concurring in the result.
While I agree with the majority that no genuine issue of fact exists with regard to the execution of the release under circumstances amounting to mutual mistake, I write separately to clarify when a release may be avoided.
A release can be avoided upon a “showing that its execution resulted from . . . mutual mistake of fact.” Cunningham v. Brown, 51 N.C. App. 264, 269, 276 S.E.2d 718, 723 (1981). A mistake of fact occurs, affording reformation, if a release fails “to accomplish the result intended by both parties.” Id. at 273-74, 276 S.E.2d at 726. Thus, if there is evidence permitting a finding that the parties to a release intended to release only certain parties, but the release actually contains “language contrary to this mutual agreement and intention in that by its terms it release[s] other[s]” as well, a genuine issue of fact is raised precluding entry of summary judgment. Id. at 273, 276 S.E.2d at 726.
In this case, viewing the evidence in the light most favorable to plaintiff, no genuine issue of fact exists as to whether the release was executed under circumstances amounting to a mutual mistake of fact. Indeed, the evidence shows the release was executed pursuant to plaintiffs unilateral mistake of fact.