# Adams v. Moore > Court of Appeals of North Carolina · November 21, 1989 · 96 N.C. App. 359 URL: https://www.frixlaw.com/law-library/cases/1228702 ## Case - **Full name:** Mary J. Adams v. H. L. Moore and J. Ray Butler - **Court:** Court of Appeals of North Carolina - **Decided:** November 21, 1989 - **Citations:** 96 N.C. App. 359; 385 S.E.2d 799; 1989 N.C. App. LEXIS 1003 - **Precedential status:** Published - **Opinion:** Opinion by Phillips - **Judges:** Phillips, Cozort, Lewis - **Cited by:** 30 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1228702 ## How later opinions describe it (automated extraction) - concluding that two ministers, who had agreed to assist the plaintiff with her financial problems by taking title to and making a payment on her residence and then sold the residence for a large profit, owed a fiduciary duty to the plaintiff and were subject to liability under… - holding that preachers owed a fiduciary duty to their parishioner and violated that duty by using their position and influence to obtain the deed to the parishioner’s home and then selling it a few months later for a profit - finding that preacher who counselled parishioner owed fiduciary duty to parishioner and violated that duty by using his position and influence to obtain the deed to parishioner’s home - finding preacher owed fiduciary duty to parishioner and violated that duty by using his position and influence to obtain the deed to parishioner’s home ## Opinion text PHILLIPS, Judge. The order appealed from dismissed plaintiff’s complaint under the provisions of Rule 12(b)(6), N.C. Rules of Civil Procedure. The *361 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 — unfair trade practice, breach of a fiduciary duty, and unjust enrichment — and the order dismissing the complaint is vacated. All 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. The unfair or deceptive trade practice claim was apparently dismissed on the ground that the transaction alleged — the sale of a dwelling house — is not an “act in or affecting commerce,” 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 “in or affecting commerce” 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’ purchase of plaintiff’s 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 *362 alleges that defendants’ 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. As 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). As to the unjust enrichment claim, unjust enrichment has been defined as follows: ‘Unjust enrichment’ 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. . . Ivey 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. The order dismissing the complaint is vacated and the claims alleged returned to the District Court for further proceedings consistent herewith. *363 Vacated and remanded. Judges COZORT and LEWIS concur. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1228702. Public record. Not legal advice.