JOHN WAYNE SIMMONS and
wife SABLE SIMMONS,
Plaintiffs,
v
.
Cabarrus County
No. 01 CVS 2578
PATRICIA E. KING,
Counselor and Attorney at Law,
and BETTY L. KELLY,
Defendants.
HUDSON, Judge.
Plaintiffs John Wayne Simmons and Sable Simmons brought this
action for negligence, breach of fiduciary duty, and constructive
fraud against defendant Patricia E. King, and breach of contract
against defendant Betty Kelly. Defendant King answered and
counterclaimed, then moved for a continuance, which motion the
court denied. Following a bench trial, the court entered judgment
against defendants and doubled damages against defendant King
pursuant to N.C. Gen. Stat. § 84-13. The court also dismissed
defendant King's counterclaim with prejudice. Defendant King
appeals. As discussed below, we affirm. This case arose from a real estate closing involving
plaintiff's purchase of property and a mobile home from defendant
Kelly. Defendant King, an attorney representing Kelly in the
transaction, failed to place $2,500 into escrow as required,
resulting in plumbing and repair costs to plaintiffs. Contrary to
the terms of the offer to purchase and contract, King allocated
closing costs to plaintiffs, failed to allocate the ad valorum
costs between Kelly and plaintiffs, and overpaid the ad valorum
taxes. King also failed to credit plaintiffs with earnest money
and improperly dispersed funds. Plaintiffs alleged that King's
actions resulted in a poor credit rating and larger loan balance
for plaintiffs.
We begin by noting that defendant's brief violates several of
the Rules of Appellate Procedure. Defendant's brief is single-
spaced without the proper margins or font size, in violation of
Rule 26(g). N.C. R. App. P. 26(g) (2003). In her reply brief,
defendant has corrected these violations, but others remain. In
arguments 1 and 3 of her brief, she fails to cite any authority in
support of her assignments of error. “Assignments of error not set
out in the appellant's brief, or in support of which no reason or
argument is stated or authority cited, will be taken as abandoned.”
N.C. R. App. P. 28(b)(6) (2003). Thus, arguments 1 and 3 and the
related assignments of error are deemed abandoned.
In her second argument, defendant King contends that the court
erred in that conclusion of law 5 is not supported by the findings
of fact. We disagree. Defendant contends that although plaintiffs alleged
constructive fraud, they failed to prove the required elements of
actual fraud and failed to meet the special pleading requirements
of actual fraud. Actual fraud “requires an allegation of facts to
support the five elements of fraud.” Terry v. Terry, 302 N.C. 77,
82-83, 273 S.E.2d 674, 677 (1981). However,
A constructive fraud claim requires even less
particularity because it is based on a
confidential relationship rather than a
specific misrepresentation. The very nature
of constructive fraud defies specific and
concise allegations and the particularity
requirement may be met by alleging facts and
circumstances (1) which created the relation
of trust and confidence, and (2) [which] led
up to and surrounded the consummation of the
transaction in which defendant is alleged to
have taken advantage of his position of trust
to the hurt of plaintiff.
Id. at 85, 273 S.E.2d at 678-79 (internal citation and quotation
marks omitted) (alteration in original). Here, plaintiffs allege
constructive, rather than actual, fraud, contending that defendant
King used her position of trust as their attorney to their
detriment by improperly disbursing funds. Accordingly, the
pleadings were sufficient and this assignment of error is
overruled.
Defendant King next argues that the court erred by doubling
the damages awarded to plaintiffs against her pursuant to N.C. Gen.
Stat. § 84-13 on the basis of fraud as the conclusions and findings
do not support this award. We disagree.
King contends that because the elements of actual fraud were
not proved against her, the court erred in doubling the awardagainst her pursuant to N.C. Gen. Stat. § 84-13. King relies
entirely on her argument in section 2 of her brief to support this
contention. N.C. Gen. Stat. § 84-13 provides that:
If any attorney commits any fraudulent
practice, he shall be liable in an action to
the party injured, and on the verdict passing
against him, judgment shall be given for the
plaintiff to recover double damages.
N.C. Gen. Stat. § 84-13 (2003). This Court has held that the
statute applies in the case of constructive as well as actual
fraud. Estate of Smith ex rel. Smith v. Underwood, 127 N.C. App.
1, 18, 487 S.E.2d 807, 818 (1997), disc. review and motion to
dismiss denied, 347 N.C. 398, 494 S.E.2d 411 (1997). Having
determined that the court did not err in concluding that Defendant
King committed constructive fraud supra, we likewise overrule this
assignment of error.
Affirmed.
Judges TYSON and LEVINSON concur.
Report per Rule 30(e).
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