N.C.P.I.—Civil 800.05

The (state number) issue reads:

“Did the defendant engage in constructive fraud 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, three

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 Duty; Explanation of Fiduciary.) 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 by using this

position of trust and confidence to bring about (identify transaction) to

the detriment of the plaintiff.3

And Third, that the defendant sought to benefit [himself] [herself]

[itself] in (identify transaction).4

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, that the

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

the detriment of the plaintiff, and that the defendant sought to benefit

[himself] [herself] [itself], 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.