# Sudds v. Gillian

> Court of Appeals of North Carolina · September 3, 2002 · 152 N.C. App. 659

URL: https://www.frixlaw.com/law-library/cases/8896301

## Case

- **Full name:** ROLAND FORD SUDDS v. PHILLIP RAY GILLIAN, JEROME DOUGLAS EADES, ATLANTIC INDEMNITY COMPANY, and HORACE MANN INSURANCE COMPANY
- **Court:** Court of Appeals of North Carolina
- **Decided:** September 3, 2002
- **Citations:** 152 N.C. App. 659; 568 S.E.2d 214; 2002 N.C. App. LEXIS 962
- **Precedential status:** Published
- **Opinion:** Concurrence by Greene
- **Judges:** Biggs, Greene, Hudson
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8896301

## Opinion text

GREENE, Judge,
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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8896301. Public record. Not legal advice.