{ "id": 6813292, "name": "TED L. BISSETTE and wife, MARY HOLLY BISSETTE, individually and as cetuis que trust, Plaintiffs v. JENNIFER T. HARROD; BROOKS, PIERCE, MCLENDON, HUMPHREY & LEONARD, LLP, a North Carolina Limited Liability Partnership; all individually and as trustees, and SCOTT W. RICH and wife, LAURA K. RICH, Defendants", "name_abbreviation": "Bissette v. Harrod", "decision_date": "2013-03-19", "docket_number": "No. COA12-921", "first_page": "1", "last_page": "14", "citations": [ { "type": "official", "cite": "226 N.C. App. 1" } ], "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": "628 S.E.2d 427", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635587 ], "year": 2006, "pin_cites": [ { "page": "428", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/628/0427-01" ] }, { "cite": "652 S.E.2d 257", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639670, 12639671 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/652/0257-01", "/se2d/652/0257-02" ] }, { "cite": "361 N.C. 690", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3738880, 3744162, 3740355, 3737259, 3740972, 3736277, 12640024, 3743483, 3742814 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/nc/361/0690-05", "/nc/361/0690-01", "/nc/361/0690-04", "/nc/361/0690-02", "/nc/361/0690-06", "/nc/361/0690-07", "/se2d/654/0248-02", "/nc/361/0690-03", "/nc/361/0690-08" ] }, { "cite": "647 S.E.2d 98", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639028, 12639029, 12639030 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/647/0098-01", "/se2d/647/0098-02", "/se2d/647/0098-03" ] }, { "cite": "640 S.E.2d 427", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637660 ], "pin_cites": [ { "page": "428-29" } ], "opinion_index": 0, "case_paths": [ "/se2d/640/0427-01" ] }, { "cite": "709 S.E.2d 402", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "opinion_index": 0 }, { "cite": "448 S.E.2d 521", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "337 N.C. 691", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2549352, 2550922, 2550897, 2550744, 2552156 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/337/0691-03", "/nc/337/0691-05", "/nc/337/0691-04", "/nc/337/0691-02", "/nc/337/0691-01" ] }, { "cite": "412 S.E.2d 327", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "331" } ], "opinion_index": 0 }, { "cite": "330 N.C. 644", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2508834 ], "year": 1992, "pin_cites": [ { "page": "653" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0644-01" ] }, { "cite": "442 S.E.2d 363", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "365" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 632", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527893 ], "pin_cites": [ { "page": "634" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0632-01" ] }, { "cite": "695 S.E.2d 442", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "446" } ], "opinion_index": 0 }, { "cite": "364 N.C. 195", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4152823 ], "year": 2010, "pin_cites": [ { "page": "200" } ], "opinion_index": 0, "case_paths": [ "/nc/364/0195-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 6-21.5", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "411 S.E.2d 403", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "405-06" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 753", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524075 ], "year": 1991, "pin_cites": [ { "page": "757-58" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0753-01" ] }, { "cite": "171 S.E.2d 873", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "882" } ], "opinion_index": 0 }, { "cite": "276 N.C. 198", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560788 ], "year": 1970, "pin_cites": [ { "page": "211" } ], "opinion_index": 0, "case_paths": [ "/nc/276/0198-01" ] }, { "cite": "255 S.E.2d 399", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "404-05" } ], "opinion_index": 0 }, { "cite": "297 N.C. 336", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570254 ], "year": 1979, "pin_cites": [ { "page": "344" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0336-01" ] }, { "cite": "286 S.E.2d 779", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "783", "parenthetical": "internal citation omitted" }, { "page": "791" } ], "opinion_index": 0 }, { "cite": "305 N.C. 41", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565990 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "46", "parenthetical": "internal citation omitted" }, { "page": "59" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0041-01" ] }, { "cite": "515 S.E.2d 915", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "920", "parenthetical": "quoting Mims v. Mims, 305 N.C. 41, 46, 286 S.E.2d 779, 783 (1982) (internal citation omitted), and Cline v. Cline, 297 N.C. 336, 344, 255 S.E.2d 399, 404-05 (1979)" } ], "opinion_index": 0 }, { "cite": "133 N.C. App. 510", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11220440 ], "year": 1999, "pin_cites": [ { "page": "519", "parenthetical": "quoting Mims v. Mims, 305 N.C. 41, 46, 286 S.E.2d 779, 783 (1982) (internal citation omitted), and Cline v. Cline, 297 N.C. 336, 344, 255 S.E.2d 399, 404-05 (1979)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/133/0510-01" ] }, { "cite": "702 S.E.2d 300", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "opinion_index": 0 }, { "cite": "364 N.C. 434", "category": "reporters:state", "reporter": "N.C.", "year": 2010, "opinion_index": 0 }, { "cite": "373 S.E.2d 423", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "424-25", "parenthetical": "internal quotations and citations omitted" } ], "opinion_index": 0 }, { "cite": "323 N.C. 461", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2563456 ], "year": 1988, "pin_cites": [ { "page": "464", "parenthetical": "internal quotations and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0461-01" ] }, { "cite": "688 S.E.2d 825", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "827" }, { "page": "827" } ], "opinion_index": 0 }, { "cite": "202 N.C. App. 558", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4174815 ], "weight": 2, "pin_cites": [ { "page": "560-61" }, { "page": "562-63" } ], "opinion_index": 0, "case_paths": [ "/nc-app/202/0558-01" ] }, { "cite": "152 S.E. 2d 147", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "parenthetical": "other citation omitted" } ], "opinion_index": 0 }, { "cite": "269 N.C. 206", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562534 ], "year": 1967, "pin_cites": [ { "parenthetical": "other citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/269/0206-01" ] }, { "cite": "332 S.E.2d 51", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "62", "parenthetical": "citing Reidsville v. Burton, 269 N.C. 206, 152 S.E. 2d 147 (1967) (other citation omitted" } ], "opinion_index": 0 }, { "cite": "314 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4696910 ], "year": 1985, "pin_cites": [ { "page": "19-20", "parenthetical": "citing Reidsville v. Burton, 269 N.C. 206, 152 S.E. 2d 147 (1967) (other citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0001-01" ] }, { "cite": "917 P.2d 1152", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10342573 ], "year": 1996, "pin_cites": [ { "page": "1156" } ], "opinion_index": 0, "case_paths": [ "/p2d/917/1152-01" ] }, { "cite": "6 P.3d 1264", "category": "reporters:state_regional", "reporter": "P.3d", "case_ids": [ 11241932 ], "year": 2000, "pin_cites": [ { "page": "1266-1267", "parenthetical": "citing Restatement of Trusts 2d \u00a7 79, and quoting Hilbert v. Benson, 917 P.2d 1152, 1156 (Wyo. 1996)" } ], "opinion_index": 0, "case_paths": [ "/p3d/6/1264-01" ] }, { "cite": "477 B.R. 236", "category": "reporters:specialty", "reporter": "B.R.", "case_ids": [ 4149321 ], "year": 2012, "pin_cites": [ { "page": "244" } ], "opinion_index": 0, "case_paths": [ "/br/477/0236-01" ] }, { "cite": "23 S.E.2d 318", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1942, "pin_cites": [ { "page": "321" } ], "opinion_index": 0 }, { "cite": "222 N.C. 393", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630521 ], "year": 1942, "pin_cites": [ { "page": "397" } ], "opinion_index": 0, "case_paths": [ "/nc/222/0393-01" ] }, { "cite": "581 S.E.2d 148", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "151", "parenthetical": "internal citations omitted" } ], "opinion_index": 0 }, { "cite": "158 N.C. App. 457", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9188062 ], "year": 2003, "pin_cites": [ { "page": "461", "parenthetical": "internal citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/158/0457-01" ] }, { "cite": "40 S.E.2d 461", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1946, "pin_cites": [ { "page": "462-63", "parenthetical": "internal citation omitted" } ], "opinion_index": 0 }, { "cite": "227 N.C. 39", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8620628 ], "year": 1946, "pin_cites": [ { "page": "42", "parenthetical": "internal citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/227/0039-01" ] }, { "cite": "547 S.E.2d 62", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "66", "parenthetical": "quoting Wescott v. Bank, 227 N.C. 39, 42, 40 S.E.2d 461, 462-63 (1946) (internal citation omitted" } ], "opinion_index": 0 }, { "cite": "143 N.C. App. 282", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11434371 ], "year": 2001, "pin_cites": [ { "page": "287", "parenthetical": "quoting Wescott v. Bank, 227 N.C. 39, 42, 40 S.E.2d 461, 462-63 (1946) (internal citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/143/0282-01" ] }, { "cite": "208 S.E.2d 666", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "668" } ], "opinion_index": 0 }, { "cite": "285 N.C. 724", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569803 ], "year": 1974, "pin_cites": [ { "page": "727" } ], "opinion_index": 0, "case_paths": [ "/nc/285/0724-01" ] }, { "cite": "329 S.E.2d 350", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "353" } ], "opinion_index": 0 }, { "cite": "313 N.C. 488", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4725743 ], "year": 1985, "pin_cites": [ { "page": "491" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0488-01" ] }, { "cite": "447 S.E.2d 784", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "786" } ], "opinion_index": 0 }, { "cite": "337 N.C. 651", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2551919 ], "year": 1994, "pin_cites": [ { "page": "653" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0651-01" ] }, { "cite": "472 S.E.2d 778", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "780", "parenthetical": "citing Hargett v. Holland, 337 N.C. 651, 653, 447 S.E.2d 784, 786 (1994), Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985), and Little v. Rose, 285 N.C. 724, 727, 208 S.E.2d 666, 668 (1974)" } ], "opinion_index": 0 }, { "cite": "344 N.C. 133", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867531 ], "year": 1996, "pin_cites": [ { "page": "136", "parenthetical": "citing Hargett v. Holland, 337 N.C. 651, 653, 447 S.E.2d 784, 786 (1994), Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985), and Little v. Rose, 285 N.C. 724, 727, 208 S.E.2d 666, 668 (1974)" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0133-01" ] }, { "cite": "177 N.C. App. 246", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8301154 ], "year": 2006, "pin_cites": [ { "page": "248", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/177/0246-01" ] }, { "cite": "361 N.C. 425", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3747397, 3746860, 3747087, 3738736, 3735633, 3742938 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/nc/361/0425-01", "/nc/361/0425-06", "/nc/361/0425-02", "/nc/361/0425-03", "/nc/361/0425-05", "/nc/361/0425-04" ] }, { "cite": "558 S.E.2d 490", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "494" } ], "opinion_index": 0 }, { "cite": "355 N.C. 161", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220182 ], "year": 2002, "pin_cites": [ { "page": "166" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0161-01" ] }, { "cite": "554 S.E.2d 840", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "844" } ], "opinion_index": 0 }, { "cite": "147 N.C. App. 52", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9377813 ], "year": 2001, "pin_cites": [ { "page": "56" } ], "opinion_index": 0, "case_paths": [ "/nc-app/147/0052-01" ] }, { "cite": "563 S.E.2d 269", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "274" } ], "opinion_index": 0 }, { "cite": "150 N.C. App. 231", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9080776 ], "year": 2002, "pin_cites": [ { "page": "238" } ], "opinion_index": 0, "case_paths": [ "/nc-app/150/0231-01" ] }, { "cite": "181 N.C. App. 511", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8375036 ], "pin_cites": [ { "page": "512" } ], "opinion_index": 0, "case_paths": [ "/nc-app/181/0511-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 1-15", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "698 S.E.2d 402", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "parenthetical": "Moss Creek I" } ], "opinion_index": 0 }, { "cite": "364 N.C. 242", "category": "reporters:state", "reporter": "N.C.", "year": 2010, "pin_cites": [ { "parenthetical": "Moss Creek I" } ], "opinion_index": 0 }, { "cite": "689 S.E.2d 180", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 2010, "pin_cites": [ { "page": "183", "parenthetical": "Moss Creek I" }, { "page": "183" }, { "page": "183" }, { "page": "183" } ], "opinion_index": 0 }, { "cite": "202 N.C. App. 222", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4174800 ], "weight": 3, "year": 2010, "pin_cites": [ { "page": "225", "parenthetical": "Moss Creek I" }, { "page": "225" }, { "page": "225-26" } ], "opinion_index": 0, "case_paths": [ "/nc-app/202/0222-01" ] } ], "analysis": { "cardinality": 1257, "char_count": 34411, "ocr_confidence": 0.722, "pagerank": { "raw": 6.745654131974477e-08, "percentile": 0.40882537939470603 }, "sha256": "0bcda0aad7380eadc420102774a29c5288d0cde10dcbc8b520ba5553a05a8b2f", "simhash": "1:0b49f4b054670c5a", "word_count": 5705 }, "last_updated": "2023-07-14T18:05:47.059681+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge McCULLOUGH concur." ], "parties": [ "TED L. BISSETTE and wife, MARY HOLLY BISSETTE, individually and as cetuis que trust, Plaintiffs v. JENNIFER T. HARROD; BROOKS, PIERCE, MCLENDON, HUMPHREY & LEONARD, LLP, a North Carolina Limited Liability Partnership; all individually and as trustees, and SCOTT W. RICH and wife, LAURA K. RICH, Defendants" ], "opinions": [ { "text": "ERVIN, Judge.\nPlaintiffs Ted L. Bissette and Mary Holly Bissette appeal from an order dismissing the complaint that they filed against Defendants Scott W. Rich and Laura K. Rich for failure to state a claim upon which relief could be granted. On appeal, Plaintiffs contend that the trial court erroneously dismissed their complaint on the grounds that they had adequately pled claims sounding in breach of an express trust and for the imposition of a constructive or resulting trust which claims were not barred by the applicable statute of limitations. After careful consideration of Plaintiffs challenges to the trial court\u2019s order in light of the record and the applicable law, we conclude that the trial court\u2019s order should be affirmed.\nI. Factual Background\nA. Substantive Facts\nMoss Creek is a single-family residential development located in Guilford County. In 1987, the Moss Creek Homeowners Association filed a Declaration of Covenants, Conditions, and Restrictions which provided, in pertinent part, that no lot in the development \u201cmay be subdivided by sale or otherwise [so] as to reduce the total area of the Lot\u201d except by written consent of the Association. Moss Creek Homeowners Ass\u2019n, Inc., v. Bissette, 202 N.C. App. 222, 225, 689 S.E.2d 180,183, disc. review denied, 364 N.C. 242, 698 S.E.2d 402 (2010) (Moss Creek I). As we noted in our opinion in Moss Creek I:\nOn 23 December 1993, the Bissettes acquired title to Lot 6 in Moss Creek Development, and subsequently built a house on the lot.\nOn 5 July 2002, the Bissettes acquired title to the parcel of property adjoining their lot known as Lot 8, and on 10 November 2003, the Bissettes recorded an Instrument of Combination combining the two lots formally. The Bissettes thereafter recorded a plat on 5 December 2003 which (1) split former Lot 8 into two pieces and labeled the new parcels Lot 1 and Lot 2, and (2) recombined Lot 6 and Lot 2 to create a new L-shaped Lot 6 which expanded the backyard of the Bissettes.... [T]he Bissettes sold Lot 1 to Scott and Lama Rich (the \u201cRiches\u201d) on 28 April 2005\u2014\nMoss Creek I, 202 N.C. App at 225, 689 S.E.2d at 183. In other words, Plaintiffs originally owned Lot 6; however, after purchasing the adjoining lot, identified as Lot 8, they combined Lot 6 with part of Lot 8 be-. fore selling Defendants the remainder of Lot 8. Plaintiffs memorialized these transactions in documents titled Instrument of Combination and Exclusion Map.\nOn 18 May 2005, the Association and various individual Association members (the Moss Creek I plaintiffs) filed a complaint against Plaintiffs and Defendants in which they alleged that the transactions described above violated the restrictive covenant provision barring the subdivision of individual lots in Moss Creek. Moss Creek I, 202 N.C. App at 225-26, 689 S.E.2d at 183. Subsequently, Defendants asserted a cross-claim against Plaintiffs for breach of warranty. On 6 September 2005, the parties to this case executed an agreement which provided, in pertinent part, that:\n... If for any reason . . . the actions reflected in the Instrument of Combination and the Exclusion Map are required to be reversed, then the Richs agree to record the Deed of Easement attached hereto as Exhibit A. The Richs agree to sign the Deed of Easement at the same time as this Agreement. The signed Deed of Easement will be held by [the Riches\u2019] attorney, Jennifer T. Harrod, to be recorded with the Guilford County Register of Deeds if and only if the actions reflected in the Instrument of Combination and the Exclusion Map are required to be reversed, and as a result thereof, the Rich\u2019s acquire title to the aforesaid Tract II. It is expressly agreed and understood by the Parties that the Richs\u2019 actions in signing the Deed of Easement and giving it to their attorney does not constitute delivery of the Deed of Easement to the Bissettes, and that such Deed of Easement shall not become effective and enforceable unless and until the Deed of Easement is recorded with the Guilford County Register of Deeds.\nOn 21 December 2005, Defendants entered into a consent judgment with the Moss Creek I plaintiffs under which the Moss Creek I plaintiffs dismissed their claim against Defendants and in which the deed between Plaintiffs and Defendants was declared to be valid and to convey title to the property transferred from Plaintiffs to Defendants in fee simple absolute.\nOn 7 June 2006, the Moss Creek I plaintiffs \u201cfiled [an] amended complaint . . . [seeking] declaratory and injunctive relief against [Plaintiffs] . . . for violating the restrictive covenants.\u201d Moss Creek I at 226, 689 S.E.2d at 183. On 29 December 2006, Judge Ronald E. Spivey entered an order determining that Plaintiffs had violated the restrictive covenants and that none of their defenses had merit. Id. On 12 February 2008, Judge James M. Webb entered an order declaring, in pertinent part, that the Instrument of Combination and the Exclusion Map, were \u201cnull and void\u201d and directing that the \u201cGeneral Warranty Deed executed by [Plaintiffs] to [Defendants]... [be] reformed to include all of Lot 8... to be effective April 28,2005[.]\u201d As a result, Judge Webb\u2019s order awarded Defendants ownership of Lot 8 in its entirety, including the portion that Plaintiffs had added to their lot and that was designated \u201cTract II\u201d in the September 2005 agreement. On 4 March 2008, Judge Webb entered another order granting summary judgment in favor of the Moss Greek I plaintiffs with respect to \u201cany remaining claims not previously resolved or adjudicated.\u201d Id.\nPlaintiffs noted an appeal to this Court from various orders that had been entered during the course of the Moss Creek I litigation. On 2 February 2010, this Court filed an opinion in Moss Creek I affirming the orders invalidating the Instrument of Combination and Exclusion Map and vesting title in the entirety of Lot 8 in Defendants while overturning certain orders requiring Defendants to pay attorneys\u2019 fees to the Moss Creek I plaintiffs.\nB. Procedural History\nOn 29 December 2011, more than three years and ten months after Judge Webb ordered that the deed from Plaintiffs to Defendants be reformed in such a manner as to vest title to the original Lot 8 in Defendants, Plaintiffs filed a complaint seeking relief based upon Defendants\u2019 refusal to grant Plaintiffs an easement as specified in the 6 September 2005 agreement. In their complaint, Plaintiffs asserted claims sounding in breach of fiduciary duty, constructive fraud, and breach of contract and sought the entry of an order requiring specific performance of the 6 September 2005 agreement. On 4 April 2012, Plaintiffs voluntarily dismissed their complaint against Defendants pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 41. On 10 April 2012, Plaintiffs filed another complaint against Defendants in which they asserted claims sounding in breach of express trust, constructive fraud, and breach of fiduciary duty and sought the imposition of a resulting or constructive trust on the portion of Defendants\u2019 property that would have been subject to an easement in favor of Plaintiffs pursuant to the 6 September 2005 agreement. On 18 April 2012, Defendants filed a motion seeking dismissal of Plaintiffs\u2019 complaint pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6) on the grounds that Plaintiffs\u2019 claims were barred by the three year statute of limitations applicable to actions arising from contract claims and asserting, in pertinent part, that:\n1. This action is barred by North Carolina\u2019s three-year statute of limitations, N.C. Gen. Stat. \u00a7\u00a7 1-15 and 1-52. . . . [F]inal Orders entered by Judge Webb ... on February 12 and March 4, 2008 ... reversed the actions of [Plaintiffs] reflected in the \u201cInstrument of Combination\u201d and the \u201cExclusion Map\u201d . . . and conveyed title to [Defendants] of the property referred to in the so-called Deed of Easement....\n2. ... [Plaintiffs] could have entered suit on February 12, 2008. On that date the disputed property was transferred to [Defendants]. The transfer was not stayed or held in abeyance. The rights of [Plaintiffs], if any, under the subject agreement, became actionable on February 12, 2008. This action was not deemed commenced until December 29, 2011[.]...\n3. The subject contract cannot be enforced due to the running of the statute of limitations, because more than three years\u2019 time has elapsed since accrual of [Plaintiffs\u2019 right, if any, to sue for enforcement of the subject contract....\nA hearing was held with respect to Defendants\u2019 dismissal motion on 7 May 2012. During the course of this hearing, Plaintiffs expressly abandoned their constructive fraud and breach of fiduciary duty claims and indicated that they were only pursuing their claims for breach of express trust or the imposition of a constructive or resulting trust. On 11 May 2012, the trial court entered an order dismissing Plaintiffs\u2019 complaint for failure to state a claim upon which relief can be granted. Plaintiffs noted an appeal to this Court from the trial court\u2019s order.\nII. Legal Analysis\nA. Standard of Review\n\u201cThe standard of review of an order granting a [motion to dismiss pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6)] is whether the complaint states a claim for which relief can be granted under some legal theory when the complaint is liberally construed and all the allegations included therein are taken as true. On a motion to dismiss, the complaint\u2019s material factual allegations are taken as true. Dismissal is proper \u2018when one of the following three conditions is satisfied: (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.\u2019 \u201d Burgin v. Owen, 181 N.C. App. 511, 512, 640 S.E.2d 427, 428-29 (citing Country Club of Johnston Cty., Inc. v. U.S. Fidelity & Guar. Co., 150 N.C. App. 231, 238, 563 S.E.2d 269, 274 (2002), and Oberlin Capital, L.P. v. Slavin, 147 N.C. App. 52, 56, 554 S.E.2d 840, 844 (2001), and quoting Wood v. Guilford Cty., 355 N.C. 161, 166, 558 S.E.2d 490, 494 (2002)), disc. review denied, 361 N.C. 425, 647 S.E.2d 98 (2007), cert. denied, 361 N.C. 690, 652 S.E.2d 257 (2007). On appeal from an order granting a motion to dismiss for failure to state a claim, this Court \u201cconducts a de novo review of the pleadings to determine their legal sufficiency and to determine whether the trial court\u2019s ruling on the motion to dismiss was correct.\u201d Page v. Lexington Ins. Co., 177 N.C. App. 246, 248, 628 S.E.2d 427, 428 (2006) (citation omitted).\n\u201cA statute of limitations defense may properly be asserted in a Rule 12(b)(6) motion to dismiss if it appears on the face of the complaint that such a statute bars the claim. Once a defendant raises a statute of limitations defense, the burden of showing that the action was instituted within the prescribed period is on the plaintiff. A plaintiff sustains this burden by showing that the relevant statute of limitations has not expired.\u2019\u2019 Horton v. Carolina Medicorp, Inc., 344 N.C. 133, 136, 472 S.E.2d 778, 780 (1996) (citing Hargett v. Holland, 337 N.C. 651, 653, 447 S.E.2d 784, 786 (1994), Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985), and Little v. Rose, 285 N.C. 724, 727, 208 S.E.2d 666, 668 (1974)). We will now apply this standard of review to evaluate Plaintiffs\u2019 challenges to the trial court\u2019s order.\nB. Scone of Issues to be Resolved on Appeal\nThe dispositive issues presented by this appeal are whether Plaintiffs\u2019 express trust claim was barred by the statute of limitations and whether Plaintiff sufficiently stated a claim for the imposition of a constructive or resulting trust. In order to make the first of these two determinations, we are required to decide whether Plaintiffs\u2019 complaint stated a valid claim for breach of an express trust or whether, on the other hand, Plaintiffs\u2019 complaint merely alleged a breach of contract claim. Although Plaintiffs suggest that the extent to which the 6 September 2005 agreement created a trust was not properly before the trial court and is not properly before us, we cannot agree with this contention.\nAt the hearing held with respect to their dismissal motion, Defendants argued that \u201cthe factual theory upon which the complaint is based, its only factual theory is breach of a contract,\u201d and that the \u201cthree-year statute of limitations bars any contract claims.\u201d In addition, Defendants argued that Plaintiffs had failed to state a valid claim for breach of an express trust, that Defendants had not acted as the settlors with respect to any trust, and that \u201cthe law is very clear that you can\u2019t have a trust unless ... the settlor has parted with something to someone as trustee.\u201d Finally, Defendants argued that the property in question was not subject to the imposition of a constructive trust or a resulting trust and that, \u201cas far as the claims in issue, express trust, resulting trust, and constructive trust. . . whatever we call it, it\u2019s a suit on a contract and a three-year statute [of limitations.]\u201d In response, Plaintiffs argued that Defendants\u2019 assertion that they had failed to state a claim for breach of express trust should be ignored, stating that:\n[PLAINTIFFS\u2019 COUNSEL]: . . . [T]he Riches filed a Rule 12(b)(6) motion to dismiss. And that was solely on this ground and this ground only. They say the action is barred by the three-year statute of limitations set forth in N.C. [Gen. Stat. \u00a7] 1-15 and 1-52. That\u2019s the sole ground of their motion-under [N.C. Gen. Stat. \u00a7\u00a7 1A,] Rule 12(b)(6). So we object to any argument that we have not properly stated claims for resulting trust, constructive trust or on -\nTHE COURT: In my discretion, I\u2019m going to let him argue that on his 12(b)(6) motion. And he\u2019s already argued it.\n[PLAINTIFFS\u2019 COUNSEL]: I would like to object.\nTHE COURT: [You] didn\u2019t object while he was arguing . . . And in my discretion, I\u2019m going to let him argue, and have let him.\nSimilarly, Plaintiffs suggest in their brief that our review of the trial court\u2019s order should be limited to a determination of the date upon which Plaintiffs\u2019 claim for breach of express trust accrued, an argument which, if accepted, would require us to overlook the more fundamental issue of whether any sort of trust existed in the first place. In support of this contention, Plaintiffs assert, consistently with the position that they took before the trial court, that Defendants\u2019 dismissal motion \u201cwas based solely upon their contention that all of the Plaintiffs\u2019 claims were barred by the applicable statute of limitations,\u201d that \u201c[n]o other ground for dismissal was asserted,\u201d that \u201c[t]he parties agree that the three-year statute of limitations applies to Plaintiffs\u2019 cause of action to enforce an express trust,\u201d but that \u201cthe parties differ on when the cause of action for breach of the express trust accrued.\u201d We do not find this argument persuasive.\nAfter carefully reviewing the record and the briefs, we conclude that the fundamental dispute between the parties with respect to the validity of Plaintiffs\u2019 express trust claim centers on whether the 6 September 2005 agreement served to create a trust, rather than the date upon which any cause of action which Plaintiffs were entitled to assert under the alleged trust accrued. In essence, the reason that Defendants argued that Plaintiffs\u2019 breach of express trust claim was time-barred was that Plaintiffs had not really asserted a breach of express trust claim at all. In view of the fact that the trial court expressly allowed this issue to be debated in the court below and the fact that this issue appears to be at the core of the controversy before us in this case, we conclude that the question of whether Plaintiffs\u2019 complaint states a claim for breach of an express trust is properly before us and that we should address this issue in the course of reviewing Plaintiffs\u2019 challenges to the trial court\u2019s order.\nC. Breach of Express Trust\n\u201c \u2018An express trust has been defined as a fiduciary relationship with respect to property, subjecting the person by whom the property is held to equitable duties to deal with the property for the benefit of another person, which arises as a result of a manifestation of an intention to create it. . . . To constitute this relationship there must be a transfer of the title by the donor or settlor for the benefit of another. The gift must be executed rather than executory upon a contingency.\u2019 \u201d Bland v. Branch Banking & Tr. Co., 143 N.C. App. 282, 287, 547 S.E.2d 62, 66 (2001) (quoting Wescott v. Bank, 227 N.C. 39, 42, 40 S.E.2d 461, 462-63 (1946) (internal citation omitted). Thus, \u201c[b]y definition, the creation of a trust must involve a conveyance of property, and before property can be said to be held in trust by the trustee, the trustee must have legal title[.]\u201d In re Estate of Washburn, 158 N.C. App. 457, 461, 581 S.E.2d 148, 151 (2003) (internal citations omitted). In other words, creation of an express trust \u201cpresupposes that [the settlor] has control of the subject matter of the trust which he desires to create, and contributes it by conveyance of the land with that intent[.]\u201d Taylor v. Addington, 222 N.C. 393, 397, 23 S.E.2d 318, 321 (1942). For that reason, \u201cproperty which the settlor cannot transfer cannot be held in trust, and where a settlor has no legal authority to convey legal title to property, putting said property into an irrevocable trust is ultra vires and the ostensible trust created thereby is consequently void ab initio.\u201d 76 Am Jur 2d, Trusts \u00a7 41. As a result, \u201can interest which has not come into existence or an expectation or hope of receiving property in the future cannot be held in trust.\u201d The Infinity Group, LLC v. Lucas (In re Lucas), 477 B.R. 236, 244 (Bankr. M.D. Ala. 2012). In summary:\nBy definition, the creation of a trust must involve a conveyance of property. For a settlor to have the power to create a trust, he must own a transferable property interest or have a power of disposition over such property interest[.] . . . Property which the settlor cannot transfer cannot be held in trust.... [A] \u201cperson lacking capacity to make an ordinary transfer of property has no capacity to create an inter vivos trust.\u201d\nJewish Community Ass\u2019n v. Community Bank, 6 P.3d 1264, 1266-1267 (Wyo. 2000) (citing Restatement of Trusts 2d \u00a7 79, and quoting Hilbert v. Benson, 917 P.2d 1152, 1156 (Wyo. 1996)).\nThe 6 September 2005 agreement provided that, in the event that Defendants were to obtain ownership of \u201cTract II\u201d at some point in the future, they would, at that time, grant Plaintiffs an easement applicable to that tract of property. At the time that the parties executed the 6 September 2005 agreement, Defendants had no interest in the prop.erty that was to be the subject of the easement. In light of that fact, Defendants had no power to transfer any right of any nature in Tract 11 at the time the 6 September 2005 agreement was signed. As a result of the fact that Defendants had no authority to transfer, and did not transfer, the res of the alleged trust at the time that the express trust in question was allegedly created, we conclude that the 6 September 2005 agreement did not result in the creation of an express trust, limiting any claims that Plaintiffs were entitled to assert in reliance on that agreement to a garden-variety breach of contract claim.\nAs Plaintiffs appear to concede, the statute of limitations applicable to breach of contract claims of the nature actually alleged in Plaintiffs\u2019 complaint had expired by the time that their complaint was filed. \u201cIn general, an action for breach of contract must be brought within three years from the time of the accrual of the cause of action. [N.C. Gen. Stat. \u00a7] 1-52(1)[.] A cause of action generally accrues and the statute of limitations begins to run as soon as the right to institute and maintain a suit arises.\u201d Penley v. Penley, 314 N.C. 1, 19-20, 332 S.E.2d 51, 62 (1985) (citing Reidsville v. Burton, 269 N.C. 206, 152 S.E. 2d 147 (1967) (other citation omitted). Plaintiffs\u2019 complaint clearly indicates that Defendants obtained their right to see the creation of an easement in their favor applicable to Tract II on or about 12 February 2008, when Judge Webb ordered that the deed from Plaintiffs to Defendants be reformed to include all of Lot 8. However, Plaintiffs did not attempt to enforce any rights that they might have possessed under the 6 September 2005 agreement until 29 December 2011, almost four years after any claim that Plaintiffs might have been able to assert for breach of contract accrued. As a result, Plaintiffs\u2019 contract-based claim is clearly barred by the applicable statute of limitations.\nIn seeking to persuade us that their express trust claim against Defendants was not subject to dismissal, Plaintiffs argue that they adequately stated a claim for breach of an express trust. However, Plaintiffs have neither demonstrated that they are entitled to assert that an express trust can be created in the absence of a transfer of property nor even mentioned this deficiency in attempting to persuade us of the merits of their express trust claim. Instead, Plaintiffs simply \u201ccontend [that] the cause of action for breach of the express trust did not accrue until 23 November 2011, when all the Defendants repudiated and disavowed the trust agreement, and otherwise refused to record the Deed of Easement.\u201d In fight of the fact that the 6 September 2005 agreement constituted a simple contract rather than an express trust, any claim that Plaintiffs might have been able to assert against Defendants under that agreement accrued on the date upon which Judge Webb determined that Defendants owned all of Lot 8 rather than on the date upon which Defendants expressly \u201crepudiated\u201d their obligations under the 6 September 2005 agreement. As a result, the trial court did not err by dismissing Plaintiffs\u2019 complaint for failure to state a claim for relief pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6).\nD. Constructive or Resulting Trust\nSecondly, Plaintiffs argue that the trial court erroneously dismissed their request for the imposition of a constructive or resulting trust entitling them to an easement applicable to Tract II. Once again, we fail to find Plaintiffs\u2019 argument persuasive.\nThe circumstances in which the imposition of a constructive or resulting trust is appropriate are well-established.\n\u201cA constructive trust is a duty, or relationship, imposed by courts of equity to prevent the unjust enrichment of the holder of title to, or of an interest in, property which such holder acquired through fraud, breach of duty or some other circumstance making it inequitable for him to retain it against the' claim of the beneficiary of the constructive trust.... [A] constructive trust is a fiction of equity, brought into operation to prevent unjust enrichment through the breach of some duty or other wrongdoing.... [T]here is a common, indispensable element in the many types of situations out of which a constructive trust is deemed to arise. This common element is some fraud, breach of duty or other wrongdoing by the holder of the property[.]\nCury v. Mitchell, 202 N.C. App. 558, 560-61, 688 S.E.2d 825, 827 (quoting Roper v. Edwards, 323 N.C. 461, 464, 373 S.E.2d 423, 424-25 (1988) (internal quotations and citations omitted), disc. review denied, 364 N.C. 434, 702 S.E.2d 300 (2010). Similarly,\n\u201c[a] resulting trust arises \u2018when a person becomes invested with the title to real property under circumstances which in equity obligate him to hold the title and to exercise his ownership for the benefit of another.... A trust of this sort does not arise from or depend upon any sort of agreement between the parties. It results from the fact that one man\u2019s money has been invested in land and the conveyance taken in the name of another.\u2019 \u201d\nThe classic example of a resulting trust is the purchase-money resulting trust. In such a situation, when one person furnishes the consideration to pay for the land, title to which is taken in the name of another, a resulting trust commensurate with his interest arises in favor of the one furnishing the consideration. The general rule is that the trust is created, if at all, in the same transaction in which the legal title passes, and by virtue of the consideration advanced before or at the same time the legal title passes.\nCury, 202 N.C. App. at 562-63, 688 S.E.2d at 827 (quoting Patterson v. Strickland, 133 N.C. App. 510, 519, 515 S.E.2d 915, 920 (1999) (quoting Mims v. Mims, 305 N.C. 41, 46, 286 S.E.2d 779, 783 (1982) (internal citation omitted), and Cline v. Cline, 297 N.C. 336, 344, 255 S.E.2d 399, 404-05 (1979)). The allegations set out in Plaintiffs\u2019 complaint fail to support the imposition of either a constructive or a resulting trust.\nAlthough Plaintiffs assert that Defendants \u201cacquired title to the balance of the original Moss Creek lot under circumstances which in equity obligate [Defendants] to hold title and exercise ownership for the benefit of [Plaintiffs], consistent with the Deed of Easement\u201d and that \u201c[e]quity should raise a resulting trust by reason of such circumstances,\u201d Plaintiffs have failed to allege facts that might support such a conclusion. Instead, the factual allegations set out in Plaintiffs\u2019 complaint establish that: (1) Plaintiff purchased an additional lot in the Moss Creek development and subsequently divided it, adding part of the new lot to their original home site and selling the remainder to Defendants; (2) Plaintiffs\u2019 actions violated the restrictive covenants applicable to Moss Creek, which explicitly preclude the subdivision of any lots in that development; and (3), as a remedy for Plaintiffs\u2019 violation of the Moss Creek restrictive covenants, the documents effectuating and evidencing these transactions were declared null and void and the deed in which Plaintiffs had granted Defendants a portion of the original lot was reformed so that Plaintiffs owned Lot 6 and Defendants owned Lot 8 as originally delineated. As a result, the factual allegations set out in Plaintiffs\u2019 complaint do not suffice to establish that Defendants obtained possession of Tract II as the result of any fraud, wrongdoing, or other circumstance that might support the imposition of a constructive or resulting trust.\nIn attempting to persuade us to reach a different conclusion, Plaintiffs cite Wilson v. Development Co., 276 N.C. 198, 211, 171 S.E.2d 873, 882 (1970), for the general proposition that a constructive trust may be the \u201cproper remedy to prevent unjust enrichment.\u201d However, nothing in Wilson in any way suggests that the facts alleged in Plaintiffs\u2019 complaint rise to the level necessary to support the imposition of a constructive trust. In addition, Plaintiffs cite Guy v. Guy, 104 N.C. App. 753, 757-58, 411 S.E.2d 403, 405-06 (1991), and Mims, 305 N.C. at 59, 286 S.E.2d at 791 (1982), in support of their claims for the imposition of a constructive or resulting trust. However, neither Guy (holding that a complaint, in which the plaintiff alleged/that he had conveyed certain real property to his son in exchange for a promise to recorivey the property after the plaintiff repaid a bank loan and that the defendant had refused to hon- or their bargain after the plaintiff had repaid the loan, stated a claim for the imposition of a constructive trust), nor Mims (holding that, despite the presumption that transfers among spouses are gratuitous, the plaintiff stated a claim for the imposition of a resulting trust where he \u201csupplied the entire purchase price for the property from money he received from his father and grandfather,\u201d \u201cat ail times intended for the property to be his alone,\u201d so \u201cadvised the defendant at and before the closing,\u201d and \u201cacquiesced ian placing the title in both his and defendant\u2019s names only because he was advised by his real estate agent that North Carolina law so required\u201d), appear to have any significant bearing on the proper resolution of this case in light of Plaintiffs\u2019 failure to articulate any way in which the facts at issue here are analogous to those at issue in Guy and Mims. As a result, we conclude that the trial court did not err by dismissing Plaintiffs\u2019 request for the imposition of a constructive or resulting trust on Tract II.\nIII. Conclusion\nThus, for the reasons discussed above, we conclude that the trial court did not err by granting Defendants\u2019 dismissal motion. As a result, the trial court\u2019s order should be, and hereby is, affirmed.\nAFFIRMED.\nChief Judge MARTIN and Judge McCULLOUGH concur.\n. Plaintiffs originally asserted claims against Jennifer T. Harrod and Brooks, Pierce, McLendon, Humphrey & Leonard, LLP, as well. On 10 May 2012, Plaintiffs voluntarily dismissed their claims against Ms. Harrod and Brooks, Pierce with prejudice. As a result, all references to \u201cDefendants\u201d in this opinion should be understood as referring to Scott W. Rich and Laura K. Rich.\n. Although the Riches were named as defendants in the amended complaint, the complaint expressly incorporates the consent agreement and acknowledges that the Moss Creek I plaintiffs\u2019 claims against the Riches had been resolved.\n3. In its order, the trial court stated that \u201cjurisdiction of this matter is retained for purposes of (a) taxing costs, (b) entertaining motions for costs (including claims for attorneys\u2019 fees), and (c) motions for sanctions under Rule 11 of the North Carolina Rules of Civil Procedure.\u201d However, given that a claim for attorney\u2019s fees pursuant to N.C. Gen. Stat. \u00a7 6-21.5 is not part of a plaintiff\u2019s \u201cunderlying substantive claim,\u201d Bumpers v. Cmty. Bank of N. Va., 364 N.C. 195, 200, 695 S.E.2d 442, 446 (2010), and that \u201cneither the dismissal of a case nor the filing of an appeal deprives the trial court of jurisdiction to hear Rule 11 motions,\u201d Dodd v. Steele, 114 N.C. App. 632, 634, 442 S.E.2d 363, 365 (citing Bryson v. Sullivan, 330 N.C. 644, 653, 412 S.E.2d 327, 331 (1992)), disc. rev. denied, 337 N.C. 691, 448 S.E.2d 521 (1994), the trial court\u2019s decision to retain jurisdiction for the purpose of entertaining motions for attorneys\u2019 fees or other sanctions does not deprive us of the authority to address the issues raised by Plaintiffs\u2019 appeal. See Dafford v. JP Steakhouse LLC, _ N.C. App _, _ n.3, 709 S.E.2d 402, 407 n.3 (2011).\n. In their brief, Plaintiffs speculate that the \u201cMoss Creek Homeowners Association would have never agreed to allow [Defendants] to obtain title to all of old Lot 8 in the Moss Creek Litigation had the Moss Creek Homeowners Association been informed of the Deed of Easement,\u201d that \u201c[t]he existence of the Agreement and the Deed of Easement between [Plaintiffs] and [Defendants] was withheld in the Moss Creek Litigation settlement discussions,\u201d and that, \u201c[b]y withholding such information, [Defendants] were able to acquire property for which they paid no consideration.\u201d However, Plaintiffs cite no allegations in their complaint which support these conclusoiy assertions. In addition, the trial court, rather than the homeowners\u2019 association, ordered the reformation of the deed to Lot 8. As a result, the additional arguments advanced by Plaintiffs predicated on the theory that, had the parties\u2019 agreement been disclosed during the course of the Moss Creek I litigation, the outcome in that proceeding would have been different do not suffice to justify a reversal of the trial court\u2019s order.", "type": "majority", "author": "ERVIN, Judge." } ], "attorneys": [ "Kenneth T. Davies for Plaintiffs.", "Tuggle Duggins & Meschan P.A., by Robert C. Cone and Brandy L. Mills, for Defendants." ], "corrections": "", "head_matter": "TED L. BISSETTE and wife, MARY HOLLY BISSETTE, individually and as cetuis que trust, Plaintiffs v. JENNIFER T. HARROD; BROOKS, PIERCE, MCLENDON, HUMPHREY & LEONARD, LLP, a North Carolina Limited Liability Partnership; all individually and as trustees, and SCOTT W. RICH and wife, LAURA K. RICH, Defendants\nNo. COA12-921\nFiled 19 March 2013\n1. Appeal and Error \u2014 appellate jurisdiction \u2014 attorney fees and sanctions \u2014 retained by trial court\nThe trial court\u2019s decision to retain jurisdiction after granting defendants\u2019 N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) motion for dismissal in order to entertain motions for attorney fees or other sanctions did not deprive the Court of Appeals of the authority to address the issues raised by plaintiffs\u2019 appeal. A claim for attorney fees pursuant to N.C.G.S. \u00a7 6-21.5 is not part of a plaintiffs underlying substantive claim, and neither the dismissal of a case nor the filing of an appeal deprives the trial court of jurisdiction to hear Rule 11 motions.\n2. Appeal and Error \u2014 appealability\u2014core of controversy\u2014 debated below\nThe question of whether plaintiffs\u2019 complaint stated a claim for breach of an express trust was properly before the Court of Appeals on an appeal from a N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) dismissal where the trial court expressly allowed the issue to be debated and the issue appeared to be at the core of the controversy.\n3. Trusts \u2014 res\u2014not transferred\nThe trial court did not err by dismissing plaintiffs\u2019 complaint for failure to state a claim for relief for breach of an express trust involving real estate. Defendants had no authority to transfer, and did not transfer, the res of the alleged trust at the time that the express trust in question was allegedly created. Any claims that plaintiffs were entitled to assert in reliance on the agreement in question were limited to breach of contract, but the statute of limitations on those claims had expired by the time their complaint was filed.\n4. Trusts \u2014 resulting or constructive \u2014 no fraud or wrongdoing\nThe trial court did not err by dismissing plaintiffs\u2019 request for the imposition of a constructive or resulting trust entitling them to an easement in an action arising from the division of a lot within a subdivision without the homeowners associations\u2019 approval. Plaintiffs\u2019 factual allegations did not suffice to establish that defendants obtained possession of the property as the result of any fraud, wrongdoing, or other circumstance that might support the imposition of a constructive or resulting trust.\nAppeal by plaintiffs from order entered 11 May 2012 by Judge Richard L. Doughton in Guilford County Superior Court. Heard in the Court of Appeals 10 December 2012.\nKenneth T. Davies for Plaintiffs.\nTuggle Duggins & Meschan P.A., by Robert C. Cone and Brandy L. Mills, for Defendants." }, "file_name": "0001-01", "first_page_order": 11, "last_page_order": 24 }