{ "id": 8434676, "name": "TRACY POWELL TOOMER, ANDREA POWELL KEEFE, and ERICA RENEE CLARK, Plaintiffs v. BRANCH BANKING AND TRUST COMPANY, as Trustee under the Will of Joan Brown Williamson and as successor-by-merger to UNITED CAROLINA BANK, as Executor of the Estate of Joan Brown Williamson and Trustee under the Will of Joan Brown Williamson, Defendant", "name_abbreviation": "Toomer v. Branch Banking & Trust Co.", "decision_date": "2005-06-21", "docket_number": "No. COA04-599", "first_page": "58", "last_page": "70", "citations": [ { "type": "official", "cite": "171 N.C. App. 58" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "610 S.E.2d 717", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632584 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/610/0717-01" ] }, { "cite": "359 N.C. 286", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12632578, 3801892, 12632580, 12632581, 3798472, 12632587, 3796173, 3795856, 3798673, 3798551, 3799833, 3794654 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/610/0715-04", "/nc/359/0286-07", "/se2d/610/0715-02", "/se2d/610/0715-03", "/nc/359/0286-04", "/se2d/610/0718-02", "/nc/359/0286-01", "/nc/359/0286-03", "/nc/359/0286-08", "/nc/359/0286-05", "/nc/359/0286-02", "/nc/359/0286-06" ] }, { "cite": "252 S.E.2d 231", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "234", "parenthetical": "\"The purpose for requiring findings of fact and conclusions of law is to allow meaningful review by the appellate courts.\"" } ], "opinion_index": 0 }, { "cite": "40 N.C. App. 227", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549543 ], "year": 1979, "pin_cites": [ { "page": "231", "parenthetical": "\"The purpose for requiring findings of fact and conclusions of law is to allow meaningful review by the appellate courts.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/40/0227-01" ] }, { "cite": "63 S.E.2d 202", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "pin_cites": [ { "page": "206" } ], "opinion_index": 0 }, { "cite": "233 N.C. 109", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8599905 ], "year": 1951, "pin_cites": [ { "page": "114" } ], "opinion_index": 0, "case_paths": [ "/nc/233/0109-01" ] }, { "cite": "603 S.E.2d 147", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "155", "parenthetical": "quoting Vail v. Vail, 233 N.C. 109, 114, 63 S.E.2d 202, 206 (1951)" } ], "opinion_index": 0 }, { "cite": "166 N.C. App. 283", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8411288 ], "year": 2004, "pin_cites": [ { "page": "293", "parenthetical": "quoting Vail v. Vail, 233 N.C. 109, 114, 63 S.E.2d 202, 206 (1951)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/166/0283-01" ] }, { "cite": "454 S.E.2d 647", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "opinion_index": 0 }, { "cite": "339 N.C. 736", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2559053, 2559597, 2556144, 2559347, 2556376 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/339/0736-01", "/nc/339/0736-03", "/nc/339/0736-02", "/nc/339/0736-05", "/nc/339/0736-04" ] }, { "cite": "125 S.E.2d 359", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "pin_cites": [ { "page": "361" } ], "opinion_index": 0 }, { "cite": "257 N.C. 59", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565456 ], "year": 1962, "pin_cites": [ { "page": "62" } ], "opinion_index": 0, "case_paths": [ "/nc/257/0059-01" ] }, { "cite": "448 S.E.2d 832", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "837", "parenthetical": "quoting Trust Co. v. Willis, 257 N.C. 59, 62, 125 S.E.2d 359, 361 (1962)" } ], "opinion_index": 0 }, { "cite": "116 N.C. App. 448", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524584 ], "year": 1994, "pin_cites": [ { "page": "459", "parenthetical": "quoting Trust Co. v. Willis, 257 N.C. 59, 62, 125 S.E.2d 359, 361 (1962)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/116/0448-01" ] }, { "cite": "470 S.E.2d 341", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "343" } ], "opinion_index": 0 }, { "cite": "122 N.C. App. 493", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11918254 ], "year": 1996, "pin_cites": [ { "page": "495" } ], "opinion_index": 0, "case_paths": [ "/nc-app/122/0493-01" ] }, { "cite": "456 S.E.2d 833", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "340 N.C. 261", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790150, 790110, 790257, 790262, 790078 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/340/0261-02", "/nc/340/0261-04", "/nc/340/0261-05", "/nc/340/0261-03", "/nc/340/0261-01" ] }, { "cite": "290 S.E.2d 365", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "305 N.C. 395", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570211, 8570083, 8570149, 8570194, 8570168 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/305/0395-05", "/nc/305/0395-01", "/nc/305/0395-02", "/nc/305/0395-04", "/nc/305/0395-03" ] }, { "cite": "286 S.E.2d 566", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "570" } ], "opinion_index": 0 }, { "cite": "55 N.C. App. 523", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527592 ], "year": 1982, "pin_cites": [ { "page": "530" } ], "opinion_index": 0, "case_paths": [ "/nc-app/55/0523-01" ] }, { "cite": "452 S.E.2d 326", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "332" } ], "opinion_index": 0 }, { "cite": "117 N.C. App. 580", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526032 ], "pin_cites": [ { "page": "591" } ], "opinion_index": 0, "case_paths": [ "/nc-app/117/0580-01" ] }, { "cite": "61 S.E.2d 725", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1950, "pin_cites": [ { "page": "726" } ], "opinion_index": 0 }, { "cite": "232 N.C. 547", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8609186 ], "year": 1950, "pin_cites": [ { "page": "549" } ], "opinion_index": 0, "case_paths": [ "/nc/232/0547-01" ] }, { "cite": "488 S.E.2d 215", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "224", "parenthetical": "quoting Rhodes v. Jones, 232 N.C. 547, 549, 61 S.E.2d 725, 726 (1950)" } ], "opinion_index": 0 }, { "cite": "346 N.C. 650", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139442 ], "year": 1997, "pin_cites": [ { "page": "666", "parenthetical": "quoting Rhodes v. Jones, 232 N.C. 547, 549, 61 S.E.2d 725, 726 (1950)" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0650-01" ] }, { "cite": "535 S.E.2d 597", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "602" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 106", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12122230 ], "year": 2000, "pin_cites": [ { "page": "113" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0106-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-56", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "286 S.E.2d 561", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "565" } ], "opinion_index": 0 }, { "cite": "305 N.C. 136", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566292 ], "year": 1982, "pin_cites": [ { "page": "142" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0136-01" ] }, { "cite": "563 S.E.2d 563", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "355 N.C. 490", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220080, 220180, 220038, 220136 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/355/0490-02", "/nc/355/0490-01", "/nc/355/0490-04", "/nc/355/0490-03" ] }, { "cite": "558 S.E.2d 871", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "875" } ], "opinion_index": 0 }, { "cite": "148 N.C. App. 408", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9366323 ], "year": 2002, "pin_cites": [ { "page": "414" } ], "opinion_index": 0, "case_paths": [ "/nc-app/148/0408-01" ] }, { "cite": "577 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "414", "parenthetical": "Rule 12(b)(6)" } ], "opinion_index": 0 }, { "cite": "156 N.C. App. 503", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9191271 ], "year": 2003, "pin_cites": [ { "page": "507", "parenthetical": "Rule 12(b)(6)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/156/0503-01" ] }, { "cite": "217 S.E.2d 662", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "288 N.C. 252", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567714, 8567810, 8567783, 8567880, 8567852 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/288/0252-01", "/nc/288/0252-03", "/nc/288/0252-02", "/nc/288/0252-05", "/nc/288/0252-04" ] }, { "cite": "214 S.E.2d 800", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "802" } ], "opinion_index": 0 }, { "cite": "26 N.C. App. 29", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549074 ], "pin_cites": [ { "page": "32" } ], "opinion_index": 0, "case_paths": [ "/nc-app/26/0029-01" ] }, { "cite": "463 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "413" }, { "page": "413", "parenthetical": "Rule 12(c)" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 689", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917626 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "691" }, { "page": "691" } ], "opinion_index": 0, "case_paths": [ "/nc-app/120/0689-01" ] }, { "cite": "481 S.E.2d 336", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "338" } ], "opinion_index": 0 }, { "cite": "125 N.C. App. 386", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11867926 ], "year": 1997, "pin_cites": [ { "page": "389" } ], "opinion_index": 0, "case_paths": [ "/nc-app/125/0386-01" ] }, { "cite": "558 S.E.2d 490", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "494", "parenthetical": "citation omitted" }, { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "355 N.C. 161", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220182 ], "year": 2002, "pin_cites": [ { "page": "166", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0161-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-52", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 5, "pin_cites": [ { "page": "(1)" }, { "page": "(1)" }, { "page": "(1)" }, { "page": "(1)" }, { "page": "(1)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1120, "char_count": 28303, "ocr_confidence": 0.754, "pagerank": { "raw": 6.820845731721901e-07, "percentile": 0.9640299492364227 }, "sha256": "4a227ca357b6dc7485ead3631ed9dfb6f4b5a85cfff1734771831cc71565f68c", "simhash": "1:e14d52b2353d66c6", "word_count": 4702 }, "last_updated": "2023-07-14T21:08:31.744997+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge ELMORE concur." ], "parties": [ "TRACY POWELL TOOMER, ANDREA POWELL KEEFE, and ERICA RENEE CLARK, Plaintiffs v. BRANCH BANKING AND TRUST COMPANY, as Trustee under the Will of Joan Brown Williamson and as successor-by-merger to UNITED CAROLINA BANK, as Executor of the Estate of Joan Brown Williamson and Trustee under the Will of Joan Brown Williamson, Defendant" ], "opinions": [ { "text": "McCULLOUGH, Judge.\nPlaintiffs appeal from an order granting defendant\u2019s motion to dismiss and motion for judgment on the pleadings. We affirm.\nI.\nPlaintiffs Tracy Powell Toomer, Andrea Powell Keefe, and Erica Renee Clark are the children of the late Joan Brown Williamson, who died testate on 30 April 1982. Williamson\u2019s Will created three equal and separate trusts, one each for Tracy, Andrea, and Erica. In the Will, United Carolina Bank (UCB) was nominated executor of Williamson\u2019s estate and trustee of the trusts. The Will was admitted for probate in May 1982, at which time the superior court appointed UCB to be the executor of Williamson\u2019s estate. The superior court subsequently appointed UCB to be the trustee of each of the plaintiffs\u2019 trusts. Defendant Branch Banking and Trust Company (BB&T) is the successor-by-merger to UCB and has assumed UCB\u2019s liabilities.\nOn 31 July 2003, plaintiffs filed a complaint in which they purported to assert (1) claims by all plaintiffs against BB&T as successor-in-interest to UCB for constructive fraud; (2) claims by all plaintiffs against BB&T as successor-in-interest to UCB and as trustee under the Will for breach of fiduciary duty; (3) separate claims by Erica, Andrea, and Tracy against BB&T as successor-in-interest to UCB and as trustee under the Will for breach of fiduciary duty; and (4) claims by all plaintiffs against BB&T as successor-in-interest to UCB and as trustee under the Will for an accounting.\nThe complaint made the following pertinent factual allegations:\n1. Plaintiff Tracy Powell Toomer . . . attained the age of majority on June 20, 1990. . . .\n2. Plaintiff Andrea Powell Keefe ... attained the age of majority on March 2, 1994. . . .\n3. Plaintiff Erica Renee Clark ... attained the age of majority on February 3, 1999.\n16. In approximately February or March of 1994, Arthur L. Clark (\u201cClark\u201d) in his capacity as Erica\u2019s guardian, began a preliminary audit of UCB\u2019s accounting with respect to the common trust account that had been established by the Estate prior to the establishment of separate trusts for each of the Plaintiffs.\n17. On or about March 21, 1994, Clark completed his preliminary audit and advised the UCB Trust Officer, Richard H. Newton (\u201cNewton\u201d), of several apparent errors and/or anomalies in the valuation of certain assets belonging to one or more of the trusts as well as issues arising from trustee\u2019s fees and estate tax payments. In light of these errors and/or anomalies, Clark scheduled a meeting with Newton in April of 1994.\n18. Following a[n] April 11, 1994, meeting with Clark, UCB specifically agreed to do the following:\na) Review all fee calculations in relation to its admitted error in its accounting regarding the value of a tract of real property owned by the Estate known as the \u201cForeman Tract,\u201d as well as its other fee calculations based upon discrepancies between market value of trust holdings as identified for purposes of calculation of fees and market value as shown on trust account statements;\nb) Analyze and report upon the financial impact of the trustee\u2019s admitted error in the 1987 Fiduciary Income Tax Return, as well as make adjustments to Tracy\u2019s Trust for incorrect tax payments made by the trustee from 1990 through 1994;\nc) Review the method of allocation of timber sale expenses and proceeds among the Beneficiaries\u2019 accounts, as well as the valuation and distribution of the timber holdings following the division of the common trust account into separate accounts.\n19. By early May of 1994, UCB reported that it had corrected the initial inequality in distributions arising from the division of the common trust as well as the estate tax payment errors. However, Clark continued to correspond with UCB in May of 1994 regarding adjustments to its trustee fees and certain additional issues which were disclosed by his initial audit of the \u201cfarm account\u201d established by UCB.\n20. Following its own review of trustee fee calculations and tax accounting, UCB admitted in late May of 1994 that it had overcharged Tracy\u2019s Trust and Erica\u2019s Trust for trustee fees and had overpaid taxes on the sale of timber holdings in 1987 by nearly $23,000.00. According to correspondence from UCB Regional Trust Manager David V. Wyatt dated June 2, 1994, these errors were corrected by reimbursement to the Plaintiffs with interest on May 31, 1994. At that time, Mr. Wyatt also acknowledged certain additional errors had been made with respect to tax payments, income distributions, and other matters related to the farm account and reported that these errors had been corrected. All of these errors had been disclosed by Clark\u2019s May 1994 audit of the farm account.\n21. On June 8, 1994, UCB wrote in a letter to Clark, Andrea, and Tracy that UCB had conducted an \u201cextensive review\u201d of the three trusts and the farm account, which review disclosed additional errors including insurance payments that had been made out of the wrong account and misallocation of timber sales proceeds. According to David Wyatt, these errors were corrected in early June of 1994. However, Clark was not able to conduct any further audit of the Plaintiffs\u2019 trust accounts in 1994 due to health and family problems. Plaintiffs allege[] upon information and belief that Clark was only able to review approximately forty percent (40%) of the transactions related to the trusts created by the Will in the course of his 1994 audit.\n22. On February 7, 1999, four days after Erica\u2019s eighteenth birthday, Clark contacted Anthony C. Sessoms, Senior Vice-President for BB&T, regarding Erica\u2019s Trust. At that time, Clark requested that BB&T in its capacity as trustee provide information regarding the value of the assets in Erica\u2019s Trust as well as take steps to completely segregate the property accounting for Tracy\u2019s Trust, Andrea\u2019s Trust, and Erica\u2019s Trust. Upon information and belief, no action was taken by BB&T in response.\n23. On August 29, 2001, Erica sent a letter to Ann Smith, a trust officer with BB&T in Whiteville, North Carolina, advising that funds had been removed from Erica\u2019s Trust without the permission of either Erica or her guardians and demanding that such funds be replaced immediately with accrued interest.\n24. Upon information and belief, Erica further alleges as follows with respect to the removal of the funds described in the preceding paragraph:\na) The removal of the funds took place on April 16, 1986; April 15, 1987; April 22, 1988; and April 27, 1994.\nb) The total funds so removed were $14,388.73.\nc) All of the funds were deposited into Andrea\u2019s Trust.\nd) On each of the four occasions identified above on which funds were removed, a promissory note bearing interest at eight percent (8%), compounded annually, was issued in which Andrea\u2019s Trust was the promisor and Erica\u2019s Trust was the promisee.\n25. Upon information and belief, BB&T took no immediate action in response to Erica\u2019s August 29, 2001, letter.\n26. On February 12, 2002, Erica wrote a letter to BB&T President John Allison indicating that she had received no response to her August 29, 2001, letter. At that time, Erica also raised concerns regarding the combination of the farm holdings from each of the Plaintiffs\u2019 trust accounts into a single farm trust account.\n27. On March 18, 2002, Senior Vice President Betsy B. Davis (\u201cDavis\u201d) on behalf of BB&T provided a written response to Erica\u2019s August 29, 2001, and February 12, 2002, letters. In that response, BB&T admitted that the funds had been withdrawn from Erica\u2019s Trust in order to satisfy the tax obligations of Andrea\u2019s Trust. BB&T further advised that it would proceed with collection of the accrued interest and principal amounts due Erica\u2019s Trust upon the promissory notes in question, but \u201c[a]s there are no liquid assets to immediately satisfy the debt, we will need time to market the appropriate assets and raise the cash.\u201d\n28. Clark wrote to BB&T on March 20, 2002, indicating that Erica had granted Clark a power of attorney for purposes of handling her dispute with BB&T over administration of the Plaintiffs\u2019 trusts. Clark also requested a meeting to discuss a variety of issues, including without limitation the following:\na) All issues that had been raised by Clark\u2019s 1994 audit . . . but never addressed by UCB;\nb) The auditing procedures employed by BB&T\u2019s trust department to confirm the validity and accuracy of its trust accounting; and\nc) The basis for BB&T\u2019s failure to ensure payment was made to Erica upon the promissory notes described in Paragraph 24 of the Complaint upon her demand on August 29, 2001.\n29. On April 22, 2002, Clark provided Davis with a memorandum outlining some additional issues associated with three tobacco barns located upon the real property belonging to one or more of the Plaintiff[s] that were constructed, purchased, and/or moved utilizing funds from all three of the Plaintiffs\u2019 trust accounts. Clark requested that these issues also be discussed at any meeting between BB&T and Plaintiffs.\n30. On April 30, 2002, Clark, Erica, Andrea, and Andrea\u2019s guardians (Joe and Cheryl Powell) met with Davis and certain other representatives of BB&T to discuss the Plaintiffs\u2019 concerns regarding the administration of the trusts created under the Will. The issues raised by Plaintiffs at that meeting included not only the [foregoing] issues . . . , but also the following (among others):\na) Failing to obtain an accurate appraisal of the farm lands owned by the Estate at the time of Williamson\u2019s death in 1982. UCB commissioned an appraisal by Clyde Elliott, one of its own employees, which appraisal upon information and belief overstated the fair market value of the properties in question by as much as thirty percent (30%). As a consequence, Plaintiffs\u2019 inheritance tax liability was significantly increased and UCB collected inflated fees on Erica\u2019s Trust and Andrea\u2019s Trust from 1982 through 1989.\nb) Overvaluation of certain real property known as the \u201cForeman Tract,\u201d which continued until the error was detected by UCB in 1990. Due to this error, UCB collected inflated fees on Andrea\u2019s Trust and Erica\u2019s Trust from 1985 through 1990.\nc) Failing to accurately account for the harvest and sale of timber from the Plaintiffs\u2019 farm properties in 1987 by adjusting the value of those properties downward. This adjustment in value was not made until late 1989, and in the interim UCB collected trustee fees based upon inflated farm property values.\nd) In conjunction with revaluation of the farm properties pursuant to a new appraisal obtained in 1989, UCB erroneously assigned a value of $29,500.00 to certain real property generally known as the \u201cPinkney Street Lot,\u201d which was over twice the previous value of the property. This valuation error was corrected by UCB in 1990, but not before UCB had collected trustee fees for 1989 from Erica\u2019s Trust and Andrea\u2019s Trust.\ne) As part of the same reappraisal process in 1989 just described, UCB failed to adjust the value of a certain parcel of real property generally known as the \u201cZylphia Brown Farm\u201d from $51,438 to its reappraised value of $29,500.00. This error continued until 1994. As a consequence, UCB collected fees on an inflated property value from 1989 through 1994.\nf) The removal of funds from Andrea\u2019s Trust and Erica\u2019s Trust in 1986, 1987, 1988, and 1989, to pay taxes incurred by Tracy\u2019s Trust due to its ownership of certain real property generally known as the \u201cRailroad Farm.\u201d\ng) UCB erroneously removed several demand notes from Tracy\u2019s Trust on December 31, 1987, which error was corrected on December 31, 1988. However, prior to the correction, UCB collected trustees\u2019 fees based upon an inflated value for Tracy\u2019s Trust.\nh) On May 3, 1993, UCB removed $3,640.94 from Erica\u2019s Trust and transferred it to Andrea\u2019s Trust without creating an instrument to evidence the \u201cloan\u201d in either account. After this error was detected and reported to UCB by Clark in 1994, its trust officer represented to Clark that the money had been repaid to Erica\u2019s Trust in 1994. However, Clark discovered in 2002 that UCB had not in fact corrected this error.\n37. On October 22, 2002, Clark wrote a letter to BB&T\u2019s counsel in which he nominated Cheryl Powell to serve as the replacement trustee for BB&T. At that time, Clark also reminded BB&T that, contrary to the clear language of the Will, BB&T had failed to terminate Tracy\u2019s Trust when she reached the age of twenty-seven on June 20, 1999.\nBB&T filed an answer, motion to dismiss pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6), and motion for judgment on the pleadings pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(c). BB&T asserted, inter alia, that the applicable statutes of limitations barred plaintiffs\u2019 claims.\nIn an order entered 2 February 2004, the trial court concluded that plaintiffs\u2019 individual and collective claims for breach of fiduciary duty were barred by the three-year statute of limitations set forth in N.C. Gen. Stat. \u00a7 1-52(1) and that plaintiffs had not stated a claim for constructive fraud. Accordingly, the court granted BB&T\u2019s motions to dismiss and for judgment on the pleadings. From this order, plaintiffs now appeal.\nII.\nWe begin our analysis with the standard of review. \u201cOn a Rule 12(b)(6) motion to dismiss, the question is whether, as a matter of law, the allegations of the complaint, treated as true, state a claim upon which relief can be granted.\u201d Wood v. Guilford Cty., 355 N.C. 161, 166, 558 S.E.2d 490, 494 (2002) (citation omitted). Dismissal under Rule 12(b)(6) is proper if\n(1) the complaint on its face reveals that no law supports the plaintiff\u2019s claim; (2) the complaint on its face reveals the absence of facts sufficient to make a good claim; or (3) the complaint discloses some fact that necessarily defeats the plaintiff\u2019s claim.\nId. (citation omitted). \u201cA statute of limitations can provide the basis for dismissal on a Rule 12(b)(6) motion if the face of the complaint establishes that plaintiff\u2019s claim is so barred.\u201d Soderlund v. N.C. School of the Arts, 125 N.C. App. 386, 389, 481 S.E.2d 336, 338 (1997).\nN.C. Gen. Stat. \u00a7 1A-1, Rule 12(c) (2003) permits a party to move for judgment on the pleadings, after the filing of a responsive pleading, where the formal pleadings reveal that certain claims or defenses are baseless. Garrett v. Winfree, 120 N.C. App. 689, 691, 463 S.E.2d 411, 413 (1996).\nA motion for judgment on the pleadings pursuant to G.S. 1A-1, Rule 12(c), should not be granted unless \u201cthe movant clearly establishes that no material issue of fact remains to be resolved and that he is entitled to judgment as a matter of law. In considering a motion for judgment on the pleadings, the trial court is required to view the facts presented in the pleadings and the inferences to be drawn therefrom in the light most favorable to the nonmoving party.\u201d\nAmerican Bank & Trust Co. v. Elzey, 26 N.C. App. 29, 32, 214 S.E.2d 800, 802 (quoting 5 Wright & Miller, Federal Practice and Procedure \u00a7 1368 (1969)), cert. denied, 288 N.C. 252, 217 S.E.2d 662 (1975).\nThis court reviews de novo rulings on motions made pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6) and (c). See, e.g., Lea v. Grier, 156 N.C. App. 503, 507, 577 S.E.2d 411, 414 (2003) (Rule 12(b)(6)); Garrett, 120 N.C. App. at 691, 463 S.E.2d at 413 (Rule 12(c)).\nIII.\nThe first issue on appeal is whether plaintiffs\u2019 complaint asserts only claims for breach of fiduciary duty or whether the complaint also states claims for constructive fraud. Plaintiffs contend that their complaint includes claims for constructive fraud, which are governed by a ten-year statute of limitations. We do not agree.\n\u201cWhen determining the applicable statute of limitations, we are guided by the principle that the statute of limitations is not determined by the remedy sought, but by the substantive right asserted by plaintiffs.\u201d Baars v. Campbell Univ., Inc., 148 N.C. App. 408, 414, 558 S.E.2d 871, 875, disc. review denied, 355 N.C. 490, 563 S.E.2d 563 (2002). Allegations of breach of fiduciary duty that do not rise to the level of constructive fraud are governed by the three-year statute of limitations applicable to contract actions contained in N.C. Gen. Stat. \u00a7 1-52(1) (2003). See Tyson v. N.C.N.B., 305 N.C. 136, 142, 286 S.E.2d 561, 565 (1982) (holding that where defendant accepted positions as executor and trustee, which created the fiduciary duties allegedly breached, and defendant received commissions or fees as executor and trustee, \u201c[t]he overall transaction . . . [was] clearly contractual in nature ... and any failure to perform in compliance with the duties as a fiduciary [was] tantamount to a breach of contract.\u201d). However, \u201c[a] claim of constructive fraud based upon a breach of fiduciary duty falls under the ten-year statute of limitations contained in N.C. Gen. Stat. \u00a7 1-56 [2003].\u201d Nationsbank of N.C. v. Parker, 140 N.C. App. 106, 113, 535 S.E.2d 597, 602 (2000).\n\u201cIn order to maintain a claim for constructive fraud, plaintiffs must show that they and defendants were in a \u2018relation of trust and confidence . . . [which] led up to and surrounded the consummation of the transaction in which defendant is alleged to have taken advantage of his position of trust to the hurt of plaintiff.\u2019 \u201d Barger v. McCoy Hillard & Parks, 346 N.C. 650, 666, 488 S.E.2d 215, 224 (1997) (quoting Rhodes v. Jones, 232 N.C. 547, 549, 61 S.E.2d 725, 726 (1950)). \u201cImplicit in the requirement that a defendant \u2018[take] advantage of his position of trust to the hurt of plaintiff is the notion that the defendant must seek his own advantage in the transaction; that is, the defendant must seek to benefit himself.\u201d Id.\nIn the instant case, plaintiffs\u2019 complaint makes the following averments under the heading \u201cClaims for Constructive Fraud by all Plaintiffs\u201d:\n40. Plaintiffs, as the beneficiaries of trusts established under the Will, placed a special confidence in UCB during the time period that UCB served as trustee.\n41. UCB, by accepting the appointment as trustee by this Court, obligated itself to act in good faith and with due regard to the interests of Plaintiffs.\n42. By virtue of the foregoing, a fiduciary relationship was created between Plaintiffs and UCB which began on the date of.UCB\u2019s appointment as trustee in 1984 and continued until the date of its merger with BB&T in 1997.\n43. UCB utilized its fiduciary relationship with Plaintiffs, and more particularly its responsibility for management of the assets and liabilities of Plaintiffs\u2019 respective trusts, for improper financial gain at the expense of Plaintiffs. UCB\u2019s abuse of its fiduciary relationship with Plaintiffs includes, but is not limited to, the collection of inflated trustees\u2019 fees arising from the following errors that were discovered by Clark during his partial audit of the trust accounts in 1994:\na) The overvaluation of the Foreman tract. . .;\nb) The failure to adjust property values following the harvest and sale of timber .. .;\nc) Valuation errors arising from the Pinkney Street Lot and Zylphia Brown Farm . . . ; and\nd) The erroneous removal of several demand notes from Tracy\u2019s Trust on December 31, 1987 ....\n44. UCB also abused its fiduciary relationship with Plaintiffs by collecting trustees\u2019 fees based upon an inaccurate appraisal of Plaintiffs\u2019 farm lands by UCB\u2019s own employee in 1982, which appraisal overstated the value of the appraised properties and thus significantly increased the trustees\u2019 fees which UCB was able to charge. This misconduct was discovered by Clark in March or April of 2002.\nNoticeably absent is the required assertion that UCB sought to benefit itself. Indeed, plaintiffs\u2019 complaint characterizes UCB\u2019s behavior as \u201cerroneous.\u201d Accordingly, plaintiffs have not asserted claims for constructive fraud. As plaintiffs\u2019 complaint alleges only breach of fiduciary duty claims, the trial court properly ruled that all of plaintiffs\u2019 claims are governed by the three-year statute of limitations contained in N.C. Gen. Stat. \u00a7 1-52(1).\nThis assignment of error is overruled.\nIV.\nThe next issue on appeal is whether the trial court erred by dismissing all of plaintiffs\u2019 breach of fiduciary duty claims. We conclude that the trial court\u2019s dismissal must be affirmed because all but one of plaintiffs\u2019 breach of fiduciary duty claims are barred by the statute of limitations, and the remaining allegation of breach fails to. state a claim upon which relief may be granted.\nFor cases involving allegations that a trustee is in breach of its fiduciary duty, \u201c[t]he statute of limitations begins to run when the claimant \u2018knew or, [by] due diligence, should have known\u2019 of the facts constituting the basis for the claim.\u201d Pittman v. Barker, 117 N.C. App. 580, 591, 452 S.E.2d 326, 332 (quoting Hiatt v. Burlington Industries, Inc., 55 N.C. App. 523, 530, 286 S.E.2d 566, 570, disc. review denied, 305 N.C. 395, 290 S.E.2d 365 (1982)), disc. review denied, 340 N.C. 261, 456 S.E.2d 833 (1995). If the materials before the court present a factual question as to when a plaintiff knew or should have known of the facts giving rise to the claim, then this issue must be submitted to the jury. Dawn v. Dawn, 122 N.C. App. 493, 495, 470 S.E.2d 341, 343 (1996). Under North Carolina law, \u201c \u2018the statute of limitations begins to run against an infant. . . who is represented by a guardian at the time the cause of action accrues.\u2019 \u201d Bryant v. Adams, 116 N.C. App. 448, 459, 448 S.E.2d 832, 837 (1994) (quoting Trust Co. v. Willis, 257 N.C. 59, 62, 125 S.E.2d 359, 361 (1962)), disc. review denied, 339 N.C. 736, 454 S.E.2d 647 (1995). Therefore, if an infant is represented by a guardian, the statute of limitations for a breach of fiduciary duty claim begins to run when her guardian knew or should have known of the facts giving rise to the claim. See id.\nIn the instant case, the vast majority of the breaches asserted by plaintiffs occurred prior to Arthur Clark\u2019s \u201cpreliminary audit\u201d of the trust accounts in the spring of 1994. Clark\u2019s audit allegedly revealed a number of problems with the accounts, and at this point, plaintiffs were put on notice that there were possible problems with the administration of the trusts. As of that point, Tracy and Andrea had reached the age of majority, and Erica was being represented by a guardian. Accordingly, plaintiffs knew or should have known about any pre-1994 breaches within a reasonable amount of time following the 1994 audit. Thus, the three-year statute of limitations set forth in N.C. Gen. Stat. \u00a7 1-52(1) expired well prior to-filing of plaintiffs\u2019 complaint on 31 July 2003.\nFurther, nearly all of the indiscretions which plaintiffs allege BB&T committed within three years prior to the filing of the complaint involve BB&T\u2019s failure to \u201cinvestigate and correct\u201d the breaches of fiduciary duty for which recovery is barred by the statute of limitations. Such allegations are insufficient to revive plaintiffs\u2019 expired claims.\nWe note also that plaintiffs have averred that \u201cBB&T breached its fiduciary duty to Andrea by failing to distribute all of the assets in [her] Trust ... to her on March 2, 2003.\u201d Although this averment includes conduct which occurred within three years of the filing of plaintiffs\u2019 complaint, it should have been dismissed pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6) for failure to state a claim upon which relief may be granted.\nTo state a claim for breach of fiduciary duty, a plaintiff must allege that a fiduciary relationship existed and that the fiduciary failed to \u201c \u2018act in good faith and with due regard to [plaintiffs] interests^]\u2019 \u201d White v. Consol. Planning, Inc., 166 N.C. App. 283, 293, 603 S.E.2d 147, 155 (2004) (quoting Vail v. Vail, 233 N.C. 109, 114, 63 S.E.2d 202, 206 (1951)), disc. review denied, 359 N.C. 286, 610 S.E.2d 717 (2005). In the instant case, plaintiffs\u2019 complaint states that Arthur Clark nominated a replacement trustee for BB&T on 22 October 2002 and that BB&T ceased being the trustee of plaintiffs\u2019 trust accounts on 27 March 2003. The complaint fails to offer any explanation as to how delaying distribution of Andrea\u2019s trust assets for twenty-five days while a change of trustee was imminent constituted a failure to act in good faith and with due regard for Andrea\u2019s interests.\nThese assignments of error are overruled.\nV.\nThe final issue on appeal is whether the trial court improperly disposed of plaintiffs\u2019 claim for an accounting. Plaintiffs contend that the trial court erred by dismissing this claim and by failing to set forth the grounds for the dismissal. We disagree.\nPlaintiffs sought an accounting as an equitable remedy for the alleged breaches of fiduciary duty and constructive fraud. As the underlying allegations either fail to state a claim for relief or assert claims that are barred by the statute of limitations, the remedy sought is also unavailable. Moreover, given that the grounds for dismissal are readily discernible, we decline to remand for further conclusions of law from the trial court. See O\u2019Neill v. Bank, 40 N.C. App. 227, 231, 252 S.E.2d 231, 234 (1979) (\u201cThe purpose for requiring findings of fact and conclusions of law is to allow meaningful review by the appellate courts.\u201d).\nThis assignment of error is overruled.\nAffirmed.\nChief Judge MARTIN and Judge ELMORE concur.\n. Specifically, N.C. Gen. Stat. \u00a7 1-52(1) (2003) requires \u201can action . . . [u]pon a contract, obligation or liability arising out of a contract, express or implied,\u201d to be brought within three years of the time that the cause of action accrues.\n. N.C. Gen. Stat. \u00a7 1-56 (2003) provides that \u201c[a]n action for relief not otherwise limited . . . may not be commenced more than 10 years after the cause of action has accrued.\u201d", "type": "majority", "author": "McCULLOUGH, Judge." } ], "attorneys": [ "Erwin and Eleazer, P.A., by L. Holmes Eleazer, Jr., and Peter F. Morgan, for plaintiff appellants.", "Murchison, Taylor & Gibson, PLLC, by Andrew K. McVey and W. Berry Trice, for defendant appellee." ], "corrections": "", "head_matter": "TRACY POWELL TOOMER, ANDREA POWELL KEEFE, and ERICA RENEE CLARK, Plaintiffs v. BRANCH BANKING AND TRUST COMPANY, as Trustee under the Will of Joan Brown Williamson and as successor-by-merger to UNITED CAROLINA BANK, as Executor of the Estate of Joan Brown Williamson and Trustee under the Will of Joan Brown Williamson, Defendant\nNo. COA04-599\n(Filed 21 June 2005)\n1. Pleadings\u2014 dismissal \u2014 standards for appellate review\nAppellate review of Rule 12(b)(6) and 12(c) rulings is de novo; a statute of limitations can provide the basis for dismissal on a Rule 12(b)(6) motion; and Rule 12(c) permits a party to move for judgment on the pleadings if the complaint reveals that claims are baseless.\n2. Fraud\u2014 constructive \u2014 required allegation \u2014 benefit to defendant\nPlaintiffs did not adequately assert claims for constructive fraud arising from the management of a trust, and the trial court correctly applied the three-year statute of limitations for breach of fiduciary duty rather than the ten-year statute of limitations for constructive fraud, where plaintiffs did not assert that defendant sought benefit for itself.\n3. Fiduciary Relationship\u2014 breach of duty \u2014 statute of limitations \u2014 knowledge of facts by guardian\nThe statute of limitations for breach of fiduciary duty begins to run when an infant\u2019s guardian knew or should have known of the facts giving rise to the claim, and the trial court here did not err by dismissing plaintiffs\u2019 breach of fiduciary claims arising from management of a trust. Allegations that defendant failed to investigate and correct breaches of fiduciary duty did not revive the expired claims.\n4. Fiduciary Relationship\u2014 breach of duty \u2014 delayed distribution of trust\nAn allegation of breach of fiduciary duty in delaying distribution of a trust for twenty-five days while a change of trustee was imminent should have been dismissed for failure to state a claim.\n5. Damages and Remedies\u2014 underlying claims barred \u2014 remedy not available\nAn accounting was not available as a remedy for alleged breaches of fiduciary duty and constructive fraud in managing a trust where the underlying allegations did not sufficiently state a claim for relief or were barred by the statute of limitations.\nAppeal by plaintiffs from judgment entered 2 February 2004 by Judge Gregory A. Weeks in Columbus County Superior Court. Heard in the Court of Appeals 14 February 2005.\nErwin and Eleazer, P.A., by L. Holmes Eleazer, Jr., and Peter F. Morgan, for plaintiff appellants.\nMurchison, Taylor & Gibson, PLLC, by Andrew K. McVey and W. Berry Trice, for defendant appellee." }, "file_name": "0058-01", "first_page_order": 88, "last_page_order": 100 }