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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
TRACY POWELL TOOMER, ANDREA POWELL KEEFE, and ERICA RENEE CLARK,
Plaintiffs, v. BRANCH BANKING AND TRUST COMPANY, as Trustee under
the Will of Joan Brown Williamson and as successor-by-merger to
UNITED CAROLINA BANK, as Executor of the Estate of Joan Brown
Williamson and Trustee under the Will of Joan Brown Williamson,
Filed: 21 June 2005
1. Pleadings--dismissal--standards for appellate review
Appellate review of Rule 12(b)(6) and 12(c) rulings is de novo; a statute of limitations
can provide the basis for dismissal on a Rule 12(b)(6) motion; and Rule 12(c) permits a party to
move for judgment on the pleadings if the complaint reveals that claims are baseless. .
2. Fraud--constructive--required allegation--benefit to defendant
Plaintiffs did not adequately assert claims for constructive fraud arising from the
management of a trust, and the trial court correctly applied the three-year statute of limitations
for breach of fiduciary duty rather than the ten-year statute of limitations for constructive fraud,
where plaintiffs did not assert that defendant sought benefit for itself.
3. Fiduciary Relationship--breach of duty--statute of limitations--knowledge of facts
The statute of limitations for breach of fiduciary duty begins to run when an infant's
guardian knew or should have known of the facts giving rise to the claim, and the trial court here
did not err by dismissing plaintiffs' breach of fiduciary claims arising from management of a
trust. Allegations that defendant failed to investigate and correct breaches of fiduciary duty did
not revive the expired claims.
4. Fiduciary Relationship--breach of duty--delayed distribution of trust
An allegation of breach of fiduciary duty in delaying distribution of a trust for twenty-
five days while a change of trustee was imminent should have been dismissed for failure to state
5. Damages and Remedies--underlying claims barred--remedy not available
An accounting was not available as a remedy for alleged breaches of fiduciary duty and
constructive fraud in managing a trust where the underlying allegations did not sufficiently state
a claim for relief or were barred by the statute of limitations.
Appeal by plaintiffs from judgment entered 2 February 2004 by
Judge Gregory A. Weeks in Columbus County Superior Court. Heard in
the Court of Appeals 14 February 2005.
Erwin and Eleazer, P.A., by L. Holmes Eleazer, Jr., and Peter
F. Morgan, for plaintiff appellants.
Murchison, Taylor & Gibson, PLLC, by Andrew K. McVey and W.
Berry Trice, for defendant appellee.
Plaintiffs appeal from an order granting defendant's motion to
dismiss and motion for judgment on the pleadings. We affirm.
Plaintiffs Tracy Powell Toomer, Andrea Powell Keefe, and Erica
Renee Clark are the children of the late Joan Brown Williamson, who
died testate on 30 April 1982. Williamson's Will created three
equal and separate trusts, one each for Tracy, Andrea, and Erica.
In the Will, United Carolina Bank (UCB) was nominated executor of
Williamson's estate and trustee of the trusts. The Will was
admitted for probate in May 1982, at which time the superior court
appointed UCB to be the executor of Williamson's estate. The
superior court subsequently appointed UCB to be the trustee of each
of the plaintiffs' trusts. Defendant Branch Banking and Trust
Company (BB&T) is the successor-by-merger to UCB and has assumed
On 31 July 2003, plaintiffs filed a complaint in which they
purported to assert (1) claims by all plaintiffs against BB&T as
successor-in-interest to UCB for constructive fraud; (2) claims by
all plaintiffs against BB&T as successor-in-interest to UCB and as
trustee under the Will for breach of fiduciary duty; (3) separate
claims by Erica, Andrea, and Tracy against BB&T as successor-in-interest to UCB and as trustee under the Will for breach of
fiduciary duty; and (4) claims by all plaintiffs against BB&T as
successor-in-interest to UCB and as trustee under the Will for an
The complaint made the following pertinent factual
1. Plaintiff Tracy Powell Toomer . . . attained the
age of majority on June 20, 1990. . . .
2. Plaintiff Andrea Powell Keefe . . . attained the
age of majority on March 2, 1994. . . .
3. Plaintiff Erica Renee Clark . . . attained the age
of majority on February 3, 1999.
. . . .
16. In approximately February or March of 1994, Arthur
L. Clark ("Clark") in his capacity as Erica's
guardian, began a preliminary audit of UCB's
accounting with respect to the common trust account
that had been established by the Estate prior to
the establishment of separate trusts for each of
17. On or about March 21, 1994, Clark completed his
preliminary audit and advised the UCB Trust
Officer, Richard H. Newton ("Newton"), of several
apparent errors and/or anomalies in the valuation
of certain assets belonging to one or more of the
trusts as well as issues arising from trustee's
fees and estate tax payments. In light of these
errors and/or anomalies, Clark scheduled a meeting
with Newton in April of 1994.
18. Following a[n] April 11, 1994, meeting with Clark,
UCB specifically agreed to do the following:
a) Review all fee calculations in relation to its
admitted error in its accounting regarding the
value of a tract of real property owned by the
Estate known as the Foreman Tract, as well as its
other fee calculations based upon discrepancies
between market value of trust holdings asidentified for purposes of calculation of fees and
market value as shown on trust account statements;
b) Analyze and report upon the financial impact of
the trustee's admitted error in the 1987 Fiduciary
Income Tax Return, as well as make adjustments to
Tracy's Trust for incorrect tax payments made by
the trustee from 1990 through 1994;
c) Review the method of allocation of timber sale
expenses and proceeds among the Beneficiaries'
accounts, as well as the valuation and distribution
of the timber holdings following the division of
the common trust account into separate accounts.
19. By early May of 1994, UCB reported that it had
corrected the initial inequality in distributions
arising from the division of the common trust as
well as the estate tax payment errors. However,
Clark continued to correspond with UCB in May of
1994 regarding adjustments to its trustee fees and
certain additional issues which were disclosed by
his initial audit of the farm account established
20. Following its own review of trustee fee
calculations and tax accounting, UCB admitted in
late May of 1994 that it had overcharged Tracy's
Trust and Erica's Trust for trustee fees and had
overpaid taxes on the sale of timber holdings in
1987 by nearly $23,000.00. According to
correspondence from UCB Regional Trust Manager
David V. Wyatt dated June 2, 1994, these errors
were corrected by reimbursement to the Plaintiffs
with interest on May 31, 1994. At that time, Mr.
Wyatt also acknowledged certain additional errors
had been made with respect to tax payments, income
distributions, and other matters related to the
farm account and reported that these errors had
been corrected. All of these errors had been
disclosed by Clark's May 1994 audit of the farm
21. On June 8, 1994, UCB wrote in a letter to Clark,
Andrea, and Tracy that UCB had conducted an
"extensive review" of the three trusts and the farm
account, which review disclosed additional errors
including insurance payments that had been made out
of the wrong account and misallocation of timber
sales proceeds. According to David Wyatt, these
errors were corrected in early June of 1994.However, Clark was not able to conduct any further
audit of the Plaintiffs' trust accounts in 1994 due
to health and family problems. Plaintiffs allege
upon information and belief that Clark was only
able to review approximately forty percent (40%) of
the transactions related to the trusts created by
the Will in the course of his 1994 audit.
22. On February 7, 1999, four days after Erica's
eighteenth birthday, Clark contacted Anthony C.
Sessoms, Senior Vice-President for BB&T, regarding
Erica's Trust. At that time, Clark requested that
BB&T in its capacity as trustee provide information
regarding the value of the assets in Erica's Trust
as well as take steps to completely segregate the
property accounting for Tracy's Trust, Andrea's
Trust, and Erica's Trust. Upon information and
belief, no action was taken by BB&T in response.
23. On August 29, 2001, Erica sent a letter to Ann
Smith, a trust officer with BB&T in Whiteville,
North Carolina, advising that funds had been
removed from Erica's Trust without the permission
of either Erica or her guardians and demanding that
such funds be replaced immediately with accrued
24. Upon information and belief, Erica further alleges
as follows with respect to the removal of the funds
described in the preceding paragraph:
a) The removal of the funds took place on April 16,
1986; April 15, 1987; April 22, 1988; and April 27,
b) The total funds so removed were $14,388.73.
c) All of the funds were deposited into Andrea's
d) On each of the four occasions identified above
on which funds were removed, a promissory note
bearing interest at eight percent (8%), compounded
annually, was issued in which Andrea's Trust was
the promisor and Erica's Trust was the promisee.
25. Upon information and belief, BB&T took no immediate
action in response to Erica's August 29, 2001,
26. On February 12, 2002, Erica wrote a letter to BB&T
President John Allison indicating that she had
received no response to her August 29, 2001,
letter. At that time, Erica also raised concerns
regarding the combination of the farm holdings from
each of the Plaintiffs' trust accounts into a
single farm trust account.
27. On March 18, 2002, Senior Vice President Betsy B.
Davis ("Davis") on behalf of BB&T provided a
written response to Erica's August 29, 2001, and
February 12, 2002, letters. In that response, BB&T
admitted that the funds had been withdrawn from
Erica's Trust in order to satisfy the tax
obligations of Andrea's Trust. BB&T further advised
that it would proceed with collection of the
accrued interest and principal amounts due Erica's
Trust upon the promissory notes in question, but
[a]s there are no liquid assets to immediately
satisfy the debt, we will need time to market the
appropriate assets and raise the cash.
28. Clark wrote to BB&T on March 20, 2002, indicating
that Erica had granted Clark a power of attorney
for purposes of handling her dispute with BB&T over
administration of the Plaintiffs' trusts. Clark
also requested a meeting to discuss a variety of
issues, including without limitation the following:
a) All issues that had been raised by Clark's 1994
audit . . . but never addressed by UCB;
b) The auditing procedures employed by BB&T's trust
department to confirm the validity and accuracy of
its trust accounting; and
c) The basis for BB&T's failure to ensure payment
was made to Erica upon the promissory notes
described in Paragraph 24 of the Complaint upon her
demand on August 29, 2001.
29. On April 22, 2002, Clark provided Davis with a
memorandum outlining some additional issues
associated with three tobacco barns located upon
the real property belonging to one or more of the
Plaintiff[s] that were constructed, purchased,
and/or moved utilizing funds from all three of the
Plaintiffs' trust accounts. Clark requested that
these issues also be discussed at any meeting
between BB&T and Plaintiffs.
30. On April 30, 2002, Clark, Erica, Andrea, and
Andrea's guardians (Joe and Cheryl Powell) met with
Davis and certain other representatives of BB&T to
discuss the Plaintiffs' concerns regarding the
administration of the trusts created under the
Will. The issues raised by Plaintiffs at that
meeting included not only the [foregoing] issues
. . . , but also the following (among others):
a) Failing to obtain an accurate appraisal of the
farm lands owned by the Estate at the time of
Williamson's death in 1982. UCB commissioned an
appraisal by Clyde Elliott, one of its own
employees, which appraisal upon information and
belief overstated the fair market value of the
properties in question by as much as thirty percent
(30%). As a consequence, Plaintiffs' inheritance
tax liability was significantly increased and UCB
collected inflated fees on Erica's Trust and
Andrea's Trust from 1982 through 1989.
b) Overvaluation of certain real property known as
the "Foreman Tract," which continued until the
error was detected by UCB in 1990. Due to this
error, UCB collected inflated fees on Andrea's
Trust and Erica's Trust from 1985 through 1990.
c) Failing to accurately account for the harvest
and sale of timber from the Plaintiffs' farm
properties in 1987 by adjusting the value of those
properties downward. This adjustment in value was
not made until late 1989, and in the interim UCB
collected trustee fees based upon inflated farm
d) In conjunction with revaluation of the farm
properties pursuant to a new appraisal obtained in
1989, UCB erroneously assigned a value of
$29,500.00 to certain real property generally known
as the "Pinkney Street Lot," which was over twice
the previous value of the property. This valuation
error was corrected by UCB in 1990, but not before
UCB had collected trustee fees for 1989 from
Erica's Trust and Andrea's Trust.
e) As part of the same reappraisal process in 1989
just described, UCB failed to adjust the value of a
certain parcel of real property generally known as
the "Zylphia Brown Farm" from $51,438 to its
reappraised value of $29,500.00. This error
continued until 1994. As a consequence, UCBcollected fees on an inflated property value from
1989 through 1994.
f) The removal of funds from Andrea's Trust and
Erica's Trust in 1986, 1987, 1988, and 1989, to pay
taxes incurred by Tracy's Trust due to its
ownership of certain real property generally known
as the "Railroad Farm."
g) UCB erroneously removed several demand notes
from Tracy's Trust on December 31, 1987, which
error was corrected on December 31, 1988. However,
prior to the correction, UCB collected trustees'
fees based upon an inflated value for Tracy's
h) On May 3, 1993, UCB removed $3,640.94 from
Erica's Trust and transferred it to Andrea's Trust
without creating an instrument to evidence the
"loan" in either account. After this error was
detected and reported to UCB by Clark in 1994, its
trust officer represented to Clark that the money
had been repaid to Erica's Trust in 1994. However,
Clark discovered in 2002 that UCB had not in fact
corrected this error.
. . . .
37. On October 22, 2002, Clark wrote a letter to BB&T's
counsel in which he nominated Cheryl Powell to
serve as the replacement trustee for BB&T. At that
time, Clark also reminded BB&T that, contrary to
the clear language of the Will, BB&T had failed to
terminate Tracy's Trust when she reached the age of
twenty-seven on June 20, 1999.
BB&T filed an answer, motion to dismiss pursuant to N.C. Gen. Stat.
§ 1A-1, Rule 12(b)(6), and motion for judgment on the pleadings
pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(c). BB&T asserted,
inter alia, that the applicable statutes of limitations barred
In an order entered 2 February 2004, the trial court
concluded that plaintiffs' individual and collective claims for
breach of fiduciary duty were barred by the three-year statute oflimitations set forth in N.C. Gen. Stat. § 1-52(1) and that
plaintiffs had not stated a claim for constructive fraud.
Accordingly, the court granted BB&T's motions to dismiss and for
judgment on the pleadings. From this order, plaintiffs now appeal.
 We begin our analysis with the standard of review. On a
Rule 12(b)(6) motion to dismiss, the question is whether, as a
matter of law, the allegations of the complaint, treated as true,
state a claim upon which relief can be granted. Wood v. Guilford
Cty., 355 N.C. 161, 166, 558 S.E.2d 490, 494 (2002) (citation
omitted). Dismissal under Rule 12(b)(6) is proper if
(1) the complaint on its face reveals that no
law supports the plaintiff's 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's claim.
Id. (citation omitted). A statute of limitations can provide the
basis for dismissal on a Rule 12(b)(6) motion if the face of the
complaint establishes that plaintiff's claim is so barred.
Soderlund v. N.C. School of the Arts, 125 N.C. App. 386, 389, 481
S.E.2d 336, 338 (1997).
N.C. Gen. Stat. § 1A-1, Rule 12(c) (2003) permits a party to
move for judgment on the pleadings, after the filing of a
responsive pleading, where the formal pleadings reveal that certain
claims or defenses are baseless. Garrett v. Winfree, 120 N.C. App.
689, 691, 463 S.E.2d 411, 413 (1995).
A motion for judgment on the pleadings
pursuant to G.S. 1A-1, Rule 12(c), should notbe granted unless the movant clearly
establishes that no material issue of fact
remains to be resolved and that he is entitled
to judgment as a matter of law. In considering
a motion for judgment on the pleadings, the
trial court is required to view the facts
presented in the pleadings and the inferences
to be drawn therefrom in the light most
favorable to the nonmoving party.
American Bank & Trust Co. v. Elzey, 26 N.C. App. 29, 32, 214 S.E.2d
800, 802 (quoting 5 Wright & Miller, Federal Practice and Procedure § 1368
(1969)), cert. denied, 288 N.C. 252, 217 S.E.2d 662 (1975).
This court reviews de novo rulings on motions made pursuant to
N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) and (c). See, e.g., Lea v.
Grier, 156 N.C. App. 503, 507, 577 S.E.2d 411, 414 (2003) (Rule
12(b)(6)); Garrett, 120 N.C. App. at 691, 463 S.E.2d at 413 (Rule
 The first issue on appeal is whether plaintiffs' complaint
asserts only claims for breach of fiduciary duty or whether the
complaint also states claims for constructive fraud. Plaintiffs
contend that their complaint includes claims for constructive
fraud, which are governed by a ten-year statute of limitations. We
do not agree.
When determining the applicable statute of limitations, we
are guided by the principle that the statute of limitations is not
determined by the remedy sought, but by the substantive right
asserted by plaintiffs. Baars v. Campbell Univ., Inc.
, 148 N.C.
App. 408, 414, 558 S.E.2d 871, 875, disc. review denied
, 355 N.C.
490, 563 S.E.2d 563 (2002). Allegations of breach of fiduciaryduty 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. § 1-52(1) (2003).
(See footnote 1)
See Tyson v. N.C.N.B.
, 305 N.C. 136, 142, 286 S.E.2d 561, 565
(1982) (holding that where defendant accepted positions as executor
and trustee, which created the fiduciary duties allegedly breached,
and defendant received commissions or fees as executor and trustee,
[t]he overall transaction . . . [was] clearly contractual in
nature . . . and any failure to perform in compliance with the
duties as a fiduciary [was] tantamount to a breach of contract.).
However, [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. § 1-56 .
(See footnote 2)
Nationsbank of N.C.
, 140 N.C. App. 106, 113, 535 S.E.2d 597, 602 (2000).
In order to maintain a claim for constructive fraud,
plaintiffs must show that they and defendants were in a 'relation
of trust and confidence . . . [which] led up to and surrounded the
consummation of the transaction in which defendant is alleged to
have taken advantage of his position of trust to the hurt of
plaintiff.' Barger v. McCoy Hillard & Parks
, 346 N.C. 650, 666,488 S.E.2d 215, 224 (1997) (quoting Rhodes v. Jones
, 232 N.C. 547,
549, 61 S.E.2d 725, 726 (1950)). Implicit in the requirement that
a defendant '[take] advantage of his position of trust to the hurt
of plaintiff' is the notion that the defendant must seek his own
advantage in the transaction; that is, the defendant must seek to
benefit himself. Id
In the instant case, plaintiffs' complaint makes the following
averments under the heading Claims for Constructive Fraud by all
40. Plaintiffs, as the beneficiaries of trusts
established under the Will, placed a special
confidence in UCB during the time period that UCB
served as trustee.
41. UCB, by accepting the appointment as trustee by
this Court, obligated itself to act in good faith
and with due regard to the interests of Plaintiffs.
42. By virtue of the foregoing, a fiduciary
relationship was created between Plaintiffs and UCB
which began on the date of UCB's appointment as
trustee in 1984 and continued until the date of its
merger with BB&T in 1997.
43. UCB utilized its fiduciary relationship with
Plaintiffs, and more particularly its
responsibility for management of the assets and
liabilities of Plaintiffs' respective trusts, for
improper financial gain at the expense of
Plaintiffs. UCB's abuse of its fiduciary
relationship with Plaintiffs includes, but is not
limited to, the collection of inflated trustees'
fees arising from the following errors that were
discovered by Clark during his partial audit of the
trust accounts in 1994:
a) The overvaluation of the Foreman
tract . . . ;
b) The failure to adjust property values
following the harvest and sale of timber . . . ;
c) Valuation errors arising from the Pinkney
Street Lot and Zylphia Brown Farm . . . ; and
d) The erroneous removal of several demand
notes from Tracy's Trust on December 31,
1987 . . . .
44. UCB also abused its fiduciary relationship with
Plaintiffs by collecting trustees' fees based upon
an inaccurate appraisal of Plaintiffs' farm lands
by UCB's own employee in 1982, which appraisal
overstated the value of the appraised properties
and thus significantly increased the trustees' fees
which UCB was able to charge. This misconduct was
discovered by Clark in March or April of 2002.
Noticeably absent is the required assertion that UCB sought to
benefit itself. Indeed, plaintiffs' complaint characterizes UCB's
behavior as erroneous. Accordingly, plaintiffs have not asserted
claims for constructive fraud. As plaintiffs' complaint alleges
only breach of fiduciary duty claims, the trial court properly
ruled that all of plaintiffs' claims are governed by the three-year
statute of limitations contained in N.C. Gen. Stat. § 1-52(1).
This assignment of error is overruled.
 The next issue on appeal is whether the trial court erred
by dismissing all of plaintiffs' breach of fiduciary duty claims.
We conclude that the trial court's dismissal must be affirmed
because all but one of plaintiffs' breach of fiduciary duty claims
are barred by the statute of limitations, and the remaining
allegation of breach fails to state a claim upon which relief may
For cases involving allegations that a trustee is in breach of
its fiduciary duty, [t]he statute of limitations begins to runwhen the claimant 'knew or, [by] due diligence, should have known'
of the facts constituting the basis for the claim. Pittman v.
Barker, 117 N.C. App. 580, 591, 452 S.E.2d 326, 332 (quoting Hiatt
v. Burlington Industries, Inc., 55 N.C. App. 523, 530, 286 S.E.2d
566, 570, disc. review denied, 305 N.C. 395, 290 S.E.2d 365
(1982)), disc. review denied, 340 N.C. 261, 456 S.E.2d 833 (1995).
If the materials before the court present a factual question as to
when a plaintiff knew or should have known of the facts giving rise
to the claim, then this issue must be submitted to the jury. Dawn
v. Dawn, 122 N.C. App. 493, 495, 470 S.E.2d 341, 343 (1996). Under
North Carolina law, 'the statute of limitations begins to run
against an infant . . . who is represented by a guardian at the
time the cause of action accrues.' Bryant v. Adams, 116 N.C. App.
448, 459, 448 S.E.2d 832, 837 (1994) (quoting Trust Co. v. Willis,
257 N.C. 59, 62, 125 S.E.2d 359, 361 (1962)), disc. review denied,
339 N.C. 736, 454 S.E.2d 647 (1995). Therefore, if an infant is
represented by a guardian, the statute of limitations for a breach
of fiduciary duty claim begins to run when her guardian knew or
should have known of the facts giving rise to the claim. See id.
In the instant case, the vast majority of the breaches
asserted by plaintiffs occurred prior to Arthur Clark's
preliminary audit of the trust accounts in the spring of 1994.
Clark's audit allegedly revealed a number of problems with the
accounts, and at this point, plaintiffs were put on notice that
there were possible problems with the administration of the trusts.
As of that point, Tracy and Andrea had reached the age of majority,and Erica was being represented by a guardian. Accordingly,
plaintiffs knew or should have known about any pre-1994 breaches
within a reasonable amount of time following the 1994 audit. Thus,
the three-year statute of limitations set forth in N.C. Gen. Stat.
§ 1-52(1) expired well prior to filing of plaintiffs' complaint on
31 July 2003.
Further, nearly all of the indiscretions which plaintiffs
allege BB&T committed within three years prior to the filing of the
complaint involve BB&T's failure to investigate and correct the
breaches of fiduciary duty for which recovery is barred by the
statute of limitations. Such allegations are insufficient to
revive plaintiffs' expired claims.
 We note also that plaintiffs have averred that BB&T
breached its fiduciary duty to Andrea by failing to distribute all
of the assets in [her] Trust . . . to her on March 2, 2003.
Although this averment includes conduct which occurred within three
years of the filing of plaintiffs' complaint, it should have been
dismissed pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) for
failure to state a claim upon which relief may be granted.
To state a claim for breach of fiduciary duty, a plaintiff
must allege that a fiduciary relationship existed and that the
fiduciary failed to 'act in good faith and with due regard to
[plaintiff's] interests[.]' White v. Consol. Planning, Inc., 166
N.C. App. 283, 293, 603 S.E.2d 147, 155 (2004) (quoting Vail v.
Vail, 233 N.C. 109, 114, 63 S.E.2d 202, 206 (1951)), disc. review
denied, No. 579P04, __ N.C. __, __ S.E.2d __ (filed 4 February2005). In the instant case, plaintiffs' complaint states that
Arthur Clark nominated a replacement trustee for BB&T on 22 October
2002 and that BB&T ceased being the trustee of plaintiffs' trust
accounts on 27 March 2003. The complaint fails to offer any
explanation as to how delaying distribution of Andrea's trust
assets for twenty-five days while a change of trustee was imminent
constituted a failure to act in good faith and with due regard for
These assignments of error are overruled.
 The final issue on appeal is whether the trial court
improperly disposed of plaintiffs' claim for an accounting.
Plaintiffs contend that the trial court erred by dismissing this
claim and by failing to set forth the grounds for the dismissal.
Plaintiffs sought an accounting as an equitable remedy for the
alleged breaches of fiduciary duty and constructive fraud. As the
underlying allegations either fail to state a claim for relief or
assert claims that are barred by the statute of limitations, the
remedy sought is also unavailable. Moreover, given that the
grounds for dismissal are readily discernible, we decline to remand
for further conclusions of law from the trial court. See O'Neill
, 40 N.C. App. 227, 231, 252 S.E.2d 231, 234 (1979) (The
purpose for requiring findings of fact and conclusions of law is to
allow meaningful review by the appellate courts.).
This assignment of error is overruled. Affirmed.
Chief Judge MARTIN and Judge ELMORE concur.
N.C. Gen. Stat. § 1-52(1) (2003) requires an
action . . . [u]pon a contract, obligation or liability arising
out of a contract, express or implied, to be brought within
three years of the time that the cause of action accrues
N.C. Gen. Stat. § 1-56 (2003) provides that [a]n action
for relief not otherwise limited . . . may not be commenced more
than 10 years after the cause of action has accrued.
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