“A defendant acts with malice when he wantonly does that which a man of reasonable intelligence would know to be contrary to his duty and which he intends to be prejudicial or injurious to another.” Mitchell v. Pruden, 251 N.C. App. 554, 559, 796 S.E.2d 77, 82 (2017) (citation omitted).
MOTION FOR JUDGMENT ON THE PLEADINGS
In prepending a Rule 12(c) motion for judgment on the pleadings, a trial court “is to consider only the pleadings and any attached exhibits, which become part of the pleadings. No evidence is to be heard, and the trial judge is not to consider statements of fact in the briefs of the parties or the testimony of allegations by the parties in different proceedings.” Minor v. Minor, 70 N.C. App. 76, 78, 318 S.E.2d 865, 867 (citations omitted), disc. review denied, 312 N.C. 495, 322 S.E.2d 558(1984)
MOTION FOR SUMMARY JUDGMENT
Summary judgment is appropriate only when the there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law. When considering a motion for summary judgment, the trial judge must view the presented evidence in a light most favorable to the nonmoving party. If the movant demonstrates the absence of a genuine issue of material fact, the burden shifts to the nonmovant to present specific facts which establish the presence of a genuine factual dispute for trial. In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008
When evaluating a motion for summary judgment the court may receive and consider various kinds of evidence.” Kessing v. Nat’l Mortg. Corp., 278 N.C. 523, 533, 180 S.E.2d 823, 829 (1971) (citations omitted); see also N.C. Gen. Stat. § 1A-1, Rule 56(c)(2019). “Evidence which may be considered under Rule 56 includes . . . affidavits, and any other material which would be admissible in evidence or of which judicial notice may properly be taken. Oral testimony may also be received by reason of Rule 43(e).” Kessing, 278 N.C. at 533, 180 S.E.2d at 829 (citations omitted).
Rule 56 of the N.C. Rules of Civil Procedure delineates the procedure for filing for summary judgment.
MOTION TO DISMISS
A “mutual mistake” is a “mistake common to all the parties to a written instrument,” which “usually relates to a mistake concerning its contents or its legal effect.” Best v. Ford Motor Co., 148 N.C. App. 42, 46-47, 557 S.E.2d 163, 166 (2001), aff’d per curiam, 355 N.C. 486, 562 S.E.2d 419 (2002). “The evidence presented to prove mutual mistake must be clear, cogent and convincing, and the question of reformation on that basis is a matter to be determined by the fact finder.” Smith v. First Choice Servs., 158 N.C.App. 244, 250, 580 S.E.2d 743, 748 (2003).