867, 870 (2007) (citation, 

quotation marks, and ellipsis omitted).

There are “three circumstances under which reformation [is] available as a 

remedy: (1) mutual mistake of the parties; (2) mistake of one party induced by fraud 

of the other; and (3) mistake of the draftsman.” Willis v. Willis, 365 N.C. 454, 457,

722 S.E.2d 505, 507 (2012). “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.” Best v. Ford Motor Co., 148 N.C. App. 42, 46-47, 557 

S.E.2d 163, 166 (2001) (quotation marks and citation omitted), aff’d per curiam, 355 

N.C. 486, 562 S.E.2d 419 (2002). “The evidence presented to prove mutual mistake 

must be clear, cogent and convincing, and the question of reformation on that basis 

is a matter to be determined by the fact finder.” Smith v. First Choice Servs., 158 

N.C. App. 244, 250, 580 S.E.2d 743, 748 (2003).

1. Burden of Persuasion 

Plaintiff argues that the trial court committed reversible error by failing to 

state the burden of persuasion it applied to the claim of mutual mistake. In support 

of this argument, Plaintiff relies on two cases from this Court, Durham Hosiery Mill 
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Ltd. P’ship v. Morris, 217 N.C. App. 590, 720 S.E.2d 426 (2011), and In re Stowers, 

146 N.C. App. 438, 552 S.E.2d 278 (2001). This reliance is misplaced. 

In Morris, this Court vacated the trial court’s judgment in a summary 

ejectment action not because the trial court failed to state the burden of persuasion, 

but because the trial court applied the incorrect burden of persuasion. 217 N.C. App. 

at 597, 720 S.E.2d at 430. In In re Stowers, this Court held that the trial court must 

affirmatively state the applicable burden of proof in an order terminating parental 

rights. 146 N.C. App. at 441, 552 S.E.2d at 280. This Court’s rationale was that the 

legislature had required trial courts to affirmatively state the burden of proof in the 

similar context of delinquency, abuse, neglect, and dependency proceedings. Id.

Plaintiff has therefore failed to cite any controlling authority for the proposition that 

the trial court was required to enunciate the burden of persuasion it applied to the 

claim of mutual mistake, and we find no error in its failure to do so. 

2. Competency of Evidence of Mutual Mistake

Plaintiff generally complains that the trial court’s findings of fact in 

paragraphs 22 to 27 of its judgment “are not supported by the evidence offered at the 

trial of this action.”

5 Following the bench trial, the trial court found, in pertinent 

part, as follows:

20. . . . [Mr. and Mrs. Walter] acquired the [Subject 

Property] in 1969; that they acquired the property as 

 

5 Paragraph 26 is more accurately described as a conclusion of law, and we review it 

accordingly. 
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tenants by the entireties [sic]; that later Mrs. Louise 

Walter created a trust; and that she attempted to convey 

an interest to the property by quitclaim deed to her trust.

21. Subsequent to that, the parties entered into a 

separation agreement or marital agreement to divide their 

property, and in that agreement Mrs. Louise Walter was 

not only contractually bound, but ordered to transfer her 

interest in the property to Charles Walter, Sr.

22. In response to that requirement, she executed as the 

trustee of her trust a deed for the property to Charles 

Walter . . . and that the evidence indicates a belief at that

time that she mistakenly thought that the trust owned the 

property. 

23. However, due to the tenants by the entirety status [sic], 

her deed to the trust had no effect and was contrary to the 

obligations and the rights under the tenants by entirety 

[sic]. 

24. Despite that mistake, she made a quitclaim deed from 

the trust to Charles Walter, that her intent was to transfer 

her interest in the property to Charles Walter. 

25. It was also the intent of Charles Walter to accept a 

deed from her for that interest, and that both Mrs. Louise 

Walter and Charles Walter, Sr. were under the mistaken 

belief that [the 9 June 2003 Deed] satisfied the obligation 

under the trust and vested full title to all the property to 

Charles Walter, Sr. 

27. . . . Lawrence Joseph Walter, [Sr.] and his son, 

Lawrence Joseph Walter, Jr. are bona fide purchasers for 

value and acquired title to the property from Charles 

Walter superior to what other interest might exist as there 

are no other purchasers for value in the chain of title. 

In light of these findings of fact, the trial court made the following conclusions 

of law: 
WALTER V. WALTER

Opinion of the Court

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26. . . . [A] mutual mistake of fact existed between Charles 

Walter and Mrs. Louise Walter as well as a mistake of law 

coupled therewith, and that as a result thereof the [9 June 

2003 Deed] signed by Mrs. Louise Walter should be 

reformed to reflect . . . her as an individual and as Trustee 

of her Trust to Charles Walter and that the reformed deed 

should relate back to the original date of recording of the 

deed, August 4, 2003.

28. . . . [T]he transaction from Mrs. Barbara Evers to 

Lawrence Joseph Walter, Sr. and his son, Lawrence Joseph 

Walter, Jr. is in all respects valid and that the property is 

now vested in them pursuant to that deed.

Competent evidence supports the finding that both Mr. and Mrs. Walter were 

mutually mistaken that the Trust owned the Subject Property and that the 9 June 

2003 Deed was effective to transfer title to Mr. Walter. Ample evidence demonstrates 

that Mrs. Walter intended to transfer the Subject Property to Mr. Walter, and Mr. 

Walter intended to receive it. Both executed the Marital MSA, which required Mrs. 

Walter to execute a quitclaim deed so that Mr. Walter would have “sole ownership 

and possession” of the Subject Property. The Florida trial court subsequently entered 

an order requiring Mr. and Mrs. Walter to comply with the terms of the Martial MSA 

and execute the documents required to do so. When Mrs. Walter did not do so, Mr. 

Walter, through his attorney, sent a letter to Mrs. Walter demanding that she 

transfer the Subject Property and threatening litigation if she failed to do so. 

Following the execution of the Marital MSA, the entry of the Florida order, and Mr. 

Walter’s demands, Mrs. Walter executed the 9 June 2003 Deed purporting to transfer 

the Subject Property from the Trust to Mr. Walter. The attorney who prepared the 
WALTER V. WALTER

Opinion of the Court

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9 June 2003 Deed testified that its purpose “was to convey the property described in 

the legal description to [Mr. Walter],” he did not know at the time that the deed would 

be ineffective to pass title, and he therefore did not inform Mr. or Mrs. Walter that 

the deed would be defective.

The trial court’s findings of fact also support its conclusion that the deed should 

be reformed. The trial court found that Mr. and Mrs. Walter were mistaken that the 

9 June 2003 would be legally effective to transfer title. Because both parties were 

mistaken as to the legal effect of the instrument, the trial court did not err by 

reforming the deed to reflect Mrs. Walter individually as the grantor. Best, 148 N.C. 

App. at 46-47, 557 S.E.2d at 166.

Plaintiff correctly points out that a mistake of law is not grounds for 

reformation of a deed. See Mims v. Mims, 305 N.C. 41, 60, 286 S.E.2d 779, 792 (1982). 

The trial court did state that “a mutual mistake of fact existed between Charles 

Walter and Mrs. Louise Walter as well as a mistake of law coupled therewith.” In 

context, however, it is clear that the trial court’s reference to a mistake of law was 

merely superfluous, as the substance of the trial court’s judgment focuses on the 

mistake of fact concerning ownership of the Subject Property and the effectiveness of 

the 9 June 2003 Deed to pass title. 
WALTER V. WALTER

Opinion of the Court

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Because there was competent evidence in support of the trial court’s findings 

of fact, and those findings of fact supported the conclusions of law, we discern no error 

in the trial court’s judgment. 

IV. Conclusion

We dismiss Plaintiff’s challenge to the trial court’s denial of his motion for 

summary judgment and the trial court’s decision to hear the remainder of the case in 

a bench trial. Because the statute of limitations barred Plaintiff’s challenge to the 

Lawrence Deed, the trial court did not err in granting Defendants’ motion for a 

directed verdict. Nor did the trial court err by finding that there was a mutual 

mistake of fact between Mr. and Mrs. Walter which justified reforming the 9 June 

2003 Deed. The trial court’s judgment is affirmed.

DISMISSED IN PART AND AFFIRMED. 

Judges ZACHARY and MURPHY concur.