{ "id": 8524265, "name": "HENRY M. FISHER, Guardian for Jessie Penny Farmer, Incompetent v. WILLIS RAY LAMM", "name_abbreviation": "Fisher v. Lamm", "decision_date": "1984-02-07", "docket_number": "No. 8310SC184", "first_page": "249", "last_page": "255", "citations": [ { "type": "official", "cite": "66 N.C. App. 249" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "235 S.E. 2d 405", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "410" } ], "opinion_index": 0 }, { "cite": "33 N.C. App. 447", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550259 ], "year": 1977, "pin_cites": [ { "page": "454" } ], "opinion_index": 0, "case_paths": [ "/nc-app/33/0447-01" ] }, { "cite": "273 S.E. 2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "678-79" } ], "opinion_index": 0 }, { "cite": "302 N.C. 77", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563828 ], "year": 1981, "pin_cites": [ { "page": "85" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0077-01" ] } ], "analysis": { "cardinality": 573, "char_count": 13416, "ocr_confidence": 0.81, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.20553225303869066 }, "sha256": "47a3d15396f66e6c3e9859454b1189f8a8cd5518b96c9b402d0306cb175e6704", "simhash": "1:282936ec3607afc9", "word_count": 2172 }, "last_updated": "2023-07-14T17:15:19.573584+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HILL and EAGLES concur." ], "parties": [ "HENRY M. FISHER, Guardian for Jessie Penny Farmer, Incompetent v. WILLIS RAY LAMM" ], "opinions": [ { "text": "HEDRICK, Judge.\nPlaintiff first assigns error to the court\u2019s holding that the defendant is entitled to a change of venue as to the Wilson and Nash County property and its order transferring and removing the claims relating to the Nash County and Wilson County property to those respective counties. Plaintiff contends that \u201cbecause some of the real property plaintiff seeks to recover is in fact located in Wake County, then venue is proper in Wake County as to all of the property.\u201d\nVenue in actions affecting title to land is governed, as both parties concede, by N.C. Gen. Stat. Sec. 1-76, which in pertinent part provides:\nActions for the following causes must be tried in the county in which the subject of the action, or some part thereof, is situated, subject to the power of the court to change the place of trial in the cases provided by law:\n(1) Recovery of real property, or of an estate or interest therein, or for the determination in any form of such right or interest, and for injuries to real property.\n(emphasis added). Plaintiff relies on that portion of the statute which refers to \u201csome part thereof\u2019 in his argument that venue was proper in Wake County as to all three tracts of land. His reliance is justified only if \u201cthe subject of the action\u201d in the instant case is determined to be all of the property, taken as a whole. We must thus first decide whether the record would support such a determination.\nWe first note that there were three separate conveyances in the instant case, each of a tract of property located entirely within a different county and each in a different calendar year. Indeed, more than two years elapsed between the first and second conveyance. Furthermore, while plaintiffs challenge to each conveyance rests on identical grounds, the evidence necessary to support his contentions will of necessity vary with respect to each deed:\nThe incompetency that is offered to show the invalidity of a . . . conveyance must, regardless of its character, exist at the time of the act in question. Thus, the mental capacity of one executing an instrument to pass title to property is to be tested as of the date of the execution and delivery of the instrument. Irrationality before or after the transaction in question is important . . . only to the extent that it bears upon the competency of the . . . grantor at the time of the transaction.\n41 Am. Jur. 2d Incompetent Persons Sec. 69 (1968). Our consideration of all these circumstances persuades us that in the instant case \u201cthe subject of the action\u201d under N.C. Gen. Stat. Sec. 1-76 was properly determined by Judge Hobgood to be each discrete tract of land. In effect, there are three \u201csubjects,\u201d each located in its entirety in a different county. We hold that plaintiff cannot, by mere joinder of these three distinct claims, bring himself within the purview of that portion of the statute which refers to \u201csome part thereof.\u201d Thus, Judge Hobgood properly ordered the cases transferred and removed to the county wherein the property is located.\nPlaintiff next assigns error to the trial court\u2019s order dismissing \u201cthe constructive fraud claim in Plaintiffs Second Claim For Relief.\u201d He contends that the allegations set forth within his complaint fall well within the boundaries established by Rules 8 and 9(b), North Carolina Rules of Civil Procedure. Defendant, on the other hand, argues that \u201cPlaintiffs allegations are inadequate under any fraud pleading standard.\u201d\nThe general rule, set out in N.C. Gen. Stat. Sec. 1A-1, Rule 8(a)(1), requires that a complaint contain \u201c[a] short and plain statement of the claim sufficiently particular to give . . . notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved showing that the pleader is entitled to relief. . . .\u201d In pleading certain \u201cspecial matters,\u201d however, of which fraud is one example, Rule 9(b) requires that the circumstances \u201cbe stated with particularity.\u201d The application of these rules to the pleading of constructive fraud was recently discussed at length by our Supreme Court in Terry v. Terry, 302 N.C. 77, 85, 273 S.E. 2d 674, 678-79 (1981):\nA constructive fraud claim requires even less particularity [than a claim for actual fraud] 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.\n(citation omitted).\nOur examination of the allegations set forth in plaintiff s second claim for relief reveals that plaintiff has adequately complied with the provisions of Rule 9(b) as construed in Terry. Plaintiff has identified the circumstances surrounding the formation and development of the alleged confidential relationship between Mrs. Farmer and the defendant. He has identified the specific transactions alleged to have been procured by means of constructive fraud, and the times at which they occurred. Plaintiff also specifically states that defendant was \u201ctrusted by Jessie Penny Farmer to look after her interest\u201d at the time each of the deeds was executed. Finally, he alleges that \u201c[e]ach of said deeds [to defendant] was given without any monetary consideration,\u201d and that, with the last deed, Mrs. Farmer \u201chad conveyed to [defendant] all of her real estate, reserving only a life estate to herself.\u201d Because we believe these allegations are sufficient under Terry to set forth a claim for relief based upon constructive fraud, we hold that the trial court erred in granting defendant\u2019s \u201cmotion to dismiss\u201d that portion of plaintiffs second claim for relief.\nPlaintiffs final assignment of error challenges the court\u2019s order granting defendant\u2019s motion for a more definite statement \u201cwith respect to the constructive fraud claim in Plaintiffs Third Claim For Relief.\u201d Here, plaintiff seeks to have set aside the power of attorney executed by Mrs. Farmer in favor of defendant. We note that the trial judge correctly denied defendant\u2019s motion to dismiss this claim, thereby implicitly ruling that plaintiffs averments were of sufficient particularity to pass muster under Rule 9(b). The court went on to rule, however, that \u201cPlaintiffs Third Claim For Relief for constructive fraud is so vague that it is unreasonable to require Defendant to respond to such pleadings,\u201d and thus ordered plaintiff to \u201cplead with particularity the time and specific acts of constructive fraud alleged. . . .\u201d Our examination of the allegations, performed in light of the holding, previously discussed, in Terry, persuades us that the court order requiring a more definite statement of \u201cthe time and specific acts of constructive fraud\u201d was unnecessary. A motion for a more definite statement \u201cis the most purely dilatory of all the motions available under the Rules of Civil Procedure,\u201d and should not be granted \u201c[s]o long as the pleading meets the requirements of Rule 8 [here, Rule 9(b)] and fairly notifies the opposing party of the nature of the claim.\u201d Ross v. Ross, 33 N.C. App. 447, 454, 235 S.E. 2d 405, 410 (1977). Thus we hold that the trial court erred in granting defendant\u2019s motion for a more definite statement.\nThe result is: the order transferring and removing the causes involving the real property in Wilson and Nash Counties to the county in which the land is located is affirmed; the orders dismissing plaintiffs second claim for relief in regard to, constructive fraud and requiring a more definite statement as to constructive fraud in plaintiffs third claim for relief are reversed, and the causes are remanded to the Superior Court of Wake County for further proceedings.\nAffirmed in part, reversed in part, and remanded.\nJudges HILL and EAGLES concur.", "type": "majority", "author": "HEDRICK, Judge." } ], "attorneys": [ "Harris, Cheshire, Leager & Southern, by Samuel 0. Southern, for plaintiff, appellant.", "Kirby, Wallace, Creech, Sarda & Zaytoun, by David F. Kirby, for defendant, appellee." ], "corrections": "", "head_matter": "HENRY M. FISHER, Guardian for Jessie Penny Farmer, Incompetent v. WILLIS RAY LAMM\nNo. 8310SC184\n(Filed 7 February 1984)\n1. Venue \u00a7 5.1\u2014 action to set aside conveyances \u2014 removal to counties where property located\nWhere plaintiff brought an action to set aside three \u00a1conveyances of real property which occurred in three separate counties and in different calendar years, the \u201csubject of the action\u201d under G.S. 1-76 was each discrete tract of land conveyed, and the trial court properly ordered each claim transferred and removed to the county wherein the property concerning such claim was located.\n2. Fraud \u00a7 9\u2014 constructive fraud \u2014sufficiency of complaint\nPlaintiffs complaint was sufficient to state a claim to set aside three deeds from plaintiffs ward to defendant on the ground of constructive fraud where the complaint identified the circumstances surrounding the formation and development of the alleged confidential relationship between plaintiffs ward and the defendant; the complaint identified the specific transactions alleged to have been procured by means of constructive fraud and the times at which they occurred; the complaint specifically stated that defendant was trusted by plaintiffs ward \u201cto look after her interests\u201d at the time each of the deeds was executed; and the complaint alleged that each of the deeds was given without monetary consideration and that, with the last deed, plaintiffs ward had conveyed to defendant all of her real estate, reserving only a life estate to herself. G.S. 1A-1, Rules 8 and 9(b).\n3. Fraud \u00a7 9\u2014 constructive fraud \u2014 more definite statement\nThe trial court erred in granting defendant\u2019s motion for a more definite statement with respect to plaintiffs claim to set aside on the ground of constructive fraud a power of attorney given by plaintiffs ward to defendant.\nAppeal by plaintiff from Hobgood, (Robert HJ, Judge. Order entered 14 December 1982 in Superior Court, WAKE County. Heard in the Court of Appeals 19 January 1984.\nIn his complaint plaintiff seeks to have three deeds and a power of attorney \u201cset aside and declared null and void\u201d for lack of mental capacity, constructive fraud, and undue influence.\nThe allegations in plaintiffs complaint, except where quoted, are summarized as follows:\nOn 16 September 1981, in Nash County, Jessie Penny Farmer was declared to be incompetent, and plaintiff, Henry M. Fisher, was appointed her general guardian. Plaintiff and his ward are residents of Nash County, and the defendant, Willis Ray Lamm, is \u201ca resident of Wake County or Nash County.\u201d On 13 April 1977 Mrs. Farmer executed and delivered to defendant a deed conveying to him a tract of land located in Wilson County. On 19 September 1979 Mrs. Farmer executed and delivered to defendant a second deed conveying to him a tract of land located in Nash County. On 30 September 1980 Mrs. Farmer executed and delivered to defendant a third deed conveying to him a tract of land located in Wake County. On 6 November 1980 Mrs. Farmer executed in favor of defendant a power of attorney that, among other things, gave defendant authority to sell Mrs. Farmer\u2019s real estate.\nIn his first claim for relief plaintiff alleged that \u201cat the time of the execution of said deeds\u201d \u201cJessie Penny Farmer\u2019s mental faculties were impaired and . . . she did not understand the nature and consequences or the scope and effect of said deeds.\u201d In his second claim for relief plaintiff alleged that \u201cthe making and execution of said deeds were obtained by the defendant\u2019s constructive fraud and undue influence. . . In his third claim for relief plaintiff alleged that the power of attorney designating defendant as an attorney-in-fact \u201cwas executed by Jessie Penny Farmer at a time when she was incompetent ... to manage her own affairs\u201d and was obtained \u201cby the defendant\u2019s constructive fraud and undue influence. . , .\u201d\nOn 26 April 1982 defendant filed the following motions pursuant to Rule 12, North Carolina Rules of Civil Procedure: (1) a motion \u201cto dismiss the Plaintiffs complaint for improper venue;\u201d (2) in the alternative, a motion \u201cto remove this action for improper venue;\u201d (3) a motion to \u201cdismiss Plaintiffs Second and Third Claims For Relief on the ground that fraud and undue influence must be plead with particularity . . .;\u201d and (4) a motion \u201cfor a more definite statement of Plaintiffs allegations of mental impairment, undue influence and fraud. . . .\u201d\nOn 14 December 1982 the trial court granted defendant\u2019s motion for a change of venue and entered an order \u201c[t]hat the p\u00e1rt of this action that relates to recorded deed and property in Wilson County, North Carolina be transferred to Wilson County Superior Court.\u201d The court entered a similar order regarding the property in Nash County. The trial court also held that defendant\u2019s motion to dismiss \u201cthe constructive fraud claim in Plaintiffs Second Claim For Relief is granted. Said claim is dismissed without prejudice.\u201d Finally, defendant\u2019s motion for a more definite statement was granted with respect to \u201cthe constructive fraud claim in Plaintiffs Third Claim For Relief,\u201d and plaintiff was ordered \u201cto plead with particularity the time and specific acts of constructive fraud alleged. . . .\u201d Plaintiff appealed.\nHarris, Cheshire, Leager & Southern, by Samuel 0. Southern, for plaintiff, appellant.\nKirby, Wallace, Creech, Sarda & Zaytoun, by David F. Kirby, for defendant, appellee." }, "file_name": "0249-01", "first_page_order": 281, "last_page_order": 287 }