# Faulkenbury v. Teachers' & State Employees' Retirement System

> Court of Appeals of North Carolina · January 5, 1993 · 108 N.C. App. 357

URL: https://www.frixlaw.com/law-library/cases/8891937

## Case

- **Full name:** DOROTHY M. FAULKENBURY, on behalf of herself and all others similarly situated v. TEACHERS' AND STATE EMPLOYEES' RETIREMENT SYSTEM OF NORTH CAROLINA, a corporation BOARD OF TRUSTEES TEACHERS' AND STATE EMPLOYEES' RETIREMENT SYSTEM OF NORTH CAROLINA, a body politic and corporate DENNIS DUCKER, Director of the Retirement Systems Division and Deputy Treasurer of the State of North Carolina (in his individual and official capacities) HARLAN E. BOYLES, Treasurer of the State of North Carolina and Chairman of the Board of Trustees Teachers' and State Employees' Retirement System of North Carolina (in his individual and official capacities) and STATE OF NORTH CAROLINA
- **Court:** Court of Appeals of North Carolina
- **Decided:** January 5, 1993
- **Citations:** 108 N.C. App. 357; 424 S.E.2d 420; 1993 N.C. App. LEXIS 100
- **Precedential status:** Published
- **Opinion:** Concurring in part by Walker
- **Judges:** Lewis, Walker, Wynn
- **Cited by:** 20 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/8891937

## Opinion text

Judge WALKER
concurring in part, dissenting in part.
I concur with the majority opinion in all aspects except that portion which addresses plaintiffs’ claim of breach of fiduciary duty, to which I respectfully dissent.
Plaintiffs argue that defendants Boyles, Ducker, the Retirement System, and the Board of Trustees of the Retirement System have breached and continue to breach the fiduciary duties owed to plaintiff and other class members by unlawful underpayment of monthly disability retirement benefits. Specifically, plaintiff Faulkenbury contends that “[defendants applied N.C. Gen. Stat. § 135-5 (d4) in such manner as to impair her vested contractual right to the retirement benefits under the system of calculation in place at the time of her vesting rather than applying the Act only to those whose benefits vested after the passage of the Act.” Without determining whether defendants are fiduciaries, however, the majority concluded that “plaintiffs have not stated a valid claim for relief in that they have not demonstrated a breach of the alleged fiduciary duty. Plaintiffs complain that defendants did not protect the plaintiffs’ interests by deliberately ‘remaining] silent about the vested rights of disability retirees and perfidiously failpng] to notify Plaintiff and class members of their vested rights.’ We find nothing in the statutes that requires such notification.”
It is my opinion that defendants, by nature of their relationship with plaintiff and class members, owed a fiduciary duty to plaintiff and class members which preceded any duties created by modification of the statute. Satisfaction of such a fiduciary duty requires more than mere notification to the beneficiaries but imposes a *378 “duty of the person in whom the confidence is reposed to exercise the utmost good faith . . . and to refrain from abusing such confidence by obtaining any advantage to himself at the expense of the confiding party.” Vail v. Vail, 233 N.C. 109, 114 , 63 S.E.2d 202, 206 (1951). (Citation omitted.) Communication is but one duty required by those who occupy the position of a fiduciary.
At this pleadings stage, I believe plaintiffs’ allegations are sufficient to establish a fiduciary relationship. I am unwilling to conclude that duties created by the statutes supersede those duties imposed by the fiduciary relationship. Therefore, I cannot agree with the majority that plaintiffs have failed to demonstrate a valid claim of breach of fiduciary duty based solely upon the language of the statute, and I would affirm the trial court’s denial of defendants’ motion to dismiss the complaint concerning this claim for relief.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8891937. Public record. Not legal advice.