{ "id": 4158054, "name": "R. KENNETH BABB, Public Administrator, CTA of the Estate of REBA BURTON NEWTON; R. KENNETH BABB, Public Administrator, CTA of the Estate of JERRY LEWIS NEWTON, JR.; R. KENNETH BABB, Special Trustee of the Trust established by JERRY LEWIS NEWTON, JR., under the Will of JERRY LEWIS NEWTON, JR., dated September 29,1992; R. KENNETH BABB, Special Trustee of the Trust established by JERRY LEWIS NEWTON, JR., under a certain Revocable Trust Agreement dated September 29, 1992; and R. KENNETH BABB, Special Trustee of the Trust established by REBA BURTON NEWTON, under a certain Revocable Trust Agreement dated September 29, 1992, Plaintiffs v. ANNE NEWTON GRAHAM; JERRY L. NEWTON, III; JOSEPH WESLEY NEWTON; PAUL JEFFREY NEWTON; JERRY L. NEWTON, III, Trustee under the Will of REBA BURTON NEWTON; JERRY L. NEWTON, III, Trustee under the inter vivos trust of REBA BURTON NEWTON; and JERRY L. NEWTON, III, Trustee under the Will of JERRY LEWIS NEWTON, JR., Defendants", "name_abbreviation": "Babb v. Graham", "decision_date": "2008-05-20", "docket_number": "No. COA07-848", "first_page": "463", "last_page": "487", "citations": [ { "type": "official", "cite": "190 N.C. App. 463" } ], "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": "623 S.E.2d 263", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634571, 12634572, 12634573 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/623/0263-01", "/se2d/623/0263-02", "/se2d/623/0263-03" ] }, { "cite": "614 S.E.2d 328", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633132 ], "weight": 4, "year": 2005, "pin_cites": [ { "page": "336" }, { "page": "335" }, { "page": "335" } ], "opinion_index": 0, "case_paths": [ "/se2d/614/0328-01" ] }, { "cite": "645 S.E.2d 770", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638613, 12638614 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/645/0770-01", "/se2d/645/0770-02" ] }, { "cite": "633 S.E.2d 874", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636508 ], "year": 2006, "pin_cites": [ { "page": "876-77", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/633/0874-01" ] }, { "cite": "625 S.E.2d 786", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635077 ], "weight": 2, "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/625/0786-01" ] }, { "cite": "619 S.E.2d 571", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633991 ], "weight": 4, "year": 2005, "pin_cites": [ { "page": "576-77" }, { "page": "573" } ], "opinion_index": 0, "case_paths": [ "/se2d/619/0571-01" ] }, { "cite": "625 S.E.2d 781", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635067, 12635068 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/625/0781-01", "/se2d/625/0781-02" ] }, { "cite": "615 S.E.2d 434", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633281, 12633282, 12633283, 12633284, 12633285, 12633286, 12633287, 12633288, 12633289, 12633290, 12633291, 12633292, 12633293, 12633294, 12633295, 12633296 ], "opinion_index": 0, "case_paths": [ "/se2d/615/0434-08", "/se2d/615/0434-01", "/se2d/615/0434-02", "/se2d/615/0434-03", "/se2d/615/0434-04", "/se2d/615/0434-05", "/se2d/615/0434-06", "/se2d/615/0434-07", "/se2d/615/0434-09", "/se2d/615/0434-10", "/se2d/615/0434-11", "/se2d/615/0434-12", "/se2d/615/0434-13", "/se2d/615/0434-14", "/se2d/615/0434-15", "/se2d/615/0434-16" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-293", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2007, "opinion_index": 0 }, { "cite": "511 S.E.2d 645", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "348 N.C. 693", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659970, 1659684, 1659689, 1659722, 1659881 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/348/0693-02", "/nc/348/0693-03", "/nc/348/0693-05", "/nc/348/0693-01", "/nc/348/0693-04" ] }, { "cite": "500 S.E.2d 99", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "104-05" } ], "opinion_index": 0 }, { "cite": "129 N.C. App. 321", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11649967 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc-app/129/0321-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-294", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2007, "opinion_index": 0 }, { "cite": "270 S.E.2d 542", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "544", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "49 N.C. App. 58", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519371 ], "year": 1980, "pin_cites": [ { "page": "60-61", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/49/0058-01" ] }, { "cite": "598 S.E.2d 570", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "590" } ], "opinion_index": 0 }, { "cite": "165 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8995613 ], "year": 2004, "pin_cites": [ { "page": "31" } ], "opinion_index": 0, "case_paths": [ "/nc-app/165/0001-01" ] }, { "cite": "373 S.E.2d 863", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "323 N.C. 476", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2562080, 2563931, 2565667, 2565971, 2563611 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/323/0476-05", "/nc/323/0476-01", "/nc/323/0476-02", "/nc/323/0476-03", "/nc/323/0476-04" ] }, { "cite": "370 S.E.2d 860", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1988, "pin_cites": [ { "page": "865" }, { "parenthetical": "quoting Bogert, The Law of Trusts and Trustees, section 543(V) (rev. 2d. ed. 1982)" }, { "page": "865" } ], "opinion_index": 0 }, { "cite": "91 N.C. App. 138", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524823 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "146" } ], "opinion_index": 0, "case_paths": [ "/nc-app/91/0138-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 6-21", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2007, "pin_cites": [ { "page": "(2)" } ], "opinion_index": 0 }, { "cite": "362 S.E.2d 780", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "321 N.C. 300", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2569187, 2568670, 2569723 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/321/0300-03", "/nc/321/0300-01", "/nc/321/0300-02" ] }, { "cite": "360 S.E.2d 801", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "804" } ], "opinion_index": 0 }, { "cite": "320 N.C. 738", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4727132 ], "pin_cites": [ { "page": "741-42" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0738-01" ] }, { "cite": "591 S.E.2d 870", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2004, "pin_cites": [ { "page": "893" } ], "opinion_index": 0 }, { "cite": "358 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2985361 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/nc/358/0001-01" ] }, { "cite": "442 F.2d 908", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 769514 ], "weight": 2, "year": 1971, "pin_cites": [ { "page": "912" } ], "opinion_index": 0, "case_paths": [ "/f2d/442/0908-01" ] }, { "cite": "650 F.2d 1144", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1240293 ], "year": 1981, "pin_cites": [ { "page": "1147" } ], "opinion_index": 0, "case_paths": [ "/f2d/650/1144-01" ] }, { "cite": "581 S.E.2d 415", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2003, "pin_cites": [ { "page": "423" }, { "page": "423" } ], "opinion_index": 0 }, { "cite": "357 N.C. 170", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491505 ], "year": 2003, "pin_cites": [ { "page": "178-79" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0170-01" ] }, { "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": 3, "pin_cites": [ { "page": "67" }, { "parenthetical": "providing that \"[a]n action for relief not otherwise limited by this subchapter may not be commenced more than 10 years after the cause of action has accrued.\"" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 1-52", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(1)" }, { "page": "(1)" } ], "opinion_index": 0 }, { "cite": "184 S.E.2d 268", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "273", "parenthetical": "quoting 7 Strong's North Carolina Index 2d, Wills, \u00a7 28, pp. 598-599" } ], "opinion_index": 0 }, { "cite": "279 N.C. 539", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571083 ], "year": 1971, "pin_cites": [ { "page": "547", "parenthetical": "quoting 7 Strong's North Carolina Index 2d, Wills, \u00a7 28, pp. 598-599" } ], "opinion_index": 0, "case_paths": [ "/nc/279/0539-01" ] }, { "cite": "605 S.E.2d 151", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "opinion_index": 0 }, { "cite": "359 N.C. 76", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3802610, 3799083 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/nc/359/0076-01", "/nc/359/0076-02" ] }, { "cite": "595 S.E.2d 190", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2004, "pin_cites": [ { "page": "196" }, { "page": "196" } ], "opinion_index": 0 }, { "cite": "164 N.C. App. 107", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8895838 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "118" } ], "opinion_index": 0, "case_paths": [ "/nc-app/164/0107-01" ] }, { "cite": "360 S.E.2d 92", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "320 N.C. 639", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4727169, 4731299, 4726774 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0639-01", "/nc/320/0639-03", "/nc/320/0639-02" ] }, { "cite": "356 S.E.2d 578", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "587" } ], "opinion_index": 0 }, { "cite": "319 N.C. 534", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4749057 ], "year": 1987, "pin_cites": [ { "page": "549" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0534-01" ] }, { "cite": "321 S.E.2d 135", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "311 N.C. 757", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4685647, 4681551, 4681655, 4686808, 4686175 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0757-05", "/nc/311/0757-01", "/nc/311/0757-04", "/nc/311/0757-03", "/nc/311/0757-02" ] }, { "cite": "317 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "4" }, { "page": "4-5" } ], "opinion_index": 0 }, { "cite": "69 N.C. App. 192", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525973 ], "weight": 2, "pin_cites": [ { "page": "198" }, { "page": "198-99" } ], "opinion_index": 0, "case_paths": [ "/nc-app/69/0192-01" ] }, { "cite": "360 N.C. 78", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3789190, 3790698, 3793132, 3793873, 3791767, 3790329, 3790458 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/360/0078-06", "/nc/360/0078-04", "/nc/360/0078-07", "/nc/360/0078-02", "/nc/360/0078-03", "/nc/360/0078-05", "/nc/360/0078-01" ] }, { "cite": "171 N.C. App. 58", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8434676 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "66-67" } ], "opinion_index": 0, "case_paths": [ "/nc-app/171/0058-01" ] }, { "cite": "577 S.E.2d 905", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2003, "pin_cites": [ { "page": "914" }, { "page": "914" }, { "page": "915" }, { "page": "917" } ], "opinion_index": 0 }, { "cite": "157 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9184628 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "21" } ], "opinion_index": 0, "case_paths": [ "/nc-app/157/0001-01" ] }, { "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": "256 S.E.2d 388", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1979, "pin_cites": [ { "page": "395" }, { "page": "537" }, { "page": "396" }, { "page": "537-38" }, { "page": "396", "parenthetical": "citations omitted" }, { "page": "396" }, { "page": "396" } ], "opinion_index": 0 }, { "cite": "297 N.C. 524", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571941 ], "weight": 3, "year": 1979, "pin_cites": [ { "page": "536" }, { "page": "537" }, { "page": "537" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0524-01" ] }, { "cite": "361 N.C. 355", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3743716, 3745094, 3745835, 3738194, 3742131 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/nc/361/0355-04", "/nc/361/0355-05", "/nc/361/0355-02", "/nc/361/0355-03", "/nc/361/0355-01" ] }, { "cite": "179 N.C. App. 390", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8236733 ], "year": 2006, "pin_cites": [ { "page": "392-93", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/179/0390-01" ] }, { "cite": "527 S.E.2d 679", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "684" } ], "opinion_index": 0 }, { "cite": "137 N.C. App. 311", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11093154 ], "year": 2000, "pin_cites": [ { "page": "318" } ], "opinion_index": 0, "case_paths": [ "/nc-app/137/0311-01" ] }, { "cite": "571 S.E.2d 65", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 2002, "pin_cites": [ { "page": "69" }, { "page": "68" }, { "page": "68-69" }, { "page": "69" }, { "page": "69" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 565", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250860 ], "year": 2002, "pin_cites": [ { "page": "570" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0565-01" ] }, { "cite": "588 S.E.2d 877", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "880", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "357 N.C. 645", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491605 ], "year": 2003, "pin_cites": [ { "page": "649", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0645-01" ] }, { "cite": "360 N.C. 176", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3792097, 3786019, 3792516, 3794027, 3794896, 3794548, 3789335, 3794396 ], "weight": 2, "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/360/0176-04", "/nc/360/0176-01", "/nc/360/0176-02", "/nc/360/0176-06", "/nc/360/0176-03", "/nc/360/0176-05", "/nc/360/0176-08", "/nc/360/0176-07" ] }, { "cite": "173 N.C. App. 530", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8353933 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "539-40" } ], "opinion_index": 0, "case_paths": [ "/nc-app/173/0530-01" ] }, { "cite": "360 N.C. 174", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3793766, 3788363, 3795889, 3789044, 3793752, 3794619, 3788252, 3795613 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/360/0174-03", "/nc/360/0174-08", "/nc/360/0174-05", "/nc/360/0174-07", "/nc/360/0174-06", "/nc/360/0174-02", "/nc/360/0174-01", "/nc/360/0174-04" ] }, { "cite": "171 N.C. App. 364", "category": "reporters:state", "reporter": "N.C. App.", "opinion_index": 0 } ], "analysis": { "cardinality": 1482, "char_count": 56926, "ocr_confidence": 0.743, "pagerank": { "raw": 1.1155200552610361e-07, "percentile": 0.572127564193897 }, "sha256": "843d00a1d0be5c79e94f3fd7f20e2b9a7b91409105070c1d4339f190a859a22d", "simhash": "1:43eff0267b2ddd72", "word_count": 9321 }, "last_updated": "2023-07-14T19:40:45.332452+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and CALABRIA concur." ], "parties": [ "R. KENNETH BABB, Public Administrator, CTA of the Estate of REBA BURTON NEWTON; R. KENNETH BABB, Public Administrator, CTA of the Estate of JERRY LEWIS NEWTON, JR.; R. KENNETH BABB, Special Trustee of the Trust established by JERRY LEWIS NEWTON, JR., under the Will of JERRY LEWIS NEWTON, JR., dated September 29,1992; R. KENNETH BABB, Special Trustee of the Trust established by JERRY LEWIS NEWTON, JR., under a certain Revocable Trust Agreement dated September 29, 1992; and R. KENNETH BABB, Special Trustee of the Trust established by REBA BURTON NEWTON, under a certain Revocable Trust Agreement dated September 29, 1992, Plaintiffs v. ANNE NEWTON GRAHAM; JERRY L. NEWTON, III; JOSEPH WESLEY NEWTON; PAUL JEFFREY NEWTON; JERRY L. NEWTON, III, Trustee under the Will of REBA BURTON NEWTON; JERRY L. NEWTON, III, Trustee under the inter vivos trust of REBA BURTON NEWTON; and JERRY L. NEWTON, III, Trustee under the Will of JERRY LEWIS NEWTON, JR., Defendants" ], "opinions": [ { "text": "McGEE, Judge.\nDefendant Jerry L. Newton, III appeals from orders and judgment of the trial court. For the reasons set forth below, we affirm.\nR. Kenneth Babb, as Public Administrator, CTA of the Estate of Reba Burton Newton and as Public Administrator, CTA of the Estate of Jerry Lewis Newton, Jr. (Plaintiffs) filed a complaint for declaratory judgment on 18 February 2002 against Anne Newton Graham; Jerry L. Newton, III; Joseph Wesley Newton; Paul Jeffrey Newton; Jerry L. Newton, III, as Trustee under the Will of Reba Burton Newton; Jerry L. Newton, III, as Trustee under the inter vivos trust of Reba Burton Newton; Jerry L. Newton, III, as Trustee under the Will of Jerry Lewis Newton, Jr.; and Gordon W. Jenkins. Plaintiffs alleged the following:\n[Plaintiffs\u2019 and [Defendants\u2019 rights, duties and obligations with regard to the aforementioned estates and trusts arise under and by virtue of authority of the Will of Reba Burton Newton, the Will of Jerry Lewis Newton, Jr., a Trust created by the Will of Reba Burton Newton, an inter vivos Trust created by Reba Burton Newton and a trust created by the Will of Jerry Lewis Newton, Jr. Copies of the Wills and Trusts are attached hereto, marked \u201cExhibit A\u201d (Reba Burton Newton Will), \u201cExhibit B\u201d (Jerry Lewis Newton, Jr. Will), \u201cExhibit C\u201d (Reba Burton Newton inter vivos Trust dated September 29, 1992) and \u201cExhibit D\u201d (Jerry Lewis Newton, Jr. inter vivos Trust dated September 29, 1992) and incorporated by reference as if fully set out herein.\nWe hereinafter refer to the above-listed trusts collectively as \u201cthe trusts.\u201d Plaintiffs alleged that Anne Newton Graham, Jerry L. Newton, III, Joseph Wesley Newton, and Paul Jeffrey Newton were beneficiaries of the estates of their parents, Reba Burton Newton and Jerry Lewis Newton, Jr., and were beneficiaries of the trusts created by their parents. Plaintiffs alleged several claims seeking to resolve all issues related to the administration of the trusts. Plaintiffs filed an amendment to their complaint on 3 October 2002.\nJerry L. Newton, III filed a motion for a more definite statement and a motion to dismiss dated 4 October 2002. Paul Jeffrey Newton and Anne Newton Graham filed an answer and cross-claim against Jerry L. Newton, III on 18 November 2002 and 9 December 2002, respectively. Joseph Wesley Newton filed an answer on 8 January 2003. Jerry L. Newton, III filed a response to the answer and cross-claim of Paul Jeffrey Newton and of Anne Newton Graham, along with a motion to dismiss those cross-claims, on 14 January 2003 and 4 February 2003, respectively. Jerry L. Newton, III also filed cross-claims against Paul Jeffrey Newton and Anne Newton Graham, to which they responded on 18 February 2003 and 11 March 2003, respectively.\nPlaintiffs filed a motion for partial summary judgment on 30 January 2004, and Anne Newton Graham filed a motion for partial summary judgment on 2 February 2004. Paul Jeffrey Newton and Joseph Wesley Newton each filed a motion for partial summary judgment on 3 February 2004. The trial court granted those motions in an order entered 8 March 2004. Jerry L. Newton III, individually, and as trustee of the Jerry L. Newton, Jr. trust, appealed and our Court affirmed the trial court\u2019s order. See Babb v. Graham, 171 N.C. App. 364, 615 S.E.2d 434 (unpublished), disc. review denied, 360 N.C. 174, 625 S.E.2d 781 (2005).\nIn separate proceedings, the trial court removed Jerry L. Newton, III as trustee of the trusts, and our Court affirmed his removal. See In re Estate of Newton, 173 N.C. App. 530, 619 S.E.2d 571, disc. review denied, 360 N.C. 176, 625 S.E.2d 786 (2005). R. Kenneth Babb was appointed as trustee of the trusts on 3 June 2004.\nR. Kenneth Babb, as trustee of the trusts, filed an amended complaint in the present case on 23 June 2006. Anne Newton Graham, Joseph Wesley Newton, and Paul Jeffrey Newton gave written consent to the filing of the amended complaint on 22 June 2006. The amended complaint, like Plaintiffs\u2019 original complaint, sought to determine the rights, duties, and obligations of the parties regarding the trusts. Plaintiffs alleged in their amended complaint that Jerry L. Newton, III, as trustee of the trusts, had failed to distribute the assets of the trusts to Anne Newton Graham, Jerry L. Newton, III, Joseph Wesley Newton, and Paul Jeffrey Newton, notwithstanding the provisions of the trusts that required distribution upon the death of Reba Burton Newton.\nJerry L. Newton, III filed an answer to Plaintiffs\u2019 amended complaint on 25 August 2006 and raised several defenses and asserted a counterclaim. Anne Newton Graham filed an answer to Plaintiffs\u2019 amended complaint on 29 August 2006. She asserted cross-claims against Jerry L. Newton, III for breach of fiduciary duty, constructive fraud, an accounting, and punitive damages. Joseph Wesley Newton filed an answer to Plaintiffs\u2019 amended complaint on 29 August 2006. He asserted cross-claims against Jerry L. Newton, III for breach of fiduciary duty, unfair and deceptive trade practices, an accounting, and punitive damages. Paul Jeffrey Newton filed an answer to Plaintiffs\u2019 amended complaint on 11 September 2006. He asserted cross-claims against Jerry L. Newton, III for breach of fiduciary duty, an accounting, and punitive damages.\nJerry L. Newton, III filed a motion for the recusal of Superior Court Judge Michael E. Helms on 25 September 2006, which was denied on 10 October 2006. Plaintiffs filed a notice of voluntary dismissal, without prejudice, of several of their claims on 6 October 2006. Joseph Wesley Newton filed an answer and amended cross-claim on 10 October 2006. He alleged cross-claims against Jerry L. Newton, III for breach of fiduciary duty, constructive fraud, unfair and deceptive trade practices, an accounting, and punitive damages. Jerry L. Newton, III filed answers to the cross-claims of Anne Newton Graham, Joseph Wesley Newton, and Paul Jeffrey Newton on 2 November 2006.\nAt trial, Plaintiffs, along with Anne Newton Graham, Joseph Wesley Newton, and Paul Jeffrey Newton (hereinafter Cross-Claimants) moved for directed verdict at the close of the presentation of their evidence, and the trial court,\nafter viewing the evidence, which included the testimony of Jerry Newton, III, in the light most favorable to ... Jerry L. Newton, III, finds as a matter of law, Jerry L. Newton, III breached his fiduciary duty to [C]ross-[C]laimants and committed constructive fraud while failing to distribute the proceeds of the . . . trusts[.]\nAccordingly, the trial court granted the motions for directed verdict and determined the following:\nPlaintiffs are entitled to recover $60,435 for trustee commissions paid to Jerry L. Newton, III from 1993-2003 and the [trial court] finds that these amounts may be deducted directly from Jerry L. Newton, Ill\u2019s share of the three trusts, to the extent of funds available. The [trial court] determines that the [C]ross[C]laimants, . . . Anne Newton Graham, Joseph Wesley Newton and Paul Jeffrey Newton are entitled to recover attorneys\u2019 fees incurred in the proceeding to remove Jerry L. Newton, III as trustee of the . . . trusts due to the breach of fiduciary duty and constructive fraud of Jerry L. Newton, III. Specifically, Anne Newton Graham is entitled to recover $55,604.89, Paul Jeffrey Newton is entitled to recover $55,000.00 and Joseph Wesley Newton is entitled to recover $52,722.50, and the [trial court] finds that these amounts may be deducted directly from Jerry L. Newton, Ill\u2019s share of the . . . trusts, to the extent of funds available [.]\nThe trial court also granted Plaintiffs\u2019 motion for directed verdict as to Jerry L. Newton, Ill\u2019s counterclaim.\nThe trial court submitted the remaining issues to a jury, and the jury determined the following issues, on which the trial court entered judgment:\n1. What amount is . . . Plaintiff [R.] Kenneth Babb, as Trustee, entitled to recover on behalf of the . . . trusts for breach of fiduciary duty and/or constructive fraud?\nANSWER: $34.507\n2. What amount of damages are . . . [C]ross-[C]laimants, Anne Newton Graham, Joseph Wesley Newton and Paul Jeff[rey] Newton entitled to recover for breach of fiduciary duty and/or constructive fraud?\nAMOUNT: $52.378\n3. Is Jerry L. Newton, III liable to . . . [C]ross-[C]laimants[] Anne Newton Graham, Joseph Wesley Newton and Paul Jeff[rey] Newton for punitive damages?\nANSWER: Yes\nIf you answer issue #3 \u201cyes\u201d, then answer issue #4. If you answer issue #3 \u201cno\u201d, then your deliberations are concluded.\n4. What amount of punitive damages, if any, does the jury in its discretion award to [C]ross-[C]laimants[] Anne Newton Graham, Joseph Wesley Newton and Paul Jeff[rey] Newton?\nAMOUNT: $500.000\nThe trial court ordered the following:\nIt is therefore hereby ORDERED, ADJUDGED and DECREED that.. . . Plaintiffs have and recover $94,942.00 from Jerry L. Newton III, and . . . [C]ross-[C]laimants have and recover $715,705.39 from Jerry L. Newton, III, for a total of $810,467.96. Further, interest shall be calculated at 8% per annum from February 18, 2002 on all amounts awarded to Plaintiffs and from October 10, 2006 on all non-punitive amounts awarded to [C]ross[C]laimants. Further, the costs of this action shall be taxed against Jerry L. Newton, III[.]\nThe trial court entered an order on 22 January 2007 granting relief from a clerical mistake to amend the total amount owed to Plaintiffs and Cross-Claimants from $810,467.96 to $810,647.39.\nJerry L. Newton, III filed notice of appeal on 25 January 2007 from the order denying his motion for recusal entered 10 October 2006, from the directed verdict order and judgment entered 29 December 2006, and from the order granting relief from a clerical mistake entered 22 January 2007. Jerry L. Newton, III also filed an \u201cundertaking to stay execution on money judgment\u201d on 25 January 2007, and deposited the amount of $810,647.39 with the trial court. Plaintiffs and Cross-Claimants filed a motion to tax costs dated 15 February 2007, seeking \u201can Order for the payment of costs, including reasonable attorneys\u2019 fees, in this action, against Jerry L. Newton, III.\u201d Jerry L. Newton, III filed a pro se response to the motion to tax costs dated 22 February 2007, seeking to have the motion dismissed. Plaintiffs and Cross-Claimants filed a supplement to their motion to tax costs on 26 February 2007.\nFollowing a hearing, the trial court entered an interim order on the motion to tax costs on 22 March 2007. The trial court ruled as follows:\n(1) The Motion to Tax Costs is properly before [the trial court] and [the trial court] has jurisdiction to hear said Motion. Execution on the money judgment in this case is not stayed because Jerry L. Newton, III has not fully complied with N.C.G.S. \u00a7 1-289, N.C.G.S. \u00a7 1-293, and Rule 62 of the North Carolina Rules of Civil Procedure and the Motion to Tax Costs is not stayed under N.C.G.S. \u00a7 1-294;\n(2) N.C.G.S. \u00a7 6-21(2) applies to the present action and allows [the trial court] to award costs in its discretion, including reasonable attorney\u2019s fees;\n(3) [The trial court] further finds that N.C.G.S. \u00a7 7A-305 and N.C.G.S. \u00a7 7A-314 are applicable to the present case and allow [the trial court], in its discretion, to award as costs fees for expert witnesses;\n([4]) The February 28, 2007 hearing is adjourned and will reconvene on April 17, 2007 for the purpose of the [trial court\u2019s] consideration of the reasonableness of attorney\u2019s fees and other costs sought by . . . Defendants and Cross-Claimants and . . . Plaintiffs; and\n([5]) On or before April 6, 2007 counsel for the parties shall serve on all other parties, any and all affidavits or other documents which they desire the [trial court] to consider at the hearing on April 17, 2007.\nJerry L. Newton, III filed a response to the motion to tax costs and to the interim order on 12 April 2007. He then filed a notice of appeal on 24 April 2007 from the interim order entered 22 March 2007 and from the final order on the motion to tax costs entered in open court on 17 April 2007. The trial court entered a written order on the motion to tax costs on 17 May 2007, ruling that \u201cthe costs set forth herein in the amount of $388,664.54, plus pre-judgment interest as set forth in the Directed Verdict Order and judgment filed on December 29, 2006, are hereby taxed against. . . Jerry L. Newton, III.\u201d On 16 June 2007, Jerry L. Newton, III filed notice of appeal from the final order entered in open court on 17 April 2007 and from the order on the motion to tax costs filed 17 May 2007.\nI.\nJerry L. Newton, III (hereinafter Appellant) first argues the trial court erred by denying his motion for recusal. Appellant contends that the trial court\u2019s impartiality could reasonably be questioned because the trial court, in separate proceedings, had removed Appellant as trustee of the trusts at issue in the present case. Specifically, Appellant relies upon the trial court\u2019s previous finding of fact detailing Appellant\u2019s \u201canimosity, hostility, disloyalty, and self-\u2019 interest\u201d toward Cross-Claimants. See In re Estate of Newton, 173 N.C. App. at 539-40, 619 S.E.2d at 576-77. Appellant also relies upon the trial court\u2019s previous conclusion of law that Appellant had \u201cviolate[d] his fiduciary duty through default and misconduct in the execution of his office as Trustee of said Trusts].]\u201d See id. at 534, 619 S.E.2d at 573.\n\u201c \u2018[T]he burden is upon the party moving for disqualification to demonstrate objectively that grounds for disqualification actually exist. Such a showing must consist of substantial evidence that there exists such a personal bias, prejudice or interest on the part of the judge that he would be unable to rule impartially.\u2019 \u201d\nLange v. Lange, 357 N.C. 645, 649, 588 S.E.2d 877, 880 (2003) (citations omitted). \u201cThus, the standard is whether \u2018grounds for disqualification actually exist.\u2019 \u201d Id.\nOur Court has made clear that \u201cknowledge of evidentiary facts gained by a trial judge from an earlier proceeding does not require disqualification.\u201d In re Faircloth, 153 N.C. App. 565, 570, 571 S.E.2d 65, 69 (2002). In Faircloth, the respondent in a termination of parental rights proceeding argued that the trial judge erred by refusing to recuse himself from the termination proceeding. Id. at 569, 571 S.E.2d at 68. The trial judge had previously presided over a \u201chearing on allegations that the four children were abused and neglected\u201d and the trial judge had previously adjudicated the four children abused and neglected. Id. However, on appeal our Court reversed the abuse and neglect adjudication on the ground that \u201cthe trial court applied an erroneous legal standard in denying [the respondent\u2019s] request to call three of the children as witnesses.\u201d Id. (citing In re Faircloth, 137 N.C. App. 311, 318, 527 S.E.2d 679, 684 (2000)). Therefore, the respondent argued that the trial judge in the termination proceeding \u201cwas biased and could not be impartial because he heard evidence against [the respondent] in the previous abuse and neglect proceeding without hearing from the three children [the respondent] sought to call as witnesses.\u201d Id. at 569, 571 S.E.2d at 68-69.\nOur Court rejected the respondent\u2019s argument, recognizing that \u201cknowledge of evidentiary facts gained by a trial judge from an earlier proceeding does not require disqualification.\u201d Id. at 570, 571 S.E.2d at 69. Our Court also rejected \u201cany contention that [the trial judge] should be disqualified because he earlier adjudicated the four children abused and neglected.\u201d Id. at 570-71, 571 S.E.2d at 69.\nSimilarly, Appellant argues that the trial judge should have been disqualified because of his rulings in the previous case. In the present case, as in Faircloth, we reject the contention that the trial judge should have been disqualified simply because he had previously ordered that Appellant be removed as trustee of the trusts. See id. We hold the trial court did not err by denying Appellant\u2019s motion for recusal.\nII.\nAppellant next argues the trial court erred by entering a directed verdict for Plaintiffs and Cross-Claimants on their claims for breach of fiduciary duty and constructive fraud. We disagree.\nWhen considering a motion for a directed verdict, a trial court must view the evidence in the light most favorable to the non-moving party, giving that party the benefit of every reasonable inference arising from the evidence. Any conflicts and inconsistencies in the evidence must be resolved in favor of the non-moving party. If there is more than a scintilla of evidence supporting each element of the non-moving party\u2019s claim, the motion for a directed verdict should be denied.\nJernigan v. Herring, 179 N.C. App. 390, 392-93, 633 S.E.2d 874, 876-77 (2006) (citations omitted), disc. review denied, 361 N.C. 355, 645 S.E.2d 770 (2007). Our Supreme Court has recognized that while rare, it is proper to direct a verdict for the party with the burden of proof \u201cif the evidence so clearly establishes the fact in issue that no reasonable inferences to the contrary can be drawn.\u201d Bank v. Burnette, 297 N.C. 524, 536, 256 S.E.2d 388, 395 (1979). The Court also stressed that \u201cthere are neither constitutional nor procedural impediments to directing a verdict for the party with the burden of proof where the credibility of movant\u2019s evidence is manifest as a matter of law.\u201d Id. at 537, 256 S.E.2d at 396. Although there is no general rule to determine when credibility is manifest, our Supreme Court has recognized that credibility is manifest in the following three situations:\n(1) Where non-movant establishes proponent\u2019s case by admitting the truth of the basic facts upon which the claim of proponent rests.\n(2) Where the controlling evidence is documentary and non-movant does not deny the authenticity or correctness of the documents.\n(3) Where there are only latent doubts as to the credibility of oral testimony and the opposing party has \u201cfailed to point to specific areas of impeachment and contradictions.\u201d\nId. at 537-38, 256 S.E.2d at 396 (citations omitted).\nIn order to maintain a claim for constructive fraud, [the] plaintiffs must show that they and [the] defendants were in a \u201crelation of trust and confidence . . . [which] led up to and surrounded the consummation of the transaction in which [the] defendants] [are] alleged to have taken advantage of [their] position of trust to the hurt of [the] plaintiff[s].\u201d\nBarger 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 [the] plaintiff\u2019 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 Compton v. Kirby, 157 N.C. App. 1, 577 S.E.2d 905 (2003), our Court held that the trial court properly submitted the issue of breach of fiduciary duty to the jury because the plaintiffs presented evidence in support of their allegation. Id. at 15, 577 S.E.2d at 914. Our Court also recognized that \u201ca breach of fiduciary duty amounts to constructive fraud.\u201d Id. at 16, 577 S.E.2d at 914. Accordingly, because we held that the \u201cplaintiffs established the existence of a fiduciary duty and a breach of that duty, we likewise conclude[d] the issue of constructive fraud was properly submitted to the jury.\u201d Id. at 16, 577 S.E.2d at 915.\nAppellant argues the trial court erred by entering a directed verdict because there was insufficient evidence that he sought to benefit himself by failing to distribute trust assets. We disagree. Appellant cites Toomer v. Branch Banking & Tr. Co., 171 N.C. App. 58, 614 S.E.2d 328, disc, review denied, 360 N.C. 78, 623 S.E.2d 263 (2005), where our Court held that the plaintiffs had failed to state a claim for constructive fraud because they failed to allege that the defendant\u2019s successor in interest sought to benefit itself. Id. at 68, 614 S.E.2d at 336.\nIn contrast to Toomer, Plaintiffs and Cross-Claimants in the present case presented sufficient evidence of constructive fraud. Based on Appellant\u2019s own testimony, the credibility of which is manifest, see Bank, 297 N.C. at 537, 256 S.E.2d at 396, Plaintiffs and Cross-Claimants demonstrated that Appellant, by his refusal to distribute trust assets, sought to benefit himself. Appellant testified that he refused to make distributions to the trust beneficiaries until he was paid for work he had done on his father\u2019s estate and until the accountings in his father\u2019s estate had been approved. However, Appellant admitted that his father\u2019s estate was a separate entity from the trusts. This evidence shows that Appellant sought to benefit himself by obtaining payment for the provision of services unrelated to the trusts before he made distributions under the trusts. Appellant also testified that he refused to make distributions to the trust beneficiaries until all litigation had been resolved, but acknowledged that the only litigation pending from June 1999 until 2002 was the action to remove Appellant as trustee. Appellant further testified that he failed to distribute trust assets to the trust beneficiaries because he believed that the trusts did not allow him to make partial distributions. However, Appellant admitted that he did not seek legal advice as to whether he could make a partial distribution under the trusts.\nMoreover, the plain language of the trusts required distribution of the trust assets upon the death of Reba Burton Newton. The will of Jerry Lewis Newton, Jr. provided:\nIf my wife, REBA BURTON NEWTON, shall survive me, then my Executor shall distribute the balance of my residuary estate to my Trustee to be held, administered and distributed in trust in accordance with the following provisions:\n6. Upon the death of my wife, the remaining principal of this Trust shall be divided into equal separate shares so as to provide one share for each of my then living children .... The share provided for a living child of mine shall be distributed to such child.\nThe Jerry Lewis Newton, Jr. inter vivos trust provided that the trust assets should go to Reba Burton Newton should she survive Jerry Lewis Newton, Jr., and then, if not otherwise disposed of by Reba Burton Newton, the trust assets would be distributed at her death as follows:\nThe balance of the principal of this Trust or all of the principal of this Trust, if no amount is distributed under subparagraph (1) shall be divided into equal separate shares so as to provide one share for each of my then living children .... The share provided for a living child of mine shall be distributed to such child.\nFinally, the Reba Burton Newton inter vivos trust provided:\nUpon [Reba Burton Newton\u2019s] death, the Trustee shall divide this Trust as then constituted into equal separate shares so as to provide one share for each then living child of [Reba Burton Newton] .... The share provided for a living child of [Reba Burton Newton] shall be distributed to such child.\nThese trusts, the credibility of which is manifest, see Bank, 297 N.C. at 537, 256 S.E.2d at 396, required Appellant to make distributions to the trust beneficiaries upon the death of Reba Burton Newton. However, as Appellant testified, he refused to do so for reasons entirely unrelated to the trusts. Moreover, Appellant continued to receive trustee fees during the period of time in which he served as trustee and, therefore, benefitted from his failure to distribute the trust assets. We hold that the above-cited evidence warranted the entry of a directed verdict for Plaintiffs and Cross-Claimants on their claims for breach of fiduciary duty and constructive fraud. Accordingly, the trial court did not err.\nAppellant also argues the trial court erred by directing a verdict because Appellant increased the value of the assets of the trusts. However, even if Appellant did so, that fact is irrelevant to the determination of whether Appellant failed to distribute the assets of the trusts for his own benefit.\nIn conjunction with the arguments already addressed in this section, Appellant also argues the trial court erred by \u201cfailing to instruct the jury that damages for breach of trust are such as to restore [the] trust to [the] position [the trust would have been in] had the breach of trust not occurred.\u201d However, despite Appellant\u2019s contention, the trial judge did instruct the jury as follows: \u201cI instruct you that damages for breach of trust are designed to restore the trust to the same position it would have been in had no breach occurred.\u201d Therefore, Appellant\u2019s argument is without merit.\nIII.\nAppellant next makes several arguments related to the award of punitive damages. Pursuant to N.C. Gen. Stat. \u00a7 1D-I5(a) (2007), punitive damages may be awarded \u201cif the claimant proves that the defendant is liable for compensatory damages and that one of the following aggravating factors was present and was related to the injury for which compensatory damages were awarded: (1) Fraud. (2) Malice. (3) Willful or wanton conduct.\u201d Our Court has recognized that \u201c[s]o long as there is \u2018some fact or circumstance\u2019 in evidence from which one of these elements may be inferred, the question of punitive damages is for the jury and not for the court.\u201d Ingle v. Allen, 69 N.C. App. 192, 198, 317 S.E.2d 1, 4 (citation omitted), disc. review denied, 311 N.C. 757, 321 S.E.2d 135 (1984). N.C. Gen. Stat. \u00a7 1D-5(4) (2007) provides: \u201c \u2018Fraud\u2019 does not include constructive fraud unless an element of intent is present.\u201d\nAppellant argues as follows:\nThe trial court committed reversible error in directing verdict of liability for punitive damages, and in submitting the issue of the amount of punitive damages, when there was conflicting evidence sufficient to go to the jury, including conflicting evidence as to the intent of [Appellant], as required by [N.C.G.S.] \u00a7 lD-5(4), in failing to distribute the proceeds of trusts, which creates a question for the Jury.\nAppellant\u2019s assertion that the trial court directed a verdict of liability for punitive damages is without factual support. The trial court did not direct a verdict for Cross-Claimants on Appellant\u2019s liability for punitive damages. Rather, the trial court submitted the,following issue to the jury, which the jury answered in the affirmative: \u201cIs Jerry L. Newton, III liable to . . . [C]ross-[C]laimants[] Anne Newton Graham, Joseph Wesley Newton and Paul Jeff[rey] Newton for punitive damages?\u201d Therefore, this argument is without merit.\nWe now address Appellant\u2019s argument that the trial court erred by submitting to the jury the issue of the amount of punitive damages. Appellant concedes there was sufficient evidence of intent for submission to the jury and, therefore, defeats his own argument. However, even without Appellant\u2019s concession, we hold there was sufficient evidence of intent, fraud, malice, and willful and wanton conduct by Appellant.\nAppellant admitted that he refused to distribute the assets of the trusts despite the plain language of the trusts that required distribution upon the death of Reba Burton Newton. Based upon the extensive evidence recited above, Appellant admitted that he refused to make such distributions for reasons wholly unrelated to the trusts. Appellant also testified that he held his siblings in contempt and described them as \u201ccontemptuous people.\u201d Appellant admitted that he had been convicted of assault on a female for slapping his sister, Anne Newton Graham, on the day of their mother\u2019s death, and also admitted that he had attempted to hit his brother, Paul Jeffrey Newton. Appellant further testified that \u201cwhen [my siblings] are hostile toward me, yes, I am hostile toward them.\u201d All of this evidence was sufficient to establish intent, fraud, malice, and willful and wanton conduct. See Ingle, 69 N.C. App. at 198-99, 317 S.E.2d at 4-5 (finding sufficient evidence of, inter alia, malice, reckless indifference, and wilfulness where the evidence showed that the \u201cdefendants distributed more than $130,000 from the trust, contrary to the will and contrary to the advice of counsel, converting trust assets to their own use at a time when they knew the plaintiff had received no payments under the trust for a period of eight years\u201d and where there were \u201caccusations on the part of both [the] defendants blaming [the] plaintiff for the death of the testator.\u201d). Moreover, in Compton, our Court recognized that \u201c[p]unitive damages are justified in cases of constructive fraud, N.C. Gen. Stat. \u00a7 1D-I5(a)(l) (2001), as long as \u2018some compensatory damages have been shown with reasonable certainty.\u2019 \u201d Compton, 157 N.C. App. at 21, 577 S.E.2d at 917 (quoting Olivetti Corp. v. Ames Business Systems, Inc., 319 N.C. 534, 549, 356 S.E.2d 578, 587, reh\u2019g denied, 320 N.C. 639, 360 S.E.2d 92 (1987)). In the present case, Cross-Claimants demonstrated compensatory damages with reasonable certainty.\nAppellant also argues that pursuant to N.C. Gen. Stat. \u00a7 ID-50, the trial court erred by failing to issue a written opinion regarding the reasons for the award of punitive damages. N.C. Gen. Stat. \u00a7 ID-50 (2007) provides as follows:\nWhen reviewing the evidence regarding a finding by the trier of fact concerning liability for punitive damages in accordance with G.S. 1D-I5(a), or regarding the amount of punitive damages awarded, the trial court shall state in a written opinion its reasons for upholding or disturbing the finding or award. In doing so, the court shall address with specificity the evidence, or lack thereof, as it bears on the liability for or the amount of punitive damages, in light of the requirements of this Chapter.\nAppellant\u2019s argument is foreclosed by Zubaidi v. Earl L. Pickett Enters., Inc., 164 N.C. App. 107, 595 S.E.2d 190, disc. review denied, 359 N.C. 76, 605 S.E.2d 151 (2004), where our Court held:\nAs the language of the statute does not require judicial review of a punitive damage award to be mandatory and we find no case law holding judicial review to be mandatory except in cases where the award exceeds the statutory limits, the trial court did not err in failing to make specific findings of fact and failing to set aside the punitive damages awarded within statutory limits.\nId. at 118, 595 S.E.2d at 196. In the present case, Appellant does not contend that the amount of punitive damages exceeded the statutory limit and it is clear, based upon our review, that the award did not exceed the allowable limit. See N.C. Gen. Stat. \u00a7 lD-25(b) (2007) (stating that \u201c[pjunitive damages awarded against a defendant shall not exceed three times the amount of compensatory damages or two hundred fifty thousand dollars ($250,000), whichever is greater.\u201d). Therefore, the trial court was not required to issue a written opinion regarding the award of punitive damages. See Zubaidi, 164 N.C. App. at 118, 595 S.E.2d at 196.\nIV.\nAppellant next argues that the claims of Plaintiffs and Cross-Claimants were barred by the express provisions of two of the trusts because Cross-Claimants did not issue written objections to Appellant\u2019s yearly accountings. The trust provisions of Reba Burton Newton\u2019s last will and testament provided as follows:\nThe Trustee shall render annual accounts of disbursements, income and principal to each beneficiary, designated and contingent, who is not under a legal disability and to the legal guardian of each beneficiary who is under a legal disability. The written approval of a beneficiary or his guardian shall be binding upon the beneficiary as to all matters and transactions covered by the account. In the event a beneficiary or his guardian does not render a letter of written approval or does not raise an objection within ninety (90) days after receipt of the annual account, his written approval shall be deemed to have been made, and the account approved as of the last day of the ninety (90) day period.\nThe trust provisions of Jerry Lewis Newton, Jr.\u2019s last will and testament similarly provided:\nThe Trustee shall render annual accounts of disbursements, income and principal to each beneficiary, designated and contingent, who is not under a legal disability and to the legal guardian of each beneficiary who is under a legal disability. The written approval of a beneficiary or his guardian shall be binding upon the beneficiary as to all matters and transactions covered by the account. In the event a beneficiary or his guardian does not render a letter of written approval or does not raise an objection within ninety (90) days after receipt of the annual account, his written approval shall be deemed to have been made, and the account approved as of the last day of the ninety (90) day period.\nSpecifically, Appellant argues that because he made annual accountings and because Cross-Claimants did not render written objections to those accountings, \u201call matters in dispute in this action are thereby approved and binding upon all Beneficiaries, to wit, barring the claims of Cross-Claimants and Plaintiffs.\u201d We disagree.\nIt is well settled that \u201c \u2018[a] phrase should not be given a significance which clearly conflicts with the evident intent and purpose of the testator as gathered from the four comers of the instrument!)]\u2019 \u201d Trust Co. v. Carr, 279 N.C. 539, 547, 184 S.E.2d 268, 273 (1971) (quoting 7 Strong\u2019s North Carolina Index 2d, Wills, \u00a7 28, pp. 598-599). In the case before us, as we discussed above, the trusts clearly required Appellant to distribute the assets upon the death of Reba Burton Newton. However, Appellant refused to do so. Although Cross-Claimants did not object to the contents of the accountings, nothing in the trust provisions cited above caused Cross-Claimants to waive their right to distribution of the assets of the trusts. Appellant\u2019s argument is without merit.\nV.\nAppellant also argues that under N.C. Gen. Stat. \u00a7 1-52(1), Plaintiffs\u2019 and Cross-Claimants\u2019 breach of fiduciary duty claims were barred by the three-year statute of limitations. It is true that \u201c[a]llegations 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).\u201d Toomer, 171 N.C. App. at 66-67, 614 S.E.2d at 335. \u201cHowever, \u2018[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].\u2019\u201d Id. at 67, 614 S.E.2d at 335 (quoting NationsBank of N.C. v. Parker, 140 N.C. App. 106, 113, 535 S.E.2d 597, 602 (2000)).\nThe case before us involves claims for constructive fraud based upon a breach of fiduciary duty, and we have already held that the trial court did not err by granting a directed verdict for Plaintiffs and Cross-Claimants on those claims. Therefore, we hold that Plaintiffs\u2019 and Cross-Claimants\u2019 claims were not barred by the applicable ten-year statute of limitations. See id; see also N.C. Gen. Stat. \u00a7 1-56 (2007) (providing that \u201c[a]n action for relief not otherwise limited by this subchapter may not be commenced more than 10 years after the cause of action has accrued.\u201d).\nEven assuming, arguendo, that the claims for breach of fiduciary duty were governed by a three-year statute of limitations, the breach of fiduciary duty claims were not time-barred under the continuing wrong doctrine. Our Supreme Court has recognized the continuing wrong doctrine as an exception to the general rule that a claim accrues when the right to maintain a suit arises. Williams v. Blue Cross Blue Shield of N.C., 357 N.C. 170, 178-79, 581 S.E.2d 415, 423 (2003). \u201cWhen this doctrine applies, a statute of limitations does not begin to run until the violative act ceases.\u201d Id. at 179, 581 S.E.2d at 423. Our Supreme Court also stated that \u201c \u2018[a] continuing violation is occasioned by continual unlawful acts, not by continual ill effects from an original violation.\u2019 \u201d Id. (quoting Ward v. Caulk, 650 F.2d 1144, 1147 (9th Cir. 1981)). In order to determine whether a continuing violation exists, we examine \u201c \u2018[t]he particular policies of the statute of limitations in question, as well as the nature of the wrongful conduct and harm alleged,\u2019 as set out in Cooper v. United States, 442 F.2d 908, 912 (7th Cir. 1971).\u201d Id.\nIn the present case, Cross-Claimants alleged, and Appellant testified, that Appellant continuously refused to make distributions under the trusts until he was removed as trustee on 3 June 2004. Therefore, Appellant\u2019s wrongful conduct, the refusal to make distributions, continued until he was removed as trustee on 3 June 2004. The three-year statute of limitations would not have begun to run until 3 June 2004 and, therefore, the breach of fiduciary claims in the case before us would not have been barred.\nVI.\nAppellant next argues that \u201cthe trial court err[ed] when [it] allowed [R. Kenneth Babb] to offer exhibits and testify as an expert, inconsistent with his answers to interrogatories and response to requests for production of documentsf.]\u201d However, R. Kenneth Babb did not answer untruthfully when he stated that he did not intend to call expert witnesses. Because of the unusual posture of this case, R. Kenneth Babb deferred to Cross-Claimants for the presentation of the evidence. Cross-Claimants then called R. Kenneth Babb as an expert witness. Appellant does not contend that the presentation of R. Kenneth Babb as an expert witness for Cross-Claimants was inconsistent with any of Cross-Claimants\u2019 discovery responses. In fact, Cross-Claimants were not served with discovery requests regarding the expert witnesses they intended to call. We overrule this assignment of error.\nVII.\nAppellant next argues \u201cthe trial court errfed] when [it] overruled objections of [Appellant] to the [trial court] allowing R. Kenneth Babb, acting as Plaintiff in this action, to defer presentation of evidence until [Cross-Claimants] had offered evidence.\u201d In support of his cursory argument, Appellant briefly cites Whitacre P\u2019ship v. Biosignia, Inc., 358 N.C. 1, 591 S.E.2d 870 (2004), for the proposition that \u201c[d]ue process requires that persons be given a fair opportunity to litigate their legal rights.\u201d Id. at 36, 591 S.E.2d at 893. However, this citation is irrelevant, as the Court cited this law when examining the \u201cthe rationale for applying the privity concept in the collateral estoppel context.\u201d Id.\nIt is well settled that a trial court has broad authority to \u201cstructure the trial logically and to set the order of proof. Absent an abuse of discretion, the trial judge\u2019s decisions in these matters will not be disturbed on appeal.\u201d In re Will of Hester, 320 N.C. 738, 741-42, 360 S.E.2d 801, 804 (citations omitted), reh\u2019g denied, 321 N.C. 300, 362 S.E.2d 780 (1987). Appellant has not demonstrated that the trial court abused its discretion, and we overrule this assignment of error.\nVIII.\nAppellant next argues that \u201cthe trial court err[ed] in directing verdict and entering judgment on the grounds that the directed verdict prevented [Appellant] from offering the defenses of good faith, prudent investor, and delegation of duties, by failing to charge on said defenses[.]\u201d However, the claims for constructive fraud were based upon Appellant\u2019s refusal, for his own benefit, to make distributions under the trusts when he was required to do so. We have already held that the trial court did not err by directing a verdict for Plaintiffs and Cross-Claimants. These affirmative defenses were irrelevant to the claims for constructive fraud based upon a breach of fiduciary duty. Therefore, the trial court did not err.\nIX.\nAppellant next argues the trial court erred by awarding to Cross-Claimants attorney\u2019s fees that were incurred by them in the separate proceedings for removal of Appellant as trustee. Appellant also argues the trial court erred by \u201cawarding as compensatory damages recovery of trustee commissions paid by the Trusts to [Appellant], which should have been addressed in the separate special proceeding[.]\u201d We disagree. N.C. Gen. Stat. \u00a7 6-21(2) (2007) provides as follows:\nCosts in the following matters shall be taxed against either party, or apportioned among the parties, in the discretion of the court:\n(2) Caveats to wills and any action or proceeding which may require the construction of any will or trust agreement, or fix the rights and duties of parties thereunder; provided, that in any caveat proceeding under this subdivision, the court shall allow attorneys\u2019 fees for the attorneys of the caveators only if it finds that the proceeding has substantial merit.\nThe statute further provides that \u201c [t]he word \u2018costs\u2019 as the same appears and is used in this section shall be construed to include reasonable attorneys\u2019 fees in such amounts as the court shall in its discretion determine and allow[.]\u201d Id. Moreover, in In re Trust Under Will of Jacobs, 91 N.C. App. 138, 370 S.E.2d 860, disc. review denied, 323 N.C. 476, 373 S.E.2d 863 (1988), our Court recognized that \u201cdamages for breach of trust are designed to restore the trust to the same position it would have been in had no breach occurred.\u201d Id. at 146, 370 S.E.2d at 865. Our Court further stated that \u201cthe court may fashion its order \u2018to fit the nature and gravity of the breach and the consequences to the beneficiaries and trustee.\u2019 \u201d Id. (quoting Bogert, The Law of Trusts and Trustees, section 543(V) (rev. 2d. ed. 1982)). Accordingly, our Court held that the trial court\u2019s \u201corder mandating payment of costs, witness fees, and attorney\u2019s fees was a proper assessment of damages.\u201d Id.\nIn the case before us, the trial court awarded Cross-Claimants attorney\u2019s fees they incurred in the separate proceedings to remove Appellant as trustee. The trial court also awarded Plaintiffs the \u201ctrustee commissions paid to [Appellant] from 1993-2003[.]\u201d Appellant argues that these expenses should have been dealt with in the separate removal proceedings. However, it appears that the removal proceedings were confined to the issue of whether Appellant should be removed as trustee of the trusts; Plaintiffs and Cross-Claimants did not seek damages or costs in those proceedings. See In re Estate of Newton, 173 N.C. App. 530, 619 S.E.2d 571, disc. review denied, 360 N.C. 176, 625 S.E.2d 786 (2005). Therefore, Plaintiffs and Cross-Claimants appropriately sought recovery of these expenses in the present case. We hold that the award of attorney\u2019s fees and the award of trustee commissions were \u201cdesigned to restore the trust to the same position it would have been in had no breach occurred\u201d and that the awards \u201c \u2018fit the nature and gravity of the breach and the consequences to the beneficiaries and trustee.\u2019 \u201d See In re Trust Under Will of Jacobs, 91 N.C. App. at 146, 370 S.E.2d at 865 (quoting Bogert, \u00a7 543(V)). We overrule these assignments of error.\nX.\nAppellant also argues the trial court erred by allowing Plaintiffs\u2019 complaint and the cross-claims to be amended. Appellant\u2019s entire argument under this section is as follows: \u201cSaid pleadings were not proper under N.C. Gen. Stat. \u00a7 1A-1, Rule 12 and were filed without leave pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 15(a), and should be stricken.\u201d\nN.C. Gen. Stat. \u00a7 1A-1, Rule 15(a) (2007) provides that after a party has amended his pleading once as a matter of course, \u201ca party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.\u201d \u201cRule 15(a) contemplates liberal amendments to the pleadings, which should always be allowed unless some material prejudice is demonstrated.\u201d Stetser v. TAP Pharm. Prods., Inc., 165 N.C. App. 1, 31, 598 S.E.2d 570, 590 (2004). A party objecting to the filing of an amended pleading \u201chas the burden of satisfying the trial court that he would be prejudiced by the granting or denial of a motion to amend. The exercise of the court\u2019s discretion is not reviewable absent a clear showing of abuse thereof.\u201d Watson v. Watson, 49 N.C. App. 58, 60-61, 270 S.E.2d 542, 544 (1980) (citations omitted).\nIn the present case, Plaintiffs filed the amended complaint with the written consent of Anne Newton Graham, Paul Jeffrey Newton, and Joseph Wesley Newton. Plaintiffs also filed a motion to amend their complaint on 27 November 2006, seeking leave of court to file the amended complaint, although such motion was filed after the amended complaint. The trial court allowed the motion to amend. Appellant does not argue that he was prejudiced by the filing of the amended complaint and cross-claims. Moreover, Appellant does not argue that the trial court abused its discretion. We hold the trial court did not abuse its discretion and overrule this assignment of error.\nXI.\nAppellant argues the trial court erred by entering the interim order on the motion to tax costs on 22 March 2007 and by entering the final order on the motion to tax costs on 17 May 2007. Appellant contends the trial court lacked jurisdiction to enter these orders because Appellant had previously filed a notice of appeal from the trial court\u2019s earlier directed verdict order and judgment.\nN.C. Gen. Stat. \u00a7 1-294 (2007) provides:\nWhen an appeal is perfected as provided by this Article it stays all further proceedings in the court below upon the judgment appealed from, or upon the matter embraced therein; but the court below may proceed upon any other matter included in the action and not affected by the judgment appealed from.\nIn In re Will of Dunn, 129 N.C. App. 321, 500 S.E.2d 99, disc. review denied, 348 N.C. 693, 511 S.E.2d 645 (1998), our Court held:\nIn this case, both parties submitted petitions for costs and attorneys\u2019 fees with the intent that the court would rule on the matter. The trial court\u2019s decision to award costs and attorneys\u2019 fees was not affected by the outcome of the judgment from which caveator appealed; therefore, the trial court could properly proceed to rule upon the petitions for costs and attorneys\u2019 fees after notice of appeal had been filed and served.\nId. at 329-30, 500 S.E.2d at 104-05.\nIn the directed verdict order and judgment entered in the case before us, the trial court ordered that \u201cthe costs of this action shall be taxed against [Appellant.]\u201d Therefore, the parties were aware that the trial court had ordered that costs be taxed against Appellant and that the trial court would thereafter specifically determine the amount of the costs. We hold that the judgment from which Appellant appealed was not affected by the interim order and final order on the motion to tax costs. Accordingly, the trial court retained jurisdiction to enter the challenged orders.\nXII.\nAppellant also argues the trial court erred by failing to order a stay of execution on the money judgment. In its interim order on the motion to tax costs, the trial court stated as follows: \u201cExecution on the money judgment in this case is not stayed because [Appellant] has not fully complied with N.C.G.S. \u00a7 1-289, N.C.G.S. \u00a7 1-293, and Rule 62 of the North Carolina Rules of Civil Procedure[.]\u201d\nNorth Carolina Rule of Civil Procedure 62(d) provides: \u201cWhen an appeal is taken, the appellant may obtain a stay of execution, subject to the exceptions contained in section (a), by proceeding in accordance with and subject to the conditions of G.S. 1-289, G.S. 1-290, G.S. 1-291, G.S. 1-292, G.S. 1-293, G.S. 1-294, and G.S. 1-295.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 62(d) (2007). Pursuant to N.C. Gen. Stat. \u00a7 l-289(a) (2007),\n[i]f the appeal is from a judgment directing the payment of money, it does not stay the execution of the judgment unless a written undertaking is executed on the part of the appellant, by one or more sureties, to the effect that if the judgment appealed from, or any part thereof, is affirmed, or the appeal is dismissed, the appellant will pay the amount directed to be paid by the judgment, or the part of such amount as to which the judgment shall be affirmed, if affirmed only in part, and all damages which shall be awarded against the appellant upon the appeal, except as provided in subsection (b) of this section.\nIn the present case, Appellant deposited the sum of $810,647.39 with the clerk of court. However, the directed verdict order and judgment from which he appealed provided that \u201cinterest shall be calculated at 8% per annum from February 18, 2002 on all amounts awarded, to Plaintiffs and from October 10, 2006 on all non-punitive amounts awarded to [C]ross-[C]laimants. Further, the costs of this action shall be taxed against [Appellant.]\u201d Appellant did not deposit these amounts with the clerk of court and, therefore, did not satisfy the requirements of N.C.G.S. \u00a7 1-289 to post a bond in \u201cthe amount directed to be paid by the judgment[.]\u201d See N.C.G.S. \u00a7 l-289(a).\nN.C. Gen. Stat. \u00a7 1-293 (2007) further provides that a trial court may stay execution of a judgment on special motion after \u201cthe undertaking requisite to stay execution on the judgment has been given, and the appeal perfectedf.]\u201d However, Appellant in the present case took no action following the insufficient deposit with the clerk of court and, therefore, did not proceed in accordance with N.C.G.S. \u00a7 1-293. We overrule these assignments of error.\nXIII.\nPlaintiff has failed to set forth, or cite authority in support of, his remaining assignments of error, and we deem them abandoned. See N.C.R. App. P. 28(b)(6) (stating that \u201c[assignments of error not set out in the appellant\u2019s brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned.\u201d).\nAffirmed.\nJudges WYNN and CALABRIA concur.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "R. Kenneth Babb for Plaintiffs-Appellees; Bennett & Guthrie, P.L.L.C., by Richard V. Bennett and Roberta B. King, for Defendant-Appellee Anne Graham Newton; Wilson & Coffey, LLP, by G. Gray Wilson, J. Chad Bomar, and Stuart H. Russell, for Defendant-Appellee Joseph Wesley Newton; and Bailey & Thomas, P.A., by Wesley Bailey, for Defendant-Appellee Paul Jeffrey Newton.", "Stephen E. Lawing for Defendant-Appellant Jerry L. Newton, III." ], "corrections": "", "head_matter": "R. KENNETH BABB, Public Administrator, CTA of the Estate of REBA BURTON NEWTON; R. KENNETH BABB, Public Administrator, CTA of the Estate of JERRY LEWIS NEWTON, JR.; R. KENNETH BABB, Special Trustee of the Trust established by JERRY LEWIS NEWTON, JR., under the Will of JERRY LEWIS NEWTON, JR., dated September 29,1992; R. KENNETH BABB, Special Trustee of the Trust established by JERRY LEWIS NEWTON, JR., under a certain Revocable Trust Agreement dated September 29, 1992; and R. KENNETH BABB, Special Trustee of the Trust established by REBA BURTON NEWTON, under a certain Revocable Trust Agreement dated September 29, 1992, Plaintiffs v. ANNE NEWTON GRAHAM; JERRY L. NEWTON, III; JOSEPH WESLEY NEWTON; PAUL JEFFREY NEWTON; JERRY L. NEWTON, III, Trustee under the Will of REBA BURTON NEWTON; JERRY L. NEWTON, III, Trustee under the inter vivos trust of REBA BURTON NEWTON; and JERRY L. NEWTON, III, Trustee under the Will of JERRY LEWIS NEWTON, JR., Defendants\nNo. COA07-848\n(Filed 20 May 2008)\n1. Judges\u2014 motion to recuse \u2014 denied\u2014no error\nIn an action arising from the administration of trusts, there was no error in the trial court\u2019s denial of a motion to recuse based on previous removal of the trustee.\n2. Fraud\u2014 constructive \u2014 administration of trusts \u2014 directed verdict\nThe trial court did not err by entering a directed verdict for plaintiffs and cross-claimants on claims for breach of fiduciary duty and constructive fraud where the trusts in issue required appellant trustee to make distributions, appellant sought to obtain payment for the provision of services unrelated to the trusts before he made distributions under the trusts, and he continued to receive fees while refusing to make distributions. Even if appellant increased the value of the assets of the trusts, that fact is irrelevant to the determination of whether appellant failed to distribute the assets to his own benefit.\n3. Damages\u2014 directed verdict \u2014 punitive damages\nIn an action arising from the administration of trusts, appellant\u2019s assertion that the trial court directed a verdict of liability for punitive damages was without factual support.\n4. Trusts\u2014 punitive damages \u2014 fraud and malice \u2014 evidence sufficient\nIn an action rising from the administration of trusts, there was sufficient evidence of intent, fraud, malice and willful and wanton conduct to submit the amount of punitive damages to the jury.\n5. Damages\u2014 punitive \u2014 written opinion not issued\nThe trial court did not err by failing to issue a written opinion about the reasons for a punitive damages award where the award did not exceed the allowable limit. N.C.G.S. \u00a7\u00a7 lD-25(b), ID-50.\n6. Trusts\u2014 distribution not made \u2014 written objections to accountings not made\nClaims relating to the administration of trusts were not barred by provisions of the trusts concerning written objections to yearly accountings. The trusts clearly required distribution of the assets, appellant refused to do so, and nothing in the cited provisions caused cross-claimants to waive their right to distribution of the assets.\n7. Trusts\u2014 constructive fraud \u2014 statute of limitations \u2014 continuing wrong doctrine\nClaims arising from the administration of trusts were not barred by the three-year statute of limitations. A claim of constructive fraud based upon a breach of fiduciary duty falls under the ten-year statute of limitations. Even assuming that these claims were governed by a three-year statute of limitations, appellant refused to make distributions required by the trusts, and the claims are saved by the continuing wrong doctrine.\n8. Discovery\u2014 plaintiff testifying as expert and offering exhibits \u2014 called by cross-claimant\nThe trial court did not err in an action arising from the administration of trusts by allowing plaintiff Babb to offer exhibits and testify as an expert. Although appellant argues that this was inconsistent with Babb\u2019s answer to' interrogatories and his response to requests for production of documents, Babb deferred to cross-claimants for the presentation of the evidence, and the cross-claimants then called Babb as an expert. The cross-claimants were not served with discovery requests about the expert witnesses they intended to call.\n9. Trials\u2014 deferral of evidence \u2014 discretion of court\nThe trial court did not abuse its discretion by allowing a plaintiff to defer presentation of evidence until the cross-claimants had presented their evidence. A trial court has broad authority to structure the trial logically and to set the order of proof.\n10. Trusts\u2014 constructive fraud \u2014 directed verdict \u2014 affirmative defenses irrelevant\nThe trial court did not err by granting a directed verdict on claims arising from constructive fraud in an action arising from the administration of trusts. Although appellant contended that he was prevented from offering certain affirmative defenses, those defenses were irrelevant to the claims for constructive fraud based upon a breach of fiduciary duty.\n11. Trusts\u2014 removal of trustee \u2014 separate action \u2014 award of attorney fees \u2014 recovery of commissions\nThe trial court did not err by awarding to cross-claimants attorney fees that were incurred in separate proceedings for removal of appellant as trustee, and the recovery of trustee commissions. Although appellant argues that these matters should have been dealt with in separate removal proceedings, the removal proceedings were confined to removal and did not involve damages or costs; the award of damages and costs in this action was designed to restore the trust to the position it would have occupied had no breach occurred.\n12. Pleadings\u2014 amendment \u2014 no abuse of discretion\nThe trial court did not abuse its discretion in an action arising from the administration of trusts by allowing amendment of plaintiffs\u2019 complaint and the cross-claims.\n13. Costs\u2014 determination of amount after notice of appeal\u2014 jurisdiction retained by trial court\nThe trial court retained jurisdiction to tax costs after notice of appeal was filed from a directed verdict order and judgment. The parties were aware that the court had ordered that costs be taxed against appellant and that the trial court would thereafter specifically determine the amount of the costs.\n14. Judgments\u2014 money judgment not stayed \u2014 required deposits with clerk not made\nThe trial court did not err by failing to order a stay of execution on a money judgment where appellant did not satisfy the statutory requirements by making the requisite deposit with the clerk.\nAppeal by Defendant Jerry L. Newton, III from order entered 10 October 2006, from order and judgment entered 29 December 2006, and from orders entered 22 January 2007, 22 March 2007, and 17 May 2007 by Judge Michael E. Helms in Superior Court, Forsyth County. Heard in the Court of Appeals 19 February 2008.\nR. Kenneth Babb for Plaintiffs-Appellees; Bennett & Guthrie, P.L.L.C., by Richard V. Bennett and Roberta B. King, for Defendant-Appellee Anne Graham Newton; Wilson & Coffey, LLP, by G. Gray Wilson, J. Chad Bomar, and Stuart H. Russell, for Defendant-Appellee Joseph Wesley Newton; and Bailey & Thomas, P.A., by Wesley Bailey, for Defendant-Appellee Paul Jeffrey Newton.\nStephen E. Lawing for Defendant-Appellant Jerry L. Newton, III." }, "file_name": "0463-01", "first_page_order": 495, "last_page_order": 519 }