An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA05-221


Filed: 03 January 2006

Individually, and as Sole
Beneficiary of the Estate of

v .                         Durham County
                            No. 04 CVS 05491

    Appeal by plaintiff from order granting defendants' motion to dismiss entered 10 January 2005 by Judge Orlando Hudson in Durham County Superior Court. Heard in the Court of Appeals 21 September 2005.

    Couch & Taibi, by Anthony D. Taibi, for plaintiff-appellant.

    Clayton, Myrick, McClanahan & Coulter, PLLC, by Luke E. Howard, for defendant-appellees.

    STEELMAN, Judge.

    Burma G. Roberson died 21 June 2002, leaving her entire estate to plaintiff, her niece, who had lived with her for over twenty years. Included in Roberson's estate was the home in which both she and plaintiff had resided, located in Durham. After taking title to the house, plaintiff began having difficulties with her finances. Aware of plaintiff's difficulties, Gary E. Ferrell (defendant), plaintiff's nephew, approached plaintiff with a proposal.    Plaintiff's complaint contains allegations concerning a series of transactions that occurred between the plaintiff and defendant. Plaintiff's complaint alleges the following: Defendant approached plaintiff and offered to assist her in meeting her obligations with the understanding that plaintiff would transfer title to her house to him upon her death. Defendant further agreed to manage her finances, handle necessary paperwork, and generally protect her financial interests, because plaintiff is elderly and unsophisticated in matters of this kind. Defendant agreed to act for her in a fiduciary capacity. Defendant suggested that plaintiff transfer title of the house to him and his wife (defendant Theresa Lee Ferrell (wife)) immediately (in October of 2004), and retain for herself a life estate interest. Plaintiff placed her trust in defendant to draft and prepare the necessary documents. Following assurances from defendant that all the documents were proper and that her life estate was preserved, plaintiff executed the documents, which included a deed conveying plaintiff's home to defendant and his wife in fee simple, and a separate document purporting to create a life estate interest in plaintiff's favor. These documents were signed without witnesses and were not dated or notarized. Defendant subsequently obtained notarization of the signed deed by having a notary (defendant Marilyn Koscica) notarize the document after it had been executed and outside the presence of plaintiff. In May of 2004, defendant approached plaintiff and told her that he had lost his copy of the document establishing her life estate, and requested that he borrowplaintiff's copy of the document, promising to return it. Plaintiff agreed, and has never seen that document again despite repeated requests for its return. Once defendant obtained the document purporting to have created the life estate, defendant demanded plaintiff vacate the premises. When she refused, defendant began harassing and threatening her. He also demanded that she sign various documents, the contents of which she did not understand.
    Plaintiff initiated this action to, inter alia, have the property returned to her sole ownership, alleging that title was obtained by defendant through fraud; recover compensatory and punitive damages; and enjoin defendants from harassing her or interfering with her enjoyment of the home. Plaintiff's complaint included multiple claims, only one of which, constructive fraud, is relevant to this appeal. The trial court granted defendants' motions to dismiss all of plaintiff's claims. From the order granting defendants' motions to dismiss, plaintiff appeals.
    In plaintiff's first argument, she contends that the trial court erred in granting defendants' motions to dismiss based on failure to state a claim for which relief may be granted. We agree in part.
    We first note that on appeal plaintiff only contests the trial court's grant of defendants' 12(b)(6) motion with respect to her claim of constructive fraud involving defendant. Having failed to contest the dismissal of her other claims on appeal, she has abandoned them. Strader v. Sunstates Corp., 129 N.C. App. 562, 567-68, 500 S.E.2d 752, 755 (1998). Therefore, the trial court's dismissal of plaintiff's claims against defendants Marilyn Koscica and Theresa Lee Ferrell are undisturbed by our decision in this case.
        We review de novo the grant of a motion to dismiss. A motion to dismiss made pursuant to . . . Rule 12(b)(6) tests the legal sufficiency of the complaint. “The system of notice pleading affords a sufficiently liberal construction of complaints so that few fail to survive a motion to dismiss.” Accordingly, when entertaining “a motion to dismiss, the trial court must take the complaint's allegations as true and determine whether they are sufficient to state a claim upon which relief may be granted under some legal theory.” “This rule . . . generally precludes dismissal except in those instances where the face of the complaint discloses some insurmountable bar to recovery.”

Lea v. Grier, 156 N.C. App. 503, 507, 577 S.E.2d 411, 414-15 (2003) (citations omitted).
     “The particularity required [for pleading a claim of fraud] generally encompasses the time, place and contents of the fraudulent representation, the identity of the person making the representation and what was obtained by the fraudulent acts or representations.” Terry v. Terry, 302 N.C. 77, 85, 273 S.E.2d 674, 678 (1981).
         “A claim of constructive fraud does not require the same rigorous adherence to elements as actual fraud.” “Constructive fraud differs from actual fraud in that 'it is based on a confidential relationship rather than a specific misrepresentation.'” “A constructive fraud complaint must allege facts and circumstances '(1) which created the relation of trust and confidence, and (2) led up to and surrounded the consummation of the transaction in which defendant is alleged tohave taken advantage of his position of trust to the hurt of plaintiff.'” “Further, an essential element of constructive fraud is that 'defendants sought to benefit themselves' in the transaction.” “Put simply, a plaintiff must show (1) the existence of a fiduciary duty, and (2) a breach of that duty.”

Hunter v. Guardian Life Ins. Co. of Am., 162 N.C. App. 477, 482, 593 S.E.2d 595, 599 (2004), rev. denied, 358 N.C. 543, 599 S.E.2d 49 (citations omitted). “A course of dealing between persons so situated is watched with extreme jealousy and solicitude; and if there is found the slightest trace of undue influence or unfair advantage, redress will be given to the injured party.” Rhodes v. Jones, 232 N.C. 547, 548, 61 S.E.2d 725, 726 (1950). “Jurors -- no less than courts -- 'will guard with jealous care the rights of the aged and infirm who have conveyed their land in the belief that they were making provision for support and maintenance in their declining years.'” Mills v. Dunk, 263 N.C. 742, 747, 140 S.E.2d 358, 362 (1965).
    Plaintiff's complaint, the allegations of which we must consider to be true for purposes of the motion to dismiss, sets forth alleged facts and circumstances surrounding the establishment of a relationship of trust between plaintiff and defendant and the execution of the documents in question. The complaint alleges that defendant abused this trust in order to obtain plaintiff's residence through deceit, thus injuring plaintiff and benefitting himself. The complaint alleges, in short, the existence of a fiduciary duty and the breach of that duty. The trial court erred in granting defendant's Rule 12(b)(6) motion to dismiss as itrelates to plaintiff's claim of constructive fraud against defendant.
    In light of this holding, we need not address plaintiff's second argument.
    Judges HUNTER and TYSON concur.
    Report per Rule 30(e).

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