N.C.P.I.—Civil 800.04

The (state number) issue reads:

“Did the defendant take advantage of a position of trust and

confidence to bring about (identify transaction)?”

On this issue the burden of proof is on the plaintiff. This means

that the plaintiff must prove, by the greater weight of the evidence, two

things:1

First, that a relationship of trust and confidence existed between

the plaintiff and the defendant such that the defendant had a duty to act

in good faith and with due regard for the plaintiff’s interests.

[(Use where a fiduciary relationship exists as a matter of law; for a

list of such relationships, see N.C.P.I.—Civil 800.03—Definition of

Fiduciary; Explanation of Fiduciary Relationship.) In this case, members

of the jury, the plaintiff and the defendant had a relationship of (name

fiduciary relationship, e.g., attorney and client, trustee and beneficiary,

guardian and ward, agent and principal, etc.). You are instructed that,

under such circumstances, (name fiduciary relationship) is a relationship

of trust and confidence.]

[(Use for other relationships where it is alleged that a fiduciary

relationship2 exists.) Such a relationship may exist in a variety of

circumstances. It is not necessary that this relationship be a technical or

legal relationship and it may be created by the parties’ conduct. Such a

relationship exists between the plaintiff and the defendant when the

defendant undertakes to act for the benefit of the plaintiff, thus causing

the plaintiff to place special faith, confidence, and trust in the defendant

undertaking to act in the plaintiff’s best interest.]

Second, that the defendant breached this duty to act in good faith

and with due regard for the plaintiff’s interests by using this position of

trust and confidence to bring about (identify transaction) to the

detriment of the plaintiff.3

Finally, as to the (state number) issue on which the plaintiff has

the burden of proof, if you find, by the greater weight of the evidence,

that there was a relationship of trust and confidence between the

plaintiff and the defendant such that the defendant had a duty to act in

good faith and with due regard for the plaintiff’s interests and that the

defendant breached this duty by bringing about (identify transaction) to

the detriment of the plaintiff, then it would be your duty to answer this

issue “Yes” in favor of the plaintiff.

If, on the other hand, you fail to so find, then it would be your duty

to answer this issue “No” in favor of the defendant.