James B. CURL, Jr., By and Through his Guardian Ad Litem, Fred CURL, Judy C. Carpenter Cummings, Patty C. Thurston, and Vicki C. Johnson
v.
Walter Jack KEY and wife, Margaret Key, William C. Ray, Trustee, and W. Marcus Short.
No. 8218SC1026.
Court of Appeals of North Carolina.
September 20, 1983.*820 Adams, Kleemeier, Hagan, Hannah & Fouts by John P. Daniel, Greensboro, for plaintiffs.
Short & Simpson by H. Marshall Simpson, Greensboro, for defendants.
WELLS, Judge.
Plaintiffs assign as error that the trial court found as facts that no confidential relationship existed between defendant and plaintiffs, and that defendant exerted no undue influence upon the plaintiffs. Plaintiffs argue there was insufficient evidence in the record to support the findings of fact.
Findings of fact made by the court in a nonjury trial have the force and effect of a jury verdict and are conclusive on appeal if there is evidence to support them, although the evidence might have supported findings to the contrary. Henderson County v. Osteen, 297 N.C. 113, 254 S.E.2d 160 (1979); Williams v. Insurance Co., 288 N.C. 338, 218 S.E.2d 368 (1975); Complex, Inc. v. Furst, 57 N.C.App. 282, 291 S.E.2d 296, disc. rev. denied, 306 N.C. 555, 294 S.E.2d 369 (1982).
Undue influence is defined as force or persuasion exerted "over the mind and will of another to the extent that the professed action is not freely done but is in truth the act of the one who procures the result." In re Estate of Loftin, 285 N.C. 717, 208 S.E.2d 670 (1974); Brown v. Brown, 171 N.C. 649, 88 S.E. 870 (1916). Undue influence is distinguished from fraud in that "[f]raud ... is characterized by false representations, concealment, or deception, whereas there may be undue influence although all facts are truly represented and full disclosure of them made." 25 Am. Jur.2d Duress and Undue Influence § 35 (1966), Link v. Link, 278 N.C. 181, 179 S.E.2d 697 (1971). Thus the two key elements of undue influence which must be proven are: (1) the victim was a person susceptible to influence and (2) a result indicating undue influence was exercised.
Factors relevant in determining if the victim was subject to undue influence and whether his will was actually overcome include the age, physical and mental condition of the victim, whether the victim had independent advice, whether the transaction was fair, whether there was independent consideration for the transaction, the relationship of the victim and alleged perpetrator, the value of the item transferred compared with the total wealth of the victim, whether the perpetrator actively sought the transfer and whether the victim was in distress or an emergency situation. 25 Am.Jur.2d supra, § 36.
*821 Assignment of the burden of proof in an undue influence case hinges upon whether a confidential or fiduciary relationship existed between the perpetrator and the victim. Where there is a confidential relationship between the parties, a presumption of fraud arises if the fiduciary benefits in any way from the relationship. Cross v. Beckwith, 16 N.C.App. 361, 192 S.E.2d 64 (1972). The burden is then upon the fiduciary to remove the suspicion by presenting proof that the transaction was a voluntary act of the alleged victim. McNeill v. McNeill, 223 N.C. 178, 25 S.E.2d 615 (1943). See also cases cited in Strong's N.C. Index Cancellation & Rescission § 9 (1976,1983 Supp.). Where there is no confidential or fiduciary relationship, the burden of proof remains upon the party alleging undue influence. Wessell v. Rathjohn, 89 N.C. 377 (1883), 25 Am.Jur.2d supra § 36.
Courts have been reluctant to define precisely what constitutes a confidential or fiduciary relationship.
The relation may exist under a variety of circumstances; it exists in all cases where there has been a special confidence reposed in one who in equity and good conscience is bound to act in good faith and with due regard to the interests of the one reposing confidence. `It not only includes all legal relations, such as attorney and client, broker and principal, executor or administrator and heir, legatee or devisee, factor and principal, guardian and ward, partners, principal and agent, trustee and cestui que trust, but it extends to any possible case in which a fiduciary relation exists in fact, and in which there is confidence reposed on one side, and resulting domination and influence on the other.' (Cites omitted.)
Abbitt v. Gregory, 201 N.C. 577, 160 S.E. 896 (1931), see also Link v. Link, supra.
In the case at bar, there was ample evidence to support the trial court's finding that no confidential relationship existed between defendant and plaintiffs. Evidence for the defendant showed that defendant was not a blood relative, that while he lived with the plaintiffs he paid rent and was treated as an ordinary tenant, and that he occupied no position of special trust or responsibility as to the plaintiffs.
There was also sufficient evidence presented that defendant exerted no undue influence over the plaintiffs. First, evidence for the defendant tended to show that plaintiffs Judy Cummings and Patty Thurston were not susceptible to undue influence. Plaintiffs were both adults when they signed the deed and both were better educated than defendant Key. There was no showing that either plaintiff was physically or mentally disabled in any way. Defendant, on the other hand, was almost illiterate, and was partially disabled as a result of the accident suffered in the plaintiffs' home. Although defendant was represented by an attorney, and plaintiffs were not, there was evidence that defendant's attorney explained the purpose and effect of the deed to plaintiffs.
Further, there is evidence that plaintiffs' free will was not actually overcome by defendant, because there was evidence the deed was transferred in settlement of defendant Key's threatened personal injury suit against plaintiffs. Because there was ample evidence to support the trial court's findings that no confidential relationship existed and no undue influence had been exerted by defendant, this assignment of error is overruled.
Plaintiffs do not present arguments in support of their other assignments of error in their brief. Therefore, those issues are not preserved for consideration by this court. Rule 28(b)(5) of the Rules of Appellate Procedure.
Affirmed.
HEDRICK and PHILLIPS, JJ., concur.