in the Court of Appeals 16 November 2016.
by plaintiff from order entered 3 March 2016 by Judge John O.
Craig, III, in Forsyth County No. 15CVS7698 Superior Court.
Law Office of Michelle Vincler, by Michelle Vincler, for
E. Shives, PLLC, by David E. Shives, for
appeal presents the issues of whether (1) North Carolina law
recognizes a cause of action for tortious interference with
an expected inheritance by a potential beneficiary during the
lifetime of the testator; and (2) in cases where a living
parent has grounds to bring claims for constructive fraud or
breach of fiduciary duty such claims may be brought instead
by a child of the parent based upon her anticipated loss of
an expected inheritance. Teresa Kay Hauser
("Plaintiff") appeals from the trial court's 3
March 2016 order granting the motion to dismiss of Darrell S.
Hauser and Robin E. Whitaker Hauser (collectively
"Defendants") as to her claims for tortious
interference with an expected inheritance, constructive
fraud, and breach of fiduciary duty as well as her request
for an accounting. Because Plaintiffs claims for relief are
not legally viable in light of the facts she has alleged, we
affirm the trial court's order.
and Procedural Background
summarized the pertinent facts below using Plaintiffs own
statements from her complaint, which we treat as true in
reviewing the trial court's order granting a motion to
dismiss under Rule 12(b)(6). Feltman v. City of
Wilson, 238 N.C.App. 246, 247, 767 S.E.2d 615, 617
and Darrell S. Hauser ("Darrell") are the only
children of Hilda Hege Hauser ("Mrs. Hauser") and
her late husband, James Hauser ("Mr. Hauser").
Before his death, Mr. Hauser set up a trust (the
"Trust"), naming Edward Jones Investments as
trustee and listing Plaintiff, Darrell, and Mrs. Hauser as
the Trust's beneficiaries. On 31 December 1998, Mrs.
Hauser executed a will, devising all of her real and personal
property to Plaintiff and Darrell per stirpes in the event
that Mr. Hauser predeceased her. Her real property included a
residence located on Harper Road in Lewisville, North
Carolina (the "Harper Road Property"). The 1998
will also devised her residual estate to the trustee of the
Hilda Hege Hauser Revocable Trust Agreement.
March 2005, Mrs. Hauser executed a power of attorney, naming
Plaintiff as her attorney-in-fact. In late 2011,
Darrell's wife, Robin Hauser ("Robin"), began
caring for Mrs. Hauser. Mrs. Hauser's primary sources of
income at this time consisted of payments from the Trust and
her social security benefits. She also maintained checking
and savings accounts with Wells Fargo.
in December 2011, as a result of the exercise of undue
influence over Mrs. Hauser by Defendants, Mrs. Hauser began
transferring money from the Trust to her Wells Fargo accounts
and withdrawing cash from these accounts. Between 27 December
2011 and 24 April 2012, these transfers and withdrawals
totaled approximately $20, 000.
March 2012, Plaintiff "was alerted to questionable
transfers of funds from the Trust to [Mrs.] Hauser's
Wells Fargo accounts by a trustee at Edward Jones
Investments." Upon learning of these transactions,
Plaintiff transferred $12, 000 from Mrs. Hauser's Wells
Fargo account to Plaintiffs personal account pursuant to her
authority as Mrs. Hauser's attorney-in-fact.
July 2012, Mrs. Hauser revoked the 8 March 2005 power of
attorney naming Plaintiff as her attorney-in-fact and
executed a new power of attorney (the "2012 Power of
Attorney"), appointing Darrell as her
attorney-in-fact. That same day, she executed a new will,
which devised the Harper Road Property to Darrell and left
the remainder of her real and personal property to Plaintiff
and Darrell in equal shares.
January 2015, Mrs. Hauser created the Hilda Hege Hauser
Irrevocable Trust (the "Irrevocable Trust"). On
that same day, she signed a quitclaim deed for the Harper
Road Property to Darrell and an attorney, George M. Cleland,
IV, as trustees of the Irrevocable Trust.
filed a complaint in Forsyth County Superior Court on 17
December 2015 alleging constructive fraud, breach of
fiduciary duty, tortious interference with an expected
inheritance, and undue influence. In her complaint, she
sought, inter alia, the return of any of Mrs.
Hauser's funds that had been fraudulently transferred
from her accounts, the removal of Darrell as Mrs.
Hauser's attorney-in-fact, the revocation of Mrs.
Hauser's July 2012 will, and an order requiring Darrell
to "render an accounting of his actions as [Mrs.]
Hauser's attorney-in-fact from July 12, 2012 to the date
of the filing of th[e] Complaint."
February 2016, Defendants filed a motion to dismiss pursuant
to Rule 12(b)(6) of the North Carolina Rules of Civil
Procedure and filed an answer twelve days later. A hearing
was held on Defendants' motion to dismiss before the
Honorable John O. Craig, III, on 29 February 2016. On 3 March
2016, the trial ...