Wells Fargo Bank, N.A. v. Stocks

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA18-1171

Filed: 2 July 2019

Wake County, No. 17 CVS 6521

WELLS FARGO BANK, N.A., Plaintiff,

v.

FRANCES J. STOCKS, in his capacity as the executor of the estate of LEWIS H.
STOCKS AKA LEWIS H. STOCKS, III, TIA M. STOCKS and JEREMY B. WILKINS,
in his capacity as commissioner, Defendants.

Appeal by Defendant Tia M. Stocks from summary judgment entered 25 April

2018 by Judge Henry W. Hight in Wake County Superior Court. Heard in the Court

of Appeals 25 April 2019.

The Law Office of John T. Benjamin, Jr., P.A., by John T. Benjamin, Jr., and
Aleksandra E. Anderson, for Plaintiff-Appellee.

Janvier Law Firm, PLLC, by Kathleen O’Malley, for Defendant-Appellant Tia
M. Stocks.

Howard, Stallings, From, Atkins, Angell & Davis, P.A., by Douglas D. Noreen
and Rebecca H. Ugolick, for Defendant-Appellant Frances J. Stocks, in his
Capacity as the executor of the estate of Lewis H. Stocks.

No brief filed by Defendant Jeremy B. Wilkins.

INMAN, Judge.

Defendant-Appellant Tia M. Stocks (“Ms. Stocks”) appeals from the trial

court’s entry of summary judgment reforming a deed of trust and ordering judicial

foreclosure in favor of Plaintiff-Appellee Wells Fargo, N.A. (“Wells Fargo”). Following
 WELLS FARGO, N.A. V. STOCKS

Opinion of the Court

careful review, we reverse the trial court’s entry of summary judgment and hold Wells

Fargo’s reformation action is barred by the applicable statute of limitations.

I. Factual and Procedural History

On 22 March 2002, Ms. Stocks’ father, Lewis H. Stocks (“Mr. Stocks”), executed

a Limited Power of Attorney naming Ms. Stocks attorney-in-fact for the limited

purpose of executing certain documents necessary to purchase a house in Garner,

North Carolina (the “Property”), for Ms. Stocks’ use as a residence. Mr. Stocks

arranged to purchase the property through a loan with First Union National Bank

(“First Union”), and a general warranty deed conveying the Property to Ms. Stocks—

as sole owner—was filed on 26 March 2002. Consistent with her father’s loan

arrangement, Ms. Stocks executed a promissory note as attorney-in-fact for Mr.

Stocks in First Union’s favor in the amount of $88,184.50 (the “First Note”) on 27

March 2002; she also recorded a deed of trust for that amount (together with the First

Note as the “First Loan”) that same day, which named herself and her father as

borrowers and listed First Union as the beneficiary.

Before the First Note was paid off, First Union became Wachovia; Wachovia,

in turn, became holder of the First Note. In late 2004, Mr. Stocks sought to refinance

the First Loan with Wachovia and, on 12 January 2005, executed a new promissory

note for $83,034.00 in Wachovia’s favor (the “Note”). Ms. Stocks was not named as a

borrower on the Note. On 19 January 2005, Ms. Stocks executed a new deed of trust

-2-
 WELLS FARGO, N.A. V. STOCKS

Opinion of the Court

with Wachovia under seal (the “Deed of Trust”), listing her as the borrower and

stating she was “indebted to [Wachovia] in the principal sum of U.S.$ 83034.00 which

indebtedness is evidenced by Borrower’s Note dated 01/12/05.” Because Ms. Stocks

was not a signatory to or debtor under the Note, the language of the Deed of Trust

mistakenly secured a non-existent debt. Ms. Stocks, however, made payments on the

Note.

By 2016, Wachovia had merged with Wells Fargo, Mr. Stocks had passed away,

and Ms. Stocks had ceased paying the Note. Wells Fargo sent a right to cure letter

to Mr. Stocks’ estate (the “Estate”) on 2 March 2016, but no further payments were

forthcoming. Wells Fargo thereafter commenced non-judicial foreclosure proceedings

on the Property; during the course of those proceedings, Wells Fargo learned for the

first time that, because of the mistake in the Deed of Trust, the Note was not secured

by the Property.

To correct the error, Wells Fargo filed a complaint on 26 May 2017 requesting

reformation of the Deed of Trust and a judicial sale of the Property; in the alternative,

Wells Fargo requested imposition of an equitable lien on the Property. The complaint

also alleged a breach of contract against the Estate for its default on the Note, as well

-3-
 WELLS FARGO, N.A. V. STOCKS

Opinion of the Court

as claims for quiet title and declaratory judgment that would establish the Deed of

Trust as a valid lien on the Property as security for the Note.1

Ms. Stocks filed an answer to Wells Fargo’s complaint asserting the statute of

limitations as a defense to reformation. The Estate filed its answer and crossclaims

against Ms. Stocks for breach of contract, unjust enrichment, and unfair and

deceptive trade practices. Following further pleading and discovery, Wells Fargo

moved for summary judgment on all claims.

At the summary judgment hearing, Wells Fargo contended that Ms. Stocks’

statute of limitations defense, premised on Section 1-52(9), failed as a matter of law.

That statute, which applies to claims arising from mistake, does not begin to run until

the claimant “actually learns of [the mistake’s] existence or should have discovered

the mistake in the exercise of due diligence[,]” Wells Fargo Bank, N.A. v. Coleman,

239 N.C. App. 239, 244, 768 S.E.2d 604, 608 (2015) (citation omitted), and Wells Fargo

asserted that Ms. Stocks had failed to forecast any evidence demonstrating that the

mistake was or should have been discovered more than three years prior to suit.

Counsel for Ms. Stocks argued that Wells Fargo should have discovered the mistake

at the time the Deed of Trust was executed. The trial court rejected Ms. Stocks’

1 Defendant Jeremy B. Wilkins was named in Wells Fargo’s complaint for the sole purpose of
allowing the trial court to appoint him as commissioner over any subsequent judicial foreclosure sale.
He has not made an appearance in this appeal and is not discussed in the parties’ arguments; as a
result, we omit him from further discussion.

-4-
 WELLS FARGO, N.A. V. STOCKS

Opinion of the Court

statute of limitations argument and entered summary judgment for Wells Fargo on

its claims for reformation and judicial foreclosure. Ms. Stocks appeals.

II. Analysis

A. Appellate Jurisdiction

The trial court’s summary judgment order did not fully resolve Wells Fargo’s

claims against the Estate or the Estate’s crossclaims against Ms. Stocks; as a result,

it is an interlocutory order. See Atkins v. Beasley, 53 N.C. App. 33, 36, 279 S.E.2d

866, 869 (1981). Such an order is immediately appealable if it “deprives the appellant

of a substantial right which would be lost absent immediate review.” N.C. Dep’t of

Transp. v. Page, 119 N.C. App. 730, 734, 460 S.E.2d 332, 334 (1995) (citation omitted);

see also N.C. Gen. Stat. §§ 7A-27(a)(3)(a) and 1-277(a) (2017). “The moving party

must show that the affected right is a substantial one, and that deprivation of that

right, if not corrected before appeal from final judgment, will potentially injure the

moving party. Whether a substantial right is affected is determined on a case-by-

case basis, and should be strictly construed.” Alexander Hamilton Life Ins. Co. of

America v. J & H Marsh & McClennan, Inc., 142 N.C. App. 699, 701, 543 S.E.2d 898,

900 (2001) (citations omitted).

Ms. Stocks argues that because the summary judgment orders the sale of her

primary residence, if the appeal is not heard and the foreclosure moves forward, she

may lose her home permanently prior to any appeal from final judgment. Wells Fargo

-5-
 WELLS FARGO, N.A. V. STOCKS

Opinion of the Court

and the Estate present no argument to the contrary. We hold the summary judgment

order directing the judicial sale of Ms. Stocks’ home affects a substantial right subject

to appellate review. Cf. Soares v. Soares, 86 N.C. App. 369, 370, 357 S.E.2d 418, 418

(1987) (holding an interlocutory order in a divorce action that directed the sale of the

marital home involved a substantial right subject to immediate appeal).

B. Standard of Review

We review the grant of summary judgment de novo. Forbis v. Neal, 361 N.C.

519, 524, 649 S.E.2d 382, 385 (2007). This standard of review also encompasses the

application of the appropriate statute of limitations where the relevant facts are

undisputed. McKoy v. Beasley, 213 N.C. App. 258, 262, 712 S.E.2d 712, 715 (2011).

C. Applicable Statute of Limitations

The parties noted in their briefs that resolution of this appeal requires

consideration of two different statutes of limitations. The first, Section 1-52(9),

provides a three-year limitation on actions “[f]or relief on the ground of fraud or

mistake; the cause of action shall not be deemed to have accrued until the discovery

by the aggrieved party of the facts constituting the fraud or mistake.” N.C. Gen. Stat.

§ 1-52(9) (2017). The second statute, Section 1-47(2), provides a ten-year limitation

on actions “[u]pon a sealed instrument or an instrument of conveyance of an interest

in real property, against the principal thereto.” N.C. Gen. Stat. § 1-47(2) (2017).

-6-
 WELLS FARGO, N.A. V. STOCKS

Opinion of the Court

Although both statutes were mentioned as potentially applicable in the hearing

before the trial court, substantive argument below focused only on Section 1-52(9).

On appeal, Ms. Stocks argues that she raised a genuine issue of material fact

as to when Wells Fargo should have discovered the mistake in the Deed of Trust, and,

as a result, whether the three-year statute of limitations in Section 1-52(9) bars Wells

Fargo’s reformation claim. She bases this argument on evidence tending to show

that: (1) Wachovia (now Wells Fargo) drafted other documents, simultaneous with

the Deed of Trust, that properly described Mr. and Ms. Stocks’ relationships with

Wachovia; and (2) no Wachovia representative was present when Ms. Stocks signed

the Deed of Trust. The trial court may very well have been correct in rejecting that

argument, as the evidence cited does not suggest the existence of “facts and

circumstances sufficient to put [Wells Fargo] on inquiry which, if pursued, would lead

to the discovery of the facts constituting the [mistake].” Coleman, 239 N.C. App. at

245, 768 S.E.2d at 609 (citations omitted). We do not resolve whether the trial court

properly concluded Ms. Stocks’ limitations defense under Section 1-52(9) failed as a

matter of law, however, because precedent established after the trial court’s ruling,

and before this Court’s appellate review, held that Section 1-52(9) does not apply to

a claim to reform a deed of trust based on mistake.

After the trial court granted summary judgment in favor of Wells Fargo, this

Court issued its opinion in Nationstar Mortgage, LLC v. Dean, ___ N.C. App. ___, 820

-7-
 WELLS FARGO, N.A. V. STOCKS

Opinion of the Court

S.E.2d 854 (2018), holding that a claim to reform a deed of trust on grounds of mistake

is subject to the ten-year statute of limitations found in Section 1-47(2), not Section

1-52(9). ___ N.C. App. at ___, 820 S.E.2d at 860.

Neither party disputes that Nationstar Mortgage and Section 1-47(2) govern

this appeal. In its principal brief, appellee Wells Fargo expressly argues that “the

applicable statute of limitations here as prescribed by Nationstar Mortgage is the ten-

year statute under [Section] 1-47(2).” Although Ms. Stocks argued in her principal

appellate brief that our consideration of the applicable statute of limitations should

be limited to Section 1-52(9), she addressed Wells Fargo’s contention in her reply brief

by positing that if Wells Fargo is correct that the ten-year statute of limitations

applies, Section 1-47(2) bars Wells Fargo’s claim.

Consistent with Nationstar Mortgage, we hold that Section 1-47(2) governs

Wells Fargo’s reformation claim. Thus, although the trial court may very well have

properly determined that Section 1-52(9) did not bar summary judgment in favor of

Wells Fargo, that determination is immaterial if, following Nationstar Mortgage,

Section 1-47(2) applies to the exclusion of Section 1-52(9).

In Nationstar Mortgage, a married couple defaulted on a loan secured by a deed

of trust; however, the deed of trust was recorded without a legal description of the

real property it encumbered. ___ N.C. App. at ___, 820 S.E.2d at 856-57. Nationstar,

the servicer of the defaulted loan, brought a declaratory judgment and reformation

-8-
 WELLS FARGO, N.A. V. STOCKS

Opinion of the Court

action on the ground of mistake, requesting the trial court reform the deed of trust to

accurately describe the real property. Id. at ___, 820 S.E.2d at 857. The borrowers

raised a statute of limitations defense, but the trial court rejected that defense and

entered summary judgment reforming the deed of trust. Id. at ___, 820 S.E.2d at 858.

On appeal, the borrowers argued that Nationstar’s claim was barred by Section

1-52(9), while Nationstar asserted the ten-year statute of limitations in Section

1-47(2) controlled. Id. at ___, 820 S.E.2d at 860.

To resolve that dispute, this Court looked to the “well-stablished canons of

statutory construction,” and observed that “ ‘[w]hen two statutes apparently overlap,

it is well established that the statute special and particular shall control over the

statute general in nature, even if the general statute is more recent, unless it clearly

appears that the legislature intended the general statute to control.’ ” Id. at ___, 820

S.E.2d at 860 (quoting Fowler v. Valencourt, 334 N.C. 345, 349, 435 S.E.2d 530, 533

(1993)). After acknowledging the deed of trust in question was “clearly a sealed

instrument . . . ‘of conveyance of an interest in real property[,]’ ” we held that “[a]s

between N.C. Gen. Stat. §§ 1-47(2) and 1-52(9), the former is the more specific statute

of limitations that applies to Nationstar’s reformation claim under the ten-year

limitations period.” Id. at ___, 820 S.E.2d at 860 (quoting N.C. Gen. Stat. § 1-47(2)).

Given that “where two statutes deal with the same subject matter, the more

specific statute will prevail over the more general one,” Fowler, 334 N.C. at 349, 435

-9-
 WELLS FARGO, N.A. V. STOCKS

Opinion of the Court

S.E.2d at 532 (emphasis added), and Nationstar Mortgage, relying on that canon,

expressly held that “[a]s between N.C. Gen. Stat. §§ 1-47(2) and 1-52(9), the former

is the more specific statute of limitations that applies to Nationstar’s reformation

claim[,]” ___ N.C. App. at ___, 820 S.E.2d at 860, we hold that Section 1-47(2) applies

to Wells Fargo’s claim while Section 1-52(9) does not.2 We note that neither the

parties nor the trial court had the benefit of this Court’s decision in Nationstar

Mortgage when the matter was resolved below.

D. Accrual of the Limitations Period Provided by Section 1-47(2)

Having held that the ten-year statute of limitations provided by Section 1-47(2)

applies to Wells Fargo’s reformation claim, we must now determine whether that

claim was brought within the limitations period.

North Carolina common law provides that, for statute of limitations purposes,

“a cause of action accrues at the time the injury occurs[,] . . . even when the injured

party is unaware that the injury exists[.]” Pembee Mfg. Corp. v. Cape Fear Const. Co.,

313 N.C. 488, 492, 329 S.E.2d 350, 353 (1985) (citations omitted) (emphasis added).

2 We read Nationstar Mortgage to hold that Section 1-47(2) applies to the exclusion of 1-52(9)
with respect to claims for reforming a sealed instrument based on mistake. The parties do not identify,
and we have not found, any cases holding that more than one statute of limitations can apply to a
claim. Nor have we located any decisions holding that where one statute of limitations—established
by law as applicable to the action—has run on a claim, a different statute of limitations may step in
and save the cause of action. Such paucity is not entirely surprising, given “that statutes of limitations
are inflexible and unyielding[,]” and seek “to afford security against demands . . . . This security must
be jealously guarded[.]” King v. Albemarle Hosp. Auth., 370 N.C. 467, 470, 809 S.E.2d 847, 848 (2018)
(internal quotation marks and citations omitted). We note that Wells Fargo’s appellate brief speaks
in exclusive terms when it states “the applicable statute of limitations here as prescribed by Nationstar
Mortgage is the ten-year statute under [Section] 1-47(2).”

- 10 -
 WELLS FARGO, N.A. V. STOCKS

Opinion of the Court

In other words, “[a] cause of action generally accrues and the statute of limitations

begins to run as soon as the right to institute and maintain a suit arises.” Penley v.

Penley, 314 N.C. 1, 20, 332 S.E.2d 51, 62 (1985) (citations omitted). This common law

rule may be modified by express statutory language delaying accrual until the party

discovers or reasonably should discover the injury or mistake giving rise to the cause

of action. See, e.g., Pembee Mfg. Corp., 313 N.C. at 492, 329 S.E.2d at 353 (noting

that the common law rule ordinarily applies but recognizing that the discovery

provisions found in various subsections of Section 1-52 modify the common law by

delaying accrual until the injury is discovered or reasonably should have been

discovered); Leonard v. England, 115 N.C. App. 103, 107, 445 S.E.2d 50, 52 (1994)

(observing that Section 1-52(16)’s “discovery” provisions extend the statute of

limitations by delaying accrual “until bodily harm to the claimant . . . becomes

apparent or ought reasonably to have become apparent to the claimant” (citation and

internal quotation marks omitted)).

Although Section 1-52(9) contains language modifying the common law accrual

rule, Section 1-47(2) does not. Thus, the common law rule applies to reformation

actions governed by Section 1-47(2). Pembee Mfg. Corp., 313 N.C. at 492, 329 S.E.2d

at 353. And, when tasked in Nationstar Mortgage with determining whether the

action to reform a deed of trust for mistake was brought within the ten-year

limitations period, this Court held that claim accrued not at the time the mistake in

- 11 -
 WELLS FARGO, N.A. V. STOCKS

Opinion of the Court

the deed of trust was discovered, but when the deed of trust itself was executed. ___

N.C. App. at ___, 820 S.E.2d at 860 (“No genuine issue of material fact exists that

Nationstar filed its verified complaint on 26 June 2013, which is within ten years of

the execution of the First South Deed of Trust on 1 June 2004.” (emphasis added)).

Consistent with the application of Section 1-47(2) in Nationstar Mortgage, we hold

that Wells Fargo’s claim accrued on—and the statute of limitations runs from—the

date the Deed of Trust was executed. See id. at ___, 820 S.E.2d at 860; see also 66

Am. Jur. 2d Reformation of Instruments § 89 (“[S]ome states apply the general rule

that the statute commences to run at the accrual of the cause of action [for

reformation on grounds of mistake], that is, at the date of the execution or delivery of

the instrument, sometimes on the theory that the statute has made no [discovery]

exception in this class of cases.”).

It is undisputed that the Deed of Trust was executed by Ms. Stocks in January

2005 and that Wells Fargo filed its complaint twelve years later, on 26 May 2017.

Wells Fargo’s claim for reformation, then, was filed two years after the limitations

period provided by Section 1-47(2) had expired. See Nationstar Mortgage, ___ N.C.

App. at ___, 820 S.E.2d at 860. As a result, Wells Fargo’s reformation claim is time

barred.

Our dissenting colleague would not consider whether Section 1-47(2) bars

Wells Fargo’s claim because Ms. Stocks, the appellant, did not present this argument

- 12 -
 WELLS FARGO, N.A. V. STOCKS

Opinion of the Court

in her principal brief. The dissent cites well-established authority that it is not the

role of the appellate court to create an argument for the appellant, and that a reply

brief cannot correct deficiencies in the principal brief. Viar v. N.C. Dep’t of Transp.,

359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005); Cox v. Town of Oriental, 234

N.C. App. 675, 678, 759 S.E.2d 388, 390 (2014). But the procedural posture of the

issue before us is different and such that we cannot ignore it. That is because Wells

Fargo’s principal brief asserted that the limitations period provided by Section 1-

47(2)—and not Section 1-52(9)—applies here, contending that question is ripe for

consideration on appeal. The argument raised by Ms. Stocks in reply—that if Wells

Fargo was correct about the applicable statute, it nonetheless barred Wells Fargo’s

claim—was responsive to Wells Fargo’s argument. Rule 28(h) of the North Carolina

Rules of Appellate Procedure provides that a reply brief shall be limited to “a concise

rebuttal of arguments set out in the appellee’s brief and shall not reiterate arguments

set forth in the appellant’s principal brief.” N.C. R. App. P. 28(h) (2019). Ms. Stock’s

reply brief did not violate the rule, and we should not ignore her argument.

The trial court’s entry of summary judgment in favor of Wells Fargo on this

claim is reversed.

E. Judicial Sale

Because the unreformed Deed of Trust fails to secure the Note, Wells Fargo’s

claim for judicial sale cannot stand. See, e.g., United States Bank Nat’l Ass’n v.

- 13 -
 WELLS FARGO, N.A. V. STOCKS

Opinion of the Court

Pinkney, 369 N.C. 723, 727, 800 S.E.2d 412, 416 (2017) (recognizing that a valid claim

for judicial foreclosure requires “a debt, default on the debt, a deed of trust securing

the debt, and the plaintiff’s right to enforce the deed of trust” (citation omitted)).

Entry of summary judgment on this claim in favor of Wells Fargo is similarly

reversed.

III. CONCLUSION

For the foregoing reasons, the trial court’s entry of summary judgment in favor

of Wells Fargo on its claims for reformation and judicial foreclosure is reversed. This

matter is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

Judge BROOK concurs.

Judge ARROWOOD dissents by separate opinion.

- 14 -
 No. COA18-1171 – Wells Fargo Bank, N.A. v. Stocks

ARROWOOD, Judge, dissenting.

I respectfully dissent.

Tia M. Stocks (“defendant-appellant”) argues on appeal that the trial court

erred by granting summary judgment in plaintiff’s favor because she raised a genuine

issue of material fact as to when Wells Fargo Bank, N.A. (“plaintiff”) should have

discovered the mistake in the deed of trust. As a result, she argues, there is a genuine

issue of material fact as to whether the action is time barred under N.C. Gen. Stat. §

1-52(9) (2017). However, the majority concludes it does not need to resolve defendant-

appellant’s argument as raised on appeal because, subsequent to the trial court’s

summary judgment order, this Court decided Nationstar Mortg., LLC v. Dean, __ N.C.

App. __, 820 S.E.2d 854 (2018), wherein our court determined N.C. Gen. Stat. § 1-

52(9) does not apply to a claim to reform a deed of trust based on mistake.

In Nationstar Mortg., LLC, our Court considered whether the three-year

statute of limitations in N.C. Gen. Stat. § 1-52(9) for claims based in “fraud or

mistake” or the ten-year statute of limitations in N.C. Gen. Stat. § 1-47(2) (2017), for

actions “[u]pon a sealed instrument or an instrument of conveyance of an interest in

real property, against the principal thereto[,]” applies to a claim to reform a deed of

trust based on mistake. Nationstar Mortg., LLC, __ N.C. App. at __, 820 S.E.2d at

860. Our Court explained that, although the statute of limitations in both N.C. Gen.

Stat. §§ 1-47(2) and 1-52(9) could apply to the facts before the court, “[w]here one of

two statutes might apply to the same situation, the statute which deals more directly
 WELLS FARGO BANK, N.A. V. STOCKS

ARROWOOD, J., dissenting

and specifically with the situation controls over the statute of more general

applicability.” Id. The Court then determined, without citing any supporting

justification, that “[a]s between N.C. Gen. Stat. §§ 1-47(2) and 1-52(9), the former is

the more specific statute of limitations that applies to” a reformation claim involving

a deed of trust that is “clearly a sealed instrument . . . ‘of conveyance of an interest in

real property[.]’ ” Id.

Applying Nationstar Mortg., LLC’s holding to the case at bar, the majority

concludes that, because N.C. Gen. Stat. § 1-52(9) does not apply to a claim to reform

a deed of trust based on mistake, it will consider defendant-appellant’s arguments in

light of N.C. Gen. Stat. § 1-47(2). I disagree with the majority’s approach. It is well-

established that “[i]t is not the role of the appellate court . . . to create an appeal for

an appellant.” Viar v. N. Carolina Dep’t of Transp., 359 N.C. 400, 402, 610 S.E.2d

360, 361 (2005); see N.C.R. App. Pro. 28(b)(6) (2019) (“Issues not presented in a party’s

brief, or in support of which no reason or argument is stated, will be taken as

abandoned.”). Therefore, because the appellant did not raise the issue analyzed by

the majority—whether there is a genuine issue of material fact as to whether the

action is time barred under N.C. Gen. Stat. § 1-47(2)—we should not address it on

appeal. Furthermore, in her opening brief, defendant-appellant specifically argues

the opposite, maintaining that N.C. Gen. Stat. § 1-47(2) is not the relevant statute of

limitations. Thus, any argument otherwise has been waived.

2
 WELLS FARGO BANK, N.A. V. STOCKS

ARROWOOD, J., dissenting

Additionally, Nationstar Mortg., LLC was published prior to defendant’s filing

of her principal brief, and she even cites to it to define reformation, and to discuss, in

a footnote, whether reformation of a deed of trust is an issue for the court or the jury.

Nevertheless, she does not argue that our Court should consider this case in light of

the ten-year statute of limitations in N.C. Gen. Stat. § 1-47(2), as described by

Nationstar Mortg., LLC. Thus, I contend it is not proper for us to consider the

argument posited by the majority on appeal.

Despite her argument in her opening brief, I do note that defendant’s reply

brief does argue that plaintiff’s claim for reformation is barred under both N.C. Gen.

Stat. §§ 1-47(2) and 1-52(9). Even so, this argument is not properly before our Court

because “[a] reply brief does not serve as a way to correct deficiencies in the principal

brief.” Cox v. Town of Oriental, 234 N.C. App. 675, 679, 759 S.E.2d 388, 390 (2014)

(alteration in original) (citation and quotation marks omitted). Accordingly, I dissent.

Furthermore, I believe it is problematic to determine that claims cannot be

brought under N.C. Gen. Stat. § 1-52(9) in actions arising out of a sealed instrument

or an instrument of conveyance of an interest in real property, against the principal

thereto. Under North Carolina law, a cause of action based on fraud or mistake does

not accrue until the aggrieved party discovers the facts constituting the fraud. N.C.

Gen. Stat. § 1-52(9); Hunter v. Guardian Life Ins. Co. of Am., 162 N.C. App. 477, 485,

593 S.E.2d 595, 601 (2004) (“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

3
 WELLS FARGO BANK, N.A. V. STOCKS

ARROWOOD, J., dissenting

from the discovery of the fraud or from the time it should have been discovered in the

exercise of reasonable diligence.” (citation and quotation marks omitted)). However,

under Nationstar Mortg. LLC, a cause of action based on fraud or mistake cannot be

brought after ten years even if the underlying fraud or mistake would not have been

reasonably discovered during that time.

I do not believe this result was the intent of N.C. Gen. Stat. § 1-47(2), where

both our General Assembly and judiciary have emphasized the importance of

protecting defrauded parties, or those injured by a mistake, by holding that a cause

of action for these injuries does not accrue until the discovery of the fraud or mistake

in the exercise of reasonable diligence. After all, determining “[w]hen plaintiff

should, in the exercise of reasonable care and due diligence, have discovered the fraud

is” not a matter of law, but, rather, “a question of fact to be resolved by the jury.”

Hunter, 162 N.C. App. at 486, 593 S.E.2d at 601 (alteration in original) (citation and

internal quotation marks omitted). Thus, I believe it runs counter to logic and our

case law interpreting N.C. Gen. Stat. § 1-52(9) to bar an action for mistake or fraud

from accruing after ten years pursuant to N.C. Gen. Stat. § 1-47(2) simply because

the document at issue is a sealed instrument or an instrument of conveyance of an

interest in real property.

For the foregoing reasons, I respectfully dissent.

4