{
  "id": 8552209,
  "name": "EDWARD McKINLEY TERRY, JR. v. CHARLES THURMAN TERRY, Individually and as Former Executor of the Estate of EDWARD McKINLEY TERRY, SR",
  "name_abbreviation": "Terry v. Terry",
  "decision_date": "1980-05-06",
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  "casebody": {
    "judges": [
      "Judges WEBB and WELLS concur."
    ],
    "parties": [
      "EDWARD McKINLEY TERRY, JR. v. CHARLES THURMAN TERRY, Individually and as Former Executor of the Estate of EDWARD McKINLEY TERRY, SR."
    ],
    "opinions": [
      {
        "text": "HEDRICK, Judge.\nIn his first claim for relief, plaintiff alleged that he was a devisee under the will of his father who, prior to his death on 25 February 1977, had been president and, until 31 May 1973, sole stockholder of a retail furniture and appliance business in Raleigh. He further asserted that his father\u2019s physical condition had declined rapidly and drastically due to cancer in the two months before his death; that his father was confined to bed and was administered heavy doses of medication for intense pain during that time; and that three weeks before his death, his father had signed a document \u201cpurporting to transfer all of his [deceased\u2019s] interest in Terry\u2019s Furniture Company, Inc.\u201d to the defendant for $25,000.00. Defendant is the brother of the deceased and was employed by the deceased \u201cto assist in running the store and to keep the books of the store.\u201d On 31 May 1973 deceased had transferred \u201cby gift\u201d 1,087 shares of stock in the company to defendant. Although plaintiff witnessed the signing of the document transferring all interest in the business to the defendant, he alleged that he was under such \u201csevere emotional distress\u201d that he did not understand the contents of the document. He claimed that he did not learn of the transfer until more than a year following his father\u2019s death; that he was fired from his job at the store shortly thereafter; and that defendant had refused to allow him an opportunity to inspect the books and records of the company to determine the value of his father\u2019s interest, but upon information and belief, he alleged that the value \u201cwas far in excess\u201d of the $25,000.00 paid by defendant. Plaintiff then alleged the following:\n18. [Defendant] knowingly and willfully, and with the intent to deceive, fraudulently induced his brother and business associate, Edward McKinley Terry, Sr., [deceased] to sell his interest in Terry\u2019s Furniture Company, Inc. at a grossly inadequate price, and such deceit occurred at a time when Edward McKinley Terry, Sr. was confined to his bed, nearly blind, unable to talk or hear clearly, suffering from intense pain, and under heavy medication.\n19. [Defendant] knowingly and willfully, and with the intent to deceive, misrepresented to plaintiff following the death of plaintiff\u2019s father the circumstances surrounding his alleged purchase of plaintiff\u2019s father\u2019s interest in Terry\u2019s Furniture Company, Inc. and that plaintiff should trust his uncle to protect plaintiff\u2019s interest.\nPlaintiff claimed that the \u201cdeceit\u201d thereby perpetrated entitled him to recover as damages the difference between the \u201ctrue market value\u201d of his father\u2019s interest and the $25,000.00 paid by defendant.\nThe question presented by plaintiff\u2019s appeal from the dismissal of this first claim is whether his allegation that his father, at a time when his physical health was fast deteriorating, transferred his interest in the business owned by him and the defendant to the defendant for $25,000.00, coupled with the plaintiff\u2019s \u201cbelief\u201d that the value of his father\u2019s interest far exceeded the price paid by defendant, is a sufficient pleading of actionable fraud as required by Rule 9(b), G.S. \u00a7 1A-1. We think not.\n\u201cFraud has no all-embracing definition. Because of the multifarious means by which human ingenuity is able to devise means to gain advantages by false suggestions and concealment of the truth, and in order that each case may be determined on its own facts, it has been wisely stated \u2018that fraud is better left undefined,\u2019 lest, . . . \u2018the craft of men should find a way of committing fraud which might escape a rule or definition.\u2019 \u201d\nRoberson v. Williams, 240 N.C. 696, 701, 83 S.E. 2d 811, 814 (1954) [quoting from Furst v. Merritt, 190 N.C. 397 , 404, 130 S.E. 40, 44 (1925)]. However, the vitals of the creature are well established: \u201cThere must be a misrepresentation of material fact, made with knowledge of its falsity and with intent to deceive, which the other party reasonably relies on to his deception and detriment.\u201d Moore v. Wachovia Bank and Trust Co., 30 N.C. App. 390, 391, 226 S.E. 2d 833, 834 (1976); see also Ragsdale v. Kennedy, 286 N.C. 130, 209 S.E. 2d 494 (1974). Additionally, the plaintiff must sufficiently plead his cause by stating all material facts and circumstances allegedly constituting the fraud \u201cwith particularity.\u201d Rule 9(b), G.S. \u00a7 1A-1. It has been held by this Court that the rule requires the pleader to state the time, place and content of the alleged fraudulent undertaking. Coley v. North Carolina National Bank, 41 N.C. App. 121, 254 S.E. 2d 217 (1979). Clearly, the recitation of \u201c[m]ere generalities and conclusory allegations\u201d is not sufficient to plead fraud. Moore v. Wachovia Bank and Trust Co., supra at 391, 226 S.E. 2d at 835; see also Best v. Perry, 41 N.C. App. 107, 254 S.E. 2d 281 (1979).\nWhen we examine the pleading before us in light of these requirements, we find it deficient. The only facts plaintiff has alleged are that the business was conveyed three weeks before his father died and that his father was very ill at the time. He has alleged no facts respecting the content of the negotiations between his father and the defendant prior to the signing of the document transferring the business, and he concedes in his argument on appeal that he does not know the substance of the transactions between his father and the defendant. He has alleged no facts which would demonstrate that the defendant acted intentionally to deceive him, nor in our opinion, has he pleaded any facts from which such an intent could be inferred. Although he asserts that the price paid by the defendant was grossly inadequate, he has alleged no facts to show the \u201ctrue market value\u201d of the interest transferred so that we can weigh the adequacy of the price. In short, plaintiff has pleaded no facts to support his general allegation that the defendant fraudulently induced the transfer of the deceased\u2019s interest in the store. That allegation, in the absence of facts on which it can stand, is a mere conclusion on the plaintiff\u2019s part.\nWe are not unsympathetic to the plaintiff\u2019s plight and his supposed inability to gather the facts, if they exist, to support his pleading. We are not inadvertent to the fact that his father was very ill at the time he transferred his interest in the business to the defendant. On the other hand, we cannot overlook the facts, also contained in the plaintiff\u2019s complaint, that his father and the defendant were brothers; that they had worked closely together in the business for many years; and, most significantly, that his father had transferred by gift a number of shares of stock in the business to the defendant almost four years prior to his death. It would require the rankest speculation on our part to supply the facts and circumstances necessary to make out a case of actionable fraud for this plaintiff. That we will not do. We hold that the defendant\u2019s motion to dismiss the plaintiff\u2019s first claim for relief was properly granted.\nFor the same reasons, plaintiffs fourth claim for relief must fall. We believe that plaintiff has but stated in different words his general allegation of fraud when he alleges in the fourth claim that the defendant induced the transfer by exercising \u201cdeceit and influence\u201d over the deceased. He has pleaded no new or additional facts in the fourth claim, and it likewise was properly dismissed.\nIn his third claim for relief, plaintiff alleged that the defendant, while acting as executor of his father\u2019s estate, engaged in \u201cself-dealing\u201d in that he had a duty, as executor, to refuse to approve the contract for the sale of the deceased\u2019s interest in the company since the contract was not \u201cin the best interest of the estate.\u201d Defendant\u2019s approval of the contract, in plaintiff\u2019s view, constituted a breach of fiduciary duty.\nHere we think the complaint patently fails to state a claim for relief, since the sales contract was executed and the transfer of plaintiff\u2019s father\u2019s interest to defendant consummated 21 days before Mr. Terry\u2019s death. Also, defendant did not qualify as the executor of the estate until some time thereafter. While the defendant as executor obviously had fiduciary duties, manifestly the defendant owed no fiduciary duties to the deceased or to plaintiff at the time he purchased the interest in the store. The trial court correctly allowed defendant\u2019s Rule 12(b)(6) motion to dismiss this claim.\nFinally, plaintiff asserted in his sixth claim for relief that he was entitled to punitive damages for being \u201cdeceived, oppressed, and embarrassed by the false actions and representations\u201d of the defendant. It is hardly necessary to observe that damages are not awarded in a vacuum. Having failed to state a claim for relief based on fraud, a fortiori plaintiff has failed to assert a claim for punitive damages.\nDefendant purports to appeal from the denial of his motion to dismiss the plaintiff\u2019s fifth claim for relief. No appeal lies from the denial of a Rule 12(b)(6) motion. O\u2019Neill v. Southern National Bank, 40 N.C. App. 227, 252 S.E. 2d 231 (1979). Therefore, defendant\u2019s appeal will be dismissed.\nThe result is: With respect to plaintiff\u2019s appeal, the Order dismissing his first, third, fourth and sixth claims for relief is affirmed; with respect to defendant\u2019s appeal from the denial of his motion to dismiss the fifth claim for relief, the appeal is dismissed.\nAffirmed in part; dismissed in part.\nJudges WEBB and WELLS concur.",
        "type": "majority",
        "author": "HEDRICK, Judge."
      }
    ],
    "attorneys": [
      "Tharrington, Smith & Hargrove, by Steven L. Evans, for the plaintiff appellant.",
      "Emanuel & Thompson, by W. Hugh Thompson, and Yeargan & Mitchiner, by Joseph H. Mitchiner, for the defendant appellant."
    ],
    "corrections": "",
    "head_matter": "EDWARD McKINLEY TERRY, JR. v. CHARLES THURMAN TERRY, Individually and as Former Executor of the Estate of EDWARD McKINLEY TERRY, SR.\nNo. 7910SC881\n(Filed 6 May 1980)\n1. Fraud \u00a7 9\u2014 insufficiency of complaint to state claim\nPlaintiff\u2019s allegation that his father, at a time when his physical health was fast deteriorating, transferred his interest in the business owned by him and the defendant to the defendant for $25,000, coupled with plaintiff\u2019s \u201cbelief\u2019 that the value of his father\u2019s interest far exceeded the price paid by defendant, was not a sufficient pleading of actionable fraud as required by G.S. 1A-1, Rule 9(b).\n2. Executors and Administrators \u00a7 11\u2014 executor\u2019s improper approval of sale alleged \u2014 insufficiency of complaint to state claim\nAllegation by plaintiff, deceased\u2019s son, that defendant, brother of deceased, while acting as executor of his brother\u2019s estate, engaged in self-dealing and breached his fiduciary duty in approving a contract for the sale of deceased\u2019s interest in a retail business to defendant failed to state a claim for relief, since the sales contract was executed and the transfer of plaintiff\u2019s father\u2019s interest to defendant consummated three weeks before the father\u2019s death, and defendant did not qualify as executor of the estate until some time thereafter.\n3. Appeal and Error \u00a7 6.6\u2014 denial of motion to dismiss \u2014no appeal\nNo appeal lies from the denial of a Rule 12(b)(6) motion to dismiss.\nAppeal by plaintiff and defendant from Britt, Judge. Order entered 16 August 1979 in Superior Court, WAKE County. Heard in the Court of Appeals on 20 March 1980.\nIn this civil proceeding plaintiff undertakes to allege six separate claims for relief against the defendant. The defendant\u2019s Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief could be granted was allowed with respect to the first, third, fourth and sixth claims, and denied as to the fifth claim. Plaintiff took a voluntary dismissal with prejudice with respect to his second claim, and appealed. Defendant appealed from the denial of his motion to dismiss the fifth claim.\nTharrington, Smith & Hargrove, by Steven L. Evans, for the plaintiff appellant.\nEmanuel & Thompson, by W. Hugh Thompson, and Yeargan & Mitchiner, by Joseph H. Mitchiner, for the defendant appellant."
  },
  "file_name": "0583-01",
  "first_page_order": 611,
  "last_page_order": 616
}
