NC0000272_Notice of Judgement_20220401

Type: CONSOLIDATED REAL PROPERTY
Recorded: 1/28/2021 4:50:38 PM
Fee Amt: $26.00 Page 1 of 4
Buncombe County, NC
Drew Reisinger Register of Deeds
B K 6012 PG 1900 - 1903
NOTICE OF JUDGMENT
AFFECTING PROPERTY RIGHTS
PLAINTIFF: Duke Energy Progress, LLC
DEFENDANTS: Arthur L. Kelly and Barbara Kelly Hull
Successor Trustees of the Mildred Wetten
Kelly McDermott Living Trust u/a
dated April 23, 1987
ENTERED BY:
RETURN TO:
4821-0058-1338, v. 1
The Honorable Marvin P. Pope, Jr.
Superior Court Judge Presiding
Buncombe County, North Carolina
Matthew S. Roberson,
Return Envelope provided.
Or
Box No. 31
submitted electronically by "McGuire, wood & Bissette"
in compliance with North Carolina statutes governing recordable documents
and the terms of the submitter agreement with the Buncombe county Register of Deeds.
Book: 6012 Page: 1900 Page 1 of 4

STATE OF NORTH CAROLINA
COUNTY OF BUNCOMBE
DUKE ENERGY PROGRESS, LLC
vs.
L321
1)
Plaintiff,
ARTHUR L. KELLY and BARBARA
KELLY HULL, Successor Trustees of the
Mildred Wetten Kelly McDermott Living
Trust under Agreement dated April 23, 1987
Defendant.
0
Jai' 25 P
IN THE GENERAL COURT OF JUSTICE
2= t-'-q SUPERIOR COURT DIVISION
File No. 19 CvS 4942
Cr .. C.S.C.
ORDER GRANTING SUMMARY
JUDGMENT
THIS MATTER coming on before the undersigned Superior Court Judge Presiding over
the November 9, 2020 Civil Session of Superior Court for Buncombe County, North Carolina on
Plaintiff's Motion for Default Judgment, or in the alternative, Motion for Summary Judgment.
Plaintiff was represented by Matthew S. Roberson. Defendant did not appear.
The motion seeks the following relief: 1) a reformation of a deed to reflect a fee simple
conveyance of the entirety of the property described in the Complaint subject to the North
Carolina Department of Transportation's right of way for Interstate 26; 2) that the deed as
reformed, have priority over all other conveyances and other interests in the property granted or
recorded after the date of the deed; and 3) that title to the property described in the Complaint be
quieted in favor of Plaintiff as to claims of the Defendant or anyone claiming through the
Defendant.
Having reviewed the grounds set forth in the motion, the allegations set forth in the
Complaint and exhibits attached thereto, and the Declaration of Douglas O. Thigpen and
attachments thereto, it appears to the Court that no genuine of issue of material fact exists in this
matter and that Plaintiff is entitled to judgment as a matter of law and the relief Plaintiff seeks in
the Complaint and motion. In granting judgment as a matter of law and the relief sought by
Plaintiff, the Court identifies the following uncontroverted facts:
1. Plaintiff was formally known as Carolina Power & Light Company, d/b/a
Progress Energy Carolinas, Inc.
2. In September 2003, a deed was prepared between Arthur L. Kelly and Barbara
Kelly Hull, Successor Trustees of the Mildred Wetten McDermott Living Trust under agreement
Book: 6012 Page: 1900 Page 2 of 4

dated April 23, 1987, as grantors, and Progress Energy Carolinas, Inc., as grantee, for certain real
property consisting of approximately 13.20 acres in and around Rockwood Road and bearing
PIN 9644.14-34-0941 (now 9644-24-6817). The property is described in Deed Book 2030, Page
351 in the Office of the Register of Deeds for Buncombe County, North Carolina.
3. The deed was prepared pursuant to an option contract by and between the
Defendant and Progress Energy Carolinas, Inc., for the sale and purchase of the entirety of the
property and another smaller tract of land.
4. Based upon the option contract, it was the intent of the Defendant and Progress
Energy Carolinas, Inc. that the Defendant would convey, and Progress Energy Carolinas, Inc.
would receive, the property in its entirety, in fee simple, subject to the North Carolina
Department of Transportation's right of way for Interstate 26, without any reserved interests
being retained by the Defendant.
5. The deed prepared for the conveyance of the property that was subsequently
executed by the Defendant and recorded in Deed Book 3385, Page 361 in the Office of the
Register of Deeds for Buncombe County, North Carolina contained a drafting error indicating,
contrary to the intent of the Defendant and Progress Energy Carolinas, Inc., that the Defendant
retained a reserved interest in that area of the property within the North Carolina Department of
Transportation's right of way for Interstate 26.
6. The drafting error was a mutual mistake on the part of the Defendant and Progress
Energy Carolinas, Inc. But for the mutual mistake of the parties, Plaintiff would be the fee
simple owner of the property, subject to easements, restrictions and rights of way of record,
including the North Carolina Department of Transportation's right of way for Interstate 26.
7. There are no bona fide purchasers or other parties occupying similar status that
would be harmed by the reformation of the deed, the declaratory relief sought by Plaintiff and an
order quieting title.
IT IS, THEREFORE, ORDERED, ADJUDGED and DECREED as follows:
1. That the deed recorded in Deed Book 3385, Page 361 in the Office of the Register
of Deeds for Buncombe County, North Carolina is hereby reformed by striking the paragraph
identified as FIRST TRACT in its entirety, and replaced with the following paragraph:
FIRST TRACT: BEING that tract containing 13.20 acres, subject to the North
Carolina Department of Transportation's right of way described in Deed Book 881,
Page 236 in the Office of the Register of Deeds for Buncombe County, North
Carolina, described in a deed from Mildred Wetten Kelly McDermott, formerly
Mildred W. Kelly, to Arthur L. Kelly and Barbara Kelly Hull, Trustees of the
Mildred Wetten Kelly McDermott Living Trust dated April 23, 1987, which deed is
dated March 8, 1998 and recorded in Book 2030, page 351 of the Buncombe
County Registry, reference to which is hereby made.
Book: 6012 Page: 1900 Page 3 of 4

2. That pursuant to N.C. Gen Stat. § 1-253 et. seq., it is declared that the deed
recorded in Deed Book 3385, Page 361, as reformed, has priority over all other interests in the
described property conveyed and/or recorded after the date of the deed was first recorded;
4. Title in the described property is quieted in favor of Plaintiff against the
Defendant or anyone claiming through Defendant;
5. A copy of this Order Granting Summary Judgment shall be recorded in the Office
of the Register of Deeds for Buncombe County, North Carolina and indexed and cross-indexed
with each party indexed as Grantor and Grantee; and
6. The costs of this action are taxed to the Defendant.
This the 19"' day of January, 2021.
4850-4296-0086, v. 1
Honorable Marvin 1 Pope, Jr.
Superior Court Judge Presiding
Buncombe County, North Carolina
Book: 6012 Page: 1900 Page 4 of 4