Wyman v. Barber

• Court: Court of Appeals of North Carolina
• Decided: August 20, 2025
• Docket: 25-41
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA25-41

Filed 20 August 2025

Moore County, No. 24 CVS 000273

KRISTIN BLACK WYMAN, Individually, JOE WYMAN, DANIEL ROBERT BLACK, Individually, SHERILL BLACK, KRISTIN BLACK WYMAN, Co-executor of the ESTATE of MARY CAMERON BLACK, DANIEL ROBERT BLACK, Co-executor of the ESTATE of MARY CAMERON BLACK, Plaintiffs,

v.

DEREK S. BARBER, Defendant.

Appeal by Defendant from judgment entered 1 October 2024 by Judge Regina

M. Joe in Moore County Superior Court. Heard in the Court of Appeals 21 May 2025.

Clarke Phifer PLLC, by Stanley W. West, for Plaintiffs-Appellees.

Chris Kremer for Defendant-Appellant.

GRIFFIN, Judge.

Defendant Derek S. Barber appeals from the trial court’s order granting

Plaintiffs the Estate of Mary C. Black’s Motion for Summary Judgment. Defendant

contends the trial court erred by: (1) granting Plaintiffs’ Motion because genuine

issues of material fact exist; (2) failing to join a necessary party; and (3) denying

Defendant’s Motion to Continue. We affirm the trial court’s order.

I. Factual and Procedural Background

In 2003, Mary C. Black acquired by deed two parcels of land located on the WYMAN V. BARBER

Opinion of the Court

north and south side of Roseland Road in Aberdeen, North Carolina.1 Black owned

eight acres on the north side and seven acres on the south side. The eight-acre parcel

included a house. Both the eight-acre and seven-acre parcels are associated with the

same parcel identification number, 00046723. In 2009, Black purchased three

additional acres on the south side, immediately adjacent to the seven-acre parcel.2

The parcel identification number for the three-acre parcel is 20090102. After Black

passed away, Plaintiffs acquired ownership of the eight, seven, and three-acre

parcels.

In 2022, Plaintiffs decided to sell the seven-acre and three-acre parcels located

on the south side as one tract of land encompassing ten acres total. Plaintiffs decided

to sell the eight-acre parcel on the north side, including the house, separately. On 6

June 2022, Leasa Haselden, a licensed real estate agent in North Carolina, listed the

ten-acre tract for sale. On 10 July 2022, Haselden listed the house and eight-acre

parcel for sale.

On 9 June 2022, the ten-acre tract went under contract for purchase. While

the ten-acre tract was under contract, Defendant’s fiancé, Jeanna Mathias, contacted

1 Moore County GIS, https://gis.moorecountync.gov/maps/interactive.htm (last visited Aug.

12, 2025); Moore County Property Records Search, https://icare.moorecountync.gov/careprd/Datalets/Datalet.aspx?mode=&UseSearch=no&pin=0004672 3&jur=063&taxyr=2025 (last visited Aug.12, 2025); Moore County Register of Deeds, https://rod.moorecountync.gov/RealEstate/SearchDetail.aspx (last visited Aug. 12, 2025). 2 Moore County Property Records Search,

https://icare.moorecountync.gov/careprd/Datalets/Datalet.aspx?mode=&UseSearch=no&pin=2009010 2&jur=063&taxyr=2025 (last visited Aug. 12, 2025); Moore County Register of Deeds, https://rod.moorecountync.gov/RealEstate/SearchDetail.aspx (last visited Aug. 12, 2025).

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Haselden regarding the house and eight-acre parcel listed for sale. After expressing

interest in the house and eight-acres, Plaintiffs and Defendant authorized Haselden

to act as a dual agent for both parties. Defendant made an offer to purchase the

property for a sum of $305,000.00 and Plaintiffs accepted the offer. On 6 August

2022, Plaintiffs and Defendant executed the offer to purchase and contract

agreement.

In the contract, signed by the parties, the legal description of the property

included the parcel identification number, 00046723. This is the parcel identification

number which includes both the eight-acre and seven-acre parcels. The contract did

not specify that only the eight-acre parcel, including the house, on the north side was

being sold, or that the eight-acre and seven-acre parcels would need to have separate

parcel identification numbers as a result.

When Defendant applied for the loan to purchase the house and eight acres,

the mortgage company, Movement Mortgage, required an appraisal. The mortgage

company only assessed the house and eight-acre parcel on the north side. On 4

September 2022, Defendant received a copy of the appraisal which included the house

and eight-acre parcel.

On 25 August 2022, Plaintiffs and Defendant closed on the property by deed at

the Moore County Register of Deeds. The deed was prepared without a title search

and included the same parcel number as the contract. The legal description of the

property included a non-certified plat map of the eight-acre parcel on the north side

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and the seven-acre parcel on the south side. On 19 October 2022, the deed was

recorded. The deed conveyed both the eight-acre and seven-acre parcels to

Defendant.

Less than a year after closing, Haselden realized the contract and deed

improperly described the property purchased by Defendant and included the parcel

identification number that included both the eight-acre and seven-acre parcels.

When the error was discovered, Haselden had a conversation with Mathias that a

correction deed would need to be signed. Defendant’s closing attorney, Raymond

Gatti, stated in an e-mail to Plaintiffs’ attorney that Defendant was “agreeable to

correcting the situation” and to “please send [the] proposed correction documents[.]”

In June 2023, Defendant became unresponsive to both Haselden and Gatti in

their attempts to have the correction deed signed. As a result, on 22 February 2024,

Plaintiffs filed a complaint requesting the court order reformation of the contract and

property deed. On 31 May 2024, Defendant filed an answer to Plaintiffs’ complaint.

On 28 August 2024, Plaintiffs filed a Motion for Summary Judgment asserting

there were no genuine issues of material fact as to Plaintiffs’ claim for reformation of

contract and deed. Plaintiffs asserted both parties understood the sale was only

intended to include the house and eight-acre parcel on the north side of Roseland

Road and no property on the south side. Plaintiffs requested the contract and deed

be reformed due to mutual mistake of fact. Plaintiffs Motion included affidavits from

Haselden, the Parties’ real estate agent; Michael Chad Smith, a Senior Loan Officer

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with Movement Mortgage; and Stanley W. West, Plaintiffs’ trial counsel. On 20

September 2024, at 4:56 PM and 4:57 PM, Defendant filed two affidavits from

Mathias in opposition to Plaintiffs’ Motion. That same day, Plaintiffs were served

with Defendant’s affidavits after close of business. This was the last business day

before the hearing on Plaintiffs’ Motion.

On 23 September 2024, Plaintiffs’ Motion came for hearing in Moore County

Superior Court. Prior to the hearing, Defendant moved to continue, and the trial

court denied Defendant’s Motion. On 1 October 2024, the trial court entered an order

granting Plaintiffs’ Motion. In the summary judgment order, the court stated

Defendant’s affidavits “were not timely filed or served and were therefore excluded

from consideration.” Defendant timely appeals from the trial court’s order.

II. Analysis

Defendant contends the trial court erred by: (1) granting Plaintiffs’ Motion

because genuine issues of material fact exist; (2) failing to join a necessary party; and

(3) denying Defendant’s Motion to Continue. We affirm the trial court’s order.

A. Summary Judgment

Defendant argues genuine issues of material fact exist regarding Plaintiffs’

claim of mutual mistake. We disagree.

We review a trial court’s ruling on a summary judgment motion de novo.

General Fidelity Ins. Co. v. WFT, Inc., 269 N.C. App. 181, 185, 837 S.E.2d 551, 556

(2020). Summary judgment is appropriate when “the pleadings, depositions, answers

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to interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact.” N.C. R. Civ. P. 56(c) (2023).

“A party moving for summary judgment may prevail if it meets the burden (1) of

proving an essential element of the opposing party’s claim is nonexistent, or (2) of

showing through discovery that the opposing party cannot produce evidence to

support an essential element of his or her claim.” Lowe v. Bradford, 305 N.C. 366,

369, 289 S.E.2d 363, 366 (1982). “Generally, this means that on undisputed aspects

of the opposing evidential forecast, where there is no genuine issue of fact,

the moving party is entitled to judgment as a matter of law.” Id. (citation modified).

“Both before the trial court and on appeal, the evidence must be viewed in the

light most favorable to the non-moving party and all inferences from that evidence

must be drawn against the moving party and in favor of the non-moving party.” White

v. Consol. Plan., Inc., 166 N.C. App. 283, 296, 603 S.E.2d 147, 157 (2004). A trial

court’s decision should be affirmed on appeal “if there is any ground to support the

decision.” Nifong v. C.C. Mangum, Inc., 121 N.C. App. 767, 768, 468 S.E.2d 463, 465

(1996).

Here, Plaintiffs asserted a reformation claim on grounds of mutual mistake

and later moved for summary judgment regarding the same. “Reformation is a well-

established equitable remedy used to reframe written instruments where, through

mutual mistake or the unilateral mistake of one party induced by fraud of the other,

the written instrument fails to embody the parties’ actual, original agreement.”

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Metropolitan Prop. & Cas. Ins. Co. v. Dillard, 126 N.C. App. 795, 798, 487 S.E.2d 157,

159 (1997) (citation and internal marks omitted). “Where a legal instrument does not

express the true intentions of the parties due to mutual mistake or the mistake of the

draftsman, reformation is available.” Wells Fargo Bank, N.A. v. Coleman, 239 N.C.

App. 239, 248, 768 S.E.2d 604, 611 (2015).

“A mutual mistake is one that is shared by both parties to the contract, wherein

each labors under the same misconception respecting a material fact, the terms of the

agreement, or the provisions of the written instrument designed to embody such

agreement.” Id. at 248–49, 768 S.E.2d at 611 (citation and internal marks omitted).

“A party seeking reformation on the ground of mutual mistake must prove the parties

agreed upon a material stipulation to be included in the written instrument, the

stipulation was omitted by the parties’ mistake, and because of the mistake, the

written instrument does not express the parties’ intention.” Id. at 249, 768 S.E.2d at

611 (citation modified). The moving party “must prove the existence of the mutual

mistake by ‘clear, cogent and convincing evidence.’” Id. (quoting Hice v. Hi-Mil,

Inc., 301 N.C. 647, 651, 273 S.E.2d 268, 270 (1981)).

Here, the evidence viewed in the light most favorable to Defendant shows

existence of mutual mistake in the contract and deed. The mistake occurred when

the legal description of the property in the contract only included the parcel

identification number associated with the eight-acre and seven-acre parcels of land

without any additional information. The contract failed to specify that only the house

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and eight-acre parcel on the north side were being sold. Based on the inaccurate

information provided in the contract, the deed was prepared and recorded.

The record evidence viewed in the light most favorable to Defendant shows

Plaintiffs did not intend to convey any land on the south side to Defendant, and

Defendant understood he was only purchasing the house and eight-acre parcel on the

north side. Plaintiffs listed the ten-acre tract and the eight-acre parcel—including

the house—separately, and the properties had separate listing sheets. Defendant’s

fiancé, Mathias, contacted Haselden specifically about the house and eight-acres, and

Haselden informed Defendant and Mathias at the showing that the ten-acre tract on

the south side was under contract. Defendant offered to purchase the property for

$305,000.00, and the house and eight-acre parcel was the only property appraised by

the mortgage company. Moreover, the house and eight-acre parcel appraised for

$307,000.00, an amount within close range of Defendant’s offer.

Additionally, when the mistake of the property conveyance was discovered,

Defendant’s closing attorney stated in an email Defendant was “agreeable to

correcting the situation.” Thus, through Defendant’s own admission, by and through

his legal counsel, Defendant was aware of and acknowledged the mistake. See

Dunkley v. Shoemate, 350 N.C. 573, 577, 515 S.E.2d 442, 444 (1999) (“North Carolina

law has long recognized that an attorney-client relationship is based upon principles

of agency, and two factors are essential in establishing an agency relationship: (1)

The agent must be authorized to act for the principal; and (2) The principal must

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exercise control over the agent.” (citation and internal marks omitted)). Here, the

evidence supports Defendant and his closing attorney were in an attorney-client

relationship and Defendant’s closing attorney was acting as Defendant’s agent when

he sent the email.

Despite Defendant’s contention that “there is nothing in the record from

[Defendant] supporting an inference that there was a post-closing attorney-client

relationship[,]” “the relation of attorney and client may be implied from the conduct

of the parties, and is not dependent on the payment of a fee, nor upon the execution

of a formal contract.” North Carolina State Bar v. Sheffield, 73 N.C. App. 349, 358,

326 S.E.2d 320, 325 (1985).

Although we recognize an attorney-client relationship generally terminates

once a case has been resolved,3 and for a closing-attorney that would typically mean

at closing, the record reflects Defendant and his attorney were still in communication

about an error that occurred at closing. Additionally, by the plain language of the

email, Defendant authorized his closing attorney to convey the message that he was

“agreeable to correcting the situation.” Moreover, if Defendant wanted to dispute the

validity of his attorney’s statement, Defendant could have produced evidence to the

contrary. Instead, Defendant only challenged the duration of the attorney-client

3 “Ordinarily, a representation in a matter is completed when the agreed-upon assistance has

been concluded.” N.C. RULES OF PROF’L CONDUCT r.1.16 cmt. 1 (N.C. State Bar 2025); “If a lawyer’s employment is limited to a specific matter, the relationship terminates when the matter has been resolved.” N.C. RULES OF PROF’L CONDUCT r.1.3 cmt. 4 (N.C. State Bar 2025).

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relationship. We hold their attorney-client relationship was still intact at the time

the email was sent.

Defendant also contends that if there was any mistake at all, Plaintiffs made

the mistake. Specifically, Defendant argues Plaintiffs were the ones who included a

single-parcel identification number which encompassed both the eight-acre and

seven-acre parcels of land in the contract and deed. The deed also included a plat

map of the eight acres on the north side and seven acres on the south side.

Despite Defendant’s contention, this Court has held “[n]egligence on the part

of one party which induces the mistake does not preclude a finding of mutual

mistake.” Dillard, 126 N.C. App. at 798–99, 487 S.E.2d at 159 (holding mutual

mistake where the defendant mistakenly listed the incorrect street number on his

insurance policy, but the evidence showed “both parties believed they were

contracting to insure a house owned by [the] defendant and [the] defendant did not

own the 4321 Sudbury Road residence”); Wells Fargo Bank, 239 N.C. App. at 240–41,

768 S.E.2d at 606 (ordering reformation due to mutual mistake where the deed of

trust prepared by Wachovia Bank (now Wells Fargo Bank, N.A.) listed the correct

street address for the defendants’ home, “but mistakenly referenced the book and

page number and tax parcel ID of the adjacent, undeveloped lots”).

In Wells Fargo, this Court relied on our holding in Dillard and held a party

seeking reformation “need not allege or prove that the mutual mistake was a

reasonable or neglect-free mistake.” Id. at 249, 768 S.E.2d at 611. Moreover, “[e]ven

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if the mistake resulted from that party’s failure to exercise reasonable diligence,

reformation is available if there is clear, cogent, and convincing evidence that the

mistake was a mutual one and that it prevents the instrument from embodying the

parties’ actual, original agreement.” Id. (citing Dillard, 126 N.C. App. at 798–99, 487

S.E.2d at 159). There, we held the evidence was sufficient to support a finding of

mutual mistake because “Wells Fargo presented uncontested evidence that the deed

of trust include[d] the correct property address of the developed property”; “[t]he

appraisal conducted during the loan origination process was performed on the

developed property”; the defendants “applied the vast majority of the loan to pay off

their existing mortgage on that developed property”; and the defendants “did not

forecast any evidence at trial tending to show that the deed of trust was intended to

reference the undeveloped, empty lots.” Id. at 249–50, 768 S.E.2d at 611–12.

Here, like in Dillard and Wells Fargo, for the reasons stated above, Plaintiffs

presented sufficient evidence to support mutual mistake despite any drafting error

on behalf of Plaintiffs. Moreover, Defendant did not present any evidence tending to

show he understood he was acquiring both the eight acres on the north side, and the

seven acres on the south side.

Thus, considering all the evidence presented in the light most favorable to

Defendant, we hold Plaintiffs presented “clear, cogent and convincing evidence” to

support the existence of mutual mistake. See Hice, 301 N.C. at 651, 273 S.E.2d at

270.

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B. Joinder

Next, Defendant contends the trial court reversibly erred by granting

Plaintiffs’ Motion because a necessary party was not joined. Specifically, Defendant

argues Defendant’s lender, Movement Mortgage, LLC., has a vested interest in

securing its substantial purchase money mortgage and the legal description in its

deed of trust is the same as that in Defendant’s deed.

Despite Defendant’s argument, Defendant did not raise the issue of necessary

joinder at trial.

This Court has long recognized “where a theory argued on appeal is not raised

before the trial court, the argument is deemed waived on appeal.” Welch v. Welch,

288 N.C. App. 627, 629–30, 886 S.E.2d 921, 922–23 (2023) (citation and internal

marks omitted). See Bennett v. Hospice & Palliative Care Ctr. of Alamance Caswell,

246 N.C. App. 191, 195 n.1, 783 S.E.2d 260, 263 n.1 (2016) (“[I]ssues or theories of a

case not raised at the trial level will not be entertained for the first time on appeal.”).

Rule 12(h)(2) of the North Carolina Rules of Civil Procedure provides that “a

defense of failure to join a necessary party . . . may be made in any pleading permitted

or ordered under Rule 7(a), or by motion for judgment on the pleadings, or at the trial

on the merits.” M.E. v. T.J., 380 N.C. 539, 563, 869 S.E.2d 624, 639 (2022); N.C. R.

Civ. P. 12(h)(2) (2023). While the defense of lack of subject-matter jurisdiction may

be raised at any time and for the first time on appeal, “‘failure to join a necessary

party does not result in a lack of jurisdiction over the subject matter of the

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proceeding.’” Id. (quoting Stancil v. Bruce Stancil Refrigeration, Inc., 81 N.C. App.

567, 574, 344 S.E.2d 789, 793 (1986) (citation omitted)). Accordingly, “‘the defense of

failure to join a necessary party must be raised before the trial court and may not be

raised for the first time on appeal.’” Id. (quoting Phillips v. Orange Cnty. Health

Dept., 237 N.C. App. 249, 255, 765 S.E.2d 811, 816 (2014)).

Thus, because Defendant failed to raise the issue of necessary joinder at trial,

it is waived and cannot be raised and addressed for the first time on appeal.

C. Motion to Continue

Defendant contends the trial court abused its discretion by denying

Defendant’s Motion to Continue and excluding Defendant’s affidavits submitted 20

September 2024.

Our review of the denial of a motion to continue “is generally whether the trial

court abused its discretion.” Morin v. Sharp, 144 N.C. App. 369, 373, 549 S.E.2d 871,

873 (2001) (citation omitted). “A trial court abuses its discretion when its ruling is

manifestly unsupported by reason or is so arbitrary that it could not have been the

result of a reasoned decision.” In re Custodial Law Enf’t Recording Sought by

Greensboro, 383 N.C. 261, 268, 881 S.E.2d 96, 101 (2022) (citation and internal marks

omitted). Moreover, “a denial of a motion to continue is only grounds for a new trial

when [the] defendant shows both that the denial was erroneous, and that he suffered

prejudice as a result of the error.” In re L.A.J., 381 N.C. 147, 149, 871 S.E.2d 697,

699 (2022).

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Here, Defendant filed and served two affidavits in opposition to Plaintiffs’

Motion at 4:56 PM and 4:57 PM the Friday before the hearing. Three days later, on

the morning of the hearing, Defendant moved to continue, and the trial court denied

Defendant’s Motion. Defendant argues his Motion should have been granted

pursuant to Rule 56(f) of the North Carolina Rules of Civil Procedure. We disagree.

Rule 56(f) provides the following:

Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

N.C. R. Civ. P. 56(f) (2023).

The rule “permits the opposing party to move for additional time to obtain

affidavits or complete discovery essential to justify his opposition.” Am. Travel Corp.

v. Cent. Carolina Bank & Tr. Co., 57 N.C. App. 437, 441, 291 S.E.2d 892, 895 (1982).

“Ordinarily it is error for a court to hear and rule on a motion for summary judgment

when discovery procedures, which might lead to the production of evidence relevant

to the motion, are still pending and the party seeking discovery has not been dilatory

in doing so.” Conover v. Newton, 297 N.C. 506, 512, 256 S.E.2d 216, 220 (1979).

Here, the record supports a finding that Defendant was not seeking discovery

and had not sought discovery of any information in the months prior to the hearing.

Plaintiffs filed their complaint on 22 February 2024 and moved for summary

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judgment on 28 August 2024. Plaintiffs’ Motion came on for hearing 23 September

2024. Thus, Defendant had seven months to seek discovery and produce evidence in

opposition to Plaintiffs’ complaint and Motion and failed to do so. Instead, Defendant

waited until the Friday before the summary judgment hearing on Monday to file

affidavits in opposition to Plaintiffs’ Motion. Additionally, Defendant untimely

served his affidavits.

Rule 6(d) of the North Carolina Rules of Civil Procedure provides the following:

[O]pposing affidavits shall be served at least two days before the hearing. If the opposing affidavit is not served on the other parties at least two days before the hearing on the motion, the court may continue the matter for a reasonable period to allow the responding party to prepare a response, proceed with the matter without considering the untimely served affidavit, or take such other action as the ends of justice require.

N.C. R. Civ. P. 6(d) (2023).

Under Rule 6, Saturdays and Sundays are excluded in the time computation

of service of papers. N.C. R. Civ. P. 6(a) (2023). In other words, opposing affidavits

need to be served at least two business days prior to the hearing. Id. Defendant

served his opposing affidavits on Friday, and the summary judgment hearing was

scheduled for Monday. Thus, Defendant failed to timely serve his affidavits.

While it is true Rule 6(d) gives the trial court discretion to allow the late filing

of affidavits, this Court has held “absent a showing of excusable neglect, the trial

court does not abuse its discretion when it refuses to accept late affidavits.”

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Rockingham Square Shopping Ctr., Inc. v. Integon Life Ins. Corp., 52 N.C. App. 633,

641, 279 S.E.2d 918, 924 (1981) (holding the trial court did not err by excluding the

plaintiffs’ untimely affidavits because the plaintiffs “had notice of the summary

judgment hearing nearly four months in advance” and “offered no explanation for

their delay in presenting opposing affidavits”).

Here, Defendant had several months to seek discovery and produce

information in opposition to Plaintiffs’ complaint and Motion and failed to timely do

so. Additionally, Defendant offered no explanation for his delay in filing and

presenting the opposing affidavits.

As a result, we hold the trial court did not err by denying Defendant’s Motion

to Continue and excluding Defendant’s affidavits.

III. Conclusion

We hold the trial court properly granted Plaintiffs’ Motion for Summary

Judgment; did not err by failing to join a necessary party; and properly denied

Defendant’s Motion to Continue.

AFFIRMED.

Judges TYSON and COLLINS concur.

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