BABB v. GRAHAM,

R. KENNETH BABB, Public
Administrator, CTA of the
Estate of REBA BURTON NEWTON;
R. KENNETH BABB, Public
Administrator, CTA of the
Estate of JERRY LEWIS NEWTON,
JR.; R. KENNETH BABB, Special
Trustee of the Trust established
by JERRY LEWIS NEWTON, JR.,
under the Will of JERRY LEWIS
NEWTON, JR., dated September 29,
1992; R. KENNETH BABB, Special
Trustee of the Trust established
by JERRY LEWIS NEWTON, JR.,
under a certain Revocable Trust
Agreement dated September 29,
1992; and R. KENNETH BABB,
Special Trustee of the Trust
established by REBA BURTON
NEWTON, under a certain Revocable
Trust Agreement dated September
29, 1992,
Plaintiffs,

v
.
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; and JERRY
L. NEWTON, III, Trustee
under the Will of JERRY LEWIS
NEWTON, JR.,
Defendants.

Appeal by Defendant Jerry L. Newton, III from order entered 10
October 2006, from order and judgment entered 29 December 2006,
and from orders entered 22 January 2007, 22 March 2007, and 17 May2007 by Judge Michael E. Helms in Superior Court, Forsyth County.
Heard in the Court of Appeals 19 February 2008.

R. Kenneth Babb for Plaintiffs-Appellees; Bennett & Guthrie,
P.L.L.C., by Richard V. Bennett and Roberta B. King, for
Defendant-Appellee Anne Graham Newton; Wilson & Coffey, LLP,
by G. Gray Wilson, J. Chad Bomar, and Stuart H. Russell, for
Defendant-Appellee Joseph Wesley Newton; and Bailey & Thomas,
P.A., by Wesley Bailey, for Defendant-Appellee Paul Jeffrey
Newton.

Stephen E. Lawing for Defendant-Appellant Jerry L. Newton,
III.

McGEE, Judge.

Defendant Jerry L. Newton, III appeals from orders and
judgment of the trial court. For the reasons set forth below, we
affirm.
R. Kenneth Babb, as Public Administrator, CTA of the Estate of
Reba Burton Newton and as Public Administrator, CTA of the Estate
of Jerry Lewis Newton, Jr. (Plaintiffs) filed a complaint for
declaratory judgment on 18 February 2002 against Anne Newton
Graham; Jerry L. Newton, III; Joseph Wesley Newton; Paul Jeffrey
Newton; Jerry L. Newton, III, as Trustee under the Will of Reba
Burton Newton; Jerry L. Newton, III, as Trustee under the inter
vivos trust of Reba Burton Newton; Jerry L. Newton, III, as Trustee
under the Will of Jerry Lewis Newton, Jr.; and Gordon W. Jenkins.
Plaintiffs alleged the following:
[P]laintiffs’ and [D]efendants’ rights, duties
and obligations with regard to the
aforementioned estates and trusts arise under
and by virtue of authority of the Will of Reba
Burton Newton, the Will of Jerry Lewis Newton,
Jr., a Trust created by the Will of RebaBurton Newton, an inter vivos Trust created by
Reba Burton Newton and a trust created by the
Will of Jerry Lewis Newton, Jr. Copies of the
Wills and Trusts are attached hereto, marked
"Exhibit A" (Reba Burton Newton Will),
"Exhibit B" (Jerry Lewis Newton, Jr. Will),
"Exhibit C" (Reba Burton Newton inter vivos
Trust dated September 29, 1992) and "Exhibit
D" (Jerry Lewis Newton, Jr. inter vivos Trust
dated September 29, 1992) and incorporated by
reference as if fully set out herein.

We hereinafter refer to the above-listed trusts collectively as
"the trusts." Plaintiffs alleged that Anne Newton Graham, Jerry L.
Newton, III, Joseph Wesley Newton, and Paul Jeffrey Newton were
beneficiaries of the estates of their parents, Reba Burton Newton
and Jerry Lewis Newton, Jr., and were beneficiaries of the trusts
created by their parents. Plaintiffs alleged several claims
seeking to resolve all issues related to the administration of the
trusts. Plaintiffs filed an amendment to their complaint on 3
October 2002.
Jerry L. Newton, III filed a motion for a more definite
statement and a motion to dismiss dated 4 October 2002. Paul
Jeffrey Newton and Anne Newton Graham filed an answer and cross-
claim against Jerry L. Newton, III on 18 November 2002 and 9
December 2002, respectively. Joseph Wesley Newton filed an answer
on 8 January 2003. Jerry L. Newton, III filed a response to the
answer and cross-claim of Paul Jeffrey Newton and of Anne Newton
Graham, along with a motion to dismiss those cross-claims, on 14
January 2003 and 4 February 2003, respectively. Jerry L. Newton,
III also filed cross-claims against Paul Jeffrey Newton and Anne
Newton Graham, to which they responded on 18 February 2003 and 11March 2003, respectively.
Plaintiffs filed a motion for partial summary judgment on 30
January 2004, and Anne Newton Graham filed a motion for partial
summary judgment on 2 February 2004. Paul Jeffrey Newton and
Joseph Wesley Newton each filed a motion for partial summary
judgment on 3 February 2004. The trial court granted those motions
in an order entered 8 March 2004. Jerry L. Newton III,
individually, and as trustee of the Jerry L. Newton, Jr. trust,
appealed and our Court affirmed the trial court’s order. See Babb
v. Graham, 171 N.C. App. 364, 615 S.E.2d 434 (unpublished), disc.
review denied, 360 N.C. 174, 625 S.E.2d 781 (2005).
In separate proceedings, the trial court removed Jerry L.
Newton, III as trustee of the trusts, and our Court affirmed his
removal. See In re Estate of Newton, 173 N.C. App. 530, 619 S.E.2d
571, disc. review denied, 360 N.C. 176, 625 S.E.2d 786 (2005). R.
Kenneth Babb was appointed as trustee of the trusts on 3 June 2004.
R. Kenneth Babb, as trustee of the trusts, filed an amended
complaint in the present case on 23 June 2006. Anne Newton Graham,
Joseph Wesley Newton, and Paul Jeffrey Newton gave written consent
to the filing of the amended complaint on 22 June 2006. The
amended complaint, like Plaintiffs’ original complaint, sought to
determine the rights, duties, and obligations of the parties
regarding the trusts. Plaintiffs alleged in their amended
complaint that Jerry L. Newton, III, as trustee of the trusts, had
failed to distribute the assets of the trusts to Anne Newton
Graham, Jerry L. Newton, III, Joseph Wesley Newton, and PaulJeffrey Newton, notwithstanding the provisions of the trusts that
required distribution upon the death of Reba Burton Newton.
Jerry L. Newton, III filed an answer to Plaintiffs’ amended
complaint on 25 August 2006 and raised several defenses and
asserted a counterclaim. Anne Newton Graham filed an answer to
Plaintiffs’ amended complaint on 29 August 2006. She asserted
cross-claims against Jerry L. Newton, III for breach of fiduciary
duty, constructive fraud, an accounting, and punitive damages.
Joseph Wesley Newton filed an answer to Plaintiffs’ amended
complaint on 29 August 2006. He asserted cross-claims against
Jerry L. Newton, III for breach of fiduciary duty, unfair and
deceptive trade practices, an accounting, and punitive damages.
Paul Jeffrey Newton filed an answer to Plaintiffs’ amended
complaint on 11 September 2006. He asserted cross-claims against
Jerry L. Newton, III for breach of fiduciary duty, an accounting,
and punitive damages.
Jerry L. Newton, III filed a motion for the recusal of
Superior Court Judge Michael E. Helms on 25 September 2006, which
was denied on 10 October 2006. Plaintiffs filed a notice of
voluntary dismissal, without prejudice, of several of their claims
on 6 October 2006. Joseph Wesley Newton filed an answer and
amended cross-claim on 10 October 2006. He alleged cross-claims
against Jerry L. Newton, III for breach of fiduciary duty,
constructive fraud, unfair and deceptive trade practices, an
accounting, and punitive damages. Jerry L. Newton, III filed
answers to the cross-claims of Anne Newton Graham, Joseph WesleyNewton, and Paul Jeffrey Newton on 2 November 2006.
At trial, Plaintiffs, along with Anne Newton Graham, Joseph
Wesley Newton, and Paul Jeffrey Newton (hereinafter Cross-
Claimants) moved for directed verdict at the close of the
presentation of their evidence, and the trial court,
after viewing the evidence, which included the
testimony of Jerry Newton, III, in the light
most favorable to . . . Jerry L. Newton, III,
finds as a matter of law, Jerry L. Newton, III
breached his fiduciary duty to [C]ross-
[C]laimants and committed constructive fraud
while failing to distribute the proceeds of
the . . . trusts[.]

Accordingly, the trial court granted the motions for directed
verdict and determined the following:
Plaintiffs are entitled to recover $60,435 for
trustee commissions paid to Jerry L. Newton,
III from 1993-2003 and the [trial court] finds
that these amounts may be deducted directly
from Jerry L. Newton, III’s share of the three
trusts, to the extent of funds available. The
[trial court] determines that the
[C]ross-[C]laimants, . . . Anne Newton Graham,
Joseph Wesley Newton and Paul Jeffrey Newton
are entitled to recover attorneys’ fees
incurred in the proceeding to remove Jerry L.
Newton, III as trustee of the . . . trusts due
to the breach of fiduciary duty and
constructive fraud of Jerry L. Newton, III.
Specifically, Anne Newton Graham is entitled
to recover $55,604.89, Paul Jeffrey Newton is
entitled to recover $55,000.00 and Joseph
Wesley Newton is entitled to recover
$52,722.50, and the [trial court] finds that
these amounts may be deducted directly from
Jerry L. Newton, III’s share of the
. . . trusts, to the extent of funds
available[.]

The trial court also granted Plaintiffs’ motion for directed
verdict as to Jerry L. Newton, III’s counterclaim.
The trial court submitted the remaining issues to a jury, andthe jury determined the following issues, on which the trial court
entered judgment:

1. What amount is . . . Plaintiff [R.] Kenneth
Babb, as Trustee, entitled to recover on
behalf of the . . . trusts for breach of
fiduciary duty and/or constructive fraud?

ANSWER: $34,507

2. What amount of damages are
. . . [C]ross-[C]laimants, Anne Newton Graham,
Joseph Wesley Newton and Paul Jeff[rey] Newton
entitled to recover for breach of fiduciary
duty and/or constructive fraud?

AMOUNT: $52,378

3. Is Jerry L. Newton, III liable to
. . . [C]ross-[C]laimants[] Anne Newton
Graham, Joseph Wesley Newton and Paul
Jeff[rey] Newton for punitive damages?

ANSWER: Yes

If you answer issue #3 "yes", then answer
issue #4. If you answer issue #3 "no",
then your deliberations are concluded.

4. What amount of punitive damages, if any,
does the jury in its discretion award to
[C]ross-[C]laimants[] Anne Newton Graham,
Joseph Wesley Newton and Paul Jeff[rey] Newton?

AMOUNT: $500,000

The trial court ordered the following:
It is therefore hereby ORDERED, ADJUDGED and
DECREED that . . . Plaintiffs have and recover
$94,942.00 from Jerry L. Newton III, and
. . . [C]ross-[C]laimants have and recover
$715,705.39 from Jerry L. Newton, III, for a
total of $810,467.96. Further, interest shall
be calculated at 8% per annum from February
18, 2002 on all amounts awarded to Plaintiffs
and from October 10, 2006 on all non-punitive
amounts awarded to [C]ross-[C]laimants.
Further, the costs of this action shall be
taxed against Jerry L. Newton, III[.] The trial court entered an order on 22 January 2007 granting relief
from a clerical mistake to amend the total amount owed to
Plaintiffs and Cross-Claimants from $810,467.96 to $810,647.39.
Jerry L. Newton, III filed notice of appeal on 25 January 2007
from the order denying his motion for recusal entered 10 October
2006, from the directed verdict order and judgment entered 29
December 2006, and from the order granting relief from a clerical
mistake entered 22 January 2007. Jerry L. Newton, III also filed
an "undertaking to stay execution on money judgment" on 25 January
2007, and deposited the amount of $810,647.39 with the trial court.
Plaintiffs and Cross-Claimants filed a motion to tax costs dated 15
February 2007, seeking "an Order for the payment of costs,
including reasonable attorneys’ fees, in this action, against Jerry
L. Newton, III." Jerry L. Newton, III filed a pro se response to
the motion to tax costs dated 22 February 2007, seeking to have the
motion dismissed. Plaintiffs and Cross-Claimants filed a
supplement to their motion to tax costs on 26 February 2007.
Following a hearing, the trial court entered an interim order
on the motion to tax costs on 22 March 2007. The trial court ruled
as follows:
(

1) The Motion to Tax Costs is properly before
[the trial court] and [the trial court] has
jurisdiction to hear said Motion. Execution
on the money judgment in this case is not
stayed because Jerry L. Newton, III has not
fully complied with N.C.G.S. § 1-289, N.C.G.S.
§ 1-293, and Rule 62 of the North Carolina
Rules of Civil Procedure and the Motion to Tax
Costs is not stayed under N.C.G.S. § 1-294;

(2) N.C.G.S. § 6-21(2) applies to the present
action and allows [the trial court] to awardcosts in its discretion, including reasonable
attorney’s fees;

(3)



[The trial court] further finds that
N.C.G.S. § 7A-305 and N.C.G.S. § 7A-314 are
applicable to the present case and allow [the
trial court], in its discretion, to award as
costs fees for expert witnesses;

([4]) The February 28, 2007 hearing is
adjourned and will reconvene on April 17, 2007
for the purpose of the [trial court’s] consideration of the reasonableness of
attorney’s fees and other costs sought by
. . . Defendants and Cross-Claimants and
. . . Plaintiffs; and

([5]) On or before April 6, 2007 counsel for
the parties shall serve on all other parties,
any and all affidavits or other documents
which they desire the [trial court] to
consider at the hearing on April 17, 2007.

Jerry L. Newton, III filed a response to the motion to tax costs
and to the interim order on 12 April 2007. He then filed a notice
of appeal on 24 April 2007 from the interim order entered 22 March
2007 and from the final order on the motion to tax costs entered in
open court on 17 April 2007. The trial court entered a written
order on the motion to tax costs on 17 May 2007, ruling that "the
costs set forth herein in the amount of $388,664.54, plus pre-
judgment interest as set forth in the Directed Verdict Order and
judgment filed on December 29, 2006, are hereby taxed against . . .
Jerry L. Newton, III." On 16 June 2007, Jerry L. Newton, III filed
notice of appeal from the final order entered in open court on 17
April 2007 and from the order on the motion to tax costs filed 17
May 2007.

Jerry L. Newton, III (hereinafter Appellant) first argues thetrial court erred by denying his motion for recusal. Appellant
contends that the trial court’s impartiality could reasonably be
questioned because the trial court, in separate proceedings, had
removed Appellant as trustee of the trusts at issue in the present
case. Specifically, Appellant relies upon the trial court’s
previous finding of fact detailing Appellant’s "animosity,
hostility, disloyalty, and self-interest" toward Cross-Claimants.
See In re Estate of Newton, 173 N.C. App. at 539-40, 619 S.E.2d at
576-77. Appellant also relies upon the trial court’s previous
conclusion of law that Appellant had "violate[d] his fiduciary duty
through default and misconduct in the execution of his office as
Trustee of said Trusts[.]" See id. at 534, 619 S.E.2d at 573.
"'[T]he burden is upon the party moving for
disqualification to demonstrate objectively
that grounds for disqualification actually
exist. Such a showing must consist of
substantial evidence that there exists such a
personal bias, prejudice or interest on the
part of the judge that he would be unable to
rule impartially.’"

Lange v. Lange, 357 N.C. 645, 649, 588 S.E.2d 877, 880 (2003)
(citations omitted). "Thus, the standard is whether ‘grounds for
disqualification actually exist.’" Id.
Our Court has made clear that "knowledge of evidentiary facts
gained by a trial judge from an earlier proceeding does not require
disqualification." In re Faircloth, 153 N.C. App. 565, 570, 571
S.E.2d 65, 69 (2002). In Faircloth, the respondent in a
termination of parental rights proceeding argued that the trial
judge erred by refusing to recuse himself from the termination
proceeding. Id. at 569, 571 S.E.2d at 68. The trial judge hadpreviously presided over a "hearing on allegations that the four
children were abused and neglected" and the trial judge had
previously adjudicated the four children abused and neglected. Id.
However, on appeal our Court reversed the abuse and neglect
adjudication on the ground that "the trial court applied an
erroneous legal standard in denying [the respondent’s] request to
call three of the children as witnesses." Id. (citing In re
Faircloth, 137 N.C. App. 311, 318, 527 S.E.2d 679, 684 (2000)).
Therefore, the respondent argued that the trial judge in the
termination proceeding "was biased and could not be impartial
because he heard evidence against [the respondent] in the previous
abuse and neglect proceeding without hearing from the three
children [the respondent] sought to call as witnesses." Id. at
569, 571 S.E.2d at 68-69.
Our Court rejected the respondent’s argument, recognizing that
"knowledge of evidentiary facts gained by a trial judge from an
earlier proceeding does not require disqualification." Id. at 570,
571 S.E.2d at 69. Our Court also rejected "any contention that
[the trial judge] should be disqualified because he earlier
adjudicated the four children abused and neglected." Id. at 570-
71, 571 S.E.2d at 69.
Similarly, Appellant argues that the trial judge should have
been disqualified because of his rulings in the previous case. In
the present case, as in Faircloth, we reject the contention that
the trial judge should have been disqualified simply because he had
previously ordered that Appellant be removed as trustee of thetrusts. See id. We hold the trial court did not err by denying
Appellant’s motion for recusal.

Appellant next argues the trial court erred by entering a
directed verdict for Plaintiffs and Cross-Claimants on their claims
for breach of fiduciary duty and constructive fraud. We disagree.
When considering a motion for a directed
verdict, a trial court must view the evidence
in the light most favorable to the non-moving
party, giving that party the benefit of every
reasonable inference arising from the
evidence. Any conflicts and inconsistencies
in the evidence must be resolved in favor of
the non-moving party. If there is more than a
scintilla of evidence supporting each element
of the non-moving party’s claim, the motion
for a directed verdict should be denied.

Jernigan v. Herring, 179 N.C. App. 390, 392-93, 633 S.E.2d 874,
876-77 (2006) (citations omitted), disc. review denied, 361 N.C.
355, 645 S.E.2d 770 (2007). Our Supreme Court has recognized that
while rare, it is proper to direct a verdict for the party with the
burden of proof "if the evidence so clearly establishes the fact in
issue that no reasonable inferences to the contrary can be drawn."
Bank v. Burnette, 297 N.C. 524, 536, 256 S.E.2d 388, 395 (1979).
The Court also stressed that "there are neither constitutional nor
procedural impediments to directing a verdict for the party with
the burden of proof where the credibility of movant’s evidence is
manifest as a matter of law." Id. at 537, 256 S.E.2d at 396.
Although there is no general rule to determine when credibility is
manifest, our Supreme Court has recognized that credibility is
manifest in the following three situations: (1) Where non-movant establishes proponent’s
case by admitting the truth of the basic facts
upon which the claim of proponent rests.

(2) Where the controlling evidence is
documentary and non-movant does not deny the
authenticity or correctness of the documents.

(3) Where there are only latent doubts as to
the credibility of oral testimony and the
opposing party has "failed to point to
specific areas of impeachment and
contradictions."

Id. at 537-38, 256 S.E.2d at 396 (citations omitted).
In order to maintain a claim for constructive
fraud, [the] plaintiffs must show that they
and [the] defendants were in a "relation of
trust and confidence . . . [which] led up to
and surrounded the consummation of the
transaction in which [the] defendant[s] [are] alleged to have taken advantage of [their] position of trust to the hurt of [the] plaintiff[s]."

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 [the] 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 Compton v. Kirby, 157 N.C. App. 1, 577 S.E.2d 905 (2003),
our Court held that the trial court properly submitted the issue of
breach of fiduciary duty to the jury because the plaintiffs
presented evidence in support of their allegation. Id. at 15, 577
S.E.2d at 914. Our Court also recognized that "a breach of
fiduciary duty amounts to constructive fraud." Id. at 16, 577S.E.2d at 914. Accordingly, because we held that the "plaintiffs
established the existence of a fiduciary duty and a breach of that
duty, we likewise conclude[d] the issue of constructive fraud was
properly submitted to the jury." Id. at 16, 577 S.E.2d at 915.
Appellant argues the trial court erred by entering a directed
verdict because there was insufficient evidence that he sought to
benefit himself by failing to distribute trust assets. We
disagree. Appellant cites Toomer v. Branch Banking & Tr Co., 171
N.C. App. 58, 614 S.E.2d 328, disc. review denied, 360 N.C. 78, 623
S.E.2d 263 (2005), where our Court held that the plaintiffs had
failed to state a claim for constructive fraud because they failed
to allege that the defendant’s successor in interest sought to
benefit itself. Id. at 68, 614 S.E.2d at 336.
In contrast to Toomer, Plaintiffs and Cross-Claimants in the
present case presented sufficient evidence of constructive fraud.
Based on Appellant’s own testimony, the credibility of which is
manifest, see Bank, 297 N.C. at 537, 256 S.E.2d at 396, Plaintiffs
and Cross-Claimants demonstrated that Appellant, by his refusal to
distribute trust assets, sought to benefit himself. Appellant
testified that he refused to make distributions to the trust
beneficiaries until he was paid for work he had done on his
father’s estate and until the accountings in his father’s estate
had been approved. However, Appellant admitted that his father’s
estate was a separate entity from the trusts. This evidence shows
that Appellant sought to benefit himself by obtaining payment for
the provision of services unrelated to the trusts before he madedistributions under the trusts. Appellant also testified that he
refused to make distributions to the trust beneficiaries until all
litigation had been resolved, but acknowledged that the only
litigation pending from June 1999 until 2002 was the action to
remove Appellant as trustee. Appellant further testified that he
failed to distribute trust assets to the trust beneficiaries
because he believed that the trusts did not allow him to make
partial distributions. However, Appellant admitted that he did not
seek legal advice as to whether he could make a partial
distribution under the trusts.
Moreover, the plain language of the trusts required
distribution of the trust assets upon the death of Reba Burton
Newton. The will of Jerry Lewis Newton, Jr. provided:
If my wife, REBA BURTON NEWTON, shall survive
me, then my Executor shall distribute the
balance of my residuary estate to my Trustee
to be held, administered and distributed in
trust in accordance with the following
provisions:

. . .

6. Upon the death of my wife, the remaining
principal of this Trust shall be divided into
equal separate shares so as to provide one
share for each of my then living children
. . . . The share provided for a living child
of mine shall be distributed to such child.

The Jerry Lewis Newton, Jr. inter vivos trust provided that the
trust assets should go to Reba Burton Newton should she survive
Jerry Lewis Newton, Jr., and then, if not otherwise disposed of by
Reba Burton Newton, the trust assets would be distributed at her
death as follows: The balance of the principal of this Trust or
all of the principal of this Trust, if no
amount is distributed under subparagraph (1)
shall be divided into equal separate shares so
as to provide one share for each of my then
living children . . . . The share provided
for a living child of mine shall be
distributed to such child.

Finally, the Reba Burton Newton inter vivos trust provided:
Upon [Reba Burton Newton’s] death, the Trustee
shall divide this Trust as then constituted
into equal separate shares so as to provide
one share for each then living child of [Reba
Burton Newton] . . . . The share provided for
a living child of [Reba Burton Newton] shall
be distributed to such child.

These trusts, the credibility of which is manifest, see Bank, 297
N.C. at 537, 256 S.E.2d at 396, required Appellant to make
distributions to the trust beneficiaries upon the death of Reba
Burton Newton. However, as Appellant testified, he refused to do
so for reasons entirely unrelated to the trusts. Moreover,
Appellant continued to receive trustee fees during the period of
time in which he served as trustee and, therefore, benefitted from
his failure to distribute the trust assets. We hold that the
above-cited evidence warranted the entry of a directed verdict for
Plaintiffs and Cross-Claimants on their claims for breach of
fiduciary duty and constructive fraud. Accordingly, the trial
court did not err.
Appellant also argues the trial court erred by directing a
verdict because Appellant increased the value of the assets of the
trusts. However, even if Appellant did so, that fact is irrelevant
to the determination of whether Appellant failed to distribute the
assets of the trusts for his own benefit. In conjunction with the arguments already addressed in this
section, Appellant also argues the trial court erred by "failing to
instruct the jury that damages for breach of trust are such as to
restore [the] trust to [the] position [the trust would have been
in] had the breach of trust not occurred." However, despite
Appellant’s contention, the trial judge did instruct the jury as
follows: "I instruct you that damages for breach of trust are
designed to restore the trust to the same position it would have
been in had no breach occurred." Therefore, Appellant’s argument
is without merit.

Appellant next makes several arguments related to the award of
punitive damages. Pursuant to N.C. Gen. Stat. § 1D-15(a) (2007),
punitive damages may be awarded "if the claimant proves that the
defendant is liable for compensatory damages and that one of the
following aggravating factors was present and was related to the
injury for which compensatory damages were awarded: (1) Fraud. (2)
Malice. (3) Willful or wanton conduct." Our Court has recognized
that "[s]o long as there is ‘some fact or circumstance’ in evidence
from which one of these elements may be inferred, the question of
punitive damages is for the jury and not for the court." Ingle v.
Allen, 69 N.C. App. 192, 198, 317 S.E.2d 1, 4 (citation omitted),
disc. review denied, 311 N.C. 757, 321 S.E.2d 135 (1984). N.C.
Gen. Stat. § 1D-5(4) (2007) provides: "’Fraud’ does not include
constructive fraud unless an element of intent is present."
Appellant argues as follows: The trial court committed reversible error in
directing verdict of liability for punitive
damages, and in submitting the issue of the
amount of punitive damages, when there was
conflicting evidence sufficient to go to the
jury, including conflicting evidence as to the
intent of [Appellant], as required by
[N.C.G.S.] § 1D-5(4), in failing to distribute
the proceeds of trusts, which creates a
question for the Jury.

Appellant’s assertion that the trial court directed a verdict of
liability for punitive damages is without factual support. The
trial court did not direct a verdict for Cross-Claimants on
Appellant’s liability for punitive damages. Rather, the trial
court submitted the following issue to the jury, which the jury
answered in the affirmative:

"Is Jerry L. Newton, III liable to
. . . [C]ross-[C]laimants[] Anne Newton Graham, Joseph Wesley
Newton and Paul Jeff[rey] Newton for punitive damages?

" Therefore,
this argument is without merit.
We now address Appellant’s argument that the trial court erred
by submitting to the jury the issue of the amount of punitive
damages. Appellant concedes there was sufficient evidence of
intent for submission to the jury and, therefore, defeats his own
argument. However, even without Appellant’s concession, we hold
there was sufficient evidence of intent, fraud, malice, and willful
and wanton conduct by Appellant.
Appellant admitted that he refused to distribute the assets of
the trusts despite the plain language of the trusts that required
distribution upon the death of Reba Burton Newton. Based upon the
extensive evidence recited above, Appellant admitted that he
refused to make such distributions for reasons wholly unrelated tothe trusts. Appellant also testified that he held his siblings in
contempt and described them as "contemptuous people." Appellant
admitted that he had been convicted of assault on a female for
slapping his sister, Anne Newton Graham, on the day of their
mother’s death, and also admitted that he had attempted to hit his
brother, Paul Jeffrey Newton. Appellant further testified that
"when [my siblings] are hostile toward me, yes, I am hostile toward
them." All of this evidence was sufficient to establish intent,
fraud, malice, and willful and wanton conduct. See Ingle, 69 N.C.
App. at 198-99, 317 S.E.2d at 4-5 (finding sufficient evidence of,
inter alia, malice, reckless indifference, and wilfulness where the
evidence showed that the "defendants distributed more than $130,000
from the trust, contrary to the will and contrary to the advice of
counsel, converting trust assets to their own use at a time when
they knew the plaintiff had received no payments under the trust
for a period of eight years" and where there were "accusations on
the part of both [the] defendants blaming [the] plaintiff for the
death of the testator."). Moreover, in Compton, our Court
recognized that "[p]unitive damages are justified in cases of
constructive fraud, N.C. Gen. Stat. § 1D-15(a)(1) (2001), as long
as ‘some compensatory damages have been shown with reasonable
certainty.’" Compton, 157 N.C. App. at 21, 577 S.E.2d at 917
(quoting Olivetti Corp. v. Ames Business Systems, Inc., 319 N.C.
534, 549, 356 S.E.2d 578, 587, reh’g denied, 320 N.C. 639, 360
S.E.2d 92 (1987)). In the present case, Cross-Claimants
demonstrated compensatory damages with reasonable certainty. Appellant also argues that pursuant to N.C. Gen. Stat. § 1D-
50, the trial court erred by failing to issue a written opinion
regarding the reasons for the award of punitive damages. N.C. Gen.
Stat. § 1D-50 (2007) provides as follows:
When reviewing the evidence regarding a
finding by the trier of fact concerning
liability for punitive damages in accordance
with G.S. 1D-15(a), or regarding the amount of
punitive damages awarded, the trial court
shall state in a written opinion its reasons
for upholding or disturbing the finding or
award. In doing so, the court shall address
with specificity the evidence, or lack
thereof, as it bears on the liability for or
the amount of punitive damages, in light of
the requirements of this Chapter.

Appellant’s argument is foreclosed by Zubaidi v. Earl L. Pickett
Enters., Inc., 164 N.C. App. 107, 595 S.E.2d 190, disc. review
denied, 359 N.C. 76, 605 S.E.2d 151 (2004), where our Court held:
As the language of the statute does not
require judicial review of a punitive damage
award to be mandatory and we find no case law
holding judicial review to be mandatory except
in cases where the award exceeds the statutory
limits, the trial court did not err in failing
to make specific findings of fact and failing
to set aside the punitive damages awarded
within statutory limits.

Id. at 118, 595 S.E.2d at 196. In the present case, Appellant does
not contend that the amount of punitive damages exceeded the
statutory limit and it is clear, based upon our review, that the
award did not exceed the allowable limit. See N.C. Gen. Stat. §
1D-25(b) (2007) (stating that "[p]unitive damages awarded against
a defendant shall not exceed three times the amount of compensatory
damages or two hundred fifty thousand dollars ($250,000), whichever
is greater."). Therefore, the trial court was not required toissue a written opinion regarding the award of punitive damages.
See Zubaidi, 164 N.C. App. at 118, 595 S.E.2d at 196.

Appellant next argues that the claims of Plaintiffs and Cross-
Claimants were barred by the express provisions of two of the
trusts because Cross-Claimants did not issue written objections to
Appellant’s yearly accountings. The trust provisions of Reba
Burton Newton’s last will and testament provided as follows:
The Trustee shall render annual accounts of
disbursements, income and principal to each
beneficiary, designated and contingent, who is
not under a legal disability and to the legal
guardian of each beneficiary who is under a
legal disability. The written approval of a
beneficiary or his guardian shall be binding
upon the beneficiary as to all matters and
transactions covered by the account. In the
event a beneficiary or his guardian does not
render a letter of written approval or does
not raise an objection within ninety (90) days
after receipt of the annual account, his
written approval shall be deemed to have been
made, and the account approved as of the last
day of the ninety (90) day period.

The trust provisions of Jerry Lewis Newton, Jr.’s last will and
testament similarly provided:
The Trustee shall render annual accounts of
disbursements, income and principal to each
beneficiary, designated and contingent, who is
not under a legal disability and to the legal
guardian of each beneficiary who is under a
legal disability. The written approval of a
beneficiary or his guardian shall be binding
upon the beneficiary as to all matters and
transactions covered by the account. In the
event a beneficiary or his guardian does not
render a letter of written approval or does
not raise an objection within ninety (90) days
after receipt of the annual account, his
written approval shall be deemed to have been
made, and the account approved as of the lastday of the ninety (90) day period.

Specifically, Appellant argues that because he made annual
accountings and because Cross-Claimants did not render written
objections to those accountings, "all matters in dispute in this
action are thereby approved and binding upon all Beneficiaries, to
wit, barring the claims of Cross-Claimants and Plaintiffs." We
disagree.
It is well settled that "'[a] phrase should not be given a
significance which clearly conflicts with the evident intent and
purpose of the testator as gathered from the four corners of the
instrument[.]’" Trust Co. v. Carr, 279 N.C. 539, 547, 184 S.E.2d
268, 273 (1971) (quoting 7 Strong’s North Carolina Index 2d, Wills,
§ 28, pp. 598-599). In the case before us, as we discussed above,
the trusts clearly required Appellant to distribute the assets upon
the death of Reba Burton Newton. However, Appellant refused to do
so. Although Cross-Claimants did not object to the contents of the
accountings, nothing in the trust provisions cited above caused
Cross-Claimants to waive their right to distribution of the assets
of the trusts. Appellant’s argument is without merit.

Appellant also argues that under N.C. Gen. Stat. § 1-52(1),
Plaintiffs’ and Cross-Claimants’ breach of fiduciary duty claims
were barred by the three-year statute of limitations. It is true
that "[a]llegations of breach of fiduciary duty that do not rise to
the level of constructive fraud are governed by the three-year
statute of limitations applicable to contract actions contained inN.C. Gen. Stat. § 1-52(1) (2003)." Toomer, 171 N.C. App. at 66-67,
614 S.E.2d at 335. "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
[2003].’" Id. at 67, 614 S.E.2d at 335 (quoting NationsBank of
N.C. v. Parker, 140 N.C. App. 106, 113, 535 S.E.2d 597, 602
(2000)).
The case before us involves claims for constructive fraud
based upon a breach of fiduciary duty, and we have already held
that the trial court did not err by granting a directed verdict for
Plaintiffs and Cross-Claimants on those claims. Therefore, we hold
that Plaintiffs’ and Cross-Claimants’ claims were not barred by the
applicable ten-year statute of limitations. See id; see also N.C.
Gen. Stat. § 1-56 (2007) (providing that "[a]n action for relief
not otherwise limited by this subchapter may not be commenced more
than 10 years after the cause of action has accrued.").
Even assuming, arguendo, that the claims for breach of
fiduciary duty were governed by a three-year statute of
limitations, the breach of fiduciary duty claims were not time-
barred under the continuing wrong doctrine. Our Supreme Court has
recognized the continuing wrong doctrine as an exception to the
general rule that a claim accrues when the right to maintain a suit
arises. Williams v. Blue Cross Blue Shield of N.C., 357 N.C. 170,
178-79, 581 S.E.2d 415, 423 (2003). "When this doctrine applies,
a statute of limitations does not begin to run until the violative
act ceases." Id. at 179, 581 S.E.2d at 423. Our Supreme Courtalso stated that "'[a] continuing violation is occasioned by
continual unlawful acts, not by continual ill effects from an
original violation.’" Id. (quoting Ward v. Caulk, 650 F.2d 1144,
1147 (9th Cir. 1981)). In order to determine whether a continuing
violation exists, we examine "'[t]he particular policies of the
statute of limitations in question, as well as the nature of the
wrongful conduct and harm alleged,’ as set out in Cooper v. United
States, 442 F.2d 908, 912 (7th Cir. 1971)." Id.
In the present case, Cross-Claimants alleged, and Appellant
testified, that Appellant continuously refused to make
distributions under the trusts until he was removed as trustee on
3 June 2004. Therefore, Appellant’s wrongful conduct, the refusal
to make distributions, continued until he was removed as trustee on
3 June 2004. The three-year statute of limitations would not have
begun to run until 3 June 2004 and, therefore, the breach of
fiduciary claims in the case before us would not have been barred.

Appellant next argues that "the trial court err[ed] when [it] allowed [R. Kenneth Babb] to offer exhibits and testify as an
expert, inconsistent with his answers to interrogatories and
response to requests for production of documents[.]" However, R.
Kenneth Babb did not answer untruthfully when he stated that he did
not intend to call expert witnesses. Because of the unusual
posture of this case, R. Kenneth Babb deferred to Cross-Claimants
for the presentation of the evidence. Cross-Claimants then called
R. Kenneth Babb as an expert witness. Appellant does not contendthat the presentation of R. Kenneth Babb as an expert witness for
Cross-Claimants was inconsistent with any of Cross-Claimants’
discovery responses. In fact, Cross-Claimants were not served with
discovery requests regarding the expert witnesses they intended to
call. We overrule this assignment of error.

Appellant next argues "the trial court err[ed] when [it] overruled objections of [Appellant] to the [trial court] allowing
R. Kenneth Babb, acting as Plaintiff in this action, to defer
presentation of evidence until [Cross-Claimants] had offered
evidence." In support of his cursory argument, Appellant briefly
cites Whitacre P’ship v. Biosignia, Inc., 358 N.C. 1, 591 S.E.2d
870 (2004), for the proposition that "[d]ue process requires that
persons be given a fair opportunity to litigate their legal
rights." Id. at 36, 591 S.E.2d at 893. However, this citation is
irrelevant, as the Court cited this law when examining the "the
rationale for applying the privity concept in the collateral
estoppel context." Id.
It is well settled that a trial court has broad authority to
"structure the trial logically and to set the order of proof.
Absent an abuse of discretion, the trial judge’s decisions in these
matters will not be disturbed on appeal." In re Will of Hester,
320 N.C. 738, 741-42, 360 S.E.2d 801, 804 (citations omitted),
reh’g denied, 321 N.C. 300, 362 S.E.2d 780 (1987). Appellant has
not demonstrated that the trial court abused its discretion, and we
overrule this assignment of error.

Appellant next argues that "the trial court err[ed] in
directing verdict and entering judgment on the grounds that the
directed verdict prevented [Appellant] from offering the defenses
of good faith, prudent investor, and delegation of duties, by
failing to charge on said defenses[.]" However, the claims for
constructive fraud were based upon Appellant’s refusal, for his own
benefit, to make distributions under the trusts when he was
required to do so. We have already held that the trial court did
not err by directing a verdict for Plaintiffs and Cross-Claimants.
These affirmative defenses were irrelevant to the claims for
constructive fraud based upon a breach of fiduciary duty.
Therefore, the trial court did not err.

Appellant next argues the trial court erred by awarding to
Cross-Claimants attorney’s fees that were incurred by them in the
separate proceedings for removal of Appellant as trustee.
Appellant also argues the trial court erred by "awarding as
compensatory damages recovery of trustee commissions paid by the
Trusts to [Appellant], which should have been addressed in the
separate special proceeding[.]" We disagree. N.C. Gen. Stat. § 6-
21(2) (2007) provides as follows:
Costs in the following matters shall be taxed
against either party, or apportioned among the
parties, in the discretion of the court:

. . .

(2) Caveats to wills and any action or
proceeding which may require theconstruction of any will or trust
agreement, or fix the rights and duties
of parties thereunder; provided, that in
any caveat proceeding under this
subdivision, the court shall allow
attorneys’ fees for the attorneys of the
caveators only if it finds that the
proceeding has substantial merit.

The statute further provides that "[t]he word ‘costs’ as the same
appears and is used in this section shall be construed to include
reasonable attorneys’ fees in such amounts as the court shall in
its discretion determine and allow[.]" Id. Moreover, in In re
Trust Under Will of Jacobs, 91 N.C. App. 138, 370 S.E.2d 860, disc.
review denied, 323 N.C. 476, 373 S.E.2d 863 (1988), our Court
recognized that "damages for breach of trust are designed to
restore the trust to the same position it would have been in had no
breach occurred." Id. at 146, 370 S.E.2d at 865. Our Court
further stated that "the court may fashion its order ‘to fit the
nature and gravity of the breach and the consequences to the
beneficiaries and trustee.’" Id. (quoting Bogert, The Law of
Trusts and Trustees, section 543(V) (rev. 2d. ed. 1982)).
Accordingly, our Court held that the trial court’s "order mandating
payment of costs, witness fees, and attorney’s fees was a proper
assessment of damages." Id.
In the case before us, the trial court awarded Cross-Claimants
attorney’s fees they incurred in the separate proceedings to remove
Appellant as trustee. The trial court also awarded Plaintiffs the
"trustee commissions paid to [Appellant] from 1993-2003[.]"
Appellant argues that these expenses should have been dealt with in
the separate removal proceedings. However, it appears that theremoval proceedings were confined to the issue of whether Appellant
should be removed as trustee of the trusts; Plaintiffs and Cross-
Claimants did not seek damages or costs in those proceedings. See
In re Estate of Newton, 173 N.C. App. 530, 619 S.E.2d 571, disc.
review denied, 360 N.C. 176, 625 S.E.2d 786 (2005). Therefore,
Plaintiffs and Cross-Claimants appropriately sought recovery of
these expenses in the present case. We hold that the award of
attorney’s fees and the award of trustee commissions were "designed
to restore the trust to the same position it would have been in had
no breach occurred" and that the awards "’fit the nature and
gravity of the breach and the consequences to the beneficiaries and
trustee.’" See In re Trust Under Will of Jacobs, 91 N.C. App. at
146, 370 S.E.2d at 865 (quoting Bogert, § 543(V)). We overrule
these assignments of error.

Appellant also argues the trial court erred by allowing
Plaintiffs’ complaint and the cross-claims to be amended.
Appellant’s entire argument under this section is as follows: "Said
pleadings were not proper under N.C. Gen. Stat. § 1A-1, Rule 12 and
were filed without leave pursuant to N.C. Gen. Stat. § 1A-1, Rule
15(a), and should be stricken."
N.C. Gen. Stat. § 1A-1, Rule 15(a) (2007) provides that after
a party has amended his pleading once as a matter of course, "a
party may amend his pleading only by leave of court or by written
consent of the adverse party; and leave shall be freely given when
justice so requires." "Rule 15(a) contemplates liberal amendmentsto the pleadings, which should always be allowed unless some
material prejudice is demonstrated." Stetser v. TAP Pharm. Prods.,
Inc., 165 N.C. App. 1, 31, 598 S.E.2d 570, 590 (2004). A party
objecting to the filing of an amended pleading "has the burden of
satisfying the trial court that he would be prejudiced by the
granting or denial of a motion to amend. The exercise of the
court’s discretion is not reviewable absent a clear showing of
abuse thereof." Watson v. Watson, 49 N.C. App. 58, 60-61, 270
S.E.2d 542, 544 (1980) (citations omitted).
In the present case, Plaintiffs filed the amended complaint
with the written consent of Anne Newton Graham, Paul Jeffrey
Newton, and Joseph Wesley Newton. Plaintiffs also filed a motion
to amend their complaint on 27 November 2006, seeking leave of
court to file the amended complaint, although such motion was filed
after the amended complaint. The trial court allowed the motion to
amend. Appellant does not argue that he was prejudiced by the
filing of the amended complaint and cross-claims. Moreover,
Appellant does not argue that the trial court abused its
discretion. We hold the trial court did not abuse its discretion
and overrule this assignment of error.

Appellant argues the trial court erred by entering the interim
order on the motion to tax costs on 22 March 2007 and by entering
the final order on the motion to tax costs on 17 May 2007.
Appellant contends the trial court lacked jurisdiction to enter
these orders because Appellant had previously filed a notice ofappeal from the trial court’s earlier directed verdict order and
judgment.
N.C. Gen. Stat. § 1-294 (2007) provides:
When an appeal is perfected as provided by
this Article it stays all further proceedings
in the court below upon the judgment appealed
from, or upon the matter embraced therein; but
the court below may proceed upon any other
matter included in the action and not affected
by the judgment appealed from.

In In re Will of Dunn, 129 N.C. App. 321, 500 S.E.2d 99, disc.
review denied, 348 N.C. 693, 511 S.E.2d 645 (1998), our Court held:
In this case, both parties submitted petitions
for costs and attorneys’ fees with the intent
that the court would rule on the matter. The
trial court’s decision to award costs and
attorneys’ fees was not affected by the
outcome of the judgment from which caveator
appealed; therefore, the trial court could
properly proceed to rule upon the petitions
for costs and attorneys’ fees after notice of
appeal had been filed and served.

Id. at 329-30, 500 S.E.2d at 104-05.
In the directed verdict order and judgment entered in the case
before us, the trial court ordered that "the costs of this action
shall be taxed against [Appellant.]" Therefore, the parties were
aware that the trial court had ordered that costs be taxed against
Appellant and that the trial court would thereafter specifically
determine the amount of the costs. We hold that the judgment from
which Appellant appealed was not affected by the interim order and
final order on the motion to tax costs. Accordingly, the trial
court retained jurisdiction to enter the challenged orders.

Appellant also argues the trial court erred by failing toorder a stay of execution on the money judgment. In its interim
order on the motion to tax costs, the trial court stated as
follows: "Execution on the money judgment in this case is not
stayed because [Appellant] has not fully complied with N.C.G.S. §
1-289, N.C.G.S. § 1-293, and Rule 62 of the North Carolina Rules of
Civil Procedure[.]"
North Carolina Rule of Civil Procedure 62(d) provides: "When
an appeal is taken, the appellant may obtain a stay of execution,
subject to the exceptions contained in section (a), by proceeding
in accordance with and subject to the conditions of G.S. 1-289,
G.S. 1-290, G.S. 1-291, G.S. 1-292, G.S. 1-293, G.S. 1-294, and
G.S. 1-295." N.C. Gen. Stat. § 1A-1, Rule 62(d) (2007). Pursuant
to N.C. Gen. Stat. § 1-289(a) (2007),
[i]f the appeal is from a judgment directing
the payment of money, it does not stay the
execution of the judgment unless a written
undertaking is executed on the part of the
appellant, by one or more sureties, to the
effect that if the judgment appealed from, or
any part thereof, is affirmed, or the appeal
is dismissed, the appellant will pay the
amount directed to be paid by the judgment, or
the part of such amount as to which the
judgment shall be affirmed, if affirmed only
in part, and all damages which shall be
awarded against the appellant upon the appeal,
except as provided in subsection (b) of this
section.

In the present case, Appellant deposited the sum of $810,647.39
with the clerk of court. However, the directed verdict order and
judgment from which he appealed provided that "interest shall be
calculated at 8% per annum from February 18, 2002 on all amounts
awarded to Plaintiffs and from October 10, 2006 on all non-punitiveamounts awarded to [C]ross-[C]laimants. Further, the costs of this
action shall be taxed against [Appellant.]" Appellant did not
deposit these amounts with the clerk of court and, therefore, did
not satisfy the requirements of N.C.G.S. § 1-289 to post a bond in
"the amount directed to be paid by the judgment[.]" See N.C.G.S.
§ 1-289(a).
N.C. Gen. Stat. § 1-293 (2007) further provides that a trial
court may stay execution of a judgment on special motion after "the
undertaking requisite to stay execution on the judgment has been
given, and the appeal perfected[.]" However, Appellant in the
present case took no action following the insufficient deposit with
the clerk of court and, therefore, did not proceed in accordance
with N.C.G.S. § 1-293. We overrule these assignments of error.

Plaintiff has failed to set forth, or cite authority in
support of, his remaining assignments of error, and we deem them
abandoned. See N.C.R. App. P. 28(b)(6) (stating that
"[a]ssignments of error not set out in the appellant’s brief, or in
support of which no reason or argument is stated or authority
cited, will be taken as abandoned.").
Affirmed.
Judges WYNN and CALABRIA concur.

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