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  "name": "MARY J. ADAMS v. H. L. MOORE and J. RAY BUTLER",
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  "casebody": {
    "judges": [
      "Judges COZORT and LEWIS concur."
    ],
    "parties": [
      "MARY J. ADAMS v. H. L. MOORE and J. RAY BUTLER"
    ],
    "opinions": [
      {
        "text": "PHILLIPS, Judge.\nThe order appealed from dismissed plaintiff\u2019s complaint under the provisions of Rule 12(b)(6), N.C. Rules of Civil Procedure. The reference in the order to Rule 56 is inappropriate and feckless, as no materials other than the pleadings were presented. Burton v. Kenyon, 46 N.C. App. 309, 264 S.E.2d 808 (1980). The complaint adequately states three alternative claims for which relief are allowed under our law \u2014 unfair trade practice, breach of a fiduciary duty, and unjust enrichment \u2014 and the order dismissing the complaint is vacated.\nAll three claims are based upon allegations of fact to the effect that: In March 1984 plaintiff was the sole owner of a house and lot in Winston-Salem worth about $32,000 on which there was a mortgage balance of about $12,000 payable in monthly installments; plaintiff was two months behind in the mortgage payments and turned to her pastor, defendant Moore, in whom she had trust and confidence, for counsel and advice; Moore assured her that he could help her and a few days later he and defendant Butler, also a preacher, told her that they would assume the mortgage and pay her $1,000 if she would deed the place to them; relying upon the defendants to treat her fairly in discharge of their fiduciary duty, plaintiff deeded the place to them and was paid the $1,000; a few months later, in November, 1984, defendants sold the house for $32,000, thereby unjustly enriching themselves in the amount of $18,000 on a cash outlay of no more than $2,000, counting the mortgage payments made; and acquiring and selling the house under the circumstances was an unfair or deceptive trade practice and a breach of their fiduciary duty.\nThe unfair or deceptive trade practice claim was apparently dismissed on the ground that the transaction alleged \u2014 the sale of a dwelling house \u2014 is not an \u201cact in or affecting commerce,\u201d and thus was beyond the purview of G.S. 75-1, et seq. While the mere purchase and sale of a residence is not an act \u201cin or affecting commerce\u201d under G.S. 75-1.1, Robertson v. Boyd, 88 N.C. App. 437, 363 S.E.2d 672 (1988), the law is otherwise as to persons who buy, sell, or lease houses as a business. Wilder v. Squires, 68 N.C. App. 310, 315 S.E.2d 63, disc. rev. denied, 311 N.C. 769, 321 S.E.2d 158 (1984). The complaint does not show that defendants\u2019 purchase of plaintiff\u2019s home was an isolated occurrence, and under the notice allegations stated plaintiff may show, if she has evidence to that effect, that defendants buy and sell houses as a business, in which event Chapter 75 would apply. Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970). Nor is the claim necessarily barred by the four-year statute of limitations, G.S. 75-16.2, since the complaint alleges that defendants\u2019 unfair purchase was on 19 March 1984, and this action was filed on Monday, 21 March 1988. G.S. 1A-1, Rule 6(a), N.C. Rules of Civil Procedure.\nAs to the breach of fiduciary duty claim: When a fiduciary relationship exists between parties to a transaction, equity raises a presumption of fraud when the superior party obtains an inordinate benefit as a result of it. Watts v. Cumberland County Hospital Systems, Inc., 317 N.C. 110, 343 S.E.2d 879 (1986). That such a relationship existed between plaintiff and the defendants and was abused is sufficiently alleged. For under our law a fiduciary relationship can be found to exist anytime one person reposes a special confidence in another, in which event the one trusted is bound to act in good faith and with due regard to the interests of the other. Abbitt v. Gregory, 201 N.C. 577, 160 S.E. 896 (1931). Nor is this claim barred by the three-year statute of limitations contained in G.S. 1-52(9), as the ten-year statute of limitations under G.S. 1-56 applies to constructive fraud claims based upon a breach of fiduciary duty. Terry v. Terry, 302 N.C. 77, 273 S.E.2d 674 (1981); Speck v. North Carolina Dairy Foundation, Inc., 64 N.C. App. 419, 307 S.E.2d 785 (1983), reversed on other grounds, 311 N.C. 679, 319 S.E.2d 139 (1984).\nAs to the unjust enrichment claim, unjust enrichment has been defined as follows:\n\u2018Unjust enrichment\u2019 is a legal term characterizing the result or effect of a failure to make restitution of, or for, property or benefits received under such circumstances as to give rise to a legal or equitable obligation to account therefor. It is a general principle, underlying various legal doctrines and remedies, that one person should not be permitted unjustly to enrich himself [or herself] at the expense of another. . .\nIvey v. Williams, 74 N.C. App. 532, 534, 328 S.E.2d 837, 838-39 (1985), citing 66 Am. Jur. 2d Restitution and Implied Contracts Sec. 3, at 945 (1973). That this claim, an alternative or duplicate of the breach of fiduciary duty claim, is also sufficiently alleged is too manifest to require discussion.\nThe order dismissing the complaint is vacated and the claims alleged returned to the District Court for further proceedings consistent herewith.\nVacated and remanded.\nJudges COZORT and LEWIS concur.",
        "type": "majority",
        "author": "PHILLIPS, Judge."
      }
    ],
    "attorneys": [
      "Legal Aid Society of Northwest North Carolina, Inc., by Susan Gottsegen and Ellen W. Gerber, for plaintiff appellant.",
      "Donald R. Buie for defendant appellees."
    ],
    "corrections": "",
    "head_matter": "MARY J. ADAMS v. H. L. MOORE and J. RAY BUTLER\nNo. 8921DC100\n(Filed 21 November 1989)\n1. Unfair Competition \u00a7 1 (NCI3d)\u2014 unfair or deceptive trade practice \u2014 purchase of house by fiduciary \u2014 Rule 12(b)(6) dismissal improper\nThe trial court erred by granting defendants\u2019 motion for dismissal under N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) in an action arising from the purchase and sale of a house by a pastor because, under notice pleading, plaintiff may show that defendants buy and sell houses as a business, in which event N.C.G.S. Chapter 75 would apply. The action is not barred by- the four-year statute of limitations of N.C.G.S. \u00a7 75-16.2 since the complaint alleged the unfair purchase was on 19 March 1984 and the action was filed on Monday, 21 March 1988.\nAm Jur 2d, Brokers \u00a7\u00a7 84, 91, 245.\n2. Fiduciaries \u00a7 1 (NCI3d)\u2014 breach of fiduciary duty \u2014 transfer of house to pastor \u2014 Rule 12(b)(6) dismissal improper\nThe trial court erred by granting defendants\u2019 motion for dismissal under N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) in an action arising from the transfer of plaintiff\u2019s house to her pastor because plaintiff sufficiently alleged that a fiduciary relationship existed and was abused. When a fiduciary relationship exists between parties to a transaction, equity raises a presumption of fraud when the superior party obtains an inordinate benefit as a result. The claim was not barred by the three-year statute of limitations of N.C.G.S. \u00a7 1-52(9), as the ten-year limitation of N.C.G.S. \u00a7 1-56 applies to constructive fraud based on breach of fiduciary duty.\nAm Jur 2d, Brokers \u00a7\u00a7 84, 91, 245.\n3. Quasi Contracts and Restitution \u00a7 1.2 (NCI3d)\u2014 unjust enrichment \u2014 transfer of house to pastor \u2014 Rule 12(b)(6) dismissal improper\nA claim for unjust enrichment by a fiduciary arising from the transfer of plaintiff\u2019s house to her pastor was sufficiently alleged and the trial court erred by granting defendants\u2019 motion for dismissal under N.C.G.S. \u00a7 1A-1, Rule 12(b))6).\nAm Jur 2d, Fraud and Deceit \u00a7\u00a7 336, 338.\nAPPEAL by plaintiff from Keiger, Judge. Order entered 23 August 1988 in District Court, FORSYTH County. Heard in the Court of Appeals 11 July 1989.\nLegal Aid Society of Northwest North Carolina, Inc., by Susan Gottsegen and Ellen W. Gerber, for plaintiff appellant.\nDonald R. Buie for defendant appellees."
  },
  "file_name": "0359-01",
  "first_page_order": 391,
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