{
  "id": 8525126,
  "name": "MARY ALICE BURNSIDE CHURCH, Individually and as Guardian Ad Litem for Her unborn issue, for the unborn issue of Morton L. Church, III, Helen Day Church Peery, Mary Burnside Church, John Warren Church; Edward Bradford Church, Morton L. Church, III, Helen Day Church Peery as Guardian Ad Litem for Walton Stuart Peery, IV and Elliott Lebaron Peery v. FIRST UNION NATIONAL BANK OF NORTH CAROLINA",
  "name_abbreviation": "Church v. First Union National Bank of North Carolina",
  "decision_date": "1983-07-19",
  "docket_number": "",
  "first_page": "359",
  "last_page": "364",
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  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name": "N.C."
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      "cite": "246 S.E. 2d 788",
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      "year": 1978,
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      "reporter": "N.C.",
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        8564899
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          "page": "544"
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  "last_updated": "2023-07-14T21:55:10.514065+00:00",
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    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges Webb and Braswell concur."
    ],
    "parties": [
      "MARY ALICE BURNSIDE CHURCH, Individually and as Guardian Ad Litem for Her unborn issue, for the unborn issue of Morton L. Church, III, Helen Day Church Peery, Mary Burnside Church, John Warren Church; Edward Bradford Church, Morton L. Church, III, Helen Day Church Peery as Guardian Ad Litem for Walton Stuart Peery, IV and Elliott Lebaron Peery v. FIRST UNION NATIONAL BANK OF NORTH CAROLINA"
    ],
    "opinions": [
      {
        "text": "ARNOLD, Judge.\nWe first note that the defendant\u2019s statement of facts is over twenty pages long. Although Rule 28(c), N.C. Rules App. Proc. calls for a \u201cfull, non-argumentative summary\u201d of facts, it also seeks only those \u201cmaterial facts necessary to understand\u201d the case. The defendant\u2019s voluminous statement of the facts was unnecessary and we discourage this waste of time and resources in the future.\nAlthough the massive briefs, record, exhibits, and oral arguments in this case indicate that this is a complicated matter, resolution of two issues disposes of all questions.\nFirst, the trial judge was correct to give the defendant a directed verdict on the plaintiffs\u2019 breach of promissory note claim. On a G.S. 1A-1, Rule 50(a) motion for a directed verdict,\nthe court must consider the evidence in the light most favorable to the non-movant, deeming all evidence which tends to support his position to be true, resolving all eviden-tiary conflicts favorably to him and giving the non-movant the benefit of all inferences reasonably drawn in his favor.\nDaughtry v. Turnage, 295 N.C. 543, 544, 246 S.E. 2d 788, 789 (1978). W. Shuford, N.C. Civil Practice and Procedure \u00a7 50-5 (2d ed. 1981).\nAlthough the note here allowed the plaintiff to accelerate the entire balance of the unpaid note upon failure or default in making payment by the defendant, the defendant signed it \u201cin our fiduciary capacity, but not individually. . . . First Union National Bank of North Carolina, Trustee.\u201d\nUnder G.S. 36A-74(e), the current statute on trustee contracts, this language excluded the defendant as trustee from any personal liability. That statute states in part: \u201cThe addition of the word \u2018trustee\u2019 or the words \u2018as trustee\u2019 after the signature of a trustee to a contract shall be deemed prima facie evidence of an intent to exclude the trustee from personal liability.\u201d\nThe plaintiffs did not offer sufficient evidence to overcome the defendant\u2019s prima facie showing, even when considering all evidentiary conflicts in their favor. G.S. 36-35(c) was the relevant statute during much of this case until its repeal in 1977. See 1977 N.C. Sess. Laws Ch. 502, \u00a7 1. Because its provisions were verbatim to the current G.S. 36A-74(c), the result is the same under both statutes.\nThe second issue here is whether combining the plaintiffs stock with that of others to be sold was a breach of duty by the defendant in its fiduciary capacity. We hold that it was not.\nG.S. 36A-2(a) states the standard of care for a fiduciary.\nIn acquiring, investing, reinvesting, exchanging, retaining, selling, and managing property for the benefit of another, a fiduciary shall observe the standard of judgment and care under the circumstances then prevailing, which an or-dinar ily prudent man of discretion and intelligence, who is a fiduciary of the property of others, would observe as such fiduciary; and if the fiduciary has special skills or is named a fiduciary on the basis of representations of special skills or expertise, he is under a duty to use those skills.\nThis standard is the same one stated in the RESTATEMENT (SECOND) of Trusts \u00a7 174 (1959).\nWe find no breach of trust by the defendant under this prudent man standard and reverse the verdict on the issue of breach of trust. The plaintiff argues that the defendant should be held to a higher standard of care because it represented special skills and induced the plaintiff to create the installment trust.\nThe record does not support this contention. The plaintiff\u2019s husband, an officer of American Credit when the trust was created, testified that he encouraged the plaintiff to enter into the trust. Mr. Church was present at the plaintiff\u2019s two meetings with the defendant\u2019s representatives held to discuss the creation of the trust.\nNo overbearing by the defendant or financial duress of the plaintiff required her to sign the trust instrument. A reading of the entire transcript does not show a representation of skills greater than the average trustee. Absent such a representation, we refuse to hold that the defendant breached the prudent man standard.\nThe plaintiff also contends that the defendant breached its duty of loyalty by combining other shares of Wachovia stock with her stock for sale. She points to blockage discount, market overhang, and Wachovia\u2019s status as a thinly traded stock as evidence that combination for sale is a breach of trust.\nWe find no authority holding that the combination of stock for sale like this case is a breach of a trustee\u2019s duty of loyalty. In fact, Jimmie Tillman, a Vice-President of Interstate Securities in October, 1973 and the plaintiff\u2019s witness at trial, testified that the marketing of stock was a matter of professional judgment and experience. This Court on appeal cannot substitute its business judgment for that of a company with years of expertise in the sale of publicly traded stock. As a result, the defendant will not be held liable for hiring Interstate Securities to market the stock.\nBecause we find that the defendant is not liable, it is unnecessary to discuss any alleged errors in the jury instruction on damages or the jury\u2019s award of $10.\nReversed in part. Affirmed in part.\nJudges Webb and Braswell concur.",
        "type": "majority",
        "author": "ARNOLD, Judge."
      }
    ],
    "attorneys": [
      "Grier, Parker, Poe, Thompson, Bernstein, Gage & Preston, by Gaston H. Gage and Debra L. Foster, for the plaintiff-appellants.",
      "Helms, Mulliss & Johnston, by E. Osborne Ayscue, Jr., for the defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "MARY ALICE BURNSIDE CHURCH, Individually and as Guardian Ad Litem for Her unborn issue, for the unborn issue of Morton L. Church, III, Helen Day Church Peery, Mary Burnside Church, John Warren Church; Edward Bradford Church, Morton L. Church, III, Helen Day Church Peery as Guardian Ad Litem for Walton Stuart Peery, IV and Elliott Lebaron Peery v. FIRST UNION NATIONAL BANK OF NORTH CAROLINA\nNo. 8226SC879\n(Filed 19 July 1983)\n1. Trusts \u00a7 11 \u2014 language in note excluding trustee from personal liability\nThe trial judge correctly gave defendant a directed verdict on plaintiffs\u2019 breach of promissory note claim where defendant signed the note \u201cin our fiduciary capacity, but not individually .... First Union National Bank of North Carolina, Trustee.\u201d Under G.S. 36A-74(c), this language excluded the defendant as trustee from any personal liability.\n2. Trusts \u00a7 7\u2014 combining plaintiff\u2019s stock with others to be sold \u2014 no breach of fiduciary duty\nCombining plaintiff\u2019s stock with that of others to be sold was not a breach of duty by defendant in its fiduciary capacity.\nAppeal by both parties from Howell, Judge. Judgment entered 29 April 1982 in Superior Court, Mecklenburg County. Heard in the Court of Appeals 7 June 1983.\nThis action seeks damages and other relief based on an alleged breach of promissory note and breach of trust and mismanagement by the defendant as trustee.\nThis dispute arises from a trust created by plaintiff Mary Church on 16 October 1973. The primary purpose of the irrevocable inter vivos trust was to provide the plaintiff a way to sell her Wachovia stock under the most advantageous tax rate. The trust was funded with a nominal sum and the defendant was appointed the trustee.\nTo obtain the tax advantages, the plaintiff sold her stock to the defendant as trustee on 17 October 1973 and took an installment note as payment. This note required the defendant to pay $621,843 plus 5 percent interest to the plaintiff in 12 annual installments of $51,820.25 on each 1 December, beginning in 1974. If there was a default on any payment due, the entire balance could be declared due and payable by the plaintiff.\nOn 18 October 1973, the plaintiffs stock was combined with that of her father\u2019s estate, her brother and another woman who had created a similar trust. This formed a block of over 65,900 shares of Wachovia stock.\nAlthough the stock was selling for about $89.50 per share on the New York Stock Exchange on 18 October 1973, the best price for the block that could be obtained by Interstate Securities was $82 per share. The defendant rejected this offer. Interstate Securities was hired by the defendant.\nHenry Mummaw, an Assistant Vice President and Trust Officer with the defendant, contacted the plaintiff during the fall of 1974 to discuss the trust\u2019s problems. On 21 November 1974, the plaintiff, her lawyer, and her husband, met with Mummaw and Ernest Hunter, head of the defendant\u2019s trust department. The plaintiff demanded payment at this meeting.\nF. L. Rodenbeck, Jr., a Vice President and Senior Trust Officer with the defendant, wrote the plaintiff on at least three occasions in 1978. In those letters, he stated that 150 shares of the stock was being sold each month to meet the trust\u2019s liquidity needs.\nA 29 November 1978 letter informed the plaintiff that the defendant could not meet the 1 December 1978 principal payment due without selling stock. The defendant did not consider a sale wise at that point and proposed making a partial payment on the principal and the entire interest payment due on 1 December 1978.\nIn a 31 August 1979 letter, Rodenbeck informed the plaintiff that the trust assets were exhausted. The balance of the 1 December 1978 principal payment due and the balance of the 1 June 1979 interest payment due were paid. The defendant as trustee also paid off a loan due to itself in a non-fiduciary capacity. That loan had been taken out by the defendant as trustee to meet earlier payments due to the plaintiff under the trust.\nWhen all of the plaintiff\u2019s stock was sold, the defendant owed $362,741.75 on the note to the plaintiff.\nThe trial judge granted the defendant\u2019s directed verdict motion on the breach of promissory note claim at the close of the plaintiffs\u2019 evidence. Two issues were submitted to the jury: 1) Did the defendant breach its duty as trustee and 2) If so, what damages are the plaintiffs entitled to?\nAfter the evidence was completed, the trial judge gave instructions to the jury on three separate occasions. When the jury came out for the fourth time, the trial judge inquired as to how they were divided.\nOn the fifth time that they came into the courtroom after deliberation, the jury answered \u201cyes\u201d to the breach of trust issue and $10,000 on the damages question. The trial judge informed the jury that those verdicts were inconsistent and gave another instruction.\nThe jury deliberated for a final time and returned with a verdict of $10 in damages. Post-trial motions by both parties were denied.\nGrier, Parker, Poe, Thompson, Bernstein, Gage & Preston, by Gaston H. Gage and Debra L. Foster, for the plaintiff-appellants.\nHelms, Mulliss & Johnston, by E. Osborne Ayscue, Jr., for the defendant-appellee."
  },
  "file_name": "0359-01",
  "first_page_order": 391,
  "last_page_order": 396
}
