Heard in the Court of Appeals August 28, 2014.
Granville County. No. 12 CVD 744.
Dunlow & Wilkinson, P.A., by John M. Dunlow, for plaintiff-appellant.
Tharrington Smith, LLP, by Jill Schnabel Jackson, for defendant-appellee.
STEELMAN, Judge. Judges GEER and HUNTER, Robert N., Jr. concur. Robert N. Hunter, Jr. concurred on this opinion prior to 6 September 2014.
Appeal by plaintiff from order entered 24 September
2013 by Judge Daniel F. Finch in Granville County Superior Court.
Where claims arose in tort, the trial court did not err in applying a three-year statute of limitations to claims for fraud, duress, and undue influence. Where plaintiff's claim for breach of contract arose pursuant to a contract under seal, the trial court erred in applying a three-year statute of limitations.
I. Factual and Procedural Background
Felicia Renee Crogan (plaintiff) and Jon Brent Crogan (defendant) were married on 23 March 1985. There were three children born to the marriage.
Plaintiff and defendant separated on 1 October 2004. Defendant's attorney prepared a Separation Agreement which was executed by the parties under seal and notarized on 16 November 2004. Paragraph 27 of the Separation Agreement dealt with the effect of a reconciliation of the parties upon their property settlement:
In the event of a reconciliation and resumption of the marital relationship
between the parties, the provisions hereof regarding settlement and
disposition of property rights and other rights shall nevertheless continue in
full force and effect without the abatement of any term or provision hereof,
except as otherwise specifically provided herein or as later agreed in
writing, by and between the parties. Except as otherwise provided by this
Agreement or by an agreement or modification to this Agreement, performed in
writing and notarized and executed by each of the parties after the date of
this Agreement or the date of their reconciliation, no act on the part of
either party shall serve to modify the property rights of the parties as
established herein in this Agreement and the rights of the parties to the
property which is transferred, set over and designated as property of either
party shall remain separate property upon a reconciliation of the parties.
On 1 October 2005, the parties reconciled and resumed their marital relationship. The parties moved to West Virginia, but separated again on 13 March 2011. The parties subsequently engaged in litigation in the Family Court of Preston County, West Virginia. This litigation involved, among other things, the distribution of the parties' marital property. That court directed the parties to have the courts of this State determine the validity of the Separation Agreement.
On 17 August 2012, plaintiff filed a verified complaint, seeking a declaratory judgment as to the status of the Separation Agreement. The complaint also sought to void the Separation Agreement based upon the alleged fraud, duress, and undue influence of the defendant. Plaintiff also asserted breach of contract, alleging that ...