Fisher v. Lamm

HEDRICK, Judge. Plaintiff first assigns error to the court’s 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 [252] the claims relating to the Nash County and Wilson County property to those respective counties. Plaintiff contends that “because 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.” Venue 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: Actions 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: (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. (emphasis added). Plaintiff relies on that portion of the statute which refers to “some part thereof’ in his argument that venue was proper in Wake County as to all three tracts of land. His reliance is justified only if “the subject of the action” 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. We 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: The 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 [253] upon the competency of the . . . grantor at the time of the transaction. 41 Am. Jur. 2d Incompetent Persons Sec. 69 (1968). Our consideration of all these circumstances persuades us that in the instant case “the subject of the action” 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 “subjects,” 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 “some part thereof.” Thus, Judge Hobgood properly ordered the cases transferred and removed to the county wherein the property is located. Plaintiff next assigns error to the trial court’s order dismissing “the constructive fraud claim in Plaintiffs Second Claim For Relief.” 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 “Plaintiffs allegations are inadequate under any fraud pleading standard.” The general rule, set out in N.C. Gen. Stat. Sec. 1A-1, Rule 8(a)(1), requires that a complaint contain “[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. . . .” In pleading certain “special matters,” however, of which fraud is one example, Rule 9(b) requires that the circumstances “be stated with particularity.” 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): A 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 de [254] fendant is alleged to have taken advantage of his position of trust to the hurt of plaintiff. (citation omitted). Our 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 “trusted by Jessie Penny Farmer to look after her interest” at the time each of the deeds was executed. Finally, he alleges that “[e]ach of said deeds [to defendant] was given without any monetary consideration,” and that, with the last deed, Mrs. Farmer “had conveyed to [defendant] all of her real estate, reserving only a life estate to herself.” 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’s “motion to dismiss” that portion of plaintiffs second claim for relief. Plaintiffs final assignment of error challenges the court’s order granting defendant’s motion for a more definite statement “with respect to the constructive fraud claim in Plaintiffs Third Claim For Relief.” 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’s 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 “Plaintiffs Third Claim For Relief for constructive fraud is so vague that it is unreasonable to require Defendant to respond to such pleadings,” and thus ordered plaintiff to “plead with particularity the time and specific acts of constructive fraud alleged. . . .” 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 “the time and specific acts of constructive fraud” was unnecessary. A motion for a more definite statement “is the most purely dilatory of all the motions [255] available under the Rules of Civil Procedure,” and should not be granted “[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.” 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’s motion for a more definite statement. The 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. Affirmed in part, reversed in part, and remanded. Judges HILL and EAGLES concur.