# State Ex Rel. Long v. Petree Stockton, L.L.P.

> Court of Appeals of North Carolina · May 19, 1998 · 129 N.C. App. 432

URL: https://www.frixlaw.com/law-library/cases/9574124

## Case

- **Full name:** STATE OF NORTH CAROLINA, on Relation of James E. Long, Commissioner of Insurance, AS LIQUIDATOR OF THE INVESTMENT LIFE INSURANCE COMPANY OF AMERICA, Plaintiff v. PETREE STOCKTON, L.L.P., a North Carolina Limited Liability Partnership; And JAMES M. ISEMAN, Defendants
- **Court:** Court of Appeals of North Carolina
- **Decided:** May 19, 1998
- **Citations:** 129 N.C. App. 432; 499 S.E.2d 790; 1998 N.C. App. LEXIS 643
- **Precedential status:** Published
- **Opinion:** Concurrence by Greene
- **Judges:** John, Greene, Walker
- **Cited by:** 27 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/9574124

## How later opinions describe it (automated extraction)

- holding that words like assisted, facilitated, aided and abetted, and knew did not suggest an agreement necessary for facilitating fraud
- discussing extension of statute of limitations after petition for liquidation

## Opinion text

Judge Greene concurring
with separate opinion.
I concur with the majority, but write separately to explain why I believe that Count III of the plaintiff’s complaint, which the plaintiff denominates as a claim for facilitating fraud, merely states a claim for negligence.
*449 A claim for relief should “state enough to give the substantive elements of [the] claim.” Sutton v. Duke, 277 N.C. 94, 105 , 176 S.E.2d 161, 167 (1970); W. Brian Howell, Shuford on North Carolina Civil Procedure § 9-3 (4th ed. 1992) (noting that Rule 9(b) requires the essential elements of fraud to be set forth affirmatively in the complaint); see also N.C.G.S. § 1A-1, Rule 9(b) (Supp. 1997) (requiring all fraud claims to be stated with particularity). An essential element of facilitating fraud is that the defendant and a third party agreed to defraud the plaintiff. Nye v. Oates, 96 N.C. App. 343, 346-47 , 385 S.E.2d 529, 531 (1989) (“[0]ur law . . . permits one defrauded to recover from anyone who facilitated the fraud by agreeing for it to be accomplished.” (emphasis added)).
In this case, the plaintiffs complaint alleges that the defendants “assisted, . . . facilitated, aided and abetted” Peterson and others in actions which the defendants “knew” would harm ILA, an entity which the defendants also represented, and that the defendants “intentionally did not advise ILA” of these actions. These allegations do not, however, state that the defendants agreed to defraud ILA, or that they had a “meeting of the minds” with Peterson or others to defraud ILA. See Black’s Law Dictionary 67 (6th ed. 1990) (defining “agreement” as a “meeting of two or more minds; a coming together in opinion or determination;. . . concord of understanding and intention between . . . parties with respect to . . . future facts or performances”). As the plaintiff’s complaint does not allege the essential element of agreement, the plaintiff has failed to allege a claim for facilitating fraud. Count III of the plaintiffs complaint therefore merely alleges a claim for negligence.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9574124. Public record. Not legal advice.