in the Court of Appeals 24 May 2016.
by Defendant from judgment entered 20 July 2015 by Judge
Ebern T. Watson, III, in Brunswick County, No. 14 CVS 967
Del Ré Law Firm, PLLC, by Benedict J. Del Ré,
Jr., for Plaintiff-Appellee.
Shipman & Wright, LLP, by Kyle J. Nutt, for
Lee Hewitt, individually and as trustee of the Robin Lee
Hewitt Revocable Trust ("Defendant"), appeals a
judgment resulting from a jury verdict in favor of Gail Lee
Hewitt ("Plaintiff") on a claim of constructive
fraud. Defendant contends the trial court erred in denying
her motions for directed verdict and her motion from judgment
notwithstanding the verdict (JNOV), or in the alternative,
motion for a new trial. After careful review, we hold that
the trial court erred in denying the motions for directed
verdict and JNOV, and reverse the judgment.
Factual & Procedural Background
appeal arises out of a 2010 sale of property located in
Brunswick County ("the Transaction") from Plaintiff
and her late husband, Douglas Hewitt ("Mr. Hewitt")
(collectively, "the Hewitts"), to their daughter,
Defendant. The evidence at trial, considered in the light
most favorable to Plaintiff, tends to show the following:
is one of the Hewitts' three daughters. At age sixteen,
Defendant left the family home. She lived in California for
twenty-seven years preceding the Transaction.
1987, the Hewitts purchased a tract of land in Supply, North
Carolina from Mr. Hewitt's mother, Mary Hewitt. The deed
explicitly reserved a life estate for Mary Hewitt in the
property. Following the death of Mary Hewitt, the Hewitts
built a new house ("the Property") on the land in
2009, the Hewitts decided to enter a home equity conversion
mortgage, also known as a reverse mortgage, on the Property.
Attorney Richard Green ("Green") and his closing
coordinator, Rhonda Caison ("Caison"), represented
the Hewitts in the closing. Green was "trusted
lawyer" and "friend" of Plaintiff, whom she
had known for fifteen years and felt "confident"
using. The Hewitts attended counseling sessions through a
federal government agency and received informational
documents regarding the loan's cost and the financial
implications. On 12 June 2009, the Hewitts entered into the
reverse mortgage from which they received a loan for $168,
000 from RBC Bank, borrowed against their equity in the
Property. At the time they entered into the reverse mortgage
closing, an $80, 989.52 lien on the Property with Chase Home
Mortgage was recorded.
closing on the reverse mortgage, the Hewitts received the
proceeds of the loan from RBC Bank, retired the debt to Chase
Home Bank, placed a new deed of trust on the record, and
signed a new promissory note securing the new loan. The note
was payable 2 May 2086. The loan covered the $8, 446 closing
costs, provided the Hewitts a loan advance of $25, 880.70,
and allowed them to remain in their home, without making
mortgage payments, for the rest of their lives. In the event
that either spouse lived away from the Property for over a
year, the Property was sold, or both spouses died, the
reverse mortgage would terminate and the loan would become
due. The Hewitts remained responsible for paying the
maintenance, insurance, and taxes on the Property.
time the Hewitts entered into the reverse mortgage, Defendant
lived in California. She allegedly told her parents by phone
that the reverse mortgage was a "big mistake."
However, Plaintiff admitted that she also received
"advice independent of [Defendant] on whether or not the
reverse mortgage was a good deal[.]"
or June of 2010, in a telephone conversation from her
residence in California, Defendant offered to buy the
Property from her parents. Defendant stated she could buy the
Property the following year, allegedly telling her parents
that "[the house] will still be in the family, "
"you'll be okay[, ]" and "[e]verything
will be the same except that I'll own the house." A
few months later, in September or October of 2010, Defendant
called her parents and said she was prepared to purchase the
investigated the value of the Property in anticipation of
selling it to Defendant. She consulted "four or
five" real estate agencies but never requested a
professional appraisal. Plaintiff referred Defendant to ...