An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA04-805

NORTH CAROLINA COURT OF APPEALS

Filed: 5 July 2005

R. KENNETH BABB, Public
Administrator, CTA of the
Estate of REBA BURTON
NEWTON and R. KENNETH BABB,
Public Administrator, CTA
of the Estate of JERRY
LEWIS NEWTON, JR.,
        Plaintiffs,

v .                             Forsyth County
                                No. 02 CVS 1091
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,
JERRY L. NEWTON, III, Trustee
under the Will of JERRY
LEWIS NEWTON, JR. and GORDON W.
JENKINS,
        Defendants.

    Appeal by Jerry L. Newton, III, from order entered 8 March 2004 by Judge Michael E. Helms in Forsyth County Superior Court. Heard in the Court of Appeals 3 February 2005.

    R. Kenneth Babb for plaintiffs-appellees.

    BENNETT & GUTHRIE, P.L.L.C., by Richard V. Bennett, for defendant-appellee Anne Newton Graham.

    WILSON & ISEMAN, L.L.P., by G. Gray Wilson and Maria C.
    Papoulias, for defendant-appellee Joseph Wesley Newton.

    BAILEY & THOMAS, P.A., by Wesley Bailey, for defendant- appellee Paul Jeffrey Newton.

    Stephen E. Lawing for defendant-appellant Jerry L. Newton,
    III.

    
    TIMMONS-GOODSON, Judge.

    Jerry L. Newton, III (“appellant”), appeals the trial court order granting partial summary judgment in favor of R. Kenneth Babb (“Babb”), Anne Newton Graham (“Anne”), Joseph Wesley Newton (“Joseph”), and Paul Jeffrey Newton (“Paul”).   (See footnote 1)  For the reasons discussed herein, we affirm the trial court's order.
    The facts and procedural history pertinent to the instant appeal are as follows: On 18 February 2002, Babb filed a declaratory judgment complaint seeking to determine whether an actual controversy existed among the parties with regard to the testamentary estates and trusts of decedents Jerry Lewis Newton, Jr. (“Jerry”), and Reba Burton Newton (“Reba”). Babb filed the complaint in his capacity as Public Administrator, CTA of the estates, and the complaint contains the following pertinent allegations:
        3. [Anne, appellant, Joseph, and Paul] were, and now are the beneficiaries of the estates of [Reba] and [Jerry] and beneficiaries of certain trusts created by [Reba] and [Jerry] in their respective Wills and during their lifetimes. [Appellant] is now Trustee under the Will of certain trusts created by [Reba] and [Jerry] in their respective Wills and during their lifetimes.

        . . . .

        5. [T]here exists certain perplexing and complex matters in dispute among [the parties] relating to the administration of the estates and trusts . . . .
        A. [Babb] is informed, believes and alleges that [Reba], during her lifetime, executed certain checks to [Anne]. [Babb] was shown some of the aforementioned checks by [appellant] . . . at or about the time that personal property of the Reba Newton estate was sold by [Babb] . . . . To the best recollection of [Babb], the checks were dated more than ten years ago and were in all likelihood at least 15 years ago. On some of the checks there was a notation “loan”. . . . [Babb] lacks sufficient knowledge and information as to whether:

            1. The amounts were in fact repaid to [Reba] by [Anne], and further,
        
            2. If [Babb] is barred by the statute of limitations from collection of such amounts, if they have not been repaid to [Reba] by [Anne].

        . . . .

        D. [Appellant] has presented a claim to the estate of [Jerry] for services rendered the estate while serving as Executor of the estate in the amount of $142,821.08 plus 8% interest since November 22, 1999. . . . [Appellant] was removed for cause as Executor of the estate . . . by the Clerk of Superior Court of Forsyth County. [Babb] is informed, believes and alleges that §28A-23-3(e) of the North Carolina General Statutes provides that no personal representative who has been guilty of default or misconduct resulting in revocation of his appointment shall be entitled to commissions. The claim of [appellant] is entitled “services rendered” instead of commissions. [Babb] is not aware of any legal theory whereby a personal representative, not entitled to commissions as a result of his removal from office, may subsequently make a claim for services rendered for performance of the same responsibilities that commissions would be due to such personal representative had he not been removed from office.

        E. [Babb] is informed, believes and alleges that [Anne], [Joseph] and [Paul] filed a Petition for the Adjudication of Incompetence of [Reba] on May 8, 1998 . . . . Hearings were conducted on the petition by the Clerk of Superior Court but no judgment was entered relating to the competence of [Reba] before her death on September 5, 1998. [Appellant] has asserted that:

            1. [Babb] pursue punitive litigation against [Anne], [Joseph] and [Paul] for malice, and that,

            2. [Babb] prosecute the Clerk of Superior Court for violation of North Carolina General Statutes that require hearings to be held within 30 days.

        F. [Babb] is informed, believes and alleges that:

            1. During her lifetime, [Reba] filed a civil action . . . against [Joseph] for collection of certain obligations that resulted in the entry of a judgment against [Joseph] in the amount of $141,255.00 plus interest from December 6, 1997 and prejudgment interest of $65,850.08. . . .

            2. [Joseph] filed a civil action . . . against the estate of [Jerry], [Reba], individually and in her representative capacity and [appellant], individually and in his representative capacity. This civil action resulted in a consent order by the parties which incorporated a settlement agreement executed by the parties. . . .

            3. The settlement agreement provided that [Joseph] was indebted to:

                a. [Reba] in the amounts provided . . . ($141,225.00 principal plus interest from December 6, 1997 and prejudgment interest of $65,850.08),

                b. [Anne], [appellant] and [Paul] in equal shares a total amount of $45,000.00 plus interest at 8% from December 17, 1997.

            The settlement agreement further providedthat to satisfy the aforementioned debts [Joseph] pays, conveys and assigns his shares of the principal of the two trusts, the Revocable Trust Agreement of [Jerry] . . . and the trust created by the Will of [Jerry]. The payments, conveyances and assignments referred to herein above were irrevocable and were effective January 16, 1998.

            [Babb] is informed, believes and alleges that the obligations of [Joseph] set out . . . above were not satisfied by [appellant] by payment from the assets held in the Revocable Trust Agreement of [Jerry] . . . and the trust created by the Will of [Jerry].

            4. After entry of the consent order . . . incorporating the settlement agreement, the obligations of [Joseph] set out . . . above should have been satisfied immediately by [appellant] from the assets held in the Revocable Trust Agreement of [Jerry] . . . and the trust created by the Will of [Jerry], by payment to:

                a. [Reba] in the amount of $141,225.00 principal plus interest from December 6, 1997 and prejudgment interest of $65,850.08 . . ., and to

                b. [Anne], [appellant] and [Paul] in the amount of $45,000.00 plus 8% interest from December 17, 1997 provided for in the settlement agreement.

            . . . .

            Since the entire obligations of [Joseph] were not satisfied immediately by [appellant] after entry of the consent order . . ., the amount of judgment [in favor of Reba] and the amount owed to [Anne], [appellant] and [Paul] . . . by [Joseph] according to the settlement agreement, have accumulated sizable interest.
Based in part upon these allegations, Babb requested that the trial court determine a series of questions “that will allow a complete and final conclusion of all matters relating to the administration of the estates of [Reba] and [Jerry], as well as the several trusts referred to in this Complaint.”
    The parties filed separate answers to the complaint. In their answers, Anne and Paul filed cross-complaints against appellant. The parties thereafter filed a series of replies, cross-claims, and motions for partial summary judgment. On 17 February 2004, the trial court held a hearing on all matters before it. Following presentation of evidence and argument from all parties, the trial court issued an order containing the following pertinent conclusions of law:
        (1) That there is no genuine issue of material fact as to the issues raised in the Motion for Partial Summary Judgment of [Babb], . . . and the claim of [appellant] seeking the sum of $142,821.08 plus 8% interest since November 22, 1999, whether claimed individually, or as executor's commissions pursuant to N.C.G.S. §28A-23-3(e), [is] dismissed;

        (2) That there is no genuine issue of material fact as to the issues raised in the Motion for Partial Summary Judgment of [Babb and Joseph], . . . and Judgment [is] entered against [appellant as trustee] for $50,726.28 in principal and pre-judgment interest and $45,000.00 in principal, and against [appellant], individually, for all interest on the amount of $50,726.28 described above from December 31, 1997, through February 16, 2004, at the lawful rate of 8% interest in the amount of $46,255.72, and for all interest on the sum of $45,000.00 described above on December 17, 1997, through February 16, 2004, at the lawful rate of 8% in the total amount of $12,141.88.
        (3) That there is no genuine issue of material fact as to the issues raised in the Motion for Partial Summary Judgment of [Anne], regarding the claims alleged against [Anne] for money owed for checks written by [Jerry] or [Reba] to [Anne], . . . and those claims against [Anne] are dismissed and the Court specifically finds that no action should be filed by [Babb] in his capacity as Public Administrator, CTA, of the Estates of [Reba] and [Jerry] regarding those claims;

        . . . .

        (5) That there is no genuine issue as to any material fact as to the issues in the Motions for Partial Summary Judgment of [Anne], [Joseph], and [Paul], regarding the claim of [appellant] . . . that [Babb] as public administrator, CTA, of the Estate of [Reba] should be required to “pursue punitive litigation” against those defendants who filed a petition for the adjudication of incompetence of [Reba] . . ., and the Court specifically finds that no such action should be filed by [Babb] . . . .

Based upon these conclusions, the trial court granted partial summary judgment in favor of Babb, Anne, Joseph, and Paul. The trial court also ordered that appellant pay those sums described in paragraph two of its order. Appellant thereafter filed notice of appeal with this Court.



    The issues on appeal are whether the trial court erred by granting partial summary judgment: (I) in favor of Babb on the issue of appellant's executor's commission; (II) in favor of Anne on the issue of checks written by Jerry and Reba; (III) in favor of Anne, Joseph, and Paul on the issue of whether Babb should file an action against them; and (IV) in favor of Babb and Joseph on the issue of the funds due under the settlement agreement.    We note initially that a partial summary judgment order which determines fewer than all of the claims of an action is not immediately appealable unless the order affects a substantial right of a party or is certified by the trial court for immediate appeal. Pitt v. Williams, 101 N.C. App. 402, 404, 399 S.E.2d 366, 368 (1991). Nevertheless, in its discretion, this Court may treat an interlocutory appeal as a petition for writ of certiorari and proceed to address its merits. See Coleman v. Interstate Casualty Ins. Co., 84 N.C. App. 268, 270, 352 S.E.2d 249, 251 (1987); Industrotech Constructors v. Duke University, 67 N.C. App. 741, 742-43, 314 S.E.2d 272, 274 (1984); Ziglar v. Du Pont Co., 53 N.C. App. 147, 149, 280 S.E.2d 510, 512, disc. review denied, 304 N.C. 393, 285 S.E.2d 838 (1981). In the instant case, the trial court did not certify its order granting partial summary judgment as immediately appealable. To the extent that appellant has failed to demonstrate that the order affects a substantial right, we choose to treat the purported appeal as a petition for writ of certiorari, and, accordingly, we will address its merits.
    Appellant first argues that the trial court erred by granting summary judgment in favor of Babb on the issue of appellant's executor's commission. Appellant contends that because he rendered services outside of his duties as executor, the trial court erred by granting summary judgment in favor of Babb and dismissing appellant's requests for commission. We disagree.
    Summary judgment is proper in a declaratory judgment proceeding where “the pleadings, depositions, answers tointerrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2003); McKinney v. Richitelli, 357 N.C. 483, 486, 586 S.E.2d 258, 261 (2003). Furthermore, summary judgment is also appropriate where a statutory bar to recovery is properly pled and the facts of the case are not disputed. Marshburn v. Associated Indemnity Corp., 84 N.C. App. 365, 369, 353 S.E.2d 123, 126, disc. review denied, 319 N.C. 673, 356 S.E.2d 779 (1987) (statute of limitations). In the instant case, because N.C. Gen. Stat. § 28A-23-3 and N.C. Gen. Stat. § 28A-19-16 bar appellant's claim for services rendered to Jerry's estate while appellant served as executor, we conclude that the trial court did not err by granting summary judgment on this issue.
    N.C. Gen. Stat. § 28A-23-3(e) (2003) provides that “[n]o personal representative, collector or public administrator who has been guilty of such default or misconduct in the due execution of his office resulting in the revocation of his appointment . . . shall be entitled to any commission under the provisions of this section.” In the instant case, Babb requested in the declaratory judgment complaint that the trial court determine whether appellant was entitled to compensation for the services he rendered the estate while serving as executor of Jerry's will. Babb noted in the complaint that appellant was removed for cause while serving as executor, and Babb attached the pertinent trial court orderremoving appellant as executor. In that order, the trial court found that appellant deliberately and willfully excluded Joseph from participation in the administration of the estate, failed to file proper accountings on the estate, improperly distributed assets of the estate, improperly co-mingled real estate rents and disbursements with other estate assets, and engaged in “divisive” litigation with his co-executors. The trial court further found that appellant refused to furnish beneficiaries with information regarding the assets of the estate, improperly charged personal debts and management fees against the estate, directed payments to the estate to his personal accounts, and failed to pursue the removal of a co-executor who maintained “a private interest which was adverse to a fair and proper administration of the Estate.” Based in part upon these findings of fact, the trial court removed appellant as executor of Jerry's estate.
    Appellant concedes that he was removed from serving as executor of Jerry's estate. However, he contends that his claim for compensation arose by virtue of services he rendered outside of his appointment as executor. In support of this contention, appellant cites his three year management of Jerry's real estate business and other functions he provided Jerry's estate, which appellant alleges were exclusive of his role as executor as well as “exclus[ive] of his normal occupation.”
     N.C. Gen. Stat. § 28A-23-3(e) provides in pertinent part as follows:
        No personal representative, collector or public administrator, who has been guilty ofsuch default or misconduct in the due execution of his office resulting in the revocation of his appointment under the provisions of G.S. 28A-9-1, shall be entitled to any commission under the provisions of this section.

    N.C. Gen. Stat. § 28A-19-16 (2003) provides as follows:
        If a claim is presented to and rejected by the personal representative or collector, and not referred as provided in G.S. 28A-19-15, the claimant must, within three months, after due notice in writing of such rejection, or after some part of the claim becomes due, commence an action for the recovery thereof, or be forever barred from maintaining an action thereon.

    In the instant case, attached to Babb's motion for partial summary judgment was a copy of a 26 July 2001 letter to appellant, which “denied and rejected” appellant's claim for $142,821.08 plus interest, allegedly arising from appellant's service as executor. The letter advised appellant that Babb had “proposed a method of compromise of [appellant's] claim,” and it instructed appellant to contact Babb “at [his] earliest convenience” if he wished “to pursue the suggestions contained” within the proposal. However, there is no indication in the record that appellant made such an attempt to contact Babb. Nor is there any indication that appellant commenced an action against Jerry's estate involving the claim within the three month period specified by N.C. Gen. Stat. § 28A-19-16. Appellant's contention that N.C. Gen. Stat. § 28A-19-16 does not apply to this case because Babb did not “assert [the statute] as an affirmative defense” prior to his summary judgment motion is without merit. Appellant's failure to ever assert his claim against Jerry's estate relieved Babb from having to plead the“affirmative defense” of N.C. Gen. Stat. § 28A-19-16. Therefore, we conclude that to the extent that appellant's claim was not barred by N.C. Gen. Stat. § 28A-23-3(e) due to his removal for cause as executor, he is nevertheless “forever barred from maintaining an action thereon” by virtue of N.C. Gen. Stat. § 28A- 19-16. Accordingly, we hold that the trial court did not err by granting summary judgment in favor of Babb with respect to this issue.
    Appellant next argues that the trial court erred by granting summary judgment in favor of Anne with respect to the issue of Anne's liability for checks written to Anne by Jerry and Reba. Appellant asserts that because some of the checks contain the notation “[l]oan” and do not specify a period of time for repayment, a genuine issue of fact remains regarding whether Anne breached a contract with Jerry and/or Reba, and therefore the trial court erred by granting summary judgment in favor of Anne. We disagree.
    As discussed above, summary judgment is appropriate where a party properly pleads and demonstrates that a statute of limitations bars another party from recovering on his or her claim. Marshburn, 84 N.C. App. at 369, 353 S.E.2d at 126. With respect to contract-related actions, N.C. Gen. Stat. § 1-52(1) (2003) generally requires that an action “[u]pon a contract, obligation or liability arising out of a contract, expressed or implied,” be filed within three years of an alleged breach of the contract. However, this Court has noted that “money lent pursuant to a verbalagreement, which fails to specify a time for repayment, is payable within a reasonable time.” Phillips & Jordan Investment Corp. v. Ashblue Co., 86 N.C. App. 186, 188, 357 S.E.2d 1, 2, disc. review denied, 320 N.C. 633, 360 S.E.2d 92 (1987). “The determination of what constitutes a reasonable time [and thus when the statute of limitations begins to run] is [normally] a material issue of fact to be answered by the jury.” Id.
    We note that N.C. Gen. Stat. § 28A-18-1(a) (2003) provides in pertinent part that “[u]pon the death of any person, all demands whatsoever, and rights to prosecute or defend any action or special proceeding, existing in favor of or against such person . . . shall survive to and against the personal representative or collector of his estate.” We also note that N.C. Gen. Stat. § 1-22 (2003) provides in pertinent part as follows:
        If a person entitled to bring an action dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, an action may be commenced by his personal representative or collector after the expiration of that time, and within one year from his death.

    In the instant case, assuming arguendo that an oral contract between Anne and Jerry and/or Reba existed, we conclude that any claim against Anne for breach of that contract is barred by the limitations period imposed by N.C. Gen. Stat. § 1-22. Anne alleged in her answer to Babb's complaint as well as in her motion for partial summary judgment that the statute of limitations on appellant's claim had expired. In his answer and cross-claim, appellant alleged that Anne “expressly or impliedly promised to payand become liable upon assumpsit to [Jerry] [for] the sum of $23,400.00 plus interest.” The alleged “checks and loans” attached to appellant's answer and cross-claim were written during various years, some as early as 1978 and one as late as 1991. Two checks written to Anne by Reba were attached to Babb's complaint, one of which was dated 1985 and the other 1991. Appellant specifically alleged in his answer and cross-complaint that “no part of the sum of $23,400.00 has been paid[,]” and he asserted that he notified Babb of “said facts, circumstances and liability . . . on various dates, including April 1, 2000 . . . .” However, there is no indication that a complaint for breach of the alleged contract was ever filed within one year of Reba's death or within one year of Jerry's death. N.C. Gen. Stat. § 1-22 distinguishes between those claims surviving in favor of a decedent's estate and claims surviving against a decedent's estate. “The former must be brought within one year of death, while the latter within one year of letters testamentary or administration.” Ingram v. Smith, 16 N.C. App. 147, 149, 191 S.E.2d 390, 393, cert. denied, 282 N.C. 304, 192 S.E.2d 195 (1972). “The reason for this distinction is that the time during which there was no administration upon the estate of the claimant should not be counted because the law does not encourage remissness in those entitled to administration.” Id. at 150, 191 S.E.2d at 393 (citing Coppersmith v. Wilson, 107 N.C. 31, 12 S.E. 77 (1890)). Therefore, in light of the foregoing, we hold that the trial court did not err by granting summary judgment with respect to the issue of Anne's liability for checks written to Anneby Jerry and Reba.
    Appellant also argues that the trial court erred by granting summary judgment in favor of Anne, Joseph, and Paul on the issue of whether Babb should “pursue punitive litigation” against them. Appellant contends that because Anne, Joseph, and Paul unsuccessfully petitioned the trial court to adjudicate Reba incompetent, Babb was required to file a complaint against them for abuse of process. We disagree.
    N.C. Gen. Stat. § 28A-18-1(b) provides the following several exceptions to those claims which generally “survive to and against” the personal representative of a decedent's estate:

            (1) Causes of action for libel and for slander, except slander of title;

            (2) Causes of action for false imprisonment;

            (3) Causes of action where the relief sought could not be enjoyed, or granting it would be nugatory after death.

As discussed above, N.C. Gen. Stat. § 1-22 provides that any action surviving a decedent's death “may be commenced by his personal representative or collector after the expiration of the time limited for the commencement [of the action], and within one year from his death.” In the instant case, as detailed above, Babb's declaratory judgment complaint alleged that on 8 May 1998, Anne, Joseph, and Paul petitioned the trial court to adjudicate Reba incompetent. No judgment was entered on the petition prior to Reba's death on 5 September 1998. The record contains no indication that an action was brought against Anne, Joseph, andPaul within one year of Reba's death. Therefore, assuming arguendo that recovery under an abuse of process claim could be enjoyed and would not be nugatory under N.C. Gen. Stat. § 28A-18-1(b), such a claim is barred by the statute of limitations imposed by N.C. Gen. Stat. § 1-22. Although appellant asserts that the parties failed to plead the statute of limitations with respect to this issue, we note that “in addition to denying that he owes any monetary amounts by reason of [Babb's] pleadings,” Paul pled that “the application of the Statute of Limitations . . . would serve as a bar to any of” the claims against him. Similarly, Anne pled that along with those claims detailed in Issue II, “any other claims” against her were “barred by the applicable” statutes of limitation. We conclude that these pleadings satisfy the notice requirements for pleading an affirmative defense and were sufficient to put the parties on notice that the timing of the potential claims was an issue. See Bonestell v. North Topsail Shores Condominiums, 103 N.C. App. 219, 223-24, 405 S.E.2d 222, 225 (1991) (holding that party's failure to plead N.C. Gen. Stat. § 1-52(16) by precise number and subsection was not fatal under N.C. Gen. Stat. § 1A-1, Rule 8(c), where party expressly pled N.C. Gen. Stat. § 1-50 as an affirmative defense and referred to three-year statute of limitations). Therefore, we hold that the trial court did not err by granting partial summary judgment in favor of Anne, Joseph, and Paul with respect to the issue of their alleged abuse of process.
    Appellant further argues that the trial court erred by granting summary judgment in favor of Babb and Joseph on the issueof payments due under the settlement agreement. Appellant contends that a genuine issue of material fact remains as to whether he breached his fiduciary duty to Joseph and other beneficiaries under the trust. We disagree.
    The record reflects that in January 1998, Joseph, Reba, appellant, and Jerry's estate entered into a settlement agreement aimed at resolving “a variety of disputes between the parties[,]” including a suit by Reba against Joseph and a suit by Joseph against Jerry's estate, Reba, and appellant. The settlement agreement provided in pertinent part as follows:
        4. [Joseph] agrees and acknowledges that: he is indebted to [Reba] in such amount as is set out in the unsatisfied judgment against [Joseph] in civil action 96CVS4147; and he is indebted also to [appellant], [Paul], and [Anne], as beneficiaries of the Estate of [Jerry], in equal shares, for a total of $45,000.00 plus 8% annual interest from December 17, 1997, until paid. To satisfy these debts, [Joseph] pays, conveys, and assigns his shares of the principal of the Trusts [created inter vivos by Jerry and Reba as well as in Jerry's will] as follows:

            a. To [appellant], [Paul], and [Anne] . . . in equal shares, a total of $45,000.00 plus 8% annual interest from December 17, 1997, until paid;

            b. To [Reba] . . . an amount equal to the unpaid judgment against [Joseph] in civil action 96CVS4147, plus interest as provided in the judgment;

            . . . .

            d. These payments, conveyances, and assignments are to be made pro rata first from the Trust established under the will of [Jerry], to the extent funds are due [Joseph] and are available, and are to be made before any moneys are paid to[Joseph]; provided that [Joseph's] debts, as set forth in this paragraph, shall remain and continue to accrue interest to the extent they are not satisfied by [Joseph's] shares of the principal of the Trusts upon [Reba's] death and distribution of the Trusts' principal, if any.

            e. To ensure that these payments, conveyances, and assignments are made:

                (1) [Joseph] authorizes the Forsyth County Clerk of Court and/or the Forsyth County Superior Court to enter orders, at any time, that the trustees of the Trusts deliver the funds to the persons listed above at such time as defendant would otherwise be entitled to receive the funds under the terms of the Trusts[.]

In a consent order filed 22 January 1998, the trial court approved and adopted the terms of the settlement agreement. Appellant thereafter distributed approximately $73,000.00 from Jerry's estate to Reba, in partial payment of Joseph's debt to Reba under the terms of the settlement agreement. However, at the time Babb filed the declaratory judgment complaint, Joseph owed Reba's estate $50,726.08 in outstanding principal and prejudgment interest, as well as $46,255.72 in accrued interest. Furthermore, Joseph also owed appellant, Paul, and Anne the principal sum of $45,000.00, as well as $12,141.88 in accrued interest.
    At the summary judgment hearing, Joseph and Babb contended that, as trustee of the relevant trusts, appellant could have distributed the funds owed to Reba, Paul, Anne, and himself as early as 1998. However, according to Joseph and Babb, appellant engaged in a pattern of withholding money from the beneficiaries ofthe trusts, including withholding payments due to Reba and the beneficiaries under the terms of the settlement agreement. Appellant asserted that under subsection (e)(1) of paragraph (4), a party was required to file an action with the Clerk of Superior Court in order to distribute the funds, and the responsibility was on each of the parties to request that they receive their money. The trial court concluded that appellant was “hiding behind [subsection] E(1) for the purpose of getting a better return on his investment,” and by virtue of the terms of the settlement agreement, appellant was required to distribute the funds detailed therein directly after the trial court adopted the settlement agreement as a consent order. The trial court thus ordered appellant to personally pay the accrued interest owed to the parties under the terms of the settlement agreement.
    On appeal, appellant reasserts his contention that subsection (e)(1) of paragraph (4) places an affirmative duty upon Joseph and the other parties to the settlement agreement to apply for a court order to distribute the funds. However, after reviewing the record, we agree with the trial court's assessment of the terms of the settlement agreement.
    “A contract that is plain and unambiguous on its face will be interpreted by the court as a matter of law.” Cleland v. Children's Home, 64 N.C. App. 153, 156, 306 S.E.2d 587, 589 (1983). “If an agreement is ambiguous, on the other hand, and the intention of the parties unclear, interpretation of the contract is for the jury.” Id. In the instant case, we note that subsection (e)(1)only “authorizes” the Clerk of Superior Court or the trial court to enter such an order -- it does not place an affirmative duty upon Joseph to file a formal request for such an order, nor does it place such a responsibility on any other party to the settlement agreement. We also note that following the execution of the settlement agreement and the trial court's adoption of it, appellant unilaterally distributed approximately $73,000.00 from Jerry's estate to Reba, in his capacity as trustee of Jerry's trust and pursuant to the terms of the settlement agreement. There is no indication in the record that Joseph, Reba, or any other party to the agreement requested that appellant make these distributions, nor is there any indication that one of the parties filed a request with the Clerk or the trial court to order the distributions. Thus, after reviewing the record in the instant case, including the pertinent provisions of the settlement agreement, we conclude that the trial court did not err in its determination that, upon the adoption of the settlement agreement's terms, appellant was required to distribute the funds referred to in the agreement, regardless of whether any party filed a formal request for such distribution.
    Appellant maintains that the trial court erred by imposing personal liability upon him because the issue of his personal liability was not raised by the parties' pleadings. We disagree.
    We note where a trustee mismanages trust property, the trustee may be sued in his individual capacity for damages suffered by the trust's beneficiaries. See Fortune v. First Union Nat. Bank, 323N.C. 146, 149, 371 S.E.2d 483, 484 (1988). N.C. Gen. Stat. § 36A-1 (2003) provides that a trustee serves in a fiduciary capacity, and therefore under N.C. Gen. Stat. § 36A-2 (2003), a trustee must “observe the standard of judgment and care under the circumstances then prevailing, which an ordinarily prudent person of discretion and intelligence, who is a fiduciary of the property of others, would observe as such fiduciary[.]”
    In the instant case, Babb's declaratory judgment complaint expressly asked the trial court to determine
        From the facts presented in this Complaint, or at a trial of this action, what is the obligation, debt or responsibility, if any, of [appellant] as a result of the facts and circumstances set out in paragraph H of this Complaint[.]

Paragraph H of the declaratory judgment complaint contained an allegation stating that appellant “failed to pay [Joseph's] obligations to [Reba] and to himself, Anne & [Paul] from the trusts pursuant to the consent agreement . . . .” The settlement agreement and resulting consent order were attached to the declaratory judgment complaint. In light of the foregoing, we conclude that appellant has failed to demonstrate that he was given insufficient notice that his personal liability for his actions as trustee would be an issue in the case. Therefore, because no genuine issue of material fact remains with respect to the issue of payments due under the settlement agreement, we hold that the trial court did not err by granting summary judgment in favor of Babb and Joseph on the issue.
    We have reviewed appellant's remaining assignments of error,and we conclude that the trial court did not err. Accordingly, we affirm the trial court's order granting partial summary judgment on the various issues detailed above.
    Affirmed.
    Judges BRYANT and LEVINSON concur.
    Report per Rule 30(e).


Footnote: 1
     Although a party to the original action, Gordon W. Jenkins is not a party to the instant appeal.

*** Converted from WordPerfect ***